Robert Brice Daugherty v. State ( 2015 )


Menu:
  •                                                                               ACCEPTED
    06-15-00038-CR-40-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    5/14/2015 4:41:22 PM
    DEBBIE AUTREY
    CLERK
    NOS. 06-15-00038-CR, 06-15-00039-CR, 06-15-00040-CR
    IN THE                       FILED IN
    6th COURT OF APPEALS
    SIXTH COURT OF APPEALS          TEXARKANA, TEXAS
    5/15/2015 9:32:00 AM
    AT TEXARKANA, TEXAS
    DEBBIE AUTREY
    _______________________                Clerk
    Robert Brice Daugherty,
    Appellant,
    v.
    The State of Texas,
    Appellee.
    _______________________________
    On Appeal from the
    th
    6 District Court, Lamar County, Texas
    Hon. Bill Harris, Presiding
    _______________________________
    APPELLANT’S BRIEF
    Don Biard
    State Bar No. 24047755
    Counsel for Appellant
    ORAL ARGUMENT NOT REQUESTED
    IDENTITY OF PARTIES AND COUNSEL
    Defendant Below
    Appellant in this Court
    Robert Brice Daugherty
    Counsel for Appellant:
    Don Biard                             (on appeal)
    State Bar No. 24047755
    38 First Northwest
    Paris, Texas 75460
    Tel: (903)785-1606
    Fax: (903)785-7580
    Email: dbiard@att.net
    Dan Meehan                           (at trial)
    State Bar No. 13898700
    202 West Madison
    Clarksville, Texas 75426
    Tel: (903)427-4547
    Fax: (903)427-4549
    Appellee in this Court
    The State of Texas
    Counsel for Appellee:
    Gary Young
    Lamar County Attorney’s Office
    119 N. Main Street
    Paris, Texas 75460
    Tel: (903)737-2458
    Fax: (903)737-2455
    1
    TABLE OF CONTENTS
    Identity of Parties and Counsel………………..........………………………………1
    Table of Contents………………………..........…………………………………….2
    Index of Authorities………………......………………………………………….3-4
    Issues Presented…………………………………………………………….………5
    Summary of the Argument........................................................................................5
    Statement of the Case………………………………….…………………………...6
    Procedural History………………………....……………………………………..7-8
    Facts…………...…………..……………………………………………………9-10
    Argument and Authorities……………………......…………………….……...11-15
    Prayer……………………..……………………………………………………….16
    Certificate of Service…………………......…………………………………..…...17
    Certificate of Compliance With Rule 9.4(i)(3)........................................................18
    INDEX OF AUTHORITIES
    Caselaw
    Ex parte Argent, 
    393 S.W.3d 781
    , 784 (Tex. Crim. App. 2013)...................13,14,15
    Ex Parte Cruz, 
    739 S.W.2d 53
    , 58 (Tex. Crim. App. 1987)...................................11
    Ex Parte Duffy, 
    607 S.W.2d 507
    , 517 (Tex. Crim. App. 1980)..............................11
    Ex parte Lemke, 
    13 S.W.3d 791
    , 796 (Tex. Crim. App. 2000)...............................12
    Ex Parte Menchaca, 
    854 S.W.2d 128
    , 132 (Tex. Crim. App. 1993)......................11
    Ex parte Wilson, 
    724 S.W.2d 72
    , 73 (Tex. Crim. App. 1987)................................12
    Hernandez v. State, 
    726 S.W.2d 53
    , 57 (Tex. Crim. App. 1986)............................11
    Hernandez v. State, 
    988 S.W.2d 770
    (Tex. Crim. App. 1999)................................11
    Missouri v. Frye, 132 S.Ct 1399, 1405 (2012)........................................................12
    Murray v. Carrier, 
    477 U.S. 478
    , 496 (1986).........................................................12
    Passmore v. State, 
    617 S.W.2d 682
    , 686 (Tex. Crim. App. 1981)..........................11
    Piland v. State, 
    453 S.W.3d 473
    , 476 (Tex. App. – Texarkana, 2014)...................14
    Ramirez v. State, 
    987 S.W.2d 938
    , 945 (Tex. App. — Austin 1999)......................11
    Strickland v. Washington, 
    466 U.S. 668
    (1984).................................................11,12
    3
    Constitutional Provisions
    Sixth Amendment, United States Constitution……………………………………11
    Fourteenth Amendment, United States Constitution……………………………...11
    Article I, §10, Texas Constitution…………………………………………...........11
    Article I, §19, Texas Constitution………………………………………………...11
    4
    SUBJECT MATTER OF ISSUES PRESENTED
    I. Whether Appellant was denied effective assistance of counsel at trial
    because his trial counsel failed to communicate a plea offer to him?
