David Herrera Barrera v. State ( 2010 )


Menu:
  •                               NUMBER 13-09-221-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    DAVID HERRERA BARRERA,                                                      Appellant,
    v.
    THE STATE OF TEXAS,                                                          Appellee.
    On appeal from the 377th District Court
    of Victoria County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Garza, and Vela
    Memorandum Opinion by Justice Vela
    Appellant, David Herrera Barrera, was indicted for aggravated assault against a
    public servant, a first-degree felony. See TEX . PENAL CODE ANN . § 22.02(b)(2)(B) (Vernon
    Supp. 2009). Pursuant to a plea agreement, appellant pleaded guilty to the offense, and
    the State recommended a punishment of seven years’ deferred-adjudication community
    supervision, a $2,000 fine, 300 hours of community service, and evaluation for drugs and
    alcohol.   The trial court followed the parties’ plea agreement and assessed the
    recommended punishment.
    On February 2, 2009, the State filed a motion to adjudicate guilt, alleging that
    appellant 1) committed the offenses of criminal mischief and driving with an invalid license,
    2) failed to report the commission of these offenses to his community-supervision officer,
    3) failed to abstain from the use of any substance capable of or calculated to cause
    intoxication, 4) failed to receive permission from his community-supervision officer before
    leaving the county of his approved residence, 5) failed to report to his community-
    supervision officer from February 2008 through November 2008, 6) failed to abide by a
    curfew, 7) failed to pay his fine, court costs, and supervisory fees, 8) failed to complete
    community-service restitution, 9) failed to pay $5 to the local crime-stoppers program, and
    10) failed to enroll in the Aggression Control Program. During the hearing on this motion,
    appellant pleaded “True” to the allegations that he committed the offenses of criminal
    mischief and driving with an invalid license, and he pleaded “Not true” to the remaining
    allegations. After hearing testimony, the trial court found some of the allegations to be
    true, adjudicated appellant guilty of the offense of aggravated assault against a public
    servant, and assessed punishment at twenty years’ imprisonment, plus a $2,000 fine.
    In two issues, appellant complains he was denied his right to due process and that
    he received ineffective assistance of counsel. We affirm.
    I. DISCUSSION
    A. Right to Due Process
    In issue one, appellant complains he was denied his constitutional right to due
    process of law because “‘the legal sufficiency of evidence for conviction on Aggravated
    2
    Assault Against a Public Servant and deadly weapon finding were never challenged’ by his
    trial counsel.” We interpret this issue as a complaint that appellant has been denied his
    due-process right to effective assistance of counsel on appeal in violation of his Fourteenth
    Amendment due-process rights under the United States Constitution. See U.S. CONST .
    amend. XIV.
    1. Applicable Law
    In Evitts v. Lucey, the Supreme Court held that the Due Process Clause of the
    Fourteenth Amendment to the United States Constitution guarantees a defendant the
    effective assistance of counsel on appeal. 
    469 U.S. 387
    , 392 (1985); Ex parte Coy, 
    909 S.W.2d 927
    , 928 (Tex. Crim. App. 1995). We must apply the standard set forth in
    Strickland v. Washington, 
    466 U.S. 668
    (1984), in judging claims of ineffective assistance
    of appellate counsel. Smith v. Robbins, 
    528 U.S. 259
    , 285 (2000); 
    Evitts, 469 U.S. at 392
    .
    Strickland requires the defendant to show both that counsel’s performance was
    deficient and that this deficient performance prejudiced the 
    defense. 466 U.S. at 687
    . In
    the appellate arena, the defendant must first show that his or her counsel was objectively
    unreasonable, for example, in failing to raise arguable issues on appeal. 
    Robbins, 528 U.S. at 285
    . If the defendant succeeds in this instance, he or she must then demonstrate
    prejudice to his or her defense. 
    Id. In other
    words, the defendant must show a reasonable
    probability that, but for counsel’s failure, he or she would have prevailed on appeal. 
    Id. at 285-86
    (quoting 
    Strickland, 466 U.S. at 694
    (“defendant must show ‘a reasonable
    probability that, but for counsel’s unprofessional errors, the result of the proceeding would
    have been different’”)). A defendant overcomes the presumption of effective assistance
    of counsel when the ignored issues are clearly stronger than those presented by the
    counsel on appeal. 
    Id. at 288.
                                                 3
    Concerning whether counsel was deficient for failing to challenge the sufficiency of
    the evidence, the United States Constitution does not require the State to present evidence
    in support of a guilty plea in Texas courts. Menefee v. State, 
    287 S.W.3d 9
    , 13 (Tex. Crim.
    App. 2009). Article 1.15 of the code of criminal procedure constitutes “an additional
    procedural safeguard required by the State of Texas but not by federal constitutional law.”
    Ex parte Williams, 
    703 S.W.2d 674
    , 678 (Tex. Crim. App. 1986). In Texas, “[n]o trial court
    is authorized to render a conviction in a felony case, consistent with Article 1.15, based
    upon a plea of guilty ‘without sufficient evidence to support the same.’” 
    Menefee, 287 S.W.3d at 13
    ; see TEX . CODE CRIM . PROC . ANN . art. 1.15 (Vernon 2005).
