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


                                           3
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


                                         4
      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
