Examples of Ineffectiveness 

Expert Witnesses 

Ex parte Overton, 444 S.W.3d 632 (Tex. Crim. App. 2014)

 Ineffective assistance of counsel established by failure to present testimony of expert physician that  refuted state’s case. 

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) 

Attorney ineffective for failure to thoroughly investigate medical evidence before advising client to plead guilty to injury to a child. 

Ex parte Ard, 2009 WL 618982 (Tex. Crim. App. 2009) 

Attorney’s failure to adequately present expert testimony to jury. 

Rylander v. State, 75 S.W.3d 119 (Tex. App. - San Antonio 2002, pet. granted) 

Attorney’s failure to present qualified medical testimony in support of defendant’s only viable defense when combined with other trial errors undermines confidence in outcome of the trial and amounts to ineffective assistance. 

Ex parte Clement-Cook, 2017 WL 3379960 (Tex. Crim. App. 2017) 

Ineffective assistance for failure to consult with medical expert on aggravated assault case. 

Hinton v. Alabama, 134 S.Ct. 1081 (2014) 

Defense counsel’s failure to request funds for additional experts was ineffective. 

Ex parte Napper, 322 S.W.3d 202 (Tex. Crim. App. 2010) 

Counsel’s failure to consult DNA expert is deficient conduct but harm not shown. 

Wright v. State, 223 S.W.3d 36 (Tex. App. - Houston [14th Dist.] 2016), pet. ref’d 

Ineffective assistance based on counsel’s failure to consult with an expert concerning sexual abuse and proper methods  for interviewing children. 

Sessums v. State, 129 S.W.3d 242 (Tex. App. - Texarkana 2004), pet. ref’d 

Failure of counsel to object to expert  testimony regarding the factors for determining the alleged victim’s truthfulness.

Failure to Investigate 

Ex parte Amezquita, 223 S.W.3d 363 (Tex. Crim. App. 2006) 

Attorney’s failure to investigate information that someone else committed the crime. 

Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986) 

Attorney’s failure to investigate evidence that someone other than defendant was the robber was ineffective. 

State v. Thomas, 768 S.W.2d 335, 336 (Tex. App. - Houston [14th   Dist.]   1989, no pet.) .

Counsel’s failure to interview and call witnesses was ineffective. 

Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) 

Defense counsel’s failure to interview witnesses constitutes ineffective assistance. 

Melton v. State, 987 S.W.2d 72 (Tex. App. - Dallas 1998, no pet.) 

       Attorney found ineffective for failing to investigate facts of robbery case, telling his client that a videotape existed of him committing the offense when no such tape existed, thereby causing defendant to plead guilty to robbery even though he had no memory of committing the offense because he suffered from alcoholic blackouts. 

Wiggins v. Smith, 539 U.S. 510 (2003) 

         Failure to fully investigate petitioner’s life for mitigating evidence is ineffective assistance. 

Richards v. Quarterman, 566 F.3d 553 (5th Cir. 2009) 

Ineffective assistance based on failure to conduct adequate pre-trial investigation. Decision by counsel  cannot be said to be reasonable or strategic absent a thorough investigation. 

Ignorance of the Law 

Ex parte Welch, 981 S.W.2d 183, 185 (Tex. Crim. App. 1998) 

Defense counsel’s misunderstanding of the law on probation constituted ineffective assistance. 

Ex parte Lewis, 537 S.W.3d 917 (Tex. Crim. App. 2017) 

Ineffective assistance based on lack of knowledge of law on controlled substance  charge.    

 Failure to Present Evidence 

Butler v. State, 716 S.W.2d 48 (Tex. Crim. App. 1986) 

Failure to interview and present alibi witnesses is ineffective assistance. 

Smith v. Dretke, 417 F.3d 438 (5th Cir. 2005) 

Defense counsel deficient for not calling witnesses to testify as to alleged victim’s character for violence. 

Tenny v. Dretke, 416 F.3d 404 (5th Cir. 2005) 

Ineffective assistance for failure to adequately investigate and present evidence of self defense. 

Davis v. State, 413 S.W.3d 816 (Tex. App. - Austin 2013, pet. ref’d) 

Trial counsel’s failure to present evidence of alternative perpetrator was ineffective assistance in murder case. 

Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) 

Counsel’s failure to conduct any pretrial discovery and file timely suppression motion was prejudicial because counsel was ignorant of the law and acting below professional norms. 

Failure to Object to Inadmissible Evidence 

Perkins v. State, 812 S.W.2d 326, 329 (Tex. Crim. App. 1991) 

Failure to object to arrest outside officer’s jurisdiction is ineffective. 

