dissenting.
The majority holds that “The record does not support the conclusion that appellant’s retained trial counsel breached a legal duty to her client.” (Emphasis added). I dissent.
The majority’s conclusion furthers the obscurity in our decisions related to claims of ineffective assistance. See, Williams v. Estelle, 416 F.Supp. 1073 (N.D.Tex.1976). The “breach of a legal duty” standard is generally applied to claims of ineffective retained counsel, Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976), while the “reasonably effective assistance” standard is generally applied to claims of ineffective appointed counsel. Ex Parte Gallegos, 511 S.W.2d 510 (Tex.Cr.App.1974).
There should be no distinction made between retained and appointed counsel, and neither should render “inadequate representation.” See, Rockwood v. State, 524 S.W.2d 292, 294 (Tex.Cr.App.1975). Both retained and appointed counsel should be “reasonably competent.” Ex Parte Gallegos, supra, at 513 (concurring opinion).
When the trial judge appoints a lawyer to represent a person accused of committing a crime, he simply fulfills the constitutional mandate; he does not by his affirmative action, as some prior decisions indicate, create a different standard of competency than the standard created if the individual himself had the wherewithal to hire the lawyer. While economic status may differ from individual to individual, the right to due process should remain the same. The fact that the defendant can pay a fee should not alter this Court’s interpretation of his right to counsel. All individuals should stand equal before the law, regardless of economic status.
Aside from noting the above, I concur wholeheartedly in the dissenting opinion of Judge Phillips. The extraneous offenses were developed at length by the questioning of appellant’s own counsel. I realize that “There are some cases that cannot be won” and that “An attorney must appraise a case and do the best he can with the facts.” Rockwood, supra, at 293. It is equally clear to me that some actions cannot be deemed “trial strategy.” Indeed, even the learned trial judge had to inquire of appellant’s trial counsel at one point whether she was talking about “this particular offense.”
The “breach of a legal duty” is not the test. Appellant was furnished with “inadequate representation.” Rockwood, supra, at 294. I cannot in good faith say that appellant’s representation at trial passes the “reasonable competence” test. Ex Parte Gallegos, supra, at 513 (concurring opinion, and cases there cited).