Affirm and Opinion Filed November 4, 2021
In the
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00863-CR
JOSE ALBERTO RIVERA ACOSTA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F18-54878-R
MEMORANDUM OPINION
Before Justices Myers, Partida-Kipness, and Carlyle
Opinion by Justice Carlyle
Appellant Jose Alberto Rivera Acosta1 entered a negotiated guilty plea to the
third-degree felony offense of family-violence assault enhanced by a prior family-
violence assault conviction. See TEX. PENAL CODE § 22.01(b)(2)(A). Pursuant to the
plea agreement, the trial court placed him on five years’ deferred adjudication
community supervision and imposed a $500 fine.
1
The record shows appellant generally uses the name Jose Rivera. In this opinion, we refer to him as
Mr. Rivera.
The State later moved to adjudicate based on violation of several community
supervision conditions. Following a hearing, the trial court adjudicated Mr. Rivera
guilty and sentenced him to five years’ imprisonment.
Mr. Rivera contends (1) the trial court abused its discretion by admitting jail
call records into evidence over his objection and (2) the five-year sentence is
“outside the range of punishment due to an improper enhancement” resulting from
ineffective assistance of counsel in the enhancement case. We affirm the trial court’s
judgment in this memorandum opinion. See TEX. R. APP. P. 47.4.
Background
The indictment in this case alleged that in June 2018, Mr. Rivera
“intentionally, knowingly[,] and recklessly cause[d] bodily injury” to Julie Vasquez,
“a member of defendant’s family and household and with whom the said defendant
had a dating relationship.” The indictment also contained the following enhancement
paragraph:
[D]efendant had been previously duly and legally convicted of the
following assaultive offense . . . against a person who was a member of
the said defendant’s family and household and with whom the said
defendant had a dating relationship and such offense . . . render[s] the
offense alleged in the first paragraph above a felony of the third degree
under Section 22.01(b)(2) of the Texas Penal Code:
In Cause Number MA1851404-N in the COUNTY CRIMINAL
COURT NO. 11 of Dallas County, Texas, the said defendant was
convicted of ASSAULT FAMILY VIOLENCE on or about the 9TH day
of FEBRUARY, A.D., 2018[.]
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Mr. Rivera signed an October 17, 2018 plea agreement in which he confessed
to the charged offense and pleaded true to the enhancement paragraph. He also
agreed to community supervision terms that included, among other things, condition
(r): “Do not have any form of contact, be it in person, by mail, telephone or any form
of communication with Julie Vasquez directly or indirectly, for the duration of the
Supervision Term.”
On February 4, 2020, the State filed a motion to adjudicate, contending Mr.
Rivera had violated eight community service conditions, including condition (r). Mr.
Rivera pleaded not true to the State’s allegations.
At the hearing on the motion to adjudicate, Dallas County Hospital District
police officer Luke Rose testified that on January 13, 2020, he responded to a call
from Parkland Hospital’s urgent care clinic regarding an assault. When he arrived at
the clinic, a nurse took him to an examining room where Julie Vasquez was sitting
on the ground, alone. She “was shaking and just couldn’t really complete a
sentence.” According to Officer Rose, Mr. Rivera and Ms. Vasquez’s father had just
left the examining room and were “on their way to the restroom.” Before the two
men returned, Officer Rose took Ms. Vasquez to a different room down the hall so
he “could ask her what was going on without having someone in the room.” Ms.
Vasquez seemed “frightened and upset” and “was talking softly so that Mr. Rivera
couldn’t hear that she moved into a different room.”
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Officer Rose stated Ms. Vasquez told him that earlier that day, she and Mr.
Rivera had sex “and then at some point she was on the bed and he folded the mattress
over her and he jumped on it multiple times.” She told Officer Rose “the only way
she could get away is to tell him that her father needed to go to the hospital.” When
the three of them got to the hospital, Ms. Vasquez told a nurse she had been assaulted.
Officer Rose testified he questioned Mr. Rivera, who “said that she was lying
and that all he did that day was have sex with her.” Officer Rose contacted “dispatch”
and learned Mr. Rivera “did have a protective order and the victim was Julie
Vasquez.” Then, he arrested Mr. Rivera.
