Opinion
No. 05-19-00021-CR
08-03-2020
LUIS JOSE HERRERA, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1230982-W
MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Evans
Opinion by Justice Molberg
Following appellant Luis Jose Herrera's open plea of guilty to aggravated robbery with a deadly weapon, the trial court heard punishment evidence and sentenced him to twenty-five years' imprisonment for a May 2012 event at the home of a young woman he was dating. In his sole issue on appeal, Herrera argues he received ineffective assistance of counsel and asks us to reverse and remand for a new trial. In a cross-issue, the State asks us to modify the judgment to include a finding of family violence under Article 42.013 of the Texas Code of Criminal Procedure. We affirm the judgment as modified in this memorandum opinion.
BACKGROUND
Indictment
Herrera was indicted for aggravated robbery regarding an event in May 2012 at the home of Bianca, a young woman with whom Herrera had a relationship. The indictment alleged:
Because the full names of the victim and the various witnesses are not critical to our purposes here, we refer to them only by their first names in this memorandum opinion.
Defendant, on or about the 18th day of May A.D., 2012 . . . did then and there intentionally and knowingly, while in the course of committing theft of property and with intent to obtain or maintain control of said property, cause bodily injury to another, [BIANCA], hereinafter called complainant, by STRIKING COMPLAINANT WITH A HAND AND HANDS AND BY STABBING COMPLAINANT WITH A KNIFE AND BY STRIKING COMPLAINANT WITH A GOLF CLUB, and the defendant used and exhibited a deadly weapon, to-wit: KNIFE AND GOLF CLUB, against the peace and dignity of the State.
Open Plea Hearing and Punishment Testimony
In 2018, Herrera pleaded guilty to the charge in an open plea hearing. During the hearing, he agreed he understood the papers he signed, understood he had a right to, but did not want, a jury trial, and had reviewed and understood the trial court certification of his right to appeal.
The plea agreement he signed included language stating "affirmative finding of deadly weapon" and "affirmative finding of family violence" with two boxes checked "yes" immediately thereafter. The plea agreement also included an admission and judicial confession that he committed the offense of aggravated robbery exactly as alleged in the indictment, and it stated the punishment range was 5-99 years or life and an optional fine not to exceed $10,000.
The plea agreement also stated:
If the punishment assessed by the Court is not greater than that which you have plea-bargained, you may not appeal on any matter in the case unless the Court grants permission for the appeal or the matters appealed were raised by written motion filed and ruled on before the plea. If you enter a plea of guilty or nolo contendere and there is no plea bargain, the court may assess your punishment anywhere within the range allowed by law.
The court took judicial notice of Herrera's signed written voluntary judicial confession and stipulation of evidence, and in that document, as he had done in the signed plea agreement, Herrera judicially confessed that he committed the offense exactly as alleged in the indictment.
The court then heard testimony from several witnesses regarding punishment. The State called Bianca, Bianca's mother, and two law enforcement officers. Both officers testified about an August 2013 event which led to Herrera's imprisonment from approximately 2013 to 2015.
According to Herrera's counsel during the motion for new trial hearing, after the events that led to the charge in this case, Herrera was sentenced to prison in 2013 for assaulting a public servant, attempted possession of a peace officer's weapon, and evading arrest.
Herrera's trial counsel, Abe Factor, cross-examined Bianca and her mother regarding their lack of contact or minimal contact with Herrera or his family in the years since May 2012 and their knowledge he was in prison for some of that period.
Factor also cross-examined one of the law enforcement officers regarding the August 2013 event and agreed Herrera did not express hostility towards the officer and did not make any attempt to attack the officer verbally or physically after making an initial attempt to escape.
After the State rested, Factor called eight witnesses to testify on Herrera's behalf, including Herrera's father and mother, one of Herrera's former girlfriends, two members of Herrera's church, Herrera's younger brother Marvin, Dr. Stephen Karten, and Herrera. Their testimony is summarized below.
Testimony by Herrera's Family Members
Herrera's father testified that, until about a month before the hearing, Herrera had been living with him since he got out of prison for the August 2013 event. Herrera was placed on parole to his house, and since Herrera had been released, "he dedicated himself to working and helping us." Herrera's father testified Herrera had been "avoiding alcohol and drugs," "attending church," and avoiding the type of people he would want his son to avoid. Herrera "was home at night with him and his family," and "has maintained very close ties with" them. The family does "practically all of their activities together." Herrera had been working with the family doing electrical work in the construction business, where they generally work forty hours a week, with workdays starting at seven in the morning and ending around four or four-thirty in the afternoon.
The prosecutor conducted a short cross-examination of Herrera's father, and Factor conducted a brief re-direct examination. The State did not re-cross.
Herrera's mother testified Herrera is one of seven children and that they all live together. Like Herrera's father, she testified Herrera goes to work every day with the family and that the family does all of their social activities together. She has "seen a lot of changes" in Herrera's personality since he got out of prison, and he has "completely avoided" people that were not good influences on him. She has spoken to Herrera about what happened with Bianca, and "he repents for what has happened," which "motivated him to go to the church." Since he got out of prison, Herrera has gone to church every Friday and Sunday and to a Bible study group in their home every Saturday. Herrera has not tried to blame what happened with Bianca on anybody but himself.
The prosecutor cross-examined Herrera's mother, focusing mostly on her interactions and activities with Herrera on the day of the May 2012 event and her limited interactions with Bianca's family afterwards. Factor conducted a brief re-direct, and she agreed Herrera "hasn't tried to blame it on anybody but himself." The State did not re-cross.
Herrera's brother Marvin testified that since their father became disabled, he and Herrera have become the leaders in their family. Since Herrera got out of prison, "he changed." Herrera "works every Saturday and Sunday," "is always there first," and does not miss work unless he has to do something for court. Herrera is "not engaged in substance abuse," and is not "hanging out with people other than his family." The family is close, and since he and Herrera are always together and work together, he would know if Herrera was engaging in drugs or alcohol. Marvin stated Herrera attends church a lot more than he does, and Herrera goes because "he wants to do better for himself."
