Van Eldon German v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-94-192-CR

VAN ELDON GERMAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 21,909-272

OPINION ON MOTION FOR REHEARING

Following this court's reversal and remand for resentencing, the State filed a motion for rehearing. We will deny the motion, but write briefly regarding two of the points presented.

In its first point the State argues that "a direct appeal is not the proper vehicle for claiming ineffective assistance of counsel in a prior conviction used for enhancement purposes," citing McIntosh v. State, 686 S.W.2d 759 (Tex. App. Houston [1st Dist.] 1985, no pet.), and Shipley v. State, 828 S.W.2d 475 (Tex. App. El Paso 1992, pet. ref'd). We held that, under Galloway, German could by direct appeal invoke the review of his collateral attack on a prior conviction. See Galloway v. State, 578 S.W.2d 142, 143 (Tex. Crim. App. 1979).

In Shipley, the El Paso court of appeals paid lip service to Galloway, noting that a direct appeal is a permissible method for review of a collateral attack on a prior void conviction, but then stated that the proper vehicle for an ineffective assistance claim is habeas corpus (citing McIntosh). The court reasoned that only if counsel's representation was "so deficient to amount to absolutely no assistance of counsel" could he prove a constitutional flaw allowing collateral attack. Shipley, 828 S.W.2d at 478. Because the right to effective assistance of counsel, not just counsel, is guaranteed by both the United States and Texas constitutions, we cannot accept the Shipley court's rationale for refusing to review the appellant's claim.

The court in McIntosh, also ignoring Galloway, summarily dismissed without discussion the availability of collateral attack, stating that "[c]learly, the proper procedure for collaterally attacking a prior judgment on ineffective assistance of counsel grounds is through writ of habeas corpus." McIntosh, 686 S.W.2d at 764 (citing Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980)). The McIntosh court and the State misread Duffy. A reading of the entire opinion reveals an acknowledgment by the Court of Criminal Appeals that "in most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not in a shape . . . [and] collateral attack may be just the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record." Duffy, 607 S.W.2d at 513. Duffy sanctioned the use of a collateral attack. Id.

Although German's appeal is a direct appeal from an aggravated-assault conviction, it encompasses a review of his collateral attack on his prior burglary conviction the proceeding in which he alleges that ineffective assistance was rendered. Just as a record of ineffective assistance is developed in a habeas proceeding, the record developed in German's aggravated-assault proceeding established his claim of ineffective assistance in the prior burglary case. Therefore, not only does Court of Criminal Appeals precedent authorize a collateral attack based on ineffective assistance of counsel, but the practical considerations of Duffy do not apply in this case. See Galloway, 578 S.W.2d 142; Duffy, 607 S.W.2d 507.

The State, in its fourth point, argues that the standard of review set forth in Meraz is not the correct standard for review of a claim of ineffective assistance of counsel. See Meraz v. State, 785 S.W.2d 146, 155 (Tex. 1990). The State argues that, because Meraz addresses only the review of an "affirmative defense or other fact issue," it cannot apply when the court is faced with a mixed question of law and fact, which is how the ineffective assistance issue has been treated. See Jackson v. State, 766 S.W.2d 504 (Tex. Crim. App. 1985).

The Court of Criminal Appeals has recognized the danger of applying only the Jackson standard of review when an appellant, the defendant below, had raised a defensive issue such as insanity or incompetency. See Van Gilder v. State, 709 S.W.2d 178 (Tex. Crim. App. 1985); Combs v. State, 643 S.W.2d 709, 716 n. 1 (Tex. Cr. App. 1982). The court has honed the standard of review until finally creating and implementing the Meraz standard. See Meraz, 785 S.W.2d at 155. We believe that the reasons which the court gave for holding that Jackson does not apply to an "affirmative defenses or other fact issue where the law has designated that the defendant has the burden of proof by a preponderance of the evidence" must also apply to review of a claim of ineffective assistance of counsel. Even though ineffective assistance of counsel is a mixed question of law and fact, it is an issue upon which the law has placed the burden of proof by a preponderance of the evidence on the defendant. Thus, we applied Meraz. See id. Having considered the preceding points and all others presented and finding them without merit, we deny the State's motion for rehearing.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Motion for Rehearing Denied

Opinion delivered and filed August 2, 1995

Do not publish