COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00440-CR
HUMBERTO MARTINEZ-BENITEZ APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2013-0158-B
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Humberto Martinez-Benitez appeals his conviction for murder.
In three points, he challenges the judgment’s affirmative deadly weapon finding
and argues that his trial counsel was ineffective. We will affirm.
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See Tex. R. App. P. 47.4.
II. BACKGROUND
Appellant has three cousins—Josue, Jacob, and Humero. All four lived in
the same mobile home community. One night in November 2012, Appellant
spent several hours drinking beer with Jacob and Humero on Jacob’s porch.
When Josue came by later in the night, Jacob and Appellant were drunk and
arguing; Jacob was talking about his mother’s house being shot at, and Appellant
said, “I can shoot whoever I want and my hand doesn’t tremble.” Josue told
Jacob and Appellant to stop arguing and to go to sleep, but Appellant grabbed
Jacob’s arm and told him that he wanted to drink with him. About fifteen minutes
later, after Humero had gone to sleep and Josue had returned to his home,
Josue heard shooting and went outside, where he saw Appellant and his son
driving away and Jacob lying on the ground. Jacob had been shot in the head
and chest and was dead. Police stopped Appellant’s vehicle for speeding about
twenty minutes later and took Appellant into custody upon receiving a dispatch
about the shooting. Authorities discovered a loaded gun under the vehicle’s
passenger seat.
A grand jury indicted Appellant for committing murder by “shooting Jacob
Benitez-Gutierrez with a firearm.” Appellant entered an open plea of guilty,
pleaded true to an enhancement allegation, and elected to have the jury assess
his punishment. Appellant testified that, although he felt scared, he shot Jacob
because Jacob had “mistreated” him by telling him that he was old and “didn’t
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amount to anything.” The jury assessed Appellant’s punishment at ninety years’
confinement. The judgment of conviction—under the heading “Findings on
Deadly Weapon”—states “Yes, a Firearm.”
III. DEADLY WEAPON FINDING
Appellant argues in his first point that the deadly weapon finding contained
in the judgment of conviction is invalid because (i) the indictment did not
expressly state that the firearm used by Appellant to murder Jacob was a “deadly
weapon” and (ii) neither the charge nor the verdict at punishment expressly
incorporated or referred to the indictment. The record, however, reflects that
Appellant voluntarily entered an open plea of guilty to the offense as alleged in
the indictment. “If a defendant pleads guilty to an indictment that includes an
allegation that he used a deadly weapon, the trial court may make a deadly
weapon finding.” Meza v. State, No. 01-97-01345-CR, 1999 WL 11742, at *2
(Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (not designated for publication);
Alexander v. State, 868 S.W.2d 356, 361 (Tex. App.—Dallas 1993, no pet.); see
Hella v. State, No. 07-06-00460-CR, 2008 WL 5000019, at *1‒2 (Tex. App.—
Amarillo Nov. 25, 2008, no pet.) (mem. op., not designated for publication).
Indeed, in Ex parte Huskins, the indictment alleged that the applicant “did then
and there knowingly discharge a firearm at and in the direction of a vehicle, and
[he] was then and there reckless as to whether the vehicle was occupied.” 176
S.W.3d 818, 820 (Tex. Crim. App. 2005). Responding to the applicant’s
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challenge to an affirmative deadly weapon finding, the court of criminal appeals
explained,
when applicant plead guilty to deadly conduct before being placed
on deferred adjudication, he confessed that (1) he was the same
person named in the indictment, and (2) that he committed the
offense charged in the indictment. By properly admonishing
applicant and then accepting his guilty plea to the indictment, the
trial court necessarily determined that applicant used a deadly
weapon in the commission of the offense.
Id.
Here, the following exchange occurred just before voir dire:
The Court: And is it then your understanding that there is no
plea-bargain agreement with the State and that you are going upon
a plea of guilty open to the jury for punishment?
[Appellant]: Yes.
The Court: And then I will ask you, are you guilty of the
offense of murder as alleged in the indictment and confess that you
did so as set out in the indictment?
[Appellant]: Yes.
The Court: And you understand the consequences of that
plea?
[Appellant]: Yes.
The Court: And you’ve gone over all of that with your
attorney?
[Appellant]: Yes.
The Court: And is that your signature?
[Appellant]: Yes.
