Joseph Gutierrez A/K/A Joseph Ruben Gutierrez v. the State of Texas ( 2023 )

NUMBER 13-22-00042-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOSEPH GUTIERREZ A/K/A
JOSEPH RUBEN GUTIERREZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 23rd District Court
of Wharton County, Texas.
MEMORANDUM OPINION
Before Justices Tijerina, Silva, and Peña
Memorandum Opinion by Justice Tijerina
Appellant Joseph Gutierrez a/k/a Joseph Ruben Gutierrez appeals his conviction
of attempted capital murder. See TEX. PENAL CODE ANN. §§ 15.01, 19.03. By three issues,
Gutierrez argues that: (1) his guilty plea is invalid because there was no meeting of the
minds; (2) the sentence must be “redone as [Gutierrez] is entitled to an individualized
sentence within legal parameters”; and (3) his trial counsel rendered ineffective
assistance at the punishment phase. We affirm.
I. BACKGROUND
On October 7, 2021, Gutierrez was indicted on three counts of attempted capital
murder of a peace officer; one count aggravated assault of a deadly weapon; and four
counts of possession of a controlled substance with intent to deliver—for a total of eight
counts. See TEX. PENAL CODE ANN. §§ 15.01 (“Criminal Attempt”); 19.03 (“Capital
Murder”), 22.02(b)(1) (“Aggravated Assault”); TEX. HEALTH & SAFETY CODE ANN.
§ 481.112. On October 12, 2021, the State enhanced the three counts of attempted
capital murder by alleging a deadly weapon. Shortly thereafter, the State dismissed the
charge of aggravated assault with a deadly weapon and abandoned “with intent to deliver”
on the possession charges. Gutierrez filed a motion for the trial court to assess deferred
adjudication.
On November 12, 2021, at the plea hearing, the trial court ascertained that
Gutierrez was mentally competent. Gutierrez affirmed he understood that he was charged
with “attempted capital murder,” and the State informed the trial court that as part of a
plea agreement, it would “set aside everything but Count 1 after punishment occurs.” The
State added that it filed notice of a deadly weapon finding.
Gutierrez confirmed that he understood the charges. The trial court inquired about
Gutierrez’s trial counsel assistance in the case, whether counsel was effective, and
whether counsel answered all of Gutierrez’s questions. Gutierrez repeatedly responded,
“Yes, sir.” The trial court stated:
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[I]f this plea agreement goes through, the only plea—only count that will be
pending against you is attempted capital murder of a peace officer or
fireman. So, that’s what we’d be proceeding on . . . it’s my understanding
that the State never made any concrete offer of a sentence to you, in other
words, probation or time in prison. So, this would be what we call an open
plea. That means you’re going to plead guilty today[,] and I’m going to find
you guilty, if we go through with this. So, you’ll be convicted. But then we’re
going to recess and next Wednesday we’re going to hear evidence in a
punishment phase and then the probation department does what’s called a
Presentence Investigation Report. And that’s going to be given to me in,
more or less, six weeks, somewhere around that; and then we come back[,]
and I determine what the sentence is and sentence you.
Gutierrez then pleaded guilty to count one of attempted capital murder with a
deadly weapon. See id. §§ 15.01, 19.03. Gutierrez expressed that he was entering the
plea freely and voluntarily, and that he was not promised anything to plead guilty “other
than the plea agreement, which is indefinite as to the sentence.” The trial court explained
that Gutierrez was “also giving up the right to appeal to a higher court except as to the
sentence” and that Gutierrez would not be able to appeal whether he was guilty or not
guilty. The State entered the written plea admonishments and Gutierrez’s judicial
confession into the record. The trial court accepted Gutierrez’s guilty plea.
One week later, the trial court heard evidence on the punishment phase of trial. At
the conclusion of the hearing, the trial court adjudicated Gutierrez guilty and sentenced
Gutierrez to thirty-eight years’ imprisonment. This appeal followed.
