No. 05-01-01295-CR.
Opinion Filed January 31, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-73490-QP. AFFIRMED.
Before Chief Justice THOMAS and Justices WHITTINGTON and CAMPBELL.
The Honorable Charles F. Campbell, Retired Judge, Texas Court of Criminal Appeals, sitting by assignment.
Opinion By Justice CAMPBELL
Camilo Villa Monarrez was convicted, upon his non-negotiated guilty plea, of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021 (Vernon Supp. 2003). The trial court assessed punishment at twenty-five years confinement in the Texas Department of Criminal Justice, Institutional Division. In three points of error, appellant complains he received ineffective assistance of counsel, his guilty plea was involuntary, and the evidence was factually insufficient to support the conviction. We will affirm.
Sufficiency of the Evidence
In his second point of error, appellant asserts that because he retracted his judicial confession during his live testimony, the evidence is factually insufficient to support the conviction. Appellant claimed during his testimony that he did not remember penetrating the complainant's vagina. Appellant claims he testified that he only touched the victim's sexual organ, and that he touched it because the victim took his hand and put it there, not because he had any desire to satisfy or gratify his own sexual desire. The State responds that appellant's "retraction" took place during the motion for new trial hearing, not during the plea and punishment proceedings. The State argues that during the trial, appellant judicially confessed that he penetrated the complainant's sexual organ with his finger, exactly as alleged in the indictment. Moreover, appellant's wife, who is the complainant's mother, testified during the sentencing hearing that appellant confessed to her that he had committed this crime. The complainant also testified at that same sentencing hearing that appellant penetrated her vagina with his finger as alleged in the indictment. In reviewing challenges to the factual sufficiency of the evidence, we view all of the evidence without the prism of in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Our duty is to examine the fact finder's weighing of the evidence. See Scott v. State, 934 S.W.2d 396, 398 (Tex.App.-Dallas 1996, no pet.). We must, however, be appropriately deferential to the fact finder's findings so as to avoid substituting our judgment for that of the fact finder. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Ward v. State, 48 S.W.3d 383, 388 (Tex.App.-Waco, 2001, pet. ref'd). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. See Johnson, 23 S.W.3d at 8. We will reverse only if the evidence is so weak that the verdict is clearly wrong and unjust, or the verdict is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. at 11. A decision is not clearly wrong and unjust merely because the fact finder resolved conflicting evidence in favor of the State or because the defense presented a reasonable alternative hypothesis. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App. 1997); Cates v. State, 72 S.W.3d 681, 690 (Tex.App.-Tyler 2001, no pet.). The record contains overwhelming evidence of appellant's guilt. Appellant judicially confessed to committing the offense exactly as alleged in the indictment. The complainant and her mother also testified regarding the offense. The trial court's finding of guilt was neither clearly wrong nor unjust, nor against the overwhelming weight of the evidence. We conclude the evidence presented at the guilty plea hearing was factually sufficient to support the conviction. The real nature of appellant's complaint is that the trial court abused its discretion in overruling the motion for new trial. For the first time, at a motion for new trial hearing, appellant presented a different hypothesis regarding the evidence introduced during the guilty plea hearing. Appellant sought to recant his judicial confession by qualifying the nature and extent of his acts against the complainant. The decision to grant or deny the motion for new trial was within the sound discretion of the trial court judge. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995). In this case, the trial court obviously believed appellant's earlier judicial confession to the indictment and the testimony of the complainant and her mother rather than appellant's less than impressive attempt to retract his version of events. Thus, we cannot say the trial court abused its discretion in overruling the motion for new trial. See id. We overrule appellant's third point of error. Ineffective Assistance of Counsel
In his first point of error, appellant claims he received ineffective assistance of counsel at trial. He avers that trial counsel failed to investigate facts, seek out and interview witnesses, and failed to present evidence at the guilt and punishment phases of the trial. The State counters that all of appellant's assertions on this issue were aired in the motion for new trial hearing and the trial court found the claims were without merit. We review claims of ineffective assistance of counsel under the two-pronged standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). First, a defendant must demonstrate that counsel's performance was so deficient that it fell below an objective standard of reasonableness. See id. at 687-88. With particularity, a defendant must identify the acts or omissions of trial counsel that are alleged to constitute ineffective assistance and affirmatively prove that they fall below the professional norm for reasonableness. See id. at 690. Second, a defendant must demonstrate that the deficient performance caused prejudice, such that the attorney's errors deprived defendant of a fair trial. Id. In the context of a guilty plea, the appellant must show that but for counsel's deficient performance, the appellant would not have pleaded guilty, but would have gone to trial. See Ex Parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App. 1999); Ex Parte Morrow, 952 S.W.2d 530, 536 (Tex.Crim.App. 1997). In determining whether trial counsel's performance was deficient, judicial scrutiny must be highly deferential. See Oliva v. State, 942 S.W.2d 727, 731 (Tex.App.