Heidelberg, Ex Parte Donald C.

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,263

EX PARTE DONALD C. HEIDELBERG, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM HARRIS COUNTY

Hervey, J., filed a dissenting opinion in which Keasler, J., joined.

DISSENTING OPINION

I respectfully dissent. The Court decides, as a matter of federal constitutional law, that applicant's trial counsel provided constitutionally deficient performance (1) by failing to object to the prosecution's use of applicant's post-arrest, but pre-Miranda, (2) silence for impeachment purposes because "the trial court would have been obliged, under…