                                                                                ACCEPTED
                                                                            06-15-00038-CR
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       7/15/2015 3:01:38 PM
                                                                           DEBBIE AUTREY
                                                                                     CLERK




                 ORAL ARGUMENT WAIVED
                                                           FILED IN
                                                    6th COURT OF APPEALS
   CAUSE NOS. 06-15-00038-CR, 06-15-00039-CR,   06-15-00040-CR
                                                      TEXARKANA, TEXAS
                                                    7/15/2015 3:01:38 PM
                           IN THE                       DEBBIE AUTREY
                                                            Clerk

                     COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

             ROBERT BRICE DAUGHERTY, Appellant

                              V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

ON APPEAL FROM THE 6TH DISTRICT COURT OF LAMAR COUNTY;
            TRIAL COURT NOS. 25928, 25958 & 25886;
               HONORABLE ERIC CLIFFORD, JUDGE
____________________________________________________________


  APPELLEE’S (STATE’S) BRIEF
____________________________________________________________


                         Gary D. Young, County and District Attorney
                         Lamar County and District Attorney’s Office
                         Lamar County Courthouse
                         119 North Main
                          Paris, Texas 75460
                          (903) 737-2470
                          (903) 737-2455 (fax)

                       ATTORNEYS FOR THE STATE OF TEXAS
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       -i-
                                    TABLE OF CONTENTS

                                                                                             PAGE NO:

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

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

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . .                           iv

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . .                              vi

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . .                                                   vii

ISSUE PRESENTED IN REPLY . . . . . . . . . . . . . . . . . . . . . .                              viii

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                    1

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .                          2

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . .                                     6

ARGUMENT AND AUTHORITIES

         SOLE ISSUE PRESENTED IN REPLY: WITH A
         SILENT APPELLATE RECORD, THE APPELLANT,
         DAUGHERTY, DID NOT OVERCOME THE
         PRESUMPTION OF REASONABLE ASSISTANCE OF
         COUNSEL; NOR COULD DAUGHERTY SHOW A
         REASONABLE PROBABILITY UNDER THE
         THREE-PART ARGENT TEST WITHOUT THE
         STATEMENTS OF COUNSEL, CLIENT AND TRIAL
         COURT AT A HEARING; AND FINALLY, DAUGHERTY
         COULD NOT PROVE ANY OF THE THREE-PART
         ARGENT TEST. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                     7

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        16


                                                      -ii-
                                                                             PAGE NO:

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . .                  17

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . .         17




                                           -iii-
                                  INDEX OF AUTHORITIES

CASES:                                                                                         PAGE:

Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) . . .                                      8

Brennan v. State, 334 S.W.3d 64, 71 (Tex. App.--Dallas
     2009, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            8,9

Clark v. State, 324 S.W.3d 620, 633 (Tex. App.--Fort
      Worth 2010, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . .                  8,9

Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim.
      App. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       6,10,14

Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston
     [1st Dist.] 1996, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . .                   9

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
      App. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .            9

Martin v. State, 265 S.W.3d 435, 442 (Tex. App.--Houston
      [1st Dist.] 2007, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . .                9

Missouri v. Frye, ___ U.S. ___, 32 S.Ct. 1399, 1405,
     182 L.Ed.2d 379 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . .                    10

Piland v. State, 453 S.W.3d 473, 475-76 (Tex. App.--Texarkana
      2014, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7,8,9,10,11,12,14,15

Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999) . .                                      7

Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.
      2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .         8

Smith v. State, 84 S.W.3d 36, 42 (Tex. App.--Texarkana 2002,
      no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        9


                                                      -iv-
CASES:                                                                                    PAGE:

Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052,
       80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . .           7

Walker v. State, 406 S.W.3d 590, 600 (Tex. App.--Eastland
     2013, pet. ref’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .       8




STATUTES:                                                                                 PAGE:

TEX. R. APP. P. 33.1 (a) (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .         12

TEX. R. APP. P. 38.1(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      vi

TEX. R. APP. P 38.2(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        vi

TEX. R. APP. P. 38.2(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . .           i




                                                  -v-
                      STATEMENT OF THE CASE

        The appellant (Daugherty) perfected these appeals from the trial

court’s final judgments that convicted him as a habitual offender, as follows:

Cause #      Appellate Cause #         Criminal Offenses/Convictions

25928        06-15-00038-CR            Possession with intent to deliver a
                                       controlled substance, namely,
                                       methamphetamine of more than four
                                       grams but less than two hundred
                                       grams in a drug free zone (count 1).
                                       See CR (25928), pgs. 115-116.

