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

                  CONCURRING OPINION

      Today we reverse appellant’s judgment of conviction and remand for a new
plea hearing and trial because appellant’s counsel’s ineffective assistance
prejudiced her. I agree with that outcome, but I write separately to explain my
reasoning.

      Although presented only as ineffective-assistance-of-counsel arguments,
appellant’s first and second issues are based upon two related but distinct Sixth
Amendment violations shown on this record, namely deprivation of the right to
effective assistance of counsel1 and of the right of personal autonomy over one’s
defense.2 Here, both violations are related factually in the sense that the former
begat the latter. But the standards for obtaining reversal based on each violation
are different. An ineffective-assistance claim requires the appellant to demonstrate
that her lawyer’s deficient performance prejudiced her defense. See Strickland,
466 U.S. at 688, 692; Hernandez v. State, 726 S.W.2d 53, 54-57 (Tex. Crim. App.
1986). Generally, an appellant satisfies the prejudice component by showing a
reasonable probability that, but for counsel’s deficient performance, the
proceeding’s result would have been different. Strickland, 466 U.S. at 694. In
some instances, as this case illustrates, a criminal defendant is prejudiced when her
counsel’s deficient conduct might have caused her to waive a judicial proceeding
for which, in reasonable likelihood, she would have opted had counsel performed
adequately. Miller v. State, 548 S.W.3d 497, 502 (Tex. Crim. App. 2018) (citing
Lee v. United States, 137 S. Ct. 1958, 1965 (2017); Roe v. Flores-Ortega, 528 U.S.
470, 484 (2000); Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

       An autonomy violation, on the other hand, constitutes “structural” error,
which when raised at trial and on direct appeal compels “‘automatic reversal’
regardless of the error’s actual ‘effect on the outcome.’” Weaver v. Massachusetts,
137 S. Ct. 1899, 1910 (2017) (quoting Neder v. United States, 527 U.S. 1, 7
(1999)). When a defendant’s Sixth Amendment autonomy right is violated, we
presume prejudice on appeal from a conviction. See McCoy, 138 S. Ct. at 1511;


       1
           U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 684-86 (1984).
       2
         See McCoy v. Louisiana, 138 S. Ct. 1500, 1511 (2018); Jones v. Barnes, 463 U.S. 745,
751 (1983); Gannett Co. v. DePasquale, 443 U.S. 368, 382 n.10 (1979) (the Sixth Amendment
“contemplat[es] a norm in which the accused, and not a lawyer, is master of his own defense”);
Faretta v. California, 422 U.S. 806, 834 (1975).

                                                2
Weaver, 137 S. Ct. at 1907-08 (structural error “def[ies] analysis by harmless error
standards”).

      Appellant did not assert a stand-alone “McCoy complaint”—by which I
mean a complaint that the lawyers’ failure to advise of the out-of-court
conversation, and of legal options available should the conversation cause
appellant to reconsider her pleas, violated her Sixth Amendment autonomy (or Due
Process) rights, and thus no showing of prejudice is required. Under McCoy, once
a Sixth Amendment autonomy deprivation is complete, a new trial is required
without a showing of prejudice and indeed regardless whether counsel performed
deficiently or even contributed to the deprivation. In the motion for new trial and
subsequent briefing, however, appellant lodged her grievance as an ineffective-
assistance-of-counsel point and thus argued that she was required to show
prejudice. Citing Miller and McCoy, she urged that her counsel’s conduct deprived
her of autonomy rights, but she asserted that violation as establishing prejudice
under Miller and not as an independent ground for new trial irrespective of
prejudice, as was the case in McCoy.

      To be clear, McCoy is not an ineffective-assistance-of-counsel case, as the
majority acknowledges.     McCoy, 138 S. Ct. at 1510-11 (“Because a client’s
autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-
assistance-of-counsel jurisprudence.”). Although the conduct of defense counsel
caused the Sixth Amendment autonomy violations both in McCoy and here, the
petitioner in McCoy did not present the issue as one of ineffective assistance in the
Supreme Court. McCoy’s relevance to the present case is limited to its Sixth-
Amendment autonomy-rights discussion, which appellant invokes only with
respect to her prejudice argument.



