Michael Zellers v. Richard Cortez ( 2009 )

NUMBER 13-07-00396-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JUSTIN LEIGH VENEGAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Vela
Memorandum Opinion by Justice Rodriguez
Appellant, Justin Leigh Venegas, was indicted for entering a habitation without
consent and attempting to commit or committing aggravated assault, a first-degree felony.
See TEX . PENAL CODE ANN . §§ 30.02(a)(3), (d)(2) (Vernon 2003). The indictment also
contained an enhancement count, which, if given effect, would increase the minimum
punishment from five years to fifteen years. See id. § 12.42(c)(1) (Vernon Supp. 2009).
Appellant waived trial by jury and pleaded guilty to the trial court without a plea bargain
agreement. After considering the evidence, the trial court found appellant guilty of the
lesser offense of burglary of a habitation with intent to commit assault, a second-degree
felony. See id. §§ 30.02(a)(1), (c) (Vernon 2003). The trial court assessed appellant's
punishment at ten years’ confinement. On appeal, appellant presents four issues
complaining of errors in the judgment, the admission of certain evidence, and the
voluntariness of his plea.1 We modify the judgment and affirm the judgment as modified.
I. BACKGROUND 2
Nancy Cunningham owned the burglarized house. She testified that appellant had
been involved with her daughter, Sarah Pinkston, for approximately ten years and that
appellant had assaulted and stalked her daughter throughout that ten-year relationship.
Cunningham also testified that appellant broke her door on the night of the burglary.
1
O n June 20, 2007, appellant filed his notice of appeal. On Novem ber 1, 2007, after receiving
num erous com plaints from Venegas about his appointed appellate counsel, this Court abated the appeal and
issued an order requesting that the trial court resolve the m atter of appointed counsel rather than invite future
litigation in the form of a post-conviction collateral attack. The trial court denied appellant's request for new
counsel, and on February 12, 2008, his appointed counsel filed an Anders brief in support of his m otion to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Appellant filed a pro se response on February
14, 2008, followed by num erous supplem ents, the last of which was filed on May 29, 2008. Concluding that
an arguable ground for appeal existed, we abated the appeal on July 10, 2008, and rem anded the case to the
trial court for appointm ent of new counsel to present any ground that m ight support an appeal. See Stafford
v. State, 823 S.W .2d 503, 511 (Tex. Crim . App. 1991) ("If grounds are deem ed arguable, the Court of Appeals
then m ust abate the appeal and rem and the case to the trial court with orders to appoint other counsel to
present those and any other grounds that m ight support the appeal."). The trial court appointed new appellate
counsel on Septem ber 9, 2008. However, appellant's newly appointed counsel failed to file a brief and failed
to respond to this Court's efforts to com m unicate with him . Therefore, we again abated the appeal on October
16, 2008, and requested that the trial court file findings and recom m endations regarding appellant's
representation. On May 15, 2009, because no trial court findings had been received and no brief had been
filed, this Court ordered the trial court to rem ove that counsel and appoint yet another appellate counsel. The
trial court did so, and on July 20, 2009, appellant's new counsel filed the brief now before this Court. The
State's reply brief was filed on October 22, 2009.
2
As this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite them
here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T EX .
R. A PP . P. 47.4.
2
Pinkston, appellant's ex-girlfriend and the mother of appellant's two children,3
testified that, on the night of the burglary, she was watching a movie with her daughter and
a friend when her front door came "tumbling down." Appellant jumped over the couch
where her son was sleeping and assaulted Pinkston's friend. There was "blood
everywhere."
Appellant addressed the trial court without being subjected to cross-examination.
Regarding the offense, appellant testified to the following:
Now, as far as the aggravated assault, that did not happen. As far as brass
knuckles or rope, none of that took place. Him [sic] and I fought, and that's
what happened. Now, yes, I did kick in the door. I was not peeking in the
window. I called [Pinkston] on the phone, and I hung up, and I seen [sic] her
peeking out the window. I seen [sic] a guy there, and I reacted. I was hurt.
II. Defects in the Judgment
The original judgment was signed on June 6, 2007. A nunc pro tunc judgment was
signed on November 20, 2008, removing a boilerplate deadly weapon finding. By his first
issue, appellant contends that the nunc pro tunc judgment incorrectly describes the trial
court's verdict as "Burglary of A Habitation With The Commission Of A Felony." The State
concedes that appellant was convicted of the lesser offense of burglary of a habitation with
intent to commit assault. Additionally, in his second issue, appellant contends that the
recital in the judgment that reads "Plea to 1st Enhancement Paragraph: True" is incorrect.
