Emilio Cerda v. The State of Texas--Appeal from 208th District Court of Harris County

Opinion issued November 2, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00858-CR

EMILIO CERDA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 208th District Court

Harris County, Texas

Trial Court Cause No. 1002736

MEMORANDUM OPINION

A jury found appellant, Emilio Cerda, guilty of the offense of burglary of a habitation and, having found true the enhancement paragraphs alleging prior convictions for aggravated robbery and burglary of a habitation, assessed punishment at confinement for life. In three points of error, appellant complains that there was insufficient evidence (1) to sustain the finding of true to the first enhancement paragraph, (2) to establish the finality of a prior conviction admitted into evidence, and (3) to prove the element of identity beyond a reasonable doubt. In a fourth point of error, appellant complains that he received ineffective assistance of counsel during both the guilt-innocence and punishment phases of trial. We affirm.

BackgroundThe record indicates that the complainants son, Andrew Acevedo, went to his parents home for lunch on October 1, 2004. As he entered through the back door, he noticed that the door frame was damaged. His first thought was that his older brother had caused the damage while trying to get inside, but, as he entered through the door and called his brother s name, he observed an unknown Hispanic male inside the house. The intruder was wearing a blue and white striped shirt and was carrying a black duffel bag. Acevedo confronted the intruder, demanding to know why the man was in his parents home. The intruder fled out of the front door on foot.

Acevedo pursued the intruder in his car, recognizing the man by his clothing. Acevedo eventually lost sight of the intruder, returned home, and asked a neighbor, Bobby McAteer, to call the police. Shortly thereafter, Acevedo and McAteer spotted the intruder running near the back yard, again identifying him by his clothing, and followed the man to a nearby oil field, where they were able to detain him until police arrived.

Officer Lebedzinski, of the Pasadena Police Department, arrived at the oil field within minutes and took the intruder into custody. Officer Lebedzinski testified that appellant was the man taken into custody at the oil field. Before being transported back to the complainants home, appellant was patted down for weapons. No stolen property was found on his person at the time. During a subsequent search incident to arrest, however, jewelry belonging to the complainants was found in appellant s pocket. Additionally, the duffel bag Acevedo saw the intruder carrying was found in the complainants front yard and was identified as belonging to the complainants other son. Pasadena Police Officer David Hyde, a crime scene investigator and fingerprint expert, testified that the palm print on a cell phone found inside the duffel bag matched appellant s prints.

At trial, Acevedo identified appellant as the intruder from a series of photographs, but was unable to identify appellant in the courtroom. McAteer, the complainants neighbor, also testified and did make a positive in-court identification. On cross-examination, however, McAteer indicated that he had identified appellant only because he was wearing an orange prison jumpsuit.

During the punishment phase of trial, appellant was arraigned, entered a plea of true to both enhancement paragraphs, and stipulated that he had been previously convicted of seven prior felonies. The State offered all the evidence admitted in the guilt-innocence phase, as well as appellant s stipulation that he had been previously convicted of aggravated robbery, burglary of a habitation, theft by receiving, robbery by assault, burglary of a building, robbery, and theft from a person. Sufficiency of the Evidence of Identity

We address appellant s third point of error first. In his third point of error, appellant argues that the identity evidence offered by the State was legally and factually insufficient to sustain his conviction. Specifically, appellant argues that, because neither of the witnesses who actually observed the intruder on the complainants property could identify appellant in court, the evidence was insufficient to establish his guilt. We disagree.

Standard of Review

A legal-sufficiency challenge requires us to determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App. Houston [1st Dist.] 1997, no pet.). Although our analysis considers all of the evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex. Crim. App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Johnson, 23 S.W.3d at 11. Under the first prong of Johnson, we cannot conclude that a conviction is clearly wrong or manifestly unjust simply because, on the quantum of the evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, No. PD-469-05, 2006 WL 2956272, at *10 (Tex. Crim. App. Oct. 18, 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury s verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence, that according to appellant, most undermines the jury s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Both direct and circumstantial evidence tending to prove a fact in dispute are compared to the evidence tending to disprove that fact. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). In a prosecution based on circumstantial evidence, it is not required that every fact point directly and independently to the guilt of the accused; the cumulative force of all the incriminating circumstances may be sufficient. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994).

