Hernandez, Alexander Denis v. State

Affirmed and Memorandum Opinion filed January 6, 2005 Affirmed and Memorandum Opinion filed January 6, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-03-01043-CR NO. 14-03-01044-CR ____________ ALEXANDER DENIS HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 174th District Court Harris County, Texas Trial Court Cause No. 938,378 & 938,379 MEMORANDUM   O P I N I O N Appellant, Alexander Denis Hernandez, appeals his convictions for aggravated sexual assault of a child and aggravated kidnapping and his sentence of twenty-five years= confinement to the Texas Department of Criminal Justice, Institutional Division, for each offense. On June 16, 2003, appellant pled guilty, without an agreed recommendation, to both aggravated sexual assault of a child and aggravated kidnapping. At that time, the trial court accepted appellant=s plea of guilty, but deferred making a finding of guilt and reset both cases so that a presentence investigation could be conducted. Although he pled guilty, appellant proclaimed his innocence to both offenses in the presentence investigation report. At the conclusion of a hearing on September 10, 2003, the trial court found appellant guilty of both offenses and assessed punishment for each offense at twenty-five years= incarceration, both sentences to run concurrently. We affirm. Failure to Withdraw Guilty Plea In his first issue, appellant contends the trial court erred in accepting his initial plea of guilty and in subsequently finding him guilty in light of his claims of innocence during the presentence investigation. A defendant may withdraw his plea before judgment has been pronounced or the case has been taken under advisement as a matter of right without assigning a reason. Jackson v. State, 590 S.W.2d 514, 515 (Tex. Crim. App. 1979). Appellant asserts the trial court had not taken his case under advisement because it had not heard the evidence, particularly appellant=s statement that he was innocent. However, it is well-settled that the trial court takes a case under advisement when it passes it for a presentence investigation. Id.; Stone v. State, 951 S.W.2d 205, 207 (Tex. App.CHouston [14th Dist.] 1997, no pet.); Davis v. State, 861 S.W.2d 25, 26 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d). Appellant argues that even if his case had been taken under advisement, it was still within the trial court=s discretion to allow the withdrawal of the plea. See DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981); Jackson, 590 S.W.2d at 515. When the defendant waives his right to a jury trial and enters a guilty plea before the court, the court is not required to withdraw the plea, even if the evidence fairly raises an issue as to the innocence of the defendant. Moon v. State, 572 S.W.2d 681, 682 (Tex. Crim. App. 1978) (op. on reh=g). However, relying on Payne v. State, appellant asserts the trial court erred in not permitting him to withdraw his plea. See 790 S.W.2d 649, 650B51 (Tex. Crim. App. 1990). In Payne, the defendant presented evidence indicating that he was guilty of a lesser-included offense during sentencing, after he had entered a guilty plea. Id. However, Payne involved a timely motion by the defendant to withdraw the guilty plea and does not support appellant=s position. See id. Because the court had no duty to allow appellant to withdraw his guilty plea, it did not abuse its discretion in failing to do so. Appellant=s first issue is overruled. Legal and Factual Sufficiency In his second issue, appellant claims the trial court should have ordered appellant=s guilty plea withdrawn sua sponte after appellant had declared his innocence so that he could thereafter challenge the sufficiency of the evidence on appeal. Appellant claims any challenge to the sufficiency of the evidence on appeal will be summarily denied due to his judicial confession.[1] Appellant contends, therefore, that the trial court erred and abused its discretion in failing to withdraw his plea. As stated above, when the defendant waived his right to a jury and entered a guilty plea before the court, the trial court was not required to order the plea withdrawn sua sponte, even if the evidence fairly raised an issue as to the innocence of the defendant. See Moon, 572 S.W.2d at 682. Rather, it is within the trial court=s discretion to order the withdrawal of the plea. Id. The court in Moon explained that there is no longer a valid reason for the court to order the guilty plea withdrawn and enter a plea of not guilty for the defendant when the defendant enters a plea of guilty before the court after waiving a jury. Id. AIt is the duty of the trial court to consider the evidence submitted and as the trier of the facts the court may find the appellant guilty of a lesser offense and assess the appropriate punishment or it may find the defendant not guilty.@ Id. No purpose would be served by ordering the guilty plea withdrawn and entering a plea of not guilty. Id. Appellant asserts this case presents a valid reason for an exception to the general rule set forth in Moon. Specifically, appellant contends the withdrawal of his plea in this case would allow him to challenge the sufficiency of the evidence on appeal because the withdrawal of his plea necessarily would include a withdrawal of any confession or stipulation of evidence supporting his convictions. Appellant claims the evidence is neither legally nor factually sufficient to support his convictions without his confession and stipulation of evidence. One purpose, however, of entering a guilty plea supported by a judicial confession is to relieve the State of its burden of proving the defendant=s guilt. Thus, the evidence supporting a conviction will always be insufficient once a defendant is permitted to withdraw his plea. Nevertheless, appellant argues the evidence undoubtedly would be legally and factually insufficient without his plea and stipulation of the evidence because the presentence investigation report reveals there is no physical evidence to support the complainant=s allegations. Nothing in our jurisprudence, however, suggests the State has any obligation to marshal all its evidence for inclusion in the presentence investigation report. Thus, we will not assess the potential sufficiency of the evidence from the contents of a presentence investigation report.