Strickland v. Washington, 466 U.S. 668 (1984). 1

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 299 JUDICIAL DISTRICT COURT TH

FROM TRAVIS COUNTY

COCHRAN, J., delivered the opinion of the court in which MEYERS, PRICE, WOMACK,

JOHNSON and HOLCOMB, JJ., joined. KEASLER, J., filed a concurring and dissenting

opinion in which KELLER, P.J., and HERVEY, J., joined.

OPINION

In this habeas corpus proceeding, applicant claims that both his trial and appellate attorneys

provided ineffective assistance of counsel that prejudiced his rights. The habeas judge made 1

findings of fact, conclusions of law, and a recommendation that this Court grant relief. We accept

the habeas judge’s findings of fact, but we disagree with some of his legal conclusions. Based on

the habeas judge’s factual findings and the applicable law, we conclude that applicant is not entitled

to relief on his ineffective assistance of trial counsel claim, but he is entitled to relief on his
Miller Page 2

ineffective assistance of appellate counsel claim.

I.

A. Factual Background.

Applicant, Carl Miller, was charged with murder for the stabbing death of Terry Burleson,

a bail bondsman and member of a motorcycle club called “The Humping People.” At trial, the

evidence was undisputed that applicant killed Burleson. The only issue was whether he did so in

self-defense. 

The fifty-year-old applicant testified that, on Saturday, August 18, 2000, he “made the

rounds” to bid farewell to friends and family before going home to California the next day. He

followed a friend to the Aristocrat Club, but he stayed outside because he did not have the $5.00

cover charge. He started talking to some young women. Soon, Burleson walked up, said that the

women were with him, and cursed at applicant. The two men exchanged words; then Burleson

invited applicant to go around the corner to “talk.” James Cleveland, a friend of Burleson’s and a

fellow motorcycle club member, followed the two men around the corner and onto a concrete slab

behind the club. 

Applicant and Burleson had already begun to fight when Cleveland came around the corner.

Cleveland saw applicant “swinging,” and then Burleson kicked applicant about three times. 

Applicant also testified that Burleson kicked him twice in the chest and once in the leg, causing him

to fall backwards. Applicant explained that he could not run away due to a leg brace he wore

because of injuries from a motorcycle accident. He said that he feared for his life, so he pulled out

his knife and stabbed Burleson in the chest and head “three or four times.” He “leaned” into

Burleson as he stabbed him, pushing the blade in almost three inches, piercing Burleson’s aorta, vena
Miller Page 3

 The autopsy report stated that Burleson had “acute ethanol intoxication” at the time of 2

death.

cava, and heart. Burleson was unarmed; his blood-alcohol level at the time of death was 0.14.

Applicant and Burleson had never met before, and applicant knew nothing about Burleson.

 At trial, the defense offered significant evidence of Burleson’s character for violence when drinking2

from four different witnesses. 

* Robbie Davis, who had dated Burleson more than a decade earlier, said that she and

Burleson had been members of the same motorcycle club. She testified that Burleson

was very jealous and became physically violent when he had been drinking.

* Douglas Hurst, applicant’s former brother-in-law, testified that Burleson had a

reputation for violence when he had been drinking.

* Glenn Crawford, applicant’s cousin, testified that he had heard that Burleson was

“someone you wouldn’t want to be around because of his temper and violence,” and

that he was especially violent after drinking.

* Lee Arthur Thomas, who had known applicant for thirty years and Burleson for ten,

testified that Burleson was violent and “very aggressive,” as well as loud and profane

when he had been drinking.

On rebuttal, the State called Deputy Darrell Galloway, Burleson’s best friend and a fellow

member of “The Humping People.” He said that Burleson was “nice. He respects people. He’ll go

out of his way to help you. And he never harmed anyone.” 

The jury rejected applicant’s self-defense claim and convicted him of murder. The judge

found the two enhancement paragraphs true and sentenced applicant to thirty years in prison. 

On appeal, applicant raised four points of error: (1) the sufficiency of the evidence to reject

his self-defense claim; (2) the trial court’s failure to grant a mistrial based on a comment by the

prosecutor that applicant had “a shackle on his leg because he murdered a man”; (3) the trial court’s

failure to grant a new trial based on that prosecutor’s comment; and (4) the trial court’s failure to
Miller Page 4

Miller v. State, No. 03-01-00362-CR, 2002 WL 1987453, 2002 Tex. App. LEXIS 6310 3

(Tex. App.—Austin August 30, 2002) (not designated for publication).

 After this Court reviewed the habeas materials as originally delivered, we remanded the 4

case to the habeas court to determine whether the doctrine of laches barred applicant’s claim

concerning his appellate counsel. The habeas judge concluded that, although applicant’s

appellate counsel had died in 2006, laches did not bar applicant’s claim.

grant his motion for instructed verdict. The court of appeals rejected applicant’s claims and affirmed

his conviction and sentence.3

B. The Application for a Writ of Habeas Corpus and the Habeas Judge’s Findings.

Applicant filed a post-conviction application for a writ of habeas corpus five-and-a-half years

after his conviction became final. He claimed that his trial counsel provided ineffective assistance

of counsel because (1) he “failed to object to the prosecutor informing the jury that applicant was

shackled during trial”; and (2) he “failed to present testimony regarding prior acts of violence

committed by the deceased and his companion.” He also claimed that his appellate counsel provided

ineffective assistance of counsel because he “failed to raise the issue that the evidence was

insufficient to prove that applicant’s 1976 burglary conviction was for an offense committed after

his 1972 possession of heroin conviction became final.”

