                                                                       ACCEPTED
                                                                   01-15-00472-CR
                                                        FIRST COURT OF APPEALS
                                                                HOUSTON, TEXAS
                                                               9/9/2015 9:36:18 PM
                                                             CHRISTOPHER PRINE
                                                                            CLERK

    CASE NO. 01-15-00472-CR
                                                  FILED IN

In The Court Of Appeals For The            1st COURT OF APPEALS
                                               HOUSTON, TEXAS
                                           9/9/2015 9:36:18 PM

  First Supreme Judicial District          CHRISTOPHER A. PRINE
                                                   Clerk


        At Houston, Texas
           A LFREDO L ARA,
                                       Appellant,

                    VS.


       T HE STATE OF T EXAS,
                                       Appellee.

             Cause No. 1414552
            th
         184 Judicial District Court
            Harris County, Texas

             LARA’S BRIEF

                          Respectfully submitted by:
                          COLIN B. AMANN
                          KETTERMAN HEDLESTEN & AMANN
                          1004 PRAIRIE, SUITE 300
                          HOUSTON, TX 77002
                          713.652.2003 (Voice)
                          713.652.2002 (Facsimile)
                          colin@khalawyers.com


       L ARA W AIVES O RAL A RGUMENT
I.   IDENTITY O F P ARTIES A ND C OUNSEL

     A. Parties
     Alfredo Lara, Defendant/Appellant

     The State of Texas, Plaintiff
     Represented by:
     The Harris County District Attorney’s Office
     1201 Franklin
     Houston, TX 77002

     B. Appellate Counsel
     Colin B. Amann
     Texas Bar 01138100
     1004 Prairie, Suite 300
     Houston, TX 77002
     713-652-2003 (voice)
     713-652-2002 (facsimile)

     C. Trial Counsel
     Farnaz Faiaz
     Texas Bar 24063791
     Harris County District Attorney’s Office
     713-755-5800
     Trial Counsel for the State of Texas

     Kenneth Junck
     Texas Bar 11051000
     13410 Hollypark Drive
     Houston, TX 77015
     713-453-7283
     Trial Counsel for Lara




                                         -i-
II.      T ABLE O F C ONTENTS

Identity of Parties and Counsel......................................................................................i

Table of Contents.........................................................................................................ii

Index of Authorities....................................................................................................iii

Statement of the Case...................................................................................................1

Statement Regarding Oral Argument............................................................................2

Issues Presented...........................................................................................................2

         1.     Lara filed and presented a motion for new trial alleging that his
         counsel was ineffective for failing to investigate and present mitigating
         evidence at Lara’s sentencing. The district court scheduled Lara’s motion
         for a hearing. But because of a clerical error, it was set after the 75-day
         deadline had passed. So Lara’s motion was overruled as a matter of law.
         Should this appeal be abated so that the trial court can conduct the
         hearing?

         2.     Is Lara entitled to a hearing on his motion for new trial, which
         alleges ineffective assistance of counsel based on a failure to investigate
         and present mitigating evidence at Lara’s sentencing?

Summary of the Argument.........................................................................................2

Statement of Facts........................................................................................................3

Arguments...................................................................................................................9

Prayer........................................................................................................................19

Certificate of Service..................................................................................................21

Certificate of Compliance...........................................................................................22

                                                              -ii-
III.    INDEX O F A UTHORITIES

Cases:
Cuyler v. Sullivan, 446 U.S. 335 (1980)..................................................................10

Gagnon v. Scarpelli, 411 U.S. 778 (1973)...............................................................11

Hemphill v. State, 2015 WL 1456338 (Tex. App. – Houston [14 th Dist.]
March 26, 2015)(not designated for publication)....................................................20

Jordan v. State, 883 S.W.2d 664 (Tex. Crim. App. 1994)..........................16, 17, 18

Lopez v. State, 462 S.W.3d 180
(Tex. App. – Houston [1st Dist.] 2015..........................................................13, 14, 15

McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996)................................10

McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985)....................................16

Milburn v. State, 15 S.W.3d 267
(Tex. App. – Houston [14th Dist.] 2000)................................................13, 15, 17, 19

Nix v. Whiteside, 475 U.S. 157 (1986).....................................................................12

