








 
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-75,790


EX PARTE ARTHUR LEE BURTON, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NUMBER 760321-B FROM THE 338TH DISTRICT COURT

OF HARRIS COUNTY


Holcomb, J., filed a concurring opinion.

O P I N I O N

	I respectfully disagree with the majority's determination that the particular underlying Fifth
Amendment issue in this case is unsettled.  See Majority op. at *3.  In my view, the dissent to our
2008 remand order had correctly stated:
	Estelle v. [Smith], 451 U.S. 454 (1981), is on point; unwarned statements made by
an inmate during a court-ordered psychological examination were admitted at the
penalty phase on the issue of future dangerousness.  The United States Supreme
Court held that those statements were inadmissible.  Applicant made statements
during a prison-system-ordered interrogation, and his statements were used against
him during . . . his second sentencing hearing on the issue of future dangerousness. 
Under Estelle, applicant's statements to Guyton are inadmissible.
Ex Parte Burton, AP-75,790, 2008 WL 2486459 at *3 (Tex. Crim. App. June 18, 2008) (Johnson,
J., dissenting) (not designated for publication) (parallel citations omitted).  Thus, I believe that
counsel was deficient in failing to properly object in this case.  But I do not believe that this
deficiency prejudiced applicant  under the Strickland v. Washington, 466 U.S. 668 (1984), standard
of review for determining ineffective assistance of counsel.  I, therefore, concur.

FILED: APRIL 1, 2009.
DO NOT PUBLISH
