                 IN THE COURT OF CRIMINAL APPEALS
                             OF TEXAS

                                                 NO. PD-1886-11


                                      KENYON GRADY COX, Appellant

                                                       v.

                                             THE STATE OF TEXAS


                                  ON DISCRETIONARY REVIEW
                              FROM THE SECOND COURT OF APPEALS
                                      TARRANT COUNTY


       Womack, J., delivered the opinion for a unanimous Court.


       The issue in this case is whether defense counsel’s misstatement in voir dire about the

concurrent-sentencing law denied his client the effective assistance of counsel. We hold that it

did not.

       The appellant was convicted of two counts of aggravated sexual assault1 and two counts



       1
           See T EX . P EN AL C OD E § 22.021.
                                                                                                                              2

of indecency with a child.2 The Second Court of Appeals reversed the trial court’s judgment as to

punishment and remanded for a new punishment trial.3 We granted the State’s petition for

discretionary review on five grounds, all of which present the issue of ineffective assistance.

                                                               I

         During voir dire, a venire member asked the appellant’s counsel if the appellant’s

sentences would run concurrently or consecutively. At first counsel said that they would run

concurrently, but he later agreed with the State that this would be addressed in the charge of the

court. Neither answer was correct.4

         The jury convicted the appellant of two counts of aggravated sexual assault of a child and

two counts of indecency with a child by contact. During the punishment deliberations, the jury

foreman sent the trial judge a note asking whether the appellant’s sentences would run

concurrently or consecutively. The judge responded that he could not answer the question. The

jury then assessed the maximum punishment on each count: life imprisonment and a $10,000

fine. The trial court ordered the sentences to be served consecutively.

         The Second Court of Appeals found that the appellant’s trial counsel rendered ineffective

assistance “by misstating the application of the stacking law to the venire panel and by not

ensuring that such misstatement was corrected before the jury delivered its punishment verdict.”5



         2
             See T EX . P EN AL C OD E § 21.11.

         3
             Cox v. State, No. 02-09-00297, 2011 Tex. App. LEXIS 9197 (Tex. App.–Fort W orth Nov. 17, 2011).

         4
          See T EX . P EN AL C OD E § 3.03(b)(2)(A);T EX . C OD E C RIM . P ROC . art. 42.08(a). See also Stewart v. State,
221 S.W .3d 306, 316 (Tex. App.–Fort W orth 2007, no pet.) (citing Clay v. State, 102 S.W .3d 794, 798 (Tex.
App.–Texarkana 2003, no pet.)); Levy v. State, 860 S.W .2d 211, 213 (Tex. App.–Texarkana 1993, pet. ref’d);.

         5
             Cox, 2011 Tex. App. LEXIS 9197.
                                                                                                                          3

The Court reached its conclusion by pointing to our opinion in Andrews v. State,6 in which we

held that there can be no reasonable trial strategy in “fail[ing] to object to the prosecutor’s

misstatement of the law regarding whether the appellant’s sentences could be stacked [when trial

counsel] knew that the State had filed a motion to cumulate the sentences.”7

         Now, on appeal to this court, the State contends that Andrews is distinguishable.

                                                           II

         To establish ineffective assistance of counsel, the appellant must show by a

preponderance of the evidence that (1) his counsel’s representation fell below the standard of

prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s

deficiency, the result of the trial would have been different.8 A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”9

         The first prong need not be addressed first. “If it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice … that course should be followed.”10 This is

such a case.

         In Andrews, we departed from our usual practice11 and held that the trial record, alone,


         6
              159 S.W .3d 98 (Tex. Cr. App. 2005).

         7
              Id., at 103.

         8
         Salinas v. State, 163 S.W .3d 734, 740 (Tex. Cr. App. 2005) (citing Strickland v. Washington, 466 U.S.
668 (1984)).

         9
              Strickland, at 694.

         10
              Id., at 697.

         11
            A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an
ineffective-assistance claim. Salinas v. State, 163 S.W .3d, at 740. Indeed, “[i]n the majority of cases, the record on
direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.” Mallett v.
State, 65 S.W .3d 59, 63 (Tex. Cr. App. 2001).
                                                                                                      4

established that there was a reasonable probability that, but for counsel’s deficiency, the result of

the trial would have been different.12 We determined that such a finding could be made on the

record because trial counsel had “left the jury with the false impression that the maximum

sentence that the appellant would serve was twenty years…. In fact, the appellant was sentenced

to a total of 78 years.”13 We concluded, “[b]ecause the jury received incorrect information about

the appellant’s punishment, the record supports the conclusion that there is a reasonable

probability that the result would have been different.”14

       The State argues that, although this jury received incorrect information, “logically … [it]

could not have been influenced” by it because the jury sent a note to the trial court asking if the

appellant’s sentences would run concurrently or consecutively. Therefore, the State argues, it

cannot be said from the trial record alone that there is a reasonable probability that, but for

counsel’s deficiency, the result of the trial would have been different. We agree.

       Whether the appellant was to be sentenced concurrently or consecutively was not an issue

for the jury. It was for the judge to determine.15 If the jury was in a state of uncertainty as to what

the judge would decide, it was just where the statutes have decreed it should have been.

       We are not persuaded by the appellant’s argument that, because the jurors never received

clarification on the sentencing issue, they naturally reverted to the appellant’s trial counsel’s

earlier misstatement. We believe this to be too broad an assumption to square with Strickland’s



       12
            Andrews, 159 S.W .3d, at 103.

       13
            Ibid.

       14
            Ibid.

       15
            See n. 4, supra.
                                                                                                      5

requirement of a reasonable probability of prejudice. Certainly, it is possible that the jury

reverted to the earlier misstatement. But we do not believe, on the trial record alone, that it is

reasonably probable. Accordingly, we find that the Court of Appeals incorrectly held that there

was a reasonable probability that, but for counsel’s conduct, the result of the trial would have

been different. Thus, we need not address whether counsel’s performance was, in fact, deficient.

       Finally, in light of the Court of Appeals’s opinion in this case, we believe it necessary to

clarify our opinion in Andrews. Our statement, “Because the jury received incorrect information

about the appellant’s punishment, the record supports the conclusion [that the second Strickland

prong had been satisfied],” was only a rationale for the holding in that case. It was not a holding

that the second Strickland prong has been satisfied whenever a jury receives incorrect

information.

                                                 III

       The Court of Appeals erred in holding that the appellant’s trial counsel rendered

ineffective assistance. This record does not indicate that there is a reasonable probability that, but

for counsel’s deficiency, the result of the trial would have been different. We reverse the

judgment of the Court of Appeals and affirm the judgment of the trial court.



Delivered October 24, 2012.
Publish.
