             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 PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIFTH COURT OF APPEALS
                          COLLIN COUNTY

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

                                         OPINION

       The issue in this ineffective-assistance-of-counsel case is the standard that courts

should employ for assessing whether a defendant was prejudiced from his attorney’s deficient

performance with respect to the defendant’s decision to waive a jury trial in favor of a bench

trial. There are two possible alternatives for the prejudice standard in this type of case. First,
                                                                                         Miller - 2

a court could consider solely how the deficient performance affected the defendant’s decision

to waive the jury. Second, a court could consider the totality of the record so that the

deficient performance is gauged against how it affected the outcome of the proceedings by

comparing the outcome of the bench trial that actually did occur with the probable outcome

of the jury trial that did not occur. In his sole ground in his petition for discretionary review,

Arthur Franklin Miller, Jr., appellant, contends that this Court should employ the first

alternative.   We conclude, however, that the second alternative appropriately applies

Strickland v. Washington’s traditional prejudice outcome-based standard.1 By examining

the totality of the record, including the proceedings at the evidentiary bench trial that

occurred in this case, we determine that appellant has failed to show a reasonable probability

that the outcome of the proceeding would have been different had he elected to have a jury

trial. We hold that the court of appeals properly determined that appellant was not prejudiced

by counsel’s erroneous advice. Accordingly, we affirm the court of appeals’s judgment.

                                         I. Background

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

a child by sexual contact. See T EX. P ENAL C ODE §§ 21.11, 22.021.2 Appellant waived his

right to a jury trial and pleaded not guilty at a bench trial to the charges. The trial court found



1
       466 U.S. 668 (1984).
2
       Appellant was also acquitted by the trial judge of other charges that were filed under a
separate indictment but that were tried contemporaneously with the charges for which he was
convicted.
                                                                                           Miller - 3

appellant guilty on both charges and sentenced him to twenty-two years’ and ten years’

imprisonment, respectively.

       Appellant filed a motion for new trial alleging ineffective assistance of counsel on the

basis that his 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 applies 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 T EX. C ODE C RIM.

P ROC. A NN. Art. 42.12 §§ 3(g), 4, 5 (West 2006).3 Appellant argued that, had he been

correctly advised about the judge’s inability to grant him probation, he would have elected

a jury trial rather than a bench trial. In support of this contention, appellant and several of

his family members testified at the hearing on his motion for new trial that trial counsel

repeatedly urged appellant 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 appellant’s elderly

age, lack of criminal history, and the weakness of the State’s case. The trial court denied

appellant’s motion for new trial, and appellant timely appealed.

       On appeal, the court of appeals affirmed the trial court’s decision to deny appellant’s



3
        Because appellant’s offenses occurred in 2001, prior to the law being changed in such a
manner as to entirely preclude the possibility of probation under these circumstances, appellant was
eligible to receive probation from the jury for these offenses. TEX . CODE CRIM . PROC. art. 42.12, §
4 (West 2006). The Legislature subsequently changed the law to preclude jury-recommended
community supervision for these offenses, applicable to offenses committed after September 1, 2007.
See TEX . CODE CRIM . PROC . art. 42.12, § 4(d)(5) (West 2016). In any event, appellant was not
eligible to receive probation from the trial judge for these offenses. Id. § 3g (a)(1)(C), (E).
                                                                                       Miller - 4

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). 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’s analysis, therefore, focused on whether counsel’s deficient

performance had prejudiced appellant under the second prong of Strickland. Id. at *3. The

court of appeals’s 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 explained

that the abuse-of-discretion standard applied to its review of the trial court’s denial of

appellant’s motion for new trial and that, under that standard, an appellate court views the

evidence in the light most favorable to the trial court’s ruling. Id. at *1. Applying that

standard to this case, the court of appeals observed that the trial court here denied appellant’s

motion for new trial, and thus the “trial judge implicitly found that there was no reasonable

probability that the result of the proceeding would have been different.” Id. at *4. The court

of appeals determined that appellant had failed to show that he was prejudiced by counsel’s

misadvice 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
                                                                                         Miller - 5

have awarded him the probated sentences. Id. at *4-5 (“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.”).

