Cause No. 14-15-00259-CR

IN THE COURT OF APPEALS 

FOR THE 

FOURTEENTH JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

JORDAN NICHOLS, 

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

Appeal from Cause No. 194143

In the County Court at Law No. 4 of 

Brazoria County, Texas

APPELLANT’S BRIEF

CARMEN ROE

CARMEN ROE LAW FIRM

TBN: 24048773

440 Louisiana, Suite 900

Houston, Texas 77002

713.236.7755 Phone

713.236.7756 Fax

carmen@carmenroe.com

ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED

ACCEPTED

14-15-00259-CR

FOURTEENTH COURT OF APPEALS

HOUSTON, TEXAS

9/18/2015 5:19:27 PM

CHRISTOPHER PRINE

CLERK

 RECEIVED IN 14th COURT OF APPEALS HOUSTON, TEXAS 9/18/2015 5:19:27 PM CHRISTOPHER A. PRINE Clerk
2

IDENTIFICATION OF INTERESTED PARTIES

Pursuant to TEX.R.APP.P. 28.1(a), a complete list of the names and 

addresses of all interested parties is provided below so the members of this 

Honorable Court may at once determine whether they are disqualified to 

serve or should recuse themselves from participating in the decision of this 

case.

Counsel for Defendant:

Robert Miller

1346 W. Broadway Street

Pearland, Texas 77581

Counsel on Appeal for Appellant:

Carmen Roe

Carmen Roe | Law Firm

440 Louisiana, Suite 900

Houston, Texas 77002

Counsel for the State:

Jerri Yenne

Brazoria County District Attorney’s Office

111 E. Locust Street

Angleton, Texas 77515

Trial Judge:

Honorable Lori Rickert

County Court at Law No. 4

Brazoria County Texas
3

TABLE OF CONTENTS

Page

IDENTIFICATION OF INTERESTED PARTIES........................................ 2

INDEX OF AUTHORITIES .......................................................................... 5

STATEMENT REGARDING ORAL ARGUMENT .................................... 9

STATEMENT OF THE CASE ...................................................................... 9

APPELLANT’S POINTS OF ERROR ....................................................... 11

STATEMENT OF THE FACTS.................................................................. 12

SUMMARY OF THE ARGUMENT........................................................... 13

APPELLANT’S POINT OF ERROR NUMBER ONE........................14

Appellant’s guilty plea was involuntarily and 

unknowingly entered as a result of trial counsel’s 

failure to advise him that the stop that formed the basis 

for an illegal detention, and that yielded the contraband 

forming the basis of his arrest and plea was illegal and 

violated the Fourth Amendment to the United States 

Constitution, Art. I, § 9 of the Texas Constitution and 

Art. 38.28 of the Texas Code of Criminal Procedure.

APPELLANT’S POINT OF ERROR NUMBER TWO......................14

Appellant was denied the effective assistance of counsel 

when trial counsel failed to perform an adequate legal 

and factual investigation.

STATEMENT OF THE FACTS.................................................14

A. The Writ Hearing................................................................14

 1. Appellant’s Post-Conviction Writ Exhibits...............................14
4

 2. Conflicting Affidavits and File of Robert Miller......................15

B. Applicant’s Plea of Guilty...................................................18

ARGUMENTS AND AUTHORITIES........................................19

A. Standard of Review: Ineffective Assistance of Counsel............19

B. Standard of Review: Involuntary Guilty Pleas........................23

C. Trial Court Determinations Unsupported By The Record Are Not 

Entitled to Deference........................................................24

D. Counsel’s Performance Was Objectively Deficient.................27

 1. Counsel’s Failure to Advise Appellant That The Detention

 That Yielded Contraband Was Constitutionally Flawed 

 Was Objectively Deficient Conduct...........................27

 2. Illegal Detention: Did Not Commit a Traffic Offense......28

 3. A Motion to Suppress If Filed Would Have Been 

 Successful.........................................................33

E. Prejudice.......................................................................34

F. Conclusion.....................................................................36

CONCLUSION AND PRAYER..............................................37

CERTIFICATE OF SERVICE................................................38

CERTIFICATE OF COMPLIANCE..........................................38
5

INDEX OF AUTHORITIES

CASES PAGE

Ballard v. State, 987 S.W.2d 889 (Tex. Crim. App. 1999).....................28

Boyington v. State, 738 S.W.2d 704 (Tex. App. – Houston [1st Dist.] 1985, 

no pet.)............................................................................ 27,33

Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984).....................19

Cardenas v. State, 960 S.W.2d 941 (Tex. App. – Texarkana 1998)..........23

Cooper v. State, 769 S.W.2d 301 (Tex. App. – Houston [1st Dist.] 1989)...20

Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008)..............................25

Ex parte Amezquita, 223 S.W.3d 363 (Tex. Crim. App. 2006)................26

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)....................34

Ex parte Felton, 815 S.W.2d 733 (Tex. Crim. App. 1991).....................20

Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007).....................24

Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983).......................21

Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999)................22,34

Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003)..................23

Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002)................23

Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990)...........21,24,32

Ex parte Wolfe, 296 S.W.3d 160 (Tex. App.- Houston [14th Dist.] 

2009, pet. ref’d).....................................................................36

Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991)..................19
6

Flowers v. State, 951 S.W.2d 883 (Tex. App. – San Antonio 1997).........34

Gonzalez v. State, 369 S.W.3d 851 (Tex.Crim.App. 2012)...................28

Goudeau v. State, 209 S.W.3d 713 (Tex. App. – Houston [14th Dist.] 

