                                                                              PD-0891-15
                                                            COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 8/26/2015 3:51:47 PM
                                                             Accepted 8/28/2015 11:49:53 AM
                                                                              ABEL ACOSTA
                                                                                      CLERK

                       TO THE COURT OF CRIMINAL APPEALS

                            OF THE STATE OF TEXAS


ARTHUR FRANKLIN MILLER, JR.,                                   Appellant

V.


THE STATE OF TEXAS,                                            Appellee



                             Appeal from Collin County




          APPELLANT'S PETITION FOR DISCRETIONARY REVIEW




     August 28, 2015               Jay Ethington
                                 Appellate Attorney
                                 Bar No. 06692500


                                  Cody L. Skipper
                                 Appellate Attorney
                                 Bar No. 24041928


                          3131 McKinney Avenue, Suite 800
                                Dallas, Texas 75204
                               jay@jayethington.com
                             cody@skipperdefense.com
                             214-740-9955 (Telephone)
                                 214-740-9912 (Fax)
                               TABLE OF CONTENTS

INDEX OF AUTHORITIES                                                                       . iii

STATEMENT REGARDING ORAL ARGUMENT.....................................

STATEMENT OF THE CASE ............................................................. 2

STATEMENT OF PROCEDURAL HISTORY ........................................... 2

GROUNDS FOR REVIEW...................................................................3

       1) 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?
ARGUMENT ................................................................................... 3

PRAYER FOR RELIEF ..................................................................... 11

CERTIFICATE OF COMPLIANCE ....................................................... 12

CERTIFICATE OF SERVICE...............................................................12

APPENDIX (Opinion of the Court of Appeals)
                         IDENTITY OF THE PARTIES

Appellant: Arthur Franklin Miller, Jr.

Appellee: The State of Texas.

Trial Judge: Hon. Keith Dean.

Trial Counsel for Appellant: Plea of Guilty: Jeffrey C. Grass, Attorney at Law,
101 East Park Boulevard, Suite 600, Plano, Texas 75074.

Motion for New Trial Counsel: Jay Ethington and Cody L. Skipper, Attorneys at
Law, 3131 McKinney Avenue, Suite 800, Dallas, Texas 75204.

Appellate Counsel for Appellant on Court of Appeals for the Fifth District: Lori
Ordiway, Attorney at Law, P.O. Box 793991, Dallas, Texas 75379.

Appellate Counsel for Appellant in the Court of Criminal Appeals: Jay Ethington
and Cody L. Skipper, Attorneys at Law, 3131 McKinney Avenue, Suite 800,
Dallas, Texas 75204.

Trial Counsel for State: Greg Willis, District Attorney, and Crystal Levonius and
Daniel Lewis, Assistant Criminal District Attorneys, 2100 Bloomdale Road, Suite
100, McKinney, Texas 75071.

Appellate Counsel for the State: Greg Willis, District Attorney, and John R.
Rolater, Amy Sue Melo Murphy, and Crystal Levonius, Assistant Criminal District
Attorneys, 2100 Bloomdale Road, Suite 100 McKinney, Texas 750741.
                                 INDEX OF AUTHORITIES

Cases:

Anthony v. State,
      457 S.W.3d 548 (Tex. App. - Amarillo 2015, pet. granted) ............... 2,3, 5

Banks v. State,
      819 S.W.2d 676, 682 (Tex. App. - San Antonio 1991, pet. ref d) ................... 4

Cardenas v. State,
     960 S.W.2d 941, 945-46 (Tex. App. —Texarkana 1998).......................... 6

Ex parte Moussazadeh,
      361 S.W.3d 684, 692 (Tex. Crim. App. 2012)

Hobbs v. State,
     298 S.W.3d 193, 197 (Tex. Crim. App. 2009)......................................4

Lopez v. State,
      428 S.W.3d 2711, 289 (Tex. App. - Houston [1st Dist.] 2014, pet. ref d) ......... 7

Miller v. State, 2015 Tex. App. LEXIS 5520, 05-14-01065-CR
       (Tex. App. —Dallas 2015)...............................................................2, 5, 6,9, 10

Riley v. State,
       378 S.W.3d 453, 457 (Tex. Crim. App. 2012)...........................6, 7, 8, 10

State v. Recer,
       815 S.W.2d 730 (Tex. Crim. App. 1991).......................................... 6, 7

Strickland v. Washington,
       466 U.S. 668, 685 (1984)...........................................................2, 3




                                                   111
                                  PD-0891-15

                  TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS



ARTHUR FRANKLIN MILLER, JR.,                                        Appellant

V.