The State concedes that the judgment mistakenly recites that appellant pleaded true to the
first enhancement paragraph. The State also states that it withdrew the enhancement
allegation. We, therefore, conclude that the judgment should be modified to correct these
defects. See TEX . R. APP. P. 43.2(b). Appellant's first and second issues are sustained.
3
Pinkston's daughter and son were five and eight years old, respectively, at the tim e of trial.
3
III. TESTIMONY REGARDING PUNISHMENT
By his third issue, appellant claims that the trial court erred in permitting the victims
to make recommendations concerning punishment. Specifically, appellant complains that
the trial court erred in allowing testimony regarding appellant's suitability for probation.
A. Complained-Of Testimony
When asked if she thought appellant would be a good candidate for probation, over
defense counsel's objection that "there is no foundation for her experience on probation
or what probation is, that makes a good candidate for probation," Cunningham answered,
"No, I do not." After permitting the defense attorney to question Cunningham on voir dire
and without ruling on defense counsel's objection, the trial court advised the prosecutor to
continue his examination. Later, when asked, without objection, if she thought appellant
should be “out in the free world,” Cunningham again replied in the negative.
Pinkston described appellant as "[v]olatile, abusive, obsessive, [and] crazy." When
asked if she thought appellant would respect the trial court's rules if he were placed on
probation, Pinkston responded in the negative. There was no objection to this question.4
B. Analysis
As set out above, appellant objected to the testimony provided by Cunningham
regarding whether she thought he would be a good candidate for probation. This objection
only challenged her qualifications for providing such testimony. Defense counsel was
allowed to question Cunningham on voir dire, and the trial court made no ruling on
4
W e note that appellant also testified regarding his punishm ent. Acknowledging that he could go to
prison for the rest of his life if he "m essed up," appellant asked the trial court to place him on deferred
adjudication com m unity supervision for ten years.
4
counsel's objection. Similar testimony was later elicited from Cunningham and from
Pinkston, without objection.
To preserve error when the trial court admits evidence,
a party must make a proper objection and get a ruling on that objection. In
addition, a party must object each time the inadmissible evidence is offered
or obtain a running objection. An error in the admission of evidence is cured
where the same evidence comes in elsewhere without objection.
Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003); see TEX . R. APP. P. 33.1(a)(1)-
(2). Because there was no ruling on appellant's objection and because similar evidence
was admitted without objection, we conclude no error has been preserved for review.
Additionally, appellant's trial objection addressed the witness's qualifications to
testify as to punishment. On appeal, appellant complains about the nature of the
testimony—that the testimony was irrelevant or prejudicial and might have influenced the
trial court's decision. Therefore, appellant's complaint on appeal does not comport with his
objection at trial and, for that reason, has not been preserved for review. See Swain v.
State, 181 S.W.3d 359, 365 (Tex. Crim. App. 2005) (providing "[a]ppellant's global
statements in his pretrial motion to suppress were not sufficiently specific to preserve the
arguments he now makes on appeal"); Denoso v. State, 156 S.W.3d 166, 174 (Tex.
App.–Corpus Christi 2005, pet. ref'd) (citing Guevara v. State, 97 S.W.3d 579, 583 (Tex.
Crim .App. 2003)); see also TEX . R. APP. P. 33.1(a)(1)(A).
Accordingly, we overrule appellant's third issue.
IV. VOLUNTARINESS OF PLEA
By his fourth issue, appellant complains that his plea of guilty was not entered
voluntarily. Appellant contends his guilty plea was involuntarily given because (1) it was
5
inconsistent with trial testimony, (2) there were inconsistencies in his plea papers, and (3)
oral admonishments regarding probation were not given.5 We disagree.
A. Standard of Review
There is a presumption of regularity and truthfulness of the judgment and the
underlying proceedings absent a showing to the contrary, and the burden is on appellant
to overcome this presumption and to show the involuntariness of his plea of guilty. Ex
parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Dusenberry v. State, 915
S.W.2d 947, 949 (Tex. App.–Houston [1st Dist.] 1996, pet. ref'd). Appellant's burden is a
heavy one. Dusenbery, 915 S.W.2d at 949. In determining the voluntariness of the plea,
this Court considers the entire record. Williams v. State, 522 S.W.2d 483, 485 (Tex. Crim.
App. 1975); Dusenbery, 915 S.W.2d at 949.
