Jesse Nunez Torres v. The State of Texas--Appeal from 118th District Court of Howard County

Opinion filed July 3, 2008

In The

Eleventh Court of Appeals

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 No. 11-06-00156-CR

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JESSE NUNEZ TORRES, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 118th District Court

Howard County, Texas

Trial Court Cause No. 11567

M E M O R A N D U M O P I N I O N C O N S I D E R I N G

  A P P E L L A N T = S P R O S E R E S P O N S E

The jury convicted Jesse Nunez Torres of aggravated robbery. Appellant entered pleas of true to both enhancement allegations. The jury assessed his punishment at confinement for life. His court-appointed counsel filed a motion to withdraw supported by a brief in compliance with Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Eaden v. State, 161 S.W.3d 173 (Tex. App.CEastland 2005, no pet.). Appellant did not file a response to his counsel=s brief. We granted the motion and issued an opinion on February 15, 2007, modifying the judgment to reflect that appellant had entered pleas of true to the enhancement allegations and affirming the judgment as modified. Torres v. State, No. 11-06-00156-CR, 2007 WL 510238 (Tex. App.CEastland Feb. 15, 2007, no pet.).

Appellant filed an application for writ of habeas corpus contending that he was denied a meaningful opportunity to appeal because he had not been provided with the reporter=s record from the voir dire proceedings. On December 5, 2007, the Court of Criminal Appeals remanded the application to the trial court for the entry of appropriate findings on the record from voir dire. Ex parte Torres, No. WR-68800-01, 2007 WL 4306394 (Tex. Crim. App. Dec. 5, 2007). On March 19, 2008, the Court of Criminal Appeals granted appellant=s application and directed appellant to file in this court his response within thirty days from the date of the Court of Criminal Appeals mandate. Ex parte Torres, No. AP-75874, 2008 WL 748654 (Tex. Crim. App. Mar. 19, 2008).

The Court of Criminal Appeals issued its mandate on April 15, 2008. Appellant=s response was originally due to be filed in this court on May 15, 2008. This court granted appellant=s two motions for extension of time, and appellant filed his response on June 23, 2008.

Appellant advances the following possible issues in his response: one of the sentences used for enhancement was founded upon an illegally amended indictment; this conviction was obtained in violation of his federal and state constitutional rights to due process because the State amended the indictment alleging a prior offense enhancing the present offense from Aa common robbery offense@ to the Alevel of an aggravated felony@; the trial court erred in only allowing him to question the victim about his criminal record and drug abuse outside the presence of the jury; his sentence was enhanced based upon an invalid prior juvenile conviction; the cumulative effect of the amendment to the indictment, the invalid prior juvenile conviction, and the evidence both admitted and excluded resulted in this conviction that violated his federal and state constitutional rights; the manner in which this conviction was obtained deprived him of his right to a fair trial; and his trial counsel did not afford him effective assistance of counsel.

In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Wiggins v. Smith, 539 U.S. 510, 520 (2003); Strickland v. Washington, 466 U.S. 668, 690 (1984); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance, and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Stafford, 813 S.W.2d at 508-09. The record does not reflect that counsel=s representation fell below the degree of competence demanded of attorneys.

Tex. Penal Code Ann. ' 29.02 (Vernon 2003) defines the offense of robbery as occurring when, in the course of committing theft and with intent to obtain or maintain control over the property, a person intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Tex. Penal Code Ann. ' 29.03 (Vernon 2003) declares that the offense of aggravated robbery occurs when, in the course of committing robbery, a person causes serious bodily injury to another, uses or exhibits a deadly weapon, or causes bodily injury or threatens or places another in fear of imminent bodily injury or death if the victim is disabled or sixty-five years of age or older. By definition, an enhancement allegation does not elevate Aa common robbery offense@ to the Alevel of an aggravated felony.@

The record does not support appellant=s contentions that he was denied his right to due process or that he was denied a fair trial. The record does not support appellant=s contentions that the trial court erred, that reversible error occurred, that his conviction was improper, or that the jury would have reached a different verdict if the trial had been properly conducted.

We have reviewed and considered each of appellant=s arguments in his response. All are overruled.

We note that, had we determined there was merit to any of appellant=s arguments, the conviction would not have been vacated as he requests. Case law demands that, in a situation such as this where appointed counsel has filed a motion to withdraw and a brief in support thereof, the appellate court remand the cause to the trial court for appointment of subsequent counsel if the appellate court determines that there is some merit to the defendant=s response to his counsel=s motion and brief. Anders, 386 U.S. 738; Stafford, 813 S.W.2d 503; High, 573 S.W.2d 807; Currie, 516 S.W.2d 684; Gainous, 436 S.W.2d 137; Eaden, 161 S.W.3d 173.

The judgment is modified to reflect that appellant entered pleas of true to the enhancement allegations and, as modified, is affirmed.

PER CURIAM

July 3, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.