### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00877- CR

Hugo Alq uicira, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 277 TH JUDICI AL DISTRICT NO. 10- 922- K2 77, H ONO RAB LE C. W. DUNCAN, JR., JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

I n four issues, Hugo A lquicira a ppeals his conviction for ag g rava ted assault with a deadly wea

pon. The victim in this case was his wife, Maria Puente. After the jury found Alquicira g uilty , he wa s sentence d to 20 y ear s’ conf inement. An individual commits an assault if he “intentionally , knowing ly , or rec kl es s l y

cause s bodily injury to another , including the person’ s spouse” or “intentionally o r knowing ly threa tens another with imminent bodily injury .” Te x . Penal Code § 22.01(a )(1) -(2) . An assault is

an ag g rava ted assault if a person commits a n assault and cause s serious bodily injury to a nother or

uses or exhibi ts a deadly wea pon during the offe nse. Id. § 22.02(a)

. Under the Penal Code, a deadly

wea pon is define d as “any

thing that i n i t s m an n er of its use or intended use is capa ble of causing death or serious bodily injury .” Id. § 1 .07(17). I n this case , the deadly wea pon alleg ed in the indictment was a clothing iron. Specifica lly , the indictment alleg ed that Alquicira “int entionally ,knowing ly , or rec klessly cause d bodily injury t o . . . Puente, by striking

. . . Puente with an iron

or unknown object, and us ed o r exhibi ted a deadly wea pon, namely , an iron or unknown object, during the commission of the assault.” Legal Sufficiency of the Ev idence

I n h i s first issue on appea l, Alquicira contends that the evidenc e supporting h i s conviction is leg ally insufficient. Specifica lly , Alquicira urg es that the evidenc e was insufficient to show that his “ac ts cause d the alleg ed injury ” or that a deadly wea pon was used during the offe nse. I n making this claim, Alquicira primar ily relies on his t estimony reg arding the alleg ed assa ult and descr ibing t h e events leading up to the incident. But Alquicira also arg ues that some of the testimony offe red by the other witnesses, including his children E.A. and N.A., is inconsistent with the alleg ations. For example, Alquicira notes that Puente did not seek any medical trea tment for her injuries other than the t rea tment she receiv ed wh en a para medic arrived on the s cene shortly afte r the assault and that neither of his children testified that they saw him use the iron to injure Puente.

I n a leg al-suff

iciency revie w, appellate courts view the evidenc e in the light most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). I n perf

orming this analy sis, the revie wing court must bear in mind that it is the fac tfinder’ s duty to weig h the evidenc e, to resolve conflicts in the testimony , and to make rea sonable infere nces “fr om basic fac ts to ultimate fac ts.” Id. at 319. I n addition, revie wi n g co u rt s m u st presume that conflicting infere nces wer e resolved in favor of the conviction and defe r to that resolution. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

2During the trial, Alquicira testified that Puente was very drunk when h e g ot home

from work on the day befor e the incident, that he was afr aid that she was g oing to hurt herse lf with a knife, and that h e t o o k i t awa y from her and later left t he home. Then, Alquicira related t hat he
went back to the house the next day and that Puente was still drinking

. Alquicira also explained that afte r he w as home for a few hours, Puente started throwing household items a round the house and demea ned him in front of their c hildren, which le d to an ar g ument. Fur thermore , Alquicira stated that beca us e h e wa s conce rned about arg uing in front of the children, he asked Puente to have a discussion in the bedroom. Reg arding their i ntera ction in the bedroom, Alquicira reca lled that he decide d to leave the ro o m af t er Puente started throwing his clothes from the closet onto the g round. I n addition, Alquicira rela ted that Puente followed him and continued the arg ument. I n his testi m o n y , Al quicira admitted to pushing Puente awa y from him but denied phy sically striking or injuring her. Finally , when questioned about photos showing Puente’s injuries, Alquicira rea soned that the injuries could have been c aused by Puente fa lling off her bike or by Puente gra bbing onto his car in a

n attempt to stop him from leaving be fore the alleg ed assa ult. Be fore Alquicira testified, sever al witnesses, including Puente, wer e called to testify reg arding what they observe d during the alleg ed assault and shortly there afte r. I n her testimony , Puente stated that on the day in question, Alquicira g ot very ang ry with her and then pulled her hair and threw her t o t h e fl o or. Next, Puente t estified that Alquicira started pushi ng her and throwing household items at her. Moreo v er , s h e ex plained that Alquicira continued to behave this way for hours. L ater , she stated that Alquicira picked up an iron and started hitting her with the attache d elec trical cord. I n addition, Puente discussed how afte r Alquicira finished hitting her with the cord,

