NUMBER 13-15-00575-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ESTEBAN COLEMAN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 

On appeal from the 214th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Longoria

Memorandum Opinion by Justice Longoria

By three issues, appellant Esteban Coleman challenges his conviction for one 

count of assault against a family member, a third-degree felony enhanced to a seconddegree felony by one prior felony conviction. See TEX. PENAL CODE ANN. §§ 22.01,

12.42(a) (West, Westlaw through 2015 R.S.). We affirm as modified. 
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I. BACKGROUND

The State indicted appellant for knowingly or intentionally causing bodily injury to 

Sylvia Rhoden-Vela, a person whose relationship to appellant was described by sections 

71.003, 71.005, or 71.0021(b) of the Texas Family Code, “by grabbing and pushing her” 

her with his hand on January 1, 2015. See id. § 22.01. As an essential element of the 

offense, the State alleged in the indictment that appellant was previously convicted of a 

misdemeanor assault involving family violence on January 9, 2003 in cause number 

2002-8051-1 in County Court at Law No. 1 of Nueces County. See id.

At the beginning of trial, appellant stipulated to his prior conviction in cause number 

2002-8051-1. A certified copy of the judgment of conviction in that cause number was 

marked as State’s Exhibit 1. However, the place in State’s Exhibit 1 for a finding 

regarding whether the case involved family violence is blank. After the close of 

evidence, the trial court permitted the State to reopen its case for the limited purpose of 

introducing State’s Exhibit 1 into evidence. When introducing the exhibit in front of the 

jury, the State referred to it as “Cause No. 2002851, the charge State of Texas vs. 

Esteban Coleman for assault family violence.” Appellant’s attorney stated she had no 

objection, and the trial court admitted State’s Exhibit 1 into evidence.

The jury returned a verdict of guilty, and appellant elected for the trial court to 

assess his punishment. The trial court assessed a sentence of five years in the 

Institutional Division of the Texas Department of Criminal Justice and no fine. This 

appeal followed.
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II. DISCUSSION

Appellant asserts three issues on appeal: (1) the evidence is insufficient to 

support his conviction; (2) he suffered egregious harm from error in the jury charge; and 

(3) he received ineffective assistance of counsel.

A. Sufficiency of the Evidence

Appellant argues in his first issue that the evidence is insufficient because the State 

presented no evidence that his previous conviction for assault under cause number 2002-

8051-1 involved family violence.

1. Standard of Review and Applicable Law

We review whether sufficient evidence supports a conviction by considering all of 

the evidence introduced at trial in the light most favorable to the verdict and deciding

whether any rational trier of fact could have found the State proved all of the essential 

elements of the offense beyond a reasonable doubt. McKay v. State, 474 S.W.3d 266, 

269 (Tex. Crim. App. 2015) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This 

standard tasks the factfinder, the jury in this case, with resolving conflicts in the testimony, 

weighing the evidence, and drawing reasonable inferences from it. Murray v. State, 457 

S.W.3d 446, 448 (Tex. Crim. App. 2015). Our role on appeal is limited to determining 

whether the necessary inferences drawn by the jury are reasonably based upon the 

cumulative force of all the evidence. Id. If the record supports conflicting inferences, 

we presume that the jury resolved the conflict in favor of its verdict and defer to that 

determination. Id. at 448–49.

We measure the sufficiency of the evidence against the essential elements of the 

offense defined by the hypothetically correct jury charge for the case. Anderson v. State, 
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416 S.W.3d 884, 889 (Tex. Crim. App. 2013). The hypothetically correct jury charge 

accurately sets out the law, is authorized by the indictment, does not unnecessarily 

increase the State’s burden of proof or unnecessarily restrict its theories of liability, and 

adequately describes the particular offense for which the defendant was tried. Id. (citing 

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). For this case, the 

hypothetically correct jury charge required the State to prove that: (1) appellant 

intentionally, knowingly, or recklessly caused bodily injury to Rhoden-Vela; (2) RhodenVela was a person whose relationship or association with appellant was described by 

sections 71.003, 71.005, or 71.0021(b) of the Texas Family Code; and (3) appellant was 

previously convicted of an offense involving family violence. See TEX. PENAL CODE ANN.

§ 22.01(a)(1), (b). 

