                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-13-00089-CR
                                 ________________________

                    JOHN DENNIS CLAYTON ANTHONY, APPELLANT

                                                 V.

                              THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 287th District Court
                                      Bailey County, Texas
                  Trial Court No. 2557; Honorable Gordon H. Green, Presiding


                                         February 12, 2015

                                            OPINION
                     Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      On January 14, 2009, Appellant, John Dennis Clayton Anthony, entered a plea of

guilty to the offense of aggravated sexual assault1 in exchange for a recommendation of

deferred adjudication community supervision. At that time, the trial court accepted the

plea agreement and, pursuant to the terms thereof, placed Appellant on deferred




      1
          See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2014).
adjudication community supervision for a term of eight years. The Order of Deferred

Adjudication found the age of the victim to be three years at the time of the offense.


       On February 15, 2013, the State moved to proceed with an adjudication of guilt

alleging Appellant had violated the terms and conditions of his community supervision.

At a hearing on the State’s motion, Appellant entered pleas of true, and after hearing

testimony, the trial court adjudicated him guilty of the offense charged and assessed

punishment at confinement for life. The Judgment again found the age of the victim, at

the time of the offense, to be three years.


       Appellant now seeks to reverse the trial court’s decisions to revoke his deferred

adjudication community supervision, adjudicate him guilty of the offense of aggravated

sexual assault and assess the maximum period of confinement.                        By three issues,

Appellant contends (1) he was denied both due process and equal protection because

his plea was neither knowingly nor voluntarily made, (2) the trial court abused its

discretion when it entered an order in contravention of article 42.12, section 5(d)(3)(B)

of the Texas Code of Criminal Procedure,2 and (3) he was denied effective assistance

of counsel. The State asserts the deferred adjudication order was not illegal or, in the

alternative, Appellant waived any error by failing to timely object and appeal the order of

deferred adjudication.        The State also contends Appellant was not denied effective

assistance of counsel. We reverse and remand.


                                             BACKGROUND


       The indictment in this case charges Appellant with the offense of aggravated

sexual assault. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West Supp. 2014). The
       2
           See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(d)(3)(B) (West Supp. 2014).
                                                    2
minimum term of imprisonment for an offense under section 22.021 is twenty-five years

if the victim of the offense is younger than six years of age at the time the offense is

committed. See TEX. PENAL CODE ANN. § 22.021(f)(1) (West Supp. 2014). In this case,

the victim was younger than six years of age at the time the offense was committed.


        In 2007, the Legislature amended article 42.12 of the Texas Code of Criminal

Procedure to provide that deferred adjudication community supervision is not available

for defendants charged with certain crimes, including those punishable under section

22.021(f) of the Texas Penal Code.3 See Act of May 18, 2007, 80th Leg., R.S., ch. 593,

§ 1.07, 2007 Tex. Gen. Laws 1120, 1123-24 (codified at TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 5(d)(3)(B) (West Supp. 2014)). The statute took effect on September 1,

2007, and applies to offenses committed after that date. 2007 Tex. Gen. Laws at 1148.

Because the offense charged in this case is alleged to have been committed on

September 11, 2008, it was punishable under subsection (f)(1) of section 22.021. See

TEX. PENAL CODE ANN. § 22.021(f)(1) (West Supp. 2014).


        The State concedes in its brief “that Appellant was placed on deferred

adjudication community supervision for a period of eight years, which term of

community supervision falls outside the applicable statutory range of punishment for

Aggravated Sexual Assault, child younger than 6 years of age.” Because Appellant was

charged with an offense punishable under section 22.021(f) and because the minimum

term of imprisonment exceeded ten years, the trial court was never authorized to place


        3
           Cf. TEX. CODE CRIM. PROC. ANN. art 42.12, § 5(a) (West Supp. 2014) (providing that, except as
provided by subsection (d), a defendant charged with an offense under section 22.021 of the Penal Code
may be placed on deferred adjudication community supervision, regardless of the age of the victim, “if the
judge makes a finding in open court that placing the defendant on community supervision is in the best
interest of the victim”). Not only was no such finding made in this case, section 5(a) expressly states that
it is inapplicable where section 5(d) provides otherwise.
                                                      3
Appellant on deferred adjudication community supervision. See TEX. CODE CRIM. PROC.

