No. 01-14-00659-CR

In the

Court of Appeals

for the 

First District of Texas

at Houston

No. 1424502

In the 262nd District Court

Harris County, Texas

JASON CLIFFORD CONWAY

Appellant

V.

THE STATE OF TEXAS

Appellee

APPELLANT’S AMENDED BRIEF

MAITE SAMPLE

Attorney for Jason Conway

State Bar No.: 24052072

405 Main St. Ste. 950

Houston, TX 77002

(713) 909-9685

Fax: (713) 229-9996

maite.m.sample@gmail.com

ORAL ARGUMENT REQUESTED

ACCEPTED

01-14-00659

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/11/2015 9:04:17 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/12/2015 8:00:00 AM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT .......................................i

IDENTIFICATION OF THE PARTIES ...........................................................ii

INDEX OF AUTHORITIES .............................................................................iii-iv

STATEMENT OF THE CASE .........................................................................1

STATEMENT OF THE FACTS .......................................................................2

SUMMARY OF THE ARGUMENT ................................................................5

APPELLANT’S FIRST POINT OF ERROR -

The trial court abused its discretion in denying Appellant’s motion for 

new trial and request for hearing on the motion for new trial............................6

APPELLANT’S SECOND POINT OF ERROR –

Appellant’s plea was involuntary due to ineffective assistance of 

counsel. .....................................................................................14

PRAYER ...........................................................................................................21

CERTIFICATE OF SERVICE ..........................................................................21

CERTIFICATE OF COMPLIANCE ................................................................22

APPENDIX: EXHIBIT A – Trial Counsel’s Affidavit
i

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, oral 

argument is requested because this case presents an important question about 

coercive plea bargaining tactics used by trial counsel as well as the 

voluntariness of Appellant’s plea.
ii

IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the 

names of all interested parties is provided below.

Counsel for the State:

Devon Anderson - District Attorney of Harris County

Alan Curry - Assistant District Attorney on appeal

Chris Handley - Assistant District Attorney at trial

Harris County District Attorney’s Office

1201 Franklin St. Ste. 600

Houston, TX 77002

713-755-5800

Appellant or criminal defendant:

Jason Clifford Conway

Counsel for Appellant:

Kathryn Robinson Wallace- Counsel at plea

12401 S. Post Oak Rd. 

Suite 226

Houston, TX 77045-2020

(713)551-8626

Maite Sample - Counsel on appeal

405 Main St. Ste. 950

Houston, TX 77002

713-909-9685

Trial Judge:

Hon. Denise Bradley

262nd District Court, Harris County, Texas
iii

INDEX OF AUTHORITIES

CASES

Bruno v. State, 916 S.W.2d 4, 8 (Tex. App.—Houston [1st Dist.] 1995, pet. 

ref’d)

Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014)

Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 1999)(citing 

Strickland v. Washington, 466 U.S. 668, 694 (1984))

Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999)(quoting 

Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997))

Ex parte Reedy, 282 S.W.3d 492, 500-01 (Tex. Crim. App. 2009)

Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) 

Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996 

pet. ref’d)

Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App. 2003)(citing 

Strickland, 466 U.S. at 690)

Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010)

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)(quoting 

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001))

Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).

Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985)
iv

Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002)

McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981)

Mendoza v. State, 935 S.W.2d 501, 503 (Tex. App.—Waco 1996, no pet.)

Messer v. State, 757 S.W.2d 820, 824 (Tex.App.—Houston [1st Dist.] 1988, 

pet. ref’d.)

Munoz v. State, 840 S.W.2d 69, 74 (Tex. App. – Corpus Christi 1992, pet. 

ref’d)

Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).

Torres v. State, 4 S.W 3d 295 (Tex. App.—Houston [1st Dist.] 1999, no pet.)

Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003)

RULES

TEX. R. APP. P. 9.4(g)

TEX. R. APP. P. 21.4

TEX. R. APP. P. 21.6

TEX. R. APP. P. 21.7 

TEX. R. APP. P. 38.2(a)(1)(A)

TEX. R. APP. P. 39.1

STATUTES

TEX. CODE CRIM. PROC. ANN. art. 26.13(b)
1

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged by indictment with the second-degree felony 

offense of assault against a family member by impeding breathing. (CR I 7). 

He originally entered a plea of not guilty and requested a jury trial with 

punishment to be assessed by the jury in the event that he was found guilty. 