II. VOLUNTARINESS OF GUILTY PLEA
By his first issue, Gutierrez argues that “[t]here was no meeting of the minds when
people attempt to bargain for an impossibility.” According to Gutierrez, his trial counsel,
the State, and the trial court “all thought that a potential for deferred adjudication
community supervision existed,” but “they were wrong” because deferred adjudication
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cannot be given in a case of attempted capital murder with a deadly weapon. Therefore,
this renders Gutierrez’s plea “involuntary.” The State responds, asserting that there was
a “meeting of the minds when the plea was entered” to the trial court because “a trial court
has authority to place a defendant on deferred adjudication for the offense of attempted
capital murder.” However, we need not address this issue as discussed below. See TEX.
R. APP. P. 47.1.
Where the defendant in a criminal action has pleaded guilty and the punishment
assessed is not greater than that recommended by the prosecutor, the appellant must
have permission of the trial court to appeal the case, except on those matters that have
been raised by written motion prior to trial. See TEX. R. APP P. 25.2(a)(2)(A), (B); Cooper
v. State, 45 S.W.3d 77, 82–83 (Tex. Crim. App. 2001) (en banc); Escochea v. State, 139
S.W.3d 67, 75 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.). The facts before us
are similar to Gabriel, and we find Gabriel persuasive. See Gabriel v. State, Nos. 13-12-
00366-CR, 13-12-00367-CR, 2012 WL 8013980, at *1 (Tex. App—Corpus Christi–
Edinburg Dec. 28, 2012, no pet.) (mem. op., not designated for publication). In Gabriel,
appellant pleaded guilty to possession of a controlled substance, and the trial court
sentenced defendant to twenty-five years’ imprisonment. See id. Appellant contended the
plea was involuntary, but this Court held that we had “no jurisdiction to address appellant’s
complaint that his guilty pleas were involuntary” because the trial court did not grant the
appellant the right to appeal after entering a plea agreement. Id.Here, Gutierrez pleaded guilty to attempted capital murder, the punishment
assessed was not greater than that recommended by the State, and the trial court did not
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grant Gutierrez the right to appeal any issues that were not raised by written motion prior
to his guilty plea. See TEX. R. APP P. 25.2.(a)(2)(A), (B); Cooper, 45 S.W.3d at 82–83; see
also Gabriel, 2012 WL 8013980, at *1. Instead, the trial court’s certification expressly
states that it was “a plea-bargain case, and the defendant has NO RIGHT OF APPEAL
as to guilt” and may only appeal the “punishment phase.” See TEX. R. APP P.
25.2.(a)(2)(A), (B). Because Gutierrez waived his right to appeal the guilt and innocence
phase of trial, we decline to address Gutierrez’s complaint that his guilty plea was
involuntary due to his alleged mistaken belief that he may be placed on deferred
adjudication. See Cooper, 45 S.W.3d at 81 (“When we actually consider the issue of
whether voluntariness of a guilty plea may be raised on appeal from a plea-bargained,
felony conviction, we find that the answer must be that it may not.”); Escochea, 139
S.W.3d at 84 (recognizing that the appellant “waived any appeal of the voluntariness of
his plea when he pleaded guilty to a felony pursuant to an agreed punishment
recommendation”). We overrule his first issue.
III. SENTENCE
By his second issue, Gutierrez argues that his sentence “must be redone as [he]
is entitled to an individualized sentence within legal parameters.” Gutierrez states that
“the trial court must be given the opportunity to either correct its sentence or give the
reasons it would stay at the same sentence” because “there appears to have been a
misunderstanding as to the true possible sentence.” We disagree with Gutierrez.
“A sentence outside the maximum or minimum range of punishment is
unauthorized by law and therefore illegal.” Escochea, 139 S.W.3d at 80 (citing Mizell v.
