      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-11-00877-CR



                                   Hugo Alquicira, Appellant

                                                v.

                                  The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
       NO. 10-922-K277, HONORABLE C. W. DUNCAN, JR., JUDGE PRESIDING



                            MEMORANDUM OPINION


               In four issues, Hugo Alquicira appeals his conviction for aggravated assault with a

deadly weapon. The victim in this case was his wife, Maria Puente. After the jury found Alquicira

guilty, he was sentenced to 20 years’ confinement.

               An individual commits an assault if he “intentionally, knowingly, or recklessly

causes bodily injury to another, including the person’s spouse” or “intentionally or knowingly

threatens another with imminent bodily injury.” Tex. Penal Code § 22.01(a)(1)-(2). An assault is

an aggravated assault if a person commits an assault and causes serious bodily injury to another or

uses or exhibits a deadly weapon during the offense. Id. § 22.02(a). Under the Penal Code, a deadly

weapon is defined as “anything that in its manner of its use or intended use is capable of causing

death or serious bodily injury.” Id. § 1.07(17). In this case, the deadly weapon alleged in the

indictment was a clothing iron. Specifically, the indictment alleged that Alquicira “intentionally,
knowingly, or recklessly caused bodily injury to . . . Puente, by striking . . . Puente with an iron

or unknown object, and used or exhibited a deadly weapon, namely, an iron or unknown object,

during the commission of the assault.”


Legal Sufficiency of the Evidence

               In his first issue on appeal, Alquicira contends that the evidence supporting his

conviction is legally insufficient. Specifically, Alquicira urges that the evidence was insufficient to

show that his “acts caused the alleged injury” or that a deadly weapon was used during the offense.

In making this claim, Alquicira primarily relies on his testimony regarding the alleged assault and

describing the events leading up to the incident. But Alquicira also argues that some of the

testimony offered by the other witnesses, including his children E.A. and N.A., is inconsistent with

the allegations. For example, Alquicira notes that Puente did not seek any medical treatment for her

injuries other than the treatment she received when a paramedic arrived on the scene shortly after

the assault and that neither of his children testified that they saw him use the iron to injure Puente.

               In a legal-sufficiency review, appellate courts view the evidence in the light most

favorable to the verdict and determine whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979). In performing this analysis, the reviewing court must bear in mind that it is the factfinder’s

duty to weigh the evidence, to resolve conflicts in the testimony, and to make reasonable inferences

“from basic facts to ultimate facts.” Id. at 319. In addition, reviewing courts must presume that

conflicting inferences were resolved in favor of the conviction and defer to that resolution. Clayton

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

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               During the trial, Alquicira testified that Puente was very drunk when he got home

from work on the day before the incident, that he was afraid that she was going to hurt herself with

a knife, and that he took it away from her and later left the home. Then, Alquicira related that he

went back to the house the next day and that Puente was still drinking. Alquicira also explained that

after he was home for a few hours, Puente started throwing household items around the house and

demeaned him in front of their children, which led to an argument. Furthermore, Alquicira stated

that because he was concerned about arguing in front of the children, he asked Puente to have a

discussion in the bedroom. Regarding their interaction in the bedroom, Alquicira recalled that he

decided to leave the room after Puente started throwing his clothes from the closet onto the

ground. In addition, Alquicira related that Puente followed him and continued the argument. In his

testimony, Alquicira admitted to pushing Puente away from him but denied physically striking or

injuring her. Finally, when questioned about photos showing Puente’s injuries, Alquicira reasoned

that the injuries could have been caused by Puente falling off her bike or by Puente grabbing onto

his car in an attempt to stop him from leaving before the alleged assault.