25958        06-15-00039-CR            Delivery of a controlled substance,
                                       namely, methamphetamine of more
                                       than four grams but less than two
                                       hundred grams. See CR (25958), pgs.
                                       112-113.

25886        06-15-00040-CR            Possession with intent to deliver a
                                       controlled substance, namely,
                                       methamphetamine of more than four
                                       grams but less than two hundred
                                       grams in a drug free zone. See CR
                                       (25886), pgs. 42-43.

        By these appeals, which were consolidated by both parties for

purposes of their respective briefs, Daugherty raised a single issue/point of

error, which contended that he was denied effective assistance of counsel

because his trial counsel allegedly failed to communicate a plea offer that he

would have been accepted had he been so informed.



                                     -vi-
           STATEMENT REGARDING ORAL ARGUMENT

      The State of Texas will waive oral argument. See Tex. R. App. P.

38.1(e), 38.2(a)(1).




                                 -vii-
           SOLE ISSUE PRESENTED IN REPLY

SOLE ISSUE PRESENTED IN REPLY:      WITH A SILENT
APPELLATE RECORD, THE APPELLANT, DAUGHERTY, DID
NOT OVERCOME THE PRESUMPTION OF REASONABLE
ASSISTANCE OF COUNSEL; NOR COULD DAUGHERTY SHOW A
REASONABLE PROBABILITY UNDER THE THREE-PART
ARGENT TEST WITHOUT THE STATEMENTS OF COUNSEL,
CLIENT AND TRIAL COURT AT A HEARING; AND FINALLY,
DAUGHERTY COULD NOT PROVE ANY OF THE THREE-PART
ARGENT TEST.




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

                                   IN THE

                           COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
____________________________________________________________

                ROBERT BRICE DAUGHERTY, Appellant

                                      V.

                 THE STATE OF TEXAS, Appellee
____________________________________________________________

ON APPEAL FROM THE 6TH DISTRICT COURT OF LAMAR COUNTY;
           TRIAL COURT NOS. 25928, 25958 & 25886;
              HONORABLE ERIC CLIFFORD, JUDGE
____________________________________________________________

       APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

TO HONORABLE SIXTH COURT OF APPEALS:

      COMES NOW, the State of Texas, by and through its Lamar County

and District Attorney’s Office, files this its Appellee’s Brief under Rule 38.2

of the Texas Rules of Appellate Procedure.

      Unless otherwise indicated, Robert Brice Daugherty will be referred

to as “Daugherty” or “the appellant.” The State of Texas will be referred to

as “the State” or “appellee.”


                                      -1-
                              STATEMENT OF FACTS

         Cause Number 25886.

         In August of 2014, a grand jury in Lamar County returned an original

indictment that charged Daugherty, as a habitual offender, with felony

offenses that allegedly occurred on or about June 3, 2014.                        By this

indictment, the State charged Daugherty with one count of possession with

intent to deliver a controlled substance, namely, methamphetamine of more

than four grams but less than two hundred grams in a drug free zone. See

CR (25886), pgs. 7-9. The State also charged Daugherty with two counts of

possession of a controlled substance, namely Diazepam (count 2) and

Hydrocodone (count 3) of less than twenty eight grams in a drug free zone.

See CR (25886), pg. 8.1

         Cause Number 25928.

         In September of 2014, a grand jury in Lamar County returned an

original indictment that charged Daugherty, as a habitual offender, with

felony offenses that allegedly occurred on or about July 15, 2014. See CR

(25928), pgs. 8-9. By this indictment, the State charged Daugherty with one

count of possession with intent to deliver a controlled substance, namely,

1
    At the time of trial, the State abandoned counts two and three, as well as the drug-free

zone allegation. See RR, pg. 8; CR (25886), pg. 42.

                                             -2-
methamphetamine of more than two hundred grams in a drug free zone. See

CR (25928), pgs. 8-9. The State also charged Daugherty with a second

count of possession of a controlled substance, namely Hydrocodone of less

than twenty eight grams in a drug free zone. See CR (25928), pg. 9.

         Cause Number 25958.

         In September of 2011, a grand jury in Lamar County also returned an

original indictment that charged Daugherty with the felony offense of

delivery of a controlled substance, namely, methamphetamine of more than

four grams but less than two hundred grams in a drug free zone.2 See CR

(25958), pg. 5.

