## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S

N O
. A P

- 7 6 , 4 8 3 & A P

- 7 6 , 4 8 4

E x p a r t e A L V I N R O Y C E W E L L S , A p p l i c a n t

O N A P P L I C A T I O N F O R A W R I T O F H A B E A S C O R P U S

F R O M H O O D C O U N T Y

K E L L E R , P
. J
. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t i n w h i c h P R I C E , W O M A C K , J O H N S O N , K E A S L E R , H E R V E Y , C O C H R A N , a n d A L C A L A , J J
. , j o i n e d
. M E Y E R S , J
. , f i l e d a c o n c u r r i n g o p i n i o n i n w h i c h K E A S L E R , H E R V E Y , a n d C O C H R A N , J J
. , j o i n e d
.

I n these applications for post c onviction w rits of habea s corpus, a

pplicant contends that he

was denied eff

ective assistance of counsel beca use his trial counsel misinformed him about the terms of a ple a off

er ma de by

the State. We shall g rant re lief.

I. BACKG ROUND
Prior to trial, counsel conveyed the State’s 45-y ear plea offe r to applicant but incorre ctly told
him that the offe r included an aff irmative deadly -we apon finding

. Applicant reje cted the offe r, and
the deadline to acc ept t h e o ff er passed. On the date of trial, counsel reque sted a continuance , explaining t o t h e co urt that he had incorre ctly convey ed the terms of the State’s plea offe r toWELL S — 2

applicant, causing applicant to miss the deadline to acc ept. Counsel explained that afte r he rea liz ed
his err or and informed applicant that the offe r had not included a deadly -we apon finding , applicant said, “Well, now I would like to take the plea offe r, it chang es things.” The State clar ified that the plea offe r was silent as to a deadly -we apon finding , so if applica n t ac cepte d the offe r, the State
would still have the option to seek a deadly -we apon findi n g. T h e trial court denied applicant’ s motion for continuance

. Applicant ultimately pled g uilty to one char g e of possession of a controlled substance, and one char g e of unlawful possession of a firea rm by a felon. The trial court sentenc ed him to fifty

y ear s’ imprisonment. No deadly -we apon finding was made

. Applicant now contends that he was denied eff ective assistance of counsel during the plea barg aining proce ss. He arg ues that counsel was defic ient for incorre ctly convey ing the terms of the
State’s plea offe r and that, but f or counsel’s err or, applicant more than likely would have acc epted
the offe r. He claims that he was harme d both by the five-y ear incre ase in his sentenc es and by the resulting loss of cer

tain privileg es in prison. The trial court rec ommended that applicant’ s claim be
denied. We filed and set this case to deter mine whether counsel’s incorre ct advice amounted to the
failure to convey a plea offe r and, if so, what the reme dy should be. Subsequently , the State

conce ded that applicant’ s counsel was ineffe ctive and joined applicant in r equesting reinstateme nt of the orig inal 45-y ear

plea of fer

. II. ANALYSIS
A. Stri ckland Test
A defe ndant is entitled to eff ective assistance of counsel during the plea barg aining proce ss. 1
To establish a claim for ineffe ctive assistance of counsel, the defe ndant must satisfy the two-prong ed

Ex parte W

ilson , 724 S.W .2d 72, 73 (Tex. Crim. App. 1987). 1WELL S — 3

test articula ted in Strickland v. W ashington

. First, he must prove that c ounsel’s per formanc e wa s

2
defic ient. This r equire s showing that counsel’s repr esenta tion fell below an objective standard of

3

rea sonablene ss. Second, he must prove that this defic ient perf ormanc e resulted in prejudice to the 4
defe nse. This require s showing a rea s o n able probability that, but for counsel’s defic ient

5 perf ormanc e, the outcome of the proc eeding would have be en diffe rent. 6
B. Deficient P erform ance
We have held that the comp l et e fa i l ure of counsel to inform a criminal defe ndant of plea
offe rs m ade by the S tate is an omission that falls below an objec tive standard of rea sonablene ss. 7
Whil e the decision to acc ept or reje ct a p l ea o ffe r belong s to the defe ndant, plea discussions are
g ener ally h el d o utside the defe ndant’s prese nce. Counsel thus has a duty to communicate the 8
substance of the discussions to the defe ndant so that plea decisions are made only afte r the defe ndant

Strickland v. W

ashington , 466 U.S

. 668 (1984); Hill v. Lockhart , 474 U.S. 52 (1985) 2 (h o l ding that the Strickland test applies to ineffe ctive-a ssistance claims arising out of the p l ea proce ss); Hernande

z v. State , 726 S.W .2d 53 (Tex. Crim. App. 1986) (adopting the Strickland test in Texas). Thompson v. State , 9 S.W .3d 808, 812 (Tex. Crim. App. 1999). 3
Id

. 4
Id

. 5
Id

. 6
W ilson , 724 S.W .2d at 74; see also United States ex rel. Caruso v. Zelinsky , 689 F.2d 435, 7 438 (3rd Cir. 1982) (holding that fail u re o f co u nsel to communicate a plea offe r to defe ndant constituted a " g ross deviation fr om acc epted pr ofessional standa rds" )

. W ilson , 724 S.W .2d at 73-74. 8WELL S — 4

has been informed of all rele v an t considerations. Fa iling to meet this duty constitutes defic ient 9 perf ormanc e. 1 0

