No. 05-05-00436-CR
Opinion issued April 26, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 4, Dallas County, Texas, Trial Court Cause No. F01-76037-TK. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
Opinion By Justice FITZGERALD.
Ahmad Dwion Reeves appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age. Appellant pleaded guilty without an agreement as to punishment. The trial court sentenced appellant to forty years' imprisonment. Appellant brings three issues asserting (1) the evidence is factually insufficient to support his conviction, (2) his plea was involuntary, and (3) he lacked effective assistance of counsel. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4. We affirm the trial court's judgment.
Complainant's Age
All of appellant's issues concern evidence of whether the complainant was younger than fourteen years of age at the time of the offense. As appellant observes, if the complainant was not younger than fourteen years of age at the time of the offense, then the offense was a second degree felony with a maximum term of imprisonment of twenty years. See Tex. Pen. Code Ann. § 22.011(a)(2)(D), (f) (Vernon Supp. 2005) (sexual assault of child is second degree felony); id. § 22.021(a)(1)(B)(iv), (2)(B), (e) (aggravated sexual assault of child younger than 14 years of age is first degree felony); id. § 12.33(a) (Vernon 2003) (term of imprisonment for second degree felony). The complainant testified he could not remember when the offense occurred, but he thought he was fourteen or fifteen years old at the time. The complainant also testified he was seventeen years old at the time of the trial in March 2005, and he agreed with the prosecutor that "[t]his happened about four years ago," which would make the complainant thirteen years old at the time of the offense. Appellant testified he thought the complainant was seventeen or eighteen years old. The complainant testified appellant knew the complainant's age. The medical records show the complainant was born on September 17, 1987. Appellant testified he could not remember what day the offense occurred, but he signed a judicial confession admitting the offense occurred "on the 30th day of June 2001." June 30, 2001 is less than fourteen years after September 17, 1987. Appellant's judicial confession also admitted the complainant "was younger than 14 years of age." Factual Sufficiency
In his first issue, appellant asserts the evidence was factually insufficient to show the complainant was younger than fourteen years of age at the time of the offense. Sufficiency of the evidence from a guilty plea to the trial court is reviewed under article 1.15 of the code of criminal procedure, not the constitutional sufficiency standards of Jackson v. Virginia, 443 U.S. 307, 319 (1979) (federal constitutional legal sufficiency), or Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004) (state constitutional factual sufficiency). Under article 1.15, for the evidence to support a plea of guilty to the trial court, it is "necessary for the state to introduce evidence into the record showing the guilt of the defendant." Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). By entering a plea of guilty, a defendant waives factual sufficiency review. Keller v. State, 125 S.W.3d 600, 604-05 (Tex.App.-Houston [1st Dist.] 2003), pet. dism'd, improvidently granted, 146 S.W.3d 677 (Tex.Crim.App. 2004). In this case, the State introduced appellant's judicial confession stating the date of the offense was June 30, 2001, and the complainant "was younger than 14 years of age." The State also introduced evidence of the complainant's birth date, which showed he was younger than fourteen years of age on June 30, 2001. We conclude the evidence is sufficient to meet the standard of review under article 1.15. We overrule appellant's first issue. Voluntariness of Guilty Plea
In his second issue, appellant asserts his plea was involuntary. When a defendant pleads guilty and the record shows the trial court substantially complied with the admonishment requirements of article 26.13(a), there is a prima facie showing that the defendant's plea is knowing and voluntary. Mallett v. State, 65 S.W.3d 59, 64 (Tex.Crim.App. 2001). The burden then shifts to the defendant to show he entered the plea without understanding the consequences of his action and was thereby harmed. Ex parte Gibauitch, 688 S.W.2d 868, 871 (Tex.Crim.App. 1985); Cox v. State, 156 S.W.3d 599, 602 (Tex.App.-Tyler 2004, pet. ref'd). In considering the voluntariness of the defendant's plea, we consider the totality of the circumstances in light of the entire record. Martinez v. State, 981 S.W.2d 195, 197 (Tex.Crim.App. 1998); Pena v. State, 132 S.W.3d 663, 666 (Tex.App.-Corpus Christi 2004, no pet.). Appellant acknowledges the trial court properly admonished him in writing and that the burden shifted to him to show his plea was not voluntary. Appellant asserts he would not have pleaded guilty and signed a judicial confession to a first degree felony if he had known there was a question as to the age of the complainant at the time of the offense. Appellant also asserts he would have insisted on a trial to resolve the factual issue of when the offense occurred and how old the complainant was at the time of the offense. In this case, appellant does not argue, and no evidence shows, that appellant did not understand the consequences of his action. The record shows appellant understood he was pleading guilty to aggravated sexual assault, with a punishment range of five to ninety-nine years or life imprisonment and a fine of up to $10,000, and that he would have the duty to register as a sex offender for the rest of his life. The record shows appellant was aware of the consequences of pleading guilty to the offense charged in the indictment. We overrule appellant's second issue. Ineffective Assistance of Counsel
In his third issue, appellant asserts his plea was involuntary because he lacked effective assistance of counsel at trial. When a defendant challenges the voluntariness of a plea entered upon the advice of counsel, contending that his counsel was ineffective, the voluntariness of the plea depends on (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases and if not, (2) whether there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). In evaluating the effectiveness of counsel under the first prong, we look to the totality of the representation and the particular circumstances of each case. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. Appellant asserts trial counsel was ineffective for approving appellant's plea of guilty when there was ambiguity about the age of the complainant. Appellant also asserts the complainant's testimony that he was fourteen or fifteen years old at the time of the offense shows trial counsel did not adequately investigate the facts of the case. The record does not show the complainant, in fact, was fourteen years old at the time of the offense. Appellant did not file a motion for new trial, and counsel did not explain his reasons, if any, for believing the complainant was less than fourteen years of age. In this situation, a claim of ineffective assistance of counsel is best pursued in a writ of habeas corpus. See Aldrich v. State, 104 S.W.3d 890, 896 (Tex.Crim.App. 2003). Without evidence showing the actual investigation undertaken by counsel, the advice he gave appellant, and the reasons for that advice, appellant's claims of ineffective assistance are not firmly founded in the record. We conclude appellant has not shown he lacked effective assistance of counsel. We overrule appellant's third issue. We affirm the trial court's judgment.