AFFIRM; and Opinion Filed June 1, 2015.




                                         S    In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      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. PENAL CODE ANN. § 22.021(a)(1)(B) (West Supp. 2014) (aggravated sexual

assault); TEX. PENAL CODE ANN. § 21.11(a)(1) (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 filed 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 1 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 OF 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. State,

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. State,

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.

     1
       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 former term “probation” throughout the proceedings below. We use the terms interchangeably in this
opinion. See Riley v. State, 378 S.W.3d 453, 455 n.1 (Tex. Crim. 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 State 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.

                                                                DISCUSSION

           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


     2
       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 (Tex. Crim. App. 2005) (quoting Rylander v. State, 101 S.W.3d 107,
111 (Tex. Crim. App. 2003)). Here, although new counsel subpoenaed trial counsel to testify at the hearing on the motion for new trial, there was
no return on the subpoena. The record contains a proposed affidavit sent by appellant’s new counsel to his trial counsel, and trial counsel’s
e-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 prove ineffective assistance of counsel. See, e.g., Lopez v. State, 343 S.W.3d 137,
142 (Tex. Crim. 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 failed 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 TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3, 3g(a)(C), (E)

(West Supp. 2014). 3

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

the defense. See Strickland, 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.”

     3
        Although article 42.12 has been amended in every legislative 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.
See, e.g., Act of May 20, 1999, 76th Leg., R.S., ch 806, § 1, 1999 TEX. GEN. LAWS 3439, 3450 (amendment to § 3g applicable to offenses on or
after September 1, 1999). Until 2007, however, a jury could recommend probation for a defendant found guilty of these offenses. See Act of
May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.06, 4.01(a), 2007 TEX. GEN. LAWS 1120, 1123, 1148 (for offenses committed on or after September
1, 2007, persons convicted of aggravated sexual assault and indecency with a child not eligible for probation from jury if victim of offense was
younger than 14 years of age at time offense was 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 III (“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 A.M.’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

                                                –5–
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 a jury to decide his case.

        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 “[w]ith this judge, he’ll

get probation.” She also testified that trial counsel told appellant, “don’t worry . . . . [t]hey’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.”

                                                  –6–
           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.” 4 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

     4
        At the hearing on the motion for new trial, appellant’s counsel argued that a new trial should be granted “in the interest of justice,” citing
State v. Herndon, 215 S.W.3d 901, 906–07 (Tex. Crim. App. 2007), and Texas Rules of Appellate Procedure 21 (New Trials in Criminal Cases)
and 44.2 (Reversible Error in Criminal Cases). The trial court therefore referred to this standard in announcing its ruling.



                                                                        –7–
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 States 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
TEX. R. APP. P. 47.2(b)

141065F.U05




                                               –8–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       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.




                                               –9–
