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Victor Manuel Moreno v. State ( 2008 )


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  • Opinion issued February 7, 2008  





















    In The  

    Court of Appeals

    For The  

    First District of Texas



    NOS. 01-07-00109-CR

    01-07-00110-CR



    VICTOR MANUEL MORENO, Appellant



    V.



    THE STATE OF TEXAS, Appellee



    On Appeal from the 180th District Court

    Harris County, Texas

    Trial Court Cause Nos. 1084739 and 835048



    MEMORANDUM OPINION



    Appellant, Victor Manuel Moreno, appeals from the revocation of his community supervision in cause number 835048 and from his punishment in cause number 1084739. In cause number 835048, appellant pleaded guilty to the felony offense of driving while intoxicated ("DWI"), having been twice previously convicted of DWI. (1) Pursuant to an agreed recommendation, the trial court assessed punishment at 10 years' community supervision and a $500 fine. Subsequently, in cause number 1084739, appellant was again charged with DWI, to which he pleaded guilty without an agreed recommendation and was assessed punishment at 10 years' confinement. Based on the offense in cause number 1084739, the State moved to revoke appellant's community supervision in cause number 835048, and appellant pleaded "not true" to the allegations. After a hearing, the trial court found the allegations true and assessed punishment at 10 years' confinement, to run concurrently with the sentence in 1084739.

    Appellant presents four points of error. In his first and second points of error, appellant contends that the trial court erred by revoking his community supervision because the evidence was insufficient to prove he had violated its terms. In his third point of error, appellant contends that he received ineffective assistance of counsel at the revocation hearing. In his fourth point of error, appellant contends that he received cruel and unusual punishment in cause number 1084739.

    We affirm.

    Background

    In 2000, after appellant was convicted of DWI, third offense, in cause number 835048, and assessed 10 years' community supervision, appellant was deported from the United States and thus never reported to his community supervision officer. At some point thereafter, appellant returned to the United States.

    On September 14, 2006, appellant was stopped for suspicion of DWI. On October 12, 2006, in cause number 1084739, appellant was again indicted for DWI, third offense. Appellant pleaded guilty and, without an agreed recommendation with the State, was assessed 10 year's confinement by the trial court.

    Subsequently, the State moved for revocation of appellant's community supervision in cause number 835048 based solely on appellant's conviction for DWI in cause number 1084739. Appellant pleaded "not true" to the allegations.

    At the revocation hearing, Officer R. Briones, who has worked for the Houston Police Department for 27 years, testified that he saw appellant exceeding the posted speed limit at 2:30 a.m. on September 14, 2006 on Belfort Street in Houston. Officer Briones testified that he activated his lights and siren, and followed appellant for approximately one mile. During that time, appellant was weaving in and out of traffic, was unable to maintain a single lane, and ran two red traffic lights. Finally, appellant ran over a curb and stopped in a parking lot. Officer Briones testified that appellant had slurred speech, bloodshot eyes, smelled of alcohol, and admitted to having had two beers. In addition, appellant was off-balance in stepping out of his car and in trying to walk. Officer Briones found three empty beer cans and twelve warm cans of beer under appellant's seat.  

    Officer Briones did not perform field sobriety tests. He testified that, in his experience as a police officer, he has had the occasion to observe intoxicated people on many occasions and that, in his opinion, appellant's actions were consistent with those of an intoxicated person.  

    Revocation of Community Supervision

    In his first and second points of error, appellant contends that the evidence is legally and factually insufficient to support his revocation of community supervision. Specifically, appellant contends that the State failed to prove that he was intoxicated during the traffic stop with Officer Briones, which is the basis for the revocation of his community supervision.