(CR I 128). Prior to the beginning of voir dire the state abandoned the 

language in the indictment alleging impeding breath and offered to abandon 

the punishment enhancement paragraphs in exchange for Appellant’s plea of 

guilty to a Pre-Sentence Investigation hearing (PSIH). (CR I 52). 

Accordingly, Appellant changed his plea to guilty and pled without an 

agreed recommendation to the court for a PSIH for the third degree felony 

offense of assault family member second offender. (CR I 144). At the 

conclusion of the PSIH, the court sentenced Appellant to ten (10) years 

confinement in the Institutional Division of the Texas Department of 

Criminal Justice (TDCJ-ID). (CR I 144). The Trial Court’s Certification of 

Defendant’s Right of Appeal dated April 30, 2014 indicates that Appellant 

has the right to appeal. (CR I 127). Appellant’s notice of appeal was filed 

with the 262nd District Court on July 27, 2014. (CR I 147).

 
2

STATEMENT OF THE FACTS 

Appellant was accused of choking Alicia Barrens on or about 

November 16, 2013. (CR I 7). Complainant and Appellant both admit that 

they had a heated argument that evening about their relationship. (RR III 

17,18) (RR III 30). But while Appellant alleges that he did nothing more 

than push Ms. Barrens after she called him a “Nigga Fuck Up” and spit in 

his face; Ms. Barrens alleges that Appellant choked her until she lost 

consciousness. Id. She visited an urgent care clinic the next day and was 

examined by a doctor who found that Ms. Barrens had no change in voice, 

no sore throat, no difficulty swallowing, no neck pain, no muscle aches, no 

depression, no suspicious lesions, as well as a normal neck inspection, 

supple, with good range of motion, no bruising or swelling on the anterior 

neck. (CR I 113, 114). A second visit to the same clinic by complainant on

November 21, 2013 resulted in nearly identical findings. (CR I 115, 116).

After at least six resets Appellant’s case was set for trial in the 262nd

District Court on April 30, 2014. (CR I 16, 19, 25, 26, 27, 120). By trial day 

Appellant had been subjected to months of plea bargaining and 

admonishments from the trial court as well as trial counsel urging him to 

plead guilty. (CR III 34,35). On trial day, trial counsel failed to object when 

the state abandoned language in the indictment thereby changing the offense 
3

he was being tried for. (RR II); (CR III 16). Trial counsel also withheld 

important witness information from Appellant – namely about reluctance on 

the part of the doctor who examined the complainant to testify for the State. 

(CR III 16, 17). She also gave Appellant incorrect advice about the 

procedure in a PSIH. Id. Furthermore, on trial day trial counsel advised 

Appellant that he would surely die in prison and never see his family again if 

he was convicted at trial because life expectancies in prison are low and his 

parents would be dead in 25 years. (CR III 28). Then, with the jury panel in 

the hallway, trial counsel brought him a note signed by his parents urging

him to take the plea. Id. It was the totality of all of these circumstances that 

overcame his will to fight his case. At that point in the proceedings

Appellant felt he had no other choice, so he pled guilty to assault family 

member second offender and had his case reset for a PSIH. (RR II 9) (CR I 

16, 17, 27, 28) (CR III 34, 35). 

On July 24, 2014 the trial court held the PSIH. (RR III). Contrary to 

trial counsel’s advice before his guilty plea, no cross examination of the 

complainant nor any additional witness testimony or mitigating evidence 

was presented. Id. At the conclusion of his PSIH the trial court sentenced 

Appellant to the maximum sentence of 10 years in TDCJ-ID. (RR III 10).
4

Appellant filed his notice of appeal three days later on July 27, 2014 

(CR II 14). On Thursday, August 14, 2014 the undersigned counsel was 

appointed to represent Appellant on his appeal. Id. Appellant filed and 

presented his motion for new trial with the trial court on September 29, 2014 

(CR II 3). On October 23, 2014 this court granted Appellant’s Emergency 

Motion to Abate Appeal and Remand for Hearing on Motion for New Trial 

and Permission to File Out of Time Motion for New Trial (CR II 11, 12). 

