NO. ___________ 

TO THE COURT OF CRIMINAL APPEALS OF TEXAS 

CHARLES DOUGLAS MCCLAIN III, Appellant 

VS. 

THE STATE OF TEXAS, Appellee 

*************** 

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

************** 

FROM THE COURT OF APPEALS 

SIXTH APPELLATE DISTRICT OF TEXAS 

AT TEXARKANA 

NO. 06-14-00104-CR

UPSHUR COUNTY 

TRIAL COURT NO. 16,545 

 Tim Cone

 P.O. Box 413 

 Gilmer, Texas 75644 

 State Bar #04660350 

 ATTORNEY FOR APPELLANT 

PD-0404-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 4/9/2015 12:31:20 PM

Accepted 4/15/2015 3:12:51 PM

ABEL ACOSTA

CLERK
2

TABLE OF CONTENTS

Page

Table of Contents................................................ 2

Name of All Parties............................................. 3

Index of Authorities............................................. 4

Statement of the Case........................................... 6

Statement of the Procedural History.......................... 7

Statement Declining Oral Argument......................... 7

Questions for Review.......................................... 7 & 8

Question One: Did the Court of Appeals err in finding that the trial 

objection relating to an oral statement by the Appellant did not comport with 

the point of error on appeal?

Question Two: Did the trial court attorney’s error in advising the 

Appellant that he was eligible for probation when he was not establish both 

prongs of the standard for ineffective assistance of counsel?

Reasons for Review............................................. 8

Argument and Authorities...................................... 8

Prayer and Relief................................................ 10

Certificate of Compliance...................................... 11

Certificate of Service............................................ 12

Appendix – Court of Appeals Opinion
3

NAMES OF ALL PARTIES

The parties to the trial court’s judgment are the State of Texas and 

Appellant, Charles Douglas McClain, III, TDCJ.

The trial court judge was the Honorable Lauren Parish, 115th Judicial 

District Court, Upshur County, Texas.

At trial, the State was represented by Upshur County Assistant 

District Attorney A. Camille Henson, Upshur County, Texas, and on appeal

by Natalie A. Miller, Upshur County Assistant District Attorney, Gilmer, 

Texas.

Appellant was represented at trial by Brandon Winn, 411 W. Tyler,

Gilmer, Texas, and on appeal by Tim Cone, Gilmer, Texas.
4

INDEX OF AUTHORITIES

 PAGE

CASES;

Strickland v. Washington, 466 U.S. 668 (1984).................. 10

STATUTES:

Texas Code of Criminal Procedure, Art. 38.22..................... 9

RULES:

Texas Rule of Appellate Procedure, 66.3(f)......................... 8
5

CHARLES DOUGLAS MCCLAIN III Appellant

V.

THE STATE OF TEXAS Appellee

**********

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

**********

TO THE HONORABLE COURT OF APPEALS:

Comes now Charles Douglas McClain, III, Appellant, and 

respectfully urges this Court to grant discretionary review in this case.
6

STATEMENT OF THE CASE

CHARLES DOUGLAS MCCLAIN, III, appeals the conviction and 

sentence for Indecency With a Child. The Appellant was indicted in Cause 

Number 16,545 by the Upshur County Grand Jury on September 30, 2013, 

for the offense of Indecency With a Child (second degree felony). CR1. On 

January 27, 2014, the Appellant filed a Waiver of Arraignment. CR46. On 

February 12, 2014, the State filed a notice of enhancement, elevating the 

potential range of punishment to that of a first degree felony. CR47. On 

May 9, 2014, Appellant waived his right to a jury trial and was admonished 

by the trial court regarding the punishment range of a second degree felony. 

2RR4,5; CR51. On May 21, 2014, a plea of not guilty was entered by the 

Appellant. 3RR10. On May 21, 2014, the court found the Appellant guilty 

of Indecency With a Child and sentenced Appellant to 25 years in TDCJ-ID, 

after a plea of true to the enhancement allegation. 3RR84,85. On March 

18, 2015, the Sixth Court of Appeals affirmed the conviction in an 

unpublished opinion. The Appellant now files this Petition for Discretionary 

Review.

