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Court of Criminal Appeals of Texas.

Kim Allen MILBURN, Appellant, v. The STATE of Texas.

No. 1089-98.

Decided: October 20, 1999

Kim Allen Milburn, pro se. Brian Wice, Attorney of record, Houston, for Appellant. Betty Marshall, Assist. State's Attorney, Austin, Rikke Burke Graber, Assist. DA, Houston, Matthew Paul, State's Atty., Austin, for the State.


Appellant was convicted of possession with intent to deliver a controlled substance, and his punishment was assessed at confinement for forty years and a fine of $75,000.   This conviction was affirmed in part and reversed for a new punishment hearing.  Milburn v. State, 973 S.W.2d 337 (Tex.App.-Houston [14 th Dist.] 1998).   Appellant, the District Attorney, and the State Prosecuting Attorney filed petitions for discretionary review.

The District Attorney's petition and ground two of the State Prosecuting Attorney's petition challenge the Court of Appeals' holding that ineffective assistance of counsel affecting the punishment phase requires reversal under Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980), without regard to the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   At the time the Court of Appeals decided this case, it did not have the benefit of our opinion in Hernandez v. State, 988 S.W.2d 770 (Tex.Crim.App.1999), which abandoned the Duffy standard and held that the Strickland test applies to claims of ineffective assistance of counsel at both stages of trial.

Accordingly, we grant the District Attorney's petition and ground two of the State Prosecuting Attorney's petition, vacate the Court of Appeals' judgment, and remand for reconsideration in light of Hernandez.   The State Prosecuting Attorney's first ground for review and Appellant's petition for discretionary review are refused.

The opinion of the Court was delivered PER CURIAM.

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