Eric Adrian Gonzalez v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ERIC ADRIAN GONZALEZ, §
No. 08-17-00169-CR
Appellant, §
Appeal from the
v. §
112th District Court
THE STATE OF TEXAS, §
of Pecos County, Texas
Appellee. §
(TC#P-3634-112-CR)
§
OPINION
Eric Gonzalez appeals his conviction for introduction of an implement of escape into a
correctional facility. The trial court orally pronounced punishment at twelve years’ incarceration
and a fine of one thousand dollars. The written judgment, however, reflects that no fine was
assessed. In his sole issue, Gonzalez contends his trial counsel rendered constitutionally
ineffective assistance when he failed to submit a written punishment election prior to voir dire,
which caused him to lose his option to have punishment assessed by the jury. We reform the
judgment to reflect that the trial court assessed Gonzalez’s punishment at twelve years’
incarceration and a fine of one thousand dollars.1 The judgment, as so modified, is affirmed.
BACKGROUND
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When the trial court’s oral pronouncement of sentence conflicts with the written judgment, the oral pronouncement
controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex.Crim.App. 2002).
On April 26, 2014, Trooper John Messer pulled over a vehicle traveling 66 m.p.h. in a 35-
m.p.h. zone. Eric Gonzalez was driving, and there were several passengers in the vehicle with
him. Messer noticed the smell of alcohol emanating from the vehicle and asked Gonzalez to step
out. He then ordered Gonzalez to perform field sobriety tests. Based on his performance, Messer
determined he was intoxicated and placed him under arrest. Because Messer’s patrol car was not
equipped with a divider between the front and back seat, he placed Gonzalez in the front passenger
seat next to him. Messer’s handcuff keys were in the center console. After calling in the arrest,
Messer exited the patrol car to speak with the passengers in Gonzalez’s vehicle. While he was
speaking with the passengers, Gonzalez picked up the handcuff keys and placed them in his pocket.
Messer then returned to the vehicle and drove Gonzalez to the detention facility.
The following day, Messer realized his handcuff keys were missing. After a search of his
patrol vehicle and his home turned up nothing, he reviewed the recorded footage from his dashcam.
The dashcam footage revealed Gonzalez had taken the keys from the center console while Messer
was speaking with the passengers. Messer contacted his supervisor and let him know what had
happened. Messer and two other deputies then went to Gonzalez’s residence and confronted him
about the missing keys. Gonzalez admitted he had the keys, went to retrieve them from inside the
residence, and gave them back to Messer. Gonzalez claimed the keys had fallen into his pocket
by accident while he was sitting in the patrol car.
Gonzalez was indicted for the crime of Implements for Escape for bringing the handcuff
keys into the detention facility with the intent to facilitate escape. Because he had previously
been finally convicted of a prior felony, this was charged as a second-degree felony. See
TEX.PENAL CODE ANN. § 12.42(a). Before voir dire began, defense counsel was asked by the trial
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court at a bench discussion whether punishment would be assessed by the jury or by the court.
Counsel responded he had not filed an election, but stated he intended to “take it to the jury.”
During voir dire counsel questioned the venire regarding punishment. But counsel did not file a
written election as to punishment until after the jury had found Gonzalez guilty. When the issue
was brought up by the trial court, Gonzalez requested to have the jury assess punishment. But the
State opposed Gonzalez’s request, noting the defendant needed the State’s consent to elect to have
the jury assess punishment if he failed to submit the written election prior to voir dire. Defense
Counsel replied that if the State was unwilling to allow the jury to assess punishment, he would
request a pre-sentence investigation report, which the trial court granted.
The punishment phase was conducted before the trial court. During closing argument,
defense counsel argued for community supervision from the trial court. After hearing argument
by both sides, the trial court assessed punishment at twelve years’ incarceration and a fine of one
thousand dollars. This appeal followed.
DISCUSSION
Ineffective Assistance of Counsel
In his sole issue on appeal, Gonzalez contends his trial counsel performed deficiently by
failing to submit a written election regarding punishment prior to voir dire. He asserts that due to
this failure he lost the right to elect to have the jury assess punishment.