For clarity, THE STATE OF TEXAS will be referred to as “The 

State”, and CHARLES DOUGLAS MCCLAIN, III, will be referred to as 

“Defendant” or “Appellant.”
7

 

STATEMENT OF PROCEDURAL HISTORY

The case was appealed to the Court of Appeals, Sixth Appellate 

District of Texas at Texarkana. On March 18, 2015, that Court affirmed the 

conviction in an opinion that was not published. There was no motion for 

rehearing filed. 

STATEMENT DECLINING ORAL ARGUMENT

Oral argument of this case is not requested on behalf of Appellant.

QUESTIONS FOR REVIEW

Question No.1

Did the Court of Appeals err in finding that the trial objection relating 

to an oral statement made by the Appellant did not comport with the point of 

error on appeal?
8

 Question No. 2

Did the trial court attorney’s error in advising the Appellant he was 

eligible for probation when he was not establish both prongs of the standard 

for ineffective assistance of counsel?

REASONS FOR REVIEW

 Texas Rule of Appellate Procedure 66.3(f): A Court of Appeals has 

so far departed from the accepted and usual course of proceedings as to call 

for an exercise of the Court of Criminal Appeals power of supervision. 

Further, this matter should be addressed by the Court of Criminal Appeals in 

the best interest of justice.

ARGUMENT AND AUTHORITIES

 Question No. 1

Did the Court of Appeals err in finding that the trial objection relating 

to an oral statement made by the Appellant di not comport with the point of 

error on appeal?
9

At trial, witness Dereck Walker testified to incriminating oral 

statements he said the Appellant made during an interview. Walker is an 

employee of DPS. As the State admitted in their brief to the Court of 

Appeals, he is a DPS polygrapher, although that particular duty was not 

presented, on the record, during the bench trial. The Appellant’s trial 

attorney objected to the witness testifying at all. Although the objection was 

not a model for the issue presented as error on appeal, the appellate point of 

error related to the inadmissibility of Walker’s testimony, as it did not 

comp[ort with the requirements of admission of an oral statement under 

Texas Code of Criminal Procedure, Art. 38.22. As this was a bench trial, the 

trial court would be presumed to know the requirements for admissibility of 

an oral statement under that statute and the trial court attorney’s objection 

was specific enough to include the point of error raised on appeal.

 Question No. 2

Did the trial court attorney’s error in advising the Appellant he was

eligible for probation when he was not establish both prongs of the standard 

for ineffective assistance of counsel?
10

The Appellant’s trial attorney clearly advised the Appellant he was 

eligible for probation in the case at bar. Under the law, he was not. Even the 

Court of Appeals found the first prong of Strickland v. Washington, 466 

U.S. 813 (1984) to be met due to this incorrect advice. The Court of Appeals 

found the second prong not to be shown, however. The Appellant waived his 

right to a jury trial, apparently believing the trial court could grant him

probation. Had he not been so ill advised, it is extremely unlikely he would 

have waived his right to a jury trial. The Appellant went through the entire 

trial thinking, in error, that he could get probation. Respectfully, this matter 

alone should meet the second prong under Strickland, supra.

PRAYER AND RELIEF

Appellant prays that this Petition for Discretionary Review be 

granted; that this case be submitted to the Court after full briefing; that the 

Court of Appeals’ decision be set aside, the case remanded to the Court of 
11

Appeals for further review or that the Appellant receive a new trial.

Respectfully submitted,

 /s/ Tim Cone

________________________

TIM CONE

State Bar #04660350

Attorney for Appellant

P.O. Box 413

Gilmer, Texas 75644

903-725-6270

903-725-5494 (Fax)

CERTIFICATE OF COMPLIANCE

I certify that the foregoing document complies with Texas Rules of 

Appellate Procedure, Rule 9 regarding length of documents, in that 

exclusive of caption, identify of parties and counsel, statement regarding 

oral argument, table of contents, index of authorities, statement of the case, 

statement of issues presented, statement of jurisdiction, statement of 

procedural history, signature, proof of service, certification, certificate of 

compliance, and appendix, it consist of 350 words.

