NO. 12-13-00128-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MATTHEW SCOTT MCGRATH, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEAL FROM THE 8TH

JUDICIAL DISTRICT COURT

RAINS COUNTY, TEXAS

MEMORANDUM OPINION

Matthew Scott McGrath appeals his conviction for murder, for which he was sentenced to 

imprisonment for seventy-five years. Appellant raises one issue challenging the voluntariness of 

his guilty plea. We affirm.

BACKGROUND

Appellant was charged by indictment with murder. He waived his right to trial by jury 

and pleaded “guilty” to the offense as charged. The matter proceeded to a trial on punishment.

The evidence showed that the victim, Carl Johnson, was Appellant‟s seventy-nine-yearold grandfather. According to the testimony of several of Johnson‟s children, he had a long 

history of verbally, physically, and sexually abusing his close family members. In August 2012, 

Appellant moved in with Johnson at age twenty-one to help care for him after his wife died. 

Johnson verbally abused Appellant while he was living there and within days ordered him out of 

the home. Soon thereafter, Appellant entered Johnson‟s home while he was sleeping and fatally 

shot him. 

Ultimately, the trial court sentenced Appellant to imprisonment for seventy-five years. 

This appeal followed.
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INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant frames his sole issue as a complaint that he received ineffective assistance of 

counsel that rendered his guilty plea involuntary. In his brief, however, Appellant argues that he 

wanted to plead guilty, but he would not have waived his statutory right to a jury trial on 

punishment had he been given competent advice by his attorney.1 Therefore, we construe 

Appellant‟s issue as a complaint that he received ineffective assistance of counsel that rendered 

invalid his waiver of a jury trial on punishment. 

Specifically, Appellant argues that his trial counsel‟s performance was deficient in that he 

erroneously believed that Appellant could obtain deferred adjudication community supervision 

from the judge—but not from a jury.2 Appellant contends that the record shows there is a 

reasonable probability that he would not have waived his right to a jury trial on punishment were 

it not for the erroneous advice of counsel based on this mistaken belief.

Standard of Review 

In reviewing an ineffective assistance of counsel claim, we follow the United States 

Supreme Court‟s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 

80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). 

Under the first prong of the Strickland test, an appellant must show that counsel‟s performance 

was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707, 

712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that 

counsel was not functioning as the „counsel‟ guaranteed the defendant by the Sixth 

Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant 

must “show that counsel‟s representation fell below an objective standard of reasonableness.” 

Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.

Under the second prong, an appellant must show that the “deficient performance 

prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 

712. The appropriate standard for judging prejudice requires an appellant to “show that there is a 

 

1 When a defendant pleads guilty to a felony offense, a jury trial on punishment is mandatory unless that 

right is waived. TEX. CODE CRIM. PROC. ANN. art. 26.14 (West 2009).

2 Deferred adjudication community supervision was not available to Appellant in this case because he was 

charged with an offense under Section 19.02 of the Texas Penal Code and the evidence shows that he caused the 

death of the victim. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(d)(4) (West Supp. 2013). Nor was regular 

community supervision available from either the judge or a jury. See TEX. CODE CRIM. PROC. ANN. art. 42.12 

§§ 3g(A), 4(d)(8) (West Supp. 2013).
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reasonable probability that, but for counsel‟s unprofessional errors, the result of the proceeding 

would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 

712. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. 

Review of a trial counsel‟s representation is highly deferential. Tong, 25 S.W.3d at 712. 

We indulge in a “strong presumption that counsel‟s conduct falls within the wide range of 

reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. It is 

Appellant‟s burden to overcome the presumption that, under the circumstances, the challenged 

action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, any 

allegation of ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 

(Tex. Crim. App. 1999). Rarely is the record on direct appeal sufficiently developed to fairly 

evaluate the merits of a claim of ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. 

App. 2002). 

Failure to make the required showing of either deficient performance or sufficient 

prejudice defeats the ineffectiveness claim. Thompson, 9 S.W.3d at 813. Appellant must prove 

both prongs of the Strickland test by a preponderance of the evidence in order to prevail. Tong, 

25 S.W.3d at 712. 

Assessment of Punishment

When a defendant pleads guilty to a felony offense, a jury must be empaneled to assess 

punishment, unless the defendant waives that right in accordance with Article 1.13 of the Texas 

Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 26.14 (West 2009). In order to 

waive the right in accordance with Article 1.13, the waiver must be made in person, in writing, in 

open court, and with the consent and approval of the trial court and the prosecutor. Id. art. 1.13 

(West Supp. 2013). 

