                                Fourth Court of Appeals
                                       San Antonio, Texas
                                               OPINION
                                          No. 04-12-00341-CR

                                     Israel Ytuarte RODRIGUEZ,
                                               Appellant

                                                    v.

                                         The STATE of Texas,
                                               Appellee

                      From the 175th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2006CR2310
                             Honorable Mary D. Román, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: February 5, 2014

REVERSED AND REMANDED

           The State has filed a motion for rehearing alleging error in this court’s opinion. In support

of its motion, the State filed a supplemental reporter’s record from a hearing held by the original

trial judge at the time she recused herself from appellant’s case. In light of the supplemental

record, this court’s opinion and judgment dated October 2, 2013, are withdrawn, and this opinion

and judgment are substituted. The State’s motion for rehearing is denied.

           In multiple points of error, Appellant claims that he was entitled to a ten-year plea-bargain

offer from the State and that the trial court was required to accept the ten-year plea agreement.
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One of the reasons Appellant claims he is entitled to the ten-year plea-bargain offer is because he

received ineffective assistance of counsel during the plea negotiations. Thus, he argues, the proper

remedy under Lafler v. Cooper 1 is to require the State to reinstate its ten-year plea-bargain offer

and to require the trial court to accept the plea agreement. The State argues that the trial court was

free to exercise its discretion in rejecting the ten-year plea agreement so there was no error. We

reverse the judgment of the trial court, concluding the State was required to reoffer the ten-year

plea bargain after the original trial judge, the Honorable Lori Valenzuela, recused herself.

                                            BACKGROUND

           Appellant was charged with three counts of sexual assault of a child, six counts of

indecency with a child by contact, and one count of indecency with a child by exposure. The State

also filed a notice of enhancement based on a prior conviction. Before trial, the State offered

Appellant a plea bargain recommending that he serve ten years in prison. Based on advice from

his trial counsel, Appellant declined the State’s offer and proceeded to trial. The jury found

Appellant guilty on nine of the counts, found the enhancement to be true, and returned a verdict of

eight life sentences and one twenty-year sentence. Appellant was sentenced accordingly.

           After trial, Appellant retained new counsel and filed a motion for new trial. The motion

for new trial alleged that trial counsel provided ineffective assistance of counsel during the plea

negotiations and trial, including a claim that erroneous advice led Appellant to reject a favorable

plea bargain offered by the State. Attached to the motion was an affidavit by trial counsel stating

that this was his first criminal jury trial and that he provided ineffective assistance due to his lack

of experience and knowledge in criminal law. After a hearing, the trial judge granted Appellant’s




1
    132 S. Ct. 1376 (2012).

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motion for new trial and also granted Appellant’s motion to require the State to reinstate its

plea-bargain offer of ten years.

         As ordered, the State reinstated its ten-year offer, and Appellant accepted it. The plea

agreement was presented to the trial judge, and she admonished Appellant and accepted his

stipulations of guilt. The trial judge then rejected the plea agreement and advised Appellant that

he had the option to withdraw his guilty plea and proceed to trial or to accept a sentence of

twenty-five years in prison. Appellant rejected the twenty-five year sentence.

         The following morning, Appellant presented a motion to recuse the trial judge based on an

alleged demonstration of prejudice. That same day, the trial judge signed an order voluntarily

recusing herself from the case. Appellant’s case was subsequently assigned to the Honorable Mary

Román, and Appellant filed another motion to require the State to reinstate its plea-bargain offer

of ten years. After hearing the parties’ arguments regarding the motion to reinstate, Judge Román

declared that “the slate [was] wiped clean” by the original trial judge’s recusal. Thus, Judge

Román stated that she had two options: (1) to accept a new plea agreement if one were reached; or

(2) to proceed to trial.

