Piland, James Earl v. State

Cause No.
076-f5
IN THE

TEXAS COURT OP CRIMINAL APPEALS

APPEALS
Trial No. CR-13-214

APPEAL No. 06-14-00063-CR 15 2015

JAMES EARL PILAND
Petitioner IN THE 4TH
Abel Acosta, Clerk
§
§ JUDICIAL DISTRICT COURT

THE STATE OF TEXAS
„. OP RUSK COUNTY, TEXAS
Respondent

FILED IN
COURT OF CRIMINAL APPEALS
15 2G15

Abel Acosta, Clerk

PETITION FOR DISCRETIONARY REVIEW

NO ORAL ARGUMENT IS REQUESTED

James Earl Piland, TDCJ-CID #1919190

Alfred Stringfellow Unit
1200 P.M. 655

Rosharon, Texas 77583
 IDENTITY.OF PARTIES

TRIAL JUDGE PRESIDING APPELLATE JUSTICES

The Honorable Judge Gossett The Honorable Justice Carter
Courthouse, 115 Main St., Room 3C^ The Honorable Justice Moseiey
Henderson, Texas 75652 Chief Justice C.J. Moriss

Tele. (903)657-0358 Sixth Court of Appeals

PETITIONER

TRIAL DEFENSE ATTORNEY

Allison Biggs, Atty-at-law
300 W. Main st.

Henderson, Texas 75652

Tele. (903)657-8195

DIRECT APPEAL ATTORNEY

T.W. Davidson, Atty-at-law
329 S. Fannin Avenue

Tyler, Texas 75702
Tele. (903)535-9600

RESPONDENT

PROSECUTOR AND APPELLATE COUNSEL

Richard Kennedy, Atty-at-law
Zack Wavrusa, Atty-at-law
115 N. Main St., Room 302

Henderson, Texas 75652-3147

Tele. (903)657-2265

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 TABLE OF CONTENTS PAGE #

IDENTITY OF PARTIES i

TABLE. OF CONTENTS ii

INDEX OF AUTHORITIES iii-iv

I. STATEMENT. OF THE CASE.... 1-3

II. STATEMENT OF. PROCEDURAL HISTORY 3

III. GROUNDS FOR REVIEW..... 3-4

1. LEGAL AND FACTUAL INSUFFICIENCY OF EVIDENCE.. 4

2. VOID INDICTMENT. 4

3. JUDICIAL MISCONDUCT. . . . 4

4. INEFFECTIVE ASSISTANCE OF COUNSEL 4

5. PROSECUTORIAL MISCONDUCT... . . 4

IV. ARGUMENT AND AUTHORITIES ' 4-10

PRAYER FOR RELIEF 10-11

VERIFICATION 11

CERTIFICATE OF SERVICE 11,12

APPENDIX A

Opinion of the Sixth Court of Appeals at Texarkana

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 INDEX OF AUTHORITIES PAGE #

SOUTHWESTERN REPORTER

Jiminez. v. State, 953S.W.2d 293 (Tx.App.-Austin 1997). 7
Jones v. State, 984. S.W.2d 254 (Tx.Cr.App. 1998) 7
Lofton v. State, 6 S.W.3d 796 (Tx.Cr.App. 2001) 7,9
Lofton v. State, 45 S.W.3d 649 (Tx.Cr.App.. 2001) . .... 7
Nethery v. State, 692 S.W.2d 686 (Tx.Cr.App. 1985)... 7
Ortiz v. Jones, 917 S.W.2d 770 (Tx.Cr.App. 1996) 6
Reed v. State, 703 S.W.2d 380 (Tx.Cr.App. 1986) 7
Smith v. State, 676 S.W.2d 584 (Tx.Cr.App. 1984).... 7
Thompson v. State,. 697. S.W.2d 413 (Tx.Cr.App. 1985) 5
Whitehead v. State, 745 S.W.2d 374 (Tx.Cr.App. 1982) 5

-IV-
 INDEX OF AUTHORITIES . PAGE #

FEDERAL STATUTES

Rules of Criminal Procedure's, Rule 60(b) 4
28 U.S.C. § 1746 11

SUPREME COURT REPORTER

Galvan v. Press,, 74 S.Ct. 737 (1954) 9
Gal van v. Press, 75 S.Ct. 17 (1954) 9
Hughes v. Rowe, 101 S.Ct. 173 (1988)..... 4
Johnson v. Lamb, 120 S.Ct. 522 (1999) 9
Rompilla v. Beard, 125 S.Ct. 2456 (2005).. 9
Snyder v. Commonwealth of Mass., 54 S.Ct. 330 (1934). 7
Strickland v. Washington, 104 S.Ct. 2052 (1984) 8,9

FEDERAL REPORTER

Johnson v. Lamb, 179 F.3d 352 ( Cir 1999). 9
Rommel v. Estelle, 590 F.2d 103 (5th Cir 1979) 9
Wiggins v. Proeunier, 753 F.2d 1315 (5th Cir 1985) 4

TEXAS STATUTES

Texas Code of Criminal Procedures, Rule 38.23(a).. 6,8,10
Texas Penal Code § 9.3i (c)(1) (2) ... 5,8,10
Texas Penal Code,§ 22.01(a) 10
Texas Penal Code § 22.01 (b) (1) 3
Texas Penal Code § 38.03(a) -....-...•. 7,9,10
Texas Rules of Appellate Procedure, Rule 66.3 10
Texas Rules of Appellate Procedure, Rule> 68.1 1

SOUTHWESTERN REPORTER

Bignall v. State, 887 S.W.2d 21. (Tx.Cr.App. 1984) 7
Dinkins v. State, 894 S.W.2d 330 (Tx.Cr.App.. 1995). 5
Emery v. State, 881 S.W.2d 21 (Tx.Cr.App. 1994) 6
Ex Parte Harris, 596 S.W.2d 293 (Tx.Cr.App. 1980) 8

-in-
 Cause No.