Powell v. Alabama, 287 U.S. 45 (1932)...............................................................9, 12

Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993)..................................16, 17

Rivera v. State, 123 S.W.3d 21
(Tex. App. – Houston [1st Dist.] 2003, pet. ref’d)....................................................13

Strickland v. Washington, 446 U.S. 668 (1984)....................................10, 11, 12, 14

Thomas v. State, 550 S.W.2d 64 (Tex. Crim. App. 1977).......................................10

United States v. Cronic, 466 U.S. 648 (1984).........................................................11


                                                    -iii-
Vela v. Estelle, 708 F.2d 954 (5th Cir.1983), cert. denied, 464 U.S. 1053 (1984)....13

Williams v. Taylor, 529 U.S. 362 (2000).................................................................13


Constitutions:

U.S. C ONST. amend. VI..............................................................................................9


Statutes:
T EX. P ENAL C ODE A NN. §22.04(a)(1)(Vernon’s 2014).............................................1


Rules:

T EX. R. A PP. P. 21.4(a)........................................................................................1, 4

T EX. R. A PP. P. 4.1(a)..........................................................................................1, 4

T EX. R. A PP. P. 21.8(c)..............................................................................................1

T EX. R. A PP. P. 21.8(a)..............................................................................................5

T EX. R. A PP. P. 21.6...................................................................................................5




                                                           -iv-
IV.       STATEMENT O F T HE C ASE

          The appellant, Alfredo Lara, was charged by indictment with causing serious

bodily injury to a child.1 On September 16, 2014, Lara pleaded guilty and the case was

reset so that a presentence investigation report could be prepared.2

          On October 29, 2014, after conducting a hearing, Lara was found guilty and the

trial court assessed punishment at forty years’ confinement in the State penitentiary.3

On December 1, 2014, Lara filed a motion for new trial.4 This motion was timely

presented to the trial court by December 11, 2015.5

          Lara’s motion for new trial was set for a hearing, but the hearing date – January

20, 2015 – was inadvertently scheduled in excess of 75 days from the motion’s filing.6

Lara’s motion was therefore overruled, as a matter of law, on January 12, 2015.7

          Lara timely filed his notice of appeal on January 26, 2015.8



 1
     / C.R. I at 13. See TEX . PENAL CODE §22.04(a)(1).
 2
     / C.R. I at 19, 32.
 3
     / C.R. I at 34.
 4
     / C.R. I at 37. See TEX . R. APP . P. 21.4(a) & 4.1(a).
 5
     / C.R. I at 45, 51. See TEX . R. APP . P. 21.6.
 6
     / C.R. I at 45, 49.
 7
     / See TEX . R. APP . P. 21.8(c)
 8
     / C.R. I at 53.

                                                       -1-
V.     STATEMENT R EGARDING O RAL A RGUMENT

       Lara waives oral argument, but will gladly appear before this Honorable Court

if requested to do so.


VI.    ISSUES P RESENTED

       1.     Lara filed and presented a motion for new trial alleging that his counsel

was ineffective for failing to investigate and present mitigating evidence at Lara’s

sentencing. The district court scheduled Lara’s motion for a hearing. But because of

a clerical error, it was set after the 75-day deadline had passed. So Lara’s motion was

overruled as a matter of law. Should this appeal be abated so that the trial court can

conduct the hearing?

       2.     Is Lara entitled to a hearing on his motion for new trial, which alleges

ineffective assistance of counsel based on a failure to investigate and present mitigating

evidence at Lara’s sentencing?


VII. SUMMARY O F T HE A RGUMENT

       It is well settled that trial counsel has a professional duty to investigate his

client’s background, and to present mitigating evidence at a sentencing hearing. If he

fails to do so, and the defendant is prejudiced by this failure, then counsel is ineffective

and the defendant is entitled to a new punishment hearing.



                                            -2-
          Here, Lara filed and presented a motion for new trial alleging ineffective

assistance of counsel. This motion, and its accompanying affidavit, provided

reasonable grounds to believe that his counsel did not properly investigate his

background, and failed to produce crucial mitigating evidence at the punishment

hearing. The district court in fact set this matter for a hearing, but due to a clerical

error, the hearing was scheduled for a date that was eight days past the 75-day deadline

for the court to rule. Lara’s new trial motion was therefore overruled as a matter of law.

