Ex parte Lopez

1

Ex parte Christopher Lopez

No. 03-23-00272-CR

Court of Appeals of Texas, Third District, Austin

November 30, 2023

Do Not Publish

FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY NOS D-1-DC-15-100158 & D-1-DC-15-205012 THE HONORABLE TAMARA NEEDLES, JUDGE PRESIDING

Before Justices Baker, Triana, and Smith

MEMORANDUM OPINION

Thomas J. Baker, Justice

Christopher Lopez was charged with aggravated kidnapping, aggravated assault family violence, endangering a child, and evading arrest. See Tex. Penal Code §§ 20.04, 22.02, .041. Consistent with a plea-bargain agreement, the trial court, after accepting Lopez's guilty pleas deferred his adjudication of guilt for the aggravated-kidnapping and aggravated-assault offenses, placed him on deferred-adjudication community supervision for ten years for those offenses, and sentenced him to eighteen months in a state jail for the endangering offense. See Tex. Code Crim. Proc. art. 42A.101; Tex. Penal Code § 12.35. Almost seven years later and after the State filed motions to adjudicate his guilt, Lopez filed an application for writ of habeas corpus asking the habeas court to discharge him from community supervision, allow him to withdraw his guilty pleas, and convene a trial. Following a hearing, the trial court denied Lopez's writ application. Lopez appeals the trial court's order denying his requested habeas relief. We will affirm the trial court's order.

BACKGROUND

In August 2015, Lopez was dating Liliana Espinoza, who had a five-year-old son J.D.^[1] According to the probable-cause affidavit supporting Lopez's ultimate arrest of which the habeas court took judicial notice, Espinoza and Lopez were in an argument resulting in Lopez approaching her with a pistol and firing the weapon at her feet, causing rocks from the gravel driveway to fly up and hit her on her leg and torso. A neighbor saw the incident who then led Espinoza to his house. At that point, Lopez yelled for J.D. to come to him. After seeing J.D. walking towards Lopez, Espinoza asked Lopez to return her child multiple times, but Lopez refused and walked away with J.D. after removing J.D.'s shoes, which would light up each time J.D. took a step. The neighbor saw Lopez walking away from the property with J.D. and noticed that Lopez had the handgun in his possession. The police were called, responded to the scene, and helped look for J.D.

While some officers searched for J.D., others noticed a bag of ammunition with .45 caliber bullets as well as an empty gun case in Lopez's car, and officers also discovered two .45 caliber casings in the area where Lopez approached Espinoza with a pistol. Another officer talked with Espinoza. The officer noted that Espinoza had injuries on her leg and abdomen. Espinoza related that she had told Lopez that she was going to end their relationship after learning that he cheated on her and that he then threatened to kill J.D. and her. The officer confirmed the threats by looking at Espinoza's text exchanges with Lopez's phone in which the sender from Lopez's phone stated: J.D. "is dead," "Bye bye no more mommy," and "Your dead whore." Approximately ten hours later, Lopez was spotted leaving a nearby wooded area with J.D., and Lopez got into his car and drove off with J.D. in the car. During the ensuing chase, Lopez drove his car over 100 miles per hour and nearly hit several police cars before ultimately crashing his vehicle. After examining J.D., the officers noticed that he had injuries to his feet consistent with walking without shoes and had injuries to his face from when the airbag in the car went off. The police took Lopez into custody.

J.D was scheduled for a forensic interview after he was released from the hospital. While at the child-advocacy center, J.D noticed for the first time the injuries to his forehead and the bruise on his head, and he refused to talk to the interviewer. During a second interview, J.D. described being in a car with Lopez and described Lopez driving fast while there were police cars around. J.D. stated that Lopez wrecked the car. When discussing his time with Lopez in the woods, J.D. recalled that Lopez was holding a gun and that Lopez and he were hiding in the woods.

