Opinion

Rivera v. State

  • 123 S.W.3d 21
Court
Texas Court of Appeals, 1st District (Houston)
Filed
Mar 3, 2004
Status
Published
Author
Hedges
On the bench
Evelyn v. Keyes
Cited by
73 cases
Authority
More cited than 7.3%

holding that even though trial court violated Article 1.051(e) by giving counsel nine days instead of ten to prepare for pre-sentence investigation hearing, error was harmless under Rule 44.2(b) because one additional day would not have affected appellant’s defense or outcome of sentencing hearing

How later courts described this case

  • holding that even though trial court violated Article 1.051(e) by giving counsel nine days instead of ten to prepare for pre-sentence investigation hearing, error was harmless under Rule 44.2(b) because one additional day would not have affected appellant’s defense or outcome of sentencing hearing
  • holding second Strickland prong 12 not satisfied where there was no indication that “information was available . . . which would have led to mitigating evidence sufficient to reduce [defendant’s] sentence had [counsel] fulfilled his duty”
  • holding second Strickland prong not satisfied where there was no indication that “information was available . . . which would have led to mitigating evidence sufficient to reduce [defendant’s] sentence had [counsel] fulfilled his duty”
  • holding that a violation of the article 1.051(e) requirement that appointed counsel have ten days of preparation time prior to trial is subject to a harm analysis under rule 44.2(b) of the Texas Rules of Appellate Procedure

Written by the judges who cited it.

The opinion

ADELE HEDGES, Justice,

concurring.

I join the majority opinion regarding Layton Duer’s representation. I merely concur in the majority opinion disposition and judgment regarding Gerald Scheve’s representation. I would hold that, assuming without deciding that Scheve’s representation was ineffective, appellant has not met the second prong of the Strickland test with respect to that representation.

Appellant makes no specific assertion concerning how Mr. Scheve’s alleged ineffectiveness harmed him. The closest he comes is his testimony at the PSI hearing:

“The [prosecutor] said I couldn’t plead guilty to one and not guilty to the other two because from my understanding Mr. Chevy [sic] said that was going to be hard to argue the fact of that on the trial.”

What appellant does not say is that he would not have pleaded guilty to any or all of the three charges but for Mr. Scheve’s advice. Based on this record and appellant’s brief, I believe that there is not a reasonable probability that the outcome would have been different had Scheve’s representation been errorless. Strickland v. Washington, 466 U.S. 668, 687-88, 694 , 104 S.Ct. 2052, 2064-65, 2068 , 80 L.Ed.2d 674 (1984).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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