Standard of Review
A criminal defendant is entitled to be represented by effective, competent counsel under
the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668,
687 (1984). To succeed on a claim of constitutionally ineffective assistance, a defendant must
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show by a preponderance of the evidence that his counsel’s performance fell below an objective
standard of reasonableness. Cavitt v. State, 507 S.W.3d 235, 248 (Tex.App.—Houston [1st Dist.]
2015, pet. ref’d)(citing Strickland, 466 U.S. at 687-88). That is, the appellant must prove that
there was no plausible professional reason for a specific act or omission by counsel. Bone v. State,
77 S.W.3d 828, 836 (Tex.Crim.App. 2002). If counsel was deficient, we determine whether there
is a reasonable probability that, but for counsel’s error, the outcome of the proceeding would have
been different. Id.; Adekeye v. State, 437 S.W.3d 62, 73 (Tex.App.—Houston [14th Dist.] 2014,
pet. ref’d). An appellant’s failure to satisfy either prong defeats a claim of ineffective assistance
of counsel. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)(citing Strickland, 466
U.S. at 697).
Demonstrating ineffective assistance of counsel on direct appeal is even more difficult,
given that the reasonableness of counsel’s decisions often involves facts which are not in the
record. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Absent evidence of
counsel’s strategic motivations for his actions at trial, we indulge a strong presumption that counsel
rendered adequate assistance and that his actions were a result of a sound trial strategy. Thompson
v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).
Applicable Law
Article 37.07(2)(b) of the Texas Code of Criminal Procedure, which governs punishment
election, reads in relevant part as follows:
Except as provided by Article 37.071 or 37.072, if a finding of guilty is returned, it
shall then be the responsibility of the judge to assess the punishment applicable to
the offense; provided, however, that (1) in any criminal action where the jury may
recommend community supervision and the defendant filed his sworn motion for
community supervision before the trial began, and (2) in other cases where the
defendant so elects in writing before the commencement of the voir dire
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examination of the jury panel, the punishment shall be assessed by the same jury,
except as provided in Section 3(c) of this article and in Article 44.29. If a finding
of guilty is returned, the defendant may, with the consent of the attorney for the
state, change his election of one who assesses the punishment.
TEX.CODE CRIM.PROC.ANN. § 37.07.
Analysis
Here, Gonzalez contends his attorney rendered constitutionally ineffective assistance by
failing to file a written election regarding punishment prior to voir dire because it denied him the
opportunity to have the jury assess punishment in the face of opposition by the State. Gonzalez
is raising the issue of ineffective assistance on direct appeal, and we are thus required to indulge a
strong presumption that his trial counsel’s actions were the result of a sound trial strategy.
Thompson, 9 S.W.3d at 813. Gonzalez points out that prior to voir dire, his attorney was asked
about punishment election and he orally stated he would have the jury assess punishment if found
guilty, but then failed to file a written election. From this statement, he asserts counsel “clearly”
had knowledge of Gonzalez’s desire that the jury assess punishment, and therefore there was no
plausible professional reason for his failure to file the written election.
But as the State correctly points out, there was a plausible professional reason for omitting
to file the election: Gonzalez was ineligible to receive community supervision from the jury but
could have received community supervision from the trial court. Gonzalez had a prior final felony
conviction at the time of trial, and thus could not receive a sentence of community supervision
from the jury. See Act of June 17, 2015, 84th Leg., (H.B. 2299), ch. 770, § 1.01, 2015
TEX.GEN.LAWS 2321, 2327, eff. Jan 1, 2017. The trial court, however, is not so restricted and
may grant community supervision in the interests of justice. See Act of June 17, 2015, 84th Leg.,
(H.B. 2299), ch. 770, § 1.01, 2015 TEX.GEN.LAWS 2321, 2325, eff. Jan 1, 2017. Accordingly, it
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would have been a reasonable trial strategy to allow the trial court to assess punishment so counsel
could argue for, and Gonzalez could potentially receive, community supervision during the
punishment phase. Indeed, counsel argued for community supervision during the punishment
phase—an option that would have been foreclosed to him had punishment been assessed by the
jury. Because this case is before us on direct appeal, counsel was not given an opportunity to
discuss his strategic motivations, if any, for omitting to file the election, and we must thus presume
his actions were part of a reasoned trial strategy to give his client the opportunity to receive
community supervision. Thompson, 9 S.W.3d at 813.