 /s/Tim Cone

_________________________

TIM CONE
12

CERTIFICATE OF SERVICE

On the 9

th day of April, 2015, copies of the foregoing Appellant’s 

Petition for Discretionary Review were delivered to the Office of Honorable 

Billy Byrd, Upshur County District Attorney, 405 N. Titus, Gilmer, Texas 

75644, and the State Prosecuting Attorney, at P.O. Box 13046, Capitol 

Station, Austin, Texas 78711, by United States mail postage prepaid.

 /s/Tim Cone

_________________________

TIM CONE

Counsel for Appellant
In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00104-CR

CHARLES DOUGLAS MCCLAIN, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 115th District Court

Upshur County, Texas

Trial Court No. 16,545

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Justice Moseley
2

MEMORANDUM OPINION

Following a bench trial, Charles Douglas McClain, III, was convicted of indecency with a 

child. He pled “true” to the State’s enhancement paragraph and was sentenced to twenty-five 

years’ imprisonment. On appeal, McClain argues (1) that the trial court erred in overruling his 

objection to the admission of his confession, which resulted from custodial interrogation, and 

(2) that his counsel rendered ineffective assistance in advising him that he was eligible to receive 

community supervision. We find that McClain failed to preserve his first point of error on 

appeal and that counsel’s assistance, though deficient, was not so serious as to deprive McClain 

of a fair and reliable trial. Consequently, we affirm the trial court’s judgment.

I. McClain’s First Point of Error Does Not Comport With His Objection at Trial 

At McClain’s trial, the thirteen-year-old child victim, J.C., testified that McClain touched 

her private part through her underwear and began moving his hand “[u]p and down.” Both J.C.’s 

grandmother and Nanette Parras, a Sexual Assault Nurse Examiner (SANE), testified that J.C. 

informed them of McClain’s act. J.C.’s aunt, who was dating McClain and had a child by him, 

testified that she confronted McClain about J.C.’s outcry. According to the aunt, McClain 

admitted that he had touched J.C. outside of her clothing on her private area, but claimed that the 

act was an accident. 

After the testimony of J.C., her grandmother, her aunt, and Parras, the State called Dereck 

R. Walker, a detective with the Texas Department of Public Safety. Walker testified that 

McClain agreed to a voluntary, audio/video-recorded interview. After informing McClain that 

he had the right to terminate the interview at any time, Walker began his questioning. According 
3

to Walker, during the interview, McClain admitted that he touched J.C.’s vagina. Walker’s 

testimony prompted the following exchange during trial:

[By the Defense]: Judge, I’m going to object. At the risk of kicking the 

door open on this I’m going to object to this witness testifying at all. We live in a 

small district in a small county where we know all the witnesses that have been 

before here today, the SANE nurse, the CAC interviewer. This witness being 

from DPS, being from out of town, I believe is impermissible, it leads to the 

illusion as to why he was there testifying and I don’t think he ought to be allowed 

to testify. I have some case law that says allowing this type of witness to testify is 

impermissible and should only be used if trying to rebut the defense’s theory or to 

impeach the defendant should the defendant have testified.

THE COURT: I’m going to let you respond.

[By the State]: My response to that would be that Dereck Walker is 

testifying as a [sic] agent of DPS who had a [sic] interview with the defendant 

where he waived his rights and voluntarily sat and talked with Mr. Walker over 

the incident that we’re here for so we’re clear as to what the interview is about.

THE COURT: I’m going to overrule the objection although I’m really not 

-- I really don’t understand the objection. I’m sorry, I think I could look at it, 

print it out and still not understand it.

[By the Defense]: Yes, Judge, I’m going to object on the basis of 154 

S.W.3d 235, allowing somebody who has interviewed the defendant, I’m left in 

the precarious position, Judge, because the crux of my objection is the evidence 

that’s not supposed before the trier of fact.

THE COURT: Okay. Well, I assume that evidence is not an interview 

relating to the incident that we’re here in court about because that’s all I know.

[By the Defense]: Yes, Judge.

THE COURT: I’m going to overrule the objection.

Although it is difficult to understand the exact nature of McClain’s objection, the case 

citation referenced above leads to our opinion in Wright v. State, 154 S.W.3d 235, 239 (Tex. 

