Case Information
*0 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/15/2015 3:01:38 PM DEBBIE AUTREY Clerk *1 ACCEPTED 06-15-00038-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/15/2015 3:01:38 PM DEBBIE AUTREY CLERK
ORAL ARGUMENT WAIVED CAUSE NOS. 06-15-00038-CR, 06-15-00039-CR, 06-15-00040-CR IN THE
COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
ROBERT BRICE DAUGHERTY, Appellant V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6 TH DISTRICT COURT OF LAMAR COUNTY;
TRIAL COURT NOS. 25928, 25958 & 25886; H ONORABLE ERIC CLIFFORD, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
Gary D. Young, County and District Attorney Lamar County and District Attorney’s Office Lamar County Courthouse 119 North Main
Paris, Texas 75460 (903) 737-2470
(903) 737-2455 (fax) ATTORNEYS FOR THE STATE OF TEXAS *2 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and counsel is not required to supplement or correct the appellant’s list.
-i- *3 TABLE OF CONTENTS PAGE NO: IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . i
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iv
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . vii
ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . . viii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . 6
ARGUMENT AND AUTHORITIES
SOLE ISSUE PRESENTED IN REPLY: WITH A SILENT APPELLATE RECORD, THE APPELLANT, DAUGHERTY, DID NOT OVERCOME THE PRESUMPTION OF REASONABLE ASSISTANCE OF COUNSEL; NOR COULD DAUGHERTY SHOW A REASONABLE PROBABILITY UNDER THE THREE-PART ARGENT TEST WITHOUT THE STATEMENTS OF COUNSEL, CLIENT AND TRIAL COURT AT A HEARING; AND FINALLY, DAUGHERTY COULD NOT PROVE ANY OF THE THREE-PART ARGENT TEST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-ii-
PAGE NO: CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . 17
-iii- *5 INDEX OF AUTHORITIES CASES: PAGE:
Bone v. State , 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) . . . 8
Brennan v. State , 334 S.W.3d 64, 71 (Tex. App.--Dallas
2009, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9 Clark v. State , 324 S.W.3d 620, 633 (Tex. App.--Fort
Worth 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . 8,9 Ex parte Argent , 393 S.W.3d 781, 784 (Tex. Crim.
App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,10,14 Gamble v. State , 916 S.W.2d 92, 93 (Tex. App.--Houston
[1 st Dist.] 1996, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . 9 Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Martin v. State , 265 S.W.3d 435, 442 (Tex. App.--Houston
[1 st Dist.] 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Missouri v. Frye , ___ U.S. ___, 32 S.Ct. 1399, 1405,
182 L.Ed.2d 379 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Piland v. State , 453 S.W.3d 473, 475-76 (Tex. App.--Texarkana
2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7,8,9,10,11,12,14,15 Rosales v. State , 4 S.W.3d 228, 231 (Tex. Crim. App. 1999) . . 7
Rylander v. State , 101 S.W.3d 107, 111 (Tex. Crim. App.
2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Smith v. State , 84 S.W.3d 36, 42 (Tex. App.--Texarkana 2002,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 -iv-
CASES: PAGE:
Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Walker v. State , 406 S.W.3d 590, 600 (Tex. App.--Eastland
2013, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 STATUTES: PAGE:
TEX. R. APP. P. 33.1 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. R. APP. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
TEX. R. APP. P 38.2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . i
-v- *7 STATEMENT OF THE CASE The appellant (Daugherty) perfected these appeals from the trial court’s final judgments that convicted him as a habitual offender, as follows:
Cause # Appellate Cause # Criminal Offenses/Convictions
25928 06-15-00038-CR Possession with intent to deliver a
controlled substance, namely, methamphetamine of more than four grams but less than two hundred grams in a drug free zone (count 1). CR (25928), pgs. 115-116.
25958 06-15-00039-CR Delivery of a controlled substance,
namely, methamphetamine of more than four grams but less than two hundred grams. CR (25958), pgs. 112-113.
25886 06-15-00040-CR Possession with intent to deliver a
controlled substance, namely, methamphetamine of more than four grams but less than two hundred grams in a drug free zone. CR (25886), pgs. 42-43.
