EX PARTE CASHMAN

OPINION

CLINTON, Judge, dissenting.

The jury assessed punishment at confinement for fifty years after finding an allegation of a prior conviction to be true. Without that enhancement the maximum allowable for the primary offense is twenty years. What makes the situation in which applicant finds himself so troublesome is that the judgment of the prior conviction has since been set aside by the convicting court — just as applicant has been protesting since at least 1981 that it should have been.

The majority points out, however, that appellant (meaning his lawyer) did not object to use of the record of the prior conviction and, perforce, the ultimate opinion of this Court in Hill v. State, 633 S.W.2d 520, 523 (Tex.Cr.App. 1982) (Opinion on State's Motion for Rehearing) dictates that applicant be foreclosed from attacking utilization of that prior conviction. As one who reluctantly acceded to the shift in policy announced in Hill because "if the Court wills it, so be it,"id., at 525, I note that subsequent developments cast much doubt as to extent of its application, thereby implicating validity of its rationale.

Thus when the Tyler Court of Appeals followed Hill in Duplechin v. State, 654 S.W.2d 20 (Tex.App. — Tyler 1983) and precluded an appellant from attacking a conviction used for enhancement on grounds that the indictment was invalid, this Court found that the court of appeals erred in concluding that nothing was presented for review, vacated its judgment and remanded the cause for reconsideration on the grounds of error presented. The per curiam opinion held that Hill was not controlling since there the contention was that Hill was without counsel at the time of conviction. Duplechin v. State, 652 S.W.2d 957 (Tex.Cr.App. 1983). Accord: Ex parte White, 659 S.W.2d 434 (Tex.Cr.App. 1983) (Hill distinguishable when charging instrument is void so that trial court never acquired jurisdiction). Obviously, already application of Hill had been limited.

On the other hand, though a prior judgment for conviction is admittedly invalid (in that the same jury that decided guilt also determined competency to stand trial), a majority of this court invoked Hill to reject a collateral attack on a subsequent assessment of punishment enhanced by the "infirm prior conviction." Ex parte Ridley, 658 S.W.2d 177 (Tex.Cr.App. 1983). Characterizing its own result as "paradoxical," the majority faults "the view that one need not be in custody as a result of a conviction to collaterally attack that conviction" for the consequential effect that, while applicant may collaterally attack the prior infirm judgment in the convicting court that rendered it, "his failure to object to the introduction of this conviction in the subsequent . . . case precludes him from obtaining any meaningful relief as a result of today's action by this Court," id., at 178, n. 1. The blame, it seems to me now, lies at the feet of Hill.

A considerable rationale espoused in Hill for its notion that a contemporaneous objection rule ought to be laid down is twofold: to allow attacks on a current conviction for defects in an old prior conviction "overburdens the courts and tends to lower the quality of justice dispensed by the courts." Though the former may be imagined — just as the majority did, Hill, supra, at 525 — the latter is such an amorphous proposition that the majority did not even undertake to conjure up support for it. The "quality of justice" dispensed thus far in the instant case belies the proposition: applicant confronts confinement at thirty years more than the law actually allows. If that kind of "justice" does not shock, it must surely unsettle the conscience of all but the most calloused.

Its dubious rationale aside, Hill's principal vice lies in the breadth of its stated holding, viz:

"Therefore, we hold that the failure to object at trial to the introduction of proof of an allegedly infirm prior conviction precludes a defendant from thereafter attacking a conviction that utilized the prior conviction."

Hill is thus at war with traditional habeas corpus authority. See, e.g., Millard v. State, 587 S.W.2d 703, 705 (Tex.Cr.App. 1979). Contrary to Article I, §§ 12, Constitution of the State of Texas, Hill denies that the Great Writ is one of right and practically suspends it. The form of a contemporaneous objection rule is exalted over the substance of relief from confinement and restraint of liberty.

During the two years following the Hill opinion on rehearing this Court has been moved to "distinguish" it rather than adhere to the change of policy Hill pronounced.

If Hill is not squarely overruled, as it ought to be, at least we should extend the limitations already made as to its applicability. See Duplechin v. State andEx parte White, both supra. Just as a judgment of conviction entered by a trial court on an invalid indictment is void, so is one rendered on a plea of guilty that is not made intelligently and voluntarily. Boykin v. Alabama, 395 U.S. 238, 242-244, 89 S.Ct. 1709, 1711-1713, 23 L.Ed.2d 274 (1969); Ex parte Lewis, 587 S.W.2d 697 (Tex.Cr.App. 1979); see and compare North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970); Brady v. United States, 397 U.S. 742, 756-758, 90 S.Ct. 1463, 1473-1474, 25 L.Ed.2d 747 (1970).

On original submission we granted applicant the relief for which he prayed, with an opinion written by the author ofHill on rehearing. To a contrary disposition today, I respectfully dissent.

TEAGUE, Judge, dissenting.

I dissent because I find the majority opinion fails to address the critical issue in this cause, namely, whether applicant's court appointed trial counsel was ineffective at the punishment stage of the trial because he failed to investigate prior to trial the validity of the alleged prior Colorado conviction that was used to enhance applicant's punishment. The court in which the conviction occurred ruled after applicant's appeal had been affirmed that the conviction was invalid.