          Lara’s motion for new trial makes clear that he was entitled to a hearing. So this

Court should either: 1) abate the appeal and remand this case to the trial court so that

it can conduct the hearing that it intended to hold; or 2) set aside Lara’s punishment

and remand this case to the trial court for a new punishment hearing.


VIII. STATEMENT O F F ACTS

          A.      Procedural Background

          On October 29, 2014, after conducting a sentencing hearing in conjunction with

a presentence investigation report, Lara was found guilty of causing seriously bodily

injury to a child. The court assessed his punishment at forty years’ confinement in the

State penitentiary.9



 9
     / C.R. I at 34.

                                              -3-
           On December 1, 2014, Lara filed a motion for new trial alleging ineffective

assistance of counsel.10 This motion was supported by Lara’s affidavit, which

highlighted – among other things – defense counsel’s lack of investigation and

deficient performance at the punishment hearing:

           !       My lawyer never reviewed any of my child’s medical records with
                   me;

           !       I was not advised that I could hire a medical expert to review those
                   medical records so that my child’s prognosis could be established;

           !       Even though there was an extensive CPS investigation, my lawyer
                   never reviewed any of the CPS records with me, and as far as I
                   know, he never obtained the CPS records so that he could review
                   them;

           !       During the PSI hearing, my lawyer never informed the Court that
                   I had attended, and successfully completed: (1) a sixteen-week
                   anger management class; and (2) a ten-week parenting course. I
                   also underwent an extensive psychological evaluation, the results
                   of which were never presented to the Court. None of my numerous
                   drug and alcohol tests, all of which were negative, were offered
                   into evidence.11

           Lara’s motion requested a hearing, and accurately stated that the hearing should

be held no later than January 12, 2015, which was 75 days from the date that sentence




 10
      / C.R. I at 37. See TEX . R. APP. P. 21.4(a) & 4.1(a).
 11
      / C.R. I at 42.

                                                    -4-
was imposed in open court.12 And, finally, the motion for new trial was timely

presented to the district court by December 11, 2015.13

           So all of the necessary steps were taken to ensure that Lara received a hearing

on his motion. But the hearing date was scheduled for January 20, 2015, which was

eight days past the 75-day deadline.14 What apparently happened is that the numbers

of the January 12 date (recited in the motion) were transposed and read as January 21,

instead. The hearing was hence set for January 20, which would have been within the

mistaken deadline of January 21.15

           It is nevertheless apparent that the court intended to hear Lara’s motion for new

trial, as evidenced by it being set on the court’s docket. The motion was, unfortunately,

overruled as a matter of law because of what amounts to a clerical error that went

unnoticed.


           B.      The Punishment Hearing

           At the punishment hearing, the State presented the child’s mother, Amanda

Hurt, as its only witness.


 12
      / C.R. I at 39. See TEX . R. APP. P. 21.8(a).
 13
      / C.R. I at 45, 51. See TEX . R. APP . P. 21.6.
 14
      / C.R. I at 45.
 15
      / C.R. I at 49.

                                                        -5-
           Ms. Hurt testified that the injured child, who is Lara’s son, was six-months old

when the incident occurred.16 Lara at first maintained that the child had suffered his

injuries as a result of rolling off of the bed.17 But Ms. Hurt later learned that Lara had

admitted to throwing the child into a car seat four or five times.18

           The child was in hospital for more than three weeks recovering from his

injuries.19 Children’s Protective Services (CPS) took custody of the child after he was

released from the hospital. He was returned to his mother six weeks later.20

           The child, who was almost three-years old at the time of the sentencing hearing,

has to be taken to the doctor every six months because he has a shunt in his head. He

also speech and physical therapy once a week.21 Three strokes that he had while in

hospital caused paralysis to part of his left side, and efforts were being made to help

him walk better. He is four or five months behind with his learning.22

           Notwithstanding the extent of her son’s injuries, Ms. Hurt asked the court to


 16
      / R.R. II at 11.
 17
      / R.R. II at 23.
 18
      / R.R. II at 24.
 19
      / R.R. II at 23.
 20
      / R.R. II at 23-24.
 21
      / R.R. II at 24-26.
 22
      / R.R. II at 34.

