### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 277 -CR

Ra ul V az que z , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 299TH JUDICIAL DISTRICT NO. D-1- DC-07 -20 4787 , HO NORAB LE CHARLES F . BAI RD , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ur y fo un d a pp e lla nt R a ul V a zqu e z g uil ty

of c a us ingbo dil y

inj ur y to a fa mil y member, subse quent offe nse. See Tex. P enal Code A nn. § 22.01(a) (1), ( b)(2) (West Supp. 2008). The c ourt assesse d his punishment at imprisonm ent for ten y ear s and a $5000 fine, but suspende d imposit ion of sentenc e and place d appellant on community supervision. I n a single issue, appellant contends th at hi s trial counsel re ndere d ineffe ctive assistanc e. We over rule this contention and aff irm the judg ment of convic tion.

To preva il on a claim of inef fec tive assistanc e of c ounsel, an a ppellant must show that

c ouns e l ma de su c h se ri ou s e rr or s that he wa s no t f un c tio nin g e ff

e c tiv e ly a s c ouns e l and

that th e se
e rr or s p re jud ic e d th e a

pp e lla nt’ s d e fe ns e to s uch a deg re e that he wa s d e pr ive d o f a fa ir tr ia l. Strickland v. W

ashington , 466 U.S. 668, 687 (1984); He rn an de z v . S tate , 988 S.W .2d 770, 771-72 (Tex. Crim. App. 1999). I n revie wing a cla im of ineffe ctive assistan ce, we must indulge a strongThis case was tried on the assumption, shared by the trial cour

t and b o t h p ar t i es , that the 1 previous fa

mily violence a ssault conviction was a jurisdictional element that had to be pr oved by the State at the guilt-innocence stag e of the trial. At least one c o u rt o f appea ls has so held. Se e Sh e pp ar d v . S tate , 5 S.W .3d 338, 340 (Tex. App.—Texarkana 1999, no pet.). Another c ourt of appea ls has held, t o the contra ry , that the pre vious family assault conviction is not jurisdictional, but is me rely a sente nce e nhance ment. Se e Sta te v . Ca gle , 77 S.W .3d 344, 346 n.2 (Tex. App.—Houston [14t h Dist.] 2002, pet. re f’d)

. For the purpose of

this opini on, we wi l l as s u me that the pre vious c on vic tio n w a s juri sd ic tio na l. 2 presumption that counsel’s c onduct fe ll within the wide rang e of re asonable profe ssional assistance. J ac k so n v . S tate , 877 S.W .2d 768, 771 (Tex. Crim. App. 1994). To over come this presumption, any

a lle g a tio n o f i ne ff

e c tiv e ne ss m

us t be fi rm ly

fo un de d in

the re c or d, and

the re c or d mus t a ff

ir mativ e ly demonstrate the alleg ed inef fec tiveness. Ma lle tt v . S

tate , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001). Appellant asse rts that his trial attorney was inef fec tive with reg ard to his handling of

a pp e lla nt’ s p re vio us c on vic tio n f or fa mil y vio le nc e a ssa

ult . T he pe na l c od e pr ov ide s th a t a bo dil y injury assault, which is ordinar ily a cla ss A mi s d em ea n o r, i s a third deg ree felony if the per son assaulted is a me mber of the defe ndant’s fa mily and the de fenda

nt has a pre vious conviction for assaulting a fa

mily member. Tex. Pena l Code Ann. § 22.01(b)( 2). Relying on opinions ar ising out of prose cutions for fe lony driving while i n t o x i ca t ed, appellant argues that his lawy er should have offe re d t o s t i p u l ate to the pr evious conviction in order to prec lude the State fr om introducing evidenc e of that conviction at the g uilt-innocence stag e. Se e He rn an de z v . S tate , 109 S.W .3d 491, 49 3 (T e x. Cr im. Ap p. 20 03 ); Ro ble s v . S tate , 8 5 S. W.3 d 2 11 , 2 13 -1 4 ( Te x. Cr im. Ap p. 20 02 ); Tamez

v . Stat e , 11 S .W. 3d

19 8, 20 2 ( Te x. Cr im. Ap p. 20 00 ). Al te rn a tiv e ly , a pp e lla nt a rgue s th a t hi s attorney should have asked for a limit ing instruction when evidenc e of the conviction was a dmitted at the g uilt-innocence stag e. Se e Ra nk in v . S tate , 974 S.W .2d 707, 713 (Tex. Crim. App. 1996). 1The date allege d in the i ndictment was in fact the date appellant’ s probation had be en re voked 2 in the previous ca

use. 3 Th e ind ic tme nt a lle ged

tha t on Au g us t 13 , 2 00 7, a

pp e lla nt c a us e d b od ily

inj ur y to Noemi Vazquez, a member of hi s family , by pushing he r with his hand, and that on July 27, 2006, appellant ha d been c onvicted of f amily violence a ssault in cause numbe r 628383 in the County Court at L aw No. 4 of