The requirement of a prior conviction involving family violence is an essential 

element of the offense rather than an enhancement. Wingfield v. State, 481 S.W.3d 

376, 379 (Tex. App.—Amarillo 2015, pet. ref'd). “No specific document or mode of proof 

is required to prove” the existence of a prior conviction. Flowers v. State, 220 S.W.3d 

919, 921 (Tex. Crim. App. 2007). 

2. Analysis 

Appellant challenges only the sufficiency of the evidence that his prior conviction 

for misdemeanor assault involved family violence. He argues that State’s Exhibit 1 is 

silent on the matter of family violence and that the State presented no other evidence that 

his previous conviction involved family violence. The State responds that appellant 

stipulated to this element and so may not challenge whether the State introduced 

sufficient evidence to support it.
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A defendant may stipulate to the evidence against him. Bryant v. State, 187 

S.W.3d 397, 400 (Tex. Crim. App. 2005). A stipulation “is a kind of judicial admission” 

which has the effect of “withdrawing a fact from issue and dispensing wholly with the need 

for proof of the fact.” Id. (internal quotation marks omitted). For this reason, a 

defendant who stipulates to an essential element of a charge against him waives any right 

to argue on appeal that the evidence is insufficient to prove the stipulated element. 

Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim. App. 2006); Bryant, 187 S.W.3d at 400. 

Appellant does not contest the effect of a stipulation in general, but argues that his 

stipulation encompassed only the fact of the conviction but not that it involved family 

violence. The State responds that appellant adopted the prosecutor’s assertion that the 

conviction memorialized by State’s Exhibit 1 involved family violence.

Appellant argues correctly that unsworn comments and arguments of counsel 

during trial are not evidence. Gonzales v. State, 474 S.W.3d 345, 350 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref'd). However, the undisputed assertion of trial counsel 

regarding an event that occurred in court will be taken as true if (1) the event could not 

have occurred without being noticed and (2) “the assertion is of the sort that would 

provoke a denial by opposing counsel if it were not true.” Thieleman v. State, 187 

S.W.3d 455, 458 (Tex. Crim. App. 2005). If those two conditions are met, “the opposing 

party may be held to have adoptively admitted the assertion.” Id.; see Mungaray v. State, 

188 S.W.3d 178, 184 (Tex. Crim. App. 2006). After the State rested, the following 

exchange occurred regarding State’s Exhibit 1:
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[Prosecution]: When the jury comes out the Defense has agreed to 

stipulate on the record about the prior, State's Exhibit 

No. 1.

The Court: So you don't need another witness?

[Prosecution]: Correct.

The Court: Is that your understanding?

[Defense]: Yes, Judge.

The Court: All right. That's fine. What I'll do is bring the jury in, 

I'll explain to them. You will close. Rest and rest.

[Prosecution]: Do I need to reopen for that?

The Court: Yes. You will reopen for that purpose right now. 

Bring the jury in, please.

(Jury enters courtroom.)

The Court: Have a seat, please. State ready?

[Prosecution]: Yes, Your Honor.

The Court: Anything else?

[Prosecution]: Yes. The State at this time would like to reopen for 

the purposes of admitting State's Exhibit No. 1 on the 

record at this time. The Defense has agreed to 

stipulate to the prior.

The Court: I will allow you to reopen for that purpose only. Is that 

your understanding, Ms. Ramos?

[Defense]: That is our understanding.

[Prosecution]: That State at this time would like to admit State's 

Exhibit No. 1 and publish to the jury at this Cause No. 

2002851, the charge State of Texas vs. Esteban 

Coleman for assault family violence and I'm tendering 

to Defense counsel.

[Defense]: No objection.
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The Court: It will be admitted. 

Based on the above record, we agree that appellant adopted the prosecutor’s 

undisputed assertion regarding the stipulation. Appellant’s stipulation could not have 

passed without notice and the prosecutor’s assertion about it would have drawn a denial 

if it was not true. See Thieleman, 187 S.W.3d at 458; see also Wingfield, 481 S.W.3d 

at 379 (observing that whether the prior conviction involved family violence is an essential 

element of the offense). We therefore take as true that appellant’s stipulation included 

that his conviction in cause number 2002-8051-1 involved family violence. And 

appellant’s stipulation means he may not now challenge the sufficiency of the evidence 

for that element of the offense. See Martin, 200 S.W.3d at 640; Bryant, 187 S.W.3d at 

400; see also Sanchez v. State, No. 13-15-00223-CR, 2016 WL 872535, at *2 (Tex. 