After Factor's questioning, the prosecutor asked Marvin no questions, but the trial judge did, including what Herrera was like before he went to prison. Marvin said Herrera was "just like any teenager" and "want[ed] to be out with friends," but said he does not "remember anything about him back then." Following that questioning, Factor obtained permission to ask follow-up questions, which the court allowed, and Marvin testified he was aware Herrera was doing drugs back then but he was not doing so now.
Testimony by Herrera's Former Girlfriend
Factor also called one of Herrera's former girlfriends, Daisy. She and Herrera had a romantic relationship for about a year and one-half, which ended about a year before her testimony. Herrera never showed any aggressive signs towards her. The prosecutor did not cross-examine her.
Testimony by Members of Herrera's Church
Factor called two women from Herrera's church, Kelly and Yvonne.
Kelly and her husband were mentors for Herrera and were in charge of the Bible study done at his family's house. They would see Herrera when they would go to church or to the house. She has known Herrera for about two years and found him to be "a very respectful person" who "very much appears to be sincere in his desire to study the lesson." She agreed she had heard the prior testimony in the hearing and said she has not seen anything that makes her think he resembles the person from 2012. She has been around people with substance abuse issues, and it is her impression he is "not having such issues." It was also her impression he "is close to his family" and "is trying to get connected to God."
Yvonne also knows Herrera through church. He attends more than she does. She described him as "more of a quiet person" and said "he's very family oriented" and "very responsible" with his family. He seems to be sincere in his attendance and in his beliefs, and she has known him for several years. Like Kelly, she agreed she has not seen anything to suggest that Herrera resembles the person she heard testimony about from 2012. The prosecutor did not cross-examine Kelly or Yvonne.
Testimony by Expert, Dr. Stephen Karten
Factor then called Dr. Stephen Karten, Ph.D., a practicing psychologist. Dr. Karten testified he has prior experience as a Chief Psychologist and Chief of Program Review for Psychology Services in the Federal Bureau of Prisons. He testified he "regularly interview[s] people who are in the criminal justice system" and had interviewed Herrera. He agreed Factor had made him aware of the facts of the offense in the case.
Dr. Karten explained he saw Herrera at jail, where he met with him for about three hours and administered an intelligence test and other testing which included responses identical to most of the things said in an earlier domestic violence risk evaluation conducted by a third party. By reading the offense facts and talking with Herrera, he believed Herrera "has a number of variables that predict a higher chance of . . . intimate partner violence" including "antisocial attitude" and "the feeling that he's been wronged and can't trust people."
Dr. Karten testified that at the time Herrera did the crime, Herrera "had some severe problems" and "still does," including "mistrust of others." He also referred to and read from his report and noted that during his interview, Herrera reported "he was sexually abused and that nobody ever knew that." He stated Herrera "has the type of personality style that bottles everything up and then he explodes. He has been known to have a temper problem." He also testified it is "likely that [Herrera] is chronically hypersensitive and overly responsive to others," "seems to feel he's getting a raw deal from life," "blames others for his problems," "exhibits some suspicious behavior," and "seems to be hostile and [have] resentment towards others." He explained "all of those things so far are very consistent with what [he] read in the domestic violence report."
Dr. Karten's report is not in the record and was not admitted into evidence in the hearing. Based on the hearing transcript, it appears Dr. Karten read from his report at certain times during his testimony.
The record does not include any such report, so it is unclear what Dr. Karten read or was referring to.
However, Dr. Karten went on to testify about "some of the things that don't fit with the notion of a higher chance of inter partner violence," including that Herrera "has gone without doing that except this one time that we know of. It's not a pattern." Further, "[i]n this particular incident, according to [Herrera] . . . [Bianca] wanted more connection to him than he was willing to put forth and that's what started the argument." Dr. Karten explained "one of the things we know about him is that, if he begins to feel rejected, he's going to act out. So . . . I can understand what happened back then, five years ago."
He also explained it was "a good sign" Herrera "has gone to prison and spent 20 months and successfully completed his parole." He also explained Herrera "has had time to mature" and "has a pretty high IQ which makes him unusual . . . among inmates in Texas," stating, "[h]is IQ came out to be a 116, which is in the high average range."
In Dr. Karten's professional opinion, based on his "experience working in prisons and after interviewing" Herrera, given "his problem" of "learning how to get along in intimate relationships without reacting with temper, I don't think that prison is going to do him any good." He stated Herrera "absolutely" needs counseling and he "totally agree[s] with the suggestions made in the domestic violence risk assessment." When asked whether he thought Herrera would be responsive, he stated, "I do. I would give him a 70 percent chance based on everything we have seen so far." When asked if it would be fair to say Herrera "has attained considerable maturity since 2012," he stated:
A. Well, and I don't want to give the impression that I think this man doesn't have any problems or that he hasn't been dangerous in the past, he hurt that lady very badly. However, since that time, things have changed and he has matured. 17 to 23 is a big difference. We know that the brain does not fully mature until 25, 26.
Q. And behaviorally at least from what you have seen?
A. Correct.
On cross-examination, after discussing his general experience, Dr. Karten explained his "job was to get into [Herrera's] mind and figure out why he did do what he did and what's the chances of him doing it again." The prosecutor then confirmed various details Herrera had reported to Dr. Karten about his upbringing, including he left school in the eleventh grade because he "couldn't get along there," "did not fit in," and "said he was bored." He agreed Herrera's father became disabled, causing a lot of stress, but Dr. Karten was not aware of behavioral problems in the family. Dr. Karten agreed his report stated Herrera "seems to feel he is getting a raw deal from life and he blames others for his problems," and he agreed Herrera "still displays an antisocial attitude and feels wronged."
On re-direct examination, Factor asked Dr. Karten what he has seen in Herrera's "willingness to accept responsibility," and Dr. Karten explained "that is another reason why this is an unusual case . . . . Plus, he's the age of 23 and a little psychological education goes a long way. What I find is most of the time people are just ignorant about how their emotions work, especially young boys and especially Latinos." Dr. Karten stated he thinks Herrera "can be helped" and agreed there were occasions when he told courts he didn't think people could be.