THE STATE OF TEXAS,                                                 Appellee




       APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
                                   ******

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Appellant, Arthur Franklin Miller, Jr., by and through his attorneys of

record, Jay Ethington and Cody L. Skipper, respectfully urge this Court to grant

discretionary review of the above named cause.


             STATEMENT REGARDING ORAL ARGUMENT

      Defendant, Arthur Franklin Miller, Jr. requests oral argument because this

single but complex issue involves an involuntary waiver of a constitutional right

based on ineffective assistance of counsel, which is very similar to the issue




                                        1
currently pending before this Court in Anthony v. State, 457 S.W.3d 548 (Tex.

App. - Amarillo 2015, pet. granted).


                         STATEMENT OF THE CASE

      Appellant was charged with aggravated sexual assault of a child younger

than 14 years and indecency with a child by sexual conduct. Appellant, relying

solely on trial counsel's inaccurate and erroneous advice, waived a trial by jury,

entered a plea of not guilty, and a bench trial commenced. The trial court found

Appellant guilty of both counts and sentenced him to twenty-two (22) years.

Appellant then filed a motion for new trial based on ineffective assistance of

counsel, in that he relied on counsel's inaccurate and erroneous advice that he was

probation-eligible with a bench trial, which resulted in an involuntary jury waiver.

After a hearing on Appellant's motion for new trial, the trial court denied

Appellant's motion. The court of appeals affirmed the conviction, holding that

while trial counsel was deficient, the trial court properly denied Appellant's motion

for new trial because Appellant failed to establish prejudice under the second

prong of Strickland.

                 STATEMENT OF PROCEDURAL HISTORY

      On June 1, 2015, The Court of Appeals affirmed the conviction in an

unpublished opinion. Miller v. State, 2015 Tex. App. LEXIS 5520, 05-14-01065-


                                          2
CR (Tex. App. - Dallas 2015). Appellant's motion for rehearing was filed on June

17, 2015, and overruled on June 29, 2015.



                           GROUNDS FOR REVIEW

      1) 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?


                                  ARGUMENT

Introduction

      Appellant's trial counsel rendered prejudicial deficient performance by

inducing Appellant to waive his constitutional right to a jury trial based upon a

false promise of community supervision with a bench trial. Anthony v. State, 457

S.W.3d 548, 553 (Tex. App. - Amarillo 2015, pet. granted) ("By inducing him to

enter a plea of guilty through the false promise of community supervision, there is

a reasonable probability Appellant waived valuable rights . . . ."). "The Sixth

Amendment recognizes the right to the assistance of counsel because it envisions

counsel playing a role that is critical to the ability of the adversary system to

produce just results." Strickland v. Washington, 466 U.S. 668, 685 (1984)

(emphasis added). "It is fundamental that an attorney must have a firm command


                                         3
of the facts of the case as well as the governing law before he can render

reasonably effective assistance." Banks v. State, 819 S.W.2d 676, 682 (Tex. App.

- San Antonio 1991, pet. ref d). Moreover, a defendant has an absolute right to a

jury trial. Hobbs v. State, 298 S.W.3d 193,197 (Tex. Crim. App. 2009).

