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Texas Court of Criminal Appeals Clarifies Prejudice Standard for IAC Based on Faulty Probation Eligibility Advice Is an Effect on Defendant’s Decision Making, Not Different Outcome

by Mark Wilson

The Court of Criminal Appeals of Texas clarified the correct ineffective assistance of counsel (“IAC”) standard in cases of erroneous probation eligibility advice. It is not necessary to show a different outcome, only that the erroneous advice impacted the defendant’s decision-making, the Court instructed.

Timothy Aaron Swinney was charged in Texas with two assault with a deadly weapon counts. On the erroneous advice of counsel that a judge could impose probation on those charges, Swinney elected for sentencing by a judge rather than a jury. Under Texas law, however, the judge could not impose probation on a deadly weapon conviction. See: Tex. CodeCrim. Proc. art. 42A.054(b).

After a jury convicted Swinney, his attorney argued that he was eligible for, and seeking, probation from the court. When the court questioned whether that was possible, the prosecution argued that it was not, but trial counsel persisted in incorrectly insisting that it was and urged the court to assess a probated sentence. The court agreed with the prosecution and sentenced Swinney to eight years in prison on one count and two years on the other.

The Texas Court of Appeals agreed with Swinney that the record showed that his attorney misled him about his eligibility for probation from the trial court if he were convicted of aggravated assault. The court also found, however, that Swinney failed to prove prejudice because the record did not show that had counsel correctly advised Swinney that only a jury could grant him probation “he would have elected to have a jury assess punishment” instead of the trial court.

The Court of Criminal Appeals granted review, clarified the requisite prejudice standard, and affirmed.

The Court noted that a successful IAC claim is based upon (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668 (1984). Citing its earlier decision in Miller v. State,548 S.W.3d 497 (Tex. Crim. App.2018), the Court first noted that in IAC cases “prejudice may be measured in one of two ways: a reasonable probability of a different outcome or a reasonable probability of a different decision by the defendant.” It then cited Lee v. United States,137 S. Ct. 1958, 1965 (2017), in explaining that “if the deficient performance might have caused the defendant to waive a proceeding he was otherwise entitled to, then a reasonable probability that the deficient performance caused the waiver fulfills the prejudice requirement.” The focus “is on the defendant’s decision making,” according to the Court.

Quoting Roe v. Flores-Ortega, 528 U.S. 470 (2000), the Court explained that under these circumstances, “the possibility of a different outcome is the wrong prejudice standard … because ‘we cannot accord any presumption of reliability in judicial proceedings that never took place.’” That is, “the different-outcome question is relevant only to the extent that it sheds light on whether the deficient performance affected the defendant’s decision making.” Id.

The Court noted that Miller addressed its competing opinions on determining IAC prejudice as a result of bad advice about probation eligibility in State v. Recer,815 S.W.2d 730 (Tex. Crim. App. 1991), and Riley v. State,378 S.W.3d 453 (Tex. Crim. App. 2012).

The Court explained that Miller ultimately disavowed Riley’s “different-outcome requirement because it was so speculative as to be unworkable, it was unsupported by any authority or rationale, and it was inconsistent with binding precedent from the United States Supreme Court.” Instead, the Miller Court “re-affirmed Recer’s focus on the defendant’s decision making when assessing prejudice from bad advice about probation eligibility from a court versus a jury,” the Court further explained.

The Court stated that the question in the present case is whether the Court of Appeals disregarded Miller by requiring a likelihood of a more favorable result from the waived jury hearing rather than focusing on Swinney’s decision-making. The Court noted that while the lower court did not ignore Miller in decidingSwinney’s appeal, “it misread it, citing it for a point that Miller did not make.” That is, the Court of Appeals misread Miller by stating “to prove prejudice, the defendant must demonstrate … the results of the proceeding would have been different had his attorney correctly informed him of the law.” As the Court explained, it has disavowed Riley’s “different outcome” standard for determining prejudice in favor of Recer’s focus on the defendant’s decision-making. Nevertheless, the Court of Appeals “reached the right result even though it at times referred to the wrong prejudice standard,” the Court stated.

The Court instructed: “To support an IAC claim based on an attorney’s mistake about probation eligibility from a court versus a jury, the record must show more than the mistake; it must also show whether and how the mistake influenced the defendant’s punishment election.” However, there’s no such showing in the record, the Court concluded.

Accordingly, the Court affirmed the judgment of the Court of Appeals. See: Swinney v. State, 2022 Tex. Crim. App. LEXIS 131 (2022). 

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