2006)..................................................................................28

Griffin v. Warden, 970 F.2d 1355 (4th Cir. 1992)..............................25

Hill v. Lockhart, 474 U.S. 52 (1985)......................................22,35,36

Hinton v. Alabama, 571 S. Ct. 1081 (2014).....................................32

Jackson v. State, 857 S.W.2d 678 (Tex. App.-Houston [14th Dist.] 1993)..

Kimmleman v. Morrison, 477 U.S. 365 (1986)..................................25

Lloyd v. Whitley, 977 F.2d 149 (5th Cir. 1992)..................................24

McMann v. Richardson, 397 U.S. 759 (1970)...............................22,34

Melton v. State, 987 S.W.2d 72 (Tex. App. – Dallas 1998)........25,28,33,36

Mincey v. Arizona, 437 U.S. 385 (1978)........................................29

Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992).....................19

Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999)...............................26

Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979)...............................21

North Carolina v. Alford, 400 U.S. 25 (1970)..............................23,37

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006)................26

Rompilla v. Beard, 545 U.S. 374 (2005)........................................21

State v. Ballman, 157 S.W.3d 64 (Tex. App.-Fort Worth 2004).......passim
7

State v. Patterson, 291 S.W.3d 121 (Tex. App.-Amarillo 2009)............32

Strickland v. Washington, 466 U.S. 668 (1984)...........................passim

Tallant v. State, 866 S.W.2d 642 (Tex. App. – Tyler 1993)..................35

Terry v. Ohio, 392 U.S. 1 (1968).................................................29

Tollett v. Henderson, 411 U.S. 258 (1973)......................................23

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999)................29

Whren v. U.S., 517 U.S. 806 (1996).............................................30

Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986)................20

Wiggins v. Smith, 539 U.S. 510 (2003)..........................................20
8

OTHER SOURCES

ABA STANDARDS OF CRIMINAL JUSTICE §4-4.1.................................21

ABA STANDARDS OF CRIMINAL JUSTICE §14-3.2................................24

ART. 1 SEC. 9, TEXAS CONSTITUTION............................................. 10,13,18,27

TEX. CODE CRIM. PROC. 38.23..................................................28,35

TEX.R.APP.P. 28.1(a)...................................................................................... 2

TEX. TRANS. CODE §542.001..................................................passim

TEX. TRANS. CODE §542.201.................................................. passim

PEARLAND. MUNI. CODE §29-189........................................... passim
9

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would significantly assist this Court in the decisionmaking process because this case presents an important question regarding 

counsel’s duty to conduct a reasonable and factual investigation, prior to 

advising Appellant to plead guilty. 

STATEMENT OF THE CASE

On May 7, 2012, Appellant was charged by information with the 

misdemeanor offense of possession of marijuana in Cause Number 194143 

in the County Court At Law No. 4, Brazoria County, Honorable Lori 

Rickert, presiding. (1 CR1 4). Appellant retained Robert Miller to represent 

him. (2 RR 31). On August 23, 2012, Appellant pled guilty to the reduced 

charge of possession of drug paraphernalia after completing a drug 

awareness class. Punishment was assessed at a $500 fine. (2 RR 7-9). 

On September 16, 2014, Appellant filed a misdemeanor postconviction writ of habeas corpus alleging that the Appellant’s plea was 

involuntary based on the incomplete or inadequate advice of counsel. (1 CR 

11). On February 26, 2015, the court conducted a hearing on Appellant’s

																																																							 1 “CR” refers to the Clerk’s Record following by page number and “RR” refers to the 

Reporter’s Record followed by page number.
10

post-conviction writ. (1 RR 5). On February 27, 2015, the trial court denied 

Appellant’s writ of habeas corpus. (1 Suppl. CR2 1). 

On June 23, 2015, without a request from the trial court, the State 

filed finding of facts and conclusions of law. (1 Suppl. CR 3). The trial court 

adopted the State’s findings of fact and conclusions of law. (1 Suppl. CR 3). 

On March 5, 2015, Appellant’s notice of appeal and the trial court’s 

certification of the right to appeal were timely entered. (1 CR 98; 108). This 

appeal follows.

																																																							 2 “Supp. CR” refers to the Supplemental Clerk’s Record followed by page number.
11

APPELLANT’S POINTS OF ERROR

POINT OF ERROR NUMBER ONE

Appellant’s guilty plea was involuntarily and 

unknowingly entered as a result of trial counsel’s 

failure to advise him that the stop that formed the 

basis for an illegal detention, and that yielded the 

contraband forming the basis of his arrest and 

plea was illegal and violated the Fourth 

Amendment to the United States Constitution, Art. 

I, § 9 of the Texas Constitution and Art. 38.28 of 

the Texas Code of Criminal Procedure. (1 CR 15)

POINT OF ERROR NUMBER TWO

Appellant was denied the effective assistance of 

counsel when trial counsel failed to perform an 

adequate legal and factual investigation. (1 CR 

15). 
12

STATEMENT OF FACTS

On May 7, 2012 at approximately 4:30 p.m., Appellant, an 18-year 

old high school student, was exiting the Food Town parking lot located at 

7121 Broadway in Pearland, Texas. (1 CR 45). Officer T.W. Madrid of the 

Pearland Police Department stopped him at the nearby Exxon gas station for 

failing to signal when exiting the Food Town parking lot. (1 CR 45). 

Once stopped, Officer Madrid approached Appellant’s vehicle where 

he smelled the strong odor of fresh marijuana. (1 CR 45). Officer Madrid 

observed Appellant to be visibly shaking and described him as so shaken he 

could barely remove his drivers license from his wallet. (1 CR 45). When 

asked if there was any marijuana in the vehicle, Appellant told Officer 

Madrid there was a baggie located in the center console. (1 CR 45). 