Herrera's Testimony
After Dr. Karten's testimony, Factor asked the court for a recess, which was granted. When the hearing resumed, Factor called Herrera to the stand. Herrera agreed Factor told him if he chose not to testify, the prosecutor could not mention it, and the judge could not consider it. He also agreed Factor told him if he did testify, the district attorney could ask him questions, including leading questions. Herrera said he wanted to testify.
On direct examination, Herrera testified he is not blaming his crime on anybody else or on drugs and has always admitted his guilt. He testified he was "locked up for almost two years," got out of prison in 2015, and has been home working with his family until about two months before the hearing. He said he has benefitted from going to church. He "would like to make restitution" but has "not been able to" and said Factor told him and his family "not to have anything to do with Bianca's family." He stated he is "not perfect," does not think this was anyone else's fault, and agreed his conduct was not an accident.
The prosecutor cross-examined Herrera, focusing mostly on the May 2012 event. Herrera stated he was seventeen at the time of the incident and was younger than Bianca. He testified he went to her house, they got intimate, and they had an argument. He and Bianca were arguing about their relationship, were "supposedly going to get more serious and move in together," and were arguing about money. They were not arguing because she would not give him any money; instead, they were arguing because "she wanted to get more serious and move in," and he told her they "both needed to put in money."
Herrera got angry when they started arguing and Bianca started putting her hands in front of his face when she was talking. She never touched, hit, slapped, or pushed him. He choked her with both hands, and choking her was "the first thing" he did.
He did not remember the full order of things that happened but testified he also stabbed her with a kitchen knife when she was on the ground after he had beaten her. He did not remember whether Bianca was passed out, but she was not attacking him. He punched her in the face and hit her with a golf club. Herrera "had to go to different rooms to get the items to beat her and stab her with."
After the assault, Herrera walked around the house and put some belongings in his backpack, including her brother's Xbox that he had to unplug, some hats from her sister's room, and a camcorder.
Herrera acknowledged "doing drugs," but the hardest drug he was doing was "Xanax, smoking weed, and drinking a little alcohol." He was not doing cocaine, PCP, meth, or heroin.
When the prosecutor asked why he stabbed Bianca, why he kept hitting her if she was already passed out, and why he took all of those things after he beat her, Herrera testified, "I wouldn't be able to tell you."
The prosecutor asked him several times and in several ways what insights he had into why these things had happened. Herrera said he had tried to think about this while in prison and since then, including with Dr. Karten, but he still had "no idea" and "no insight whatsoever" into why he did the things he did.
Following the cross-examination, Factor conducted a re-direct examination. Herrera again agreed he has admitted what he did every time he has been asked about it and agreed he has "never said it was an accident."
In contrast to his testimony during cross-examination, Herrera said he "has developed some insight about how this happened," and has "learned to avoid doing drugs" because it alters his judgment. While he does not blame the friends he had then, those friends were doing drugs. He had no behavior issues in jail or in prison, understands he needs some help, and has never turned down or been resistant to counseling. The State did not re-cross.
Trial Court's Judgment and Certification of Right to Appeal
Factor and the prosecutor both conducted closing argument. Factor argued the person who committed the May 2012 event was not the person Herrera is now, and he pointed out that in 2013, Herrera went to prison, was later released, and has been different since then, staying close to his family, seeking help from the church, and avoiding drugs and alcohol. He argued Herrera accepts responsibility, never suggested this was an accident or anyone else's fault, and this was not part of a pattern. He stated, "We put Dr. Karten on to show you he is not perfect but not beyond—there is such a fundamental difference between 17 year olds and 23 year olds and 17 year olds who have been inside the prison and spent that time." He argued Herrera "has been compliant with the prison authorities and discharged parole," and argued this was "sort of a rare opportunity," stating:
[I]n many cases people accused of violent crime stay in jail until their sentencing, and they don't have a chance to show that they have seen the light of rehabilitation. Well, Mr. Herrera has seen the light of rehabilitation. As Dr. Karten said, he's not perfect, but he's not sliding backwards into the dark place that he was as a 17 year old. We are not blaming drugs, but a 17 year old doing drugs and hanging out with people that do things. He has turned away from that, turn[ed] towards his church so I ask the Court to consider all of that.
At the end of the State's rebuttal, counsel stated, "[W]e ask the Court to give Mr. Herrera a substantial amount of prison time." The court then stated:
THE COURT: What was the plea recommendation?
[STATE'S COUNSEL]: Twenty-five years.
THE COURT: I find you guilty. Punishment is assessed at 25 years in the penitentiary. You will be given credit for your back time.
The court then entered a judgment finding Herrera guilty of aggravated robbery with a deadly weapon under Texas Penal Code § 29.03 and sentenced him to twenty-five years' confinement in state prison and $499 in court costs. The judgment also stated "true" with regard to both a plea and findings on two enhancement paragraphs, although the indictment, plea agreement, and judicial confession included no such information.
The judgment also included the following "special findings" on page two:
The Court FINDS Defendant used or exhibited a deadly weapon, namely, A KNIFE, during the commission of a felony offense or during immediate flight therefrom or was a party to the offense and knew that a deadly weapon would be used or exhibited. TEX. CODE CRIM. PROC. art. 42.12 § 3g.
The judgment did not include a special finding regarding family violence, although the plea agreement Herrera signed stated "affirmative finding of family violence" with a box checked "yes" immediately thereafter.
Along with the judgment, the trial court issued a certification noting this was not a plea-bargain case and that Herrera had the right to appeal.
Motion for New Trial Hearing
Factor filed a motion for new trial and an amended motion for new trial on Herrera's behalf. Herrera then obtained new counsel, who moved to strike Factor's earlier motions for new trial, which the court granted.
His new counsel filed another motion for new trial. The court heard the motion, and Herrera's mother, his brother Henry, and Herrera all testified. Factor did not testify.
