### NUMBER 13 - 1 0 - 00 002 - C R 

## COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI

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## EDINBURG

ARTURO CHAVIRA , A ppellant,

v. THE S TATE OF TEXAS , Appellee.

On appeal from the 1 17 th District Court of Nueces County, Texas.



## MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides Appellant, Arturo Chavira, ple a d ed guilty and was sentenced to ten years’ confinement in the Texas Department of Cr iminal Justice

— Institutional Division for aggravated assault with a deadly weapon. See T EX

. P ENAL C ODE A NN . § 22.02 (a)(2) (West 2009). By three issues, Chavira contends that: (1) the evidence was not2

sufficient to support the conviction for aggravated assault with a deadly weapon; (2) the trial court erred in accepting Chavira’s plea of guilty because he was not pr operly admonished according to a rticle 26.13 of the Texas Code of Criminal Procedure , and (3 ) Chavira’s trial counsel was ineffective

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.13(a)(1) (West 2009). We affirm.
I. B ACKGROUND Chavira was originally indicted by the State on April 9, 2009 for aggravated assault by either using and exhibiting a deadly weapon or by causing serious bodily injury to Walte r Almendariz by using a deadly weapon, a knife. On July 9, 2009, the State reindicted Chavira and added a second count with two paragraphs for an alleged second victim, Carlos Fernandez. On November 13, 2009, Chavira applied for community supervision, asked the
trial court to deter mine punishment, and enter ed a plea of guilty without admonishment. On December 4, 2009, the trial court properly admonished Chavira and allowed Chavira the opportunity to withdraw his guilty plea . Again, though, Chavira ple a d ed guilty after the admonishments were read to him. The trial court then found Chavira guilty on both counts of aggravated assault based on his written confession and stipulation. The written stipulation contained only the original indictment; it did n ot name the alleged victim or the alleged co

- defendant. However, Chavira stipulated that the facts contained in the attachments to the confession were ― true and correct. ‖

II. S UFFICIENCY OF THE E VIDENCE S UPPORTING C HAVIRA ’ S C ONVICTION Chavira fir st contends that the evidence was insufficient to support his conviction for aggravated assault with a deadly weapon.3

A. Applicable Law With regard to the sufficiency of the evidence s upporting a defendant’s plea of guilty, the Texas Court of Criminal Appeals has stat ed the following:

The United States Constitution does not require that the State present evidence in support of a guilty plea in Texas courts. Article 1.15 constitutes an additional procedural safeguard required by the State of Texas but not by feder al constitutional law. No trial court is authorized to render a conviction in a felony case, consistent with Article 1.15 , based upon a plea of guil ty without sufficien t evidence to support the same. Evidence offered in support of a g uilty plea may ta ke many forms. The statute expressly provides that the defendant may consent to the proffer of evidence in testimonial or documentary form, or to an oral or written stipulation of what the evidence against him would be, without necessarily admitting to it s veracity or accuracy; and such a proffer or stipulation of evidence will suffice to support the guilty plea so long as it embraces every constituent element of the charged offense. Alternatively, our case law has recognized that the defendant may enter a sworn written statement, or may testify under oath in open court, specifically admitting his culpability or at least acknowledging generally that the allegations against him are in fact true and correct; and again, so long as such a judicial confession covers all of the elements of the charged offense, it will suffice to su pport the guilty plea. H owever, a stipulation of evidence or judicial confession that fails to establish every element of the offense charged will not author ize the trial court to con vict. A conviction rendered without sufficient evidence to support a guilty plea constitutes trial error. Menefee v. State , 287 S.W.3d 9, 13

– 14 (Tex. Crim. App. 2009) (internal footnotes, citations, and quotation marks omitted). ―An affirmation of the indictment as true and correct will constitute a judicial confession sufficient to support a judgment of conviction.‖ Id

. at 16 n.30 (quoting Potts v. State , 571 S.W.2d 180, 182 (Tex. Crim. App. 1978)).
B. Discussion In this case, Chavira was charged wit h violating section 22.02 of the penal code, which provides that: ― A person commits an offense if the person commits assault as4

defined in § 22.01 and the person: (2) uses or exhibits a deadly weapon during the commission of the assault. ‖ T EX

. P ENAL C ODE A NN . § 2 2.02 (a)(2). Chavira ple a d ed guilty to both counts of aggravated assault in his Judi cial Confession and Stipulation that provided Chavira assaulted Almendarez and Munguia with a deadly weapon on the morning of April 20, 2008. Chavira further stipulated t hat the facts contained in
attachments to the co nfession were ― true and correct. ‖ The attachments incl uded, among other things, the affidavit/c omplaint and police report , where Almendarez indentified Cha vira as the man who stabbed him and Munguia identifi ed Chavira as the man who began the assault that resulted in the stabbings.
We therefore conclude that the evidence is sufficient to prove that Chavira
assaulted both Almendarez and Munguia with a deadly weapon on the morning of April 20, 2008. Chavir a’s affirmation of the indictment as ― true and correct ‖ constitutes a judicial confession sufficient to support the trial court’s judgment. See Menefee , 28 7 S.W.3d at 16 n.30. We overrule Chavira’s first issue

. III. A DMONISHMENT By his second issue, Chavira contends that the tri al court erred in accepting his
initial guilty plea because he was not ad monished properly in accordance article 26.13 of the Texas Code of Criminal Procedure.