                                              -6-
place Lara on probation. She did not want him to go to prison. Lara pays child support,

which allows her to have her son in daycare while she goes to work.23 She asked the

court to place Lara on deferred adjudication, and prohibit him from ever seeing his son

again.24

           Lara testified that he grew frustrated when he could not stop his son’s crying.

He eventually threw him in a car seat, which was sitting on the living room floor, four

or five times.25 He immediately realized that his son was hurt and rushed him to the

hospital.26 But he never told the doctors what really happened to his son.27 Eight

months after the incident, he finally admitted what he had done.28

           A week or so before this incident – while in Lara’s care – the child fell out of

the bed and injured his head.29 Lara did not tell anyone about that incident, either.30




 23
      / R.R. II at 28.
 24
      / R.R. II at 29-30, 47-49.
 25
      / R.R. II at 39-40, 46.
 26
      / R.R. II at 40, 50.
 27
      / R.R. II at 52.
 28
      / R.R. II at 53.
 29
      / R.R. II at 54.
 30
      / R.R. II at 54.

                                              -7-
And Lara never told CPS what he had done to his son.31

           Lara understands that he will have to pay child support and provide insurance

for his son.32 Lara feels terrible about what he did to his child, and stated that he would

never do anything like that again.33

           Lara has never been convicted of a felony.34 But in July 2011, he was placed on

a one-year probation for assaulting his daughter.35 She was 17- or 18-years old at the

time, and had come home drunk one night shortly after Lara’s wife had passed away.36

The two started arguing and he slapped her.37

           At the conclusion of the hearing, Lara’s counsel merely suggested that based on

what the mom wanted, and in the best interests of the child, Lara should continue to

pay child support, provide insurance, and see to the child’s financial needs.38 He never

specifically asked the court for probation.


 31
      / R.R. II at 55.
 32
      / R.R. II at 42.
 33
      / R.R. II at 43-44.
 34
      / R.R. II at 43.
 35
      / R.R. II at 59-60.
 36
      / R.R. II at 60-61.
 37
      / R.R. II at 61.
 38
      / R.R. II at 69.

                                              -8-
           The prosecutor recounted the mother’s teary-eyed plea for deferred

adjudication.39 And then, after balancing her wishes, the child’s best interests, and the

facts of the case, recommended a five-year prison sentence.40

           The court sentenced Lara to 40 years in prison.41


IX.        A RGUMENTS

           A.      Ineffective Assistance of Counsel

           Since Lara claims that his lawyer was ineffective, it will be useful to examine

the basic principles concerning: 1) a lawyer’s duties in providing effective assistance;

and 2) the legal standard for proving ineffective assistance of counsel.

           The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defense.”42 Since the Supreme Court decision in Powell v. Alabama,

this Constitutional mandate has been interpreted to guarantee an accused “effective

assistance” of counsel.43 Fundamental to the right of counsel is the recognition that the



 39
      / R.R. II at 71.
 40
      / R.R. II at 72.
 41
      / R.R. II at 73.
 42
      / U.S. CONST . amend. VI.
 43
      / Powell v. Alabama, 287 U.S. 45 (1932).

                                                 -9-
effective assistance of an attorney is essential to assure a fair trial.44 “Unless a

defendant charged with a serious offense has counsel able to invoke the procedural and

substantive safeguards that distinguish our system of justice, a serious risk of injustice

infects the trial itself.” 45

          In Strickland v. Washington,46 the United States Supreme Court established a

two-part test for determining whether an attorney’s assistance is so ineffective as to

require the reversal of a conviction. It must first be shown that counsel’s performance

was deficient — counsel’s performance must have fallen below an objective standard

of reasonableness under prevailing professional norms.47 If this requirement is satisfied,

it must next be established that the deficient performance prejudiced the defendant.48

Prejudice occurs when there is a reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been different.49 A

reasonable probability is a probability sufficient to undermine confidence in the




 44
      / Thomas v. State, 550 S.W.2d 64, 67 (Tex. Crim. App. 1977).
 45
      / Cuyler v. Sullivan, 446 U.S. 335, 343 (1980).
 46
      / Strickland v. Washington, 466 U.S. 668 (1984).
 47
      / McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996).
 48
      / Strickland, 466 U.S. at 687.
 49
      / Strickland, 466 U.S. at 687.