App.—Corpus Christi Feb. 18, 2016, no pet.) (mem. op., not designated for publication). 

We overrule appellant’s first issue.

B. Jury Charge Error 

Appellant argues in his second issue that he suffered egregious harm from an error 

in the jury charge.

1. Applicable Law

Our first task when analyzing a jury-charge issue is to determine whether error 

exists. Phillips v. State, 463 S.W.3d 59, 64 (Tex. Crim. App. 2015). A jury charge is 

fundamentally defective if it does not set out all of the essential elements of the charged 

offense. Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013). If we find error,

we then perform a harm analysis. Phillips, 463 S.W.3d at 64–65. Preservation of error 
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does not become an issue until the second step of the analysis, where it determines the 

degree of harm that requires reversal. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. 

App. 2013). 

2. Analysis

The jury charge informed the jury of the enhancement offense and that “[t]o this 

enhancement offense the defendant has plead [sic] Guilty.” However, the charge did not

set out that a previous conviction involving family violence was an essential element of 

the charged offense. Appellant argues that this omission was error because a jury 

charge must include each essential element of the offense.1 The State responds that 

there is no error in the charge because appellant stipulated to that element of the offense.

The trial court must give the jury a written charge setting forth the law applicable 

to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2015 R.S.); 

Celis, 416 S.W.3d at 423. This requirement applies to jurisdictional elements such as 

prior convictions. Martin, 200 S.W.3d at 639. Thus, when a defendant stipulates to a 

jurisdictional prior conviction, the charge must instruct the jury regarding “the existence 

and legal effect of the defendant’s stipulation.” Id. at 641. However, the Court in Martin 

did not hold that the stipulated element must be set out in the charge as an element the 

State must prove, but reaffirmed that a stipulation to an essential element “obviates the 

need for evidentiary proof of that element.” See id.; see also Bryant, 187 S.W.3d at 400 

(observing that a stipulated fact may “be taken for granted; so that the one party need 

 

1 Appellant also argues that the charge was erroneous because it stated he pled guilty to the 

previous offense when he actually did not admit it involved family violence. We reject appellant’s argument 

because we have already concluded that his stipulation included that his previous conviction in cause 

number 2002-8051-1 involved family violence.
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offer no evidence to prove it, and the other is not allowed to disprove it”). Appellant does 

not argue the jury was not properly informed of the legal effect of the stipulation, and we 

have found no case law requiring that the charge do more. Based on Bryant and Martin, 

we hold that the charge was not erroneous. See Martin, 200 S.W.3d at 641; see also 

Bryant, 187 S.W.3d at 400. We overrule appellant’s second issue.

C. Ineffective Assistance

Appellant argues in his third issue that his trial counsel was ineffective for failing 

to object to error in the jury charge and to improper argument by the State.

1. Standard of Review and Applicable Law

We evaluate claims that trial counsel was ineffective under the standard articulated 

by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 

(1984). Reversal under Strickland requires a defendant to show both (1) that his counsel 

performed deficiently and (2) that the deficient performance prejudiced the defendant’s 

case. Id.; see Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting 

the Strickland standard).

A defendant establishes the deficient-performance prong by showing that the 

quality of his counsel’s professional assistance fell below an objective standard of 

reasonableness. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). We 

evaluate the quality of trial counsel’s assistance by reference to the “competence 

demanded of attorneys in criminal cases as reflected by prevailing professional norms.” 

Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013). As part of this evaluation, 

we indulge a strong presumption that counsel’s conduct was professionally reasonable 

and the result of sound trial strategy. Id. at 307–08.
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A defendant establishes the prejudice prong of Strickland by showing that there is 

a reasonable probability that the outcome of the trial would have been different but for 

trial counsel’s errors. Ex parte Napper, 322 S.W.3d 202, 248 (Tex. Crim. App. 2010). 

A reasonable probability is one that is sufficient to undermine confidence in the outcome. 

Id. “The result of a proceeding can be rendered unreliable, and hence the proceeding 

itself unfair, even if the errors of counsel cannot be shown by a preponderance of the 

evidence to have determined the outcome.” Strickland, 466 U.S. at 694. The “ultimate 

focus” of the prejudice inquiry is “on the fundamental fairness of the proceeding whose 

result is being challenged.” Ex parte Saenz, No. WR-80,945-01, ___ S.W.3d ___, ___, 

2016 WL 1359214, at **5–6 (Tex. Crim. App. Apr. 6, 2016) (quoting Strickland, 466 U.S. 

at 696).