A. Applicable Law

Article 26

. 13 governs the admonishments to be given a def endant before a plea of guilty. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.13(a)(1). Article 26

. 13 (a) provides that p rior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the5

defendant of the range of the pun ishment attached to the of fense. Id. In admonishing the defendant, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court. Id. at a rt. 26.13 (c). If the trial court substantially complies with a rticle 26.13 , the defendant has the burden to show he
or she ple a d ed guilty without understanding the consequences of that plea and, consequently, suffered harm. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998)

. B. Discussion Although the trial court failed to admonish Chavir a the first time he ple a d ed guilty,
it properly admonished Chavira at the second hearing and gave him the opportunity to withdraw his plea

. T here is nothing in the record that shows Chavira was unaware of the conseque nces of his plea or that he was misled or harmed. The following colloquy, recorded prior to Chavira’s second guilty plea, reveals that he was fully aware of the consequences of his action : COURT: Excuse me. Have you had enough time with your attorney

to talk about how you might defend yourself or your options? CHAVIRA: Yes, Judge. COURT: And in your discussions, have you been made to understand

that each one of these counts is a second degree felony, and if I find that you have committed this offen se I could asses punishment somewhere between 2 and 20 years in the penitentiary; do you understand that? CHAVIRA: Yes, ma’am.

. . . COURT: Did you have enough time with your attorney to talk about the6 information that’s in these documents

— that’s in this document? CHAVIRA: Yes Judge. COURT: And did you

— can you tell me right now that you understand

the information that I have given to you? CHAVIRA: I understand the information.

. . . COURT: Did anyone put any pressure on you to g ive up your rights? CHAVIRA: No, Judge. COURT: Then I am going to approve the statements you made to me

when you signed and you initialed on this statement. COURT: And how do you plead to count 1, paragraph 2? CHAVIRA: Guilty.

. . . COURT : And are you pleading guilty because on the date in question,

April 20th, 2009, [sic] that you caused serious bodily injury to one Walter Almendarez , by stabbing him with a knife; is that true? CHAVIRA: Yes, Judge. COURT: And how do you plead to co unt 2, paragraph 2? CHAVIRA: Guilty. COURT: And are you pleading guilty because on April 20, 2008, that

you caused serious bodily injury to one Carlos Fernandez, by stabbing him with a knife? CHAVIRA: Yes, Judge. The Texas Court of Appeals has held that, in a case with similar facts, the court substantially complied with the required admonishments of article 26.13:7

Although the court gave appellant the admonishment after accepting his plea, the record further reflects that appellant was given the option of withdrawing the plea following the belated admonishment on the range of punishment. Appellant persisted in entering a plea of guilty. Under such circumstances, we find the court substantially complied with gi ving the required admonishment. Hardman v. State, 614 S.W.2d 123, 126 (Tex. Crim. App. 1981) (citing Whi tten v. State , 587 S.W.2d 159 (Tex. Cr im . App. 1979) ), overruled on other grounds by Cain v. State , 947 S.W.2d 262 (Tex. Crim. App 1997). Accordingly, because the record shows that Chavira was aware of the consequences of his plea and chose to re

- plead gu ilty after being properly admonished , we find no error. See id

. Chavira additionally contends that the trial court's failure to admonish a guilty

- pleading defendant on the range of punishment is a constitutional error subject to
harm analysis. Under Rule 44.2(b ) of the Texas Rules of Appellate Procedure , however , this would be harmless error. See T E X

. R. A PP

. P . 44.2(b). The United States Supreme Court , in McCarthy v. United States, expressly stated that the
admonishments in the federal equivalent of a rticle 26.13 (a) , which included admonishments on the range of punishment, have ―not been held to be constitutionally mandated‖ and that these admonishments are ―designed to assist the district judge in making the constitutionally required determination that the guilty plea was truly voluntary.‖ 394 U.S. 459, 465 (1969)

. No subsequent Supreme Court decision has
held that these admonishments are ―constitutionally mandated.‖ We are therefore not persuaded by Chavira’s additional contention. We overrule Chavira’s second issue

.8 IV

. I NEFFECTIVE A SSISTANCE OF C OUNSEL Chavira, in his third issue, contends that hi s tr ial counsel was ineffective by: (1) allowing him to be convicted on insufficient evidence; and (2) failing to investigate, file any pretrial motions, have a firm command of the facts, and/or impeach false st atements by the victims at the sentencing he aring