         The State offered Appellant a plea bargain of twenty-five years in prison, and he accepted

it. As part of the agreement, Appellant pled guilty to five of the counts in exchange for the State’s

waiver of the other five counts. This plea agreement was accepted by Judge Román, and she

signed judgments of conviction on the five counts. Appellant timely filed his notice of appeal. 2



2
  The State claims Appellant has not preserved his complaint under Article 44.02 of the Texas Code of Criminal
Procedure because he did not file a written motion asserting his right to enforce the original ten-year plea-bargain
offer. See TEX. CODE CRIM. PROC. ANN. art. 44.02 (West 2006). We disagree. Appellant filed his motion for
reinstatement of the ten-year plea-bargain offer in both the original trial judge’s and Judge Román’s courts, and both
motions specifically argued his entitlement to the ten-year sentence recommended in the original plea-bargain offer.
Further, Judge Román certified Appellant’s right to appeal under Texas Rule of Appellate Procedure 25.2(a)(2). See
TEX. R. APP. P. 25.2(a)(2)(A) (permitting appeal of matters raised by written motion in cases where the judgment was
entered pursuant to a plea bargain).

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                                        STANDARD OF REVIEW

           A defendant’s Sixth Amendment right to effective assistance of counsel extends to all

critical stages of trial, including the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376,

1384, 1385 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012). A claim of ineffective

assistance of counsel during plea negotiations is generally governed by the same two-prong

standard announced in Strickland v. Washington. 3 Lafler, 132 U.S. at 1384–85; Frye, 132 S. Ct.

at 1405. The first prong of the Strickland standard, referred to as the performance prong, requires

a showing “that counsel’s representation fell below an objective standard of reasonableness.”

Strickland, 466 U.S. 668, 688 (1984); see also Lafler, 132 S. Ct. at 1384. The second prong of the

Strickland test requires the defendant to demonstrate that counsel’s ineffective assistance of

counsel caused prejudice. Strickland, 466 U.S. at 694; see also Lafler, 132 S. Ct. at 1384.

           To establish prejudice in the plea-bargaining process, “a defendant must show the outcome

of the plea process would have been different with competent advice.” Lafler, 132 S. Ct. at 1384;

Frye, 132 S. Ct. at 1410. Where counsel’s ineffective assistance causes a defendant to imprudently

reject a plea-bargain offer and stand trial, the defendant must show there is reasonable probability

that: (1) the defendant would have accepted the plea; (2) the prosecution would not have withdrawn

the plea; and (3) the court would have accepted the terms of the agreement and “the offer’s terms

would have been less severe than under the judgment and sentence that in fact were imposed.”

Lafler, 132 S. Ct. at 1385; Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App. 2013).

           The Supreme Court has defined “a reasonable probability” as “a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In other words, a reviewing

court must determine “whether it is ‘reasonably likely’ the result would have been different.”



3
    466 U.S. 668 (1984).

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Harrington v. Richter, 131 S. Ct. 770, 791–92 (2011). “This does not require a showing that

counsel’s actions ‘more likely than not altered the outcome,’” but “[t]he likelihood of a different

result must be substantial.” Id. at 792. Claims of ineffective assistance of counsel made in state

court are construed in accordance with federal law. Ex parte Argent, 393 S.W.3d at 784.

                                            DISCUSSION

       A. Trial Counsel’s Performance

       In this case, Appellant filed a motion for new trial alleging that trial counsel provided

ineffective assistance of counsel to Appellant during the pretrial, trial, and punishment phases of

his case. Specifically, the motion stated that trial counsel’s complete lack of criminal trial

experience led trial counsel to advise Appellant that it would be easy to obtain an acquittal. The

motion also details the alleged mistakes made and incompetence exhibited by trial counsel during

pretrial plea negotiations, trial, and the punishment phase. Trial counsel signed a sworn affidavit

admitting his ineffectiveness and incompetence as described in the motion for new trial. After a

hearing on the motion, the trial court granted the motion for new trial. The State does not challenge

the trial court’s implicit finding that trial counsel provided Appellant ineffective assistance of

counsel. See State v. Herndon, 215 S.W.3d 901, 907 (explaining that even when a trial court grants

new trial “in the interest of justice,” “the trial court does not have discretion to grant a new trial

unless the defendant shows that he is entitled to one under the law”). Thus, we will proceed to

determine whether trial counsel’s ineffective assistance of counsel prejudiced Appellant.

