# Ex Parte Gallegos

> Court of Criminal Appeals of Texas · July 17, 1974 · 511 S.W.2d 510

URL: https://www.frixlaw.com/law-library/cases/9767894

## Case

- **Full name:** Ex Parte Daniel GALLEGOS
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 17, 1974
- **Citations:** 511 S.W.2d 510; 1974 Tex. Crim. App. LEXIS 1832
- **Precedential status:** Published
- **Opinion:** Concurrence by Roberts
- **Judges:** Onion, Roberts, Odom
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767894

## Opinion text

ROBERTS, Judge
(concurring).
I concur. The majority, relying on a recent decision of the Fifth Circuit Court of Appeals, has modified the traditional test for determining effectiveness of counsel from the majority rule of “farce-mockery” to a “reasonably effective assistance” standard. It is the ambiguity inherent in the use of the latter phrase with which I take issue. The phrase “reasonably effective assistance” is peculiar to the Fifth Circuit while most other jurisdictions pioneering this new test prefer “reasonably competent.” The word “effective” is burdened with the usual connotation of success or desired result. Such is not the test meant to be established. To rely on this ambiguous phrase is to invite confusion and require clarification in the future.
In McMann v. Richardson, 397 U.S. 759 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970) the Supreme Court of the United States chose to adopt the precise language I propose. There the appellant complained that his counsel had mistakenly assessed the admissibility of his confession and that he was erroneously advised as to the law. Justice White, speaking for the court, said:
“Waiving trial entails the inherent risk that the good-faith evaluation of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what the court’s judgment might be on given facts.” (Emphasis added)
The opinion goes on to point out that holding a confession inadmissible by a divided vote hardly justifies a conclusion that an attorney was incompetent when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty. The court proceeded to establish the standard by which competency of counsel would be judged in cases involving guilty pleas:
“In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground counsel may have misjudged the admissibility of the defendant’s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not whether a court would retrospectively consider counsel’s advice right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” (Emphasis added) See McMann v. Richardson, supra, and United States v. De Coster, 159 U.S.App.D.C. 326 , 487 F.2d 1197 (1973).
Williams v. Beto, 354 F.2d 698 (5th Cir. 1965), reasoned that the fact some other lawyer would have acted differently had he been counsel or would have followed a different course in another case is no ground for branding the attorney as incompetent. Both McMann v. Richardson, supra, and Williams v. Beto, supra, recognize that it is unreasonable to judge a lawyer by hindsight. I believe this reasoning must be an essential element in any definitive test established by this Court.
*514 The instant case, however, satisfies both tests of competency of counsel. With minimal research, any reasonably competent attorney would have discovered that Texas law requires that the accused possess an intent to permanently appropriate the jail keys and deprive the owner of their value in order to he guilty of robbery. Surely by any standard, appellant was entitled to be advised by his attorney that an essential gravamen of the offense was not present. Such a gross lack of diligence amounts to a failure to exercise reasonable competence, even to the point of reducing the trial to a farce and mockery of justice. Therefore, by either test, the appellant was clearly denied his constitutional right to competent counsel.
As to the granting of the writ, I am in complete agreement with the other members of this Court; however, I would use the more precise phrase of “reasonable competence demanded of attorneys in criminal cases.” For the foregoing reasons, I concur in the disposition of this case.
ODOM, J., joins in this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767894. Public record. Not legal advice.