Harrison v. State

595 S.W.3d 879

Holly Lynn HARRISON, Appellant

v.The STATE of Texas, Appellee

NO. 14-18-00372-CR

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed January 28, 2020

OPINION

Frances Bourliot, Justice

In this appeal, we consider whether a defendant is entitled to a new plea hearing and trial after her defense counsel failed to inform her of a comment by the trial judge that, had the defendant known about it, would have prompted her to ask to change her plea, ask for a jury trial, and maintain her innocence.¹ We reverse and remand.

Appellant Holly Harrison appeals her conviction for felony injury to a child by omission and tampering with evidence. As a result of a plea agreement, appellant pleaded no contest to injury to a child and guilty to tampering with evidence without an agreed recommendation from the State on punishment. The trial court sentenced appellant to the maximum punishment for injury to a child, 20 years in prison, and two years in prison for tampering with evidence. Appellant contends on appeal that she received ineffective assistance of counsel under McCoy v. Louisiana , ––– U.S. ––––, 138 S. Ct. 1500, 200 L.Ed.2d 821 (2018), and suffered prejudice under Miller v. State , 548 S.W.3d 497 (Tex. Crim. App. 2018), because her counsel failed to inform her about the trial court's comment.²

Background

Appellant owned an in-home daycare. While she was working alone, a five-month-old baby stopped breathing during his nap. Upon discovering the baby's condition, appellant did not immediately call 911. Instead, she called an employee, who told her to call 911. Appellant then called the other parents and asked them to pick up their children. When the employee arrived at the daycare 10-15 minutes after the initial call, appellant still had not called 911. The employee insisted again on appellant calling 911, and she finally did. Appellant destroyed phone logs showing phone calls made and text messages sent before she called 911.

Pursuant to the plea agreement, appellant pleaded no contest to injury to a child by omission and guilty to tampering with evidence. The trial judge initially said he would find appellant guilty of injury to a child. Defense counsel replied that deferred adjudication was available for that offense, so the judge did not make a finding of guilt and reset the case for a sentencing hearing one week later.

After appellant made her plea, defense counsel, Elizabeth Whited, went to the trial judge's chambers where the trial judge was with the court coordinator. Whited asked the judge whether he wanted her to provide caselaw indicating that deferred adjudication was within the permissible range of punishment for injury to a child. The judge replied, "A deferred on an injury to a child case where there's a dead baby? I don't think so." Whited then consulted with co-counsel, Brian Jones, and they decided not to tell appellant about the comment.

After the sentencing, appellant retained new counsel and filed a motion for new trial with a supporting affidavit. She attested, "The possibility of deferred adjudication was the ONLY reason I went to the judge for punishment.... Had I known that the Judge was not going to consider deferred adjudication at my sentencing hearing, I never would have gone to him for punishment.... To be clear, I would have insisted on going to trial had I known about the trial judge's statement." The trial judge recused himself. The presiding judge granted a hearing on the motion.

The trial judge, appellant's two trial attorneys, another attorney, and the court coordinator testified at the hearing. Three of the witnesses were present when the judge made the referenced statement. They and the judge all confirmed that it happened.³ The judge said that if he had a chance to do it over again, he would not make the comment and the comment was "[a]bsolutely not" appropriate. He conceded that the comment, "[i]f taken seriously," would show that he failed to consider the full range of punishment. But, according to him, it was a "smart-aleck comment," and he did consider the full range of punishment.

Whited testified that receiving deferred adjudication was the "ultimate goal" and "paramount" to appellant in deciding to accept the plea agreement. Whited was "very surprised" about the trial judge's comment and thought it was inappropriate, but did not tell her client about it. She said the strategy was to avoid going before an "unknown" judge and to avoid the admission at trial of appellant's six hours of statements made to the police.

Jones testified that Whited texted him after she heard the comment, "We're fucked." Even though Jones and Whited discussed the possibility of filing a motion to withdraw the plea or for a recusal, they did not discuss this possibility with their client. Jones agreed that the possibility of deferred adjudication was "a big deal" and "the goal." Jones stated that the strategy was to keep the same trial judge because he "was still the best option" and it was "[b]etter the devil you know than the devil you don't." Jones testified if this happened again, he "definitely would" inform his client.

