Alexander Carlos Loredo A/K/A Alexander Carlos Loreda v. State ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-134-CR
ALEXANDER CARLOS LOREDO A/K/A
ALEXANDER CARLOS LOREDA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Alexander Carlos Loredo, aka Alexander Carlos Loreda, appeals
his conviction for aggravated assault. We affirm.
Appellant took a knife to a party at Stephen Whitmore’s home where he
was neither invited nor welcome. Stephen and others asked appellant to leave
multiple times but appellant refused. Finally, after Stephen had asked him to
1
… See Tex. R. App. P. 47.4.
leave at least fifteen times, appellant started walking out “slowly.” Stephen
gave him a shove out the door. Appellant had the knife out and slashed
Stephen, severing an artery in his arm and opening a ten-centimeter gash in his
side.
Appellant was indicted for aggravated assault with a deadly weapon. 2 On
January 11, 2008, he waived a jury trial, went over written plea
admonishments with the trial court, and executed plea documents that included
the following:
JUDICIAL CONFESSION
Upon my oath I swear my true name is Alexander Carlos
Loreda and I am 21 years of age; I have read the indictment or
information filed in this case and I committed each and every act
alleged therein, except those acts waived by the State. All facts
alleged in the indictment or information are true and correct. I am
guilty of the instant offense as well as all lesser included offenses.
. . . . I swear to the truth of all of the foregoing.
Appellant entered an open plea of guilty. The trial court ordered a
presentence-investigation report (“PSI”), which appellant later reviewed with his
trial counsel. On April 18, 2008, the trial court heard evidence on the issue of
punishment and sentenced appellant to six years in prison.
2
… Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009).
2
In his first point, appellant contends that the trial court erred by accepting
his guilty plea because his testimony during the punishment phase raised the
issue of self defense. Appellant did not assert self defense before the trial
court, and in fact, testified that he and his attorney decided that his actions did
not rise to the level of self defense. On appeal, however, he seizes upon his
own testimony at the punishment phase where he described cutting Stephen
with a knife because he felt fearful after being forcefully escorted from
Stephen’s home and finding himself confronted by five or six large boys with
their fists clenched.
The code of criminal procedure requires “sufficient evidence”
substantiating the guilt of a defendant who waives a jury trial in a felony case:
it shall be necessary for the state to introduce evidence into the
record showing the guilt of the defendant and said evidence shall
be accepted by the court as the basis for its judgment and in no
event shall a person charged be convicted upon his plea without
sufficient evidence to support the same. 3
Evidence is sufficient to support a judgment under article 1.15 if it embraces
every essential element of the offense charged and establishes the defendant’s
3
… Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); see Bowie v.
State, 135 S.W.3d 55, 64 (Tex. Crim. App. 2004) (there must be factual basis
for guilty plea at time judgment is rendered).
3
guilt. 4 When a defendant specifically states in a judicial confession, “I have
read the indictment or information filed in this case and I committed each and
every act alleged therein,” the judicial confession, standing alone, is sufficient
to support a guilty plea under article 1.15. 5
In this case, the trial court took judicial notice of appellant’s judicial
confession, which includes the language quoted above. Further, although the
judicial confession is sufficient, standing alone, the record contains additional
evidence supporting appellant’s guilty plea. Stephen testified that appellant
came uninvited to a party at his house, refused to leave despite being asked
multiple times, and then stabbed Stephen with a knife. Also, appellant testified
that he intentionally “kind of sprung” on Stephen and intentionally swung the
knife at him knowing that it could cause him serious bodily injury or death.
Appellant testified that he was in fear when he slashed Stephen with the
knife but agreed after discussing the law of self defense with his attorney that
his actions did not rise to the level of self defense. He testified that he had
4
… See Breaux v. State, 16 S.W.3d 854, 857 & n.2 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d) (providing that a judicial confession containing a
“catch-all” phrase that the defendant is guilty “as charged in the indictment”
is sufficient to support a conviction even if an element of the offense was
omitted).
5
… See Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996);
Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979).
4
been an uninvited guest in Stephen’s house and that Stephen somewhat
forcefully escorted him out followed by five or six large friends. He felt “some
threat” because he saw their “fists were clenching.” He further testified that
he already had the knife out and that, without warning Stephen to stay back,
he “kind of sprung him.”
To the extent that appellant’s testimony raises self defense, we hold that
the trial court, acting as factfinder, reasonably resolved the issue against
appellant. Moreover, appellant’s confession, because it embraces every
element of the offense charged, sufficiently supports appellant’s guilty plea and
negates any evidence allegedly raising the issue of self defense. Accordingly,
we overrule appellant’s first point.
In his second and third points, appellant argues that the trial court erred
by accepting his plea because it was entered involuntarily.
To preserve a complaint for our review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific
grounds for the desired ruling if they are not apparent from the context of the
request, objection, or motion. 6 Further, the trial court must have ruled on the
request, objection, or motion, either expressly or implicitly, or the complaining
6
… Tex. R. App. P. 33.1(a)(1); see Mosley v. State, 983 S.W.2d 249,
265 (Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070
(1999).
5
party must have objected to the trial court’s refusal to rule. 7 Except for
complaints involving systemic requirements, or rights that are waivable only,
all other complaints, whether constitutional, statutory, or otherwise, are
forfeited by failure to comply with Rule 33.1(a). 8 “Systemic” requirements
include, for example, jurisdictional issues or a penal statute’s compliance with
the separation of powers provision in the Texas constitution. 9
The voluntariness of a plea is not a systemic requirement; thus,
complaints related to voluntariness must be raised in the trial court to be
preserved for our review. 10 Although the clerk’s record contains a motion for
new trial that asserts appellant’s plea was involuntary, there is nothing in the
record to show that appellant presented his motion to the trial court.
7
… Tex. R. App. P. 33.1(a)(2); see Mendez v. State, 138 S.W.3d 334,
341 (Tex. Crim. App. 2004).
8
… Mendez, 138 S.W.3d at 342.
9
… See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002).
10
… See Mendez, 138 S.W.3d at 338, 350; Starks v. State, 266 S.W.3d
605, 613 (Tex. App.—El Paso 2008, no pet.); Williams v. State, 10 S.W.3d
788, 789 (Tex. App.—Waco 2000, pet. ref’d); see also Stermer v. State, No.
02-07-00425-CR, 2009 WL 1035237, at *4 (Tex. App.—Fort Worth Apr. 16,
2009, no pet.) (mem. op., not designated for publication) (holding that the
appellant forfeited his voluntariness complaint by not raising it in the trial court);
Nolly v. State, Nos. 02-04-00251-CR, 02-04-00257-CR, 2005 WL 555215, at
*3 (Tex. App.—Fort Worth Mar. 10, 2005, no pet.) (mem. op., not designated
for publication) (same).
6
Therefore, appellant’s complaints based upon involuntariness of his guilty plea
are not preserved for our review. 11 Accordingly, we overrule appellant’s second
and third points.
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 19, 2009
11
… Tex. R. App. P. 21.6, 33.1(a); see Mendez, 138 S.W.3d at 350;
Stokes v. State, 277 S.W.3d 20, 21 (Tex. Crim. App. 2009).
7