Opinion
WR-84,704-02
02-14-2024
EX PARTE JOSEPH QUELON HARRIS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR01786-HC IN THE 6TH DISTRICT COURT FROM RED RIVER COUNTY
NEWELL and WALKER., JJ., dissented.
ORDER
PER CURIAM
Applicant's trial attorney told him that a jury could impose probation in a murder case. That was incorrect. But to show prejudice, Applicant needs to demonstrate that, if he had understood correctly who could assess probation, he would have in fact pled guilty or nolo contendere to the trial court and that the State would have consented to a jury waiver. Because there are no findings of fact on these issues, we remand for further proceedings.
Applicant raised this ineffective-assistance claim in a motion for new trial in May of 2012, and that motion was denied. He raised the claim again on direct appeal. The court of appeals rejected the claim, concluding that Applicant had not shown prejudice under Riley v. State. But Riley has since been disavowed by Miller v. State, to the extent of any conflict with the holding in Miller.
Judgment was imposed against Applicant on April 13, 2012, the motion for new trial was denied on June 11, 2012, and Applicant filed his notice of appeal on June 25, 2012.
Harris v. State, No. 06-12-00101-CR, 2013 Tex.App. LEXIS 9378, *10-13 (Tex. App.-Texarkana July 30, 2013) (not designated for publication) (discussing Riley, 378 S.W.3d 453 (Tex. Crim. App. 2012)). Riley was handed down on September 19, 2012-after Applicant's motion for new trial was denied but before the court of appeals affirmed the case on appeal.
548 S.W.3d 497 (Tex. Crim. App. 2018). We do not at this time decide the retroactivity question raised by Judge Yeary's dissent. If necessary, we can address that issue after remand.
Miller changed the nature of the prejudice requirement, but it did not dispense with the need to establish prejudice. In Miller, this Court held that the correct measure of prejudice when misinformation is given about whether a particular type of factfinder can impose probation is "whether there is a reasonable likelihood that the defendant would have opted for the proceeding" where probation was available if his attorney had performed adequately. The defendant in Miller, having been erroneously advised that the judge could grant probation, waived a jury. Prejudice depended on whether he "would have opted for a jury" instead of waiving one. Applicant's claim is the opposite: having been erroneously advised that the jury could grant probation, he chose trial before a jury. Because his claim is that he would have waived a jury and had a trial to the court, he must show not only that he would have waived a jury but also that the State would have agreed to the waiver, because the State has the authority to refuse to consent to a jury waiver.
Id. at 502.
Id.
See Tex. Code Crim. Proc. art. 1.13(a) (state must consent to jury waiver); In re State ex rel. Ogg, 618 S.W.3d 361, 362, 363-64 (Tex. Crim. App. 2021) (same); Lafler v. Cooper, 566 U.S. 156, 163-64 (2012) (When "having to stand trial, not choosing to waive it, is the prejudice alleged" for failing to accept a plea offer, the defendant must show not only that he would have accepted the plea offer, but also that the State would not have withdrawn it and that the trial court would have also accepted it.).
There are no findings from the trial court on the credibility of Applicant's claims about how he would have proceeded if he had been correctly advised. Whether and to what extent Applicant would have been able to put on evidence of self-defense when pleading guilty or nolo contendere is not apparent. The fact that he was claiming self-defense could be a rational reason to plead not guilty before a jury despite the unavailability of probation. And the submission of lesser-included offenses raises the possibility that he could have gotten probation from the jury on one of those offenses. In addition, the habeas record contains no evidence or findings on whether the State would have agreed to a jury waiver.
We would remand this application to the trial court. We order the trial court to make findings on whether Applicant would have pled guilty or nolo contendere to the judge in order to seek deferred adjudication if he had known that a jury could not impose probation for murder. These findings should include determinations on the credibility of any sworn statements from Applicant and his attorney, or any testimony from either of them if a live hearing is deemed necessary. We also order the trial court to obtain evidence from the State on whether the State would have agreed to a jury waiver, and we order the trial court to make a finding on that issue. The trial court may gather other evidence or make other findings it deems necessary. The findings shall be due 90 days from the date of this order. Any extensions of time must be requested by the trial court and obtained from this Court.
Yeary, J., filed a dissenting opinion.
Today the Court remands this case to the trial court to determine whether Applicant was prejudiced by his counsel's erroneous advice under Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018) (op. on reh'g). In so doing the Court implies that, if the trial court finds that Applicant has demonstrated prejudice, he will be entitled to relief under Miller, and, therefore, that Miller-which was not decided until years after Applicant's conviction was affirmed-applies retroactively. Because I believe it is inefficient for the Court to remand while assuming, without explanation, that Miller applies retroactively, I must dissent.
I. Background
A. Riley and Miller
Applicant pleads ineffective assistance of counsel-specifically that his trial counsel erroneously advised him that he could receive community supervision from a jury if he pled not guilty to murder. After receiving that advice, Applicant opted to go to a jury. However, only a trial judge would have been permitted to suspend Applicant's sentence and place him on community supervision, and only if he pled guilty or no contest. See former Tex. Penal Code art. 42.12 §§ 4(d), 5.
Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 3, p. 4079 (amending Tex. Penal Code art. 42.12 § 4(d) to render a defendant convicted of murder ineligible for jury-recommended community supervision), repealed by Act of May 5, 2015, 84th Leg., R.S., ch. 770, § 3.01, p. 2395.
In 2013, the court of appeals affirmed Applicant's conviction under Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012). Harris v. State, No. 06-12-00101-CR, 2013 WL 4624954 at *6 (Tex. App. Aug. 30, 2013) (mem. op., not designated for publication). To demonstrate prejudice under Riley, Applicant was required to show that the trial court likely would have imposed a lesser sentence on him than he received from the jury. See 378 S.W.3d at 458 ("[T]he analysis of the prejudice prong turns on whether the deficiency made any difference to the outcome of the case."). He did not meet that burden.
Applicant then filed an initial state habeas application complaining that his counsel was ineffective for failing to object to a jury instruction that if he was convicted of murder, he would not be eligible for community supervision. But the instruction given was legally correct. And this Court rejected that initial habeas application.
In 2018-five years after Appellant's judgment was affirmed by the court of appeals, and also after this Court rejected his initial habeas application-this Court overruled Riley's holding that the necessary determination is "whether there was a reasonable probability that the result of the proceedings would have been different had counsel accurately advised appellant." Id. (emphasis added). In Miller, the Court held that an applicant "does not have to show that the likely outcome of the [proceeding] he waived would have been more favorable than the [one] he had." 548 S.W.3d at 498. Rather, the Court said, "the [applicant's] burden is to demonstrate a reasonable probability that the deficient performance caused the defendant to waive a judicial proceeding that he was otherwise entitled to have." Id. at 499 (emphasis added).
B. Retroactivity under Teague
Under Teague v. Lane, the retroactivity of a judicial decision regarding criminal procedure turns on whether that decision announces a new rule. 489 U.S. 288, 301 (1989). Teague explains that "a case announces a new rule if the result [in that case] was not dictated by precedent existing at the time the defendant's conviction became final." Id. (emphasis in original). "And a holding is not so dictated . . . unless it would have been 'apparent to all reasonable jurists.'" Chaidez v. United States, 568 U.S. 342, 347 (2013) (quoting Lambrix v. Singletary, 520 U.S. 518, 527-28 (1997)). In general, a person whose conviction is final at the time the new rule of procedure is announced may not benefit from that decision on collateral review. Id.
"A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Whorton v. Bockting, 549 U.S. 406, 416 (2007) (internal quotations marks omitted).
As Judge Cochran wrote for the Court in Ex parte Maxwell, while not required to "utilize the Teague retroactivity rule, we follow Teague as a general matter of state habeas practice[.]" 424 S.W.3d 66, 70-71 (Tex. Crim. App. 2014). For example, in Ex parte De Los Reyes, we held that Padilla v. Kentucky, 599 U.S. 356 (2010)-which itself held that failure to advise a client of the immigration consequences of a plea may constitute ineffective assistance of counsel-did not apply retroactively because Padilla had announced a "new rule" of constitutional criminal procedure. 392 S.W.3d 675, 679 (Tex. Crim. App. 2013).
II. Analysis
At this stage, I take no position on whether Miller, in fact, announced a new rule. But if the rule in Miller was not dictated by the precedent existing at the time, then it announced a new rule. See Teague, 489 U.S. at 301. And there is at least a reasonable argument that it did.
The question in Miller was "how to measure prejudice when the attorney's deficient performance-bad advice about probation eligibility-could not have affected the outcome of the [applicant's] trial but could only have affected the [applicant's] decision to waive a jury." 548 S.W.3d at 499. The answer under Riley was proof that "the results of the proceeding [that did not occur] would have been different had [applicant's] attorney correctly informed him of the law." 378 S.W.3d at 458. But in Miller the Court held that, to demonstrate prejudice, an applicant need only show that he would have opted for the proceeding that did not occur had his attorney correctly advised him of the law- not that the outcome of that proceeding would have been more favorable. 548 S.W.3d at 498. On its face, this appears to be a new rule. If Miller did announce a new rule, then it should not apply retroactively-and Applicant is not entitled to relief under it-unless one of the two Teague exceptions applies. See Whorton, 549 U.S. at 416.
At the same time, there are plausible arguments that the result in Miller was dictated by precedent existing at the time. For instance, it might be that Miller represents not a new rule, but an application of Strickland v. Washington, 466 U.S. 668 (1984), in the same way as Roe v. Flores-Ortega, 528 U.S. 470 (2000) (holding that "when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal."). See Chaidez, 568 U.S. at 348 ("[W]e have granted relief under Strickland in diverse contexts without ever suggesting that doing so required a new rule."). Moreover, it could be that Miller did no more than return to the standard the Court had previously employed in cases like State v. Recer, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991), and so did not announce a new rule at all. See Miller, 548 S.W.3d at 501. But in that case, the Court should at least now explain how existing precedent dictated the result in Miller.
In any event, this issue deserves closer examination than the Court affords it today. Cf. Teague, 489 U.S. at 300 ("Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant . . . evenhanded justice requires that it be applied retroactively to all who are similarly situated.").
III. Conclusion
I would not remand this case to the trial court without first determining whether the rule in Miller should be applied retroactively- or at least explaining why the Court finds that it does, as it seems to implicitly hold today. Because the Court does otherwise, I respectfully dissent.