    A. Applicable Law

    Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Akbar v. State, 190 S.W.3d 119, 122 (Tex. App.--Houston [1st Dist.] 2005, no pet.). A revocation hearing is not a criminal trial; rather, it is an administrative hearing. Akbar, 190 S.W.3d at 122. Hence, the standard of proof needed to show the truth of an allegation is less than that in a criminal trial. Id. (citing Scamardo v. State, 517 S.W.2d 293, 297 (Tex. Crim. App. 1974)). In determining questions regarding sufficiency of the evidence in community-supervision revocation cases, the State must prove by a preponderance of the evidence that the defendant violated a term of his community supervision. Rickels, 202 S.W.3d at 763-64; Akbar, 190 S.W.3d at 122-23. A preponderance of the evidence exists when the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of his community supervision. Rickels, 202 S.W.3d at 764; Akbar, 190 S.W.3d at 123. We consider the evidence in the light most favorable to the trial court's order. Akbar, 190 S.W.3d at 123.

    Although conceding that the proper standard of review on appeal from a revocation proceeding is abuse of discretion, appellant nevertheless urges us to conduct a factual sufficiency analysis in light of the standard set forth in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). Appellant's reliance on Clewis in the context of this case is misplaced. See Johnson v. State, 943 S.W.2d 83, 85 (Tex. App.--Houston [1st Dist.] 1997, no pet.). First, the context of Clewis is not an appeal from an order revoking probation. See id. Second, adopting a different standard of review on an appeal from a revocation order would directly conflict with the holding in Garrett v. State, 619 S.W.2d 172 (Tex. Crim. App. 1981), and its progeny. See id. Hence, we examine the evidence in the light most favorable to the trial court's order revoking probation. See id. "Any other type of review would effectively attenuate the trial judge's discretion." See id.

    B. Analysis

    Here, the sole allegation in the State's amended motion to revoke community supervision in cause number 830548 is the DWI offense in cause number 1084739, to which appellant pleaded guilty. When a defendant pleads guilty, the State must still introduce sufficient evidence into the record to support the plea and show that the defendant is guilty, and such evidence will be accepted by the court as the basis for its judgment. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).

    To revoke community supervision, the State must prove by a preponderance of the evidence every element of the offense that is the basis for the revocation. See Johnson, 943 S.W.2d at 85. Here, the State was required to show that appellant was intoxicated while operating a vehicle in a public place. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003); Akbar, 190 S.W.3d at 124. "Intoxicated," as defined, includes "not having the normal use of mental or physical faculties by reason of the introduction of alcohol." Tex. Pen. Code Ann. § 49.01(2)(A).

    During the revocation hearing, the State presented testimony by Officer Briones, who is a 27-year veteran of the Houston Police Department. Officer Briones testified that he saw appellant speeding, weaving, and running traffic lights at 2:30 a.m. on September 14, 2006, on Belfort Street in Houston. Officer Briones followed appellant, with his lights and siren activated, for approximately a mile before appellant ran over a curb and stopped in a parking lot. Officer Briones further testified that appellant had slurred speech, bloodshot eyes, smelled of alcohol, and admitted to having had two beers. In addition, appellant was off balance in stepping out of his car and in trying to walk. Officer Briones found three empty beer cans and twelve warm cans of beer under appellant's seat.

    Appellant contends that Officer Briones' testimony is insufficient because he did not have a video camera on his patrol car and did not perform field sobriety tests. The testimony of an experienced officer is sufficient, however, to establish the element of intoxication. See Annis v. State, 578 S.W.2d 406, 407 (Tex. Crim. App. 1979). Appellant also contends that Officer Briones's own testimony that appellant was not combative, that he was able to park his car, and that the beers found under the seat were warm weighs against Officer Briones's credibility as to whether appellant was intoxicated.

    In a community supervision revocation hearing, the trial court is the sole trier of fact and determines the credibility of the witnesses and the weight to be given their testimony. See Akbar, 190 S.W.3d at 123. Here, the trial court chose to believe the testimony of Officer Briones and could have reasonably concluded that the State showed by a preponderance of the evidence that appellant violated the terms of his community supervision. We hold that the trial court did not abuse its discretion in determining that the evidence is sufficient to support the revocation. See Rickels, 202 S.W.3d at 763-64; Akbar, 190 S.W.3d at 122-23.

    We overrule appellant's first and second points of error.