Trial counsel submitted an affidavit disputing his alleged ineffectiveness and explaining his

strategic decisions at trial. Appellate counsel had died a year and a half before applicant filed his

application and thus could not defend his actions or strategic decisions.

The habeas judge held a hearing at which trial counsel and his investigator testified. The

habeas judge then made written findings of fact and conclusions of law. He concluded that 4

applicant’s trial counsel made a strategic decision not to object to the prosecutor’s comment

concerning applicant’s shackles and that, in any event, applicant was not prejudiced by that
Miller Page 5

 466 U.S. at 687 (“This requires showing that counsel made errors so serious that counsel

5

was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”).

comment. The habeas judge also found that applicant’s trial counsel was not ineffective for failing

to discover and offer evidence concerning prior acts of violence by James Cleveland, who had

accompanied Burleson to the fight, and, according to applicant, had blocked any possible escape

route from the fight. We agree with those factual findings and legal conclusions. 

The habeas judge found that trial counsel provided constitutionally ineffective assistance

because he failed to discover and offer evidence that Burleson had been convicted of misdemeanor

assault in 1982 for stabbing a man named Chris Hanson. The habeas judge concluded that applicant

was prejudiced by this failure and recommended that applicant be granted relief on this claim. The

habeas judge also found that applicant’s appellate attorney was ineffective because he failed to

challenge the sufficiency of the evidence to prove that the enhancement paragraphs were sequential

and that applicant was therefore an habitual offender, subject to a minimum of twenty-five years’

imprisonment. The habeas judge concluded that applicant was prejudiced by this failure and

recommended that applicant be granted relief on this claim as well. We will thus turn to those two

claims after setting out the general legal standards for an ineffective assistance of counsel claim.

II.

A. The Legal Standard for Assessing an Ineffective Assistance of Counsel Claim.

To prevail on an ineffective assistance of counsel claim under Strickland v. Washington, the

applicant must show that (1) counsel’s performance was deficient by falling below an objective

standard of reasonableness and (2) there is a probability, sufficient to undermine the confidence in 5

the outcome, that, but for counsel’s unprofessional errors, the result of the proceeding would have
Miller Page 6

Id. (“This requires showing that counsel’s errors were so serious as to deprive the 6

defendant of a fair trial, a trial whose result is reliable.”).

Id. at 689. 7

Id. at 694; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000) (“Appellant must

8

prove both prongs of Strickland by a preponderance of the evidence in order to prevail.”).

See Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002) (“The record does not 9

reveal defense counsel's reasons for not objecting to the prosecutor’s comments. Given the

presumption of effectiveness and the great deference we give to decisions made by defense

counsel, we see nothing in the present record that would compel us to find counsel ineffective.”);

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (“[A]n appellate court ‘commonly

will assume a strategic motivation if any can possibly be imagined,’ and will not conclude the

challenged conduct constituted deficient performance unless the conduct was so outrageous that

no competent attorney would have engaged in it.”) (quoting 3 WAYNE LAFAVE ET AL., CRIMINAL 

PROCEDURE § 11.10© (2d. ed 1999)); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.

1999) (“To defeat the presumption of reasonable professional assistance, ‘any allegation of

ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness.’”) (internal citation omitted).

Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004) (“The analysis is 10

undertaken in light of the ‘totality of the representation’ rather than by examining isolated acts or

omissions of trial counsel.”). As we have noted, 

when a reviewing court considers a claim of ineffective assistance of counsel, it

must first analyze all allegations of deficient performance, decide whether

counsel’s conduct was constitutionally deficient, and, if so, then consider whether

been different. Courts “must indulge a strong presumption that counsel’s conduct falls within the 6

wide range of reasonable professional assistance,” and that “the challenged action ‘might be

considered sound trial strategy.’” The applicant must prove both of these prongs by a 7

preponderance of the evidence. When the record contains no evidence of the reasoning behind 8

counsel’s actions, a court normally cannot conclude that counsel’s performance was deficient.9

To determine whether counsel has provided effective assistance, courts must consider the

totality of the representation and the particular circumstances of each case; we do not restrict the

analysis to an evaluation of isolated acts or omissions of counsel. “The fact that another attorney 10
Miller Page 7

those specific deficient acts or omissions, in their totality, prejudiced the defense.

Ex parte Nailor, 149 S.W.3d 125, 130 (Tex. Crim. App. 2004).

Scheanette, 144 S.W.3d at 509. 11

 Mr. Hanson also stated, 12

I was not aware that Burleson was killed in Travis County in 2000 or that Carl

Miller was charged with his murder. No lawyer or private investigator contacted

me before Miller’s trial to discuss the incident with Burleson. Had someone

contacted me, I would have discussed the incident and that I considered Burleson

to be very violent. I lived in Travis County and would have been available to

testify at the trial had I been served with a subpoena.

may have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance.”11

With these general principles in mind, we turn to applicant’s two claims.

B. Applicant Did Not Prove That His Trial Attorney Was Ineffective in Failing to Present

Testimony Regarding the Murder Victim’s Prior Assault Conviction.

Applicant claims that his trial attorney was constitutionally deficient because he did not

discover and offer evidence of Terry Burleson’s prior conviction for misdemeanor assault. Applicant

asserts that evidence of this 1982 assault would have been admissible under Rule 404(a)(2) of the

Texas Rules of Evidence, and that the outcome of applicant’s trial probably would have been

different had the jury known about the murder victim’s eighteen-year-old conviction.

