Julio Ramirez Mestas v. State of Texas ( 2002 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Julio Ramirez Mestas

Appellant

Vs. Nos. 11-01-00234-CR, 11-01-00235-CR, & 11-01-00236-CR -- Appeals from Dallas County

State of Texas

Appellee

In Cause No. 11-01-00234-CR, the trial court convicted appellant, upon his plea of guilty, of the offense of failure to stop and render aid after a collision.  A plea bargain agreement was not reached.  In Cause No. 11-01-00235-CR, the jury convicted appellant of the offense of indecency with a child younger than 17 years of age.  In Cause No. 11-01-00236-CR, the trial court convicted appellant, upon his plea of guilty, of evading arrest or detention.  A plea bargain agreement was not reached in this case, either.  In each case, the trial court found the 2 enhancement allegations to be true and assessed appellant=s punishment at confinement for 55 years and a $1,000 fine. We affirm.

In each appeal, appellant=s court-appointed counsel has filed a brief in which he states that, after a thorough examination of the appellate record, he can find no sufficient grounds on which point or points of error can be based.  Counsel has furnished appellant with a copy of the brief and advised appellant of his right to review the record and file a pro se brief.  A pro se brief has not been filed. Counsel has complied with the procedures outlined in Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex.Cr.App.1991); High v. State, 573 S.W.2d 807 (Tex.Cr.App.1978); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); and Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969).

Following the procedures outlined in Anders, we have independently reviewed the record.   In the cases in which appellant entered guilty pleas, the record reflects that, on September 8, 2000, appellant was driving when a police car pulled behind him and turned on its lights.  Eugene Jacob Simien, appellant=s stepson, testified that he was a passenger in appellant=s vehicle.  Simien stated that appellant began Achewing his food roughly@ and Abreathing hard.@  When appellant Apressed on the gas,@ Simien told appellant to stop.  Appellant answered that he could not stop because there was a warrant out for his arrest.  A chase ensued in which appellant drove between 70 and 100 miles per hour. Traffic was light; and, at times, appellant drove against oncoming vehicles.  Appellant=s vehicle collided with a Mustang; the air bag inflated; and appellant escaped his vehicle out of the passenger=s side door.  Simien saw appellant jump over a wire fence or gate and run off.

Dallas Police Officer Susan Iliff testified that she was on routine patrol when she ran a license plate check on appellant=s vehicle.  The computer showed that there was an outstanding warrant, and Office Iliff attempted to stop appellant=s vehicle.  Appellant sped away.  Officer Iliff testified that she drove 70 to 75 miles per hour in an attempt to just try to keep appellant in sight.  Appellant Ablew@ a red light, crossed over into oncoming traffic, struck a vehicle head on, and caused a Aserious, serious accident.@  Appellant fled but was eventually apprehended.

In the 2001 jury trial on the indecency-with-a-child offense, the victim testified that appellant was her stepfather, that she was 16 years old at the time of trial, and that during the 1999 Thanksgiving holidays appellant placed his hand under her T-shirt and bra.  The victim stated that, that night,  appellant had been drinking and had fallen asleep in the car.  The victim was in the living room on the couch.  She was wearing a T-shirt, shorts, a bra, and panties and was under a blanket.  Appellant=s three sons were on the living room floor. The children had been talking. When they heard appellant enter the home sometime after 1:00 a.m., they pretended to be asleep because they did not want to get into trouble for still being awake.  Appellant approached the back of the couch where the victim normally slept.  The victim testified that appellant Aslowly@ moved his hand Athrough...the top@ of her shirt and went underneath her shirt and her bra Agroping@ with his hand. He then moved his hand back out and walked away.  When he approached her and placed his hand under her shirt a second time, the victim raised up and screamed, ANo!@ The victim went into her mother=s room and told her mother that appellant had touched her.  When the victim tried to call 9-1-1, appellant Ayanked@ the phone away and said that he was not going to jail.

Joshua Mestas testified that appellant was his father.  During the 1999 Thanksgiving holidays, the family had gone to his aunt=s friend=s house. They returned around midnight, and appellant stayed in the car because Ahe was probably drunk.@  Mestas testified that the victim was on the couch where she usually slept and that he and his two brothers were on a mattress on the floor.  When appellant came into the house, Mestas saw appellant walk behind the couch and place his hand under the victim=s shirt. The victim began to scream, and appellant ran away from the couch.  Appellant left the house 10 to 20 minutes after the incident and was not there when the police arrived.  Mestas testified that appellant was at home when he awoke in the morning.

During the punishment phase, the State introduced into evidence two pen packets.  The pen packets reflected that appellant had prior convictions for aggravated sexual assault and attempted sexual assault.

In reviewing claims of legal sufficiency, we review all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).  In deciding whether the evidence is factually sufficient to support the conviction, we review all of the evidence in a neutral light favoring nether party to determine if the verdict is clearly wrong and manifestly unjust or  against the great weight of the evidence.  Johnson v. State, 23 S.W.3d 1 (Tex.Cr.App.2000); Clewis v. State, supra. We review the fact finder=s weighing of the evidence and cannot substitute our judgment for that of the fact finder.  Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, supra.  Due deference must be given to the fact finder=s determination, particularly concerning the weight and credibility of the evidence.  Johnson v. State, supra; Jones v. State, 944 S.W.2d 642 (Tex.Cr.App.1996), cert. den=d, 522 U.S. 832 (1997).  This court has the authority to disagree with the fact finder=s determination Aonly when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice.@  Johnson v. State, supra at 9.

In Cause Nos. 11-01-00234-CR and 11-01-00236-CR (the guilty plea cases), the trial court, as the finder of fact, was the sole judge of the weight and credibility of the testimony. DeBolt v. State, 604 S.W.2d 164 (Tex.Cr.App.1980); Austin v. State, 794 S.W.2d 408 (Tex.App. - Austin 1990, pet=n ref=d). In Cause No. 11-01-00235-CR, the jury, as the finder of fact, was the sole judge of the weight and credibility of the witnesses= testimony.  TEX. CODE CRIM. PRO. ANN. art. 36.13 & 38.04 (Vernon 1979 & 1981).  After reviewing all of the evidence in the light most favorable to verdict, we find that a reasonable fact finder could have concluded that appellant committed each of the offenses and that the evidence is legally sufficient to support all three convictions.  The evidence, when reviewed in a neutral light, is factually sufficient; and we find that the convictions are neither clearly wrong and manifestly unjust nor against the great weight of the evidence.

In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors.  Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999).  We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, supra at 508-09.

In Cause Nos. 11-01-00234-CR and 11-01-00236-CR, the record does not reflect that counsel=s representation was not within the range of competence demanded of attorneys in criminal cases or that there is a reasonable probability that, but for counsel=s error, appellant would not have pleaded guilty but would have insisted on going to trial.  Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Cr.App.1997).  In all three appeals, the record reflects that trial counsel provided reasonably effective assistance.  We agree that the appeal is without merit.

The judgments of the trial court are affirmed.

PER CURIAM

May 23, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.