ARTHUR FRANKLIN MILLER, JR., Appellant v. THE STATE OF TEXAS
NO. PD-0891-15
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
May 23, 2018
ALCALA, J., filed a dissenting opinion in which KELLER, P.J., and KEASLER, J., joined.
DISSENTING OPINION
Should this Court greatly expand upon Supreme Court precedent describing the law for claims of ineffective assistance of counsel so as to permit a defendant to obtain a new trial when an exhaustive review of the evidence introduced in the guilt and punishment phases of his trial shows that the outcome of his case was not prejudiced by his attorney‘s complained-of bad advice? I respectfully disagree with this Court‘s majority opinion that appears to answer this question “yes.” Rather than expanding a defendant‘s federal constitutional right to effective counsel in a manner that goes beyond the parameters set forth by the Supreme Court, I would apply that Court‘s precedent
I. Background
Because it involves an entire guilt and punishment trial on the merits and is at the rehearing stage in this Court, this case‘s background is lengthy. I examine its background by discussing the trial on the merits, the motion for new trial, the court of appeals’ opinion, and this Court‘s plurality opinion on original submission of the petition for discretionary review, including the grounds for rehearing that decision.
A. Trial on the Merits
Appellant is the grandfather of A.M. and the step-grandfather of K.F. The State charged appellant with indecency with a child and aggravated sexual assault of A.M. and sexual offenses against K.F. See
Before the trial began, the trial court admonished appellant about his rights and determined that appellant was freely and voluntarily waiving his right to a jury trial and opting to proceed with a bench trial. In making that determination, the trial court discussed with appellant the fact that he had a right to a jury trial, that a jury could consider a probated sentence in his case, and that no one had promised him anything in exchange for his waiver of a
At the court trial, each party gave opening statements and closing arguments, and eight witnesses testified, four for each side. The State called the investigating peace officer and the forensic interviewer, each of whom discussed certain evidence that either corroborated or was consistent with the allegations of abuse. The State‘s remaining witnesses were the two complainants. A.M., who was twenty-two years old by the time of trial, testified that, when she was around ten years old, appellant engaged in inappropriate behavior that “eventually led to sexual abuse.” Appellant would make “awkward comments that [she] was uncomfortable with,” try to undo her bathing suit top, and try to watch her change clothes and shower. A.M. testified that appellant would take her for a ride on his two-seat jet ski and refuse to take her back until she kissed him on the lips. She testified that appellant would awaken her at night and ask her to sit on his lap, show her pornography, and rub and penetrate her vagina with his fingers. A.M. testified that this occurred on more than one occasion. A.M. explained that she was afraid to report the abuse because appellant led her to believe that he would stop financially supporting her father if she told anyone and that “nobody would believe [her], and everybody would hate [her].” K.F. testified that, when she was approximately four years old, appellant forced her to touch his penis when she sat on his lap to play a computer game.
Appellant‘s defense witnesses included the defense investigator, who presented evidence that contradicted the complainants’ testimony about the timeline of abuse. Appellant‘s three remaining witnesses were appellant‘s and the complainants’ relatives. They disagreed with certain details regarding the complainants’ accounts of the abuse. Furthermore, appellant‘s daughter additionally testified that she believed the allegations were instigated by K.F.‘s mother and that K.F. had essentially indicated that her allegation against appellant was not true. After closing arguments, the trial court found appellant guilty of the charges for the conduct against A.M. and not guilty of the charges pertaining to K.F.
At the punishment phase of trial, the parties proceeded to make arguments as if appellant could be considered for community supervision by the trial court. A.M. was the sole witness called by the State to provide substantive testimony. A.M. testified that she felt that, as a result of the abuse, her “entire life[] has been violated,” that she suffered from depression and trust issues from the abuse, and that she “lost [her] family” by coming forward. When asked whether she believed that appellant deserved probation, she responded that he did not because “he took things away from me that can never be replaced.”
