Hernandez v. State (726 S.W.2d 53, 1986)

Texas Court of Criminal Appeals 1986-09-17

Citations

Full opinion text

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW TOM G. DAVIS, Judge. Trial was before the jury upon appellant's plea of not guilty to a charge of capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After the jury found appellant guilty, the court, acting pursuant to V.T. C.A. Penal Code, Sec. 8.07(d), assessed punishment at life. The Court of Appeals for the Third Supreme Judicial District (Austin) affirmed appellant’s conviction in an unpublished opinion, Hernandez v. State, No. 3-82-370, (Delivered September 21, 1983). We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holding that appellant’s trial counsel rendered effective assistance. Following the Court of Appeals’ decision, the United States Supreme Court handed down its opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The opinion in Strickland established an authoritative federal constitutional standard for determining ineffectiveness of counsel and for ascertaining when such ineffectiveness is prejudicial. Accordingly, prior to examining the facts of the instant case, we determine whether under Art. I, Sec. 10 of the Texas Constitution and Art. 1.05, V.A.C.C.P. we must apply higher standards than those enumerated in Strickland. With respect to determining ineffectiveness, the general standard established in Strickland differs little or not at all from this Court’s standard, which in turn is based on Fifth Circuit precedents. In Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), and its progeny we stressed that effective counsel is counsel “rendering and likely to render” reasonably effective assistance. The Supreme Court in Strickland noted: “As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance ... When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. “More specific guidelines are not appropriate ... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms ... “ ... A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” 104 S.Ct. at 2064-66. Since we find that the threshold standard for determining effective assistance of counsel enunciated in Strickland is not substantively different from the standard this Court has propounded in recent years, there is no reason for refusing to apply the Strickland standard to cases arising under Art. I, Sec. 10 of the Texas Constitution or Art. 1.05, V.A.C.C.P. The test for determining prejudice or reversible error resulting from ineffective assistance of counsel was also spelled out in Strickland: “ ... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 104 S.Ct. at 2068. This test, at least in certain circumstances, differs from the tests devised by our Court to determine prejudice in ineffective assistance cases. See, for example, Ex parte Duffy, supra, where we held, again based on Fifth Circuit precedent, that effective assistance was so important a right to a petitioner condemned to death that its infraction could never be treated as harmless error. Does our recent case law or the language and history of Art. I, Sec. 10, or Art. 1.05, Y.A.C.C.P., suggest that a defendant should be put to a lesser standard of proof in establishing prejudice than the Strickland standard? Starting with the opinion in Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), this Court has consistently applied the test for effectiveness of counsel employed by the Fifth Circuit in MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). That is, this Court has consistently and consciously applied a federal constitutional standard in all effectiveness cases and has utilized the standards enunciated by the Fifth Circuit in the absence of an authoritative and comprehensive opinion from the Supreme Court. See Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981). In Strickland, the Supreme Court clearly set forth the federal constitutional standard to be followed. As far as the language of Art. I, Sec. 10 is concerned (as well as the identical language in Art. 1.05, V.A.C.C.P.), in no way can it be independently interpreted to provide greater protection for a defendant beset by ineffective assistance of counsel than the protection provided by Strickland. The language of Art. I, Sec. 10, insuring that a defendant “shall have the right of being heard by himself or counsel, or both,” can be traced back to the 1836 Constitution of the Republic of Texas and was obviously modeled on the Sixth Amendment to the federal constitution which guarantees the accused’s right, “to have the Assistance of Counsel for his defense.” The Sixth Amendment right to be heard by counsel was originally understood, and understood throughout all of the 19th and the earlier part of the 20th century, to encompass the right of a defendant to retain counsel of his own choice for the preparation and trial of a case. The provision was not yet understood to include the right of an indigent defendant to have counsel appointed at State expense or the right of any defendant to enjoy effective assistance of counsel. The right to effective assistance of counsel as we understand it today was derived from the right to be heard by counsel. Accordingly, in no sense can the language or intent of the framers of Art. I, Sec. 10, be interpreted to include a right to effective assistance of counsel greater than that provided by Strickland. An examination of this Court’s case law regarding effective assistance in the years before the Sixth Amendment was incorporated into the Fourteenth and applied to the States only serves to buttress the point. Ineffective counsel or counsel not permitted by the trial court to be effective was tantamount to no counsel at all and hence a violation of Art. I, Sec. 10. Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954); Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). Even “no counsel at all,” however, did not result in reversible error in the absence of a showing of harm. See Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (Tex.Cr.App.1931). See also Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965), and Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), two cases decided shortly after Gideon v. Wainwright, supra, where a showing of harm was required of defendants asserting ineffective assistance claims. In short, our constitutional and statutory provisions do not create a standard in ineffective assistance cases that is more protective of a defendant’s rights than the standard put forward by the Supreme Court in Strickland. Accordingly, we will follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom. Turning to the instant case, we summarize the facts relevant to appellant’s ineffective assistance claim. During the evening of June 2, 1977, appellant and two other youths, Michael Castro and Manuel Gonzales, unlawfully entered a habitation at 1607 East 11th Street in Austin. The youths were looking for bullets to use in a rifle they had been firing at fence posts earlier in the day. The youths found and appropriated some .22 caliber bullets during their search. Appellant confessed to loading the rifle, but trial testimony conflicted as to which of the boys loaded the rifle. At some point during their wanderings in the house the youths came upon Domingo Vasquez, the deceased, and resident of the house, who was asleep under a pile of rags on the kitchen floor. Appellant and his cohorts discussed killing the deceased but decided against