Appellant was placed under arrest and a search of his vehicle revealed 

a baggie of a green leafy substance in the center console, which measured 

0.06 ounces. (1 CR 45). No other drugs or paraphernalia was found in the 

vehicle. 

At Appellant’s first court setting a plea agreement was negotiated to 

reduce the possession of marijuana charge to a possession of drug 

paraphernalia after Appellant successfully completed a drug awareness class 

(1 RR 23). On his second court setting, having completed the drug 
13

awareness class, Appellant waived his right to trial and entered a plea of 

guilty to the reduced charge of Class C misdemeanor possession of drug 

paraphernalia. (2 RR 9).

SUMMARY OF THE ARGUMENT

I. & II.

Appellant was denied the effective assistance of counsel because trial 

counsel failed to conduct a reasonable pretrial factual or legal investigation 

that would have provided a meritorious defense to drug charges. Even a 

cursory review of case law that was available at the time of Appellant’s 

guilty plea would have revealed that no traffic offense was committed and 

therefore any detention was unlawful. Because trial counsel neither 

identified the correct legal issue nor researched the law applicable in this 

case, his conduct was objectively deficient. Because Appellant both relied 

on trial counsel’s advice prior to pleading guilty and suffered harm as a 

result, counsel’s objectively deficient conduct prejudiced the defense. 
14

ARGUMENT AND AUTHORITIES

POINT OF ERROR NUMBER ONE (RESTATED)

Appellant’s guilty plea was involuntarily and 

unknowingly entered as a result of trial counsel’s 

failure to advise him that the stop that formed the 

basis for an illegal detention, and that yielded the 

contraband forming the basis of his arrest and 

plea was illegal and violated the Fourth 

Amendment to the United States Constitution, Art. 

I, § 9 of the Texas Constitution and Art. 38.28 of 

the Texas Code of Criminal Procedure. (1 CR 15).

POINT OF ERROR NUMBER TWO (RESTATED)

Appellant was denied the effective assistance of 

counsel when trial counsel failed to perform an 

adequate legal and factual investigation. (1 CR 

15). 

STATEMENT OF FACTS

A. The Writ Hearing

1. Appellant’s Post-Conviction Writ Exhibits

Appellant’s nineteen post-conviction exhibits were admitted without 

objection at the writ hearing. (1 RR 4). Pertinent exhibits included:

• Transportation Code §545.104: a turn signal is required to 

indicate an intention to turn when a vehicle is being operated

on a highway. (2 RR 44)

• Transportation Code §542.201: a local authority may not 

enact or enforce an ordinance or rule that conflicts with this 

subtitle unless expressly authorized by this subtitle. (2 RR 

74). 
15

• Transportation Code §542.001: operation of a vehicle applies 

only to the operation of a vehicle on a highway. (2 RR 72).

• Pearland Municipal Code §29-189: “no person shall turn any 

vehicle without first giving an appropriate turn signal in the 

event any other traffic may be affected by such movement. 

Such signal of intention to turn right or left, when required, 

shall be given continuously during not less than one hundred 

(100) feet by the driver of such vehicle before turning.” (2 RR 

73).

• State v. Ballman, 157 S.W.3d 65 (Tex. App. – Fort Worth 

2004, pet. ref’d): the failure to signal from private parking lot 

onto a public highway did not establish probable cause 

warranting a traffic stop. (2 RR 48).

• Trial counsel’s three affidavits. (2 RR 7,63,71).

• Appellant’s trial file. (2 RR 29-42).

2. Conflicting Affidavits and Trial Counsel’s File

Undersigned counsel met with Appellant’s trial counsel, on May 27, 

2014 regarding his representation of Appellant. (1 RR 88). At that time trial 

counsel provided a complete copy of the file maintained in his office for 

Appellant’s case. On July 8, 2014 Undersigned counsel sent an affidavit to 

trial counsel, which memorialized the conversation regarding his 

representation in this case, specifically the affidavit addressed the issue 

identified by trial counsel. After reviewing same, trial counsel emailed the 

signed affidavit. (1 RR 65). 
16

In the July 19th affidavit trial counsel identified the issue in 

Appellant’s case as the following:

 “I researched the case law as to the legality of Mr. Nichols’ traffic 

stop and felt it was a bad stop because my interpretation of the 

relevant case law was that he was only required to use his turn 

signal within the last 100 feet before the turn, even when pulling 

into a turn-only lane”. (2 RR 65; Exhibit 18)(emphasis added).

Undersigned counsel subsequently called trial counsel and advised 

him that he had in fact identified the wrong issue in this case, because the 

actual issue was not that Appellant was required to use a turn signal within 

the last 100 feet before the turn but rather, whether or not Appellant was 

required to use a turn signal when exiting from a private drive onto a public 

roadway. (1 RR 67). 

On August 22, 2014, trial counsel was sent an updated affidavit 

memorializing this conversation where Undersigned counsel advised him of 

the legal issue impacting the traffic stop. (1 RR 68). Undersigned counsel 

proffered an un-admitted affidavit dated July 21, 2014 that identified the 

issue in this case as:

 “I researched case law about the legality of the traffic stop and at 

the time I believed it was a bad stop because Mr. Nichols was only 

required to use his turn signal within the last 100 feet before the 

turn, even when pulling into a turn-only lane. However, I am now 

aware that the controlling legal issue in this case was whether 

Mr. Nichols was required to use his turn signal when leaving a 

private driveway upon entering a public roadway.” 
17

(2 RR 87-89; emphasis added).

On September 1, 2014, trial counsel responded by email stating that 

he did not agree with the updated affidavit, and specifically he disagreed that 

he had missed the issue. (2 RR 83). In addition, he attached to his 

correspondence a “slightly modified” affidavit, insisting this affidavit was 

his final statement. (2 RR 68). 