In most cases, when the trial court receives a defendant‟s guilty plea, it may defer 

adjudication and place the defendant on community supervision if it finds that such is in the best 

interest of the defendant and society. See id. art. 42.12 § 5(a) (West Supp. 2013). In a murder 

case, however, the court may not defer adjudication unless it determines that the defendant did 

not cause the death of the victim, did not intend to cause a death, and did not anticipate a death 

occurring. Id. art. 42.12 § 5(d)(4) (West Supp. 2013). 
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Trial Counsel’s Performance

“An attorney has a duty to exert his best efforts to ensure that his client‟s decisions are 

based on correct information as to the applicable law.” Garcia v. State, 308 S.W.3d 62, 73 (Tex. 

App.—San Antonio 2009, no pet.) (citing 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) (citing Ex parte Morse, 591 S.W.2d 904, 905 (Tex. Crim. App. 1980)).

The record indicates that although the trial court admonished Appellant that he could not 

receive community supervision, trial counsel continued to believe that deferred adjudication 

community supervision was an option. At the plea hearing, the trial judge admonished Appellant, 

“[Y]ou‟re aware that under Texas law, while it used to be the case, it is no longer the case that if 

the Court finds you guilty, any term of imprisonment cannot be probated. That means you cannot 

get probation with this.” Appellant indicated that he understood this admonishment and went on 

to plead guilty to the offense. Later, at the beginning of the sentencing hearing, the trial judge 

reiterated, “This particular type of case, as we discussed, is not eligible for community 

supervision, more commonly known as probation; that is, that is not an option.”

Despite these admonishments, trial counsel persisted in asking witnesses what might 

happen if Appellant were placed on community supervision. After he asked the second witness 

this type of question, the trial judge called the attorneys to the bench. He then voiced his concern 

that trial counsel was misleading the family members into thinking that Appellant could get 

community supervision when he could not. Trial counsel responded that he thought the judge 

could give Appellant deferred adjudication. The judge replied “no,” but after further argument 

from defense counsel, he permitted further questioning on the subject. 

At the close of testimony, the trial judge called the attorneys into chambers. There, he 

pointed out the code provision that made it impossible for him to give Appellant deferred 

adjudication. Trial counsel then stated as follows:

I thought [deferred adjudication] was an option. But it was my understanding it was the only 

option—that the only way I could get there was go to the Court and—if the Court—if the jury 

found him guilty, I was under the impression the judge could not do it at that point. And that‟s—I 

think [the prosecutor] and I discussed it in those terms. And that‟s why I did what I did.
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Thus, it is apparent that throughout the proceedings until just after the close of testimony, 

Appellant‟s trial counsel was under the mistaken belief that Appellant could receive deferred 

adjudication in this case, but only from the judge; and that counsel, relying on his mistaken 

belief, advised Appellant to waive his right to a jury trial on punishment. Therefore, counsel‟s 

performance was deficient. See Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012) 

(counsel‟s performance deficient where he gave incorrect advice regarding community 

supervision); Medeiros v. State, 733 S.W.2d 605, 607 (Tex. App.—San Antonio 1987, no pet.) 

(counsel ineffective where he did not know applicable law regarding community supervision and 

failed to inform defendant that the trial judge could not give community supervision). Appellant 

has satisfied the first prong of the Strickland test.

Prejudice

To show prejudice when his claim of ineffectiveness is based on counsel‟s 

misunderstanding of the law regarding community supervision, an appellant must establish that 

he was initially eligible for community supervision, counsel‟s advice was not part of a valid trial 

strategy, the appellant chose who would assess his punishment based on counsel‟s erroneous 

advice, and the results of the proceeding would have been different if he had been correctly 

informed of the law. Recer v. State, 815 S.W.2d 730, 731-32 (Tex. Crim. App. 1991); Riley, 378 

S.W.3d at 458 (Tex. Crim. App. 2012).

In this case, there is evidence supporting only one of the Recer factors. The record shows 

that counsel‟s advice was based on his misunderstanding of the applicable law, which is never a 

valid trial strategy. See Garcia, 308 S.W.3d 62, 75. The record does not show, however, that 

Appellant was initially eligible for community supervision, that his election of the trial judge to 

assess punishment was based upon counsel‟s erroneous advice, or that the results of the 

proceeding would have been different if he had been correctly informed of the law. See Recer, 

815 S.W.2d at 731-32. Therefore, Appellant has failed to show prejudice and, as a result, has 

failed to meet the second prong of the Strickland test.

Holding

Because Appellant has satisfied only one prong of the Strickland test, he cannot prevail 

on his ineffective assistance claim. Accordingly, we overrule Appellant‟s sole issue.
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DISPOSITION

Having overruled Appellant‟s sole issue, we affirm the trial court‟s judgment.

SAM GRIFFITH

Justice

Opinion delivered April 23, 2014.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 23, 2014

NO. 12-13-00128-CR

MATTHEW SCOTT MCGRATH,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 8th District Court 

of Rains County, Texas (Tr.Ct.No. 5331)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that the decision be certified to the court below 

for observance.

Sam Griffith, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.