Albino A. Nunez v. the State of Texas

NO. 12-20-00268-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ALBINO A. NUNEZ, § APPEAL FROM THE 145TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
Albino A. Nunez appeals his convictions for retaliation and harassment by a person in a
correctional facility. In two issues, Appellant argues that the evidence is legally and factually
insufficient to support a finding of guilt, and that his trial counsel rendered ineffective assistance.
We affirm.
BACKGROUND
Appellant was charged by indictment with retaliation by intentionally and knowingly
threatening to harm a person, by an unlawful act, namely threatening to kill that person, in
retaliation for, or on account of, the service of that person as a public servant, namely a sheriff’s
deputy, a third degree felony. 1 Further, Appellant was charged with harassment by a person in a
correction facility by, with the intent to assault, harass, or alarm, causing a person the Appellant
knew to be a public servant, namely a peace officer, to contact the saliva of the Appellant, and
the person was then and there lawfully discharging an official duty, namely transporting
Appellant, a third degree felony. 2 The State filed notice to use Appellant’s prior conviction of
second degree felony burglary for enhancement purposes.

1
See TEX. PENAL CODE ANN. § 36.06(a)(1)(A), (c) (West 2016).
2
See id. § 22.11 (a)(3), (b) (West 2019).
On January 10, 2019, Appellant’s counsel filed a notice of intent to raise the insanity
defense. Later, counsel filed a motion for examination regarding insanity, requesting that
Appellant be examined by a psychiatrist, James Buckingham, M.D., and the trial court ordered
such psychiatric examination on the issue of insanity. In Buckingham’s opinion, he could not say
that Appellant was insane at the time of the incident. On April 17, Appellant made an “open”
plea of guilty to the charges of retaliation and harassment by person in a correctional facility.
Appellant and his counsel signed various documents regarding his “guilty” pleas including a
waiver, stipulation and judicial confession, admonitions to defendant, and an agreed punishment
recommendation in which Appellant judicially confessed to the offenses alleged in the
indictment, admitted that he committed each and every element alleged, and admitted that he was
guilty as charged.
Also on April 17, Appellant made an “open” plea of “guilty” to the charges of retaliation
and harassment by person in a correctional facility. He also pleaded “true” to the felony
enhancement conviction. The trial court found that Appellant was competent to stand trial, that
the evidence was sufficient to sustain a conviction, and that Appellant entered his pleas freely,
knowingly, and voluntarily. The trial court accepted Appellant’s plea of “true” to the
enhancement. However, the trial court stated that it would “hold off” on finding Appellant guilty.
Appellant subsequently failed to appear for his sentencing hearing. After he was arrested,
and upon motion by his counsel, the trial court ordered that Appellant be evaluated for
competency to stand trial. On February 19, 2020, the trial court found that Appellant was
incompetent to stand trial and ordered that Appellant be committed and confined to a state
hospital for a period not to exceed 120 days. At the end of July 2020, Appellant was deemed
competent to stand trial. During a punishment hearing, the trial court took judicial notice of
Buckingham’s psychiatric evaluation regarding insanity that was filed with the court. The trial
court found the felony enhancement conviction to be “true,” and found Appellant “guilty” of
retaliation and harassment by person in a correctional facility. The trial court assessed
Appellant’s punishment at nineteen years of imprisonment for each offense to run concurrently.
This appeal followed.