    SUMMARY OF THE ARGUMENT
    Prior to trial, the state made a plea bargain offer to Appellant’s trial counsel.
    The state’s offer was that Appellant would plead guilty to certain offenses
    with findings that the offenses occurred in a drug free zone and that Appellant
    was a habitual offender. In exchange, Appellant would receive sentences of 40
    years’ in prison with the sentences to run concurrently.
    Appellant’s trial counsel never communicated this offer to Appellant.
    However, Appellant would have accepted this offer had he been made aware
    of it. Additionally, the state’s offer was left open for a specified time.
    Further, the record shows a reasonable probability the trial court would have
    approved the offer had Appellant been able to accept it. Accordingly,
    Appellant was denied effective assistance of counsel at trial.
    NOTE ON COMBINED BRIEF
    The convictions below were filed in three separate cause numbers. Accordingly,
    the appeal from each conviction has been assigned a separate case number in this
    court. All cases are being briefed together because the issues, argument, and
    authority presented herein are identical for each case.
    5
    STATEMENT OF THE CASE
    Nature of the Case:          Plea of Guilty to two Charges of Possession with
    Intent to Deliver a Controlled Substance and one
    Charge of Delivery of a Controlled Substance.
    Trial Court:                 The Honorable Bill Harris (by assignment)
    6th District Court, Lamar County, Texas
    Trial Court Disposition:     The trial court sentenced Appellant to life in
    prison.
    6
    PROCEDURAL HISTORY
    On August 14, 2014, Appellant was indicted for the felony offenses of possession
    with intent to deliver methamphetamine of more than four grams but less than 200
    grams in a drug free zone and possession of diazepam in an amount less than 28
    grams in a drug free zone. He was also indicted as a habitual offender.1
    On September 11, 2014, Robert Brice Daugherty was indicted for the felony
    offense of possession with intent to deliver methamphetamine of more than four
    grams but less than 200 grams in a drug free zone and possession of hydrocodone
    in an amount less than 28 grams. He was also indicted as a habitual offender.2
    In a separate indictment on September 11, 2014, Appellant was indicted for
    the felony offense of delivery of methamphetamine in a drug free zone, again as a
    habitual offender.3
    On February 11, 2015, the case proceeded to trial. The State elected to drop
    the possession charges and Appellant pled guilty to the remaining charge of
    delivery of methamphetamine and two charges of possession with intent to deliver
    methamphetamine. The state also dropped the drug free zone allegations with
    regard to two of the remaining charges.4
    1
    CR 25886, pg. 7
    2
    CR 25928, pg. 8
    3
    CR 25958, pg. 2
    4
    RR, pg. 7-12
    7
    Appellant also pled true to the habitual offender allegations to all offenses.
    Appellant elected to have trial court assess punishment. The trial court sentenced
    Appellant to life imprisonment on each charge with the sentences to run
    concurrently.5
    5
    RR, pg. 95
    8
    FACTS
    The Plea Offers
    Appellant was initially indicted for two offenses that occurred on June 3,
    2014.6 On August 8, 2014, the State offered a plea bargain of 50 years’
    imprisonment if Appellant would plead guilty to those offenses and two additional
    unindicted offenses with drug free zone and habitual offender findings.7 On
    August 11, 2014, Appellant’s trial counsel communicated this offer to Appellant
    and he countered with an offer of 15 years’ imprisonment which the state rejected.
    The same day, the State countered with an offer of 40 years.8 This offer was left
    open until August 29, 2014 – the date set for Appellant’s examining trial on the
    offenses which occurred on June 3, 2014.9
    On November 7, 2014, the trial court held a hearing to determine whether
    Appellant’s appointed trial counsel should be allowed to withdraw due to a conflict
    of interest.10 The trial court allowed Appellant’s counsel to withdraw and
    appointed new trial counsel.11
    At that hearing, the parties discussed the plea offers the state had made to
    Appellant’s trial counsel. The State reiterated that it had initially offered an offer
    6
    CR 25886, Pg. 7; CR 25928, Pg. 8
    7
    RR, Def. Ex. #1
    8
    RR, Def. Ex. #3, pg. 7
    9
    CR 25928, pg. 96
    10
    Def. Ex. #3, CR 25928 pg. 14
    11
    CR 25928, pg. 16-17
    9
    of 50 years and had reduced that to 40 years. Appellant testified under oath that he
    had never learned of that 40 year offer.12
    Trial
    Appellant eventually made an open plea of guilty to three of the indicted
    offenses and elected to have the trial court assess punishment. At the punishment
    hearing, Appellant’s new trial counsel again raised the issue of whether or not
    Appellant had been informed of the State’s 40 year plea offer.
