AFFIRMED cause number F16-00404-J; REVERSED and REMANDED cause number
F16-70616-J; Opinion Filed December 13, 2017.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-16-01344-CR
                                       No. 05-16-01345-CR

                       MARTIN CAPTILLO ZAMORA JR., Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 3
                                   Dallas County, Texas
                      Trial Court Cause Nos. F16-00404-J, F16-70616-J

                              MEMORANDUM OPINION
                           Before Justices Bridges, Myers, and Schenck
                                   Opinion by Justice Schenck
       Martin Captillo Zamora Jr. appeals his conviction for delivery of a controlled substance

and possession with intent to deliver a controlled substance. In five issues, Zamora contends (1)

the evidence is insufficient to support the trial court’s finding of true to the enhancement paragraph

in cause number F16-70616-J; (2) the trial court admonished him on the incorrect minimum range

in the second case; (3) the improper admonishment rendered his guilty plea to the offense

involuntary; (4) his trial counsel was ineffective for failing to challenge the enhancement

paragraph; and (5) the trial court abused its discretion in admitting two exhibits. In cause number

F16-70616-J, we affirm Zamora’s conviction, but we remand for a new punishment hearing. In

cause number F16-00404-J, we affirm the trial court’s judgment.
                           FACTUAL AND PROCEDURAL BACKGROUND

       During an undercover investigation into sales of “K2,” a synthetic form of marijuana,

Dallas Police Department Detective John Lising called Zamora on January 14, 2016, to buy of 2.5

ounces of K2 from Zamora. That same day, Zamora met with Detective Lising to complete the

transaction. On January 21, 2016, Detective Lising called Zamora to negotiate the purchase of a

larger amount of K2 and made arrangements to meet Zamora for delivery in order to arrest Zamora.

On January 26, 2016, the police conducted a traffic stop and arrested Zamora at a park across from

El Centro College and impounded his car. During an inventory search of his car, the police seized

three bags of K2, packaging material, and two digital scales.

       In two separate indictments, a grand jury indicted Zamora for delivery of a controlled

substance (cause number F16-00404-J) and possession with intent to deliver a controlled substance

(cause number F16-70616-J).       The indictment in cause number F16-70616-J contained an

enhancement paragraph stating the offense occurred on or within 1,000 feet of an institution of

higher learning. Zamora pleaded guilty to both charged offenses and true to the enhancement

paragraph. The trial court accepted his pleas, found the enhancement paragraph true, and assessed

punishment at confinement for 20 years in cause number F16-00404-J and for 25 years in cause

number F16-70616-J. During the punishment phase of trial, the State offered two exhibits, a

recording of the January 14 phone call between Zamora and Detective Lising and a video recording

of the drug transaction that took place on the same day. Zamora objected to the admission of both

recordings, but the trial court overruled those objections and admitted both exhibits.

                                            DISCUSSION

I.     Admission of State’s Exhibits

       In his fifth and sixth issues, Zamora challenges the trial court’s decisions to overrule his

objections to exhibits offered by the State during the punishment hearing. In his fifth issue, Zamora


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complains about the trial court’s decision to admit about State’s Exhibit 21, which is an audio

recording of the January 14, 2016 phone call between Detective Lising and Zamora in which the

undercover officer asked Zamora for more K2. In his sixth issue, Zamora challenges the trial

court’s decision to admit State’s Exhibit 22, which is a video recording of the January 14, 2016

drug buy between Zamora and Detective Lising.1 Defense counsel objected to both exhibits as not

relevant and as cumulative. The trial court overruled Zamora’s objections and admitted both

exhibits.

               A.         Standard of Review & Applicable Law

           We review a trial court’s ruling on the admission of evidence for abuse of discretion. See

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its discretion

when its decision lies outside the zone of reasonable disagreement. Id.

           Generally, all relevant evidence is admissible. TEX. R. EVID. 402. Rule 403, an exception

to the general rule, provides that relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.”

Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim. App. 2013) (citing TEX. R. EVID. 403). Rule

403 applies even after a defendant has pleaded guilty to the charged offense. See Jones v. State,

963 S.W.2d 177, 183 (Tex. App.—1998, pet. ref’d). In conducting a rule 403 analysis, courts must

balance: (1) the inherent probative force of the proffered evidence and (2) the proponent’s need

for that evidence, against (3) any tendency of the evidence to suggest decision on an improper

basis, (4) any tendency to confuse or distract the jury from the main issues, (5) any tendency to be

given undue weight by the jury, and (6) the likelihood that presentation of the evidence will



     1
       Unlike his first four issues that only relate to his conviction in cause number F16-70616-J, Zamora’s fifth and sixth issues relate to both
cause numbers F16-70616-J and F16-00404-J.

