Lopez, Luis Rodolfo

Opinion

PD-0199-15 June 19, 2015 June 15, 2015

Mr. Abel Acosta, Clerk Court of Criminal Appeals Post Office Box 12308 Austin, Texas 78711-2308

Re: Appeal No. 05-13-01137-CR PD-0199-15

Dear Mr. Acosta:

Enclosed for timely and proper filing is Appellant's Motion For Rehearing On Petition For Discretionary Review.

Thank you for presenting this to the Court.

Yours Sincerely,

,uis Rudolfo Lopez, Luis Lope #1$74821 Polunsky Unit 3872 Fm 350 South Livingston, Texas 77351

RECEIVED IN COURT OF CRWIMAMPPEALS JUN 19 2015 IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

LUIS RUDOLFO LOPEZ, § APPELLANT § VS. § APPEAL NO. 05-13-01137-CR § PD-0199-15 § THE STATE OF TEXAS, § APPELLEE §

APPELLANT'S MOTION FOR REHEARING ON DISCRETIONARY REVIEW

On August 8, 2013, a Dallas County jury found Appellant guilty of Continuous Sexual Abuse of a Child and assessed his punishment at forty years imprisonment.

On direct appeal, court appointed counsel alleged in.a

firmly grounded error that trial counsel was ineffective. The Dallas Court of Appeals , relying on Mata v State, 226 S.W.3d

425,430 (Tex.Ctim.App. 2002), determined that the record was too

incomplete and underdeveloped to determine counsel's performance

and resolved Appellate Counsel's claim against him without abate

ment. See page 10 Court Opinion in originally filed PDR.

Applicant contends that the Supreme Court opinion in Trevino v Thaler, U.S. , 133 S.Ct. 1911, 185 L.Ed ..2d 1044 (2013), governs his case because Texas courts have repeatedly directed prisoners to raise ineffective assistance of counsel claims via the State's Habeas Corpus remedy rather than on direct appeal.

The reasoning in Trevino followed the Supreme Court decision

•1- announced in Martinez v Ryan, U.S. , 132 S.Ct. 1309,

162 L.Ed.2d 272 (2012), holding that when it is a defendant's

first opportunity to raise a claim of ineffective assistance of

counsel by collateral review, he is entitled to the effective

assistance of counsel in prosecuting his claim.

Since the Dallas Court of Appeals determined that the rec

ord was inadequate to make a determination on counsel's perform

ance, Applicant strongly contends that it was "plain error" for

the Court of Appeals to rule against him without an abatement or

a remand for the appointment of counsel for postconviction pur

poses.

Appellant's ineffective assistance of counsel claim which

was raised by his court appointed attorney was an essential part

of his direct appeal and he should not now be forced to abandon

his Sixth Amendment claim.

This case need to be decided now without requiring App

ellant to seek further review.

Respectfully Submitted

Luis Rudolfo Lopez, #1874821 Polunsky Unit 3872 Fm 350 South Livingston, Texas 77351

Executed: June _j_Q_/ 2015 ••t/\ -fa <-•

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