The September 1, 2014 “slightly modified” affidavit is identical to the 

July 21st3 affidavit (2 RR 87), with the exception that he used a different 

font and identified the legal issue as the following:

“I researched the case law as to the legality of Mr. Nichols’ traffic 

stop and felt it was a bad stop because my interpretation of the 

relevant case law was that he was not required to use his turn 

signal when leaving a private driveway upon entering a public 

roadway” 

(2 RR 72-73; Exhibit 23)(emphasis added). 

During the writ hearing, however, trial counsel admitted that the first 

time he identified the correct legal issue in this case was only after 

Undersigned counsel provided it to him in the affidavit not admitted in 

evidence of July 21, 2014. (2 RR 90). Notably, the legal basis provided trial 

counsel final affidavit signed, September 1, 2014, uses the identical 

language provided to him in the prior affidavit he refused to sign. (2 RR 73). 

																																																							 3 This affidavit was not admitted into evidence, was unsigned by trial counsel, and dated 

July 21, 2014.
18

Although trial counsel testified that he discussed the potential to file a 

motion to suppress, (2 RR 50), his notes and affidavits make clear that he 

identified and researched the wrong legal issue in this case based on the 

following information:

• Handwritten notes in his file identifying the issue as whether a turn 

signal was required 100 feet before an intersection. (2 RR 36; 

Exhibit 7). 

• Case law contained in his file regarding whether a turn signal was 

required 100 feet from an intersection. (2 RR 35; Exhibit 7). 

• The July 8, 2014 affidavit sent to trial counsel memorializing a 

conversation where he identified the legal issue as whether a turn 

signal was required 100 feet from an intersection. (2 RR 76; 

Exhibit 18).

• The July 8, 2014 affidavit signed by trial counsel identifying the 

issue as whether a turn signal was required 100 feet from an 

intersection. (2 RR 81; Exhibit 19).

B. Appellant’s Plea of Guilty

Trial counsel testified during the writ hearing that he knew that 

Appellant had no prior criminal history and was going to college or intended 

to go to college. (1 RR 79). He testified he never discussed deferred 

adjudication with Appellant and that it was a “judgment call”, (1 RR 80-81), 

based on the fact that Appellant “was young and could mess up on 
19

probation”4 (1 RR 81). Trial counsel testified that he ultimately told 

Appellant to take a deal based on the legal research he conducted. (1 RR 92). 

Specifically trial counsel said:

“And based on my research and what I was seeing and my 

interpretation of what was out there, I advised him that I believed it 

was in his best interest to accept a Class C [misdemeanor].”

(1 RR 51). 

ARGUMENT AND AUTHORITIES 

A. Standard of Review: Ineffective Assistance of Counsel

Appellant was entitled to the reasonably effective assistance of 

counsel under the Sixth Amendment to the United States Constitution and 

Art. I, §9 of the Texas Constitution. Wilkerson v. State, 726 S.W.2d 542, 548 

(Tex. Crim. App. 1986). Under the standard in Strickland v. Washington, 

466 U.S. 668, 698 (1984), a defendant seeking relief as a result of counsel’s 

conduct must first show by a preponderance of the evidence that counsel’s 

performance was deficient and then demonstrate that this deficient 

performance prejudiced the defense. Miniel v. State, 831 S.W.2d 310, 323 

(Tex. Crim. App. 1992). Deficient performance is conduct by a lawyer that 

goes beyond the bounds of prevailing, objective professional standards. 

																																																							 4 Trial counsel admitted at the writ hearing that he never discussed probation with 

Appellant. (1 RR 18). In addition, there is no evidence in trial counsel’s file or the writ 

hearing that would indicate Appellant would have been unsuccessful on probation.
20

Strickland v. Washington, 466 U.S. 668, 687-688 (1984). For an error on 

counsel’s part to reach this level, there must be a reasonable probability, a 

probability sufficient to undermine confidence in the outcome of the trial, 

that, but for counsel’s unprofessional errors, the outcome of the proceeding 

would have been different. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. 

Crim. App. 1991). The defendant must only prove ineffective assistance of 

counsel by a preponderance of the evidence. Cannon v. State, 668 S.W.2d 

401, 403 (Tex. Crim. App. 1984). The Supreme Court has held that a 

defendant need not show that counsel’s deficient performance more likely 

than not altered the outcome in the case:

The result of a proceeding can be rendered unreliable, and hence, the 

proceeding itself unfair, even if the errors of counsel cannot be shown 

by a preponderance of the evidence to have determined the outcome...

In every case the court should be concerned with whether ... the result 

of the proceeding is unreliable because of a breakdown in the 

adversarial process that our system counts on to produce just results. 

Id. at 694-96.

The Supreme Court has held that counsel’s performance is measured 

against an “objective standard of reasonableness,” Strickland v. Washington, 

466 U.S. at 688, “under prevailing professional norms.” Id. “Prevailing 

norms of practice as reflected in the American Bar Association standards 

and the like ... are guides to what is reasonable.” Wiggins v. Smith, 539 U.S. 
21

510, 527 (2003); see also Rompilla v. Beard, 545 U.S. 374, 387 

(2005)(“[W]e have long referred [to these ABA Standards] as guides to 

determining what is reasonable.”); 1 ABA STANDARDS OF CRIMINAL 

JUSTICE, The Defense Function, Sec. 4-4.1, (“Defense counsel should 

conduct a prompt investigation of the circumstances of the case and explore 

all avenues leading to facts relevant to the merits of the case and the penalty 

in the event of conviction.”)(emphasis added). 

