Lenin Saldado Lopez v. State , 2015 Tex. App. LEXIS 1866 ( 2015 )

Opinion issued February 26, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-01079-CR
———————————
LENIN SALDADO LOPEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Case No. 1403196
OPINION
Lenin Saldado Lopez pleaded guilty to aggravated robbery without a
recommended sentence. Following a presentence investigation, the trial court
sentenced Lopez to 30 years’ confinement. Lopez filed a motion for new trial,
arguing that his trial attorney provided ineffective assistance of counsel. The
motion was denied.
In one issue, Lopez argues that his attorney provided ineffective assistance
during the punishment phase of his trial and the trial court, therefore, erred in
denying his motion for new trial. Specifically, Lopez alleges that his attorney
failed to investigate his background or gather and present mitigating evidence at
the sentencing hearing and, instead, left it to Lopez—who is alleged to be
“significantly developmentally disabled [with] various mental health problems”—
to prepare for the sentencing hearing unassisted.
Because we conclude that the attorney was deficient and that Lopez
established prejudice as a result of the ineffective assistance, we reverse the trial
court’s order and remand for a new sentencing hearing.
Background
Lopez was indicted on the felony offense of aggravated robbery. He was
alleged to have injured an individual while he and another man robbed him at
gunpoint. When Lopez and the other man were arrested, they had two robbery
victims’ wallets and clothing items in their possession, as well as a large sum of
cash.
Lopez hired an attorney to represent him. During plea negotiations, the State
offered a plea deal that included a 15-year sentence, which was the minimum
2
applicable sentence. Lopez rejected the offer. On the day of trial, his attorney filed
a motion to withdraw. Counsel stated that “[g]ood cause exists for withdrawal
[because counsel] is unable to effectively communicate with Lenin Lopez so as to
be able to adequately represent” him and that Lopez “has failed to comply with the
terms of the employment agreement [because he] has failed and refused to pay for
legal services per the terms of his contract.”
Counsel simultaneously filed a motion for continuance, stating that he
needed to complete trial preparations, which had been delayed due to his handling
of another case. Counsel again stated that he had not been fully paid. The motion
for continuance also asserted that “the Court’s records indicate that the Defendant
has retained other counsel, so [the attorney moving for a continuance] has not
prepared for trial.” The motion does not identify where in the record there is an
indication of dual representation. Nor do we find one.
There are no orders in the record granting or denying these two motions.
Instead, the record reveals that—on the same day the motions were filed and Lopez
was scheduled for trial—he pleaded guilty without a sentencing recommendation.
The trial court accepted the guilty plea, ordered a presentence investigation (PSI),
and scheduled a sentencing hearing to occur two months later.
On the same day as the withdrawal motion and the guilty plea, Lopez’s
attorney sent him a letter telling him to accumulate mitigation evidence. He told
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Lopez to collect “‘good guy’ letters” and to give them directly to the probation
department when he was interviewed as part of the presentence investigation; to
meet with counsel on the day of the sentencing hearing 15 minutes before it was
scheduled to begin; and to bring to the hearing people “to support you.” The letter
also asked that Lopez “get current” on his fee payments.
The only letter Lopez gave the PSI investigator was from his girlfriend. She
focused her comments on her belief that Lopez was innocent. Her letter did not
focus on the issue actually before the trial court, which was the appropriate
sentence to be imposed, given that Lopez had already admitted guilt.
Lopez’s counsel did not appear at the pre-scheduled sentencing hearing. The
hearing was reset for a couple of days later. Again, he did not appear. Without an
attorney there to counsel him, Lopez indicated to the court that he wanted to “back
out” of his plea. Lopez’s bond was immediately revoked, and he was taken into
custody to await sentencing. The trial court indicated that he viewed Lopez, at that
point, as a “flight risk.” Lopez remained in custody until the sentencing hearing
was eventually held. His plea was not changed.
At the sentencing hearing, trial counsel presented Lopez’s defense in a
single sentence:
Your Honor, my client has instructed me to advise the Court that
whatever sentence is given, he would want it to be the absolute
minimum because he believes he’s going to be a great role model for
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both his son and his wife and the community at large. And other than
the statement from Mr. Lopez, that’s all I have.