-Houston [14th Dist.] 1997), pet. dism'd, improvidently granted, 991 S.W.2d 803 (1998) (per curiam). Counsel's competence is presumed, and a defendant must rebut this presumption by showing that his counsel's representation was unreasonable under prevailing norms of the legal profession and that the challenged action was not sound strategy. Id. A defendant cannot show ineffectiveness by isolating just one aspect of the representation. Rather, we must examine the entirety of counsel's representation. See id. at 731-32. First, appellant complains that trial counsel promised that if appellant pleaded guilty, he would receive probation. Appellant testified at the motion for new trial hearing that trial counsel had made this promise to both appellant and his sister, who had hired counsel. Obviously he did not receive probation, so he claims his counsel was ineffective. Appellant's sister testified that she thought appellant would get probation. Counsel testified at the motion for new trial hearing that appellant entered an open plea, and there was no plea bargain agreement with the State. Appellant's trial counsel testified that he explained all of the options and the full range of punishment to appellant, but never promised appellant any sentence in the case. Additionally, during the plea, the trial court admonished appellant on the full range of punishment, and appellant never expressed to the judge his understanding that he believed he would get probation. The trial court, as fact finder, obviously believed trial counsel rather than appellant. In light of the record, we conclude appellant has not shown counsel's performance fell below an objective standard of reasonableness. Appellant also asserts he did not understand the judicial confession he signed because it was in English and he is a Spanish speaker. However, trial counsel testified that his paralegal was present and acted as interpreter for appellant throughout the proceedings. The record reflects the trial court swore in the paralegal as an interpreter. Nothing in the record reflects appellant did not understand the translation provided. Therefore, appellant has failed to demonstrate ineffectiveness on this issue. Finally, appellant complains trial counsel failed to investigate and interview witnesses who could testify on behalf of appellant. A number of relatives who were either related to appellant or had lived in appellant's house gave affidavits, which were attached to the motion for a new trial. They were children of varying ages from six to sixteen. The thrust of their affidavits was that appellant had never touched or fondled them in any inappropriate way during the time they knew him. Appellant avers that trial counsel never interviewed these children, or any other witnesses for that matter, who could have presented evidence favorable to appellant. Conversely, trial counsel testified that some initial investigation was done, but no investigator was hired because appellant decided to enter a guilty plea. Counsel testified he would have hired an investigator if appellant had proceeded to trial on a "not guilty" plea. Even assuming appellant's witnesses were discoverable by trial counsel prior to trial, it is difficult to imagine a scenario in which their statements, as presented at the motion for new trial hearing, would have been admissible at trial on the issue of guilt. An accused in a criminal case is allowed to introduce evidence of a specific good character trait to show that it is improbable that he committed the offense charged, where that character trait is relevant to the offense. See Tex. R. Evid. 404(a)(1); Valdez v. State, 2 S.W.3d 518, 519 (Tex.App.-Houston [14th Dist.] 1999, pet. ref'd). If evidence of a person's character or character trait is admissible, proof may be made through reputation or opinion testimony. Valdez, 2 S.W.3d at 519. However, specific instances of conduct are inadmissible to show an inference the accused did or did not commit the offense. Id. In this case, appellant alleges his trial counsel was deficient in not calling witnesses who would have testified as to specific instances of good conduct, which would be in violation of the rules of evidence and interpretive case law. Nowhere in Strickland are lawyers required to perform such a task. Appellant focuses on the punishment aspect of the trial, contending trial counsel could have used these same witnesses to mitigate punishment by showing that appellant, in essence, was not a pedophile generally. Assuming for the sake of argument that such specific acts of good conduct were admissible under article 37.07, section 3(a)(1) of the code of criminal procedure, in questioning these witnesses, appellant would have run the risk of opening the door to the State to ask the witnesses about other unadjudicated acts of misconduct, as well as appellant's prior drug possession conviction in another state. Thus, we cannot conclude counsel's failure to call these witnesses fell below an objective standard of reasonableness. Viewing counsel's performance as a whole, we conclude appellant has not shown he received ineffective assistance of counsel. Appellant's first point of error is overruled. Voluntariness of Plea
In point of error two, appellant claims his guilty plea was involuntary. Appellant bases his claim of involuntariness on his argument that counsel told him he could receive probation if he pleaded guilty. We thoroughly analyzed this claim under point of error one and concluded appellant's guilty plea was voluntary. The trial court obviously believed trial counsel's testimony that appellant wanted to plead guilty and avoid a jury trial. We have also examined the record and found appellant's plea to be unequivocal, intelligent, and freely and voluntarily given. Appellant was admonished pursuant to article 26.13(a). See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2003). Further, the trial court specifically asked appellant if appellant expected probation from the mere fact that he was pleading guilty. Appellant answered in the negative. We conclude the record does not support appellant's complaint that his plea was involuntary. We overrule appellant's second point of error. We affirm the trial court's judgment.