         Hearing on Motion to Withdraw: November 7, 2014.

         On November 7, 2014, the trial court proceeded with a hearing on a

motion to withdraw as counsel “in all three cases.” See Defendant’s Exhibit

3, pgs. 1, 4.         The trial court granted the motion to withdraw.                    See

Defendant’s Exhibit 3, pg. 6.

         During the hearing, the prosecutor announced in open court that the

State “started with an offer of 50, even went to down to 40 [and] those offers

were declined.” See Defendant’s Exhibit 3, pg. 7. In response, Daugherty

stated, “I know that at some point there was some mention of a 40 years and
2
    At the time of trial, the State abandoned the drug free zone allegation. See RR, pg. 8.

                                              -3-
-- in a correspondence between Dianne and -- and attorney -- I mean, district

attorney, but I never did hear of any plea for 40 years --.” See Defendant’s

Exhibit 3, pg. 7.

         To that remark, the trial judge stated, “I’m going to appoint you a new

lawyer.” See Defendant’s Exhibit 3, pg. 7. The trial judge admonished

Daugherty to “make sure that you bring this issue up with the new attorney.”

See Defendant’s Exhibit 3, pg. 8. Daugherty acknowledged, “okay.” See

Defendant’s Exhibit 3, pg. 8. At the conclusion of the hearing, the trial court

granted the motions to withdraw and agreed to “appoint new counsel today.”

See Defendant’s Exhibit 3, pg. 15.

         Jury Trial Setting, Open Plea and Punishment Hearing.

         On February 11, 2015, the trial court called “the Daugherty case” for

jury trial. See RR, pg. 6. The trial court inquired, “[w]hat two cause

numbers did we consolidate for trial?” See RR, pg. 7. The prosecutor

responded that cause numbers 25958, which was a delivery case, and 25928,

which was referred to as “the search warrant case.” See RR, pg. 7. The trial

court understood that “the parties ha[d] reached a plea agreement.” See RR,

pg. 7.

         As part of the plea agreement, Daugherty agreed to plead “open” to



                                        -4-
the trial court “in all the cases.” See RR, pg. 8. Daugherty agreed to plead

“true” to the enhancement of habitual offender in all the cases, with all these

sentences to run concurrently. See RR, pgs. 8-9. There would be a drug-free

zone finding in cause number 25928 only. See RR, pg. 9.

      The trial court admonished Daugherty and released the jury. See RR,

pg. 25. The trial court then began the punishment hearing, and both sides

announced ready. See RR, pgs. 26-27.

      At the conclusion of the punishment hearing, the trial court

pronounced sentence. See RR, pg. 95. The trial court sentenced Daugherty

to “life in prison” with “those sentences to run concurrently or at the same

time.” See RR, pg. 95.

      The Final Judgments of Conviction and Notices of Appeal.

      On February 11th, the trial court signed its final judgments of

conviction by court--waiver of jury trial. See CR (25928), pgs. 115-116; CR

(25958), pgs. 112-113; CR (25886), pgs. 42-43.

      On February 18, 2015, Daugherty filed his notices of appeal. See CR

(25928), pg. 126; CR (25958), pg. 123; CR (25886), pg. 44.

      Proceedings in this Court of Appeals.

      On or about February 19, 2015, Daugherty filed his notices of appeal



                                      -5-
in this Court. The official court reporter filed the Reporter’s Record on or

about March 31, 2015. The district clerk filed the Clerk’s Record on or

about April 14, 2015. Daugherty, the appellant, then filed his brief on May

15, 2015.

      On or about June 12th, the State filed its motion to extend time, which

this Court granted. The State will be timely filing its brief on July 15, 2015.

                   SUMMARY OF THE ARGUMENT

      In summary, Daugherty’s claim of ineffective assistance of counsel

was not established. See generally Ex parte Argent, 393 S.W.3d 781, 784

(Tex. Crim. App. 2013); Piland v. State, 453 S.W.3d 473, 475-76 (Tex.

App.--Texarkana 2014, no pet.).        To elaborate, Daugherty’s claim of

ineffective assistance was not established for the following reasons:

      (1)    Daugherty did not overcome the presumption of reasonable

assistance of counsel with a silent record. Daugherty did not file a motion

for new trial or request any post-trial hearing. (2) Daugherty could not

show a “reasonable probability” under the three-part Argent test without “the

statements of counsel, client and trial court.” See Piland, 453 S.W.3d at

476. (3) Daugherty could not prove any part of the three-part Argent test.

