PINA v. STATE (2025)

OPINION

In this appeal from a conviction for aggravated sexual assault of a child, appellant raises four issues, which we broadly construe as three: (1) whether the trial court violated his rights under the Confrontation Clause when it restricted his examination of a witness during a hearing on a motion for new trial, (2) whether the trial court violated his rights to due process by denying an ex parte motion for expert assistance, and (3) whether a new trial should have been granted because trial counsel was ineffective. For the reasons given below, we overrule all issues presented and affirm the trial court's judgment.

BACKGROUND

I. The Guilty Plea

Appellant was charged in two separate indictments: one for aggravated sexual assault of a child, and the other for indecency with a child by contact. Both indictments also alleged two enhancements for prior felonies, meaning that if appellant were convicted of either offense, and if the finder of fact further determined that the enhancement allegations were true, then he faced a minimum term of imprisonment of twenty-five years.

Appellant pleaded guilty to the charge of aggravated sexual assault of a child, and in exchange for that plea, the prosecution agreed to dismiss the charge for indecency with a child and to abandon the two enhancement allegations. There was no additional agreement as to punishment.

The trial court accepted appellant's plea, ordered a presentence investigation, and reset the case for a punishment hearing.

II. The Punishment Hearing

Only four witnesses testified at the punishment hearing, and the first was appellant's stepdaughter, who is the mother of the two children that appellant was alleged to have abused. The stepdaughter said that she allowed appellant to live with her after he began to experience marital difficulties. She also said that two of her daughters outcried to her that appellant had “raped” them.

The older daughter, who was thirteen years old at the time of trial, testified that appellant touched her under her shirt and under her pants. She also testified that he digitally penetrated her, made her touch his sexual organ, and tried to shower with her.

The other daughter was eleven years old at the time of trial, and the named complainant in the offense to which appellant pleaded guilty. She testified that when she was six years old, appellant made her contact his sexual organ with her hand and mouth. On other occasions, he contacted her sexual organ with his mouth. She also said that he digitally penetrated her.

The fourth and final witness was appellant, who testified on his own behalf. He said that he pleaded guilty because he is guilty, but—in a contradiction—he also claimed that he did nothing to his stepdaughter's children. He also claimed that he had remorse insofar as he had lost everything, including his house, wife, and family—not because he had violated the two children.

In closing statements, the defense requested that the trial court place appellant on community supervision. The prosecution requested that the trial court sentence appellant to at least fifty years of imprisonment.

The trial court remarked that appellant never expressed any remorse in the presentence investigation, and that he likewise never apologized when he was testifying on the stand. The trial court also remarked that the testimony of the two children was “very compelling.” Based on all of that evidence, the trial court assessed appellant's punishment at forty-four years’ imprisonment.

III. The Hearing on the Motion for New Trial

Appellant's trial counsel filed a notice of appeal and a motion to withdraw. The trial court granted the motion to withdraw and appointed appellate counsel on appellant's behalf. Appellate counsel then timely moved for a new trial, arguing that trial counsel had been ineffective by not conducting a proper investigation and also by producing no mitigation witnesses. Appellate counsel further alleged that appellant's plea was neither knowing nor voluntary.

The motion for new trial was supported by the affidavits of three family members: appellant's wife, a separate stepdaughter (not the outcry witness described above), and a niece. All three family members attested that they were never informed of appellant's punishment hearing by trial counsel or by anyone else in his office. They all further attested that, had they known about the punishment hearing, they would have been willing and able to appear as mitigation witnesses.

The trial court set the motion for an evidentiary hearing, and in the days leading up to that hearing, trial counsel suffered a stroke.

On the day of the hearing, trial counsel appeared briefly by teleconference and supplied a letter from a physician, stating that he would not be anticipated to return to court in person until a certain date occurring after the expiration of the trial court's plenary power.

Appellate counsel lodged an objection under the Confrontation Clause because trial counsel was not physically present in the courtroom. Appellate counsel explained that she wished to pass documents to trial counsel, which was difficult over teleconference. Appellate counsel also explained that she wanted the trial court to fully evaluate trial counsel's body language and expressions. Appellate counsel requested that the trial court enforce her subpoena, which required trial counsel's physical appearance, or in the alternative, that she be allowed to depose trial counsel. And if neither of those options was available, appellate counsel stated that she would agree to obtaining trial counsel's testimony by affidavit.

