Opinion
No. 11-02-00336-CR
June 26, 2003. Do not publish. See TEX.R.APP.P. 47.2(b).
Appeal from Dallas County.
Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.
Opinion
The trial court convicted appellant, upon his plea of guilty, of aggravated sexual assault of a child under the age of 14. A plea bargain agreement was not reached. The trial court assessed his punishment at confinement for 7 years. We affirm. Appellant's retained counsel has filed a motion to withdraw. Counsel states that, after a thorough review of the complete record, he has concluded that the appeal is frivolous and without merit. Counsel further states in his motion that he has delivered a copy of the motion to appellant and has advised appellant of his right to object to the motion and to ask for an extension of time in which to file a pro se brief. Neither a pro se motion for extension of time nor a pro se brief has been filed. Counsel has complied with the requirements of McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429 (1988); Knotts v. State, 31 S.W.3d 821 (Tex.App.-Houston [1st Dist.] 2000, no pet'n); Nguyen v. State, 11 S.W.3d 376 (Tex.App.-Houston [14th Dist.] 2000, no pet'n); Pena v. State, 932 S.W.2d 31 (Tex.App.-El Paso 1995, no pet'n); Johnson v. State, 885 S.W.2d 641 (Tex.App.-Waco 1994, pet'n ref'd). We have independently reviewed the record before this court. The record reflects that appellant was properly admonished in compliance with TEX. CODE CRIM. PRO. ANN. ART. 26.12 (Vernon 1989) and that appellant knowingly and voluntarily waived his rights and signed a judicial confession. TEX. CODE CRIM. PRO. ANN. arts. 1.13, 1.14, 1.15, 27.13 (Vernon 1989 Supp. 2003). The record also reflects that trial counsel provided reasonably effective assistance. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999). Nothing in the record suggests that but for trial counsel's actions appellant would have not pleaded guilty but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Morrow, 952 S.W.2d 530 (Tex.Cr.App. 1997), cert. den'd, 525 U.S. 810 (1998). Appellant testified that he had lived with his girlfriend and her daughter (the victim) for seven or eight years. He testified that, during that time, he treated the victim as if she was his daughter. The record reflects that the victim called appellant "Dad." Appellant admitted that, while he was attracted to the victim "[n]ot as [his] child but as a female," he had never been attracted to other girls her age. Appellant's girlfriend was ill at this time and took a lot of medicine. Appellant stated that he did not think his attraction was normal and that he thought the victim became "sort of a substitute" for his girlfriend (the victim's mother). Appellant said that he had inserted his finger into the victim's vagina, that he only did it once, that he "felt like something was wrong" afterwards, that the one time he did it was when his girlfriend walked into the room and saw him, and that he had fondled the victim "three or four" times "on top of her clothes." The evidence was both legally and factually sufficient. Jackson v. Virginia, 443 U.S. 307 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App. 2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App. 2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App. 2000); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App. 1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App. 1996). We agree with appellant's counsel's conclusion that the appeal is without merit. The judgment of the trial court is affirmed.