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 Carter
2

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 community 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 machete. 

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 chop 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 prosecutor 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.” Both 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. TEX. CODE CRIM. PROC. ANN. 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’ attorney 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 TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 4(d). Harris’ attorney moved for a mistrial, stating 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 mistrial. 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 affidavit 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 proceed 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, 80th Leg., R.S., ch. 1205, § 3, 2007 Tex. Gen. Laws 4078, 4079 (current version at TEX 

CODE CRIM. PROC. ANN. 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 lawyer. 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 motion 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 proof that “1) counsel’s representation fell below an objective standard of 

reasonableness under prevailing professional norms; and 2) the deficient performance prejudiced 
5

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 Strickland 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 undermine 

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 correctly 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 defendants

convicted of murder. See Act of May 21, 2007, 80th 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 requested that the trial court defer adjudication of guilt and grant community 

supervision. TEX. CODE CRIM. PROC. ANN. art. 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 September 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. TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(d)(4). This provision applies only to 

offenses committed after the effective date of the Act—September 1, 2011. TEX. CODE CRIM. PROC. ANN.

art. 42.12, § 3 (West Supp. 2012). The Texas Court of Criminal Appeals referred to this statue in Riley without 
6

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 assessor of punishment 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 they found him guilty of murder. Unlike in Riley, Harris’ 

attorney discovered his legal misunderstanding 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 performance. Based 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 reversed this Court’s decision in Riley. The 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 sentenced Riley to fifty years’ incarceration 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 charge 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 distinctions 

relevant to the issue at hand. The Texas Court of Criminal Appeals was clear in Riley that “the 
8

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 “determine 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.

In 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 reasonable 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. Id. at 460. The same holds true for 

Harris.
9

As mentioned above, the 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 Harris 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 recommend 

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 different” 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 Supported 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, 547
10

(Tex. App.—Amarillo 2011, no pet.) (citing TEX. CODE CRIM. PROC. ANN. art. 103.009(a), (c) 

(West 2006)). “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.” TEX. CODE CRIM.

PROC. ANN. art. 103.001 (West 2006). “In other words, a certified bill of costs imposes an 

obligation upon a criminal defendant to pay court costs, irrespective of whether or not that bill is 

incorporated by reference into the written judgment.” Owen, 352 S.W.3d at 547. Absent a 

certified bill of costs, the record is insufficient to support the order of court costs.

The record now authorizes collection of the costs assessed and documented by the clerk

of the trial court. See TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2006), art. 103.003 (West 

Supp. 2012); Armstrong 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