Memorandum in Response to Trial Court Findings Page 1 No. WR- 75,812
- 04 EX PARTE § IN THE COURT OF § § CRIMINAL APPEALS § MICHAEL SHAWN SADLER § OF TEXAS APPLICANT MICHAEL SADLER’ S MEMORANDUM IN RESPONSE TO TRIAL COURT FINDINGS

COMES NOW Michael Shawn Sadler , Applicant in the above

- styled and numbered cause, and submits this Memorandum in Response to the Trial Court’s Findings. Introduction
1. Applicant raised numerous claims of ineffective assistance of counsel both at the trial and appellate levels arising from his prosecution, conviction and appeal for the offense of murder . Th is Court determined that the issues presented are cognizable and directed the trial court to: (1) require Applicant’s trial and appellate counsel to respond to the claims; ( 2) appoint counsel for Applicant if indigent and if the court elects to hold a hearing; (3) make findings of fact and conclusions of law regarding the performance of trial and appellate counsel; and (4) make any additional findings of fact and conclusions of law deemed relevant and appropriate to the disposition of the writ application.
2. The trial court appointed the undersigned counsel and conducted a live hearing in this matter on June 29, 2015. WR-75,812-04 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 10/28/2015 12:11:17 PM Accepted 10/29/2015 9:00:21 AM

ABEL ACOSTA CLERKMemorandum in Response to Trial Court Findings Page 2 3. After the hearing and considering the proposed findin gs of fact and conclusions of law submitted by the parties, the trial court signed its findings of fact and conclusions of law on July 14, 2015, and filed them on July 20, 2015.
4. The district clerk filed the trial court’s findings of fact and conclusion s of law with this Court in a supplemental record filed on July 24, 2015. Erroneous Advice Regarding Plea Offer 5

. In Applicant’s second ground, he alleges that trial counsel provided ineffective assistance by giving erroneous advice regarding a plea off er made by the
State

. Specifically, the State offered a 20

- year plea offer for the lesser

- included offense of manslaughter. Applicant contends that trial counsel erroneously advised him that manslaughter is an “aggravated” ( i.e. , 3g) offense that would req uire him
to serve one

- half of his sentence before becoming eligible for parole. Applicant stated in his original application filed with the district clerk on January 14, 2015 that he “would have accepted the State’s offer” but for counsel’s erroneous advic e. (Habeas Application at 9)
6

. This Court has recognized that a habeas applicant has a valid ineffective

- assistance claim due to erroneous advice regarding a plea offer if the applicant shows “ a reasonable probability that: (1) he would have accepted th e earlier offer if counsel had not given ineffective assistance; (2) the prosecution would not have withdrawn the offer; and (3) the trial court would not have refusedMemorandum in Response to Trial Court Findings Page 3 to accept the plea bargain. ” Ex parte Argent , 3 93 S.W.3d 781, 784 (Tex. Crim. App.
20 1 3 )

. 7. Applicant testified at the live hearing that his trial counsel told him (erroneously) that manslaughter was an aggravated offense for which he would have to serve at least half his sente nce before he would be eligible for parole. W h en presented with the proper information regarding the fact that manslaughter is not a 3g offense, Applicant testified that “ it ’ s a strong possibility ” he would have accepted the plea offer but for counsel ’ s erroneous advice. (Record of J u ne 29, 2015 hearing at 22).
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. The trial court made the following relevant findings (Findings Nos. 8, 9, 14, 15) regarding this claim:

• Applicant was on probation for possession of a controlled substance and there was a pending motion to revoke probation before the court.

• The State offered to reduce the charge from murder to the offense of manslaughter if Applicant would agree to twenty years incarceration, plus seven years incarceration in the possession of controlled substance case. As part of this offer, the sentences we re to be stacked. The State does not dispute that it would have honored the plea offer.

• Applicant rejected the plea agreement with the understanding that he would have to serve at least one

- half of his sentence before he would be considered for parole and he would have an additional seven

- year sentence to serve on the controlled

- substance case.

• Applicant testified at the hearing that he “would have considered” the State’s plea offer had Mr. Walker advised him that manslaughter was not an aggravated offens e under Article 42.12, § 3g of the Code of Criminal Procedure. Applicant made no statement that there was aMemorandum in Response to Trial Court Findings Page 4 reasonable probability he would have accepted the state’s plea offer if he had received different legal advice . Applicant insisted to Mr. Walker that he was innocent and Mr. Walker believed that he was not going to plead for that reason. There is no credible evidence that Applicant rejected the plea due to bad legal advice or that he would have accepted the plea offer if given different legal advic e. (emphasis added)

. 9

. Regarding the last quoted finding ( F inding N o. 15) , the trial court appears to have been fixated on Applicant’s failure to quote the relevant case law cited above regarding the showing necessary to obtain habeas relief because of erroneous advice concerning a plea offer. Although Applicant did not reci te the precise words employed by this Court in Argent or similar cases regarding his likelihood of accepting the plea offer had he been given sound advice, his testimony clearly estab lished a reasonable probability that he would have accepted the offer if his attorney had given the correct information. Cf. Bryant v. State , 391 S.W.3d 86, 92 (Tex. Crim. App. 2012) (“a party “need not spout ‘magic words’” to preserve an issue for appella te review). In addition, he expressly stated in his original habeas application that he “would have accepted the State’s offer” but for trial counsel’s erroneous advice. (Habeas Application at 9).
1 0

. For these reasons, Finding No . 15 is not supported by t he record.
11

. Based on the evidence presented, Applicant established that he received ineffective assistance of counsel because of counsel’s failure to properly advise him that manslaughter is not a “3g offense” that would require him to serve a minimumMemorandum in Response to Trial Court Findings Page 5 of half the agreed

- upon sentence before becoming eligible for parole. Stated differently, Applicant established a reasonable probability that he would have accepted the manslaughter plea offer but for counsel’s erroneous advice. WHEREFORE, PREMISES CONSIDE RED, Applicant Michael Shawn Sadler requests that the Court grant the relief requested in the writ application, and grant such other relief to which he may show himself justly entitled. Respectfully submitted,

/s/ Alan Bennett E. Alan Bennett Counsel for Applicant SBOT #02140700 Sheehy, Lovelace & Mayfield, P.C. 510 N. Valley Mills Dr., Ste. 500 Waco, TX 76710 Telephone: (254) 772

- 8022 Fax: (254) 772

- 9297 Email: abennett@slmpc.com Certificate of Service The undersigned hereby certifies that a true a nd correct copy of this document has been served by email on October 2 8 , 2015 to counsel for the State, B.J. Shepherd , 220thda@gmail.com

.

/s/ Alan Bennett E. Alan Bennett