Opinion
No. 05-03-00101-CR; No. 05-03-00102-CR; No. 05-03-00103-CR
Opinion Filed July 1, 2003. Do Not Publish
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F02-16072-MS, F02-16073-MS, F02-16074-MS. AFFIRMED
Before Justices JAMES, FRANCIS, and LANG.
OPINION
Richard Guerrero appeals three convictions for aggravated sexual assault of a child younger than fourteen years. See Tex. Pen. Code Ann. § 22.021 (Vernon 2003). In these cases, appellant waived a jury trial and entered open guilty pleas. The trial court sentenced appellant to fifteen years in the penitentiary and assessed a $1000 fine in each case. In a single point of error, appellant contends his guilty pleas were involuntary due to ineffective assistance of counsel. We affirm the trial court's judgments. To prevail on his claim of ineffective assistance of counsel, appellant must show counsel's representation fell below an objective standard of reasonableness, and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In the context of a guilty plea, appellant must show that but for counsel's deficient performance, he would not have pleaded guilty and would have insisted upon going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). When facing a silent record as to defense counsel's strategy, the court will not speculate as to defense counsel's tactics or guess what the reasons might be for taking or not taking certain actions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Without evidence of the strategy and methods involved in counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814. Appellant argues counsel was ineffective because he was not aware appellant was ineligible for regular probation. Appellant argues counsel could not have properly admonished him about the consequences of his plea or the possible sentence he could receive because counsel did not know appellant could only receive deferred adjudication probation. Thus, appellant argues, but for counsel's error in not advising him about all the punishment options, appellant may have chosen not to enter open guilty pleas. The State responds nothing in the record shows counsel communicated misinformation to appellant about either regular or deferred probation, and nothing shows appellant's guilty pleas were involuntary. Appellant's arguments are based on counsel's statements made during closing argument at the sentencing hearing. Counsel asked the trial judge to consider giving appellant probation. Then, counsel said:
If he's eligible for deferred probation, we'd request that as well. Register as a sex offender. Get all the counseling he can get. Stay away from kids. Anything that the Court sees that might help this man and help his family try to get over this.Appellant argues that counsel's statements prove he did not understand that appellant was not eligible to receive regular probation, and thus, counsel provided ineffective assistance. We disagree. During the plea hearing, appellant testified counsel discussed all the documents in these cases with him, and he understood the documents before he signed them. Appellant testified he understood the punishment range, he was freely and voluntarily pleading guilty to the offenses, and that counsel explained the consequences of his guilty pleas to him. During the sentencing hearing, appellant testified he had sex with his thirteen-year-old stepdaughter on at least three occasions, and that he gave a videotaped confession to police. Appellant further testified he discussed the seriousness of the offenses with counsel, he understood the judge could sentence him to as much as ninety-nine years in prison, and he understood that whether or not he was given probation, he would have to register as a sex offender for the rest of his life. Other than his bare statements, appellant has not shown by a preponderance of the evidence that counsel was ineffective or that the results of the proceeding would have been different. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. Nothing in the record shows appellant would not have pleaded guilty to the offenses, and that counsel's trial strategy was unsound. See Thompson, 9 S.W.3d at 814. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment in each case.