doing so. Some time later, the youths returned to Vasquez and roused him from his sleep whereupon the old man chased the boys out of the house brandishing an ax. The three youths stopped in the deceased’s front yard. As the deceased came out of the front door, appellant shot him with the rifle. Testimony differed as to whether Vasquez was still in the process of chasing the boys when shot or was instead in the process of returning to the inside of his home. The fatal shot, however, entered the deceased from the back and the testimony was undisputed that no barrier blocked the retreat of appellant and his friends. After appellant shot the deceased he took the butt of the rifle and hit the deceased in the head as he tried to get up. The three youths then rifled through the deceased’s pockets. Appellant and his friends were arrested the next day while attempting to burglarize another residence. According to appellant, his trial counsel rendered ineffective assistance for three reasons: failure to pursue an insanity defense; presentation of evidence that rebutted the defense of self-defense; ignorance of the facts of the case and governing law. Appellant contends that trial counsel improperly failed to pursue an insanity defense because of incomplete investigation. An insanity defense was purportedly warranted due to a psychological report filed by court psychologist D.I. Goldwater and due to testimony showing that appellant consumed a large amount of beer and sniffed paint on the day of the offense. Appellant has not proffered any facts showing that trial counsel failed to thoroughly investigate an insanity defense. Admittedly this is often a difficult thing to do on direct appeal. We cannot, however, assume that because a record is silent as to the depth of an attorney’s investigation of the insanity defense, he made no such investigation. Appellant is free to pursue his ineffectiveness claim on collateral review where the facts surrounding trial counsel’s representation may be developed at a hearing. Dr. Goldwater’s report strongly suggested that with respect to certain of his communicative skills appellant, a fifteen year old, had the mental development of an eight and one half year old, and that appellant often acted impulsively. This alone does not prove that trial counsel failed to further investigate an insanity defense. Not mentioned by appellant are two reports in the appellate record sent to the Travis County District Attorney by Dr. Coons indicating that appellant was sane at the time of the offense and competent to stand trial. As to appellant’s consumption of beer and sniffing of paint and the relation of these to an insanity defense, V.T.C.A. Penal Code, Sec. 8.04, precludes the use of a voluntary intoxication-insanity defense to the commission of crime. See Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980). Trial counsel’s purported presentation of evidence that rebutted the defense of self-defense involved the testimony of code-fendant Michael Castro whose trial was severed from appellant’s. Castro testified that he thought the deceased had abandoned his pursuit of appellant and friends at the time appellant shot him. Trial counsel cross-examined and later called to the stand both Castro and Manuel Gonzales, the other accomplice. In many respects, counsel’s cross-examination of Gonzales was effective, establishing that Gonzales and Castro were as much involved in ransacking the deceased’s house as appellant and showing that Gonzales was afraid when the deceased chased them out of his house wielding an ax. The examination of Castro tended to support Gonzales’ testimony until the former testified that the deceased had turned to go when appellant fired a shot. Medical testimony reflected that the deceased died from a bullet wound to the back. Given the options available to trial counsel in a case where the evidence against his client was overwhelming, we cannot sit in hindsight and find ineffectiveness due to an error such as this, involving a calculated risk in examining a codefend-ant. The right to effective counsel is not the right to error-free counsel. Trial counsel’s supposed ignorance of the facts of the case and governing law takes several forms according to appellant. In order to impeach Manuel Gonzales on cross-examination trial counsel introduced his written confession. The State contended, and the trial court agreed, that certain statements in the confession “opened up” extraneous offenses that the State could elaborate upon. These extraneous offenses were a previous burglary of the deceased’s house and the attempted burglary the youths were engaged in on the day of their arrest. Even if counsel was ignorant of the law and ineffective in allowing these extraneous offenses to come in, there is no reasonable probability that the jury’s verdict would have been different absent the mistake. The underlying burglary in the capital murder was overwhelmingly established and ample evidence supported a conclusion that appellant and his friends were unsavory characters. Likewise defense counsel’s supposed ignorance of V.T.C.A. Family Code, Art. 51.09’s requirement concerning a proper magistrate’s warning could in no way have affected the jury’s verdict. Defense counsel apparently did not realize that there were two warnings by two different magistrates in the instant case and that only the warnings administered when the defendant signed a waiver of his rights had to be given outside the presence of a police officer. The evidence however unequivocally established that no officer was present when appellant signed his waiver of rights. Appellant chastises trial counsel for failing to subpoena witness Martin Rodriguez until the morning he was called to testify and witness John Reyes until the afternoon before he was slated to testify. Further, with respect to Rodriguez, trial counsel stated that he did not think his absence was, “really going to hurt the case, but I would like to have his testimony because it—something may come out.” Rodriguez never testified but Reyes’ written statement was admitted into evidence and stipulated to by both parties. Reyes’ letter confirmed that the deceased carried an ax about him in order to protect himself. Though trial counsel’s behavior with respect to the subpoenas evidenced lack of preparedness, we cannot say on this record that there is a reasonable probability the result of the trial would have been different if counsel had seen to it that Rodriguez testified. Finally, trial counsel’s attempt to object to the charge revealed ineptness at preserving error. Counsel’s entire objection to the jury charge was as follows: “[Defense Counsel]: Your Honor, I have no objections as such. However, I would like to have a charge included in here. And I will, of course, leave this to your discretion, but I’d like to have something in here that indicates that if the defendant is not found guilty of the offense of capital murder that he may be reindict-ed — recharged on a charge of voluntary manslaughter. “THE COURT: That request will be denied. “[Defense Counsel]: Okay. And I’d move that the charges— “I object to the charge on the ground that the issue is not sufficiently supported by the pleading and ask you to rule on that. “THE COURT: All right, it will be overruled.” The best that can be said about the foregoing performance is that trial counsel was attempting in an inept fashion to obtain a charge on voluntary manslaughter or