Gomez v. Thaler, Director TDCJ-CID

Filing 16

Memorandum Opinion and Order: Certificate of Appealability Denied. The petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. (Ordered by Judge John McBryde on 3/2/2012) (cxb)

u.s. DISTRICT COURT
NORTHEjRN DJSTKICT OF TEXAS

FILED
IN THE UNITED STATES DISTRICT CO
FOR THE NORTHERN DISTRICT OF TE
FORT WORTH DIVISION
RICHARD MORENO GOMEZ,

l·J\{ -

2 2012

CLERK. U.S. DISTRlCT COURT
by

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-----;'D'\:e=p=utz::y:-----

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Petitioner,

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v.

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No. 4:11-CV-68S -A
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RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Div£sion,

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Respondent.

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MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
u.s.C.

§

2254 filed by petitioner, Richard Moreno Gomez, a state

prisoner currently serving a 20-year sentence on his conviction
for assault of a family member in the 355 th District Coqrt of
Hood County, Texas, against Rick Thaler, Director of the Texas
Department of Criminal Justice, Correctional Institutions
Division, respondent.

After having considered the pleadings,

state court records, and relief sought by applicant, the court
has concluded that the petition should be denied.
I.

Factual and Procedural History

In 2008 petitioner was charged by indictment with assaulting
Lori Boon, his girlfriend, with whom he lived for apprOXimately

one year in Granbury, Texas.
3, at 94-96)

(State Habeas R. at 29-30; RR, vol.

The indictment also included an allegation that

petitioner had been previously convicted of assault-family
violence against a member of his household or a person with whom
he had a dating relationship in Hood County in 2006, elevating
the primary offense to a third-degree felony, and a sentencingenhancement paragraph alleging he had been previously convicted
of the felony offense of aggravated assault with a deadly weapon
in Hood County in 1991.

(State Habeas R. at 29-30)

On March 25, 2009, a jury found petitioner guilty of the
offense as charged in the indictment, petitioner pleaded true to
the sentencing-enhancement paragraph, and the trial court
assessed his punishment at 20 years' confinement.

(Id. at 65-66)

Petitioner appealed his conviction, but the Second Dist!rict Court
of Appeals of Texas affirmed the trial court's judgmentl, and the
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Texas Court of Criminal Appeals refused petitioner's petition for
discretionary review.

(Pet. at 3)

Gomez v. State, No. 2-09-086-

CRt slip op., 2010 WL 1730832 (Tex. App.-Fort Worth Apr. 29,
2010)

(not designated for publication).

Petitioner also filed a

state application for writ of habeas corpus challenging his
1

conviction, which the Texas Court of Criminal Appeals denied
without written order.

(State Habeas R. at cover) This federal

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petition was filed in the Dallas Division and transferred to this
court.

II.

Issues

In one ground, petitioner claims the evidence was legally
insufficient to support the finding that he had been previously
convicted of assault-family violence in 2006, as was required to
enhance his current conviction to a third-degree felony.

(Pet.

at 6; Pet'r Mem. at 1-4)

III.

Rule 5 Statement

Respondent believes that petitioner has exhausted his state
court remedies as to his claim and that the petition is neither
untimely nor subject to the successive-petition bar.
Ans . at 3 - 4 )

28 U. S . C .

§§

IV.

(Resp' t

2241 (b) , (d), 2254 (b) .

Discussion

Legal Standard for Granting Habeas Corpus Reli,f
Under 28 U.S.C.

§

2254(d), a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless he
shows that the prior adjudication:

(1) resulted in a decision

that was contrary to, or involved an unreasonable application of,
clearly established federal law, or (2) resulted in a decision

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that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court.
2254(d).

28 U.S.C.

§

A decision is contrary to clearly established federal

law if the state court arrives at a conclusion opposite to that
reached by the Supreme court of the United States on a question
of law or if the state court decides a case differently than the
Supreme Court has on a set of materially indistinguishable facts.
Williams v. Taylor,
Johnson,

529 U.S. 362, 405-06 (2000) i see also Hill v.

210 F.3d 481, 485 (5 th Cir. 2000).

A state court

decision will be an unreasonable application of clearly
established federal law if it correctly identifies the applicable
rule but applies it unreasonably to the facts of the case.
Williams,

529 U.S. at 407-08.

Further, federal courts give great deference to a state
court's factual findings.

Hill, 210 F.3d at 485.