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State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003)). The range of punishment for
attempted capital murder is between life imprisonment or five to ninety-nine years
imprisonment. See TEX. PENAL CODE ANN. § 12.32(a) (providing that the range of
punishment for a first-degree felony shall be punished by imprisonment for life or for any
term of not more than 99 years or less than five years). Here, the trial court sentenced
Gutierrez to thirty-eight years’ imprisonment, which is within the legal parameters—
contrary to Gutierrez’s assertion on appeal. Gutierrez has provided no authority and we
have found none which dictates that the trial court “give the reasons it would stay at the
same sentence,” and we disagree with Gutierrez’s assertion that the trial court
misunderstood “the true possible sentence” when the trial court sentenced Gutierrez
within the guidelines for a first-degree felony. We overrule his second issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
By his third issue, Gutierrez argues that his trial counsel was ineffective at the
punishment phase.
A. Evidence
Officer Kendrick Matula from the El Campo Police Department (ECPD) testified
that on June 13, 2021, he was on patrol when he received a call-in reference to a rolling
disturbance between people in a vehicle. His body camera video was admitted into
evidence. In the video, Officer Matula is seen chasing a white Kia, where Gutierrez was
a passenger, with lights and sirens. Suddenly, the Kia makes an abrupt stop, Gutierrez
exits from the passenger side, stands and faces Officer Matula and his unit, and fires two
shots at Officer Matula as Officer Matula attempts to exit his unit. Officer Matula then
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ducks down while his windshield shatters. Officer Matula exits his unit and runs away from
the fire while holding his weapon in Gutierrez’s direction.
Officer Matula testified that he felt “some force strike [his] left shoulder.” At this
point, his unit stayed in drive because he was unable to shift it to park in haste to leave
the scene. Officer Matula’s unit is seen moving unoccupied down the road with the door
ajar. Officer Matula ran back to his vehicle and alerted dispatch, “Shots fired!” He stated
he was in fear for life at this point.
When Officer Matula continued the pursuit, he arrived at a nearby intersection
where the Kia was now crashed into a ditch. Officer Matula and ECPD Officer C.A.
Guynes yelled at Gutierrez and the driver to come out with their hands up. Gutierrez and
the driver fled into a nearby field. Eventually, the officers apprehended Gutierrez and the
driver. When Officer Matula handcuffed Gutierrez, he instructed Gutierrez not to move;
Officer Matula explained he was concerned Gutierrez was going to shoot at him again or
at another officer.
Officer Matula recovered Gutierrez’s loaded firearm along with a safe, which he
located on the front passenger floorboard. EMS evaluated Officer Matula, and they
discovered glass on his face. Officer Matula further testified that when he arrived home,
he noticed several red marks on his left shoulder. He explained that this incident has
affected him because it has given him nightmares, he does not like being left alone, and
he is currently undergoing counseling.
In Officer Guynes’s dash cam video, the trial court was able to see the Kia
attempting to run Officer Guynes and his unit off the road as the Kia swerved directly into
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his path. Officer Guynes drove off the road to avoid a collision. As Officer Guynes
continued the pursuit, the Kia crashed into a ditch, and Gutierrez and the driver ran in a
nearby field. Similar events unfolded in ECPD Officer G. Perales’s body cam video.
Officer Perales was on the same chase when he was suddenly run off the road and drove
over a ditch and into a yard, causing his unit to stop. He then described the location of
the suspects, and stated, “He just ran me off the road.”
Sergeant Ryan Schaer testified that he interviewed Gutierrez. During the interview,
Gutierrez was “emotionless,” “[v]ery matter of fact,” and “just telling a story.” Gutierrez
admitted to using marijuana and Xanax. Gutierrez told Sergeant Schaer that he took his
ex-girlfriend’s car, Ashley, and he saw that she was chasing him. He then picked up his
cousin and switched seats to the passenger side. Gutierrez admitted he then fired three
rounds into Ashley’s car. Once Gutierrez saw Officer Matula coming towards him in his
unit, Gutierrez told his cousin to stop the vehicle, Gutierrez exited the vehicle, and he fired
two rounds directly at Officer Matula “to get away.”
