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HUDGINS, COBY RAY

PD-0163-17 05/24/2017

"Is it error to declare trial counsel ineffective for failing to investigate and present evidence when, at the motion for new trial hearing, Appellant presented no evidence demonstrating that the investigation and additional evidence would have been beneficial?"

After Hudgins was convicted of murder, he moved for a new trial, claiming that his attorney rendered ineffective assistance for not investigating and requesting a forensic psychologist/psychiatrist to testify about his history as a sexual abuse victim for mitigation purposes at punishment. The trial court denied the motion. The court of appeals reversed and held that counsel rendered ineffective assistance.

The State contends that ineffective assistance of counsel claims based on the failure to investigate and present expert testimony require proof that such an expert was available to testify and would have testified favorably for the defense. Here, Hudgins failed to establish these elements at his motion for new trial hearing. He presented no expert who would have testified that his sexual abuse history negatively affected him or had any bearing on the commission of the offense. So, what mitigating testimony a forensic psychologist/psychiatrist could have offered is unknown and therefore purely speculative and hypothetical. Counsel cannot be held ineffective on this record.

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