3he used the cord to swing the iron by her fac e repe atedly

. When descr ibing the experience , Puente

testified that she thought that Alquicira was g oing to kill her with the iron and that Alquicira laug hed
at her as she pleade d for her life. Moreove r, althoug h she testified that she did not know for sure if the iron hit he r on her back beca use she c losed her ey es, she descr ibed a burning pain on her back. After Puente t estified, two of A lquicira a nd Puente’s children testified. First, E.A. explained that afte r his pare nts started fig hting, Alquicira foll o we d Puente to her bedroom and locked the door. Fu rt h er , he testified that he hear d “[y ]elli ng and scre aming ” coming from the bedroom. I n addition, he rela t ed t h at he picked the lock to chec k on his mom afte r he hear d her “scr eaming rea l l y v er y loudly .” When descr ibing what he saw upon enter ing the bedroom, E.A. 1 stated that he saw Alquicira y elling at Puente who was in the corne r of the room and then later saw Alquicira repeatedly kick P uente. I n addition, alth o u gh E .A. di d not testify that he saw Alquicira holding an iron, he did explain that he saw an iron on the floor and surmis ed that Alquicira might have used the iron ear lier beca use “the bruises o n h er ar m wer e too big to come from someone hitting her .” Next, N.A. test ified about the i ncident. Specifica lly , she related that she heard her pare nts arg uing and then hear d Puente scre am. Fur ther, she explained that afte r she and E.A. went into the bedroom, she saw that Puente was in the corne r of the room, th at P uente “had purple bruises” on her body , that Puente’s shirt ha d been torn, and that Alquicira “wa s holding the iron in his hand.” She also testified t hat Alqui ci ra threa tened to kill her and her sibli ng s if they talked to the police.

We note t hat during t he trial, the neighbor who called the police testified that he hear d a 1 woman plea ding f

or help inside Alquicira ’s house.

4I n addition to individuals who wit n essed the alleg ed assault, the State also called

witnesses to testify about Puente’s injuries. First, Deputy Steven Kelley testified that he responde d to a 911 ca ll concer

ning A lquicira’s home . He e x plained that whe n he arr ived, he hear d a woman cry ing and noted that Alquicira seeme d “upset, ag itated and irritated.” Moreove r, Kelley rela ted that af t er he went to a bedroom to chec k on Puente, he found her cry ing heavily and hy

perve n t i l at i n g. When descr ibing her appea ranc e, Kelley stated that Puente’s shirt had been torn and that she had “a red burn mark on her rig ht fore arm.” More specific ally , he stated that the burn was four inches long. L ater , Kelley rec alled that af ter Puente had been trea ted by EMS personne l, he observe d other injuries that Puente had sustained i ncluding a larg e burn and bruise to her lef t arm and a

red ma rk

on her back. Kelley char acte rized those injuries as “ser ious” burns. Kelley also testified that he inspected the bedroom as part of his investiga tion and found an iron a few fee t from wher e he found Puente and that the ir on was plug g ed in and still “war m to the touch” althoug h turned off

. Next, the para

medic who trea ted Puente, Vickie Hawkins, was called t o t estify

. Hawkin s re l ated that when she beg an trea ting Puente, Puente was cry ing and hy

perve ntilating. Hawkins also stated that Puente had burns and major bruises on her arm, shoulder, and back. Moreove r, Hawkins ex plained that the bruising was cause d by a forc e that had been applied to Puente’s body and that the burns wer e second deg ree burns, meaning that part of the skin had been

remove d and that an infect ion could “set in.” I n addition, Hawkins ag ree d that the injuries wer e consistent with “someone being struck with an iron” an d being burned by an iron. Fur thermore , although Ha wki ns explained that Puente was initially reluc tant to talk, Puente did reve al that Alquicira ha d used the iron to hurt a nd burn her

.

5During their testimonies, both Kelley and Hawkins explained that an iron could

cause serious injury or death. More specific ally , Kelley explained that an iron can cause “sca rring , disfigur ement, perma

nent disfigur ement” and that an iron can also be used as a deadly wea pon if it is used to strike somebody

.

