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Ely, Counselor at Law
Category: Criminal Law
Satisfied Customers: 102368
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I am assisting with proving some facts with a client. Short

Resolved Question:

I am assisting with proving some facts with a client. Short history. An 18 year old by accident droped a baby convicted of murder this was the ONLY option given to jury. The attorney did not look into the fact this kid took 12 ultrams and mixed with alcohol the side effects from this drug in the amount he took would be hallucinations, loss of coordenation, and impairment of thinking. This kid has NO crim. history and no history of drug abuse. The attorney DID NOT look into researching the effects of this medication. Had he done so there may have been a lesser included sentence Ie, manslughter. NOW faced with exhusted all appeals post conviction a petition for fed. 2254 petition was filed ineffective assistace. MY QUESTION what can be done at this point? I can show the medication impaired him and the attorney did not look into these facts. Please assist. TEXAS CONVICTION
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Ely replied 6 years ago.

Welcome to JustAnswer and thank you for the opportunity to assist you. Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

What was the Court's response exactly - do you have a hearing coming up, you meabn? Was your Habeas Coprus filed specifically arguing ineffective counsel?
Customer: replied 6 years ago.
No hearing its strange that the Hab. was filed in 2008 and on 5/9/11 they responded with an argument the 1 year had expired and it should be dismissed however the appeal was denied and sentence became final in 2007 and the hab was file right before the deadline. and the court responded in 2011. And yes ineffective assistance was an argument. Had this attorney looked into the medication he took and the amount an expert witness could have come in and stated what we found out about this medication and the side effects (ultram) he took 12 and drank. doest remember to much about the acident. We feel had the medication had come into play a lesser offence would have been added such as manslaugter.
Expert:  Ely replied 6 years ago.
Thank you.

In Texas, ineffective counsel has a very high standard to prove the argument. To give you an example, ineffective counsel or counsel not permitted by the trial court to be effective was tantamount to no counsel at all and hence a violation of Art. I, Sec. 10. Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954). However, even "no counsel at all," did not result in reversible error in the absence of a showing of harm. Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (Tex.Cr.App.1931).

So as you can see, it is a high standard. But in the end, Texas courts adhere to the United States Supreme Court's two-pronged Strickland test to determine whether counsel's representation was inadequate so as to violate a defendant's Sixth Amendment right to counsel. Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986):

The defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness.

Second, assuming appellant has demonstrated deficient assistance, it is necessary to affirmatively prove prejudice.

In other words, appellant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Hernandez v. State, 726 S.W.2d at 55.

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