NO. 132-99





Johnson, J., filed a concurring opinion.

C O N C U R R I N G  O P I N I O N

I concur in the judgment of the court.

In 1991, appellant was tried for and convicted of attempted capital murder. He appealed that conviction, complaining of jury charge error, improper jury argument, the denial of his right to voir dire a reputation witness, and ineffective assistance of counsel. Lopez v. State, 860 S.W.2d 938, 940 (Tex.App. - San Antonio 1993, no pet.)(Lopez I). In 1993, the court of appeals considered all grounds, but found for appellant only on the denial of voir dire, which occurred at the punishment hearing. The court of appeals thus reversed only as to punishment and remanded for a new punishment hearing only. Id. at 944-46.

Appellant was retried as to punishment only in November, 1994. After appellant's appeal of the second punishment hearing, the court of appeals again reversed and ordered a third punishment hearing. Lopez v. State, No. 04-94-00885CR (Tex.App. - San Antonio, Apr. 24, 1996, no pet.)(not designated for publication)(Lopez II).

Prior to the third punishment hearing on January 17, 1997, appellant filed a motion for new trial, claiming ineffective assistance of counsel during the original trial in 1991. After a hearing, the trial court denied the motion. (1) The trial court imposed sentence in open court on January 23, 1997. Thereafter, on February 24, 1997, appellant filed a post-trial motion for new trial on the same ground and added a complaint of ineffective assistance against his first appellate counsel (2) for failing to "preserve a point of error on appeal." (3) That motion was timely filed, as February 23 fell on Sunday. Tex. R. App. P. 4.1. The trial court denied the motion without a hearing. (4)

In his appeal of the third punishment hearing, appellant asserted that the trial court erred in (1) denying the motion for new trial based on ineffective assistance of counsel during the original trial; (2) denying the motion for new trial based on ineffective assistance of counsel on appeal from the original trial; and (3) refusing to conduct a hearing on the motion for new trial based on ineffective assistance of counsel on appeal from the original trial. Lopez v. State, No. 04-97-00319CR (Tex.App. - San Antonio, Oct. 21, 1998)(not designated for publication)(Lopez III). The court of appeals affirmed the trial court, stating that the court of appeals is "limited to reviewing error that allegedly occurred during the punishment retrial." Id. Because none of appellant's complaints involved the third punishment hearing, the court of appeals declined to address those complaints and pointed out that the proper remedy is a post-conviction writ of habeas corpus. Id. This appeal followed.

Appellant had the opportunity to raise all of his complaints about the original trial in Lopez I. Any issues from guilt/innocence which were not raised in Lopez I were waived. Any complaints about ineffective assistance of counsel on appeal from the original trial could and should have been raised in Lopez II. As they were not, they also have been waived. The Court of Appeals was correct in its assessment of the limits on its authority and in its statement of proper remedy.

Johnson, J.

Date Delivered: May 17, 2000


1. The trial court was correct in denying the pretrial motion for new trial; none of appellant's complaints fit within the statutory requirements of Tex. Code Crim. P. art. 40.001(newly discovered material evidence) or Tex. R. App. P. 21.3.

2. Counsel in the original trial were not counsel on appeal in Lopez I.

3. It appears that the original appellate counsel failed to properly brief the complaint of ineffective assistance of counsel at the original trial. This failure is now alleged as ineffective assistance on appeal.

4. The trial court was also correct in denying the post-trial motion for new trial under Tex. Code Crim. P. art. 40.001, Tex. R. App. P. 21.3., and lack of jurisdiction over counsel on appeal.