             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 dissenting opinion in which K ELLER, P.J., and H ERVEY, J.,
joined.

                       DISSENTING OPINION ON REHEARING

       I stand by my original determination. Giving deference to counsel’s strategic choices,1

I would not hold that appellate counsel was ineffective. Again, I presume that appellate

counsel, like 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 enhancement offense.

As I said before,

       Miller would have been subject to the same sequential felony enhancements
       and the same punishment range. Miller would have then faced the prospect of


       1
           Strickland v. Washington, 466 U.S. 668, 689 (1984).
                                                        MILLER DISSENT ON REH’G—2
       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 offered during the first punishment hearing.3

       Significantly, I also noted, “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 majority’s determination that the State bears the

burden, under these circumstances, to submit evidence justifying an increased sentence, in

order to rebut Miller’s ineffective assistance claim is completely inappropriate.         The

majority’s opinion is completely speculative and an academic exercise; no one can predict

exactly what will occur by the time of resentencing; circumstances justifying an increased

sentence may not have occurred yet. We should refuse to entertain such uncertainties. This

case is about trial strategy, and there was a valid strategy on counsel’s part not to challenge

the sufficiency of the enhancements on direct appeal. When the full logic behind the


       2
       North Carolina v. Pearce, 395 U.S. 711, 723 (1969), overruled in part by
Alabama v. Smith, 490 U.S. 794, 798 (1989).
       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.
                                                      MILLER DISSENT ON REH’G—3
majority’s decision here is examined, its absurdity comes shining through. Thanks to the

majority appellate attorneys are required to nail down all possibilities by inquiring to the

State about what evidence may or may not be brought in the event of a retrial under these

circumstances. But all this information cannot be known, even to the State. The Court today

imposes a standard that no appellate attorney can or should have to meet.




DATE DELIVERED: September 22, 2010
PUBLISH
