JEREMY LYNN FIGUEREDO, APPELLANT V. THE STATE OF TEXAS, APPELLEE
No. 07-17-00334-CR No. 07-17-00335-CR
In The Court of Appeals Seventh District of Texas at Amarillo
March 26, 2019
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
On Appeal from the 69th District Court Hartley County, Texas Trial Court No. 1256H; Honorable Richard Dambold, Senior Judge Presiding by Assignment
Following a bench trial, Appellant, Jeremy Lynn Figueredo, was convicted of two counts of the third-degree felony offense of bail jumping in Cause Number 1256H.1 The court assessed Appellant‘s punishment at three years confinement in the Institutional Division of the Texas Department of Criminal Justice, with each sentence to be served concurrently with the other and with Appellant‘s conviction in Cause Number 1232H, from the 69th District Court of Hartley County, Texas. By three issues, Appellant contends (1) the evidence was insufficient to establish his guilt beyond a reasonable doubt, (2) his trial counsel was ineffective for stipulating that he received notice of the court date at issue, and (3) prosecution for more than one offense of bail jumping, for the failure to appear at a single time and place to answer a single indictment (albeit, with multiple counts and separate bonds for each count), violates his protections against double jeopardy. We affirm.
BACKGROUND
On July 13, 2014, Appellant was arraigned on a single criminal complaint for the felony offenses of (1) burglary of a habitation and (2) evading arrest while using a vehicle, arising out of events occurring on July 11, 2014.2 On July 21, 2014, he was released after posting two $5,000 bail bonds, one for each offense. On July 25, 2014, Timothy Salley was appointed as Appellant‘s attorney.
Subsequently, on March 11, 2015, a Hartley County Grand Jury returned a single indictment in Cause Number 1232H, containing two counts, one for burglary of a habitation and one for evading arrest while using a vehicle. A capias was issued with respect to the newly-returned indictment and Appellant was again placed in custody on March 18, 2015. On March 20, 2015, Appellant was arraigned on the indictment and his bond was reset at $25,000
On July 15, 2015, the 69th District Court issued a Notice of Hearing, advising Appellant‘s counsel that a docket call was scheduled for Wednesday, August 12, 2015, at 9:00 a.m., in the courtroom of the 69th District Court in Channing, Hartley County, Texas. A copy of the notice was also provided to Appellant‘s bondsman, but no notice was sent directly to Appellant. At the time of the scheduled hearing, Appellant failed to appear. In response, the trial court entered a Judgment Nisi, Bond Forfeiture and issued a capias for Appellant‘s arrest as to each offense. Appellant was subsequently arrested on August 14, 2015.
On September 16, 2015, a Hartley County Grand Jury returned a single indictment in Cause Number 1256H, containing two counts of bail jumping,3 one with respect to the burglary of a habitation charge and one with respect to the charge of evading arrest while using a vehicle. On October 25, 2016, the State moved to dismiss the prosecution of the underlying burglary of a habitation cause and the trial court entered an order of dismissal as to that underlying charge. The State did not move to dismiss the associated bail jumping charge. A jury trial was commenced on March 20, 2017, with respect to the remaining charge of evading arrest while using a vehicle, and that proceeding resulted in a conviction and the imposition of a ten-year sentence.4
On July 24, 2017, a bench trial was commenced with respect to the two bail jumping charges. During that proceeding, Appellant‘s counsel, Dale Stemple, stipulated that Appellant did have notice of the August 12, 2015 pretrial hearing. In stating that stipulation on the record, Mr. Stemple specified that the stipulation was being made in order to avoid the necessity of having Appellant‘s prior attorney, Timothy Salley, testify. Notwithstanding that stipulation, Mr. Salley did testify, stating that he did not see Appellant in the courthouse on August 12th. At the conclusion of that proceeding, the trial court convicted Appellant of two counts of bail jumping and assessed a sentence of three years confinement with respect to each count. The trial court then ordered that the two sentences be served concurrent with each other and concurrent with Appellant‘s ten-year sentence for his conviction of evading arrest while using a vehicle. This appeal followed.
