OPINION

Opinion by Chief Justice MORRISS.

Billy Dee Riley, Jr., had been convicted of murder in a Bowie County jury trial. The punishment phase evidence had been fully received, during which the primary defense strategy had been to seek community supervision for Riley. In fact, Riley's attorneys had advised him before and during trial that he was qualified to ask for community supervision. But, during the charge conference on punishment, his defense team was surprised to discover that Riley was not eligible for community supervision because he had opted to try the case to the jury. The jury assessed punishment of fifty years' imprisonment.

After seeking and being denied a new trial, Riley appeals the trial court's judgment sentencing him in accordance with the jury's verdict. Riley complains of ineffective assistance of counsel and other grounds.1 Because we agree with Riley that his counsel's advice regarding availability of community supervision by a jury constituted ineffective assistance of counsel, we reverse and remand for a new trial based on this dispositive issue alone.

Any allegation of ineffectiveness of counsel must be firmly founded in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.-Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex.Crim.App.2003). Riley bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984).

We apply the two-pronged Strickland test handed down by the United States Supreme Court to the claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n. 14 (Tex. Crim.App.2006).

Because Riley's challenge was made to the trial court in a motion for new trial, we analyze the ineffective assistance claim as a challenge to the denial of his motion for new trial. Charles v. State, 146 S.W.3d 204, 208-10 (Tex.Crim.App.2004), superseded by rule on other grounds by State v. Herndon, 215 S.W.3d 901 (Tex. Crim.App.2007); Shanklin v. State, 190 S.W.3d 154, 158 (Tex.App.-Houston [1st Dist.] 2005), pet. dism'd, 211 S.W.3d 315 (Tex.Crim.App.2007) (reversing for new trial on punishment due to counsel's failure to investigate and present mitigating evidence); State v. Kelley, 20 S.W.3d 147, 151 (Tex.App.-Texarkana 2000, no pet.) (grant of motion for new trial based on ineffective assistance was proper). Therefore, we review the Strickland test through an abuse of discretion standard, and reverse only if the trial court's decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling. Shanklin, 190 S.W.3d at 158-59. A trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Charles, 146 S.W.3d at 208.

First, Riley must show that counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy. Id. at 689, 104 S.Ct. 2052; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim.App.2004); Tong v. State, 25 S.W.3d 707, 712 (Tex.Crim.App.2000). Therefore, we will not second-guess the strategy of Riley's counsel at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim.App.1979); Hall v. State, 161 S.W.3d 142, 152 (Tex.App.-Texarkana 2005, pet. ref'd).

Riley's motion for new trial asserted ineffective assistance of counsel and was supported by live testimony and by two affidavits considered by the trial court. The affidavit of Riley's lead counsel, Kyle Davis, stated:

Riley's affidavit stated:

At the hearing on the motion for new trial, Tyler testified that he advised Riley that he would be eligible for community supervision if convicted of murder, that he first became aware of the mistake "after the punishment evidence had been put on but before closing arguments in the punishment phase," and that "the whole punishment phase of the trial, the defense evidence put on was basically arguing for probation." Even the prosecutor testified he was not aware that Riley could not receive community supervision from the jury.

After considering the affidavits of Riley and his counsel and the hearing testimony, the trial court overruled the motion for new trial. Based on this record, we consider Riley's claim of ineffective assistance.

It is undisputed that counsel's belief that Riley could receive community supervision in the event of a murder conviction was erroneous. Sections 3g and 4(d)(8) of Article 42.12 prevent a judge or jury from ordering or recommending community supervision following a conviction of murder. TEX.CODE CRIM. PROC. ANN. art. 42.12, §§ 3g, 4(d)(8) (West Supp.2010). On the other hand, Section 5 of Article 42.12 allows a judge to enter deferred adjudication community supervision after receiving a plea of guilty or nolo contendere to a charge of murder. TEX.CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp.2010); see Cabezas v. State, 848 S.W.2d 693, 695 (Tex.Crim.App.1993). Counsel's misunderstanding on this critical point is documented in the "application for community supervision from the jury" and the fact that each of five punishment witnesses testified on subjects relating to community supervision.

Counsel has a duty to exert best efforts to ensure that the client's decisions are based on correct information as to the applicable law. Ex parte Wilson, 724 S.W.2d 72, 74 (Tex.Crim.App.1987). "An attorney's failure to give competent advice to a defendant which would promote an understanding of the law in relation to the facts and which would permit an informed and conscious choice is error." Gallegos v. State, 756 S.W.2d 45, 48 (Tex.App.-San Antonio 1988, pet. ref'd) (after denial of motion for new trial, sister court found counsel ineffective for failing to inform defendant, charged with Article 42.12, Section 3g offense, that his waiver of assessment of punishment by jury would foreclose possible community supervision) (citing Ex parte Morse, 591 S.W.2d 904, 905 (Tex.Crim.App.1980)).

