                                 NO. 12-13-00128-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

MATTHEW SCOTT MCGRATH,                          §      APPEAL FROM THE 8TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      RAINS COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Matthew Scott McGrath appeals his conviction for murder, for which he was sentenced to
imprisonment for seventy-five years. Appellant raises one issue challenging the voluntariness of
his guilty plea. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with murder. He waived his right to trial by jury
and pleaded “guilty” to the offense as charged. The matter proceeded to a trial on punishment.
       The evidence showed that the victim, Carl Johnson, was Appellant‟s seventy-nine-year-
old grandfather. According to the testimony of several of Johnson‟s children, he had a long
history of verbally, physically, and sexually abusing his close family members. In August 2012,
Appellant moved in with Johnson at age twenty-one to help care for him after his wife died.
Johnson verbally abused Appellant while he was living there and within days ordered him out of
the home. Soon thereafter, Appellant entered Johnson‟s home while he was sleeping and fatally
shot him.
       Ultimately, the trial court sentenced Appellant to imprisonment for seventy-five years.
This appeal followed.
                                 INEFFECTIVE ASSISTANCE OF COUNSEL
        Appellant frames his sole issue as a complaint that he received ineffective assistance of
counsel that rendered his guilty plea involuntary. In his brief, however, Appellant argues that he
wanted to plead guilty, but he would not have waived his statutory right to a jury trial on
punishment had he been given competent advice by his attorney.1 Therefore, we construe
Appellant‟s issue as a complaint that he received ineffective assistance of counsel that rendered
invalid his waiver of a jury trial on punishment.
        Specifically, Appellant argues that his trial counsel‟s performance was deficient in that he
erroneously believed that Appellant could obtain deferred adjudication community supervision
from the judge—but not from a jury.2 Appellant contends that the record shows there is a
reasonable probability that he would not have waived his right to a jury trial on punishment were
it not for the erroneous advice of counsel based on this mistaken belief.
Standard of Review
        In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court‟s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel‟s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the „counsel‟ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant
must “show that counsel‟s representation fell below an objective standard of reasonableness.”
Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
        Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “show that there is a

        1
           When a defendant pleads guilty to a felony offense, a jury trial on punishment is mandatory unless that
right is waived. TEX. CODE CRIM. PROC. ANN. art. 26.14 (West 2009).
        2
           Deferred adjudication community supervision was not available to Appellant in this case because he was
charged with an offense under Section 19.02 of the Texas Penal Code and the evidence shows that he caused the
death of the victim. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(d)(4) (West Supp. 2013). Nor was regular
community supervision available from either the judge or a jury. See TEX. CODE CRIM. PROC. ANN. art. 42.12
§§ 3g(A), 4(d)(8) (West Supp. 2013).


                                                        2
reasonable probability that, but for counsel‟s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712.
       Review of a trial counsel‟s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a “strong presumption that counsel‟s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is
Appellant‟s burden to overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any
allegation of ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). Rarely is the record on direct appeal sufficiently developed to fairly
evaluate the merits of a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002).
       Failure to make the required showing of either deficient performance or sufficient
prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove
both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong,
25 S.W.3d at 712.
Assessment of Punishment
       When a defendant pleads guilty to a felony offense, a jury must be empaneled to assess
punishment, unless the defendant waives that right in accordance with Article 1.13 of the Texas
Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 26.14 (West 2009). In order to
waive the right in accordance with Article 1.13, the waiver must be made in person, in writing, in
open court, and with the consent and approval of the trial court and the prosecutor. Id. art. 1.13
(West Supp. 2013).
       In most cases, when the trial court receives a defendant‟s guilty plea, it may defer
adjudication and place the defendant on community supervision if it finds that such is in the best
interest of the defendant and society. See id. art. 42.12 § 5(a) (West Supp. 2013). In a murder
case, however, the court may not defer adjudication unless it determines that the defendant did
not cause the death of the victim, did not intend to cause a death, and did not anticipate a death
occurring. Id. art. 42.12 § 5(d)(4) (West Supp. 2013).



