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A R T H U R F R A N K L I N M I L L E R , J R
. , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S M O T I O N F O R R E H E A R I N G A F T E R O P I N I O N O N D I S C R E T I O N A R Y R E V I E W F R O M T H E F I F T H C O U R T O F A P P E A L S

C O L L I N C O U N T Y

K E L L E R , P
. J
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i l e d a d i s s e n t i n g o p i n i o n . The question befor e us is how to deter mine prejudice when counsel tells a defe ndant that he

could g et probatio n in a bench trial when, in fac t, he could g et probation only in a jury trial. The

usual test for prejudice , articula ted in Strickland v. W ashington , is whether there is a rea sonable

p ro b ab i l i t y that the result of the proce eding would have been differ ent. Apply ing this usual test 1

would require asking whether the defe ndant would have actua lly obtained probation in a jury trial.

W eave r v. Massachusetts , 137 S. Ct. 1899, 1911 (2017) (quoting Strickland , 466 U.S. 668, 1 694 (1984))

.MILLER DISS ENT — 2

Howeve r, the Court holds that a differ ent prejudice standard applies, requiring a showing mere ly that

the defe ndant would have opted for a jury trial. I n support of th i s h o l d i n g, t h e Court cites case s involving plea ag ree ments and the failure to file an appea l. Eac h of those case s in volved the 2
depriva tion of an entire judicial proce eding : the depriva tion of a trial or the d epriva tion of an appea l. 3

This case is differ ent. Appellant pled “not g uilty .” He had a trial. I t was a t ri al b ef o re a judge instead of a t ri al b ef o re a jury —arg uably , the wrong kind of t rial. But that means the case s
cited by the Court are not direc tly on point. I nstead, those case s are , at most, analogo u s t o the

prese nt case , and so the question is whether we should trea t a trial in which the defe ndant is deprive d

of a jury like the entire depriva tion of a trial. I n answe ring that q uestion, an instructive case to

examine is W

eave r v. Massachuse tts. 4

W eave r involved a claim that the defe ndant rec eived the wrong kind of trial: a trial that was

not open t o t h e p ublic. The depriva tion of a public trial is structura l err or. The Supreme Court 5 6

addre ssed whether the fac t that the err or was structura l chang ed the way that a prejudice analy sis in

S ee Lee v. United States , 137 S. Ct. 1958 (2017) (plea of g uilty pursuant to agr ee m en t ; 2 claim that counsel g ave err oneous advice about immigra tion conseque nces of conviction) ; R oe v. Flores-Ortega , 528 U.S. 470 (2000) (cla im that counsel’s conduct resulted in de priving defe ndant of an appea l); Hill v. Lockhart , 474 U.S. 52 (1985) (plea of g uilty pursuant to ag ree ment; claim that counsel g ave e rrone ous advice about par ole elig ibilit y ).

Lee , 137 S. Ct . at 1965; Flores-Ortega , 528 U.S. at 483. 3

137 S. Ct . 1899. 4

The defe ndant claimed that counsel was ineffe ctive for failing to obje ct to the closure of 5 the courtroom during v o i r d i re

. Id

. at 1906. The Supreme Court assumed that the closure of the courtroom during voir dire amounted to the denial of a public trial. See id. at 1907-13. See also id. at 1914 (Thomas, J ., concur ring ) (obser

ving that the Court assumed that the closure of the courtroom during voir dire a

mounted to a violation of the Six th Amendment rig ht to a public trial).
Id. at 1908. 6MILLER DISS ENT — 3

an ineffe ctive-a ssistance claim was to be conducte d. The Court explained that “structur al err or” is 7

the kind of err or that, if prese rved, results in reve rsal without a harm analy sis. The Court conclude d, 8

howeve r, that the structura l nature of an err or did not nece ssarily dictate a deviation from the usual

Strickland prejudice analy sis. The Court assumed, but did not decide , that the structura l nature of 9

an err or might aff

ect the Strickland prejudice analy sis if one of the rationale s for labeling a particula r

err or as structura l was that it rende red a trial fundame ntally unfair and if that rationale wer e shown

to be applicable in the defendant’s case. The Court ultimately conclude d that the de fendant had 1 0

not made such a showing , and becaus e the defe ndant had not met the traditional test for prejudice —showing a rea sonable probability of a differ ent outcome—the defe ndant was not entitled

Id. at 1907-13. 7

Id. at 1907-08, 1910 (“Thus, in the case of a structura l err or wher e there is an objection at 8 trial and the issue is raised on direc t appea l, the defe ndant g ener ally is entitled to ‘automatic reve rsal’ reg ardle ss of the er

ror’ s actua l ‘eff

ect on the outc ome.’” ).
Id. at 1910-12. 9

Id. at 1911 (“Thus, when a defe ndant raises a public-trial viol at i o n v ia an 1 0 ineffe ctive-a ssistance-of