1. The prior assault. 

Applicant has provided an affidavit from Chris Hanson, stating, “TerryBurleson stabbed me

with a knife at an apartment complex in 1982.” Applicant also included copies of the 1982 offense

12

report and the judgment of conviction for that assault. According to the offense report, Burleson had

been making loud noises with his motorcycle as he drove around the apartment complex where he

and Hanson both lived. Hanson and his brother went outside to tell Burleson to “knock it off.”

Burleson started to fight Hanson. Then Burleson pulled a knife and swung it at Hanson, cutting him
Miller Page 8

See Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008) (“[I]n most 13

circumstances, we will defer to and accept a trial judge’s findings of fact and conclusions of law

when they are supported by the record.”).

 T EX. R. EVID. 404(a)(2) (“Evidence of a person’s character or character trait is not 14

admissible for the purpose of proving action in conformity therewith on a particular occasion,

except: . . . (2) Character of victim. In a criminal case and subject to Rule 412, evidence of a

pertinent character trait of the victim of the crime offered by an accused. . . .”).

on his elbow and under his left breast. When Hanson’s brother shot his pistol into the air, Burleson

ran off and threw his knife into the bushes. 

2. The habeas court’s findings.

In his factual findings, the trial court stated,

8. Trial counsel did not present evidence that . . . the decedent stabbed Chris Hanson with a

knife at an apartment complex in Austin in 1982 and was convicted of assault.

9. In rebuttal, Travis County Deputy Sheriff Darrell Galloway testified that decedent, his best

friend, was peaceful, law-abiding, nice, respectful, and “never harmed anyone.”

10. On cross-examination, Galloway stated that he would not believe a lady who testified that

the decedent had been violent to her.

11. Trial counsel did not ask Galloway if he knew or had heard that the decedent stabbed Hanson

and was convicted of assault.

We adopt these factual findings because they are supported by the record. We do not, however,

13

adopt the habeas court’s legal conclusions, as they are not supported by the law.

3. The applicable law.

Applicant is incorrect in concluding that evidence of Burleson’s 1982 assault on Chris

Hanson would have been admissible under Rule 404(a)(2) to show that Burleson was the first

14

aggressor in this case. There was no serious dispute at trial that Burleson was indeed the first

aggressor. He invited applicant to go around the corner and fight. Applicant followed him. They
Miller Page 9

 The State’s closing argument emphasized this point: 15

When they get back there, the fight does not go well for the defendant. 

You heard him say–and [defense counsel] has spent a good deal of time in voir

dire and opening statements talking about the disparity between the size of the two

individuals. It turns out that that’s not that great a disparity at all. About the same

height. Not that totally far off in size. And Mr. Miller tells you that that’s not

something that really bothered him. What did bother him, though, was once that

fight began, he’s losing and he’s losing quick and he’s losing fast.

And so what does he do? Does he retreat like a reasonable person would

have? You know, [defense counsel], when describing this scene, would have you

sort of imagine this thing having occurred in like a handball court. Why once you

get in that door, you just can’t get out. There’s walls everywhere. It’s sealed. 

There’s nothing he could do, and it’s–you just got to stay there. You got to

protect yourself.

Today we learned that the handball court was more like a concrete slab for

a basketball where there are no walls and retreat is easily available. Would a

reasonable person have retreated under those circumstances? You bet.

Now, was he receiving the threat of deadly force? Of course not, of course

not. What he feared was not serious bodily injury. What he feared was not death. 

What he feared was losing face. And so he did what he’s good at, knife work.

Defense counsel, in turn, emphasized the unreasonableness of retreat during the fight:

Okay. So let’s get back to this retreat thing. I’ve got this guy in front of me. He

outweighs me 40 or 50 pounds. He’s mad enough to be kicking me. . . .

So here he is. He turns to retreat. He puts his knife in his pocket, and he

turns to retreat, walking away. Whop. Bang. Kick. Hit. And how far do you

think he’s going to get? Do you know for a fact that if he turned to leave in

whatever space he had to turn to leave that he wasn’t going to get kicked again,

knocked to the ground? If he’s got his back turned–now, here’s a guy, didn’t say

a word, kicks him.

. . .

How many of you would have turned your back on a man who’s been

kicking your chest and hitting you and walk away? Would you do that? Well,

you’d be braver than I and braver than Mr. Miller to do that.

I submit to you, ladies and gentlemen, that you wouldn’t do it and that no

fought. Burleson kicked and hit him. Applicant pulled out a knife and stabbed him. The hotly

disputed issue was whether applicant had a duty to retreat before using deadly force against

Burleson, not whether Burleson initiated the fight. 

15
Miller Page 10

reasonable person in the same situation that Mr. Miller found himself in would do

that at all, ever, under these circumstances. And don’t forget that a person in the

same situation is going to include a person in the same–with the same broken leg

that he can’t walk. . . . 

What about retreating? Why didn’t Mr. Miller retreat? Well, why didn’t

Mr. Burleson retreat? Why didn’t Mr. Burleson not invite him back there? Why

didn’t Mr. Burleson not start hitting him? Why didn’t Mr. Burleson not start

kicking him? If we’re going to ask all of these “why didn’t he” questions.

See Mozon v. State, 991 S.W.2d 841, 845 (Tex. Crim. App. 1999) (setting out the two 16

theories for admitting evidence of victim’s character for violence); see also Fry v. State, 915

S.W.2d 554, 560-61 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (discussing the history and

rationale for both theories of admitting evidence of the victim’s character for violence).