By these appeals, which were consolidated by both parties for purposes of their respective briefs, Daugherty raised a single issue/point of
error, which contended that he was denied effective assistance of counsel
because his trial counsel allegedly failed to communicate a plea offer that he
would have been accepted had he been so informed.
-vi- *8 STATEMENT REGARDING ORAL ARGUMENT The State of Texas will waive oral argument. Tex. R. App. P.
38.1(e), 38.2(a)(1).
-vii- *9 SOLE ISSUE PRESENTED IN REPLY SOLE ISSUE PRESENTED IN REPLY: WITH A SILENT
APPELLATE RECORD, THE APPELLANT, DAUGHERTY, DID
NOT OVERCOME THE PRESUMPTION OF REASONABLE
ASSISTANCE OF COUNSEL; NOR COULD DAUGHERTY SHOW A
REASONABLE PROBABILITY UNDER THE THREE-PART
ARGENT TEST WITHOUT THE STATEMENTS OF COUNSEL,
CLIENT AND TRIAL COURT AT A HEARING; AND FINALLY,
DAUGHERTY COULD NOT PROVE ANY OF THE THREE-PART
ARGENT TEST.
-viii- *10 CAUSE NOS. 06-15-00038-CR, 06-15-00039-CR, 06-15-00040-CR IN THE
COURT OF APPEALS SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ____________________________________________________________
ROBERT BRICE DAUGHERTY, Appellant V.
THE STATE OF TEXAS, Appellee ____________________________________________________________
ON APPEAL FROM THE 6 TH DISTRICT COURT OF LAMAR COUNTY;
TRIAL COURT NOS. 25928, 25958 & 25886; H ONORABLE ERIC CLIFFORD, JUDGE ____________________________________________________________
APPELLEE’S (STATE’S) BRIEF
____________________________________________________________
TO HONORABLE SIXTH COURT OF APPEALS:
COMES NOW, the State of Texas, by and through its Lamar County and District Attorney’s Office, files this its Appellee’s Brief under Rule 38.2
of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Robert Brice Daugherty will be referred to as “Daugherty” or “the appellant.” The State of Texas will be referred to
as “the State” or “appellee.”
STATEMENT OF FACTS Cause Number 25886.
In August of 2014, a grand jury in Lamar County returned an original indictment that charged Daugherty, as a habitual offender, with felony
offenses that allegedly occurred on or about June 3, 2014. By this
indictment, the State charged Daugherty with one count of possession with
intent to deliver a controlled substance, namely, methamphetamine of more
than four grams but less than two hundred grams in a drug free zone. See
CR (25886), pgs. 7-9. The State also charged Daugherty with two counts of
possession of a controlled substance, namely Diazepam (count 2) and
Hydrocodone (count 3) of less than twenty eight grams in a drug free zone. CR (25886), pg. 8. [1]
Cause Number 25928.
In September of 2014, a grand jury in Lamar County returned an original indictment that charged Daugherty, as a habitual offender, with
felony offenses that allegedly occurred on or about July 15, 2014. CR
(25928), pgs. 8-9. By this indictment, the State charged Daugherty with one
count of possession with intent to deliver a controlled substance, namely,
*12 methamphetamine of more than two hundred grams in a drug free zone. See
CR (25928), pgs. 8-9. The State also charged Daugherty with a second
count of possession of a controlled substance, namely Hydrocodone of less
than twenty eight grams in a drug free zone. See CR (25928), pg. 9.
Cause Number 25958.
In September of 2011, a grand jury in Lamar County also returned an original indictment that charged Daugherty with the felony offense of
delivery of a controlled substance, namely, methamphetamine of more than
four grams but less than two hundred grams in a drug free zone. [2] See CR
(25958), pg. 5.
Hearing on Motion to Withdraw: November 7, 2014.
On November 7, 2014, the trial court proceeded with a hearing on a motion to withdraw as counsel “in all three cases.” Defendant’s Exhibit
3, pgs. 1, 4. The trial court granted the motion to withdraw. See
Defendant’s Exhibit 3, pg. 6.
During the hearing, the prosecutor announced in open court that the State “started with an offer of 50, even went to down to 40 [and] those offers
were declined.” Defendant’s Exhibit 3, pg. 7. In response, Daugherty
stated, “I know that at some point there was some mention of a 40 years and
*13 -- in a correspondence between Dianne and -- and attorney -- I mean, district
attorney, but I never did hear of any plea for 40 years --.” See Defendant’s
Exhibit 3, pg. 7.
