Affirmed and Majority and Dissenting Opinions filed June 6, 2019.




                                      In The

                    Fourteenth Court of Appeals

                               NO. 14-17-00259-CR

                      ROBERT RAY MOORE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1489433

                    DISSENTING OPINION
      Appellant asserts on appeal that his trial court rendered ineffective assistance
by failing to (1) investigate Appellant’s intellectual capacity; (2) pursue an
examination and hearing with respect to Appellant’s competence; (3) ensure
Appellant’s guilty plea was knowing and voluntary; (4) present mitigating
evidence at the punishment hearing; and (5) inform, advise, and prepare Appellant
with respect to his testimony at the punishment hearing.         Because there is a
reasonable probability that, but for the errors committed by trial counsel, the
 results of Appellant’s proceedings below would have been different, I would
 sustain Appellant’s ineffective-assistance claim and reverse and remand this case
 to the trial court for further proceedings.

       A defendant has a Sixth Amendment right to effective assistance of counsel.
 U.S. Const. amend. VI; see also Ex parte Moore, 395 S.W.3d 152, 157 (Tex. Crim.
 App. 2013). To establish ineffective assistance of counsel, a defendant must show
 by a preponderance of the evidence that (1) his trial counsel’s representation fell
 below an objective standard of reasonableness, and (2) there is a reasonable
 probability that, but for trial counsel’s deficient performance, the result of the
 proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
 686 (1984); see also Ex parte Moore, 395 S.W.3d at 157. A defendant bears the
 burden of proving ineffective assistance of counsel by a preponderance of the
 evidence. Ex parte Moore, 395 S.W.3d at 157.

I.     Trial Counsel’s Representation Fell Below an Objective Standard of
       Reasonableness.
       Under the first prong of the Strickland standard, a defendant must show that
 his trial counsel’s performance was deficient under prevailing professional norms
 and according to the necessity of the case. Strickland, 466 U.S. at 687-88; Ex
 parte Moore, 395 S.W.3d at 157. The defendant “must overcome the presumption
 that, under the circumstances, the challenged action might be considered sound
 trial strategy.” Strickland, 466 U.S. at 689.

       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); Lopez v. State,
 462 S.W.3d 180, 184 (Tex. App.—Houston [1st Dist.] 2015, no pet.). We do not
 limit our review to a single portion of the representation but examine the totality of
 the circumstances to determine counsel’s effectiveness. Strickland, 466 U.S. at

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688-90; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      For our examination of Appellant’s ineffective-assistance claim, we consider
the professional norms applicable to different components of a criminal
defendant’s representation.

      A criminal defense attorney must have a firm command of the facts of the
case as well as the governing law before he can render reasonably effective
assistance to his client — both in and out of the courtroom. Ex parte Ybarra, 629
S.W.2d 943, 946 (Tex. Crim. App. 1982). Counsel therefore has a duty to make
reasonable investigations.    Strickland, 466 U.S. at 691.       When assessing the
reasonableness of an attorney’s investigation, we consider the quantum of evidence
known by the attorney to determine whether the known evidence would have led a
reasonable attorney to investigate further. Ex parte Martinez, 195 S.W.3d 713, 721
(Tex. Crim. App. 2006).

      Evidence of a defendant’s intellectual limitations or disabilities may prompt
counsel to investigate the defendant’s mental health history. See Ex parte LaHood,
401 S.W.3d 45, 50-52 (Tex. Crim. App. 2013); Lampkin v. State, 470 S.W.3d 876,
912-16 (Tex. App.—Texarkana 2015, pet. ref’d). Understanding a defendant’s
intellectual disabilities is a prerequisite to effective representation. See American
Bar Association Criminal Justice Standards for the Defense Function 4-1.2 (4th ed.
2015) (“The primary duties that defense counsel owe to their clients . . . are to
serve as their clients’ counselor and advocate with courage and devotion; to ensure
that constitutional and other legal rights of their clients are protected; and to render
effective, high-quality legal representation with integrity.”).        Evidence of a
defendant’s mental health history also can be used as mitigating evidence. See,
e.g., Lampkin, 470 S.W.3d at 910. “It must be a very rare circumstance indeed
where a decision not to investigate would be ‘reasonable’ after counsel has notice

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of the client’s history of mental problems.” Bouchillon v. Collins, 907 F.2d 589,
597 (5th Cir. 1990).

      Trial counsel’s representation of Appellant was deficient in three respects:
failing to investigate Appellant’s intellectual capacity at any time, failing to present
mitigating evidence of Appellant’s intellectual capacity at the punishment hearing,
and failing to inform, advise, and prepare Appellant with respect to his testimony
at the punishment hearing.

      Turning first to trial counsel’s failure to investigate Appellant’s mental
health history, Appellant’s pre-sentence investigation report contained several
mentions of Appellant’s limited intellectual functioning. The report states that
Appellant was assigned to special education classes during school and dropped out
of high school after completing tenth grade. Discussing Appellant’s mental health
history, the report indicates Appellant was diagnosed with ADHD as a child;
received social security disability income; and was diagnosed with an axis I mood
disorder. The report states that Appellant had a history of sporadic employment;
Appellant reported “having problems finding a stable job because he is illiterate.”

