            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD-0891-15



                   ARTHUR FRANKLIN MILLER, JR., Appellant

                                              v.

                                THE STATE OF TEXAS

                 ON APPELLANT’S MOTION FOR REHEARING
                 AFTER OPINION ON DISCRETIONARY REVIEW
                    FROM THE FIFTH COURT OF APPEALS
                             COLLIN COUNTY

             K EEL, J., delivered the opinion of the Court in which H ERVEY,
R ICHARDSON, Y EARY, N EWELL and W ALKER, JJ., joined. N EWELL, J., filed a
concurring opinion in which W ALKER, J., joined. K ELLER, P.J., filed a dissenting
opinion. A LCALA, J., filed a dissenting opinion in which K ELLER, P.J., and K EASLER,
J., joined.

                                         OPINION

       We withdraw our prior opinion and hold that a defendant meets the prejudice

prong of his ineffective assistance of counsel claim by demonstrating that he would have

opted for a jury if his attorney had correctly advised him that he was ineligible for

probation from the trial court. He does not have to show that the likely outcome of the
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jury trial he waived would have been more favorable than the court trial he had. We base

our holding on a line of cases stretching from Hill v. Lockhart, 474 U.S. 52, 59 (1985), to

Lee v. United States, 137 S. Ct. 1958 (2017), and our opinion in State v. Recer, 815

S.W.2d 730, 731-32 (Tex. Crim. App. 1991). We disavow our contrary holding in Riley

v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012), to the extent that it conflicts with

this opinion. We express no opinion about whether Appellant has demonstrated a

reasonable probability that he would have opted for a jury if his attorney had correctly

advised him about his probation eligibility but remand to the court of appeals to address

that issue.

                                       Background

       Appellant was charged with aggravated sexual assault of a child and indecency

with a child alleged to have occurred in July 2001. T EX. P ENAL C ODE A NN. §§ 21.11,

22.021 (West 1999). If convicted of either of those crimes he was not eligible for

probation from a judge. T EX. C ODE C RIM. P ROC. A NN. A RT. 42.12 § 3g(a)(1) (West

2001). But his attorney advised him otherwise. Appellant waived a jury and pleaded not

guilty. After a bench trial, the judge found him guilty of both charges and sentenced him

to 22 years in prison for aggravated sexual assault and ten years for indecency.

       Appellant sought a new trial on grounds of ineffective assistance of counsel for the

bad advice about his probation eligibility. The trial court denied the motion, and the court

of appeals affirmed the ruling. Miller v. State, 2015 WL 3456783 (Tex. App.—Dallas,
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June 1, 2015 (mem. op., not designated for publication). We granted Appellant’s petition

for discretionary review which asked whether the lower court erred in finding that the

deficient performance was not prejudicial under Strickland v. Washington, 466 U.S. 668

(1984).

                            Ineffective Assistance of Counsel

       To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate two things: deficient performance and prejudice. Hill, 474 U.S. at 59;

Strickland, 466 U.S. at 694. The question here is how to measure prejudice when the

attorney’s deficient performance – bad advice about probation eligibility – could not have

affected the outcome of the defendant’s trial but could only have affected the defendant’s

decision to waive a jury. Although the Hill opinion characterized itself as an application

of Strickland, its prejudice focus differed enough from Strickland’s to present us with a

choice between two standards: Strickland’s different outcome standard and Hill’s waived

proceeding standard. For the reasons given below, we conclude that the choice between

them depends on the possible result of the alleged deficient performance. In this case,

since the attorney’s wrong advice about probation could only have affected the

defendant’s choice to waive a jury, the correct measure of prejudice is Hill’s waived

proceeding standard.

       Strickland held that the measure of prejudice for IAC claims is whether the

deficient performance might have affected the outcome of the proceeding that the
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defendant had. Strickland, 466 U.S. at 694. The “ultimate focus” of the Strickland

prejudice standard is “the fundamental fairness of the proceeding whose result is being

challenged.” Id. at 696. This requires the reviewing court to examine “the totality of the

evidence before the judge or jury” and ask whether “the result of the particular

proceeding is unreliable because of a breakdown in the adversarial process that our

system counts on to produce just results.” Id. at 695-96. If the deficient performance

might have affected a guilty verdict, “the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable doubt

respecting guilt.” Id. at 695. If the deficient performance might have affected a

punishment verdict, the prejudice issue is whether there is a reasonable probability that,

absent the errors, the sentencer would have assessed a more lenient punishment. See id.

(in a death penalty case, “the question is whether there is a reasonable probability that,

absent the errors, the sentencer . . . would have concluded that the balance of aggravating

and mitigating circumstances did not warrant death.”).