self-defense. Once again, however, appellant has failed to establish prejudice. Appellant does not contend that the evidence supported a charge on voluntary manslaughter. With respect to his claim of self-defense, evidence to support same was at best extremely weak. It was uncontradict-ed that nothing blocked appellant’s retreat and that the deceased died from a bullet wound to the back. Moreover, appellant and his friends were in the course of burglarizing the deceased’s home. It is obvious from a review of the entire record that in certain respects trial counsel rendered sub-par assistance. But in the particular instances where this occurred, it has not been shown, as required by Strickland, that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have differed had trial counsel’s assistance been effective. Appellant is free to develop the facts further in a post-conviction habeas hearing, particularly with respect to counsel’s alleged failure to pursue an insanity defense. The judgment of the Court of Appeals is affirmed. CAMPBELL, J., concurs in result. . Prior to trial the juvenile court waived jurisdiction and certified appellant, a fifteen-year-old juvenile, for criminal prosecution. . The Supreme Court specifically rejected a stricter test that would have required a defendant to show that his counsel’s deficient conduct more likely than not altered the outcome in the case. . Art. 1.05, V.A.C.C.P., is in essentially the same form as predecessor statutes which date back to the 1911 Code of Criminal Procedure. . See G. Braden, et al (Eds), The Constitution of the State of Texas: An Annotated and Comparative Analysis, Pages 35-36 (1977). . See L. Jayson, et al (Eds.), The Constitution of the United States Of America: Analysis And Interpretation, Pages 1215-1216 (U.S. Government Printing Office) (7th ed. 1972); W. Beaney, The Right to Counsel in American Courts, Pages 22-28 (1955). . The Supreme Court first used the term "effectiveness” with respect to appointment of counsel in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). That Court made clear in Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), that Sixth Amendment right to counsel included the right to effective assistance of counsel. See S. Krantz, et al, (Eds.), Right to Counsel in Criminal Cases, Page 166 (1976); and Waltz, Inadequacy of Trial Representation As a Ground for Post-Conviction Relief In Criminal Cases, 59 Nw.U.L. Review 289 at 293-295 (1964). It is clear however that many courts entertained what amounted to ineffective assistance of counsel claims before this time, especially if counsel was appointed. See, for example, Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). As late as 1948, however, our Court refused to decide whether an accused with retained counsel could complain of ineffective assistance. Ex parte Lovelady, 152 Tex.Cr.R. 93, 207 S.W.2d 396 (1948). Further, we did not always state what constitutional or statutory provision guaranteed the right to effective assistance. See Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116(1954). . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). . Nor would such a contention be correct. Appellant did not testify, and there was no evidence that he indicated to anybody that he had feelings of anger, rage, resentment, or terror at the time of the offense. See Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979). Moreover, we do not believe that “sudden passion” arises from an "adequate cause” under V.T.C.A. Penal Code, Sec. 19.04, when a defendant is in the course of committing one of the underlying offenses delineated in V.T.C.A. Penal Code, Sec. 19.03(a)(2). See Smith v. State, 168 Tex.Cr.R. 102, 323 S.W.2d 443 (Tex.Cr.App.1959); Leza v. State, 149 Tex.Cr.R. 448, 195 S.W.2d 552 (1946); W. La-Fave and A. Scott, Jr., Criminal Law, Sec. 76 (1972).

CLINTON, Judge, concurring. Discretionary review should not have been granted in this cause. Compounding that initial mistake, the majority decides an issue that is not before us, decides it wrongly, and then improperly applies the standard it has mistakenly adopted. Though the majority has (almost inadvertently) reached the correct result, I must protest virtually every step of the wayward course taken to that goal. I. Among several good reasons for refusing review in this cause, most compelling is that appellant has presented no reason for such review. See Tex.Cr.App. Rule 302(c). Appellant does not claim the court of appeals’ opinion is in conflict with that of another court of appeals, this Court, or any other court, statute, or rule of law. Appellant points out no deficiencies in trial counsel’s performance. Instead, he argues to this Court only that “[a] close reading of the Record, Statement of Facts, Briefs, Opinion, and Appellant’s Motion for Rehearing ... clearly demonstrate that Appellant’s trial counsel, Paul Hanneman, was ineffective in his assistance to Appellant.” This is insufficient under 304(d)(5), supra, to invoke this Court’s discretionary jurisdiction, nor is any other reason readily apparent. The petition should be refused. Degrate v. State, 712 S.W.2d 755 (Tex.Cr.App.1986). II. The issue seized upon by the majority, whether to “follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom,” is not before this Court. The court of appeals’ opinion was delivered September 21, 1983, and the petition for discretionary review filed little more than a month thereafter, both well before the opinion of the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) [hereafter Strickland ]. Thus the issue decided by the majority has not been briefed or argued by the parties, nor decided by the court of appeals. This not only goes well beyond this Court’s mandate to “review decisions of the eourt[s] of appeals,” Art. 44.45(a) and (b), it also denies the “adversarial testing” called for by Strickland itself. This is not only procedurally incorrect, it forces this Court to take upon itself the roles of both State’s attorney and defense counsel as well as judge. I am compelled to dissent to this headlong rush to answer a question no party to this cause has posed. Lacking the benefits of a properly framed issue, a decision on that issue by the court of appeals, and arguments from both parties, we are in a poor position to decide this important question. It is no wonder, given this posture of the case, that the majority’s conclusions are so weakly supported. As appellant has been afforded no opportunity to answer the conclusions put forth in the majority opinion, I will point out one or two of the major flaws in its reasoning. III. Most disturbing is the majority’s pronouncement that “in no sense can the language or intent of the framers of Art. I, Sec. 10, be interpreted to include a right to effective assistance of counsel greater than that provided by Strickland.” Op. at p. 56. This statement is particularly presumptuous in light of the fact that no one herein has advocated such an interpretation. The majority’s statement therefore amounts to an assertion that it has considered all such arguments that could possibly be made and found them wanting. I make no effort to canvas such sweeping considerations. I do, however, find the majority’s conclusion unsupported. To begin with, the premise that the language of Art. I, Sec. 10 of the Texas Constitution “was obviously modeled on the Sixth Amendment to the federal constitution” has never been properly demonstrated. While it is true that both