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Ex parte Miller

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 under �12.42(d) of the Penal Code. Such a failure of proof is a sufficiency-of-evidence deficiency that can never be considered harmless. Texas Court of Criminal Appeals, No. AP-76,167, 10-28-2009

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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.*fn1 The habeas judge made 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 ineffective assistance of appellate counsel claim.

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