Counsel informed the court, “Your Honor, there’s no evidence that’s being offered
today, no deletions, additions, objections, et cetera to the PSI.” Thus, no mitigation
evidence was presented to the court outside of what had been provided to the PSI
investigator.
At the hearing, the State directed the Court to a written statement from the
victim, describing the panic and fear he continues to feel as a result of Lopez
robbing and beating him with a gun. The victim requested that Lopez receive the
maximum available sentence so that he could not rob again or “kill innocent
people.”
Without either side offering any other aggravating or mitigating evidence,
the State requested a sentence between 30 and 35 years. The trial court sentenced
Lopez to 30 years. After sentencing, his trial counsel successfully withdrew his
representation.
Lopez was appointed new counsel, who filed a motion for new trial. Lopez
argued that his trial counsel had provided ineffective assistance of counsel, which
caused his guilty plea to be involuntarily made and his presentation of mitigating
evidence deficient. Specifically, he contended that his counsel failed to present
mitigating evidence of Lopez’s past mental-health issues.
5
Trial counsel did not testify at the new-trial hearing. Instead, his affidavit
was admitted into evidence. The affidavit stated that the attorney was unaware of
Lopez’s having any mental health issues.
Lopez presented additional mitigation evidence at the new-trial hearing. This
evidence included affidavits from two individuals who averred that Lopez’s trial
counsel never contacted them about testifying on his behalf at the sentencing
hearing, from his girlfriend who stated that trial counsel did not assist in
preparations for the sentencing hearing, and from his mother who stated that trial
counsel never returned her phone calls. Additionally, the trial court admitted into
evidence the letter from Lopez’s attorney telling him to gather mitigating evidence
and to submit it directly to the PSI investigator.
Lopez also presented the trial court with two written reports. The first was a
“synopsis of psychosocial interview” conducted by a psychosocial worker in the
Harris County Public Defender’s Office after he retained new counsel. The second
was an earlier “psychological screening” signed by a Harris County-affiliated
psychologist. Lopez argued that his trial counsel should have incorporated the
mental-health information into his mitigation defense at the sentencing hearing.
The trial court denied Lopez’s new-trial motion. On appeal, Lopez contends
that the trial court erred by denying his motion but, in doing so, he limits his
6
argument to the assertion that trial counsel was deficient during the punishment
phase of his trial.
Standards of Review
To prevail on a claim of ineffective assistance of counsel, the defendant
must show that (1) his counsel’s performance was deficient and (2) a reasonable
probability exists that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex.
Crim. App. 2005). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at
2068; Andrews, 159 S.W.3d at 102. The defendant has the burden to establish both
prongs by a preponderance of the evidence; failure to make either showing defeats
an ineffectiveness claim. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.
2011); see Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
Allegations of ineffective assistance of counsel must be firmly rooted in the
record. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Escobar v.
State, 227 S.W.3d 123, 127 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We
do not limit our review to a single portion of the representation; instead, we look to
the totality of the representation to determine the effectiveness of counsel.
Strickland, 466 U.S. at 688–89, 695, 104 S. Ct. 2065, 2069; Thompson v. State, 9
7
S.W.3d 808, 813 (Tex. Crim. App. 1999); Bridge v. State, 726 S.W.2d 558, 571
(Tex. Crim. App. 1986). In viewing counsel’s performance, we indulge a strong
presumption that his performance falls within the wide range of reasonable
professional assistance or trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct.
2065; Thompson, 9 S.W.3d at 813. We will conclude that counsel was deficient
only if “the conduct was so outrageous that no competent attorney would have
engaged in it.” Andrews, 159 S.W.3d at 101. If the record is silent as to counsel’s
strategy, the presumption of effectiveness is sufficient to deny relief. See Rylander
v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003).
Given that Lopez raised his ineffective assistance claim in a motion for new
trial, we analyze the issue on appeal as a challenge to the trial court’s denial of his
new-trial motion and review it under an abuse-of-discretion standard. Charles v.
