Burch, Dan Dale
541 S.W.3d 816
| Tex. Crim. App. | 2017Background
- Dan Dale Burch was convicted by a jury of sexual assault and sentenced to seven years' imprisonment; after guilt, he elected the judge to assess punishment.
- Defense counsel told the court (and later swore in an affidavit) that he believed the judge could grant deferred-adjudication probation and thus advised Burch to have the judge—not the jury—assess punishment.
- The trial judge declined to grant probation and imposed seven years; Burch timely moved for a new trial alleging ineffective assistance because of counsel's erroneous advice about deferred-adjudication eligibility.
- The trial court denied the new-trial motion without a hearing; the court of appeals reversed, reasoning that a jury could have recommended "straight" probation and Burch was prejudiced.
- The State petitioned the Court of Criminal Appeals; the CCA held the court of appeals misapplied the deferential standard of review and affirmed the trial court's denial of the new-trial motion.
Issues
| Issue | Burch's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying a motion for new trial based on counsel's erroneous advice about probation eligibility | Counsel erroneously told Burch the judge could grant deferred-adjudication; Burch would have elected a jury for punishment if correctly advised | Trial court implicitly rejected the affidavits and the record does not show a reasonable probability of a different outcome | No abuse of discretion; trial court's denial upheld |
| Whether counsel's incorrect advice prejudiced Burch (i.e., would the outcome have been different) | A jury could have considered and recommended "straight" probation, so there is a reasonable probability of a different result | Burch failed to prove that correct advice would have changed his election or the ultimate result; affidavit credibility and tactical reasons support denial | Prejudice not shown; affidavits could be disbelieved and other tactical reasons existed |
Key Cases Cited
- Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012) (sets prejudice standard and requires deference to trial court's denial of new-trial affidavits)
- Recer v. State, 815 S.W.2d 730 (Tex. Crim. App. 1991) (holds defendant must show decision to have judge assess punishment was not motivated by other tactical factors)