            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 FROM 338TH
                  DISTRICT COURT OF HARRIS COUNTY



      Per curiam. H OLCOMB, J., filed concurring a opinion. P RICE, J., concurred.
J OHNSON, J., dissented.

                                       OPINION

       In 1998, a jury found Arthur Lee Burton guilty of capital murder and sentenced him

to death. On October 8, 1998, while housed on death row, Burton was interviewed by prison

sociologist J.P. Guyton as part of a routine “classification interview.” During the interview,

Guyton asked Burton why he committed the murder. In response, Burton said, “Just

something I couldn’t help.”

       In 2001, we affirmed Burton’s conviction on direct appeal but vacated the sentence
                                                                                 BURTON—2

and remanded the cause to the trial court for a retrial on punishment.1

       On retrial, the State introduced, and the trial judge admitted, the statement that Burton

made to Guyton explaining why he committed the murder. Based on the jury’s answers to

the special issues, Burton was sentenced to death for a second time on September 6, 2002.

       Burton appealed, alleging, among other things, that the trial judge violated his rights

under the Fifth Amendment to the United States Constitution by admitting the statement he

made to Guyton.2 We held that Burton failed to preserve this claim for appellate review.3

And after overruling Burton’s remaining points of error, we affirmed his death sentence.4

       On December 1, 2003, Burton filed an application for a writ of habeas corpus

challenging the validity of the punishment retrial on four grounds. On November 7, 2007,

we filed and set Burton’s second ground for review—that his trial counsel rendered

ineffective assistance for failing to properly object to Guyton’s testimony under the Fifth

Amendment. On December 4, 2007, the State filed a “Motion Requesting Clarification of

Court’s November 7, 2007 Order.” Consequently, on December 19, 2007, we ordered the

parties to submit briefs addressing the following issues:



       1
        Burton v. State, No. AP-73,204 (Tex. Crim. App. Mar. 7, 2001) (not designated
for publication).
       2
         Burton v. State, No. AP-73,204 (Tex. Crim. App. May 9, 2004) (not designated
for publication).
       3
           Id. at *6.
       4
           Id. at *8.
                                                                                 BURTON—3

               (1) whether all questions asked and answers or statements
               obtained in a classification interview are admissible in court, or
               whether some questions asked and answered or statements
               obtained can exceed the scope of a permissible classification
               interview and become products of custodial interrogation;

               (2) whether the question of why applicant committed the instant
               crime exceeded the permissible scope of the classification
               interview and became custodial interrogation; and

               (3) whether applicant’s counsel performed deficiently when he
               failed to specifically object to the testimony on this basis at
               trial.5


       On June 18, 2008, we remanded the case for the trial judge to consider evidence and

hear arguments relevant to “custody” 6 and Guyton’s status as a state agent7 for purposes of

the Fifth Amendment.

       The trial judge returned the case to us on December 31, 2008. After thoroughly

reviewing the parties’ briefs, the trial judge’s findings of fact and conclusions of law, as well

as the relevant case law, we cannot fault Burton’s trial counsel for failing to object. This

particular underlying Fifth Amendment issue is unsettled; therefore, counsel cannot be found




       5
        Ex parte Burton, AP-75,790 (Tex. Crim. App. Dec. 19, 2007) (not designated for
publication).
       6
           See Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007).
       7
         See Estelle v. Smith, 451 U.S. 454 (1981); Wilkerson v. State, 173 S.W.3d 521
(Tex. Crim. App. 2005).
                                                                        BURTON—4

deficient under the facts involved here.8 Relief is therefore denied.


DATE ISSUED: April 1, 2009
DO NOT PUBLISH




       8
        See Ex parte Chandler, 182 S.W.3d 350, 359 (Tex. Crim. App. 2005) (citing Ex
parte Welch, 981 S.W.2d 183, 184 (Tex. Crim. App. 1998); Vaughn v. State, 931 S.W.2d
564, 567 (Tex. Crim. App. 1996); Calderon v. State, 950 S.W.2d 121, 133 (Tex.
App.—El Paso 1997, no pet.); Saucedo v. State, 756 S.W.2d 388, 393-94 (Tex.
App.—San Antonio 1988, no pet.)).
