Affirmed and Majority and Dissenting Opinions filed September 19, 2019.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00922-CR

                    ANTHONY WAYNE SYKES, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1513135

                    DISSENTING OPINION

      Appellant asserts on appeal that his trial counsel rendered ineffective
assistance by (1) advising Appellant to plead “no contest” to the misdemeanor
offense that formed the basis of the State’s motion to adjudicate probation;
(2) failing to review a video in advance that the State offered into evidence at the
hearing on the motion to adjudicate; and (3) failing to properly advise Appellant
regarding plea bargain offers. Because there is a reasonable probability that the
results of Appellant’s proceedings below would have been different but for the
 errors committed by trial counsel, I would sustain Appellant’s ineffective-
 assistance claim and reverse and remand this case to the trial court for further
 proceedings.

       A defendant has a guaranteed Sixth Amendment right under the United
 States Constitution to effective assistance of counsel. U.S. Const. amend VI; see
 also Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim. App. 2013). To establish
 ineffective assistance of counsel, a defendant must show by a preponderance of the
 evidence that (1) his trial counsel’s representation fell below an objective standard
 of reasonableness and (2) there is a reasonable probability that, but for trial
 counsel’s deficient performance, the result of the proceeding would have been
 different. Strickland v. Washington, 466 U.S. 668, 686 (1984); see also Ex parte
 Moore, 395 S.W.3d at 157. A defendant bears the burden of proving ineffective
 assistance of counsel by a preponderance of the evidence. Ex parte Moore, 395
 S.W.3d at 157.

I.     Trial Counsel’s Representation Fell Below an Objective Standard of
       Reasonableness.

       Under the first prong of the Strickland standard, a defendant must show that
 his trial counsel’s performance was deficient under prevailing professional norms
 and according to the necessity of the case. Strickland, 466 U.S. at 687-88; Ex
 parte Moore, 395 S.W.3d at 157. The defendant “must overcome the presumption
 that, under the circumstances, the challenged action might be considered sound
 trial strategy.” Strickland, 466 U.S. at 689.

       Allegations of ineffective assistance of counsel must be firmly rooted in the
 record. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see also Lopez
 v. State, 462 S.W.3d 180, 184 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
 Rather than limiting our review to a single portion of the representation, we

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examine the totality of the circumstances to determine counsel’s effectiveness.
Strickland, 466 U.S. at 688-90; see also Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999).

      Examining Appellant’s ineffective-assistance claim requires consideration of
the professional norms applicable to different components of a criminal
defendant’s representation.      A criminal defense attorney must have a firm
command of the facts of the case as well as the governing law before he or she can
render reasonably effective assistance to his client — both in and out of the
courtroom. Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982).
Counsel therefore has a duty to make reasonable investigations. Strickland, 466
U.S. at 691. “When assessing the reasonableness of an attorney’s investigation, we
consider the quantum of evidence known by the attorney to determine whether the
known evidence would have led a reasonable attorney to investigate further.” Ex
parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006).              Here, trial
counsel’s representation of Appellant was deficient in two respects: failing to
request or view the video in the underlying misdemeanor case and failing to advise
his client regarding all plea bargain offers.

      a.     Failure to request or view the video
      Trial counsel’s failure to timely request or view the video in the underlying
case falls below an objective standard of reasonableness.            The majority
acknowledges Melton v. State, 987 S.W.2d 72 (Tex. App.—Dallas 1998, no. pet.),
then proceeds to summarily discard its reasoning. In Melton, the Dallas Court of
Appeals concluded trial counsel’s representation fell below an objective standard
of reasonableness because counsel failed in his duty to determine with certainty
whether a video existed and whether Melton was depicted therein. Id. at 77. Here,
during the motion for new trial hearing, trial counsel testified that he (similarly)

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never requested a copy of the video he knew the State had in its possession and
that the first time he watched it was during the hearing on the motion to adjudicate
when it was presented in open court. The majority incorrectly infers that because
trial counsel technically learned of the contents of the video before Appellant’s
sentencing on the motion to adjudicate, he could have formulated a reasonable trial
strategy in his client’s best interest in that short period of time. This conclusion is
both irrational and ignores that the “challenged action” was the failure to request
and watch the video in a timely manner.

