Soveida Morales A/K/A Soveida Moralez v. State

• Court: Court of Appeals of Texas
• Decided: April 28, 2011
• Docket: 02-10-00022-CR
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NOS. 02-10-00022-CR 02-10-00023-CR

SOVEIDA MORALES A/K/A APPELLANT SOVEIDA MORALEZ

V.

THE STATE OF TEXAS STATE

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

MEMORANDUM OPINION1 ----------

I. Introduction

In two points, Appellant Soveida Morales a/k/a Soveida Moralez appeals

the punishment for her convictions for evading arrest and theft. We affirm.

1 See Tex. R. App. P. 47.4. II. Factual and Procedural Background

After shoplifting $1,855.60 worth of merchandise from a store in

Weatherford, Morales nearly sideswiped a Parker County Sheriff’s patrol car with

her vehicle as she sped from the store’s parking lot. When the Parker County

officer followed her and attempted to pull her over, Morales led him on a high

speed chase, running several stop lights and stop signs and weaving through

traffic before entering Interstate 20 and heading towards Fort Worth. A state

trooper continued the pursuit from Parker County into downtown Fort Worth. The

chase ended when Morales hit a curb and wrecked her vehicle.

A Parker County grand jury indicted Morales for evading arrest with a

vehicle and for theft in an amount greater than $1,500 but less than $20,000.

The State subsequently filed a motion to amend the evading arrest indictment to

add an enhancement paragraph alleging that Morales had been previously

convicted of evading arrest in February 2003, which the trial court granted. 2 The

State also filed notices of intent to enhance punishment, alleging in both cases a

2006 conviction for theft, less than $1,500; a 2005 conviction for theft, $1,500–

$20,000; two 2003 convictions for theft, less than $1,500; a 1999 conviction for

possession of cocaine; and a 1999 conviction for theft, $1,500–$20,000. In the

evading arrest case, the State filed an additional notice of intent to enhance

2 The State also filed a notice of intent to seek a finding that Morales’s motor vehicle was used as a deadly weapon.

2 punishment with regard to a 2005 conviction for attempted aggravated assault on

a public servant.

Morales pleaded guilty to both charges and not true to the enhancement

allegations, and she elected for a jury to assess her punishment. The jury found

Morales guilty on both charges. With regard to Morales’s evading arrest

conviction, the jury found the additional enhancement allegation of the 2005

attempted aggravated assault true, answered ―yes‖ to the use of deadly weapon

special issue, and assessed her punishment at twenty years’ confinement. With

regard to Morales’s theft conviction, the jury considered six enhancement

allegations, was instructed that if they found any two true, to consider a

punishment range of two to ten years’ confinement, and assessed punishment at

ten years’ confinement. The trial court entered judgment on both sentences.

This appeal followed.

III. Discussion

In her first point, Morales argues that the trial court erred by allowing the

State to present enhancement allegations to the jury when it did not properly

amend the indictment to include them and that her trial counsel’s failure to raise

this issue at trial constituted ineffective assistance of counsel. In her second

point, she complains that the State failed to meet its burden to establish venue in

Parker County, that the record is void of any reasonable basis to make a

presumption of venue, and that her trial counsel’s failure to raise the venue issue

rendered his assistance ineffective.

3 An accused is entitled to notice of the State’s intent to use prior convictions

for enhancement purposes, and proper notice of intent to enhance punishment

must be given in a timely manner, but it need not be pleaded in the indictment

itself to be considered proper notice as long as it is pleaded in some form prior to

trial. Williams v. State, 172 S.W.3d 730, 734 (Tex. App.—Fort Worth 2005, pet.

ref’d) (citing Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997)). The

record reflects that the State filed its notices of intent to use prior convictions to

enhance punishment several months before trial, providing sufficient notice to

Morales. We overrule this portion of Morales’s first point. See id.

With regard to Morales’s second point, while failure to prove venue is

reversible error, unless venue is disputed in the trial court, or the record

affirmatively shows that venue was not established, we must presume that venue

was proved in the trial court. See Couchman v. State, 3 S.W.3d 155, 161 (Tex.

App.—Fort Worth 1999, pet. ref’d) (citing Black v. State, 645 S.W.2d 789, 790–

91 (Tex. Crim. App. 1983)); see also Tex. R. App. P. 44.2(c)(1). Venue is proper

in the county where the offenses are said to have occurred, and because it is not

an element of an offense, it may be proved by a preponderance of the evidence.

Tex. Code Crim. Proc. Ann. arts. 13.08, 13.17–.18 (Vernon 2005).

Morales’s counsel did not object to venue at trial, and Morales does not

challenge the voluntariness of her guilty pleas. See Fairfield v. State, 610

S.W.2d 771, 780 (Tex. Crim. App. 1981) (stating that a defendant’s guilty plea,

standing alone, establishes venue); Mayo v. State, 321 S.W.3d 576, 580 (Tex.

4 App.—Houston [14th Dist.] 2010, no pet.) (presuming venue was established on

the counts for which appellant failed to challenge venue at trial when the record

did not affirmatively show that venue was inappropriate). Further, the trial

testimony and exhibits are sufficient to establish that the offenses occurred in

Parker County. We overrule this portion of Morales’s second point.

Finally, because raising these issues at trial would have had no effect on

the outcome of the trial, Morales has failed to show that her counsel was

ineffective. See, e.g., Hollis v. State, 219 S.W.3d 446, 456 (Tex. App.—Austin

2007, no pet.) (stating that counsel is not required to engage in the filing of futile

motions and that to satisfy the Strickland v. Washington standard, an appellant

must show both that the motion would have been granted and that it would have

resulted in a different outcome at trial). We overrule the remainder of Morales’s

first and second points.

IV. Conclusion

Having overruled both of Morales’s points, we affirm the trial court’s

judgment.

PER CURIAM

PANEL: MCCOY, GARDNER, and WALKER, JJ.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: April 28, 2011