The parties’ opposing closing arguments discussed whether appellant was a suitable candidate for community supervision. On the one hand, the State argued that community supervision was inappropriate due to the severe impact the abuse had on A.M. On the other hand, trial counsel argued that a probated sentence in addition to counseling and therapy was appropriate because appellant had no prior convictions for felony offenses, and the absence of any
B. Motion for New Trial
After receiving new counsel for purposes of appeal, appellant filed a written motion for new trial alleging ineffective assistance of counsel on the basis that trial counsel had erroneously promised him that he would receive probation if he was found guilty by the trial court. This advice was erroneous because, under the former law that applied to appellant‘s offenses that were committed in 2001, only a jury could recommend a probated sentence if he was found guilty of the offenses. See
The trial court then held an evidentiary hearing at which four witnesses testified. Appellant and several of his family members testified that trial counsel had repeatedly urged him to waive a jury trial and proceed with a bench trial because, if the trial judge found him guilty, the judge would give him probation due to his elderly age, lack of criminal history, and the weakness of the State‘s case. The trial court denied appellant‘s motion for new trial. Although he did not make written findings of fact and conclusions of law, the trial judge did make oral findings and conclusions on the record. Following the trial court‘s ruling, appellant timely appealed.3
On appeal, the court of appeals upheld the trial court‘s ruling denying appellant‘s motion for new trial. Miller v. State, No. 05-14-01065-CR, 2015 WL 3456783, at *1 (Tex. App. Dallas June 1, 2015) (mem. op., not designated for publication). In its arguments to that court, the State conceded that trial counsel‘s performance objectively fell below reasonable professional norms and thus constituted deficient performance, satisfying the first prong under Strickland. Id. at *2. The court of appeals’ analysis, therefore, turned solely on whether counsel‘s deficient performance had prejudiced appellant under the second prong of Strickland. Id. at *3. The court of appeals’ description of the issue was “whether there was a ‘reasonable probability’ that the result of the proceeding would have been different if appellant‘s attorney had given him correct advice; that is, whether a jury would have sentenced appellant to probation.” Id. (citing Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012)). The court of appeals determined that appellant had failed to show that he was prejudiced by counsel‘s erroneous advice because (1) the trial judge could have disbelieved appellant‘s assertion that he would not have waived a jury if he had known that the judge was unable to assess probated sentences, and (2) appellant had failed to show a reasonable probability that a jury would have awarded him the probated sentences. Id. at *4-5.
On appellant‘s petition for discretionary review challenging the standard employed by the court of appeals to assess whether he was prejudiced by counsel‘s error, a plurality of this Court affirmed the judgment of the court of appeals.4 In analyzing the proper standard for evaluating prejudice, we considered the articulations of the prejudice inquiry that have been advanced for two distinct sets of circumstances. We observed that, in the first circumstance in which there has been an entire trial or appellate proceeding, the proper inquiry is whether counsel‘s deficient performance during that proceeding undermined the confidence in the outcome of the proceeding.5 In the second circumstance in which a defendant has entered a plea of guilty or no contest and thus no trial has occurred, we observed that the prejudice inquiry focuses on whether counsel‘s deficient performance during the plea proceedings resulted in a defendant‘s decision to completely forgo a trial or appellate proceeding.6 A plurality of this Court determined that in appellant‘s case, because there had been an entire trial proceeding for which the confidence in its outcome could be evaluated, we would apply the ordinary Strickland prejudice standard that asks whether, but for counsel‘s error, there was a reasonable probability of a different outcome. We upheld
Shortly after this Court issued its original opinion in this case, the U.S. Supreme Court decided Lee v. United States, 137 S. Ct. 1958 (2017), and this Court granted appellant‘s motion for rehearing to determine if Lee undermined our reasoning. A majority of this Court concludes that it does. As I discuss more fully in the next section, I respectfully disagree with this Court‘s characterization of Lee as having any impact on the instant case, and I continue to believe that this case was correctly decided by the plurality opinion issued on original submission of appellant‘s petition for discretionary review.
II. The Proper Prejudice Standard for Ineffective Assistance Claims
As the discussion below shows, the Supreme Court has recognized that the prejudice prong for establishing ineffective assistance of counsel varies depending on whether a defendant opted for a trial proceeding or instead waived a trial and decided to enter a plea of guilty or no contest to a charge. In the first situation, the prejudice inquiry focuses on the probable outcome of the proceedings in the absence of counsel‘s error, whereas in the latter situation, the inquiry focuses on whether, but for counsel‘s error, the defendant would not have pleaded guilty and would have instead pursued a trial. Here, I explain that, because there was a complete trial proceeding, it is appropriate to examine how appellant‘s attorney‘s deficient performance affected the outcome of that proceeding, rather than more narrowly considering only the effect of counsel‘s error on appellant‘s decision to waive a jury.
