Enrique Lopez v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-97-00319-CR
Enrique LOPEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 91CR2404
Honorable Pat Priest, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Catherine Stone, Justice

Delivered and Filed: October 21, 1998

AFFIRMED

Appellant, Enrique Lopez ("Lopez"), was convicted of attempted capital murder. In Lopez v. State, 860 S.W.2d 938 (Tex. App.--San Antonio 1993, no pet.), this court affirmed Lopez's conviction but reversed and remanded the case for a new punishment trial. Lopez subsequently appealed the new sentence he received on remand, and this court again reversed and remanded the case for a new punishment hearing. Lopez v. State, No. 04-94-00885-CR (Tex. App.--San Antonio, Apr. 24, 1996, no pet.) (not designated for publication), 1996 WL 195419. Now, Lopez appeals from the new sentencing hearing, asserting in three points of error that the trial court erred: (1) in denying his motion for new trial because he was denied effective assistance of counsel at his original trial on guilt/innocence; (2) in denying his motion for new trial because he was denied effective assistance of counsel on appeal from his original trial on guilt/innocence; and (3) in refusing to conduct a hearing on his motion for new trial based on ineffective assistance of counsel on appeal from his original trial on guilt/innocence.

In this appeal, we are limited to reviewing error that allegedly occurred during the punishment retrial. See Davila v. State, 961 S.W.2d 610, 617 (Tex. App.--San Antonio 1997, no pet.); Easton v. State, 920 S.W.2d 747, 750 (Tex. App.--Houston [1st Dist.] 1996, no pet.); Rische v. State, 834 S.W.2d 942, 948 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd); Sanders v. State, 832 S.W.2d 719, 723-24 (Tex. App.--Austin 1992, no pet.). Since none of Lopez's complaints are directed at error that we can properly consider in this appeal, his points of error are overruled. See Davila, 961 S.W.2d at 617; Easton, 920 S.W.2d at 750; Rische, 834 S.W.2d at 948; Sanders, 832 S.W.2d at 723-24. The proper remedy for Lopez is to file a post-conviction writ of habeas corpus. See Davila, 961 S.W.2d at 617; Easton, 920 S.W.2d at 750.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH

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