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SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant argues that the evidence is legally and factually insufficient to
support a finding of guilt.
Standard of Review and Applicable Law
The standard of review announced in Jackson v. Virginia is not applicable when the
defendant enters a plea of guilty or nolo contendere. Chindaphone v. State, 241 S.W.3d 217, 219
(Tex. App.—Fort Worth 2007, pet. ref’d). Once a defendant enters a valid guilty plea, the state is
no longer constitutionally required to prove his guilt beyond a reasonable doubt. McGill v. State,
200 S.W.3d 325, 330 (Tex. App.—Dallas 2006, no pet.). Article 1.15 of the code of criminal
procedure requires the state to introduce evidence showing the guilt of the defendant. TEX. CODE
CRIM. PROC. ANN. art. 1.15 (West 2005). Such 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.” Id.
To substantiate a guilty plea, there must be evidence “in addition to, and independent of,
the plea itself to establish the defendant’s guilt.” Menefee v. State, 287 S.W.3d 9, 14 (Tex. Crim.
App. 2009). A stipulation of evidence or judicial confession, standing alone, is sufficient to
sustain a conviction upon a guilty plea so long as it establishes every element of the offense
charged. See id. at 13. A “catch-all” stipulation may constitute a judicial confession and alone
will support a conviction. See Adam v. State, 490 S.W.2d 189, 190 (Tex. Crim. App. 1973)
(stipulation that “all the acts and allegations in said indictment (count no. one (1) of said
Indictment) charging the offense of Sale of a Narcotic Drug, to-wit: Heroin are true and correct”
was sufficient). A written confession approved by the trial court can substantiate a guilty plea
even if not introduced into evidence. Jones v. State, 373 S.W.3d 790, 793 (Tex. App.—Houston
[14th Dist.] 2012, no pet.) (citing Rexford v. State, 818 S.W.2d 494, 495–96 (Tex. App.—
Houston [1st Dist.] 1991, pet. ref ‘d)).
Judicial Confession
Appellant signed a written confession in his retaliation charge stating that

I do admit and judicially confess that I knowingly, intentionally, and unlawfully committed the
acts alleged in the indictment, at the time, in the place, and in the manner alleged. I am in fact
GUILTY of the offense of RETALIATION. I enter my plea of GUILTY to said offense. My plea
of GUILTY is voluntary, and is not influenced by any consideration of fear or any persuasion or
any delusive hope of pardon.

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Appellant made an identical judicial confession in his harassment by person in a
correctional facility charge. The confessions were signed as approved by the trial court.
Additionally, the trial court approved Appellant’s waivers and “consents” at the plea hearing. We
conclude that the judicial confessions alone are sufficient to substantiate Appellant’s “guilty”
pleas. See Adam, 490 S.W.2d at 190; Rexford, 818 S.W.2d at 495–96.
Insanity Defense
However, Appellant contends that the trial court ruled against the “great weight and
preponderance” of the evidence in finding that he was not insane at the time of the incident.
Pursuant to Section 8.01 of the Texas Penal Code, it is an affirmative defense to prosecution that,
at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did
not know that his conduct was wrong. See TEX. PENAL CODE ANN. § 8.01(a) (West 2021). A
defendant is presumed sane and that he intends the natural consequences of his acts. Ruffin v.
State, 270 S.W.3d 586, 591 (Tex. Crim. App. 2008). The insanity defense focuses on whether
the accused understood the nature of his action and whether he knew he should not do it. Id. at
592. The defendant must prove insanity by a preponderance of the evidence. See TEX. PENAL
CODE ANN. §§ 2.04(d) (West 2021), 8.01.
The trial court took judicial notice of Dr. Buckingham’s psychiatric evaluation regarding
insanity. Buckingham stated that a diagnosis of substance induced psychotic disorder for
Appellant was “most likely.” According to Buckingham, Appellant admitted that at the time of
the incident, he had some marijuana in his system and was in “some kind” of withdrawal from
methamphetamine. Buckingham stated that it was difficult to “state that [Appellant’s] erratic,
irrational behavior at the time of the alleged offense was based on a mental disease or defect
unrelated to his substance abuse withdrawal from [methamphetamine] and recent use of
marijuana.” As a result, he stated that he could not say that Appellant was insane at the time of
the incident due to the role substance abuse likely had in his conduct.
Further, Appellant’s testimony does not support a reasonable inference that he did not
know that his conduct was wrong at the time of the incident. See Cloninger v. State, No. 05-15-
01234-CR, 2017 WL 908788, at *4 (Tex. App.—Dallas Mar. 8, 2017, pet. ref’d) (mem. op., not
designated for publication). Appellant testified he watched the incident during the punishment
hearing, felt “pretty bad” about his conduct, and told Buckingham that he was embarrassed by
his behavior. Before the incident, Appellant stated that he was on a “comedown” from using