Testimony by Herrera's Mother
Herrera's mother testified she paid Factor $12,500 for representation of Herrera. While she could not remember exactly how many times she met with Factor since 2014, she said the family did so "very many times" and would generally go to Factor's office, see him maybe for two or three minutes, and Factor "never let us talk to him." She testified she met with Factor's associate attorney approximately seven times and knew he worked for Factor, but she said they did not discuss the case much with him and "[h]e never knew anything about the case." She said the family would call Factor almost every week and denied talking with Factor or his employees about her testimony in the open plea hearing.
Testimony by Herrera's Brother Henry
Henry, one of Herrera's brothers, testified he went to Factor's office "a lot of times over the years." While he could not say the number of times, he estimated he went "more than five or six times." The most time Factor would spend with him was "like, three minutes." There "would be a lot of people in the waiting area," and Factor "would say he had other clients to look at too."
On some of these visits, Henry had Herrera on the phone with him, and he passed the phone to Factor, who grabbed the phone from him at least once. He said most of the time, Factor would spend "like, 30 seconds" and would then hang up the phone and give it back to him.
Henry said Factor did not discuss court procedures with him and asked him to text him but not to call him. Factor would not call back or make immediate replies to his texts but would respond, although it would take Factor months to answer.
Henry agreed Factor called five or six witnesses at the open plea hearing, including Dr. Karten, who had spoken to Herrera and had done a mental evaluation of Herrera.
Finally, Henry testified the family is not wealthy and could not have "just gotten another $12,500 for another lawyer," but on cross-examination, when asked why the family didn't just fire Factor and hire another lawyer if he was not doing what he was supposed to be doing, he answered, "I can't tell you."
Herrera's Testimony (Direct Examination)
Herrera also testified about Factor in the motion for new trial hearing. Herrera does not believe Factor was "really eager and motivated to help" him in this case but was "basically more interested in getting money." Before hiring Factor, he paid another lawyer "about $10,000" but said counsel "just walked out on" him. He agreed Factor sent in a letter of representation to the court on June 8, 2014. At first, Herrera did not really see Factor at all and really started seeing Factor after Herrera got out of prison in 2015.
From 2015, Herrera met with Factor "maybe five times . . . at his office" and during those visits, they "didn't discuss nothing." Herrera would ask Factor what was going on, and Factor would say "nothing was going on" and would rush him out of his office. Herrera testified Factor never showed him or talked to him about the evidence, never went over the indictment and warrant, intake worksheet, investigator's review notes, offense reports, Bianca's medical records, diagrams, photographs, jail calls, or certain other statements or reports, and never showed him or discussed his interview, photo lineup, cell phone information, or incident report. Herrera did not hear the 9-1-1 call from Bianca's neighbor until the day of the open plea hearing.
Herrera also testified Factor and his employees did not provide him any information about the case during approximately fifteen court appearances between June 2014 and June 2018. Herrera said he had only one face-to-face, in-court conversation with Factor in November 2017, and Factor did not explain his options or explain what he wanted to do with the case at that time. On other court dates, Herrera saw Factor's employees and signed pass slips on those occasions, and although Herrera would ask about the status of the case, Factor's employees would say they didn't know, "ask [Factor]."
Herrera was not aware Factor filed a motion to suppress evidence, a motion for pretrial hearing, a request to appoint an investigator, or a motion for an in-court lineup. No one came to the jail on Factor's behalf indicating they were an investigator hired by Factor or appointed by the court. Herrera does not think Factor did a pre-sentence investigation, and all Factor told Herrera was "some people were going to talk to me about probation." No one from the probation department came to visit Herrera in jail, but did when he was "out in the free world." He never saw the pre-sentence investigation and does know what it determined.
Herrera said Factor did not review any of the discovery with him, and he does not know if there was any exculpatory information that would have been favorable to his defense. Herrera told Factor he believed he had a defense to the charge because he had gotten into arguments with Bianca who stabbed him first when he responded, but Factor did not even talk to him about it or consider or explain to Herrera it might be a good defense.
Herrera testified he did not know whether the case was set for a jury trial at some point in time. The only time Factor came to see Herrera in jail was the day before the open plea. Herrera testified, "[W]e didn't discuss nothing. All he said was, 'Be ready, we're going to open plea tomorrow.'" Factor didn't give Herrera an idea what an open plea was, and Herrera "thought it was to see if he could get probation." He was "not ready for the open plea" and "did not feel comfortable going with one" but "basically just trusted Factor" because he was his lawyer. Herrera does not think Factor helped him or assisted him in any way and does not think he went over the facts and circumstances so he could understand all of the charges against him. Herrera went into court on an open plea "basically blind." Herrera testified Factor never went over the plea papers with him, never discussed he had a right to a jury trial and a right to confront his witnesses, and never discussed the judicial confession with him. Factor just kept telling him "to sign."
Herrera was "shocked" and "surprised" when Dr. Karten got on the stand and had no idea what Dr. Karten was going to testify to. Herrera thought Dr. Karten was supposed to testify on his behalf, but believes he did not do so. Herrera testified he "would have insisted on going to trial" if he had adequate representation.
Herrera's Testimony (Cross-Examination)
Herrera's testimony on cross-examination repeated some of the previous information but also included additional details, including information regarding his guilt. Herrera agreed he pleaded guilty, signed the paperwork saying he was doing so freely, knowingly, and voluntarily, and stood up in front of the judge and said he was pleading guilty and was doing so freely and voluntarily. Herrera agreed he is "not denying anything" about his guilt in this case. He also agreed he "spoke to the detective back in 2012," "admitted everything that happened to that point," and "confessed in this case." He agreed there was a video-recorded confession of his guilt and that during the open plea, he "admitted to everything again."
Herrera did not know the total number of times he met or talked with Factor but testified it was more than five. He met with Factor's associate, Clay Graham, when he would show up to court, and said it would surprise him if Graham said he had talked to him about what an open plea was and about recommendations.
Herrera said Factor never told him anything about how many pretrial motions he filed for him, but he agreed if somebody filed eighteen motions on his behalf, it sounds like they're doing some work for him. Herrera also agreed Factor received all the discovery from the State, subpoenaed at least six witnesses in addition to Dr. Karten, and called most of those people to the stand. For the witnesses he called, Herrera agreed Factor asked them questions and they advocated on his behalf, including by saying Herrera "is a good guy and would do well on probation." He agreed Factor "was the reason they had an opportunity to say that."