State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Starz v. State, 309 S.W.3d
110, 118 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Thus, we reverse only
if the trial court’s decision to deny the motion for new trial was arbitrary or
unreasonable, viewing the evidence in the light most favorable to the trial court’s
ruling. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Starz, 309
S.W.3d at 118. A decision is arbitrary or unreasonable if no reasonable view of the
record could support the trial court’s ruling. Webb v. State, 232 S.W.3d 109, 112
(Tex. Crim. App. 2007); Charles, 146 S.W.3d at 208.
8
Strickland First Prong
To satisfy the first prong of the Strickland test to establish ineffective
assistance of counsel, Lopez had the burden to demonstrate that his attorney’s
professional services fell below an objectively reasonable standard. Strickland, 466
U.S. at 687–88, 104 S. Ct. at 2064.
A. Counsel’s duty to actively represent his client
Criminal defendants have a constitutional right to counsel. Strickland, 466
U.S. at 684, 104 S. Ct. at 2063; U.S. CONST. amend. VI. This requires more than
the physical presence of an attorney at the proceeding:
That a person who happens to be a lawyer is present at trial alongside
the accused . . . is not enough . . . . [T]he right to the assistance of
counsel . . . envisions counsel[] playing a role that is critical to the
ability of the adversarial system to produce just results. An accused is
entitled to be assisted by an attorney, whether retained or appointed,
who plays the role necessary to ensure that the trial is fair.
Strickland, 466 U.S. at 685, 104 S. Ct. at 2063.
Counsel is expected to use his professional judgment to prepare for trial and
to advise his client. Id. at 680–81; 104 S. Ct. at 2060–61. An “attorney who
represents a criminal defendant is ‘bound by professional duty to present all
available evidence and arguments in support of (the client’s) positions and to
contest with vigor all adverse evidence and views.’” Thomas v. State, 550 S.W.2d
64, 68 (Tex. Crim. App. 1977) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 787,
9
93 S. Ct. 1756, 1762 (1973); Wenzy v. State, 855 S.W.2d 47, 50 (Tex. App.—
Houston [14th Dist.] 1993, pet. ref’d).
Unless a motion to withdraw has been granted, a criminal defense attorney
has a continuing duty to represent his client to the fullest of his ability. See Wenzy,
855 S.W.2d at 50; TEX. DISCIPLINARY R. PROF. CONDUCT 1.15(c) (1990).
B. Counsel’s duty to investigate and evaluate mitigation evidence
“The decision whether to present witnesses is largely a matter of trial
strategy.” Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.]
2008, pet. ref’d). We defer to trial court’s determination of trial strategy and his
choice of witnesses so long as any conceivable strategy can be imagined for the
actions taken or not taken. Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App.
2003).
But “counsel can only make a reasonable decision to forgo presentation of
mitigating evidence after evaluating available testimony and determining it would
not be helpful.” Lair, 265 S.W.3d at 595. Thus, “[c]ounsel is ineffective when he
fails to investigate and interview potential punishment witnesses, despite their
availability and willingness to testify on appellant’s behalf . . . .” Id.; Wiggins v.
Smith, 539 U.S. 510, 521–24, 123 S. Ct. 2527, 2535–36 (2003). Counsel’s failure
to uncover and present mitigating evidence “cannot be justified as a tactical
decision when defense counsel has not conducted a thorough investigation of the
10
defendant’s background.” Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—
Houston [1st Dist.] 2005, pet. dism’d) (“Defense counsel’s failure to investigate
and call any punishment witnesses amounts to deficient performance.” (emphasis
added)); see also Wiggins, 539 U.S. at 527–28, 123 S. Ct. at 2538 (noting that trial
counsel’s discovery of some favorable mitigating evidence may require counsel, as
part of provision of reasonable professional services, to investigate further for
additional mitigating evidence).
C. The evidence concerning counsel’s investigation and presentation of
mitigation evidence
Lopez’s motion for new trial alleged that trial counsel failed to present
mitigating evidence at the sentencing hearing. Lopez attached a report to his
motion that indicated a history of mental health issues. At the hearing, Lopez
introduced into evidence an affidavit from his trial counsel responding to the
allegation. Counsel stated, “I am unaware of Mr. Lopez having any mental health
issues or history.”