       Appellant petitioned this Court for discretionary review. He argues that the court of

appeals erred in upholding the trial court’s ruling because no reasonable view of the record

supports its determination that he was not prejudiced by trial counsel’s deficient

performance. Appellant asserts that he was prejudiced because he would not have waived

a jury and agreed to a bench trial had counsel properly informed him that the trial court could

not award him probated sentences for the offenses for which he was charged.4 The State

maintains that appellant has failed to show prejudice because, regardless of whether appellant

had been sentenced by the judge or jury, he would not have received probated sentences for

these offenses, and thus he has failed to demonstrate a reasonable probability that the

outcome of the proceedings would have been different.

                           II. The Proper Standard for Prejudice

       In light of the arguments presented in this case, we address whether demonstrating

prejudice under these circumstances due to counsel’s erroneous advice about probation

eligibility requires appellant to show, on the one hand, that his decision to waive a jury would



4
       Appellant’s ground for review asks, “Did the Court of Appeals err by finding that trial
counsel’s deficient performance regarding Appellant’s probation eligibility, which Appellant relied
upon in waiving his constitutional right to a jury trial, was not prejudicial under Strickland?”
                                                                                        Miller - 6

have been different had he been properly advised, or, on the other hand, that there is a

reasonable probability that a jury’s sentence would have been different from the judge’s

sentence. We conclude that the latter standard is appropriate in this case by examining this

Court’s existing precedent, some of which is conflicting on this question; the Strickland

standard that applies to all ordinary ineffective-assistance-of-counsel claims arising from

counsel’s errors during the course of a trial proceeding; the Hill v. Lockhart5 standard that

pertains to claims of ineffectiveness arising from counsel’s errors during a guilty-plea

proceeding; and the rationale for opting for the traditional Strickland outcome-based

prejudice standard under the facts of this case.

       A. This Court’s Precedent

       This Court’s precedent suggests two alternative ways of assessing prejudice in this

context. The first alternative that envisions prejudice in the context of the decision between

a jury or a bench trial was set forth in the early 1990’s in State v. Recer, in which we stated,

       To support a claim of ineffective assistance of counsel where . . . the complaint
       is that counsel misunderstood the law regarding probation . . . more must be
       apparent from the record than counsel’s mere mistake. There must be
       evidence [1] that the defendant was initially eligible to receive probation, [2]
       that counsel’s advice to go to the trial judge for sentencing was not given as
       part of a valid trial strategy, [3] that the defendant’s decision to have the judge
       assess punishment was based on his attorney’s erroneous advice, and [4] that
       the defendant’s decision would have been different if her attorney had
       correctly informed her of the law.

815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991) (emphasis added). Recer, therefore,



5
       474 U.S. 52 (1985).
                                                                                         Miller - 7

supports the view that the prejudice standard should examine whether a defendant would

have made a different decision had he been properly advised. See id.

          About two decades later in Riley v. State, this Court, although citing Recer, articulated

a different standard for determining prejudice from counsel’s erroneous advice about

probation eligibility that focused on whether the results of the proceeding would have been

different had the defendant been properly advised. Riley, 378 S.W.3d at 458. In Riley, we

stated,

          When the claim of ineffectiveness relies upon 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 given as part of a valid trial strategy; [3] the defendant’s
          election of the assessor of punishment was based on his attorney’s erroneous
          advice; and [4] the results of the proceeding would have been different had
          his attorney correctly informed him of the law.