    With respect to the form of evidence required by article 1.15, the court of criminal
    appeals has explained:
    Evidence offered in support of a guilty plea may take many forms. The
    statute expressly provides that the defendant may consent to the proffer of
    evidence in testimonial or documentary form, or to an oral or written
    stipulation of what the evidence against him would be, without necessarily
    admitting to its veracity or accuracy; and such a proffer or stipulation of
    evidence will suffice to support the guilty plea so long as it embraces every
    constituent element of the charged offense. Alternatively, our case law has
    recognized that the defendant may enter a sworn written statement, or may
    testify under oath in open court, specifically admitting his culpability or at
    least acknowledging generally that the allegations against him are in fact true
    and correct; and again, so long as such a judicial confession covers all of the
    elements of the charged offense, it will suffice to support the guilty plea.
    
    Menefee, 287 S.W.3d at 13
    (footnote omitted).
    2. Analysis
    A person commits the offense of aggravated assault against a public servant when:
    (1) he or she; (2) intentionally or knowingly threatens another with imminent bodily injury;
    (3) using or exhibiting a deadly weapon during the commission of the offense; and (4) the
    offense is committed against a person the actor knows is a public servant while the public
    4
    servant is lawfully discharging an official duty. See TEX . PENAL CODE ANN . §§ 22.01(a)(2),
    22.02(a)(2), 22.02(b)(2)(B) (Vernon Supp. 2009). In this case, count one of the indictment
    alleged, in relevant part, that appellant
    did then and there intentionally or knowingly threaten GREGORY LOTER
    with imminent bodily injury by charging at the said GREGORY LOTER with
    a knife, and did then and there use or exhibit a deadly weapon, to-wit: a
    knife that in the manner of its use or intended use was capable of causing
    death or serious bodily injury, during the commission of said assault, and the
    defendant did then and there know that the said GREGORY LOTER was
    then and there a public servant, to-wit: a Victoria Police Department officer,
    and that the said GREGORY LOTER was then and there lawfully discharging
    an official duty, to-wit: investigating or responding to an emergency call . .
    ..
    (emphasis in original).
    At the hearing in which appellant pleaded guilty to the offense of aggravated assault
    against a public servant, the State did not introduce either a written stipulation of evidence
    or a written judicial confession. However, we note that during that hearing, the following
    exchange occurred between the prosecutor, defense counsel, and appellant:
    Prosecutor:          Mr. Barrera [appellant], if Justin Knippa, of the Victoria
    Police Department, were called as a witness he would
    be sworn in and would testify that on or about May 26,
    2007, in the County of Victoria and State of Texas, you,
    David Herrera Barrera, did then and there intentionally
    or knowingly threaten Gregory Loter with imminent
    bodily injury by charging the said Gregory Loter with a
    knife, and you did use or exhibit a deadly weapon, that
    knife, that in the manner of its use or intended use was
    capable of causing death or serious bodily injury, during
    the commission of said assault, and that you did then
    and there know that Gregory Loter was then and there
    a public servant, to-wit: a Victoria Police Department
    Officer, and that you were then—that the said Gregory
    Loter was then and there lawfully discharging an official
    duty, to-wit:      investigating or responding to an
    emergency call?
    Appellant:           Yes, sir.
    5
    Prosecutor:                 Do you so agree and stipulate?
    Appellant:                  Yes, sir.
    Defense Counsel:            I join in that.
    Prosecutor:                 And, finally, do you agree that the acts and allegations
    contained in count one[1] of the State’s indictment is
    true and correct?
    Appellant:                  Yes, sir.
    Defense Counsel:            I join in that.
    Here, appellant consented to an oral stipulation of what the evidence against him
    would be. This is a permissible form of evidence to support a plea of guilty. See 
    Menefee, 287 S.W.3d at 13
    . This oral stipulation of evidence embraced every constituent element
    of the charged offense and is, therefore, sufficient to support the guilty plea. See 
    id. Furthermore, appellant
    acknowledged generally that the allegations against him were in
    fact true and correct.
    Because the evidence is sufficient to support the guilty plea, trial counsel was not
    deficient in failing to raise this issue on appeal or in a J.N.O.V. Accordingly, appellant has
    failed to satisfy the first prong required by Strickland and, therefore, cannot establish
    ineffective assistance of counsel on appeal.
    By this same issue, appellant argues that his guilty plea “was not voluntary and was
    made under duress after his appointed counsel told him that he would be found ‘guilty’ if
    he were to go to trial.” However, nothing in the record shows that his trial counsel told
    appellant he would be convicted if he elected to have his case tried to a judge or jury. “Any
    allegation of ineffectiveness must be firmly founded in the record and the record must
    1
    Count one is the offense that appellant pleaded guilty to–aggravated assault against a public servant.
    6
    affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 
    928 S.W.2d 482
    , 500 (Tex. Crim. App. 1996). Issue one is overruled.
    2. Ineffective Assistance of Counsel
    In issue two, appellant argues he received ineffective assistance of counsel because
    but for the “defective plea,” which originally placed him on community supervision, the
    revocation hearing would be rendered moot. Therefore, according to appellant, this Court
    should set aside the trial court’s decision to revoke his community supervision. Appellant
    offers no argument or authorities regarding why he thinks his guilty plea was “defective.”
    This issue is thus inadequately briefed, and therefore, waived. See TEX . R. APP. P. 38.1(i);
    see also Russeau v. State, 
    171 S.W.3d 871
    , 881 (Tex. Crim. App. 2005). Issue two is
    overruled.
    II. CONCLUSION
    We affirm the trial court’s judgment.
    ROSE VELA
    Justice
    Do not publish.
    TEX . R. APP. P. 47.2(b).
    Delivered and filed the 22nd
    day of April, 2010.
    7