The sole ground in the motion for new trial was that Appellant’s plea 

was involuntary due to ineffective assistance of counsel. Id. In support of 

his motion, Appellant attached an unsworn declaration detailing the 

interactions with trial counsel that led to his involuntary plea. (CR III 16, 

17). Trial counsel filed her own affidavit in response to Appellant’s motion 

and unsworn statement. (Supplemental CR: 9-10). The case was set for a 

live evidentiary hearing on December 16, 2014. (CR II 25). However, on 

that day TDCJ-ID did not bring Appellant to court so the hearing was 

rescheduled for December 23, 2014. (CR III 42). But on December 19, 

2014 the trial court told Appellant and the undersigned counsel that she no 

longer wished to have a live evidentiary hearing, instead she would make her 

ruling based on her recollection of the case, as well as, affidavits and 

statements from the parties. (RR V 6). The undersigned counsel objected to 
5

this sudden change, but the trial court overruled the objection. (RR V 7). 

Appellant and his mother prepared additional unsworn statements in 

response to trial counsel’s affidavit. (CR III 27-31). Additionally, 

Appellant wrote a letter to the trial court that was hand delivered to the court 

on January 5, 2015. (CR III 34, 35). That same day, the trial court denied 

Appellant’s request for a hearing and denied the motion for new trial over 

objection by Appellant’s appellate counsel. (CR III 15).

SUMMARY OF THE ARGUMENT

Appellant’s plea of guilty was made involuntarily as the result of 

coercion and incorrect advice by Appellant’s trial counsel as well as 

repeated coercive admonishments by the trial court. Furthermore, the trial 

court abused its discretion in denying Appellant’s motion for new trial and 

request for live evidentiary hearing. In his motion for new trial, Appellant 

alleged that his plea was rendered involuntary due to ineffective assistance 

of trial counsel. He attached an unsworn declaration explaining that trial 

counsel withheld information about the availability of an important trial 

witness. Additionally, trial counsel admonished Appellant about dying in 

prison and never seeing his family again if he did not take the State’s plea 

bargain offer. Appellant explained in his unsworn statements that the 

totality of the circumstances leading up to his plea were such that his will to 
6

fight was overcome. Although he desired to have a jury trial, he felt forced 

to plead guilty. Appellant insists that had his trial counsel been honest with 

him about the availability of the doctor who examined the complainant, had 

she not given him incorrect information about how a PSIH would proceed,

and had trial counsel and the trial court not coerced him through their 

repeated admonishments, he would never have pled guilty, but instead 

would have insisted on going forward with his trial. 

APPELLANT’S FIRST POINT OF ERROR

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING 

APPELLANT’S MOTION FOR NEW TRIAL AND REQUEST FOR 

HEARING ON THE MOTION FOR NEW TRIAL.

STANDARD OF REVIEW FOR DENIAL OF MOTION FOR NEW 

TRIAL AND EVIDENTIARY HEARING

Appellate courts review a trial court’s denial of a motion for new trial 

under an abuse of discretion standard by determining whether the trial 

court’s decision was arbitrary or unreasonable. Colyer v. State, 428 S.W.3d 

117, 122 (Tex. Crim. App. 2014). A trial court abuses its discretion in 

denying a motion for new trial when the record could not support the view 

that the trial court’s ruling was reasonable. Holden v. State, 201 S.W.3d 

761, 763 (Tex. Crim. App. 2006). 

Furthermore, when reviewing a trial court’s denial of a hearing on a 

motion for new trial, an appellate court applies an abuse of discretion 
7

standard of review. Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. 

App. 2010); Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). 

The reviewing court should reverse only when the trial judge’s decision was 

so clearly wrong as to lie outside the zone of reasonable disagreement. Id. 

Review, however, is limited to the trial judge’s determination of whether the 

defendant has raised grounds that are both undeterminable from the record 

and reasonable, meaning they could entitle the defendant to relief. This is 

because the trial judge’s discretion extends only to deciding whether these 

two requirements are satisfied. If the trial judge finds that the defendant has 

met the criteria, he has no discretion to withhold a hearing. In fact, under 

such circumstances the trial judge abuses his discretion in failing to hold a 

hearing. Gonzales, 304 S.W.3d at 842, citing Smith v. State, 286 S.W.3d 

333, 339-40 (Tex. Crim. App. 2009). 

MOTIONS FOR NEW TRIAL

Timely Filed

Texas Rule of Appellate Procedure 21.4 provides that a motion for 

new trial must be filed within thirty days of the imposition of sentence. 

TEX. R. APP. P. 21.4. 

