Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 5/15/2015 9:32:00 AM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00038-CR-40-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 5/14/2015 4:41:22 PM DEBBIE AUTREY CLERK
N OS . 06-15-00038-CR, 06-15-00039-CR, 06-15-00040-CR I N THE
S IXTH C OURT OF A PPEALS AT T EXARKANA , T EXAS _______________________ Robert Brice Daugherty, Appellant,
v.
The State of Texas,
Appellee. _______________________________ On Appeal from the th District Court, Lamar County, Texas Hon. Bill Harris, Presiding _______________________________ A PPELLANT ’ S B RIEF Don Biard
State Bar No. 24047755
Counsel for Appellant
ORAL ARGUMENT NOT REQUESTED *2 I DENTITY OF P ARTIES AND C OUNSEL Defendant Below
Appellant in this Court
Robert Brice Daugherty
Counsel for Appellant:
Don Biard (on appeal) State Bar No. 24047755
38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Email: dbiard@att.net
Dan Meehan (at trial) State Bar No. 13898700
202 West Madison
Clarksville, Texas 75426
Tel: (903)427-4547
Fax: (903)427-4549
Appellee in this Court
The State of Texas
Counsel for Appellee:
Gary Young
Lamar County Attorney’s Office
119 N. Main Street
Paris, Texas 75460
Tel: (903)737-2458
Fax: (903)737-2455
T ABLE OF C ONTENTS Identity of Parties and Counsel………………..........………………………………1
Table of Contents………………………..........…………………………………….2
Index of Authorities………………......………………………………………….3-4
Issues Presented…………………………………………………………….………5
Summary of the Argument........................................................................................5
Statement of the Case………………………………….…………………………...6
Procedural History………………………....……………………………………..7-8
Facts…………...…………..……………………………………………………9-10
Argument and Authorities……………………......…………………….……...11-15
Prayer……………………..……………………………………………………….16
Certificate of Service…………………......…………………………………..…...17
Certificate of Compliance With Rule 9.4(i)(3)........................................................18
I NDEX OF A UTHORITIES Caselaw
Ex parte Argent , 393 S.W.3d 781, 784 (Tex. Crim. App. 2013)...................13,14,15
Ex Parte Cruz , 739 S.W.2d 53, 58 (Tex. Crim. App. 1987)...................................11
Ex Parte Duffy , 607 S.W.2d 507, 517 (Tex. Crim. App. 1980)..............................11
Ex parte Lemke , 13 S.W.3d 791, 796 (Tex. Crim. App. 2000)...............................12
Ex Parte Menchaca , 854 S.W.2d 128, 132 (Tex. Crim. App. 1993)......................11
Ex parte Wilson , 724 S.W.2d 72, 73 (Tex. Crim. App. 1987)................................12
Hernandez v. State , 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)............................11
Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App. 1999)................................11
Missouri v. Frye , 132 S.Ct 1399, 1405 (2012)........................................................12
Murray v. Carrier , 477 U.S. 478, 496 (1986).........................................................12
Passmore v. State , 617 S.W.2d 682, 686 (Tex. Crim. App. 1981)..........................11
Piland v. State , 453 S.W.3d 473, 476 (Tex. App. – Texarkana, 2014)...................14
Ramirez v. State , 987 S.W.2d 938, 945 (Tex. App. — Austin 1999)......................11
Strickland v. Washington , 466 U.S. 668 (1984).................................................11,12
Constitutional Provisions Sixth Amendment, United States Constitution……………………………………11
Fourteenth Amendment, United States Constitution……………………………...11
Article I, §10, Texas Constitution…………………………………………...........11
Article I, §19, Texas Constitution………………………………………………...11
S UBJECT M ATTER OF I SSUES P RESENTED I. Whether Appellant was denied effective assistance of counsel at trial
because his trial counsel failed to communicate a plea offer to him?
S UMMARY OF THE A RGUMENT Prior to trial, the state made a plea bargain offer to Appellant’s trial counsel.
The state’s offer was that Appellant would plead guilty to certain offenses
with findings that the offenses occurred in a drug free zone and that Appellant
was a habitual offender. In exchange, Appellant would receive sentences of 40
years’ in prison with the sentences to run concurrently.