While the adequacy of trial counsel’s performance must be gauged by 

the totality of the representation afforded the accused, “[S]omtimes a single 

error is so substantial that it alone causes the attorney’s assistance to fall 

below the Sixth Amendment standard.” Nero v. Blackburn, 597 F.2d 991, 

994 (5th Cir. 1979). As the First Court of Appeals has written:

To ignore a grievous error simply because it is single, while granting 

relief where multiple errors cumulatively reach the same magnitude, 

would be contrary to the reasons that caused the creation of the 

doctrine of ineffective assistance of counsel. 

Cooper v. State, 769 S.W.2d 301, 305 (Tex. App. – Houston [1st Dist.] 

1989, pet. ref’d); see also Ex parte Felton, 815 S.W.2d 733, 736 (Tex. Crim. 

App. 1991)(single error was of sufficient magnitude to render trial counsel’s 

performance ineffective). 

An attorney must have a firm command of the facts of the case as well 

as the governing law before he can render reasonably effective assistance of 
22

counsel. Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983). 

Counsel’s assertion that his challenged conduct was the result of a trial 

strategy does not of itself negate a claim of ineffective assistance of counsel 

because, “It may not be argued that a given course of conduct was within the 

realm of trial strategy unless and until the trial attorney has conduct the 

necessary legal and factual investigation which would enable him to make 

an informed rational decision.” Ex parte Welborn, 785 S.W.2d 391, 395 

(Tex. Crim. App. 1990) (emphasis added). An appellate court’s core concern 

in deciding whether counsel exercised “reasonable professional judgment” is 

not whether counsel’s professed tactical decision was reasonable but 

whether the investigation supporting counsel’s decision was itself 

reasonable. A strategy informed by an incorrect understanding of 

controlling case law or where counsel conducts no investigation into the

facts or the law, that an otherwise reasonable prudent attorney would have 

investigated, cannot be an objectively reasonable trial strategy. Id.,

(unreasonable strategy not to object to inadmissible hearsay in pen packets 

where counsel thought material could be introduced “in a more damaging 

manner”). 
23

B. Standard of Review: Involuntary Guilty Pleas

The test for determining the voluntariness of a guilty plea is “whether 

the plea represents a voluntary and intelligent choice among the alternative 

courses of action open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56-

57 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970). When 

a defendant enters his plea of guilty upon the advice of counsel, the 

voluntariness of the plea depends on whether counsel’s advice “was within 

the range of competence demanded of attorneys in criminal cases.” Id.,

quoting McMann v. Richardson, 397 U.S. 759, 771 (1970). In Tollett v. 

Henderson, 411 U.S. 258, 267 (1973), the Court held that a defendant who 

enters a plea of guilty upon the advice of counsel “may only attack the 

voluntary and intelligent character of the guilty plea by showing that the 

advice of counsel was not within the standards set forth in McMann.” A 

defendant must show that but for counsel’s unreasonable advice, there is a 

reasonable probability he would not have pleaded guilty, i.e., the prejudice 

prong of Strickland. Hill v. Lockhart, 474 U.S. at 56-57.

If counsel conveys erroneous or incomplete information of a sufficient 

magnitude to the defendant, a guilty plea based on that information is 
24

involuntary5. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 

1999). A guilty plea will not support a conviction where it is motivated by 

significantly misleading or incomplete advice conveyed by counsel, and a 

guilty plea based thereon is involuntary. Cardenas v. State, 960 S.W.2d 941, 

943 (Tex. App. – Texarkana 1998, pet. ref’d).

C. Trial Court Determination Are Not Entitled to Deference if 

Unsupported By The Record 

Appellant contends that the trial court erred in denying his habeas 

relief from a judgment of conviction of the misdemeanor offense of 

possession of drug paraphernalia on the ground that his trial counsel was 

ineffective. 

Appellant must only prove facts that entitle him to relief by a 

preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870 

(Tex. Crim. App. 2002). Although the trial court’s factual findings based on 

credibility determinations are entitled to almost total deference, its legal 

conclusions are not. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 

1997). This Court reviews the facts in the light most favorable to the trial 

																																																							 5

 The ABA Standards mandate, inter alia, that defense counsel must “after appropriate 

investigation...advise the defendant of the alternatives available and address 

considerations deemed important by... the defendant in reaching a decision. See ABA 

Standard 14-3.2 Responsibilities of defense counsel-Guilty Pleas.
25

courts determination only if the record supports them. Id. Miller v. State, 393 

S.W.3d 255 (Tex.Crim.App.2012). 

Because trial counsel’s claimed strategic decisions are entitled to 

deference only if they are the product of informed decisions, this Court’s 

“principle concern” is not whether trial counsel‘s challenged conduct was 

strategic, “but rather whether the investigation supporting [his] 

decision...was itself reasonable. Strickland does not establish that a cursory 

investigation automatically justifies a tactical decision.” Wiggins v. Smith, 

539 U.S. 510, 522-23 (2003)(emphasis added). Counsels “decision cannot be 

fairly characterized as ‘strategic’ unless it is a conscious choice between two 

legitimate and rational alternatives. It must be borne of deliberation and not 

happenstance, inattention, or neglect.” Id at 526-527. 