ISSUE THREE—DOUBLE JEOPARDY
For purposes of logical sequence, we will address Appellant‘s third issue first. Following original submission on briefs, this court requested additional briefing to address the question of whether Appellant‘s failure to appear at a single time and place could constitute more than one offense in those situations where the accused has posted separate bonds as to separate counts in the same indictment. The State analyzed the issue of preservation and concluded that absent an affirmative waiver, claims of double jeopardy are not forfeitable and could not be surrendered by mere inaction. See Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993), overruled on other grounds, Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997); Ex parte Marascio, 471 S.W.3d 832, 839 (Tex. Crim. App. 2015) (holding that the
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, protects an accused from being placed twice in jeopardy for the same offense.
Section 38.10 of the Texas Penal Code provides that, [a] person lawfully released from custody, with or without bail, on condition that he subsequently appear commits an offense if he intentionally or knowingly fails to appear in accordance with the terms of his release. See
Here, Appellant was released on two separate bonds, based on two separate offenses—burglary of a habitation and evading arrest with a vehicle. It does not matter that Appellant was required to appear at the same time, on the same date, at the same place. Each bail bond contract was a separate promise by Appellant to appear in court to answer that particular
Accordingly, we find the prosecution of more than one offense of bail jumping, for the failure to appear at a single time and place in accordance with the terms of more than one bond, constitutes a separate offense as to each bond, regardless of the number of charging instruments. Because the prosecution of Appellant for two offenses of bail jumping, based on his failure to appear in accordance with two separate bonds, as to two separate offenses (albeit contained in a single indictment) does not violate his double-jeopardy protections, issue three is overruled.
ISSUE ONE—SUFFICIENCY OF THE EVIDENCE
The only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In determining whether the evidence is legally sufficient to support a conviction, a reviewing court considers all the evidence in the light most favorable to the verdict and determines whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimonies, and a reviewing court must defer to those determinations and not usurp the jury‘s role by substituting its judgment for that of the jury. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)). The duty of a reviewing court is simply to ensure that the evidence presented supports the fact finder‘s verdict and that the State has presented a legally sufficient case of the offense charged. Id. When a reviewing court is faced with a record supporting contradicting conclusions, the court must presume the fact finder resolved any such conflicts in favor of the verdict, even when not explicitly stated in the record. Id. Under this standard, evidence may be legally insufficient when the record contains no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt. Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013)). Sufficiency of the evidence is measured against the elements of the offense as defined by the hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
A person commits the offense of bail jumping if he (1) has been lawfully released from custody, (2) on condition that he subsequently appear, (3) and then intentionally or knowingly fails to appear, (4) in accordance with the terms of his release.
Here, Appellant‘s bail bonds conditioned his release upon the requirement that Appellant:
shall well and truly make personal appearance before the District 69TH Court, Hartley County, Texas at the next term of said Court, at Hartley County Courthouse, Channing, Texas, on the (INSTANTER) day of ______, 20__, and there remain from day to day
and term to term until discharged by due course of law, then and there to answer said accusation: & furthermore shall well and truly make personal appearance at any time when, and place where, defendant‘s presence may be required under the Code or by any Court or Magistrate, in any and all subsequent proceeding[s] that may be had relative to said charge in the course of the criminal action based on said charge . . . .
