           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                    NO. PD–0777-08



                        GERALD WAYNE SMITH, Appellant

                                            v.

                                THE STATE OF TEXAS

            ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE TENTH COURT OF APPEALS
                          MCLENNAN COUNTY

              M EYERS, J., filed a dissenting opinion.

                               DISSENTING OPINION

       In Hernandez, the majority overruled the “reasonably effective assistance of

counsel” standard from Ex Parte Duffy in favor of Strickland’s requirement that a

defendant show that he was prejudiced by his attorney’s deficient performance.1 What’s

more, the majority in Hernandez gave no reason for abandoning the Duffy standard, only

stating: “[W]e perceive no valid reason why Strickland cannot apply, or why a different


       1
       See Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Ex Parte Duffy, 607
S.W.2d 507 (Tex. Crim. App. 1980); Strickland v. Washington, 466 U.S. 668 (1984).
                                                                         Smith dissent–Page 2

rule should apply, to noncapital sentencing proceedings.” Hernandez, 988 S.W.2d at 772.

The obvious reason for applying a different rule to claims involving ineffective assistance

at punishment is that the Strickland standard is a barrier that cannot be met in this context.

       In the ten years since we switched from Duffy’s “reasonably effective assistance of

counsel” to the Strickland standard, we have not granted relief in a single case raising

ineffective assistance of counsel at punishment. Basically, as long as the sentence is

within the normative punishment range, the Court can say that the defendant has not

shown harm. Thus, even if a defendant receives substandard representation, it is

impossible for him to show that his sentence would be different if his counsel had not

been deficient.

       In Hernandez, I joined Judge Price’s dissent to the majority’s application of the

Strickland prejudice standard to noncapital sentencing proceedings. Now writing for the

majority, Judge Price perpetuates that unworkable standard. Therefore I respectfully

dissent.




                                                  Meyers, J.

Filed: June 17, 2009

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