ANN. art. 42.12 §§ 3(e)(1) and 5(d)(3)(B) (West Supp. 2014).


       Appellant contends his original plea was involuntary because it was based, in

part, on the representation that he was eligible for deferred adjudication community

supervision and, but for that representation, he would not have given up his right to a

jury trial and entered a plea of guilty. He further contends that he was prejudiced by the

ineffective assistance of his counsel in failing to correctly advise him. Because we find

the ineffective assistance of counsel claim to be dispositive, we will address that issue

first and pretermit the remaining issues.


                           INEFFECTIVE ASSISTANCE OF COUNSEL


       The Sixth Amendment to the United States Constitution guarantees an accused

the assistance of counsel to prepare a defense. See U.S. CONST. amend. VI. The Sixth

Amendment right to counsel has been interpreted as “the right to effective assistance of

counsel.”   Robinson v. State, 16 S.W.3d 808, 812 (Tex. Crim. App. 2000) (citing

McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970)).

We examine an ineffective assistance of counsel claim by the two-pronged standard

enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.

Ed.2d 674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.

1986) (adopting the Strickland standard in Texas).


       Under Strickland, Appellant has the burden of establishing by a preponderance

of the evidence that (1) trial counsel’s performance was deficient in that it fell below the

prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is,


                                             4
but for the deficiency, there is a “reasonable probability” that the outcome of the

proceedings would have been different. See Ex parte Chandler, 182 S.W.3d 350, 353

(Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. The two-part

Strickland test applies to challenges to guilty pleas based on ineffective assistance of

counsel. Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 68 L. Ed. 2d 203 (1985). An

appellant has the burden of proving ineffective assistance of counsel by a

preponderance of the evidence. Thompson, 9 S.W.3d at 813.


       DEFICIENT PERFORMANCE


       In conducting a deficient performance review, counsel’s conduct is to be viewed

with great deference, Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005), bearing in mind that there is a “strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance.” Thompson, 9 S.W.3d at

813.      Consequently, to overcome the presumption of reasonable professional

assistance, any allegation of ineffectiveness must be firmly founded in the record. Id. at

813-14.


       Here, counsel provided Appellant incorrect legal advice concerning the range of

punishment applicable to the offense charged. Counsel’s incorrect legal advice was

reinforced and compounded by the acquiescence of both the prosecutor and the trial

judge. Not knowing the law applicable to the offense charged is competence below the

professional norm.   Accordingly, because obtaining a guilty plea in exchange for a

recommendation that was not legally available deprives the accused of the opportunity
                                            5
of making an intelligent choice among legally available courses of action, we find the

record clearly establishes that the performance of Appellant’s trial counsel was deficient

in that it fell below the prevailing professional norms. Based on our examination of the

entire record, we hold Appellant has established the first prong of the Strickland test by

a preponderance of the evidence. We now turn to the question of whether Appellant

was prejudiced by counsel’s deficient performance.


      PREJUDICE


      When examining ineffective assistance of counsel in the context of a challenge to

the voluntariness of a plea of guilty based on the incorrect advice of counsel, to satisfy

the “prejudice” prong of the Strickland test, an appellant must show that, but for

counsel’s errors, there is a reasonable probability that the result of the proceeding

would have been different. Hill, 474 U.S. at 59. Here, we need look no further than the

negotiated plea bargain itself to find prejudice.    In a negotiated plea bargain that

contemplates a particular offense of conviction and punishment to be imposed, the

accused expressly gives up a whole host of constitutional and procedural rights,

including the right to a jury trial, the right of confrontation of witnesses, the right to

require the State to prove the charges being made beyond a reasonable doubt and the

right to remain silent. In such situations, confidence in the outcome of the contemplated

plea bargain mandates that an accused be able to reasonably rely on the competent

advice of a legally trained professional.       Defense counsel’s mistaken belief that

Appellant was eligible for deferred adjudication community supervision, compounded by

the misguided consensus of the prosecutor and the trial court, resulted in an erroneous




                                            6
understanding of the law applicable to his case, which reasonably induced Appellant

into entering a plea of guilty.


