Reversed and Remanded and Majority and Concurring Opinions filed
January 28, 2020.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-18-00372-CR

                       HOLLY LYNN HARRISON, Appellant
                                             V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 368th District Court
                            Williamson County, Texas
                       Trial Court Cause No. 16-0276-K368


                                MAJORITY OPINION

       In this appeal, we consider whether a defendant is entitled to a new plea
hearing and trial after her defense counsel failed to inform her of a comment by the
trial judge that, had the defendant known about it, would have prompted her to ask
to change her plea, ask for a jury trial, and maintain her innocence.1 We reverse

       1
        This case was transferred to our court from the Austin Court of Appeals; therefore, we
must decide the case in accordance with its precedent if our decision would be otherwise
and remand.

       Appellant Holly Harrison appeals her conviction for felony injury to a child
by omission and tampering with evidence. As a result of a plea agreement,
appellant pleaded no contest to injury to a child and guilty to tampering with
evidence without an agreed recommendation from the State on punishment. The
trial court sentenced appellant to the maximum punishment for injury to a child, 20
years in prison, and two years in prison for tampering with evidence. Appellant
contends on appeal that she received ineffective assistance of counsel under
McCoy v. Louisiana, 138 S. Ct. 1500 (2018), and suffered prejudice under Miller v.
State, 548 S.W.3d 497 (Tex. Crim. App. 2018), because her counsel failed to
inform her about the trial court’s comment.2

                                          Background

       Appellant owned an in-home daycare. While she was working alone, a five-
month-old baby stopped breathing during his nap. Upon discovering the baby’s
condition, appellant did not immediately call 911. Instead, she called an employee,
who told her to call 911. Appellant then called the other parents and asked them to
pick up their children. When the employee arrived at the daycare 10-15 minutes
after the initial call, appellant still had not called 911. The employee insisted again
on appellant calling 911, and she finally did. Appellant destroyed phone logs
showing phone calls made and text messages sent before she called 911.

       Pursuant to the plea agreement, appellant pleaded no contest to injury to a
child by omission and guilty to tampering with evidence. The trial judge initially

inconsistent with its precedent. See Tex. R. App. P. 41.3.
       2
          Neither our court nor the Austin Court have addressed whether McCoy or Miller apply
under the circumstances presented here. Appellant also argues that the trial court did not consider
the full range of punishment. Because we conclude McCoy and Miller require reversal, we do not
reach this issue.

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said he would find appellant guilty of injury to a child. Defense counsel replied
that deferred adjudication was available for that offense, so the judge did not make
a finding of guilt and reset the case for a sentencing hearing one week later.

       After appellant made her plea, defense counsel, Elizabeth Whited, went to
the trial judge’s chambers where the trial judge was with the court coordinator.
Whited asked the judge whether he wanted her to provide caselaw indicating that
deferred adjudication was within the permissible range of punishment for injury to
a child. The judge replied, “A deferred on an injury to a child case where there’s a
dead baby? I don’t think so.” Whited then consulted with co-counsel, Brian Jones,
and they decided not to tell appellant about the comment.

       After the sentencing, appellant retained new counsel and filed a motion for
new trial with a supporting affidavit. She attested, “The possibility of deferred
adjudication was the ONLY reason I went to the judge for punishment. . . . Had I
known that the Judge was not going to consider deferred adjudication at my
sentencing hearing, I never would have gone to him for punishment. . . . To be
clear, I would have insisted on going to trial had I known about the trial judge’s
statement.” The trial judge recused himself. The presiding judge granted a hearing
on the motion.

       The trial judge, appellant’s two trial attorneys, another attorney, and the
court coordinator testified at the hearing. Three of the witnesses were present when
the judge made the referenced statement. They and the judge all confirmed that it
happened.3 The judge said that if he had a chance to do it over again, he would not
make the comment and the comment was “[a]bsolutely not” appropriate. He
conceded that the comment, “[i]f taken seriously,” would show that he failed to

       3
          The judge testified that he did not think the wording was exact, but it was “the same
type of reference.”

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consider the full range of punishment. But, according to him, it was a “smart-aleck
comment,” and he did consider the full range of punishment.

      Whited testified that receiving deferred adjudication was the “ultimate goal”
and “paramount” to appellant in deciding to accept the plea agreement. Whited was
“very surprised” about the trial judge’s comment and thought it was inappropriate,
but did not tell her client about it. She said the strategy was to avoid going before
an “unknown” judge and to avoid the admission at trial of appellant’s six hours of
statements made to the police.