IN THE

TEXAS COURT OF CRIMINAL APPEALS

TRIAL No. CR-13-214

JAMES EARL PILAND §
Petitioner IN THE 4th
§
vs.
§ JUDICIAL DISTRICT COURT
THE STATE OF TEXAS OF RUSK COUNTY, TEXAS
Respondent §

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGE(S) OF SAID COURT:

COMES NOW, James Earl Piland, Petitioner, pro-se in the above styled and

numbered cause, and respectfully files this Petitioner's Petition For Discre

tionary Review pursuant to Rule 68.1, T.R.A.P.. The Petitioner would show

the Honorable Court the following:

I. STATEMENT OF THE CASE

On the evening of 21 April, .2003, the Petitioner, and his wife discovered

that their son and his friend had been stealing money from them out o±their

bedroom. so to curtail any further thefts, the Petitioner woke his son,

Tyler, to help him put a door on his bedroom. During.this time,a heated

argument began, leading to the Petitioner telling his wife to call the police.

In the meantime the Petitioner went into a nearby woods in order to remove

himself from further altercations, and to calm down.

It had already grown dark outside, and the Petitioner was barefoot. After

a short time the Petitioner heard several voices calling his name. He heard

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a noise and a bright light was shined into his face, blinding him. The Peti

tioner believed it was his son and Wesley Watkin, his son's friend. He turned

to walk further into the woods, but stepped on something sharp, and fell

down. The bright light was again shined into the Petitioner's eyes, and

a voice ordered him to "get up and come over here;" The Petitioner stood

up and tried to see who it was, because there were several people calling

him. The Petitioner's hands were in front of his eyes, trying to block the

light. He was told to put his hands down, and when he did, he was hit with

either a qun or flashlight. These were the only thinqs in the person's hands

that had hit him. At the same time, someone else began spraying something

in the Petitioner's face and eyes. The Petitioner's vision went black, and

he fell against his boat. As the Petitioner walked towards his house, the

officer continued hitting him in the face, while the other officer kept spray

ing mace everywhere. The Petitioner's son saw the officer strike the Peti

tioner with his gun or flashlight and jumped on. his back. The Petitioner

ran into his house for safety, and to clean mace out of his eyes and mouth.

E.M.S. had to be called, as the officer had sprayed the Petitioner's eleven

(11) year old daughter in the' face, and needed her eyes flushed out. At

no time were handcuffs put on me nor did the officers announce who they were.

Two other officers were called in to arrest'me. Officer Overton testified

that I offered no resistance when I was handcuffed.

Officer Loden claimed I rushed at him out of the woods, but changed his

testimony when cross-examined to "a fast pace." He would also commit perjury

stating he never struck the Petitioner at all. Then later admit striking

the Petitioner on the side of the face "3 or 4 times." (RR 4 at 151,153)

The Petitioner was then taken to jail and charged with "assault against a

public servant." During pre-trial hearing, the trial judge asked the defense

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attorney if she was prepared to go to trial. • She stated "no" because she

and the prosecutor were working on a plea deal due to the multiple charges.

But the judge ignored her and set the case for trial the next day, despite

there being multiple other cases on the Docket before the Petitioner's case.

The Petitioner was tried and convicted by a jury. Punishment was set at

sixteen (16) years confinement in TDCJ-CID. A Motion for Appeal was filed.

On 17 December, 2014, the Sixth Court of Appeals affirmed the conviction.

On 1-22-2015 the Texas Court of Appeals granted Petitioner's Motion For

Extension of Time to file P.D.R. till March 17, 2015.

On April 22, 2015, the Petitioner's P.D.R. was struck. The Court afforded

the Petitioner thirty (30) days to withdraw and refile the P.D.R..

This timely Petition For Discretionary Review follows.

II. STATEMENT OF PROCEDURAL HISTORY

1. The Petitioner appeared before the 4th District Court of Rusk County,

Texas on 2-18-2014, on a charge of assault of a public servant. The jury

found Petitioner guilty and set punishment at sixteen (16) years confinement

in TDCJ-CID.

2. A Motion for Appeal was filed at trial. An appeal was filed in the 6th

Court of Appeals of Texas. The appeal was affirmed on 17 December, 2014.

NC MOTION FOR REHEARING WAS FILED.

3. The , Petitioner filed a Motion for Extension of;Time to File Petition

For Discretionary Review. This was granted on 1-22-2015. A P.D.R. was filed

iiiea on 1-22-2015. The P.D.R. was struck due to page length and no opinion

from the 6th Court of Appeals. The Court afforded the Petitioner thirty

(30) days to redraw and file P.D.R..

