Pennington v. State
| Decision Date | 16 December 1988 |
| Docket Number | No. 12-88-0002-CR,12-88-0002-CR |
| Citation | 768 S.W.2d 740 |
| Parties | Wayne PENNINGTON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Jackee Cox, Longview, for appellant.
Sheila Allen, Longview, for appellee.
Appellant was found guilty by a jury of indecency with a child. Punishment was assessed by the jury at seven years' confinement. He filed a motion for new trial which was denied after an evidentiary hearing.
On appeal, Appellant's sole point of error is that he was denied effective assistance of counsel. He alleges several deficiencies in trial counsel's performance but we need look no further than the complaint that counsel did not inform him of plea bargain offers made by the State.
It is established that a criminal defendant is entitled to effective assistance of counsel during the plea bargaining process. Ex parte Wilson, 724 S.W.2d 72, 73 (Tex.Cr.App.1987). A defendant has a right to be fully informed about all plea bargain offers. Id. at 74. The defense attorney has an obligation to fully advise his client of the terms and desirability of plea offers by the State. Id.; State Bar of Texas, Ethical Considerations on Code of Professional Responsibility EC 7-7, EC 7-8 (1988). It is the defendant who must make the ultimate decision on his plea and bear its consequences, not the attorney. Hanzelka v. State, 682 S.W.2d 385, 387 (Tex.App.--Austin 1984, no pet.).
In evaluating claims of ineffective assistance of counsel, we apply the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish such a claim the defendant has to show:
1. Counsel's representation fell below an objective standard of reasonableness; and,
2. The defendant was prejudiced by counsel's deficient performance.
In Ex parte Wilson, our Court of Criminal Appeals answered affirmatively the issue of whether the trial counsel's failure to inform a client of plea bargains offered by the State falls below an objective standard of reasonableness.
In this case, the Assistant District Attorney, William Gleason, testified at the hearing on the motion for new trial that he had first spoken to Jonathan Crow, Appellant's retained trial counsel, at about the time of arraignment. Mr. Gleason related that he told Mr. Crow that if Appellant continued in counseling for a while, the State would "sit on" the case and consider reducing the charge to a misdemeanor with a recommendation of one year probation with counseling as a condition. Mr. Gleason testified that offer was never discussed again with Mr. Crow. Appellant testified Mr. Crow never told him of such an offer. The evidence at trial revealed that although Appellant did not consistently continue counseling, he drove a truck for a living and called in most times when he was unable to attend counseling sessions.
Mr. Gleason also testified that a day or two before trial he told Crow that if Appellant pled guilty the State would not oppose probation. Appellant testified that Crow told him that the State was not going to oppose probation but no mention was made of a guilty plea.
Appellant was assessed seven years in prison as his punishment after trial. Crow's failure to inform him of the proffered plea bargains precluded any opportunity he may have had to knowingly choose a plea under circumstances which would have prevented a prison term. Crow's performance at the plea bargaining phase of this case was not reasonable under any objective standard of reasonableness. See Ex parte Wilson, 724 S.W.2d at 74; Hanzelka v. State, 682 S.W.2d at 386-387.
Unlike Wilson and Hanzelka, we have no direct testimony from Appellant that he would have accepted either offer had he known of its existence. However, in satisfying the second prong of the Strickland v. Washington test it need not be shown that "counsel's deficient conduct more likely than not altered the outcome." Martin v. McCotter, 796 F.2d 813, 817 (5th Cir.1986), cert. denied, 479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 985 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984)). Rather, Appellant need only have shown "a probability sufficient to undermine confidence in the outcome." Id.
We have no difficulty in this case concluding that counsel's deficient performance created such a probability. Both offers involved probation as opposed to...
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