Analysis

The evidence of identity, viewed in the light most favorable to the verdict, shows that the complainants son, Acevedo, observed an unknown intruder in his parents home. The intruder, a Hispanic male, was dressed in a blue and white striped shirt and was carrying a black duffel bag. After being discovered in the house, the intruder fled out the front door. Acevedo, running out of the back door, pursued the man in the blue and white striped shirt by car. Acevedo testified that, after a long pursuit and with the help of a neighbor, he was eventually able to detain the intruder in a nearby field until the police arrived and took the man into custody. At trial, Acevedo identified appellant as the intruder from a series of photographs offered into evidence by the State.

Officer Lebedzinski testified that appellant was the man police took into custody. Appellant was searched incident to arrest. Jewelry belonging to the complainants was discovered in his pocket. Additionally, police found the black duffel bag appellant was carrying at the time Acevedo confronted him in the complainants front yard. The complainants cellular and cordless phones were inside the bag, and appellant s right palm print was found on the cellular phone. When combined with Acevedo s testimony, a rational jury could have concluded that this evidence established appellant as the man who burgled the complainants home. As a result, we hold that the evidence was legally sufficient to establish appellant s identity as the burglar.

To support his claim that the evidence is factually insufficient to establish his identity as the intruder in the complainants home, appellant relies on the fact that, while Acevedo identified appellant in a series of photographs admitted by the State, he was unable to make a positive in-court identification. Specifically, Acevedo testified that he [didn t] really recognize [appellant] as the intruder. Acevedo further admitted that he lost sight of the intruder for brief periods of time during his pursuit. Appellant also relies on McAteer s testimony that he could identify appellant as the intruder only because appellant was dressed in an orange jumpsuit at trial as evidence which undermines the jury s verdict. It cannot be said, however, that this evidence renders the verdict clearly wrong or manifestly unjust, nor cannot it be said that the jury s finding of guilt is against the great weight and preponderance of the evidence. Therefore, we hold the evidence is factually sufficient to establish appellant s identity as the burglar, and we overrule appellant s third point of error.

Prior Convictions

In his first and second points of error, appellant complains that there was insufficient evidence to (1) sustain the finding of true to the first enhancement paragraph and (2) prove that the conviction in cause number 398179 was final. We disagree.

The State has the burden of proving the finality of a prior conviction alleged for enhancement. See Augusta v. State, 639 S.W.2d 481, 484 (Tex. Crim. App. 1982). If, however, a defendant pleads true to the enhancement paragraph, the State s burden of proof is satisfied. Wilson v. State, 671 S.W.2d 524, 526 (Tex. Crim. App. 1984). Additionally, once he has pleaded true, the defendant is precluded from complaining about the sufficiency of the evidence supporting the enhancement paragraph on appeal. Harrison v. State, 950 S.W.2d 419, 422 (Tex. App. Houston [1st Dist.] 1997, pet. ref d). The record, however, must affirmatively reflect the fact that a plea of true was entered. Wilson, 671 S.W.2d at 526.

In the absence of contrary evidence, we presume the regularity of the trial court s judgments and records. Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002); Murphy v. State, 95 S.W.3d 317, 320 (Tex. App. Houston [1st Dist.] 2002, pet. ref d). The State makes a prima facie case that a conviction is final and worthy of respect when it offers a certified copy of the accompanying judgment and sentence. Jones, 77 S.W.3d at 822 23. When a conviction appears to be final on its face, it is the defendant s burden to show that such conviction is not final. Id. at 823; Ashley v. State, 527 S.W.2d 302, 305 (Tex. Crim. App. 1975).

Here, the record affirmatively shows that appellant pleaded true to the first enhancement paragraph. When asked by the trial judge how he pleaded to both of the enhancement allegations, appellant answered True, ma am. Because he pleaded true to the first enhancement paragraph, appellant is precluded from complaining on appeal about the sufficiency of the evidence to support the finding of true.

Accordingly, we overrule appellant s first point of error.