To that remark, the trial judge stated, “I’m going to appoint you a new lawyer.” See Defendant’s Exhibit 3, pg. 7. The trial judge admonished
Daugherty to “make sure that you bring this issue up with the new attorney.”
See Defendant’s Exhibit 3, pg. 8. Daugherty acknowledged, “okay.” See
Defendant’s Exhibit 3, pg. 8. At the conclusion of the hearing, the trial court
granted the motions to withdraw and agreed to “appoint new counsel today.”
See Defendant’s Exhibit 3, pg. 15.
Jury Trial Setting, Open Plea and Punishment Hearing.
On February 11, 2015, the trial court called “the Daugherty case” for jury trial. See RR, pg. 6. The trial court inquired, “[w]hat two cause
numbers did we consolidate for trial?” RR, pg. 7. The prosecutor
responded that cause numbers 25958, which was a delivery case, and 25928,
which was referred to as “the search warrant case.” RR, pg. 7. The trial
court understood that “the parties ha[d] reached a plea agreement.” RR,
pg. 7.
As part of the plea agreement, Daugherty agreed to plead “open” to *14 the trial court “in all the cases.” See RR, pg. 8. Daugherty agreed to plead
“true” to the enhancement of habitual offender in all the cases, with all these
sentences to run concurrently. See RR, pgs. 8-9. There would be a drug-free
zone finding in cause number 25928 only. See RR, pg. 9.
The trial court admonished Daugherty and released the jury. See RR,
pg. 25. The trial court then began the punishment hearing, and both sides
announced ready. See RR, pgs. 26-27.
At the conclusion of the punishment hearing, the trial court pronounced sentence. See RR, pg. 95. The trial court sentenced Daugherty
to “life in prison” with “those sentences to run concurrently or at the same
time.” RR, pg. 95.
The Final Judgments of Conviction and Notices of Appeal. On February 11 th , the trial court signed its final judgments of conviction by court--waiver of jury trial. CR (25928), pgs. 115-116; CR
(25958), pgs. 112-113; CR (25886), pgs. 42-43.
On February 18, 2015, Daugherty filed his notices of appeal. CR
(25928), pg. 126; CR (25958), pg. 123; CR (25886), pg. 44.
Proceedings in this Court of Appeals.
On or about February 19, 2015, Daugherty filed his notices of appeal *15 in this Court. The official court reporter filed the Reporter’s Record on or
about March 31, 2015. The district clerk filed the Clerk’s Record on or
about April 14, 2015. Daugherty, the appellant, then filed his brief on May
15, 2015.
On or about June 12 th , the State filed its motion to extend time, which this Court granted. The State will be timely filing its brief on July 15, 2015.
SUMMARY OF THE ARGUMENT In summary, Daugherty’s claim of ineffective assistance of counsel was not established. generally Ex parte Argent , 393 S.W.3d 781, 784
(Tex. Crim. App. 2013); Piland v. State , 453 S.W.3d 473, 475-76 (Tex.
App.--Texarkana 2014, no pet.). To elaborate, Daugherty’s claim of
ineffective assistance was not established for the following reasons:
(1) Daugherty did not overcome the presumption of reasonable assistance of counsel with a silent record. Daugherty did not file a motion
for new trial or request any post-trial hearing. (2) Daugherty could not
show a “reasonable probability” under the three-part Argent test without “the
statements of counsel, client and trial court.” Piland , 453 S.W.3d at
476. (3) Daugherty could not prove any part of the three-part Argent test.
For the reasons above, the appellant’s, Daugherty’s, sole issue/point *16 of error should be overruled. The trial court’s final judgments of conviction
should be affirmed in cause numbers 25928, 25958 and 25886.
