                     Cause No.
                                     076-f5
                                       IN THE

                         TEXAS COURT OP CRIMINAL APPEALS




                                                                                            APPEALS
                                 Trial No.    CR-13-214

                            APPEAL No.   06-14-00063-CR                               15 2015

JAMES EARL PILAND
Petitioner                                        IN THE 4TH
                                                                           Abel Acosta, Clerk
                                             §
                                             §    JUDICIAL DISTRICT COURT

THE STATE OF TEXAS
                                             „.   OP RUSK COUNTY, TEXAS
Respondent




                                                                         FILED IN
                                                               COURT OF CRIMINAL APPEALS
                                                                            15 2G15

                                                                     Abel Acosta, Clerk




                        PETITION FOR DISCRETIONARY REVIEW




NO ORAL ARGUMENT IS REQUESTED



                                                  James Earl Piland, TDCJ-CID #1919190

                                                  Alfred Stringfellow Unit
                                                  1200 P.M.    655

                                                  Rosharon, Texas 77583
                               IDENTITY.OF PARTIES


TRIAL JUDGE PRESIDING                                APPELLATE JUSTICES

The Honorable Judge Gossett                          The Honorable Justice Carter
Courthouse, 115 Main St., Room 3C^                   The Honorable Justice Moseiey
Henderson, Texas 75652                               Chief Justice C.J. Moriss

Tele. (903)657-0358                                  Sixth Court of Appeals


                                     PETITIONER


TRIAL DEFENSE ATTORNEY


Allison Biggs, Atty-at-law
300 W. Main st.

Henderson,   Texas 75652

Tele. (903)657-8195


DIRECT APPEAL ATTORNEY

T.W. Davidson, Atty-at-law
329 S.   Fannin Avenue

Tyler, Texas 75702
Tele. (903)535-9600


                                     RESPONDENT


PROSECUTOR AND APPELLATE COUNSEL

Richard Kennedy, Atty-at-law
Zack Wavrusa, Atty-at-law
115 N. Main St., Room 302

Henderson, Texas 75652-3147

Tele. (903)657-2265




                                        -l-
                                        TABLE OF CONTENTS                        PAGE #


IDENTITY         OF    PARTIES                                                    i

TABLE. OF        CONTENTS                                                         ii

INDEX       OF   AUTHORITIES                                                      iii-iv

I.    STATEMENT. OF           THE   CASE....                                      1-3

II.    STATEMENT            OF. PROCEDURAL     HISTORY                            3

III.       GROUNDS      FOR    REVIEW.....                                        3-4

      1.    LEGAL      AND    FACTUAL   INSUFFICIENCY      OF      EVIDENCE..     4

      2.    VOID      INDICTMENT.                                                 4

      3.   JUDICIAL          MISCONDUCT. .                                 . .    4

      4.    INEFFECTIVE         ASSISTANCE      OF   COUNSEL                      4

      5.    PROSECUTORIAL           MISCONDUCT...                          . .    4

IV.    ARGUMENT AND            AUTHORITIES                     '                  4-10

       PRAYER         FOR    RELIEF                                               10-11

       VERIFICATION                                                               11

       CERTIFICATE            OF SERVICE                                          11,12

APPENDIX         A

Opinion of the Sixth Court                   of Appeals at         Texarkana




                                                 -ii-
                              INDEX OF AUTHORITIES             PAGE #

SOUTHWESTERN REPORTER


Jiminez. v. State, 953S.W.2d 293 (Tx.App.-Austin 1997).         7
Jones v. State, 984. S.W.2d 254 (Tx.Cr.App. 1998)                7
Lofton v. State, 6 S.W.3d 796 (Tx.Cr.App. 2001)                 7,9
Lofton v. State, 45 S.W.3d 649 (Tx.Cr.App.. 2001)       .   .... 7
Nethery v. State, 692 S.W.2d 686 (Tx.Cr.App. 1985)...           7
Ortiz v. Jones, 917 S.W.2d 770 (Tx.Cr.App. 1996)                6
Reed v. State, 703 S.W.2d 380 (Tx.Cr.App. 1986)                 7
Smith v. State, 676 S.W.2d 584 (Tx.Cr.App. 1984)....            7
Thompson v. State,. 697. S.W.2d 413 (Tx.Cr.App. 1985)           5
Whitehead v. State, 745 S.W.2d 374 (Tx.Cr.App. 1982)            5




                                      -IV-
                               INDEX OF AUTHORITIES .              PAGE #


FEDERAL STATUTES


Rules of Criminal Procedure's, Rule 60(b)                           4
28 U.S.C. § 1746                                                    11


SUPREME COURT REPORTER


Galvan v. Press,, 74 S.Ct. 737 (1954)                                   9
Gal van v. Press, 75 S.Ct. 17 (1954)                                    9
Hughes v. Rowe, 101 S.Ct. 173 (1988).....                           4
Johnson v. Lamb, 120 S.Ct. 522 (1999)                                   9
Rompilla v. Beard, 125 S.Ct. 2456 (2005)..                          9
Snyder v. Commonwealth of Mass., 54 S.Ct. 330 (1934).                   7
Strickland v. Washington, 104 S.Ct. 2052 (1984)                     8,9


FEDERAL REPORTER


Johnson v. Lamb, 179 F.3d 352 (        Cir 1999).                   9
Rommel v. Estelle, 590 F.2d 103 (5th Cir 1979)                      9
Wiggins v. Proeunier, 753 F.2d 1315 (5th Cir 1985)                  4