      In this case, the court of appeals acknowledged the State's concession that

trial counsel's advice regarding Appellant's probation-eligibility by the trial court

was deficient, and thus satisfied the first prong of Strickland.     Throughout the

course of the proceedings, the prosecutor and Appellant's trial counsel were

oblivious to the fact that Appellant was not eligible for probation. The prosecutor

interrupted trial counsel's closing argument at punishment to suggest that the trial

court reopen the evidence so that trial counsel could prove up - through the

prosecutor's own investigator - Appellant's "illusory" eligibility for probation

(RR3: 143-44). Likewise, Appellant's trial counsel acknowledged in an email

written just one week prior to the hearing on Appellant's motion for new trial, that

"the judge's authority to award [Appellant] probation was thoroughly discussed

and resolved to the satisfaction of the state, the court, and the defense." (RR4: 54-

55; DX8). The trial judge also confirmed and acquiesced in this mistake

throughout the course of the trial and punishment hearing. Not until the motion for

new trial hearing did the trial judge make any statement regarding trial counsel's


                                          ru
"error about thinking that I could give probation" and the prosecutor's "error

thinking I could give probation." (RR4: 67)

      The court of appeals' holding that the trial court properly denied Appellant's

motion for new trial because he failed to establish prejudice is not supported by

any reasonable view of the record. Miller v. State, 2015 Tex. App. LEXIS 5520,

05-14-01065-CR (Tex. App. - Dallas 2015). Appellant would not have waived his

right to a jury trial if he had known that he was ineligible to receive probation from

the trial court. See Ex parte Moussazadeh, 361 S.W.3d 684, 692 (Tex. Crim. App.

2012). Moreover, after Appellant's brief was filed, this Court, on May 20, 2015,

granted a petition for discretionary review on a similar issue in Anthony v. State,

457 S.W.3d 548 (Tex. App. - Amarillo 2015, pet. granted). "The relinquishment

of important legal rights in reliance upon incorrect legal advice, confirmed and

acquiesced in by the trial court, concerning the range of punishment and impacting

an accused's right to voluntarily and intelligently exercise sentencing choices,

undermines both the proper functioning of our adjudicatory process and public

confidence in the integrity of such proceedings." Id. at 553.

      1) 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?


                                          5
      The court of appeals' decision is not supported by any reasonable view of

the record. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). Citing

Riley, the court of appeals stated, "the trial court was not required to accept

appellant's claim that he would have acted differently had he received correct

advice." Miller, 2015 Tex. App. LEXIS 5520, at *7 However, this case is

distinguishable from Riley.

      Unlike in Riley, in this case there is no doubt that Appellant would have

acted differently had he received correct advice from his trial counsel - only a jury

could have sentenced Appellant to probation. Cardenas v. State, 960 S.W.2d 941,

945-46 (Tex. App. - Texarkana 1998) ("In a case involving indecency with a child

in which the trial judge sentences the defendant, the trial court cannot probate the

sentence, regardless of its length."); see also State v. Recer, 815 S.W.2d 730, 732

(Tex. Crim. App. 199 1) ("The record does not reflect that appellee went to the trial

judge for sentencing solely because of her attorney's erroneous impression that the

trial judge could . . . grant her probation."). In other words, "the [Appellant's]

decision would have been different if [his] attorney had correctly informed [him]

of the law." Recer, 815 S.W.2d at 732. Appellant testified at the hearing on his

motion for new trial that trial counsel told him on several occasions "that [he]

would be given probation." (RR4: 34).


                                          rel
      Moreover, unlike in Riley and Recer, Appellant's decision to waive his

constitutional right to a jury trial was not based on any trial strategy.   Riley, 378

S.W.3d at 459 ("appellant vigorously contested the murder charge, urging self-

defense and reduction of the charge by a finding of sudden passion."); Recer, 815

S.W.2d at 732 (Tex. Crim. App. 1991) (stating that the record "does not reflect that

the decision to have the judge assess punishment was not a valid tactical strategy").

Appellant testified that he never had "any discussion that [he] knew to be trial

strategy with [trial counsel]." (RR4: 47-48). Appellant simply asked trial counsel

what was best for him, and trial counsel "told [him] and [he] did it." (RR4: 48).

Appellant testified that trial counsel's advice "caused [him] to make [his] decision

then to waive the jury, give up the jury, and just drive on with the judge."

(RR4 :38).