[2] While appellant related a different scenario in the presentence investigation report, that fact does not require us to find the evidence insufficient. Had there been a trial on the merits, it would have been for the trier of fact to resolve any conflicts and inconsistencies in the evidence. See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Moreover, the trier of fact could have believed or disbelieved part or all of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998). Appellant=s second issue is overruled. Equal Protection & Due Process In his third issue, appellant claims the trial court=s failure to sua sponte order his no contest plea withdrawn will result in the denial of his right to equal protection[3] and due process of law[4]. With respect to his equal protection claim, appellant argues that his inability to challenge the legal and factual sufficiency of the evidence due to his plea will place him on unequal footing with similarly situated defendants. Other defendants, who claim their innocence but are not burdened by a regretted plea of guilty or no contest, are not equally treated. The State points out that the flaw in appellant=s argument is that he is not similarly situated to defendants who are not burdened by a plea of guilty. We agree. The fact that appellant entered a guilty plea places him in a different class of defendants than those who have not entered such a plea. With respect to his due process claim, appellant argues he Awill be denied due process of law if he is not permitted to challenge the sufficiency of the evidence because of a series of procedural bars.@ Appellant has failed to provide any argument or authority in support of this contention; therefore, it is waived on appeal. See Tex. R. App. P. 38.1(h). Appellant=s third issue is overruled. Ineffective Assistance of Counsel In his fourth issue, appellant claims trial counsel rendered ineffective assistance of counsel by failing to move the trial court to withdraw appellant=s plea after appellant had proclaimed his innocence. Appellant, thus, contends his plea was involuntary. Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. See U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two‑prong test to determine whether counsel is ineffective. Id. Appellant must first demonstrate his counsel=s performance was deficient and not reasonably effective. Id. at 688B92. Thereafter, appellant must demonstrate the deficient performance prejudiced his defense. Id. at 693. Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997). Judicial scrutiny of counsel=s performance must be highly deferential, and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel=s actions and decisions were reasonably professional, and that they were motivated by sound trial strategy. Id. Moreover, it is appellant=s burden to rebut this presumption, by a preponderance of the evidence, via evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 771. An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771. If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. See McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. See id. Here, appellant did not file a motion for new trial, and the record contains no evidence of the reasoning behind his counsel=s failure to request the trial court to withdraw his plea. An appellant court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771; see also Thomspon, 9 S.W.3d at 814 (holding that when record provides no explanation as to motivation behind trial counsel=s actions, appellate court should be hesitant to declare ineffective assistance of counsel). Appellant fails to provide this court with any evidence affirmatively demonstrating the ineffectiveness of his trial counsel. Thus, appellant has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy.[5] Moreover, even if the record rebutted the presumption of sound trial strategy, appellant has not demonstrated that trial counsel=s performance prejudiced his defense. He has not, therefore, met the second prong of the test. Because appellant produced no evidence concerning trial counsel=s reasons for choosing the course he did, nor did appellant demonstrate prejudice to his defense, appellant=s fourth issue on appeal is overruled. See McFarland, 928 S.W.2d at 500. Accordingly, the judgment of the trial court is affirmed. /s/ J. Harvey Hudson Justice Judgment rendered and Memorandum Opinion filed January 6, 2005. Panel consists of Justices Anderson, Hudson, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] See Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim. App. 1979) (op. on reh=g) (holding defendant=s judicial confession alone is sufficient to sustain conviction upon guilty plea). [2] Were we to do so here, however, the presentence investigation report would seem to show an abundance of evidence. It indicates that the complainant, who was fourteen years old, was walking home from the Chimney Rock Center when appellant drove up next to her and asked if she needed a ride. When the complainant said she did not, appellant pulled her into his car. Appellant drove her to a warehouse parking lot, where he pulled out a knife and twice ordered her to get into the back seat of the car. When she refused a second time, appellant slapped and choked her. When the complainant got into the back seat, he removed her clothes slowly without tearing them. Appellant penetrated both the complainant=s vagina and anus with his penis and forced her to perform oral sex on him. The complainant was eventually able to open the door and started screaming. The complainant then heard a woman=s voice yelling for the complainant to run toward her. The woman=s voice belonged to Leigh Ann Hudson, who was working as a dispatcher for a private ambulance service. Hudson heard a female screaming for help. Hudson opened her door, looked out into the parking lot and yelled for the female (complainant) to run toward her. Hudson saw the complainant running toward her, wearing no clothes, only shoes. Hudson then saw a small white car drive off. The complainant was later able to identify appellant in a photo array. [3] U.S. Const. amend. XIV ' 1; Tex. Const. art. I, ' 3. [4] U.S. Const. amend. XIV ' 1; Tex. Const. art. I, ' 19. [5] Appellant contends there can be no plausible strategy for an attorney to allow a defendant who protests his innocence to plead guilty. However, Aall sorts of considerations may motivate a guilty plea.@ Mallett v. State, 65 S.W.3d 59, 64 (Tex. Crim. App. 2001) (rejecting defendant=s ineffective assistance of counsel claim based on counsel=s failure to request that defendant=s guilty plea be withdrawn for protestation of innocence).