GELBER OSMIN HERRERA v. THE STATE OF TEXAS (2012)

OPINION

Opinion By Justice Myers

Appellant Gelber Osmin Herrera entered open pleas of guilty to the offenses of aggravated assault with a deadly weapon ¹ and engaging in organized criminal activity,² and was sentenced to concurrent terms of twelve years in prison.   In several issues, appellant argues he was improperly admonished of the consequences of his pleas and that the evidence is legally insufficient to support the conviction for engaging in organized criminal activity.   We affirm the trial court's judgments.

Background and Procedural History

Appellant was charged by indictment with the felony offenses of aggravated assault with a deadly weapon (05–11–00240–CR) and engaging in organized criminal activity (05–11–00241–CR).  On February 11, 2011, appellant entered open pleas of guilty to both offenses.   The record shows that, in each case, appellant signed a document entitled “Plea Agreement” that contained “Court's Admonitions to Defendant.” ³  In the admonitions portion of the document in the aggravated assault case, appellant was admonished that he was charged with the offense of aggravated assault with a deadly weapon, which is a second-degree felony with a punishment range of two to twenty years' confinement and a fine not to exceed $10,000.   In the other document, appellant was advised he was charged with the offense of engaging in organized criminal activity, which is a first-degree felony with a punishment range of five to ninety-nine years or life imprisonment and a fine not to exceed $10,000.

The admonitions of each document informed appellant that the prosecuting attorney's sentencing recommendations were not binding on the court.   Appellant was advised that if the court rejected any plea bargain made in the case, appellant could withdraw the plea of guilty, but if the punishment assessed by the court was not greater than that for which appellant plea bargained, appellant could not appeal unless the court granted permission or the matters appealed were raised by written motion filed and ruled on by the court.   Appellant was also informed that if he entered a plea of guilty and there was no plea bargain, the court could assess appellant's punishment anywhere within the range allowed by law.   And “[i]f you are not a citizen of the United States, a plea of guilty or nolo contendere may, and under current Federal immigration rules is almost certain to, result in your deportation, removal, exclusion from admission to the United States or denial of naturalization.”   The written admonishments also referred to the additional admonishments to sex offenders in cases involving sexual offenses.

Each plea bargain document also contained “Defendant's Statements and Waivers,” where appellant acknowledged he understood the nature of the accusations made against him, the range of punishment for each offense, and the consequences of a plea of guilty or nolo contendere.   In the signature section of each document, appellant acknowledged that his attorney had explained to him, and he had read and understood, “all the foregoing admonitions and warnings regarding my rights and my plea, and that my statements and waivers are knowingly, freely, and voluntarily made with full understanding of the consequences.”

Appellant signed judicial confessions that tracked the language of each indictment.   In the aggravated assault case, appellant confessed and stipulated that, on April 3, 2010, in Dallas County, Texas, he

did unlawfully then and there intentionally, knowingly and recklessly cause bodily injury to IVAN FLORES, hereinafter called complainant, by SHOOTING COMPLAINANT WITH A FIREARM, and said defendant did use and exhibit a deadly weapon, to-wit:  a FIREARM, during the commission of the assault.

In the engaging in organized criminal activity case, appellant confessed and stipulated that, on April 3, 2010, in Dallas County, Texas, he

did unlawfully then and there intentionally and knowingly and recklessly cause bodily injury to another, namely:  IVAN FLORES, hereinafter called complainant, by SHOOTING COMPLAINANT WITH A FIREARM, A DEADLY WEAPON, and further, Defendant did then and there commit said offense as a member of a criminal street gang.

The judicial confessions and the “Plea Agreements” are signed by appellant, his attorney, the prosecutor, and the presiding judge.

During the plea hearing, appellant was admonished by the court.   The relevant portion of the record reads as follows:

THE COURT:  Have you reviewed the indictment in each case with your attorney?

THE DEFENDANT:  Yes.

THE COURT:  And you understand the nature of these charges pending against you?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  The range of punishment for each of these offenses is contained in the court's admonitions, have you reviewed this document with your attorney in its entirety?   You may step closer if you need to see it.

THE DEFENDANT:  Yeah, I went over it.