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The Court: Do you swear to everything that you’ve signed in
this paperwork?
[Appellant]: Yes.2
By pleading guilty to the offense as alleged in the indictment, Appellant
confessed that he was the same person named in the indictment and that he
committed the offense as alleged therein. See id. And by properly admonishing
Appellant and accepting his guilty plea to the indictment, the trial court
necessarily determined that Appellant used a deadly weapon in the commission
of the murder. See id.; Marshall v. State, 860 S.W.2d 142, 143 (Tex. App.—
Dallas 1993, no writ). The trial court was therefore authorized to enter an
affirmative deadly weapon finding in the judgment of conviction, and it matters
not that neither the charge nor the verdict on punishment expressly incorporated
or referred to the indictment. See Huskins, 176 S.W.3d at 820; Aguilar v. State,
Nos. 05-12-00219-CR, 05-12-00220-CR, 2012 WL 4373692, at *1 (Tex. App.—
Dallas Sept. 26, 2012, pet. ref’d) (mem. op., not designated for publication)
(“Appellant’s judicial confession sufficiently supports the deadly weapon finding
contained in the judgment.”); Meza, 1999 WL 11742, at *2; see also Hella, 2008
WL 5000019, at *1 (stating that “a plea of guilty before the jury admits the
existence of all elements necessary to establish guilt and, in such cases, the
introduction of evidence by the State is only to enable the jury to intelligently
exercise the discretion which the law vests in them to determine punishment”).
2
Appellant again entered a plea of guilty after the jury was seated.
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Appellant complains that the indictment failed to explicitly describe the
firearm as a “deadly weapon,” but a firearm is a deadly weapon per se. See Tex.
Penal Code Ann. § 1.07(a)(17)(A) (West Supp. 2015). By alleging that Appellant
committed murder by “shooting Jacob Benitez-Gutierrez with a firearm,”
Appellant “had sufficient notice that the state would seek an affirmative [deadly
weapon] finding.” Huskins, 176 S.W.3d at 820; see Ex parte Campbell, 716
S.W.2d 523, 527 (Tex. Crim. App. 1986) (concluding that deadly weapon finding
was not improper because indictment charged applicant with murder by shooting
victim “with a handgun,” a per se deadly weapon, and jury found applicant guilty
“as charged in the indictment”). We overrule Appellant’s first point.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant raises ineffective assistance claims in his second and third
points. To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,
307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex.
Crim. App. 1999). An ineffective-assistance claim must be “firmly founded in the
record,” and “the record must affirmatively demonstrate” the meritorious nature of
the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
6
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue
is whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel
“should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not
given that opportunity, we should not conclude that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
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Appellant argues in his second point that trial counsel was ineffective
because he “invited the jury to impose a lengthy sentence of confinement in
order to protect Appellant from a drug trafficker who had killed a member of
Appellant’s family.” Trial counsel did no such thing. He strenuously argued that
the facts of the case did not warrant a life sentence and that “15 years is enough
time for [Appellant] to serve in prison.” Appellant’s argument is simply an
extension of a cursory, somewhat offhand remark made by one of the
prosecutors in response to trial counsel’s closing argument. Appellant has not
established that trial counsel’s performance at closing argument was deficient.
See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. We overrule Appellant’s
second point.
In his third point, Appellant argues that trial counsel was ineffective for not
arguing self-defense. Appellant contends that in determining whether to argue
self-defense, trial counsel should have additionally considered the evidence that
Jacob was “coming at” Appellant just before Appellant shot Jacob and the
evidence regarding Appellant’s “family background”—that Appellant feared one
of Jacob’s relatives, who was a member of a Mexican cartel. Appellant filed a
motion for new trial, but he did not raise ineffective assistance, nor has trial
counsel otherwise had an opportunity to explain his actions, including what he
did and did not consider in determining not to argue self-defense. We disagree
with Appellant that trial counsel’s reasoning is shown on the record, and we
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decline to speculate as to whether a different trial strategy might have been more
successful. See Menefield, 363 S.W.3d at 593. Appellant has not established
that trial counsel was deficient for not arguing self-defense. See Strickland, 466
U.S. at 687, 104 S. Ct. at 2064. Therefore, we overrule Appellant’s third point,
and we affirm the trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: GARDNER, MEIER, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 17, 2015
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