The prosecution stated that it would prefer trial counsel's physical presence, but that it would defer to the trial court's judgment, given trial counsel's medical situation.

The trial court then conducted an in camera phone conversation with trial counsel, which was on the record, but neither the prosecution nor the defense was present. Trial counsel made three statements: he was unavailable to come to the courthouse; he was unavailable to testify by teleconference; and the reason for his unavailability was that he was following his doctor's instructions.

The trial court resumed the hearing and ruled that trial counsel would testify neither in person nor by deposition. However, the trial court ruled that trial counsel would be allowed to testify by affidavit, in response to questions submitted in advance by each side. The trial court also indicated that it would order trial counsel to submit his affidavits before the expiration of the court's plenary power, and that it would defer a decision on the motion for new trial until after those affidavits were received.

The hearing proceeded with testimony from three witnesses, beginning with appellant's brother. He testified that appellant has a learning disability, that he never completed high school, and that he needs help with reading. The brother also testified that trial counsel never contacted him about testifying as a mitigation witness, but that he would have come to the punishment hearing and testified on appellant's behalf had he known about it.

The next witness was appellant's wife, who testified that she met with trial counsel once when she paid appellant's retainer. She said that she told trial counsel that she had information that might be helpful to the case, such as pictures of appellant and the grandchildren. She said that appellant pleaded guilty without her knowledge. Similarly, she said that she did not even know about the punishment hearing. She testified that appellant told her, in reference to the punishment hearing, that he had an upcoming court appearance, but he never mentioned that he would be sentenced or that the trial court would hear evidence. She also said that trial counsel never contacted her about the punishment hearing, but that she would have appeared had she known about it.

The final witness was appellant's niece. She testified that she spoke with appellant regularly, at least once per month, but he never asked her to appear as a witness on his behalf. Similarly, she said that counsel never contacted her, but that she would have testified for appellant, along with other members of her family.

Despite their support for appellant, the brother and wife testified that a person who sexually abused a child should be punished “seriously” and “harshly.” The niece testified that such a person should be punished “fairly.” The niece also added that she would expect a person who was falsely accused of sexual assault to be vocal about the falseness, but that appellant never said anything of the sort. Also, the brother and the niece testified that appellant never told them about the specific factual allegations against him.

IV. Appellant's Affidavit

Appellant did not testify during the hearing on the motion for new trial, but after that hearing had concluded, he submitted his own affidavit in support of the motion.

Appellant attested that, when he met with trial counsel after posting bond, trial counsel said that he would get the case dismissed because there was no evidence. Appellant claimed that trial counsel never asked him any questions in their subsequent court appearances, other than questions about payments.

Appellant also attested that he never told trial counsel that he was guilty, and that he was angry when trial counsel encouraged him to accept the prosecution's plea offer. Appellant attested that he nonetheless accepted the plea offer because he was told that he would get probation and that he would not have to register as a sex offender. He also added that he did not understand the plea paperwork, but that he told the trial court otherwise because he had so much on his mind and he was too embarrassed to say that he could not read.

As for the punishment hearing, appellant attested that there was no preparation. He claimed that trial counsel never asked him about any witnesses, nor did anyone else from his office. Similarly, appellant claimed that he did not know that he was going to testify until the day of the hearing, and that trial counsel's advice was to be remorseful.

Appellant attested that he did not perform well in school. He had tutors for every subject and he failed two grades. Appellant said that he was afraid to ask trial counsel to explain things to him because trial counsel was always in a hurry and appellant did not want him to know that he was slow.

V. Trial Counsel's Affidavits

In response to questions submitted by the defense, trial counsel supplied the following affidavit testimony:

• Before appellant pleaded guilty, trial counsel sent several letters to appellant requesting the names, phone numbers, and addresses of potential witnesses. After appellant pleaded guilty, trial counsel's paralegal staff made similar requests, but appellant never furnished the requested information.

• Trial counsel did not attempt to interview the two complaining witnesses or their mother.

• Trial counsel met with appellant “many times.”

• Trial counsel never received any witnesses from appellant to discover mitigating evidence.

• Trial counsel explained the prosecution's plea offer, which included an agreement to waive the enhancement allegations. Trial counsel also explained the full range of punishment, plus any requirements for sex offender registration.

In response to questions submitted from the prosecution, trial counsel submitted a separate affidavit containing the following testimony:

• Trial counsel consulted with appellant about both the charge for aggravated sexual assault of a child and the charge for indecency with a child.