 Torres v. State, 71 S.W.3d 758, 760 & n.4 (Tex. Crim. App. 2002) (evidence of 17

victim’s prior specific violent acts may be admitted to show the reasonableness of defendant’s

fear if he was aware of those specific acts); Dempsey v. State, 266 S.W.2d 875, 877-78 (Tex.

Crim. App. 1954) (prior specific acts of violence by the victim offered by the defendant are

admissible if (1) offered to show the reasonableness of defendant’s claim of apprehension of

danger, and (2) the acts of violence or misconduct were known to the defendant at the time of the

homicide).

See Mozon, 991 S.W.2d at 846 (when defendant’s claim of self-defense rested on a 18

perceived danger from victim, defendant could present evidence of victim’s violent character to

show her reasonable belief that force was immediately necessary to protect herself from the

The rules of evidence permit the defendant to offer evidence concerning the victim’s

character for violence or aggression on two separate theories when the defendant is charged with an

assaultive offense, as applicant was in this case. 

16

First, the defendant may offer reputation or opinion testimony or evidence of specific prior

acts of violence by the victim to show the “reasonableness of defendant’s claim of apprehension of

danger” from the victim. This is called “communicated character” because the defendant is aware 17

of the victim’s violent tendencies and perceives a danger posed by the victim, regardless of whether

the danger is real or not. This theory does not invoke Rule 404(a)(2) because Rule 404 bars

18
Miller Page 11

victim’s perceived threat).

See Hayes v. State, 124 S.W.3d 781, 786 (Tex. App.—Houston [14th Dist.] 2003) 19

(evidence of victim’s prior assault with a wrench was admissible to show the reasonableness of

defendant’s fear because defendant personally knew of the incident, but evidence of a prior

assault with a gun was not admissible because defendant had no knowledge of it), aff’d, 161

S.W.3d 507 (Tex. Crim. App. 2005); Espinoza v. State, 951 S.W.2d 100, 102 (Tex.

App.—Corpus Christi 1997, pet. ref’d) (reversible error to exclude defendant’s evidence of

victim’s reputation for violence when defendant testified that he was aware of victim’s violent

nature).

See Mozon, 991 S.W.2d at 845; Tate v. State, 981 S.W.2d 189, 192-93 & n.5 (Tex. 20

Crim. App. 1998); see also Yantis v. State, 94 S.W. 1019, 1021 (Tex. Crim. App. 1906) (“If there

were threats of an uncommunicated character, [defendant] could then prove the dangerous

character of deceased as a man likely to execute such threats, in order that the jury might

determine who was most likely the aggressor in the difficulty: both what occurred in the washroom and what occurred at the time of the killing.”).

character evidence only when offered to prove conduct in conformity, i.e., that the victim acted in

conformity with his violent character. Here, the defendant is not trying to prove that the victim

actually is violent; rather, he is proving his own self-defensive state of mind and the reasonableness

of that state of mind. 

19

Applicant did not know Burleson; he was unaware of his character for violence. Thus,

applicant’s counsel did not, and could not, offer “communicated character” evidence.

Second, a defendant may offer evidence of the victim’s character trait for violence to

demonstrate that the victim was, in fact, the first aggressor. Rule 404(a)(2) is directly applicable to

this theory and this use is called “uncommunicated character” evidence because it does not matter

if the defendant was aware of the victim’s violent character. The chain of logic is as follows: a 20

witness testifies that the victim made an aggressive move against the defendant; another witness then

testifies about the victim’s character for violence, but he may do so only through reputation and
Miller Page 12

 See Wilson v. State, 71 S.W.3d 346, 350 n.4 (Tex. Crim. App. 2002); Carson v. State,

21

986 S.W.2d 24, 27-28 (Tex. App.—San Antonio 1998) (although the defendant was entitled to

introduce evidence of victim’s violent or aggressive nature to show that victim was first

aggressor, he was not entitled to offer evidence of specific instances of violent behavior by the

victim), rev’d on other grounds, 6 S.W.3d 536 (Tex. Crim. App. 1999). As the court noted in

Carson, Texas common law was broader and did allow the admission of evidence of prior

specific instances to show the deceased’s character for violence. Id. at 27. See also Perrin v.

Anderson, 784 F.2d 1040, 1044-45 (10th Cir. 1986) (interpreting the federal rules); see generally

1 STEVEN GOODE, OLIN GUY WELLBORN III & M. MICHAEL SHARLOT, GUIDE TO THE TEXAS

RULES OF EVIDENCE: CIVIL AND CRIMINAL § 404.4 (Texas Practice 2d ed. 1993); Newell H.

Blakely, Article IV: Relevancy and Its Limits, 20 HOUS.L.REV. 151, 195-99 (1983).

 In Tate, this Court explained how the Rules modified the common-law doctrine: 22

The Dempsey line of cases stands for the proposition that reputation or specific act

evidence is admissible to show a victim’s character and demonstrate that either

the defendant had a reasonable fear of the victim, or the victim was, in fact, the

aggressor. However, this common law rule, as it developed, cannot be reconciled

with the specific language of the relevant rules of evidence. While Rule 404(a)(2)

allows the admission of evidence concerning a victim’s character or pertinent

character traits, Rule 405(a) limits the permissible method of proof to reputation

or opinion testimony. 

981 S.W.2d at 192; see also Mozon, 991 S.W.2d at 845; Torres, 71 S.W.3d at 760; Davis v.

State, 104 S.W.3d 177, 181 (Tex. App.—Waco 2003, no pet.); Carson, 986 S.W.2d at 27-28;

Coleman v. State, 935 S.W.2d 467, 470 (Tex. App.—Tyler 1996, pet. ref’d).

opinion testimony under Rule 405(a). 

