                              NUMBER 13-09-221-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DAVID HERRERA BARRERA,                                                      Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 377th District Court
                         of Victoria County, Texas.


                         MEMORANDUM OPINION

                 Before Justices Rodriguez, Garza, and Vela
                   Memorandum Opinion by Justice Vela

      Appellant, David Herrera Barrera, was indicted for aggravated assault against a

public servant, a first-degree felony. See TEX . PENAL CODE ANN . § 22.02(b)(2)(B) (Vernon

Supp. 2009). Pursuant to a plea agreement, appellant pleaded guilty to the offense, and

the State recommended a punishment of seven years’ deferred-adjudication community
supervision, a $2,000 fine, 300 hours of community service, and evaluation for drugs and

alcohol.   The trial court followed the parties’ plea agreement and assessed the

recommended punishment.

       On February 2, 2009, the State filed a motion to adjudicate guilt, alleging that

appellant 1) committed the offenses of criminal mischief and driving with an invalid license,

2) failed to report the commission of these offenses to his community-supervision officer,

3) failed to abstain from the use of any substance capable of or calculated to cause

intoxication, 4) failed to receive permission from his community-supervision officer before

leaving the county of his approved residence, 5) failed to report to his community-

supervision officer from February 2008 through November 2008, 6) failed to abide by a

curfew, 7) failed to pay his fine, court costs, and supervisory fees, 8) failed to complete

community-service restitution, 9) failed to pay $5 to the local crime-stoppers program, and

10) failed to enroll in the Aggression Control Program. During the hearing on this motion,

appellant pleaded “True” to the allegations that he committed the offenses of criminal

mischief and driving with an invalid license, and he pleaded “Not true” to the remaining

allegations. After hearing testimony, the trial court found some of the allegations to be

true, adjudicated appellant guilty of the offense of aggravated assault against a public

servant, and assessed punishment at twenty years’ imprisonment, plus a $2,000 fine.

       In two issues, appellant complains he was denied his right to due process and that

he received ineffective assistance of counsel. We affirm.

                                       I. DISCUSSION

A. Right to Due Process

       In issue one, appellant complains he was denied his constitutional right to due

process of law because “‘the legal sufficiency of evidence for conviction on Aggravated
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Assault Against a Public Servant and deadly weapon finding were never challenged’ by his

trial counsel.” We interpret this issue as a complaint that appellant has been denied his

due-process right to effective assistance of counsel on appeal in violation of his Fourteenth

Amendment due-process rights under the United States Constitution. See U.S. CONST .

amend. XIV.

1. Applicable Law

       In Evitts v. Lucey, the Supreme Court held that the Due Process Clause of the

Fourteenth Amendment to the United States Constitution guarantees a defendant the

effective assistance of counsel on appeal. 469 U.S. 387, 392 (1985); Ex parte Coy, 909

S.W.2d 927, 928 (Tex. Crim. App. 1995). We must apply the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), in judging claims of ineffective assistance

of appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000); Evitts, 469 U.S. at 392.

       Strickland requires the defendant to show both that counsel’s performance was

deficient and that this deficient performance prejudiced the defense. 466 U.S. at 687. In

the appellate arena, the defendant must first show that his or her counsel was objectively

unreasonable, for example, in failing to raise arguable issues on appeal. Robbins, 528

U.S. at 285. If the defendant succeeds in this instance, he or she must then demonstrate

prejudice to his or her defense. Id. In other words, the defendant must show a reasonable

probability that, but for counsel’s failure, he or she would have prevailed on appeal. Id. at

285-86 (quoting Strickland, 466 U.S. at 694 (“defendant must show ‘a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different’”)). A defendant overcomes the presumption of effective assistance

of counsel when the ignored issues are clearly stronger than those presented by the

counsel on appeal. Id. at 288.
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       Concerning whether counsel was deficient for failing to challenge the sufficiency of

the evidence, the United States Constitution does not require the State to present evidence

in support of a guilty plea in Texas courts. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.

App. 2009). Article 1.15 of the code of criminal procedure constitutes “an additional

procedural safeguard required by the State of Texas but not by federal constitutional law.”

Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). In Texas, “[n]o trial court

is authorized to render a conviction in a felony case, consistent with Article 1.15, based

upon a plea of guilty ‘without sufficient evidence to support the same.’” Menefee, 287

S.W.3d at 13; see TEX . CODE CRIM . PROC . ANN . art. 1.15 (Vernon 2005).

       With respect to the form of evidence required by article 1.15, the court of criminal

appeals has explained:

       Evidence offered in support of a guilty plea may take many forms. The
       statute expressly provides that the defendant may consent to the proffer of
       evidence in testimonial or documentary form, or to an oral or written
       stipulation of what the evidence against him would be, without necessarily
       admitting to its veracity or accuracy; and such a proffer or stipulation of
       evidence will suffice to support the guilty plea so long as it embraces every
       constituent element of the charged offense. Alternatively, our case law has
       recognized that the defendant may enter a sworn written statement, or may
       testify under oath in open court, specifically admitting his culpability or at
       least acknowledging generally that the allegations against him are in fact true
       and correct; and again, so long as such a judicial confession covers all of the
       elements of the charged offense, it will suffice to support the guilty plea.

