CCA clarifies Ineffective Assistance of Counsel Standard

Bailey McGowan, Volume 50 Online Editions Editor


The issue in this case was what standard a court should use for an ineffective-assistance-of-counsel claim. The Court of Criminal Appeals held a court should look at the totality of the record to determine if the attorney’s performance was deficient.

In Miller v. Texas, Miller was charged with aggravate sexual assault of a child as well as indecency with a child by sexual contact. On his counsel’s advice, Miller waived his right to a jury trial, pleaded not guilty, and a trial court found him guilty, sentencing him to more than twenty years imprisonment. Miller claimed his counsel wrongly advised him to waive his right to a jury trial to try to get probation.

An ineffective-assistance-of-counsel claim standard comes from Strickland v. Washington.  That Supreme Court case says counsel’s performance must fall below an objectively reasonable standard for professional norms and, but for such performance, there is a reasonable probability the outcome would have been different. The Court of Criminal Appeals went on to clarify that even when looking at whether a defendant would have plead guilty, the court should still consider the totality of the record to determine if counsel’s performance was deficient enough to qualify as a prejudice to the outcome of the proceedings.

Here, the Court of Criminal Appeals held no reasonable jury would sentence Miller to probation based on the record. Additionally, the plurality determined the denial of a new trial was appropriate because the trial judge was within the range for sentencing and was based on certain egregious factors.

The dissent took issue with the idea there would not have been a different outcome based on the totality of the record. Rather, the dissent considered the fact Miller would have had a jury trial, rather than a bench trial, if his counsel had been effective. Based on the possibility of a jury trial, the dissent would have remanded the case.

Miller v. Texas, No. PD-0891-15 (Tex. Apr. 26, 2017).