I n addition to the testimony summ ar ized above, numerous photos wer e admitted into evidence chronic ling injuries a nd burns sustained by

Puente. I n light of the evidenc e above and bear ing in mind the jury ’s role in weighing the evidenc e and resolving conflicts in the testimony prese nted, we must conclude that the evidenc e is leg ally sufficie nt to support Alqui ci ra’ s conviction for ag g rava ted assault with a deadly wea pon. Acc ording ly , we ove rrule his fir st issue on appea l. Right to Effective Assistance of Counsel

I n his second issue on appea l, Alquicira contends that his tria l la wy er provided him ineffe ctive assistance of counsel beca use he “fa iled to arg ue or raise objection to the State’s Motion in L imine seeking to exclude any evidenc e of the victim’s char acte r or prior acts of violence ag ainst [Alqui cira ], or to prese nt such evidenc e by other means.” I n this issue, Alquicira also contends that his trial counsel’s conduct was defic ient beca use he “fa iled to investiga te the vera city of the claims prese nted and to prese nt expert rebuttal evidenc e to the State’s arg ument as to how the injuries wer e

cause d though f

unds were authorized by

the Court.” I n g ener al, a direc t appea l is not an adequate means to prese nt an ineff ec t i v en es s claim bec ause the rec ord is usua lly undevelope d. Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005). “This is true with reg ard to the question of defic ient p er fo rm ance . . . wher e 6co u nsel’s rea sons for failing to do something do not appea r in the rec ord.” Id. (expla i n i n g t h at “counse l’s conduct is revie wed with g rea t defe renc e, without the di storting effe cts of hindsight” ). Trial attorney s should be g iven the opportunity to clar ify their actions befor e being deeme d ineffe ctive. Id. I n the absence of t hat opportuni ty , an appellate court should not conclude that an attorney ’s perf

ormanc e was ineffe ctive u n l es s the challeng ed conduct is “so outrag eous that no

co mpetent attorney would have eng ag ed in it.” Garcia v. State , 57 S.W .3d 436, 440 (Tex

. C ri m . App. 2001). Alquicira’ s ineffe ctiveness claims all stem from omissions by his trial attorney , and the rec ord is not sufficie ntly develope d to evalua te those omissions beca use “[n] either [hi s] counsel

nor the State have been g iven an opportunity to respond to” the alleg ations. See Mene field v. State , 363 S.W .3d 591, 593 (Tex. Crim. App. 2012). Moreove r, base d on this recor d, we do not believe
t hat the alleg ed omissions are so outrag eous that no competent attorney would have com m i t t ed them. Acc ording ly , we cannot conclude that Alquicira was denied his r ight to e ffe ctive assistance of counse l. Although we need not addre ss the matter further , we do note that appellate courts look to the totality of repr esenta tion provided by an attorney when assessing his eff ectivene ss. See Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999). I n this case , Alquicira’ s counsel did express frustra tion at his client’s behavior during trial, but he also succe ssfully moved to have two char g es ag ainst Alquicira dismiss ed, extensively questioned the jury panel reg arding their abilities
to serve , moved to strike various potential jurors for cause , informed the jury panel about the State’s burden, succe ssfully objected to the testimony of witnesses on various g rounds, cross-e x amined the

7State’s witnesses, reque sted a direc ted verdic t in his cl i en t’s favor , discussed with Alquicira

the advanta g es and disadvantag es to testify ing, and re quested a lesser- included char g e of assault. Moreove r, during his closing , Alquicira’ s attorney em p h as i z ed the S tate’s burden, di scussed how Pue n t e did not seek any further medical trea tment, sug g ested that there wer e no medical repor ts admitted during the trial beca use the injuries wer e not sever e enoug h, questioned Puente’s

cre dibilit y , and succe ssfully objected to statements made by the State during its closing

. Finally , in the punishment phase, Alquicira’ s attorney cross examined the State’s witnesses and called various witnesses to testify

on Alquicira’ s behalf. I n light of the above, w e over rule Alquicira ’s sec ond issue on appea l. 2

Constit utionalit

y of Alquicira’s Sentenc e I n his th i rd an d fourth issues, Alquicira asser ts that the leng th of his sentenc e, 20 y ear s, is unconstitutional beca use the sentenc e is “g rossly disp ro p o rt i o n at e to the crime and inappropria te to the offe nder.” I n particula r, Alquicira contends that his sentenc e violates section 13 of article I of the Texas Constit ution and the Eig hth Amendment of the United States Constit ution, which both prohibit crue l or unusual punishments. See U.S. Const. amend. VI I I ; Tex. Const. art. I , § 13. As support for this asser tion, Alquicira notes that he wa s g iven the maxi mum punishment authorized but also notes that he had no p ri o r fe l o ny convictions and was elig ible for probation.

Gene rally speaking , claims that have be en re jected in a direc t a

ppeal are “not cog nizable 2 on habea s corpus.” Ex parte Nailor , 149 S.W .3d 125, 131 (Tex. Crim. App. 2004). Howeve r, if an appellate court “re

jects a claim of ineffe ctive assistance of counse l beca use the rec ord on direc t appea l does not conta i n s ufficie nt information to adequately addre ss and resolve a particula r alleg ati o n of counsel’s defic ient perf ormanc e,” that claim may be considere d “in a later habea s corpus pr ocee ding if

he provide s additional evidenc e to prove his claim.” Id.