      For the reasons above, the appellant’s, Daugherty’s, sole issue/point



                                      -6-
of error should be overruled. The trial court’s final judgments of conviction

should be affirmed in cause numbers 25928, 25958 and 25886.

                   ARGUMENT AND AUTHORITIES

SOLE ISSUE PRESENTED IN REPLY:      WITH A SILENT
APPELLATE RECORD, THE APPELLANT, DAUGHERTY, DID
NOT OVERCOME THE PRESUMPTION OF REASONABLE
ASSISTANCE OF COUNSEL; NOR COULD DAUGHERTY SHOW A
REASONABLE PROBABILITY UNDER THE THREE-PART
ARGENT TEST WITHOUT THE STATEMENTS OF COUNSEL,
CLIENT AND TRIAL COURT AT A HEARING; AND FINALLY,
DAUGHERTY COULD NOT PROVE ANY OF THE THREE-PART
ARGENT TEST.

      A.     Standard of Review: Ineffective Assistance of Counsel.

      The standard for testing claims of ineffective assistance of counsel is

set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). See Piland v. State, 453 S.W.3d 473, 475 (Tex. App.--

Texarkana 2014, pet. dism’d). To prevail on such a claim, an appellant must

prove by a preponderance of the evidence (1) that his or her counsel’s

representation fell below an objective standard of reasonableness and (2)

that the deficient performance prejudiced the defense.      See Piland, 453

S.W.3d at 475 (citing Strickland, 466 U.S. at 689; Rosales v. State, 4 S.W.3d

228, 231 (Tex. Crim. App. 1999). To meet this burden, the appellant must

prove that the attorney’s representation fell below the standard of prevailing



                                     -7-
professional norms and that there is a reasonable probability that, but for the

attorney’s deficiency, the result of the trial would have been different. See

Piland, 453 S.W.3d at 475.

     B.   With a Silent Record in the Present Case, Daugherty Did
Not Overcome the Presumption of Reasonable Assistance of Counsel.

      Trial counsel should ordinarily be given an opportunity to explain his

(or her) actions before being denounced as ineffective. See Brennan v. State,

334 S.W.3d 64, 71 (Tex. App.--Dallas 2009, no pet.) (citing Bone v. State,

77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (“His counsel should ordinarily

be accorded an opportunity to explain her actions before being condemned

as unprofessional and incompetent.”).       See also Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003) (“trial counsel should ordinarily be

afforded an opportunity to explain his actions before being denounced as

ineffective.”). Generally, a silent record that provides no explanation for

counsel’s actions will not overcome the strong presumption of reasonable

assistance. See Walker v. State, 406 S.W.3d 590, 600 (Tex. App.--Eastland

2013, pet. ref’d); Brennan, 334 S.W.3d at 71; Clark v. State, 324 S.W.3d

620, 633 (Tex. App.--Fort Worth 2010, pet. ref’d).

      In the present case, Daugherty did not file a motion for new trial, and

the record was silent to provide any explanation for counsel’s actions. See

                                      -8-
Clark, 324 S.W.3d at 633. See also Martin v. State, 265 S.W.3d 435, 442

(Tex. App.--Houston [1st Dist.] 2007, no pet.) (“Appellant did not file a

motion for new trial and no hearing was held on the ineffectiveness claim,

during which the matter could have been developed in the record.”); Gamble

v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.)

(there was no motion for new trial hearing in the instant case, and therefore

the record is silent). Further, the presumption of sound trial strategy was not

overcome as to those issues which were not presented to the trial court in

any motion for new trial, or argued at any new trial hearing. See Brennan,

334 S.W.3d at 73.

      Because the record was silent, this Court should not speculate as to

defense counsel’s tactics or guess what the reasons might be for taking, or

not taking, certain actions. See Smith v. State, 84 S.W.3d 36, 42 (Tex. App.-

-Texarkana 2002, no pet.) (citing Jackson v. State, 877 S.W.2d 768, 771

(Tex. Crim. App. 1994)). On this basis alone, Daugherty’s sole issue/point

of error should be overruled.

     C.     Even Further, Daugherty Could Not Show a Reasonable
Probability Under the Three-Part Argent Test Without the Statements
of Counsel, Client and Trial Court at a Hearing.