B. Guilty Plea Inconsistent With Trial Testimony
Appellant first asserts that because his judicial confession of guilt was inconsistent
with his testimony at trial, his plea of guilty was involuntary. Appellant signed and swore
to a judicial confession and stipulation which tracked the language of the indictment
charging appellant with entering a habitation without consent and attempting to commit or
committing aggravated assault. Appellant's judicial confession stated the following: "I
hereby agree and stipulate that the facts contained in this instrument and its attached
exhibits, if any, are true and correct." Offense reports and other statements relating to the
5
Appellant also identifies the following alleged inconsistencies: (1) appellant initialed a paragraph
stating that he waived indictm ent and understood he was charged by a felony inform ation when he had, in fact,
been indicted; and (2) appellant initialed the statem ent that he did not understand the English language when
the record clearly shows he understood and easily com m unicated in English. Appellant does not discuss how
these alleged inconsistencies dem onstrate that he did not understand the elem ents of the offense or the
consequences of his plea. See T EX . R. A PP . P. 38.1(i). Thus, we will not address these alleged
inconsistencies in our discussion of the voluntariness of appellant's plea.
6
case were attached to the judicial confession. At trial, however, appellant denied
committing an aggravated assault.
The court of criminal appeals has held "that when a defendant has waived trial by
jury and pleaded guilty, the trial court has no duty to conduct some special proceeding
when evidence inconsistent with guilt is introduced." Mendez v. State, 138 S.W.3d 334,
350 (Tex. Crim. App. 2004) (citing Aldrich v. State, 104 S.W.3d 890, 894 (Tex. Crim. App.
2003)). Under those circumstances, a trial court is to consider the evidence submitted and
decide if a guilty-pleading defendant is guilty as he pleaded, guilty of a lesser included
offense, or not guilty. Aldrich, 104 S.W.3d at 894. "Whether to undertake any additional
inquiry into the voluntary and knowing nature of the plea was left 'solely within the province
of the trial court.'" Id. (quoting Moon v. State, 572 S.W.2d 681, 687 (Tex. Crim. App. 1978)
(Phillips, J., concurring)).
Considering the evidence before it, including appellant's testimony that he fought
with Pinkston's friend but that the aggravated assault did not happen, the trial court found
appellant not guilty of the first-degree felony for which he was indicted and pleaded guilty.
Rather, the trial court found appellant guilty of the lesser-included offense of burglary of a
habitation with the intent to commit assault, a second-degree felony. The trial court chose
not to undertake any additional inquiry into the voluntary and knowing nature of appellant's
guilty plea. Aldrich, 104 S.W.3d at 894.
Based on the record before us, we cannot conclude that the discrepancy between
appellant's plea of guilty to the indicted offense and his trial testimony rendered his plea
involuntary. Appellant has not overcome the presumption of regularity and truthfulness of
7
the judgment; he has not met his heavy burden to show the involuntariness of a plea of
guilty on this basis. Dusenberry, 915 S.W.2d at 949.
C. Inconsistencies in Appellant's Plea Papers
Appellant further asserts that inconsistencies in his plea papers demonstrate that
he did not understand the consequences of his plea.6 Appellant complains of the following:
(1) an initialed paragraph which begins, "I have filed an application for community
supervision (formerly known as probation)"; (2) a second initialed paragraph which reads,
"I have requested that the Court defer further proceedings on my case without entering an
adjudication of guilt and place me on community supervision"; and (3) a third initialed
paragraph which sets out, "I have not filed an application for community supervision. I
know and understand that if I am found guilty, I will be punished by imprisonment or
confinement for a definite term and I may be fined."7 All paragraphs relate to community
supervision. Appellant argues that the inconsistency represented by these three initialed
paragraphs shows that his plea was involuntary on its face. We disagree.
An irregularity in a written admonishment form does not, standing alone, render a
defendant's plea of guilty involuntary. See TEX . CODE CRIM . PROC . ANN . art. 26.13(c)
(Vernon Supp. 2009) (providing that "substantial compliance . . . is sufficient, unless the
defendant affirmatively shows that he was not aware of the consequences of his plea and
6
In addition, appellant contends, without discussion or authority, that inconsistencies in his plea papers
dem onstrate that he did not understand the elem ents of the offense. In accordance with rule 38.1(i) of the
Texas Rules of Appellate Procedure, however, we will only consider contentions that are supported by clear
and concise argum ents with appropriate citations to authorities and to the record. T EX . R. A PP . P. 38.1(i).
7
As part of his plea papers, appellant filed an application for com m unity supervision requesting
deferred adjudication.
