Mansfield, J., delivered the dissenting opinion.
D I S S E N T I N G O P I N I O N
Because I believe the Court of Appeals concluded correctly that claims of ineffective assistance of counsel may be forfeited and thus not be subject to review on appeal pursuant to Texas Rule of Appellate Procedure 33.1, I respectfully dissent. The majority describes five instances that occurred during appellant's trial which are averred by appellant to constitute ineffective assistance of counsel. The right to the effective assistance of counsel is a right of constitutional dimensions being a right granted by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). In order to prevail, an appellant alleging a claim of ineffective assistance of counsel must show:
(1) That counsel's performance fell below the level considered to constitute
reasonably effective professional assistance, with the strong presumption being
that counsel's performance was reasonably effective; and
(2) But for counsel's errors, there is a reasonable probability the outcome
of appellant's trial would have been different.
Strickland, 104 S.Ct. at 2066, 2068.(1)
Texas Rule of Appellate Procedure 33.1(a) generally requires that, in order to preserve a complaint for appellate review, the complaining party must have made the complaint known to the trial court by means of a timely request, objection or motion. Furthermore, the trial record must show the trial court ruled explicitly or implicitly on the request, motion or objection or refused, over the complaining party's objection, to rule on the request, motion or objection. There is no doubt, in the present case, appellant failed to raise the issue of ineffective assistance of counsel at trial and, given the circumstances, could not have been expected to do so.
I agree with the majority that an ineffective assistance of counsel claim will generally not be foreclosed because of an appellant's inaction at trial. I agree with the rationale of the Supreme Court of Mississippi (see majority op. at footnote 4) that because the effective assistance of counsel is a "fundamental right requiring a meaningful and realistic opportunity to assert the right" and, because it is unreasonable for the trial lawyer to raise the issue of his own effectiveness at trial, the defendant must be provided a means to raise this issue post-trial. Read v. State, 430 So.2d 832, 837 (Miss. 1983). In Read, the court held ineffective assistance claims could not be foreclosed by the general rule requiring claims to be raised at trial in order for them to be preserved for appellant review.
However, in the present case, application of Rule 33.1 does not foreclose the appellant from meaningful post-trial review of his claim that trial counsel's assistance was ineffective. Appellant may advance his claim by filing a post-conviction writ of habeas corpus pursuant to Texas Code of Criminal Procedure article 11.07. Indeed, article 11.07 is by far the preferable means by which a claim of ineffective assistance of counsel can be fully and fairly developed. Appellant's claims in the present case amount to an allegation of acts of omission by trial counsel that, due to their very nature, are outside the trial record and are thus not amenable to meaningful appellate review.
An article 11.07, section 3 proceeding will allow appellant an opportunity to litigate his claim his counsel was constitutionally ineffective. The habeas court is given considerable power to decide whether the claim is valid, and may require that trial counsel file an affidavit -- on the record -- explaining why he did what he did (or did not do) or may order a hearing and make findings of fact and recommend that relief be granted or not be granted. The findings of the habeas court are then, of course, subject to review by this Court pursuant to article 11.07, section 5.
We recently held in Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App. 1997) that a writ of habeas corpus is the preferred method for evaluation of claims of ineffective assistance of counsel. Indeed it may well be, in most cases, the only means by which a record can be developed to determine the validity of such claims, a record that is rarely available for the appellate court to evaluate.
Accordingly, because article 11.07 provides a practical means by which claims of ineffective assistance of counsel can be fully and effectively litigated, I would affirm the court of appeals and hold that claims of ineffective assistance of counsel, though of constitutional dimension, are subject to the general rule of procedural default as set forth in rule 33.1.(2)
I respectfully dissent.
DELIVERED APRIL 12, 2000
1. Whether appellant's ineffective assistance of counsel claim is meritorious is not for us to decide.
2. In some cases, a claim of ineffective assistance of counsel may be preserved for appellate review by the timely filing of a Motion for New Trial. It is uncertain whether this was possible in the present case.