A. Applicable Law for Establishing Prejudice Depends on Whether There was a Trial or a Waiver of an Entire Trial Proceeding
The law applicable to the prejudice prong can be divided into two spheres, one of which includes jury and court trial proceedings, and the other of which includes guilty and no-contest pleas that forgo trial proceedings. I discuss the law applicable to these two spheres before explaining why the prejudice standard in the instant case should fall within the first sphere.
1. Sphere One: Prejudice in a Court or Jury Trial
Under Strickland, in cases asserting ineffective assistance of counsel based on claims that counsel performed deficiently during either the guilt or punishment phases of trial, courts must apply the prejudice standard that focuses on whether there is a reasonable probability that the result of the proceedings would have been different but for the attorney‘s deficient performance. See Strickland, 466 U.S. at 694. The Strickland two-prong standard to establish an ineffective-assistance claim requires a defendant to show that, under the totality of the evidence, (1) counsel‘s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) but for such deficient performance, a reasonable probability exists that the result of the proceeding would have been different. Id. at 688, 694-95. The Court explained that a “reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
With respect to the required prejudice showing in situations involving a trial, the Strickland test acknowledges the “strong presumption of reliability” that courts “normally apply . . . to judicial proceedings[.]” Smith v. Robbins, 528 U.S. 259, 286 (2000)
The Strickland prejudice standard applicable to ordinary jury and court trials, therefore, considers whether there is a reasonable probability that, but for counsel‘s mistake, the defendant would have received a more favorable outcome either at the guilt or punishment phase of trial. But what about those cases in which a defendant pleads guilty or no contest and there are no court or jury trial proceedings to consider? As I discuss next, the Supreme Court has held that, in those cases, the prejudice standard looks to the waiver of the trial rather than the outcome of the proceedings.
2. Sphere Two: Prejudice in Guilty or No Contest Pleas Based on a Waiver of Trial
The Supreme Court in Hill v. Lockhart decided that, when a defendant waives an evidentiary trial and resolves his case with a plea of guilty or no contest, the Strickland prejudice prong must examine whether there is “a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Hill‘s attorney had misinformed him about his eligibility for parole under the sentence that he had agreed to in a plea bargain. Id. at 60. Because there were no court or jury trial proceedings to examine to determine whether Hill had been prejudiced by his attorney‘s deficient performance, the Hill Court considered the only proceedings that had actually occurred in the case: the trial waiver that had resulted in the plea of guilty. See id. at 59.7 In subsequent decisions, the Supreme Court has indicated that there can be no presumption of reliability in the absence of any factual trial proceedings. See, e.g., Flores-Ortega, 528 U.S. at 483 (“Put simply, we cannot accord any ‘presumption of reliability’ to judicial proceedings that never took place.“) (internal citation omitted). Thus, under circumstances in which a defendant has resolved his case by plea, the Supreme Court has
B. This Case Falls Within the First Sphere
Applying Supreme Court precedent to this case, I conclude that for two reasons appellant‘s complaint presents a claim of ineffectiveness that is subject to an ordinary Strickland prejudice analysis that focuses on the outcome of the proceedings.8 First, as with the ordinary Strickland prejudice standard, there was an entire trial that occurred that can be examined for its regularity and for any prejudicial impact caused by deficient performance. Given that there was an evidentiary trial in the instant case, this Court has an entire record of the proceedings that occurred so that we may discern whether the reasonably probable outcome of the proceedings would have been different with a jury trial that did not occur as compared to the bench trial that did occur. Such an approach would be consistent with the Supreme Court‘s observation in Strickland that, in order to warrant relief from a conviction or sentence due to counsel‘s errors in a trial proceeding, those errors must have been “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
The Supreme Court‘s decision in Lafler v. Cooper supports the view that an ordinary Strickland prejudice outcome analysis is the appropriate framework for resolving appellant‘s claim. 566 U.S. 156, 164 (2012). In Cooper, the Supreme Court considered the appropriate prejudice standard for a situation where a defendant has had an entire trial proceeding but complains that he would not have gone to trial if his attorney had properly conveyed the State‘s plea offer to him, which he claims he would have accepted rather than proceed to trial. Id. at 160. The Court explained,
[H]ere the ineffective advice led not to an offer‘s acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer‘s terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at 163-64. The prejudice standard discussed in Cooper considered the totality of the record, including the explanation that a defendant must show that the plea offer that was not conveyed to him was less severe than the judgment and sentence that was imposed against him at a trial. Id. Prejudice in Cooper did not focus solely on whether the defendant would have accepted a plea offer had it been conveyed to him. See id. Similar to Cooper, the appropriate prejudice standard here properly considers the totality of the record, including whether it is probable that the judgment and sentence that a reasonable jury would impose would be less severe than what was in fact imposed by the trial judge at the court trial.
