## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 12

- 00101

- CR

JOSEPH QUELON HARRIS, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Red River County, Texas Trial Court No. CR01786

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter2 

### MEMORANDUM OPINION Joseph Quelon Harris was convicted by a jury of murdering his uncle. The jury assessed a life sentence, and the trial court sentenced Harris accordingly. Harris complains that his trial counsel was constitutionally ineffective because the trial lawyer told Harris he could be placed on communi ty supervision by the jury when , in fact , community supervision could only be granted if (1) Harris pled guilty or nolo contendre and (2) the trial judge deferred adjudication of guilt and placed Harris on community supervision. 1 Harris also contends the record does not support the trial court’s imposition of court costs. We affirm the trial court ’ s judgment.
I. Factual and Procedural Background Harris was charged with killing his uncle, John Richard Harris (John) , with a machet e. At trial, Harris presented a defensive theory, mostly through Harris ’ own testimony, that John had attacked and threatened Harris with a pistol and machete, which led to Harris defending himself with the machete. John died as the result of thirteen ch op wounds. Before trial, Harris elected to have the jury assess punishment, should he be convicted, and filed a motion seeking to be placed on community supervision in lieu of serving any sentence of ten years or less. 2 During voir dire, both the prosecu tor and Harris ’ attorney told the jury panel that Harris was eligible for

1 In 1993, during the 73rd Legislative Session, the statutory term for probation was changed to “community supervision.” B oth terms refer to the same process and will be used interchangeably in this opinion. Ivey v. State , 277 S.W.3d 43, 51 n.48 (Tex. Crim. App. 2009).

2 Harris’s motion claimed he had never been convicted of a felony offense and therefore was eligible for community supervision. The State told the venire that Harris was eligible for community supervision. Both were wrong. By pleading not guilty and electing to have a jury determine guilt or innocence, Harris precluded the consideration of community supervision. T EX
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. art. 42.12, § 4(d)(8) (West Supp. 2012) (defendant not eligible for community supervision if convicted of murder and jury assesses punishment).3 community supervision if convicted of murder. Self

- defense and use of deadly force were discussed, but lesser

- included offenses were not. 3 After two days of testimony, Harris ’ at torney apparently learned of the 2007 amendment to Article 42.12, Section 4(d) of the Texas Code of Criminal Procedure, 4 which precludes a jury from recommending community supervision in murder cases. See T EX
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. art. 42.12, § 4(d). Ha rris ’ attorney moved for a mistrial, s t a t ing both parties thought Harris was eligible for community supervision

. Counsel explained, “ Clearly, it ’ s an error both by the government and the defense. I should have known that he was not eligible for probation . First I ever heard of it was this morning. ” Harris ’ trial counsel argued that because both the State and the defense told the jury that Harris was eligible for community supervision if convicted of murder, the jury would infer

— after hearing the evidence and receiving an instruction that he was, in fact, not eligible for community supervision

— that the case “ was worse than it was at the time we voir dired them. ” The trial court denied Harris ’ request for a mi strial. The guilt/innocence jury charge stated, at Harris ’ request, “ You are instructed that if you find the defendant guilty of murder, he is not eligible for probation as punishment. ” In his motion for a new trial, Harris ’ trial lawyer filed an affida vit stating,
I did not advise the Defendant that he was eligible for deferred adjudication probation from the Trial Judge after a plea of guilty or no contest to the charge of murder . . . . My misunderstanding of Defendant ’ s eligibility for probation was a critical mistake . . .

. I feel my failure to give competent advice did not permit Defendant to properly understand the law in relation to the facts and that he did not make an informed and conscious choice as to how to p roceed to trial. My

3 The trial court’s jury charge included the lesser offenses of manslaughter and criminally negligent homicide.

4 Act of May 21, 2007, 80 th Leg., R.S., ch. 1205, § 3, 2007 Tex . Gen. Laws 4078, 4079 (current version at T EX C ODE C RIM
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. art. 42.12, § 4(d) (West Supp. 2012)).4 failure to inform Defendant that he was ineligible for community supervision from the Jury was not due to any trial strategy and simply was my failure to properly inform Defendant on this settled matter of law. Due to my professional conduct Defendant was denied the opportunity to consider a plea of guilty or no contest and to request deferred adjudication community supervision from the Trial Court. I believe Defendant would have made a different decision as to how to proceed to trial if counsel had correctly informed him of the law regarding community supervision. Harris also presented his own affidavit , which stated, Prior to trial, [my attorney] advised me that I was eligible for community supervision from the Jury. My lawyer did not advise me that the Judge could give me deferred adjudication community supervision if I entered a plea of guilty or no contest. I made by [sic] election to go to trial and to go to the Jury for punishment based on the incorrect representations of my l awyer. If I had been properly advised of my punishment options, I would not have decided to go to the Jury for punishment and would have requested the Court to considered [sic] deferred adjudication community supervision. The trial court denied the motio n for new trial without a hearing.
II. Ineffective Assistance of Counsel Any allegation of ineffectiveness of counsel must be firmly founded in the record. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Harris bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Id. We apply the
two