-counse l claim, Strickland prejudice is not shown automatically . I nstead, the burden is on the defe ndant to show either a rea sonable probability of a differ ent outcome in his
or her case or, as the Court has a ssumed for these purposes, to show that the particula r public-trial violation was so serious as to rende r his or her trial fundame ntally unfair.” ) (citation omitted). The Court explained that there wer e differ ent rationale s for labeling an err or as structura l, one of which
was fundame ntal unfairne ss, and that not ever y rationale applied to ever y specie s of structura l err or. Id. at 1908. The Court also explained that the unprese rved nature of a particula r ty pe of err or might aff ect whether a court should modify the Strickland prejudice inquiry

. Id. at 1912 (“The rea son for placing the burden on the petitioner in this case , howeve r, derive s both from the nature of the err or, and the d i ff

er en ce betwee n a publi c-tria l violation prese rved and then raised on direc t revie w and a public-tria l violation raised as a n ineffe ctive-a ssistance-of -counse l claim.”) ( citation omitted). Be fore W eave r was decide d, we had sug g ested that the structura l n at u re of an err or might impact a Strickland prejudice inquiry

. Johnson v. State , 169 S.W .2d 223, 231-322 (Tex. Crim. App. 2 005). I n that discussion, we rema rked that “the depriva tion of a trial and the depriva t i o n o f an appea l are both structural de fec ts.” Id. at 231.MILLER DISS ENT — 4

to relief. 1 1

Whether the unde rly ing jur y -trial violation in this case is a struc tural er ror is questionable,

at best. The Supreme Court has rec og nized only “a very limit ed class of err ors” as structura l. The 1 2

constitutional rig ht t o a j u ry t ri al does not appea r in the lists of structura l err or rec ited by the
Supreme Court. When a violation of the constitutional rig ht to a jury trial occur s beca use an 1 3

element of the offe nse has not been submitt ed to the jury , a harm analy sis applies, and, 1 4
signific antly , that harm analy sis may appropr iately focus on whether the jury would have found the

element if it had be en submitted. 1 5

Moreove r, it is not clea

r that the constitutional rig ht to a jury trial is implicated in this case

. Appellant’s claim is that he should have g otten a jury trial so that he would have a chanc e at g etting probation. I n noncapital case s, the fede ral constitutional rig ht to a jury trial does not e x tend to the

discretionar

y deter mination of what punishment to assess. The rig ht to a jury trial on the issue of 1 6

Id. at 1913. 1 1

United States v. Dav ila , 569 U.S. 597, 611 (2013). 1 2

See id. ; United States v. Marc us , 560 U.S. 258, 263 (2010); Neder v. United States , 527 1 3 U.S. 1, 8 (1999); Johnson v. U nited States , 520 U.S. 461, 468-69 (1997).
Neder , 527 U.S. at 9-13. 1 4

Id. at 17 (“[W] here a revie wing court conclude s bey ond a rea sonable doubt that the 1 5 omitted element was uncontested and s u p p o rt ed b y overw helming evidenc e, such that the jury verdic t would have been the same absent the err or, the err oneous instruction is proper ly found to be harmless.” ).

United States v. Booke r , 543 U.S. 220 , 233 (2005) (“[W] hen a trial judge exercises his 1 6 discretion to selec t a specific sentence within a defined rang e, the defe ndant has no rig ht to a jury deter mination of the fac ts that the judge deems re levant.”)

.MILLER DISS ENT — 5

probation is based solely

in statute, and a sta tutory err or ca nnot be structura l. 1 7 1 8

And W eave r illust rate s that, even if the depriva tion of a jury trial that was alleg ed to have

occur red here wer e structura l, the usual prejudice analy sis under Strickla n d m i gh t s till be

appropr iate. And even if a deviation from the usual prejudice analy sis wer e war rante d, it might be

war rante d only

for punishment—wha t the defe ndant say s he wa nted the jury

for.

I believe tha t the Court’s holding today is a n unnece ssary

expansion of the Supreme Court holdings on whic h it relies. I respe ctfully

dissent, and I

also join J udg e Alca la’s dissent. Filed: May

23, 2018

Publis h

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. 0 7 , § 2(b) (af ter a finding of g uilt, judge assesses 1 7 punishment unless defenda nt has satisfied conditions for e lecting jury punishment).
See Sc hmutz v. State , 440 S.W .3d 29, 35-37 (Te x . Crim. App. 2014). 1 8