ARGUMENT AND AUTHORITIES SOLE ISSUE PRESENTED IN REPLY: WITH A SILENT
APPELLATE RECORD, THE APPELLANT, DAUGHERTY, DID
NOT OVERCOME THE PRESUMPTION OF REASONABLE
ASSISTANCE OF COUNSEL; NOR COULD DAUGHERTY SHOW A
REASONABLE PROBABILITY UNDER THE THREE-PART
ARGENT TEST WITHOUT THE STATEMENTS OF COUNSEL,
CLIENT AND TRIAL COURT AT A HEARING; AND FINALLY,
DAUGHERTY COULD NOT PROVE ANY OF THE THREE-PART
ARGENT TEST.
A. Standard of Review: Ineffective Assistance of Counsel. The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Piland v. State , 453 S.W.3d 473, 475 (Tex. App.--
Texarkana 2014, pet. dism’d). To prevail on such a claim, an appellant must
prove by a preponderance of the evidence (1) that his or her counsel’s
representation fell below an objective standard of reasonableness and (2)
that the deficient performance prejudiced the defense. Piland , 453
S.W.3d at 475 (citing Strickland , 466 U.S. at 689; Rosales v. State , 4 S.W.3d
228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must
prove that the attorney’s representation fell below the standard of prevailing
professional norms and that there is a reasonable probability that, but for the
attorney’s deficiency, the result of the trial would have been different. See
Piland , 453 S.W.3d at 475.
B. With a Silent Record in the Present Case, Daugherty Did
Not Overcome the Presumption of Reasonable Assistance of Counsel. Trial counsel should ordinarily be given an opportunity to explain his (or her) actions before being denounced as ineffective. Brennan v. State ,
334 S.W.3d 64, 71 (Tex. App.--Dallas 2009, no pet.) (citing Bone v. State ,
77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (“His counsel should ordinarily
be accorded an opportunity to explain her actions before being condemned
as unprofessional and incompetent.”). also Rylander v. State , 101
S.W.3d 107, 111 (Tex. Crim. App. 2003) (“trial counsel should ordinarily be
afforded an opportunity to explain his actions before being denounced as
ineffective.”). Generally, a silent record that provides no explanation for
counsel’s actions will not overcome the strong presumption of reasonable
assistance. Walker v. State , 406 S.W.3d 590, 600 (Tex. App.--Eastland
2013, pet. ref’d); Brennan , 334 S.W.3d at 71; Clark v. State , 324 S.W.3d
620, 633 (Tex. App.--Fort Worth 2010, pet. ref’d).
In the present case, Daugherty did not file a motion for new trial, and the record was silent to provide any explanation for counsel’s actions. See
Clark , 324 S.W.3d at 633. also Martin v. State , 265 S.W.3d 435, 442
(Tex. App.--Houston [1 st Dist.] 2007, no pet.) (“Appellant did not file a
motion for new trial and no hearing was held on the ineffectiveness claim,
during which the matter could have been developed in the record.”); Gamble
v. State , 916 S.W.2d 92, 93 (Tex. App.--Houston [1 st Dist.] 1996, no pet.)
(there was no motion for new trial hearing in the instant case, and therefore
the record is silent). Further, the presumption of sound trial strategy was not
overcome as to those issues which were not presented to the trial court in
any motion for new trial, or argued at any new trial hearing. Brennan ,
334 S.W.3d at 73.
Because the record was silent, this Court should not speculate as to defense counsel’s tactics or guess what the reasons might be for taking, or
not taking, certain actions. Smith v. State , 84 S.W.3d 36, 42 (Tex. App.-
-Texarkana 2002, no pet.) (citing Jackson v. State , 877 S.W.2d 768, 771
(Tex. Crim. App. 1994)). On this basis alone, Daugherty’s sole issue/point
of error should be overruled.
C. Even Further, Daugherty Could Not Show a Reasonable
Probability Under the Three-Part Argent Test Without the Statements
of Counsel, Client and Trial Court at a Hearing.
1. The Three-Part Argent Test, As Interpreted in Piland . *19 Failure of a criminal defense counsel to inform his or her client of plea offers made by the State falls below an objective standard of professional
reasonableness. See Piland , 453 S.W.3d at 475. In Ex parte Argent , 393
S.W.3d 781 (Tex. Crim. App. 2013), the Texas Court of Criminal Appeals
“continued to agree that substandard representation was shown, but adopted
a higher threshold to show that the defendant was prejudiced.” See Piland ,
453 S.W.3d at 475 (citing Argent , 393 S.W.3d at 784). In so doing, the
court applied the three-part test announced in Missouri v. Frye , ___ U.S.