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methamphetamine about four days prior and believed that the government was communicating
with him through his cellular telephone and television. Then he began knocking on doors to sell
asphalt and a man called him a “gypsy,” hurting his feelings. At that point, he decided to kill
himself and drove his vehicle into a ditch. Although Appellant stated he had been diagnosed with
several mental health issues including borderline personality disorder, psychosis, bipolar
disorder, and substance abuse, he did not testify or produce any evidence that he did not know
his conduct was wrong at the time of the incident. See Plough v. State, 725 S.W.2d 494, 500
(Tex. App.—Corpus Christi 1987, no pet.). Nor did he testify that he was suffering from a severe
mental disease or defect at the time of the incident.
The factfinder is the sole judge of the weight and credibility of the evidence and is free to
draw any reasonable inference from the evidence. See Adames v. State, 353 S.W.3d 854, 860
(Tex. Crim. App. 2011). The factfinder has the duty to resolve conflicts in the testimony.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We presume the factfinder
resolved any conflicts in favor of its decision and defer to the determination. Id. Although these
principles apply to the sufficiency standard under Jackson v. Virginia, they clearly support the
trial court’s resolution of the evidence under the standard applicable in this case. See Cloninger,
2017 WL 908788, at *4. The trial court as trier of fact in this plea proceeding was free to accept
or reject the evidence regarding Appellant’s insanity defense and, based on his words and
conduct, could reasonably reject any inference that Appellant did not know his conduct was
wrong. See id. Accordingly, Appellant did not prove the affirmative defense of insanity by a
preponderance of the evidence. We overrule Appellant’s first issue.

INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Appellant argues that his counsel rendered ineffective assistance of
counsel.
Standard of Review and Applicable Law
In reviewing an ineffective assistance of counsel claim, we apply the United States
Supreme Court’s two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim.
App. 1986). To prevail on an ineffective assistance of counsel claim, an appellant must show that
(1) trial counsel’s representation was deficient, and (2) the deficient performance prejudiced the

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defense to the extent that there is a reasonable probability that the result of the proceeding would
have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 687,
694, 104 S. Ct. at 2064, 2068. An appellant must prove both prongs of Strickland by a
preponderance of the evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).
Failure to make the required showing of either deficient performance or sufficient prejudice
defeats an appellant’s ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999).
To establish deficient performance, an appellant must show that trial counsel’s
representation fell below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65. “This requires showing that
[trial] counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id., 466 U.S. at 687, 104 S. Ct. at 2064. To
establish prejudice, an appellant must show that there is a reasonable probability that, but for
counsel’s deficient performance, the result of the proceeding would have been different. Id., 466
U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id.
In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994). We must presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. It is the appellant’s burden to
overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d
at 712. Moreover, “[a]ny 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
813. When, as here, no record specifically focusing on trial counsel’s conduct was developed at a
hearing on a motion for new trial, it is extremely difficult to show that counsel’s performance
was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9
S.W.3d at 814. Absent an opportunity for trial counsel to explain the conduct in question, we will
not find deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (citation omitted).

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Analysis
On appeal, Appellant alleges that his attorney’s performance at trial fell below the
professional norm because he failed to (1) properly review and challenge Appellant’s psychiatric
evaluation regarding insanity prior to the plea hearing; (2) request the assistance of a psychiatrist
to develop issues relevant to the defense; (3) adequately view discovery; and (4) acquire relevant
medical and psychiatric records during his investigation. Appellant has the burden to present a
sufficient record of reversible error. See TEX. R. APP. P. 34.6; see also Thompson, 9 S.W.3d at
814. The record is silent as to why trial counsel may have failed to challenge the psychiatric
evaluation, to request the assistance of a psychiatrist, adequately review discovery, or acquire
medical and psychiatric records. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App.
2007). Nor does the record explain the reason why, or if, trial counsel failed to properly review
the psychiatric evaluation. See id. After reviewing the record, we conclude that Appellant has not
shown trial counsel’s actions to be so outrageous that no reasonable competent trial attorney
would have done likewise. See id. at 433.
Accordingly, under the circumstances of this case, we conclude that Appellant failed to
rebut the presumption that trial counsel’s actions and decisions were reasonably professional and
motivated by sound trial strategy. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; see also
Tong, 25 S.W.3d at 712; Thompson, 9 S.W.3d at 813; Perez v. State, 56 S.W.3d 727, 731-32
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). Since the first prong of the Strickland
standard has clearly not been met, we need not address the second prong. We overrule
Appellant’s second issue.

DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the judgment of the trial
court.
GREG NEELEY
Justice

Opinion delivered January 19, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 19, 2022

NO. 12-20-00268-CR

ALBINO A. NUNEZ,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. F1823682)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.