I reluctantly concur. Appellate counsel, in oral submission, advanced a further criticism of trial counsel's representation. That was the decision to elect to have the judge assess punishment. While it is ultimately an accused's decision to waive trial by jury at either or both stages in a criminal proceeding, that accused must rely upon his counsel for competent advice in making that critical decision.
Appellate counsel suggested that this defendant was rendered ineffective assistance by his trial counsel because trial counsel had never handled a felony case in Montgomery County and did not know the attitude or "track record" of the trial judge in these types of offenses. Appellate counsel raises a valid point. How can an attorney assist the client in making an informed decision if the attorney has not garnered all the relevant facts? Certainly knowing the attitude and previous "track record" of the judge is crucial in determining whether to waive a jury.
The record reflects trial counsel admitted he made no check or study on Montgomery County judges in general or the trial judge in particular. Appellate counsel suggested that if such an inquiry had been made, it would have shown that the trial judge would have been unlikely to grant probation, much less deferred adjudication. However, the record is silent in this regard.
If appellant's counsel had advanced this theory in his brief and produced evidence in support of this theory, then this concurrence would likely be a dissent. Because he did not, I must concur.