App.—Texarkana 2005, pet. ref’d), which held that the trial court erred in allowing affirmative 
4

and intentional presentation of polygraph evidence before a jury. Here, although the State’s brief 

volunteers that McClain’s statement was made during a polygraph examination, there was no 

mention of a polygraph test at trial. Thus, the State adhered to our explanation in Wright, which 

clarified that statements made by a defendant to a polygraph examiner may be admissible if all 

references to the polygraph test are omitted. Id. 

Now that the nature of McClain’s objection at trial is better identified, we turn to his 

point of error on appeal. In support of his appellate argument, McClain relies on Article 38.22, 

Section 3(a) of the Texas Code of Criminal Procedure, which reads,

(a) No oral or sign language statement of an accused made as a result of 

custodial interrogation shall be admissible against the accused in a criminal 

proceeding unless:

(1) an electronic recording, which may include motion picture, video 

tape, or other visual recording, is made of the statement;

(2) prior to the statement but during the recording the accused is given 

the warning in Subsection (a) of Section 2 above and the accused knowingly, 

intelligently, and voluntarily waives any rights set out in the warning;

(3) the recording device was capable of making an accurate recording, 

the operator was competent, and the recording is accurate and has not been 

altered;

(4) all voices on the recording are identified; and

(5) not later than the 20th day before the date of the proceeding, the 

attorney representing the defendant is provided with a true, complete, and 

accurate copy of all recordings of the defendant made under this article.

TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a) (West Supp. 2014). McClain notes that an 

electronic recording of the interrogation exists, but was not offered or published, and argues that 

the State failed to establish that it complied with Section 3, subsections (a)(3) through (a)(5). 
5

A “point of error on appeal must comport with the objection made at trial.” Wilson v. 

State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 367 

(Tex. Crim. App. 2005). As stated in Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 

2009),

Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint 

is not preserved for appeal unless it was made to the trial court “by a timely 

request, objection or motion” that “stated the grounds for the ruling that the 

complaining party sought from the trial court with sufficient specificity to make 

the trial court aware of the complaint, unless the specific grounds were apparent 

from the context.” 

Resendez, 306 S.W.3d at 312 (quoting TEX. R. APP. P. 33.1(a)(1)(A)). “The purpose of requiring 

a specific objection in the trial court is twofold: (1) to inform the trial judge of the basis of the 

objection and give him the opportunity to rule on it; (2) to give opposing counsel the opportunity 

to respond to the complaint.” Id. As explained in Resendez, 

Although there are no technical considerations or forms of words required to 

preserve an error for appeal, a party must be specific enough so as to “let the trial 

judge know what he wants, why he thinks himself entitled to it, and do so clearly 

enough for the judge to understand him at a time when the trial court is in a 

proper position to do something about it.” 

Id. at 312–13 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).

Our review of the trial transcript leads us to conclude that McClain’s point of error on 

appeal does not comport with the objection he made at trial. Because McClain’s complaints on 

appeal were not asserted below, the trial judge (who voiced on the record an inability to 

understand the trial objection as it was stated) did not have an opportunity to rule on whether 

McClain’s statement was admissible under Article 38.22. Thus, McClain’s first point of error is 
6

not preserved for our review and is overruled. See Pena v. State, 285 S.W.3d 459, 464 (Tex. 

Crim. App. 2009).

II. Counsel’s Deficient Assistance Did Not Deprive McClain of a Fair and Reliable 

Trial

McClain’s ineffective assistance of counsel claim involves the application of community 

supervision law to his case. A defendant is not eligible for community supervision

recommended by either a judge or a jury when he is convicted of indecency with a child if, as 

here, the victim of the offense was younger than fourteen years of age at the time the offense was 

committed. TEX. CODE CRIM. PROC. ANN. art. 42.12, §§ 3g(1)(a)(C), 4(d)(5) (West Supp. 2014).

However, a judge may place a defendant who is charged with indecency with a child on deferred 

adjudication community supervision regardless of the age of the victim, but only if the defendant 

enters a plea of guilty or nolo contendere. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West 

Supp. 2014). 

