Burton, Ex Parte Arthur Lee ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,790

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EX PARTE ARTHUR LEE BURTON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NUMBER 760321-B FROM THE 338TH DISTRICT COURT

OF HARRIS COUNTY

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  Holcomb, J., filed a concurring opinion.

O P I N I O N    

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.

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DO NOT PUBLISH