Opinion
No. 05-03-00128-CR
Opinion Filed October 27, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80090-02. AFFIRM
Before Justices WHITTINGTON, WRIGHT, and BRIDGES.
OPINION
Jose Maria Lopez appeals his conviction for indecency with a child by contact. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). Appellant waived a jury trial and entered an open guilty plea before the court. The trial court sentenced appellant to ten years' confinement. In a single point of error, appellant contends he did not receive effective assistance of counsel. We affirm the trial court's judgment. At the October 2, 2002 plea hearing, appellant testified he understood the charges in the indictment, understood the punishment range, was freely and voluntarily pleading guilty because he was guilty and for no other reason; and he understood the consequences of his plea. Appellant also testified he had adequate time before trial to talk with his attorney. Appellant's signed stipulation of evidence was offered into evidence without objection, then the trial court passed the case for a presentence investigation report (PSI). During the November 22, 2002 sentencing hearing, appellant testified the ten-year-old complainant was the person who (1) sought out appellant, (2) put his hand on appellant's "privates," and (3) "started the situation." Appellant now argues that because his testimony raised the defensive issue of lack of criminal intent, his attorney should have asked the trial court to allow appellant to withdraw his guilty plea. Counsel's failure to make that request, appellant argues, constituted ineffective assistance. The State responds appellant failed to show counsel was deficient in not seeking to withdraw appellant's guilty plea or that appellant was harmed by counsel's alleged deficiencies. To prevail on his claim, 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. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). When faced with a silent record as to defense counsel's strategy, the court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. Thompson, 9 S.W.3d at 814. In a trial before the court, a defendant may withdraw his guilty plea as a matter of right without giving a reason until judgment has been pronounced or the case has been taken under advisement. See Jackson v. State, 590 S.W.2d 514, 515 (Tex.Crim.App. [Panel Op.] 1979); Scott v. State, 860 S.W.2d 645, 646 (Tex.App.-Dallas 1993, no pet.). A case is deemed to have been taken under advisement after each side has concluded its presentation of evidence on the subject of guilt, the defendant's guilt has been established, and the only issue remaining to be decided is the appropriate punishment. See Scott, 860 S.W.2d at 646. In this case, when the trial judge passed the case for the PSI, the case had been taken under advisement. Thus, the judge would not have had to allow appellant to withdraw his guilty plea. Other than his bare statements, appellant has not shown by a preponderance of the evidence that counsel was ineffective in not asking the trial court to withdraw appellant's guilty plea 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 indicated in any way that he desired to withdraw his guilty plea, 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.