       In that regard, it is well established that a guilty plea must be entered into

knowingly and voluntarily. See TEX. CODE CRIM. PROC. ANN. art. 26.13(b); McCarthy v.

United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Ex parte

Mable, 443 S.W.3d 129, 131 (Tex. Crim. App. 2014). “Moreover, because a guilty plea

is an admission of all the elements of a formal criminal charge, it cannot be truly

voluntary unless the defendant possesses an understanding of the law in relation to the

facts.” Ex parte Mable, 443 S.W.3d at 131 (quoting McCarthy, 394 U.S. at 466). The

applicable standard of review is whether the plea is a voluntary and intelligent choice

among the alternative courses of action open to the accused. Id.


       In his attempt to understand the law and make an intelligent choice as to whether

to plead guilty and forego a jury trial, Appellant should have been able to confidently rely

upon the advice of his legal counsel regarding both the range of punishment for the

offense charged and his eligibility for community supervision.        In other words, an

intelligent choice among alternative courses of action must be voluntary and “the

voluntariness of the plea depends on whether counsel’s advice ‘was within the range of

competence demanded of attorneys in criminal cases.’” Hill, 474 U.S. at 56 (quoting

McMann, 397 U.S. at 771).


       In this case, every legally trained party involved, the trial court, the prosecutor

and Appellant’s own counsel, incorrectly believed Appellant was eligible for deferred

adjudication community supervision. The voluntariness of Appellant’s plea is crucial to

this case, and Appellant cannot be said to have entered his plea knowingly and
                                             7
intelligently if he did so while operating under a misunderstanding of the law applicable

to such a critical phase of his case.


        The right to competent legal advice and the effective assistance of counsel

involved here speaks to the very integrity of plea bargain practice and its role in the

judicial sentencing process. 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.


        Nothing in the record suggests the quality of evidence available to the State to

support its indictment. To the contrary, the record reflects that the victim would have

been a child of tender years with limited ability to testify as to the facts and

circumstances surrounding the offense. If Appellant would have known he was facing a

minimum period of twenty-five years confinement instead of deferred adjudication

community supervision, it is reasonable to conclude he would not have stipulated to the

evidence against him and entered a plea of guilty without the agreed upon

recommendation as to punishment. 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 and entered a plea of guilty. Therefore, but for counsel’s errors,

there is also a reasonable probability the result of the proceeding would have been

different.4 Under Strickland, that is sufficient to undermine confidence in the outcome of


        4
          Because counsel’s advice was incorrect and Appellant was ineligible for community supervision,
assuming the trial court applied the law correctly, there is not only a reasonable probability that the result
of the proceeding would have been different, there is an absolute certainty.

                                                      8
the proceeding. Accordingly, Appellant has satisfied the second prong of the Strickland

test for establishing ineffective assistance of counsel.


        Having found Appellant was denied the effective assistance of counsel in

violation of the Sixth Amendment, we sustain issue three and reverse the judgment of

the trial court. Our disposition of issue three makes it unnecessary for us to address

Appellant’s first and second issues. See TEX. R. APP. P. 47.1.


                                             CONCLUSION


        We reverse the judgment of the trial court and order that Appellant be remanded

to the Bailey County Sheriff to answer the charge against him. We further order that he

be allowed to withdraw his plea of guilty and that he be returned to his position prior to

that plea.5 The trial court shall issue any necessary bench warrant within 10 days after

the mandate of this Court issues.




                                                                Patrick A. Pirtle
                                                                    Justice



Publish.




        5
           It should be noted that by being restored to the position he held prior to his original plea,
Appellant is still facing a sentence of imprisonment in the Texas Department of Corrections for any term
of not less than 25 years or more than 99 years or life, and a fine not to exceed $10,000. See TEX. PENAL
CODE ANN. §§ 12.32 & 22.021(f)(1) (West 2011 & West Supp. 2014).
                                                      9