Herrera agreed that while Factor did not come in person all the time to pass the case, he sent Graham, a licensed attorney from his office, in his stead. He also agreed he "got set up for a probation presentence investigation" and talked to that person and that Factor or one of his associates would have had to set that up. Finally, Herrera agreed Factor cross-examined the State's witnesses and filed two motions for a new trial to preserve his right to appeal.
Herrera acknowledged meeting with Dr. Karten a couple of days before the open plea. Dr. Karten talked to him about his life and about things he wanted to know to make a recommendation. Although he initially denied Dr. Karten advocated for him when he was on the stand, he agreed Dr. Karten said he didn't think Herrera would do well in prison, "had a good chance for rehabilitation," and "could possibly make it on probation." Herrera agreed Factor called Dr. Karten and brought him in to talk to him. Ultimately, Herrera agreed Dr. Karten advocated for him on the stand.
Herrera testified if he had had proper representation, he would have argued Bianca had tried to stab him first. Nevertheless, he agreed this was something he "never brought up to the police" when he "confessed," never brought up on the stand when he testified in the previous hearing, and "never said anything about self-defense" when the prosecutor asked him why he did what he did to Bianca. He conceded he "never brought up" anything about Bianca striking him with the knife first.
Herrera's Testimony (Re-Direct and Re-Cross)
On re-direct, Herrera testified he "told Factor about the self-defense issue," and "he didn't do anything." He did not know Factor had filed pretrial motions because Factor never told him he did, and as far as he knew, Factor never had any of those hearings. Herrera stated he paid Factor to do the job and did not hire Graham or others, and Factor got a "double-dip" by charging the family for every time other people came to court. He explained Factor came and visited him and told him they were "going to go open plea." Factor told Herrera to "get prepared," and all Factor told him was "why don't you just pick a number and give it to me," the number being the number of years he would take "to go to the penitentiary." Finally, Herrera said Dr. Karten's testimony that Herrera "did not trust people, would bottle things up, and would then erupt" did not "sound too beneficial" and Dr. Karten "didn't really do much to help." On re-cross, Herrera said Factor didn't explain what he was talking about when Factor said "to pick a number and give it to me," but he agreed Factor was encouraging him "to try and negotiate a lower sentence."
Trial Court's Ruling
After presentation of those witnesses, Herrera's new counsel rested. Before the State did so, the State requested, and the court agreed, to take judicial notice of the entirety of the clerk's file and that she was the same judge who presided over the open plea in July.
The clerk's record includes at least eighteen pretrial motions, three motions for continuance, at least two motions to reinstate bond, and an original and amended motion for new trial filed by Factor or others in his office during Factor's representation of Herrera. During the motion for new trial hearing, the court also admitted nine exhibits, which consisted of a billing statement from Factor, his letter of representation to the court, five pretrial motions Factor filed, and two receipts listing multiple discovery items Factor received from the State.
After both sides closed, counsel provided arguments, and the court denied the motion. Herrera appeals and urges us to reverse and to remand for a new trial.
DISCUSSION
Alleged Ineffective Assistance of Trial Counsel
In a single issue, Herrera asks us to reverse the judgment on the grounds that Factor provided him constitutionally ineffective assistance of counsel by (1) failing to communicate with Herrera and his family, (2) failing to consult with Herrera and raise self-defense, (3) failing to challenge the sufficiency of the evidence to support a charge of aggravated robbery, and (4) calling Dr. Stephen Karten, who Herrera now describes as a "devastatingly unfavorable witness." We overrule Herrera's issue based on the applicable legal standards and record before us here.
Standard of Review Generally
We review a trial court's denial of a motion for new trial under an abuse of discretion standard and will reverse only if the trial court's decision was clearly erroneous and arbitrary. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013)). Abuse of discretion occurs when, viewing the evidence in the light most favorable to the trial court's decision, no reasonable view of the record could support its ruling. Id. Where, like here, the trial court issued no express findings regarding its decision, we presume the trial court made all findings, express and implied, in favor of the prevailing party, in this case, the State. See id.
Review in Ineffective Assistance of Counsel Claims
A defendant is entitled to reasonably effective assistance of counsel under the Sixth Amendment to the United States Constitution and under section 10 of article I of the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10.
"To prevail on a Sixth Amendment claim alleging ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that his counsel's deficient performance prejudiced him." Andrus v. Tex., 140 S.Ct. 1875, 1881 (2020) (per curiam) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (appellant must prove by a preponderance of the evidence that counsel was ineffective) (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)).
In determining whether or not counsel's representation was deficient, we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance, including the possibility that counsel's actions were strategic. Strickland, 466 U.S. at 689; see also Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We focus on the totality of the representation afforded and not on individual alleged errors. Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010). We consider the adequacy of assistance as viewed at the time of trial, not in hindsight. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). We may not second-guess counsel's strategic decisions, Frangias, 450 S.W.3d at 136, and defense counsel's trial strategy cannot be considered ineffective assistance of counsel simply because another attorney would have used a different strategy, Ex Parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012).
To defeat the presumption of reasonable representation, an allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017); Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). A silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 814. Thus, if the record does not contain affirmative evidence of trial counsel's reasoning or strategy, we normally presume counsel's performance was not deficient. See Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Moreover, "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander, 101 S.W.3d at 111. Where trial counsel is not given an opportunity to explain his actions, counsel should only be found ineffective if counsel's conduct was "'so outrageous that no competent attorney would have engaged in it.'" Id. at 117 (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).
To show prejudice under the second prong of Strickland, an appellant must demonstrate a reasonable probability that the outcome would have differed but for trial counsel's errors. Strickland, 466 U.S. at 694; see also Jackson, 877 S.W.2d at 771. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Jackson, 877 S.W.2d at 771 (quoting Strickland, 466 U.S. at 694). It is not sufficient to show defense counsel's errors "had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693. Rather, to establish prejudice, an appellant must show that counsel's errors were "so serious as to deprive defendant of a fair trial, a trial whose result was reliable." Id. at 687.