      Furthermore, unlike in Riley, all of the witnesses at the motion for new trial

hearing, including Appellant himself, were subject to cross-examination.        Riley,

378 S.W.3d at 457. Thus, this case is not one in which the claim of ineffective

assistance of trial counsel is presented only in an affidavit, unsupported by live

testimony. To the contrary, both the affidavits and live testimony in this case

firmly establish that trial counsel advised Appellant to plead not guilty to the trial

court and that, upon proceeding in that manner, Appellant would be eligible for

probation and receive probation. Cf. Lopez v. State, 428 S.W.3d 271, 289 (Tex.
                                       7
App. - Houston list Dist.] 2014, pet. ref d) (holding that "[tjhe appellate court is

free to disbelieve the statements in an affidavit, especially one unsupported by live

testimony"). In fact, trial counsel's own e-mail supported Appellant's claim.'

Therefore, in contrast to Riley, the record in this case indisputably establishes

prejudice, i.e., that Appellant would not have waived his constitutional right to a

jury trial had he received correct advice regarding probation eligibility, and that

correct advice would have changed the result of the proceeding. See Riley, 378

S.W.3d at 459-60.

       Finally, unlike in Riley, the record unambiguously shows that, had Appellant

not relied on trial counsel's inaccurate and erroneous advice, he would have taken

his case to a jury which could either have found him not guilty or found him guilty

but sentenced him to probation under the applicable law. Specifically, there was a

reasonable probability that the jury would have either placed Appellant on

probation or found Appellant not guilty, especially in light of Appellant's acquittal

on the other alleged victim's case rendered by the trial court. 2 The court of appeals

stated "[t]he record reflects the trial court accepted some witnesses' testimony but


"' Iwill tell you that the decision to waive a jury in [Appellant's] case was carefully considered
and the determination that the Court would have the authority and jurisdiction to award probation
in the case was established prior to the execution ofajury waiver by [Appellant]." (RR: 4: 54-
55; DX8).
'Along
 with the cause number in this case on appeal, Appellant also had been indicted in a
related case, but after hearing the evidence and complainant's testimony, the trial court found
him not guilty in that related case. (RR2: 5; RR3: 137).
                                                    8
not others; appellant was acquitted on charges relating to the other complainant,

formerly a family member, who also testified at trial." Miller, 2015 Tex. App.

LEXIS 5520 at *5 Contrary to the court of appeals' conclusion, there is a

reasonable probability "that a jury would make a different assessment of the

witnesses' credibility." Id.

      In light of many defense witnesses at trial who contradicted the

complainant's version of events in this case, a jury could well have found

Appellant not guilty in this case. Though the complainant testified that the offense

took place in a computer room (RR3: 14-15), her father, brother, and aunt testified

that the only computer was in the dining room. (RR3: 59, 80, 100-02). Moreover,

the complainant's father and aunt also specifically testified that they did not

believe the complainant's allegations against Appellant, and her father testified that

he thought that she was fabricating them for some financial gain from Appellant.

(RR3: 65, 75, 108). At the motion for new trial hearing, Appellant maintained his

innocence. (RR4: 35). And, on cross-examination at the motion for new trial

hearing, Appellant unequivocally denied committing these offenses against the

complainant. (RR4: 41-42).

Conclusion

      This case requires review. If a charged defendant does not receive correct

legal advice and admonishments from his own attorney, the prosecutor, or even the
                                       9
presiding judge, and ultimately relies upon such inaccurate and erroneous advice to

make a decision which affects his constitutional rights, how can an individual

expect to receive "just results" per Strickland? How can an individual expect to

preserve his absolute right to a jury trial?

      A reasonable view of the record does not support the court of appeals'

holding that the trial court's "implicit finding that the result of the proceedings in

reasonable probability would not have been different."        Miller, 2015 Tex. App.

LEXIS 5520 at 8. That is, the trial court's denial of Appellant's motion for new

trial was arbitrary because no reasonable view of the evidence could support its

ruling that trial counsel's representation was not "so deficient to be a miscarriage

of justice." (RR4: 67). To the contrary, the record shows that trial counsel's

representation was deficient and that there is a reasonable probability that the result

of the proceeding would have been different had counsel's representation not been

deficient, in that a jury could have rendered a verdict of not guilty, or a jury could

have sentenced Appellant to probation in the event of a conviction. See Riley, 378

S.W.3d at 459-60. This court should exercise its supervisory powers and grant

review.




