          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                      NO. PD-0891-15



                    ARTHUR FRANKLIN MILLER, JR., Appellant

                                               v.

                                 THE STATE OF TEXAS

         ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE FIFTH COURT OF APPEALS
                          COLLIN COUNTY

            K EEL, J., filed a dissenting opinion in which R ICHARDSON and
W ALKER, JJ., joined.

                                 DISSENTING OPINION

       Appellant claims that his attorney’s bad advice about probation eligibility caused

him to waive his right to a jury trial. The plurality’s analysis of this claim errs in three

ways. First, instead of recognizing that the jury waiver itself is prejudice, the plurality

speculatively compares the result of the bench trial Appellant had with the reasonably

likely result of the jury trial that he did not have. Second, the plurality misapplies the
                                                                           Miller dissent–Page 2

different-outcome test that it purports to embrace by requiring not merely a reasonable

likelihood of a better outcome, but a specifically better outcome from the hypothetical

jury, i.e., probation. Third, the plurality indulges implicit fact findings to support the trial

court’s denial of the motion for new trial even though the trial court made explicit fact

findings. I dissent.

                                    Evaluating Prejudice

       Meritorious claims of ineffective assistance of counsel meet a two-part test:

deficient performance and prejudice. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Strickland

v. Washington, 466 U.S. 668, 694 (1984). With certain exceptions not applicable here,

proof of prejudice is required because the prosecution and the trial court are unable to

prevent an attorney’s deficient performance, Strickland, 466 U.S. at 693, and judicial

proceedings enjoy a presumption of reliability. Smith v. Robbins, 528 U.S. 259, 286

(2000).

       The prejudice inquiry must focus “on the fundamental fairness of the proceeding

whose result is being challenged.” Strickland, 466 U.S. at 696. For example, if the

deficient performance is the failure to present mitigating evidence in a punishment

hearing, the prejudice inquiry looks to the result of the punishment hearing. See, e.g.,

Strickland, 466 U.S. at 699-700 (prejudice from allegedly deficient performance in failing

to present evidence at punishment hearing was analyzed in terms of its effect on the

punishment hearing).
                                                                             Miller dissent–Page 3

       But if an attorney’s deficient performance causes the waiver of a judicial

proceeding to which the defendant has a right, that is ineffective assistance of counsel.

Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000) (waiver of appeal); Hill, 474 U.S. at 59

(waiver of jury). The defendant does not have to show a likelihood of victory on appeal,

acquittal or lower punishment; the waiver is the prejudice. Flores-Ortega, 528 U.S. at

484; Hill, 474 at 59. That’s because a judicial proceeding that never happened enjoys no

presumption of reliability. “Put simply, we cannot accord any ‘presumption of reliability’

to judicial proceedings that never took place.” Flores-Ortega, 528 U.S. at 483 (citation

omitted) (citing Robbins, 528 U.S. at 286).

       Hill involved allegedly bad advice about parole eligibility given in the course of

plea negotiations. Hill, 474 U.S. at 56. The appropriate prejudice inquiry was whether

there was a reasonable likelihood that the defendant would not have plead guilty but for

his attorney’s bad advice. Id. at 59. The different-outcome question was relevant only to

the extent that it impacted the decision to plead guilty.

       For example, where the alleged error of counsel is a failure to investigate or
       discover potentially exculpatory evidence, the determination whether the
       error “prejudiced” the defendant by causing him to plead guilty rather than
       go to trial will depend on the likelihood that discovery of the evidence
       would have led counsel to change his recommendation as to the plea.

Hill, 474 U.S. at 59. The different-outcome question was not a stand-alone issue.1 See id.


       1
          The plurality quotes the same passage from Hill at greater length, slip op. at 12-13, and
claims that with this passage, “Hill signaled that a court may properly consider whether the
outcome of the proceeding would not have been different.” Slip op. at 13. But the only point of
that passage from Hill was that an evaluation of the likely outcome of the forfeited trial might
                                                                            Miller dissent–Page 4

       In Flores-Ortega, the Supreme Court considered whether the defendant’s attorney

failed to properly advise him about his right to appeal. Flores-Ortega, 528 U.S. at 478.

