             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                 NOS. AP-76,891 & AP-76,892



                   EX PARTE ANDREW KELLY ARGENT, Applicant



                 ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
                            FROM LIBERTY COUNTY



       J OHNSON, J., filed a dissenting opinion.

                             DISSENTING OPINION


       The state proposes a plea bargain. For whatever reason, defense counsel fails to transmit that

offer to the client. Some time later, the client discovers that, unbeknownst to him, an offer was made

but not conveyed to him. The client states that he would have accepted the plea-bargain offer but,

not knowing of it, went to trial and received a sentence much longer than that included in the plea-

bargain offer.

       Or perhaps defense counsel misstated the law or gave other inaccurate information, and

because of that advice, the client decided to go to trial instead of accepting an outstanding plea-

bargain offer by the state and then received a sentence much longer than that included in the plea-
                                                                                                        2

bargain offer.

       “The right to counsel is the right to effective assistance of counsel.” Missouri v. Frye, ___

U.S. ___, ___; 132 S.Ct. 1399, 1404 (2012); 2012 U.S. LEXIS 2321, *** (citing Strickland v.

Washington, 466 U.S. 668, 686 (1984)). After noting that plea agreements account for well over

90% of all criminal convictions and that the criminal-justice system benefits from plea

agreements–e.g., conservation of judicial resources–the Supreme Court stated that, in order to realize

the benefits of plea bargaining, “criminal defendants require effective counsel during plea

negotiations. ‘Anything less . . . might deny a defendant “effective representation by counsel at the

only stage when legal aid and advice would help him.”’” Frye at 1407-08, quoting Massiah v. United

States, 377 U.S. 201, 204 (1964).

       In an effort to obtain relief on the grounds of ineffective assistance of counsel, the client files

an application for a writ of habeas corpus. As the majority states, the Frye-Lafler1 “standard

demands more from applicants seeking to demonstrate that they received ineffective assistance of

counsel,” Maj. op. at 2, than the prior Texas standard of showing that he was “prejudiced [simply]

by the missed opportunity of accepting such bargain and presenting it to the trial court for

consideration.” Maj. op. at 3. Unfortunately, what the new standard requires is a highly developed

ability to read minds and predict the future actions of other persons. As Justice Scalia noted,

“Prejudice is to be determined . . . by a process of retrospective crystal-ball gazing posing as legal

analysis.” Frye at 1413 (Scalia, J., dissenting).

       In Ex parte Jarrett, 891 S.W.2d 935 (Tex. Crim. App. 1994), this Court took a tack similar

to that taken by the Supreme Court in Frye and Lafler. The standard set in Jarrett was that


       1
           Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012); 2012 LEXIS 2322.
                                                                                                                          3

        appellate counsel has a duty to notify the appellant of the actions of the appellate
        court and to consult with and fully advise the appellant of the meaning and effect of
        the opinion of the appellate court. Finally, although appellate counsel has no duty to
        file a petition for discretionary review, appellate counsel does have the duty . . . to
        advise the appellant of the possibility of review by this Court as well as expressing
        his professional judgment as to possible grounds for review and their merit, and
        delineating the advantages and disadvantages of any further review.
Id. at 940 (internal citation omitted).

         That standard required, albeit to a lesser degree than Frye and Lafler, “crystal-ball gazing

posing as legal analysis”; the appellate attorney had to read the minds of the judges of this Court and

predict the future actions of this Court. It did not work in the real world. A little more than three

years later, the Court overruled Jarrett “to the extent it held that an appellate attorney has an

obligation to inform a defendant of anything other than the fact that his conviction has been affirmed

and he can pursue discretionary review on his own. This information sufficiently protects a

defendant’s right to file a petition for discretionary review.” Ex parte Wilson, 956 S.W.2d 25, 27

(Tex. Crim. App. 1997).2 With some tweaking over the years since, Wilson remains the standard.

         How is a defendant to demonstrate, if the offer was not conveyed, that the state would not

have withdrawn it? How is he to know that legal advice given by counsel is wrong? How is he to

ascertain the consequences of rejecting a plea-bargain offer if he is given inaccurate information by

his lawyer? How is he to determine whether a given judge will or will not accept the offer?

         While it may be true that “[i]t can be assumed that in most jurisdictions prosecutors and




         2
            At least in part, the basis for the holding in Wilson is that Jarrett analogized the duties of trial counsel to
protect the defendant’s right to appeal, which is an appeal of right that entitles a defendant to the assistance of
counsel, to the duties of appellate counsel to protect a defendant’s right to petition for discretionary review, which is
not an appeal of right and for which a defendant does not have a constitutional right to counsel. “Counsel has no
other constitutional obligations because a defendant has no right to counsel for purposes of discretionary review.”
Wilson at 27.
                                                                                                     4

judges are familiar with the boundaries of acceptable plea bargains and sentences,”3 it is highly

unlikely that a defendant is equally familiar, and it is the defendant who is required to make the

initial decision to accept or reject an offer. I think that Lemke was correct: we should not “view

after-the-fact speculation into whether or not the trial court would have granted the plea bargain as

particularly meaningful.”4 The same is true of speculation, after the fact, as to whether the state

would have left an unconveyed offer on the table until trial.

        Because the burden on a writ is on the applicant, should we not review “restriction” from the

perspective of the applicant? By any measure, from the perspective of the applicant the new federal

standard is much more restrictive than Lemke. The Lemke standard did not impose greater

restrictions than the federal standard announced in Frye and Lafler; it imposed lower restrictions and

does not, therefore, offend the Supremacy Clause.

        The only valid claim that an applicant can rationally make in an application for a writ of

habeas corpus that is based on the circumstances at issue here is that, if he had known of the offer,

or had been given accurate information about the consequences of rejecting the offer, he would have

accepted it. Any assertions about what the state would have done or what the trial court would have

done would be pure speculation on the part of the applicant. Let the applicant assert that, given

complete and accurate information, he would have accepted the plea-bargain offer, then let the state

and the trial court respond, if they can, in rebuttal or in affirmation.

        Even if the judge and the prosecutor are still available for inquiry, it seems unlikely, absent

distinctive circumstances, that either could state with certainty what they would have done, assuming


        3
            Frye at 1410.

       4
            Ex parte Lemke, 13 S.W .3d 791, 797 n.6 (Tex. Crim. App. 2000).
                                                                                                     5

that they remember the case. If they cannot say, how is the applicant to say? He can only speculate,

and speculation has no place in a court of law. The burden expressed in Frye and Lafler makes futile

a claim of ineffective assistance of counsel based on an offer that was not conveyed or an attorney

of record who gave advice that was clearly wrong and which induced a plea. The Supreme Court

has declared that a defendant is entitled to competent assistance of counsel during plea negotiations.

Frye and Lafler make a mockery of that entitlement by imposing, on an applicant who is asserting

ineffective assistance of counsel during that process, a burden so onerous that it can never be met.

       I respectfully dissent.



Filed: March 20, 2013
Publish