Sec. 10 and the Sixth Amendment deal with the right to counsel, that alone is not strong indication that the later provision is modeled on the earlier. It is only indicative that forebear-ers insisted on assuring the right, taking statements designed to do so from any other reasonably accepted source. See Brown v. State, 657 S.W.2d 797, 801 (Tex. Cr.App.1983) (Concurring Opinion). It would be equally supportable to say the Texas “right to be heard” provision is modeled on the Connecticut constitution adopted in 1818. Our provision is almost identical to the Connecticut provision, whereas our Art. I, § 10 is worded completely differently from the Sixth Amendment. Detailed exegesis is inappropriate here, but to say that the Texas constitutional provision is “modeled on the Sixth Amendment” is irrelevant even if true. The fact that the framers of the Texas Constitution worded the provision differently at all, when they could have simply conformed our Bill of Rights to pertinent provisions of the U.S. Constitution, demonstrates that they had somewhat different guarantees in mind. So when addressing the issue of ineffective assistance of counsel as a matter of state law we need not follow slavishly the Supreme Court’s interpretation of the Sixth Amendment, any more than we need adhere to the Connecticut courts’ interpretation of their constitution. Just because language was once drawn from another source does not mean that we abdicate for all time our historical responsibility to interpret our own laws and Constitution. The majority’s assertion at this late date that the provisions are in essence identical denigrates our own role as well as the efforts of the founders of this Republic and State. Furthermore, to say that “this Court has consistently and consciously applied a federal constitutional standard in all effectiveness cases” (Maj. opinion, p. 55 •) is misleading at best. In Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), which the majority cites as the beginning of this adoption of the federal standard, this Court was addressing a claim that the defendant had been denied his right to effective assistance of counsel “guaranteed to him by the 6th and 14th Amendments to the federal constitution.” Id. at 163. No mention was made of the Texas Constitution, Article I, Section 10. In such a case it was of course appropriate to evaluate the claim in light of federal decisions interpreting the federal constitution. However, when this Court in deciding a claim under state law approvingly cites language from a federal court opinion we do so only because we find the language helpful or the reasoning persuasive. In adopting the “reasonably likely to render and rendering reasonably effective assistance” test from MacKenna v. Ellis, 280 F.2d 592 (CA5 1960), cert. denied, 368 U.S. 877, 86 S.Ct. 121, 7 L.Ed.2d 78 (1961), we in no way bound ourselves to follow future pronouncements on the subject from the Fifth Circuit or any other federal court; not when we are interpreting Texas law. It means simply that we cast about for a “reasonably acceptable definition” of effective assistance of counsel, and having found one, made it our own. Brown, supra, (Concurring opinion). As Justice Hans Linde of the Oregon Supreme Court has stated: “This court like others has high respect for the opinions of the Supreme Court [of the United States], particularly when they provide insight into the origins of provisions common to the state and federal bills of rights rather than only a contemporary ‘balance’ of pragmatic considerations about which reasonable people may differ over time and among the several states. It is therefore to be expected that counsel and courts often will refer to federal decisions, or to commentary based on such decisions, even in debating an undecided issue under state law. Lest there be any doubt about it, when this court cites federal opinions in interpreting a provision of Oregon law, it does so because it finds the views there expressed persuasive, not because it considers itself bound to do so by its understanding of federal doctrines.” State v. Kennedy, 295 Or. 260, 666 P.2d 1316, 1321 (1983) (footnote omitted). This Court is of course possessed of similar autonomy. IV. The first prong of the Strickland standard is the same as our own, whether counsel rendered “reasonably effective assistance.” Strickland, however, represents the first time the Supreme Court of the United States has applied that standard, the first time that Court has “directly and fully addressed a claim of ‘actual ineffectiveness’ of counsel’s assistance in a case going to trial.” 104 S.Ct. at 2062. This Court, by contrast, has been faced often with the question of whether particular trial counsel rendered ineffective assistance. We have a well developed body of caselaw on the subject, applying our standard of reasonably effective assistance in a wide variety of contexts. We need not look to federal authority for other than “guidance” in applying that standard to the instant case. Whether counsel rendered effective assistance is the only question before us in this case. The majority’s adoption and application of Strickland’s “prejudice test” is unwarranted when neither appellant, the State, nor the court of appeals has done an analysis of the harm suffered by appellant due to the alleged failures of his trial counsel. Indeed, because the court of appeals found that appellant was rendered effective assistance of counsel, there was no need to address the question of harm. Nor is there a reason for this Court to do so. See, Ingham v. State, 679 S.W.2d 503, 508-09 (Tex.Cr.App.1984), in which this Court though “mindful” of the recent decision in Strickland found that “[w]e need not analyze this case in light of the two-pronged Strickland test, however, because we do not find that appellant’s counsel was ineffective as our prior decisions construe that term or that he was not ‘reasonably effective’ as the Supreme Court construes that term.” As for the majority’s assertion that our caselaw has never provided a higher standard of effective assistance than that of Strickland, I find the cases cited at page 56 not entirely supportive of that proposition: Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954), does not address Art. I § 10 and does not conclude that counsel’s assistance was ineffective or amounted to “no counsel at all.” Turner v. State, 91 Tex.Cr.R., 241 S.W. 162 (1922), does stand for the proposition for which it is cited, that Art. I § 10 was violated when an agent of the State prevented counsel from rendering effective assistance. The case was reversed without a showing of harm. Counsel was not allowed to talk to his client in private. When he finally got the opportunity, defendant told him of some evidence which counsel asked for a continuance in order to investigate. That was denied. What impact the evidence might have had on the case is not shown. As for the cases cited for the proposition that a showing of harm was required before a conviction would be reversed for ineffective assistance, Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (1931), did not cite the Texas Constitution. The Court stated, “In a felony case of less than capital, the law does not make the presence of an attorney essential.” Id., 37 S.W.2d at 157. That has not been the law in this state since June 1, 1959, the effective date of an amendment to former Art. 494 of the Code of Criminal Procedure (now 26.04) requiring the appointment of counsel in all felony cases. That occurred four years before the Supreme Court applied this rule to the states through the Sixth and Fourteenth Amendments in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). So for those four years, at least, Texas did provide that protection based solely on state law. Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965), as the majority says, came soon after the Sixth Amendment had been applied to the states through the Fourteenth by Gideon, supra. Perhaps for that reason, this Court addressed only a federal standard: “We are unable to agree that appellant was deprived of his constitutional rights as guaranteed by the 6th and 14th Amendments to the Constitution of the United States, or that a different result would have been reached by the jury but for any of the acts or omissions of his court appointed trial counsel.” Id. at 396. There is no showing from the opinion that the defendant even made a claim under the laws or Constitution of Texas. Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), is the most problematical of all, because it is difficult to tell for what proposition it stands. Among other things the Court there noted that the defendant “was represented at his trial by counsel of his own choosing ...” Id. at 430. This is no longer relevant after Cuyler v. Sullivan, 446 U.S. 335,100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), abolishing the distinction in standards between retained and appointed counsel. See also Ex parte Duffy, 607 S.W.2d 507, 509 (Tex.Cr.App.1980). Jones also states that counsel’s failures to object to inadmissible evidence may have been trial strategy, before stating there was an abundance of other evidence to support the jury’s verdict. Again, neither state nor federal law was explicitly cited. These cases do not stand for the proposition that Texas constitutional and statutory law have never provided a higher standard of effective assistance than federal law. Nor is that issue before us. Until such time as a defendant claims that Texas law does provide such higher protection, we should not issue what is in effect an advisory opinion that it does not. V. After its needless effort to justify adopting the Strickland prejudice test, the majority immediately demonstrates the folly of such an effort by improperly applying that test. Point by point, the majority isolates each failing of trial counsel and concludes that that particular failure did not undermine confidence in the result of the trial: “It is obvious from a review of the entire record that in certain respects trial counsel rendered sub-par assistance. But in the particular instances where this occurred, it has not been shown, as required by Strickland, that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have differed had trial counsel’s assistance been effective.” Maj. opinion, p. 59. But this is not the way to test appellant’s claim of ineffective assistance, even under Strickland. Under that standard, appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 104 S.Ct. at 2068. It is the cumulative effect of counsel’s errors that must be evaluated, not the effect of each individual error. “In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” 104 S.Ct. at 2069. The majority’s weighing only of the individual impact of each individual error shows a basic misconception of the test the majority has erroneously followed. Such misconception demonstrates one of the difficulties inherent in applying another court’s test rather than standards this Court has developed itself over the course of years. VI. Our grant of review was no broader than the ground for review. Eisenhauer v. State, 678 S.W.2d 947, 956 (Tex.Cr.App.1984) (Clinton, J., dissenting). We did not grant review to decide whether we should adopt the nebulous standards of the Supreme Court of the United States as the law of this state governing ineffective assistance claims. We granted appellant’s petition only to review the court of appeals’ decision, under applicable state law relied on by appellant and the State, that appellant was rendered effective assistance of counsel at trial. I agree with the majority that at least as far as this record indicates, he was. For example, in his supplemental brief to the court of appeals appellant argued, “The record is silent with no indication that defense counsel attempted to contact, interview or secure any psychiatric or psychological experts for the trial.” Supplemental Brief, p. 9. But the burden to show that counsel did not thoroughly investigate the possibility of this viable defense is appellant’s. We may not presume such lack of investigation from a silent record. As the majority properly points out, appellant is free to attempt to develop a record that more fully supports his claims by way of writ of habeas corpus. Accordingly, while the majority has reached the correct result in this case, I deplore its decision of an issue not properly before us, and its gratuitous abdication of the duties and responsibilities of this Court. Therefore, I concur only in the judgment of the court. MILLER, J., joins this opinion. . The only authority cited for this proposition (majority opinion, n. 4) is unpersuasive. Mr. Braden makes just a bare assertion that "the similarity between [the Fifth and Sixth Amendments] and Section 10 is striking.” He does not even claim that our original Texas constitutional provision was modeled on the federal one. Indeed, persuasive historical evidence exists that it was not: that Texians were influenced greatly by their Mexican experience is already documented, and its laws had trial procedures for defendant to be heard by himself and counsel. However, again, this is not a fit occasion to address the matter since it is not properly before the Court. . Article I, Section 10 of the Texas Constitution provides in pertinent part: "In all criminal prosecutions the accused shall have ... the right of being heard by himself or counsel, or both ...” The analogous Connecticut provision, Art. I, § 9, provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel ...” The Sixth Amendment to the Constitution of the United States, on the other hand, provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” . Emphasis here and throughout is supplied by the writer of this opinion. . The treatment of the individual claims occasionally leaves something to be desired as well, notably the majority's conclusion at p. 58 that "[ejven if counsel was ignorant of the law and ineffective in allowing these extraneous offenses to come in, there is no reasonable probability that the jury’s verdict would have been different absent the mistake. The underlying burglary in the capital murder was overwhelmingly established and ample evidence supported a conclusion that appellant and his friends were unsavory characters.” Surely the majority does not mean to hold that if the State offers sufficient evidence of the charged offense, and also proves incidentally that a defendant and his friends are “unsavory characters," admission of proof of extraneous offenses is harmless. But what else is to be made of this statement? .Understanding, of course, that the Sixth Amendment to the United States Constitution establishes the minimum standard of effective assistance and that this Court could not interpret Texas law to provide less protection. Butler v. State, 726 S.W.2d 151, n. 2 (Tex.Cr.App.1986), reh. denied June 18, 1986.

