Nos. 05-03-01007-CR, 05-03-01008-CR
Opinion Filed July 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F00-72355-NR, F00-72925-PR. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Kamil Osman Sahinalp appeals two convictions for sexual assault of a child. Appellant entered nonnegotiated guilty pleas to each offense. In cause no. 05-03-01007-CR, the trial court deferred adjudication of appellant's guilt, placed him on community supervision for ten years, and assessed a $2500 fine. In cause no. 05-03-01008-CR, the trial court assessed punishment at five years confinement and a $2500 fine. Appellant's attorney filed a brief in which he concludes the appeals are wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a response to counsel's brief from which we discern three grounds raised as arguable issues for appeal.
Voluntariness Of The Pleas
Appellant first contends his guilty pleas were not entered knowingly and voluntarily. Appellant alleges he is actually innocent of both offenses, but he pleaded guilty on advice of counsel in a bid to obtain deferred adjudication community supervision in these cases and a third case in Collin County involving the same complainant. Appellant further contends he was not sufficiently apprised of the risks of his pleas, did not understand the severity of the charges, and was unaware that the complainant's mother intended to deliver damaging, false testimony during the punishment phase of trial. In reviewing the voluntariness of a plea, we consider the totality of the circumstances in light of the entire record. Ybarra v. State, 93 S.W.3d 922, 925 (Tex.App.-Corpus Christi 2002, no pet.). After pleading guilty and attesting to the voluntariness of his plea, a defendant bears a heavy burden at a subsequent hearing to demonstrate his plea was involuntary. Id. Before accepting appellant's pleas, the trial court delivered comprehensive written admonishments to him. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004). Appellant signed the admonishments, acknowledging he understood the admonishments and that he was entering his pleas "freely and voluntarily." Thus, there is a prima facie showing that appellant entered his pleas knowingly and voluntarily. See Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). Appellant has the burden to affirmatively show he was unaware of the consequences of his pleas. Id. Supporting the prima facie showing, the record shows that during the plea hearing, appellant orally admitted the charges were true and he affirmed to the trial court that no one had promised him anything to induce his pleas. To meet his burden, appellant put on testimony and documentary evidence in a hearing on a motion to withdraw his guilty pleas and during the punishment hearing. To summarize the evidence presented in the hearings, appellant alleges he pleaded guilty because trial counsel guaranteed him he would receive deferred adjudication. Appellant further alleges he falsely confessed to a Collin County probation officer and to his psychotherapist because he believed an admission of wrongdoing was necessary to make him look like a good candidate for community supervision. Appellant alleges his strategy backfired when, during the Collin County sentencing, the complainant's mother testified her daughter contracted chlamydia while having sexual intercourse with appellant. The mother's allegations surprised appellant and counsel because appellant did not have intercourse with the complainant and he had never had chlamydia. Although there was some discussion of a continuance to allow appellant to obtain medical testing to prove he did not have chlamydia, the Collin County trial court pronounced him guilty and assessed punishment at seven years confinement. Because he could no longer receive deferred adjudication on all three cases as he had hoped, appellant then sought, unsuccessfully, to withdraw his guilty pleas in the present cases. Trial counsel denied guaranteeing appellant deferred adjudication, but he admitted advising appellant there was a high probability appellant would receive it. On appeal, in addition to the evidence admitted in the post-plea hearings, appellant relies on trial counsel's affidavit attached to the pro se response which appellant interprets as showing trial counsel's "advise [sic] and strategy would be different had he known the trial court witheld [sic] evidence prior to sentencing date, and admitted advising appellant to go with open plea." Attachments to a pro se response are not part of the record on appeal. See Miranda v. State, 813 S.W.2d 724, 738 (Tex.App.-San Antonio 1991, pet. ref'd). Moreover, stating the obvious-that trial counsel might, in hindsight, have devised a different trial strategy given that the chosen strategy did not work-does not show the pleas were involuntary. A guilty plea is a matter of trial strategy. Enard v. State, 764 S.W.2d 574, 575 (Tex.App.-Houston [14th Dist.] 1989, no pet.). A guilty plea is not unknowing or involuntary merely because it was entered as part of counsel's unsuccessful trial strategy. Id. The fact that appellant's hope for deferred adjudication was not realized does not affect the voluntariness of his pleas. See Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.). With regard to appellant's other contentions, the punishment range admonishment was sufficient to impress upon appellant the risks he faced and the seriousness of the offenses. Moreover, the record contains ample evidence that appellant, a highly-educated engineer, knew and understood the risks and the seriousness of the offenses. For example, during cross-examination in the motion to withdraw hearing, appellant admitted he signed the plea papers because he did not want to go to prison. Other than the self-serving testimony of appellant and trial counsel, rejected by the trial court, nothing in the record suggests appellant was surprised by the mother's testimony. Furthermore, the mother's testimony in the Collin County case has no impact on these cases because the Dallas County trial court expressly stated it would not consider that evidence in setting punishment. Thus, we conclude appellant cannot overcome the prima facie showing that his guilty pleas were entered knowingly and voluntarily. See Kirk, 949 S.W.2d at 771. We conclude the record does not present an arguable issue regarding the voluntariness of the pleas. Right To A Jury Trial