John Ludwigs, an investigator with the Dallas County District Attorney’s
office, testified he assisted the prosecutor in this case by “pulling jail calls.” Mr.
Ludwigs stated the jail’s electronic “Securus” phone system can be searched by
phone number to generate a log of calls made to that number by jail inmates. Securus
also “sometimes gives you a name associated with” the phone number for which a
search is performed. He testified (1) during 2020, 242 calls were made to a particular
phone number using Mr. Rivera’s jail inmate “PIN” number, and (2) Securus showed
that phone number “came back to” Julie Vasquez. A Securus call log listing 239 calls
to the phone number in question and a printout showing that phone number as
registered to Ms. Vasquez were admitted into evidence over defense counsel’s
hearsay objection.
Mr. Rivera testified on direct examination:
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Q. . . . Mr. Rivera, did you violate any bond conditions with respect to
a protective order?
A. From—from my understanding, yes and no because the simple fact
that I—the—the previous convictions to this wasn’t even supposed to
be a conviction. It was supposed to be dismissed because a
nonprosecution affidavit was filed. I was poor of knowledge and poor
educated on the case and the materials in the case—
[COUNSEL FOR STATE]: Objection. Judge, nonresponsive.2
THE COURT: Yeah. Listen to the questions that are asked and give
answers to just those questions.
On cross-examination, Mr. Rivera testified:
Q. Okay. And you knew that you weren’t supposed to be anywhere near
[Ms. Vasquez] as a part of that probation?
A. Yes, ma’am.
....
Q. Okay. So you’re still interacting with her and you’re still in a
relationship with her, you’re still having contact with her, despite this
probation condition?
A. Yes, ma’am.
Q. Okay. And, in fact, you had sex with her on [January 13, 2020]?
A. Yes, ma’am.
On redirect examination, Mr. Rivera stated:
Q. So what—what would it be that you would be asking the Court to
do or consider?
2
It isn’t completely clear whether the prosecutor’s objection to a nonresponsive answer to defense
counsel’s question on direct examination was warranted here. As a prudential matter, the prosecutor had all
of cross-examination to probe this point. As this Court explained in the seminal case, Smith v. State, 763
S.W.2d 836, 841–42, (Tex. App.—Dallas 1988, pet. ref’d), “[n]ot every unresponsive answer should be
stricken.” At worst, Mr. Rivera offered a relevant but perhaps not strictly or completely responsive answer.
See id. In any event, the prosecutor here did not address admissibility when objecting so the testimony
remains before this Court. See id.
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A. To check the previous conviction for error because there was a
nonprosecution affidavit on file that was neglected. The reason for, I
was in immigration proceedings. I am a United States citizen. They
didn’t know it at the time. I was on—I was on immigration proceedings.
My lawyer . . . was negligent and I stated to him that there was a
nonprosecution affidavit on file—
[COUNSEL FOR STATE]: Objection. Judge, testifying in narrative.
THE COURT: Sustained. Ask your next question, [Defense Counsel].
Q. . . . Okay. So, Mr. Rivera, you’re telling me that your previous lawyer
was negligent?
A. Yes, sir.
Q. Okay. And is that the reason why you were in this dilemma that you
see yourself?
A. Yes, sir.
Q. Is there anything else you want to tell the Judge with respect to these
allegations?
A. Just basically, if I would have got represented properly, the outcome
would have been different. I wouldn’t—I wouldn’t have been here, I
would have been in a different place. I would have—I would have—I
would have been working. I would have—I probably would have been
doing something different besides this.
After the parties closed, the trial court stated it found Mr. Rivera had violated
two community service conditions, including condition (r). Following his conviction
and sentencing, Mr. Rivera filed a motion for new trial asserting “the verdict is
contrary to the law and the evidence.” The trial court overruled that motion.
Analysis
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The adjudication determination
We review a trial court’s decision to revoke community supervision and
adjudicate guilt for an abuse of discretion, taking into account the sufficiency of the
evidence supporting the basis for revocation. Hacker v. State, 389 S.W.3d 860, 865
(Tex. Crim. App. 2013). The State has the burden to prove violation of a condition
of community supervision by a preponderance of the evidence. Id. at 864–65. This
burden is met when the “greater weight of the credible evidence . . . would create a
reasonable belief that the defendant has violated a condition of his [community
supervision].” Dansby v. State, 468 S.W.3d 225, 231 (Tex. App.—Dallas 2015, no
pet.) (quoting Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006)). Proof
of any one violation is sufficient to support revocation. E.g., Smith v. State, 286
S.W.3d 333, 342 (Tex. Crim. App. 2009); Lee v. State, 952 S.W.2d 894, 900 (Tex.