Bail jumping is a result-of-conduct oriented offense because it is defined according to one‘s objective to produce a specific result. Walker v. State, 291 S.W.3d 114, 117 (Tex. App.—Texarkana 2009, no pet.) (citing Roberts v. State, 273 S.W.3d 322, 328-29 (Tex. Crim. App. 2008)). In other words, the State must offer sufficient proof that the conduct of the accused (failure to appear) was done with the requisite intentional or knowing culpable mental states. Id. To meet this burden, the State must establish Appellant either had personal notice to appear or was required to appear under the Code or by any Court or Magistrate. In all felony prosecutions, an accused is required to be present at the trial. See
As noted by the State in its brief, the only issue at trial was whether or not Appellant intentionally or knowingly failed to appear. Appellant contends the State failed to show he had the requisite culpable mental state because it failed to show he was aware of any obligation to personally appear in court on the date of the alleged offense. Specifically, Appellant contends the State offered no evidence that supports a finding that he was personally aware of an obligation to appear. He also contends the State offered no evidence that his trial counsel ever forwarded him any notice to appear or that he was otherwise aware of any personal obligation to be present for the August 12 pretrial hearing. The State counters this argument by contending that Appellant‘s trial counsel on the bail jumping charge, Mr. Stemple, stipulated that Appellant had notice of that court date and knew he was supposed to be in court on the date in question. While we have no independent evidence that Appellant was ever notified by his bondsman or counsel to appear at a specific time and place, Mr. Stemple‘s stipulation alone is sufficient to establish Appellant‘s failure to appear.
In addition, the State further contends Mr. Salley‘s trial testimony that he did not see [Appellant] that day supplies the evidence necessary to establish his guilt. In addition to Mr. Stemple‘s stipulation and Mr. Salley‘s statement that he did not see Appellant on the date of the scheduled hearing, the State offered the testimony of Kenneth Countryman, Appellant‘s bondsman, to establish that he had attempted to notify Appellant that he was supposed to be in court on August 12.
Finally, although the State did not ask the trial court to take judicial notice of the court‘s file in Cause Number 1232H and it never even offered into evidence the actual Notice of Hearing, the trial court is entitled to take judicial notice of its own proceedings, including pretrial scheduling matters. Therefore, as to the issue of Appellant‘s awareness of an obligation to personally appear, even if the trial court was not asked to consider that notice, it could still take judicial notice of any proceeding that actually occurred before the trial court itself.
Because the record establishes that Appellant failed to appear in court at the
ISSUE TWO—INEFFECTIVE ASSISTANCE OF COUNSEL
We examine ineffective assistance of counsel claims by the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To support a claim of ineffective assistance of counsel, Appellant has the burden to show by a preponderance of the evidence that (1) trial counsel‘s performance was deficient in that it fell below the prevailing professional norms and (2) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceedings would have been different. See Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). In conducting our review, counsel‘s conduct is viewed with great deference. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812.
Here, Appellant contends that his counsel‘s stipulation that he received notice of the hearing and his obligation to appear, apparently in order to avoid [his trial counsel] from testifying, caused him grievous harm because it established a factual issue the State bore the burden of proving in order to obtain a conviction. Appellant notes that the only evidence concerning his notice of an obligation to appear was that his father received notice from the bondsman on the morning of the scheduled court date that he had failed to appear for court and that he and his father immediately went to the courthouse. Appellant contends that, but for counsel‘s error in stipulating to his awareness of a hearing date and his obligation to appear, the State would not have been able to secure a conviction.
Appellant, however, fails to account for the fact that the appellate record must clearly support a claim of ineffective assistance of counsel; Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (stating that a claim of ineffective assistance of counsel must be firmly founded in the record), and, as a reviewing court, we must presume counsel was effective until proven otherwise. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004) (stating that [a]ppellate review of defense counsel‘s representation is highly deferential and presumes that counsel‘s actions fell within the wide range of reasonable and professional assistance). Furthermore, our analysis must take into account the totality of the representation rather than examining isolated acts or omissions. Id. The mere fact that another attorney may have taken a different tactic at trial is generally insufficient to prove a claim of ineffective assistance of counsel. Id. Under most circumstances, the record on direct appeal will not be sufficient to show that counsel‘s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the strong presumption that counsel‘s conduct was reasonable and professional. Id. at 510.
Appellant‘s contention of ineffective assistance fails to fully account for both the possible tactical or strategic reasons behind counsel‘s decision to stipulate to the
CONCLUSION
The judgments of the trial court are affirmed.
Patrick A. Pirtle
Justice
Publish.