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Gatica v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
Nos. 05-03-01822-CR, 05-03-01823-CR (Tex. App. Mar. 4, 2005)

Opinion

Nos. 05-03-01822-CR, 05-03-01823-CR

Opinion Filed March 4, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-25440-VT, F02-71738-VT. Affirm.

Before Justices WHITTINGTON, FITZGERALD, and RICHTER.


OPINION


Mark Gatica waived a jury trial and entered non-negotiated guilty pleas to failure to stop and render aid and aggravated robbery. The trial judge found appellant guilty, assessed punishment at five years' confinement for the failure to stop and render aid and forty years' confinement for the aggravated robbery. The judge also made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the aggravated robbery. In three points of error, appellant contends the forty-year sentence constitutes cruel and unusual punishment, his guilty plea to the robbery was involuntary, and the trial court erred in questioning him regarding the failure to stop and render aid case. We affirm the trial court's judgments. In his first point of error, appellant argues the forty-year sentence for the aggravated robbery conviction is cruel and unusual because he was only twenty years old at the time of the offense and forty years is excessive. Appellant asserts the sentence is disproportionate to the offense because he did not physically harm the complainant, his partner was the person with the gun, and his only part in the offense was to take $170 from the complainant. The State responds that appellant has not preserved this complaint for review. We agree with the State. Appellant did not complain about his sentence either at the time it was imposed or in his motion for new trial. See Tex.R.App.P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Even constitutional rights, including the right to be free from cruel and unusual punishment, may be waived. Rhoades v. State, 934 S.W.2d 113, 120 (Tex.Crim.App. 1996); Castaneda, 135 S.W.3d at 723. Further, the forty-year sentence is not cruel and unusual or grossly disproportionate to the offense because it is within the statutory punishment range. See Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd); see also Tex. Pen. Code Ann. §§ 12.32, 29.03 (Vernon 2003). We overrule appellant's first point of error. In his second point of error, appellant argues his guilty plea to the aggravated robbery was involuntary due to ineffective assistance of counsel. Appellant contends his trial counsel led him to believe he would receive probation, counsel was not aware that appellant was ineligible for regular probation, and counsel induced him to reject the State's offer of five years' confinement. Appellant argues that but for counsel's ineffectiveness, the result of the proceeding would have been different. The State responds the record does not support appellant's claims. We agree with the State. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When faced with a silent record as to defense counsel's strategy, the reviewing court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; see also Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). The record shows the trial court properly admonished appellant orally and in writing. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (d) (Vernon 1989 Supp. 2004-05); Kirk, 949 S.W.2d at 771. Nothing shows counsel misinformed appellant about his probation eligibility before he entered his guilty plea. At the plea hearing, appellant testified he understood the charges in the indictment, the written admonishments, and the punishment range for the offense. Appellant testified he freely and voluntarily entered a guilty plea and understood there was no plea bargain agreement. Appellant's signed judicial confession and stipulation of evidence was offered into evidence without objection. During the punishment hearing, appellant testified he understood the judge could sentence him to ninety-nine years in prison, and that his attorney had done everything appellant had wanted him to do in this case. Appellant's counsel asked the complainant and appellant's family members if they were aware the judge could sentence appellant to "life in prison or probation or anywhere in between." Nothing in the record shows the State made a five-year plea bargain offer or that appellant rejected the offer. Likewise, nothing in the record shows appellant was not aware of the consequences of his plea or that counsel induced him to plead guilty. Thus, appellant has not shown counsel's performance fell below an objective standard of reasonableness and that there results of the proceedings would have been different. See Bone, 77 S.W.3d at 833. We overrule appellant's second point of error. In his third point of error, appellant argues the trial judge denied him the opportunity to directly confront his accuser in the stop and render aid case, in violation of the Sixth Amendment to the United States Constitution, when the judge questioned appellant about why he did not stop to see if anyone was dead or alive after he collided with another vehicle. See U.S. Const. amend. VI. The State responds that appellant has not preserved this complaint for review. We agree with the State. Appellant did not complain about the judge's questioning at the time or trial or in his motion for new trial. See Tex.R.App.P. 33.1(a)(1). Failure to object at trial waives even constitutional error, such as a defendant's right to confront witnesses. See Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000). We overrule appellant's third point of error. We affirm the trial court's judgment in each case.


Summaries of

Gatica v. State

Court of Appeals of Texas, Fifth District, Dallas
Mar 4, 2005
Nos. 05-03-01822-CR, 05-03-01823-CR (Tex. App. Mar. 4, 2005)
Case details for

Gatica v. State

Case Details

Full title:MARK GATICA, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Mar 4, 2005

Citations

Nos. 05-03-01822-CR, 05-03-01823-CR (Tex. App. Mar. 4, 2005)