___, 32 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012). Piland , 453 S.W.3d
at 475.
Now, to establish prejudice from the ineffective assistance of counsel because defense counsel does not tell his or her client about a plea offer, the
appellant must show a reasonable probability that (1) he or she would have
accepted the offer if it had been communicated; (2) the prosecution would
not have withdrawn the offer; and (3) the trial court would have accepted the
plea agreement. id . at 475-76 (citing Argent , 393 S.W.3d at 784). A
“reasonable probability” was “a probability sufficient to undermine
confidence in the outcome.” Piland , 453 S.W.3d at 476. In other
words, the question was whether it was reasonably likely that the outcome
would have been different as a result. See id . “The likelihood of a different
result must be substantial.” See id .
In Piland , this Court went on to hold that “[t]he only way in which such a probability can be assessed on direct appeal is through the statements
of counsel, client and trial court.” See Piland , 453 S.W.3d at 476. In
Piland , this Court reasoned that “ Argent does not mandate that evidence on
the subject be taken at a hearing.” id .
2. In the Present Case, Daugherty Could Not Show a Reasonable Probability Under the Three-Part Argent Test Without the
Statements of Counsel, Client and Trial Court at a Hearing.
While the Piland opinion did not require that “evidence on the subject be taken,” the present case was factually distinguishable because a hearing
was not even conducted to take “the statements of counsel, client and trial
court.” id . In Piland , “appellate counsel stated that the offer was made
and that offer remained available, as shown by the subsequent plea offer
signed during the course of [the] appeal, in which the State reoffered Piland
its original three-year deal.” id . But here, no statement of counsel was
ever taken at any hearing.
Put simply, Daugherty could not show a “reasonable probability” under the three-part Argent test without “the statements of counsel, client
and trial court.” Piland , 453 S.W.3d at 476. Any such “statements of
counsel, client and trial court” should have been preserved for appellate
review by a complaint to the trial court in a timely request, objection, or
motion. Tex. R. App. P. 33.1(a)(1). Because “the statements of counsel,
client and trial court” were not preserved for review, Daugherty could not
show a “reasonable probability” and his sole issue/point of error should be
overruled.
D-1. The Claim of Ineffective Assistance Was Not Established
Because the Evidence Did Not Prove that Daugherty Would Have
Accepted the 40-Year Offer.
In his brief, Daugherty relied on “evidence” that an offer of 40 years was made, and that he testified at the November 2014 hearing that he was
never made aware of the offer. Appellant’s Brief, pg. 13. Assuming
that to be truthful, the “evidence” and “statements of counsel” proved
otherwise.
During the November 7 th hearing, Daugherty’s counsel stated that the 40-year offer had been communicated to him:
MS. SPRAGUE: -- put my two cents’ worth in on that, on the offer and the counter that was made by Mr. Daugherty? This was made before he was indicted, that offer on any of the cases, three cases. The counter-offer was 15 years that was approved by Mr. Daugherty. That’s what happened to the 40- year offer.
See Defendant’s Exhibit 3, pg. 8. That proved communication of the offer.
As “evidence” above, the “statement of counsel” proved, or at least inferred, that the 40-year offer had been communicated to Daugherty before
the State indicted him on the three cases. Defendant’s Exhibit 3, pg. 8.
Instead of accepting that 40-year offer, the “statement[] of counsel” proved,
or at least inferred, that Daugherty rejected that 40-year offer and approved a
counter-offer for 15 years. Defendant’s Exhibit 3, pg. 8.
In addition to the “statement[] of counsel” above, the prosecutor stated in an e-mail dated November 13, 2014 that read in part:
I also offered to go down to 40 if he would plead before we got to the grand jury date for the second and third cases. Mr. Daugherty said last week (at the Motion Withdraw hearing) that he never knew I’d offered 40. I’m not sure I believe that because Dianne [Sprague] told me a month ago that her client wanted to know if the 40 year offer was still on the table; I told her no. . . . CR (25928), pg. 96. That would corroborate Ms. Sprague’s statement.
