Riley v. State

• Decision Date: 11 January 2012
• Docket Number: No. 06–10–00130–CR.,06–10–00130–CR.
• Parties: Billy Dee RILEY, Jr., Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

345 S.W.3d 413

Billy Dee RILEY, Jr., Appellant,
v.
The STATE of Texas, Appellee.

No. 06–10–00130–CR.

Court of Appeals of Texas, Texarkana.

Submitted: June 15, 2011.Decided: July 29, 2011.Discretionary Review Granted Jan. 11, 2012.

[345 S.W.3d 415]

Craig L. Henry, Texarkana, for Appellant.Samantha J. Oglesby, Kelly Gossett Crisp, Asst. Dist. Atty's, Bowie County Dist. Atty's Office, Texarkana, for Appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.OPINION Opinion by Chief Justice MORRISS.

Billy Dee Riley, Jr., had been convicted of murder in a Bowie County jury trial. The punishment phase evidence had been fully received, during which the primary defense strategy had been to seek community supervision for Riley. In fact, Riley's attorneys had advised him before and during trial that he was qualified to ask for community supervision. But, during the charge conference on punishment, his defense team was surprised to discover that Riley was not eligible for community supervision because he had opted to try the case to the jury. The jury assessed punishment of fifty years' imprisonment.

After seeking and being denied a new trial, Riley appeals the trial court's judgment sentencing him in accordance with the jury's verdict. Riley complains of ineffective assistance of counsel and other grounds.¹ Because we agree with Riley that his counsel's advice regarding availability of community supervision by a jury constituted ineffective assistance of counsel, we reverse and remand for a new trial based on this dispositive issue alone.

Any allegation of ineffectiveness of counsel must be firmly founded in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex.App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim.App.2003). Riley bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App.1984).

We apply the two-pronged Strickland test handed down by the United States Supreme Court to the claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n. 14 (Tex.Crim.App.2006).

Because Riley's challenge was made to the trial court in a motion for new trial, we analyze the ineffective assistance claim as a challenge to the denial of his motion for new trial. Charles v. State, 146 S.W.3d 204, 208–10 (Tex.Crim.App.2004), superseded by rule on other grounds by

[345 S.W.3d 416]

State v. Herndon, 215 S.W.3d 901 (Tex.Crim.App.2007); Shanklin v. State, 190 S.W.3d 154, 158 (Tex.App.-Houston [1st Dist.] 2005), pet. dism'd, 211 S.W.3d 315 (Tex.Crim.App.2007) (reversing for new trial on punishment due to counsel's failure to investigate and present mitigating evidence); State v. Kelley, 20 S.W.3d 147, 151 (Tex.App.-Texarkana 2000, no pet.) (grant of motion for new trial based on ineffective assistance was proper). Therefore, we review the Strickland test through an abuse of discretion standard, and reverse only if the trial court's decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling. Shanklin, 190 S.W.3d at 158–59. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Charles, 146 S.W.3d at 208.

First, Riley must show that counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms. Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy. Id. at 689, 104 S.Ct. 2052; Ex parte White, 160 S.W.3d 46, 51 (Tex.Crim.App.2004); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). Therefore, we will not second-guess the strategy of Riley's counsel at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex.Crim.App.1979); Hall v. State, 161 S.W.3d 142, 152 (Tex.App.-Texarkana 2005, pet. ref'd).

Riley's motion for new trial asserted ineffective assistance of counsel and was supported by live testimony and by two affidavits considered by the trial court. The affidavit of Riley's lead counsel, Kyle Davis, stated:

In addition to me, Defendant's defense team was comprised of attorneys Craig Barrett and Joe Tyler. Prior to trial, and during the course of the trial, each of us advised Defendant that he would be eligible for probation in the event he was convicted of murder. During voir dire examination of the jury panel, both the defense and the prosecuting attorney questioned the prospective jury panel on their opinions of the applicability of probation for a person convicted of murder. During the punishment phase of the trial, the defense called a probation officer to testify concerning the terms and conditions Defendant would have to satisfy if the jury recommended probation in the case. The probation officer never mentioned that Defendant's murder conviction would make him ineligible for probation. Moreover, neither the prosecuting attorney nor the trial judge ever alluded to Defendant's ineligibility for probation during the direct examination and the cross-examination of the probation officer.... The first time it was ever mentioned that Defendant's murder conviction would make him ineligible for probation was during the punishment phase charge conference.