In his second point of error, McClain argues that his counsel provided ineffective 

assistance when he “informed [McClain that] the possibility of probation existed when it did 

not.” 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) (quoting Strickland v. 

Washington, 466 U.S. 668, 813 (1984)); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 

1999); Williams v. State, 309 S.W.3d 124, 131 (Tex. App.—Texarkana 2010, pet. ref’d). From 

the record received by this Court, which does not include an explanation of counsel’s reasoning, 

McClain bears the burden of proving by a preponderance of the evidence that counsel was 

ineffective. See Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 
7

668 S.W.2d 401, 403 (Tex. Crim. App. 1984). Rarely will a reviewing court be provided a 

record on direct appeal that allows for a comprehensive evaluation of the merits of an ineffective 

assistance of counsel claim. Thompson, 9 S.W.3d at 813. “In the majority of instances, the 

record on direct appeal is simply undeveloped and cannot adequately reflect” the reasoning of 

trial counsel. Id. at 813–14. We examine the appellate record to determine whether it illustrates 

McClain’s claim of ineffective assistance. 

McClain indicated his desire to receive community supervision when he filed a document 

titled “Application for Community Supervision from the Judge.” Due to the nature of McClain’s 

charge, judge-ordered deferred adjudication community supervision appeared to be his only 

option until the State filed a notice of intent to enhance McClain’s punishment, which alleged 

that McClain had previously been finally convicted of robbery, a second degree felony. The 

transcript of McClain’s trial indicates that the trial court was not aware of the State’s notice of 

intent to enhance McClain’s punishment, even though it was filed many months before trial. 

McClain waived trial by jury and pled not guilty after the trial court admonished him 

incorrectly with regard to the range of punishment.1

 It was not until after the trial court found 

McClain guilty of the offense that the State brought its enhancement allegation to the trial court’s 

attention. On realizing that McClain’s offense was punishable as a first degree felony, the trial 

court informed McClain of the correct range of punishment. McClain then pled true to the 

 1

Before the bench trial began, McClain was again admonished that “the range of punishment for that offense is two 

to twenty years in prison and a fine of up to $10,000.” It was not until the punishment phase that the trial court 

informed McClain that if it found the State’s enhancement allegation true, the range of punishment would be not less 

than five but no more than ninety-nine years’ imprisonment. See TEX. PENAL CODE ANN. § 12.32(a) (West 2011). 
8

enhancement and stipulated that he had also been previously convicted of the misdemeanor 

offenses of theft and possession of a controlled substance (marihuana). 

During the punishment phase, McClain attempted to explain his criminal history, claimed 

that he had previously completed community supervision successfully, testified that he would be 

a good candidate for community supervision, and informed the court that he wished for a 

sentence of shock probation. During cross-examination, when the State asked McClain whether 

his attorney had informed him that he was not eligible for community supervision, McClain 

responded, “Not that I recall.” J.C.’s grandmother and aunt testified that placing McClain on 

community supervision (even though it was not available) would be inappropriate. Tellingly, 

McClain’s counsel urged the trial court to place McClain on community supervision during 

closing argument. After the State argued, correctly, that McClain was never eligible for 

community supervision, the trial court held an off-the-record, unrecorded discussion with 

McClain’s counsel and the State. When this discussion ended, the trial court sentenced McClain 

to twenty-five years’ imprisonment. Because the record affirmatively demonstrates that 

McClain’s counsel mistakenly believed that McClain was eligible for community supervision, 

we find that the record is sufficiently developed to facilitate our review of the merits of 

McClain’s ineffective assistance of counsel claim. 

We next determine whether McClain’s “trial counsel rendered ineffective assistance by 

employing the two-pronged test handed down by the United States Supreme Court.” Williams, 

309 S.W.3d at 132 (citing Strickland, 466 U.S. 668). “To show ineffective assistance of counsel, 

a defendant must demonstrate both (1) that his counsel’s performance fell below an objective 
9

standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” Batiste v. State, 

217 S.W.3d 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Strickland v. Washington, 

466 U.S. 668, 687–88, 694 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 

2005)); see Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). Failure to make 

either one of these required showings defeats an ineffectiveness claim. See Williams v. State, 

301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Ex parte Martinez, 195 S.W.3d 713, 730 n.14 

(Tex. Crim. App. 2006).