Fuller v. State, 224 S.W.3d 823 (Tex. App. - Texarkana 2007, no pet.) 

Defense counsel’s failure to object to opinion testimony that victim was credible and a truthful person is ineffective. 

Davis v. State, 413 S.W.3d 816 (Tex. App. - Austin 2013, pet. ref’d.) 

Trial counsel’s failure to object to defendant’s former girlfriend’s testimony about her abusive relationship with defendant was ineffective. 

Presenting Evidence Harmful to Defense 

White v. Thaler, 610 F.3d 890 (5th Cir. 2010) 

Opening door to cross examination of defendant regarding his post-arrest silence is ineffective. 

Impeachment of Witnesses 

Ex parte Saenz, 491 S.W.3d 819 (Tex. Crim. App. 2016) 

Trial counsel's failure to impeach witness with his inconsistent statements, made when he told police that he saw shooter's face but could not make it out, constituted deficient performance. 

Beltran v. Cockrell, 294 F.3d 730 (5th Cir. 2002) 

Ineffective assistance based on failure of defense counsel to impeach eyewitness testimony that defendant was only person whom they had picked from photo lineup with their prior, tentative identification of someone else. 

Misstatement of Law 

Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) 

Failure to correct prosecutor’s misstatement of law regarding whether defendant’s sentences could be cumulated, leaving jury with false impression that defendant could serve no more than 20 years when, in fact, the defendant could have received a sentence as long as 80 years was ineffective. 

Jury Instructions 

Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001) 

Defense counsel’s failure to request limiting instructions with respect to extraneous acts evidence offered during guilt phase of capital murder prosecution, and to request that jury be required to find defendant committed the extraneous acts beyond a reasonable doubt before using them in assessing guilt amounted to ineffective assistance of counsel, where counsel stated by affidavit that his failure to request such instructions was an oversight and was not product of trial strategy; where defendant’s pattern of abusing victim was essential to state’s case, and trial court would have been required to give instructions if requested. 

Ex parte Drinkert, 821 S.W.2d 953 (Tex. Crim. App. 1991) 

Counsel ineffective in failing to object to indictment and charge both of which were based on invalid felony murder theory. 

Banks v. State, 819 S.W.2d 676 (Tex. App. - San Antonio 1991), pet. ref’d 

Defense counsel ineffective for failure to object to erroneous jury instruction 

that defendant was guilty of injury to a child if he intentionally and knowingly engaged 

in conduct, which law clearly established that injury to a child required proof that defendant intended result. 

Waddell v. State, 918 S.W.2d 91 (Tex. App. - Austin 1996) 

Defense counsel’s failure to request lesser included offense instruction on criminal trespass in a prosecution for burglary of a building constituted ineffective assistance of counsel. 

Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991) 

Counsel ineffective in failing to request accomplice witness instruction in case based entirely on accomplice witness testimony. 

Failure to File Application for Probation 

Ex parte Welch, 981 S.W.2d 183 (Tex. Crim. App. 1998) 

Counsel ineffective for failing to file application for probation for defendant who was eligible for probation. 

Evidence and Witness Issues 

Ex parte Hill, 863 S.W.2d 488 (Tex. Crim. App. 1993) 

Ineffective assistance found where defense counsel called alibi witnesses who had pleaded guilty to same offense two days earlier and thus “los[t] the case for his client.” 

Ex parte Bryant, 448 S.W.3d 29 (Tex. Crim. App. 2014) 

Failure to object to evidence of polygraph test administered to witness found to be ineffective. 

Ex parte Bible, 2017 WL 4675536 (Tex. Crim. App. 2017) 

Ineffective assistance based on failure to object to introduction of written statement of accomplice witness. 

Soffar v. Dretke, 368 F.3d 441 (5th Cir. 2004) 

Ineffective assistance established when counsel did not call witnesses who could have refuted confession. 

Garcia v. State, 308 S.W.3d 62 (Tex. App. - San Antonio 2009, no pet.) 

Ineffective assistance when counsel opened the door to defendant’s prior sex assault by asking him if he had ever sexually assaulted any one or been accused of it. 

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006) 

Trial counsels’ eliciting of testimony from defendant at the guilt phase of trial 

that he was already incarcerated on two convictions was ineffective. 

Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) 

Failure to object to witness testimony at punishment accusing defendant of uncharged brutal rape even though attorney knew that DNA testing and defendant’s electronic monitoring showed that he could not have committed the crime. 

