             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. AP-76,167



                     EX PARTE CARL EDDIE MILLER, Applicant



          ON APPLICATION FOR A WRIT OF HABEAS CORPUS
      CAUSE NO. 1010226-A IN THE 299TH JUDICIAL DISTRICT COURT
                        FROM TRAVIS COUNTY

      K EASLER, J., filed a concurring and dissenting opinion in which K ELLER, P.J.,
and H ERVEY, J., joined.

                    CONCURRING AND DISSENTING OPINION

       I do not agree with the majority’s decision to hold that appellate counsel was

ineffective for failing to challenge the legality of Carl Eddie Miller’s sentence. As the

majority observes, we are required to presume that counsel provided “reasonable professional

assistance” and that the “challenged action ‘might be considered sound trial strategy.’” 1 The

record indicates that trial counsel did not challenge the sequence of the enhancements

because he knew that the second offense had in fact been committed after the first



       1
           Strickland v. Washington, 466 U.S. 668, 689 (1984).
                                                                              MILLER—2
enhancement offense. So while the pen packets submitted at trial did not prove that Miller’s

first enhancement conviction was final before he committed the second enhancement offense,

the sequential enhancements were nevertheless proper. I cannot presume that appellate

counsel did not research this issue and reach the same conclusion. Knowing that Miller was

indeed subject to sequential felony enhancements, it is not unreasonable to conclude that he

made a strategic decision not to challenge the legality of Miller’s sentence on appeal. Had

appellate counsel raised the issue on appeal, the court of appeals would have granted Miller

a new punishment hearing. But prevailing under these circumstances may have been

regarded as a hollow victory. Miller would have been subject to the same sequential felony

enhancements and the same punishment range. Miller would have then faced the prospect

of receiving a harsher sentence the second time around.            Therefore, under these

circumstances, a reasonable appellate attorney could have determined that the risk to Miller

outweighed any benefit of receiving a new punishment hearing. The majority unjustifiably

concludes that counsel rendered deficient performance because the trial judge, on

resentencing, would have been precluded from assessing a sentence greater than the thirty

years originally assessed.2 But this is true only if there had been no relevant and damaging

sentencing evidence of (1) Miller’s conduct that occurred after his original sentence was

imposed or (2) evidence that the State, despite exercising due diligence, could not have




       2
       North Carolina v. Pearce, 395 U.S. 711, 723 (1969), overruled in part by
Alabama v. Smith, 490 U.S. 794, 798 (1989).
                                                                                MILLER—3
offered during the first punishment hearing.3 That the State has not offered any new

damaging punishment evidence in this proceeding does not in any way negate the fact that

it retained the option to do so on resentencing. The potential consequences involved in

challenging the legality of Miller’s sentence, which we should assume that appellate counsel

took into account, remain true today. When reassessing punishment, the trial judge will have

the opportunity to consider any skeletons in Miller’s closet that were not available when he

was first sentenced. In the end, with his original sentence at the low end of the applicable

punishment range, Miller may come to regret his decision to advance this claim on habeas.




DATE DELIVERED: October 28, 2009
PUBLISH




       3
          Pearce, 395 U.S. at 723 (“A trial judge is not constitutionally precluded . . . from
imposing a new sentence, whether greater or less than the original sentence, in the light of
events subsequent to the first trial that may have thrown new light upon the defendant’s
“life, health, habits, conduct, and mental and moral propensities.”) (quoting Williams v.
New York, 337 U.S. 241, 245 (1949)); Smith, 490 U.S. at 798.
