Riley v. State

JACK CARTER, Justice,

dissenting.

When Billy Dee Riley, Jr., was asked if he killed Terry Matthews, he answered, “Evidence says that.” “Q. Did the bullet that killed Terry Matthews come from your gun? A. That’s what the evidence proved. Q. So you have no dispute with that? A. It’s science.”

These events took place at a local night club where a fight began. The security guard attempted to control the altercation by spraying mace or pepper spray, but it apparently had the opposite effect. People ran out of the club, but Riley went to the console of his truck, obtained his gun, put it in his pocket, and went back inside the club building. Riley became engaged in a fight and testified, “I pulled the gun out of my back pocket. The gun ... went off two times because the safety got jammed.” Riley heard shots and began shooting over his shoulder. “And I could see flashes of the guns, and I was shooting and I shot until my gun was clear.” The deceased, *421Matthews, was unarmed. Another witness testified, “Mr. Riley was out of his car and just shooting, randomly shooting.” The forensic pathologist testified that the distance between the gun and the body was one to four feet.

These are the facts that Riley now says he would have liked to have presented to the trial judge and pled guilty and then ask the judge to defer his murder conviction and place him on community supervision. Upon successfully completing the terms of community supervision, Riley would then have no record of a conviction for this offense.

No doubt the attorneys were deficient in advising Riley that he could ask the jury for community supervision.8 The real question before us is whether there is a reasonable probability that but for that deficient advice, the result would have been different. This issue has never been presented to an appellate court so far as counsel and this Court can determine after intense research. The majority opinion quotes State v. Recer for the requisite proof in this situation. 815 S.W.2d 780, 731-32 (Tex.Crim.App.1991). In Recer, the Texas Court of Criminal Appeals found no deficient conduct by the attorney when he advised a defendant that the trial court could assess probation (community supervision) even though a jury had found the defendant used a deadly weapon which precluded such consideration. The facts of that case did not prove the attorney’s advice was not based on a valid strategy. So the Texas Court of Criminal Appeals held that the attorney’s conduct fell within proper professional standards; consequently, the dicta cited in the majority opinion is not controlling.9

We must decide, without controlling precedent, whether these facts lead to the conclusion that it is reasonably probable that if counsel had advised Riley he could plead guilty and ask the judge to defer his guilt and place him on community supervision, a different result would have occurred. I do not think so.

I agree we cannot try to analyze the particular sentencing practices of a judge, but we have the entire record before us and we are to consider what is reasonably probable. This case was hotly contested with Riley urging self-defense, reduction of the charge by a finding of sudden passion, and lesser included offenses. In order for Riley to attempt to obtain a deferred adjudication, he would have to plead guilty and waive all the possible defenses, as well as relieve the State of its burden to prove this murder beyond a reasonable doubt. Had that course of action been taken, Riley would go before the trial judge, after admitting he committed murder, to ask for deferral of the sentence. The trial judge had an opportunity to consider the merits of this allegation at the motion for new trial hearing, but denied the motion. We are to review that decision on an abuse of discretion standard.

It is Riley’s burden to prove that it is reasonably probable there would have been a different result had counsel provided accurate advice. The majority opinion details the deficient conduct, but does not explain how Riley proved that, but for such deficient conduct, a different result was *422reasonably probable. Instead, the opinion, in a conclusory fashion, states that Riley has met both prongs of the Strickland10 test. I do not believe the trial court abused its discretion in denying the motion for new trial.

I respectfully dissent.

. Experience is a great teacher, but this case points out why lawyers cannot rely on that alone. Prior law allowed a request for probation (community supervision) even in murder cases, and it seems in this case everyone was operating under that perception. The law changed in 2007. Act of April 25, 2007, 80th Leg., R.S., ch. 1205, § 3(5), 2007 Tex. Gen. Laws 4078, 4079.

. In Recer the defendant waived his right to have the jury assess punishment whereas here the defendant insisted on that right.

. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).