      Jones testified that Whited texted him after she heard the comment, “We’re
fucked.” Even though Jones and Whited discussed the possibility of filing a motion
to withdraw the plea or for a recusal, they did not discuss this possibility with their
client. Jones agreed that the possibility of deferred adjudication was “a big deal”
and “the goal.” Jones stated that the strategy was to keep the same trial judge
because he “was still the best option” and it was “[b]etter the devil you know than
the devil you don’t.” Jones testified if this happened again, he “definitely would”
inform his client.

      The presiding judge found the sentencing judge to be a credible witness,
believed his testimony that he considered the full range of punishment, and denied
the motion for new trial. As to the ineffective assistance claim, the presiding judge
concluded appellant failed to show that a favorable ruling on the motion would
have changed the outcome of the case because (1) she had no right to withdraw her
plea, and (2) she did not show there was a reasonable probability that a jury would
have assessed a more lenient punishment under Strickland v. Washington, 466 U.S.
668 (1984).




                                          4
                                      Discussion

      Appellant contends the trial court abused its discretion in denying the motion
for new trial because her attorneys failed to advise her of the sentencing judge’s
comment, thereby depriving her of the right to ask to withdraw her plea, ask for a
jury trial, or move to recuse the sentencing judge. We review the denial of a
motion for new trial for an abuse of discretion and reverse only if no reasonable
view of the record could support the trial court’s ruling. Burch v. State, 541 S.W.3d
816, 820 (Tex. Crim. App. 2017). We must view the evidence in the light most
favorable to the trial court’s ruling. Id. We may not substitute our own judgment
for that of the trial court and must uphold the trial court’s ruling if it is within the
zone of reasonable disagreement. Id. The ruling is within the zone of reasonable
disagreement when there are two reasonable views of the evidence. Id.

      The Sixth Amendment guarantees a defendant in a criminal case the right to
effective assistance of counsel. U.S. Const. amend. VI; Strickland, 466 U.S. at
684–86. Ordinarily, an appellant claiming ineffective assistance of counsel must
prove that counsel’s representation fell below an objective standard of
reasonableness and the defendant suffered prejudice from such deficiency.
Strickland, 466 U.S. at 687–88, 694; Thompson v. State, 9 S.W.3d 808, 812 (Tex.
Crim. App. 1999). Our review of defense counsel’s performance is highly
deferential, and we presume that counsel’s actions fell within the wide range of
reasonable and professional assistance. Strickland, 466 U.S. at 689; Bone v. State,
77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

      I.     Was counsel’s representation below an objective standard of
             reasonableness?

      A defendant generally must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.

                                           5
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). However, some
decisions belong to the defendant and are not a matter of trial strategy. McCoy, 138
S. Ct. at 1508; Turner v. State, 570 S.W.3d 250, 274 (Tex. Crim. App. 2018).
These decisions include whether to plead guilty or waive the right to a jury trial.
McCoy, 138 S. Ct. at 1508; Turner, 570 S.W.3d at 274. “These are not strategic
choices about how best to achieve a client’s objectives; they are choices about
what the client’s objectives in fact are.” McCoy, 138 S. Ct. at 1508 (emphasis in
original). Accordingly, the Sixth Amendment guarantees that a defendant “has the
right to insist that counsel refrain from admitting guilt, even when counsel’s
experienced-based view is that confessing guilt” is in the defendant’s best interest.4
Id. at 1505.

       Defense counsel in the McCoy case conceded his client was guilty of triple
murder in a bid to avoid the death penalty. Id. at 1506. McCoy “vociferously
insisted that he did not engage in the charged acts and adamantly objected to any
admission of guilt.” Id. at 1505. The Supreme Court held that counsel violated his
client’s Sixth Amendment rights by overriding his client’s autonomy in deciding
whether to admit guilt. Id. at 1512.

       In Turner, the Court of Criminal Appeals held that the defendant was
entitled to a new trial under McCoy. Turner, 570 S.W.3d at 277. The court noted
that the “factual similarities between [Turner] and McCoy are striking.” Id. at 275.
In both cases, defense counsel’s strategy was to concede guilt to avoid a death


       4
          Under McCoy, when “a client’s autonomy, not counsel’s competence, is in issue,” we
do not apply the Strickland ineffective assistance framework. Id. at 1510–11. This type of error is
structural and requires a new trial without a prejudice or harmless error analysis. Id. at 1511. But
appellant does not argue that she is entitled to a new trial outside of the Strickland framework.
She argues that her counsel’s representation fell below an objective standard of reasonableness
under McCoy but this court should analyze prejudice under Miller. 548 S.W.3d at 498. Under
either analysis, appellant is entitled to reversal.

