PD-0216-21 & PD-0217-21 06/30/2021
“The Court of Appeals erred by applying the incorrect prejudice standard to determine that the Appellant cannot meet his burden to show the outcome of his trial would have been different had he been correctly advised that only the jury could consider placing him on probation.”
After a jury convicted Swinney of two aggravated assaults with a deadly weapon, which rendered him ineligible for judge-ordered community supervision, the trial court sentenced him to two terms of imprisonment. On appeal, Swinney claimed that his trial attorney incorrectly advised him about the trial court’s ability to consider community supervision. The court of appeals held that counsel had misled him but that Swinney failed to prove he was prejudiced. Because Swinney’s claim was raised for the first time on appeal, he failed to present evidence showing that, had counsel advised him correctly, he would have gone to the jury for punishment. Further, he did not establish that his attorney’s advice was the only reason he opted for the trial court to assess punishment; other considerations may have played a role.
Swinney argues that the record clearly shows that community supervision was his desired outcome because he filed motions requesting it. And his defense attorney told the trial court that Swinney wanted community supervision when proposing a counter-offer to the State’s plea offer. In doing so, Swinney stated that he would not appeal if he received ten year’s community supervision. Therefore, the lower court’s decision conflicts with Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018), which held that prejudice is shown when a defendant forgoes a judicial proceeding based on counsel’s erroneous advice. And, Swinney contends, the lower erred to require that counsel’s performance be the sole reason he opted for trial-court punishment.