- pronged Strickland test handed down by the United States Supreme Court to a claim of ineffective assistance of counsel. Hill v. Lockhart , 474 U.S. 52, 57 (1985); see Strickland v. Washington , 466 U.S. 668 (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). The Strickland standard requires pro of that “ 1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms; and 2) the deficient performance prejudiced5 the defense.” Strickland , 466 U.S. at 694; Riley v. State , 378 S.W.3d 453, 456 n.5 (Tex. Crim. App. 2012). The second Stri ckland prong, prejudice, 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. Id. Reasonable probability means a “ probability sufficient to undermi ne confidence in the outcome. ” Id

. When a claim of ineffectiveness is based on counsel ’ s misunderstanding of the law regarding community supervision, there must be evidence that (1) the defendant was initially eligible for community supervision , (2) counsel ’ s advice was not in furtherance of a valid trial strategy , (3) the defendant ’ s election of the assessor of punishment was based upon counsel ’ s erroneous advice , and (4) the results of the proceeding would have been different had his attorney corre ctly informed him of the law

. Riley , 378 S.W.3d at 458

. A. Deficient Performance After 2007, juries can no longer recommend community supervision for defendant s convicted of murder. See Act of May 21, 2007, 80 th Leg., R.S., ch. 1205, § 3, 2007 Tex. Gen. Laws 4078, 4079. Under the law applicable to this case, Harris would have been eligible for community supervision, at the trial court’s discretion, if and only if he pled guilty or nolo contendre and request ed that the trial court defer adjudication of g uilt and grant community supervision. T EX
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. a rt. 42.12 , § 5 (West Supp. 2012)

. 5 In an affidavit

5 In 2011 the Legislature passed additional legislation to curtail use of deferred adjudication community supervision in a murder case. As of Sept ember 1, 2011, even the trial judge cannot defer adjudication of guilt in a murder case unless it is shown that the defendant did not cause the death, did not intend to kill, and did not anticipate that a human life would be taken. T EX
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. art. 42.12, § 5(d)(4). This provision applies only to offenses committed after the effective date of the Act

— September 1, 2011. T EX
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. art. 42.12, § 3 (West Supp. 2012). The Texas Court of Criminal Appeals referred to this statue in Riley without6 filed in support of his motion for a new trial, Harris claimed his decision to go to trial and his election of the jury as assess or of pu nishment was based on trial counsel ’ s erroneous advice that the jury could recommend community supervision. He further avers that if he had been accurately advised , he would have asked the trial court to consider deferred adjudication community supervision. This Court was faced with a very similar situation in Riley v. State , 345 S.W.3d 413 (Tex. App.

— Texarkana 2011) (2

- 1 decision) , rev ’ d , 378 S.W.3d 453 (Tex. Crim. App. 2012)

. In that

case, Riley, like Harris, was told by his trial counsel that the jury had the authority to recommend community supervision even if the y found him guilty of murder. Unlike in Riley , Harris’ attorney discovered his legal misunderstandi ng during trial ( rather than after the guilty verdict as occurred in Riley )

. A majority of this Court found in Riley that counsel ’ s erroneous advice

— that Riley was eligible for community supervision if recommended by the jury

— was not sound trial strategy and that counsel ’ s performance fell below an objective standard of reasonableness in light of prevailing professional norms. Riley , 345 S.W.3d at 418. The majority also found that because the error of Riley ’ s trial attorney foreclosed the possibility of deferred adjudication community supervision, for which Riley was otherwise eligible, there was a reasonable probability that the result of the proceeding would have been different. This Court held that Riley was prejudiced by counsel ’ s deficient performan ce . B ased on the determination that Riley

noting that it did not become effective until September 1, 2011, and, therefore, was not applicable. Riley , 378 S.W.3d at 459 & n.27.7 satisfied both prongs of the Strickland test, the majority reversed his conviction and remanded the case for a new trial. Id. at 419

– 20. Here, we agree with the State ’ s concession that the first prong of Strickland has been met. Counsel ’ s advice was deficient and fell below an objective standard of reasonable performance in light of prevailing professional norms

