Jose Alberto Rivera Acosta v. the State of Texas
05-20-00863-CR
| Tex. App. | Nov 4, 2021Background
- Appellant Jose Alberto Rivera pleaded guilty and true to a negotiated plea charging family-violence assault with an enhancement for a prior family-violence assault, and received five years’ deferred-adjudication and a $500 fine.
- The State moved to adjudicate based on alleged probation violations, including condition (r): no contact with victim Julie Vasquez.
- At the adjudication hearing, officer testimony described Vasquez’s January 13, 2020 injuries and Rivera’s arrest; Rivera admitted having sex with Vasquez that day and acknowledged he knew he should not contact her.
- The DA’s investigator admitted Securus jail-phone records: Exhibit 2 (call log showing 239 calls from Rivera’s PIN to one number) and Exhibit 3 (printout linking that number to Vasquez). Defense objected to hearsay.
- The trial court adjudicated Rivera guilty and sentenced him to five years’ imprisonment; Rivera appealed, challenging admission of the Securus records and asserting ineffective assistance rendered the enhancement invalid and the sentence improper.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Rivera) | Held |
|---|---|---|---|
| Admissibility of Securus call log (Exhibit 2) | Call log is computer-generated output admissible as non-hearsay. | Records are hearsay; should be excluded. | Exhibit 2 admissible: computer output not hearsay. |
| Admissibility of Securus owner printout (Exhibit 3) | Conceded error in admitting owner printout but argued harmless. | Exhibit 3 is hearsay tying number to Vasquez and lacked hearsay-exception proof. | Exhibit 3 admission was hearsay error but harmless. |
| Sufficiency to adjudicate/revocation | Evidence (officer, victim, Rivera’s admissions, call log) shows probation violation by preponderance. | Erroneous admission of Exhibit 3 prejudiced adjudication. | Any error was harmless; revocation/adjudication supported by other evidence. |
| Ineffective assistance / improper enhancement / sentence | Enhancement pleaded true; sentence within statutory range; State relies on record. | Prior conviction underlying enhancement was result of ineffective assistance; sentence thus improper. | Rivera failed to develop a firmly grounded Strickland claim on the record; enhancement stands and five-year sentence is within statutory range and affirmed. |
Key Cases Cited
- Hacker v. State, 389 S.W.3d 860 (Tex. Crim. App. 2013) (standard and burden for revocation of community supervision)
- Rickels v. State, 202 S.W.3d 759 (Tex. Crim. App. 2006) (preponderance standard for probation revocation)
- Dansby v. State, 468 S.W.3d 225 (Tex. App.—Dallas 2015) (probation-violation proof by greater weight of credible evidence)
- Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) (harmless-error standard for nonconstitutional evidentiary errors)
- Webb v. State, 557 S.W.3d 690 (Tex. App.—Texarkana 2018) (analysis of whether erroneous admission affected substantial rights)
- Stevenson v. State, 920 S.W.2d 342 (Tex. App.—Dallas 1996) (computer-generated records as non-hearsay)
- Murray v. State, 804 S.W.2d 279 (Tex. App.—Fort Worth 1991) (admissibility of automated system output)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Jackson v. State, 680 S.W.2d 809 (Tex. Crim. App. 1984) (sentence within statutory range will not be disturbed)