TEXAS STATUTES


Texas Code of Criminal Procedures, Rule 38.23(a)..                  6,8,10
Texas Penal Code § 9.3i (c)(1) (2)             ...                  5,8,10
Texas Penal Code,§ 22.01(a)                                         10
Texas Penal Code § 22.01 (b) (1)                                    3
Texas Penal Code § 38.03(a)                          -....-...•.    7,9,10
Texas Rules of Appellate Procedure, Rule 66.3                       10
Texas Rules of Appellate Procedure, Rule> 68.1                      1


SOUTHWESTERN REPORTER


Bignall v. State, 887 S.W.2d 21. (Tx.Cr.App. 1984)                  7
Dinkins v. State, 894 S.W.2d 330 (Tx.Cr.App.. 1995).                5
Emery v. State, 881 S.W.2d 21 (Tx.Cr.App. 1994)                     6
Ex Parte Harris, 596 S.W.2d 293 (Tx.Cr.App. 1980)                   8




                                        -in-
                                    Cause No.


                                                       IN THE

                                     TEXAS COURT OF CRIMINAL APPEALS




                                               TRIAL   No. CR-13-214


JAMES EARL PILAND                                        §
Petitioner                                                    IN THE 4th
                                                         §
vs.
                                                         §    JUDICIAL DISTRICT COURT
THE STATE OF TEXAS                                            OF RUSK COUNTY, TEXAS
Respondent                                               §



                                    PETITION FOR DISCRETIONARY REVIEW


TO THE HONORABLE JUDGE(S) OF SAID COURT:

       COMES NOW,            James Earl Piland, Petitioner, pro-se in the above styled and

numbered           cause, and respectfully files this Petitioner's Petition For Discre

tionary       Review         pursuant     to     Rule 68.1, T.R.A.P..      The Petitioner would show

the Honorable Court the following:

                                          I.   STATEMENT OF THE CASE


       On     the    evening of 21 April, .2003, the Petitioner, and his wife discovered

that        their    son and his friend had been stealing money from them out o±their

bedroom.           so   to    curtail      any     further    thefts, the Petitioner woke his son,

Tyler,        to    help     him    put    a     door on his bedroom.      During.this time,a heated

argument began, leading to the Petitioner telling his wife to call the police.

In     the    meantime        the    Petitioner went into a nearby woods in order to remove

himself from further altercations, and to calm down.

      It had already grown dark outside,                 and the Petitioner was barefoot.     After

a     short    time the Petitioner heard several voices calling his name.                  He heard




                                                        -1-
a     noise and a bright light was shined into his face, blinding him.                           The Peti

tioner believed it was his son and Wesley Watkin, his son's friend.                              He turned

to     walk        further       into      the       woods,      but stepped on something sharp, and fell

down.         The     bright        light        was     again      shined into the Petitioner's eyes, and

a     voice     ordered          him      to     "get up and come over here;"         The Petitioner stood

up     and     tried        to     see    who it was, because there were several people calling

him.         The     Petitioner's              hands were in front of his eyes, trying to block the

light.         He     was        told to put his hands down, and when he did, he was hit with

either        a qun or flashlight.                   These were the only thinqs in the person's hands

that had            hit     him.        At the same time, someone else began spraying something

in     the     Petitioner's              face and eyes.          The Petitioner's vision went black, and

he     fell     against          his      boat.       As the Petitioner walked towards his house, the

officer continued hitting him in the face, while the other officer kept spray

ing     mace        everywhere.           The Petitioner's son saw the officer strike the Peti

tioner        with       his     gun      or    flashlight and jumped on. his back.        The Petitioner

ran     into       his      house for safety, and to clean mace out of his eyes and mouth.

E.M.S.        had     to    be called, as the officer had sprayed the Petitioner's eleven

(11)     year       old daughter               in      the' face, and needed her eyes flushed out.     At

no     time were handcuffs put on me nor did the officers announce who they were.

Two     other       officers           were     called in to arrest'me.         Officer Overton testified

that I offered no resistance when I was handcuffed.


       Officer       Loden         claimed          I rushed at him out of the woods, but changed his

testimony          when cross-examined to "a fast pace."                     He would also commit perjury

stating        he never            struck       the     Petitioner at all.      Then later admit striking

the     Petitioner          on      the       side     of the face "3 or 4 times."      (RR 4 at 151,153)

The    Petitioner           was        then     taken     to jail and charged with "assault against a

public        servant."          During pre-trial hearing, the trial judge asked the defense



                                                              -2-
attorney         if   she    was     prepared          to go to trial. • She stated "no" because she

and       the    prosecutor         were working on a plea deal due to the multiple charges.

But       the    judge      ignored        her and set the case for trial the next day, despite

there       being     multiple other cases on the Docket before the Petitioner's case.

The       Petitioner        was     tried       and    convicted      by a jury.   Punishment was set at

sixteen (16) years confinement in TDCJ-CID.                          A Motion for Appeal was filed.

     On 17 December, 2014, the Sixth Court of Appeals affirmed the conviction.

     On 1-22-2015 the Texas Court                     of   Appeals    granted   Petitioner's Motion For

Extension of Time to file P.D.R. till March 17, 2015.

     On    April 22, 2015, the Petitioner's P.D.R. was struck.                       The Court afforded

the Petitioner thirty (30) days to withdraw and refile the P.D.R..

     This timely Petition For Discretionary Review follows.

