The justices on the Waco Court of Appeals are at it again. This time, Justice Vance, in another 2-vote majority opinion, has held that defendants who file a DNA motion and lose may raise an ineffective assistance of counsel claim. He writes that opinion, despite the absence of support from other courts for that concept and a contrary indication recently from the CCA.

Justice Gray, getting more to the point, says:

"I do not believe we can create a constitutional due process protection under the facts of this case. If we can, we should not because it is unnecessary to the disposition of the appeal. Due to time constraints, I will forgo an expansive discussion of why the majority's analysis creating a constitutional due process right arising out of a statute is wrong. It is sufficient to note that a number of courts have determined that there is no Sixth Amendment right to the effective assistance of counsel when there is no constitutional right to counsel. Further, Ard has not properly preserved or adequately argued a violation of the due process clause of either the state or federal constitution. A majority of this Court has, on more than one occasion, been reversed for making dispositive arguments for defendants. Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002). But now the majority makes an argument for a defendant in a case where it does not affect the result. That means there is less chance of getting this statement scrutinized by a higher court."

So, is accusing the majority of taking their position only because it isn't likely to be reversed? Ouch.

Chief Justice Gray, who is usually right, has a difficult task working with his other panel members. The State is lucky he is there to temper the very strange notion of justice dispensed on occasion. Fortunately, rarely do Collin County cases land in the 10th COA -- but I'm sure Tarrant County still finds their cases transferred there. I always had a sinking feeling in the pit of my stomach when a case went that way!! And the opinions usually confirmed my feelings. Working in Tarrant County, I learned to really appreciate the Court of Criminal Appeals as the court of last resort.

On a more posititve note, it is a joy to have cases heard by the Dallas COA. The 5th Court maybe the largest appellate court in the state but it rapidly churns out opinions and has a very good handle on the law and justice.

[This message was edited by John Stride on 03-28-06 at .]