                                                 -10-
outcome.50 It need not be shown, however, that counsel’s substandard conduct more

likely than not altered the outcome of the case.51

          Under Strickland, an attorney has a professional duty to present all available

evidence and arguments to support the defense of his client. As the Supreme Court

noted in Gagnon v. Scarpelli,52 the 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.”

The proper function of the adversarial testing process would be undermined and

judicial proceedings could not be relied upon as having produced just results if this

were otherwise. Absent competent counsel, ready and able to subject the prosecution’s

case to the “crucible of meaningful adversarial testing,” there can be no guarantee that

the adversarial system will function properly to produce just and reliable results.53

Strickland makes clear that the right to effective assistance of counsel is explicitly tied

to the defendant’s right to a fundamentally fair trial — a trial in which the




 50
      / Strickland, 466 U.S. at 694.
 51
      / Strickland, 466 U.S. at 694.
 52
      / Gagnon v. Scarpelli, 411 U.S. 778, 787 (1973).
 53
      / United States v. Cronic, 466 U.S. 648, 656 (1984).

                                                 -11-
determination of guilt or innocence is “just” and “reliable.” 54

          The right to effective assistance of counsel is therefore recognized not for its

own sake, but because of the effect it has on the ability of the accused to receive a fair

trial. The Sixth Amendment embodies this guarantee “because it envisions counsel’s

playing a role that is critical to the ability of the adversarial system to produce just

results.”55 A criminal defendant who obtains relief under Strickland does not receive

a windfall; on the contrary, reversal of a defendant’s conviction is necessary to ensure

a fair and just result. To hold differently would be, in the words of Justice Sutherland,

“to ignore the fundamental postulate . . . that there are certain immutable principles of

justice which inhere in the very idea of free government which no member of the

Union may disregard.”56 These principles of effective assistance apply with equal force

to guilt/innocence proceedings, and punishment determinations.

          “The sentencing stage of any case, regardless of the potential punishment, is ‘the

time at which for many defendants the most important services of the entire proceeding




 54
   / Strickland, 466 U.S. at 685-86, 696. See also Nix v. Whiteside, 475 U.S. 157, 175
(1986)(under Strickland, the “bench mark” of the right to counsel is the “fairness of the
adversary proceeding”).
 55
      / Strickland, 466 U.S. at 685.
 56
      / Powell, 287 U.S. at 71.

                                               -12-
can be performed.’”57 For example, in a recent decision from this Court, Lopez v. State,

the defendant pleaded guilty to aggravated robbery without a recommended sentence

and, following a presentence investigation, was sentenced to 30 years in prison.58 The

defendant filed a motion for new trial claiming that counsel was ineffective because

he failed to investigate the defendant’s background and present mitigating evidence at

the sentencing hearing.59 The trial court denied the motion and the ensuing appeal

focused on counsel’s obligations at punishment hearings.

          With respect to Strickland’s first prong, this Court observed that the defendant’s

counsel had a “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.” 60 And of course

counsel could not justify the failure to present mitigating circumstances as a tactical

decision when he had not conducted this investigation into the defendant’s

background.61

 57
   / Milburn v. State, 15 S.W.3d 267, 269 (Tex. App. – Houston [14th Dist.] 2000), quoting Vela
v. Estelle, 708 F.2d 954, 964 (5th Cir. 1983), cert. denied, 464 U.S. 1053 (1984).
 58
      / Lopez v. State, 462 S.W.3d 180, 182 (Tex. App. – Houston [1st Dist.] 2015).
 59
      / Lopez, 462 S.W.3d at 182, 186.
 60
   / Lopez, 462 S.W.3d at 187; citing Williams v. Taylor, 529 U.S. 362, 396 (2000); Rivera v.
State, 123 S.W.3d 21, 31 (Tex. App. – Houston [1st Dist.] 2003, pet. ref’d).
 61
      / Lopez, 462 S.W.3d at 186.