       B. Prejudice

       1. Likelihood Appellant Would Have Accepted the Plea Bargain

       The first step in determining whether trial counsel’s ineffective assistance was so

prejudicial that the outcome of the plea process would have been different with competent counsel

is to determine whether there is a reasonable probability that Appellant would have accepted the
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plea offer had he been given competent advice. See Lafler, 132 S. Ct. at 1385. When the original

trial judge was considering the ten-year plea agreement after she ordered it to be reinstated, she

commented that prior to trial Appellant insisted he would not agree to a plea bargain. While we

recognize that “a court may take account of a defendant’s earlier expressed willingness, or

unwillingness, to accept responsibility for his actions,” we do not find Appellant’s earlier refusal

to accept a plea determinative in this case. See id. at 1389.

         At the time Appellant expressed this sentiment, he was relying upon trial counsel’s

improvident opinion that an acquittal would be easy to obtain. We cannot allow the same

incompetent advice that rendered trial counsel’s assistance ineffective to be used as a means of

preventing appellant from demonstrating that counsel’s ineffective assistance was prejudicial. See

Kimmelman v. Morrison, 477 U.S. 365, 374 (1986) (“A layman will ordinarily be unable to

recognize counsel’s errors and to evaluate counsel’s professional performance; consequently a

criminal defendant will rarely know that he has not been represented competently until after trial

or appeal, usually when he consults another lawyer about his case.” (internal citation omitted)).

Further, after obtaining new, competent counsel, Appellant accepted a plea agreement with a

longer sentence than the original agreement. 4 See Frye, 132 S. Ct. at 1411 (stating that “[t]he

Court of Appeals did not err in finding [that] Frye’s acceptance of the less favorable plea offer

indicated that he would have accepted the earlier (and more favorable) offer”). Thus, we conclude

that if Appellant had received competent advice prior to trial, there is a reasonable probability that

he would have accepted the original ten-year plea-bargain offer.




4
 There was some dispute in the trial court about whether the ten-year offer was the original plea-bargain offer made.
For purposes of this appeal, we will refer to the ten-year plea offer as the original plea bargain and the twenty-five
year plea offer, later accepted, as the subsequent plea bargain.

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       2. Likelihood the State Would Not Have Withdrawn the Plea Bargain

       Next we must determine whether there is a reasonable probability that the State would not

have withdrawn the plea-bargain offer prior to presenting it to the trial court. See Lafler, 132 S.

Ct. at 1385. The State does not contend that the plea-bargain offer would have been withdrawn.

In fact, when the trial judge ordered that the offer be reinstated, the State did so without argument.

Additionally, there are no intervening facts or circumstances that likely would have led the State

to withdraw the plea-bargain offer. Cf. Frye, 132 S. Ct. at 1404, 1411 (concluding that Frye could

not demonstrate a reasonable probability that the prosecution would not have withdrawn its offer

because Frye was, again, arrested for driving with a revoked license less than a week before the

agreement would have been presented to the trial court).

       3. Likelihood the Trial Court Would Have Accepted the Plea Agreement

       Similar to the first two prejudice considerations, the Supreme Court provided little

guidance on how a reviewing court should determine whether a reasonable probability exists that

the trial court would have accepted the plea agreement. In fact, the Lafler majority seemingly

assumed the trial court would have accepted the plea agreement. Lafler, 132 S. Ct. at 1391. The

Court cited the lower court’s opinion and stated: “[R]espondent has shown that but for counsel’s

deficient performance there is a reasonable probability he and the trial court would have accepted

the guilty plea.” Id. The court of appeals, however, discussed only the reasonable probability that

the defendant would have accepted the plea-bargain offer, not the reasonable probability that the

trial court also would have accepted the plea agreement. Cooper v. Lafler, 376 Fed. Appx. 563,

571–72 (6th Cir. 2010).

       Frye offers slightly more guidance. When explaining the three considerations to be made

under the prejudice prong of the ineffectiveness analysis, the Court stated:



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       It can be assumed that in most jurisdictions prosecutors and judges are familiar with
       the boundaries of acceptable plea bargains and sentences. So in most instances it
       should not be difficult to make an objective assessment as to whether or not a
       particular fact or intervening circumstance would suffice, in the normal course, to
       cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The
       determination that there is or is not a reasonable probability that the outcome of the
       proceeding would have been different absent counsel’s errors can be conducted
       within that framework.

