                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00101-CR



         JOSEPH QUELON HARRIS, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
               Red River County, Texas
               Trial Court No. CR01786




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                     MEMORANDUM OPINION
        Joseph Quelon Harris was convicted by a jury of murdering his uncle. The jury assessed

a life sentence, and the trial court sentenced Harris accordingly. Harris complains that his trial

counsel was constitutionally ineffective because the trial lawyer told Harris he could be placed

on community supervision by the jury when, in fact, community supervision could only be

granted if (1) Harris pled guilty or nolo contendre and (2) the trial judge deferred adjudication of

guilt and placed Harris on community supervision. 1 Harris also contends the record does not

support the trial court’s imposition of court costs. We affirm the trial court’s judgment.

I.      Factual and Procedural Background

        Harris was charged with killing his uncle, John Richard Harris (John), with a machete.

At trial, Harris presented a defensive theory, mostly through Harris’ own testimony, that John

had attacked and threatened Harris with a pistol and machete, which led to Harris defending

himself with the machete. John died as the result of thirteen chop wounds. Before trial, Harris

elected to have the jury assess punishment, should he be convicted, and filed a motion seeking to

be placed on community supervision in lieu of serving any sentence of ten years or less. 2 During

voir dire, both the prosecutor and Harris’ attorney told the jury panel that Harris was eligible for


1
 In 1993, during the 73rd Legislative Session, the statutory term for probation was changed to “community
supervision.” Both terms refer to the same process and will be used interchangeably in this opinion. Ivey v. State,
277 S.W.3d 43, 51 n.48 (Tex. Crim. App. 2009).
2
 Harris’s motion claimed he had never been convicted of a felony offense and therefore was eligible for community
supervision. The State told the venire that Harris was eligible for community supervision. Both were wrong. By
pleading not guilty and electing to have a jury determine guilt or innocence, Harris precluded the consideration of
community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 4(d)(8) (West Supp. 2012) (defendant not
eligible for community supervision if convicted of murder and jury assesses punishment).


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community supervision if convicted of murder. Self-defense and use of deadly force were

discussed, but lesser-included offenses were not. 3

            After two days of testimony, Harris’ attorney apparently learned of the 2007 amendment

to Article 42.12, Section 4(d) of the Texas Code of Criminal Procedure, 4 which precludes a jury

from recommending community supervision in murder cases. See TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 4(d). Harris’ attorney moved for a mistrial, stating both parties thought Harris was

eligible for community supervision. Counsel explained, “Clearly, it’s an error both by the

government and the defense. I should have known that he was not eligible for probation. First I

ever heard of it was this morning.” Harris’ trial counsel argued that because both the State and

the defense told the jury that Harris was eligible for community supervision if convicted of

murder, the jury would infer—after hearing the evidence and receiving an instruction that he

was, in fact, not eligible for community supervision—that the case “was worse than it was at the

time we voir dired them.”                 The trial court denied Harris’ request for a mistrial.                    The

guilt/innocence jury charge stated, at Harris’ request, “You are instructed that if you find the

defendant guilty of murder, he is not eligible for probation as punishment.”

            In his motion for a new trial, Harris’ trial lawyer filed an affidavit stating,

            I did not advise the Defendant that he was eligible for deferred adjudication
            probation from the Trial Judge after a plea of guilty or no contest to the charge of
            murder . . . . My misunderstanding of Defendant’s eligibility for probation was a
            critical mistake . . . . I feel my failure to give competent advice did not permit
            Defendant to properly understand the law in relation to the facts and that he did
            not make an informed and conscious choice as to how to proceed to trial. My
3
    The trial court’s jury charge included the lesser offenses of manslaughter and criminally negligent homicide.
4
Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 3, 2007 Tex. Gen. Laws 4078, 4079 (current version at TEX
CODE CRIM. PROC. ANN. art. 42.12, § 4(d) (West Supp. 2012)).
                                                             3
       failure to inform Defendant that he was ineligible for community supervision
       from the Jury was not due to any trial strategy and simply was my failure to
       properly inform Defendant on this settled matter of law. Due to my professional
       conduct Defendant was denied the opportunity to consider a plea of guilty or no
       contest and to request deferred adjudication community supervision from the Trial
       Court. I believe Defendant would have made a different decision as to how to
       proceed to trial if counsel had correctly informed him of the law regarding
       community supervision.

Harris also presented his own affidavit, which stated,

       Prior to trial, [my attorney] advised me that I was eligible for community
       supervision from the Jury. My lawyer did not advise me that the Judge could give
       me deferred adjudication community supervision if I entered a plea of guilty or no
       contest. I made by [sic] election to go to trial and to go to the Jury for
       punishment based on the incorrect representations of my lawyer. If I had been
       properly advised of my punishment options, I would not have decided to go to the
       Jury for punishment and would have requested the Court to considered [sic]
       deferred adjudication community supervision.

