         IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                                        NO. PD-1137-16



                               DAN DALE BURCH, Appellant

                                                 v.

                                   THE STATE OF TEXAS

             ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE NINTH COURT OF APPEALS
                          MONTGOMERY COUNTY

               K ELLER, P.J., filed a concurring opinion.

       I join the Court’s opinion but write separately to set out an additional reason for rejecting

appellant’s claim: Because the trial court believed that it could place appellant on community

supervision and acted on that belief, appellant received the consideration of community supervision

that he had sought. Appellant knew that the trial court did not have to place him on community

supervision and that he was taking a risk that the trial court would not do so. By statute, the trial

court had no power to place appellant on community supervision, but the trial court thought it could

do so and considered that option accordingly. The trial court decided not to place him on community
                                                                  BURCH CONCURRENCE — 2

supervision, but Appellant got what his attorney told him he would get: the trial court’s consideration

of community supervision.

       So, Appellant’s attorney gave incorrect advice about whether the trial court could consider

community supervision, but the trial court acted in accord with that advice by considering appellant

for community supervision. The touchstone for prejudice is whether the attorney’s deficient

performance caused the result of the proceeding to be “unreliable” or “fundamentally unfair.”1 When

the trial court’s actions are in accord with defense counsel’s advice, and the expectations arising

from that advice are not otherwise violated, that advice, however inaccurate, does not cause the

proceedings to be unreliable or fundamentally unfair.

       I join the Court’s opinion.

Filed: November 15, 2017

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       1
         Lockhart v. Fretwell, 506 U.S. 366, 369-70 (1993) (“Thus, an analysis focusing solely on
mere outcome determination, without attention to whether the result of the proceeding was
fundamentally unfair or unreliable, is defective. To set aside a conviction or sentence solely because
the outcome would have been different but for counsel’s error may grant the defendant a windfall
to which the law does not entitle him.”).