      1.     The Three-Part Argent Test, As Interpreted in Piland.



                                      -9-
      Failure of a criminal defense counsel to inform his or her client of plea

offers made by the State falls below an objective standard of professional

reasonableness. See Piland, 453 S.W.3d at 475. In Ex parte Argent, 393

S.W.3d 781 (Tex. Crim. App. 2013), the Texas Court of Criminal Appeals

“continued to agree that substandard representation was shown, but adopted

a higher threshold to show that the defendant was prejudiced.” See Piland,

453 S.W.3d at 475 (citing Argent, 393 S.W.3d at 784). In so doing, the

court applied the three-part test announced in Missouri v. Frye, ___ U.S.

___, 32 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012). See Piland, 453 S.W.3d

at 475.

      Now, to establish prejudice from the ineffective assistance of counsel

because defense counsel does not tell his or her client about a plea offer, the

appellant must show a reasonable probability that (1) he or she would have

accepted the offer if it had been communicated; (2) the prosecution would

not have withdrawn the offer; and (3) the trial court would have accepted the

plea agreement. See id. at 475-76 (citing Argent, 393 S.W.3d at 784). A

“reasonable probability” was “a probability sufficient to undermine

confidence in the outcome.” See Piland, 453 S.W.3d at 476. In other

words, the question was whether it was reasonably likely that the outcome



                                     -10-
would have been different as a result. See id. “The likelihood of a different

result must be substantial.” See id.

      In Piland, this Court went on to hold that “[t]he only way in which

such a probability can be assessed on direct appeal is through the statements

of counsel, client and trial court.” See Piland, 453 S.W.3d at 476. In

Piland, this Court reasoned that “Argent does not mandate that evidence on

the subject be taken at a hearing.” See id.

      2.   In the Present Case, Daugherty Could Not Show a
Reasonable Probability Under the Three-Part Argent Test Without the
Statements of Counsel, Client and Trial Court at a Hearing.

      While the Piland opinion did not require that “evidence on the subject

be taken,” the present case was factually distinguishable because a hearing

was not even conducted to take “the statements of counsel, client and trial

court.” See id. In Piland, “appellate counsel stated that the offer was made

and that offer remained available, as shown by the subsequent plea offer

signed during the course of [the] appeal, in which the State reoffered Piland

its original three-year deal.” See id. But here, no statement of counsel was

ever taken at any hearing.

      Put simply, Daugherty could not show a “reasonable probability”

under the three-part Argent test without “the statements of counsel, client



                                       -11-
and trial court.” See Piland, 453 S.W.3d at 476. Any such “statements of

counsel, client and trial court” should have been preserved for appellate

review by a complaint to the trial court in a timely request, objection, or

motion. See Tex. R. App. P. 33.1(a)(1). Because “the statements of counsel,

client and trial court” were not preserved for review, Daugherty could not

show a “reasonable probability” and his sole issue/point of error should be

overruled.

     D-1. The Claim of Ineffective Assistance Was Not Established
Because the Evidence Did Not Prove that Daugherty Would Have
Accepted the 40-Year Offer.

      In his brief, Daugherty relied on “evidence” that an offer of 40 years

was made, and that he testified at the November 2014 hearing that he was

never made aware of the offer. See Appellant’s Brief, pg. 13. Assuming

that to be truthful, the “evidence” and “statements of counsel” proved

otherwise.

      During the November 7th hearing, Daugherty’s counsel stated that the

40-year offer had been communicated to him:

            MS. SPRAGUE: -- put my two cents’ worth in on that,
      on the offer and the counter that was made by Mr. Daugherty?
      This was made before he was indicted, that offer on any of the
      cases, three cases. The counter-offer was 15 years that was
      approved by Mr. Daugherty. That’s what happened to the 40-
      year offer.

                                    -12-
See Defendant’s Exhibit 3, pg. 8. That proved communication of the offer.

      As “evidence” above, the “statement of counsel” proved, or at least

inferred, that the 40-year offer had been communicated to Daugherty before

the State indicted him on the three cases. See Defendant’s Exhibit 3, pg. 8.

Instead of accepting that 40-year offer, the “statement[] of counsel” proved,

or at least inferred, that Daugherty rejected that 40-year offer and approved a

counter-offer for 15 years. See Defendant’s Exhibit 3, pg. 8.

      In addition to the “statement[] of counsel” above, the prosecutor

stated in an e-mail dated November 13, 2014 that read in part:

      I also offered to go down to 40 if he would plead before we got
      to the grand jury date for the second and third cases. Mr.
      Daugherty said last week (at the Motion Withdraw hearing) that
      he never knew I’d offered 40. I’m not sure I believe that
      because Dianne [Sprague] told me a month ago that her client
      wanted to know if the 40 year offer was still on the table; I told
      her no. . . .