According to “the statements of counsel” above, Daugherty could not prove that he would have accepted the 40-year offer because the “evidence”
established that the offer had been communicated to him, and that he
rejected that offer by approving a counter-offer for 15 years. See
Defendant’s Exhibit 3, pg. 8. Thus, Daugherty could not satisfy the first
prong of the Argent test. Cf . Piland , 453 S.W.3d at 476. Further, Daugherty
could not prove a “reasonable probability” of a different result or outcome.
See Piland , 453 S.W.3d at 476 (the likelihood of a different result must be
substantial). Accordingly, Daugherty’s sole issue/point of error should be
overruled.
D-2. The Claim of Ineffective Assistance of Counsel Was Not
Established Because the Evidence Proved that the Prosecution
Withdrew the Offer.
In his brief, Daugherty alleged that “[t]he record also establishes a reasonable probability that the state would not have withdrawn this offer.”
See Appellant’s Brief, pg. 13. To the contrary, Daugherty’s own counsel put
her “two cents’ worth in” to state that “[t]he counter-offer was 15 years that
was approved by Mr. Daugherty. That’s what happened to the 40-year
offer.” Defendant’s Exhibit 3, pg. 8.
As set forth above, Daugherty’s counsel asked, “if the 40 year offer was still on the table” and the prosecutor stated in her November 13 th e-mail,
“I told her no.” CR (25928), pg. 96. Thus, Daugherty could not satisfy
the second prong of the Argent test. Cf . Piland , 453 S.W.3d at 476.
Similarly, Daugherty could not prove a “reasonable probability” of a
different result or outcome. Piland , 453 S.W.3d at 476 (the likelihood
of a different result must be substantial). Again, Daugherty’s sole
issue/point of error should be overruled.
D-3. The Claim of Ineffective Assistance of Counsel Was Not
Established Because No Evidence Was Presented that the Trial Court
Would Have Accepted the Agreement.
In his brief, Daugherty alleged that the record establishes a reasonable probability that the trial judge would have accepted the 40 year offer. See
Appellant’s Brief, pg. 14. However, there was nothing to establish or refute
this allegation in the present case, as was the case in Piland . id . As in
Piland , Daugherty’s briefing made no statement about the trial judge’s
practice, mental state or reaction to such an agreement. id . In fact, here,
the trial judge was Bill Harris, who was sitting in place of the presiding
judge Eric Clifford, and there was no briefing about the practice of Judge
Harris, who usually sits in the County Court at Law of Lamar County.
In conclusion, Daugherty could not satisfy the third prong (or any prong) of the Argent test. Cf . Piland , 453 S.W.3d at 476. Likewise,
Daugherty could not prove a “reasonable probability” of a different result or
outcome. Piland , 453 S.W.3d at 476 (the likelihood of a different result
must be substantial). Based on the rationale expressed above, Daugherty’s
sole issue/point of error should be overruled, and the final judgments of
conviction should be affirmed in all respects.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that upon final submission of the above-styled and numbered causes without
oral argument, this Court affirm the trial court’s final judgments of
conviction in cause numbers 25928, 25958 and 25886; adjudge court costs
against the appellant; and for such other and further relief, both at law and in
equity, to which it may be justly and legally entitled.
Respectfully submitted,
Gary D. Young
Lamar County & District Attorney Lamar County Courthouse 119 North Main
Paris, Texas 75460
(903) 737-2470
(903) 737-2455 (fax)
By:_____________________________________ Gary D. Young, County Attorney SBN# 00785298
gyoung@co.lamar.tx.us ATTORNEYS FOR THE STATE OF TEXAS *26 CERTIFICATE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, the “Appellee’s (State’s) Brief” was a computer-generated document and
contained 4160 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us CERTIFICATE OF SERVICE This is to certify that in accordance with Tex. R. App. P. 9.5, a true copy of the Appellee’s (State’s) Brief has been served on the 15 th day of
July, 2015 upon the following:
Don Biard McLaughlin, Hutchison & Biard
38 First Northwest
Paris, TX 75460
______________________________ GARY D. YOUNG gyoung@co.lamar.tx.us
[1] At the time of trial, the State abandoned counts two and three, as well as the drug-free zone allegation. RR, pg. 8; CR (25886), pg. 42.
[2] At the time of trial, the State abandoned the drug free zone allegation. RR, pg. 8.