This timely filea P.D.R. follows.

III. GROUNDS FOR REVIEW

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ISSUE 1 - Was the evidence factually and legally sufficient to support the

conviction when evidence, showed alibi of self defense?. (RR 4, pg. 19-21,35,68)

ISSUE 2 - Was the indictment.so flawed that the jury convicted the Defendant

of the wrong offense? (RR 4, at 163)(Rule 60(b), F.R.C.P.)

ISSUE 3 - Was it abuse of discretion in trial judge's failure to allow Defense

Counsel time to prepare for trial?.

ISSUE 4 - Was Defense Counsel Ineffective for; 1) Failure to file a Motion

for Jury Instruction on a lesser-included offense; 2) Failure to investigate

ana bring Petitioner's version of facts before the Jury;.3) Ineffective (in

her own admittance) due to trial judge's interference with her representation

of her client? (See direct appeal Brief by Appellant, pg. 12^-14).

ISSUE 5 - Was it Prosecutorial Misconduct when prosecutor failed to give

Defense Counsel full notice of enhancement of. charge until \ hour before

I^oir Dire? (Notep:. It was faxed to defense counsel's office while she was

at this pre-trial).

IV. ARGUMENTS AND AUTHORITIES

NOTE: The Petitioner has no access to trial records, and had to rely on

Brief's from his direct appeal to file this P.D.R..

The Petitioner.is not skilled in the science of law, and prays this Honor

able Court not hold him to the same stringent standards as a licensed attorney

pursuant to Wiggins v. Proeunier, 753 F. 2d ,1318 (5th Cir. 1985) and Hughes

v. Rowe, 101 S.Ct. 173 (1988).

NOTE: ORAL ARGUMENT IS NOT; REQUESTED

ISSUE 1 - Was the evidence factually and leqallv sufficient to suooort the

conviction when evidenc|!> f'jiowed alibi of self-defense? (RR 4, pgs 19-21,35,
68).

In the case at bar, the charge instructs the jury to determine guilt based

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on whether the Petitioner "did...cause bodily injury to Brad Loden, by strik

ing the said Brad Loden with the defendant's fist while the said Brad Loden

was trying to arrest the defendant, and the said Brad Loden was then and

there a public servant, to wit: a police officer...acting in lawful discharge

of his official duty, and the defendant knew that the said Brad Loden was

a public servant because the said Brad Loden was wearing a distinctive uniform

and displaying his badge..."

First note, the police uniform was dark blue,.it was dark, and the officer

kept a flashlight shining in Petitioner's face. (RR 4, pg. 19-21,35,68).

Second, the indictment is defective for failing to give "mens rea" as

is mandatory under Texas Law. (See Dinkins v. State, 894 S.W.2d 330 (Tex.

Crim.App. 1995); Whitehead v. State, 745 S.W.2d 374, 376 (Tex.Crim.App.'

1982) Thompson v. State, 697 S.W.2d 413, 415 (Tx.Crim.App. 1985). Such les

sened the States burden of proof denying Petitioner due process.

The charge failed to conform to Texas Penal Code § 22.01(a), (b)(1) by

failing to state "intentionally, knowingly, or recklessly."

Third, the Petitioner had an alibi defense as Officer Loden kept hitting

the Petitioner in the head, which he admitted at trial (RR 4 at 151, 153).

The only time Petitioner struck the officer was when Petitioner fled to his

house to clean the mace from his eyes, someone grabbed his shirt. He knocked

the hand away and fled into his house. (RR 4, pg. 19^21,35-68). Note others

testified seeing Loden hit the Petitioner between the eyes with his gun or

flashlight, which started a struggle between Loden and Petitioner's son.

Pursuant to Texas Penal Code § 9.31(c), "(c) The use of force to resist arrest

or search is justified: (1) if, before the actor offers any resistance, the

peace officer (or person acting at his direction) uses or attempts to use

greater force than necessary to make the arrest or search; and (2) when and

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to the degree the actor reasonably believes the.force is immediately necessary

to protect himself against the peace officer's (or other person's) use or

attempted use to greater, force than necessary." Also, because it is an alibi>

defense, Article 38.23(a) V.A.C.C.P. requires the Court to give jury instruc

tions on. whether the defendant had a right to defend himself against excessive

force by police.

Also note Officer Loden testified the first handcuff had been locked'on

Petitioner's wrist,, yet in Video 2, not shown to Jury, when handcuffed by

off-duty officer, no handcuff's were on Petitioner's wrists.

"A critical inquiry is whether, after viewing the evidence, any rational

trier of fact could have found the essential elements of the crime beyond

a reasonable doubt." Emery v. State, 881 S.W.2d 702, 705 (Tex.Crim.App.

1994); "Where appellate attacks legal sufficiency of the evidence, appellate
Court must view only that evidence which supports the. verdict, however, where

appellant's challenge is to factual sufficiency [as in this casej of evidence,

appellate Court must consider all evidence. Court of Appeals must weigh

and compare alio evidence.in the record.". Ortiz v.. Jones, 917 S.W.2d 770

(Tex.Crim.App. 1996). (Note: The officer is no longer a police officer since
this trial).