                                                 6
sentence. Id. Both times, the defendant disagreed with that strategy and maintained
his innocence. Id.

      The Turner court addressed in tandem the interrelated issues of whether
McCoy applied and whether Turner had preserved error on his McCoy complaint.
Id. at 275–76. Although a defendant is not expected to object with the precision of
an attorney, the court held that a defendant cannot remain silent before and during
trial and raise a McCoy complaint for the first time after trial. Id. at 276. In so
holding, the court stated, “[a] defendant makes a McCoy complaint with sufficient
clarity when he presents ‘express statements of [his] will to maintain innocence.’”
Id. (quoting McCoy, 138 S. Ct. at 1509). The court focused on whether the
defendant made his desire to maintain his innocence known to his defense counsel.
Id. At issue was “[d]oes the record show that [the defendant], in a timely fashion,
made express statements of his will to maintain his innocence?” Id. Because there
was “no question that [the defendant] wanted to maintain his innocence,” error was
preserved. Id.

      The Turner court did not address what would happen if an attorney withheld
information from the client relevant to whether the client would want to withdraw
her plea and maintain her innocence. That issue is squarely before us.

      Appellant filed her motion for new trial and supporting affidavit two days
after she learned of the trial judge’s statement, “[A] deferred, on an injury to a
child case, with a dead baby? I don’t think so.” She attested that “[t]he possibility
of deferred adjudication was the ONLY reason [she] went to the judge for
punishment.” But her attorneys decided not to tell her about the statement or advise
her that she could ask to withdraw her plea or ask for a jury trial. Appellant
attested, “Had I known that the Judge was not going to consider deferred
adjudication at my sentencing hearing, I never would have gone to him for

                                         7
punishment. . . . To be clear, I would have insisted on going to trial had I known
about the trial judge’s statement.” (Emphasis added). Appellant’s affidavit thus
establishes that if she had known about the judge’s comment, she would have
asked to withdraw her plea and asked for a jury trial.

      The record further shows that counsel understood the seriousness of the
judge’s comment and the impact that learning this information would have had on
their client. After the judge made the referenced comment, Whited texted “We’re
fucked” to her co-counsel Jones. Whited testified she was “very surprised” and
“shocked” by the comment, it was improper, and she thought the “comment could
have indicated, yes, that [the judge] was not considering the full range of
punishment.” She testified that Jones “calmed [her] down” and they talked about
the possibility of filing a motion to recuse the judge and withdrawing the plea.
Whited said appellant was in “a very fragile state” but acknowledged appellant was
“very involved” in her case and contributed to the strategic decisions made by the
trial team. Whited said appellant had “been very angry at times, anxious, a lot of
emotions” and it was “very hard for her to plead” no contest. Whited admitted that
it was ultimately appellant’s choice to “have all [the] facts before she [got] exposed
to punishment.”

      Jones testified that he spoke with Whited after the judge made the comment
and Whited “appear[ed] concerned.” Jones also said that telling appellant about the
comment would subject her to “more stress” and he saw “no value in stressing her
out.” He conceded that appellant did not know the judge and the ultimate decision
of who decides punishment belonged to appellant. He also said, “we were very
concerned about how she was going to react” and “we just didn’t think we wanted
to put her in that position and we just did not believe that the judge was serious
about the comment.” Jones agreed that in hindsight, “he definitely would” advise

                                          8
his client of such a comment if he were in this situation again.

          Whited and Jones both testified respectively that deferred adjudication was
the “ultimate goal,” “paramount,” “a big deal,” and “the goal.” However, they were
concerned about appellant’s potential reaction to the comment in her “fragile
state.”

          On this record, we conclude that counsel was aware that appellant likely
would have changed her position had she known about the judge’s comment.
Appellant’s emphasis on the importance of deferred adjudication, along with
counsel’s recognition that appellant was “very involved” in her sentencing hearing
and it was “very hard” for her to plead no contest, lead us to conclude that counsel
knew at the time of the judge’s statement that appellant likely would have asked to
change her plea, asked for a jury trial, and maintained her innocence had she
known about the comment. See id.