    Ineffective Assistance of Counsel  

    In his third point of error, appellant contends that he received ineffective assistance of counsel at the revocation hearing. Specifically, appellant contends that his counsel failed to object to testimony by Officer Briones that appellant was intoxicated. Appellant contends that, because Officer Briones testified that he "did not have special training in observing intoxicated persons," "could not perform field sobriety tests," and "arresting people for [DWI] was not his area of expertise," it was "incumbent upon appellant's counsel to object to his opinion as to whether appellant was indeed intoxicated." In addition, appellant complains that counsel "should have taken the officer on voir dire and determined his lack of qualifications to find a person intoxicated to the extent that he or she should not be driving a motor vehicle."

    Appellant was entitled to reasonably effective assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. The right to counsel, however, does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove ineffective assistance of counsel, appellant must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). "Reasonable probability" means a "probability sufficient to undermine confidence in the outcome." 466 U.S. at 694, 104 S. Ct. at 2068. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

    To prevail, appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson, 187 S.W.3d at 482-83; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Generally, the record on appeal is undeveloped, and a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander, 101 S.W.3d at 110-11.

    Here, appellant has not made any attempt in his brief on appeal to show that there is a reasonable probability that, but for the alleged errors, the outcome of trial would have been different. See Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991). When, as here, appellant fails to meet the prejudice prong, we need not address the question of counsel's performance on these points. See id. The failure to make a showing under either of the required prongs of Strickland defeats a claim for ineffective assistance of counsel. Rylander, 101 S.W.3d at 110-11.

    Even if we conclude that appellant met his burden to show prejudice, he did not file a motion for new trial, and the record is silent as to why counsel did not object to Officer Briones's testimony or take Officer Briones on voir dire. Hence, appellant has not overcome the strong presumption that counsel might have acted pursuant to sound strategy. See Tong v. State, 25 S.W.3d 707, 713-14 (Tex. Crim. App. 2000); Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd).

    We conclude that appellant has not met his burden to show ineffective assistance of counsel by a preponderance of the evidence.

    Accordingly, we overrule appellant's third point of error.



    Cruel and Unusual Punishment  

    In his fourth point of error, appellant contends that he received cruel and unusual punishment in cause number 1084739. Specifically, appellant contends that "his sentence is disproportionate to the offense for which he was charged and violates the Eighth Amendment to the United States Constitution prohibiting cruel and unusual punishment, where the record reflects that he was eligible for a two year sentence but received a ten year prison sentence." See U.S. Const. amend. VIII. The State contends that appellant waived his contention because he failed to make a timely objection in the trial court.

    Generally, a sentence within the statutory range of punishment for an offense will not be held to be cruel or unusual under the United States Constitution. Ajisebutu v. State, 236 S.W.3d 309, 314 (Tex. App.--Houston [1st Dist.] 2007, pet. ref'd). Here, appellant was convicted of a third offense of DWI, which is a third degree felony. See Tex. Pen. Code Ann. § 49.09(b) (Vernon Supp. 2007). The statutory range of punishment for a third degree felony offense is two to ten years. Tex. Pen. Code Ann. § 12.34 (Vernon Supp. 2003). Appellant was assessed confinement of 10 years, which is within the statutory range.

    In Solem v. Helm, the Supreme Court held that criminal sentences must be proportionate to the crime and that even a sentence within the statutorily prescribed range may violate the Eighth Amendment. 463 U.S. 277, 290, 103 S. Ct. 3001, 3009 (1983). As the State contends, however, appellant did not object in the trial court to the alleged disproportionality of the sentences and has thus failed to preserve error. See Solis v. State, 945 S.W.2d 300, 301 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd).

    Appellant's fourth point of error is overruled.

    Conclusion

    We affirm the judgment of the trial court.





    Laura Carter Higley

    Justice



    Panel consists of Justices Nuchia, Hanks, and Higley.



    Do not publish. See Tex. R. App. P. 47.2(b).

    1. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). An offense under section 49.04 is a third degree felony if it is shown on the trial of the offense that the person has two previous convictions for DWI. Id. § 49.09(b)(2) (Vernon Supp. 2007).