                                                 -13-
          Under Strickland’s second prong, the Court focused on whether there was a

“reasonable probability that the assessment of punishment would have been less severe

in the absence of defense counsel’s deficient performance.”62 In other words, was the

result of the particular proceeding “‘unreliable because of a breakdown in the

adversarial process that our system counts on to produce just results.’”63

          In evaluating if such a collapse had occurred, the Court observed that in the

sentencing process, punishment questions are determined by weighing the relative

merits of both mitigating and aggravating factors, and then making reasoned

adjustments in the severity of the sentence.64 The adversarial process is hindered if the

factfinder is not provided with favorable evidence, and is left to consider only the

aggravating factors.65 The Court concluded that prejudice exists if defense counsel’s

failure to investigate results in no mitigating evidence being presented to offset the

aggravating ingredients.66 In such instances, “there is not even a possibility of the

factfinder considering mitigating evidence.” 67

 62
      / Lopez, 462 S.W.3d at 188.
 63
      / Lopez, 462 S.W.3d at 188, quoting Strickland, 466 U.S. at 696.
 64
      / Lopez, 462 S.W.3d at 188.
 65
      / Lopez, 462 S.W.3d at 188.
 66
      / Lopez, 462 S.W.3d at 189.
 67
      / Lopez, 462 S.W.3d at 189. (Emphasis added).

                                                 -14-
          Since defense counsel neither investigated nor presented any punishment

evidence for the trial court to consider, Lopez was deprived “of even the possibility of

developing a mitigating defense.”68 The Court thus held that the trial court erred in

denying the motion for new trial, and the case was remanded for a new punishment

hearing.69

          In similar fashion, the Fourteenth Court of Appeals reversed and remanded a

matter for a new punishment hearing where defense counsel presented no mitigation

evidence on his client’s behalf.70 In Milburn, the Court concluded that “even though

it is sheer speculation that character witnesses in mitigation would have in fact

favorably influenced the [trial court’s] assessment of punishment,” a defendant is

nonetheless prejudiced when counsel’s lack of effort at a punishment hearing precludes

the possibility of bringing out even a single mitigating factor.71 This is especially true

when the potential punishment is life imprisonment.72

          It is apparent from this discussion that trial counsel bears the burden of



 68
      / Lopez, 462 S.W.3d at 189.
 69
      / Lopez, 462 S.W.3d at 190.
 70
      / Milburn, 15 S.W.3d at 271-72.
 71
      / Milburn, 15 S.W.3d at 271.
 72
      / Milburn, 15 S.W.3d at 269.

                                           -15-
searching for the existence of any favorable evidence that might be presented in

mitigation of his client’s punishment. And a new-trial hearing is warranted if there is

any credible reason to think that he failed in his task. This is indeed the only way to

ensure that the defendant received a full, balanced, and fair punishment decision.


          B.     Lara was Entitled to a Hearing on his Motion for New Trial

          When the grounds for granting a new trial are outside the record, a motion for

new trial must be substantiated by someone with knowledge of the pertinent facts.73 As

a prerequisite to obtaining a hearing – and as a matter of pleading – the motion must

be supported by an affidavit of either the accused, or someone else, specifically

showing the truth of the grounds asserted.74 This does not mean that the affidavit must

“reflect every component legally required to establish relief . . . .”75 The motion and the

accompanying affidavit must merely indicate “that reasonable grounds exist for

holding that such relief could be granted.”76 In other words, a defendant does not have

to establish a prima facie case for the grounds raised in his motion for new trial.77 It



 73
      / Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993).
 74
      / Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994).
 75
      / Jordan, 883 S.W.2d at 665.
 76
      / Jordan, 883 S.W.2d at 665.
 77
      / McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985).

