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Ramirez v. State

Claims of ineffective assistance of counsel are governed by the U.S. Supreme Court's decision in Strickland v. Washington . In this case, the record reflects a reasonable probability that the outcome at sentencing would have been different sufficient to undermine confidence in the outcome as it currently stands. Austin Court of Appeals, No. 03-08-00723-CR, 11-18-2009

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OPINION

On March 2, 2007, a grand jury returned an indictment charging appellant Rolando Ramirez with intoxication manslaughter, a second-degree felony. See Tex. Penal Code Ann. § 49.08 (West Supp. 2008). The indictment included a deadly weapon allegation. On August 22, 2008, a jury found Ramirez guilty of intoxication manslaughter and found the deadly weapon allegation to be true. The judge assessed Ramirez’s punishment at eighteen years’ confinement. In three points of error, Ramirez argues that the trial court erred in denying his motion for a new trial because (1) his counsel provided ineffective assistance by failing to elect jury sentencing on his behalf, barring him from receiving a sentence of probation and depriving him of his rights under the Sixth Amendment to the United States Constitution, (2) the State failed to preserve evidence relating to his case, depriving him of his due process rights under the Fourteenth Amendment to the United States Constitution, and (3) the loss of evidence by the State also deprived him of his due course of law rights under the Texas Constitution. Because we conclude that the trial court erred in denying Ramirez’s motion for a new trial on the basis of ineffective assistance of counsel at sentencing, we reverse that portion of the judgment assessing punishment and remand the cause to the trial court for a new punishment hearing.

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