          We conclude that appellant preserved error on her complaint. She objected
at her first opportunity after learning about the trial judge’s comment. See Burt v.
State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013) (holding that in some
instances, a defendant may preserve a sentencing issue by raising it in a motion for
new trial and noting, “[t]he requirement that an objection be raised in the trial court
assumes that the appellant had the opportunity to raise it there”); Landers v. State,
402 S.W.3d 252, 254 (Tex. Crim. App. 2013) (“The general rule is that a party
must first complain in the trial court in order to preserve a complaint for appellate
review. . . . But [the] operation [of the rule] may depend on the party’s having an
opportunity to comply with the rule.”); Issa v. State, 826 S.W.2d 159, 161 (Tex.
Crim. App. 1992) (permitting appellant to raise his objection for the first time in a
motion for new trial since “appellant had no opportunity to object to the trial



                                           9
court’s action until after that action was taken”).5

       As to counsel’s trial strategy, Whited said they wanted to avoid going before
an “unknown” judge and to avoid the admission at trial of six hours of statements
appellant made to the police. Jones stated that the strategy was to keep the same
trial judge because he “was still the best option” and it was “[b]etter the devil you
know than the devil you don’t.” As the McCoy court noted, trial counsel cannot
override a client’s objection to a guilty plea. 138 S. Ct. at 1509. Disputes with
counsel over “concession of the defendant’s commission of criminal acts” are not
“strategic disputes . . . ; they [are] intractable disagreements about the fundamental
objective of the defendant’s representation.” Id. at 1510. Accordingly, defense
counsel’s strategy of going to the trial judge as the “best option” for punishment is
not relevant to our assessment of error under McCoy. In accordance with McCoy,
the decision not to tell appellant about the judge’s statement was not a strategic
choice. That decision deprived appellant of the right to ask to change her plea, ask
for a jury trial, and maintain her innocence.

       We conclude the proper application of McCoy under these facts is to ask
whether appellant was deprived of the opportunity to ask to withdraw her plea or
for a jury trial, which was her right. See id. at 1511 (“[A]n admission [of a client’s
guilt over her objection] blocks the defendant’s right to make the fundamental
choices about [her] own defense.”). The trial court certainly had the authority to
allow appellant to withdraw her plea and her jury trial waiver. See Saldana v. State,
150 S.W.3d 486, 490 (Tex. App.—Austin 2004, no pet.) (noting under Texas’s
“liberal practice” concerning the withdrawal of a guilty plea, a defendant may

       5
           We agree with the concurrence that appellant never argued she was entitled to a new
trial without a showing of prejudice under McCoy. However, appellant raised the issue of her
counsel’s deficiency in depriving her of the right to take steps to change her plea, have a jury
trial, and maintain her innocence.

                                              10
withdraw her plea as a matter of right until the judgment has been pronounced or
the case has been taken under advisement and after that time, the trial court has
discretion to allow withdrawal of the plea); see also Marquez v. State, 921 S.W.2d
217, 221 (Tex. Crim. App. 1996) (“[W]hen an accused validly waives trial by jury,
a subsequent request by the accused to withdraw the jury waiver is addressed to the
discretion of the trial court.”). We believe appellant’s showing that she was
deprived of the right to ask is enough to show a deficiency of counsel under
McCoy.

      We conclude that the record shows appellant adequately preserved her
ineffective assistance claim and defense counsel were deficient when they failed to
tell appellant of the judge’s statement implicating his ability to consider the full
range of punishment, thus depriving appellant of the opportunity to maintain her
innocence. Accordingly, counsel’s representation fell below an objective standard
of reasonableness.

      We do not hold today that McCoy is an ineffective assistance case that fits
within the parameters of Strickland. To the contrary, the Supreme Court held that
when “a client’s autonomy, not counsel’s competence, is in issue, we do not apply”
the Strickland ineffective assistance framework. 138 S.Ct. at 1510-11. Under
McCoy, a defendant is not required to show she suffered prejudice from her
counsel’s deficiency. Id. at 1511. However, appellant does not argue she was not
required to show prejudice and relies on McCoy only to show that her counsel’s
performance was deficient. We agree that it was. Because appellant contends that
she suffered prejudice by her counsel’s deficiency, we will analyze whether she is
correct.