Failure to satisfy either prong of the Strickland standard is fatal. Perez, 310 S.W.3d at 893; Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006); Rylander, 101 S.W.3d at 110. Thus, we need not examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697.
In rare cases, an appellant claiming ineffective assistance of counsel is not required to show prejudice; rather, prejudice is presumed and the appellant only is required to show deficient performance." Id. (citing United States v. Cronic, 466 U.S. 648, 658-60 (1984) and Florida v. Nixon, 543 U.S. 175, 190 (2004)). Cronic identified three situations that were so likely to prejudice the accused as to justify a presumption of prejudice, including:
(1) the accused was denied the presence of counsel at a critical stage of trial, (2) counsel entirely failed to subject the prosecution's case to meaningful adversarial testing, or (3) circumstances at trial were such that, although counsel was available to assist the defendant during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.Cronic, 466 U.S. at 659-60). None of the Cronic factors are being argued here, so we conclude Strickland guides us.
Counsel's Alleged Failure to Communicate
In his brief, under "Issue Presented," Herrera states, in part, Factor "failed and refused to confer" with him or his family. In the "summary of the argument" section, Herrera states, in part, Factor's failure to communicate with Herrera or his family constituted "deficient performance" and that this failure, along with others mentioned below, caused him prejudice because without Factor's inadequate representation, he "would not have pleaded guilty, but would have insisted on going to trial."
This is the extent of Herrera's argument on this point, however. In his briefing on the Strickland factors, Herrera fails to even mention this issue, instead addressing only the other alleged failures discussed below.
While the record includes some testimony regarding Factor's performance in this area, Herrera has failed to satisfy either the first or second Strickland prong on this issue. The record is completely silent with regard to whether Factor's performance in this area fell below an objective standard of reasonableness based on prevailing professional norms. See Strickland, 466 U.S. at 688.
Given the "wide range" of reasonable professional assistance and the "strong presumption" we must indulge that counsel's conduct falls within it, see id. at 689, we reject Herrera's implicit argument on this issue.
Failure to Raise Self-Defense or Challenge Evidence on Charge
Herrera also argues Factor failed to raise self-defense and failed to challenge the State's evidence on the commission-of-theft requirement within the aggravated robbery charge. The only self-defense information in the record is in the hearing record on the motion for new trial. Herrera testified he told Factor he believed he "had a defense to the charge" because he had gotten into arguments with Bianca, who "stabbed him first" when he responded. He said Factor did not even talk to him about it or consider or explain to him it might be a good defense. Herrera argues nothing in the record shows Factor reasonably investigated the possibility of raising self-defense and then made the reasonable decision, in consultation with Herrera, that the defense was not viable.
With regard to the aggravated robbery evidence, Herrera argues Factor should have investigated and raised the State's inability to prove the elements of the charge, on the theory that it was only after the assault was concluded that Herrera began committing theft. A theft occurring immediately after an assault will generally support an inference that the assault was intended to facilitate the theft. Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002). Herrera acknowledges this but argues Factor's failure to investigate this issue deprived him of a viable defense because there were no facts existing prior to or during the assault to indicate that theft was Herrera's motive.
As an initial matter, we note Herrera's theories are inconsistent with both the facts and the law. As to the facts, while Herrera now states he would have claimed self-defense, Herrera testified he got angry when he and Bianca started arguing, and although Bianca started putting her hands in front of his face when she was talking, she never touched, hit, slapped, or pushed him, and yet he choked her and stabbed her with a kitchen knife when she was on the ground, after she was "already beat up" and was not attacking him. He also punched her in the face and hit her with a golf club and "had to go to different rooms to get the items to beat her and stab her with." These facts reflect a brutal attack very different from self-defense.
The facts regarding the commission-of-theft element in the aggravated robbery charge are equally unhelpful to Herrera's position. He now claims there is an insufficient connection between the attack and the theft to support the aggravated robbery charge, but Herrera testified after he beat Bianca, he walked around the house and put some of the belongings in his backpack, including her brother's Xbox, some hats from her sister's room, and a camcorder, and he was unable to say why he did so. Herrera also testified that before the attack began, he and Bianca were arguing about money. Bianca testified that, before the attack, Herrera asked her for money and became angry when she said she did not have any. Regardless of any motive Herrera may or may not have had when he first arrived at Bianca's home, these facts point to a direct connection with the attack, when he demanded money from her, became angry when she refused, then attacked her and took several valuable and pawnable or saleable items from her home.
Herrera's argument regarding self-defense is also inconsistent with the law. A person "committing the offense of robbery . . . has no right of self-defense against his intended victim." See Russell v. State, No. 05-17-00124-CR, 2018 WL 525559, at *10 (Tex. App.—Dallas Jan. 24, 2018, pet. ref'd) (mem. op., not designated for publication) (citing Davis v. State, 597 S.W.2d 358, 360 (Tex. Crim. App. 1980)); Dickson v. State, 463 S.W.2d 20, 23 (Tex. Crim. App. 1971); Dillard v. State, 931 S.W.2d 689, 697 (Tex. App.—Dallas 1996, pet. ref'd)). Thus, despite Herrera's arguments otherwise, self-defense was not a viable defense here.
Even if Herrera's arguments were well-rooted in the facts or the law, his arguments fail under Strickland. In Bone, the Court of Criminal Appeals stated:
Under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. From this trial record, one could conclude that there were legitimate and professionally sound reasons for counsel's conduct or one could speculate that there were not. Under our system of justice, the criminal defendant is entitled to an opportunity to explain himself and present evidence on his behalf. His counsel should ordinarily be accorded an opportunity to explain her actions before being condemned as unprofessional and incompetent.77 S.W.3d at 836. As Bone makes clear, the burden to establish there was "no plausible professional reason for a specific act or omission" was Herrera's, see id., and although counsel could have questioned Factor regarding his investigation in the motion for new trial hearing, counsel failed to do so.