Trial counsel’s claim that his challenged conduct was “strategic” is

also not the end of the inquiry. “It may not be argued that a given course of 

conduct was within the realm of trial strategy unless and until the trial 

attorney has conducted the necessary legal and factual investigation which 

would enable him to make an informed rational decision.” Ex parte 

Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990); Melton v. State, 987 

S.W.2d 72, 77 (Tex. App. – Dallas 1998, no pet.)(counsel’s failure to fully 

investigate facts of case before advising defendant to plea guilty was 
26

deficient conduct). Because there is a “crucial distinction between strategic 

judgments and plain omissions,” Lloyd v. Whitley, 977 F.2d 149, 158 (5th

Cir. 1992), courts are “not required to condone unreasonable decisions 

parading under the umbrella of strategy, or to fabricate tactical decisions on 

behalf of Counsel when it appears on the face of the record that Counsel 

made no strategic decision at all”. Moore v. Johnson, 194 F.3d 586, 604 (5th

Cir. 1999). A sound trial strategy is one formed by a reasonable 

investigation of the facts and the controlling case law. See Robertson v. 

State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006). 

Trial counsel challenged conduct is evaluated from his perspective at 

the time of the plea. Strickland v. Washington, 466 U.S. 689 (“A fair 

assessment of attorney performance requires that every effort be made to 

reconstruct the circumstances of counsel’s challenged conduct, and to 

evaluate the conduct from counsel’s perspective at the time.” (emphasis 

added). Accordingly, this Court may not recreate a strategy asserted by trial 

counsel by engaging in “a post-hoc rationalization of [his] conduct in lieu of 

relying on “an accurate description of [his] deliberations.” 539 U.S. 510, 

526-27 (2003); Kimmleman v. Morrison, 477 U.S. 365, 385 (1986) (“The 

justification [counsel] offered from his omission betray a startling ignorance 

of the law-or a weak attempt to shift blame from inadequate preparation.”); 
27

See also Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992)(“Courts

should not conjure up tactical decisions an attorney could have made, but 

plainly did not.”); Duncan v. Ornoski, 528 F.3d 1222, 1237 (9th Cir. 2008) 

(“In light of the Supreme Court’s admonition that reviewing courts may not 

substitute their own strategic reasoning for that of trial counsel in order to 

find the counsel’s performance was justified, we do not consider additional 

speculative justification...). 

D. Counsel’s Performance Was Objectively Deficient

Trial counsel had a constitutional duty to present “available evidence 

and arguments” to support Appellant’s only defense. Jackson v. State, 857 

S.W.2d 678, 683 (Tex. App.-Houston [14th Dist.] 1993, pet. ref’d). He was 

obligated to conduct a reasonable investigation in an effort to present the 

most persuasive case that he could. This duty encompasses presenting 

evidence to demonstrate Appellant’s innocence, undermine the prosecutions 

case, or raise a reasonable doubt of guilt. See Ex parte Amezquita, 223 

S.W.3d 363, 368 (Tex. Crim. App. 2006). 

1. Counsel’s Failure to Advise Appellant That The Detention That 

Yielded Contraband Was Constitutionally Flawed Was Objectively 

Deficient Conduct

Based on the facts as recounted in the offense report, trial counsel should 

have recognized that:
28

• Officer Madrid’s initial stop was based on Appellant’s failure to 

use a turn signal when exiting the Food Town parking lot headed 

southbound onto Reid Road and not as he approached the 

intersection of FM 518 and Reid Road.

• Based on the plain language of the statute and well-established 

case law, Officer Madrid’s detention of Appellant’s vehicle was 

unlawful because Appellant was not required to signal when exiting 

a private parking lot and entering a public highway. 

Trial counsel’s failure to investigate the relevant case law and discuss 

the merits of a motion to suppress with Appellant, as well as advise him of 

the chances on any motion to suppress, could not have been the result of any 

reasoned trial strategy because his failure was not informed by a reasonable 

investigation and therefore was objectively deficient conduct. See Boyington 

v. State, 738 S.W.2d 704, 708 (Tex. App. – Houston [1st Dist.] 1985, no 

pet.) (counsel’s failure to file motion to suppress that was fruit of illegal 

arrest was objectively deficient performance); Melton v. State, 987 S.W.2d 

72, 77 (Tex. App. – Dallas 1998, no pet.) (counsel’s failure to fully 

investigate facts of case before advising defendant to plea guilty was 

deficient conduct). 

2. Illegal Detention: Appellant Did Not Commit a Traffic Offense

The Fourth Amendment to the United States Constitution, as well as 

Art. I, § 9 of the Texas Constitution, and Art. 38.23 of the Code of Criminal 
29

Procedure6 make illegal all unreasonable searches and seizures. “Searches 

conducted outside the judicial process, without prior approval by a judge or 

magistrate, are per se unreasonable under the Fourth Amendment – subject 

only to a few specifically established and well delineated exceptions.” 

Mincey v. Arizona, 437 U.S. 385, 390 (1978); Gonzalez v. State, 369 S.W.3d 

851, 854 (Tex.Crim.App. 2012). One such exception is embodied in Terry v. 

Ohio, 392 U.S. 1, 30 (1968), allowing an investigating officer to detain a 

person temporarily upon a showing of reasonable suspicion that he is 

involved in criminal activity, including a traffic offense. The decision to stop 

a vehicle is reasonable when the officer has reasonable suspicion or probable 

cause to believe a traffic violation has occurred. Whren v. U.S., 517 U.S. 

806, 812 (1996). Although an officer’s observations alone can be sufficient 

to establish the traffic offense, the officer must be clear on the elements of 

the law that constitute the offense and it must be a violation of the law. “An 

officer’s suspicion of an alleged traffic violation, however, cannot be based 

on a mistaken understanding of traffic laws.” Goudeau v. State, 209 S.W.3d 

713, 716 (Tex. App. – Houston [14th Dist.] 2006); see also United States v. 

Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999). 