Id. (emphasis added); see also id. (explaining that “the analysis of the prejudice prong turns

on whether the deficiency made any difference to the outcome of the case”). In Riley, we did

not explain or address the difference between our description of the relevant standard and the

description of the standard in Recer; we simply noted that Recer was analogous to Riley and

thus Recer’s test was “informative and appropriate” to the scenario presented in Riley. Id.

at 458 n. 24.

          B. The Strickland Standard for Prejudice in Ordinary Cases Involving Errors by
          Counsel At Trial Considers Whether the Result of the Proceeding Would Have
          Been Different

          The prejudice standard espoused in Riley that contemplates whether, but for counsel’s
                                                                                      Miller - 8

erroneous advice regarding probation eligibility, the outcome of the proceedings would have

been different was rooted in the prejudice standard set forth in Strickland that generally

applies to claims of ineffectiveness stemming from errors by counsel during a trial

proceeding. The Supreme Court, in 1984, decided Strickland, in which it established the

two-prong test to resolve ineffective-assistance-of-counsel claims. See Strickland, 466 U.S.

at 687. The first prong requires showing that counsel’s performance fell below an objective

standard of reasonableness under prevailing professional norms. Id. at 688. The second

prong requires a defendant to prove that, but for such deficient performance, a reasonable

probability exists that the result of the proceeding would have been different. Id. at 694. A

“reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Id.

       The second prong of the Strickland test is a consequence of the “strong presumption

of reliability” that the Supreme Court “normally app[lies] . . . to judicial proceedings.” Smith

v. Robbins, 528 U.S. 259, 286 (2000) (citing Strickland, 466 U.S. at 696). In most cases, to

establish that a trial was rendered unfair due to ineffectiveness by an attorney, a defendant

must “overcome” the “presumption of reliability” by proving actual prejudice. Id. Strickland

did not establish mechanical rules for their own sake. Rather, the test is a reflection of a

defendant’s burden to overcome the “presumption of reliability” that courts ordinarily afford

all “judicial proceedings.” Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000). A defendant

pressing an ineffective-assistance claim ordinarily must “overcome that presumption” by
                                                                                      Miller - 9

“show[ing] how specific errors of counsel undermined the reliability of the finding of guilt”

or the punishment assessed. Id.

       Strickland was a capital-murder case in which a death sentence had been imposed, and

it left open the question of whether its standard applied in the context of the sentencing phase

of non-death-penalty cases. Strickland, 466 U.S. at 686 (“We need not consider the role of

counsel in an ordinary sentencing, which may . . . require a different approach to the

definition of constitutionally effective assistance.”). The facts in Strickland involved a

defendant who pleaded guilty to three capital murder charges. Id. at 672. After that,

Strickland’s trial counsel conducted some preparation for the sentencing phase of the

proceedings, but he decided not to present, and hence not to look further for, evidence

concerning Strickland’s character and emotional state. Id. at 673. At the sentencing hearing,

counsel argued that Strickland’s remorse and acceptance of responsibility justified sparing

him from the death penalty. Id. The State put on evidence and witnesses largely for the

purpose of describing the details of the crimes, but counsel did not cross-examine the medical

experts who testified about the manner of death of Strickland’s victims. Id. at 674. In

discussing prejudice in Strickland, the Supreme Court noted that, aside from conflict-of-

interest claims, actual ineffectiveness claims alleging a deficiency in attorney performance

are subject to a general requirement that the defendant affirmatively prove prejudice. Id. at

693. The Court observed that attorney “errors come in an infinite variety and are as likely

to be utterly harmless in a particular case as they are to be prejudicial.” Id. It explained,
                                                                                     Miller - 10

“Even if a defendant shows that particular errors of counsel were unreasonable, therefore,

the defendant must show that they actually had an adverse effect on the defense.” Id.