The appropriate prejudice inquiry was whether the appeal waiver was an informed

decision. Id. at 484. Echoing Hill, the Supreme Court held that the possible merits of the

forfeited appeal “may give weight to the contention that the defendant would have

appealed,” but the failure to raise those points “will not foreclose the possibility that he

could satisfy the prejudice requirement where there are other substantial reasons to

believe that he would have appealed.” Flores-Ortega, 528 U.S. at 486 (citing Rodriquez

v. U.S., 395 U.S. 327, 330 (1969)).

       In Lafler v. Cooper, 566 U.S. 156 (2012), the deficient performance was the

attorney’s erroneous advice to reject a plea offer on grounds that the defendant could not

be convicted at trial. Id. at 163. The prejudice inquiry focused on whether the “loss of

the plea opportunity led to a trial resulting in a conviction on more serious charges or the

imposition of a more severe sentence.” Id. at 168. It did not matter that the defendant

had a fair trial. “[T]he question is not the fairness or reliability of the trial but the fairness

and regularity of the processes that preceded it, which caused the defendant to lose

benefits he would have received in the ordinary course but for counsel’s ineffective

assistance.” Id. at 169.

       The plurality offers unpersuasive reasons for evaluating prejudice in terms of the


sometimes shed light on whether the deficient performance really did cause the waiver. Hill, 474
U.S. at 59.
                                                                            Miller dissent–Page 5

trial’s outcome instead of Appellant’s decision to waive a jury. For example, the plurality

suggests that Strickland applies to trials, and Hill applies to guilty pleas. Slip op. at 11.

But Strickland and Hill were both guilty pleas. Strickland, 466 U.S. at 671; Hill, 474 U.S.

at 54. The plurality asserts that, because Appellant had a bench trial, we “can discern

whether the probable outcome of the proceedings would have been different with a jury

trial that did not occur as compared to the bench trial that did occur.” Slip op. at 13-14.

This misses Strickland’s point that “the ultimate focus of inquiry must be on the

fundamental fairness of the proceeding whose result is being challenged.” Strickland,

466 U.S. at 696 (emphasis added). In this case, as in Hill, the jury waiver is the

proceeding whose result is challenged.

                                       Recer vs. Riley

       As the plurality points out, we have issued conflicting opinions about evaluating

prejudice where the deficient performance was bad advice about probation eligibility.

The plurality rejects Recer in favor of Riley. I think that is a mistake.

       The attorney in State v. Recer, 815 S.W.2d 730 (Tex. Crim. App. 1991),

erroneously advised his client that she was eligible for probation from the court, and she

waived her right to elect the jury for punishment. Id. at 731. In accord with Hill, though

without citing it, we required the defendant to prove, among other things, that she would

have elected the jury for punishment but for her attorney’s error. Recer, 815 S.W.2d at

731-32. We did not require a likelihood of a different outcome from a jury. Id. But Riley
                                                                           Miller dissent–Page 6

v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012), nevertheless cited Recer as authority to

also require proof that “the results of the proceeding would have been different had [the

defendant’s] attorney correctly informed him of the law.” Riley, 378 S.W.3d at 458

(citing Recer, 815 S.W.2d at 731-32). Riley imposed that additional requirement without

any supporting authority or rationale, so the plurality errs in relying on it.

       Furthermore, this Court has held that if an attorney’s deficient performance causes

structural error, like the waiver of a jury, the Hill analysis applies. Johnson v. State, 169

S.W.3d 223, 231 (Tex. Crim. App. 2005). Thus, it applies to this case.

                        The Plurality’s Flawed Prejudice Analysis

       Even if Riley supports the application of a different-outcome test comparing the

bench trial verdict with the hypothetical jury verdict, the plurality incorrectly applies it by

requiring a reasonable likelihood of probation. Slip op. at 16. Even Riley did not go that

far. Riley, 378 S.W.3d at 460.

       In support of this more exacting burden, the plurality relies on Ex parte Cash, 178

S.W.3d 816 (Tex. Crim. App. 2005). Cash claimed that Strickland’s “central issue of

prejudice” was “whether there is a reasonable probability that applicant’s sentencing jury

would have recommended probation had the issue been submitted to it[,]” and cited

Woodford v. Visciotti, 537 U.S. 19, 22-23 (2002), for that proposition. But Strickland and

Woodford were death penalty cases and did not mention probation. Plus, Cash is
                                                                             Miller dissent–Page 7

distinguishable because the defendant there had a jury trial and jury punishment.2 Cash,

178 S.W.3d 816.

       Even if the plurality is correct, and Appellant’s prejudice burden is to show a

reasonable likelihood that his hypothetical jury would have awarded him probation, its

evaluation of the record does not support its conclusion that there is no such likelihood.