• Trial counsel never received information from appellant or any other source that could assist the defense in obtaining an acquittal or a conviction on a lesser-included offense.

• Trial counsel never received information from appellant or any other source that appellant's wife or brother could provide potentially beneficial testimony for either the guilt or punishment stages of trial.

• Appellant expressed a desire to proceed to trial until he accepted the plea offer.

• Trial counsel discussed the full range of punishment with appellant. There was never any guarantee, promise, or suggestion that the trial court would opt for probation.

• Trial counsel believed that appellant's plea was knowing and voluntary.

• Trial counsel made many requests for potential witnesses in mitigation, but appellant never responded to them.

• Appellant never advised trial counsel that one of his stepdaughters (not the outcry witness) or that his niece possessed any information that could be beneficial in the punishment stage of trial.

• Trial counsel requested that appellant obtain a letter from his employer for purposes of mitigation, but appellant responded that he did not want to involve his employer.

VI. The Trial Court's Findings of Facts

After receiving trial counsel's affidavits, and before the expiration of its plenary power, the trial court denied appellant's motion for new trial. The trial court also signed findings of fact, which included the following:

• The assertions in trial counsel's affidavits were credible and reliable.

• Trial counsel never guaranteed, promised, or suggested that appellant would receive probation in exchange for his guilty plea.

• Appellant had been asked on several occasions to identify potential witnesses who could testify favorably during his punishment hearing, but appellant failed to identify any such witnesses to trial counsel.

• Trial counsel requested that appellant obtain a letter from his employer, but appellant did not want to get his employer involved.

• Appellant never told his brother or niece about the specific factual allegations with which he was charged and to which he pleaded guilty.

• Appellant never told his wife, brother, or niece that he was pleading guilty.

• Appellant never told trial counsel that his wife, stepdaughter, brother, or niece was willing to testify during the punishment hearing. Trial counsel was also unaware of the stepdaughter, brother, and niece.

• Trial counsel had no evidence to present during the punishment hearing, other than appellant's own testimony.

After the trial court signed these findings of fact, appellate counsel's paralegal filed an affidavit with the trial court. In the affidavit, the paralegal testified that she searched through trial counsel's files for proof of his correspondence with appellant. The paralegal found copies of two letters and one email, which the paralegal also attached to the affidavit. In all of these documents, either trial counsel or a member of his staff requested that appellant provide the contact information for any witness who might provide favorable testimony, including any character witnesses. The paralegal claimed, however, that there was no proof that the letters were mailed to appellant or that appellant had received the email.

CONFRONTATION CLAUSE

Appellant contends in his first issue that the trial court violated his rights under the Confrontation Clause.

The Confrontation Clause affords a criminal defendant with two types of constitutional protections: the first is the right to physically face those who testify against him, and the second is the right to conduct cross-examination. See Delaware v. Fensterer, 474 U.S. 15, 18–19, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam). Appellant invoked both of these protections in the trial court, but he focuses largely on the second protection in this appeal.

There appears to be an open question on the threshold issue of whether the Confrontation Clause even applies in the context in which appellant lodged his objection.

The United States Supreme Court has stated that “the right to confrontation is basically a trial right.” See Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). And it is a “functional” right “for the purpose of promoting reliability in a criminal trial.” See Kentucky v. Stincer, 482 U.S. 730, 739, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). These opinions are firmly rooted in the text of the Sixth Amendment, which guarantees the right to confrontation “in all criminal prosecutions.” See U.S. Const. amend. VI.

But some lower courts have held that the protections of the Confrontation Clause do not extend to every stage of the criminal process. For example, some courts have recognized that the Confrontation Clause does not apply to preliminary hearings, bail proceedings, or sentencing. See United States v. Colasuonno, 697 F.3d 164, 177 (7th Cir. 2012); Ex parte Estrada, 640 S.W.3d 246, 251–52 (Tex. App.—Houston [14th Dist.] 2021, pet. ref'd). Some courts have also refused to find violations of the Confrontation Clause based on restrictions arising out of a hearing on a motion for new trial. See United States v. Boyd, 131 F.3d 951, 954 (11th Cir. 1997) (per curiam) (finding no violation, despite the defendant being excluded from the hearing); Marks v. Frauenheim, No. 2:15-cv-0665, 2017 WL 3478874, at *19 (E.D. Ca. 2017) (finding no violation, despite the trial court preventing a witness from testifying during the hearing).

