Rios, Nathan
WR-84,104-01
| Tex. App. | Nov 9, 2015Background
- Applicant Nathan Rios petitions after the trial court adopted the State’s proposed Findings of Fact and Conclusions of Law (FFC) verbatim and denied relief on his post-conviction writ. The applicant claims the trial court and State completed review in less than four days.
- Rios was convicted of attempted capital murder (Count III) and aggravated assault counts; he contends the attempted-capital-murder charge should have been aggravated assault because intent to kill was lacking.
- Rios alleges multiple instances of ineffective assistance of counsel (IAC) at trial and on appeal: (1) failure to object to the indictment charging attempted capital murder; (2) failure to object to an erroneous jury charge that failed to confine culpable mental states to the result-of-conduct (intent) context; (3) failure to request a lesser-included offense instruction; and (4) appellate counsel’s failure to raise trial counsel’s IAC on direct appeal.
- The State conceded the jury charge contained error but argued the harm was not egregious; the trial court adopted the State’s positions.
- Rios asks the Court of Criminal Appeals to remand for an evidentiary hearing (including affidavits from the challenged attorneys), or alternatively to grant relief (release or retrial).
Issues
| Issue | Plaintiff's Argument (Rios) | Defendant's Argument (State/Trial Court) | Held / Disposition by Trial Court (as described by applicant) |
|---|---|---|---|
| 1. IAC for failure to object to indictment charging attempted capital murder | The indictment charged attempted capital murder though facts only supported aggravated assault; counsel should have objected and prevented improper theory | State/trial court treated indictment language as sufficient and did not find reversible error | Trial court adopted State's FFC; did not grant relief (applicant seeks remand) |
| 2. IAC for failure to object to erroneous jury charge (failure to limit culpable mental states to intent in result-of-conduct) | Counsel was deficient for not objecting; State concedes charge erroneous and some harm existed; lack of objection raised appellate burden to egregious error; prejudice under Strickland exists | State argues harm was not egregious; trial court followed State and found prejudice not shown | Trial court followed State’s proposed FFC and denied relief; applicant requests evidentiary hearing and attorney affidavits |
| 3. IAC for failure to request lesser-included offense instruction | Evidence (e.g., lack of point-blank shots, counsel’s admissions) supported aggravated assault as lesser-included; counsel admitted no proof of intent to kill and thus should have requested lesser instruction | State/trial court concluded evidence supported attempted capital murder theory and found no ineffective assistance for failing to request lesser | Trial court adopted State’s view; applicant contends record insufficient and asks for remand for further development |
| 4. IAC for appellate counsel’s failure to raise trial counsel’s errors on direct appeal | Appellate counsel recognized the charge was unobjected and argued egregious harm; he should also have raised IAC to preserve relief; failure was deficient and prejudicial | State/trial court relied on appellate briefing and outcome to deny relief; did not treat appellate omission as warranting habeas relief | Trial court adopted State FFC denying prejudice; applicant urges remand to let attorneys explain strategic reasons |
| 5. Procedural fairness / request for remand and evidentiary hearing | Given trial court’s verbatim adoption of State’s FFC after brief review, Rios requests remand for full hearing and attorney affidavits to develop record under Article 11.07 and Strickland | State and trial court declined to conduct further fact development; adopted State’s recommended findings | Trial court adopted State's proposed findings; applicant asks Court of Criminal Appeals to remand for an evidentiary hearing or grant relief |
Key Cases Cited
- Ex parte Reed, 271 S.W.3d 698 (Tex. Crim. App.) (trial-court findings unsupported by record may justify de novo review)
- Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App.) (limitations on using aggravated assault facts to support attempted capital murder theory)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part IAC standard: deficiency and prejudice)
- Turner v. State, 805 S.W.2d 423 (Tex. Crim. App.) (mere intent to pull trigger insufficient for attempted capital murder)
- Banks v. State, 819 S.W.2d 676 (Tex. Crim. App.) (discusses prejudice and related IAC principles in instruction/charge contexts)
- Ex parte Rodriguez, 334 S.W.3d 117 (Tex. Crim. App.) (trial court is appropriate forum for making findings of fact on habeas claims)