               Before Alquicira testified, several witnesses, including Puente, were called to testify

regarding what they observed during the alleged assault and shortly thereafter. In her testimony,

Puente stated that on the day in question, Alquicira got very angry with her and then pulled her hair

and threw her to the floor. Next, Puente testified that Alquicira started pushing her and throwing

household items at her. Moreover, she explained that Alquicira continued to behave this way for

hours. Later, she stated that Alquicira picked up an iron and started hitting her with the attached

electrical cord. In addition, Puente discussed how after Alquicira finished hitting her with the cord,



                                                  3
he used the cord to swing the iron by her face repeatedly. When describing the experience, Puente

testified that she thought that Alquicira was going to kill her with the iron and that Alquicira laughed

at her as she pleaded for her life. Moreover, although she testified that she did not know for sure if

the iron hit her on her back because she closed her eyes, she described a burning pain on her back.

                After Puente testified, two of Alquicira and Puente’s children testified. First, E.A.

explained that after his parents started fighting, Alquicira followed Puente to her bedroom and

locked the door. Further, he testified that he heard “[y]elling and screaming” coming from the

bedroom. In addition, he related that he picked the lock to check on his mom after he heard her

“screaming really very loudly.”1 When describing what he saw upon entering the bedroom, E.A.

stated that he saw Alquicira yelling at Puente who was in the corner of the room and then later saw

Alquicira repeatedly kick Puente. In addition, although E.A. did not testify that he saw Alquicira

holding an iron, he did explain that he saw an iron on the floor and surmised that Alquicira might

have used the iron earlier because “the bruises on her arm were too big to come from someone

hitting her.”

                Next, N.A. testified about the incident. Specifically, she related that she heard her

parents arguing and then heard Puente scream. Further, she explained that after she and E.A. went

into the bedroom, she saw that Puente was in the corner of the room, that Puente “had purple

bruises” on her body, that Puente’s shirt had been torn, and that Alquicira “was holding the iron in

his hand.” She also testified that Alquicira threatened to kill her and her siblings if they talked to

the police.


        1
       We note that during the trial, the neighbor who called the police testified that he heard a
woman pleading for help inside Alquicira’s house.


                                                   4
               In addition to individuals who witnessed the alleged assault, the State also called

witnesses to testify about Puente’s injuries. First, Deputy Steven Kelley testified that he responded

to a 911 call concerning Alquicira’s home. He explained that when he arrived, he heard a woman

crying and noted that Alquicira seemed “upset, agitated and irritated.” Moreover, Kelley related that

after he went to a bedroom to check on Puente, he found her crying heavily and hyperventilating.

When describing her appearance, Kelley stated that Puente’s shirt had been torn and that she had “a

red burn mark on her right forearm.” More specifically, he stated that the burn was four inches long.

Later, Kelley recalled that after Puente had been treated by EMS personnel, he observed other

injuries that Puente had sustained including a large burn and bruise to her left arm and a red mark

on her back. Kelley characterized those injuries as “serious” burns. Kelley also testified that he

inspected the bedroom as part of his investigation and found an iron a few feet from where he found

Puente and that the iron was plugged in and still “warm to the touch” although turned off.

               Next, the paramedic who treated Puente, Vickie Hawkins, was called to testify.

Hawkins related that when she began treating Puente, Puente was crying and hyperventilating.

Hawkins also stated that Puente had burns and major bruises on her arm, shoulder, and back.

Moreover, Hawkins explained that the bruising was caused by a force that had been applied to

Puente’s body and that the burns were second degree burns, meaning that part of the skin had been

removed and that an infection could “set in.” In addition, Hawkins agreed that the injuries were

consistent with “someone being struck with an iron” and being burned by an iron. Furthermore,

although Hawkins explained that Puente was initially reluctant to talk, Puente did reveal that

Alquicira had used the iron to hurt and burn her.



                                                 5
               During their testimonies, both Kelley and Hawkins explained that an iron could

cause serious injury or death. More specifically, Kelley explained that an iron can cause “scarring,

disfigurement, permanent disfigurement” and that an iron can also be used as a deadly weapon if it

is used to strike somebody.

               In addition to the testimony summarized above, numerous photos were admitted

into evidence chronicling injuries and burns sustained by Puente.

               In light of the evidence above and bearing in mind the jury’s role in weighing the

evidence and resolving conflicts in the testimony presented, we must conclude that the evidence is

legally sufficient to support Alquicira’s conviction for aggravated assault with a deadly weapon.

