                                                                              ACCEPTED
                                                                    06-15-00038-CR-40-CR
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                     5/14/2015 4:41:22 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

    NOS. 06-15-00038-CR, 06-15-00039-CR, 06-15-00040-CR

                            IN THE                       FILED IN
                                                  6th COURT OF APPEALS
                    SIXTH COURT OF APPEALS          TEXARKANA, TEXAS
                                                  5/15/2015 9:32:00 AM
                     AT TEXARKANA, TEXAS
                                                      DEBBIE AUTREY
                   _______________________                Clerk


                    Robert Brice Daugherty,
                          Appellant,

                              v.

                       The State of Texas,
                            Appellee.
                  _______________________________
                       On Appeal from the
               th
              6 District Court, Lamar County, Texas
                    Hon. Bill Harris, Presiding
              _______________________________
                       APPELLANT’S BRIEF




Don Biard
State Bar No. 24047755
Counsel for Appellant




                ORAL ARGUMENT NOT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL
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


                                                           1
                                         TABLE OF CONTENTS


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
                                    INDEX OF AUTHORITIES

                                             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




                                                                                                     3
                     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




                                                               4
                     SUBJECT MATTER OF ISSUES PRESENTED

I. Whether Appellant was denied effective assistance of counsel at trial

because his trial counsel failed to communicate a plea offer to him?



                           SUMMARY OF THE ARGUMENT

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.

                            NOTE ON COMBINED BRIEF

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.
                                                                                    5
                           STATEMENT OF THE CASE


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)
                             6th District Court, Lamar County, Texas

Trial Court Disposition:     The trial court sentenced Appellant to life in
                             prison.




                                                                                6
                              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




1
  CR 25886, pg. 7
2
  CR 25928, pg. 8
3
  CR 25958, pg. 2
4
  RR, pg. 7-12
                                                                                    7
         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.5




5
    RR, pg. 95
                                                                                          8
                                        FACTS

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


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
                                                                                         9
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
   Def. Ex. #3, pg. 7
13
   RR, pg. 90
14
   RR, pg. 95
                                                                                         10
                             ARGUMENT AND AUTHORITIES

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




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).
                                                                                            11
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




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).
                                                                                            12
          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.24

          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




24
     Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013)

                                                                                      13
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




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
                                                                                      14
         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.

29
     RR, pg. 90-92
30
     Argent at 784
                                                                                        15
                                   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




                                                                                   16
                        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




                                                                               17
   CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
                         PROCEDURE 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




                                                                                  18