The trial court denied the motion for new trial without a hearing.

II.    Ineffective Assistance of Counsel

       Any allegation of ineffectiveness of counsel must be firmly founded in the record.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Harris bears the burden of

proving by a preponderance of the evidence that his counsel was ineffective. Id. We apply the

two-pronged Strickland test handed down by the United States Supreme Court to a claim of

ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57 (1985); see Strickland v.

Washington, 466 U.S. 668 (1984). Failure to satisfy either prong of the Strickland test is fatal.

Ex parte Martinez, 195 S.W.3d 713, 730, n.14 (Tex. Crim. App. 2006). The Strickland standard

requires proof that “1) counsel’s representation fell below an objective standard of

reasonableness under prevailing professional norms; and 2) the deficient performance prejudiced

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the defense.” Strickland, 466 U.S. at 694; Riley v. State, 378 S.W.3d 453, 456 n.5 (Tex. Crim.

App. 2012).

        The second Strickland prong, prejudice, requires a showing that, but for counsel’s

unprofessional error, there is a reasonable probability that the result of the proceeding would

have been different. Id. Reasonable probability means a “probability sufficient to undermine

confidence in the outcome.”            Id.   When a claim of ineffectiveness is based on counsel’s

misunderstanding of the law regarding community supervision, there must be evidence that

(1) the defendant was initially eligible for community supervision, (2) counsel’s advice was not

in furtherance of a valid trial strategy, (3) the defendant’s election of the assessor of punishment

was based upon counsel’s erroneous advice, and (4) the results of the proceeding would have

been different had his attorney correctly informed him of the law. Riley, 378 S.W.3d at 458.

        A.       Deficient Performance

        After 2007, juries can no longer recommend community supervision for defendants

convicted of murder. See Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 3, 2007 Tex. Gen.

Laws 4078, 4079. Under the law applicable to this case, Harris would have been eligible for

community supervision, at the trial court’s discretion, if and only if he pled guilty or nolo

contendre and requested that the trial court defer adjudication of guilt and grant community

supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (West Supp. 2012). 5 In an affidavit


5
 In 2011 the Legislature passed additional legislation to curtail use of deferred adjudication community supervision
in a murder case. As of September 1, 2011, even the trial judge cannot defer adjudication of guilt in a murder case
unless it is shown that the defendant did not cause the death, did not intend to kill, and did not anticipate that a
human life would be taken. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(d)(4). This provision applies only to
offenses committed after the effective date of the Act—September 1, 2011. TEX. CODE CRIM. PROC. ANN.
art. 42.12, § 3 (West Supp. 2012). The Texas Court of Criminal Appeals referred to this statue in Riley without
                                                         5
filed in support of his motion for a new trial, Harris claimed his decision to go to trial and his

election of the jury as assessor of punishment was based on trial counsel’s erroneous advice that

the jury could recommend community supervision.                  He further avers that if he had been

accurately advised, he would have asked the trial court to consider deferred adjudication

community supervision.

        This Court was faced with a very similar situation in Riley v. State, 345 S.W.3d 413 (Tex.

App.—Texarkana 2011) (2-1 decision), rev’d, 378 S.W.3d 453 (Tex. Crim. App. 2012). In that

case, Riley, like Harris, was told by his trial counsel that the jury had the authority to recommend

community supervision even if they found him guilty of murder. Unlike in Riley, Harris’

attorney discovered his legal misunderstanding during trial (rather than after the guilty verdict as

occurred in Riley). A majority of this Court found in Riley that counsel’s erroneous advice—that

Riley was eligible for community supervision if recommended by the jury—was not sound trial

strategy and that counsel’s performance fell below an objective standard of reasonableness in

light of prevailing professional norms. Riley, 345 S.W.3d at 418. The majority also found that

because the error of Riley’s trial attorney foreclosed the possibility of deferred adjudication

community supervision, for which Riley was otherwise eligible, there was a reasonable

probability that the result of the proceeding would have been different. This Court held that

Riley was prejudiced by counsel’s deficient performance. Based on the determination that Riley




noting that it did not become effective until September 1, 2011, and, therefore, was not applicable. Riley, 378
S.W.3d at 459 & n.27.

                                                      6
satisfied both prongs of the Strickland test, the majority reversed his conviction and remanded

the case for a new trial. Id. at 419–20.

        Here, we agree with the State’s concession that the first prong of Strickland has been

met.   Counsel’s advice was deficient and fell below an objective standard of reasonable

performance in light of prevailing professional norms.