    Through stipulated testimony, Appellant testified that he had never been told
    of the State’s 40 year offer. Additionally, he testified that had he been informed of
    that offer he would have accepted it.13
    After hearing all of the evidence, the trial court sentenced Appellant to life
    imprisonment on all charges with the sentences set to run concurrently.14
    12
    Def. Ex. #3, pg. 7
    13
    RR, pg. 90
    14
    RR, pg. 95
    10
    ARGUMENT AND AUTHORITIES
    Issue No. 1 Restated: Appellant was denied his constitutional right to effective
    assistance of counsel at trial because his appointed trial counsel failed to
    communicate a plea offer which Appellant would have accepted had he been
    so informed.
    Standard of Review
    Effective assistance of counsel is essential to a fair trial. An accused’s right
    to effective assistance of counsel is derived from four sources: the Sixth
    Amendment and the “Due Process Clause” of the Fourteenth Amendment of the
    United States Constitution, the “right to be heard” provision of Article I, §10 of the
    Texas Constitution, and the “due course of law” provision of Article I, §19 of the
    Texas Constitution.15
    The effectiveness of counsel’s assistance is gauged by the totality of his
    representation.16 To establish ineffectiveness, counsel’s representation must be
    shown to have fallen below an objective standard of reasonableness. Further, it
    must be shown that there is a reasonable probability that but for counsel’s errors or
    15
    Strickland v. Washington, 
    466 U.S. 668
    (1984); Hernandez v. State, 
    726 S.W.2d 53
    , 57 (Tex.
    Crim. App. 1986); Ex Parte Duffy, 
    607 S.W.2d 507
    , 517 (Tex. Crim. App. 1980), overruled on
    other grounds, Hernandez v. State, 
    988 S.W.2d 770
    (Tex. Crim. App. 1999).
    16
    Ex Parte Menchaca, 
    854 S.W.2d 128
    , 132 (Tex. Crim. App. 1993), Ex Parte Cruz, 
    739 S.W.2d 53
    , 58 (Tex. Crim. App. 1987), Passmore v. State, 
    617 S.W.2d 682
    , 686 (Tex. Crim.
    App. 1981).
    11
    omissions, the result would have been different. A reasonable probability is one
    which undermines confidence in the outcome.17
    A reviewing court indulges in the presumption that counsel’s conduct fell
    within the wide range of “reasonable professional assistance.”18 “The right to
    effective assistance of counsel … may in a particular case be violated even by an
    isolated error of counsel if that error is sufficiently egregious and prejudicial.”19
    An appellant must overcome the presumption that counsel’s conduct “might be
    considered sound trial strategy.”20 However, there are some omissions which defy
    explanation as, and cannot be justified on the basis of, reasonable trial strategy. 21
    Analysis
    A criminal defendant has a well-established right to effective assistance of counsel
    during the plea bargaining process.22 It had long been the rule that a criminal
    defendant was denied effective assistance of counsel and prejudiced simply “by the
    missed opportunity of accepting” a plea bargain and presenting it to the trial court
    for consideration.23
    17
    
    Strickland, 466 U.S. at 687
    18
    Strickland at 698
    19
    Murray v. Carrier, 
    477 U.S. 478
    , 496 (1986).
    20
    
    Id. 21 See,
    e.g., Ramirez v. State, 
    987 S.W.2d 938
    , 945 (Tex. App. — Austin 1999).
    22
    Missouri v. Frye, 132 S.Ct 1399, 1405 (2012); Ex parte Wilson, 
    724 S.W.2d 72
    , 73 (Tex.
    Crim. App. 1987).
    23
    Ex parte Lemke, 
    13 S.W.3d 791
    , 796 (Tex. Crim. App. 2000).
    12
    In 2013, however, the Court of Criminal Appeals established a new set of
    standards for determining whether a defendant was prejudiced during the plea
    bargain process. Now, when a defendant is not informed of a plea-bargain offer,
    he must show a reasonable probability that: (1) he would have accepted the offer;
    (2) the prosecution would not have withdrawn the offer; and (3) the trial court
    would not have refused to accept the plea bargain.24
    Here we have evidence that an offer of 40 years was made and that
    Appellant was not made aware of the offer. Appellant testified at the November
    2014 hearing that he was never made aware of the 40 year offer. Appellant
    testified through stipulated testimony at trial that he was never made aware of the
    40 year offer and that he would have accepted it had he been aware of it.
