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Court of Criminal Appeals of Texas.


NO. WR-75,835-01

Decided: October 04, 2017

The habeas court concluded that “the proper analysis of Applicant's claims falls under Cronic,”1 obviating a need to conduct an inquiry into prejudice.2 But in our opinion on Applicant's direct appeal, this Court held that Strickland,3 rather than Cronic, controlled because “the only portions of appellant's trial that defense counsel did not participate in were presenting punishment evidence and presenting a jury argument during the punishment phase.”4 Ordinarily, when the defendant has an attorney and that attorney has been afforded the opportunity to prepare, the Cronic presumption of prejudice applies only when counsel “entirely fails to subject the prosecution's case to meaningful adversarial testing.”5 Defense counsel did not entirely fail to subject the State's punishment case to meaningful adversarial testing because she fully participated in the State's punishment case, including cross-examining witnesses. For this reason, the Supreme Court's more recent holding in Lee also does not apply because Applicant has not been deprived of an entire proceeding.6 Because our holding on direct appeal is the “law of the case,”7 the habeas court erred to rely upon Cronic. Counsel's conduct must be evaluated under Strickland's prejudice prong, and the habeas court has not done that. I would remand for findings on the issue of prejudice.

I respectfully dissent.


1.   United States v. Cronic, 466 U.S. 648 (1984).

2.   See Finding (10).

3.   Strickland v. Washington, 466 U.S. 668 (1984).

4.   Medina v. State, AP-76,036, 2011 Tex. Crim. App. Unpub. LEXIS 1, * 38-39 (Tex. Crim. App. January 12, 2011) (not designated for publication).

5.   Cronic, 466 U.S. at 659-60.

6.   See Lee v. United States, 137 S.Ct. 1958, 1965 (2017) (“But in this case counsel's ‘deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.’ ”).

7.   State v. Swearingen, 478 S.W.3d 716, 720 (Tex. Crim. App. 2015) (“According to that [‘law of the case’] doctrine, ‘an appellate court's resolution of questions of law in a previous appeal are binding in subsequent appeals concerning the same issue.’ ”).

KELLER, P.J., filed a dissenting opinion.

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