       The Strickland Court made strong statements about the need for courts to focus on the

actual reliability of the proceedings that did occur rather than on speculation about the

possibility of jury nullification or some other extreme event. Id. at 694-95. The Court stated,

       In making the determination whether the specified errors resulted in the
       required prejudice, a court should presume, absent challenge to the judgment
       on grounds of evidentiary insufficiency, that the judge or jury acted according
       to the law. An assessment of the likelihood of a result more favorable to the
       defendant must exclude the possibility of arbitrariness, whimsy, caprice,
       “nullification,” and the like. A defendant has no entitlement to the luck of a
       lawless decisionmaker, even if a lawless decision cannot be reviewed. The
       assessment of prejudice should proceed on the assumption that the
       decisionmaker is reasonably, conscientiously, and impartially applying the
       standards that govern the decision.

Id.

       With respect to its focus on the outcome of the proceedings in the context of

Strickland’s sentencing hearing that had occurred before the trial court in that case, the

Supreme Court determined that it was necessary for reviewing courts to examine the totality

of the evidence, which in that case required the reviewing court to decide whether there was

a reasonable probability that, absent counsel’s errors, the sentencer would have concluded

that the balance of aggravating and mitigating circumstances did not warrant a sentence of

death. Id. at 695. The Court stated, “In making this determination, a court hearing an

ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id.

       Initially, this Court held that the Strickland prejudice standard was inapplicable in
                                                                                    Miller - 11

non-capital sentencing proceedings. See Ex parte Cruz, 739 S.W.2d 53, 58 (Tex. Crim. App.

1987); see also Ex parte Duffy, 607 S.W.2d 507, 516 (Tex. Crim. App. 1980). But later, this

Court reversed course and announced that the Strickland standard ordinarily would apply to

all cases, including non-death cases, at both the guilt and punishment phases. Hernandez v.

State, 988 S.W.2d 770, 771 (Tex. Crim. App. 1999). Under Strickland, therefore, in ordinary

cases of ineffective assistance of counsel involving a claim that counsel has 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.

       C. The Hill Standard for Prejudice in Plea Proceedings Applies Strickland By
       Considering Whether the Defendant Would Not Have Pleaded Guilty

       After Strickland set forth the prejudice standard for claims of ineffective assistance

in ordinary trials, the Supreme Court discussed that standard in the context of a claim of

ineffectiveness where there had only been plea proceedings rather than an ordinary trial.

Hill, 474 U.S. at 56-59. In Hill, the Supreme Court held that Hill had failed to prove

ineffective assistance of counsel because he “failed to allege the kind of ‘prejudice’

necessary to satisfy the second half of the Strickland v. Washington test[.]” Id. at 59. The

Court explained that satisfying the prejudice prong in this context requires that the defendant

show “a reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” Id. The Court addressed how to assess

prejudice from the deficient performance by Hill’s attorney, who had misinformed Hill about
                                                                                     Miller - 12

his eligibility for parole under the sentence he had agreed to in the plea bargain. Id. at 60.

The Court explained that Hill had failed to allege in his habeas petition that, had counsel

correctly informed him about his parole eligibility date, he would have pleaded not guilty and

insisted on going to trial. Id. Furthermore, Hill had not alleged any special circumstances

that might support the conclusion that he placed particular emphasis on his parole eligibility

in deciding whether or not to plead guilty. Id. In considering whether Hill would have made

a different decision whether to plead guilty had he been correctly advised, the Supreme Court

also considered the complained of matter in the context of the ultimate outcome of the trial.

Id. It said, “Indeed, [Hill’s] mistaken belief that he would become eligible for parole after

serving one-third of his sentence would seem to have affected not only his calculation of the

time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his

calculation of the time he likely would serve if he went to trial and were convicted.” Id.