The new-trial motion complained of other areas of mitigation evidence being
omitted as well. Lopez contended that counsel was deficient by failing to inform
the trial court that he “has been affected by tragedy and instability during his
childhood and has people who know him to be a good person.” Lopez attached to
the motion an affidavit from his girlfriend, stating that trial counsel “never did
anything to prepare for the PSI” and “never asked us any questions about [his]
11
background.” She averred that trial counsel “never wanted to see any of the letters
from friends of the family,” which he previously told them to send directly to the
probation officer. She stated that the letters were sent “without any help from the
lawyer.” She further stated, “We owed him money so he never did any work on the
case and would not even meet with us at his office.” 1 Trial counsel’s affidavit did
not respond to these allegations.
The trial court admitted additional evidence at the hearing that had not been
included with the new-trial motion. This included letters from two people stating
that they had not been contacted by trial counsel before the sentencing hearing and
that, had they been contacted, they would have been willing to testify positively
about Lopez. There was an additional affidavit from Lopez’s mother stating that
trial counsel “would not return our calls,” she and counsel had never spoken, and
she was unable to attend the sentencing hearing because of recent surgery. The
final piece of evidence admitted at the new-trial hearing was the letter from trial
counsel to Lopez written the day he pleaded guilty, instructing him to collect
“‘good guy’ letters,” deliver the letters directly to the probation officer, and bring
people to the sentencing hearing who “support” him.
1
Also attached to the motion were two letters that Lopez alleges he and his
girlfriend unsuccessfully attempted to have included in the PSI. The final
attachment was the partially redacted psychological screening report from
several years earlier.
12
None of this evidence, other than the mental health report and the
girlfriend’s affidavit, was presented to the trial court until the new-trial hearing,
meaning that it was submitted after the trial attorney prepared his affidavit. As a
result, counsel’s affidavit does not respond to these assertions. Likewise, because
trial counsel did not testify at the new-trial hearing, the trial court did not receive
any evidence directly responsive to the affidavits. Nonetheless, the record is not
devoid of evidence concerning counsel’s preparation for the sentencing hearing.
Counsel’s letter to Lopez, sent after counsel had unsuccessfully attempted to
withdraw his representation and Lopez had pleaded guilty, instructed Lopez to
collect supportive letters, give them directly to the PSI investigator for inclusion in
the PSI report, and meet counsel at the sentencing hearing. He gave no indication
that he was willing to assist with interviewing potential witnesses or reviewing
their statements before they were submitted.
The reasonable inferences from counsel’s letter are that counsel had
assigned to Lopez the task of identifying and contacting potential character
witnesses and determining what should, and should not, be included in their
character-reference letters—without any assistance from counsel—and that
counsel’s next involvement in the case would not be until the hearing. Cf. Hooper
v. State, 214 S.W.3d 9, 15–16 (Tex. Crim. App. 2007) (noting that “an inference is
a conclusion reached by considering other facts and deducing a logical
13
consequence from them” while speculation “is mere theorizing or guessing about
the possible meaning of facts and evidence presented.”). This inference is further
supported by the affidavits from Lopez, his girlfriend, and mother, as well as by
the letters from acquaintances of Lopez who were never contacted by counsel.
The delegation of the important task of developing mitigation evidence was
inconsistent with trial counsel’s professional obligation to conduct a reasonable
investigation into his client’s background and to evaluate whether the information
discovered would be helpful in mitigating against the State’s evidence on
punishment. See Williams v. Taylor, 529 U.S. 362, 396, 120 S. Ct. 1495, 1514–15
(2000); Rivera v. State, 123 S.W.3d 21, 31 (Tex. App.—Houston [1st Dist.] 2003,
pet. ref’d); see also Wenzy, 855 S.W.2d at 50; TEX. DISCIPLINARY R. PROF.
CONDUCT 1.15(c) (1990).