      II.   What prejudice standard applies?

      To demonstrate prejudice under Strickland, a defendant ordinarily must
                                        11
show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” 466 U.S. at 694.
The Court of Criminal Appeals recently recognized an exception to this general
rule and held 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.” Miller, 548 S.W.3d at 498.

      In Miller, the defendant waived a jury trial and pleaded not guilty after his
attorney incorrectly advised him that he was eligible for probation from a judge. Id.
The trial court found the defendant guilty and sentenced him to prison time. Id.
The defendant sought a new trial based on ineffective assistance of counsel. Id.
The trial court denied the motion for new trial, and the court of appeals affirmed.
Id.

      In deciding that a defendant shows prejudice when he demonstrates he
would have opted for a jury if his attorney had correctly advised him, the high
court analyzed “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.” Id. at 499. The court noted that the Supreme Court has
held 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.” Id. at 502.

      The Court of Criminal Appeals analyzed three Supreme Court cases in
reaching its conclusion, Hill, Flores-Ortega, and Lee:

      [I]f the deficient performance might have caused the waiver of a
                                           12
       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.
       The focus then is on the defendant’s decision making. In Lee, where
       the attorney wrongly advised the defendant that he would not be
       deported if he pleaded guilty, 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.” 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. In Hill,
       where the defendant claimed his attorney gave him bad advice about
       parole, the prejudice issue was whether the defendant still would have
       pleaded guilty if his attorney had correctly advised him about parole.

       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.”


Id. at 499–500 (citing Lee v. United States, 137 S. Ct. 1958, 1962, 1965–66 (2017),
Roe v. Flores–Ortega, 528 U.S. 470, 484 (2000), and Hill v. Lockhart, 474 U.S.
52, 56, 59 (1985)). As the Court of Criminal Appeals noted, “proving a better
outcome from a proceeding never had is so speculative as to be unworkable.” Id. at
501.

       The State argues that Miller does not apply here based on the timing—
appellant had already accepted a plea agreement and waived her right to a jury trial
when the trial judge made the objectionable comment. According to the State,
because of this timing, appellant did not have a clear right to withdraw her plea or
elect a jury trial and appellant did not have a clear right to require the trial judge to
recuse himself. But if we were to agree with the State, our holding would run afoul
of Miller: the question is not whether the outcome would have been different; the
question is whether the attorney’s deficient performance would have affected the
                                           13
defendant’s choice. Id. at 499. Here, the deficient performance occurred after
appellant entered her plea but before trial. We do not agree that appellant’s right to
a remedy hinges on when she knew of counsel’s deficient performance. We
conclude that Miller applies because appellant was deprived of the opportunity to
ask to withdraw her plea and to ask for a jury trial. We turn to whether appellant
suffered prejudice.

      The State argues that appellant did not suffer prejudice under Miller because
appellant obtained “that for which she bargained”—the possibility of deferred
adjudication and avoiding a jury. But this is not the proper inquiry. We must ask
first whether counsel’s omission deprived appellant of the opportunity to ask and
second whether appellant would have asked if given the opportunity. Because
appellant demonstrated that if she had all the information, she would have asked to
withdraw her plea and for a jury trial, she has demonstrated prejudice under Miller.

      We conclude for these reasons that the trial court abused its discretion in
denying the motion for new trial. We turn to the proper remedy.

      The Miller court reversed the court of appeals’ judgment affirming the trial
court and remanded the case to the court of appeals for an analysis of prejudice and
thus did not discuss the proper remedy. Id. at 502. However, in keeping with
Miller, because appellant has shown but for her counsel’s errors, she would not
have pleaded no contest to injury to a child and would have asked for a jury trial,
we conclude the proper remedy is to reverse the trial court’s judgment and remand
the case for a new plea hearing and trial. This holding is also consistent with the
Supreme Court’s holding in Lee—in that case the court concluded that Lee should
have been afforded an opportunity to reject his plea agreement based on the
knowledge that accepting the plea would “lead to deportation.” 137 S. Ct. at 1969.
Here, the proper remedy is to give appellant an opportunity to reject her plea

                                         14
agreement and opt for a jury trial.

                                      Conclusion

      We sustain appellant’s issues complaining of ineffective assistance of
counsel. We reverse the judgment of the trial court and remand this case for a new
plea hearing and trial.




                                        /s/    Frances Bourliot
                                               Justice


Panel consists of Justices Jewell, Bourliot, and Zimmerer. (Jewell, J., concurring,
joined by Zimmerer, J.).

Publish — TEX. R. APP. P. 47.2(b).




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