Petitioner was denied due process. His conviction should be reversed

and he be afforded a new trial.

ISSUE 2 - Was the indictment so flawed that the Jury convicted the Defendant

of the wrong offense and without mandatory mens rea?

Officer Loden testified Petitioner resisted when the first handcuff was

locked on his wrist. But also testified the Petitioner was not under arrest.

So why come with drawn weapon, or even handcuff and mace the Petitioner?

The indictment failed to give mens rea, as required by law. Tx.Pen.Code

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§ 38.03(a) is what the charge might have been, i.e. resisting arrest, except
by Loden's own testimony the Petitioner was not under arrest. (See Lofton v.

State; 45 s.W.3d 649 (Tex.Crim.App. 2001). The only requirement was a showing

of some evidence to permit.the jury rationally to find the Petitioner's guilt

of only the lesser, not of the greater. (See also. Lofton v. State, 6 S.W.3d

at 797; Bignall v. State,/887 S.W.2d 21,23 (Tex.Crim.App. 1994). "Whether

there is evidence within or without the defendant's testimony, which raises

the lesser offense controls the.issue of whether an instruction on the lesser

offense, controls the issue of whether an instruction on the lesser included

offense should be given." Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.

App. 1998).

"Although it is clear that the issue of self-defense may be raised by

evidence other than defendant's testimony (see Smith v. State, 676 S.w.2d

584 (Tex.CrinuApp. 1984), it is equally clear that some evidence must show

that defendant reasonably believed that force was necessary to protect himself

against unlawful force of another." Nethery v. State, 692 S.W.2d 686, 704

(Tex.Crim.App. 1985); Reed v. State, 703 S.W.2d 380, 382.

The Petitioner states his constitutional right to due process was violated

The conviction should be reversed and a new trial afforded to the Petitioner.

(See Jiminez v. State, 953 S.W.2d 293, 299 (Tex.App.-Austin 1997, pet.ref'd)..

ISSUE 3 - Was it abuse of discretion in trial judge's failure to allow Defense

Counsel time to prepare for trial? ,..,.,

"State is free to requlate court procedure in accordance with its own

conception of policy and fairness without infringing on 14th.Amendment, unless

some fundamental principle of justice is violated." Snyder v. Commonwealth of

Mass., 54 S.Ct. 330 (1934).

The trial iudqe aske:! the State and Defense if they wecepreoared to cro

to trial. Defense, stated. they weren't ready, as the prosecutor and her were

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working out a plea deal,, due to multiple other charges involved. The trial

judge ordered the case set for. Docket the next day. By and through the actions

of the trial judge, the Petitioner was denied his.right to effective assis

tance of counsel at trial.

"Actual or constructive denial of assistance of counsel altogether is

legally presumed to result in prejudice." Strickland v. Washington/ 104 S.Ct.

2052 (1984). "Mere pro forma appearance of counsel does not amount, to the

assistance of counsel and due process of law guaranteed by federal constitu

tion and it does not afford the right of being heard by...counsel guaranteed

by state constitution." Ex,Parte.Harris, 596 S.W.2d 293 (Tx.Crim.App. 1980).

Actions by trial judge denied Petitioner,due process and effective assis

tance of counsel. Petitioner should.be granted a reversal of his conviction,

and granted a new trial.

ISSUE 4 - Was Defense. Counsel ineffective for: 1) failure to file a Motion

for Jury Instruction on lesser-included offense and alibi defense; 2) failure

to investigate and bring Petitioner's version of facts before the Jury; 3)

Ineffective by her own admittance due to trial judge's interference with

her representation of her client?

In the instant case at bar, a quick review of transcripts will show the

Petitioner was entitled to jury instructions under. Article 38.23(a) V.A.C.C.P..

on both his alibi of self-defense", pursuant to Tx.Pen.Code § 9.31(c), and

on the lesser-included offense. Counsel's inadequate time to prepare for

trial severely effected representation, denying him effective counsel. De

fense counsel failed to object to improper indictment/charging instrument -

that failed to give "mens rea", a mandatory element of the charge. By defense

counsel's own admittance (See Appellant Brief in direct appeal), she was

not ready for trial, and this hampered her representation of her client.

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 "If the absence of the lesser included offense instruction left the jury

with the options either to convict the defendant — or to aquit him, a finding,

of harm is essentially automatic..." Lofton, 6 s.W.3d at 800.

"When a defendant argues that his counsel's failure to investigate preven

ted counsel from making an informed tactical choice, he must show that know-'

ledge of the investigated evidence would have altered his counsel's decision...

in order to satisfy prejudice prong of ineffective assistance of counsel

claim." Johnson v. Lamb, 179 F.3d 352, cert.denied, 120 S.Ct. 522 (1999).

"If there is one plausible line of defense—counsel must conduct a 'reasonable

substantial investigation' into that line of defense..." Strickland, supra, at

2061; Rommel v. Estelle, 590 F.2d 103, 104 (5th Cir 1979). Self-defense

was the one plausible, line of defense,, yet no argument was made, nor jury

instruction given pursuant to Art. 38.03(2) V.A.C.C.P. Nor was the lesser

included offense argument or jury instruction given dispiteall the evidence,

supporting said issues. Such constituted dereliction of counsel, and this

did effect the outcome of the trial.