21

Applicant’s counsel properly offered evidence of Burleson’s character for aggression under

Rule 404(a)(2) when he called Robbie Davis, Douglas Hurst, Glenn Crawford, and Lee Arthur

Thomas to testify to Burleson’s violence, especially when drinking. There was ample evidence in

the record that Burleson was the first aggressor, both from applicant himself and, inferentially, from

Cleveland who testified that Burleson “invited” applicant to go around to the back of the club to

“talk.” But, as post-Rules opinions have repeatedly held, the defendant may not offer evidence of

the victim’s prior specific acts of violence to prove the victim’s violent character and hence that the

victim acted in conformity with that character trait at the time of the assault. At the habeas hearing, 22
Miller Page 13

See CHRISTOPHER B. MUELLER & LAIRD KIRKPATRICK, FEDERAL EVIDENCE § 103, at 23

569-70 (2d ed. 1994). In describing the analogous federal rules, the professors state,

Proof of specific acts of violence by the victim toward the defendant is often

admissible to show hostility, plan, intent to inflict harm, and similar matters. Here

the argument is not so much that the acts show character, hence conduct in

conformity with character, but rather that the acts shed direct light on more

particular aspects of the victim’s outlook or state of mind toward the defendant,

and the proof is admissible under FRE 404(b).

See, e.g., Torres v. State, 117 S.W.3d 891, 896-97 (Tex. Crim. App. 2003) (defendant 24

was entitled to offer evidence that, several days before the murder, the victim had climbed

through his ex-girlfriend’s aunt’s window and threatened her and her children; this evidence was

relevant to show that the deceased had a specific motive or intent to be the first aggressor when

he climbed through his ex-girlfriend’s bedroom window early one morning and the defendant

shot him); see also Hayes v. State, 161 S.W.3d 507, 509 (Tex. Crim. App. 2005) and id. at 509-

10 (Keller, P.J., concurring); Tate v. State, 981 S.W.2d at 193 (Tex. Crim. App. 1998) (evidence

of victim’s prior specific acts may shed light on his intent or motive in the confrontation). 

applicant’s trial counsel stated that this was his understanding of the law. He was correct. Under

Rule 404(a)(2), applicant was not entitled to offer evidence of any specific prior acts of

violence–including Burleson’s 1982 assault on Chris Hanson–to show that the victim was the first

aggressor. That use is an attempt to prove Burleson’s conduct in conformity with his violent

character, and it is prohibited by Rules 404(a) and 405(a).

An entirely separate rationale supports the admission of evidence of the victim’s prior

specific acts of violence when offered for a non-character purpose–such as his specific intent, motive

for an attack on the defendant, or hostility–in the particular case. This extraneous offense evidence 23

may be admissible under Rule 404(b). Applicant does not suggest that this theory of admissibility 24

might apply to evidence concerning Burleson’s 1982 assault.

Applicant also contends that trial counsel should have discovered and used evidence of this

prior conviction to impeach the State’s rebuttal character witness, Darrell Galloway, who was

Burleson’s best friend. At the habeas hearing, trial counsel agreed that, had he discovered this
Miller Page 14

See Moore v. State, 143 S.W.3d 305, 313-15 (Tex. App.—Waco 2004, pet. ref’d ) 25

(although a character witness may be cross-examined to test the witness’s awareness of relevant

specific instances of conduct, the trial judge may exclude the use of prior specific instances under

Rule 403; trial judge did not abuse his discretion in refusing to permit impeachment of character

witness with complainant’s prior theft convictions because they were more than ten years old).

Sinegal v. State, 789 S.W.2d 383, 387 (Tex. App.—Houston [1st Dist.] 1990, no pet.); 26

see Miller v. State, 549 S.W.2d 402, 403-04 (Tex. Crim. App. 1977) (reversible error to allow

defendant to be impeached with remote prior convictions, the most recent being twelve years old,

when there was no obvious basis for admission); United States v. Gilliland, 586 F.2d 1384 (10th

Cir. 1978) (character witness may be cross-examined with evidence of prior convictions under

Rules 404(a)(1) and 405(a), if the trial court determines that the prejudicial effect of the evidence

offered to rebut character evidence does not outweigh its probative value; convictions dating

back fourteen to thirty-four years were too remote); see generally, DAVID A. SCHLUETER &

ROBERT R. BARTON, TEXAS RULES OF EVIDENCE MANUAL § 405.02[2][e][v] (8th ed. 2009)

(“Given the potential prejudice of alluding to a specific instance of conduct, Rules 403 serves as

a relief valve for limiting cross-examination under rule 405(a). This is particularly appropriate

when the alleged instances of conduct are remote in time or circumstances.”); CHRISTOPHER B.