On the other hand, more than a century ago, the Texas Court of Criminal Appeals concluded that the Confrontation Clause was violated when the defendant was not physically present for a hearing on a motion for new trial. See Ruiz v. State, 92 Tex.Crim. 73, 242 S.W. 231, 232 (Tex. Crim. App. 1922). And more recently, our sister court concluded that the Confrontation Clause was violated when an affidavit from trial counsel was admitted during a hearing on a motion for new trial, but the defendant was not permitted to cross-examine trial counsel because trial counsel had pleaded the Fifth Amendment. See Lopez v. State, 895 S.W.2d 392, 394 (Tex. App.—Corpus Christi 1994, no pet.).

We need not decide today whether the Confrontation Clause was violated when the trial court restricted appellant's right to cross-examine his trial counsel. Instead, we will assume for the sake of argument that the Confrontation Clause was violated and consider whether the violation was harmless beyond a reasonable doubt. See Shelby v. State, 819 S.W.2d 544, 547 (Tex. Crim. App. 1991) (recognizing that violations of the Confrontation Clause are subject to review for harmless error). This harm analysis depends on a host of factors, including the importance of the witness's testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).

Appellant suggests that he was harmed because the answers in trial counsel's affidavit were not responsive to the questions that he submitted. For example, appellant observes that, in one question, he asked trial counsel to describe in detail “all efforts” that were taken to discover mitigating evidence, but rather than describe those efforts, trial counsel simply answered that he received no witnesses from appellant. We agree that this answer was nonresponsive. However, trial counsel answered elsewhere, in response to a different question from appellant, that “after the plea of guilty, the name of each possible individual who would be a witness was requested several times by [his] paralegal staff.” That answer is corroborated by the record. There were copies of two letters in trial counsel's file, addressed to appellant, requesting the names of witnesses. There was also a copy of an email sent to appellant, requesting the same information.

Appellate counsel's paralegal claimed that there was no proof that the letters were ever sent, or that the email was ever received. But even if we assumed that the letters were not sent,¹ there is no dispute that the email was sent, which undercuts appellant's claim in the trial court that no efforts were ever taken to discover mitigating evidence.

Appellant counters that, if his rights to confrontation had not been violated, he “could have asked follow-up questions, and clarified that the question concerned actions taken by trial counsel.” Appellant does not specify any follow-up questions that he would have asked, and we do not understand his claimed need for clarification. The question that appellant submitted to trial counsel already encompassed trial counsel's actions—it asked for “all efforts made by you and/or your office.”

Appellant also counters that he “could have confronted trial counsel with information from his file or the testimony of other witnesses.” But appellant does not identify any file documents or witness testimony that controverted trial counsel's affidavit. The letters and email from trial counsel's file were consistent with his affidavit. The testimony from appellant's family members were also consistent with the affidavit—those family members said that they were never contacted by trial counsel or by his staff, which comports with the affidavit testimony that trial counsel never received the contact information of any potential witnesses. The only controverting testimony was from appellant himself, who said in his own separate affidavit that he was never asked about potential witnesses from trial counsel or anyone else in his office.

The trial court acknowledged in its findings of fact that appellant had filed an affidavit, but the trial court did not expressly opine as to appellant's credibility in his affidavit. Nevertheless, based on its other findings and ultimate ruling, we can infer that the trial court implicitly determined that appellant's affidavit testimony was not credible. We cannot imagine how cross-examination of trial counsel could have changed this implied finding, especially considering the documentary proof in support of trial counsel's affidavit testimony.

Appellant refers to one other example where he claims that trial counsel was nonresponsive. In response to a question that asked trial counsel to “describe in detail the time, place, and substance of the conversation” in which he discussed the prosecution's plea offer, trial counsel answered by simply reciting a description of the plea offer, along with the range of punishment. We agree with appellant that this answer was largely nonresponsive. But trial counsel elaborated on this same subject in the other affidavit that he filed in response to questions submitted by the prosecution. Trial counsel testified there that he discussed the whole range of punishment as a possible sentence, and that he never made any guarantee, promise, or suggestion that the trial court would choose probation.

There was no testimony from trial counsel about the time or place of this conversation, but appellant has not presented any argument for how that information was material. Nor has appellant presented any sort of argument for what kind of follow-up questions he might have asked if given the opportunity, other than his general assertion that he “could have confronted trial counsel with information from his file or the testimony of other witnesses.” But we are not aware of any controverting evidence in trial counsel's file, nor are we aware of any controverting testimony, except for the affidavit testimony from appellant himself, which the trial court evidently disbelieved.