      Despite these indications regarding Appellant’s intellectual limitations, trial
counsel failed to further investigate Appellant’s mental health history — counsel’s
only additional investigation into Appellant’s mental health consisted of asking
Appellant’s family for Appellant’s high school medical records (which the family
was unable to procure). See also Wiggins v. Smith, 539 U.S. 510, 523-29 (2003)
(attorneys’ decision against expanding their investigation into defendant’s mental
history beyond the pre-sentence investigation report fell short of prevailing
professional standards).     But further investigation would have shown that
Appellant had significant intellectual limitations:      Dr. Hamlin’s psychological
examination of Appellant stated that Appellant had an IQ score of 61, which

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placed Appellant “in the extremely low range of intellectual functioning.” Dr.
Hamlin also noted that Appellant had limited verbal abilities that “would
necessitate assistance with any written materials, simplified explanations, and
frequent checks for clarity.” Appellant’s testimony at the punishment hearing —
sometimes contradictory and often confusing — further evidences his intellectual
challenges.

      At the hearing on Appellant’s motion for new trial, Appellant’s trial counsel
acknowledged that he “kind of dropped the ball with respect to [his] assessment of
[Appellant’s] intellectual ability as far as [Appellant’s] understanding of reading,
writing, and just the basic language.” Trial counsel said he was unaware Appellant
could not read or write until Appellant took the stand at his punishment hearing.
Trial counsel’s failure to investigate Appellant’s mental health history fell below
objective standards of reasonableness.

      Moreover, trial counsel testified that he “did not communicate with
[Appellant] like he should have” and did not know “the violation of [the]
protective order would be an issue at all.” Trial counsel did not prepare Appellant
to testify with respect to the no-contact order but, at the punishment hearing,
questioned Appellant at length with respect to his understanding of the no-contact
order and any violations thereof. Trial counsel’s failure to prepare Appellant for
this line of questioning — especially in light of Appellant’s intellectual limitations
— fell below prevailing professional norms.

      Examining the totality of the trial counsel’s representation and counsel’s
testimony at the new trial motion hearing supports the conclusion that trial
counsel’s representation fell below an objective standard of reasonableness. See
Strickland, 466 U.S. at 687-88.



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II.     There is a Reasonable Probability That, But for Trial Counsel’s
        Deficient Performance, the Outcome of the Proceedings Would Have
        Been Different.
        Under the second prong of the Strickland standard, a defendant must show
  that he was prejudiced by his attorney’s performance or that “there is a reasonable
  probability that, but for counsel’s unprofessional errors, the result of the
  proceeding would have been different.” Id. at 694.

        In many cases involving claims for ineffective assistance of counsel,
  defendants often will assert that attorney error was made during the course of the
  proceedings (e.g., counsel failed to make a timely objection on the record or
  preserve a ruling for the appellate court to review). In such cases, a defendant who
  argues this claim can show prejudice only by showing “‘a reasonable probability
  that, but for counsel’s unprofessional errors, the result of the proceeding would
  have been different.’” Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000) (quoting
  Strickland, 466 U.S. at 694).

        However, in other cases, like the one presented to us herein, counsel’s
  “deficient performance arguably led not to a judicial proceeding of disputed
  reliability, but rather to the forfeiture of a proceeding itself.” Id. at 483. The
  standard is not whether, if the defendant had chosen to go to trial, the result would
  have been different, but rather that the choice to go to trial is a substantially
  different result than a plea bargain. While courts of appeals may ordinarily “apply
  a strong presumption of reliability to judicial proceedings,” we also cannot apply
  any such presumption “to judicial proceedings that never took place.” Lee v. U.S.,
  137 S.Ct. 1958, 1965 (2017) (citing id. at 482-83) (internal quotation omitted).

        In the present case, Appellant submitted testimony that he trusted his lawyer,
  his lawyer told him to plead guilty, his lawyer told him he would get probation,


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and “now I wish I did not plead guilty.” As in Lee, we must consider whether
Appellant was prejudiced by the “denial of the entire judicial proceeding . . . to
which he had a right.” Id. (citing Flores-Ortega, 528 U.S. at 483). The only other
option for Appellant would have been to go to trial on the facts presented, and that
is Appellant’s choice to make.

      There is a reasonable probability that, but for trial counsel’s ineffective
assistance as outlined above, Appellant would have gone to trial. Thus, because
the results of Appellant’s proceedings would have been different (i.e., he would
have gotten a trial instead of a plea bargain), I would sustain Appellant’s
ineffective-assistance claim and reverse for a new trial.



                                       /s/       Meagan Hassan
                                                 Justice


Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan (Hassan,
J., dissenting).
Publish — TEX. R. APP. P. 47.2(b).




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