                                   II. STATEMENT OF PROCEDURAL HISTORY


1.    The       Petitioner        appeared       before      the     4th District Court of Rusk County,

Texas      on     2-18-2014,        on     a     charge of assault of a public servant.         The jury

found      Petitioner        guilty and set punishment at sixteen (16) years confinement

in TDCJ-CID.


2.    A     Motion for            Appeal was filed at trial.            An appeal was filed in the 6th

Court of Appeals of Texas.                     The appeal was affirmed on 17 December, 2014.

      NC MOTION FOR REHEARING WAS FILED.


3.     The , Petitioner            filed    a     Motion     for     Extension of;Time to File Petition

For       Discretionary Review.                This was granted on 1-22-2015.         A P.D.R. was filed

iiiea       on    1-22-2015.         The P.D.R. was struck due to page length and no opinion

from       the    6th    Court       of    Appeals.         The Court afforded the Petitioner thirty

(30) days to redraw and file P.D.R..

      This timely filea P.D.R. follows.

                                            III. GROUNDS FOR REVIEW




                                                           -3-
ISSUE 1 - Was         the    evidence        factually     and legally sufficient to support the

conviction when evidence, showed alibi of self defense?.                   (RR 4, pg. 19-21,35,68)

ISSUE 2 - Was         the     indictment.so flawed that the jury convicted the Defendant

of the wrong offense?              (RR 4, at 163)(Rule 60(b), F.R.C.P.)

ISSUE 3 - Was it abuse of discretion in trial judge's failure to allow Defense

Counsel time to prepare for trial?.

ISSUE 4 - Was         Defense       Counsel    Ineffective      for; 1) Failure to file a Motion

for     Jury     Instruction on a lesser-included offense; 2) Failure to investigate

ana     bring    Petitioner's           version of facts before the Jury;.3) Ineffective (in

her     own admittance) due to trial judge's interference with her representation

of her client?           (See direct appeal Brief by Appellant, pg. 12^-14).

ISSUE 5 - Was         it    Prosecutorial       Misconduct      when   prosecutor   failed to give

Defense        Counsel      full    notice    of   enhancement     of. charge until \ hour before

I^oir Dire?           (Notep:. It was         faxed to defense counsel's office while she was

at this pre-trial).

                                    IV. ARGUMENTS AND AUTHORITIES


      NOTE:     The      Petitioner      has no access to trial records, and had to rely on

Brief's from his direct appeal to file this P.D.R..

      The Petitioner.is not skilled in the science                 of law, and prays this Honor

able Court not hold him to the same stringent standards as a licensed attorney

pursuant        to Wiggins         v.   Proeunier,       753 F. 2d ,1318 (5th Cir. 1985) and Hughes

v. Rowe, 101 S.Ct. 173 (1988).

NOTE:     ORAL ARGUMENT IS NOT; REQUESTED


ISSUE 1 - Was         the     evidence      factually      and leqallv sufficient to suooort the

conviction when evidenc|!> f'jiowed alibi of self-defense? (RR 4, pgs 19-21,35,
68).

       In the case at bar, the charge instructs the jury to determine guilt based



                                                     -4-
on    whether the Petitioner "did...cause bodily injury to Brad Loden, by strik

ing     the    said     Brad Loden with the defendant's fist while the said Brad Loden

was     trying     to     arrest    the        defendant,     and the said Brad Loden was then and

there       a public servant, to wit: a police officer...acting in lawful discharge

of    his     official      duty,   and         the defendant knew that the said Brad Loden was

a public servant because the said Brad Loden was wearing a distinctive uniform

and displaying his badge..."

      First note, the police uniform was dark blue,.it was dark, and the officer

kept a flashlight shining in Petitioner's face.                       (RR 4, pg. 19-21,35,68).

      Second, the         indictment       is     defective     for   failing to give "mens rea" as

is mandatory under Texas Law.                   (See Dinkins v. State, 894        S.W.2d    330 (Tex.

Crim.App. 1995);           Whitehead v. State, 745              S.W.2d    374,    376   (Tex.Crim.App.'

1982) Thompson v. State, 697 S.W.2d                    413, 415 (Tx.Crim.App. 1985).         Such les

sened the States burden of proof denying Petitioner due process.

      The      charge     failed    to conform to Texas Penal Code § 22.01(a), (b)(1) by

failing to state "intentionally, knowingly, or recklessly."

      Third, the Petitioner              had an alibi defense as Officer Loden kept hitting

the     Petitioner        in    the head, which he admitted at trial              (RR 4 at 151, 153).

The     only     time     Petitioner struck the officer was when Petitioner fled to his

house       to clean the mace from his eyes, someone grabbed his shirt.                     He knocked

the     hand away and fled into his house.                  (RR 4, pg. 19^21,35-68).       Note others

testified        seeing     Loden    hit        the Petitioner between the eyes with his gun or

flashlight,        which       started     a     struggle     between Loden and    Petitioner's son.

Pursuant to Texas Penal Code § 9.31(c), "(c) The use of force to resist arrest

or    search      is    justified: (1) if, before the actor offers any resistance, the

peace       officer     (or     person     acting     at his direction) uses or attempts to use

greater        force    than     necessary to make the arrest or search; and (2) when and



                                                      -5-
to the degree the actor reasonably believes the.force is immediately necessary

to    protect    himself       against       the     peace officer's (or other person's) use or

attempted use to greater, force than necessary."                      Also, because it is an alibi>

defense,      Article 38.23(a) V.A.C.C.P. requires the Court to give jury instruc

tions on. whether the defendant had a right to defend himself against excessive

force by police.