                                                -16-
is enough that he assert reasonable grounds for relief that are not determinable from the

record. And if his motion and affidavit do that, an evidentiary hearing on the motion

is mandatory.78 The purpose of the hearing is, of course, to then fully develop the issues

raised in the motion for new trial.79

          In the instant case, Lara’s potential punishment was life in prison. The

sentencing hearing was therefore vitally important.80 Lara’s motion for new trial

claiming ineffective assistance of counsel was supported by his affidavit, which

detailed defense counsel’s lack of investigation and deficient performance at this most

critical punishment hearing:

          !      My lawyer never reviewed any of my child’s medical records with
                 me;

          !      I was not advised that I could hire a medical expert to review those
                 medical records so that my child’s prognosis could be established;

          !      Even though there was an extensive CPS investigation, my lawyer
                 never reviewed any of the CPS records with me, and as far as I
                 know, he never obtained the CPS records so that he could review
                 them;

          !      During the PSI hearing, my lawyer never informed the Court that
                 I had attended, and successfully completed: (1) a sixteen-week


 78
      / Reyes, 849 S.W.2d at 816.
 79
      / Jordan, 883 S.W.2d at 665.
 80
      / Milburn, 15 S.W.3d at 269.

                                             -17-
                   anger management class; and (2) a ten-week parenting course. I
                   also underwent an extensive psychological evaluation, the results
                   of which were never presented to the Court. None of my numerous
                   drug and alcohol tests, all of which were negative, were offered
                   into evidence.81

These allegations demonstrate that reasonable grounds exist for holding that Lara

would be entitled to relief on his ineffective-assistance claim.82 Much like the situations

in Lopez and Milburn, Lara’s counsel failed to investigate and present mitigation

evidence at the sentencing hearing.

           It is a fair assumption that counsel did not examine anything from the CPS case.

Either that case was closed without Lara’s parental rights being terminated, which

would certainly be favorable evidence, or his rights were terminated; a fact that

probably would not have escaped the prosecutor’s attention — especially since CPS

took custody of the child after he was released from the hospital, and did not return

him to his mother until six weeks later.83

           And it would have been quite important for the sentencing court to hear that

Lara 1) completed a sixteen-week anger management class, 2) finished a ten-week

parenting course, 3) underwent an extensive psychological evaluation, and 4) passed


 81
      / C.R. I at 42.
 82
      / See Jordan, 883 S.W.2d at 665.
 83
      / R.R. II at 23-24.

                                              -18-
numerous drug and alcohol tests. This evidence shows that Lara had a significant head-

start on the rehabilitative process, which made him a better candidate for probation

because he posed less of a future threat to others. At the very least, such efforts might

have warranted the consideration of something less than a 40-year prison sentence.

           The destructiveness caused by the absence of this mitigating proof is perhaps

best evidenced by the court’s 40-year sentence, which far exceeded the five years

recommended by the State.84 There exists a very real probability that Lara’s sentence

would have been less severe had the court been provided with mitigating circumstances

to offset the aggravating factors.85

           So Lara’s motion for new trial and accompanying affidavit entitled him to a

hearing. That much seems certain. Even the trial court set this matter for a hearing.86

And but for an unfortunate error in the scheduling, that hearing would have taken

place.


X.         P RAYER

           Lara requests that his appeal be abated and that this case be remanded to the trial

court to conduct a hearing on Lara’s motion for new trial regarding his contention that


 84
      / See Milburn, 15 S.W.3d at 270.
 85
      / See Milburn, 15 S.W.3d at 271.
 86
      / C.R. I at 45.

                                               -19-
he was denied effective assistance of counsel at the sentencing hearing.87

       Alternatively, Lara requests that his punishment be set aside and that this case

be remanded for a new trial on punishment.


                                   Respectfully submitted,

                                   K ETTERMAN H EDLESTEN & A MANN, PLLC




                                   By: /s/ Colin B. Amann
                                       COLIN B. AMANN
                                       State Bar No. 01138100
                                       1004 Prairie, Suite 300
                                       Houston, Texas 77002
                                       (713) 652-2003
                                       (713) 652-2002 (Facsimile)
                                       colin@khalawyers.com




 87
  / See Hemphill v. State, 2015 WL 1456338 (Tex. App. – Houston [14th Dist.] March 26,
2015)(not designated for publication).

                                            -20-
                        C ERTIFICATE O F SERVICE

      A copy of Lara’s Brief was delivered to the following party(ies) by the means

indicated on 9 September 2015:


      E-Mail Delivery:
      curry_alan@dao.hctx.net
      Appellate Division
      Harris County District Attorney
      Houston, Texas




                                         /s/ Colin B. Amann
                                        COLIN B. AMANN




                                         -21-