App.—Dallas 1997, no pet.).
The erroneous admission of hearsay evidence is nonconstitutional error,
which must be disregarded if it did not affect substantial rights. See Johnson v. State,
967 S.W.2d 410, 417 (Tex. Crim. App. 1998); TEX. R. APP. P. 44.2(b). “Substantial
rights are not affected by the erroneous admission of evidence if, after reviewing the
record as a whole, the appellate court has fair assurance that the error either did not
influence or had only a slight effect on the finder of fact.” Webb v. State, 557 S.W.3d
690, 696 (Tex. App.—Texarkana 2018, pet. ref’d). In the deferred-adjudication
context, an error affects substantial rights if it had a substantial and injurious effect
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or influence on the court’s decision to adjudicate guilt and impose sentencing. Wyrick
v. State, No. 05-07-01410-CR, 2008 WL 4816335, at *3 (Tex. App.—Dallas Nov. 6,
2008, pet. ref’d) (mem. op., not designated for publication).
In his first issue, Mr. Rivera contends the trial court abused its discretion by
admitting the Securus phone records into evidence because those records constituted
hearsay and the State failed to show a hearsay rule exception. We agree in part.
Over proper defense objection, the court admitted State’s Exhibit 2, a Securus
call log showing Mr. Rivera called one number 239 times. Again over proper defense
objection, the court admitted State’s Exhibit 3, a Securus document indicating the
owner of the phone number Mr. Rivera called so many times. The State has conceded
that the trial court abused its discretion in admitting Exhibit 3 but argues Exhibit 2
was properly admitted. We agree in both respects.
Exhibit 2 is not hearsay at all. It is computer output listing times, dates, and
phone numbers called, and reflects no human input. See Stevenson v. State, 920
S.W.2d 342, 343 (Tex. App.—Dallas 1996, no pet.); Murray v. State, 804 S.W.2d
279, 284 (Tex. App.—Fort Worth 1991, pet. ref’d). The trial court did not abuse its
discretion in admitting the call log in Exhibit 2.
But because the Securus system cannot tie a phone number to a person itself,
the only way Exhibit 3 could include a link between the phone number and its owner
is some human input, which makes Exhibit 3 hearsay. See TEX. R. EVID. 803. The
State failed to prove any exception to the prohibition against hearsay for Exhibit 3.
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Id. 803(6). Therefore, we agree with the conceding State that the trial court abused
its discretion by admitting State’s Exhibit 3, the Securus phone record tying the
phone number in question to the specific victim in this case. See Stevenson, 920
S.W.2d at 343; Murray, 804 S.W.2d at 284.
That said, the error was harmless. Mr. Rivera admitted to other contact with
Ms. Vasquez that violated condition (r), and based on the record as a whole, we
conclude any alleged error in admitting the Securus phone records into evidence did
not affect Mr. Rivera’s substantial rights. See Webb, 557 S.W.3d at 696; see also
Smith, 286 S.W.3d at 342; Lee, 952 S.W.2d at 900.
The enhanced-offense sentence
Though assault is generally a Class A misdemeanor offense, it becomes a third
degree felony if committed against a person with whom the actor is or has been in a
dating relationship or marriage and the actor has previously been convicted of assault
against such a person. TEX. PENAL CODE § 22.01(b)(2)(A). The punishment for a
Class A misdemeanor is “(1) a fine not to exceed $4,000; (2) confinement in jail for
a term not to exceed one year; or (3) both such fine and confinement.” Id. § 12.21.
The punishment for a third degree felony is imprisonment for not more than ten years
or less than two years and an optional fine of up to $10,000. Id. § 12.34. Generally,
“as long as a sentence is within the proper range of punishment it will not be
disturbed on appeal.” Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984).