																																																							 6 “No evidence obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the United 

States of America, shall be admitted in evidence against the accused on trial of any 

criminal case.”
30

An officer must have probable cause to arrest the driver for a traffic 

violation without a warrant. State v. Ballman, 157 S.W.3d 65 (Tex. App. –

Fort Worth, pet. ref’d); see also Ballard v. State, 987 S.W.2d 889, 891 (Tex. 

Crim. App. 1999). Probable cause exists when the facts and circumstances 

within the officer’s knowledge at that time would cause a reasonably prudent 

officer to believe that a certain person has committed or is committing a 

crime. Id. When an officer observes a traffic offense, he may arrest the 

violator. “Here, however, [Officer Madrid] did not observe a traffic offense; 

he only thought he had.” Citing State v. Ballman, 157 S.W.3d at 70.

Viewed through this prism of legal authority, it is clear that Officer 

Madrid’s detention of Appellant was not justified because no traffic offense 

occurred when Appellant failed to signal his turn when exiting the Food 

Town parking lot onto a public highway. The offense report shows that 

while monitoring traffic, Officer Madrid predicated his stop upon observing

Appellant’s vehicle,

“...exit the Food Town parking lot southbound onto Reid Road 

without signaling. I then followed the vehicle southbound through the 

intersection of FM 518 and Reid Road before stopping the vehicle at 

the Exxon Gas station at 7218 Broadway.” (1 CR 45).

There is nothing about these facts that would lead a reasonable officer to 

believe that a traffic offense had been committed based on the plain 

language of the Texas Transportation Code. 
31

Section 545.104 of the Texas Transportation Code provides that an 

operator is required to use a turn signal to indicate an intention to turn, 

change lanes, or start from a parked position when a vehicle is being 

operated on a highway. Further, a “highway” is defined as “the width 

between the boundary lines of a publicly maintained way any part of which 

is open to the public for vehicle traffic.” Id., see also §541.302(5). 

Relying on the language of the statute, case law makes clear that 

failing to signal a turn when exiting a private parking lot onto a public 

highway is not a traffic offense, and therefore could not justify Officer 

Madrid’s stop of Appellant’s vehicle. State v. Ballman, 157 S.W.3d at 70, 

(defendant’s failure to signal from private parking lot did not establish 

probable cause warranting traffic stop). 

As an initial matter Appellant contends trial counsel failed to 

recognize the correct legal issue in this case. Trial counsel had three cases in 

his file that provided his legal research before advising Appellant to plead 

guilty. Two of those cases were State v. Kidd, 2010 WL 5463893 (Tex. 

App.—Austin Dec. 30, 2010, no pet.) and Reha v. State, 99 S.W. 3d 373 

(Tex.App.-Corpus Christi 2003, no pet.), which dealt with whether a turn 

signal was required one hundred feet from an intersection. (1 RR 77). The 

third case Zeno v. State, 862 S.W.2d 165 (Tex. App.—Houston [1st Dist.] 
32

1993, pet. ref'd), analyzed a search incident to arrest. (1 RR 77). Not one 

case contained in trial counsel’s file indicated he researched or identified the 

correct legal issue7. 

Trial counsel also erroneously relied on a Pearland Municipal 

Ordinance, believing that it would validate the stop. When asked at the writ 

hearing whether he thought the Pearland Municipal Ordinance did validate

the stop of Appellant’s vehicle, trial counsel said, “Yes, I did”. (1 RR 59). 

When questioned about whether the Transportation Code supersedes the 

municipal ordinance, trial counsel said he, “[n]ever researched that issue” (1 

RR 59), and “I don’t really agree with that. But okay.” (1 RR 60).

In spite of trial counsel’s belief, case law makes clear that a municipal 

ordinance cannot supersede the Transportation Code. State v. Patterson, 291

S.W.3d 121, 124 (Tex. App.-Amarillo 2009, no pet.) (“To the extent 

Patterson suggests that Amarillo's ordinance superseded § 552.006, he is 

mistaken. Our legislature declared that a ‘local authority may not enact or 

enforce an ordinance or rule that conflicts with’ subtitle C of title 7 of the 

Transportation Code ‘unless expressly authorized by’ that same subtitle. 

TEX. TRANSP. CODE ANN. § 542.201 (Vernon 1999)”. Since trial counsel 

																																																							 7 Trial counsel verified that his file did not contain State v. Ballman (1 RR 62) and 

admitted that there was nowhere in his file that shows he researched Texas 

Transportation Code §542.001 (vehicles entering a highway from a private drive), or that 

he relied on Texas Transportation Code §542.201 to decide which code would supersede 

the other. (1 RR 62).
33

failed to adequately investigate the case law impacting this meritorious 

issue, his advice that Appellant plea guilty pursuant to the State’s plea 

agreement was objectively deficient. (1 RR 81).

3. A Motion to Suppress: Had One Been Filed it Would Have Been 

Successful

As the Supreme Court of the United States recently held, “An 

attorney’s ignorance of a point of law that is fundamental to his case 

combined with his failure to perform basic [legal] research on that point is a 

quintessential example of unreasonable performance under Strickland.” 

Hinton v. Alabama, 571 S. Ct. 1081 (2014). So too, even if trial counsel had 

investigated relevant case law, he did not advise Appellant of the legal issues 

raised by Officer Madrid’s report or the likelihood of success had Appellant

filed a motion to suppress8. Because the case law in this area was readily 

available at the time of Appellant’s guilty plea and because trial counsel 

failed to conduct a reasonable legal investigation or advise Appellant of the 

only meritorious issue raised by evidence prior to entering a plea of guilty, 

his conduct was objectively unreasonable. Melton v. State, 987 S.W.2d 72, 

77 (Tex. App. – Dallas 1998, no pet.)(counsel’s failure to fully investigate 

facts of case before advising defendant to plea guilty was deficient conduct).

