Henry, Willie Iii ( 2015 )

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"OFCRIMINAL/
MAR 23 201!
INMATE UNSHORN DECLARATION
Hy name is Willie Henry, III and Iam incarcerated in the WyMWfifflP™'k'®"*
810 Fm 2821 Huntsville, Texas, 77349. My Tdc# is 1550834. I am over the age
of 18 years old and I am competent to give this statement. I have personal
knowledge that, every statement contained herein (affidavit, motions1 are
OENIEI
true and correct. And that the documents included are true and corr0j&Tje. l.DP\ -/<-
copies. gy.
The motions filed are not for delay nor to waste resources. But are
serious and meritorious grounds for which I have no other remedy. On Aug
ust 27,2007, I entered a no contest plea to aggravated assault. However,
I was never notified about the element of serious bodily injury. I entered
the plea agrremant under misleading advice of trial counsel.
I.Counsel told me that aggravted assault was a lesser included offense to
the grand jury's charge of sex assault. {F.C- 22.011(E))
2.Counsel told me that I could not have a jury trial on the original off
ense of sex assault because I ran out of money.
3.Counsel told me that I was not allowed to have any Witnesses in my favor-
4. I was never made aware of the re-indictment which the docket sheet shows
as being done on September, 2006.
5.Counsel failed toiinform ma that the case was set for trial on 8-27-2007.
I only found out the weekend before that Monday through a phone call from
iay bond company.
6.Counsel failed to do any investigation of witnesses or victim.
7. I made it known to the trial court that I wanted a jury trial but was
coerced into a plea because I ran out of money to pay lawyer.
8-1 am innocent of the offense as pleaded to and also, grand jury offense
as alleged in indictments- I was never informed ox my right to be tried
on offenses only alleged by a grand jury screening of charges.
9.Had I been informed of all of these facts and rights, I never would have
entered the plea.
I Willie Henry, III, do declare under the penalty of perjury that
every statement is true and correct and that I have reviewed each statement
contained in the motion and affidavit. I ask this court to accept this
unsworn inmate declaration in place of a notorized affidavit.
• Piu 8fc) t5—
Date
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 APP-
Proc. 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 "Volun-
tariarilness 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. I did. 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 a motion for new trial. As a matter 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 I ever opt from him was 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 con-
tactinq 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 a motion for new trial: it is unreasonable to re
quire him to do this without assistance." Massinqill v. St., 8 sw3d 733,736-7
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 qet-
tinq 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.
(V\t'^
Respectfully Submitted,
Pro SE <\
Date
TDC# 1550834
Wynne Unit
810 FM 2821
Huntsville, TX. 77349
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