MUELLER & LAIRD KIRKPATRICK, FEDERAL EVIDENCE § 121, at 723 (2d ed. 1994) (in evaluating

cross-examination of character witnesses with prior specific instances of conduct, trial courts

should “disallow inquiry into remote events whose relevance is diminished to almost nothing by

the passage of time.”).

conviction, he would have attempted to use it in cross-examining Galloway. He admitted that “it

might have” been admissible. Indeed, it “might have been” admissible, but the trial judge (who was

not the same person as the habeas judge) certainly could have excluded any “Have you heard” or

“Did you know” cross-examination questions based on an eighteen-year-old event under Rule 403.25

The rationale for excluding cross-examination of a character witness concerning remote acts, events,

or convictions, is the same as that for excluding evidence of remote convictions to impeach the

testifying defendant:

The reason for the adoption of the remoteness limitation on impeachment evidence

is that a remote conviction is a poor indication of the accused’s present character. A

remote conviction must have occurred at a time sufficiently recent to have some

bearing on the present credibility of the witness.26

Thus, although it is possible that the trial judge might have allowed Deputy Galloway to be
Miller Page 15

See Wheeler v. State, 67 S.W.3d 879, 887 n.16 (Tex. Crim. App. 2002). 27

 T EX. R. EVID. 105. 28

Strickland, 466 U.S. at 687. 29

impeached with Burleson’s eighteen-year-old conviction, it is not probable. The trial judge would

not have erred in excluding such cross-examination. Therefore, applicant’s trial counsel can not be

found constitutionally deficient for failing to attempt to cross-examine the deputy with that

conviction to show that Galloway did not really know about Burleson’s character for peacefulness.

Further, the assault conviction would not be admissible to prove Burleson’s violent character, only

to impeach Galloway’s opinion of Burleson’s peaceful character. Applicant also would have been

required to “take the witness’s answer” and could not offer any extrinsic evidence of the conviction

or details of the underlying assault. Finally, the State would have been entitled to a limiting 27

instruction under Rule 105 to ensure that the jury did not misuse that evidence.28

Furthermore, applicant has not carried his burden of proof in showing that the failure to

impeach Deputy Galloway’s character testimony with such a remote assault conviction was “so

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Applicant’s 29

counsel had already called four character witnesses to testify to Burleson’s character for violence.

Applicant now claims that these witnesses were unimpressive because they were either “low-lifes”

or applicant’s friends. Therefore, the jury was likely to discount their partisan testimony. But

Deputy Galloway was Burleson’s best friend and had been the best man at his wedding, so the jury

would be just as likely to discount his partisan testimony as it would to discount that of applicant’s

four character witnesses. At anyrate, character witnesses generally play a very small role in deciding
Miller Page 16

 Applicant noted that the prosecutor referred to applicant’s character witnesses and 30

Burleson’s purportedly peaceful character during her closing argument. She stated that “Terry

Burleson was murdered out on that vacant lot. His memory was assaulted here in the courtroom. 

You heard witnesses come in and try to convince you, this woman who was apparently very

angry at whatever circumstances broke up herself and Terry Burleson, convicted felon, friends of

the defendant come in here, try to make you believe that Terry Burleson, who can’t come here

and defend himself, was a bad person.” This was a very minor reference in a lengthy closing

argument that dwelt upon applicant’s use of a knife to intentionally kill or cause serious bodily

injury to an unarmed man. It is simply not plausible to believe that the jury convicted applicant

of murder because of the quality or quantity of the character witnesses.

Strickland, 466 U.S. at 687; Tong v. State, 25 S.W.3d at 707, 712 (Tex. Crim. App. 31

2000); Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004).

the main issues at trial. Here, it was virtually undisputed that Burleson started the fight, so whether 30

he was or was not a violent person was largely beside the point. The issue that the jury had to decide

was whether applicant should have retreated rather than stabbing the man who had kicked him.

We therefore conclude that applicant has failed to prove, by a preponderance of the evidence,

that his trial counsel was constitutionally deficient and that there is a probability that, but for

counsel’s unprofessional errors, applicant would likely have been found not guilty. We deny relief 31

on his ineffective assistance of trial counsel claim.

C. Applicant Has Proven That His Appellate Attorney Was Ineffective in Failing to

Challenge the Sufficiency of Evidence to Prove That Applicant Was Subject to

Sentencing as an Habitual Offender.

In his second claim, applicant asserts that his appellate counsel was constitutionally

ineffective in failing to raise a point of error on appeal challenging the sufficiency of evidence to

prove that applicant’s first enhancement conviction was final before he committed his second

enhancement offense. Had counsel done so, applicant would have been entitled to another

punishment hearing.

1. Factual background.
Miller Page 17

 Presumably this was an enhancement paragraph alleging the 1972 heroin conviction. 32

In its indictment in this case, the State alleged that applicant was convicted of possession of

narcotics in 1972 and that, after that case became final, he was convicted of burglary of a habitation

in 1976. During the punishment hearing, applicant pled “Not true” to the two enhancement

paragraphs, and the State offered a penitentiary packet (“pen packet”) into evidence that contained

the judgments for both of those offenses. The trial judge found the enhancements true and sentenced

applicant to thirty years in prison. 

The pen packets show that applicant pled guilty to possession of heroin on November 30,

1972, in Cause No. 43,765 in Travis County. That conviction became final on November 30, 1972.

The pen packet also shows that applicant began serving histwo-to-three year sentence on that heroin

conviction on October 12, 1972. The pen packet then shows that applicant pled guilty to burglary

of a habitation on July 26, 1976, in Cause No. 50,285 in Travis County. In that case, the judgment

shows that the State waived the enhancement paragraph set out in the indictment. Applicant was 32

sentenced to six years in prison, and his sentence began on July 15, 1976.

Applicant notes that the pen packet did not contain the indictment or offense report for the

burglary judgment, so it is impossible to tell from the face of the burglary judgment exactly when

this second offense was committed. At the habeas hearing, applicant’s trial counsel stated that he

had a copy of the burglary indictment in his trial file, and it showed that the burglary was committed

on November 26, 1975. The State produced the burglary offense report which confirms that date.

