This Court is not the only court in the state possessed of the legal acumen necessary to understanding Strickland v. Washington, 466 U.S. 668 (1984). In the present case, the Thirteenth Court of Appeals made a determination that counsel's performance fell below an objective standard of reasonableness. ⁽¹⁾ The majority's opinion unnecessarily overturns the Court of Appeals' ruling and impairs appellant's ability to mount a collateral attack on his conviction. Mallett v. State, No. 152-01, slip op. (Tex. Crim. App. December 19, 2001) (hereinafter cited as "Majority Op."). Therefore, I dissent.

Appellant alleged and the Court of Appeals agreed that trial counsel was deficient in five particulars: (1) failure to object to the entry of judgments on convictions the prosecutor intended to abandon; (2) failure to move to withdraw appellant's guilty plea; (3) failure to secure appellant's presence or make arguments in appellant's favor at the hearing on defendant's motion for new trial; (4) failure to object to the misjoinder of offenses and (5) failure to object to two double jeopardy violations. Mallett, 25 S.W.3d at 607-08. We address the alleged deficiencies in the order stated above.

Abandonment of Offenses

The Ground for Review before this court is as follows:

May an appellate court reverse on grounds of ineffective assistance of counsel where counsel's acts or omissions could have been based upon sound tactical decisions, and where the record provides no explanation for the motivation behind counsel's decisions?

The majority's opinion on the issue of abandonment does not address the sufficiency of the record for analyzing counsel's performance. Rather, the majority concludes that because the Court of Appeals determined that the offenses had not been abandoned, counsel could not have been deficient for failing to object to entry of conviction on the offenses. Majority Op. at 12. ⁽²⁾

However, the appellate court's consideration of whether the offenses had been abandoned and whether counsel was deficient in failing to object to the entry of convictions were two separate inquiries. Indeed, they were two separate points of error. In one point of error, appellant argued that the trial judge reversibly erred by convicting him on the criminal mischief, burglary and theft counts when the prosecutor stated his intention to abandon them. Mallett, 28 S.W.3d at 605. In the other, appellant argued that his trial counsel was deficient for failing to object to the entry of convictions after the prosecutor had stated his willingness to abandon them. Although the Court of Appeals could have explained its reasoning more thoroughly, the court acted safely within the boundaries of the law when it found counsel deficient for failing to object or secure the court's ruling on the prosecutor's statements. I cannot think of any sound trial strategy in preserving extra counts for a client.

The majority's analysis of the relevant law is incorrect and it unduly impairs any collateral attack appellant may have had on the issue. As a general rule, a claim which was previously raised and rejected on direct appeal is not cognizable on habeas corpus. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997). However, prior rejection of an ineffective assistance of counsel claim on direct appeal will not bar relitigation of the claim to the extent that an applicant gathers and introduces evidence not contained in the direct appeal record. See id.; Tong v. State, 25 S.W.3d 707, 714 n. 10; George E. Dix and Robert O. Dawson, 43 Texas Practice: Criminal Practice and Procedure § 45.58 (1995 & Supp. 2000). The exception we crafted in Torres was premised on the notion that the record on direct appeal will generally be insufficient to determine whether or not counsel's performance was deficient. Here, without addressing the sufficiency of the record, the ground on which we granted review, the majority addresses itself exclusively to the question of whether or not appellant was prejudiced, i.e. whether or not the offenses had been abandoned. ⁽³⁾

The majority's consideration of this issue thereby improperly decides the merits of appellants claim-on direct appeal and arguably on habeas corpus. Based on the ground for review before us, the majority should have held that the record was insufficient to evaluate counsel's performance. In such an instance, the appropriate procedure is to overrule the Sixth Amendment claim without prejudice to the appellant's ability to dispute counsel's effectiveness collaterally. ⁽⁴⁾ Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000); see also Thompson, 9 S.W.3d at 814 (specifically noting that "[w]e are not deciding on this direct appeal ... that appellant did or did not receive the effective assistance of counsel during trial. Instead, we are unwilling to affirm the Court of Appeals' conclusion that, with the record provided, appellant successfully defeated the strong presumption that the decisions of counsel during trial fell within the wide range of reasonable professional assistance").

Withdrawal of Guilty Plea

The majority indicates that the record is insufficient to evaluate counsel's performance in this regard. Majority Op. at 8. Yet although the majority states that a silent record is insufficient to meet the first prong of Strickland, its reasoning seems to be based primarily on the mistaken notion that appellant was not entitled to withdraw his plea. Majority Op. at 7-8.

At the hearing on appellant's plea of guilty, the trial court first heard evidence on appellant's guilt. Later in the proceeding, after appellant testified that he accidentally reversed the semi-tractor into Officer Mendoza's vehicle, the trial court accepted appellant's plea and proceeded to take evidence and arguments on punishment.

A criminal defendant who enters a plea of guilty to the trial court may withdraw the plea as a matter of right until the judge takes the case under advisement or pronounces judgment. McWherter v. State, 571 S.W.2d 312 (Tex. Crim. App. 1978). The point at which a court takes a case under advisement does not come before the trial court accepts a defendant's plea. See id.; Jackson, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Here, because appellant's testimony came before the trial court had accepted his plea, he could have withdrawn his plea as a matter of right had his counsel made such a motion. Appellant had just offered testimony that, if believed, demonstrated he did not have the culpable mental state required for the commission of an assault. See Tex. Penal Code §§ 22.01(a)(1), 22.02(a). That appellant testified he intentionally engaged in the acts leading up to the assault is of no moment in assessing his mental state for the commission or non-commission of aggravated assault. The Court of Appeals properly held that defense counsel's failure to make such a motion constituted deficient performance. Thus, the portion of the majority's opinion that suggests appellant could not have been prejudiced by the failure to withdraw the plea is inaccurate and should not be used as a basis for reversing the Court of Appeals.

