Ex Parte Cruz

DUNCAN, Judge,

dissenting.

First, the problematical and purely speculative test for ineffective assistance of *62 counsel enunciated in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) should be buried and the more responsible test stated in Ex Parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980) should be resurrected and given life under Art. I, Sections 10 and 19 of the Texas Constitution.

The problems with the Strickland two-part test are essentially twofold: initially, the first part of the test is fallacious in that it begs the question. Or, the proposition that counsel’s performance was so deficient that he “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” Id. 104 S.Ct. at 2064 , simply asserts the very point it establishes in the conclusion, [see: Brooks, et al, Modem Rhetoric, 3rd ed. (Harcourt, Brace, & World: New York, 1958), p. 221] Although the statement appears to establish its conclusion it fails to do so; thus, it is fallacious.

The second part of the Strickland test is equally fallacious in that it is purely speculative. The principle that an attorney can be deemed constitutionally ineffective only if there “is a reasonable probability that, absent the [attorney’s] errors, the fact finder would have had a reasonable doubt respecting guilt,” Strickland v. Washington, supra 104 S.Ct. at 2069 , is a proposition that is premised upon a possibility disguised as a fact. In other words, this part of the Supreme Court’s standard is based upon what might have been. “What might have been” can never be proven absolutely. It can only be the subject of speculation with varying degrees of reliability. This is hardly a premise reliable enough to gauge a constitutional standard.

The standard announced in Ex Parte Duffy, supra does not suffer the same fallacious reasoning present in Strickland . Necessitated by an appalling example of incompetence and ineffectiveness this Court, with no dissents, relied to an extent on Cuyler v. Sullivan, 446 U.S. 335 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) and stated that the proper standard to apply when judging the adequacy of representation is whether the accused was accorded reasonably effective assistance of counsel, which should be considered by the totality of the representation.

The test set forth in Duffy in it most basic sense is predicated upon observations of what did or did not occur during the representation, whereas the test in Strickland is predicated upon what might have been the consequences of one’s conduct. That rather significant difference is what makes the Duffy standard a more reliable basis for judging the adequacy of representation. Any standard one attempts to follow in judging another’s conduct may produce invalid judgments. When the standard is premised upon speculation the judgment will be invariably flawed because the test is flawed.

Notwithstanding the obvious defects in the standard set forth in Strickland v. Washington, supra, a majority of this Court has decided to mimic the Supreme Court and apply that standard to claims of ineffective assistance of counsel under Art. I, Sections 10 and 19 of the Texas Constitution. This occurred in Wilkerson v. State, 726 S.W.2d 542 (Tex.Cr.App.1986) [Clinton and Teague, JJ., dissenting] (see also: Hernandez v. State, 726 S.W.2d 53 (Tex.Cr.App.1986) (Clinton, J., Concurring Opinion; Teague, J., Concurring and Dissenting Opinion)) when this Court, without even discussing the viability of the Texas Constitution, stated that “in determining whether a defendant has received ineffective assistance of counsel, we use the standard set forth in Strickland v. Washington_” Id. at 548. In support of this conclusion the opinion noted in a footnote that this was the standard that was applied in Butler v. State, 716 S.W.2d 48 (Tex.Cr.App.1986). That was partially true. What was not noted was the following statement in Butler v. State, Id.: “Strickland interprets the Sixth Amendment to the United States constitution, and therefore establishes the minimum federal constitutional requirement of effective assistance, [citations omitted] Because we find that in this case that minimum federal constitutional standard was not met, we do not need to address the right to counsel provisions of the Texas Constitution, Art. I, Sections 10 and *63 19.” Id. at 57, fn. 2 . Therefore the authority for adopting Strickland is suspect at suspect at best and not persuasive in the least. I cannot understand why a majority of this Court is content to travel a road of blind submission. Contrary to the majority’s implicit suggestion, the Supreme Court is not “the sole repository of judicial wisdom and rationality.” State v. Jackson, 672 P.2d 255, 264 (Mont.1983) (Shea, J. dissenting).

In the case at bar it is obvious, at least to me, that the petitioner’s attorney was constitutionally ineffective. He did not know that the trial court could not grant probation if a deadly weapon was used in the offense. Art. 42.12, Sec. 3f(a)(2) V.A.C.C. P. In the absence of this basic legal knowledge he advised the petitioner to allow the Court to assess punishment. What Judge McMaster would or would not have done, or do or did not do, is irrelevant. What is relevant is that the petitioner is constitutionally entitled to make his election as to the source of punishment upon valid representations as to the state of the law. This he was not able to do because his attorney did not know the valid state of the law. In Ex parte Duffy, supra this Court stated: “A criminal defense attorney must have a firm command of the facts of the case as well as governing law before he can render reasonably effective assistance to his client in or out of the courtroom.” Id. at 516 . “[A] firm command of the ... governing law ...,” Id., in this case is something the petitioner’s attorney did not have. Therefore it would have been impossible for him to have imparted it to the petitioner; thus, his representation was not constitutionally effective. Therefore, I respectfully dissent.

TEAGUE, J., joins this opinion.