2. The habeas court’s factual findings.

The habeas court entered one crucial, undisputed factual finding concerning this claim:

“Appellate counsel did not contest the legality of applicant’s sentence.” However, applicant’s
Miller Page 18

Ex parte Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999). 33

 Double-jeopardy principles do not bar the State from proving applicant’s status as an

34

habitual offender at a second sentencing hearing. See Monge v. California, 524 U.S. 721, 729-30

(1998) (double-jeopardy clause “neither prevents the prosecution from seeking review of a

sentence nor restricts the length of a sentence imposed upon retrial after a defendant’s successful

appeal”); Bell v. State, 994 S.W.2d 173, 175 (Tex. Crim. App. 1999) (overruling Cooper,

following Monge, and holding that double jeopardy does not bar the State from a second

opportunity to present its proof of a prior conviction for the purpose of seeking a cumulated

sentence).

appellate counsel had died and therefore could not explain what reasons and strategy he might have

had in not contesting the legality of applicant’s sentence. Therefore, we remanded this case for the

habeas judge to address whether the doctrine of laches should bar this claim because it was not 33

raised until more than five years after final conviction and almost two years after appellate counsel

died. On remand, the habeas judge concluded that laches did not bar consideration of this claim

because applicant’s tardiness in filing his habeas application was not caused by his lack of due

diligence.

The evidence contained within the habeas record establishes these additional facts:

(1) At trial, the State did not prove that applicant’s burglary offense occurred after his

heroin conviction became final;

(2) The State now has sufficient evidence to prove that applicant’s burglary offense

occurred after his heroin conviction became final.34

The habeas judge also made the following conclusion of law:

Had appellate counsel raised this issue, the appellate court would have vacated the

sentence and remanded for a new trial on punishment. Cooper v. State, 631 S.W.2d

508, 512 (Tex. Crim. App. 1982).

We adopt this conclusion because it accords with well-settled Texas law.

3. The applicable law.
Miller Page 19

Ex parte Santana, 227 S.W.3d 700, 704-05 (Tex. Crim. App. 2007); see also Smith v. 35

Robbins, 528 U.S. 259, 285-86 (2000).

Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasis in original); see also Schaetzle v. 36

Cockrell, 343 F.3d 440, 445 (5th Cir. 2003) (“Counsel need not raise every nonfrivolous ground

of appeal, but should instead present solid, meritorious arguments based on directly controlling

precedent.”) (internal quotation marks and alterations omitted); Gray v. Greer, 800 F.2d 644, 646

(7th Cir. 1986) (“Generally, only when ignored issues are clearly stronger than those presented,

will the presumption of effective assistance of counsel be overcome.”).

Ex parte Daigle, 848 S.W.2d 691, 692 (Tex. Crim. App. 1993) (habeas corpus 37

applicant was entitled to a new appeal based on appellate counsel’s ineffectiveness for failing to

raise point of error on appeal concerning trial court’s denial of defendant’s timely request for jury

shuffle, which, under then-prevailing law, was automatic reversible error); see also Stallings v.

United States, 536 F.3d 624, 627-28 (7th Cir. 2008) (in deciding whether appellate counsel was

ineffective for failing to raise a meritorious argument, reviewing court first examines the record

to see whether the appellate attorney in fact omitted significant and obvious issues, and if so,

court then compares the neglected issues to those actually raised; if the ignored issues are clearly

stronger than those raised, appellate counsel was deficient under Strickland).

To show that appellate counsel was constitutionally ineffective for failing to assert a

particular point of error on appeal, an applicant must prove that (1) “counsel’s decision not to raise

a particular point of error was objectively unreasonable,” and (2) there is a reasonable probability

that, but for counsel’s failure to raise that particular issue, he would have prevailed on appeal. An 35

attorney “need not advance every argument, regardless ofmerit, urged by the appellant.” However, 36

if appellate counsel fails to raise a claim that has indisputable merit under well-settled law and would

necessarily result in reversible error, appellate counsel is ineffective for failing to raise it. 

37

The law concerning sufficiency of the evidence to prove enhancement for habitual felony

offenders is well settled. Section 12.42(d) of the Penal Code requires the State to prove this

chronological sequence of events:

“(1) the first conviction becomes final;

“(2) the offense leading to a later conviction is committed;
Miller Page 20

Jordan v. State, 256 S.W.3d 286, 290-91 (Tex. Crim. App. 2008) (quoting Tomlin v. 38

State, 722 S.W.2d 702, 705 (Tex Crim. App. 1987)); see also Valdez v. State, 218 S.W.3d 82, 84

(Tex. Crim. App. 2007).

See Moore v. State, 802 S.W.2d 367, 372-74 (Tex. App.—Dallas 1990, pet. ref’d); 39

Patterson v. State, 723 S.W.2d 308, 316 (Tex. App.—Austin 1987), aff’d, 769 S.W.2d 938 (Tex.

Crim. App.1989).

Jordan, 256 S.W.3d at 292; see also McCrary v. State, 604 S.W.2d 113, 116 (Tex. 40

Crim. App. 1980); Williams v. State, 596 S.W.2d 903, 904 (Tex. Crim. App. 1980); Hickman v.

State, 548 S.W.2d 736, 737 (Tex. Crim. App. 1977); Johnson v. State, 784 S.W.2d 413, 414-15

(Tex. Crim. App. 1990).

See Ex parte Daigle, 848 S.W.2d at 692; Ex parte Felton, 815 S.W.2d 733, 736 (Tex. 41

Crim. App. 1991); Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979). 