I f the failure to convey a plea offe r can constitute defic ient perf ormanc e, it follows that
counsel may act defic iently in g iving the defe ndant inacc urate information about the pl ea o ffer’s

terms. One Texas court found defic ient perf ormanc e wher e counsel failed to inform the defe ndant that a plea

offe r had a

firm dea dline. Another f ound defic ient perf

ormanc e whe re c ounsel failed 1 1 to expl ain to the def

endant the me aning of the State’s de fer red- adjudication off

er. 1 2

I n this case , applicant depende d on counsel to acc urate ly communicate the substance of the
State’s 45-y ear plea offe r to him so that he could make an informed decision as to whether to acc ept

o r reject it

. Although counsel di d convey the S tate’s plea offer to applicant, the information as to

a deadly -we apon finding was incorre ct. This constituted defic ient perf ormanc e and satisfies the first

prong of the Strickland test.
C. P rej udi ce
We have held that a defenda nt suffe rs pre

judice whe n his counsel’s deficient perfor mance

Id

. 9
Id . at 74. 1 0
Turner v. State , 49 S.W .3d 461, 465 (Tex. App. – For t Worth 2001, pet. dism’d) (holding 1 1 that the failure of counsel to promptly inform a client of a deadline expressly attache d to a plea offe r fell below a

n objective standa

rd of r easona

bleness).
State v. W illiams , 83 S.W .3d 371 (Tex. App. – Corpus Christi 2002, no pet.) (holding that 1 2 counsel’s duty to defe ndant extends to fully explaining any plea offers i n o rd er to help defe ndant make an informed decisio n , an d fa i lure to do so was, in eff ect, indis tinguishable from a failure to inform def

endant a bout the offe r at a ll).WELL S — 5

deprive s him of the opportunity to acc ept a plea offe r that he would have o therwise acc epted. 1 3 Prejudice has been found wher e counsel completely failed to convey a plea offe r and the defe ndant
later stated that he would have acc epted the offe r had he known about it. Prejudice has also been 1 4
found where counsel conve y ed a ple a off er, but fa iled to expl ain its terms, and the defe ndant l ater
stated that he would have acc epted the offe r if counsel had explained it to him. Ap p licant’s 1 5
decision to reje ct the plea offe r in this case was based on err oneous information, and by the time the

corr ect ter

ms of the offe r we re c onvey ed, it was too late to a cce pt.
I n his applications for writs of habea s corpus, a pplicant ar g ues that he r ejec ted the State’s 45-

y ear plea offe r based on counsel’s m i s representa tions. At trial, counsel stated that applicant had
wanted to ac ce p t t h e p lea offe r once he lear ned the corr ect terms. Counsel admitted to his err or,
say ing, “Judge, beca

use of my misinformation to my client, I have cause d him to miss the deadline
for acc epting the plea offe r.” Applicant has sufficie ntly shown that counsel’s err or deprive d him of
the opportunity to acc ept a plea offe r that he would have otherwise acc epted. Applicant has suffe red prejudice from counsel’s defic ient perf ormanc e and has there fore met the s econd prong of the
Strickland test.

D. Rem edy

Ex parte Lemke , 13 S.W .3d 791, 796 (Tex. Crim. App. 2 0 0 0 ); E x p a r t e W

ilson , 724 1 3 S.W .2d at 74

. Lemke , 13 S.W .3d at 796-97 (finding prejudice wher e counsel failed to convey two plea 1 4 offe rs t o the defendant, and defe ndant s tated he would have acc epted either offer if they had been communicated to him); W ilson , 724 S.W .2d at 74 (finding prejudice wher e a defe ndant with a life sentenc e stated he would have ag ree d to the State’s 13-y ear plea offe r if it had been convey ed to him by counsel).
W illiams , 83 S.W .3d at 375 (holding the trial court did not abuse its discretion in finding 1 5 prejudice wher e counse l failed to explain a plea of fer to defe ndant).WELL S — 6

Where a defe ndant has been deprive d of eff ective assistance of counsel, the reme dy should
be tailored to the injury suffe red from the constitutional violation and should not unnece ssarily infring e on competing interests. The reme dy should put a defe ndant back in the position he would 1 6
have been in if the vi olation had not occur red. Where inef

fec tive assistance of counse l deprives 1 7
a def endant of the opportunity

to acc ept a plea offe r, we have held that putting him in the position
he wa s in prior to the violation require s reinstating the orig inal offe r. 1 8
Relief is g rante d. The judgme nts in Cause Nos. W10815-1 and W10816-1 in the 355 t h
J udicial District Court of Hood County are set aside, applican t i s re m an d ed to the custody of the
Sheriff of Hood C ounty to answe r the c harg es ag ainst him, and the State is ordere d to reinstate its 45-y ear plea offe r. The trial court shall issue any nece ssary bench war rant within 10 day s afte r the 1 9
mandate of

this Court i ssues. Deliver ed: Novembe r 9, 2011 Do not publish

United States v. Morrison , 449 U.S. 361, 364 (1981). 1 6
Lemke , 13 S.W .3d at 797

. 1 7
Id . at 798; see also Turner , 49 S.W .3d at 471. 1 8
Id

. 1 9