Herrera v. State

LUIS JOSE HERRERA, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-19-00021-CR

Court of Appeals Fifth District of Texas at Dallas

August 3, 2020

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,¹ a young woman with whom Herrera had a relationship. The indictment alleged:

Defendant, on or about the 18^th 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 aggravatedrobbery 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 2015.²

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 wouldgo 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...