“(3) the later conviction becomes final;

“(4) the offense for which the defendant presently stands accused is committed.”38

In this case, the State failed to offer evidence of the second prong: it failed to prove when the

burglary offense was committed. Without evidence to support a finding that the burglary offense

was committed after the heroin conviction became final, the State’s evidence was insufficient to

prove applicant was subject to punishment as an habitual offender. Such a failure of proof is not 39

subject to a harmless error analysis; it is a sufficiency-of-evidence deficiency that can “never be

considered harmless.”40

4. Appellate counsel was necessarily ineffective in failing to raise the sufficiency of evidence

to support the trial court’s finding that applicant was an habitual offender.

Applicant had a “lead pipe cinch” point of error to raise on appeal. If his counsel had

challenged the sufficiency of evidence to support the habitual enhancement, he would have

prevailed. Any objectively reasonable attorney would have been familiar with the well-settled law

concerning enhancement paragraphs and would have raised this “sure-fire winner” claim.41
Miller Page 21

 395 U.S. 711 (1969), overruled in part by Alabama v. Smith, 490 U.S. 794 (1989). 42

The State argues that applicant cannot carry his burden of proof because his appellate

attorney is deceased and therefore cannot explain his strategy in failing or declining to raise this

issue. The State contends that appellate counsel might have thought that his other points of error,

relating to the guilt phase of trial, were more meritorious. Thus, he raised only his “best” claims.

That is an excellent appellate strategy, but there is no “better” claim than one that is “a lead pipe

cinch.”

The State also argues that appellate counsel might have declined to bring this claim because

he, like trial counsel, knew that applicant’s prior convictions really were sequential and that the State

really could prove them in a second sentencing hearing. Undoubtedly the State can and will prove

them in a new hearing, but it did not do so in the first hearing, so the currently admitted evidence is

legally insufficient to support his status as an habitual offender.

Finally, the State also suggests that appellate counsel might not have brought this claim

because applicant’s thirty-year sentence was on the lower end of the punishment range for an

habitual offender, and applicant could be given a much longer sentence upon retrial. Had applicant

been sentenced by a jury, that might be a valid consideration, but applicant was sentenced by the trial

judge. UnderNorth Carolina v. Pearce, a trial judge may not increase a defendant’s prior sentence 42

on remand following an appellate reversal of his original sentence after a full trial unless the increase

is based on (1) conduct occurring after the first sentence was imposed or (2) new evidence of which

the State was unaware and could not, with the exercise of due diligence, have offered at the first
Miller Page 22

Id. at 726; Alabama v. Smith, 490 U.S. at 798; United States v. Goodwin, 457 U.S. 368, 43

374 (1982) (presumption of judicial vindictiveness for increasing sentence after successful appeal

may be overcome by objective information justifying the increased sentence); Hood v. State, 185

S.W.3d 445, 448 (Tex. Crim. App. 2006) (discussing doctrine of judicial vindictiveness on

resentencing and stating, “When a defendant proves ‘that he was convicted, he appealed and

obtained a new trial, and that the State thereafter filed . . . additional enhancements,’ the burden

shifts to the prosecution to provide an explanation of the additional enhancements ‘that is

unrelated to the defendant’s exercise of his legal right to appeal.’”) (quoting Neal v. State, 150

S.W.3d 169, 173-74 (Tex. Crim. App. 2004)).

See Ex parte Daigle, 848 S.W.2d at 692. 44

See Ex parte Felton, 815 S.W.2d 733, 736 (Tex. Crim. App. 1991); Ex parte Scott, 581 45

S.W.2d 181, 182 (Tex. Crim. App. 1979).

sentencing hearing. It was partly for this reason that we remanded the case to the habeas court–to 43

give the State an opportunity to discover whether such post-sentencing conduct existed and might

therefore justify an objectively reasonable appellate counsel from raising an otherwise winning

claim. The State did not offer evidence of such post-sentencing bad conduct or any other evidence

supporting an increase in the sentence after a successful appeal. Any competent attorney would be

familiar with this well-settled doctrine of “judicial vindictiveness” and know that the trial judge

could not sentence applicant to a greater term of years after a successful appeal unless there was

objective evidence in the record to support an increased sentence. 

The State’s argument concerning plausible reasons for declining to raise a claim on appeal

would normally prevail because reviewing courts must indulge in every possible presumption that

counsel had a plausible strategy, but in this case we conclude that there is no plausible strategy for

failing to bring a claim that is necessarily reversible error. Appellate counsel was ineffective. 44 45

And applicant has demonstrated prejudice because his legal-sufficiency challenge would have
Miller Page 23

See Ex Parte Daigle, 848 S.W.2d at 692. 46

North Carolina v. Pearce, 395 U.S. at 726; Goodwin, 457 U.S. 374; Hood, 185 47

S.W.3d at 448; Neal, 150 S.W.3d at 173-74.

 Applicant is entitled to appeal only the sentencing because that was the only respect in 48

which appellate counsel was found to be ineffective. 

Ex parte Daigle, 848 S.W.2d at 692. 49

prevailed on appeal. And he may not be given a greater sentence by the trial judge after that 46

successful appeal absent new, objective evidence that would justify such an increase.47

Relief is hereby granted. Applicant is entitled to a new appeal to challenge the sufficiency

of evidence to support his thirty-year sentence. The proper remedy in a case such as this is to return 48

applicant to the point at which he can give notice of appeal. For purposes of the Texas Rules of 49

Appellate Procedure, all time limits shall be calculated as if the sentence had been entered on the day

the mandate of this Court issues. We hold that should applicant desire to prosecute an appeal, he

must take affirmative steps to see that notice of appeal is given within thirty days after the mandate

of this Court has issued. All other requested relief is denied.

Delivered: October 28, 2009

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