Menefee, 287 S.W.3d at 13 (footnote omitted).

2. Analysis

       A person commits the offense of aggravated assault against a public servant when:

(1) he or she; (2) intentionally or knowingly threatens another with imminent bodily injury;

(3) using or exhibiting a deadly weapon during the commission of the offense; and (4) the

offense is committed against a person the actor knows is a public servant while the public

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servant is lawfully discharging an official duty. See TEX . PENAL CODE ANN . §§ 22.01(a)(2),

22.02(a)(2), 22.02(b)(2)(B) (Vernon Supp. 2009). In this case, count one of the indictment

alleged, in relevant part, that appellant

       did then and there intentionally or knowingly threaten GREGORY LOTER
       with imminent bodily injury by charging at the said GREGORY LOTER with
       a knife, and did then and there use or exhibit a deadly weapon, to-wit: a
       knife that in the manner of its use or intended use was capable of causing
       death or serious bodily injury, during the commission of said assault, and the
       defendant did then and there know that the said GREGORY LOTER was
       then and there a public servant, to-wit: a Victoria Police Department officer,
       and that the said GREGORY LOTER was then and there lawfully discharging
       an official duty, to-wit: investigating or responding to an emergency call . .
       ..

(emphasis in original).

       At the hearing in which appellant pleaded guilty to the offense of aggravated assault

against a public servant, the State did not introduce either a written stipulation of evidence

or a written judicial confession. However, we note that during that hearing, the following

exchange occurred between the prosecutor, defense counsel, and appellant:

       Prosecutor:          Mr. Barrera [appellant], if Justin Knippa, of the Victoria
                            Police Department, were called as a witness he would
                            be sworn in and would testify that on or about May 26,
                            2007, in the County of Victoria and State of Texas, you,
                            David Herrera Barrera, did then and there intentionally
                            or knowingly threaten Gregory Loter with imminent
                            bodily injury by charging the said Gregory Loter with a
                            knife, and you did use or exhibit a deadly weapon, that
                            knife, that in the manner of its use or intended use was
                            capable of causing death or serious bodily injury, during
                            the commission of said assault, and that you did then
                            and there know that Gregory Loter was then and there
                            a public servant, to-wit: a Victoria Police Department
                            Officer, and that you were then—that the said Gregory
                            Loter was then and there lawfully discharging an official
                            duty, to-wit:      investigating or responding to an
                            emergency call?

       Appellant:           Yes, sir.

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       Prosecutor:                 Do you so agree and stipulate?

       Appellant:                  Yes, sir.

       Defense Counsel:            I join in that.

       Prosecutor:                 And, finally, do you agree that the acts and allegations
                                   contained in count one[1] of the State’s indictment is
                                   true and correct?

       Appellant:                  Yes, sir.

       Defense Counsel:            I join in that.

       Here, appellant consented to an oral stipulation of what the evidence against him

would be. This is a permissible form of evidence to support a plea of guilty. See Menefee,

287 S.W.3d at 13. This oral stipulation of evidence embraced every constituent element

of the charged offense and is, therefore, sufficient to support the guilty plea. See id.

Furthermore, appellant acknowledged generally that the allegations against him were in

fact true and correct.

       Because the evidence is sufficient to support the guilty plea, trial counsel was not

deficient in failing to raise this issue on appeal or in a J.N.O.V. Accordingly, appellant has

failed to satisfy the first prong required by Strickland and, therefore, cannot establish

ineffective assistance of counsel on appeal.

       By this same issue, appellant argues that his guilty plea “was not voluntary and was

made under duress after his appointed counsel told him that he would be found ‘guilty’ if

he were to go to trial.” However, nothing in the record shows that his trial counsel told

appellant he would be convicted if he elected to have his case tried to a judge or jury. “Any

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



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           Count one is the offense that appellant pleaded guilty to–aggravated assault against a public servant.
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affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d

482, 500 (Tex. Crim. App. 1996). Issue one is overruled.

2. Ineffective Assistance of Counsel

       In issue two, appellant argues he received ineffective assistance of counsel because

but for the “defective plea,” which originally placed him on community supervision, the

revocation hearing would be rendered moot. Therefore, according to appellant, this Court

should set aside the trial court’s decision to revoke his community supervision. Appellant

offers no argument or authorities regarding why he thinks his guilty plea was “defective.”

This issue is thus inadequately briefed, and therefore, waived. See TEX . R. APP. P. 38.1(i);

see also Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). Issue two is

overruled.

                                      II. CONCLUSION

       We affirm the trial court’s judgment.




                                                   ROSE VELA
                                                   Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the 22nd
day of April, 2010.




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