                                               10
                             PRAYER FOR RELIEF

      Wherefore, Appellant prays that the Court of Criminal Appeals grant this

Petition for Discretionary Review, that the case be set for submission, and that

after submission, this Court reverse the decision of the Court of Appeals.



                                                    Respectfully submitted,



                                                    Is! Jay Ethington
                                                    Jay Ethington
                                                    SBN: 06692500
                                                    3131 McKinney Avenue
                                                    Suite 800
                                                    Dallas, Texas 75204
                                                    Tel: (214) 740-9955
                                                    Fax: (214) 740-9912
                                                    jay@jayethington.com



                                                    Is! Cody L. Skipper
                                                    Cody L. Skipper
                                                    SBN: 24041928
                                                    3131 McKinney Avenue
                                                    Suite 800
                                                    Dallas, Texas 75204
                                                    Tel: (214) 740-9955
                                                    Fax: (214) 740-9912
                                                    cody@skipperdefense.com




                                         11
                       CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the Microsoft Word word count

tool, this document contains 1,928 words.



                                                 Is! Jay Ethington
                                                 Jay Ethington


                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 26th day of August, 2015, the

Defendant Petition for Discretionary Review was served via certified electronic

service provider to:

John R. Rolater, Amy Sue
Melo Murphy & Crystal Levonius
Assistant Criminal District Attorneys
2100 Bloomdale Road
Suite 100
McKinney, Texas 75071




                                                Is! Jay Ethington
                                                Jay Ethington




                                        12
APPENDIX
AFFIRM; and Op1 n ion Filed .1 une 1. 2015.




                                              In The
                                 (!ijirt of Appeals
                        5ift4flitrirt of ricxLui at Oatlnz
                                       No. 05-14-01065-CR

                       ARTHUR FRANKLIN MILLER, JR., Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 296th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 296-81265-2013

                             MEMORANDUM OPINION
                           Before Justices Lang. Stoddart, and Schenck
                                   Opinion by Justice Schenck
       After a bench trial, the trial court found appellant Arthur Franklin Miller, Jr. guilty on one

count of aggravated sexual assault of a child and one count of indecency with a child by sexual

contact. See TEx. PINAI, CODE ANN. § 22.02 l(a)(I)(B) (West Supp. 2014) (aggravated sexual

assault); Ti-,X PENAl. CODE ANN. § 21 .11 (a)( I) (West 2011) (indecency with a child). The court

assessed punishment at twenty-two years' confinement on the first count and ten years'

confinement on the second count. In a single issue, appellant contends he received ineffective

assistance of counsel. We affirm the trial court's judgment.

                                           BACKGROUND


       Appellant was indicted for offenses that allegedly occurred in 2001 and involved a child

then younger than fourteen years of age. Appellant waived his right to a jury and pleaded not

guilty before the trial court. After the trial court found him guilty and assessed punishment,
appellant's trial counsel tiled a motion for new trial on appellant's behalf, then withdrew.

Appellant obtained new counsel, who represented him at the hearing on the motion for new trial.

At the hearing, appellant sought a new trial based on alleged ineffective assistance of his trial

counsel. Appellant offered evidence that his trial counsel incorrectly advised him that he would

receive probation' from the trial court if he waived his right to a jury trial. In fact, appellant was

not eligible to receive probation from a trial judge. The trial court denied appellant's motion for

new trial. This appeal followed.

                                   STANDARD 01 REVIEW AND APPLICABLE LAW

           We review a trial court's ruling on a motion for new trial for abuse of discretion,

'reversing only if the trial judge's opinion was clearly erroneous and arbitrary."                                    Riley v. Slate,

378 S.W.3d 453, 456 (Tex. Crim. App. 2012). A trial court abuses its discretion if no reasonable

view of the record could support the trial court's ruling.                             Id. at 457.        Under this deferential

standard, we 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 "Where there are two permissible

views of the evidence, the factfinder's choice between them cannot be clearly erroneous."                                       Id.

