Pete Rodriguez v. State, 01-15-00135-CR

Rodriguez was indicted for indecency with a child and found guilty by a jury; the judge sentenced him to 10 years' imprisonment.
The complainant testified to multiple instances of touching, some alleged to have occurred when she was in fourth grade and others without precise dates.
At a pretrial conference the trial judge told Rodriguez the jury could not assess probation because the victim was under 14, and Rodriguez acknowledged he understood that statement.
Rodriguez initially elected jury punishment, later switched to judge punishment after conviction; he did not file a sworn motion for community supervision.
Defense counsel submitted an affidavit saying he believed probation was unavailable; Rodriguez submitted an affidavit that he relied on counsel’s and the judge’s statements and would have sought probation and testified if he had known probation from a jury was available.
The trial court held an affidavit hearing on the motion for new trial and denied relief; this brief argues reversal for structural error and ineffective assistance of counsel.

Issue	Rodriguez's Argument	State's Argument	Held
1. Whether the judge’s pretrial admonishment that the jury could not give probation (community supervision) was incorrect and, if so, whether that error requires reversal	Judge’s admonishment was legally incorrect because indecency by contact is a second‑degree felony eligible for jury‑ordered probation when the victim was 14 or older; the judge’s incorrect statement foreclosed Rodriguez’s ability to pursue probation and is structural error requiring reversal	Trial court treated the admonishment as non‑reversible; the court denied the motion for new trial	Trial court denied the motion for new trial; appellant contends the error is structural and warrants reversal (appellate relief sought)
2. Whether trial counsel was ineffective for advising Rodriguez that jury probation was unavailable	Counsel’s mistaken advice was deficient under Strickland; Rodriguez relied on it, would have filed for community supervision, and would have testified, so prejudice exists (reasonable possibility of different outcome)	State contends no reversible deficiency or prejudice shown; trial court denied new trial	Trial court denied the motion for new trial; appellant argues Strickland factors are met and requests reversal

Arizona v. Fulminante, 499 U.S. 279 (U.S. 1991) (certain trial defects are structural and not subject to harmless‑error review)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑part test for ineffective assistance of counsel: deficiency and prejudice)
United States v. Gonzalez‑Lopez, 548 U.S. 140 (U.S. 2006) (harmless‑error analysis inappropriate for some violations affecting the trial’s framework)
Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006) (court may not indicate it will not consider the full range of punishment)
Ex parte Williams, 704 S.W.2d 773 (Tex. Crim. App. 1986) (trial court may have duty to admonish accurately as to availability of probation)
McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983) (due process considerations where court’s statements affect defendant’s rights)
State v. Recer, 815 S.W.2d 730 (Tex. Crim. App. 1991) (application of Strickland in sentencing‑choice contexts)
Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (discussion of procedures for addressing counsel error in post‑conviction relief)