Motion for New Trial

The majority states that it finds "nothing in the record demonstrating that Mallett wanted to attend the hearing or that his attorney could have made any non-frivolous arguments at the hearing." Majority Op. at 13. The majority's analysis ignores both Strickland and the facts of this case. Here, while the majority finds nothing indicating that Mallett wanted to attend the hearing, the clerk's record contains a pro se letter, filed by appellant on May 6, 1999, in which appellant informed the judge that his plea was involuntary. ⁽⁵⁾ On that same day, Mallett's appointed counsel filed a notice of appeal, motion for new trial and motion to withdraw as counsel of record. He then set the hearing on the motion for new trial a mere eight days after filing these motions. He did not secure appellant's presence, nor did he make any arguments in appellant's favor at the hearing. ⁽⁶⁾

The majority suggests that the record is silent as to counsel's motivations and that counsel may have filed the motion simply to extend the time limits for appeal. The record is not silent in this respect. In fact, the majority is correct: counsel filed the motion for new trial to preserve appellate deadlines. At the hearing on the motion for new trial, the trial judge pointed out that counsel had to state a basis for his motion. Trial counsel responded by stating, "quite frankly, I didn't really feel like I could allege any clear-cut basis for Motion for New Trial, but I did feel like I had a duty to my client to go ahead and file that before the 30 days were up." The question before us is not whether it is ever reasonable to file a motion for new trial to preserve appellate deadlines. The question is whether it was objectively reasonable for counsel to bar his client from making arguments at the motion for new trial hearing when faced with his client's protestations that his plea was involuntary. The Thirteenth Court of Appeals considered these circumstances and concluded that counsel's actions fell below an objective standard of reasonableness. Mallett, 28 S.W.3d at 813. We need not reconsider facts that have already been considered and ruled upon by an intermediate appellate court.

Misjoinder, Double Jeopardy

I do not dispute the majority's interpretation of the law relevant to the issues of misjoinder and double jeopardy. I note only that if the Court of Appeals misapplied the law relevant to these issues, this misapplication does not justify reversing the entirety of the Court of Appeals' decision-particularly where the remedy is a new trial and not an acquittal. The Court of Appeals was only required to find that trial counsel was deficient for one of the five reasons alleged by appellant in order to grant a new trial. If the court was incorrect about two of the reasons, it was nevertheless correct about the remaining three and should not be reversed on the issue of counsel's deficient performance. Therefore, I respectfully dissent.

DELIVERED December 19, 2001

PUBLISH

1. The Court of Appeals also determined that appellant was prejudiced by counsel's deficient performance. Mallett, 28 S.W.3d at 608-09. In light of the majority's resolution of this appeal, I decline to consider whether the Court of Appeals' prejudice prong analysis was correct.

2. The record demonstrates that the prosecutor offered to abandon only the criminal mischief count and not all three of the counts listed by the Court of Appeals. Because this discrepancy played no part in the majority's opinion, I do not address it and will assume for the purposes of this discussion that the Court of Appeals correctly listed the counts the prosecutor intended to abandon.

3. I do not suggest that this or any other appellate court can never assess the prejudice prong of Strickland. See Majority Op. at 12. When, however, the ground for review presented to this court deals exclusively with the deficiency prong of Strickland and we dismiss the ground for review addressing the prejudice prong, a review of prejudice is beyond our purview. Stating that "[t]his record affirmatively shows nothing objectionable" does not transform a backdoor analysis of prejudice into a review of the sufficiency of the record.

4. This procedure is particularly appropriate in light of the fact that this Court has all but permanently foreclosed direct appeal as a means of arguing that an appellant's trial counsel rendered ineffective assistance. See Thompson, 9 S.W.3d 803, 813-14 (Tex. Crim. App. 1999); Majority Op. at 4 ("when the record is silent on the motivations underlying counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel's conduct was reasonable").

5. Appellant's plea hearing took place on April 9, 1999. A request by a defendant for discretionary withdrawal of a plea, if presented within 30 days of sentence being imposed, is sufficient to enable the trial court to act even though the request does not comply with the normal formalities of a motion for new trial. State v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992). Regardless of whether appellant's pro se letter would constitute a motion for new trial in the absence of a motion by counsel, it certainly demonstrates a desire on appellant's part to argue that his plea was involuntary. A hearing on a motion for new trial would have been the forum for Mallett to do so.

6. Somewhat ironically, counsel also deprived appellant of the opportunity to develop facts related to a claim of ineffective assistance. Dix & Dawson, §§ 24.95, 45.58. Although a motion for new trial hearing may not be the ideal forum in which to develop facts necessary to an ineffective assistance of counsel claim, it may be the only forum for an indigent defendant in a non-capital case. See Thompson, 9 S.W.3d at 817 (Meyers, J., dissenting and noting that on application for habeas corpus relief, indigent defendant will not be appointed counsel or provided with transcript of record); see also Torres, 943 S.W.2d at 475 (noting that motion for new trial hearing not always suited for developing record for ineffective assistance claim because trial may not be transcribed and allegedly ineffective counsel may still be representing defendant).