Travis County . On the first da y of trial, the State moved to amend the indictment to chang e the date of the pr evious conviction to September 25, 2003. Appellant objected to the 2 motion, and the State later w ithdrew it. Counsel was then a sked if he w as g oing to stipulate to the pr e vio us c on vic tio n. Couns e l re pli e d, “ I wo uld thi nk , Your Ho no r, g ive n th e ind ic tme nt a s it re a ds , we p r o b a b ly w o u ld n o t s ti p u late a t th is p o in t. I w o u ld a s k th a t th e St a te p r o v e it u p . ” D u r in g the same discussion, the c o urt instructed the pr osecutors that they wer e not to use the pre vious conviction to argue “c hara cter confor mity .” During t h e guilt-innocenc e stag e, the Septembe r 25, 2003, judg ment of convic tion in cause number 628383 was int roduce d in evidenc e after a fing erpr int comparison established that appellant wa s t h e per son convicted in that c ause. I ntroduce d with the judgme nt was the J u l y 27, 2006, order

revokingprobation. At def ense c ounsel’s re quest, the re vocation orde r wa s reda c te d to d e le te th e g r o un d s f

o r r e v o c a ti o n . D u r in g f

in a l a r g u me n ts to th e ju

r y , th e p r o s e c u tors explained the discrepa

ncy betwee n the pleadingand the pr oof re g ardingthe date of the pre vious conviction and ur g ed that it was irr eleva nt to appellant’s guilt. Defense counse l argue d, to the contra ry , that “they made a mistake a nd they are trying to c lean up their mistake by

throwing in that date a nd telling you, y ou know what, July 27th, 2006, is okay .” Co u n s el u rge d t h at the State had4

fail e d to p r o v e th e in d ic tm e n t’ s a ll e g a ti o n s b e y o n d a r e a s o n a b le d o u b t. I n it s c h ar g e , the cour t authorized appe llant’s conviction for the lesser included offe nse of misdemea nor assa ult if the jury believed that the State had fa iled to prove the pr evious family violence c onviction. I t is clear f

rom the rec ord that defe nse counsel’s f ailure to stipulate to the pre vious family violence c onviction was a c alcu l at ed t ri al strateg y . A stipulation would have re lieved the State of its burd e n o f p ro vin g the pr e vio us c on vic tio n, and the de fe ns e wo uld

ha ve be e n una

ble to argue in opposition to t he stipulation. Se e Ma rti n v . S tate , 2 00 S.W. 3d 63 5, 64 0 ( Te x. Cr im. Ap p . 2 0 0 6 ). By

re qu i ri n g t h e S t at e t o p ro v e i t s al l ega t i o n , co u n s el re s erv edt h e r i gh tt o ch al l en ge the suffic iency

of that proof and to ar g ue that appe llant should be acquitted of the char g ed off ense. A stipulation would not have preve nted t he jury from learning about t he previous conviction at the g uilt-innocence stag e. The State would still have be en per mitted to read the full indictment to the jury , incl u ding the alleg ation reg ardingthe pre vious conviction, and the jury char g e would have

re fe rr ed t o the def

endant’ s stipulation and its leg al ef fec t. Se e id

. a t 6 4 0

- 4 1

. A s i t w a s , the on ly

s i gn i fi ca n t facts reg ardingthe pre vious conviction that the jury would not have known ha d the conviction bee n stipulated were that appellant h ad received pr obation and that the pr obation had been r evoked ( althoug h the jury did not learn why

). Appellant has not d em o n s t ra t edt h at h i s t ri al co u n s el ’s s t ra t egy re gar d i n g t h e previous conviction was outside the broad rang e of rea sonable effe ctive assist ance . Moreove r, appe llant has not shown that the outcome of t h e t ri al wo u ld have be en diffe rent ha d counsel c hosen a diff ere nt strateg y , or had c ounsel reque sted a limiting instruction.5 The issue is over

ruled, a nd the judg ment of convic tion is affirmed.

__________________________________________ J an P. Patterson, J ustice Be fore J ustices Patterson, Waldrop and H enson Affir med Filed: January

27, 2009 Do No t Pu

bli sh