Frye, 132 S. Ct. at 1410. This analysis suggests that the proper method for determining whether

there is a reasonable probability that the trial court would have accepted the plea agreement is by

assessing whether anything that would have affected the court’s decision happened between the

time the plea bargain was offered and the time it would have been presented to the trial court. As

mentioned above, there were no intervening circumstances or events prior to trial that would permit

us to objectively reason that the trial court would not have accepted the plea agreement. Although

the trial judge rejected the ten-year plea agreement after the first trial, she voluntarily recused

herself almost immediately thereafter. In view of the trial judge’s recusal, we must refrain from

considering her rejection of the plea agreement in making an objective determination about

whether there is a reasonable probability that she would have accepted the plea agreement if it had

been presented to her before trial.

       Not surprisingly, four justices of the Supreme Court have recognized the difficulties

inherent in this “process of retrospective crystal-ball gazing posing as legal analysis.” Id. at 1412

(Scalia, J., dissenting). The degree of speculation demanded by this review is exacerbated in a

case where the judge voluntarily recuses herself, seemingly on the basis of prejudice. Nonetheless,

after reviewing the record as a whole, we conclude there is a reasonable probability that the trial

court would have accepted the plea agreement prior to trial. Additionally, assuming the ten-year

plea bargain offered by the prosecution was within the boundaries of acceptable plea bargains, as

Frye suggests, the eight life sentences imposed after the trial in this case amplifies the prejudice


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that resulted from trial counsel’s ineffective assistance. See id. at 1410; see also Lafler, 132 S. Ct.

at 1391 (indicating that the lengthier sentence received after trial was further proof of prejudice).

       C. The Remedy

       The appropriate remedy “should be ‘tailored to the injury suffered from the constitutional

violation and should not unnecessarily infringe on competing interests.’” Lafler, 132 S. Ct. at

1388 (quoting United States v. Morrison, 449 U.S. 361, 364 (1981)). There is no one-size-fits-all

remedy; instead, courts should devise a remedy that will “‘neutralize the taint’ of [the]

constitutional violation.” Id. (quoting Morrison, 449 U.S. at 365); see also id. at 1389 (explaining

that under some circumstances it may be appropriate to uphold the sentence imposed at trial while

other circumstances may require reinstatement and consideration of the plea-bargain offer). When

determining an appropriate remedy, it is also important to consider that “[t]he Sixth Amendment

mandates that the State bear the risk of constitutionally deficient assistance of counsel.”

Kimmelman, 477 U.S. at 379.

       Since Lafler, few courts have addressed the appropriate remedy for ineffective assistance

of counsel during plea negotiations. The United States Courts of Appeals for the Sixth and Ninth

Circuits, however, have reached the issue and provided different remedies. In each case, the

remedies were tailored to the specific harm. In Johnson v. Uribe, 700 F.3d 413 (9th Cir. 2012),

Johnson was sentenced to an illegal sentence under a plea agreement because three of the prior

convictions used by the district attorney as enhancements did not qualify as enhancements under

the California penal code. Id. at 423. Prior to the hearing on the plea agreement, Johnson’s counsel

had failed to interview Johnson about the case, failed to investigate Johnson’s alleged prior

convictions, failed to speak to anyone from the district attorney’s office about the case, and failed

to do any research on possible appropriate sentencing options for Johnson. Id. at 422. The court

determined that “[t]he Sixth Amendment violation here caused the entire plea negotiation process
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between Johnson and the prosecution to be conducted based on an erroneous sentencing

calculation,” and that the proper remedy was to return Johnson to the “pre-plea stage and proceed

under the correctly-calculated sentencing range.” Id. at 426. This meant that Johnson was placed

in the position he was in prior to negotiating a plea agreement because “[t]he inaccurate

enhancements fundamentally altered the bargaining position of the two parties for the entire plea

negotiation period.” Id. at 427.

       In Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012), cert. granted, 133 S. Ct. 1457 (2013),

Titlow’s first attorney negotiated a plea bargain for a charge of manslaughter with a seven to fifteen

year sentence range. Id. at 583. While in jail prior to her sentencing hearing, Titlow spoke with a

sheriff who advised her not to plead guilty if she believed she was innocent and who recommended

a different attorney, Toca. Id. Toca appeared at the sentencing hearing as Titlow’s substituted

counsel and informed the court that Titlow intended to withdraw her plea and her agreement to

testify against her co-defendant unless the State agreed to a lower sentencing range. Id. at 583–

84. The State did not agree to the desired sentencing range, and Titlow withdrew her plea. Id.

Prior to the hearing, Toca did not obtain Titlow’s file from or speak to her previous attorney, nor

did he inspect discovery files from the prosecution. Id. at 584. About a month and a half after the

hearing, Toca obtained Titlow’s file and, shortly thereafter, withdrew as Titlow’s counsel. Id.