Frangias v. State, 392 S.W.3d 642, 655-56 (Tex. Crim. App. 2013) 

Failure to secure testimony of critical witness. Where key witness was unable to appear at trial due to medical condition, the attorney’s choice to attempt to introduce witness’s testimony over the phone (rather than by deposition) rendered him ineffective. 

 Statute of Limitations 

Compton v. State, 202 S.W.3d 414 (Tex. App. - Tyler 2006) 

Counsel ineffective for not objecting that the indictment was barred by statute of limitations.

 Jury Selection 

Virgil v. Dretke, 446 S.3d 598, 613-14 (5th Cir. 2006) 

Counsel’s failure to use challenge to remove biased jurors during voir dire was ineffective assistance because counsel had no rational reason for such action. 

Venue 

Brown v. Butler, 811 F.2d 938 (5th Cir. 1987) 

Failure to advise defendant that he had a venue defense is ineffective. 

Prior Convictions 

Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010) 

Failure of counsel to determine that a prior conviction alleged to enhance misdemeanor DWI to felony did not belong to the defendant. 

Failure of State’s Proof 

Summit v. Blackburn, 795 F.2d 1237, 1244-45 (5th Cir. 1986) 

Ineffective assistance by failure to object to proving corpus delecti solely by defendant’s confession. 

Identification Evidence 

Cooke v. State, 735 S.W.2d 928, 930 (Tex. App. - Houston [14th Dist.] 1987, pet. ref’d)

 Ineffective assistance by failure to object to tainted identification after illegal arrest and to proffer of bolstering testimony where entire strategy was mistaken identity. 

Confessions 

Sanders v. State, 715 S.W.2d 771, 776 (Tex. App. - Tyler 1986, no pet.) 

Ineffectiveness for failure to challenge voluntariness of confession. 

Guilty Pleas and Plea Bargaining 

Lafler v. Cooper, 132 S.Ct. 1376 (2012); Missouri v. Frye, 132 S.Ct. 1399 (2012)

Strickland test applies to plea bargaining stage of trial. Deficient advise  concerning plea bargain constitutes ineffective assistance. Defendantmust show that he would have accepted the offer, the state would not have withdrawn it and the trial court would have accepted it. 

Ex parte Knelsen, 2017 WL 2462329 (Tex. Crim. App. 2017) 

Failure of applicant to allege that, but for the ineffective assistance of counsel, she would have pled not guilty and insisted on a trial, insufficient pleading for ineffective assistance claim. 

Ex parte Lewis, 537 S.W.3d 917 (Tex. Crim. App. 2017) 

Trial counsel ineffective for failure to advise Applicant of what the state was required to prove on a fraudulent prescription case when the evidence did not show that the state could prove the case, and had applicant received correct information, he would not have pled guilty. 

Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim. App. 2000) 

Failure to inform client of plea offer is ineffective assistance. 

Melton v. State, 987 S.W.2d 72 (Tex. App. - Dallas, no pet.) 

Attorney found ineffective for failing to investigate facts of robbery case, telling client videotape existed showing him committing robbery when no such tape existed, thereby causing him to plead guilty even though he had no memory of committing the offense because of alcohol blackout. 

Rodriguez v. State, 470 S.W.3d 823 (Tex. Crim. App. 2015) 

Ineffective assistance of counsel found based on counsel’s advice that defendant 

decline favorable plea offer. 

Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999) 

Counsel ineffective for failure to properly advise defendant who was entering guilty plea whether state sentence would run concurrent with his federal sentence. 

Ex parte Nacoste, WR-86,964-01 and WR,86-964-02, 2017 WL 3166462 (Tex. Crim.  App. 2018) 

Ineffective assistance based on defense counsel failing to advise applicant that the evidence did not support his guilt before advising him to plead guilty. Laboratory report refuted state’s case in drug case. 

Miller v. State, No. PD-0891-15, 2018 WL 2327371 (Tex. Crim. App. 2018) 

Prejudice established on ineffective assistance of counsel by demonstrating that applicant would have opted for a jury if his attorney had correctly advised him that he was ineligible for probation from the trial court. Applicant does not need to show that the likely outcome of the jury trial would have been more favorable. 

United States v. Shepherd, 880 F.3d 734 (5th Cir. 2018) 

Ineffective assistance based on counsel’s failure to fully investigate the means of complying with sex offender registration law before advising client to plead guilty. 

State v. Diaz-Bonilla, 495 S.W.3d 45 (Tex. App. - Houston [14th Dist.] 2016, pet.  ref’d) 

Failure to advise defendant prior to defendant’s entry of guilty plea that he had a viable  legal defense that he did not perform an overt act needed to support his conviction constitutes ineffective assistance. 

Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013) 

To establish prejudice on a claim of ineffective assistance in which the defendant is not made aware of a plea bargain offer, or rejects an offer because of bad advice, defendant must show a reasonable probability that he would have accepted earlier offer if he had not been given ineffective assistance, prosecution would not have withdrawn his offer and trial court would not have refused to accept plea bargain. 

Turner v. State, 49 S.W.3d 461 (Tex. App. - Fort Worth 2001) 

Failure to inform defendant of deadline for accepting plea offer is ineffective. 

Randle v. State, 847 S.W.2d 576, 579-580 (Tex. Crim. App. 1993) 

Failure to communicate defendant’s acceptance of plea offer in a timely manner was ineffective. 

Hart v. State, 314 S.W.3d 37 (Tex. App. - Texarkana 2010, no pet.) 

Advising defendant to plead guilty in the hope of receiving probation when the 

charge to which the defendant pled made him ineligible for probation.

Filing Notice of Appeal and Notifying Defendant of Right to File Petition for Discretionary Review 

Ex parte Crow, 180 S.W.3d 135 (Tex. Crim. App. 2005) 

Counsel must inform client of right to file a petition for discretionary review. 

Roe v. Flores-Ortega, 528 U.S. 47 (2000) 

Counsel’s failure to file notice of appeal depriving defendant of appellate proceeding altogether was presumably prejudicial. 

Punishment Phase 

Rompilla v. Beard, 545 U.S. 374 (2005) 

Failure to obtain and review prosecutor’s punishment phase evidence and failure to develop mitigating evidence on capital case is ineffective. 

Ex parte Armstrong, No. WR-78,106-01, 2017 WL 5483404 (Tex. Crim. App. 2017)

Ineffective assistance at punishment phase of capital murder case based on failure to present adequate evidence regarding applicant’s mental health at time of offense. 

Lampkin v. State, 470 S.W.3d 876 (Tex. App. - Texarkana 2015, pet. ref’d) 

Trial counsel’s failure to investigate defendant’s mental health history to uncover mitigating evidence  at penalty phase of trial constituted ineffective assistance. 

Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App. 2009) 

Failure to object during punishment phase to testimony by DEA agent on dangers and societal costs caused by methamphetamine was ineffective assistance. 

Ex parte Rogers, 369 S.W.3d 858 (Tex. Crim. App. 2012) 

Failure of counsel to discover evidence showing that the defendant was not at the scene of a crime that was used at punishment phase as extraneous offense constitutes ineffective assistance of counsel. 

Ex parte Austin, 746 S.W.2d 228 (Tex. Crim. App. 1988) 

Counsel ineffective for advising client he was eligible for shock probation when he was  not.  

Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) 

Defense counsel was ineffective for failure to present treating physician’s testimony regarding defendant’s mental and psychological problems during trial. 

Incorrect Advise on Parole Eligibility 

Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012) 

Counsel’s misinformation to defendant as to his parole eligibility constituted deficient performance. 

Insanity Defense 

Ex parte Imoudu, 284 S.W.3d 866 (Tex. Crim. App. 2009) 

Failure to investigate possibility of an insanity defense. 

Immigration Consequences 

Padilla v. Kentucky, 559 U.S. 356 (2010) 

Failure to advise defendant of deportation consequences of conviction is ineffective assistance. 

Lee v. United States, 137 S.Ct. 1958 (2017) 

Defendant demonstrates reasonable probability that he would not have pled guilty if he had known that it would lead to mandatory deportation, thus ineffective assistance shown. 

Conflict of Interest 

Ex parte Knelsen, 2017 WL 2462329 (Tex. Crim. App. 2017) 

On conflict of interest claim must show a viable defensive strategy was not pursued as a result of the alleged conflict of interest. 

Cuyler v. Sullivan, 446 U.S. 335 (1980) 

Defendant can demonstrate conflict of interest by showing (1) counsel was actively representing conflicting interests and (2) the conflict had an adverse effect on specific aspects of counsel’s performance. 

Mickens v. Taylor, 535 U.S. 162, 172-74 (2002) 

Trial court’s failure to inquire into known potential conflict of interest did not merit reversal because defendant did not show that conflict adversely affected counsel’s performance. 

Egregious Conduct By Counsel 

Ex parte Sanchez, No. WR-84,238-01, 2017 WL 3380147 (Tex. Crim. App. 2017)

Ineffective assistance found when defense counsel carried on a coercive sexual 

relationship with the defendant.