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The right to reasonably effective assistance of counsel in a criminal
prosecution is constitutionally guaranteed. See U.S. CONST. amend. VI; TEX. CONST.
art. 1, § 10. To establish a claim based on ineffective assistance, an appellant must
show by a preponderance of the evidence that (1) his counsel’s representation fell
below the objective standard of reasonableness and (2) there is a reasonable
probability that but for counsel’s deficiency the result of the proceeding would have
been different. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Our review of counsel’s representation is highly deferential, and we indulge a
strong presumption that counsel’s conduct was not deficient. Nava v. State, 415
S.W.3d 289, 307–08 (Tex. Crim. App. 2013); Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999). A claim of ineffective assistance of counsel must be firmly
demonstrated in the record. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim.
App. 2012); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Trial
counsel “should ordinarily be afforded an opportunity to explain his actions before
being denounced as ineffective.” Menefield, 363 S.W.3d at 593. Direct appeal is
usually inadequate for raising an ineffective-assistance-of-counsel claim because the
record generally does not show counsel’s reasons for any alleged deficient
performance. See id. at 592–93; Thompson, 9 S.W.3d at 813–14.
In his second issue, Mr. Rivera contends the trial court’s five-year sentence
was outside the range of punishment “due to an improper enhancement” resulting
from ineffective assistance of counsel. Specifically, Mr. Rivera asserts he “brought
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to the [trial court’s] attention” that his guilty plea in the February 2018 enhancement
case was “taken in violation of his right to counsel and ineffective assistance of
counsel.” In support of that assertion, he cites his testimony described above.3
The record shows the trial court sustained the State’s objections to Mr.
Rivera’s testimony regarding his former counsel’s alleged inactions, with the
exception of the following:
Q. . . . Okay. So, Mr. Rivera, you’re telling me that your previous lawyer
was negligent?
A. Yes, sir.
Q. Okay. And is that the reason why you were in this dilemma that you
see yourself?
A. Yes, sir.
Q. Is there anything else you want to tell the Judge with respect to these
allegations?
A. Just basically, if I would have got represented properly, the outcome
would have been different. I wouldn’t—I wouldn’t have been here, I
would have been in a different place. I would have—I would have—I
would have been working. I would have—I probably would have been
doing something different besides this.
Though Mr. Rivera filed a motion for new trial, that motion did not allege
ineffective assistance of counsel and the record does not show a hearing on that
3
Mr. Rivera also cites 2020 correspondence from him to the trial court, including a July 16, 2020 pro
se petition for “federal habeas corpus” under 28 U.S.C. § 2254 in which he asserted, among other grounds,
ineffective assistance of counsel. To the extent Mr. Rivera relies on his complaints in that unsworn petition,
“[i]ncompetent evidence cannot be used to meet the preponderance burden imposed by Strickland.”
Scarborough v. State, No. 05-19-00934-CR, 2021 WL 4589054, at *2 (Tex. App.—Dallas Oct. 6, 2021, no
pet. h.) (mem. op., not designated for publication).
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motion. Thus, the record does not demonstrate a firmly grounded ineffective
assistance claim. On this record, we conclude Mr. Rivera has not met his Strickland
burden at this stage. See Strickland, 466 U.S. at 688; see also Menefield, 363 S.W.3d
at 592; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007) (“It is not
appropriate for an appellate court to simply infer ineffective assistance based upon
unclear portions of the record.”).
As described above, the indictment included an enhancement paragraph
alleging a prior family-violence assault conviction. Mr. Rivera pleaded true to that
enhancement paragraph and guilty to the charged June 2018 family-violence assault.
His five-year sentence is within the applicable statutory punishment range of two to
ten years’ imprisonment. TEX. PENAL CODE §§ 22.01(b)(2)(A), 12.34. Thus, we will
not disturb that sentence on appeal. See Jackson, 680 S.W.2d at 814.
We affirm the trial court’s judgment.
200863f.u05
Do Not Publish /Cory L. Carlyle//
TEX. R. APP. P. 47.2(b) CORY L. CARLYLE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSE ALBERTO RIVERA On Appeal from the 265th Judicial
ACOSTA, Appellant District Court, Dallas County, Texas
Trial Court Cause No. F18-54878-R.
No. 05-20-00863-CR V. Opinion delivered by Justice Carlyle.
Justices Myers and Partida-Kipness
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 4th day of November, 2021.
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