THE COURT:  And you understand the full range of punishment available to the court in each case?

THE DEFENDANT:  Yes, sir.

THE COURT:  And how do you intend to plead to each charge, sir?

THE DEFENDANT:  Guilty.

THE COURT:  Are you pleading guilty to each charge because you are guilty and because you have no other reason?

THE DEFENDANT:  I have an open plea.

THE COURT:  Right, right.   I understand you are doing an open plea?

THE DEFENDANT:  It is guilty.

THE COURT:  You are pleading guilty because you are guilty and for no other reason?

THE DEFENDANT:  No other reason, sir.

THE COURT:  Do you understand that you have an absolute right to plead not guilty and take these matters to a jury trial?

THE DEFENDANT:  I do, sir.

THE COURT:  Has anyone forced you or made you any promises or coerced you into entering into either of these pleas?

THE DEFENDANT:  No, Your Honor.

THE COURT:  You are entering into these pleas of guilty because this is the way you wish to handle these cases;  is that correct?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  There is no plea bargain agreement contained in these matters, you are doing what is commonly referred to as an open plea.   Therefore, I must inform you that you do have a right to appeal my decision;  do you understand?

THE DEFENDANT:  Yes, Your Honor.

THE COURT:  Are you a citizen of the United States?

THE DEFENDANT:  Yes, Your Honor.

Both judicial confessions were admitted into evidence at the hearing as State's exhibit one, without objection.

After appellant pleaded guilty, the court sentenced him to twelve years in prison for each of the two charges.   The court ordered the sentences to run concurrently and, in each case, made affirmative findings of a deadly weapon.   This appeal followed.

Discussion

Admonishments

In his only issue in cause 05–11–00240–CR, and his first issue in 05–11–00241–CR, appellant contends the trial court erred because it failed to properly admonish him of the consequences of his pleas of guilty to the charged offenses, as required by article 26.13 of the Texas Code of Criminal Procedure.

Article 26.13(a) of the code of criminal procedure provides that, prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of a number of consequences that will result from the entry of that plea.  Tex.Code Crim. Proc. Ann. art. 26.13(a) (West 2010).   Article 26.13(a) requires the trial court to admonish the defendant, prior to accepting his plea, of (1) the punishment range, (2) the fact that the prosecuting attorney's sentencing recommendation is not binding on the court, (3) the limited right to appeal in cases where the court follows a plea bargain, (4) the possibility of deportation, and (5) the fact that he will have to register as a sex offender if the conviction is for a sexual offense.   See id.  Article 26.13(d) allows the court to make the admonitions “either orally or in writing.”  Id. art. 26.13(d).  Written admonishments require a statement signed by the defendant and his attorney that the defendant “understands the admonitions and is aware of the consequences of his plea.”   Id.

The purpose of the admonishments in article 26.13 is to ensure only a constitutionally valid plea is entered and accepted by the court.   See Carranza v. State, 980 S.W.2d 653, 656 (Tex.Crim.App.1998).   Although not constitutionally required, the admonishments aid the trial court in making the determination that the relinquishment of rights, constitutional or otherwise, by the defendant is both knowing and voluntary.  Id. Substantial compliance by the trial court is sufficient, unless the defendant affirmatively shows he was unaware of the consequences of his plea and was misled or harmed by the admonishments given.  Tex.Code Crim. Proc. Ann. art. 26.13(c).  To substantially comply with article 26.13, the trial court need not advise the defendant of every aspect of law relevant to his case or sentencing, only the direct consequences of entering a guilty plea.  Ruffin v. State, 3 S.W.3d 140,144–45 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd), overruled on other grounds by Mitschke v. State, 129 S.W.3d 130 (Tex.Crim.App.2004);  State v. Vasquez, 889 S.W.2d 588, 590 (Tex.App.—Houston [14th Dist.] 1994, no pet.).   Substantial compliance will be found “where a trial court has undertaken to admonish the defendant, the sentence given was within the range prescribed by law, and the defendant has failed to affirmatively show harm.”   Hughes v. State, 833 S.W.2d 137, 140 (Tex.Crim.App.1992).

