                                                                 ACCEPTED
                                                            14-14-00682-CR
                                              FOURTEENTH COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                       2/12/2015 8:19:03 PM
                                                        CHRISTOPHER PRINE
                                                                     CLERK

     No. 14-14-00682-CR

                                             FILED IN
                                      14th COURT OF APPEALS
   TEXAS COURT OF APPEALS                HOUSTON, TEXAS
FOURTEENTH JUDUCIAL DISTRICT          2/12/2015 8:19:03 PM
      HOUSTON, TEXAS                  CHRISTOPHER A. PRINE
                                               Clerk


     TROY LEE BRIDGES,

                          Appellant
               v.

     THE STATE OF TEXAS,

                          Appellee


      Appeal in No. 17438
   In the 344th District Court
    Chambers County, Texas


     BRIEF OF APPELLANT


                          James F. Keegan
                          Texas Bar No. 11155400
                          4421 Jim West Street
                          Bellaire, Texas 77401
                          713-668-4797
                          whynyet@sbcglobal.net
                          Attorney for Appellant
                     IDENTITY OF PARTIES AND COUNSEL


Troy Lee Bridges
Appellant

Represented at trial by:

Gary F. Dennison
Texas Bar No. 05755000
340 Main Street
Liberty, Texas 77575
936-336-6408
936-336-8167-facsimile

Represented on appeal by:

James F. Keegan
Texas Bar No. 11155400
4421 Jim West Street
Bellaire, Texas 77401
713-668-4797
whynyet@sbcglobal.net

The State of Texas
Appellee

Represented at trial and on appeal by:

Dane Listi
Texas Bar No. 00794178
First Assistant District Attorney
Chambers County
P.O. Box 1409
Anahuac, Texas 77514
409-267-8271
409-267-3105-facsimile

                                         i
                                 TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ……………………………………..……………….. i

TABLE OF CONTENTS ………………………………………..……………………………………. ii

INDEX OF AUTHORITIES ………………………………………..……………...……………….. iii

STATEMENT OF THE CASE …………………………………..………………………………….. v

STATEMENT REGARDING ORAL ARGUMENT ……………………………..…………… vi

ISSUES PRESENTED ………………………..….. ………...……………………………………… vii

STATEMENT OF FACTS ……………………………………..……………..……………………… 1

SUMMARY OF THE ARGUMENT ………………………………………....…………………….. 2

ARGUMENT ……………………………………...............................................................…………. 3

PRAYER ………………………………………………………..…………...……………………………. 9

CERTIFICATE OF COMPLIANCE ………………………………………………..…….…….... 10

CERTIFICATE OF SERVICE ………………………………………………………..………….... 10




                                             ii
                         INDEX OF AUTHORITIES

Cases                                                               Page


Houston v. State, 201 S.W.3d 212, 217
     (Tex.App.-Houston [14th Dist.] 2006, no pet. ……………………………………. 7

Lopez v. State, 96 S.W.3d 406, 416
     (Tex.App.-Austin 2002, pet. ref’d) ………………………..………………………….. 7

McCarter v. State, 527 S.W.2d 296, 298 (Tex.Crim.App. 1975) …………...………. 5

Pena v. State, 132 S.W.3d 663, 668-669
      (Tex.App.-Corpus Christi 2004, no pet.) ..……………….……...……..……...…… 8

Saylor v. State, 660 S.W.2d 822, 824 (Tex.Crim.App. 1983) ……………..…………. 8

Seals v. State, 604 S.W.2d 899, 906
       (Tex.App.-San Antonio 1982, no pet.) ..………….…………….…...…..……...…… 4




                                   iii
Texas Penal Code


§ 12.32 ………………………………………..………………...……………………………………….. 4

§ 12.33 ………………………………………..………………...……………………………………….. 3

§ 12.42(b) ……………………………..………………......……………………………………….. 4&7

§ 12.42(c)(1) ………………………………..………………...……………………………………….. 7

§ 12.42(d) ………………………………………..……………….…………………………………….. 4

§ 22.02(a)(2) & (b) ………………………………………..…………………….....……………….. 3




                             iv
                         STATEMENT OF THE CASE

     Troy Lee Bridges was charged in No. 17438 with the second degree

felony offense of aggravated assault with a deadly weapon, the indictment

(CR-4&5) alleging that, on or about August 12, 2013, in Chambers County,

Texas, he intentionally or knowingly threatened Leann Ball with imminent

bodily injury by placing a firearm to her head, using or exhibiting a firearm

during the commission of the assault. The State further alleged six prior

felony convictions for purposes of enhancement. CR-54&55.