TEAGUE, Judge, concurring and dissenting. I reluctantly concur in the result that the majority reaches, that Hon. Paul Hanne-man was not ineffective trial counsel for his client, Paul Hernandez, appellant, to the extent that appellant's conviction should be set aside. I must, however, dissent to the majority’s application to this .case of what the Supreme Court stated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). DOES TEXAS HAVE A HIGHER STANDARD THAT GOVERNS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS THAN THE FEDERAL CONSTITUTION MANDATES? Notwithstanding that it might be true that “our constitutional and statutory provisions do not create [facially] a standard in ineffective assistance cases that is more protective of a defendant’s rights than the standard put forward by the Supreme Court in Strickland,” this Court has in the past interpreted the Texas Constitutional and statutory provisions governing the right to the effective assistance of counsel more broadly than was done in Strickland, see Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Cr.App.1980), which is constitutionally permissible because it is axiomatic that a state is free to interpret its own constitutional and statutory provisions more broadly than the Supreme Court holds to be necessary in construing the Federal Constitution. E.g., Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). But a careful reading of Strickland, and comparing its teachings with what this Court has stated and held in the past, makes it apparent that the real issue presently before this Court is not whether the facial standard the Supreme Court adopted in Strickland should also be adopted by this Court, in making the determination whether Hanne-man was ineffective counsel for appellant; the real issue presently before this Court is whether that standard should be applied differently. If one will take the time to put the Supreme Court opinion of Strickland v. Washington, supra, alongside the majority’s opinion, and compare the judicial teachings therein, I believe it will become quite apparent to anyone that the majority’s opinion is nothing more than an effort to mimic what the Supreme Court stated in its dreadful and extremely horrifying opinion of Strickland v. Washington, supra, (horrifying to the extent of what dreadful consequences it will have when it comes to judging whether trial counsel was ineffective). WHAT JUSTICE MARSHALL, WHO WAS A FINE TRIAL LAWYER AND APPELLATE JUDGE BEFORE HE BECAME A JUSTICE ON THE SUPREME COURT, HAS TO SAY ABOUT STRICKLAND History teaches us that the Supreme Court in Strickland v. Washington, supra, “for the first time (in its entire history), attempt[ed] to synthesize and clarify those standards for distinguishing effective from inadequate assistance of counsel,” but “[f|or the most part, [its] efforts are unhelpful ... To tell lawyers and the lower courts that counsel for a criminal defendant must act like a reasonably competent attorney, ante, at 687 [104 S.Ct. at 2065], is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own institutions regarding what constitutes ‘professional’ representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel.” Marshall, J., dissenting opinion. In my view, this Court’s majority opinion represents an abdication of this Court’s responsibility to interpret the Texas Constitution. MY PREDICTION I predict that except in the most egregiously defended criminal cases, the Supreme Court’s decision of Strickland v. Washington, supra, also see United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which is the companion case to Strickland v. Washington, supra, which the majority opinion does not cite or discuss in this cause, but which I shall, will have deleterious effects in the field of criminal law, regarding the issue of whether trial counsel was effective or ineffective counsel, much like its decision of Dred Scott v. Sandford, 50 U.S. (19 How.) 393, 15 L.Ed. 691 (1857), had on this country. As most of us remember, the Dred Scott decision held that “free” Negroes were not citizens of the United States, notwithstanding the fact that they had been born in the United States. The decision was a major factor in causing the Civil War between the States, which commenced in 1861 and lasted for four tragic years. In the classic words of Charles Evans Hughes, the Dred Scott decision was a “self-inflicted wound” by the Supreme Court that required more than ten years to heal. I fear that it will take ten-score years before the wound that Strickland v. Washington, supra, inflicts in the field of criminal law will heal because, for Sixth Amendment purposes, that decision is the death rattle for ineffective assistance of counsel claims by convicted persons. The representation of persons accused of committing criminal wrongs, especially indigent defendants, will, I predict, long suffer as a result of the action that the Supreme Court took on May 14, 1984, when it handed down Strickland v. Washington, supra. Also see United States v. Cronic, supra. THE ACCUSATION AGAINST HANNEMAN The record on appeal in this cause reflects that on direct appeal, in one ground of error, Hon. Michael L. Brandes and Hon. Betty B. Mackey, Austin attorneys, asserted that Hon. Paul Hanneman, another Austin attorney, who was retained to represent and did represent appellant at his trial, “rendered ineffective assistance of counsel” on behalf of appellant at his, appellant’s, trial. The record on appeal also reflects that for a period of time when the case was on appeal Hanneman also represented appellant by court appointment. However, Hanneman withdrew from the case, “in agreement with the State Bar of Texas,” after which Brandes was appointed by the trial court to represent appellant on appeal. How Mackey got into the case is not clear from the record, but such is immaterial to my discussion. In fairness to Hanneman, I must state that I do not find now or then that he was not qualified to practice criminal law in this State. THERE HAS BEEN NO HEARING ON THE ACCUSATION I pause to point out that at no time has any type hearing been held on the accusation that Brandes and Mackey, either individually or jointly, have made against Hanneman; thus, in making the determination whether Hanneman was ineffective counsel when he represented appellant at his trial, this Court is without the benefit of Hanneman’s testimony as to the accusation against him. In Ex parte Duffy, supra, this Court pointed out the following: “Experience has taught us that in most instances where the claim of ineffective assistance of counsel is raised, the record on direct appeal is simply not in a shape ... that would adequately reflect the failings of trial counsel ..., (nor, I might add, that would adequately