In his second ground, appellant contends an arguable issue exists regarding whether the trial court violated his constitutional right to a jury trial when it denied his "motion to set aside plea of guilty and/or motion for a new trial." A defendant may withdraw his guilty plea at any time before the trial court takes the case under advisement or pronounces judgment. Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979). However, once the defendant has entered an open guilty plea and judgment has been pronounced or the case has been taken under advisement, the trial court enjoys discretion in deciding whether to allow the defendant to withdraw the plea. Id. A trial court abuses its discretion only when its ruling lies outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). Similarly, we review the trial court's determination of a motion for new trial for an abuse of discretion. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001). The trial court is the sole judge of the witnesses' credibility. Id. In the Anders context, we decide cases involving abuse-of-discretion issues on a case-by-case basis to determine whether the issues are frivolous. Coronado v. State, 996 S.W.2d 283, 287 (Tex.App.-Waco 1999, no pet.). In two Anders cases, the Tenth District Court of Appeals has found arguable issues regarding whether the trial court abused its discretion in denying motions to withdraw guilty pleas. See Guerrero v. State, 64 S.W.3d 436, 441-42 (Tex.App.-Waco 2001, no pet.); Coronado, 996 S.W.2d at 287. In Guerrero, the defendant, a former construction worker who did not speak English and who was represented by an appointed counsel, asked to withdraw his guilty plea because he was "confused about the nature of the proceedings, . . . he feared a harsh sentence from a jury, and because his trial counsel represented to him that he would 'fight' to get Guerrero five years' community supervision." Guerrero, 64 S.W.3d at 440-41. In Coronado, the defendant asked to withdraw a guilty plea he alleged was made in response to threats against his family. See Coronado, 996 S.W.2d at 287. Guerrero and Coronado are distinguishable from the present appeals. Appellant describes himself as a highly-educated, successful engineer who has made significant contributions to the development of the internet. Appellant testified he had engaged an attorney to try these cases but then decided to replace his first attorney with trial counsel because his first attorney would not guarantee "not guilty" verdicts in the trials. Thus, despite the superficial resemblance between the present cases and Guerrero, we conclude the present cases are distinguishable because they involve significantly more evidence that the guilty pleas were the product of a deliberate, well-conceived trial strategy chosen from a set of viable alternatives. See Enard, 764 S.W.2d at 575. Nothing in this record suggests the trial court abused its discretion in denying appellant's motions to withdraw his guilty plea and for new trial. The trial court resolved against appellant the conflicts between his representations in the plea hearing and his testimony and evidence in the hearing on the motions. See Salazar, 38 S.W.3d at 148. Accordingly, we cannot conclude the trial judge abused its discretion in denying appellant's motions. See Jackson, 590 S.W.2d at 515. We conclude appellant's second ground does not raise an arguable issue for appeal. Ineffective Assistance Of Counsel
In his third ground, appellant complains he received ineffective assistance of counsel because trial counsel's strategy did not work and because counsel admitted into evidence, over appellant's objection, a psychotherapist's report that contained evidence of extraneous offenses appellant committed against the complainant. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. In the context of a guilty plea, appellant satisfies the second prong of the Strickland test if he shows there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty but rather would have insisted on going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). We do not inquire into trial strategy unless no possible basis exists in strategy or tactics for trial counsel's actions. Johnson v. State, 614 S.W.2d 148, 152 (Tex.Crim.App. [Panel Op.] 1981). For appellant to prevail on his claim, the record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In conducting our review, we must avoid the deleterious effects of hindsight. See id. In his pro se response, appellant states his admission of guilt "was a part of the trial attorney's strategy." Regarding the expert report, appellant states trial counsel sent him to the psychotherapist "as a part of his strategy" to obtain a report "stating he is a good candidate for treatment, not to be sent to penitentiary [sic]." Although the report did contain appellant's admission that he had engaged in oral sex with the complainant, the report also stated he was remorseful, was a good candidate for sex offender treatment, and was at low risk for reoffending. The report concluded appellant could be easily and safely supervised in the community. In his pro se response, appellant reports trial counsel told him the expert exhibit "was not damaging to his case, and in fact, it was good for him." We conclude appellant's complaints involve matters of trial strategy. See Johnson, 614 S.W.2d at 152. Nothing in the record suggests there is an arguable issue for appeal in appellant's ineffective assistance complaint. Thus, we overrule appellant's third ground. The record, counsel's brief, and appellant's pro se response have been reviewed. We agree the appeals are frivolous and without merit. There is nothing in the record that might arguably support the appeals. We affirm the trial court's judgments.