The Petitioner should be granted a new trial and a reversal of this convic

tion. (See Rompilla v. Beard, 125 S.Ct. 2456 (2005)).

ISSUE 5 - Was it Prosecutorial Misconduct when-

Defense Counsel full notice of enhancement of charqe until % hour before

Voir Dire, faxing said notice to Defense Counsel's office knowing fully well

Defense Counsel would not be there?

"Prosecutor is obliged to see that justice is done." Art. 2.01 V.A.C.C.P.

"Fair play is the essence of 'due process.'" Galvan v. Press, 74 S.Ct. 737,

reh.denied, 75 S.Ct. 17 (1954).

The prosecutor had spent the afternoon, prior to the trial, negotiating

a plea agreement with defense counsel. Yet when the trial judge asked if

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both sides were ready for trial, he stated "yes" knowing he had acceptibly

led defense counsel into believing a plea deal would be reached. The proof

of this; why else would he send the enhancement paragraphs to her office

at 8:00 a.m. when she was at the Courthouse. The trial started at 8:30 a.m..

The Petitioner, would state the actions by the prosecutor coupled with

the actions of the trial judge shows a conspiracy to ensure this conviction

went through regardless of the Petitioner's right to due process, and a fair,

impartial trial. This conviction should be reversed and the Petitioner affor

ded a new trial.

PRAYER FOR RELIEF

ALL PREMISES CONSIDERED, the Petitioner prays this Honorable Court ORDER'

the reversal of this conviction due to a void indictment, judicial abuse

of discretion, legal and factual insufficiency of evidence pursuant to Pen.Code

§ 22.01; 9.31(c); and 38.03(a) Art. 38.23(a) V.A.C.C.P., ineffective assistance
of counsel, prosecutorial misconduct.

The reasons for granting this Petition are:..

(a) the decision of the 6th Court of Appeals.conflicts with other Courts

of Appeals on the same issues;

(b) the Court of Appeal .has decided important questions of law in a way

that conflicts with the Court of Criminal Appeals and the supreme' Court;

(c) the Court of Appeals/has disagreed on a material question of law neces

sary to the Court's decision; and

(d) The Court of Appeals has so far departed from the accepted and usual

course of judicial proceedings, or so far sanctioned such a departure

by a lower court, as to call for an exercise of the Court of Criminal

Appeal's power of supervision.

(See T.R.A.P., Rule 66.3).

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 As such, the Petitioner prays this Honorable Court GRANT the Petitioner:

1. a reversal of the District Court's conviction of Petitioner; and

2. render a judgement of acquittal; or order a new trial; and

3. vacate Petitioner's 16 year sentence in TDCJ-CID;

4. order Petitioner's release from prison and/or State Custody; or

5. remand this case to the trial court as this Court deems necessary.

IT IS SO PRAYED

Respectfully Submitted,
"James Earl Piland, TDCJ-CID #1919190

Alfred Stringfellow Unit
1200 F.M. 655

Rosharon, Texas 77583

VERIFICATION

I, James Earl Piland, Petitioner, pro-se, in the above Petition For Dis

cretionary Review, do hereby verify and declare under penalty of perjury,

that the statements contained herein are true and correct.

Affirmation made pursuant to 28 U.S.C. § 1746.

EXECUTED on this the j£L day of y^Lz^^^ >2015.

"James Earl Piland, TDCJ-CID #1919190

Petitioner, Pro-Se

CERTIFICATE OF SERVICE

I, James Earl Piland, being presently incarcerated at the Mac Stringfellow

Unit of the TDCJ-CID, in Brazoria County, Texas, do hereby certify that a

true and correct copy of the above Petition For Discretionary Review has

been served by placing true and correct copies of the same, first class mail,

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postage prepaid, addressed to the following:

STATE PROSECUTING ATTORNEY
P.O. Box 12405, Capitol Station
Austin, Texas 78711

AND TO

rusk County attorney
courthouse
115 N. Main Street, Room 302
Henderson, Texas 75652

EXECUTED on this the /^- day of _/_^ ,2015.

"ames Earl Piland, TDCJ-CID #1919190
Petitioner, Pro-Se

-12-
 In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-14-00063-CR

JAMES EARL PILAND, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 4th District Court
Rusk County, Texas
Trial Court No. CR 13-214

Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
 OPINION

In April 2013, Overton police officers, Brad Loden and Mary Williams, responding to the

scene of a reported domestic disturbance, encountered James Earl Piland, who smelled of alcohol

and was acting erratically. Loden testified that, while he was attempting to handcuff Piland to

assure officer safety, Piland punched him in the shoulder, causing him pain. Piland appeals the

resulting conviction for assault on a public servant,1 claiming a defective indictment, a lack of
evidence to convict him, and the ineffectiveness of his trial counsel based on a failure to transmit

a plea offer.2
Although the State agrees with Piland that his trial counsel's failure to tell Piland of a

plea offer constituted ineffective assistance of counsel and although the State fails to argue

against Piland's other points, we affirm the trial court's judgment because (1) Piland's claim of

ineffective assistance of counsel has not been established, (2) sufficient evidence supports

Piland's conviction, and (3) Piland forfeited any claim of indictment defect.