           Under Strickland v. Washington. 466 U.S. 668, 690-92 (1984), and Hernandez v. Stale,

726 S.W.2d 53, 54-57 (Tex. Crim. App. 1986), an appellant alleging ineffective assistance of

counsel must prove that (1) counsel's representation fell below an objective standard of

reasonableness under prevailing professional norms; and (2) the deficient performance

prejudiced the defense. The prejudice prong requires a showing that, but for counsel's errors,

there was a reasonable probability that the result of the proceedings would have been different.

       Although the term now used in the Code of Criminal Procedure is community supervision" see TEX. CODE CRIM. PROC. ANN. art. 42.12
(West Supp 2014). the parties used the lirmer term 'probation' throughout the proceedings below. We use the terms interchangeably in this
opinion. See R,/ev i', Stale. 378 S.W 3d 453. 455 n.l Tex Corn App 2012) (statutory term for probation was changed to community
supervision in 1993: both terms refer to the same process").



                                                                  —2-
Hernandez, 726 S.W.2d at 55. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id.                     Both the "performance" and "prejudice" prongs of the inquiry

are mixed questions of law and fact, but the prejudice prong often turns upon the credibility and

demeanor of witnesses.                Riley, 378 S.W.3d at 458. We "show almost total deference to a trial

court's findings of historical facts as well as mixed questions of law and fact that turn on an

evaluation of credibility and demeanor." Id

           When a claim of ineffectiveness is based on counsel's misunderstanding of the law

regarding probation, there must be evidence that (1) the defendant was initially eligible for

probation, (2) counsel's advice was not in furtherance of a valid trial strategy, (3) the defendant's

election of the assessor of punishment was based upon counsel's erroneous advice, and (4) the

results of the proceeding would have been different had his attorney correctly informed him of

the law. Id. at 458-59 (citing Stale v. Recer, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991)).

           Where the trial court denies a motion for a new trial that raised the ineffective assistance

of counsel claim, we "presume that all findings made by the trial judge were made in favor of the

prevailing party, and hence, we assume that the trial judge implicitly found that there was no

reasonable probability that the result of the proceeding would have been different." Id at 459.

                                                                DIsctssjoN
           The State concedes that counsel's advice to appellant regarding his eligibility for

probation fell below the prevailing professional norms." 2 Although under article 42.12. section

3 of the Texas Code of Criminal Procedure, a judge may suspend the imposition of a defendant's



       The Court of Criminal Appeals has explained that -trial counsel should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective  Goodspeed v. State. 187 S.W.3d 390. 392 hex Crim App. 2005) (quoting Rv/ander v. Slate. 101 S.W.3d 107.
Ill (Tex. Crim. App. 2003)) Here, although new counsel subpoenaed trial counsel to testify at the hearing on the motion for new tnal, there was
no return on the subpoena The record contains a proposed affidavit sent by appellants new counsel to his trial counsel, and trial counsel's
c-mailed response, refusing to sign the affidavit and vigorously contesting its content In any event, even though the State has conceded the first
prong of Strickland, appellant must establish both prongs to prose ineffective assistance of counsel. See. e.g., Lopez- %-. Slate, 343 S W.3d 137,
142 (Tex. Cnm App. 2011) (appellant must meet both prongs of Strickland: where appellant failed to meet one prong, court need not consider
the other). As we explain below, we conclude appellant tailed to establish the second prong.




                                                                      —3-
sentence and place the defendant on community supervision, these provisions do not apply to a

defendant such as appellant who has been adjudged guilty of indecency with a child or

aggravated sexual assault.                 See Tix. C0EM CRIM. PRO(. ANN. art. 42.12, §§ 3, 3g(a)(C), (E)

(West Supp. 20I4).

           Therefore, the only issue presented is whether counsel's deficient performance prejudiced

the defense. See Sirick/and, 466 U.S. at 690-92. We consider 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. See Riley, 378 S.W.3d at 458.

           Because there was no physical evidence offered by the State, the result of the trial

depended entirely on the credibility of the witnesses. Appellant's granddaughter A.M. was one

of the two complainants who testified at trial. A.M. was aged 22 and the mother of two-year-old

twins at the time of trial. She offered extensive testimony of appellant's unwanted touching on

numerous occasions beginning when she was nine or ten years old, at a time when she, her

father, and her brother were living with appellant. She testified that her mother was no longer

living with the family at the time. She eventually told her father, appellant's son, of the abuse,

asking him to do something," but he "just looked down at the floor and waited for me to go

back to my room." She testified that her family was financially dependent on appellant. She

finally decided to report the abuse to law enforcement after her children were born. She testified

she did not want her children to be afraid to "say something" if "they were ever in the same

situation as me."