Second, the cases on which this Court‘s majority opinion relies are procedurally distinguishable because they pertain to errors by counsel that deprived a defendant of an entire judicial proceeding, such as in cases where the defendants pleaded guilty or no contest, as compared to here where appellant pleaded not guilty and was found guilty at an evidentiary trial. In the instant case, the critical difference is that appellant was not completely denied a proceeding, as the defendant was in those cases on which this Court‘s majority opinion relies: Hill v. Lockhart, Roe v. Flores-Ortega, and Lee v. United States.
In Hill, there was no trial to examine for the reliability of the proceeding because all that had occurred in that case was a guilty plea. But, here, as in the punishment-phase court trial in Strickland, there are trial proceedings whose outcome may be examined for its reliability.
Roe v. Flores-Ortega is similarly distinguishable. In that case, counsel failed to file a notice of appeal and thereby waived the defendant‘s right to an appeal without his consent. 528 U.S. at 484. Like the decision to plead guilty or proceed to trial, the decision to pursue an appeal belongs solely to a defendant. Id. at 477. Because, as in Hill, no presumption of reliability could be afforded to an appeal that never took place, proving prejudice required showing that, absent counsel‘s deficient performance, the appeal would have been made. Id. at 483-84.
Lee v. United States is also inapposite. In Lee, the Supreme Court addressed whether under the Hill consideration of the prejudice prong for situations in which a defendant has entirely waived a trial, a court should consider a defendant‘s likelihood of success at trial had he insisted on going to trial. Lee, 137 S. Ct. at 1966. Lee was an immigrant who was charged with narcotics offenses that, if convicted, would make him subject to deportation. Lee complained that counsel misadvised him that his convictions would not subject him to deportation. Based on the erroneous advice of counsel, Lee pleaded guilty to avoid deportation. As a result of counsel‘s error, Lee was both convicted and deportable. Although Lee had no viable defense at trial, and thus would have almost certainly been found guilty at trial and still subject to deportation, the Supreme Court held that the likelihood of success at trial alone does not govern the prejudice analysis under these circumstances where a defendant waived his entire right to a trial. Because Lee may have rationally concluded that even a minuscule chance at acquittal and avoiding deportation was preferable to deportation plus a conviction, the decision to proceed to trial was still the proper focus of the prejudice inquiry where the entire trial was waived. This Court‘s majority finds that Lee undermines the rationale of our original opinion because it indicates that, even if appellant had virtually no chance of receiving probation from a jury, appellant‘s decision between a jury trial and a bench trial is the relevant inquiry for prejudice. However, the reasoning of Lee is inapplicable here. As noted, Lee simply addresses what factors should be considered when determining if a defendant has shown that he “would have insisted on going to trial”
In sum, the cases on which this Court‘s majority opinion relies are inapplicable because those cases involve waivers of the entire trial that “arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.” Flores-Ortega, 528 U.S. at 483. Because here there was an evidentiary court trial at which appellant‘s claims were fully litigated before the trial judge, the prejudice determination must be made by considering the reliability of that judicial proceeding.
III. This Case Should Not Be Remanded to the Court of Appeals
This Court‘s majority opinion holds that the court of appeals erred by failing to properly consider whether appellant was prejudiced with respect to his decision to waive his right to a jury trial, and it remands the case to the court of appeals purportedly for it to consider that matter. I disagree with this Court‘s remand order for two reasons.