. B. No Reasonable Probability of Different Outcome The Texas Court of Criminal Appeals rever sed this Court’s decision in Riley . T he high court agreed with the conclusion that trial counsel ’ s performance was deficient ; it disagreed, however, with the majority’s determination that counsel’s deficiency affected the outcome of the

case . Riley , 378 S.W.3d at 458. The high court pointed out that even if Riley had pled guilty or nolo contendere to the trial court, “ the same results were available, ” that is, it was just as likely that the trial court would have sentence d Riley to fifty years ’ incarcera tion as it was for the jury to recommend that sentence. Id. at 459. Harris attempts to distinguish Riley by pointing out that in Riley , lesser

- included offenses were discussed in voir dire, and community supervision was available if Riley was convicted of a lesser crime , whereas here , the State did not discuss lesser

- included offenses and simply told the jury Harris was eligible for community supervision. Also , here the trial court included a statement in the jury c harge that Harris was not eligible for community supervision upon a conviction for murder. We do not find these circumstances sufficiently distinct from those in Riley to dictate a different outcome. More importantly, we do not find such factual distinct ions relevant to the issue at hand. The Texas Court of Criminal Appeals was clear in Riley that “the8 analysis of the prejudice prong turns on whether the deficiency made any difference to the outcome of the case.” Id. at 458. The reviewing court must “ d etermine whether any reasonable view of the record, viewed in the light most favorable to the trial court ’ s ruling, could support the trial court ’ s implicit findings. ” Id

. I n the instant case, as in Riley , the trial court denied the defendant ’ s motion for a new trial , which raised the ineffective assistance of counsel claim

. “ We must presume that all findings made by the trial judge were made in favor of the prevailing party, and hence, we assume that the trial judge implicitly found that there was no rea sonable probability that the result of the proceeding would have been different. ” Id. Such a finding is a mixed question of law and fact , and a reviewing court must defer to a trial court ’ s credibility determinations

. Further, the “ trial court did not have to accept appellant ’ s claim that he would have changed his plea had he received correct advice. ” Id

. More to the point, even if the trial court had accepted Riley ’ s claim that he would have pled differently, “ the issue remains whether correct advice would have changed the result of the proceeding. ” Id

. As in Riley , Harris presented defensive testimony urging self

- defense , and the trial court charged the jury on lesser

- included offenses. The Texas Court of Criminal Appeals in Riley pointed out that although the trial court could have considered the evidence and found Riley guilty of a lesser

- included offense, by pleading guilty , Riley “ would have waived his opportunity to argue ” self

- defense and sudden passion as he did at trial. I d. at 460. The same holds true for Harris.9 As mentioned above, t he trial court denied Harris ’ motion for a new trial , which raised the ineffective assistance of counsel claim . We must view the trial court ’ s denial as an implicit finding that even if Harr is had received correct advice, the result of the proceeding would not have changed. Nothing in the record demonstrates a reasonable probability that the outcome would have been different had counsel correctly advised Harris that a jury could not recommen d community supervision upon a conviction of murder. Although the trial court made no findings of fact, we must view the evidence in the light most favorable to the trial court ’ s ruling and presume that all reasonable factual findings that could have been made against the losing party were made. Charles v. State , 146 S.W.3d 204, 208 (Tex. Crim

. App. 2004) . Thus, “ we assume that the trial judge implicitly found that there was no reasonable probability that the result of the proceedings would have been dif ferent ” when he denied Harris ’ s motion for a new trial. Riley , 378 S.W.3d at 459. Harris has failed to meet his burden of proof under the second prong of Strickland , and , thus , his claim of ineffective assistance of counsel must fail. We overrule the first point of error

. III. Court Costs S upported by Record In his second point of error, Harris points out that the original clerk ’ s record contained no certified bill of costs but that the trial court ’ s judgment indicates Harris must pay $499.00 in

court costs. The district clerk supplemented the record during the pendency of this appeal to include a certified bill of trial court costs.

“ A clerk of a court is required to keep a fee record, and a statement of an item therein is prima facie evidence of the correctness of the statement. ” Owen v. State , 352 S.W.3d 542, 54 710 (Tex. App.

— Amarillo 2011, no pet.) (citing T EX
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. P ROC . A NN . art. 103.009(a), (c) (West 20 06 )). “ A cost is not payable by the person charged with the cost until a written bill is produced or is ready to be produced, containing the items of cost, signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost. ” T EX
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. a rt. 103.001 (West 2006), art. 103.003 (West Supp. 2012 ); Armstron g v. State , 340 S.W.3d 759, 765 (Tex. Crim. App. 2011)

. Harris ’ second point of error is overruled

. We affirm the judgment of the trial court.

Jack Carter Justice Date Submitted: July 11, 2013 Date Decided: July 30 , 2013 Do Not Publish