       On the other hand, if the deficient performance might have caused the waiver of a

proceeding, the defendant’s burden is to demonstrate a reasonable probability that the

deficient performance caused the defendant to waive a judicial proceeding that he was

otherwise entitled to have. Lee, 137 S. Ct. at 1965; Roe v. Flores-Ortega, 528 U.S. 470,

484 (2000); Hill, 474 U.S. at 59. The focus then is on the defendant’s decision making.

Lee, 137 S.Ct. at 1966. In Lee, where the attorney wrongly advised the defendant that he
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would not be deported if he pleaded guilty, 137 S.Ct. at 1962, the error “affected Lee’s

understanding of the consequences” of his plea, so the prejudice issue was “whether there

was an adequate showing that the defendant, properly advised, would have opted to go to

trial.” Id. at 1965. In Flores-Ortega, where the defendant waived his right to appeal, the

prejudice issue was whether he would have appealed but for his attorney’s bad advice.

528 U.S. at 484. In Hill, where the defendant claimed his attorney gave him bad advice

about parole, 474 U.S. at 56, the prejudice issue was whether the defendant still would

have pleaded guilty if his attorney had correctly advised him about parole. Id. at 59.

       The likelihood of a better outcome from a waived or forfeited proceeding is not the

correct prejudice standard because “we cannot accord any ‘presumption of reliability’ to

judicial proceedings that never took place.” Flores-Ortega, 528 U.S. at 483 (citing Smith

v. Robbins, 528 U.S. 259, 286 (2000)). In those circumstances the different outcome

question may be relevant to the extent that it sheds light on whether the deficient

performance really did affect the defendant’s decision making, but it is not the measure of

prejudice. See Lee, 137 S.Ct. at 1966 (defendant’s decision to plead guilty “may not turn

solely on the likelihood of conviction after trial”); Flores-Ortega, 528 U.S. at 486

(possible merits of the forfeited appeal “may give weight to the contention that the

defendant would have appealed,” but they are not required to “satisfy the prejudice

requirement where there are other substantial reasons to believe that he would have

appealed”); Hill, 474 U.S. at 59 (different outcome question relevant only to the extent it
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impacted decision to plead guilty). A prediction about the likely outcome of a trial is

unnecessary and inappropriate in cases where the deficient performance is not “pertinent

to a trial outcome, but is instead alleged to have affected a defendant’s understanding of

the consequences of his guilty plea.” Lee, 137 S.Ct. at 1967, fn. 3.

       The dissenting opinions argue for application of Strickland’s different outcome

standard because Appellant had a court trial. They maintain that Hill’s forfeited

proceeding standard only applies to guilty pleas. But Strickland was a guilty plea, and

Hill applied in Lafler v. Cooper, 566 U.S. 156, 164 (2012), where the defendant had a

jury trial. “[I]t is insufficient simply to point to the guarantee of a fair trial as a backstop

that inoculates any errors in the pretrial process.” Id. at 170. Thus, choosing between

Strickland’s different outcome standard and Hill’s forfeited proceeding standard does not

depend on the simple guilty plea vs. trial formula.

       Even if the different outcome standard did apply here, the dissenting opinions

misread Strickland in two ways.

       First, the dissent would ask whether a proceeding the defendant did not have

would have been more favorable without the deficient performance; but Strickland asked

whether the proceeding the defendant did have would have been more favorable without

the deficient performance. 466 U.S. at 694. Consistent with that approach, Weaver v.

Massachusetts, 137 S.Ct. 1899, 1911 (2017), an IAC claim based on the attorney’s failure

to object to a closed courtroom, required a reasonable probability of a different outcome
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in the trial the defendant had or a showing that the trial he had was fundamentally unfair;

Weaver did not demand proof that a better outcome would have resulted from a

hypothetical trial that was not had.

       A majority of the Supreme Court has explicitly refused to evaluate prejudice based

on the likely outcomes of proceedings not had. See Lee, 137 S.Ct. at 1965 (when an

attorney’s deficient performance caused the defendant to accept a guilty plea instead of

pursue a trial, “we do not ask whether, had he gone to trial, the result of that trial ‘would

have been different’”); Flores-Ortega, 528 U.S. at 483 (the likelihood of a better outcome

from a forfeited proceeding is not the correct prejudice standard because such a

proceeding enjoys no presumption of reliability). Such speculation is like asking “what

might have occurred in an alternate universe.” See United States v. Gonzalez-Lopez, 548

U.S. 140, 150 (2006) (holding that proof of likelihood of a better outcome if a different

attorney had represented the defendant was not required in case of denial of counsel of

choice).

       Second, the dissent misapplies Strickland by requiring a reasonable likelihood of a

specifically better outcome, i.e., probation. Strickland required only a generically better

outcome. 466 U.S. at 694. Since “any amount of [additional] jail time has Sixth

Amendment significance[,]” Cooper, 566 U.S. at 165, quoting Glover v. United States,

531 U.S. 198, 203 (2001), requiring a likelihood of probation instead of merely a better

outcome would impose an unconstitutional burden on the prejudice prong of ineffective
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assistance claims.