In the present cases, the documents contained in the record show the trial court followed article 26.13 and admonished appellant in writing as to all the consequences of his pleas.   Appellant signed statements saying he understood the admonishments and was aware of the consequences of his pleas.   Appellant also acknowledged during the plea hearing that he reviewed with his attorney, and understood, the ranges of punishment “contained in the court's admonitions.”   Furthermore, the trial court's judgments state that it “appeared to the court” appellant “was mentally competent to stand trial, made the plea freely and voluntarily, and was aware of the consequences of this plea.”   Appellate courts indulge every presumption in favor of the regularity of the documents in a trial court.  Breazeale v. State, 683 S.W.2d 446, 451 (Tex.Crim.App.1985).  “This means that the recitations in the records of the trial court, such as a formal judgment, are binding in the absence of direct proof of their falsity.”  Id.

The record, therefore, shows substantial compliance with the statutory admonition requirements.   Appellant has not affirmatively shown he was not aware of the consequences of his pleas or that he was misled or harmed by the trial court's admonishments.   We overrule appellant's sole issue in 05–11–00240–CR and first issue in 05–11–00241–CR.

Sufficiency

In his second issue cause 05–11–00241–CR, appellant argues the evidence at trial is legally insufficient to support a conviction for engaging in organized criminal activity “because other than a plea of guilty entered by appellant, no other evidence was produced during trial to substantiate the offense as charged in the indictment.”

An appellate court reviewing the sufficiency of the evidence supporting a conviction determines whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict.   See Jackson v. Virginia, 443 U.S. 307, 318–19 (1974);  Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).   When, however, a defendant pleads guilty to an offense, the federal and state constitutional sufficiency of the evidence standards do not apply.  McGill v. State, 200 S.W.3d 325, 331 (Tex.App.—Dallas 2006, no pet.);  Davis v. State, No. 05–11–00585–CR, 2012 WL 1130423, at *1 (Tex.App.—Dallas, April 5, 2012, no pet. h.) (not designated for publication);  Hill v. State, No. 05–09–00905–CR, 2010 WL 3769531, at *1 (Tex.App.—Dallas Sept. 29, 2010, pet. ref'd) (mem. op., not designated for publication).

The State is nonetheless bound by statute to support a plea with sufficient evidence.   See Tex.Code Crim. Proc. Ann. art. 1.15.   When reviewing the sufficiency of the evidence to support a guilty plea, the trial court's judgment will be affirmed if the evidence embraces “every essential element of the offense charged.”  McGill, 200 S.W.3d at 330;  see also Menefee v. State, 287 S.W.3d 9, 13 (Tex.Crim.App.2009) (“so long as such a judicial confession covers all the elements of the charged offense, it will suffice to support the guilty plea”).   A judicial confession, standing alone, is sufficient evidence to support a guilty plea and satisfy the requirements of article 1.15.   See Menefee, 287 S.W.3d at 13;  Pitts v. State, 916 S.W.2d 507, 510 (Tex.Crim.App.1996);  Breaux v. State, 16 S.W.3d 854, 856 (Tex.App.—Houston [14th Dist.] 2000, pet. ref'd);  see also Davis, 2012 WL 1130423, at *1;  Hill, 2010 WL 3769531, at *1.

The indictment against appellant in the engaging in organized criminal activity case, 05–11–00241–CR, alleged that on or about April 3, 2010, he

did then and there intentionally and knowingly and recklessly cause bodily injury to another, namely:  IVAN FLORES, hereinafter called complainant, by SHOOTING COMPLAINANT WITH A FIREARM, A DEADLY WEAPON.   And further, the Defendant did then and there commit said offense as a member of a criminal street gang.

A person commits the offense of engaging in organized criminal activity if, “with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of criminal street gang,” he “commits or conspires to commit” one or more of the listed predicate offenses.  Tex. Penal Code Ann. § 71.02(a) (West 2011);  see Nguyen v. State, 1 S.W.3d 694, 695 (Tex.Crim.App.1999).   One of the predicate offenses in section 71.02(a) is aggravated assault.   Id. § 71.02(a)(1).   The terms “combination” and “criminal street gang” are defined by statute.   See id. § 71.01. “Combination” is defined as “three or more persons who collaborate in carrying on criminal activities,” although “participants may not know each other's identity,” “membership in the combination may change from time to time,” and participants “may stand in a wholesaler-retailer or other arm's length relationship in illicit distribution operations.”   Id. at § 71.01(a).   A “criminal street gang” is “three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.”   Id. § 71.01(d).

