      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00277-CR




                                     Raul Vazquez, Appellant

                                                 v.

                                  The State of Texas, Appellee



    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
     NO. D-1-DC-07-204787, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Raul Vazquez guilty of causing bodily injury to a family

member, subsequent offense. See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2) (West Supp. 2008).

The court assessed his punishment at imprisonment for ten years and a $5000 fine, but suspended

imposition of sentence and placed appellant on community supervision. In a single issue, appellant

contends that his trial counsel rendered ineffective assistance. We overrule this contention and

affirm the judgment of conviction.

               To prevail on a claim of ineffective assistance of counsel, an appellant must show that

counsel made such serious errors that he was not functioning effectively as counsel and that these

errors prejudiced the appellant’s defense to such a degree that he was deprived of a fair trial.

Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72

(Tex. Crim. App. 1999). In reviewing a claim of ineffective assistance, we must indulge a strong
presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, any

allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

                Appellant asserts that his trial attorney was ineffective with regard to his handling of

appellant’s previous conviction for family violence assault. The penal code provides that a bodily

injury assault, which is ordinarily a class A misdemeanor, is a third degree felony if the person

assaulted is a member of the defendant’s family and the defendant has a previous conviction for

assaulting a family member. Tex. Penal Code Ann. § 22.01(b)(2). Relying on opinions arising out

of prosecutions for felony driving while intoxicated, appellant argues that his lawyer should have

offered to stipulate to the previous conviction in order to preclude the State from introducing

evidence of that conviction at the guilt-innocence stage. See Hernandez v. State, 109 S.W.3d 491,

493 (Tex. Crim. App. 2003); Robles v. State, 85 S.W.3d 211, 213-14 (Tex. Crim. App. 2002); Tamez

v. State, 11 S.W.3d 198, 202 (Tex. Crim. App. 2000). Alternatively, appellant argues that his

attorney should have asked for a limiting instruction when evidence of the conviction was admitted

at the guilt-innocence stage. See Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996).1




    1
      This case was tried on the assumption, shared by the trial court and both parties, that the
previous family violence assault conviction was a jurisdictional element that had to be proved by the
State at the guilt-innocence stage of the trial. At least one court of appeals has so held.
See Sheppard v. State, 5 S.W.3d 338, 340 (Tex. App.—Texarkana 1999, no pet.). Another court of
appeals has held, to the contrary, that the previous family assault conviction is not jurisdictional, but
is merely a sentence enhancement. See State v. Cagle, 77 S.W.3d 344, 346 n.2 (Tex. App.—Houston
[14th Dist.] 2002, pet. ref’d). For the purpose of this opinion, we will assume that the previous
conviction was jurisdictional.

                                                   2
               The indictment alleged that on August 13, 2007, appellant caused bodily injury to

Noemi Vazquez, a member of his family, by pushing her with his hand, and that on July 27, 2006,

appellant had been convicted of family violence assault in cause number 628383 in the County Court

at Law No. 4 of Travis County. On the first day of trial, the State moved to amend the indictment

to change the date of the previous conviction to September 25, 2003.2 Appellant objected to the

motion, and the State later withdrew it. Counsel was then asked if he was going to stipulate to the

previous conviction. Counsel replied, “I would think, Your Honor, given the indictment as it reads,

we probably would not stipulate at this point. I would ask that the State prove it up.” During the

same discussion, the court instructed the prosecutors that they were not to use the previous

conviction to argue “character conformity.”

               During the guilt-innocence stage, the September 25, 2003, judgment of conviction

in cause number 628383 was introduced in evidence after a fingerprint comparison established that

appellant was the person convicted in that cause.         Introduced with the judgment was the

July 27, 2006, order revoking probation. At defense counsel’s request, the revocation order was

redacted to delete the grounds for revocation. During final arguments to the jury, the prosecutors

explained the discrepancy between the pleading and the proof regarding the date of the previous

conviction and urged that it was irrelevant to appellant’s guilt. Defense counsel argued, to the

contrary, that “they made a mistake and they are trying to clean up their mistake by throwing in that

date and telling you, you know what, July 27th, 2006, is okay.” Counsel urged that the State had




  2
     The date alleged in the indictment was in fact the date appellant’s probation had been revoked
in the previous cause.

                                                 3
failed to prove the indictment’s allegations beyond a reasonable doubt. In its charge, the court

authorized appellant’s conviction for the lesser included offense of misdemeanor assault if the jury

believed that the State had failed to prove the previous family violence conviction.

               It is clear from the record that defense counsel’s failure to stipulate to the previous

family violence conviction was a calculated trial strategy. A stipulation would have relieved the

State of its burden of proving the previous conviction, and the defense would have been unable to

argue in opposition to the stipulation. See Martin v. State, 200 S.W.3d 635, 640 (Tex. Crim.

App. 2006). By requiring the State to prove its allegation, counsel reserved the right to challenge

the sufficiency of that proof and to argue that appellant should be acquitted of the charged offense.

A stipulation would not have prevented the jury from learning about the previous conviction at the

guilt-innocence stage. The State would still have been permitted to read the full indictment to the

jury, including the allegation regarding the previous conviction, and the jury charge would have

referred to the defendant’s stipulation and its legal effect. See id. at 640-41. As it was, the only

significant facts regarding the previous conviction that the jury would not have known had the

conviction been stipulated were that appellant had received probation and that the probation had

been revoked (although the jury did not learn why).

               Appellant has not demonstrated that his trial counsel’s strategy regarding the previous

conviction was outside the broad range of reasonable effective assistance. Moreover, appellant has

not shown that the outcome of the trial would have been different had counsel chosen a different

strategy, or had counsel requested a limiting instruction.




                                                 4
              The issue is overruled, and the judgment of conviction is affirmed.




                                            __________________________________________

                                            Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: January 27, 2009

Do Not Publish




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