(1) Piland's Claim ofIneffective Assistance ofCounsel Has Not Been Established

Piland contends that he received ineffective assistance of counsel because his trial

counsel did not inform him of an offered plea agreement for a three-year term of confinement.

The State has responded only to the issue regarding ineffective assistance of counsel, agreeing

'As applicable to this case, intentionally, knowingly, or recklessly causing bodily injury to another—assault—
becomes a third-degree felony if it is committed against one the defendant knows is a public servant while that
servant is lawfully discharging anofficial duty. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp. 2014).
2The plea offer that went uncommunicated was for three years' confinement. As a result of the conviction, Piland
was sentenced to sixteen years' imprisonment.
that its offer was not transmitted to the defendant and adopting Piland's position that such a

failure necessarily constitutes ineffective assistance of counsel that requires reversal.

The standard for testing claims of ineffective assistance of counsel is set out in Strickland

v. Washington, 466 U.S. 668 (1984). To prevail on such a claim, an appellant must prove by a

preponderance of the evidence (1) that his or her counsel's representation fell below an objective

standard of reasonableness and (2) that the deficient performance prejudiced the defense.

Strickland, 466 U.S. at 689; Resales y. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). To

meet this burden, the appellant must prove that the attorney's representation fell below the

standard of prevailing professional norms and that there is a reasonable probability that, but for

the attorney's deficiency, the result of the trial would have been different. Ex parte Martinez,

195 S.W.3d 713, 730 (Tex. Crim. App. 2006); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.

App. 2000).

Failure of a criminal defense counsel to inform his or her client of plea offers made by

the State falls below an objective standard of professional reasonableness. Ex parte Lemke, 13

S.W.3d 791, 795 (Tex. Crim. App. 2000), overruled on other grounds by Exparte Argent, 393

S.W.3d 781 (Tex. Crim. App. 2013); Ex parte Wilson, 724 S.W.2d 72, 73 (Tex. Crim. App.

1987) (failure of counsel to advise defendant of plea offer by government constitutes "gross

deviation from accepted professional standards"). Just last year, however, the Texas Court of

Criminal Appeals reversed its position in Lemke that such an error, without separate proof of

3In its brief, the State agrees with Piland's argument in connection with this point of error. The State asks that we
either modify the sentence to conform with the agreement ofthree years' confinement orremand tothe district court
for specific performance of the plea agreement.
prejudice, established a claim of ineffective assistance of counsel.4 In that, most recent,
formulation, the court continued to agree that substandard representation was shown, but adopted

a higher threshold to show that the defendant was prejudiced. Argent, 393 S.W.3d at 784. In so

doing, the court applied the three-part test announced in Missouri v. Frye, 132 S.Ct. 1399, 1405

(2012).

Now, to establish prejudice from the ineffective assistance of counsel because defense

counsel does not tell his or her client about a plea offer, the appellant must show a reasonable

probability that (1) he or she would have accepted the offer if it had been communicated, (2) the

prosecution would not have withdrawn the offer, and (3) the trial court would have accepted the

plea agreement. Argent, 393 S.W.3d at 784; Rodriguez v. State, 424 S.W.3d 155, 159 (Tex.

App.—San Antonio 2014, pet. granted). A "reasonable probability" is "a probability sufficient

to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In other words, the

question is whether it is reasonably likely that the outcome would have been different as a result.

Harrington v. Richter, 131 S.Ct. 770, 791-92 (2011). "The likelihood of a different result must

be substantial." Id. at 792; see Argent, 393 S.W.3d at 784; Rodriguez, 424 S.W.3d at 159.

The only way in which such a probability can be assessed on direct appeal is through the

statements of counsel, client, and trial court. Argent does not mandate that evidence on the

subject be taken at a hearing. In this case, appellate counsel stated that the offer was made and

that the offer remained available, as shown by a subsequent plea offer signed during the course

4A defendant's Sixth Amendment right to effective assistance of counsel extends to all critical stages of trial,
including the plea-bargaining process. Missouri v. Frye, 132 S.Ct. 1399, 1405 (2012); Lafler v. Cooper, 132 S.Ct.
1376,1384(2012).
4
of this appeal, in which the State re-offered Piland its original three-year deal. Counsel states

that Piland would have accepted the earlier offer and will certainly accept this one, in light of the

sixteen-year sentence assessed in the case.

That shows a reasonable probability that Piland would have accepted the offer and that

the State did not or would not withdraw it. Thus, the first two parts of the three-part test have

been satisfied.

The third part requires a showing that the trial court would have accepted the plea

agreement. There is nothing to establish or refute this element. See TEX. CODE CRIM. PROC.

ANN. art. 26.13 (West Supp. 2014). The offer was not presented to the trial court for acceptance

or rejection. The briefing also makes no statement about the trial judge's practice, mental state,

or reaction to such an agreement; the record sheds no light on the matter, and there is no notation

on the docket concerning either the first or second time the offer was made by the State.

Accordingly, one of the three requirements has not been met. On this record, the high threshold

of the Argent standard has not been met. Based solely on the record before us, Piland's claim of

ineffective assistance of counsel would fail.