       b.      Failure to timely convey a plea bargain offer

       Additionally, the majority assumes (with no basis in fact) that Appellant
would have received a plea bargain offer of two years directly from the judge.
This assumption evidences a fundamental misunderstanding of criminal trial court
procedure in Texas. First, judges cannot offer a defendant a plea bargain; that is
the sole province of the State via its prosecuting attorney.1 Additionally, while the
attorneys for the State and the defense can (and often do) approach the judge
regarding proposed plea bargains, it is rarely done in the presence of the defendant
until the trial court is preparing to accept a plea agreement and all plea paperwork
has been completed.2          There is no evidence in the record that trial counsel
communicated any offer to his client, and certainly not that Appellant knew of an

       1
           “Only the state may offer or withdraw a plea bargain. Because a plea-bargain
agreement is solely between the state and the defendant, only the state and the defendant may
alter the terms of the agreement; the trial court commits error if it unilaterally adds unnegotiated
terms to a plea-bargain agreement.” Moore v. State, 285 S.W.3d 329, 332 (Tex. Crim. App.
2009); see also Byrd v. State, No. 14-15-00596-CR, 2016 WL 1660542, at *2 (Tex. App.—
Houston [14th Dist.] Apr. 26, 2016, no pet.) (mem. op., not designated for publication).
       2
          This is a truth proven via professional experience (and corroborated by other trusted
judges and attorneys with significant experience practicing and adjudicating criminal law), i.e.,
that the judge, the attorneys, and the defendant rarely discuss such matters before plea paperwork
has been signed. Neither record citations nor legal authorities are necessary to prove this
practical knowledge.

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  offer from the judge. Trial counsel testified at the motion for new trial hearing that
  Appellant had at one point been extended an offer for two years but his strategy
  was to get him on probation to avoid a felony conviction. He did not testify that he
  ever conveyed that offer to Appellant. Conversely, Appellant’s testimony was
  uncontroverted: “Q: [Y]ou stated that you asked [your attorney] if you could avoid
  a hearing and sign for two years TDC. A: That’s correct. Q: And did he ever give
  you a definitive answer to that? A: No. That he said there was an offer, but it
  wasn’t exactly the two years.”

        The totality of the trial counsel’s representation and testimony at the motion
  for new trial hearing supports the conclusion that his representation fell below an
  objective standard of reasonableness. See Strickland, 466 U.S. at 687-88.

II.     There is a Reasonable Probability That, but for Trial Counsel’s
        Deficient Performance, the Outcome of the Proceedings Would Have
        Been Different.
        Under the second prong of the Strickland standard, a defendant must show
  that he was prejudiced by his attorney’s performance or that “there is a reasonable
  probability that, but for counsel’s unprofessional errors, the result of the
  proceeding would have been different.” Id. at 694. Appellants alleging ineffective
  assistance of counsel frequently assert attorney error was made during the course
  of the proceedings (e.g., counsel failed to make a timely objection on the record or
  to preserve a ruling for the appellate court to review). In such cases, a defendant
  can show prejudice only by showing “‘a reasonable probability that, but for
  counsel’s unprofessional errors, the result of the proceeding would have been
  different.’” Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000) (quoting Strickland,
  466 U.S. at 694).

        In this case, it is clear that if trial counsel had performed the basic functions


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of his duty to Appellant and simply requested and watched the video in question
prior to the adjudication hearing, he would have been able to effectively advise his
client on whether to take any of the plea bargain terms that were offered (but not
conveyed) before the hearing — all of which were for less prison time than the
judge eventually ordered (thereby evidencing harm). Because his attorney did
none of those things, his representation clearly fell below an objective standard of
reasonableness. There is a reasonable probability that Appellant would have taken
a plea bargain for fewer than nine years in prison but for trial counsel’s ineffective
assistance.

         Thus, because the results of Appellant’s proceedings would have been
different, I would sustain his ineffective-assistance claim and reverse for a new
trial.


                                       /s/       Meagan Hassan
                                                 Justice


Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan
(Zimmerer, J., majority).




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