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Court of Criminal Appeals of Texas.


NO. WR-27,328-03

Decided: November 09, 2016


I am persuaded by the Court's opinion that applicant's claims are properly denied by this Court. I am also persuaded that we should revisit Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), but, because applicant has had a full and fair hearing in the federal courts, not in this case.

The Sixth Amendment states that “the accused shall ․ have the assistance of counsel for his defence.” We have held numerous times that trial counsel must be competent and provide effective assistance, and we have, in many cases, granted habeas corpus relief when the record supports a finding of ineffective assistance. See, e.g., Ex parte Bryant, 448 S.W.3d 29 (Tex. Crim. App. 2014); Ex parte Overton, 444 S.W.3d 632 (Tex. Crim. App. 2014); Ex parte Amerzquita, 223 S.W.3d 363 (Tex. Crim. App. 2006); Ex parte Varelas, 45 S.W.3d. 627 (2001). The United States Constitution does not state that counsel under the Sixth Amendment must be competent and provide effective assistance, yet for many decades, courts across this nation have read that requirement into the Sixth Amendment. Why, then, is that same requirement not applied to counsel on writs of habeas corpus?

An accused is entitled to file a writ of habeas corpus. United States Constitution, Article I, section 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Under this Court's case law, such a writ is, in general, the proper avenue to raise claims of ineffective assistance of trial counsel. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). For most applicants, such a writ will be the only avenue by which to seek relief on a claim of ineffective assistance. I believe that the Sixth Amendment right to “have the assistance of counsel for his defence” should be read to include the right to competent writ counsel for “his defence” of rights that are alleged to have been denied at trial.

The legislature has determined that an applicant must state all available claims in the first writ. An egregiously deficient first writ deprives an applicant of the one full and fair hearing that the legislature envisioned. Yet in general, even if trial counsel was “appallingly inept” and “egregiously deficient,”1 a convicted person is not entitled to counsel on an application for a writ, and even if writ counsel is retained or appointed, that counsel does not have to be competent in that area of law or to provide effective assistance. Ineffective assistance at trial or on appeal is bad enough, but to turn a blind eye to inept or deficient representation by writ counsel is to, de facto, abrogate Article I, section 9, of the United States Constitution.


1.   Ruiz v. Dretke, No. SA-03-CA-303-OG, 2005 WL 2620193, at *1-*2.

JOHNSON, J., filed a concurring opinion.

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