Accordingly, we overrule his first issue on appeal.


Right to Effective Assistance of Counsel

               In his second issue on appeal, Alquicira contends that his trial lawyer provided him

ineffective assistance of counsel because he “failed to argue or raise objection to the State’s Motion

in Limine seeking to exclude any evidence of the victim’s character or prior acts of violence against

[Alquicira], or to present such evidence by other means.” In this issue, Alquicira also contends that

his trial counsel’s conduct was deficient because he “failed to investigate the veracity of the claims

presented and to present expert rebuttal evidence to the State’s argument as to how the injuries were

caused though funds were authorized by the Court.”

               In general, a direct appeal is not an adequate means to present an ineffectiveness

claim because the record is usually undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005). “This is true with regard to the question of deficient performance . . . where

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counsel’s reasons for failing to do something do not appear in the record.” Id. (explaining that

“counsel’s conduct is reviewed with great deference, without the distorting effects of hindsight”).

Trial attorneys should be given the opportunity to clarify their actions before being deemed

ineffective. Id. In the absence of that opportunity, an appellate court should not conclude that an

attorney’s performance was ineffective unless the challenged conduct is “so outrageous that no

competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2001).

               Alquicira’s ineffectiveness claims all stem from omissions by his trial attorney, and

the record is not sufficiently developed to evaluate those omissions because “[n]either [his] counsel

nor the State have been given an opportunity to respond to” the allegations. See Menefield v. State,

363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Moreover, based on this record, we do not believe

that the alleged omissions are so outrageous that no competent attorney would have committed

them. Accordingly, we cannot conclude that Alquicira was denied his right to effective assistance

of counsel.

               Although we need not address the matter further, we do note that appellate courts

look to the totality of representation provided by an attorney when assessing his effectiveness. See

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In this case, Alquicira’s counsel did

express frustration at his client’s behavior during trial, but he also successfully moved to have two

charges against Alquicira dismissed, extensively questioned the jury panel regarding their abilities

to serve, moved to strike various potential jurors for cause, informed the jury panel about the State’s

burden, successfully objected to the testimony of witnesses on various grounds, cross-examined the



                                                  7
State’s witnesses, requested a directed verdict in his client’s favor, discussed with Alquicira

the advantages and disadvantages to testifying, and requested a lesser-included charge of assault.

Moreover, during his closing, Alquicira’s attorney emphasized the State’s burden, discussed how

Puente did not seek any further medical treatment, suggested that there were no medical reports

admitted during the trial because the injuries were not severe enough, questioned Puente’s

credibility, and successfully objected to statements made by the State during its closing. Finally, in

the punishment phase, Alquicira’s attorney cross examined the State’s witnesses and called various

witnesses to testify on Alquicira’s behalf.

               In light of the above, we overrule Alquicira’s second issue on appeal.2


Constitutionality of Alquicira’s Sentence

               In his third and fourth issues, Alquicira asserts that the length of his sentence,

20 years, is unconstitutional because the sentence is “grossly disproportionate to the crime and

inappropriate to the offender.” In particular, Alquicira contends that his sentence violates section 13

of article I of the Texas Constitution and the Eighth Amendment of the United States Constitution,

which both prohibit cruel or unusual punishments. See U.S. Const. amend. VIII; Tex. Const. art. I,

§ 13. As support for this assertion, Alquicira notes that he was given the maximum punishment

authorized but also notes that he had no prior felony convictions and was eligible for probation.


       2
          Generally speaking, claims that have been rejected in a direct appeal are “not cognizable
on habeas corpus.” Ex parte Nailor, 149 S.W.3d 125, 131 (Tex. Crim. App. 2004). However, if an
appellate court “rejects a claim of ineffective assistance of counsel because the record on direct
appeal does not contain sufficient information to adequately address and resolve a particular
allegation of counsel’s deficient performance,” that claim may be considered “in a later habeas
corpus proceeding if he provides additional evidence to prove his claim.” Id.


