Texas Stamp


PD-0302-24 06/05/2024

“Does the filing of an untimely election for jury punishment and defense counsel’s claim—rejected by the trial court—that his client desired jury punishment at some point satisfy an appellant’s burden under Swinney v. State, 663 S.W.3d 87 (Tex. Crim. App. 2022), to show a reasonable probability that the untimely filing effectively deprived him of his desire to have jury punishment?”

After the State finished its portion of voir dire, Tanner’s counsel announced that the defense intended to go to the jury for punishment. After the trial court informed him that such an election must be filed before voir dire, counsel said his client would be prejudiced if the court sentenced him because of how the court handled an aborted plea hearing in this matter: “Mr. Tanner had no intention of having the Court assess punishment, specifically based on the actions of the Court from February 17th of this year.” The trial court rejected counsel’s version of events. The court added, “I can’t put on the record that [Tanner] wanted to go to the jury for punishment because he’s never said that.” Counsel never asked Tanner to state his desire on the record, during or after trial.

After his conviction, Tanner raised a single claim on appeal: counsel was ineffective for failing to timely file a written election for jury punishment pretrial. The court of appeals agreed. It held that counsel was aware Tanner “had no intention of having the Court assess punishment.” “Had defense counsel known when to file the election to have the jury assess punishment and adequately advised Tanner, there is a reasonable probability that Tanner would have timely exercised his right, and there is no basis on this record to conclude otherwise.”

The State compares this case to Swinney. In that case, the Court of Criminal Appeals said ineffective assistance for bad election advice (based on ineligibility for probation from the trial court) could not be proven without evidence the bad advice affected Swinney’s decision. In this case, there is no direct evidence from Tanner that he wanted to choose jury punishment. Counsel’s statements that Tanner “had” no intention to go to the judge for punishment were temporally vague, at best. Regardless, the trial court rejected the factual claims undergirding that alleged intent and said he wanted to hear it from Tanner. Had this claim been pursued in a motion for new trial or post-conviction writ, the trial court would have been permitted to disbelieve Tanner. Validating an ineffective-assistance claim on this record incentivizes defendants to avoid adverse fact-findings by simply speaking facts into existence.

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