            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



                         H OLCOMB, J., filed a concurring opinion.

                                          OPINION

       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.
                                                                                BURTON - Page 2

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DO NOT PUBLISH