Further, the PSI report was provided to trial counsel at least 10 days before
the sentencing hearing, and it indicated that Lopez had a below-normal IQ and
mental-health diagnoses. That information should have raised an issue for counsel
whether additional investigation was necessary to uncover more mitigating
evidence. Wiggins, 539 U.S. at 527–28, 123 S. Ct. at 2538. At a minimum, it
should have raised the issue of whether Lopez was capable of effectively
evaluating the mitigation evidence available to him without attorney assistance. As
the United States Supreme Court stated in Atkins v. Virginia, 536 U.S. 304, 320–
14
21, 122 S. Ct. 2242, 2252 (2002), severely mentally deficient defendants “may be
less able to give meaningful assistance to their counsel and are typically poor
witnesses, and their demeanor may create an unwarranted impression of lack of
remorse for their crimes.”
Moreover, by telling Lopez to bring supporters directly to the hearing just 15
minutes before it was to begin, it is evident that counsel would not have had
sufficient time to interview and prepare these witnesses not only for direct
examination but also for cross-examination. And, without that information, he
would not have had the information necessary to determine whether, on balance,
Lopez’s defense would be aided by each witness.2 See Wiggins, 539 U.S. at 527–
28, 536, 123 S. Ct. 2538, 2543; Lair, 265 S.W.3d at 595 (“[C]ounsel can only
make a reasonable decision to forgo presentation of mitigating evidence after
evaluating available testimony and determining it would not be helpful.”).
Even absent direct testimony from trial counsel regarding his strategy in
preparation for the sentencing hearing or strategy during the hearing, we conclude
that the only reasonable inference from the evidence presented to the trial court,
2
It is not even clear that Lopez could have reasonably understood his counsel’s
letter to state that he should bring potential witnesses to the hearing to testify on
his behalf. The letter states only that Lopez should bring people “to support” him.
Lopez reasonably could have understood the letter to suggest that he bring people
to observe the proceeding and offer him non-participatory, emotional support—an
action that would not have added to his mitigation defense.
15
including counsel’s own letter to his client, is that counsel did not participate in
collecting mitigation evidence, did not review the mitigating evidence his client
collected without his assistance, and did not present any mitigation evidence on his
client’s behalf at the hearing. The evidence, thus, rebuts the presumption of
effectiveness of counsel, Strickland, 466 U.S. at 689, 104 S. Ct. 2065, and
demonstrates that counsel failed to perform as a reasonably competent attorney.
Andrews, 159 S.W.3d at 101.
Accordingly, we conclude that counsel’s performance fell below an
objective standard of reasonableness and, as a result, the first prong of the
Strickland test was met in support of Lopez’s new-trial motion.
Strickland Second Prong
In addition to demonstrating that his attorney’s services fell below an
objectively reasonable standard, Lopez also had to establish that defense counsel’s
deficient performance prejudiced him. Strickland, 466 U.S. at 694, 104 S. Ct. at
2068; Rivera, 123 S.W.3d at 32. This is the second prong of the Strickland test. See
Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
For the punishment phase, our inquiry is whether there is a reasonable
probability that the assessment of punishment would have been less severe in the
absence of defense counsel’s deficient performance. Wiggins, 539 U.S at 534, 123
S. Ct. at 2542; Lair, 265 S.W.3d at 595. Prejudice is established if the probability
16
that the outcome would have been different is “sufficient to undermine confidence
in the outcome” of the proceeding. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
Andrews, 159 S.W.3d at 102. Our “ultimate focus” is whether “the result of the
particular proceeding is unreliable because of a breakdown in the adversarial
process that our system counts on to produce just results.” Strickland, 466 U.S. at
696, 104 S. Ct. at 2069.
As this Court has previously noted, “[t]he sentencing process consists of
weighing mitigating and aggravating factors, and making adjustments in the
severity of the sentence consistent with this calculus.” Shanklin, 190 S.W.3d at
165. Thus, the adversarial process is hindered if the factfinder is denied access to
powerful mitigating evidence, leaving only the aggravating factors for its
consideration. See Williams, 529 U.S. at 395–99, 120 S. Ct. at 1514–16 (holding
that defendant was prejudiced by counsel’s ineffectiveness in not investigating or
presenting mitigating evidence, including “nightmarish” childhood, repeated past
sexual assaults during his youth, extremely low IQ, and several positive character
references from professionals in community who had witnessed defendant excel in
structured environments).