                                                  8
Further, he contends that the facts did not support the punishment, particularly the fact that Puente

did not seek additional medical treatment. For these reasons, Alquicira insists that he “is entitled

to a reversal and to a new punishment hearing.”

               Alquicira did not raise these constitutional issues in either of his motions for new

trial, nor did he challenge the sentence when it was assessed during the punishment hearing.

Accordingly, he has waived both of these issues on appeal. See Kim v. State, 283 S.W.3d 473, 475

(Tex. App.—Fort Worth 2009, no pet.) (explaining that “[t]o preserve error for appellate review a

complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a

defendant must present to the trial court a timely request, objection, or motion stating the specific

grounds for the ruling desired”).

               Even assuming that his claims were not waived, we would be unable to sustain either

of his issues. This Court has previously recognized that the “power to define criminal offenses and

prescribe their punishments resides in the legislature.” Francis v. State, 877 S.W.2d 441, 444 (Tex.

App.—Austin 1994, pet. ref’d) (per curiam). For that reason, this Court has also concluded that

section 13 of article I “is not violated when the punishment assessed is within the limits prescribed

by statute.” Id.; see Thomas v. State, 916 S.W.2d 578, 584 (Tex. App.—San Antonio 1996, no pet.).

As Alquicira concedes, his punishment fell within the range allowable by statute. See Tex. Penal

Code § 12.33(a) (setting out punishment ranges for second-degree felony). Accordingly, the length

of his punishment does not violate the Texas Constitution.

               Regarding his federal claims, sentences falling within the applicable statutory range

typically do not violate the Eighth Amendment. King v. State, No. 03-12-00776-CR, 2013 Tex.



                                                  9
App. LEXIS 4528 (Tex. App.—Austin Apr. 10, 2013, pet. ref’d) (mem. op.) (not designated for

publication). Moreover, “[m]uch deference must be accorded to the legislature’s authority and

the discretion vested in the jury in assessing punishment.” Thomas v. State, 916 S.W.2d 578, 584

(Tex. App.—San Antonio 1996, no pet.). When reviewing a claim that a sentence is grossly

disproportionate to the crime, courts consider “the gravity of the offense compared to the harshness

of the penalty,” giving “proper deference to the policy judgments that find expression in the

legislature’s choice of sanctions.” Ewing v. California, 538 U.S. 11, 28-29 (2003).

                Given the record before this Court, we cannot conclude that the sentence assessed

was grossly disproportionate to the gravity of the offense. In reaching this resolution, we are mindful

of the legislature’s decision to impose harsher sentences on individuals who assault members of

their own family. See Tex. Penal Code §§ 22.02(b) (elevating offense level if aggravated assault is

committed against family member), 22.01(b)(2) (raising offense level for assaults committed against

family member). The evidence demonstrated that Alquicira assaulted his wife in front of their

children. Further, the testimony presented and the photographs admitted into evidence showed the

severity of the injuries inflicted on Puente. In addition, Alquicira testified during the trial, and the

jury was able to assess his demeanor and credibility. Finally, the jury heard testimony from one of

Alquicira’s children stating that Alquicira threatened to kill his children if they discussed the assault

with the police.3


        3
         Although Alquicira complains about the length of his sentence for the second-degree felony
for which he was charged, the State could have charged Alquicira with a first-degree felony. Under
the Penal Code, aggravated assault is a first degree felony if “the actor uses a deadly weapon during
the commission of the assault and causes serious bodily injury to a person whose relationship to or
association with the defendant is described by” the Family Code. Tex. Penal Code § 22.02(b). The
punishment for first degree felonies ranges from 5 years to 99 years. Id. § 12.32(a).

                                                   10
              For the reasons previously given, we overrule Alquicira’s third and fourth issues

on appeal.


                                       CONCLUSION

              Having overruled all of Alquicira’s issues on appeal, we affirm the district court’s

judgment of conviction.



                                            __________________________________________

                                            David Puryear, Justice

Before Justices Puryear, Pemberton, and Rose

Affirmed

Filed: March 5, 2014

Do Not Publish




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