Turning to appellant s second point of error, in which he argues the evidence was insufficient to prove the conviction in cause number 398179 was final, we note that appellant stipulated to the conviction, and the judgment and sentence reflecting that conviction were admitted as evidence during the punishment phase of trial. A clerk s notation on the judgment and sentence indicates that an appeal was taken and that a mandate of affirmance was issued. Because there is no evidence in the record that either contradicts the clerk s notation or shows that the conviction was not final, we presume the regularity of the trial court s judgment and hold that the evidence was sufficient to establish the finality of the conviction in cause number 398179.

Accordingly, we overrule appellant s second point of error.

Ineffective Assistance of Counsel

In his fourth point of error, appellant contends that he received ineffective assistance of counsel. Specifically, appellant argues that defense counsel was ineffective (1) during the guilt-innocence phase when he failed to object before arraignment to the State s motion to amend the indictment, (2) during the punishment phase when he stipulated to two prior felony convictions before the jury, including an enhancement conviction for which a mandate of affirmance was not attached, and (3) during the punishment phase when he agreed to stipulate that appellant was convicted in cause number 398179. We disagree.

Standard of Review

Appellant was entitled to the reasonably effective assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, 10; Ex Parte Prejean, 625 S.W.2d 731, 733 (Tex. Crim. App. 1981). The right extends to both trial and appeal. Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 796 97 (1963); Buntion v. Harmon, 827 S.W.2d 945, 948 (Tex. Crim. App. 1992). The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Appellant must show that (1) counsel s performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for counsel s error, the result of the proceedings would have been different. Id. at 687, 104 S. Ct. at 2064. The Strickland standard applies to both the guilt and punishment phases of trial. Id. at 772.

To prevail, appellant must show ineffective assistance by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In addition, appellant must overcome the strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance or might reasonably be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.

As the reviewing court, we consider the adequacy of assistance as viewed at the time of trial, not through the advantage of hindsight. Hawkins v. State, 660 S.W.2d 65, 75 (Tex. Crim. App. 1983). We cannot speculate as to the reasons why trial counsel behaved as he did; rather, we must be highly deferential and presume that counsel s actions fell within the wide range of reasonable and professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). The Court of Criminal Appeals has held that, generally, trial counsel should be given an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App.2003). Otherwise, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel s actions. Id. at 110 11 (quoting Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001)).Analysis

We first address appellant s contention that counsel s performance fell below the Strickland standard when counsel failed to object to the State s motion to amend the indictment. Appellant has not, however, made clear his reasons for finding the State s amendment objectionable. In his brief, appellant notes that trial court signed the State s motion to amend the indictment, but did not indicate in writing whether the motion was granted or denied. It cannot be said that, but for counsel s failure to object to the lack of a written ruling on the motion to amend the indictment, the outcome of the trial would have been different. As a result, counsel s failure to object does not fall below the constitutionally mandated standards of Strickland. Appellant s argument is not supported by the record.

Appellant next suggests that he received ineffective assistance when counsel advised him to plead true to the first enhancement paragraph and to stipulate to seven prior felony convictions, including a prior conviction for robbery in cause number 398179. Appellant argues that no competent trial attorney would stipulate to more felony convictions than necessary while failing to present any witnesses or other mitigating evidence at punishment. Because the decision whether to present witnesses is largely a matter of trial strategy, we will not speculate as to the reasons for counsel s decision in the face of a record that is silent on the matter. See Bone, 77 S.W.2d at 833; see also Rodd v. State, 886 S.W.2d 381, 384 (Tex. App. Houston [1st Dist.] 1994, pet. ref d). Moreover, the jury was not privy to information about appellant s prior felony convictions until the punishment phase of trial. While the stipulations and plea of true had no bearing on the jury s determination of appellant s guilt or innocence, the prior convictions were used to elevate appellant to the status of a habitual offender. Even absent the stipulation and plea of true, however, the prior convictions would have been admissible into evidence for the jury s consideration. As a result, it cannot be said that, but for counsel s decision to stipulate to the prior convictions and plead true to the enhancement paragraphs, the result of appellant s trial would have been different. Appellant s argument is not supported by the record.

Accordingly, appellant s fourth issue is overruled.

Conclusion

We affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Taft, Keyes, and Hanks.

Do not publish. Tex. R. App. P. 47.4.