Riley's affidavit stated:

Other than the underlying felony conviction of murder in the above-entitled and numbered cause, I have never before been convicted of a felony in any federal or state court in this or any other state.... Prior to trial, and during the course of the trial, each of my attorneys advised me that I would be eligible for probation in the event I was convicted of murder.... Had my trial attorneys not given me erroneous advice concerning my eligibility for probation in the event I was convicted of murder, I would have entered an open plea of nolo contendere to the trial court in hopes that the trial

[345 S.W.3d 417]

court would grant deferred adjudication probation pursuant to Section 5 of Article 42.12 of the Texas Code of Criminal Procedure.

At the hearing on the motion for new trial, Tyler testified that he advised Riley that he would be eligible for community supervision if convicted of murder, that he first became aware of the mistake “after the punishment evidence had been put on but before closing arguments in the punishment phase,” and that “the whole punishment phase of the trial, the defense evidence put on was basically arguing for probation.” Even the prosecutor testified he was not aware that Riley could not receive community supervision from the jury.

After considering the affidavits of Riley and his counsel and the hearing testimony, the trial court overruled the motion for new trial. Based on this record, we consider Riley's claim of ineffective assistance.

It is undisputed that counsel's belief that Riley could receive community supervision in the event of a murder conviction was erroneous. Sections 3g and 4(d)(8) of Article 42.12 prevent a judge or jury from ordering or recommending community supervision following a conviction of murder. Tex.Code Crim. Proc. Ann. art. 42.12, §§ 3g, 4(d)(8) (West Supp.2010). On the other hand, Section 5 of Article 42.12 allows a judge to enter deferred adjudication community supervision after receiving a plea of guilty or nolo contendere to a charge of murder. Tex.Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp.2010); see Cabezas v. State, 848 S.W.2d 693, 695 (Tex.Crim.App.1993). Counsel's misunderstanding on this critical point is documented in the “application for community supervision from the jury” and the fact that each of five punishment witnesses testified on subjects relating to community supervision.

Counsel has a duty to exert best efforts to ensure that the client's decisions are based on correct information as to the applicable law. Ex parte Wilson, 724 S.W.2d 72, 74 (Tex.Crim.App.1987). “An attorney's failure to give competent advice to a defendant which would promote an understanding of the law in relation to the facts and which would permit an informed and conscious choice is error.” Gallegos v. State, 756 S.W.2d 45, 48 (Tex.App.-San Antonio 1988, pet. ref'd) (after denial of motion for new trial, sister court found counsel ineffective for failing to inform defendant, charged with Article 42.12, Section 3g offense, that his waiver of assessment of punishment by jury would foreclose possible community supervision) (citing Ex parte Morse, 591 S.W.2d 904, 905 (Tex.Crim.App.1980)).

“In assessing competence, we [hold] counsel accountable for knowledge, or the ability to attain knowledge, of relevant legal matters which are neither novel nor unsettled.” Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.1999). Whether Riley was eligible for community supervision from the jury was a settled matter of law that was readily ascertainable. During the hearing on the motion for new trial, although the State asked whether Riley went to trial based on the trial strategy of using self-defense, counsel did not testify that his failure to inform Riley he was ineligible for deferred adjudication was due to any trial strategy.² Because

[345 S.W.3d 418]

there is no evidence suggesting that counsel's failure to inform Riley on this settled matter of law could be considered reasonable trial strategy, the only ruling which could have been made in light...