Following his arrest, Lopez was charged with aggravated kidnapping, aggravated assault family violence, endangering a child, and evading arrest. The State informed Lopez's attorney that it would consider a plea agreement if Lopez agreed to serve a prison term of at least five years. In addition, the State sent Lopez's attorney an email on January 15, 2016, explaining that Espinoza had told the victim services counselor that she had made false statements to the police and explained that Espinoza told the counselor that she never saw Lopez with a gun that day, that she told the police that Lopez had a gun because she was mad at him for making poor financial decisions, that her visible injuries that day were from falling on a rocky path, and that she hoped Lopez would get community supervision and be released.

A few months later, Lopez filed a motion to substitute his attorney with another attorney, Eric McDonald, and the trial court granted the motion on April 8, 2016. After talking with Lopez and Espinoza and reviewing the discovery in the case, McDonald sent an email to the prosecutors on the case on July 5, 2016, inquiring whether they would agree to a deal in which Lopez pleaded guilty to aggravated kidnapping, aggravated assault family violence, and endangering a child and admitted his guilt to the evading-arrest charge and in which the State agreed to recommend that his adjudication of guilt on the first two offenses be deferred, that he be placed on deferred-adjudication community supervision for ten years for those two offenses, that his guilt for the evading-arrest charge be considered during his punishment for the endangering charge, and that he be sentenced to eighteen months in state jail for the endangering charge. McDonald explained that the deal would benefit Lopez by allowing him to avoid a felony conviction and allowing him to keep his commercial driver's license and his job working for the city. After clarifying some of the terms, one prosecutor responded and said that he would need to look over the details more in depth but was leaning towards agreeing to the proposal. The following day, July 7, 2016, the prosecutor filed with the trial court a notice regarding the existence of Brady material, and the notice explained that Espinoza told members of the prosecuting team on February 26, 2016, that she did not see Lopez use a gun on the day in question and that her prior statement indicating otherwise was a lie. The notice was sent to McDonald that same day.

On July 12, 2016, a plea hearing was held, and the trial court approved the terms of the plea agreement and signed the plea paperwork. During the hearing, the parties went over the terms of the agreement, and the trial court inquired whether Lopez understood the terms, knew the potential punishment ranges for the offenses, and was knowingly and voluntarily waiving his rights to remain silent, to confront witnesses, and to a jury trial. Lopez answered that he understood the terms of the agreement, the potential punishment range for each offense, and the rights that he was waiving by entering the plea agreement, and Lopez related that he was freely and voluntarily giving up his rights. Further, Lopez stated that McDonald went over the plea paperwork with him and that he signed the paperwork, and Lopez pleaded guilty to aggravated kidnapping, aggravated assault family violence, and endangering a child and admitted his guilt to the evading-arrest charge. After accepting Lopez's pleas and consistent with the terms of the agreement, the trial court deferred his adjudication of guilt for the aggravated-kidnapping and aggravated-assault charges, placed him on deferred-adjudication community supervision for those offenses for ten years, and considered his guilt for the evading-arrest charge when imposing an eighteen-month sentence for the endangering charge.

Starting in October 2020 and continuing through October 2022, the State filed multiple motions to adjudicate Lopez's guilt alleging that he failed to comply with the terms of his deferred-adjudication community supervision by failing to report to the supervision office and committing additional offenses by intentionally and knowingly possessing a handgun on multiple occasions, intentionally or knowingly possessing a handgun that had its serial number removed, recklessly driving a motor vehicle, discharging a firearm at more than one vehicle, shooting more than one person, threatening someone with bodily injury while displaying a deadly weapon, committing multiple aggravated robberies, and assaulting a police officer.

A few months later, on March 13, 2023, Lopez filed an application for writ of habeas corpus seeking to have the habeas court discharge him from community supervision, allow him to withdraw his guilty plea, and convene a trial. Specifically, Lopez asserted that he was entitled to his requested relief because McDonald provided ineffective assistance of counsel by failing to conduct an independent investigation, retain an investigator or ask for one to be appointed, and retain an expert to look at mitigating factors and his mental health.

During the habeas hearing, Lopez called McDonald as a witness. In his testimony, McDonald related that he had practiced law for 27 years and had been practicing criminal law for 25 years. Regarding his representation of Lopez, McDonald stated that he replaced Lopez's former attorney on April 8, 2016, and worked on the case for months. Although McDonald could not recall if he asked to see the previous attorney's file h...