     On August 11, 2014, jury voir dire was conducted (see RR7), and on

August 12, 2014, Bridges plead not guilty (RR8-10&11). Thereafter, the State

presented three witnesses, and then rested (RR8-165).        Bridges rested

without presenting any witnesses, and without testifying on his own behalf.

RR8-166. The jury found Bridges guilty of aggravated assault with a deadly

weapon as charged in the indictment (CR-73 and RR9-34-35).

     Thereafter, an agreement was reached regarding punishment. RR9-

36&37. Bridges plead true to allegation of two prior felony convictions as

identified in his stipulation (RR9-55&56), and the court below sentenced him

to confinement in the Texas Department of Criminal Justice – Institutional

Division for a term of 32 years (CR-82&83, CR-85&86, and RR9-57&58).

                                     v
          STATEMENT REGARDING ORAL ARGUMENT


Troy Lee Bridges does not request oral argument.




                               vi
                             ISSUES PRESENTED


      1. The court below erred in accepting the punishment agreement
entered into by Bridges with the State, as neither the indictment (CR-4&5) nor
the State’s notice of intent to enhance (CR-54&55) alleged that Bridges was an
habitual offender.

      2. The punishment agreement entered into by Bridges with the State
was neither knowing nor voluntary, as Bridges was erroneously advised as to
the range of punishment to which he might have been subjected.

     3. Bridges received ineffective assistance of counsel in entering into the
punishment agreement with the State.




                                      vii
TO THE FOURTEENTH COURT OF APPEALS FOR THE STATE OF TEXAS:

      Appellant Troy Lee Bridges, convicted of aggravated assault with a

deadly weapon in No. 17438 in the 344th District Court of Chambers County,

Texas, appeals his sentence of confinement in the Texas Department of

Criminal Justice – Institutional Division for a term of 32 years.

                            STATEMENT OF FACTS

      Troy Lee Bridges was charged in No. 17438 with the second degree

felony offense of aggravated assault with a deadly weapon, the indictment

(CR-4&5) alleging that, on or about August 12, 2013, in Chambers County,

Texas, he intentionally or knowingly threatened Leann Ball with imminent

bodily injury by placing a firearm to her head, using or exhibiting a firearm

during the commission of the assault. The State, by notice of intent to enhance

(CR-54&55), further alleged six prior felony convictions for purposes of

enhancement.

      On August 11, 2014, jury voir dire was conducted (see RR7), and the

jury empanelled (RR7-194). On August 12, 2014, the jurors were sworn

(RR8-10), and Bridges plead not guilty (RR8-10&11). Thereafter, the State

presented three witnesses, and then rested (RR8-165).               Bridges rested

without presenting any witnesses, and without testifying on his own behalf.

RR8-166. After argument on behalf of Bridges (RR9-11-16) and on behalf of

                                        1
the State (RR9-16-28), the jury found Bridges guilty of aggravated assault

with a deadly weapon as charged in the indictment (CR-73 and RR9-34-35).

      Thereafter, an agreement was reached regarding punishment. RR9-

36&37. Bridges stipulated, in writing and in open court, that he had twice

previously been convicted of a felony, the second felony having been

committed after the first conviction had become final. CR-81 and RR9-52-54.

He plead true to the allegation of two prior felony convictions as identified in

his stipulation (RR9-55&56), and the court below sentenced him to

confinement in the Texas Department of Criminal Justice – Institutional

Division for a term of 32 years (CR-82&83, CR-85&86, and RR9-57&58).

                       SUMMARY OF THE ARGUMENT

      Bridges entered into a punishment agreement with the State. Prior to

entering into that agreement, voir dire by the State suggested that Bridges

was being tried as an habitual offender. Prior to entering into that agreement,

Bridges was directly admonished by both the court below and by his defense

counsel that he might have been subjected to a punishment range of 25 years

to 99 years, or life, if he proceeded to a contested punishment hearing. Yet

Bridges was not being tried as an habitual offender.




                                       2
                                 ARGUMENT

      1. The court below erred in accepting the punishment agreement
entered into by Bridges with the State, as neither the indictment (CR-4&5) nor
the State’s notice of intent to enhance (CR-54&55) alleged that Bridges was an
habitual offender.

