Opinion
No. 05-07-01638-CR
Opinion Filed March 18, 2009.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80239-04.
Before Justices WRIGHT, O'NEILL and LANG.
OPINION
Appellant pleaded guilty to four counts of sexual assault of a child and sentenced to by a jury to twenty years' imprisonment and a fine of $7,500 for each count. The Texas Court of Criminal Appeals determined Appellant could file an out of time appeal of three of the four counts. He now brings nine issues on appeal. We affirm the trial court's judgment.
Appellant was also charged and tried for one count of aggravated sexual assault of a child younger that fourteen. The jury could not reach a verdict on the count and the trial court declared a mistrial.
The timeliness of Appellant's appeal was the subject of our decision, Black v. State, No. 05-05-00889-CR, 2005 WL 2948914, (Tex-Dallas Nov. 4, 2005), which was reversed as to three counts by the Texas Court of Criminal Appeals in Ex Parte Joseph Patrick Black, No. AP-75,776, 2005 WL 2901721 (Tex. Crim . App. Oct. 10, 2007).
Background
Appellant had sexual relations repeatedly with a girl he admitted he knew was fourteen. The girl and her parents testified the affair actually began when the girl was thirteen. Around midnight on November 19, 2003, the girl's parents noticed she was missing from their house. Suspecting she was with Appellant, they directed a police officer to the house next door where Appellant's wife lived. Appellant's wife gave the police the address of a nearby apartment where she believed Appellant was staying. Between 2:00 a.m. and 3:00 a.m., the police entered Appellant's apartment and found the girl in disarray in a closet. Although first denying she had a sexual relationship with Appellant, the girl admitted later that night that she and Appellant had just finished having sex when the police arrived. The Appellant was thirty-three years old.
The Appellant was charged with one count of aggravated sexual assault of a child younger than fourteen and four counts of sexual assault of a child over fourteen years old but under seventeen years old. He denied having sex with the girl until after her fourteenth birthday. Appellant plead guilty to the four counts of sexual assault and demanded a jury trial on the count of aggravated sexual assault which ended in the trial court declaring a mistrial.
During the penalty phase for the sexual assault counts, the jury heard additional testimony about a gun, sex-toys, pornography, drugs and drug paraphernalia found by the police in Appellant's apartment. Two psychologists testified giving conflicting expert opinions on whether he could be successfully rehabilitated or showed remorse. Also, during the penalty phase, Appellant admitted that although he remained married, he had recently impregnated a nineteen-year-old girl. The jury assessed twenty years in prison and a $7,500 fine for each count of sexual assault. No motion for new trial was filed. The Appellant raises nine issues in his pro se brief. Issues one through six pertain to his complaint of ineffective assistance of counsel. Issues seven, eight and nine relate to the admissibility of evidence he claims was acquired by unconstitutional means. We do not find any of his issues persuasive and affirm the trial court's judgment.
Although he was appointed appellate counsel, Appellant filed a motion to proceed pro se on appeal which was heard by the trial judge who questioned Appellant about his educational and professional background, admonished him, and then granted his motion.
Discussion
A. Ineffective Assistance of Counsel
In issues one through six, Appellant argues he was denied due process because of the ineffective assistance of his counsel. Specifically, he cites the following actions as indicia of his attorney's inadequate counsel:
1. Failure to file a motion to suppress;
2. Failure to object to the trial court's jurisdiction when the indicting grand jury was impaneled by the 366th Judicial District Court of Collin County, and then the case was tried in the 219th Judicial District Court of Collin County;
3. Inducing a guilty plea on four counts of sexual assault; and
4. Failure to request separate trials on the indictment of aggravated sexual assault of a child under fourteen years old and the four counts of sexual assault of a child older than fourteen.
We examine ineffective assistance of counsel claims under well-established standards. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Bourque v. State, 156 S.W.3d 675, 677-79 (Tex.App.-Dallas 2005, pet ref'd). An appellant must show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability the result of the proceeding would have been different. Bourque, 156 S.W.3d at 677 (failure to object to court's jurisdiction when another court impaneled the grand jury does not constitute ineffective assistance of counsel). See also Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999).
When evaluating an ineffective-assistance claim, we look at the totality of the representation and the particular circumstances of the case. Blevins v. State, 18 S.W.3d 266, 271(Tex.App. 2000, no pet.) (citing Thompson, 9 S.W.3d at 813). Any allegation of ineffectiveness must be firmly founded in the record, and the record must also affirmatively demonstrate the alleged misconduct. Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim, and the appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Here, Appellant complains about his counsel's deficient performance; he alleges no claim of sufficient prejudice.
When determining if counsel's trial performance was deficient, we do not speculate about trial counsel's strategy. Blevins, 18 S.W.3d at 271(citing Mayhue v. State, 969 S.W.2d 503, 510 (Tex.App. 1998, no pet)). In addition, there is a strong presumption that trial counsel's conduct was within the range of reasonable professional assistance. Thompson, 9 S.W.3d at 814. To overcome this presumption, a defendant must prove by a preponderance of evidence that counsel was ineffective. Id. This burden requires a defendant to bring forward a record from which we may discern that trial counsel's performance was not based on sound strategy. Mayhue, 969 S.W.2d at 511 (citing Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App. 1994)).
In this case, nothing in the record reveals counsel's trial strategy with regard to the above-enumerated acts and omissions, which the Appellant now alleges show the ineffectiveness of counsel's representation. In the absence of such a record, the Appellant cannot overcome the strong presumption that his trial counsel's strategy was reasonable from counsel's perspective at trial. Thompson, 9 S.W.3d at 814 (where record is silent as to counsel's strategy, defendant fails to rebut presumption of sound trial strategy). Indeed, the record reflects Appellant's counsel was able to secure a mistrial on the aggravated sexual assault count and Appellant's guilty plea as to the other counts was knowing and voluntary. Therefore, we overrule Appellant's first, second, third, fourth, fifth and sixth issues.
Although the Appellant now alleges ineffective assistance of counsel, he opposed his lawyer's post-trial motion to withdraw.
B. Evidentiary Concerns
In Appellant's seventh issue, he contends evidence found at his apartment after his arrest was the fruit of an illegal search and should not have been admitted. His contention ignores four facts: (1) when the police first entered his apartment, they were searching for a missing girl and thus, operating under exigent circumstances; (2) before the detective searched for and found evidence of drug use and pornography, he secured a search warrant; (3) no motion to suppress was filed; and (4) no objection was lodged during trial. Accordingly, any complaint Appellant may have had has been waived. Tex. R. App. P. 33.1. Concluding Appellant failed to preserve error on his illegal search claim, we overrule issue seven.
Shepherd v. State, 273 S.W.3d 681 (Tex.Crim.App. 2008) (Fourth Amendment does not bar police officers from making warrantless entry or search when they reasonably believe a person within is in need of immediate aid).
In issues eight and nine, the Appellant argues his statements when arrested and the girl's outcry statement were not admissible. However, he failed to object to the introduction of any testimony about either during trial and did not file a motion to suppress before trial. Since Appellant did not object to testimony about his statements or the girl's outcry to the police, filed no motion to suppress, and his actual recorded statement was not offered into evidence, no error has been preserved for review. Tex. R. App. P. 33.1. We find against Appellant on his eighth and ninth issues.
Conclusion
We affirm the trial court's judgment.