8
that he was misled or harmed by the admonishment of the court"); Morales v. State, 872
S.W.2d 753, 754-55 (Tex. Crim. App. 1994) (explaining that the trial court need only
substantially comply with article 26.13); see also Lopez, 25 S.W.3d at 928-29 (holding that
the failure to initial an admonishment on the possibility of deportation did not make a plea
involuntary).
In this case, written admonishments were given to appellant; written admonishments
which appellant and trial counsel signed. See Mallett v. State, 65 S.W.3d 59, 64 (Tex.
Crim. App. 2001) (providing that when a defendant is admonished of his constitutional and
statutory rights there is a prima facie showing that the guilty plea was knowing and
voluntary and the burden shifts to appellant to show he did not fully understand the
consequences of his plea); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.–Dallas 1997,
pet. ref'd) (same); see also TEX . CODE CRIM . PROC . ANN . art. 26.13(a), (d) (Vernon Supp.
2009). The admonishments stated that appellant: (1) had time to talk to his lawyer and
discuss all relevant facts and applicable law; (2) understood the trial court's written
admonishments and explanation of his constitutional and statutory rights; (3) understood
that the trial court was not required to place him on community supervision although he
filed an application for community supervision; (4) knew the range of punishment
applicable in this cause; and (5) was aware of the consequences of entering a plea of
guilty. Appellant's signature on the written admonishments constituted his representation
to the trial court that his plea was made freely and voluntarily. See Mallett, 65 S.W.3d at
64 (citing Ex parte Williams, 704 S.W.2d 773, 775 (Tex. Crim. App. 1986)).
9
Moreover, the written record brought forward by appellant provides no explanation
for why he acknowledged filing an application for community supervision that requested
that the trial court defer proceedings without entering an adjudication of guilt, when he also
indicated that he had not filed an application for community supervision and if found guilty
will be imprisoned or confined and maybe fined. Oral statements or testimony might have
explained this inconsistency, but we find no such statements or testimony in the reporter's
record. Appellant had the burden to present a record that showed error, but did not meet
that burden. See Lopez v. State, 25 S.W.3d 926, 929 (Tex. App.–Houston [1st Dist.] 2000,
no pet.).
Therefore, based on our review of the record, we cannot conclude that the
inconsistencies in the plea papers regarding whether or not appellant applied for
community supervision show that appellant's plea was not knowingly and voluntarily made.
See id. The record before us indicates a voluntary plea, and thus, appellant has failed to
defeat the presumption of regularity of the judgment and proceedings on this basis. See
Dusenberry, 915 S.W.2d at 949.
D. Oral Admonishments Challenged
Finally, appellant complains, by his fourth issue, that because the trial court did not
discuss the two types of probation and appellant's potential eligibility for either type in its
oral admonishments, his plea was involuntary. However, while article 26.13 of the code
of criminal procedure requires a trial court to admonish a defendant either orally or in
writing as to the range of punishment as well as to other consequences of his plea, prior
to accepting a plea of guilty, the "range of punishment" for article 26.13 purposes does not
10
include community supervision. See TEX . CODE CRIM . PROC . ANN . art. 26.13(a); Pena v.
State, 132 S.W.3d 663, 665 (Tex. App.–Corpus Christi 2004, no pet.). "[T]here is no
mandatory duty for the trial court to admonish a defendant regarding his eligibility for
community supervision." Pena, 132 S.W.3d at 665. The trial court, therefore, was not
required to discuss the types of probation and appellant's potential eligibility for either type.
Nevertheless, community supervision and deferred adjudication were explained in
the trial court's written admonishments to appellant on his plea of guilty. Further, although
appellant may have wanted to be placed on probation without a finding of guilt, there is
nothing in the record to support appellant's assertion that he entered his guilty plea only
because he thought the trial court would place him on probation. The fact that appellant
may have desired such an outcome does not render the guilty plea involuntary. See
Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.–Dallas 1993, no pet.) ("A plea is
not rendered involuntary simply because a defendant received a greater punishment than
he anticipated."). Based on the record before us, nothing is presented to support
appellant's allegations that his guilty plea was involuntary on this basis.
We conclude that appellant did not meet his heavy burden to show that he did not
enter his plea knowingly and voluntarily. Dusenberry, 915 S.W.2d at 949. We overrule
appellant's fourth issue.
V. CONCLUSION
Accordingly, we modify the judgment to recite that appellant was convicted of the
offense of burglary of a habitation with intent to commit assault, a second-degree felony,
11
and to remove the word "True" as appellant's plea to the first enhancement paragraph, and
we affirm the judgment as modified.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX . R. APP. P. 47.2(b).
Delivered and filed the 3rd
day of December, 2009.
12