8Fur

ther, he contends that the fac ts did not support the punishment, particula rly the fac t tha t Puente did not seek additional medical treatment. For these reasons, Al q u i ci ra insists that he “is entitled
to a re versa l and to a new punishment hearing .” Alquicira did not raise these constitutional issues i n either of his motions for new trial, nor did he challeng e the sentenc e when it was assessed during the punishment hear i n g . Acc ording ly , he has waived both of these issues on appea l. See Kim v. State , 283 S.W .3d 473, 475 (Tex. App.—For

t Worth 2009, no pet.) (explaining that “[t] o prese rve e rror for a ppellate r eview a complaint that a sentenc e is g rossly disproportionate, constituting crue l and unusual punishment, a defe ndant must present to the t rial court a ti mely reque st, objection, or motion stating the specific g rounds for the ruling desired” ).

Even assuming that his claims wer e not waived, we would be unable to sustain either of his issues. This Court has previously rec og nized that the “powe r to define criminal offe nses and presc ribe their punishments resides in the leg islature.” Francis v. State , 877 S.W .2d 441, 444 (Tex. Ap p . — Au s tin 1994, pet. ref ’d) (per curia m). For that rea son, this Court has also conclude d that section 13 of article I “is not violated when the punishment assessed is within the limit s presc ribed by statute.” Id. ; see Thomas v. State , 916 S.W .2d 578, 584 (Tex. App.—San Antonio 1996, no pet.). As Alquicira conce des, hi s punishment fell wit hin the rang e allowable by statute

. S ee Tex. Penal Code § 12.33(a) (setting out punishment rang es for second- deg ree felony ). Acc ording ly , the leng th of his punishment does not violate the Texas Constit ution.

Reg arding his fede ral claims, sentenc es falling within the applicable statutory rang e t y p i cally do not violate the Eig hth Amendment. King v. State , No. 03-12-00776- CR, 2013 Tex.

9App. L EXI S 4528 (Tex

. App.—Aust in Apr. 10, 2013, pet. ref ’d) (mem. op.) (not desig nated for publication). Moreove r, “[ m ] u ch defe renc e must be acc orded to the leg islature’s authority and the discretion veste d in the jury in assessing punishment.” Thomas v. State , 916 S.W .2d 578, 584 (Tex. App.—San Antonio 1996, no pet.). When re v i ewing a claim that a sentenc e is g rossly disproportionate to the crime, courts consider “the g ravity of the offe nse compar ed to the harshne ss of the penalty ,” g iving “prope r defe renc e to the polic y judgme nts that find expression in the leg islature’s c hoice of

sanctions.” Ewing v. Calif ornia , 538 U.S. 11, 28-29 (2003). Given the rec ord befor e this Court, we ca n n o t co nclude that the sentenc e assessed

was g rossly disproportionate to the g ravity of the offe nse. I n rea ching this resolution, we are mindful of the leg islature’s decision to impose harshe r sentenc es on individuals who assault memb er s of their own family

. See Tex. Penal Code §§ 22.02(b) (ele vating offe nse level if ag g rava ted assault is committed ag ainst fam il y member) , 22.01(b)( 2) (ra ising offe nse level for assaults committed ag ainst family member)

. The evidenc e demonstrated that Alquicira assaulted his wife in fr o n t o f their children. Fur

ther, the testimony prese nted and the photogr aphs admitted into evidenc e showed the

sever ity of the injuries inflicted on Puente. I n addition, A lquicira testified during the trial, and the jury was able to assess his demea nor and cre dibilit y . Finally , the jury hear d testimony from one of Alquicira’ s children stating that Alquicira threa tened to kill his children if they discussed the assault with the police. 3

Although Alquicira complains a b o u t the leng th of his sentenc e for the second- deg ree felony 3 for which he was char g ed, the State could have char g ed Alquicira with a first-deg ree felony

. Under the Penal Code, ag g rava ted assault is a first deg ree felony if “the actor uses a deadly wea pon during the commission of the assault and cause s serious bodily injury to a person whose rela tionship to or association with the defe ndant is descr ibed by ” the Fa mily Code. Tex. Penal Code § 22.02(b). The punishment for first deg ree felonies r ang es fr om 5 y ear s to 99 y ear s. Id. § 12.32(a)

. 10For the rea sons previously g iven, we overr ule Alquicira’ s third and fourth issues on appea l.

CONCLUSION

Having overr

uled all of Alq u i cira ’s issues on appea l, we aff irm the district court’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton, and Rose Affir med Filed: Mar ch 5, 2014 Do Not Publish

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