Appellant’s trial counsel never communicated this offer to Appellant.
However, Appellant would have accepted this offer had he been made aware
of it. Additionally, the state’s offer was left open for a specified time.
Further, the record shows a reasonable probability the trial court would have
approved the offer had Appellant been able to accept it. Accordingly,
Appellant was denied effective assistance of counsel at trial.
N OTE ON C OMBINED B RIEF The convictions below were filed in three separate cause numbers. Accordingly,
the appeal from each conviction has been assigned a separate case number in this
court. All cases are being briefed together because the issues, argument, and
authority presented herein are identical for each case.
S TATEMENT OF THE C ASE Nature of the Case: Plea of Guilty to two Charges of Possession with
Intent to Deliver a Controlled Substance and one Charge of Delivery of a Controlled Substance.
Trial Court: The Honorable Bill Harris ( by assignment ) th District Court, Lamar County, Texas
Trial Court Disposition: The trial court sentenced Appellant to life in
prison.
PROCEDURAL HISTORY On August 14, 2014, Appellant was indicted for the felony offenses of possession
with intent to deliver methamphetamine of more than four grams but less than 200
grams in a drug free zone and possession of diazepam in an amount less than 28
grams in a drug free zone. He was also indicted as a habitual offender. [1]
On September 11, 2014, Robert Brice Daugherty was indicted for the felony offense of possession with intent to deliver methamphetamine of more than four
grams but less than 200 grams in a drug free zone and possession of hydrocodone
in an amount less than 28 grams. He was also indicted as a habitual offender. [2]
In a separate indictment on September 11, 2014, Appellant was indicted for the felony offense of delivery of methamphetamine in a drug free zone, again as a
habitual offender. [3]
On February 11, 2015, the case proceeded to trial. The State elected to drop the possession charges and Appellant pled guilty to the remaining charge of
delivery of methamphetamine and two charges of possession with intent to deliver
methamphetamine. The state also dropped the drug free zone allegations with
regard to two of the remaining charges. [4]
*9 Appellant also pled true to the habitual offender allegations to all offenses.
Appellant elected to have trial court assess punishment. The trial court sentenced
Appellant to life imprisonment on each charge with the sentences to run
concurrently.
*10 F ACTS
The Plea Offers
Appellant was initially indicted for two offenses that occurred on June 3, 2014. [6] On August 8, 2014, the State offered a plea bargain of 50 years’
imprisonment if Appellant would plead guilty to those offenses and two additional
unindicted offenses with drug free zone and habitual offender findings. [7] On
August 11, 2014, Appellant’s trial counsel communicated this offer to Appellant
and he countered with an offer of 15 years’ imprisonment which the state rejected.
The same day, the State countered with an offer of 40 years. [8] This offer was left
open until August 29, 2014 – the date set for Appellant’s examining trial on the
offenses which occurred on June 3, 2014. [9]
On November 7, 2014, the trial court held a hearing to determine whether Appellant’s appointed trial counsel should be allowed to withdraw due to a conflict
of interest. [10] The trial court allowed Appellant’s counsel to withdraw and
appointed new trial counsel. [11]
At that hearing, the parties discussed the plea offers the state had made to Appellant’s trial counsel. The State reiterated that it had initially offered an offer
*11 of 50 years and had reduced that to 40 years. Appellant testified under oath that he
had never learned of that 40 year offer. [12]
Trial
Appellant eventually made an open plea of guilty to three of the indicted offenses and elected to have the trial court assess punishment. At the punishment
hearing, Appellant’s new trial counsel again raised the issue of whether or not
Appellant had been informed of the State’s 40 year plea offer.
Through stipulated testimony, Appellant testified that he had never been told of the State’s 40 year offer. Additionally, he testified that had he been informed of
that offer he would have accepted it. [13]
After hearing all of the evidence, the trial court sentenced Appellant to life imprisonment on all charges with the sentences set to run concurrently. [14]
*12 A RGUMENT AND A UTHORITIES Issue No. 1 Restated: Appellant was denied his constitutional right to effective
assistance of counsel at trial because his appointed trial counsel failed to
communicate a plea offer which Appellant would have accepted had he been
so informed.