      2. The punishment agreement entered into by Bridges with the State
was neither knowing nor voluntary, as Bridges was erroneously advised as to
the range of punishment to which he might have been subjected.

     3. Bridges received ineffective assistance of counsel in entering into the
punishment agreement with the State.

      Bridges was charged with, and tried for, the offense of aggravated

assault with a deadly weapon. CR-4&5 and RR8-10. Aggravated assault with a

deadly weapon is a second degree felony. Texas Penal Code § 22.02(a)(2) and

(b). The punishment range for a second degree felony is confinemant in the

Texas Department of Criminal Justice for any term of not less than 2 years,

and not more than 20, plus an optional fine not to exceed $10,000. Texas

Penal Code § 12.33.

      However, by its notice of intent to enhance, the State alleged six prior

felony convictions for purposes of enhancement. CR-54&55. The punishment

range for a second degree felony enhanced by one prior felony conviction is

that of a first degree felony, confinement in the Texas Department of Criminal

Justice for any term of not less than 5 years, and not more than 99 years, or



                                       3
life, plus an optional fine not to exceed $10,000. Texas Penal Code § 12.42(b)

and § 12.32.

      With the apparent intent to punish Bridges as an habitual offender, the

State alleged six prior felony convictions. CR-54&55. Texas Penal Code §

12.42(d) provides, in relevant part, as follows:

      … if it is shown on the trial of a felony offense … that the
      defendant has previously been finally convicted of two felony
      offenses, and the second previous felony conviction is for an
      offense that occurred subsequent to the first previous conviction
      having become final, on conviction the defendant shall be
      punished by imprisonment in the Texas Department of Criminal
      Justice for life, or for any term of not more than 99 years or less
      than 25 years. …

To punish a defendant as an habitual felony offender, the State is thus

required to allege and prove both two or more prior felony convictions, and

that one of those was for an offense committed after an earlier felony

conviction had become final.

      In order to invoke the provisions of § 12.42(d), it is necessary that each

succeeding conviction be subsequent both in point of time of the commission

of the offense and the conviction therefore. Seals v. State, 604 S.W.2d 899, 906

(Tex.App.-San Antonio 1982, no pet.). In order to invoke the provisions of the

habitual felony statute, it is necessary to show that each succeeding conviction

alleged for enhancement was subsequent both in point of time of the


                                        4
commission of the offense and the conviction therefor. McCarter v. State, 527

S.W.2d 296, 298 (Tex.Crim.App. 1975).

      Although the State’s notice of intent to enhance alleged six prior felony

convictions, it did not allege that any was for an offense committed after any

of the remaining five had become final.        Nevertheless, the assumption

throughout Bridges’ trial appears to have been that he was subject to

punishment as an habitual offender were he to be convicted, and were the

State to prove two or more of the prior convictions alleged. See RR7-118&119

– voir dire by the State, RR9-40 – admonishment of Bridges by the court

below, and RR9-40 – admonishment of Bridges by defense counsel.

      The stipulation of evidence (CR-81) signed by Bridges did list two prior

felony convictions, the second for an offense committed after the first had

become final. But that the second was for an offense committed after the first

had become final was not alleged in either the indictment or in the State’s

notice of intent to enhance.

      Bridges was erroneously advised as to the range of punishment to

which he might have been subjected. During voir dire, the State asked the

following:

      If there was a law or there was a way that this case could be
      enhanced and the punishment for the same offense was 25 to 99,
      could anybody – could everybody follow that range of

                                       5
      punishment, if that’s the law? Anybody on the first row got a
      problem with a minimum of 25 years and a maximum of life, or
      99?

RR7-118&119. There was no objection by defense counsel. Prior to accepting

the punishment agreement, the court below admonished Bridges as follows:

            And you realize that by doing this, that the full range of
      punishment comes open and it can vary? Obviously, if you have
      enhancement paragraphs, it can be 25 to 99, or life, if you don’t
      have some agreement.

RR9-40. There was no objection by defense counsel, who himself admonished

Bridges as follows:

           But for the agreement – what the Judge is saying, but for our
      agreement, the range of punishment was 25 to 99, or life.

RR9-40. Finally, the written plea admonishments, signed by Bridges, defense

counsel, the State, and the court below, identified Bridges as an habitual

offender, subject to confinement for life, or for any term of not more than 99

years or less than 25. CR-79&80.