       For one thing, the plurality waves off the likelihood of prejudice by referencing

objectionable evidence that the defense attorney either failed to challenge or elicited

himself. Slip op. at 18 (noting that the complainant’s testimony was “supported by the

testimony of police investigators.”). Sgt. Bill Lanier, the only police investigator to

testify in the guilt phase of trial,3 testified about extraneous matters that should have been

excluded on grounds of irrelevance, prejudice, hearsay and/or lack of confrontation.4


       2
           The plurality mischaracterizes Cash as “analogous” because Cash “claimed that his
counsel’s error had prevented the jury from considering probation.” Slip op. at 16. That was not
Cash’s claim. The trial court in Cash refused to instruct the jury on probation, but the court of
appeals did not review the merits of that ruling because Cash’s attorney had filed an unsworn
motion for probation. Cash, 178 S.W.3d at 817. On habeas, the defendant claimed ineffective
assistance of counsel because the unsworn motion for probation prevented appellate review of
the trial court’s refusal to submit probation to the jury. Id. at 817-18. This Court denied relief
given the jury’s punishment verdict of 40 years imprisonment. Id. at 818.
       3
          In the punishment phase, the only law enforcement officer to testify was the district
attorney’s investigator, whom the defense called to prove Appellant’s lack of criminal history.
       4
           For example, defense counsel did not object to Lanier’s testimony that:

       -Lanier left the investigation pending for two years in order to wait for “additional
       witnesses and victims to come forward.”

       -The defendant’s son, Arthur Miller, III, in prison for molesting the complaining witness,
       corroborated the complainant’s statements given in her forensic interview.
                                                                            Miller dissent–Page 8

Competent defense counsel would have objected to a jury’s consideration of such

evidence, so the plurality should not consider it in its prejudice evaluation.

       The plurality also ignores the challenges that a probation-qualified jury presents

the prosecution. Such juries are relatively reluctant to convict, especially in cases that

lack corroboration, as this one did, and they are susceptible to the downward pressure that

the possibility of probation exerts on punishment deliberations. Considering Appellant’s

advanced age, 78 years at the time of trial, and his lack of criminal history, one could

argue that there is a reasonable likelihood that a jury would have assessed a lower

punishment than did the trial court.

       Ultimately, however, such arguments highlight a fundamental weakness in the

plurality’s approach to prejudice in this case: It is impossible to say what a jury that was

never seated likely would have done in a jury trial that was never had. Even Cash would

not countenance that. See Cash, 178 S.W.3d at 818 (a finding that Cash’s jury likely



       -The second complainant’s mother was “adamant” that there were other victims.

       -Lanier reached out to additional victims multiple times.

       On cross examination, defense counsel implicitly conceded his client’s guilt with the
predicate to one question (“In your report you give some details of your investigation some of
which are the year and approximate date when these assaults first began.”) and elicited more
testimony about extraneous offenses:

       -Some extraneous victims contacted Lanier and some “would not come forward.”

       -“Multiple” other victims were reported to Lanier by two sources.

       -The statute of limitations had expired for the case of one victim who did come forward.
                                                                            Miller dissent–Page 9

would have recommended probation “would be based on pure conjecture and

speculation.”).

       The correct prejudice inquiry in this case is whether Appellant waived his jury

because of his attorney’s bad advice, so I turn now to the jury waiver.

                                       The Jury Waiver

       One justification for requiring proof of prejudice to support IAC claims is that

“[t]he government is not responsible for, and hence not able to prevent, attorney errors

that will result in reversal of a conviction or sentence.” Strickland, 466 U.S. at 693.

Another justification is the presumption of reliability that attends judicial proceedings.

Robbins, 528 U.S. at 286. Neither of those justifications applies to this jury waiver.