Standard of Review Effective assistance of counsel is essential to a fair trial. An accused’s right to effective assistance of counsel is derived from four sources: the Sixth
Amendment and the “Due Process Clause” of the Fourteenth Amendment of the
United States Constitution, the “right to be heard” provision of Article I, §10 of the
Texas Constitution, and the “due course of law” provision of Article I, §19 of the
Texas Constitution. [15]
The effectiveness of counsel’s assistance is gauged by the totality of his representation. [16] To establish ineffectiveness, counsel’s representation must be
shown to have fallen below an objective standard of reasonableness. Further, it
must be shown that there is a reasonable probability that but for counsel’s errors or
*13 omissions, the result would have been different. A reasonable probability is one
which undermines confidence in the outcome. [17]
A reviewing court indulges in the presumption that counsel’s conduct fell within the wide range of “reasonable professional assistance.” [18] “The right to
effective assistance of counsel … may in a particular case be violated even by an
isolated error of counsel if that error is sufficiently egregious and prejudicial.” [19]
An appellant must overcome the presumption that counsel’s conduct “might be
considered sound trial strategy.” [20] However, there are some omissions which defy
explanation as, and cannot be justified on the basis of, reasonable trial strategy. [21]
Analysis
A criminal defendant has a well-established right to effective assistance of counsel
during the plea bargaining process. [22] It had long been the rule that a criminal
defendant was denied effective assistance of counsel and prejudiced simply “by the
missed opportunity of accepting” a plea bargain and presenting it to the trial court
for consideration. [23]
*14 In 2013, however, the Court of Criminal Appeals established a new set of standards for determining whether a defendant was prejudiced during the plea
bargain process. Now, when a defendant is not informed of a plea-bargain offer,
he must show a reasonable probability that: (1) he would have accepted the offer;
(2) the prosecution would not have withdrawn the offer; and (3) the trial court
would not have refused to accept the plea bargain.
Here we have evidence that an offer of 40 years was made and that Appellant was not made aware of the offer. Appellant testified at the November
2014 hearing that he was never made aware of the 40 year offer. Appellant
testified through stipulated testimony at trial that he was never made aware of the
40 year offer and that he would have accepted it had he been aware of it.
Accordingly, the record establishes with a reasonable probability that Appellant
would have accepted the offer had he been made aware of it. This satisfies the first
prong of the Argent test.
The record also establishes a reasonable probability the state would not have withdrawn this offer. The record shows the state left this offer open until a time
certain—August 29, 2014. In fact, the record shows that when the offer expired on
August 29, 2014, the state emailed Appellant’s trial counsel to inform her that the
*15 offer had expired and that the state would go back to the original 50 year offer. [25]
This satisfies the second prong of the Argent test.
As this court has previously noted, on direct appeal it is difficult to establish the third prong of the Argent test – that the trial court would have accepted the plea
bargain. [26] The dissenting opinion in Lemke points out the difficulty of this task.
“How is [the defendant] to determine whether a given judge will or will not accept
the offer?” [27]
However, here the record establishes a reasonable probability that the trial judge would have accepted the 40 year offer. First, this offer was only 10 years
less than the state’s original offer of 50 years. This offer was made by the state to
the defendant. It can be presumed that a local district attorney’s office has a
reasonable familiarity with what plea bargains its local trial judges are likely to
reject or accept.
Second, the trial court made no indication at the November 2014 hearing that it would have rejected the 40 year offer. During the discussion, the trial court
only pointed out that it was within the state’s discretion to make or withdraw an
plea offer and that Appellant should discuss the issue with his new attorney. [28]
*16 Third, there was a lengthy discussion of this offer on the record at the punishment hearing. Again, the trial court made no indication that it would have
rejected such an offer. [29] The record includes no other evidence that the trial court
would have rejected the offer.
The state’s 40 year offer was initiated by the state. It was well within the permissible range of punishment. The trial court was aware of the offer before and
during trial. The trial court made no indication that it would have rejected such an
offer. Accordingly, the record establishes a reasonable probability that the trial
court would have accepted the 40 year plea bargain had it been communicated to,
and accepted by, Appellant.