      Also    note     Officer       Loden testified the first handcuff had been locked'on

Petitioner's       wrist,,     yet     in    Video     2, not shown to Jury, when handcuffed by

off-duty officer, no handcuff's were on Petitioner's wrists.

      "A    critical       inquiry is whether, after viewing the evidence, any rational

trier of fact          could     have       found the essential elements of the crime beyond

a reasonable doubt."           Emery v. State, 881             S.W.2d     702,   705   (Tex.Crim.App.

1994);       "Where appellate attacks legal sufficiency of the evidence, appellate
Court      must view only that evidence which supports the. verdict, however, where

appellant's challenge is to factual sufficiency [as in this casej of evidence,

appellate      Court    must     consider      all        evidence.     Court of Appeals must weigh

and compare alio evidence.in the record.".                    Ortiz v.. Jones, 917      S.W.2d    770

(Tex.Crim.App.        1996).     (Note: The officer is no longer a police officer since
this trial).

      Petitioner      was    denied     due    process.         His conviction should be reversed

and he be afforded a new trial.

ISSUE 2 - Was        the    indictment so flawed that the Jury convicted the Defendant

of the wrong offense and without mandatory mens rea?

      Officer    Loden      testified Petitioner resisted               when the first handcuff was

locked on his wrist.           But also testified the Petitioner was not               under arrest.

So why come          with    drawn     weapon,       or even handcuff and mace the Petitioner?

The   indictment       failed     to give          mens    rea, as required by law.      Tx.Pen.Code



                                                     -6-
§ 38.03(a)           is what the charge might have been, i.e. resisting arrest, except
by Loden's own testimony the Petitioner was not under arrest.                        (See Lofton v.

State; 45 s.W.3d 649 (Tex.Crim.App. 2001).                    The only requirement was a showing

of    some evidence to permit.the jury rationally to find the Petitioner's guilt

of only the lesser, not of the greater.                    (See also. Lofton v. State,      6 S.W.3d

at 797;      Bignall v. State,/887               S.W.2d 21,23    (Tex.Crim.App. 1994).        "Whether

there       is    evidence      within or without the defendant's testimony, which raises

the     lesser offense controls the.issue of whether an instruction on the lesser

offense,         controls    the       issue of whether an instruction on the lesser included

offense should be given."                Jones v. State, 984       S.W.2d   254,     257    (Tex.Crim.

App. 1998).

      "Although         it   is    clear    that    the issue of self-defense may be raised by

evidence other than defendant's testimony (see Smith v. State, 676                             S.w.2d

584     (Tex.CrinuApp.          1984),      it   is equally clear that some evidence must show

that defendant reasonably believed that force was necessary to protect himself

against unlawful force of another."                  Nethery v. State, 692         S.W.2d   686,         704

(Tex.Crim.App. 1985);              Reed v. State, 703 S.W.2d 380, 382.

      The Petitioner states his constitutional right to due process was violated

The conviction should be reversed and                  a new trial afforded to the Petitioner.

(See Jiminez v. State, 953 S.W.2d 293, 299 (Tex.App.-Austin 1997, pet.ref'd)..

ISSUE 3 - Was it abuse of discretion in trial judge's failure to allow Defense

Counsel time to prepare for trial?                                                              ,..,.,

      "State       is   free      to    requlate    court procedure in accordance with its own

conception of policy and fairness without infringing on 14th.Amendment, unless

some fundamental principle of justice is violated."                    Snyder v. Commonwealth of

Mass., 54 S.Ct. 330 (1934).

      The    trial      iudqe      aske:!   the State and Defense if they wecepreoared to cro

to trial.         Defense, stated. they weren't ready, as the prosecutor and her were


                                                     -7-
working     out       a     plea deal,, due to multiple other charges involved.               The trial

judge ordered the case set for. Docket the next day.                         By and through the actions

of   the      trial        judge, the Petitioner was denied his.right to effective assis

tance of counsel at trial.


       "Actual       or     constructive          denial    of     assistance of counsel altogether is

legally presumed to result in prejudice."                          Strickland v. Washington/ 104 S.Ct.

2052 (1984).            "Mere     pro     forma     appearance       of counsel does not amount, to the

assistance         of      counsel and due process of law guaranteed by federal constitu

tion    and       it does not afford the right of being heard by...counsel guaranteed

by state constitution."                  Ex,Parte.Harris, 596 S.W.2d 293 (Tx.Crim.App. 1980).

     Actions         by trial judge denied Petitioner,due process and effective assis

tance      of counsel.            Petitioner should.be granted a reversal of his conviction,

and granted a new trial.

ISSUE 4 - Was             Defense.    Counsel       ineffective        for: 1) failure to file a Motion

for Jury Instruction on lesser-included offense and alibi defense; 2) failure

to   investigate            and     bring     Petitioner's version of facts before the Jury; 3)

Ineffective          by     her     own     admittance       due    to trial judge's interference with

her representation of her client?

     In     the      instant        case at bar, a quick review of transcripts will show the

Petitioner was entitled to jury instructions under. Article 38.23(a) V.A.C.C.P..

on   both      his        alibi     of    self-defense", pursuant to Tx.Pen.Code § 9.31(c), and

on   the      lesser-included             offense.         Counsel's     inadequate time to prepare for

trial      severely         effected        representation, denying him effective counsel.          De

fense      counsel         failed     to    object to        improper indictment/charging instrument -

that failed to give "mens rea", a mandatory element of the charge.                           By defense

counsel's       own        admittance        (See Appellant          Brief   in direct appeal), she was

not ready for trial, and this hampered her representation of her client.