Appellant contends the evidence is legally insufficient to support the conviction because:

The State wholly failed to provide evidence substantiating either required mental state of this offense because it not only failed to prove the existence of an agreement between Appellant and at least one other person to participate in the underlying offense, the State also failed to show that any over act occurred in pursuance of the agreement performed by at least Appellant and one other individual.

Appellant also argues that, “other than showing that Appellant was involved in a street gang, the State failed to conclusively show the connection between Appellant's involvement in a street gang and the aggravated assault.”

We are not persuaded by appellant's arguments.   Appellant was not charged with conspiring to commit aggravated assault as a member of criminal street gang;  the charge was that he committed the offense as a member of a criminal street gang.   See Ex parte Starnes, 993 S.W.2d 685, 689 (Tex.App.—Houston [14th Dist.] 1999, pet. ref'd) (“with regard to organized criminal activity where a conspiracy is not alleged, such as in this case, the statute essentially provides that a person is guilty of an offense if, with the requisite intent, he commits one or more of the specified crimes”);  see also Bailey v. State, 44 S.W.3d 690, 693–94 (Tex.App.—Houston [14th Dist.] 2001), affirmed, 87 S.W.3d 122 (2002).   Moreover, appellant entered an open plea of guilty to the offense as charged in the indictment.   He signed a judicial confession tracking the language of the indictment that admits he committed the offense “as a member of criminal street gang.”   The judicial confession was admitted into evidence at the plea hearing without objection.   The judicial confession is sufficient to satisfy the requirements of article 1.15 and support the guilty plea.   See Menefee, 287 S.W.3d at 13;  Pitts, 916 S.W.2d at 510;  Breaux, 16 S.W.3d at 856.   Furthermore, we note that Detective Stephen Layer of the Carrollton Police Department testified that appellant described himself on his “MySpace profile” page as a member of “Sur 13,” which is a “criminal street gang.”   Layer also testified that, based on his interviews with all five of the individuals who were in the car with appellant at the time of the shooting, “[e]ach and every one of them were a documented member of Sur 13 or Sureno click in Carrollton.”   This evidence was likewise sufficient to establish that appellant committed the alleged offense as a member of a criminal street gang, which was the basis for the indictment.   We overrule appellant's second issue.

Fundamental Error

In his third and final issue in cause 05–11–00241–CR, appellant alleges his conviction for engaging in organized criminal activity “amounts to fundamental error because, although no objection was made regarding the indictment, the evidence is legally insufficient to support a conviction for engaging in organized criminal activity.”

Generally, an appellant must object at trial in order to preserve error for appellate review.   See Tex.R.App. P. 33.1(a)(1).   But appellate courts are permitted to take notice of fundamental errors affecting substantial rights even though they are not brought to the attention of the trial court.   Jasper v. State, 61 S.W.3d 413, 420 (Tex.Crim.App.2001) (referring to Tex.R. Evid. 103(d)).  Constitutional rights, including the right to due process, may be waived if the proper request, objection, or motion is not asserted in the trial court.   See Solis v. State, 945 S.W.2d 300, 301 (Tex.App.—Houston [1st Dist.] 1997, pet. ref'd) (noting that almost every constitutional and statutory right may be waived by failing to object in the trial court).

It is not entirely clear from appellant's brief whether his assertion of fundamental error is based strictly on the contention that the evidence is legally insufficient because the State failed to prove he committed the offense as a member of a criminal street gang, which is the argument raised in issue two,⁴ or whether appellant's argument is also based on some unspecified defect in the indictment.   In addition to alleging the State “wholly failed to provide evidence substantiating either required mental state of this offense because it ․ failed to prove the existence of an agreement between Appellant and at least one other person to participate in the underlying offense,” appellant argues “the State also failed to show that any overt act occurred in pursuance of the agreement performed by at least Appellant and one other individual.”   Appellant further alleges:  “[O]ther than showing that Appellant was involved in a street gang, the State failed to conclusively show the connection between Appellant's involvement in a street gang and the aggravated assault.”   Appellant also acknowledges that there was no objection to the indictment, and he does not allege or explain how the indictment in cause 05–11–00241–CR is defective.