The Argent decision does not require the Appellant to establish with absolute certainty that its three pronged test has been met. It only requires the Appellant
must show there is a reasonable probability that those factors are present. [30] Here
the record establishes with a reasonable probability that: (1) Appellant would have
accepted the state’s 40 year offer had his trial counsel communicated it to him; (2)
the state would not have withdrawn that offer had Appellant accepted it within the
specified time frame; and (3) the trial court would not have refused to accept a 40
year plea bargain. Therefore, Appellant was denied his constitutional right to
effective assistance at trial.
Conclusion
The state made a plea bargain offer to Appellant which his trial counsel failed to communicate to him. Appellant would have accepted this offer had he
known about it. The state would not have withdrawn the offer and the trial court
would have likely accepted it. Therefore, Appellant was denied effective
assistance of counsel at trial.
Prayer
Appellant prays this court reverse the judgment below and remand to the trial court
for a new trial.
Respectfully Submitted, /s/ Don Biard ____________________________ Don Biard State Bar No. 24047755 38 First Northwest Paris, Texas 75460 Tel: (903)785-1606 Fax: (903)785-7580 Email: dbiard@att.net Counsel for Appellant *18 CERTIFICATE OF SERVICE I certify that on May 14, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by email.
/s/ Don Biard ___________________________ Don Biard Attorney for Appellee:
Gary Young
Lamar County Attorney’s Office
C ERTIFICATE OF C OMPLIANCE P URSUANT TO T EXAS R ULE OF A PPELLATE P ROCEDURE 9.4(i)(3) TO THE HONORABLE COURT OF APPEALS:
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, Counsel for Appellant files this certification that Appellant’s brief is a computer-
generated document that contains 2,578 words. Counsel further certifies that he
relied on the word count of the computer program used to prepare this document.
Respectfully submitted, ___/s/Don Biard___________________________ DON BIARD
State Bar No. 24047755 McLaughlin, Hutchison & Biard 38 First Northwest
Paris, Texas 75460
Tel: (903)785-1606
Fax: (903)785-7580
Counsel for Appellant
[1] CR 25886, pg. 7
[2] CR 25928, pg. 8
[3] CR 25958, pg. 2
[4] RR, pg. 7-12
[5] RR, pg. 95
[6] CR 25886, Pg. 7; CR 25928, Pg. 8
[7] RR, Def. Ex. #1
[8] RR, Def. Ex. #3, pg. 7
[9] CR 25928, pg. 96
[10] Def. Ex. #3, CR 25928 pg. 14
[11] CR 25928, pg. 16-17
[12] Def. Ex. #3, pg. 7
[13] RR, pg. 90
[14] RR, pg. 95
[15] Strickland v. Washington , 466 U.S. 668 (1984); Hernandez v. State , 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Ex Parte Duffy , 607 S.W.2d 507, 517 (Tex. Crim. App. 1980), overruled on other grounds , Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App. 1999).
[16] Ex Parte Menchaca , 854 S.W.2d 128, 132 (Tex. Crim. App. 1993), Ex Parte Cruz , 739 S.W.2d 53, 58 (Tex. Crim. App. 1987), Passmore v. State , 617 S.W.2d 682, 686 (Tex. Crim. App. 1981).
[17] Strickland , 466 U.S. at 687
[18] Strickland at 698
[19] Murray v. Carrier , 477 U.S. 478, 496 (1986).
[20] Id.
[21] See, e.g., Ramirez v. State , 987 S.W.2d 938, 945 (Tex. App. — Austin 1999).
[22] Missouri v. Frye , 132 S.Ct 1399, 1405 (2012); Ex parte Wilson , 724 S.W.2d 72, 73 (Tex. Crim. App. 1987).
[23] Ex parte Lemke , 13 S.W.3d 791, 796 (Tex. Crim. App. 2000).
[24] Ex parte Argent , 393 S.W.3d 781, 784 (Tex. Crim. App. 2013)
[25] CR 25928, pg. 96
[26] Piland v. State , 453 S.W.3d 473, 476 (Tex. App. – Texarkana, 2014)
[27] Argent at 785
[28] Def. Ex. #3, pg. 7-8
[29] RR, pg. 90-92
[30] Argent at 784