Appellant filed his notice of appeal on July 27, 2014. (CR II 14). On 

Thursday, August 14, 2014 the undersigned counsel was appointed to 
8

represent Appellant on his appeal. Id. Appellant filed his Motion for New 

Trial on September 29, 2014 (CR II 3). On October 23, 2014 this court 

granted Appellant’s Emergency Motion to Abate Appeal and Remand for 

Hearing on Motion for New Trial and Permission to File Out of Time 

Motion for New Trial (CR II 11, 12). Therefore, his motion for new trial 

was timely filed.

Motion Timely Presented

Texas Rule of Appellate Procedure 21.6 states that “Defendant must 

present the motion for new trial to the trial court within 10 days of filing it, 

unless the trial court in its discretion permits it to be presented and heard 

within 75 days from the date when the court imposes or suspends sentence in

open court.” TEX. R. APP. P. 21.6. Appellant timely presented his motion 

through his attorney of record on September 29, 2014. 

Live hearing versus affidavit

The right to a hearing on a motion for new trial is not absolute. Reyes, 

849 S.W.2d at 815; Bruno v. State, 916 S.W.2d 4, 8 (Tex. App.—Houston 

[1st Dist.] 1995, pet. ref’d). The trial court is authorized to receive evidence 

“by affidavit or otherwise.” TEX. R. APP. P. 21.7. But a defendant has a 

right to a hearing when the motion raises matters that are reasonable and

cannot be determined from the record. Wallace v. State, 106 S.W.3d 103 
9

(Tex. Crim. App. 2003). This is to ensure a meaningful appeal by creating a 

record that can be reviewed. Mendoza v. State, 935 S.W.2d 501, 503 (Tex. 

App.—Waco 1996, no pet.)

If a defendant’s motion for new trial and supporting affidavit are 

sufficient, a hearing on the motion is mandatory and a trial court that denies 

an accused a hearing abdicates its fact-finding function and denies the 

accused a meaningful appellate review. Torres v. State, 4 S.W 3d 295 (Tex. 

App.—Houston [1st Dist.] 1999, no pet.); Reyes, 849 S.W.2d at 816, citing 

McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985). Additionally, a 

defendant need not establish a prima facie case in order to get a hearing. 

Wallace, 106 S.W.3d at 107-09. The motion and affidavits “must merely 

reflect that reasonable grounds exist for holding that such relief could be 

granted.” Id. This is because “the purpose of the hearing is for a defendant 

to develop the issues raised in the motion for new trial.” Martinez v. State, 

74 S.W.3d 19, 21 (Tex. Crim. App. 2002). 

ANALYSIS 

In his motion for new trial, unsworn statements, and handwritten letter 

to the trial court, Appellant alleged that his plea was involuntary due to 

ineffective assistance of counsel. (CR II 8-17, 27-29, 34,35). He explained 
10

that on the day of trial, trial counsel engaged in the following deficient 

conduct: 

1. Failing to object to the changes in the indictment; 

2. Withholding knowledge that the doctor who examined the 

complaining witness was reluctant to testify for the State

3. Telling him that life expectancy in prison was such that he would 

die before serving the minimum sentence of 25 years if found guilty at trial; 

4. Telling him, in front of his parents, that his parents would be dead 

in 25 years, so if he did not plead guilty he would never see them alive 

outside of prison; 

5. Passing Appellant a note in the holdover from his parents wherein 

his parents urged him to take the plea deal after the discussion about him 

dying in prison and his parents dying before he served 25 years in TDCJ-ID; 

and

6. Incorrectly advising him that at the PSIH he would have the 

opportunity to cross-examine the complaining witness and present 

mitigation evidence regarding the underlying offense. Id.

Appellant maintains that, but for each of the aforementioned instances 

of deficient conduct as well as others he wished to explore in a live 

evidentiary hearing, he would not have pled guilty and would have insisted 
11

on going to trial. Id. Furthermore, none of the aforementioned issues are 

determinable from the record and each, if true, would entitle Appellant to 

relief, therefore he was entitled by law to a live evidentiary hearing on his 

motion for new trial. Wallace, 106 S.W.3d 103.

Trial counsel filed an affidavit responding to the grounds on 

Appellant’s motion for new trial. (Supplemental CR: 9-10). In her affidavit, 

trial counsel makes some factual assertions that are controverted by the 

factual assertions in Appellant’s unsworn declaration, but she does not 

address all of the allegations. Id. Trial counsel offers no explanation in her 

affidavit about her failure to object to the changes in the indictment. Id. She 

denies having prior knowledge that the doctor who treated the complainant 

was unavailable, or telling Appellant any such thing. Id. Trial counsel 

never addresses any of the claims that she coerced Appellant to plead guilty 

by telling him that he and his family would be dead in 25 years. Id. 