       B.      No Reasonable Probability of Different Outcome

       The Texas Court of Criminal Appeals reversed this Court’s decision in Riley. The high

court agreed with the conclusion that trial counsel’s performance was deficient; it disagreed,

however, with the majority’s determination that counsel’s deficiency affected the outcome of the

case. Riley, 378 S.W.3d at 458. The high court pointed out that even if Riley had pled guilty or

nolo contendere to the trial court, “the same results were available,” that is, it was just as likely

that the trial court would have sentenced Riley to fifty years’ incarceration as it was for the jury

to recommend that sentence. Id. at 459.

       Harris attempts to distinguish Riley by pointing out that in Riley, lesser-included offenses

were discussed in voir dire, and community supervision was available if Riley was convicted of a

lesser crime, whereas here, the State did not discuss lesser-included offenses and simply told the

jury Harris was eligible for community supervision.         Also, here the trial court included a

statement in the jury charge that Harris was not eligible for community supervision upon a

conviction for murder. We do not find these circumstances sufficiently distinct from those in

Riley to dictate a different outcome. More importantly, we do not find such factual distinctions

relevant to the issue at hand. The Texas Court of Criminal Appeals was clear in Riley that “the

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analysis of the prejudice prong turns on whether the deficiency made any difference to the

outcome of the case.” Id. at 458. The reviewing court must “determine whether any reasonable

view of the record, viewed in the light most favorable to the trial court’s ruling, could support the

trial court’s implicit findings.” Id.

          In the instant case, as in Riley, the trial court denied the defendant’s motion for a new

trial, which raised the ineffective assistance of counsel claim. “We must presume that all

findings made by the trial judge were made in favor of the prevailing party, and hence, we

assume that the trial judge implicitly found that there was no reasonable probability that the

result of the proceeding would have been different.” Id. Such a finding is a mixed question of

law and fact, and a reviewing court must defer to a trial court’s credibility determinations.

Further, the “trial court did not have to accept appellant’s claim that he would have changed his

plea had he received correct advice.” Id. More to the point, even if the trial court had accepted

Riley’s claim that he would have pled differently, “the issue remains whether correct advice

would have changed the result of the proceeding.” Id.

          As in Riley, Harris presented defensive testimony urging self-defense, and the trial court

charged the jury on lesser-included offenses. The Texas Court of Criminal Appeals in Riley

pointed out that although the trial court could have considered the evidence and found Riley

guilty of a lesser-included offense, by pleading guilty, Riley “would have waived his opportunity

to argue” self-defense and sudden passion as he did at trial. Id. at 460. The same holds true for

Harris.




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        As mentioned above, the trial court denied Harris’ motion for a new trial, which raised

the ineffective assistance of counsel claim. We must view the trial court’s denial as an implicit

finding that even if Harris had received correct advice, the result of the proceeding would not

have changed. Nothing in the record demonstrates a reasonable probability that the outcome

would have been different had counsel correctly advised Harris that a jury could not recommend

community supervision upon a conviction of murder. Although the trial court made no findings

of fact, we must view the evidence in the light most favorable to the trial court’s ruling and

presume that all reasonable factual findings that could have been made against the losing party

were made. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Thus, “we assume

that the trial judge implicitly found that there was no reasonable probability that the result of the

proceedings would have been different” when he denied Harris’s motion for a new trial. Riley,

378 S.W.3d at 459.

        Harris has failed to meet his burden of proof under the second prong of Strickland, and,

thus, his claim of ineffective assistance of counsel must fail. We overrule the first point of error.

III.    Court Costs Supported by Record

        In his second point of error, Harris points out that the original clerk’s record contained no

certified bill of costs but that the trial court’s judgment indicates Harris must pay $499.00 in

court costs. The district clerk supplemented the record during the pendency of this appeal to

include a certified bill of trial court costs.

        “A clerk of a court is required to keep a fee record, and a statement of an item therein is

prima facie evidence of the correctness of the statement.” Owen v. State, 352 S.W.3d 542, 547

                                                  9
(Tex. App.—Amarillo 2011, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 103.009(a), (c)

(West 2006)). “A cost is not payable by the person charged with the cost until a written bill is

produced or is ready to be produced, containing the items of cost, signed by the officer who

charged the cost or the officer who is entitled to receive payment for the cost.” TEX. CODE CRIM.

PROC. ANN. art. 103.001 (West 2006). “In other words, a certified bill of costs imposes an

obligation upon a criminal defendant to pay court costs, irrespective of whether or not that bill is

incorporated by reference into the written judgment.” Owen, 352 S.W.3d at 547. Absent a

certified bill of costs, the record is insufficient to support the order of court costs.

        The record now authorizes collection of the costs assessed and documented by the clerk

of the trial court. See TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2006), art. 103.003 (West

Supp. 2012); Armstrong v. State, 340 S.W.3d 759, 765 (Tex. Crim. App. 2011).               Harris’ second

point of error is overruled.

        We affirm the judgment of the trial court.



                                                        Jack Carter
                                                        Justice
Date Submitted:         July 11, 2013
Date Decided:           July 30, 2013

Do Not Publish




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