. A. Applicable Law
Under Strickland, a claim of ineffective assistance will sh ow how specific acts or omissions of counsel failed to meet two distinct criteria of effectiveness. Strickland v. Washington , 466 U.S. 668 , 684 (1984). Chavira must show: (1) his attorney’s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability tha t, but for his attorney’s errors, the result of the proceeding would have been different. Id. at 684; De w berry v. Stat

e , 4 S.W.3d 735, 757 (Tex. Crim. App. 1999) (holding that appellant must show a reasonable probability that, but for the counsel’s errors , the fact

- finder would have found a reasonable doubt as to appellant’s guilt); Jaynes v. State , 216 S.W.3d 839, 851 (Tex. App.

— Corpus Christi 2006, no pet.). Chavira has the burden of proving ineffective assistance of counsel by a preponderance of the ev idence. See Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State , 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)). The right to ―reasonably effective assistance of counsel‖ does not guarantee
errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor v. State , 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). The claims of ineffective assistance must be supported by the record. Thompson , 9 S.W.3d at 814; Jaynes , 216 S.W.3d at 851. A silent record which p rovides no explanation for counsel’s actions9

usually will not overcome the strong presumption of reasonable assistance. Thompson , 9 S.W.3d at 813

– 14. To warrant reversal without affording counsel an opportunity to explain her actions, ―the challenged con duct must be so outrageous that no competent attorney would have engaged in it.‖ Roberts v. State , 220 S.W.3d 521, 533 (Tex. Crim. App. 2007) (citing Goodspeed v. State , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

B. Discussion Chavira failed to develop a s ufficient record to show that his counsel was ineffective by allowing him to be convicted on insufficient evidence. Chavira contends that the original stipulation contained only the first indictment and did not contain the alleged second victim and the al leged co

- defendant. As stated in issue one, Chavira admitted to the allegations against him under oath in open court. This was sufficient evidence to convict Chavira. ―An affirmation of the indictment as true and correct will constitute a judicial confe ssion sufficient to support a judgment of conviction.‖ Menefee , 287 S.W.3d at 16 n.30 (quoting Potts v. State , 571 S.W.2d 180, 182 (Tex. Crim. App. 1978)). There is thus no evidence that the result of the proceeding would have been different. Strickland 466 U.S. at 684 ; De w berry , 4 S.W.3d at 757 (holding that appellant must show a reasonable probability that, but for counsel’s errors, the fact

- finder would have found a reasonable doubt as to appellant’s guilt); Jaynes , 216 S.W.3d at 851. Chavira has also failed to develop a sufficient record to show that his counsel was ineffective by not investigating, filing any pretrial motions, having a firm command of the facts, and/or failing to impeach false statements by the victims at trial. Again, t he claims of ineffective assistance must be supported by the record. Thompson , 910

S.W.3d at 814; Jaynes , 216 S.W.3d at 851. Chavira points to no support in the record indicating his counsel acted without reasonab le professional judgment. T he right to ―reasonably eff ective assistance of counsel‖ does not guarantee errorless counsel or counsel whose competency is judged by perfect hindsight. Saylor , 660 S.W.2d at 824. Chavira also complains that his counsel failed to object to evidence of gang affiliation; however, t he trial court made it clear on the record that it did not consider this information in determining Chavira’s punishment. There is nothing in the record that
shows that the trial court considered the evidence. In fact, the trial court in this case specif ically stated that he would not consider evidence not properly before him. We therefore assume the trial court disregarded inadmissible evidence unless the record clearly shows the contrary. Herford v. State , 139 S.W.3d 733, 735 (Tex. App.

— Fort
Worth 2004 , no pet.). Accordingly , any such error by counsel did not produce a different result. Finally, Chavira failed to develop a sufficient record to show that his counsel was ineffective by not investigating or cross

- examining his witnesses. During the trial , the main issue being considered was the length of Chavira’s punishment, given that he had already ple a d ed guilty. Chavira failed to show that this matter would have any impact on his sentencing. Chavira contends that his trial counsel had a duty to int erview potential witness and obtain evidence, and his failure to do so rendered his assistance ineffective. See Butler v. State , 716 S.W.2d 48, 54 (Tex. Crim. App. 1986). Although
Butler does support this argument, it also later notes that such failure is only incompetent

― where the result is that any viable defense available to the accused is not advanced.‖
Id. Again, there is nothing in the record that reflects this would change the11

de termination of the punishment. Chavira’s third issue is overruled.
V

. C ONCLUSION Having overruled all of Chavira’s issues on appeal, we affirm the judgment of the
trial court.

________________________ GINA M. BENAVIDES, Justice Do not publish. T EX

. R. A PP

. P. 47.2 ( b )

. Delivered and filed the 14th day of Ju ly , 20 1 1

.