Secbion

2254(e) (1) provides that a determination of a factual issue made
by a state court shall be presumed to be correct.
2254(e) (1).

28 U.S.C.

§

This presumption of correctness applies to explicit

and implicit findings of fact which are necessary to the state
court's conclusions of mixed law and fact.

Valdez v. qockrell,

274 F.3d 941, 948 n.11 (5 th Cir. 2001). The petitioner has the

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burden of rebutting the presumption of correctness by clear and
convincing evidence.

28 U.S.C.

§

2254(e) (1).

When the Texas

Court of Criminal Appeals denies relief in a state habeas corpus
application without written order, it is an adjudication on the
merits, which is entitled to this presumption.

See Singleton v.

Johnson, 178 F.3d 381, 384 (5 th Cir. 1999); Ex parte Torres,
S.W.2d 469, 472 (Tex. Crim. App. 1997).

943

Under these

circumstances, a federal court may assume the state court applied
correct standards of federal law to the facts, unless there is
evidence that an incorrect standard was applied, and imply fact
findings consistent with the state court's disposition.
v. Sain, 372 U.S. 293, 314
491, 493 n.3

Townsend

(1963)1; Catalan v. Cockrell, 315 F.3d

(5 th Cir. 2002); Valdez,

274 F.3d at 948 n.11;

Goodwin v. Johnson, 132 F.3d 162, 183 (5 th Cir. 1997).
Sufficiency of the Evidence
At the guilt/innocence phase of petitioner's triar, the
state introduced, during the testimony of one of the responding
police officers, certified copies of the complaint, criminal
information, the "Plea Memorandum and Admonishments," and the

lThe standards of Townsend v. Sain have been incorporated
into 28 U.S.C. § 2254(d).
Harris v. Oliver, 645 F.2d 327, 330
n . 2 ( 5 th Ci r. 1981).
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"Order of Deferred Adjudication Placement on Community
Supervision" pertaining to petitioner's prior 2006
assault-family violence.

con~iction

for

(RR, vol. 3, at 56-64 & vol. 4, Ex. 8)

The information in that case alleged that, on or about August 6,
2005, petitioner "did then and there intentionally and knowingly
cause bodily injury to TODD WEDDLE, a family member of the
defendant's household, by STRIKING TODD WEDDLE ON HIS HEAD WITH
DEFENDANT'S HAND."

(RR, vol. 4, Ex. 8)

The plea documents and

the trial court's "Order of Deferred Adjudication Placement on
Community Supervision," reflects petitioner pleaded guilty,
pursuant to a plea bargain, to the offense of "ASSAULT CAUSES
BODILY INJURY FAMILY VIOLENCE" on June 29, 2006, and

w~s

placed

on deferred adjudication community supervision for twelve months.
(Id. )

Petitioner claims the evidence is legally insufficient to
support the finding that he had been previously convicted of
assault-family violence in 2006, which is necessary to enhance
his current offense to a felony, absent an affirmative finding of
family violence in the 2006 jUdgment, as required by article
42.013 of the Texas Code of Criminal Procedure, and in light of
evidence he elicited in a bill of exceptions that Weddle lived
with petitioner's sister and parents in a trailer at the time of
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the alleged 2005 assault, that Weddle was not married to
petitioner's sister and was not a family member, and that
petitioner was not living in the trailer at the time of the prior
offense.

(Id.,

vol. 3, at 6-10, 58-61, 144-54)

PROC. ANN. art. 42.013

TEX. CODE CRIM.

(Vernon 2006).2

In reviewing the sufficiency of the evidence in the context
of habeas corpus proceedings challenging the judgment of a state
court, a federal court's review is limited to determining
whether, based upon the record evidence adduced at trial, no
rational trier of fact could have found proof of guilt beyond a
reasonable doubt.
Cir. 1998)
(1979)).

Lucas v. Johnson, 132 F.3d 1069, 1078 (5 th

(citing Jackson v. Virginia, 443 U.S. 307, 324
The court's review of the evidence is conducted in the

light most favorable to the verdict.

Selvage v. Lynaugh, 823

F . 2 d 84 5, 84 7 ( 5 th Ci r. 198 7) .
The state appellate court addressed petitioner's claim as

2Art icle

42.013 provides:

In the trial of an offense under Title 5 [entitled
"Offenses Against the Person"], Penal Code, if the
court determines that the offense involved family
violence, as defined by Section 71.004, Family Code,
the court shall make an affirmative finding in the
judgment of the case.
Id.