Furthermore, she denies passing him a note from his parents wherein they 

urged him to accept the plea offer. Finally, she says that the discussion 

about what kind of evidence and cross-examination could be presented at the 

PSIH did not take place until after the plea. Id. 

At one point in the motion for new trial proceedings the trial court did 

grant Appellant’s request for a live evidentiary hearing. (CR III 25). The 
12

trial court must have believed that the requirements for a live evidentiary 

hearing were satisfied otherwise it would not have bench warranted 

Appellant from TDCJ-ID and set the case for a live hearing. (CR III 42). 

But on December 16, 2014 Appellant was not brought to court according to 

the bench warrant issued on November 25, 2014. Id. Three days later, when 

Appellant was finally delivered to court, the trial court arbitrarily decided to 

deny Appellant his live evidentiary hearing. (RR V 6). Nothing about the 

motion for new trial and accompanying statement changed in those days. 

Had the trial court conducted a live evidentiary hearing, Appellant 

would have been able to cross-examine trial counsel on matters controverted 

in the affidavit and the unsworn statements submitted to the court. By 

denying his motion for new trial and his request for a live evidentiary 

hearing, the trial court denied Appellant a meaningful appellate review and 

the opportunity to create a full record for his appeal in the event the trial 

court did go on to deny the motion for new trial. In so doing, the trial court 

abused its discretion. Gonzales, 304 S.W.3d at 842; Torres, 4 S.W 3d 295; 

Reyes, 849 S.W.2d at 816. 

Furthermore, it was an abuse of discretion to deny Appellant’s motion 

for new trial altogether. The trial court stated that it had an independent 

recollection of the plea and the parties therefore it could make credibility 
13

determinations and make a final decision on the motion for new trial based 

on affidavits alone. (CR V 6). In support of this assertion, the trial court 

stated: “And actually, unlike most cases, I had the opportunity – we had a 

full hearing regarding issues of guilt/ innocence. I believe Mr. Conway 

testified at that hearing. So, I’m very familiar with the attorney that was 

representing the Defendant as well as the proceedings we are discussing this 

morning.” Id. The significance of the trial court’s statement is that there is

no evidence of such a hearing anywhere in the record. Appellant did not 

testify at any such hearing because one never took place, nor did he testify at 

his PSIH. (RR III). Therefore, the trial court clearly did not have an 

independent recollection of the plea or the parties. Clearly, the trial court 

made its decision without any actual memory or knowledge of Appellant’s 

case. This type of reckless decision-making is exactly the type of arbitrary 

and unreasonable action that constitutes an abuse of discretion. Holden, 201 

S.W.3d at 763.

CONCLUSION

Accordingly, Appellant respectfully asks that this court rule that the 

trial court’s denial of his motion for new trial and request for a hearing was 
14

an abuse of discretion and reverse and remand to the trial court for a new 

trial.

APPELLANT’S SECOND POINT OF ERROR

APPELLANT’S PLEA WAS INVOLUNTARY DUE TO THE 

INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant’s plea was involuntary because of coercion, confusion, and 

unconstitutionally ineffective assistance of counsel. But for trial counsel’s 

erroneous advice and pressure from the trial court, Appellant would not have 

pled guilty to the felony charge of assault family member second offender, 

but would have insisted on going forward with his jury trial. 

STANDARD OF REVIEW FOR INEFFECTIVE ASSISTANCE 

OF COUNSEL AND INVOLUNTARY PLEA

A guilty plea must be freely, knowingly, and voluntarily entered. 

TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). The 

voluntariness of a plea is determined by the totality of the circumstances. 

Munoz v. State, 840 S.W.2d 69, 74 (Tex. App. – Corpus Christi 1992, pet. 

ref’d). An Appellant has a Sixth Amendment right to the effective 

assistance of counsel in guilty-plea proceedings. Ex parte Reedy, 282 

S.W.3d 492, 500-01 (Tex. Crim. App. 2009). To obtain relief for ineffective 

assistance of counsel under Strickland v. Washington, Appellant must show 

that his counsel’s performance was unconstitutionally deficient and “that 
15

there is a ‘reasonable probability’ - one sufficient to undermine confidence 

in the result - that the outcome would have been different but for his 

counsel’s deficient performance.” Ex parte Chandler, 182 S.W.3d 350, 353 

(Tex. Crim. App. 1999)(citing Strickland v. Washington, 466 U.S. 668, 694 

(1984)). 

