Lares, Richard
PD-1616-15
Tex. App.Dec 28, 2015Background
- Appellant Richard Lares pleaded nolo contendere to aggravated sexual assault of a child and was sentenced to 30 years and a fine; the plea judgment originally listed an incorrect offense date later corrected by a nunc pro tunc judgment.
- Lares contends his plea and conviction were tainted by ineffective assistance of trial counsel, prosecutorial misconduct (including alleged withholding/falsification of exculpatory evidence), improper admission of extraneous "404(b)" evidence at sentencing, and denial of competency/mental-health records.
- Appellant filed multiple post‑conviction motions and a state habeas application; appointed counsel on direct appeal filed an Anders brief concluding the appeal was frivolous and notified Lares of his right to file a pro se brief.
- Lares filed a lengthy pro se response raising the ineffective‑assistance, Brady/Kyles‑type suppression, 404(b) notice violations, competency/evidence‑exclusion claims, and argued the nunc pro tunc correction did not cure jurisdictional defects.
- The Fourth Court of Appeals reviewed counsel’s Anders brief and Lares’s pro se brief, concluded the appeal was frivolous, affirmed the trial court’s judgment nunc pro tunc, and granted appellate counsel leave to withdraw.
Issues
| Issue | Plaintiff's Argument (Lares) | Defendant's Argument (State / Court) | Held |
|---|---|---|---|
| Ineffective assistance of trial counsel | Counsel failed to investigate, opened door to extraneous bad‑acts evidence, misadvised on plea and failed to preserve non‑frivolous claims | Record does not firmly and affirmatively demonstrate deficient performance warranting relief on direct appeal; many claims better suited to collateral proceedings | Court of Appeals: no reversible error shown on direct appeal; appeal frivolous |
| Prosecutorial misconduct / suppression of exculpatory evidence (Brady) | State withheld or used falsified evidence that induced an involuntary plea and prejudiced sentencing; plea thus involuntary | State and record do not establish Brady violation sufficient to overturn plea on direct appeal; disputed factual claims largely outside direct‑appeal record | Court of Appeals: claim insufficiently supported in record; no reversible error on direct appeal |
| Admission of extraneous 404(b) matters and denial of confrontation at sentencing | Trial court allowed 404(b) testimony beyond State’s notice; records showing veteran’s mental illness were excluded from competency/sanity evaluation, violating due process | Trial court limited 404(b) testimony to matters noticed and preserved objections; any error was not shown to require reversal on direct appeal | Court of Appeals: no reversible error shown; issues preserved insufficient for relief on direct appeal |
| Anders procedure / frivolous‑appeal determination | Lares argues appellate court misapplied law and should have appointed new counsel or remanded because arguable issues existed | Appellate counsel filed an Anders brief, served Lares, and informed him of rights; after reviewing record and pro se brief, court found appeal frivolous per Bledsoe and affirmed | Court of Appeals: appeal frivolous; affirmed judgment; granted counsel leave to withdraw; no new counsel appointed |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (procedure when appellate counsel finds appeal frivolous)
- Bledsoe v. State, 178 S.W.3d 824 (Tex. Crim. App.) (directing courts on handling Anders appeals when appellant files a pro se response)
- Garcia v. State, 308 S.W.3d 62 (Tex. App.—San Antonio 2009) (ineffective‑assistance errors during sexual‑assault prosecution can warrant reversal where counsel’s failures are affirmatively shown in the record)
- Rios v. State, 377 S.W.3d 131 (Tex. App.—Houston [1st Dist.] 2012) (habeas relief where state used or relied on falsified evidence that induced plea)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for ineffective assistance of counsel)
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecutor’s duty to disclose exculpatory evidence)
- Kyles v. Whitley, 514 U.S. 419 (U.S. 1995) (prosecutor’s obligation to learn of favorable evidence known to others acting on the government’s behalf)
- Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App.) (habeas standard for relief based on newly discovered evidence of actual innocence)