       Hill applied the Strickland prejudice standard in the particular context of a guilty-plea

proceeding by determining that, if a defendant would have made a different decision to plead

guilty to an offense had he been correctly advised by his attorney, then that establishes the

prejudice requirement that considers whether it is reasonably likely that the result of the

proceedings would have been different. See id. at 59. With respect to this matter, the

Supreme Court stated,

       In many guilty plea cases, the “prejudice” inquiry will closely resemble the
       inquiry engaged in by courts reviewing ineffective assistance challenges to
       convictions obtained through a trial. For example, where the alleged error of
       counsel is a failure to investigate or discover potentially exculpatory evidence,
                                                                                    Miller - 13

       the determination whether the error “prejudiced” the defendant by causing him
       to plead guilty rather than go to trial will depend on the likelihood that
       discovery of the evidence would have led counsel to change his
       recommendation as to the plea. This assessment, in turn, will depend in large
       part on a prediction whether the evidence likely would have changed the
       outcome of a trial. Similarly, where the alleged error of counsel is a failure to
       advise the defendant of a potential affirmative defense to the crime charged,
       the resolution of the “prejudice” inquiry will depend largely on whether the
       affirmative defense likely would have succeeded at trial.

Id. Thus, even within the prejudice analysis that focuses on whether counsel’s deficient

performance affected a defendant’s decision to plead guilty, Hill signaled that a court may

properly consider whether the outcome of the proceeding would not have been different.

       The Hill Court noted that, in considering whether the outcome of the proceeding

would have been different based on the deficient advice that resulted in a plea of guilty, a

court should apply an objective standard. See id. at 59. Referring to its decision in

Strickland, the Supreme Court stated, “[T]hese predictions of the outcome at a possible trial,

where necessary, should be made objectively, without regard for the ‘idiosyncracies of the

particular decisionmaker.’” Id. at 59-60 (quoting Strickland, 466 U.S. at 695).

       D. Prejudice Standard for Deficient Advice Resulting in a Defendant’s Guilt and
       Punishment Being Decided at a Court Trial Rather Than at a Jury Trial

       We conclude that 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. Given that there was an entire guilt and punishment trial, this Court has an

entire record of the proceedings that occurred so that we may discern whether the probable

outcome of the proceedings would have been different with a jury trial that did not occur as
                                                                                        Miller - 14

compared to the bench trial that did occur. We can examine all of the evidence to ascertain

whether it is reasonably probable that a jury would have recommended a probated sentence

and, thus, we may properly assess whether the result of the proceedings would likely have

been different. 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. In Hill,

there was no trial to examine for the reliability of the proceeding because all that occurred

in that case was a guilty plea, but here, as in the punishment-phase court trial in Strickland,

there are trial proceedings that may be examined for their reliability as to their outcome.

       Additionally, the Supreme Court’s decision in Lafler v. Cooper informs our

conclusion that Strickland rather than Hill 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 that is the converse of Hill—a defendant rejects

a plea offer as a result of constitutionally deficient counsel, proceeds to trial, and receives a

sentence harsher than that offered in the plea bargain. Id. at 160. The Court explained,

       In contrast to Hill, here the ineffective assistance 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
                                                                                    Miller - 15

        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 reasonably likely that the judgment and sentence that a reasonable jury would

probably impose would be less severe than what was in fact imposed by the trial court at the

court trial.

        Here, for the defendant to have been harmed by counsel’s deficient performance, the

probation punishment option would have to have been a reasonably probable outcome in his

case. If there is no reasonable probability that a fact finder would have sentenced a

defendant to probation, then the defendant could not possibly have been harmed by counsel’s

deficient performance. This is precisely what the Strickland prejudice analysis was intended

to address.

        In light of the foregoing considerations, we hold that the ordinary Strickland standard

applies to a claim of ineffective assistance of counsel that is based on counsel’s erroneous

advice regarding a defendant’s eligibility to receive probation from a particular sentencer.

Accordingly, the proper prejudice standard that applies to this case is whether appellant has
                                                                                    Miller - 16

demonstrated a reasonable probability that “the results of the proceeding would have been

different had appellant’s attorney correctly informed him of the law.” See Riley, 378 S.W.3d

at 458.

