Appeals court agrees attorney failed to properly represent client, awards new trial

Steve Korris Feb. 18, 2009, 7:00pm

Justice Hollis Horton

Attorney Donald Moye didn't convince an Orange County judge that he did a lousy job defending a client, but he convinced the Ninth District appeals court.

Ninth District judges awarded a new trial to John Keith Holmes on Feb. 4, ruling that Moye provided him with ineffective assistance at a trial for misdemeanor assault.

Holmes faced a year in jail and a $4,000 fine.

Moye admitted after trial that he failed to investigate the case and prepare for trial, but County Court Judge Troy Johnson denied Holmes a new trial.

The Ninth District reversed Johnson. Justice Hollis Horton wrote, "We agree with counsel that his performance was deficient."

Moye didn't represent Holmes on appeal. Michelle Ferguson did.

Holmes and his wife clashed early one morning, and she dialed 911.

Bridge City policeman Scott Barnes responded. He turned on a camera in his patrol car, got out and talked to the wife.

He saw a mark on her face, an abrasion on her leg, and a bruise on her arm.

The officer talked to Holmes. The video didn't catch the scene but the audio caught every word.

Barnes arrested Holmes and described him as "intoxicated, uncooperative and arrogant."

As trial began, Moye told Judge Johnson he would call the wife as a witness.

County prosecutor Mike Marion told Johnson the wife retained counsel and would invoke her Fifth Amendment right against self incrimination.

Moye said, "Okay, I will withdraw that."

After the lawyers picked a jury, Marion offered a plea bargain with a sentence of 120 days. Holmes turned it down.

At trial, Marion played the tape for jurors. Holmes, who didn't know it existed, began to wish he had accepted 120 days.

Jurors convicted him and Johnson sentenced him.

Moye moved for a new trial. At a hearing he tried to take the blame, telling Johnson he didn't review the tape before jury selection.

He said, "I'm reasonably sure that he would have taken the offer if I had conducted my discovery properly and laid it out to him the way it turned out in the actual trial."

He said, "That was very devastating, rambling on by an obviously intoxicated individual."

He said, "I expected the case to either not go to trial or that the complaining witness would testify."
He admitted his representation of Holmes fell below expected standards.

Johnson stuck with the guilty verdict, but the Ninth District overturned it.

Horton wrote, "Holmes asserts he was prejudiced because he was unable to make an informed decision regarding plea offers and because counsel failed to review the state's evidence, develop a trial strategy, and prepare for trial. We agree."

Chief Justice Steve McKeithen and Justice Charles Kreger agreed.

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