On the first Strickland factor, the record is completely silent on whether Factor's investigation of the aggravated robbery charge or a claim of self-defense fell below an objective standard of reasonableness based on prevailing professional norms. Thus, there is no evidence to overcome the "strong presumption" that Factor's performance was reasonable. See Strickland, 466 U.S. at 688-89; Bone, 77 S.W.3d at 836 ("under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission"); Morales v. State, No. 05-18-00761-CR, 2020 WL 57342, at *4 (Tex. App.—Dallas Jan. 6, 2020, no pet. h.) (mem. op., not designated for publication) (rejecting appellant's argument counsel was ineffective because he did not investigate appellant's "mental health problems" when "[n]othing in the record rebuts the presumption of sound trial strategy" in that case).
On the second Strickland factor, Herrera has failed to show what beneficial information any additional investigation or efforts would have uncovered, or how any such information might have led to a lesser punishment, had it been more thoroughly developed. See Bone, 77 S.W.3d at 836-37 (court erred in reversing DWI conviction based on Strickland when nothing in the record would have probably led to a not guilty verdict or a lesser punishment had it been developed more thoroughly); Morrow v. State, 486 S.W.3d 139, 152-53 (Tex. App.—Texarkana 2016, pet. ref'd) (prejudice not shown where trial court assessed sentence of 20 years' imprisonment and $10,000 fine, which court noted was "on the low end of the sentencing range for this violent crime"); Duckworth, 89 S.W.3d 747, 752 (Tex. App.—Dallas 2002, no pet.) (to show prejudice, record should demonstrate what might have led to a lesser punishment had it been developed more thoroughly) (citing Bone, 77 S.W.3d at 836-37); Morales, 2020 WL 57342, at *4 (appellant failed to make required showing of prejudice in open plea case when trial court imposed a mid-range sentence).
On this record, Herrera failed to satisfy either Strickland prong.
The only case Herrera cites in support of his argument, Ex Parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982), pre-dates Strickland and is distinguishable from the facts here. In Ybarra, an associate attorney with no prior trial experience was told the night before trial that he would represent Ybarra the following morning at his murder trial, and this was the first indication he was going to handle the case. Id. at 947. The attorney began preparing for trial with "less than twelve hours to get ready on the facts and the law," and he prepared solely by "studying the Code of Criminal Procedure." Id. The court noted that "the State's evidence [was] entirely circumstantial and suggest[ed] a number of outstanding reasonable hypotheses besides the guilt of the accused." Id. at 952. Following a conviction, Ybarra petitioned the court for a writ of habeas corpus, and under those circumstances, the court granted the writ, determining that counsel's failure to present evidence "mocks our adversary system under the law." Id. at 952-53.
We overrule Herrera's issue regarding Factor's performance on the alleged self-defense claim and the theft-related issues in the aggravated robbery charge.
Counsel's Decision to Call Dr. Karten
Finally, Herrera argues Factor's decision to call Dr. Karten as a witness amounted to ineffective assistance under Strickland, arguing "[t]here is no plausible basis" for doing so. In Herrera's brief, his new counsel states, "No reasonable or plausible trial strategy occurs to this writer that would have justified placing such harmful testimony before the trial court."
It is Herrera's burden to "prove, by a preponderance of the evidence, that there [was], in fact, no plausible professional reason" for Factor to call Dr. Karten as a witness. See Bone, 77 S.W.3d at 836. Strickland's first prong is not satisfied merely because "no plausible reason" occurs to Herrera's new counsel. See Ex Parte Jimenez, 364 S.W.3d at 883; Morales, No. 2020 WL 57342, at *4 ("fact that appellate counsel would have represented [appellant] in a different manner does not render trial counsel ineffective"). Herrera offered no expert testimony or other evidence that Factor's performance was sub-par, and the record is completely silent with regard to whether Factor's performance in this area fell below an objective standard of reasonableness based on prevailing professional norms. See Strickland, 466 U.S. at 688.
While we should not speculate about the reasons Factor might have had in calling Dr. Karten, we do note the record provides some indication why Factor did so, and we cannot conclude based on the record here that the decision was unreasonable or fell below established professional standards. During his closing argument, Factor told the trial court, "We put Dr. Karten on to show you [Herrera] is not perfect but not beyond—there is such a fundamental difference between 17 year olds and 23 year olds and 17 year olds who have been inside the prison and spent that time." He went on to state Herrera "has been compliant with the prison authorities and discharged parole" and argued this was "sort of a rare opportunity" for the court because, in part, "[a]s Dr. Karten said, he's not perfect, but he's not sliding backwards into the dark place that he was as a 17 year old."
Counsel's decision to call witnesses is a strategic choice involving weighing risks and benefits of testimony, which is why a court should ordinarily evaluate an attorney's explanations before concluding counsel was ineffective. Prine v. State, 537 S.W.3d 113, 118 (Tex. Crim. App. 2017). We reject Herrera's argument that there was no plausible basis for Factor's decision to call Dr. Karten based on the record here. Further, because the record contains no indication Factor's performance fell below an objective standard of reasonableness based on prevailing professional norms, see Strickland, 466 U.S. at 688, and because there is no evidence to rebut the "strong presumption" we must indulge that Factor's conduct was reasonable, see id. at 689, we overrule Herrera's issue regarding Dr. Karten's testimony and conclude Herrera failed to satisfy both Strickland prongs. See Morrow, 486 S.W.3d at 152-53 (prejudice not shown where trial court assessed sentence at the low end of sentencing range for violent crime); Morales, 2020 WL 57342, at *4 (no showing of prejudice when trial court imposed a mid-range sentence).
We overrule Herrera's sole issue.
Family Violence Finding Under Article 42.013
In its cross-point, the State asks us to modify the judgment to include a finding of family violence under Article 42.013 of the Texas Code of Criminal Procedure, which states:
In the trial of an offense under Title 5 Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.TEX. CODE CRIM. PROC. art. 42.013.
Title 5 of the penal code includes offenses under Chapter 19 (criminal homicide), Chapter 20 (kidnapping, unlawful restraint, and smuggling of persons), Chapter 20A (trafficking of persons), Chapter 21 (sexual offenses), and Chapter 22 (assaultive offenses).