(emphasis added) .
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follows:
Appellant challenges the legal sufficiency of the
evidence of the jurisdictional enhancement. That is,
Appellant contends that the State failed to prove that
he had been convicted previously of assault-family
violence. Because we hold that the evidence of the
jurisdictional enhancement is legally sufficient,we
affirm the trial court's judgment.
Section 22.01 of the penal code elevates a
misdemeanor assault-family violence offense to a thirddegree felony if the defendant has a prior conviction
for assault-family violence. Under the statute, a
defendant who pled guilty in the prior family violence
case and received deferred adjudication is treated as a
defendant who has a prior conviction.
Both parties agree that the prior misdemeanor
judgment for "ASSAULT CAUSES BODILY INJURY FAMILY
VIOLENCE" does not contain a finding of family
violence. Without an affirmative finding of family
violence in the prior judgment, to enhance the present
offense to a felony, the State was required to prove by
extrinsic evidence that the complainant in the prior
case was a family member or a member of Appellant's
household when the prior offense occurred. A judicial
confession, standing alone, can support a convict~on in
a case involving a guilty plea.
In reviewing the legal sufficiency of the evidence
to support a conviction, we view all of the evidence in
the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.
[citing Jackson v. Virginia, 443
U.S. 307 (1979)]
The trial court admitted, among other evidence,
certified copies of the information and Appellant's
signed plea memorandum and admonishments regarding the
2005 offense.
The information charged that Appellant
"did then and there intentionally and knowingly cause
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bodily injury to TOOD [sic] WEDDLE, a family member of
[Appellant's] household, by STRIKING TODD WEDDLE ON HIS
HEAD WITH [Appellant's] HAND." The plea memorandqm and
admonishments provide,
9. PLEA:
I hereby declare and state that I have read
the information filed in this case, and to that charge,
I enter my plea of: GUILTY/NOLO CONTENDERE (mark out
one and initial).
I enter this plea to the Court
voluntarily, of my own free will, and not under any
threat, compulsion of any nature, or delusive hope of
pardon
I understand that the Court can find me
guilty based on my plea alone.
DEFENDANT
Appellant circled and initialed UGUILTY" in the
paragraph and signed on the line marked UDEFENDANT."
Appellant also certified by his signature that
Ueverything in the Plea Memorandum and Admonishment and
the . . . Order Deferring Adjudication is correct iand
accurate," and he swore under oath, UI am the Def~ndant
in this cause.
I have read the foregoing plea
memorandum.
I understand it, and I have had this
document explained to me.
Everything contained herein
is true and correct to the best of my knowledge and
belief and has been voluntarily executed by me."
In the instant trial, Appellant offered evidence
through a bill of exceptions that the prior conviction
was not one of family violence because the complainant
was not yet Appellant's brother-in-law and he and
Appellant did not live at the same residence when the
incident occurred. Appellant does not challenge the
exclusion of this evidence on appeal.
Reviewing the evidence in the light most favorable
to the verdict, we hold that the evidence is legally
sufficient to sustain Appellant's conviction.
(State Habeas R. at 80-84 (citations omitted))

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The state court's adjudication of the claim is not
unreasonable nor is it contrary to or involve an unreasonable
application of Jackson.

Official records, such as the complaint,

information, plea documents signed by petitioner, his counsel and
the state trial jUdge, and the state trial court's judgment are
entitled to the presumption of regularity and are
evidentiary weight.
(5 th Cir. 1974).

acco~ded

great

Webster v. Estelle, 505 F.2d 926, 929-30

Petitioner has presented no legal authority or

evidence to rebut the presumption of regularity of the official
state court records pertaining to the 2006 plea proceedings and
conviction or the correctness of the state court's adjudication
of his claim.

The most common method of proving a prior

conviction is through the introduction of certified copies of a
judgment and sentence and/or other relevant court documents.

The

copy of the complaint, information, plea documents, and the state
trial court's order pertaining to petitioner's 2006 conviction
were properly admitted into evidence for enhancement purposes
through this method.

(RR, vol. 3, at 56-64 & vol. 4, Ex. 8)

This

documentary evidence was sufficient evidence upon which a
rational trier of fact could have found petitioner committed a
prior assault involving family violence beyond a reasonable
doubt, even though an affirmative finding of family violence was
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absent in the judgment.
For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.

§

2253(c), for

the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
petitioner has not made a substantial showing of the denial of a
constitutional right.
SIGNED March

~

, 2012.

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