With respect to the first Strickland prong, there is “a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance” and that “the 

challenged action ‘might be considered sound trial strategy.’” Strickland, 466 U.S. at 689; 

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). Yet, trial counsel 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. 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)). “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). 
10

Although it is true that the record does not explain why trial counsel (1) obviously 

mistakenly believed that McClain was eligible for community supervision, (2) apparently 

advised McClain that he was eligible for community supervision, (3) elicited testimony from 

witnesses during the punishment phase regarding the possibility of community supervision, and 

(4) urged the trial court to place McClain on community supervision during closing argument, 

we cannot fathom any sound trial strategy justifying counsel’s mistake. See Riley v. State, 378 

S.W.3d 453, 458–59 (Tex. Crim. App. 2012); Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. 

App. 1991); Hart v. State, 314 S.W.3d 37, 44–45 (Tex. App.—Texarkana 2010, no pet.);

Cardenas v. State, 960 S.W.2d 941, 946–47 (Tex. App.—Texarkana 1998, pet. ref’d); Turner v. 

State, 755 S.W.2d 207, 209 (Tex. App.—Houston [14th Dist.] 1988, no pet.). Accordingly, we 

find that McClain has met the first Strickland prong. 

The second Strickland prong, the prejudice prong, requires a showing that but for 

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

would have been different. Strickland, 466 U.S. at 687–88. A “‘[r]easonable probability’ is a 

‘probability sufficient to undermine confidence in the outcome,’ meaning [that] ‘counsel’s errors 

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Smith 

v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009) (quoting Strickland, 466 U.S. at 687, 

694). “Both the performance and prejudice prongs of the Strickland ineffectiveness inquiry are 

mixed questions of law and fact, but the prejudice prong often contains ‘subsidiary questions of 

historical fact, some of which may turn upon the credibility and demeanor of witnesses.’” Riley, 

378 S.W.3d at 458 (quoting Kober v. State, 988 S.W.2d 230, 233 (Tex. Crim. App. 1999)). 
11

Accordingly, development of an appellate record that speaks to the second Strickland prong is 

often crucial. See Ex parte Martinez, 330 S.W.3d 891, 904 (Tex. Crim. App. 2011). 

Here, McClain argues that Strickland’s prejudice prong is met because, “[o]bviously, his 

decision to waive a jury trial was based on [counsel’s] mistaken belief.” He further contends that 

“a jury trial as to guilt/innocence may have been a much better option than a bench trial.” Yet, 

McClain neither filed a motion for new trial nor otherwise developed a record addressing these 

appellate claims. Thus, in spite of the assertions in McClain’s brief, we find that the appellate 

record does not support the conclusion that McClain met Strickland’s prejudice prong. 

The appellate record does not show why McClain decided to waive a jury trial and enter a 

plea of not guilty to the trial court. Many strategic choices could have led to McClain’s decision 

to proceed with a bench trial. The evidence of McClain’s guilt, which included (1) J.C.’s 

testimony, (2) the testimony of J.C.’s grandmother, aunt, and a SANE nurse, and (3) Walker’s 

testimony that McClain admitted to committing the offense, was strong. McClain could have 

decided that a judge would be less impacted by the evidence of his guilt and more lenient as 

compared to an East Texas jury.2

 Further, nothing in the appellate record supports McClain’s 

argument that he would have decided to forgo his waiver of jury trial had he been properly 

advised by his counsel. We find that the record does not support McClain’s contention that there 

was a reasonable probability that the result of his proceeding would have been different absent 

counsel’s unprofessional errors. Consequently, we overrule McClain’s last point of error. 

 2

Because McClain was not eligible for community supervision, his sentencing options did not depend on whether he 

opted for a jury trial or a bench trial. Thus, McClain makes no argument that there was a possibility that the jury 

would have given him a lighter sentence. 
12

III. Conclusion 

We affirm the trial court’s judgment. 

Bailey C. Moseley

Justice

Date Submitted: March 4, 2015

Date Decided: March 18, 2015

Do Not Publish