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consume an inordinate amount of time or be cumulative of other evidence. Gigliobianco v. State,

210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

          B.      Application of Law to Facts

       When the State offered the challenged exhibits, Zamora had already pleaded guilty to the

charged offenses, leaving the court only the punishment to assess. On appeal, Zamora does not

argue the relevance of the exhibits and instead focuses his arguments on the assertion that the

probative value of the exhibits was substantially outweighed by its needless presentation of

cumulative evidence.

       Zamora argues the exhibits offered no more probative value than Detective Lising’s

testimony about the phone call and the drug buy, which was also admitted. He also urges that the

only reason the State offered the exhibits was to impermissibly inflame the judge’s mind as she

determined his punishment. He contends the admission of the evidence was unnecessarily time-

consuming because the phone call lasted for more than one minute, the video recording lasted for

nine minutes, and the State interrupted both to ask Detective Lising detailed questions about the

contents of each exhibit. Finally, he argues the State did not need either the recording of the phone

call or the drug buy to support his guilty plea in light of the facts that (1) the State had already

offered Zamora’s signed, written, and voluntary judicial confessions and (2) the undercover officer

who spoke on the phone call and participated in the drug buy testified as to both events.

       The State responds that the recordings were extremely relevant to Zamora’s punishment,

particularly in light of his testimony that he could rehabilitate himself if sentenced to community

supervision or ordered to participate in drug treatment. In support of their response, the State

emphasizes the tone or tenor of Zamora’s conversation with the undercover officer, his familiarity

with K2, his demeanor, and his ability to obtain quantities of K2, as shown in the two recordings.




                                                –4–
       From this record, we cannot conclude the probative value of either exhibit is substantially

outweighed by any unfair prejudicial effect. As pointed out by the State, Zamora was eligible for

community supervision and testified regarding his hope to be sentenced to drug treatment.

Therefore, the two recordings were probative of whether such a sentence would be appropriate in

light of his familiarity with K2, as well as his professed connections to sources of that and other

controlled substances that he mentions in the video recording. With respect to the concern of

unfair prejudice, Zamora does not explain how exactly the judge’s mind would be inflamed by

either recording—neither of which contains any content this Court would consider by its nature to

be outrageous or otherwise prejudice a factfinder against Zamora. As for Zamora’s concerns

regarding unnecessary delay in the length of time to present the exhibits, the entire hearing lasted

for more than two hours, and the amount of running time for the exhibits combined was

approximately ten minutes. Further, his complaint regarding the State’s pausing the video

recording several times to ask questions of the undercover officer could be easily explained by the

sheer volume of slang and street colloquialisms used by the participants—e.g., “plug” referring to

a source of supply of controlled substances—and to explain the significance of Zamora’s

comments about smoke shops—i.e., that he already had two and he was attempting to open a third.

       We overrule Zamora’s fifth and sixth issues.

II.    Enhancement Paragraph in Cause Number F16-70616-J

       In his first four issues, Zamora complains about the enhancement paragraph in the

indictment for possession with intent to deliver a controlled substance.

       In cause number F16-70616-J, a grand jury indicted Zamora for possession with intent to

deliver a controlled substance in an amount of four grams or more but less than 400 grams, which

is a first degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.113(d) (West 2017). That

indictment included an enhancement paragraph stating the offense occurred in, on, or within 1,000


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feet of an institution of higher learning, namely El Centro College. Section 481.134 of the health

and safety code establishes enhanced punishment ranges for certain state jail felony drug offenses

and certain second degree felony drug offenses if the offense is committed in, on, or within 1,000

feet of an institution of higher learning, but not for the first-degree felony offense for which

Zamora was charged and convicted. See id. § 481.134(b) (West 2017). Section 481.134 of the

health and safety code provides for enhanced punishment ranges for offenses set forth in section

481.113(d) if the offense is committed in, on, or within 1,000 feet of a school. See id. § 481.134(c)

(West 2017). The health and safety code defines “school” as a private or public elementary or

secondary school or daycare center, but not a college or other post-secondary institute of higher

learning. See id. § 481.134(a)(2) (West 2017). For this reason, the State concedes that Zamora’s

punishment was not in fact subject to enhancement, contrary to the admonishment. As discussed

below, it challenges the effect of the error on his appeal.