       Jury waivers must be made in writing and in open court with the approval of the

trial court and the prosecution. T EX. C ODE C RIM. P ROC. art. 1.13. This gives the State the

opportunity and the judge the responsibility to ensure that the waiver is made

intelligently, that is, without any misunderstanding about, for example, who can consider

probation in the event of a conviction. Defense counsel’s deficient performance could

have been prevented or cured by the trial judge or the prosecutor when the jury waiver

was executed. But instead of clarifying the punishment ramifications of the jury waiver,

they confused the issue.5


       5
         It became clear in the punishment phase that the prosecution did not know the trial
court could not consider probation. Unfortunately, such confusion on the part of the State is not
unique to this case. See, e.g., Ex parte Moussazadeh, 361 S.W.3d 684, 688 (Tex. Crim. App.
2012) (prosecutor, trial judge and defense attorney misunderstood parole eligibility in murder
                                                                          Miller dissent–Page 10

         The record of the colloquy leading to the jury waiver memorializes the following:

After the judge called the case, he advised Appellant of the charges against him and their

ranges of punishment. Then, relying on the prosecutor’s representation about the offense

date, the judge told the defendant that he “would not be eligible for probation.” Moments

later, the prosecutor corrected the offense date and said, “so he’s eligible for parole – I

mean probation.” The judge noted, “You heard all of that” and told Appellant that “a jury

could give you probation.” After Appellant turned down the State’s plea offer, the judge

introduced the idea of a court trial, but neither he nor anyone else mentioned probation

again.

         Applying the correct prejudice standard in cases like this one would encourage

trial courts and the State to educate themselves about the defendant’s probation eligibility

and apply that knowledge to ensuring that defendants make informed punishment

elections and jury waivers. The plurality’s approach, however, encourages ongoing

confusion about these crucial decisions.

                         Findings on Motion for New Trial Ruling

         Our rules used to prohibit trial judges from summarizing or commenting on the

evidence in hearings on motions for new trial. Effective January 1, 2007, however, Tex.

R. App. P. 21.8 was amended to allow trial courts to make findings when ruling on


case); Burch v. State, No. 09-14-00361-CR, 2016 Tex. App. LEXIS 9218 at *14 (Tex. App. –
Beaumont Aug. 24, 2016, pet. granted) (mem. op., not designated for publication) (defense
attorney, prosecution and trial court mistakenly believed defendant was eligible for probation
from the jury).
                                                                          Miller dissent–Page 11

motions for new trial. The reason for the change was so “that appellate courts will not

need to speculate as to the possible factual findings supporting a trial judge’s ruling if the

trial judge will articulate them.” Landers v. State, 256 S.W.3d 295, 301 n. 4 (Tex. Crim.

App. 2008). Under the new rule, “[i]n the absence of express findings . . . we presume

that the trial court made all findings, express and implied, in favor of the prevailing

party.” Okwonko v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013) (citing Riley, 378

S.W.3d at 459) (emphasis added).

       In this case, the trial judge explicitly found that the prosecutors and the defense

attorney believed that Appellant was eligible for probation from the trial court and that

the defense attorney told him so. The judge made no findings about the impact of the bad

advice on Appellant’s jury waiver, and he concluded that counsel’s representation was not

“so deficient to be a miscarriage of justice.” However, the record from the hearing on the

motion for new trial indicates that both the State and the defense argued the incorrect

standard to the trial court.6 As a result, the judge’s decision and findings were based on

the incorrect standard. The plurality and the court of appeals compound this error by

using the trial judge’s explicit findings to indulge implicit fact findings. Slip op. at 17;

Miller v. State, No. 05-14-01065-CR, 2015 Tex. App. LEXIS 5520, at *12-13 (Tex. App.



       6
          The State said, “The defense has to show that the results of the proceeding would have
been different should the mistake not have been made. In this case, I don’t think it would have
been different. And there’s no evidence before you that the result would have been different.”
The defense argued that “there is a reasonable probability or likelihood of some other outcome”
and submitted to the court a copy of Riley.
                                                                        Miller dissent–Page 12

— Dallas June 1, 2015, pet. granted) (mem. op., not designated for publication).

       I would remand this case to the court of appeals with instructions to abate the

appeal and order findings from the trial court that apply the proper standard and answer

the only pertinent question in this case: whether Appellant waived his right to a jury

because of his attorney’s bad advice about probation eligibility. See Davis v. State, 278

S.W.3d 346, 350 (Tex. Crim. App. 2009) (evaluating ineffective assistance claim

following abatement by lower court for findings by the trial court). I would further order

the court of appeals, once it received the trial court’s response, to evaluate the prejudice

prong of Appellant’s ineffective assistance claim in accord with this opinion, that is, in

terms of the effect of the attorney’s bad advice on Appellant’s jury waiver. Since the

plurality does not do so, I dissent.




Filed: April 26, 2017

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