## \oj(J}bi^ HfcUfcl¥CU'/II "OFCRIMINAL/ 

### MAR23201! INMATE UNSHORN DECLARATION 

# Hyname isWillieHenry, IIIandIamincarceratedintheWyMWfifflPTM'k'®"* 810 Fm2821 Huntsville, Texas, 77349. My Tdc# is 1550834. I amover the age of 18years old and I amcompetent to give this statement. I have personal knowledge that, every statement contained herein (affidavit, motions1 are

Themotions filed arenot for delay nor towaste resources. But are 

### serious and meritorious grounds for which Ihave noother remedy. OnAug ust 27,2007, Ientered a no contest plea to aggravated assault. However, 

### Iwas never notified about the element of serious bodily injury. Ientered the plea agrremant under misleading advice of trial counsel. 

### I.Counsel toldme that aggravted assault was a lesser included offense to the grand jury's charge ofsex assault. {F.C- 22.011(E)) 

### 2.Counsel toldme that Icouldnot have a jury trial on the original off ense of sex assault because I ran out ofmoney. 

### 3.Counsel toldme that Iwas not allowed tohaveanyWitnesses inmy favor4. I was never made aware of the re-indictment which the docket sheet shows as being done on September, 2006. 

### 5.Counsel failed toiinformma that the case was set for trial on 8-27-2007. 

### Ionly found out the weekendbefore that Monday through aphone call from iay bond company. 

### 6.Counsel failed to doany investigation ofwitnesses orvictim. 

### 7. Imade it known to the trial court that Iwanteda jury trial but was coerced intoapleabecause Iranout ofmoney topay lawyer. 

### 8-1 aminnocent of the offenseaspleaded toandalso, grand juryoffense as alleged in indictments- Iwas never informedoxmyright to be tried 

### onoffenses onlyallegedbyagrand juryscreening of charges. 9.Had Ibeen informed of all of these facts and rights, Ineverwould have entered the plea. 

### IWillie Henry, III, do declare under the penaltyof perjury that every statement is true and correct and that I have reviewed each statement 

### contained in the motion and affidavit. Iask this court to accept this unsworn inmate declaration in place of a notorized affidavit.

• Piu 8fc) t5—

Date 

### OENIEI true and correct. And that the documents included are true and corr0j&Tje. l.DP\-/<- 

### copies. gy.

# 13, O&'N

NO. 

### Willie Henrv, III § Petitioner x Tn The Court of 

### v. $ Criminal Appeals .state of Texas * § MOTION FOR LEAVE TO FILE MOTION TO RESET TIME TO FILE MOTION FOR NEW TRIAL

I, Wiilie Henrv, tti, comes filinq Pro Se, this motion for leave to file the attached motion to file the motion to reset time to file Motion For New Trial. I. It will be shown that t was without counsel durinn the time to file a motion for new trial after an adjudication of guilt from the 252nd District Court of ."fefferson Countv, Texas. That this was a critical staae. (Trial Court No. 98575) II. An Appellate Court has the power to apply Rule 2. of the Rules of APPProc. anr! order a different procedure. III. 

### "Good Cause" exisists when a defendant was without counsel during the period to file a motion for new trial. Ann" that T was without counsel at that time to file motion. TV. Because this case was qoverened under Rule of App. Pror.. art 25.2(Plea barqained case), theissues of involuntary plea and ineffective assistance of counsel at trial could only be raised on a motion for new trial or on habeas 

### comus. Cooper v. St., 45 sw3d 77r Woods v. St.. 117 sw3d 300, 301"Voluntariarilness of plea may be raised by a motion for new trial anH habeas cor 

### pus but not on appeal." Donovan v. St., 68 sw3d 633: Carlton v. St., 91 sw3d 363 V. Mr. Kevin Laine- was my attornev during the revocation proceedinos but T could not afford to hire him to remain thronnh the appeal and motion for new trial period. Therefore, he mailed the notice of pro se anmeal for me 

### to sion and send to the clerk. Idid. The court appointed Mr. Doug Barlow for

### appeal, but he never contacted me nor answered any attempted phone calls dur 

### ing the period to file amotion for new trial. As amatter of fact, I've ne ver heard from him at all.Mv Mom, Sister, Niece and wife put toqether to pav a retainer to Mr. Huah O'Fiel, but he never contacted me either. He did not visit with me nor did he answer anv of my letters. t have no idea what he 

### looks or sounds like. The only response Iever opt from himwas after he had 

### already filed the appeal. The qrounrls which he filed were not appealable. The 9th Court of appeals did not ahve the -jurisdiction to consider the IAC on an appeal. Thev affirmed the conviction when they should have dismissed th appeal. Under CC.P.art. ?6.04(j)(1,2), Mr. Barlow, who was appointed bv the court on January 26,2009 and remained until he was relieved bv the court on February 17, 2009, failed to perform his duties. He had a duty to meet with me in some manner, no later than the first workino dav after he was appointed His failure preiudiced anv chance to have heard in anv meaninqful proceedino, the issues of involuntarv plea and ineffective of counsel. (CC.P. art. 1.051) See: Trevino v. Thaler, 133 S.ct. 1911: Caldwell v. Thaler, 770 F.Suop 2d 849 VI. Because of the IAC durinq the time to file a motion for new trial af ter adjudication of quilt and the IAC of Mr. c'Fiel, on the appeal(Not contactinq Client, and filinn non appealable issues), mv constitutional riqht to 

### have the effective assistance of counsel durina first appeal has been violated "As a matter of state statutory lawTand federal Const- Tawl a criminal defendant is entitled to counsel, not iust at trial, but also durino the first appeal as of riqht." Cooks v. St., 240 sw3d 906. Furthermore,"In order to obtain meaninqful appeal, sometimes a defendant must prepare, file, nresent, 

### and obtain a'hearing on amotion for new trial: it is unreasonable to re 

### quire him to do this without assistance." Massinqill v. St., 8sw3d733,736-7 I tried to present the issues on habeas however, I had no clue as to what I was doino. All I could do was state what haooened, and the writ was denied. 73,015-01 T have tried numerous other filinos but to no avail in qettinq them heard by the court. T've been extremely diliqent in the matter. PRAYER I, Willie Henry, ITT, prays that this Honorable Court will qrant this mo -tion for leave to file and aqrees to hear the motion and consider brief.

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### ftu-3 Respectfully Submitted,



### Pro SE <\

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TDC# 1550834 Wynne Unit 810 FM 2821 Huntsville, TX. 77349