The record reflects that applicant challenged the validity of the conviction solely through the use of the United States Postal Service.

The majority holds that because applicant's trial counsel did not object to the admission into evidence of the conviction at the punishment stage of the trial, and because appellant pled "true" to the allegation, he waived any error. The majority mistakenly relies upon Hill v. State, 633 S.W.2d 520 (Tex.Cr.App. 1982), for authority.

I have carefully re-read Hill v. State, supra, but do not find therein where this Court ever addressed the question, whether counsel's failure to object to the admission into evidence of an invalid conviction at the punishment stage of the trial causes him to become ineffective counsel.

The hearing that was held in this cause reflects that prior to trial, applicant's counsel was aware of the alleged prior felony conviction that occurred in the State of Colorado. However, the record is also clear that counsel never made any formal investigation regarding the validity of the conviction. As noted, the Colorado conviction has now been determined by the convicting court to be an invalid conviction.

I believe that when the majority opinion refers to the fact that prior to trial, trial counsel for applicant saw the "pen papers" that pertained to the Colorado conviction, and "discussed" with applicant the Colorado conviction, it is implicitly holding that this rendered counsel effective counsel, thus resolving the issue, whether applicant had the effective assistance of counsel at the punishment stage of the trial, against applicant.

The record, however, reflects that when counsel discussed with applicant the conviction from Colorado, he asked applicant if he thought the Colorado conviction was "any good." Applicant correctly responded: "I guess so, I don't really know." The majority opinion then makes what I find to be one of the most startling statements I have ever read since becoming a licensed attorney: "He [applicant] did not request counsel to make an investigation of the Colorado conviction." Pray tell, since when does a lay person have the responsibility of advising his attorney whether a prior felony conviction is or is not a valid conviction? If the client has the responsibility of telling his court appointed attorney what he must do to prepare for trial, then why have counsel prior to trial on the merits?

I find that the majority opinion's statements regarding the fact that counsel read the "pen papers" prior to trial a little misleading because the statements imply the "pen papers" consist of everything that one would want to know about the conviction. However, a careful reading of the "pen papers" reflects they are just that, namely, "pen papers" and nothing more. The papers reflect the usual authentication and certification page, the physical description and personal background page, and a "mittimus to the penitentiary" page, which page represents nothing more than an order of commitment addressed to the authorities of the penitentiary.

I find it rather interesting that the majority fails to mention or discuss this Court's decision of Ex parte Scott, 581 S.W.2d 181 (Tex.Cr.App. 1979), which I find has many similarities to this cause. In fact, I find that Scott, supra, should control this cause. There, the applicant Scott claimed, inter alia, that his conviction and sentence were void because his trial counsel did not investigate the alleged prior convictions to make the determination whether they corresponded with the allegations of the indictment. This Court pointed out that the record reflected the following:

[T]rial counsel . . . did not investigate and determine that the allegations of the indictment concerning the prior convictions were untrue — that is, that petitioner had not been convicted of the offense in Harris County before he committed the offense in Fort Bend County — before advising the petitioner to enter into the stipulation that the allegations were true.

This Court held that had trial counsel for Scott made an investigation, he would have found that the prior convictions did not correspond to what was alleged in the indictment. Such failure to investigate caused this Court to hold that the applicant Scott did not receive the effective assistance of counsel and ordered the conviction and sentence set aside.

I firmly believe that where an indictment alleges one or more prior convictions for enhancement of punishment purposes, it is incumbent upon counsel for the accused to investigate the alleged conviction or convictions in order to make the determination whether such is at least facially valid. Of course, under Scott, supra, he should also investigate in order to make sure that the prior conviction or convictions correspond with what is alleged in the indictment.

In this instance, the record clearly reflects that trial counsel for applicant made no formal investigation to determine whether the prior felony conviction was a valid conviction. However, it has now been determined that the conviction is invalid. Applicant is entitled to relief.

I also find that the majority opinion's reliance upon Hill v. State, supra, to be misplaced for the reasons Justice Thornberry of the Fifth Circuit Court of Appeals stated in the opinion of Vela v. Estelle, 708 F.2d 954 (5th Cir. 1983), which he authored for a panel of the Court. Rehearing was denied by the Court sitting en banc. After carefully rereading Vela v. Estelle, supra, and comparing what was stated therein with what this Court had stated in Vela v. State, 516 S.W.2d 176 (Tex.Cr.App. 1974), it appears to me that the approach the majority takes in this cause is the same approach this Court took in disposing of the defendant Vela's contention that his counsel was ineffective, which issue was raised by way of post-conviction writ of habeas corpus, through which he obtained relief in the Fifth Circuit.

I also find that as a matter of Sixth Amendment Constitutional law, the applicant has established there is a reasonable probability that but for trial counsel's error in failing to properly investigate the validity of the alleged prior felony conviction from Colorado, a different result would have been reached. E.g., Strickland v. Washington, —U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

To the failure of the majority of this Court to grant applicant the relief he is entitled to receive, I respectfully dissent.