"In assessing competence, we [hold] counsel accountable for knowledge, or the ability to attain knowledge, of relevant legal matters which are neither novel nor unsettled." Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.1999). Whether Riley was eligible for community supervision from the jury was a settled matter of law that was readily ascertainable. During the hearing on the motion for new trial, although the State asked whether Riley went to trial based on the trial strategy of using self-defense, counsel did not testify that his failure to inform Riley he was ineligible for deferred adjudication was due to any trial strategy.2 Because there is no evidence suggesting that counsel's failure to inform Riley on this settled matter of law could be considered reasonable trial strategy, the only ruling which could have been made in light of the evidence presented was that counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms. We conclude that the first Strickland prong has been met.

The second Strickland prong, prejudice, requires a showing that, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Reasonable probability means a "probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. Strickland's second prong carries a lower burden of proof than the preponderance of the evidence. See Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir.1990); Strickland, 466 U.S. at 694, 104 S.Ct. 2052. An appellant need not show that counsel's deficient performance more likely than not altered the outcome of the case. Milburn v. State, 15 S.W.3d 267, 269 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd).

In State v. Recer, 815 S.W.2d 730 (Tex.Crim.App.1991), the Texas Court of Criminal Appeals held that

Id. at 731-32.

We have already established that counsel misunderstood the law regarding deferred adjudication community supervision and that his advice to Riley could not have been based on a valid trial strategy, given the evidence before the trial court. Also, in this case, it is undisputed that Riley was initially eligible to be considered for deferred adjudication community supervision from the trial court.4 Riley's affidavit, and the affidavit of his counsel read into the record at the hearing—both of which the trial court considered as evidence—stated that, absent counsel's erroneous advice, Riley would have pled nolo contendere and would have asked the trial court for deferred adjudication community supervision. The evidence of Riley's plea had he received the proper advice was not disputed by the State.

Therefore, the evidence has conclusively shown that: (1) Riley could have been eligible to be considered for community supervision; (2) counsel's advice to use the jury for sentencing was not part of a valid trial strategy; (3) Riley's decision to use the jury for punishment was based on counsel's erroneous advice; and (4) Riley's decision would have been different if counsel had correctly informed him of the law regarding community supervision. Recer, 815 S.W.2d at 731; Garcia v. State, 308 S.W.3d 62 (Tex.App.-San Antonio 2009, no pet.); Isham, 258 S.W.3d at 252.

Riley also argues that, under Hill, his plea was involuntary. "[T]he voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Moody, 991 S.W.2d at 857-58 (citing generally Hill, 474 U.S. 52, 106 S.Ct. 366; Strickland, 466 U.S. 668, 104 S.Ct. 2052; McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App.1997)). These cases present opposite factual scenarios in which the defendant has pled guilty. They are predicated on the theory that the defendant has given up a valuable right—the right to a jury trial.

Here, Riley cannot argue that he gave up the valuable right to a jury trial; however, counsel's action did foreclose the possibility of deferred adjudication community supervision. "The right to [community supervision] is valuable." Thompson v. State, 604 S.W.2d 180, 182 (Tex.Crim.App. [Panel Op.] 1980) (citing Trevino v. State, 577 S.W.2d 242, 243 (Tex.Crim.App.1979)). Again, while the following cases present a reverse scenario in which the defendants pled guilty based on erroneous advice from counsel that they could receive community supervision from the trial court, we have found the Strickland second prong met where counsel's advice foreclosed any opportunity for community supervision. See Hart v. State, 314 S.W.3d 37, 44-45 (Tex. App.-Texarkana 2010, no pet.) (citing Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim. App.1991)); Cardenas v. State, 960 S.W.2d 941, 946-47 (Tex.App.-Texarkana 1998, pet. ref'd); see also Garcia, 308 S.W.3d at 73.

Here, the defense team's misunderstanding of the law foreclosed Riley's possibility of receiving deferred adjudication. Because the statute allowed a trial court to impose deferred adjudication community supervision for murder—a possibility deemed reasonable by the Legislature— and counsel's advice foreclosed this option, which the trial court otherwise would have been required to consider, we find, and the uncontested evidence at the motion for new trial demonstrated, there was a reasonable probability that the result of the proceeding would have been different absent the erroneous advice. A finding to the contrary would require us to speculate, without support in the record, regarding whether the trial court would have awarded deferred adjudication community supervision if given the option.5 That speculation would necessarily have us considering "evidence about the actual process of decision... not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices"—an exercise forbidden to us. See Strickland, 466 U.S. at 695, 104 S.Ct. 2052.

Because Riley6 has met both prongs of the Strickland test, we sustain his first issue on appeal.7 Accordingly, the trial court's judgment is reversed, and this case is remanded to the trial court for a new trial.

Dissenting Opinion by Justice CARTER.

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, Matthews, 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 730, 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 reasonably 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.