March 6, 2015

Texas Courts of Appeals

Lopez v. State

No. 1-13-01079-CR                2/26/15


After the defendant pleaded guilty to aggravated robbery and ultimately received a 30-year sentence, was defense counsel defective because he asked the defendant to gather his own good character letters for punishment without defense counsel interviewing any punishment witnesses and also did not further investigate a PSI report finding the defendant’s IQ to be 10 points below average?


Yes. Because defense counsel did not even investigate potential mitigating witnesses or evidence, there was no reasonable trial strategy for deciding not to present mitigating evidence, and the defendant was prejudiced because no mitigating evidence was presented to counterbalance the aggravating evidence presented in punishment. Read the opinion.


Ineffective assistance of counsel claims seldom succeed on direct appeal. This case is interesting because counsel was retained, but had not been paid. Yet, the trial court apparently would not let counsel withdraw. That said, once the judge denied the motion to withdraw, counsel needed to take appropriate steps to defend his client. It will be interesting to see if the case is reviewed by the Court of Criminal Appeals—the evidence of prejudice is weak.

Lake v. State

No. 02-13-00521-CR              2/19/15


After the trial judge said, “I don’t need one” in response to defense counsel’s request to make a closing statement at a revocation hearing, was defense counsel required to make a formal objection to preserve the complaint for appeal?


No. The Rules of Appellate Procedure require only a request, not a formal objection. The defendant’s right to close upon request is constitutionally absolute. Not only is the issue preserved as soon as counsel asks to close, error is presumed without additional analysis required. Read the opinion. 


This case should be reviewed by the Court of Criminal Appeals. The trial court did not make an adverse ruling. Counsel asked to make a closing argument, and the trial court told counsel “I don’t need one,” not that counsel could not make one. Appellate rulings like this, at best, encourage sloppy courtroom work, and at worst, give incentive for gamesmanship and laying behind the log. In this case, the lawyer either should have prompted the trial court for a ruling on the request or objected if the trial court refused to give him a ruling. It is no difficult task to ensure the trial court is actually aware of the rights at issue and utters the words “denied,” “overruled,” or simply “no.”

Office of the Attorney General

Request from the Washington County Attorney

RQ-0010-KP               2/11/15


Does §41.005 of the Government Code authorize a county attorney to separate a portion of bond forfeiture collections as a commission without the approval of the commissioners court? Read the request.

Request from the Dallas County District Attorney

RQ-0011-KP               2/10/15


Does a county have a duty to employ and pay private legal counsel to defend a former county employee in a civil suit for alleged misconduct that is also the basis of a pending criminal charge against the employee? Read the request.


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