An ineffective-assistance claim “must be firmly founded in the record and the 

record must affirmatively demonstrate the meritorious nature of the claim.” Menefield v. 

State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (internal quotation marks omitted). 

For this reason, direct appeal is usually an inadequate vehicle for raising an ineffectiveassistance claim because the record is frequently undeveloped. Id. at 592–93. This is 

true for the deficient-performance prong because trial counsel usually must be afforded 

an opportunity to explain her challenged actions before a court concludes that her

performance was deficient. Id. at 593. If trial counsel has not had an opportunity to 

explain, we will not find deficient performance unless the conduct “was so outrageous 

that no competent attorney would have engaged in it.” Id.; Goodspeed v. State, 187 

S.W.3d 390, 392 (Tex. Crim. App. 2005).
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2. Analysis

Appellant argues that his trial counsel performed deficiently because she did not 

object to (1) the alleged jury charge error we discussed above and (2) the State’s 

assertion in closing argument that State’s Exhibit 1 showed that appellant was “convicted 

of a prior assault family violence.” The State replies that the issue is without merit 

because the record is silent regarding the strategy of appellant’s trial counsel.

Appellant’s trial counsel has not had an opportunity to explain her trial strategy,

and we may not find deficient performance unless her challenged conduct “was so 

outrageous that no competent attorney would have engaged in it.” Menefield, 363 

S.W.3d at 592. Appellant argues there can be no possible reasonable trial strategy in 

failing to object to the omission in the jury charge and the State’s argument regarding the 

stipulation. We disagree because we have already held that appellant stipulated both to 

his prior conviction and that it involved family violence. A decision not to make either 

objection is fully consistent with that stipulation. 

To the extent that appellant argues it was deficient performance for his counsel to 

permit him to stipulate to that element at all, we disagree because the potential benefits

of stipulating to a prior conviction are well recognized. A stipulation to a prior conviction

reduces the danger of unfair prejudice to the defendant by preventing the State from 

introducing otherwise admissible evidence of that conviction. See Martin, 200 S.W.3d 

at 638; Tamez v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2000). Pursuing the 

benefits of a stipulation could have been part of a reasonable trial strategy, and with a 

silent record we must presume that appellant’s counsel was pursuing such a strategy. 

See Ex parte Saenz, ___ S.W.3d at ___, 2016 WL 1359214, at *6 (observing that 
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appellate courts “commonly will assume a strategic motivation if any can possibly be 

imagined” when evaluating whether trial counsel’s performance was deficient). We 

conclude that appellant has not overcome the strong presumption that his counsel’s 

actions were part of a reasonable trial strategy.

Having concluded that appellant did not meet the deficient-performance prong of 

Strickland, we need not address the prejudice prong. See 466 U.S. at 697; Cox v. State, 

389 S.W.3d 817, 819 (Tex. Crim. App. 2012). We overrule appellant’s third issue.

III. MODIFICATION

Our review of the record has revealed two incorrect portions of the judgment of 

conviction. First, the judgment recites that the jury assessed punishment but the record 

reflects that appellant elected for the trial court to do so. Second, the judgment recites 

that appellant pled true to the enhancement paragraph2 when he actually stipulated to a 

copy of the judgment of conviction in that case. Appellate courts have the authority to 

modify the judgment to make it speak the truth if the proper information to do so is 

available from any source. See TEX. R. APP. P. 43.2(b) (authorizing appellate courts to 

modify the judgment and affirm as modified); French v. State, 830 S.W.2d 607, 609 (Tex. 

Crim. App. 1992) (en banc). We modify the judgment to reflect that sentence was 

imposed by the trial court and that appellant did not enter a plea to the first enhancement 

paragraph.

 

2 The enhancement paragraph we refer to here elevated the sentencing range for the offense and 

is distinct from the jurisdictional allegation of a prior conviction that we addressed under appellant’s first 

issue. See TEX. PENAL CODE ANN. § 12.42(a) (West, Westlaw through 2015 R.S.).
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IV. CONCLUSION

We affirm the trial court’s judgment as modified.

NORA L. LONGORIA,

Justice

Do not publish.

TEX. R. APP. P. 47.2 (b).

Delivered and filed the

2nd day of September, 2016.