Michael Fabian Espinoza v. State

Opinion filed August 30, 2013
In The
Eleventh Court of Appeals
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No. 11-12-00146-CR
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MICHAEL FABIAN ESPINOZA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR38892
MEMORANDUM OPINION
The jury found Michael Fabian Espinoza guilty of unauthorized absence
from a community corrections facility, the Midland Court Residential Treatment
Center. Appellant elected to have the trial court assess his punishment, and the
court assessed that punishment at confinement for two years in a state jail facility
and sentenced him accordingly. We affirm.
In an earlier case, the State charged Appellant with misdemeanor possession
of marihuana. Upon Appellant’s plea of nolo contendere in that case and after
Appellant had waived counsel, the trial court deferred the adjudication of guilt and
placed Appellant on community supervision. The trial court later amended the
terms of community supervision to include a period of detention and treatment in
the Midland Court Residential Treatment Center. Before that time had expired,
Appellant permanently left the Center without authorization.
The State moved to revoke Appellant’s community supervision and to
adjudicate his guilt for misdemeanor possession of marihuana. Appellant waived
his right to counsel at that hearing and pleaded “true” to the allegation that he
violated the terms of his community supervision when he left the Center without
authorization. The trial court granted the State’s motion, revoked Appellant’s
community supervision, found Appellant guilty of the misdemeanor marihuana
charge, and assessed his punishment at confinement for five days. Appellant did
not appeal.
Meanwhile, the grand jury indicted Appellant for a violation of
Section 38.113 of the Texas Penal Code for leaving the Center without authoriza-
tion. TEX. PENAL CODE ANN. § 38.113 (West 2011). When the case that is the
subject of this appeal went to trial, the trial court admitted the judgment in the
misdemeanor marihuana case into evidence. That judgment shows that Appellant
pleaded “true” to the allegation that he left the Center without permission.
Appellant brings one issue on appeal in which he now objects, for the first
time on these grounds, to the admission of that judgment. He frames that issue as
follows: “Whether failure to provide a warning that admissions in a prior
misdemeanor court proceeding will lead to admissible statements in future criminal
felony proceedings in violation of the Fifth and Sixth Amendments to the U.S.
Constitution, and the Texas Constitution.”
In his first argument under that issue, Appellant states the general rule as to
collateral estoppel. However, he does not go beyond the statement of the rule and
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makes no argument in connection with it. In the absence of argument or authority
on the application of collateral estoppel to this case, we need not consider that part
of Appellant’s sole issue on appeal. See TEX. R. APP. P. 38.1.
We take Appellant’s next argument to be that he suffered from a denial of
counsel in the misdemeanor marihuana case. He points to the Sixth Amendment to
the United States Constitution as the source of the right to counsel. We treat
Appellant’s next argument under his single issue on appeal to be that he was
compelled to give evidence against himself when he entered his plea of “true” in
the misdemeanor marihuana case and that no one warned him that he did not have
to do that and thereby give evidence against himself. Appellant directs us to the
Fifth and Fourteenth Amendments to the United States Constitution; Article I,
section 10 of the Texas constitution; and Article 1.05 of the Texas Code of
Criminal Procedure as sources of the privilege against self-incrimination.
Both the right-to-counsel argument and the self-incrimination argument are
directed at the original misdemeanor marihuana proceedings. Neither of those
matters was appealed, and neither is subject to a collateral attack in this
proceeding. A collateral attack may be made on a prior judgment if the conviction
is void or if it is tainted by a constitutional defect. Certain lesser infirmities in a
prior conviction may not be raised in a collateral attack. That is true even though
such lesser infirmities might have resulted in a reversal if the appellant had
presented them in an appeal. Galloway v. State, 578 S.W.2d 142 (Tex. Crim. App.
1979); Prado v. State, 822 S.W.2d 819, 820 (Tex. App.—Eastland 1992, pet.
ref’d). Here, there has been no showing that the misdemeanor conviction is either
void or tainted by a constitutional defect. Therefore, Appellant’s collateral attack
on the misdemeanor marihuana conviction cannot be sustained.
Furthermore, although general comments were made by Appellant’s counsel
to the effect that he wanted the trial court “to keep those judgments out,” when the
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State finally offered the misdemeanor marihuana judgment into evidence,
Appellant’s attorney stated, “No objection.” Appellant has waived any error in the
admission of the prior judgment of conviction. TEX. R. APP. P. 33.1(a)(1).
For all of the foregoing reasons, Appellant’s sole issue on appeal is
overruled in its entirety.
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE
August 30, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.
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