The presiding judge found the sentencing judge to be a credible witness, believed his testimony that he considered the full range of punishment, and denied the motion for new trial. As to the ineffective assistance claim, the presiding judge concluded appellant failed to show that a favorable ruling on the motion would have changed the outcome of the case because (1) she had no right to withdraw her plea, and (2) she did not show there was a reasonable probability that a jury would have assessed a more lenient punishment under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Discussion

Appellant contends the trial court abused its discretion in denying the motion for new trial because her attorneys failed to advise her of the sentencing judge's comment, thereby depriving her of the right to ask to withdraw her plea, ask for a jury trial, or move to recuse the sentencing judge. We review the denial of a motion for new trial for an abuse of discretion and reverse only if no reasonable view of the record could support the trial court's ruling. Burch v. State , 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). We must view the evidence in the light most favorable to the trial court's ruling. Id. We may not substitute our own judgment for that of the trial court and must uphold the trial court's ruling if it is within the zone of reasonable disagreement. Id. The ruling is within the zone of reasonable disagreement when there are two reasonable views of the evidence. Id.

The Sixth Amendment guarantees a defendant in a criminal case the right to effective assistance of counsel. U.S. Const. amend. VI ; Strickland , 466 U.S. at 684–86, 104 S.Ct. 2052. Ordinarily, an appellant claiming ineffective assistance of counsel must prove that counsel's representation fell below an objective standard of reasonableness and the defendant suffered prejudice from such deficiency. Strickland , 466 U.S. at 687–88, 694, 104 S.Ct. 2052 ; Thompson v. State , 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Our review of defense counsel's performance is highly deferential, and we presume that counsel's actions fell within the wide range of reasonable and professional assistance. Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ; Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

I. Was counsel's representation below an objective standard of reasonableness?

A defendant generally must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). However, some decisions belong to the defendant and are not a matter of trial strategy. McCoy , 138 S. Ct. at 1508 ; Turner v. State , 570 S.W.3d 250, 274 (Tex. Crim. App. 2018). These decisions include whether to plead guilty or waive the right to a jury trial. McCoy , 138 S. Ct. at 1508 ; Turner , 570 S.W.3d at 274. "These are not strategic choices about how best to achieve a client's objectives; they are choices about what the client's objectives in fact are. " McCoy , 138 S. Ct. at 1508 (emphasis in original). Accordingly, the Sixth Amendment guarantees that a defendant "has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt" is in the defendant's best interest.⁴ Id. at 1505.

Defense counsel in the McCoy case conceded his client was guilty of triple murder in a bid to avoid the death penalty. Id. at 1506. McCoy "vociferously insisted that he did not engage in the charged acts and adamantly objected to any admission of guilt." Id. at 1505. The Supreme Court held that counsel violated his client's Sixth Amendment rights by overriding his client's autonomy in deciding whether to admit guilt. Id. at 1512.

In Turner , the Court of Criminal Appeals held that the defendant was entitled to a new trial under McCoy. Turner , 570 S.W.3d at 277. The court noted that the "factual similarities between [ Turner ] and McCoy are striking." Id. at 275. In both cases, defense counsel's strategy was to concede guilt to avoid a death sentence. Id. Both times, the defendant disagreed with that strategy and maintained his innocence. Id.

The Turner court addressed in tandem the interrelated issues of whether McCoy applied and whether Turner had preserved error on his McCoy complaint. Id. at 275–76. Although a defendant is not expected to object with the precision of an attorney, the court held that a defendant cannot remain silent before and during trial and raise a McCoy complaint for the first time after trial. Id. at 276. In so holding, the court stated, "[a] defendant makes a McCoy complaint with sufficient clarity when he presents ‘express statements of [his] will to maintain innocence.’ " Id. (quoting McCoy , 138 S. Ct. at 1509 ). The court focused on...