         Although article 42.12 has been amended in every kgislati'.e session since the date of the offenses at issue, the statutory exceptions in
section 3g to probation for persons adjudged guilty of indecency with a child or aggravated sexual assault existed in 2001 and are applicable here
Set'. e.g.. Act of May 20, 1999. 76th Leg. R S . ch 806. * I. 1999 Thx. (iis. LAWS 3439. 3450 (amendment to § 3g applicable to offenses on or
after September I 1999) Until 2007. however, a jur .% could recommend probation for a defendant found guilty of these offenses See Act of
May 18. 2(X)7. 80th Leg., R S ch 593. §§ 1.06.401(a). 2007 'x. GEN. LAWS 1120. 1123. 1148 (for offenses committed on or after September
I. 2007, persons convicted of aggravated sexual assault and inde 'cency with a child not eligible for probation from jury if victim of offense was
younger than 14 years of age at time offense 'as committed).



                                                                      —4-
       A.M.'s testimony was supported by the testimony of Billy Lanier. a Collin County deputy

sheriff assigned to the child abuse task force who investigated A.M.'s allegations. Lanier

testified he was able to corroborate information A.M. provided to law enforcement. In addition

to appellant, A.M. also named her uncle, appellant's son Arthur Miller Ill ('Uncle"). as a person

who molested her. Lanier testified that Uncle 'plead[ed] guilty to molesting" A.M.. and Lanier

interviewed Uncle during his investigation. In this forensic interview. Uncle provided details

that corroborated A.M.'s allegations. At the time of trial, Uncle was in prison as a result of his

guilty plea to the charges relating to his abuse of A.M.

       A.M.'s father, her brother, and her aunt (appellant's daughter) also testified at trial. Each

of these witnesses testified that they did not believe A.M. They also testified to various

inconsistencies in A.M.'s testimony. For example, they testified that appellant's home did not

have a 'computer room," in contrast to AM's testimony that abuse took place there. A.M.'s

father also testified that he thought A.M. had fabricated the charges for some financial gain from

appellant. These witnesses were cross-examined about their current or past financial dependence

on appellant and other matters.

       The trial court was required to make determinations regarding the credibility of these

witnesses in order to render judgment. The record reflects the trial court accepted some

witnesses' testimony but not others, appellant was acquitted on charges relating to the other

complainant, formerly a family member, who also testified at trial. There is no indication that a

jury would make a different assessment of the witnesses' credibility. Although appellant points

to the conflict in the testimony about the existence of a "computer room" in his home, this

conflict was resolved against him by the trial court. The trial court found appellant guilty of

aggravated sexual assault and indecency with a child. Other than appellant's lack of a criminal

record, his age, and his denial of the charges, matters which were also raised before the trial


                                                Ism
court, appellant does not contend there were other factors which a jury might have found

compelling in recommending probation rather than a prison sentence.

       Appellant testified at the hearing on his motion for new trial. He explained that he relied

on his trial counsel "to do what's best for me" in making the decision whether to waive a jury.

Trial counsel recommended "to drive on with the trial with the judge. And that I would get

probation." He proceeded to trial before the judge and was expecting probation as the "worst

case scenario," based on the advice of his counsel. He was never told that he was not eligible for

probation if he pleaded "not guilty" before a trial judge. His trial counsel told him on several

occasions "not to worry; that I would be given probation: that I was too old to go to jail." His

trial counsel told him "we do not want a jury trial: that we wanted to go to trial by judge." He

pleaded "not guilty" to the judge because he was not guilty. His counsel advised him he was

eligible for probation. On cross-examination, appellant conceded that the trial judge correctly

advised him of the range of punishment for both indecency by contact and aggravated sexual

assault of a child, including five to ninety-nine years to life in the penitentiary. The record also

reflects that the trial judge advised appellant that because his offense occurred before 2007, "a

jury could give you probation." although appellant did not recall this admonishment on cross-

examination. Appellant testified that his counsel never explained the advantages or

disadvantages of choosing or waiving ajury to decide his ease.

