NO. 1010-99







Johnson, J., filed a concurring opinion in which Mansfield, J. joins.

C O N C U R R I N G  O P I N I O N

Today this court holds that appellant has failed to overcome the presumption that he was effectively represented by counsel during the time for filing a motion for new trial. It so holds because, pursuant to Oldham v. State, 977 S.W.2d 354 (Tex. Crim. App. 1998), cert. denied, ___ U.S. ___, 119 S. Ct. 1121, 143 L. Ed.2d 116 (1999), "there is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial. We therefore assume that appellant considered this option and rejected it," and "the fact that appellant filed a pro se notice of appeal is evidence that he was informed of at least some of his appellate rights. We there assume, absent a showing in the record to the contrary, that appellant was adequately counseled regarding his right to file a motion for new trial." Ante, at ___ (slip op. at 7).

I agree that as a matter of precedent, Oldham dictates the outcome in the instant case. However, as a matter of logic and reason, I believe that the court of appeals' analysis is far more persuasive:

[T]he record shows that on April 9, appellant was brought to the court, without counsel, where he signed a pauper's oath and request for new counsel. The court signed an order appointing appellate counsel on April 16, but the order was not filed until April 21, 1998. The time for filing a motion for new trial expired April 20, 1998, precluding the filing of a motion for new trial by appellate counsel to develop appellant's claims of ineffective assistance of counsel. The record before us adequately rebuts the presumption that appellant was effectively represented by counsel during the time for filing a motion for new trial.

Smith v. State, 990 S.W.2d 893, 895 (Tex. App.--Houston [1st Dist.] 1999). Oldham represents a recent trend by this court to entirely preclude relief on direct appeal as to claims of ineffective assistance of counsel. See also Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). In noting the "exceedingly short leash" that we have given courts of appeal to review claims of ineffective assistance of counsel on direct appeal, Justice Rickhoff, writing for a panel of the Fourth Court of Appeals, recently noted:

There appears to be an increase in allegations of ineffective assistance of counsel. In response, the court of criminal appeals has tightened the standard of review. . .In my judgment, this is precisely the wrong response. Intermediate appellate court justices have experience and expertise in evaluating the performance of counsel and are competent to exercise judgment on an issue this subjective. Before appellate review, no participant can stop an obviously ineffective performance by defense counsel. Criminal defendants, usually not part of the most vocal or analytical segments of society, are most often unable to identify ineffectiveness, speak for themselves, and urge a resolution. . . Trial judges are entirely frustrated. Once counsel is appointed or retained, a trial judge generally lacks authority to unilaterally remove counsel. Trial judges have no formal process for clearly identifying and recording incidents of ineffectiveness. Occasionally, a trial judge will remark on the record that counsel's performance may be deficient. . .Certainly, the opposing advocate can do nothing. Following the trial, even if we as appellate justices believe in good conscience that we have identified an ineffective performance, we are unable to satisfy the standard of review imposed upon us. . .The bar has no effective program to identify, mentor, or eliminate ineffective defense counsel. We all proceed with the fiction that anyone who passes the bar is competent to defend all but capital cases. The result is an institution unable to remedy a problem all recognize as increasing. Our criminal justice system operates on the assumption that both defendant and the State will have able and effective counsel. Unless and until the court of criminal appeals revisits this issue, trial judges and intermediate appellate courts are powerless to ensure that this assumption is justified.

Devis v. State, ___ S.W.3d ___, ___ & n.1, No. 04-99-00013-CR (Tex. App.--San Antonio March 22, 2000, no pet. h.) (citations omitted). While I join today's majority opinion on the basis of precedent, I take this opportunity to suggest that we reconsider this issue.

Johnson, J.

Date Delivered: May 17, 2000