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Click here for the full text of this decision FACTS:In this application for habeas corpus, the applicant was certified to stand trial as an adult for a murder that he committed when he was 15 years old. A jury convicted applicant of this offense and sentenced him as a first-degree felon to 40 years in prison after rejecting his claim that he murdered the victim under the immediate influence of sudden passion, a second-degree felony. Before trial, the applicant’s trial counsel timely filed an unsworn motion for community supervision. This unsworn motion stated that applicant was not a convicted felon. Applicant’s trial counsel also requested a jury instruction on probation at the punishment phase of applicant’s murder trial. The trial court denied this requested jury instruction, not because appellant’s motion for probation was unsworn, but because applicant had a previous juvenile delinquency adjudication for an unauthorized use of a vehicle, which the trial court believed made applicant ineligible for probation. The applicant complained of this ruling on direct appeal, but the court of appeals declined to review the merits of this ruling because applicant’s motion for probation was unsworn. In this proceeding, the convicting court found that applicant’s trial counsel performed deficiently by filing an unsworn motion for probation which resulted in the court of appeals not reviewing the merits of the trial court’s ruling that applicant was ineligible for probation. The convicting court also found that, had the court of appeals reviewed the merits of this ruling, there is a reasonable probability that it would have reversed applicant’s sentence and remanded the case for a new punishment hearing. HOLDING:Denied. Applicant alleges that he was prejudiced in two ways from trial counsel’s filing an unsworn motion for probation. He alleges that his sentencing jury was prevented from considering probation during its deliberations. He also alleges that the court of appeals did not review the merits of the trial court’s ruling that applicant was ineligible for probation because of his prior juvenile delinquency adjudication for the unauthorized use of a motor vehicle offense. Applicant’s allegations of prejudice in this case do not address the central issue of prejudice under Strickland v. Washington, 466 U.S. 668 (1984), which is whether there is a reasonable probability that applicant’s sentencing jury would have recommended probation had the issue been submitted to it. The court notes that the record reflects that the jury sentenced applicant to 40 years in prison, which is considerably more than 10 years in prison, referring to Texas Code of Criminal Procedure Article 42.12, �4(d)(1) (defendant not eligible for probation if jury sentences him to more than 10 years in prison) and Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App. 1981). OPINION:Hervey, J.; Keller, PJ., Meyers, Keasler and Cochran, JJ., joined. DISSENT:Holcomb, J., filed a dissenting opinion in which Price, Womack and Johnson, JJ., joined. “In Snow [Snow v. State, 697 S.W.2d 663 (Tex. App. - Houston [1st Dist.] 1985)], the court of appeals explained the”gravitational influence’ that the probation option may have had on a jury’s ultimate verdict:”[T]here is a reasonable probability that a jury instruction concerning probation would have altered the outcome of the punishment by influencing the jury to seriously consider lower sentence that 10 years imprisonment. The right to be considered for probation is valuable, even if probation is not given, because the jury instruction concerning probation forcefully directs the jury’s attention to the lowest punishment allowed by law.’ “I would ‘overrule’ Mercado and follow Snow. . . . “The process here has not been fair as contemplated by Strickland. See id. Moreover, the record reflects an unreliable result due to a breakdown in the adversarial process, which had more than a mere conceivable affect on the outcome of the proceeding. See id. at 693. Because I do not believe that the proceedings produced a”just result’ in this case, I respectfully dissent.”

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