Michelle Elizabeth Gonzales v. State

NO. 07-03-0010-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MAY 20, 2003

______________________________

MICHELLE ELIZABETH GONZALES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 64^TH DISTRICT COURT OF HALE COUNTY;

NO. A-13511-9909; HON. JACK R. MILLER, PRESIDING

_______________________________

Before QUINN, REAVIS, JJ. AND BOYD, S.J.

Michelle Elizabeth Gonzales (appellant) appeals from an order revoking her community supervision. She had originally been convicted of engaging in organized criminal activity via a plea bargain and plea of guilty. Pursuant to the plea agreement, she was sentenced to eight years imprisonment. However, the sentence was suspended, and appellant was placed on eight years probation. Subsequently, the State filed three separate motions to revoke probation at three separate times with the first two ending in appellant's probation being reinstated. However, on the third motion to revoke, appellant pled true to all of the grounds supporting revocation except for two which involved appellant's alleged commission of a new offense and failing to report for three months. The trial court granted the motion, revoked appellant's probation, and sentenced her to five years in the Institutional Division of the Texas Department of Criminal Justice. Appellant timely noticed her appeal, and counsel was appointed. Appellant's counsel then moved to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), and representing that he had searched the record and found no arguable grounds for reversal. The motion and brief illustrated that appellant was informed of her rights to review the appellate record and file her own brief. So too did we inform appellant that any pro se response or brief she cared to file had to be filed by May 16, 2003. To date, appellant has filed no pro se response or brief.

In compliance with the principles enunciated in Anders, appellate counsel discussed one potential area for appeal which concerned the court's decision to revoke her community supervision. However, counsel explained how "a plea of 'true' to any of the alleged violations is sufficient to support the trial court's order of revocation."

So too did we conduct an independent review of the record to determine whether there existed reversible error and found none. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring us to conduct an independent review). The record illustrated that no appeal was taken within 30 days from the date of appellant's guilty plea and conviction complaining of error occurring at that time; thus, we have no jurisdiction over any purported error arising from or prior to the plea hearing. Manuel v. State, 944 S.W.2d 658, 661-62 (Tex. Crim. App. 1999); see Cooper v. State, 45 S.W.3d 77, 83 (Tex. Crim. App. 2001). Furthermore, finding that any one ground warranting revocation existed, the trial court was entitled to revoke appellant's community supervision. Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1979). Here, appellant pled true to all but two grounds contained in the motion to revoke. Standing alone, a plea of true is sufficient to support the trial court's order of revocation. Hatten v. State, 71 S.W.3d 332, 335 n.2 (Tex. Crim. App. 2002). Thus, the appellate record contained evidence supporting the decision to revoke probation. Furthermore, the punishment levied was within the range provided by statute.

However, we note that the judgment revoking appellant's probation included an allegation mentioned in the motion to revoke that was not supported by the record. The ground in question is that involving appellant's purported violation of the condition pertaining to the commission of a new offense. Appellant plead not true to it. Moreover, no evidence appears of record illustrating that it was violated. Simply put, appellant invoked her Fifth Amendment right against self-incrimination when she was asked about the allegation and opted not to discuss it. Nor did the State present evidence on the matter through other sources once appellant invoked her silence. Thus, the trial court erred in holding that she "ha[d] committed an offense against the law of this State." Nevertheless, the error is harmless given that she pled true to other grounds, and only one was needed to revoke probation.

Accordingly, we modify the judgment revoking probation by deleting from it the finding that appellant

has committed an offense against the law of this state; to wit: On or about the 11^th day of July, 2002, in the County of Hale, State of Texas, . . . Michelle Gonzalez . . . did then and there without effective consent of Stacy Griego, the owner thereof, intentionally or knowingly, break into or enter a vehicle, or part thereof, with intent to commit, and did commit theft . . . .

and affirm it as modified. See Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.1993) (holding that we have the authority to modify an incorrect judgment when the record permits us to do so); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd) (holding the same). Furthermore, we grant counsel's motion to withdraw.

Brian Quinn

Justice

Do not publish.

t's house, knocked on the door, and was told to come in. He said they talked about getting back together, and that he stayed at the complainant's house until about 8:45 p.m. During that time, he testified that the complainant's daughter was present until 1:30 or 2:00 p.m. at which time complainant took the child to her sister's. When she returned, he said, she took a bath while he sat and talked to her. After the bath, he continued, they sat, he put lotion on her, and they talked and laughed. Appellant claimed he had consensual sex with her after about 40 minutes and also later during the course of the afternoon. Around 7:45 p.m., the complainant got dressed, went to Burger King, and brought back a burger and fries which they ate together. He stayed at her house another hour and then walked home.

Standard of Review

In the seminal case of Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), the court explicated the rule that in considering a factual sufficiency challenge in a criminal case, the court of appeals must view "all the evidence without the prism of 'in the light most favorable to the prosecution'" and may only set aside the jury verdict when it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 129. In additional explication, and in the case of Cain v. State, 958 S.W.2d 404 (Tex. Crim. App. 1997), the court opined that the court of appeals may only exercise its jurisdiction to prevent a manifestly unjust result and is not free to set aside a jury verdict merely because the court feels that a different result is more reasonable. Id. at 407. Moreover, it continued, a court of appeals must support a finding of factual insufficiency by providing a detailed explanation of its finding so that it can be determined that the appellate court accorded proper deference to the jury finding and the court must explain why the jury finding is manifestly unjust, shocks the conscience, or clearly manifests bias. Id. In that connection, it said, the court of appeals should state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Id.; see also Watson v. State, No. PD-469-05, 2006 Tex. Crim. App. LEXIS 2040 at *38-39 (Tex. Crim. App. October 18, 2006); Johnson v. State, 23 S.W.3d 1, 11-12 (Tex. Crim. App. 2000).

In Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997), the court cautioned that in performing our factual sufficiency review, we must begin with the assumption that the evidence is legally sufficient and then consider all the evidence in the record related to an appellant's factual sufficiency challenge, not just the evidence which supports the verdict. Id. at 164. It reminded us that an appellate court reviews the evidence weighed by the jury which tends to prove the elemental fact in dispute and compares it to the evidence which tends to disprove the fact. Id. In addition, the court opined, our factual sufficiency review must be appropriately deferential so as to avoid substituting our own judgment for that of the factfinder and it may not substantially intrude upon the jury's role as the sole judge of the weight and credibility of the witness testimony. Id.; see also Sells v. State, 121 S.W.3d 748, 754 (Tex. Crim. App. 2003). It is in the light of these somewhat cryptic explications that we must review the evidence in this case.

Discussion

In arguing that the evidence is insufficient, appellant points to the testimony of the investigating officer that no tables were overturned, no pictures knocked off the wall, no glass broken, and that nothing seemed to be out of place. He also refers to the testimony of the doctor that he could not find any bruises or tears in the complainant's vagina and that the fact of rape depended upon the complaining witness' testimony. In addition, he points to the complainant's testimony that she had not talked to appellant between the time that he moved out of her house until he appeared on the day in question compared with the evidence of calls from appellant's cell phone to the complainant's phone. In considering that testimony, it is worthy of note that appellant initially denied having sex with the witness and changed that testimony when he was informed of the existence of the rape kit and was requested to furnish a DNA sample to be compared with DNA evidence taken from that kit.

Moreover, the complaining witness clearly testified that she had been raped and maintained that testimony during a fairly extensive cross-examination, and the arresting officer testified that she appeared emotional and distraught when he arrived at the scene. In sum, it appears that this was a classic case in which the fact whether or not a rape occurred depended upon the testimony of the victim. We cannot say that the jury's determination as to the credibility of the witnesses and the resolution of conflicts in their testimony was so manifestly unjust as to require reversal. Accordingly, we must, and do hereby, overrule appellant's first point.

Standard of Review

In his second issue, appellant contends that he did not receive the effective assistance of counsel guaranteed him by the state and federal constitutions. The standards by which such contentions are decided are, by now, axiomatic. A defendant/appellant must first show that his counsel's performance was deficient, i.e., counsel's performance fell below an objective standard of reasonableness. Second, assuming that the appellant has demonstrated deficient assistance, it is necessary for him to affirmatively prove prejudice. In other words, he must show that but for his counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. This two-pronged test is the benchmark for judging whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be considered as having produced a reliable result. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812-813 (Tex. Crim. App. 1999).

The assessment whether a defendant received effective assistance of counsel must be made according to the facts of each case. Ex parte Scott, 581 S.W.2d 181, 182 (Tex. Crim. App. 1979). Any allegation of ineffectiveness of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App.1996). A failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. An appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective and, in evaluating the effectiveness of counsel, an appellate court looks to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d at 813.

A review of counsel's representation is highly deferential, and appellate courts indulge a strong presumption that counsel's conduct falls within a wide range of reasonable presentation. Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065. The burden is on an appellant to overcome that presumption by identifying the acts or omissions of counsel that are alleged to have constituted the ineffective assistance and then affirmatively proving that they fall below the professional norm for reasonableness. Again, in addition, an appellant must prove that counsel's errors, judged by the totality of the representation, denied him a fair trial. A mere showing that they had some conceivable effect on the proceedings is inadequate. Id. 466 U.S. at 693, 104 S. Ct. at 2067; McFarland v. State, 928 S.W.2d at 500.

Discussion

Without specific reference to the record, and in general terms, appellant challenges trial counsel's failure to object to the State's reference to his "past criminal history and the unadjudicated offenses or to request a limiting instruction be given the jury for the conviction of murder and the alleged burglary of a habitation and selling drugs." As best we can tell, this has reference to testimony actually brought up by his trial attorney that the complaining witness had accused appellant of breaking into her house and had done drug deals. Parenthetically, from the context, it appears that the reference to these acts was to discredit the complaining witness and show that the victim was lying in her allegations. In the jury charge, the jury was instructed that they could not consider unadjudicated acts unless they were convinced beyond a reasonable doubt that those offenses had been committed. This record would not support a finding of ineffective assistance of counsel. The instances referred to would support a valid defensive theory.

Appellant also claims that his trial counsel was ineffective because he failed to call three witnesses that would have testified that the complaining witness had made statements that appellant did not sexually assault her. However, nothing in the record shows who those witnesses were or to what they would have testified. Those naked allegations, in and of themselves, are clearly not sufficient for us as a reviewing court to say that trial counsel was ineffective in failing to call them. Again, as we noted above, the record before us must be sufficient for us to make a determination as to the effectiveness of counsel.

Finally, appellant asserts that trial counsel was ineffective when he "failed to have an expert investigator, Steven King, testify as to inconsistences" in the complaining witness' testimony. Again, there is nothing in this record to support those naked allegations. Thus, the record before us falls far short of showing that appellant's trial counsel was ineffective. Appellant's second point is overruled.

In sum, both of appellant's points are overruled and, there being no reversible error, the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2006).