Burch v. Texas (original by judge hervey)Annotate this Case
The court of appeals held that the trial court abused its discretion when it denied Dan Dale Burch’s motion for new trial. 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.” 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. 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. The issue in this case was 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. The Texas Court of Criminal Appeals concluded 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.