Specifically, when a person “challenges the validity of a plea entered 

upon the advice of counsel, contending that his counsel was ineffective, ‘the 

voluntariness of the plea depends on (1) whether counsel’s advice was 

within the range of competence demanded of attorneys in criminal cases and 

if not, (2) whether there is a reasonable probability that, but for counsel’s 

errors, he would not have pleaded guilty to the charged offense and would 

have insisted on going to trial.’” Ex parte Moody, 991 S.W.2d 856, 857-58 

(Tex. Crim. App. 1999)(quoting Ex parte Morrow, 952 S.W.2d 530, 536 

(Tex. Crim. App. 1997)); Reedy, 282 S.W.3d at 500. 

A criminal defense attorney “must have a firm command of the facts 

of the case” before he or she may render reasonably effective assistance of 

counsel. Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). 

Counsel has a duty to provide advice to his client about what plea to enter, 

and that advice should be informed by an adequate investigation of the facts 

of the case. Reedy, 282 S.W.3d at 500. When counsel’s representation falls 
16

below this standard, it renders any resulting plea involuntary. Id. 

A claim of ineffective assistance of counsel must be determined upon 

the particular circumstance of each individual case. Jackson v. State, 766 

S.W.2d 504, 508 (Tex. Crim. App. 1985). Strategic or tactical 

considerations are not considered deficient unless “the challenged conduct 

was ‘so outrageous that no competent attorney would have engaged in it.’” 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)(quoting 

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). But when no 

reasonable trial strategy could justify trial counsel’s conduct, the counsel’s 

performance falls below an objective standard of reasonableness as a matter 

of law. Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App. 

2003)(citing Strickland, 466 U.S. at 690). 

ANALYSIS

Repeated Admonishments

In Appellant’s case, trial counsel and the trial court pressured and 

coerced him into making an involuntary plea. (CR II 8-17, 27-29, 34,35). In 

his unsworn declaration Appellant alleges that the repeated admonishments 

by the court led him to feel pressured and coerced into a guilty plea. Id. He 

recalls being brought out of the hold over on at least four occasions for 

admonishments by the trial court. Id. Appellant asserted his innocence and 
17

his desire to go to trial every time, but the repeated admonishments from the 

court eventually led him to feel that he had no choice but to plead guilty. Id. 

Had the court refrained from repeatedly admonishing Appellant, he would 

have felt free to go forward with his trial. Id. Appellant explains that his 

trial counsel also pressured him into pleading guilty. Id. He explains that 

trial counsel insisted he plead guilty despite his repeated assertions of 

innocence and his desire to go to trial. Id. Trial counsel herself admits that 

Appellant always expressed an unwavering desire to go to trial. 

(Supplemental CR: 9-10). She admits that she did not believe he would ever 

plead guilty. Id. Trial counsel’s observation lends credence to Appellant’s 

declaration that his last minute plea was made out of duress after being 

coerced by all of the admonishments he received. 

Erroneous PSIH Advice

If an attorney conveys erroneous information to his or her client, and 

the client enters a plea of guilty based on that misinformation, the plea is 

involuntary. See Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.-Houston 

[1st Dist.] 1996 pet. ref’d). Furthermore, it has been held that a conviction 

cannot be sustained when a plea of guilty has been motivated by significant 

misinformation conveyed by the defendant’s counsel or some other officer 

of the court. McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 
18

1981); Messer v. State, 757 S.W.2d 820, 824 (Tex.App.—Houston [1st Dist.] 

1988, pet. ref’d.). 

Trial counsel gave erroneous advice that led to Appellant’s

involuntary plea. She assured Appellant that he could present text messages 

from the complainant during his PSIH hearing to call her credibility into 

question. (CR II 8-17, 27-29, 34,35). Trial counsel also assured Appellant 

that he could cross-examine the complainant during the PSIH regarding 

issues determinative of guilt or innocence. Id. Both of these assurances 

were critical to Appellant entering a guilty plea, but neither of these things 

actually happened during Appellant’s PSIH, nor were they legally required 

to have happened. Id. These instances of misinformation alone are 

sufficient to satisfy the standards set out in Fimberg, McGuire, and Messer. 

