Texas Stamp

 

 

MILLER, ARTHUR FRANKLIN, JR.

PD-0891-15 01/13/2016

"Did the Court of Appeals err by finding that trial counsel's deficient performance regarding Appellant's probation eligibility, which Appellant relied upon in waiving his constitutional right to a jury trial, was not prejudicial under Strickland?"

Miller was convicted of aggravated sexual assault. The trial record demonstrated that defense counsel, the prosecutor, and the trial judge were all under the mistaken impression that the trial court had the authority to grant probation when, in fact, only a jury was authorized to do so. The trial court denied Miller's motion for new trial claiming his attorney rendered ineffective assistance of counsel by advising him to opt for a bench trial because the trial judge would give him probation.

The court of appeals held that even though counsel's advice was deficient, Miller was not prejudiced because there was nothing to indicate that he would have received probation had he elected a jury trial.

Miller contends the record demonstrates that, absent the incorrect advice, he would not have waived a jury. He argues there was no legitimate reason to waive a jury and there is a reasonable probability that a jury would have found him not guilty or given him probation because he denied committing the offense and the victim's testimony was contradicted and impeached.

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