The record as a whole reveals a swearing match between trial counsel (who said that he properly advised appellant about the implications of his guilty plea, and who further claimed that he requested information from appellant about the availability of mitigation witnesses) and appellant (who said that counsel did none of those things). But there was at least corroborating evidence on the point that counsel requested the contact information of mitigating witnesses, which lends support to the trial court's implied finding that appellant's testimony was not credible. Considering all of these factors, we conclude that any error in the trial court's restriction on appellant's right of confrontation was harmless beyond a reasonable doubt. Cf. Davis v. State, 203 S.W.3d 845, 855–56 (Tex. Crim. App. 2006) (finding harmless error where there was corroborating evidence of the defendant's guilt, despite the defendant's testimony where he made a “flat denial”).

EXPERT ASSISTANCE

After the hearing on the motion for new trial, appellate counsel filed an ex parte motion seeking funds for the appointment of a neuropsychologist. Appellate counsel explained that the funds were necessary because appellant had recently been declared indigent and because expert assistance was required to determine if he was competent to stand trial. She also explained that she needed an expert to evaluate whether appellant suffered from an intellectual developmental disorder, which might have been useful as mitigation.

At a live hearing on the ex parte motion, appellate counsel continued that there was a need for the funds because appellant's family members had raised concerns about appellant having intellectual disabilities. Appellate counsel also reiterated her request to hire a particular neuropsychologist, whom she identified as an “independent expert,” and with whom she claimed that she had previously worked. She also represented that this neuropsychologist could conduct his evaluation and complete his report before the expiration of the trial court's plenary power, which was set to occur roughly two weeks later. She opposed any referral to a mental health expert at the Fort Bend County Behavioral Health Services because—even though she described such experts as also being “independent”—she claimed that those experts were “in a posture of neutrality” and “not necessarily a defense witness.”

The trial court took the motion under advisement and denied it at a subsequent hearing four days later. However, the trial court further stated that it would order “DHS”—presumably the same institution that was referenced earlier, or something similar to it—to conduct an intellectual developmental disability evaluation and to file a report “as soon as possible,” and no later than thirty days. Appellate counsel objected that the trial court will have already lost its plenary power after thirty days, but the trial court responded that the report could still be used for appellant's “long-term appeals motion.”

If the trial court signed an order regarding DHS, it does not appear to be within our record. Similarly, our record contains no report of an intellectual developmental disability evaluation.

In his second issue, appellant challenges the trial court's ruling on his own motion for expert assistance. We review that ruling for an abuse of discretion. See Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998) (concluding that a trial court's denial of a similar motion was not “outside the zone of reasonable disagreement”); Perales v. State, 226 S.W.3d 531, 536 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (“We review a trial court's ruling on an indigent defendant's motion requesting expert-witness funds (or the appointment of an expert witness) for abuse of discretion.”).

Appellant's motion was based on Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), which held that due process requires the State to provide an indigent defendant with access to a psychiatrist when the defendant makes the threshold showing that his sanity will likely be a significant factor in his defense. Id. at 82–83, 105 S.Ct. 1087. While Ake specifically concerned access to a psychiatrist, the Texas Court of Criminal Appeals has extended its holding to other types of expert assistance, provided that the defendant still satisfies his threshold showing of need. See Rey v. State, 897 S.W.2d 333, 337–39 (Tex. Crim. App. 1995).

Notwithstanding that substantive extension, the Texas Court of Criminal Appeals has explained that the primary concern in Ake was the defendant's ability to marshal his defense “during trial,” and thus, it has refused to extend Ake to “post-trial proceedings.” See Basso v. State, No. AP-73672, 2003 WL 1702283, at *4–5 (Tex. Crim. App. Jan. 15, 2003) (not designated for publication) (upholding the trial court's denial of a motion for expert medical assistance during a motion for new trial).

Appellant has not cited to any recent authority showing that Ake is applicable in a post-trial proceeding, nor are we are of any. Like the Court of Criminal Appeals, we decline this opportunity to extend the reach of Ake. We therefore conclude that the trial court did not abuse its discretion by denying appellant's motion.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his final two issues, which we consider together, appellant argues that he is entitled to a new trial because trial counsel was ineffective by failing to investigate or present any mitigating evidence.