Fimberg v. State, 922 S.W.2d at 207; McGuire, 617 S.W.2d at 261; Messer, 

757 S.W.2d at 824. 

Failing to Object

Appellant further alleges that when the State abandoned the impeding 

breath language in the indictment on trial day he was surprised and wanted 

additional time before trial to prepare a defense. (CR II 8-17, 27-29, 34,35).

Trial counsel failed to object to the abandonment of the impeding breath 

language against Appellant’s wishes. Id. Appellant insists that the change 
19

in the indictment surprised him and trial counsel’s failure to object

prejudiced him by denying him the opportunity to conduct a full 

investigation and develop his defense. Id. Trial counsel’s failure to object

was another factor in the totality of the circumstances that led him to feel as 

if he had no choice but to plead guilty. Id.

Withholding Important Case Information

Trial counsel withheld from Appellant that Dr. Rowe, the doctor who 

examined the complainant, would not be testifying for the State until after 

his plea. (CR II 8-17, 27-29, 34,35). According to Appellant, trial counsel

waited until after his plea to tell him that the doctor was no longer 

cooperative with the State. Id. Had Appellant known this information, he 

would never have pled guilty. Id. Instead, he would have requested a 

continuance to subpoena the doctor as a defense witness. Id. According to 

Appellant, trial counsel admitted that she withheld this information because 

she knew he would not have pled guilty if he had known that the doctor was 

not going to testify at trial. Id. This omission alone satisfies the standards

set out in Fimberg, McGuire, and Messer. Fimberg v. State, 922 S.W.2d at 

207; McGuire, 617 S.W.2d at 261; Messer, 757 S.W.2d at 824. There is no 

reasonable trial strategy that could justify trial counsel’s conduct, therefore 

counsel’s performance fell below an objective standard of reasonableness as 
20

a matter of law. Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App. 

2003)(citing Strickland, 466 U.S. at 690).

Life Expectancy Comments

Trial counsel told Appellant on his trial day that if he did not plead 

guilty, he would die in prison because life expectancies are low for inmates 

and his minimum punishment after trial would be 25 years TDCJ-ID. (CR 

III 28). She also told him, in front of his parents, that his parents would be 

dead by the time he served his sentence and that he would never see his 

parents outside of prison. (CR III 27-31). Finally, trial counsel brought a 

letter to Appellant from his parents urging him to plead guilty and not go to 

trial. (CR II 8-17, 27-31, 34, 35). This too led to Defendant feeling coerced 

and pressured to plead guilty. Id. There is no reasonable trial strategy that 

could justify trial counsel’s conduct therefore counsel’s performance fell 

below an objective standard of reasonableness as a matter of law. Freeman, 

125 S.W.3d at 512. 

CONCLUSION

The totality of trial counsel’s representation fell below the objective 

standard of reasonableness demanded of reasonably competent counsel. 

Strickland, 466 U.S. at 690. Such performance undermines confidence in 

the voluntariness of Appellant’s guilty plea. Ex parte Chandler, 182 S.W.3d 
21

at 353. Appellant would never have pled guilty had he not received such 

deficient representation from trial counsel therefore his plea was rendered 

involuntary by the ineffective assistance of counsel. 

PRAYER

Appellant prays that this court finds that the trial court abused its 

discretion in denying his motion for new trial and request for hearing, and

that his plea of guilty was involuntary due to ineffective assistance of 

counsel. Accordingly, Appellant asks that this court reverse and remand this 

cause to the trial court for a new trial. 

Respectfully submitted, 

/s/ Maite Sample

Attorney for Jason Conway

405 Main St. Ste. 950

Houston, TX 77002

SBN 24052072

(713) 909-9685, (713) 229-9996 (fax)

maite.m.sample@gmail.com

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been delivered 

to the attorney for the State at the following email address: 

mccrory_daniel@dao.hctx.net on this the 11th of November, 2015. 
22

CERTIFICATE OF COMPLIANCE

I certify that this document contains 5,297 words (counting all parts of the 

document). The body text is in 14 point font. 

/s/ Maite Sample

Attorney for Jason Conway

405 Main St. Ste. 950

Houston, TX 77002

SBN 24052072

(713) 909-9685, (713) 229-9996 (fax)

maite.m.sample@gmail.com