First, remand is unnecessary in this case because the court of appeals already answered the precise matter that this Court now asks it to consider on remand. In its opinion, the court of appeals stated, “The trial court was not required to accept appellant‘s claim that he would have acted differently had he received correct advice. And even if the trial court accepted this claim, appellant was also required to establish that correct advice would have changed the result of the proceeding.” Miller, 2015 WL 3456783, at *4. Given that the court of appeals has already determined that the trial court was within its discretion to deny the motion for new trial because the judge was not required to believe appellant‘s claim that he would have chosen a jury trial if he had been correctly advised, this Court‘s remand of that precise question to the court of appeals is a waste of judicial resources and an unnecessary delay to the resolution of this case.
Second, the trial judge‘s decision not to sentence appellant at the lower range of punishment strongly suggests that it is not reasonably probable that appellant would have been awarded a probated sentence if he had proceeded with the jury trial instead of waiving it. Appellant‘s sole complaint about his counsel‘s deficient performance is that the trial judge was prohibited from considering a probated sentence. But the jury most likely would not have awarded a probated sentence even though the law permitted them to consider it. When this Court has considered a defendant‘s ineffective assistance claim regarding the punishment phase of trial, the thrust of our analysis focuses on whether the attorney‘s error affected the sentence that was imposed in the case. See Ex parte Cash, 178 S.W.3d 816, 818 (Tex. Crim. App. 2005) (citing Woodford v. Visciotti, 537 U.S. 19, 22-23 (2002)) (noting that when it is alleged that counsel performed deficiently at the punishment phase of trial, defendant must prove that there is a reasonable probability that, but for counsel‘s errors, the sentencing jury would have
As in Cash, it is not reasonably probable that a jury would have awarded probated sentences for appellant‘s convictions for aggravated sexual assault of a child and indecency with a child by contact based on the facts of the offense and the judge‘s imposition of significant prison terms for both offenses.9 The facts in this case involved the molestation of appellant‘s grandchild on several occasions. The complainant testified in extensive detail about the sexual abuse, and her testimony regarding the abuse was supported by the testimony of police investigators. The testimony showed that appellant would go into the complainant‘s room at night and would expose her to pornography before touching and rubbing her vagina. The complainant was around nine or ten years old at the time of these incidents. The complainant indicated that she was afraid to report the abuse because appellant paid her father‘s bills and she feared that her family would become homeless if appellant went to jail. The complainant also expressed how traumatic the abuse had been and that its consequences continued years afterwards. The trial court assessed twenty-two years in prison for the aggravated sexual assault offense, which was more than four times the statutory minimum of five years. There is nothing to suggest that the jury would have assessed a sentence at less than half of what the trial court assessed, given the egregious nature of the offense and the facts of the case. The trial court assessed a ten-year sentence for the offense of indecency with a child by contact, and the law would have permitted the jury to have recommended that this prison term be probated. The trial court‘s sentence, however, was five times the statutory minimum of two years in prison, and half of the maximum sentence permitted under the law. It is clear, therefore, that the trial court did not consider the offense worthy of a minimum term or a lighter sentence. There is nothing to suggest that the jury would have decided that a more lenient probated sentence was appropriate under these circumstances. From an objective viewpoint, I conclude that a reasonable jury would not likely have awarded appellant a probated sentence for these two sexual abuse offenses such that confidence in the actual outcome is undermined. I, therefore, agree with the court of appeals’ conclusion that appellant failed to show that trial counsel‘s deficient performance prejudiced him.
I note further that under this Court‘s majority opinion, this Court departs from the familiar standard used to gauge prejudice from deficient performance. Here, appellant has expressed no complaint that counsel‘s deficient performance prejudiced the guilt or innocence phase of the trial that was conducted by the trial court that heard from the two complaining witnesses and six other witnesses. Yet, because this Court‘s majority opinion declines to evaluate the reliability of the outcome of the
IV. Conclusion
Appellant has not shown that there was a reasonable probability of changing the outcome of the proceeding in that he probably would not have obtained a probated sentence even if his attorney had properly advised him that the trial court could not consider him for that type of sentence. Accordingly, appellant has failed to establish ineffective assistance of counsel. I, therefore, would affirm the judgment of the court of appeals affirming the two sexual abuse convictions and sentences assessed against appellant at a bench trial.
Filed: May 23, 2018
PUBLISH