          A.      Was the Evidence Sufficient to Support the Enhancement Paragraph?

       In his first issue, Zamora complains the evidence is insufficient to support the enhancement

paragraph. Zamora urges that there is no way to quantify the impact of the unsupported finding

of true on the trial court’s normative sentencing function and cites us to a court of criminal appeals

decision where a jury’s finding was similarly unsupported. Jordan v. State, 256 S.W.3d 286, 293

(Tex. Crim. App. 2008) (remanding to the trial court for a new punishment hearing after noting

that without discrete objective facts decided by a jury in assessing punishment, no way to quantify

impact on sentencing). The State, as noted, concedes that the allegations in the enhancement

paragraph do not constitute a drug-free zone under the statute and that thus the admonishment

regarding the range of punishment was incorrect, but argues an incorrect admonishment regarding

the range of punishment does not necessarily require reversal.




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       While neither party cites to the court of criminal appeals decision in Hopkins v. State, we

find it to be on point. 487 S.W.3d 583, 587 n.2 (Tex. Crim. App. 2016) (favorably citing Mikel v.

State, 167 S.W.3d 556, 561 (Tex. App.—Houston [14th Dist.] 2005, no pet.), in which “the

appellant was alleged to have been finally convicted of attempted possession with intent to

distribute marijuana and later committing the felony offense of escape, but the record affirmatively

showed that the appellant committed the escape offense before her felony possession conviction

was final.”). If a defendant pleads true to an enhancement paragraph, the plea relieves the State of

its evidentiary burden to prove the enhancement allegations, unless the record “affirmatively

reflects” that the enhancements were improper. See id. at 586. In reviewing the sufficiency of the

evidence to support a finding that an enhancement is “true,” we view the evidence in a light most

favorable to the trial court’s finding and determine whether any rational trier of fact could have

found the essential elements beyond a reasonable doubt. Wood v. State, 486 S.W.3d 583, 589

(Tex. Crim. App. 2016).

       Zamora pleaded guilty to a first-degree felony offense under section 481.113(d). In order

to enhance the punishment range for that offense, the State must show Zamora committed the

offense in, on, or within 1,000 feet of an institution of a school. See HEALTH & SAFETY

§ 481.134(c). The record in this case contains no evidence that Zamora committed the offense in,

on, or within 1,000 feet of an elementary or secondary school or a day-care center. See id.

§ 481.134(a), (c).

       Because the record affirmatively reflects the enhancement was improper, the evidence was

not sufficient to sustain the enhancement despite the plea of true, and we sustain Zamora’s first

issue. See Hopkins, 487 S.W.3d at 586.

       Based on the same error in applying an improper enhancement in cause number F16-

70616-J, in his second, third, and fourth issues, Zamora challenges the propriety of his

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admonishment, the voluntariness of his plea, and the effectiveness of his trial counsel. In his

second issue, Zamora seeks the same relief as for this first issue. See Mikel, 167 S.W.3d at 561.

Therefore, we need not address this second issue. See TEX. R. APP. P. 47.1. As for Zamora’s third

and fourth issues, he seeks the greater relief of a new trial, and thus we defer our disposition of

cause number F16-70616-J and proceed to address his third and fourth issues.

          B.      Was Zamora’s Guilty Plea Not Voluntary?

       In his third issue, Zamora argues that his plea of guilty to the possession offense was

rendered involuntary in violation of the due process clause because he was not admonished or

otherwise informed of the correct punishment range.

       The State responds that Zamora’s complaint regarding the voluntariness of his guilty plea

is not preserved. See Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004) (holding Rule

33.1 of the Texas Rules of Appellate Procedure requires an objection in the trial court to preserve

all complaints except those that involve rules that are “waivable only” or “systematic” (or

“absolute”) requirements). The Court of Criminal Appeals of Texas rejected this argument and

instead specifically held that a claim that the record is absolutely unrevealing with respect to

whether a guilty plea was entered voluntarily is not subject to ordinary principles of procedural

default. See Davison v. State, 405 S.W.3d 682, 690 (Tex. Crim. App. 2013). Accordingly, we

will address Zamora’s third issue on the merits.

       Federal due process requires the record must affirmatively disclose that a defendant who

pleaded guilty entered his plea understandingly and voluntarily. See id. at 686. A criminal

defendant who is induced to plead guilty in a state court in total ignorance of the precise nature of

the charge and the range of punishment it carries has suffered a violation of procedural due process.