Sergeant Schaer obtained a search warrant for the contents inside the safe due to
an “incredible” odor of marijuana permeating from the safe. Inside the safe, Sergeant
Schaer recovered eight grams of methamphetamine, six bags of marijuana, eight THC
cartridges, one bottle of Xanax, plastic bags, twelve assorted packages, a digital scale, a
spoon, a crystalline substance, seventeen packages of THC edibles, and a cell phone.
Priscilla Shorter, Officer Matula’s mother, testified that she fell to her knees when
she was informed that Officer Matula was involved in a shooting. At that time, she was
unaware Officer Matula had not been injured. When she found out that her son was okay,
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she thanked God, and told him she loved him.
Gutierrez’s grandfather, Jesus Gutierrez, testified on behalf of his grandson. He
stated that Gutierrez was “always a good boy,” and he “never had any problems with him.”
Jesus stated he has always been very strict with Gutierrez and never lets him have
freedom. According to Jesus, Ashley took advantage of Gutierrez, gave him drugs, and
convinced him to drop out of school. Jesus explained that Gutierrez was not in his right
mind when this incident occurred because it was very uncharacteristic of Gutierrez. Prior
to the incident, Jesus was with Gutierrez at a convenience store, and Jesus noticed that
Gutierrez was not in his right mind because he could not speak properly. Jesus instructed
Gutierrez to go straight home, but instead these incidents transpired. Jesus apologized
to the trial court, explained that Gutierrez was a “good boy but he got involved with the
wrong people.”
Gutierrez apologized to Officer Matula for his actions and requested that the trial
court place him on community supervision in light of his youth and to give him an
opportunity to be rehabilitated because no one was seriously injured over his “big
mistake.” The State countered that this was not a big mistake but a “major mistake,” and
if Officer Matula did not “have the reflexes that he did, [the State] could have been here
on a capital murder” seeking the death penalty. The State further argued that Gutierrez’s
extensive culpability warranted a more severe sentence, namely: shooting at Ashley’s
vehicle with three civilians in it, getting involved in a high-speed chase further
endangering the members of the El Campo Community, getting out of the Kia while
pointing the gun directly at Officer Matula and shooting at him, and then swerving to cause
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other officers to veer off the road.
The trial court explained:
I agree with most of what both counsel said, and I weighed all that in making
a decision. [Gutierrez] has thrown away his life, regardless of what the
sentence is; but he tried to throw away many more lives than that.
[Officer Matula] directly faced losing his life; but his family, his friends,
all his colleagues—I know he’s a very well-liked person and respected, and
he made a big impression on me.
And just by coincidence, I met [Gutierrez’]s little brothers out one [sic]
of the first—the day we had the guilty plea and they’re really innocent, cute
little kids[,] and I hope somebody keeps them on a path other than where
[Gutierrez] is going.
And as I said a few minutes ago, I already telegraphed what my
sentence is going to be[,] and I took a lot of factors into account in
determining what it is but a lot of it was, of course, the factors in this case
and then the history of the different sentences that I’ve handed out that were
my decision over the years and the result I came up with is 38 years.
So, Mr. Gutierrez, having ple[a]d[ed] guilty and now going to be found
guilty and a conviction entered, I do assess your punishment at and
sentence you to serve 38 years in the Institutional Division of the Texas
Department of Criminal Justice.
B. Applicable Law
Ineffective assistance of counsel claims are evaluated under a two-part test
formulated in Strickland, requiring a showing of both deficient performance and prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Cannon v. State, 252 S.W.3d 342,
349–50 (Tex. Crim. App. 2008). An attorney’s performance is deficient when it falls “below
an objective standard of reasonableness under prevailing professional norms and
according to the necessity of the case.” Ex parte Moore, 395 S.W.3d 152, 156–57 (Tex.
Crim. App. 2013) (internal quotations omitted).