When defense counsel presents “no evidence of mitigating factors . . . to
balance against the aggravating factors presented by the State” and fails to do so
because he did not investigate mitigating factors or contact potential mitigation
17
witnesses, there is prejudice. Shanklin, 190 S.W.3d at 165. Prejudice exists, in that
context, because there is not even a possibility of the factfinder considering
mitigating evidence. See id. at 165–66 (“We conclude that appellant has
demonstrated prejudice in this case . . . . [D]efense counsel’s failure to interview or
call a single witness, other than appellant, deprived him of the possibility of
bringing out even a single mitigating factor.”); Lair, 265 S.W.3d at 595–96.
Here, trial counsel presented no mitigating evidence, not even Lopez
himself. Two people averred that they would have testified favorably for Lopez
had they been contacted by counsel, but they were never contacted. Even though
the PSI report contained information indicating that Lopez had a troubled
background, including intellectual deficiencies that impacted his general
intelligence, school performance, and decision-making, counsel failed to highlight
even one piece of this information to the trial court. 3 See Williams, 529 U.S. at
395–99, 120 S. Ct. at 1514–16; Wiggins, 539 U.S. at 534, 123 S. Ct. at 2542.
The only “evidence” counsel offered at the sentencing hearing was his one-
sentence statement to the trial court that his client wanted the court to know that he
considered himself to be a good role model. This statement was made in an
evidentiary vacuum: counsel provided absolutely no evidence to support Lopez’s
3
In fact, based on his affidavit that he was unaware of any mental-health issues,
Lopez raises the issue whether counsel had read the PSI report before the
sentencing hearing.
18
belief that he could be a good role model. He failed to offer examples of past good
deeds, positive interactions, supportive friends or family, or any other mitigating
evidence. See Wiggins, 539 U.S. at 536–38, 123 S. Ct. at 2543–44 (concluding that
defendant was prejudiced by counsel’s failure to present any of large amount of
available mitigating evidence to counter obvious aggravating factors, including
violent nature of charged offense and defendant’s lengthy criminal history).
Without any context or basis for counsel’s statement, it was little more than empty
rhetoric.
Had trial counsel investigated and brought mitigating factors to the trial
court’s attention, that information would have been weighed against the
aggravating factors in the case, which were significant, including the violence that
was used to commit the robbery, indications that Lopez had been involved in other,
recent robberies, and a criminal history that included drug possession, a separate
theft conviction, a trespass conviction, and a previous aggravated robbery that
resulted in a three-year sentence. Instead there was nothing to weigh against the
strong aggravating factors.
By neither investigating nor presenting evidence for the trial court to
consider in assessing punishment, trial counsel deprived Lopez of even a
possibility of developing a mitigating defense. Thus, prejudice is established. See
Shanklin, 190 S.W.3d at 165–66 (“We conclude that appellant has demonstrated
19
prejudice in this case, even though we cannot say for certain that appellant’s
character witnesses would have favorably influenced the jury’s assessment of
punishment. We have no doubt, however, that defense counsel’s failure to
interview or call a single witness, other than appellant, deprived him of the
possibility of bringing out even a single mitigating factor.” (internal citations
omitted)).
We therefore conclude that the trial court erred in denying Lopez’s motion
for new trial on punishment and sustain Lopez’s sole issue on this appeal.
Conclusion
We have concluded that Lopez’s counsel was deficient and that the
deficiency prejudiced Lopez during sentencing. Accordingly, we reverse the trial
court’s order denying Lopez’s new-trial motion and remand the cause for a new
punishment hearing pursuant to article 44.29(b) of the Texas Code of Criminal
Procedure. TEX. CODE CRIM. PROC. ANN. art. 44.29(b) (West 2013); Lair, 265
S.W.3d at 596 (remanding for new punishment hearing). Because Lopez’s appeal
was limited to the issue of punishment, we have not reviewed the trial court’s
determination of guilt. That portion of the trial court’s judgment has not been
challenged and remains unchanged.
Harvey Brown
Justice
20
Panel consists of Justices Keyes, Higley, and Brown.
Publish. TEX. R. APP. P. 47.2(b).
21