  III. Analysis of the Court of Appeals’s Judgment Affirming Denial of New-Trial
                                       Motion

          Applying the proper prejudice standard to the facts of this case, we affirm the court

of appeals’s decision to uphold the trial court’s denial of appellant’s motion for new trial.

We have stated that, in the context of this type of ineffective-assistance claim that is

premised on counsel’s error related to a defendant’s eligibility to receive probation, the

central prejudice inquiry under Strickland is whether there is a reasonable probability that a

defendant’s sentencing jury would have recommended probation had the issue been

submitted to it. 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 reached

a more favorable penalty-phase verdict). In Ex parte Cash, under analogous circumstances

in which the defendant claimed that his counsel’s error had prevented the jury from

considering probation, this Court observed that the jury’s imposition of a forty-year sentence

against Cash was a strong indicator that, even if it had been presented with the option of

sentencing Cash to ten years or less and awarding him probation, the jury would not have

exercised that option. Id. at 819.
                                                                                            Miller - 17

        The prejudice prong of the Strickland ineffectiveness inquiry is a mixed question of

law and fact. Riley, 378 S.W.3d at 458. The prejudice prong often contains “subsidiary

questions of historical fact, some of which may turn upon the credibility and demeanor of

witnesses.” Id. Because the abuse-of-discretion standard requires a reviewing court to give

almost total deference to a trial court’s findings of historical facts as well as to its resolution

of mixed questions of law and fact that turn on an evaluation of credibility and demeanor and

to view the record in the light most favorable to the trial court’s ruling, we agree with the

court of appeals that the trial court properly denied appellant’s motion for new trial. As the

State suggests, the trial judge implicitly determined that, even if appellant had sought

probation from the jury, it is highly unlikely that the jury would have awarded appellant

probated sentences.6

        Although it was legally possible for a jury to assess probated sentences for appellant’s

convictions for aggravated sexual assault of a child and indecency with a child by contact,

it is not reasonably probable that it would have assessed probation for those crimes.7 The

facts in this case involved the molestation of appellant’s grandchild that occurred over a


6
         In its findings of fact and conclusions of law that were orally announced on the record, the
trial court found that appellant’s counsel advised him that he could receive probation in a bench trial;
that this view by counsel was erroneous; but that the mistake by counsel was not “so deficient to be
a miscarriage of justice.” We imply factual findings in favor of the trial court’s ruling for matters
on which it has failed to make an express finding.
7
        Appellant’s conviction for aggravated sexual assault of a child carried a possible range of
punishment from 5 years to 99 years or life, whereas his conviction for indecency with a child by
contact carried a possible punishment range of 2 to 20 years. TEX . PENAL CODE §§ 22.021(a)(1)(B);
21.11(a)(1); 12.32, 12.33.
                                                                                   Miller - 18

period of two years and involved several alleged instances of abuse. The complainant

testified in extensive detail about the sexual abuse, and her testimony regarding the abuse

was supported by the testimony of police investigators. Some of the more egregious facts

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 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. We conclude that appellant has not presented us with

any basis upon which we might determine that, from an objective viewpoint, a reasonable
                                                                                      Miller - 19

jury would have awarded him a probated sentence for this offense. We, therefore, agree with

the court of appeals’s conclusion that appellant failed to show that trial counsel’s deficient

performance prejudiced him.

                                        IV. Conclusion

       Appellant has not shown that, had his attorney correctly advised him regarding the

effect of waiving a jury on his probation eligibility, there was a reasonable probability of

changing the outcome of the proceeding. Given the procedural posture of this case in which

the court of appeals was reviewing the trial court’s denial of a motion for new trial, we agree

that the court of appeals properly deferred to the trial court’s determination that appellant was

not prejudiced by counsel’s deficient performance. Accordingly, the court of appeals

properly upheld the trial court’s denial of appellant’s complaint that trial counsel was

ineffective, and we affirm the judgment of the court of appeals.




Delivered: April 26, 2017

PUBLISH
