# Hernandez v. State

> Court of Criminal Appeals of Texas · April 14, 1999 · 988 S.W.2d 770

URL: https://www.frixlaw.com/law-library/cases/9770160

## Case

- **Full name:** Mickey Thomas HERNANDEZ, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 14, 1999
- **Citations:** 988 S.W.2d 770; 1999 Tex. Crim. App. LEXIS 33; 1999 WL 212791
- **Precedential status:** Published
- **Opinion:** Concurring in part by Mansfield
- **Judges:** McCormick, Keller, Holland, Womack, Keasler, Mansfield, Price, Meyers, Johnson
- **Cited by:** 1,617 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/9770160

## How later opinions describe it (automated extraction)

- stating that Strickland applies to punishment phase of trial and overruling Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980) which was previously used to evaluate effectiveness of counsel during punishment phase
- stating that Strickland applies to both the guilt/innocence and punishment phases of trial and overruling Ex Parte Duffy which was previously used to evaluate effectiveness of counsel during punishment phase
- holding that the test enumerated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) applies to penalty phase as well as guilt and innocence phase of trial

## Opinion text

MANSFIELD, J.,
delivered the
concurring and dissenting opinion.
For the reasons expressed in my concurring opinion in State v. Ibarra, 953 S.W.2d 242 (Tex.Crim.App.1997), I believe that overruling Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980), would do violence to the principle of stare decisis. Stare decisis compels us to overrule precedent only where the reasons for doing so are compelling, i.e., it has become unworkable or has led to injustice. I am not convinced that application of the Duffy standard to determine whether counsel has rendered ineffective assistance at the punishment phase of a noncapital trial has led to injustice, the overturning of significant numbers of convictions or that it has become unworkable.
However, in my opinion, the Duffy standard does not apply to errors made by counsel during the guilt/innocence phase of a non-capital trial when such errors could have at most an indirect or ancillary impact on the effectiveness of assistance rendered by counsel at the punishment phase. 1 Furthermore, in light of the overwhelming evidence of guilt presented at trial, the outcome probably would not have been different even had counsel rendered flawless performance. Given the totality of representation test under Duffy, it appears appellant did not meet his burden, under Duffy, of demonstrating that his counsel was ineffective to the extent that he is entitled to a new punishment hearing.
Accordingly, I would reverse the judgment of the court of appeals and thus concur with the opinion of the majority to that extent. I would also remand the cause to the court of appeals to determine whether Duffy applies to errors made during the guilt/innocence phase by counsel when such errors have at most an indirect or ancillary effect on the punishment phase. I would further order the court of appeals to apply the totality of representation test as part of its determination as to whether appellant received effective assistance of counsel at the punishment phase. See Ex parte Walker, 777 S.W.2d 427, 431 (Tex.Crim.App.1989). I respectfully dissent to that portion of the Court’s opinion overruling Duffy.
. Whether counsel rendered constitutionally ineffective assistance at the guilt/innocence phase is determined by application of the standards set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9770160. Public record. Not legal advice.