                                                           -8-
     "If     the    absence          of the lesser included offense instruction left the jury

with    the options either to convict the defendant —                           or to aquit him, a finding,

of harm is essentially automatic..."                       Lofton, 6 s.W.3d at 800.

       "When a defendant argues that his counsel's failure to investigate preven

ted     counsel         from making an informed tactical choice, he must show that know-'

ledge of the investigated evidence would have altered his counsel's decision...

in     order       to   satisfy prejudice              prong     of ineffective assistance of counsel

claim."       Johnson v. Lamb, 179              F.3d      352,     cert.denied,        120 S.Ct. 522 (1999).

"If there is one plausible line of defense—counsel must conduct a 'reasonable

substantial investigation' into that line of defense..."                               Strickland, supra, at

2061; Rommel v. Estelle, 590                    F.2d     103,    104     (5th    Cir   1979).   Self-defense

was     the    one      plausible, line          of defense,, yet no argument was made, nor jury

instruction         given      pursuant         to     Art. 38.03(2) V.A.C.C.P.          Nor was the lesser

included       offense         argument or jury instruction given dispiteall the evidence,

supporting         said       issues.      Such        constituted dereliction of counsel, and this

did effect the outcome of the trial.


     The Petitioner should be granted a new trial and a reversal of this convic

tion.       (See Rompilla v. Beard, 125 S.Ct. 2456 (2005)).

ISSUE 5 - Was            it    Prosecutorial           Misconduct      when-

Defense       Counsel         full     notice    of      enhancement       of charqe until % hour before

Voir    Dire,        faxing said notice to Defense Counsel's office knowing fully well

Defense Counsel would not be there?


       "Prosecutor is obliged to see that justice is done."                            Art. 2.01 V.A.C.C.P.

"Fair play is the essence of 'due process.'"                           Galvan v. Press, 74      S.Ct.   737,

reh.denied, 75 S.Ct. 17 (1954).

       The    prosecutor         had     spent the afternoon, prior to the trial, negotiating

a    plea     agreement with             defense        counsel.       Yet when the trial judge asked if



                                                          -9-
both     sides       were    ready        for trial, he stated "yes" knowing he had acceptibly

led     defense        counsel         into believing a plea deal would be reached.           The proof

of     this;     why    else       would        he     send the enhancement paragraphs to her office

at 8:00 a.m. when she was at the Courthouse.                          The trial started at 8:30 a.m..

       The     Petitioner,        would        state    the     actions by the prosecutor coupled with

the actions            of    the trial judge shows a conspiracy to ensure this conviction

went     through regardless of the Petitioner's right to due process, and a fair,

impartial trial.             This conviction should be reversed and the Petitioner affor

ded a new trial.


                                                 PRAYER FOR RELIEF


       ALL     PREMISES      CONSIDERED, the Petitioner prays this Honorable Court ORDER'

the     reversal       of     this      conviction        due     to a void indictment, judicial abuse

of discretion, legal and factual insufficiency of evidence pursuant to Pen.Code

§ 22.01; 9.31(c); and 38.03(a) Art. 38.23(a) V.A.C.C.P., ineffective assistance
of counsel, prosecutorial misconduct.

      The reasons for granting this Petition are:..

(a)      the     decision         of     the    6th Court of Appeals.conflicts with other Courts

         of Appeals on the same issues;

(b)      the        Court    of    Appeal .has          decided important questions of law in a way

         that conflicts with the Court of Criminal Appeals and the supreme' Court;

(c)      the     Court of Appeals/has disagreed on a material question of law neces

         sary to the Court's decision; and

(d)      The     Court       of    Appeals           has so far departed from the accepted and usual

         course of judicial proceedings, or so far sanctioned such                        a   departure

         by     a    lower        court, as to call for an exercise of the Court of Criminal

         Appeal's power of supervision.

         (See T.R.A.P., Rule 66.3).




                                                          -10-
   As such, the Petitioner prays this Honorable Court GRANT the Petitioner:

1. a reversal of the District Court's conviction of Petitioner; and

2. render a judgement of acquittal; or order a new trial; and

3. vacate Petitioner's 16 year sentence in TDCJ-CID;

4. order Petitioner's release from prison and/or State Custody; or

5. remand this case to the trial court as this Court deems necessary.

                                        IT IS SO PRAYED




               Respectfully Submitted,
                                         "James Earl Piland, TDCJ-CID #1919190

                                            Alfred Stringfellow Unit
                                            1200 F.M. 655

                                            Rosharon, Texas 77583


                                            VERIFICATION


       I,     James   Earl Piland, Petitioner, pro-se, in the above Petition For Dis

cretionary        Review,   do hereby       verify    and declare under penalty of perjury,

that the statements contained herein are true and correct.

   Affirmation made pursuant to 28 U.S.C. § 1746.



        EXECUTED on this the j£L day of y^Lz^^^                               >2015.

