concurring.
I agree this post-conviction application for habeas corpus should be dismissed. I would not leave applicant with the impression, however, that allegation and proof that an objection was made and that harm accrued would in fact entitle him to relief in some future application. I have already expressed the view that whether reversible error occurred under the federal constitutional component of Long v. State, 742 S.W.2d 302 (Tex.Cr.App.1987), is not a cognizable issue pursuant to Article 11.07, V.A.C.C.P. Ex parte Crispin, 777 S.W.2d 103 (Tex.Cr.App., 1989) (Clinton, J., concurring). The Court should at least resolve this threshold question of cognizability before putting applicant to the onus of re-pleading.
In Crispin I urged the Court to relinquish any residual notion that we are required to review federal constitutional claims in post-conviction habeas corpus on the theory that constitutional error deprives the convicting court of jurisdiction, thus rendering the conviction “void.” Though we may nevertheless choose for whatever reason to review federal constitutional claims on collateral attack, certainly this Court is not beholden to the federal courts to do so. “It seems all but certain that states are not compelled by any provision of the federal constitution to provide post-conviction collateral avenues for vindication of federal constitutional rights, [citations omitted.]” Ex parte Crispin, at p. 107. This Court can decide to review all claims of federal constitutional dimension, or to review none. As it is we purport to review every claim of “denial[] of fundamental or constitutional rights[,]” Ex parte Banks, 769 S.W.2d 539, 540 (Tex.Cr.App. 1989), making ad hoc determinations regarding whether a particular claim is retroactive or subject to procedural default.
It seems to me that the State’s considerable interest in the finality of judgments would justify our holding something less than the entire gamut of federal constitutional claims to be available in state collateral attack. Cf. Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring and dissenting) (Finality concerns justify nonretroac-tivity of “new” constitutional rules on collateral attack in federal court, except under narrowly defined exceptions). Also Teague v. Lane, — U.S.-, 109 S.Ct. 1060, 103 *79L.Ed.2d 334 (1989). It would behoove the Court to articulate general principles for culling out those claims of sufficient character or magnitude as to overcome this interest in finality. Such principles likely would embrace many of the same considerations that presently go into our helter-skelter determinations regarding retroac-tivity and procedural default, “[t]he relevant frame of reference” being ultimately “the purposes for which the writ of habeas corpus is made available.” Mackey v. United States, 401 U.S. at 682, 91 S.Ct. at 1175, 28 L.Ed.2d at 414. In Crispin I suggested the Court could limit cognizability of federal constitutional claims under Article 11.07, supra, as a general rule:
“to ‘exceptional’ constitutional defects so ‘fundamental’ as not to be susceptible to a determination of harm, such as those identified in Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460, 470 (1986). [footnote omitted.] It is only ‘[e]rrors of this kind [that] justify collateral relief no matter how long a judgment may have been final and even though they may not have been preserved properly in the original trial.’ Rose v. Lundy, 455 U.S. [509,] at 544, 102 S.Ct. [1198,] at 1217, 71 L.Ed.2d [379,] at 404 [(1982)] (Stevens, J., dissenting) (footnotes omitted).”
At p. 108-09. It may be that applicability of a constitutional harm analysis would prove too inflexible a criterion for cogniza-bility to accommodate the collective judgment of the Court regarding which constitutional claims are sufficiently grievous to trump otherwise persuasive finality interests.* A given applicant may be able to show to the satisfaction of the Court both a constitutional violation and such attendant harm as to impugn fundamental fairness of the whole proceeding against him. If the defect was not one he could have raised by due diligence in the ordinary course of appellate review, the Court might well choose to hold that the State’s interest in finality of judgments must give way. Under those circumstances I would agree with the majority’s requirement today that the harm be alleged and proven by the applicant. I would also require an allegation of reasons the defect could not have been raised in due course of appeal.
In any event, some principled basis for making threshold determinations of cogniz-ability of federal constitutional claims under Article 11.07, supra, is sorely needed.
I agree with Judge Teague that "issues of double jeopardy and ineffective counsel, for example, have special problems." Ex parte Truong, 770 S.W.2d 810, 814 (Tex.Cr.App.1989) (Teague, J., dissenting).