Titlow was appointed new counsel and proceeded to trial on a second-degree murder charge. Id.

The jury found Titlow guilty, and she was sentenced to twenty to forty years in prison. Id. On

appeal, the majority concluded that Toca provided ineffective assistance of counsel because Toca

“failed to fulfill his ‘clear obligation’ to provide sufficient advice to Titlow during the plea-

negotiation stage” when he made no investigation upon which to render advice and that this failure

prejudiced Titlow. Id. at 590. The majority also concluded that the proper remedy under Lafler

was to reinstate the original plea offer because it was for a lesser charge, with a lower sentencing
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range from which the trial court could exercise its discretion in assessing Titlow’s sentence. Id. at

592.

       In this case, Appellant argues that he was entitled to have the original plea-bargain offer

reinstated because his counsel provided ineffective assistance of counsel when he incorrectly

advised him about the likelihood of prevailing at trial and about various evidentiary matters.

Appellant also contends that he is entitled to specific performance of the plea agreement because,

unlike the defendant in Lafler, he did not receive a fair trial with effective assistance of counsel.

Thus, he argues, Lafler indicates the only adequate remedy under these circumstances would be

enforcement of the ten-year plea agreement. The State, on the other hand, argues that Appellant

received all the relief he requested by being granted a new trial and having the ten-year plea offer

reinstated. The State further argues that the trial judge’s rejection of the plea agreement was

perfectly acceptable under Lafler because Lafler specifically permits the trial court to exercise its

discretion in determining the appropriate sentence.

       Although Lafler would provide support for the trial judge’s rejection of the plea agreement,

the discretion she exercised in rejecting the plea agreement cannot be viewed in isolation, but must

be considered in light of her voluntary recusal. Thus, we conclude that Appellant was entitled to

have the original plea offer presented to him and, if accepted, to have the plea agreement presented

to a trial judge who had not recused herself. The only plea offer/agreement presented to Appellant

or Judge Román, however, was the twenty-five year offer/agreement.

       Notwithstanding the foregoing, however, we agree with the State’s assertion that there is

no authority supporting Appellant’s contention that an impartial tribunal is required to accept a

plea agreement. See Lafler, 132 S. Ct. at 1391 (explaining that the appropriate remedy was not

specific performance but, rather, requiring the district attorney to reoffer the plea bargain and,

presuming acceptance, allowing the trial court to exercise its discretion in how to proceed).
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Appellant argues that, unlike the defendant in Lafler, he was not provided effective assistance at

trial so an impartial tribunal should not be permitted to consider the sentence imposed based on

that trial. While it may be true that the trial court should not consider the sentence given during

Appellant’s trial in deciding to accept the plea agreement, this does not alter the fact that a trial

court always retains discretion to accept or reject a plea agreement presented to it. TEX. CODE

CRIM. PROC. ANN. art. 26.13(a)(2); see Frye, 132 S. Ct. at 1410. Thus, on remand, Judge Román

will have the discretion to decide whether to accept or reject the plea agreement.

                                                     CONCLUSION

           Under the unique circumstances of this case, we conclude that the only way to neutralize

the taint of trial counsel’s ineffective assistance of counsel and the trial judge’s voluntary recusal

is to return Appellant to the position he would have been in prior to his counsel’s improvident

advice to reject a reasonable plea-bargain offer. The Supreme Court has declared that the

principles announced in Strickland did not establish mechanical rules and that “the ultimate focus

of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.”

Strickland, 466 U.S. at 696. We believe our interpretation and application of Lafler and Frye are

consistent with the Court’s admonition. Accordingly, we reverse the judgment of the trial court

and remand the cause with instructions for the State to reoffer the original ten-year plea bargain

and for further proceedings consistent with this opinion. 5


                                                              Catherine Stone, Chief Justice

PUBLISH




5
    Because this claim is dispositive, we will not address Appellant’s other points of error. TEX. R. APP. P. 47.1.

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