Here, while the plea agreement included an affirmative finding of family violence, the trial court's judgment contained no such finding. Herrera has not filed a reply brief or responded to the State's cross-point, but he signed the plea agreement including the affirmative finding.
We have the power to modify a judgment to make the record speak the truth when we have the necessary information before us to do so. Coronado v. State, No. 05-16-01001-CR, 2017 WL 6503092, at *8 (Tex. App.—Dallas Dec. 18, 2017, pet. ref'd) (mem. op., not designated for publication) (citing TEX. R. APP. P. 43.2(b)); Bigley v. State, 865 S.W.2d 26, 28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd)).
To determine whether we have the necessary information to modify the judgment as requested, based on the text of Article 42.013, we must first consider whether Herrera's trial was the trial of a Title 5 offense. Aggravated robbery is a crime against property under Title 7 of the penal code, but "the gravamen of robbery offenses, including aggravated robbery, is the defendant's assaultive conduct against each victim." Ex parte Denton, 399 S.W.3d 540, 546 (Tex. Crim. App. 2013) (citing Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010)).
Here, the indictment included allegations of assault, and Herrera's commission of assault was admitted and uncontested. Under these circumstances, we conclude Herrera's trial was the trial of a Title 5 offense for purposes of Article 42.013. See Williams v. State, No. 05-10-00696-CR, 2011 WL 3484807, at *2 (Tex. App.—Dallas Aug. 10, 2011, pet. ref'd) (not designated for publication) (rejecting argument that a family violence finding was not authorized by Article 42.013 when he was tried for burglary, a Title 7 offense, where the indictment included both burglary and assault allegations).
Next, we determine whether we have sufficient information to include an affirmative finding of family violence. Under section 71.004 of the family code, "family violence" includes "dating violence as defined in section 71.0021," which, in turn, includes "an act, other than a defensive measure to protect oneself, by an actor that (1) is committed against a victim . . . with whom the actor has or has had a dating relationship . . . and (2) is intended to result in physical harm, bodily injury, [or] assault," among other things. TEX. FAM. CODE § 71.0021(a). "Dating relationship" means "a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature," the existence of which is determined by considering the length and nature of the relationship and the frequency and type of interaction between the persons involved in it. TEX. FAM. CODE § 71.0021(b).
We have the necessary information before us to modify the judgment to include a family violence finding based on the record here. Bianca testified she and Herrera had been intimate on at least two occasions, including on the day of the offense. Bianca's mother testified she knew Bianca and Herrera had been dating. Herrera testified that on the day in question, he and Bianca had "been intimate," were arguing about their "relationship," "were supposedly going to get more serious and move in together," and "were arguing about money." Herrera admitted his guilt, confessed to the charge as alleged in the indictment, and signed a plea agreement filed with the court that included a line stating "Affirmative finding of family violence" with an "X" in the "YES" box located immediately thereafter.
This uncontested evidence is sufficient to establish "dating violence" under section 71.0021 of the family code, which constitutes "family violence" under section 71.004 of the family code. The trial court should have made an affirmative finding of family violence, and we modify the judgment to reflect one here.
Thus, we sustain the State's cross-point and modify the judgment to add an affirmative finding of family violence under Article 42.013 of the Texas Code of Criminal Procedure. See Coronado, 2017 WL 6503092, at *7 (modifying the trial court's judgment to add a family violence finding in cases where the undisputed testimony established the familial status between an appellant and his wife and reflected appellant hit his sons and daughter on date in question).
Thus, we modify the judgment to include the following language in the "Special Findings" section on the second page of the judgment: "The Court enters an affirmative finding that Defendant's offense involved family violence, as defined by Section 71.004, Family Code."
Additional Modifications to Judgment
While neither party has raised either of these issues, while reviewing the record in this case, we discovered the trial court's judgment includes two other areas that should be modified to correctly reflect the truth. First, in the "terms of plea bargain section," the judgment states, "25 years TDCJ," but judgment was entered upon an open plea. Second, the judgment includes the word "TRUE" in four locations in the "Enhancements" section, but the record does not reflect the State alleged or Herrera pleaded true to any such enhancements.
Thus, in addition to modifying the judgment as reflected in the prior section, we also modify the judgment to (1) replace the phrase "25 years TDCJ" with the word "OPEN" under "Terms of Plea Bargain" on the first page and (2) to replace the word "TRUE" with "N/A" in the four places where it appears regarding "enhancement" on the first page. See Coronado, 2017 WL 6503092, at *8; TEX. R. APP. P. 43.2(b) (court has power to modify a judgment to make the record speak the truth when it has necessary information to do so).
CONCLUSION
For the reasons discussed herein, we overrule Herrera's issue, sustain the State's cross-point, and affirm the judgment with the following modifications:
1. Under "Terms of Plea Bargain" on the first page, the phrase "25 years TDCJ" is deleted and is replaced with the word "OPEN";
2. In the "Enhancements" section on the first page, the word "TRUE" is deleted and is replaced with "N/A" in the four places where it appears; and
3. In the "Special Findings" section on page 2, the following language is added: "The Court enters an affirmative finding that Defendant's offense involved family violence, as defined by Section 71.004, Family Code."
/Ken Molberg/
KEN MOLBERG
JUSTICE 190021f.u05
Do Not Publish
TEX. R. APP. P. 47.2
JUDGMENT
On Appeal from the 363rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1230982-W.
Opinion delivered by Justice Molberg. Justices Reichek and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:
1. Under "Terms of Plea Bargain" on the first page, the phrase "25 years TDCJ" is deleted and is replaced with the word "OPEN";
2. In the "Enhancements" section on the first page, the word "TRUE" is deleted and is replaced with "N/A" in the four places where it appears; and
3. In the "Special Findings" section on page 2, the following language is added: "The Court enters an affirmative finding that Defendant's offense involved family violence, as defined by Section 71.004, Family Code." As REFORMED, the judgment is AFFIRMED. Judgment entered this 3rd day of August, 2020.