                                        Recer vs. Riley

       Although there is no Supreme Court authority for assessing prejudice by asking

what might have happened in a trial that was never had, our own precedent has been

inconsistent on this point. The competing views are presented by Recer and Riley.

       Recer, 815 S.W.2d 730, focused on the defendant’s decision making in assessing

prejudice from an attorney’s bad advice about probation eligibility. To prevail on her

claim of ineffective assistance Recer had to demonstrate that she was eligible for

probation from the jury, her attorney’s advice to elect the court for punishment was not

based on a valid strategy, her decision to elect the judge for punishment was based on her

attorney’s bad advice, and she would have elected the jury for punishment but for her

attorney’s error. Id. at 731-32. She did not have to prove a likelihood of a different

outcome from a hypothetical jury. Id.

       We later purported to follow Recer in Riley, 378 S.W.3d 453, but we tacked on an

additional requirement: proof that “the results of the proceeding [not had] would have

been different had [the defendant’s] attorney correctly informed him of the law.” 378

S.W.3d at 458 (citing Recer, 815 S.W.2d at 731-32). We imposed that additional

requirement without any supporting authority or rationale.1


       1
        A majority of this Court expressed approval of Riley’s different outcome requirement in
Burch v. State, 541 S.W.3d 816 (Tex. Crim. App. 2017), though approval of that aspect of Riley
was unnecessary to the decision. Burch, 541 S.W.3d at 823 (Keel, J., concurring). Because that
discussion of Riley was dicta, our decision today has no impact on our holding in Burch.
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       Stare decisis would not require adherence to Riley because proving a better

outcome from a proceeding never had is so speculative as to be unworkable. See Paulson

v. State, 28 S.W.3d 570, 571-72 (Tex. Crim. App. 2000) (goals of stare decisis not

advanced by adhering to unworkable precedent). Additionally, Riley’s own violation of

stare decisis by silently overruling Recer undermines its precedential value. See Paulson,

28 S.W.3d at 574 (Keller, J., concurring) (in deciding whether to overrule precedent “we

should take into account whether the decision under consideration was itself a violation of

the principles of stare decisis”). But regardless of its unworkability and its failure to

adhere to precedent, we cannot follow Riley because we are bound by the rulings of the

United States Supreme Court on this topic.

       The highest authority on federal constitutional law is the United States Supreme

Court. Ex parte Evans, 537 S.W.3d 109, 111 (Tex. Crim. App. 2017), citing U.S. C ONST.

art. VI, cl.2; Marbury v. Madison, 5 U.S. 137, 177-78, 1 Cranch 137, 2 L.Ed. 60 (1803);

Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); State v. Guzman, 959

S.W.2d 631, 633 (Tex. Crim. App. 1998). Its pronouncements about federal

constitutional law are binding on this Court. Evans, 537 S.W.3d at 111, citing Ex parte

Ramey, 382 S.W.3d 396, 397 (Tex. Crim. App. 2012); Coronado v. State, 351 S.W.3d

315, 317 (Tex. Crim. App. 2011); Coble v. State, 330 S.W.3d 253, 270 (Tex. Crim. App.

2010). Claims of ineffective assistance of counsel are grounded in the federal

constitution. Evans, 537 S.W.3d at 111, citing U.S. C ONST. amend. VI. Therefore, we
                                                                                      Miller–Page 10

are bound by the Supreme Court’s opinions about ineffective assistance of counsel.

       Hill, Flores-Ortega and Lee hold that the correct measure of prejudice for an

attorney’s deficient performance that might have caused a defendant to waive a judicial

proceeding is whether there is a reasonable likelihood that the defendant would have

opted for the proceeding if his attorney had performed adequately. In the context of this

case, Appellant would have to demonstrate a reasonable likelihood that he would have

opted for a jury if his attorney had correctly advised him about his probation eligibility

from the trial court. He would not have to demonstrate a reasonable likelihood that the

jury trial he waived would have yielded a more favorable result than the court trial he had.

                                            Conclusion

       We overrule Riley to the extent that it conflicts with the Hill, Flores-Ortega and

Lee line of cases, and we reaffirm our Recer opinion. We remand this case to the court of

appeals for analysis of prejudice consistent with this opinion.2




Delivered: May 23, 2018

Publish



       2
           Although the court of appeals observed that the trial court did not have to believe
Appellant’s testimony that he would have insisted on a jury if his attorney had correctly advised
him, it did not say whether the trial court did believe it, and it did not rely on the observation for
its holding. Miller, 2015 WL 3456783 at *4. It held instead that the record “could support the
trial court’s implicit finding that the result of the proceedings in reasonable probability would not
have been different” and affirmed on that basis. Id. at *5. Thus, the dissent is mistaken in
arguing that remand is unnecessary.