																																																							 8 Trial counsel admitted during the writ hearing that he does not even remember advising 

Appellant of the possibility of filing a motion to suppress (“I believe I did. I don't know 

why we wouldn't have, but I don't recall specifically”). (1 RR 51). 
34

Because the detention that formed the basis for the search of 

Appellant’s vehicle was constitutionally flawed, counsel’s failure to 

determine there were meritorious grounds to suppress the marijuana was 

objectively deficient conduct that could not have been the product of a 

reasoned trial strategy. See Boyington v. State, 738 S.W.2d at 708 (counsel’s 

failure to file motion to suppress that was fruit of illegal arrest was 

objectively deficient performance); Melton v. State, 987 S.W.2d at 77 

(counsel’s failure to fully investigate facts of case before advising defendant 

to plea guilty was deficient conduct). 

E. Prejudice

Appellant is a layman and not versed in Texas or United States search 

and seizure law. His guilty plea was induced by counsel’s advice to accept

the State’s plea bargain based on a substantially unreasonable investigation 

of the facts and law. At the writ hearing, Appellant stated he would not have 

accepted the State’s plea offer if he had known there was a meritorious 

search issue in his case. (1 RR 42). Moreover, Appellant said he relied on 

Trial counsel’s advice in deciding to plead guilty to a misdemeanor drug 

charge. (1 RR 42). Trial counsel’s advice was inadequate and incomplete in 

that he did not advise Appellant that Officer Madrid’s detention and 

subsequent search yielding contraband forming the basis of his arrest and 
35

guilty plea was illegal and violated the Fourth Amendment, Art. I. § 9, and 

Art. 38.23(a). It is well settled that this incomplete and misleading advice 

was not within the range of competence for a criminal attorney. Ex parte 

Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999); Flowers v. State, 951 

S.W.2d 883, 885 (Tex. App. – San Antonio 1997, no pet.); Tallant v. State, 

866 S.W.2d 642, 643 (Tex. App. – Tyler 1993, no pet.). Because counsel’s 

failure to advise Appellant that the detention yielding the contraband, which 

formed the basis of his arrest and guilty plea, was illegal and violated state 

and federal constitutional and statutory prohibitions was not a “strategic” 

decision made after a full investigation of the law and facts, his performance 

was objectively deficient.

Prejudice is shown in this case because Appellant can demonstrate by 

a preponderance of the evidence that, but for counsel’s objectively deficient 

performance, there was a reasonable probability that Appellant would not 

have pleaded guilty. Hill v. Lockhart, 474 U.S. at 59. Appellant was entitled 

to rely upon counsel to conduct an independent examination of the facts and 

the law, including any meritorious suppression issues, and then offer his 

informed opinion as to what plea should be entered. McMann v. Richardson, 

397 U.S. at 769-770. Because Appellant has shown that he would not have 

pleaded guilty had he known that he had a meritorious basis to exclude the 
36

marijuana which formed the basis of his arrest and plea, he has demonstrated 

that his guilty plea was unknowingly and involuntarily entered. Ex Parte 

Wolfe, 296 S.W.3d 160 (Tex. App.- Houston [14th Dist.] 2009, pet. ref’d); 

Ex parte Moussazadeh, 361 S.W.3d 684, 692 (Tex. Crim. App 2012) (guilty 

plea was involuntarily entered where defendant would not have pleaded 

guilty but for counsel’s incorrect advice concerning parole eligibility). Rios 

v. State, 377 S.W.3d at 137 (guilty plea was involuntary where defendant 

would not have pleaded guilty but for counsel’s failure to discover that 

technician who maintained breath-testing machine had falsified calibration 

records). 

F. Conclusion

This case presents, in compelling terms, a breakdown in the 

adversarial system of justice. The sole legal issue in Appellant’s drug case 

was never identified, researched or litigated even though the controlling 

statutes and case law make clear that the ultimate detention and search of 

Appellant’s vehicle was constitutionally flawed. Trial counsel failed to 

identify the issue, research the relevant case law, present it to the prosecutor 

or advise Appellant prior to encouraging him to plead guilty. Because 

Appellant relied on the inadequate or misleading advise of trial counsel, his 

plea was involuntary, in that it was not knowingly and voluntarily entered 
37

because it does not “represent a voluntary and intelligent choice among the 

alternative courses of action open to the defendant.” Hill v. Lockhart, 474 

U.S. 52, 56-57 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31 

(1970). For all these reasons, Appellant asks this Court to sustain these 

claims and reverse the trial courts ruling denying habeas corpus relief.

CONCLUSION AND PRAYER

Appellant prays that this Honorable Court reverse the trial court’s 

order denying habeas corpus relief and remand for a new trial. 

RESPECTFULLY SUBMITTED,

/s/ Carmen Roe

_________________________________

CARMEN ROE

TBN: 24048772

440 LOUISIANA, SUITE 900

HOUSTON, TEXAS 77002

713.236.7755

713.236.7756 FAX

ATTORNEY FOR APPELLANT
38

CERTIFICATE OF SERVICE

Pursuant to TEX.R.APP.P. 9.5(d), this appeal was served upon 

opposing counsel by electronic-filing system of same on September 18, 

2015.

/s/ Carmen Roe

_______________________________

CARMEN ROE

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no 

smaller than 14-point for text and 12-point for footnotes. This document also 

complies with the word-count limitations of TEX. R. APP. P. 9.4(i), if 

applicable, because it contains 6,898 words, excluding any parts exempted 

by TEX. R. APP. P. 9.4(i)(1).

/s/ Carmen Roe

______________________________

CARMEN ROE