Gonzalez asserts that under Ex parte Walker, an attorney’s failure to file the punishment
election when it is desired by the defendant is constitutionally ineffective assistance. Walker is
distinguishable. In Walker, counsel had informed the defendant the trial court had a reputation
for being “very harsh” when assessing punishment and advised the defendant to have the jury
assess punishment. Ex parte Walker, 794 S.W.2d 36, 36 (Tex.Crim.App. 1990). The defendant
agreed, and counsel prepared a motion electing to have the jury assess punishment which the
defendant signed. Id. But after voir dire began, his attorney realized he had not filed the election.
Id. He then attempted to file it, but the trial court rejected it as untimely. Id. The trial court
gave defendant the maximum sentence of life in the Texas Department of Corrections. Id. In
holding the defendant was denied effective assistance of counsel, the court relied on its prior
decision in Ex parte Duffy, in which the court held the standard for punishment-phase ineffective-
assistance was whether counsel rendered reasonably effective assistance in light of the totality of
the representation. Id., at 36-37 (citing Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.
1980)). It concluded the attorney’s actions had denied the defendant the opportunity to make an
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informed decision based on the advice his counsel had given him regarding the alleged
predisposition of the trial court to harsh punishment. Id., at 37.
Here, there is nothing in the record to demonstrate the court was likely to render a harsher
sentence than the jury, that counsel advised Gonzalez to have the jury assess punishment, that a
motion was prepared in advance and signed by the defendant, or even that counsel believed he had
made a mistake by not filing the election—as evidenced by his declaration that he had not filed a
written election when asked prior to voir dire. 2 These all served in Walker to demonstrate
counsel’s lack of a strategic reason for omitting the election; in the absence of any such indicators
here, we must presume a reasoned trial strategy. Thompson, 9 S.W.3d at 813. Because Gonzalez
has failed to overcome the presumption of effective assistance with record evidence, we do not
find he received ineffective assistance of counsel. Issue One is overruled.
DEFECTIVE CERTIFICATION
The trial court certified Appellant’s right to appeal in this case, but the certification does
not bear Appellant’s signature indicating that he was informed of his rights to appeal and to file a
pro se petition for discretionary review with the Texas Court of Criminal Appeals. See TEX. R.
APP. P. 25.2(d). The certification is defective, and has not been corrected by Appellant’s attorney,
or the trial court. To remedy this defect, this Court ORDERS Appellant’s attorney, pursuant to
TEX. R. APP. P. 48.4, to send Appellant a copy of this opinion and this Court’s judgment, to notify
Appellant of his right to file a pro se petition for discretionary review, and to inform Appellant of
2
Further, the standard for ineffective assistance during punishment used in Walker relied on the court’s alternate
standard articulated in Duffy. Walker, 794 S.W.2d at 37. Duffy, which did not require a showing of harm—only
ineffective assistance—was overruled by Hernandez v. State, in which the court held that the only standard used to
judge ineffective assistance would be the two-pronged Strickland standard. See Hernandez v. State, 988 S.W.2d
770, 772 (Tex.Crim.App. 1999).
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the applicable deadlines. See TEX. R. APP. P. 48.4, 68. Appellant’s attorney is further
ORDERED, to comply with all of the requirements of TEX. R. APP. P. 48.4.
CONCLUSION
Having overruled Appellant’s sole issue, we reform the judgment to reflect that the trial
court assessed Gonzalez’s punishment at twelve years’ incarceration and a fine of one thousand
dollars. The judgment, as so modified, is affirmed.
May 31, 2019
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
(Do Not Publish)
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