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In evaluating trial counsel’s performance, we must indulge a “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional assistance”
and was motivated by sound trial strategy. In re M.S., 115 S.W.3d 534, 549 (Tex. 2003).
When the record is silent concerning the reasons for trial counsel’s actions, we do not
engage in speculation to find ineffective assistance of counsel. Gamble v. State, 916
S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Accordingly, ineffective
assistance claims “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) (cleaned up). “Failure to satisfy either prong of the Strickland test is fatal.”
Johnson v. State, 432 S.W.3d 552, 555 (Tex. App—Texarkana 2014, pet. ref’d) (citing Ex
parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006)). “Thus, we need not
examine both Strickland prongs if one cannot be met.” Id.; Strickland, 466 U.S. at 697.
C. Discussion
Here, Gutierrez did not file a motion for new trial. In the absence of a record of
counsel’s reasoning, we must generally presume that appellant’s trial counsel had a
plausible reason for his actions. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim.
App. 1999). To find that Gutierrez’s trial counsel was ineffective would thus call for
speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.
App. 1994); Gamble, 916 S.W.2d at 93. Nonetheless, Gutierrez argues that trial counsel
failed to present mitigating evidence such as: (1) Gutierrez “had not actually hurt anyone”
even though the experience was “frightening for the officer”; (2) Gutierrez was “apparently
using drugs”; (3) Gutierrez was “prone” to indiscretions due to his youth; and (4) Gutierrez
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had mental health problems. Lastly, Gutierrez states that trial counsel “did almost no
investigation.”
First, we note that trial counsel did request that the trial court place him on
community supervision “[i]n light of his youth,” and trial counsel did request that the trial
court consider that “no one needed so much as a Band-aid.” Furthermore, trial counsel
requested a mental health evaluation, which was provided to the trial court in the
presentence investigation report. As previously stated, the record is silent as to what
investigative steps trial counsel took and what conclusions he may have drawn. See
Stokes v. State, 298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d)
(providing that a claim for ineffective assistance based on trial counsel’s failure to
investigate generally fails absent a showing of what the investigation would have revealed
that reasonably could have changed the result of the case); Brown v. State, 129 S.W.3d
762, 767 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“We will not assume that counsel
did not investigate a defense when the record is merely silent as to the depth of counsel’s
investigation.”).
Even assuming without deciding that trial counsel’s performance was deficient
during the punishment phase, Gutierrez does not prevail on his ineffective assistance
claim because he has not shown he was prejudiced by trial counsel’s deficient
performance. An appellant is required to show that mitigating evidence was available
before he can establish ineffective assistance based on a failure to present mitigating
evidence. See Bone v. State, 77 S.W.3d 828, 834–35 (Tex. Crim. App. 2002). Gutierrez
did not present any mitigating evidence because he raises his ineffective assistance claim
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for the first time on direct appeal; thus, we are unable to determine whether the trial court
would have imposed a less severe punishment had Gutierrez presented mitigating
evidence. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (“Direct
appeal is usually an inadequate vehicle for raising such a claim because the record is
generally undeveloped.”). Nonetheless, the trial court sentenced Gutierrez well below the
maximum sentence of ninety-nine years or life imprisonment. See Lampkin v. State, 470
S.W.3d 876, 919 (Tex. App.—Texarkana 2015, pet. ref’d) (noting factors considered in
assessing prejudice at punishment phase include whether defendant received maximum
sentence and any disparity “between the sentence imposed and the sentence(s)
requested by the respective parties”). We conclude Gutierrez failed to demonstrate a
reasonable probability that but for trial counsel’s deficient performance, the trial court
would have assessed his punishment differently. See Strickland, 466 U.S. at 669. We
overrule his last issue.
V. CONCLUSION
We affirm the judgment of the trial court.
JAIME TIJERINA
Justice
Do not publish.
TEX. R. APP. P. 47.2 (b).
Delivered and filed on the
20th day of July, 2023.
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