Appellant raised this claim of ineffectiveness in a motion for new trial, which the trial court denied. We review such rulings for an abuse of discretion. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004), superseded in part on other grounds by Tex. R. App. P. 21.8(b); Frangias v. State, 413 S.W.3d 212, 218 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Under this standard, we may not substitute our judgment for that of the trial court; instead, we must determine whether the trial court's decision was arbitrary or unreasonable. See Charles, 146 S.W.3d at 208. And in making that determination, we must review all of the evidence in the light most favorable to the trial court's ruling and presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Id.

As the party complaining of ineffective assistance of counsel, appellant had the burden of proving by a preponderance of the evidence that his trial counsel's performance was deficient, and that the deficient performance was so prejudicial that it deprived him of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Appellant asserts that trial counsel's performance was deficient because trial counsel conducted no investigation of his own to determine the existence of any mitigation witnesses. But the trial court found in its findings of fact “that Defendant was requested on several occasions to identify potential witnesses who could testify favorably in his punishment hearing; and that Defendant failed to identify any potential punishment witnesses for [trial counsel].” Even though the evidence could have supported a different finding, we must uphold the finding that was actually made because it is fully supported by the record. Trial counsel attested in his affidavit that his office made “several” requests for the names, phone numbers, and addresses of each potential witness who could testify on appellant's behalf, and yet appellant never responded to those requests. There was also documentary proof of these requests. There was also evidence from which the trial court could have inferred that appellant did not want to involve his family members. He did not inform his wife of his punishment hearing. He also did not tell his brother or niece the specific factual allegations against him.

By not answering trial counsel's requests for mitigating witnesses, appellant cannot show that trial counsel was ineffective for failing to investigate and produce those witnesses. See Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984) (“In addition, because appellant did not describe the witnesses with reasonable particularity, it was not ineffective assistance for trial counsel not to seek them out to investigate them.”); Hernandez v. State, 885 S.W.2d 597, 601 (Tex. App.—El Paso 1994, no pet.) (“In the context of claims that defense counsel was ineffective for failure to call alibi witnesses, the defendant's failure to provide his attorney with information relevant to the identity or location of the witnesses has defeated the defendant's claim of ineffective assistance.”); Rodriguez v. State, 74 S.W.3d 563, 569 (Tex. App.—Amarillo 2002, pet. ref'd) (“In other words, a client has a duty to disclose information pertinent to his defense. Should the client withhold same, then he may not complain about the effect his own evasive conduct had upon the performance of counsel.”).

Appellant counters that trial counsel was ineffective, notwithstanding the requests for witnesses, because counsel cannot delegate the important task of developing mitigating evidence to his client, citing Lopez v. State, 462 S.W.3d 180, 187 (Tex. App.—Houston [1st Dist.] 2015, no pet.). But Lopez is distinguishable on the facts. Counsel in that case instructed the defendant to gather “good guy” letters and submit them to the probation department “without any assistance from counsel.” Id. at 187. By contrast, trial counsel here requested the names of witnesses who might provide favorable testimony in mitigation. Lopez does not hold that such requests amount to improper delegation. Indeed, the same court that decided Lopez ruled in the months after Lopez that counsel is not ineffective for failing to investigate witnesses who were never imparted to him. See Ramos v. State, No. 01-14-00910-CR, 2015 WL 6358346, at *6 (Tex. App.—Houston [1st Dist.] Oct. 22, 2015, pet. ref'd) (mem. op., not designated for publication) (“Regarding the failure to call witnesses at guilt/innocence, defense counsel stated that he asked appellant for a list of witnesses who could veri[f]y appellant's claim of a romantic relationship with the complainant, and appellant provided no names. Defense counsel cannot be deficient for failing to call witnesses that were never identified by appellant.”).

Viewed in the light most favorable to the trial court's ruling, the evidence supports a finding that trial counsel requested names of potential witnesses to investigate for purposes of mitigation, and appellant provided none. Given appellant's failure to identify any potential witnesses, we conclude that the trial court did not abuse its discretion by finding that appellant had failed to demonstrate that counsel was ineffective. We likewise conclude that the trial court's ruling denying appellant's motion for new trial was not an abuse of discretion.

CONCLUSION

The trial court's judgment is affirmed.

FOOTNOTES

1.   Appellate counsel has asserted in appellant's brief in this court—in connection with a separate issue for ineffective assistance of counsel—that trial counsel actually sent one of these letters.

Tracy Christopher, Chief Justice