See CR (25928), pg. 96. That would corroborate Ms. Sprague’s statement.

      According to “the statements of counsel” above, Daugherty could not

prove that he would have accepted the 40-year offer because the “evidence”

established that the offer had been communicated to him, and that he

rejected that offer by approving a counter-offer for 15 years.             See

Defendant’s Exhibit 3, pg. 8. Thus, Daugherty could not satisfy the first



                                     -13-
prong of the Argent test. Cf. Piland, 453 S.W.3d at 476. Further, Daugherty

could not prove a “reasonable probability” of a different result or outcome.

See Piland, 453 S.W.3d at 476 (the likelihood of a different result must be

substantial). Accordingly, Daugherty’s sole issue/point of error should be

overruled.

     D-2. The Claim of Ineffective Assistance of Counsel Was Not
Established Because the Evidence Proved that the Prosecution
Withdrew the Offer.

      In his brief, Daugherty alleged that “[t]he record also establishes a

reasonable probability that the state would not have withdrawn this offer.”

See Appellant’s Brief, pg. 13. To the contrary, Daugherty’s own counsel put

her “two cents’ worth in” to state that “[t]he counter-offer was 15 years that

was approved by Mr. Daugherty. That’s what happened to the 40-year

offer.” See Defendant’s Exhibit 3, pg. 8.

      As set forth above, Daugherty’s counsel asked, “if the 40 year offer

was still on the table” and the prosecutor stated in her November 13th e-mail,

“I told her no.” See CR (25928), pg. 96. Thus, Daugherty could not satisfy

the second prong of the Argent test.        Cf. Piland, 453 S.W.3d at 476.

Similarly, Daugherty could not prove a “reasonable probability” of a

different result or outcome. See Piland, 453 S.W.3d at 476 (the likelihood



                                     -14-
of a different result must be substantial).        Again, Daugherty’s sole

issue/point of error should be overruled.

     D-3. The Claim of Ineffective Assistance of Counsel Was Not
Established Because No Evidence Was Presented that the Trial Court
Would Have Accepted the Agreement.

      In his brief, Daugherty alleged that the record establishes a reasonable

probability that the trial judge would have accepted the 40 year offer. See

Appellant’s Brief, pg. 14. However, there was nothing to establish or refute

this allegation in the present case, as was the case in Piland. See id. As in

Piland, Daugherty’s briefing made no statement about the trial judge’s

practice, mental state or reaction to such an agreement. See id. In fact, here,

the trial judge was Bill Harris, who was sitting in place of the presiding

judge Eric Clifford, and there was no briefing about the practice of Judge

Harris, who usually sits in the County Court at Law of Lamar County.

      In conclusion, Daugherty could not satisfy the third prong (or any

prong) of the Argent test.     Cf. Piland, 453 S.W.3d at 476.       Likewise,

Daugherty could not prove a “reasonable probability” of a different result or

outcome. See Piland, 453 S.W.3d at 476 (the likelihood of a different result

must be substantial). Based on the rationale expressed above, Daugherty’s

sole issue/point of error should be overruled, and the final judgments of



                                     -15-
conviction should be affirmed in all respects.

                                   PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission of the above-styled and numbered causes without

oral argument, this Court affirm the trial court’s final judgments of

conviction in cause numbers 25928, 25958 and 25886; adjudge court costs

against the appellant; and for such other and further relief, both at law and in

equity, to which it may be justly and legally entitled.

                          Respectfully submitted,

                          Gary D. Young
                          Lamar County & District Attorney
                          Lamar County Courthouse
                          119 North Main
                          Paris, Texas 75460
                          (903) 737-2470
                          (903) 737-2455 (fax)

                          By:_____________________________________
                               Gary D. Young, County Attorney
                               SBN# 00785298
                               gyoung@co.lamar.tx.us

                          ATTORNEYS FOR THE STATE OF TEXAS




                                      -16-
                  CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “Appellee’s (State’s) Brief” was a computer-generated document and

contained 4160 words--not including the Appendix, if any. The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the Appellee’s (State’s) Brief has been served on the 15th day of

July, 2015 upon the following:

            Don Biard
            McLaughlin, Hutchison & Biard
            38 First Northwest
            Paris, TX 75460

                                      ______________________________
                                      GARY D. YOUNG
                                      gyoung@co.lamar.tx.us




                                    -17-