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      Because appellant has presented her complaint as one of ineffective
assistance of counsel, we must address it within that framework as the majority
correctly does. Examining the first prong, I agree that appellant met her burden to
show by a preponderance of the evidence that trial counsel’s performance fell
below an objective standard of reasonableness under prevailing professional
norms. See Lopez v. State, 343 S.W.2d 137, 142 (Tex. Crim. App. 2011).

      The judge hearing the motion for new trial found that Judge Kennon made a
statement to one of appellant’s trial attorneys regarding consideration of deferred
adjudication, in chambers and outside the presence of the State’s counsel. The
court also found that appellant’s trial counsel withheld Judge Kennon’s statement
and counsel’s interpretation of it from appellant, even though consideration of
deferred adjudication as part of the plea agreement was of “paramount” importance
to appellant. These findings are supported by evidence.

      Vital to the deficiency inquiry is identifying and describing the particular
conduct alleged to be deficient.           A reviewing court must analyze the
reasonableness of counsel’s conduct on the facts of the particular case, viewed at
the time of the conduct. Strickland, 466 U.S. at 690. An appellant must identify
counsel’s acts or omissions that she alleges are not the result of reasonable
professional judgment. Id. The court must then determine whether, in light of all
the circumstances, the acts or omissions were outside the wide range of
professionally competent assistance. Id.

      In its order denying appellant’s motion for new trial, the court identified the
conduct at issue as counsel’s failure to file a motion to withdraw the no-contest and
guilty pleas, which the court found not deficient because the decision could be
grounded in reasonable trial strategy.         However, the germane conduct is not
counsel’s failure to file a motion to withdraw the pleas but, as appellant argues,

                                           4
counsel’s failure to keep their client fully informed of circumstances bearing on a
decision whether to maintain no-contest and guilty pleas or proceed to a jury—a
matter they knew to be of particular importance to their client.3 As appellant’s trial
counsel rightly acknowledged below, Sixth Amendment-secured autonomy
includes the ultimate decisions whether to plead guilty and waive the right to a jury
trial. See Jones, 463 U.S. at 751; see also Burnett v. State, 642 S.W.2d 765 n.8
(Tex. Crim. App. 1982). These personal rights are predicated on “the fundamental
legal principle that a defendant must be allowed to make his own choices about the
proper way to protect his own liberty.” Weaver, 137 S. Ct. at 1908 (citing Faretta,
422 U.S. at 834).         A guilty plea, for example, being an “event of signal
significance” in a criminal proceeding, evokes the highest possible stakes for a
defendant and therefore requires the “utmost solicitude.” Florida v. Nixon, 543
U.S. 175, 187 (2004) (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)). In
fact, counsel lacks authority to consent to a guilty plea on a client’s behalf.
Brookhart v. Janis, 384 U.S. 1, 6-7 (1966). In my view, a criminal defendant’s
rights to control fundamental defense decisions like pleading guilty and waiving a
jury trial are so consequential that lack of full information from counsel frustrates
their effective and meaningful exercise. See Martinez v. Court of Appeal of Cal.,
Fourth Appellate Dist., 528 U.S. 152, 1657 (2000) (Scalia, J., concurring) (“Our
system of laws generally presumes that the criminal defendant, after being fully
informed, knows his own best interests and does not need them dictated by the
State.”) (emphasis added). Accordingly, counsel unquestionably has a duty to
consult with the client about recognized core strategy choices that are the client’s
to make and which path best protects the client’s interests. See McCoy, 138 S. Ct.
at 1509 (“Counsel, in any case, must still develop a trial strategy and discuss it