reflect any defenses that the charged attorney might have to the accusation of ineffectiveness). [Collateral attack may be just the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record.” (607 S.W.2d 513). I WOULD, THEREFORE, REMAND THIS CAUSE FOR A HEARING, BUT THE MAJORITY REFUSES TO DO SO Because we are without the benefit of Hanneman’s testimony, as to his defenses, if any, to the accusation that has been leveled against him, this causes the record to be incomplete to really answer the question whether Hanneman was ineffective counsel when he represented appellant. Therefore, I vote to remand this cause to the trial court for a hearing on the accusation. Not to take this action is, in my view, not being fair to Hanneman, and to render an opinion on such a skimpy record as we have before us is also not being fair to the bench and bar of this State. But, the majority refuses to remand the cause for a hearing. Notwithstanding this omission from the record on appeal, the court of appeals implicitly found and now this Court implicitly finds that there is a sufficient record to make the determination whether Hanne-man was ineffective counsel. Thus, as the Court does not vote to remand the cause for a hearing, I will do the best I can with the record on appeal that is presently on file in this Court — for purposes of writing my concurring and dissenting opinion. WHY BRANDES AND MACKEY CLAIM HANNEMAN WAS INEFFECTIVE TRIAL COUNSEL In their original appellate brief, Brandes and Mackey claimed that Hanneman was ineffective counsel because he “opened the door” to the admission into evidence of an extraneous offense through his introduction of the written confession of Manuel Gonzales, a co-defendant, at appellant’s trial. However, the record does not, as we shall see, support this accusation. In a supplemental brief, Brandes added to why he thought Hanneman was ineffective counsel. He asserted therein that Hanne-man was ineffective counsel because he failed to pursue an insanity defense; presented evidence that rebutted the affirmative defense of self-defense; and was “ignorant of the facts of the case and governing law.” With the exception of the assertion that concerns an extraneous offense, which I find has merit, I find that the other accusations are without merit. However, in light of the overwhelming evidence of appellant’s guilt, and the fact that his punishment was automatically set under our law, I am unable to say that Hanneman’s ineffectiveness regarding the extraneous offense was not harmless error. Thus, whichever metaphor or label one chooses to use, in describing the standard for an attorney’s trial performance, such as his performance made the trial a “farce and mockery,” he was “grossly incompetent,” his performance was “perfunctory,” his performance was “prejudicial” to the best interests of the accused, he acted in “bad faith,” his representation was a “sham and a pretense,” his performance was “shocking to the conscience,” his performance denied the accused “fundamental fairness,” or his performance made the trial “a farce and mockery,” after having carefully read the record on appeal, I am unable to conclude that Brandes and Mack-ey’s complaints against Hanneman, including the one involving an extraneous offense, have sufficient merit that would warrant this Court to set aside appellant’s conviction. Thus, the majority correctly holds that Hanneman was not ineffective counsel to such an extent that reversal of appellant’s conviction is required. HANNEMAN DID NOT HAVE MUCH TO WORK WITH The record on appeal actually reflects that in representing appellant, Hanneman had few, if any, favorable facts with which to muster a defense on behalf of appellant. As every practicing criminal attorney becomes aware in his or her professional career, “There are some cases that cannot be won, (in the sense of obtaining a not guilty verdict from the fact finder). An attorney must appraise a case and do the best he can with the facts (with which he is presented).” Rockwood v. State, 524 S.W.2d 292, 293-294 (Tex.Cr.App.1975). Also, but as previously noted, the punishment that the trial judge imposed was automatically set by our law. BRANDES’ CLAIM THAT HANNEMAN WAS INEFFECTIVE BECAUSE HE PRESENTED EVIDENCE THAT REBUTTED THE AFFIRMATIVE DEFENSE OF SELF-DEFENSE As to Brandes’ assertion that Hanneman was ineffective because he presented evidence during the trial that rebutted the affirmative defense of self-defense, try as I might, I have yet to find a scintilla of evidence that would support the defense of self-defense on the part of appellant, as provided by V.T.C.A., Penal Code, Section 9.31. To the contrary, it appears to me that if anyone had the right to use deadly force, it would have been Vasquez, the victim. See V.T.C.A., Penal Code, Section 9.41, defense of property. If it be Brandes’ contention that because Vasquez commenced chasing appellant and his two cohorts from inside his residence, after he, Vasquez, was awakened by his unwelcome and uninvited intruders, that this gave appellant the right to shoot Vasquez in the back when he got to his front porch, I believe he misses the mark because, in a sense, it was appellant and his cohorts who, by their mere unlawful presence inside of Vasquez’ residence, provoked Vasquez into chasing them. In any event, because appellant never established the defense of self-defense, this moots Brandes’ contention because I am unable to understand how Hanneman’s actions rebutted what never existed. As to Brandes’ last contention, regarding his assertion that Hanneman was ignorant of the facts of the case and governing law, I agree in principle with the reasons the majority states as to why this contention is without merit. BRANDES AND MACKEY’S CLAIM REGARDING AN EXTRANEOUS OFFENSE The record on appeal reflects that Hanneman was both effective and ineffective counsel regarding the admission into evidence of an extraneous offense. This is because the record reflects that when Hanneman was cross-examining Gonzales, the State’s accomplice witness, the witness unresponsively answered the following question as follows: “Q: Okay, then that morning, (when Gonzales was arrested), y’all were walking down the street and the police picked you up. Is that not correct? A: Yeah, we were going inside this other house.” [My Emphasis]. The latter portion of Gonzales’ answer was unquestionably unresponsive to the question asked, and subject to an objection. However, Hanne-man did not object. Thus, he was ineffective on this point. Thereafter, but based upon an incorrect representation by the prosecuting attorney of Hanneman’s question, the trial judge erroneously overruled Hanneman’s objection to the admission into evidence of the extraneous offense of attempted