In any event, we find no fundamental error.   Appellant judicially confessed that he committed the offense in 05–11–00241–CR “as a member of a criminal street gang,” and the plea documents and accompanying judicial confession are sufficient to satisfy the requirements of article 1.15.   See Menefee, 287 S.W.3d at 13;  Pitts, 916 S.W.2d at 510;  Breaux, 16 S.W.3d 856.   As we discussed earlier, the State carried its burden of proving appellant committed the offense of aggravated assault as a member of a criminal street gang.   Regarding any alleged defects of form or substance in the indictment, since appellant did not raise those issues before trial, he has not preserved them for our review.   See Tex.Code Crim. Proc. Ann. art. 1.14(b) (if a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and may not raise the objection on appeal);  Studer v. State, 799 S.W.2d 263, 273 (Tex.Crim.App.1990) (substantive defect in indictment waived by a failure to make pretrial objection);  see also Tex.R.App. P. 33.1(a).   We also note that the allegations in the indictment were clear enough to permit appellant to identify the offense alleged, and thus the indictment was sufficient to confer jurisdiction on the district court.   See Teal v. State, 230 S.W.3d 172, 180 (Tex.Crim.App.2007).   We overrule appellant's third issue.

We affirm the trial court's judgments.

_ LANA MYERS

JUSTICE

Do Not Publish

Tex.R.App. P. 47

110240F.U05

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

GELBER OSMIN HERRERA, Appellant

No. 05–11–00240–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 194th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–13037–M).

Opinion delivered by Justice Myers, Justices Morris and Moseley participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 22, 2012.

/Lana Myers/

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

GELBER OSMIN HERRERA, Appellant

No. 05–11–00241–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 194th Judicial District Court of Dallas County, Texas.  (Tr.Ct.No.F10–13044–M).

Opinion delivered by Justice Myers, Justices Morris and Moseley participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered May 22, 2012.

/Lana Myers/

LANA MYERS

JUSTICE

FOOTNOTES

FN1. Appeal number 05–11–00240–CR;  trial court cause number F10–13037–M..  FN1. Appeal number 05–11–00240–CR;  trial court cause number F10–13037–M.

FN2. Appeal number 05–11–00241–CR;  trial court cause number F10–13044–M..  FN2. Appeal number 05–11–00241–CR;  trial court cause number F10–13044–M.

FN3. The supplemental Clerk's record in cause number 05–11–00240–CR, which contains the plea agreement for the aggravated assault with a deadly weapon case, shows the trial court cause number as “F10–13073” rather than the correct cause number of F10–13037.   The State suggests the last two numbers were transposed by mistake because the name, offense, and sentence in the document are otherwise correct.   The State also informs us that “[c]ounsel for the State has checked Dallas County records and verified that F10–13073 is the cause number for a defendant other than Appellant.”.  FN3. The supplemental Clerk's record in cause number 05–11–00240–CR, which contains the plea agreement for the aggravated assault with a deadly weapon case, shows the trial court cause number as “F10–13073” rather than the correct cause number of F10–13037.   The State suggests the last two numbers were transposed by mistake because the name, offense, and sentence in the document are otherwise correct.   The State also informs us that “[c]ounsel for the State has checked Dallas County records and verified that F10–13073 is the cause number for a defendant other than Appellant.”

FN4. Appellant states that issue three “is similar to Issue Two, contains similar arguments, and is based upon the same set of facts,” although he maintains “the arguments in this issue regarding fundamental error are distinct from the legal sufficiency arguments in Issue Two.”.  FN4. Appellant states that issue three “is similar to Issue Two, contains similar arguments, and is based upon the same set of facts,” although he maintains “the arguments in this issue regarding fundamental error are distinct from the legal sufficiency arguments in Issue Two.”

LANA MYERS JUSTICE