                                                3
Trial Counsel’s Performance
       “An attorney has a duty to exert his best efforts to ensure that his client‟s decisions are
based on correct information as to the applicable law.” Garcia v. State, 308 S.W.3d 62, 73 (Tex.
App.—San Antonio 2009, no pet.) (citing Ex parte Wilson, 724 S.W.2d 72, 74 (Tex. Crim. App.
1987)). “An attorney‟s failure to give competent advice to a defendant which would promote an
understanding of the law in relation to the facts and which would permit an informed and
conscious choice is error.” Gallegos v. State, 756 S.W.2d 45, 48 (Tex. App.—San Antonio 1988,
pet. ref‟d) (citing Ex parte Morse, 591 S.W.2d 904, 905 (Tex. Crim. App. 1980)).
       The record indicates that although the trial court admonished Appellant that he could not
receive community supervision, trial counsel continued to believe that deferred adjudication
community supervision was an option. At the plea hearing, the trial judge admonished Appellant,
“[Y]ou‟re aware that under Texas law, while it used to be the case, it is no longer the case that if
the Court finds you guilty, any term of imprisonment cannot be probated. That means you cannot
get probation with this.” Appellant indicated that he understood this admonishment and went on
to plead guilty to the offense. Later, at the beginning of the sentencing hearing, the trial judge
reiterated, “This particular type of case, as we discussed, is not eligible for community
supervision, more commonly known as probation; that is, that is not an option.”
       Despite these admonishments, trial counsel persisted in asking witnesses what might
happen if Appellant were placed on community supervision. After he asked the second witness
this type of question, the trial judge called the attorneys to the bench. He then voiced his concern
that trial counsel was misleading the family members into thinking that Appellant could get
community supervision when he could not. Trial counsel responded that he thought the judge
could give Appellant deferred adjudication. The judge replied “no,” but after further argument
from defense counsel, he permitted further questioning on the subject.
       At the close of testimony, the trial judge called the attorneys into chambers. There, he
pointed out the code provision that made it impossible for him to give Appellant deferred
adjudication. Trial counsel then stated as follows:


       I thought [deferred adjudication] was an option. But it was my understanding it was the only
       option—that the only way I could get there was go to the Court and—if the Court—if the jury
       found him guilty, I was under the impression the judge could not do it at that point. And that‟s—I
       think [the prosecutor] and I discussed it in those terms. And that‟s why I did what I did.




                                                       4
        Thus, it is apparent that throughout the proceedings until just after the close of testimony,
Appellant‟s trial counsel was under the mistaken belief that Appellant could receive deferred
adjudication in this case, but only from the judge; and that counsel, relying on his mistaken
belief, advised Appellant to waive his right to a jury trial on punishment. Therefore, counsel‟s
performance was deficient. See Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012)
(counsel‟s performance deficient where he gave incorrect advice regarding community
supervision); Medeiros v. State, 733 S.W.2d 605, 607 (Tex. App.—San Antonio 1987, no pet.)
(counsel ineffective where he did not know applicable law regarding community supervision and
failed to inform defendant that the trial judge could not give community supervision). Appellant
has satisfied the first prong of the Strickland test.
Prejudice
        To show prejudice when his claim of ineffectiveness is based on counsel‟s
misunderstanding of the law regarding community supervision, an appellant must establish that
he was initially eligible for community supervision, counsel‟s advice was not part of a valid trial
strategy, the appellant chose who would assess his punishment based on counsel‟s erroneous
advice, and the results of the proceeding would have been different if he had been correctly
informed of the law. Recer v. State, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991); Riley, 378
S.W.3d at 458 (Tex. Crim. App. 2012).
        In this case, there is evidence supporting only one of the Recer factors. The record shows
that counsel‟s advice was based on his misunderstanding of the applicable law, which is never a
valid trial strategy. See Garcia, 308 S.W.3d 62, 75. The record does not show, however, that
Appellant was initially eligible for community supervision, that his election of the trial judge to
assess punishment was based upon counsel‟s erroneous advice, or that the results of the
proceeding would have been different if he had been correctly informed of the law. See Recer,
815 S.W.2d at 731-32. Therefore, Appellant has failed to show prejudice and, as a result, has
failed to meet the second prong of the Strickland test.
Holding
        Because Appellant has satisfied only one prong of the Strickland test, he cannot prevail
on his ineffective assistance claim. Accordingly, we overrule Appellant‟s sole issue.




                                                   5
                                                    DISPOSITION
         Having overruled Appellant‟s sole issue, we affirm the trial court‟s judgment.



                                                                  SAM GRIFFITH
                                                                     Justice



Opinion delivered April 23, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



                                                           6
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                             APRIL 23, 2014


                                          NO. 12-13-00128-CR


                                 MATTHEW SCOTT MCGRATH,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 8th District Court
                              of Rains County, Texas (Tr.Ct.No. 5331)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below
for observance.

                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