                            "James Earl Piland, TDCJ-CID #1919190

                                      Petitioner, Pro-Se

                                   CERTIFICATE OF SERVICE


       I, James Earl Piland, being presently incarcerated at the Mac Stringfellow

Unit        of the TDCJ-CID,     in   Brazoria County, Texas, do hereby certify that a

true        and correct     copy of   the    above Petition For Discretionary Review has

been        served by placing true and correct copies of the same, first class mail,



                                               -11-
postage prepaid, addressed to the following:



                          STATE PROSECUTING ATTORNEY
                       P.O. Box 12405, Capitol Station
                             Austin,   Texas 78711



                                    AND TO




                             rusk County attorney
                                  courthouse
                         115 N. Main Street, Room 302
                            Henderson, Texas 75652




       EXECUTED on this the /^- day of _/_^                ,2015.


                    "ames Earl Piland, TDCJ-CID #1919190
                              Petitioner, Pro-Se




                                       -12-
                        In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00063-CR




           JAMES EARL PILAND, Appellant

                            V.


           THE STATE OF TEXAS, Appellee




          On Appeal from the 4th District Court
                   Rusk County, Texas
               Trial Court No. CR 13-214




       Before Morriss, C.J., Carter and Moseley, JJ.
            Opinion by Chief Justice Morriss
                                                OPINION

        In April 2013, Overton police officers, Brad Loden and Mary Williams, responding to the

scene of a reported domestic disturbance, encountered James Earl Piland, who smelled of alcohol

and was acting erratically. Loden testified that, while he was attempting to handcuff Piland to

assure officer safety, Piland punched him in the shoulder, causing him pain. Piland appeals the

resulting conviction for assault on a public servant,1 claiming a defective indictment, a lack of
evidence to convict him, and the ineffectiveness of his trial counsel based on a failure to transmit

a plea offer.2
        Although the State agrees with Piland that his trial counsel's failure to tell Piland of a

plea offer constituted ineffective assistance of counsel and although the State fails to argue

against Piland's other points, we affirm the trial court's judgment because (1) Piland's claim of

ineffective assistance of counsel has not been established, (2) sufficient evidence supports

Piland's conviction, and (3) Piland forfeited any claim of indictment defect.

(1)     Piland's Claim ofIneffective Assistance ofCounsel Has Not Been Established

        Piland contends that he received ineffective assistance of counsel because his trial

counsel did not inform him of an offered plea agreement for a three-year term of confinement.

The State has responded only to the issue regarding ineffective assistance of counsel, agreeing




'As applicable to this case, intentionally, knowingly, or recklessly causing bodily injury to another—assault—
becomes a third-degree felony if it is committed against one the defendant knows is a public servant while that
servant is lawfully discharging anofficial duty. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp. 2014).
2The plea offer that went uncommunicated was for three years' confinement. As a result of the conviction, Piland
was sentenced to sixteen years' imprisonment.
that its offer was not transmitted to the defendant and adopting Piland's position that such a

failure necessarily constitutes ineffective assistance of counsel that requires reversal.

        The standard for testing claims of ineffective assistance of counsel is set out in Strickland

v. Washington, 466 U.S. 668 (1984). 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.

Strickland, 466 U.S. at 689; Resales y. 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. Ex parte Martinez,

195 S.W.3d 713, 730 (Tex. Crim. App. 2006); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.

App. 2000).

        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. Ex parte Lemke, 13

S.W.3d 791, 795 (Tex. Crim. App. 2000), overruled on other grounds by Exparte Argent, 393

S.W.3d 781 (Tex. Crim. App. 2013); Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App.

1987) (failure of counsel to advise defendant of plea offer by government constitutes "gross

deviation from accepted professional standards"). Just last year, however, the Texas Court of

Criminal Appeals reversed its position in Lemke that such an error, without separate proof of

3In its brief, the State agrees with Piland's argument in connection with this point of error. The State asks that we
either modify the sentence to conform with the agreement ofthree years' confinement orremand tothe district court
for specific performance of the plea agreement.
prejudice, established a claim of ineffective assistance of counsel.4 In that, most recent,
formulation, the court continued to agree that substandard representation was shown, but adopted

a higher threshold to show that the defendant was prejudiced. Argent, 393 S.W.3d at 784. In so

doing, the court applied the three-part test announced in Missouri v. Frye, 132 S.Ct. 1399, 1405

(2012).

          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. Argent, 393 S.W.3d at 784; Rodriguez v. State, 424 S.W.3d 155, 159 (Tex.

App.—San Antonio 2014, pet. granted). A "reasonable probability" is "a probability sufficient

to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In other words, the

question is whether it is reasonably likely that the outcome would have been different as a result.

Harrington v. Richter, 131 S.Ct. 770, 791-92 (2011). "The likelihood of a different result must

be substantial." Id. at 792; see Argent, 393 S.W.3d at 784; Rodriguez, 424 S.W.3d at 159.

          The only way in which such a probability can be assessed on direct appeal is through the

statements of counsel, client, and trial court. Argent does not mandate that evidence on the

subject be taken at a hearing. In this case, appellate counsel stated that the offer was made and

that the offer remained available, as shown by a subsequent plea offer signed during the course



4A defendant's Sixth Amendment right to effective assistance of counsel extends to all critical stages of trial,
including the plea-bargaining process. Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012); Lafler v. Cooper, 132 S.Ct.
1376,1384(2012).
                                                       4
of this appeal, in which the State re-offered Piland its original three-year deal. Counsel states

that Piland would have accepted the earlier offer and will certainly accept this one, in light of the

sixteen-year sentence assessed in the case.

       That shows a reasonable probability that Piland would have accepted the offer and that

the State did not or would not withdraw it. Thus, the first two parts of the three-part test have

been satisfied.


