Atkins v. State

26 S.W.3d 580, 2000 Tex. App. LEXIS 6537, 2000 WL 1425544
CourtCourt of Appeals of Texas
DecidedSeptember 27, 2000
DocketNo. 09-99-400 CR
StatusPublished
Cited by6 cases

This text of 26 S.W.3d 580 (Atkins v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atkins v. State, 26 S.W.3d 580, 2000 Tex. App. LEXIS 6537, 2000 WL 1425544 (Tex. Ct. App. 2000).

Opinion

OPINION

EARL B. STOVER, Justice.

This is an appeal from a conviction for the felony offense of DWI — subsequent offender. The trial court sentenced Don William Atkins as a habitual offender to twenty-five years of confinement in the Texas Department of Criminal Justice-Institutional Division and a $1,000 fine. Appellate counsel raises three issues on appeal.

In issue one, Atkins contends his trial counsel was ineffective. The standard for ineffective assistance is set out below:

In order to establish a claim for ineffective assistance of counsel, applicant must prove that (1) counsel’s representation fell below an objective standard of reasonableness; and (2) counsel’s deficient performance resulted in prejudice to the defense. Ex parte Wilson, 724 S.W.2d 72, 73 (Tex.Crim.App.1987) (applying two-part test set forth in Strickland v. [581]*581Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Failure of defense counsel to inform a criminal defendant of plea offers made by the State is an omission that falls below an objective standard of professional reasonableness. Id. at 73-74 (failure of counsel to advise defendant of plea bargain offer by government constitutes “gross deviation from accepted professional standards”); see also United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir.1994) (failure to communicate plea bargain offer constitutes unreasonable performance under prevailing professional standards); Johnson v. Duckworth, 793 F.2d 898, 902 (7th Cir.) (recognizing defense attorneys have duty to inform clients of plea agreements proffered by state and failure to do so constitutes ineffective assistance), cert. denied, 479 U.S. 937, 107 S.Ct. 416, 93 L.Ed.2d 367 (1986); United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3rd Cir.1982) (failure to communicate plea bargain offer is denial of 6th and 14th amendment rights); Barentine v. United States, 728 F.Supp. 1241, 1251 (W.D.N.C.) (“federal courts have been unanimous in finding that [defense counsel’s failure to inform the defendant of a plea offer] constitutes a violation of the defendant’s Sixth Amendment constitutional right to effective assistance of counsel”), aff'd, 908 F.2d 968 (4th Cir.1990).

Ex parte Lemke, 13 S.W.3d 791, 795-96 (Tex.Crim.App.2000). Atkins claims the record establishes that although the prosecutor communicated a plea bargain to his trial counsel, his attorney failed to communicate the offer to him. According to Atkins, he first became aware of the offer at the August 2, 1999, pre-trial hearing when he heard the prosecutor announce to the trial court that he (Atkins) had in the past rejected an offer of twelve years. The record reflects that upon hearing the prosecutor’s remark concerning the twelve year offer Atkins immediately interjected that he had never heard of that offer and wanted to accept it. We quote from the record:

[Prosecutor]: Your Honor, as the Court may or may not know, Mr. Atkins is charged with a felony DWI. As a result, he has two misdemeanor priors and also we’re alleging habitual, so that means he has two felony priors....
The Cowrt: Come up here, Mr. Atkins. Do you understand if the jury finds that you were convicted of these prior offenses and convicts you of DWI on this, that the least they’re going to give you is 25 years?
The Defendant: Yes, sir, Your Honor.
[Prosecutor]: I believe they’re going to the Court, Judge.
[Defense Counsel]: We’re going to the Court for punishment, Judge.
The Court: The least I can give you is 25 years.
[Prosecutor]: Yes, sir.
The Cowt: So that if I find you committed those crimes then I will not be able to give you probation. I will not be able to do anything except give you 25 years, you understand that?
The Defendant: Yes, sir, Your Honor.
The Court: All right. And notwithstanding that, you want to take your chances and try the case?
The Defendant: Yes, sir.
[Defense counsel]: Judge, actually we have nothing to lose. The plea offer’s 25 years which is the bare minimum we can get anyway.
The Court: Is that right?
[Defense Counsel]: Yes, sir.
[Prosecutor]: Judge, it was 12 and he turned that down and then it was 15.
The Defendant: No, sir, I never was offered 12 years, Your Honor.
[Defense Counsel]: I think the last offer was 15 years, Judge.
[Prosecutor]: I told [defense counsel] 12.
[582]*582[Defense Counsel]: The day we were in the courtroom, remember, I told you we needed to bring you in front of the bench and CCA took you out of here.
The Court: Well, do you want—
[Prosecutor]: Judge, that’s off the table now.
The Court: Well, I know.
The Defendant: Yes, sir, I’ll plead to 12.
The Court: If the offer didn’t get to him, for crying out loud—
[Prosecutor]: Judge, the 15 got to him.
The Court: That’s quite a bit of difference between 12 and 15.
The Defendant: Yes, sir. I’ll take the 12.
[Prosecutor]: Judge, that’s off the table.
The Court: Michael, you shouldn’t do that.
[Prosecutor]: Judge, he can take 25 now. Judge, he knew full he could have taken 15 years because [defense counsel] went over that with him several times.
The Court: 15 and 12, there is a difference.
[Prosecutor]: Judge, anyway, we would request since Mr. Adkins is refusing to stipulate he give a sample of his prints for Mr. Simmons and then we will have Mr. Simons testify to prove up those prints on the prior judgments.
The Court: Okay. But I still think you ought to go ahead and let him plea [sic] for 12 and save all this time and trouble.
[Prosecutor]:

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Cite This Page — Counsel Stack

Bluebook (online)
26 S.W.3d 580, 2000 Tex. App. LEXIS 6537, 2000 WL 1425544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atkins-v-state-texapp-2000.