Texas Stamp

BURCH, DAN

PD-1137-16 01/25/2017

1) "The Ninth Court of Appeals misapplied the standard set forth in Riley v. State, 378 S.W.3d 453 (Tex. Crim. App. 2012), when it ignored the trial court's ability to disbelieve the affidavits provided in support of the appellant's motion for new trial and concluded the appellant established he would have elected for the jury to assess his punishment if he had received correct advice regarding his ineligibility for community supervision from the trial court."

2) "The Ninth Court of Appeals misapplied the Strickland v. Washington, 466 U.S. 668 (1984), standard for evaluating ineffective assistance of counsel claims when the court burdened the State to disprove prejudice and relied on speculation to conclude that the outcome of the trial would have been different if the appellant had received correct advice."

Burch was indicted for sexual assault, an offense ineligible for judge-ordered community supervision. Burch's counsel wrongly advised him that a judge could grant him probation. Burch elected to have the judge determine sentencing, and he was sentenced to a seven-year prison term. In a motion for new trial, Burch complained that his trial counsel was ineffective for failing to advise him that only the jury could consider recommending community supervision. Trial counsel admitted in an affidavit that he was mistaken about the law. Burch also filed an affidavit stating that he would have insisted on having the jury determine punishment if his attorney had properly advised him. The trial court denied the motion for new trial.
The court of appeals held that the trial court abused its discretion in denying Burch's motion for new trial. The court found that Burch demonstrated that, due to counsel's error, Burch was harmed by his decision to have the judge assess punishment. The court held that, but for counsel's mistaken advice, the outcome would have been different in the sense that the jury and not the trial court would have assessed punishment. In addition, the court was not confident that the jury's verdict "would not have been better than the seven-year sentence he received" from the trial court.
The State argues that the trial court implicitly rejected Burch's contention that he would have insisted on having the jury assess punishment when it denied his motion for new trial and that the court of appeals failed to defer to this credibility determination. The State also argues that the court of appeals' finding that merely being eligible for probation would have affected the length of his sentence was speculation, particularly given that the trial court openly weighed the option of giving Burch probation as a potential punishment.

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