       3
         She pleaded no contest to the injury to a child count and guilty to the tampering with
evidence count.

                                              5
with her client. . .”); Nixon, 543 U.S. at 187 (“An attorney undoubtedly has a duty
to consult with the client regarding ‘important decisions,’ including questions of
overarching defense strategy.”). Further still, considering Texas’s liberal practice
concerning withdrawal of guilty pleas4 and other features of the attorney-client
relationship, counsel’s duty to consult persists after the initial plea stage. See Tex.
Code Crim. Proc. art. 26.04(j) (appointed counsel shall “represent the defendant
until charges are dismissed, the defendant is acquitted, appeals are exhausted, or
the attorney is permitted or ordered by the court to withdraw as counsel for the
defendant after a finding of good cause is entered on the record”); Ex parte Axel,
757 S.W.2d 369, 373 (Tex. Crim. App. 1988) (“Representation by trial counsel
does not terminate at end of trial.”). Here, due to counsel’s deficient conduct,
appellant was not aware until after judgment and sentencing that events had
occurred that would have prompted her to reconsider her pleas.

       The failure to render legal advice may be deficient particularly when the
advice not given pertains to the class of critical decisions reserved for the client.
See, e.g., Ex parte Battle, 817 S.W.2d 81, 83-84 (Tex. Crim. App. 1991) (failure to
advise client in connection with plea that he was ineligible for court-ordered
probation); Arreola v. State, 207 S.W.3d 387, 392 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (failure to inform of consequences of a guilty plea); see also White
v. Johnson, 180 F.3d 648, 652 (5th Cir. 1999) (failure to advise of right of appeal
and deadlines); Garcia v. Davis, No. 7:16-CV-632, 2018 WL 5921018, at *16
(S.D. Tex. Nov. 13, 2018) (failure to ensure client had full knowledge of



       4
         See Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). A defendant may
withdraw her guilty plea as a matter of right until judgment has been pronounced or the case has
been taken under advisement and, after that point, may do so at the trial court’s discretion. See
id.

                                               6
proceedings by convincing client an interpreter was not needed; client denied
ability to make autonomous choice about defense).

      Focusing on the salient conduct of counsel’s failure to consult with appellant
about Judge Kennon’s statement, I agree with the majority that counsel’s omission
falls outside the range of professionally competent assistance. As of the time of
counsel’s exchange with the judge and afterward, appellant had a constitutional
right to decide whether to maintain her pleas or seek to change them.5 Counsel’s
failure to consult her regarding that issue was deficient. Appellant met her burden
on the first prong and the trial court erred in concluding otherwise.

      Moving to the prejudice issue, the trial court found the evidence lacking on
that element as well. This too was error, as the majority correctly concludes,
because the trial court applied Strickland’s prejudice standard when it should have
applied Miller’s. Under Miller, “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.” Miller,
548 S.W.3d at 502. Trial counsel’s deficient conduct vitiated appellant’s Sixth
Amendment autonomy, and perhaps Due Process rights, over whether to maintain
her pleas or seek to withdraw them and proceed to jury trial. Counsel’s actions
deprived appellant of relevant information bearing on that decision and foreclosed
any choice at all, much less an informed one. The deprivation that resulted,
therefore, is more severe than when counsel offers incorrect advice before acting
on a client’s instruction because appellant was not even aware that the potential to
change a critical decision lay before her and thus did not know to give instruction.
As appellant presented unrefuted evidence amounting to a reasonable likelihood

      5
          See Jackson, 590 S.W.2d at 515.

                                            7
that she would have instructed her counsel to file a motion to withdraw her pleas
had counsel performed adequately, the prejudice prong of appellant’s ineffective
assistance issue is met on this record.




                                          /s/       Kevin Jewell
                                                    Justice


Panel consists of Justices Jewell, Bourliot, and Zimmerer. (Bourliot, J., majority).

Publish — TEX. R. APP. P. 47.2(b).




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