        The third part requires a showing that the trial court would have accepted the plea

agreement. There is nothing to establish or refute this element. See TEX. CODE CRIM. PROC.

ANN. art. 26.13 (West Supp. 2014). The offer was not presented to the trial court for acceptance

or rejection. The briefing also makes no statement about the trial judge's practice, mental state,

or reaction to such an agreement; the record sheds no light on the matter, and there is no notation

on the docket concerning either the first or second time the offer was made by the State.

Accordingly, one of the three requirements has not been met. On this record, the high threshold

of the Argent standard has not been met. Based solely on the record before us, Piland's claim of

ineffective assistance of counsel would fail.

        A remaining question is whether we should honor the request by the State that the case be

remanded so that the trial court can make such a determination.            We ordinarily accept a

confession of error by the State. Hawkins v. State, 613 S.W.2d 720, 723 (Tex. Crim. App. 1981).

We are not, however, bound by the State's confession of error. Meshell v. State, 739 S.W.2d

246, 250 n.4 (Tex. Crim. App. 1987). A confession of error by the State is not conclusive when

reviewing an appeal, and, in the absence of reversible error, we are not to make our ruling based
on the State's request to reverse. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002);

Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref d). We do not believe

we are authorized to reverse merely on the request of a party. Under this state of the law, a claim

of ineffective assistance of counsel has not been established.

(2)     Sufficient Evidence Supports Piland's Conviction

        Piland asserts the insufficiency of the evidence to support the conviction. He points to

language in the indictment and the charge requiring the jury to find that Loden was in the process

of arresting Piland and by so doing was acting in the performance of his official duty as a public

servant at the time of the assault. Piland also contests the sufficiency of the evidence to support

the allegation that he caused bodily injury to Loden.

        In reviewing the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury's verdict to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfieldv.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. refd). We examine legal

sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to



5This matter could be addressed by a petition for habeas corpus and a concomitant hearing to address that question.
So long as relevant information is made part of the record, the requirements of controlling caselaw might be met.
Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); cf.Massaro v. United States, 538 U.S. 500, 504-05
(2003). If these allegations were presented in an application for a writ of habeas corpus and were established, the
trial court could make findings of fact in accordance with Argent that might entitle Piland to relief based on
satisfaction of the sole remaining requirement of establishing that the trial court would have accepted the plea
agreement. See Argent, 393 S.W.3d at 784.
                                                        6
draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).

       The charge instructs the jury to determine guilt based on whether Piland

       did . . . cause bodily injury to Brad Loden, by striking the said Brad Loden with
       the defendant's fists while the said Brad Loden was trying to arrest the defendant,
       and the said Brad Loden was then and there a public servant, to-wit: a police
       officer . . . acting in lawful discharge of his official duty, and the defendant knew
       that the said Brad Loden was a public servant because the said Brad Loden was
       wearing a distinctive uniform and displaying his badge

Had the testimony been different, we might assume that, because the officers were attempting to

handcuff Piland, they were indeed in the process of arresting him. In light of their specific and

emphatic testimony to the contrary, however, we cannot conclude there is any evidence of an

attempted arrest. The question, then, is whether it was necessary in this instance for the State to

actually prove everything it alleged.     Under the "hypothetically correct jury charge," we

conclude that there was no requirement that the State prove the arrest allegation.

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment,

does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the defendant was

tried." Id.


        The Texas Court of Criminal Appeals has required courts of appeals to disregard such

mistakes through use of a "hypothetically correct jury charge" rather than the charge actually

presented to the jury. The essential elements of the offense are defined by the hypothetically
                                                 7
correct jury charge for the case. A hypothetically correct jury charge does four things: (1)

accurately sets out the law, (2) is authorized by the indictment, (3) does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and

(4) adequately describes the particular offense for which the defendant was tried. Ramos v.

State, 407 S.W.3d 265, 269 (Tex. Crim. App. 2013). The hypothetically correct jury charge need

not always include all of the charging instrument's allegations.

       In the context of the hypothetically correct jury charge construct, this is not the first time

this Court has wrestled with the proof required to support a conviction for assault on a public

servant. See Hoitt v. State, 28 S.W.3d 162, 167 (Tex. App.—Texarkana 2000),per. dism'd, 65

S.W.3d 59 (Tex. Crim. App. 2001). In Hoitt, we dealt with similar explanatory language—"To

wit: attempting to arrest [Hoitt]"—that was in the indictment and was descriptive of the State's

theory of the official duty the officer was exercising, but which we recognized was ordinarily

unnecessary for a correct charge on the elements of the offense.

        We were confronted in Hoitt with a jury charge that conformed to the indictment. It

contained language that did not strictly comply with the statute^ but was descriptive of how an

essential element of the offense was committed. At that time, the Texas appellate courts were

still grappling with the extent to which a defendant could be convicted on a charge not submitted
to the jury. Accordingly, we analyzed former caselaw in light of the then newly formulated

requirements ofMalik in an attempt to determine whether the State must prove what it alleged or
if its proof might vary from the charge. In Hoitt, we concluded that, although the charge
correctly described the duty being exercised as an arrest, the description was not one of the
elements of the offense, but was merely descriptive of the element. We concluded that, under

Burrell6 (which required that the State prove an unnecessary fact alleged in the indictment that

describes an essential element of the offense), the actual charge tracked the indictment and was

thus correct. A petition for review of our decision was granted, but was later dismissed as being

improvidently granted.