burglary of another house that occurred the morning after Vasquez was killed. In this regard, Hanneman was effective counsel. However, but without objection, the State later put on the arresting officer, who testified as to his response to a police dispatch about “a burglary then in progress.” Thus, Hanneman’s failure to object to the officer’s testimony caused the error to be harmless. Autry v. State, 159 Tex.Cr.R. 419, 264 S.W.2d 735 (Tex.Cr.App. 1954). In this, he was ineffective counsel. Notwithstanding this Court’s decision of Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977), that such error on the part of Hanneman might have been “a question of tactic,” I would hold, for the reasons that Judge Phillips stated in the dissenting opinion he filed in that cause, that Hanneman was ineffective for not objecting to the police officer’s testimony concerning the extraneous offense. However, in light of the overwhelming evidence of appellant’s guilt, I am unable to conclude, though not without some difficulty, that this single error causes him to become ineffective counsel to such an extent that reversal of appellant’s conviction is required. Although I am loathe to characterize or classify such error as harmless, because I believe that effective assistance of counsel is a “constitutional right so basic to a fair trial that [its] infraction [usually] can never be treated as harmless error,” Ex parte Duffy, supra, 607 S.W.2d at 524, I am compelled to do so in this instance because the evidence in this non-death penalty case establishes beyond any doubt that appellant committed the capital murder of Vasquez, and the error had no affect whatsoever on the punishment that was assessed. See Weatkersby v. State, 627 S.W.2d 729 (Tex.Cr.App.1982); Allen v. State, 552 S.W.2d 843, 844-846 (Tex.Cr.App.1977). E.g., Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1972). Also see Whitsell v. Perini, 419 F.2d 95 (6th Cir. 1969). Cf. Beasley v. United States, 491 F.2d 687 (6th Cir.1974). BRANDES’ FAULTING HANNEMAN FOR NOT PURSUING AN INSANITY DEFENSE As to Brandes’ faulting Hanneman for not “pursuing an insanity defense,” other than admitting that he had consumed some beer, appellant himself testified at the pretrial hearing that was held on the admissibility of appellant’s written confession, see Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774,12 L.Ed.2d 908 (1964), that he had not taken any drugs or sniffed any glue or paint the night before. Brandes, in support of his contention, however, relies upon a “psychological report” that was filed in Juvenile Court by D.L. Goldwater, a psychologist appointed by the Juvenile Court. The report is in the record on appeal. However, we do not have a transcription of the proceedings that occurred in Juvenile Court. Thus, I agree with Brandes that “Since the facts in this case remained covered and undetected, there is no way of telling whether these facts, (relating to the possible defense of insanity), if fully developed, would or would not have established the defense (of insanity) in dispute.” (P. 10 of Supplemental Brief.) And this is another reason why a hearing should be held on the accusation. Nevertheless, I have carefully searched the record for evidence that would establish that at the time of the commission of the offense the appellant, as a result of severe mental disease or defect, did not know that his conduct was wrong, see V.T. C.A., Penal Code, Section 8.01(a), which evidence is a prerequisite that must be established before the defense of insanity is raised. My search has been in vain. Brandes, in support of his contention that Hanneman was ineffective because he did not pursue the defense of insanity, seizes upon that part of Goldwater’s report that states that appellant was grossly immature for his age, and that the “ ‘Dap’ test, (draw a picture test), was of sufficient detail to yield a developmental age of approximate eight and one-half years.” However, the fact that this might reflect or indicate that appellant might be mentally retarded does not reflect or indicate that he was suffering from mental disease or defect to such an extent that he did not know his conduct was wrong. My research has yet to reveal a single case where simply because the accused was immature, mentally deficient, or mentally retarded, that this, standing alone, is sufficient to raise the defense of insanity. Nor does Brandes cite such a case. By analogy, this Court, as well as the Federal courts, has held many times that a mentally deficient person is capable of waiving his right of self-incrimination. See Grayson v. State, 438 S.W.2d 553 (Tex.Cr.App.1969); Lavallis v. Estelle, 370 F.Supp. 238 (U.S.S.D.Tex.1974). Of course, if the mental subnormality is so great that an accused is incapable of understanding the meaning and effect of his confession, then it would not be admissible. Casias v. State, 452 S.W.2d 483 (Tex.Cr.App.1970). But that is not our case. Brandes’ contention is without merit. Brandes also does not attack the admissibility of appellant’s written confession on the ground that at the time appellant gave the confession he was so mentally defective that he was incapable of understanding the meaning and effect of his confession. The majority, however, tells appellant that he is “free to develop the facts further in a post-conviction habeas hearing, particularly with respect to counsel’s alleged failure to pursue an insanity defense,” (my emphasis), thus implying that Hanne-man had a duty to investigate this defense. In light of the appellant’s express and unequivocal testimony, that, other than beer, his body did not become subject to any other deleterious substance, and the fact that mental retardation, standing alone, is insufficient to raise the insanity defense, I strongly disagree that Hanneman had any duty to make an investigation regarding a possible insanity defense. The majority’s implication will place an intolerable and unnecessary burden upon the bench and bar of this State, as well as the taxpayers of this State, which they can ill afford at this time. THE BIRTH OF THE RIGHT TO THE ASSISTANCE OF COUNSEL In light of this Court’s express approval of Strickland v. Washington, supra, I will next address the subject of the right to the effective assistance of counsel. The birth of the right to the assistance of counsel, as guaranteed by the Sixth Amendment to the Federal Constitution, and made applicable to the States through the Fourteenth Amendment is, of course, a fascinating and interesting event in the history of the development of criminal law in this country. However, although the Sixth Amendment was declared in force on December 15, 1791, it was not until 1932, when the Supreme Court decided Powell v. Alabama, 28