       Appellant's daughter also testified at the hearing on appellant's motion for new trial. She

was present in several meetings with appellant and trial counsel. She testified that trial counsel

advised appellant to waive a jury because the trial judge "was fair," and "[wJith this judge, he'll

get probation." She also testified that trial counsel told appellant. "don't worry ....[tjhey're not

going to throw you in jail. You're too old, and you're going to get probation." The advice she

heard from appellant's trial attorney was to "waive the jury" and "get probation from the judge."


                                                MIM
           Two of appellant's Sons also testified, consistent with their sister's testimony. that

appellant was confused even after he was in prison, thinking he had been given probation in

accordance with his counsel's advice. Both also testified that their father was not aware that he

could not get probation" from the trial judge, and that their father had been told by trial counsel

that probation was the worst case scenario." They met with trial counsel after appellant was

convicted and sentenced, and testified that even then, trial counsel was predicting "[a] 98 percent

chance that he'll have my dad out within a week."

           At the motion for new trial hearing, appellant's counsel also pointed out that at trial, the

prosecutor examined witnesses and made arguments relevant to probation, apparently acting

under the same mistaken assumption that appellant was eligible for probation from the trial

court.

           After hearing the evidence and argument in support of appellant's motion for new trial,

the trial court noted that appellant had been admonished properly before he waived a jury. The

court also explained, I do find that [trial counsel] was in error about thinking that I could give

probation and the State was in error thinking I could give probation." The court concluded,

however, that counsel's representation was not "so deficient to be a miscarriage of justice."' The

trial court denied the motion for new trial. In light of this ruling, we presume the trial judge

implicitly found that there was no reasonable probability that the result of the proceeding would

have been different." See Riley. 378 S.W.3d at 459. This finding is a mixed question of law and

fact, and a reviewing court must defer to a trial court's credibility determinations.                                         See id. The

trial court was not required to accept appellant's claim that he would have acted differently had

he received correct advice. See id. And even if the trial court accepted this claim, appellant was


       At the hearing on the motion for new trial appellants counsel argued that a new trial should be granted in the interest ofjusticc. citing
Slate v. fkrndon. 215 S.W.3d 901. 906 07 (1 ex Crum. App. 2007). and texas Rules of Appellate Procedure 21 (New Trials in Criminal Cases)
and 442 (Reversible Error in Criminal Cases). The trial court therefore referred to this standard in announcing its ruling,




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also required to establish that correct advice would have changed the result of the proceeding.

See Id.     This is a heavy burden which requires a substantial.' and not just a 'conceivable,*

likelihood of a different result." Walker v. State. 406 S.W.3d 590, 599 (Tex. App.—Eastland

2013, pet. ref d) (quoting United Stales v. Wines. 691 F.3d 599, 604 (5th Cir. 2012)).

          A reasonable view of the record, viewed in the light most favorable to the trial court's

ruling, could support the trial court's implicit finding that the result of the proceedings in

reasonable probability would not have been different. See Id. We conclude appellant has failed

to meet his burden under the second prong of Strickland.          The trial court properly denied

appellant's motion for new trial. We overrule appellant's sole issue.

                                             CONCLUSION

          We affirm the trial court's judgment.




                                                        /David J. Schenck/
                                                        DAVID J.SCHENCK
                                                        JUSTICE

Do Not Publish
Tix. R. Am,. P. 47.2(b)

141 065 F.U05




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                               Qniut of Appeals
                        5ift1 District of C, = 9 at tki1ta
                                       JUDGMENT


ARTHUR FRANKLIN MILLER, JR.,                      On Appeal from the 296th Judicial District
Appellant                                         Court, Collin County, Texas
                                                  Trial Court Cause No. 296-81265-2013.
No. 05-14-01065-CR         V.                     Opinion delivered by Justice Schenck,
                                                  Justices Lang and Stoddart participating.
THE STATE OF TEXAS, Appellee

       Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 1st day of June, 2015.