A remaining question is whether we should honor the request by the State that the case be

remanded so that the trial court can make such a determination. We ordinarily accept a

confession of error by the State. Hawkins v. State, 613 S.W.2d 720, 723 (Tex. Crim. App. 1981).

We are not, however, bound by the State's confession of error. Meshell v. State, 739 S.W.2d

246, 250 n.4 (Tex. Crim. App. 1987). A confession of error by the State is not conclusive when

reviewing an appeal, and, in the absence of reversible error, we are not to make our ruling based
on the State's request to reverse. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002);

Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet. ref d). We do not believe

we are authorized to reverse merely on the request of a party. Under this state of the law, a claim

of ineffective assistance of counsel has not been established.

(2) Sufficient Evidence Supports Piland's Conviction

Piland asserts the insufficiency of the evidence to support the conviction. He points to

language in the indictment and the charge requiring the jury to find that Loden was in the process

of arresting Piland and by so doing was acting in the performance of his official duty as a public

servant at the time of the assault. Piland also contests the sufficiency of the evidence to support

the allegation that he caused bodily injury to Loden.

In reviewing the legal sufficiency of the evidence, we review all the evidence in the light

most favorable to the jury's verdict to determine whether any rational jury could have found the

essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,

912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfieldv.

State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. refd). We examine legal

sufficiency under the direction of the Brooks opinion, while giving deference to the

responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to

5This matter could be addressed by a petition for habeas corpus and a concomitant hearing to address that question.
So long as relevant information is made part of the record, the requirements of controlling caselaw might be met.
Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); cf.Massaro v. United States, 538 U.S. 500, 504-05
(2003). If these allegations were presented in an application for a writ of habeas corpus and were established, the
trial court could make findings of fact in accordance with Argent that might entitle Piland to relief based on
satisfaction of the sole remaining requirement of establishing that the trial court would have accepted the plea
agreement. See Argent, 393 S.W.3d at 784.
6
draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19).

The charge instructs the jury to determine guilt based on whether Piland

did . . . cause bodily injury to Brad Loden, by striking the said Brad Loden with
the defendant's fists while the said Brad Loden was trying to arrest the defendant,
and the said Brad Loden was then and there a public servant, to-wit: a police
officer . . . acting in lawful discharge of his official duty, and the defendant knew
that the said Brad Loden was a public servant because the said Brad Loden was
wearing a distinctive uniform and displaying his badge

Had the testimony been different, we might assume that, because the officers were attempting to

handcuff Piland, they were indeed in the process of arresting him. In light of their specific and

emphatic testimony to the contrary, however, we cannot conclude there is any evidence of an

attempted arrest. The question, then, is whether it was necessary in this instance for the State to

actually prove everything it alleged. Under the "hypothetically correct jury charge," we

conclude that there was no requirement that the State prove the arrest allegation.

Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment,

does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's

theories of liability, and adequately describes the particular offense for which the defendant was

tried." Id.

The Texas Court of Criminal Appeals has required courts of appeals to disregard such

mistakes through use of a "hypothetically correct jury charge" rather than the charge actually

presented to the jury. The essential elements of the offense are defined by the hypothetically
7
correct jury charge for the case. A hypothetically correct jury charge does four things: (1)

accurately sets out the law, (2) is authorized by the indictment, (3) does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and

(4) adequately describes the particular offense for which the defendant was tried. Ramos v.

State, 407 S.W.3d 265, 269 (Tex. Crim. App. 2013). The hypothetically correct jury charge need

not always include all of the charging instrument's allegations.

In the context of the hypothetically correct jury charge construct, this is not the first time

this Court has wrestled with the proof required to support a conviction for assault on a public

servant. See Hoitt v. State, 28 S.W.3d 162, 167 (Tex. App.—Texarkana 2000),per. dism'd, 65

S.W.3d 59 (Tex. Crim. App. 2001). In Hoitt, we dealt with similar explanatory language—"To

wit: attempting to arrest [Hoitt]"—that was in the indictment and was descriptive of the State's

theory of the official duty the officer was exercising, but which we recognized was ordinarily

unnecessary for a correct charge on the elements of the offense.

We were confronted in Hoitt with a jury charge that conformed to the indictment. It

contained language that did not strictly comply with the statute^ but was descriptive of how an

essential element of the offense was committed. At that time, the Texas appellate courts were

still grappling with the extent to which a defendant could be convicted on a charge not submitted
to the jury. Accordingly, we analyzed former caselaw in light of the then newly formulated

requirements ofMalik in an attempt to determine whether the State must prove what it alleged or
if its proof might vary from the charge. In Hoitt, we concluded that, although the charge
correctly described the duty being exercised as an arrest, the description was not one of the
elements of the offense, but was merely descriptive of the element. We concluded that, under

Burrell6 (which required that the State prove an unnecessary fact alleged in the indictment that

describes an essential element of the offense), the actual charge tracked the indictment and was

thus correct. A petition for review of our decision was granted, but was later dismissed as being

improvidently granted.

Since then, the Texas Court of Criminal Appeals has taken opportunities to refocus the

formulations on this topic. The surplusage rule and the Burrell exception7 were overruled the
next year in Gollihar v. State, 46 S.W.3d 243, 256-57 (Tex. Crim. App. 2001). Surplusage was

defined as an allegation in a charging instrument not legally essential to constitute the offense.

