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Burch v. State

Court of Criminal Appeals of Texas

November 15, 2017

DAN DALE BURCH, Appellant
v.
THE STATE OF TEXAS

         ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE NINTH COURT OF APPEALS MONTGOMERY COUNTY

          Hervey, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Alcala, and Newell, JJ., joined.

          OPINION

          HERVEY, J.

         The court of appeals held that the trial court abused its discretion when it denied Dan Dale Burch's motion for new trial. The issue in this case is whether the court of appeals erred. Burch argued on appeal that the trial court should have granted the new-trial motion due to his counsel's erroneous advice that the judge could place him on deferred-adjudication community supervision. Burch also argued that, if he had known that the trial court could not place him on deferred-adjudication community supervision, but a jury could have recommended "straight" community supervision, he would have asked a jury to sentence him.[1] We conclude that the trial court did not abuse its discretion when it denied Burch's new-trial motion and that the court of appeals was wrong to conclude otherwise.

         BACKGROUND

         Trial[2]

         On January 27, 2014, Burch was indicted for sexual assault. He pled not guilty and opted for a jury to assess his guilt. The jury convicted him, and Burch was sentenced to seven years' imprisonment. He was not fined. After the jury found Burch guilty, he elected to have the judge decide his punishment. At the punishment hearing, defense counsel stated in his opening argument that Burch was "probation eligible." Burch presented two witnesses, his brother and sister, both of whom testified that he would be a good candidate for probation. At the conclusion of evidence, defense counsel asked the judge to place Burch on deferred-adjudication probation. The prosecutor conceded that Burch "may be a successful probationer" but argued that the evidence did not warrant probation. The judge said that he was "not going to give you probation, but I am not going to give you 20 years. I am going to give you seven years in prison."

         Motion for New Trial

         Burch filed a timely motion for new trial in part arguing that he received ineffective assistance of counsel because his lawyer erroneously advised him that he was eligible for deferred-adjudication probation from the judge.[3] Based on that advice, Burch contended, he elected to have the judge assess his punishment, when in fact the judge was prohibited by law from granting deferred-adjudication probation.[4] Burch attached an affidavit from his lawyer confirming that counsel thought that the judge could grant deferred-adjudication probation. Defense counsel also stated, however, that he advised Burch to go to the judge for punishment for multiple reasons:

My reasoning was based on my understanding of article 42.12 §5 and 10 years' experience that juries tended to access [sic] greater time when sentencing on sexual assault cases than judges typically do, along with the fact the jury would also have heard evidence of a prior arrest for a sexual assault of a minor that was later dismissed in the sentencing phase. Lastly, I had factored in that the judge would take into consideration that the District Attorney's office through A.D.A. Tiana Stanford had offered [Burch] a deferred adjudication on a lesser charge of Unlawful Restraint.

         Burch attached to the motion his own affidavit confirming the allegations and swearing that, had he known that he would not be eligible for deferred-adjudication probation from the judge, he would have elected to go to the jury for punishment. He also attached affidavits from both of his punishment witnesses (i.e., his brother and sister), who stated that defense counsel told them that Burch was eligible for deferred-adjudication probation. The trial court denied the motion without a hearing.[5]

         Court of Appeals

         Burch appealed and argued that the trial court should have granted the new-trial motion because his attorney was prejudicially ineffective. The State conceded that counsel provided erroneous advice but argued that Burch had not shown that a jury would have given him a different sentence. The court of appeals cited the standard we used in Riley-that Burch had to show that the outcome of the proceedings would have been different had his lawyer advised him correctly-and concluded that the outcome would have been different "in one respect" because "the jury, not the trial court, would have assessed" the sentence, and the jury would have been able to recommend to the judge that Burch be placed on "straight" probation. Burch, 2016 WL 4483087, at *6; Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012). According to the appellate court, given "the circumstances under which" the victim was assaulted, as well as the fact that Burch had never previously been convicted or charged with any crime, was gainfully employed, supported his child, and had relatives testify that he would be a good candidate for deferred, it concluded that Burch "was deprived of a meaningful opportunity by not having a factfinder who could consider placing him" on probation. Burch, 2016 WL 4483087, at *6.

         Petition for Discretionary Review

         Both parties filed petitions for discretionary review. We denied Burch's petition, but we granted the State's.

         APPLICABL ...


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