        Since then, the Texas Court of Criminal Appeals has taken opportunities to refocus the

formulations on this topic. The surplusage rule and the Burrell exception7 were overruled the
next year in Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex. Crim. App. 2001). Surplusage was

defined as an allegation in a charging instrument not legally essential to constitute the offense.

Id. at 249.


        Of course, surplusage problems continue to exist and must still be dealt with. Thus, the

court held in Gollihar that, in the future, the "fatal variance" doctrine will be used to resolve

surplusage problems. Id. at 256 n.21; see Williams v. State, 270 S.W.3d 140, 147 (Tex. Crim.

App. 2008). A variance occurs when the State has proven the defendant guilty of a crime butthe

proofat trial varies from the allegations in the charging instrument. Gollihar, 46 S.W.3d at 246.

The variance becomes "fatal" when the variance between the indictment and the evidence at trial

denies the defendant notice of the charges against him or her. Id. at 256; Moore v. State, 11

S.W.3d 495, 499 (Tex. App.—Houston [14th Dist] 2000, no pet.). Only material variances that

prejudice the defendant's substantial rights render the evidence insufficient or become fatal.

''Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), overruled byGollihar, 46 S.W.3d at 256-57.

7The Burrell exception held that, if the unnecessary allegation described a way in which an element of thecrime was
committed, the State was required to prove its case as alleged.
                                                          9
Gollihar, 46 S.W.3d at 257; Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988)

(abrogating rule that mere or slight variance between indictment allegations and proof at trial

renders evidence insufficient). Allegations in the charging instrument giving rise to immaterial

variances may be disregarded. Id; Gollihar, 46 S.W.3d at 257; Hinojosa v. State, 433 S.W.3d

742, 757 (Tex. App.—San Antonio 2014, pet. ref d).

        The most recent statement from the Texas Court of Criminal Appeals on this topic is set

out in Thomas v. State, No. PD-1326-13, 2014 WL 5154586 (Tex. Crim. App. Sept. 24, 2014).

In considering the hypothetically correct jury charge appellate courts are to use on review, the

court reasoned that the "law as authorized by the indictment" consists of the statutory elements

of the indictment and those elements as modified by the indictment.           Id. at *8-9.    That

hypothetically correct charge need not include allegations that would give rise to only immaterial

(i.e., non-fatal) variances.

        While alleging statutory alternative manner and means places the allegation in the

hypothetically correct jury charge, allegations of manner and means that are not statutory

alternatives are not part of such a charge. See Gollihar, 46 S.W.3d at 256. Because the

indictment's and charge's allegation that officers were attempting to arrest Piland did not set out

a statutory alternative manner and means of committing assault on a public servant, it was not

necessary to specify what official duty the officer was exercising, and the allegation was not part

of the hypothetically correct jury charge. Thus, the proof that the officers were not trying to

arrest Piland is of no moment. The officers were investigating a reported injury caused to a

person, allegedly by Piland. That is their duty, and there is accordingly sufficient evidence to

                                                10
allow a reasonable jury to conclude that they were accomplishing their duty during their

encounter with Piland.


        Piland also contests the sufficiency of the evidence to prove that he caused a bodily

injury to Loden. The evidence was that Piland punched Loden in the upper arm. While there is

no evidence of any lasting injury to Loden, "bodily injury" is defined as including simple

physical pain. See Tex. Penal CODE Ann. § 1.07(a)(8) (West Supp. 2014). According to the

definition, then, because Loden testified that it hurt when Piland hit him, the jury could have

concluded that Loden suffered bodily injury as that term is defined by the statute.

        The evidence is sufficient to support the conviction.

(3)      Piland ForfeitedAny Claim ofIndictment Defect

        Piland contends that the indictment is materially defective because it does not specify any

level of mens rea for the offense. Piland's complaint, however, was not made to the trial court.

         If the defendant does not object to a defect, error, or irregularity of form or
         substance in an indictment or information before the date on which the trial on the
         merits commences, he waives and forfeits the right to object to the defect, error,
         or irregularity and he may not raise the objection on appeal or in any other
         postconviction proceeding. ...

Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005).

         Accordingly, Piland has forfeited any right to complain that the indictment had no

allegation of mens rea. Accordingly, we can address no error in that regard.




8The jury charge, on the other hand, includes the proper mens rea allegation—that the act was committed
"intentionally, knowingly, or recklessly."
                                                  11
»••*




                 We affirm the trial court's judgment.




                                                         Josh R. Morriss, III
                                                         Chief Justice


       Date Submitted:          October 16, 2014
       Date Decided:            December 17, 2014

       Publish




                                                            12
                                Court of Appeals
                         Sixth Appellate District of Texas


                                   JUDGMENT



James Earl Piland, Appellant                          Appeal from the 4th District Court of Rusk
                                                      County, Texas (Tr. Ct. No. CR 13-214).
No. 06-14-00063-CR        v.                          Opinion delivered by Chief Justice Morriss,
                                                      Justice Carter     and    Justice   Moseley
The State of Texas, Appellee                          participating.



       As stated in the Court's opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
       We note that the appellant, James Earl Piland, has adequately indicated his inability to
pay costs of appeal. Therefore, we waive payment of costs.



                                                      RENDERED DECEMBER 17, 2014
                                                      .BY ORDER OF THE COURT
                                                      JOSH R. MORRISS, III
                                                      CHIEF JUSTICE


ATTEST:
Debra K. Autrey, Clerk
