Lopez v. State

• Decision Date: 26 February 2015
• Docket Number: NO. 01–13–01079–CR,01–13–01079–CR
• Citation: 462 S.W.3d 180
• Parties: Lenin Saldado Lopez, Appellant v. The State of Texas, Appellee
• Court: Texas Court of Appeals

462 S.W.3d 180

Lenin Saldado Lopez, Appellant

v.The State of Texas, Appellee

NO. 01–13–01079–CR

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 26, 2015

Sarah V. Wood, Assistant Public Defender, Houston, TX, for appellant.

Devon Anderson, District Attorney, Bridget Holloway, Assistant District Attorney, Houston, TX, for State.

Panel consists of Justices Keyes, Higley, and Brown.

OPINION

Harvey Brown, Justice

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 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 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 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.

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 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, 80 L.Ed.2d 674 (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. 2052, 2069 ; Thompson v. State, 9 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. 2052 ; 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. SeeRylander 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...