      Bridges can only have relied on what he had been told. Immediately

after being erroneously admonished by the court below and defense counsel,

occurred the following:

The Defendant: Okay.

Mr. Dennison: Do you understand that?

The Defendant: Yeah.

                                      6
The Court: Okay.

Mr. Dennison: And that was the reason we reached this agreement.

The Defendant: Oh, okay. All right. Yes.

RR9-40.

      In fact, Bridges could not have been punished as an habitual offender.

Had he proceeded to a contested punishment phase of trial, he could have

been punished as a second degree felony offender, as a first degree felony

offender pursuant to Texas Penal Code § 12.42(b), or, arguably, as a first

degree felony offender with a prior felony conviction, pursuant to Texas Penal

Code § 12.42(c)(1), depending on the jury’s findings regarding the allegations

of six prior felony convictions.

      If the trial court properly admonished the defendant before a guilty plea

was entered, there is a prima facie showing the plea was both knowing and

voluntary. Houston v. State, 201 S.W.3d 212, 217 (Tex.App.-Houston [14th

Dist.] 2006, no pet.). There is no such showing with regard to the punishment

agreement entered into by Bridges – the court below erroneously advised him

as to the range of punishment to which he might have been subjected.

      A defendant in a criminal case has a constitutional right to the

reasonably effective assistance of counsel. Lopez v. State, 96 S.W.3d 406, 416

(Tex.App.-Austin 2002, pet. ref’d). This right does not mean errorless counsel,

                                       7
or counsel whose competency is judged by hindsight. Saylor v. State, 660

S.W.2d 822, 824 (Tex.Crim.App. 1983).       But the performance of Bridges’

defense counsel with respect to the punishment range to which Bridges might

have been subjected fell below an objective standard of reasonableness.

Defense counsel failed to object to voir dire by the State suggesting that the

punishment range might be 25 years to 99 years, or life. RR7-118&119.

Defense counsel failed to object when the court below admonished Bridges

that the punishment range might be “25 to 99, or life”. RR9-40. Defense

counsel himself erroneously admonished Bridges that “the range of

punishment was 25 to 99, or life.” RR9-40. Defense counsel failed to object to

the written plea admonishments identifying Bridges as an habitual offender,

subject to confinement for life, or for any term of not more than 99 years or

less than 25. CR-79&80.

      If a guilty plea is entered upon the advice of counsel, that counsel must

be competent and render effective assistance.        To prove his claim of

ineffective assistance, the defendant must show that counsel’s representation

fell below an objective standard of reasonableness, and that there is a

reasonable probability that, but for counsel’s defective performance, he would

not have plead guilty, and would have insisted upon going to trial. Pena v.

State, 132 S.W.3d 663, 668-669 (Tex.App.-Corpus Christi 2004, no pet.).

                                       8
      Bridges, of course, did not plead guilty, but the same standard applies to

a punishment agreement. The performance of Bridges counsel did in fact fall

below an objective standard of reasonableness. There is not only a reasonable

probability that, had he known of the correct punishment range, Bridges

would have rejected the agreement for 32 years confinement, but also that,

had all involved been aware of the correct punishment range, Bridges would

have been offered an agreement for a lower term of confinement.

                                      PRAYER

      Appellant Troy Lee Bridges accordingly prays that the Court reverse his

sentence of confinement in the Texas Department of Criminal Justice –

Institutional Division for a term of 32 years, and remand the case to the court

below for a new punishment hearing.

                                                 Respectfully submitted,
                                                 Troy Lee Bridges
                                                 Appellant

                                                 By: /s/ James F. Keegan
                                                     James F. Keegan
                                                     Texas Bar No. 11155400
                                                     4421 Jim West Street
                                                     Bellaire, Texas 77401
                                                     713-668-4797
                                                     whynyet@sbcglobal.net
                                                     Attorney for appellant




                                       9
                       CERTIFICATE OF COMPLIANCE

      I hereby certify that the word count for the brief of appellant, in its
entirety, is 2607 words.

                                                   /s/ James F. Keegan
                                                   James F. Keegan

                         CERTIFICATE OF SERVICE

      A copy of the brief of appellant was electronically served upon Eric
Carcerano, Assistant District Attorney, Chambers County, Anahuac, Texas
77514, ecarcerano@co.chambers.tx.us, using eFileTexas, on this the 12 th day
of February, 2015, but after 5:00 p.m.

                                                   /s/ James F. Keegan
                                                   James F. Keegan




                                     10