Id. When the record of a criminal conviction obtained by guilty plea contains no evidence that a

defendant knew of the rights he was putatively waiving, the conviction must be reversed. Id. at


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687. For the appellant to prevail on his constitutional claim, it is not enough that the record is

unrevealing with respect to whether he was admonished by the trial court; the record must also be

silent with respect to whether he was otherwise provided, or nevertheless aware of, the requisite

information to render his guilty plea voluntary and intelligent. Id.

       Here, the record reflects Zamora entered into an open plea agreement and that the signed

paperwork and the trial court incorrectly admonished him that the punishment range for the offense

charged was 10 to 99 years or life imprisonment. However, there is nothing in the record that

would suggest Zamora would not have pleaded guilty if he had been aware of the correct minimum

punishment of five years. Instead, the record reflects Zamora hoped the trial court would order

him to participate in drug treatment with the understanding that he would still be under court

supervision and subject to as much as a life sentence if he violated any condition the trial court set.

Further, the record contains his admonishment for the first offense of delivery of a controlled

substance for which he was correctly admonished as to the applicable punishment range of 5 to 99

years, or life imprisonment. Thus, we cannot conclude the record is silent with respect to whether

Zamora was otherwise provided, or nevertheless aware of, the requisite information to render his

guilty plea voluntary and intelligent. See Davison v. State, 405 S.W.3d 687.

       We overrule Zamora’s third issue.

          C.      Was the Assistance of Trial Counsel Ineffective?

       In his fourth issue, Zamora argues his trial counsel’s failure to challenge the improper

enhancement paragraph constituted ineffective assistance of counsel. He argues that no plausible

basis in strategy or tactics explains his trial counsel’s failure to challenge the improper

enhancement paragraph. He urges that this Court may infer from the five year difference between

the sentences for the unenhanced offense and the enhanced offense that the trial counsel’s failure

to challenge the enhancement paragraph prejudiced his defense. Zamora seeks a new trial for this


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alleged ineffective assistance. Although it is unclear why he believes this relief would be proper,

we liberally construe his brief to argue that, but for the alleged ineffective assistance, he would not

have entered a guilty plea. See TEX. R. APP. P. 38.9.

       To determine whether a person has been deprived of effective assistance of counsel, courts

apply a two pronged test requiring the defendant show (1) the legal representation fell below an

objective standard of reasonableness and (2) that the deficient legal representation prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the prejudice prong in

the guilty plea context, the defendant must show there is a reasonable probability that, but for his

lawyer’s errors, he would not have pleaded guilty and would have insisted on going to trial. Ex

parte Niswager, 335 S.W.3d 611, 614–15 (Tex. Crim. App. 2011), abrogated in part on other

grounds by Cornwell v. State, 471 S.W.3d 458 (Tex. Crim. App. 2015).

       Assuming, without deciding, Zamora met the first prong, the record does not show that,

but for his trial counsel’s failure to challenge the enhancement paragraph, he would not have

pleaded guilty and would have insisted on going to trial. See id. Accordingly, we overrule

Zamora’s fourth issue.

                                            CONCLUSION

       In cause number F16-70616-J, we affirm Zamora’s conviction, but we reverse that portion

of the judgment assessing punishment and remand for a new punishment hearing. In cause number

F16-00404-J, we affirm the trial court’s judgment.




                                                    /David J. Schenck/
DO NOT PUBLISH                                      DAVID J. SCHENCK
TEX. R. APP. P. 47                                  JUSTICE

161344F.U05


                                                –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 MARTIN CAPTILLO ZAMORA JR.,                        On Appeal from the Criminal District Court
 Appellant                                          No. 3, Dallas County, Texas
                                                    Trial Court Cause No. F16-00404-J.
 No. 05-16-01344-CR        V.                       Opinion delivered by Justice Schenck,
                                                    Justices Bridges and Myers participating.
 THE STATE OF TEXAS, Appellee

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


Judgment entered this 13th day of December, 2017.




                                            –11–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 MARTIN CAPTILLO ZAMORA JR.,                        On Appeal from the Criminal District Court
 Appellant                                          No. 3, Dallas County, Texas
                                                    Trial Court Cause No. F16-70616-J.
 No. 05-16-01345-CR        V.                       Opinion delivered by Justice Schenck,
                                                    Justices Bridges and Myers participating.
 THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANDED for further proceedings pursuant to TEX. CODE CRIM. PROC. ANN.
Art. 44.29(b).


Judgment entered this 13th day of December, 2017.




                                            –12–