Id. at 249.

Of course, surplusage problems continue to exist and must still be dealt with. Thus, the

court held in Gollihar that, in the future, the "fatal variance" doctrine will be used to resolve

surplusage problems. Id. at 256 n.21; see Williams v. State, 270 S.W.3d 140, 147 (Tex. Crim.

App. 2008). A variance occurs when the State has proven the defendant guilty of a crime butthe

proofat trial varies from the allegations in the charging instrument. Gollihar, 46 S.W.3d at 246.

The variance becomes "fatal" when the variance between the indictment and the evidence at trial

denies the defendant notice of the charges against him or her. Id. at 256; Moore v. State, 11

S.W.3d 495, 499 (Tex. App.—Houston [14th Dist] 2000, no pet.). Only material variances that

prejudice the defendant's substantial rights render the evidence insufficient or become fatal.

''Burrell v. State, 526 S.W.2d 799, 802 (Tex. Crim. App. 1975), overruled byGollihar, 46 S.W.3d at 256-57.

7The Burrell exception held that, if the unnecessary allegation described a way in which an element of thecrime was
committed, the State was required to prove its case as alleged.
9
Gollihar, 46 S.W.3d at 257; Human v. State, 749 S.W.2d 832, 836 (Tex. Crim. App. 1988)

(abrogating rule that mere or slight variance between indictment allegations and proof at trial

renders evidence insufficient). Allegations in the charging instrument giving rise to immaterial

variances may be disregarded. Id; Gollihar, 46 S.W.3d at 257; Hinojosa v. State, 433 S.W.3d

742, 757 (Tex. App.—San Antonio 2014, pet. ref d).

The most recent statement from the Texas Court of Criminal Appeals on this topic is set

out in Thomas v. State, No. PD-1326-13, 2014 WL 5154586 (Tex. Crim. App. Sept. 24, 2014).

In considering the hypothetically correct jury charge appellate courts are to use on review, the

court reasoned that the "law as authorized by the indictment" consists of the statutory elements

of the indictment and those elements as modified by the indictment. Id. at *8-9. That

hypothetically correct charge need not include allegations that would give rise to only immaterial

(i.e., non-fatal) variances.

While alleging statutory alternative manner and means places the allegation in the

hypothetically correct jury charge, allegations of manner and means that are not statutory

alternatives are not part of such a charge. See Gollihar, 46 S.W.3d at 256. Because the

indictment's and charge's allegation that officers were attempting to arrest Piland did not set out

a statutory alternative manner and means of committing assault on a public servant, it was not

necessary to specify what official duty the officer was exercising, and the allegation was not part

of the hypothetically correct jury charge. Thus, the proof that the officers were not trying to

arrest Piland is of no moment. The officers were investigating a reported injury caused to a

person, allegedly by Piland. That is their duty, and there is accordingly sufficient evidence to

10
allow a reasonable jury to conclude that they were accomplishing their duty during their

encounter with Piland.

Piland also contests the sufficiency of the evidence to prove that he caused a bodily

injury to Loden. The evidence was that Piland punched Loden in the upper arm. While there is

no evidence of any lasting injury to Loden, "bodily injury" is defined as including simple

physical pain. See Tex. Penal CODE Ann. § 1.07(a)(8) (West Supp. 2014). According to the

definition, then, because Loden testified that it hurt when Piland hit him, the jury could have

concluded that Loden suffered bodily injury as that term is defined by the statute.

The evidence is sufficient to support the conviction.

(3) Piland ForfeitedAny Claim ofIndictment Defect

Piland contends that the indictment is materially defective because it does not specify any

level of mens rea for the offense. Piland's complaint, however, was not made to the trial court.

If the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial on the
merits commences, he waives and forfeits the right to object to the defect, error,
or irregularity and he may not raise the objection on appeal or in any other
postconviction proceeding. ...

Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005).

Accordingly, Piland has forfeited any right to complain that the indictment had no

allegation of mens rea. Accordingly, we can address no error in that regard.

8The jury charge, on the other hand, includes the proper mens rea allegation—that the act was committed
"intentionally, knowingly, or recklessly."
11
»••*

We affirm the trial court's judgment.

Josh R. Morriss, III
Chief Justice

Date Submitted: October 16, 2014
Date Decided: December 17, 2014

Publish

12
 Court of Appeals
Sixth Appellate District of Texas

JUDGMENT

James Earl Piland, Appellant Appeal from the 4th District Court of Rusk
County, Texas (Tr. Ct. No. CR 13-214).
No. 06-14-00063-CR v. Opinion delivered by Chief Justice Morriss,
Justice Carter and Justice Moseley
The State of Texas, Appellee participating.

As stated in the Court's opinion of this date, we find no error in the judgment of the court
below. We affirm the judgment of the trial court.
We note that the appellant, James Earl Piland, has adequately indicated his inability to
pay costs of appeal. Therefore, we waive payment of costs.

RENDERED DECEMBER 17, 2014
.BY ORDER OF THE COURT
JOSH R. MORRISS, III
CHIEF JUSTICE

ATTEST:
Debra K. Autrey, Clerk