    Accordingly, the record establishes with a reasonable probability that Appellant
    would have accepted the offer had he been made aware of it. This satisfies the first
    prong of the Argent test.
    The record also establishes a reasonable probability the state would not have
    withdrawn this offer. The record shows the state left this offer open until a time
    certain—August 29, 2014. In fact, the record shows that when the offer expired on
    August 29, 2014, the state emailed Appellant’s trial counsel to inform her that the
    24
    Ex parte Argent, 
    393 S.W.3d 781
    , 784 (Tex. Crim. App. 2013)
    13
    offer had expired and that the state would go back to the original 50 year offer.25
    This satisfies the second prong of the Argent test.
    As this court has previously noted, on direct appeal it is difficult to establish
    the third prong of the Argent test – that the trial court would have accepted the plea
    bargain.26 The dissenting opinion in Lemke points out the difficulty of this task.
    “How is [the defendant] to determine whether a given judge will or will not accept
    the offer?”27
    However, here the record establishes a reasonable probability that the trial
    judge would have accepted the 40 year offer. First, this offer was only 10 years
    less than the state’s original offer of 50 years. This offer was made by the state to
    the defendant. It can be presumed that a local district attorney’s office has a
    reasonable familiarity with what plea bargains its local trial judges are likely to
    reject or accept.
    Second, the trial court made no indication at the November 2014 hearing
    that it would have rejected the 40 year offer. During the discussion, the trial court
    only pointed out that it was within the state’s discretion to make or withdraw an
    plea offer and that Appellant should discuss the issue with his new attorney. 28
    25
    CR 25928, pg. 96
    26
    Piland v. State, 
    453 S.W.3d 473
    , 476 (Tex. App. – Texarkana, 2014)
    27
    Argent at 785
    28
    Def. Ex. #3, pg. 7-8
    14
    Third, there was a lengthy discussion of this offer on the record at the
    punishment hearing. Again, the trial court made no indication that it would have
    rejected such an offer.29 The record includes no other evidence that the trial court
    would have rejected the offer.
    The state’s 40 year offer was initiated by the state. It was well within the
    permissible range of punishment. The trial court was aware of the offer before and
    during trial. The trial court made no indication that it would have rejected such an
    offer. Accordingly, the record establishes a reasonable probability that the trial
    court would have accepted the 40 year plea bargain had it been communicated to,
    and accepted by, Appellant.
    The Argent decision does not require the Appellant to establish with absolute
    certainty that its three pronged test has been met. It only requires the Appellant
    must show there is a reasonable probability that those factors are present.30 Here
    the record establishes with a reasonable probability that: (1) Appellant would have
    accepted the state’s 40 year offer had his trial counsel communicated it to him; (2)
    the state would not have withdrawn that offer had Appellant accepted it within the
    specified time frame; and (3) the trial court would not have refused to accept a 40
    year plea bargain. Therefore, Appellant was denied his constitutional right to
    effective assistance at trial.
    29
    RR, pg. 90-92
    30
    Argent at 784
    15
    Conclusion
    The state made a plea bargain offer to Appellant which his trial counsel
    failed to communicate to him. Appellant would have accepted this offer had he
    known about it. The state would not have withdrawn the offer and the trial court
    would have likely accepted it. Therefore, Appellant was denied effective
    assistance of counsel at trial.
    Prayer
    Appellant prays this court reverse the judgment below and remand to the trial court
    for a new trial.
    Respectfully Submitted,
    /s/ Don Biard
    ____________________________
    Don Biard
    State Bar No. 24047755
    38 First Northwest
    Paris, Texas 75460
    Tel: (903)785-1606
    Fax: (903)785-7580
    Email: dbiard@att.net
    Counsel for Appellant
    16
    CERTIFICATE OF SERVICE
    I certify that on May 14, 2015 a copy of the foregoing Appellant’s Brief was
    served to the following parties by email.
    /s/ Don Biard
    ___________________________
    Don Biard
    Attorney for Appellee:
    Gary Young
    Lamar County Attorney’s Office
    17
    CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF APPELLATE
    PROCEDURE 9.4(i)(3)
    TO THE HONORABLE COURT OF APPEALS:
    Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
    Counsel for Appellant files this certification that Appellant’s brief is a computer-
    generated document that contains 2,578 words. Counsel further certifies that he
    relied on the word count of the computer program used to prepare this document.
    Respectfully submitted,
    ___/s/Don Biard___________________________
    DON BIARD
    State Bar No. 24047755
    McLaughlin, Hutchison & Biard
    38 First Northwest
    Paris, Texas 75460
    Tel: (903)785-1606
    Fax: (903)785-7580
    Counsel for Appellant
    18