Affirm and Memorandum Opinion filed October 17, 2006.
In The
Fourteenth Court of Appeals
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NO. 14-05-00323-CR
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GODSPOWER UKAEBGU, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 977,657
M E M O R A N D U M O P I N I O N
Appellant, Godspower Ukaebgu, pleaded guilty to aggravated sexual assault of a child. See Tex. Pen. Code Ann. ' 22.021 (Vernon 2003). After a pre-sentence investigation (PSI) hearing, the trial court found appellant guilty and assessed punishment at eight years= confinement in the Texas Department of Criminal Justice, Institutional Division. Appellant asserts three issues on appeal: (1) appellant received ineffective assistance of counsel at trial; (2) appellant=s plea of guilty was not made voluntarily; and (3) the evidence is insufficient to support the conviction. We affirm.
Factual and Procedural Background
Appellant was the downstairs neighbor of L.O., a minor, and L.O.=s mother, Sandra. On January 30, 2004, Sandra asked appellant to watch over L.O. while she went to speak with an auto mechanic. L.O. was twelve years old at the time. When Sandra returned home, L.O. told Sandra that appellant had sexually assaulted her by touching her breast and digitally penetrating her vagina. When Sandra confronted appellant regarding L.O.=s claims, appellant expressed remorse and urged Sandra not to contact the police. Later that day, L.O. and Sandra gave statements to a Houston Police officer regarding the incident. L.O. subsequently underwent a medical examination, which revealed trauma consistent with penetration of her vagina.
On April 6, 2004, a Harris County Grand Jury indicted appellant for aggravated sexual assault of a child. On December 16, 2004, appellant pleaded guilty to the charge without an agreed sentencing recommendation from the State. Appellant received written admonishments from the trial court describing appellant=s rights and the range of punishment he would face if convicted. Appellant acknowledged his understanding of the court=s admonishments by signing and initialing the forms on which they were printed. On March 8, 2005, the court held a PSI hearing. Both the State and appellant were given an opportunity to object to the PSI report, and neither party objected. Following the PSI hearing, the parties made closing arguments as to punishment. The trial court found appellant guilty of aggravated sexual assault of a child and assessed punishment at eight years= confinement.
Discussion
I. Ineffective Assistance of Counsel
In his first issue, appellant claims he was denied effective assistance of counsel. Specifically, appellant claims that his counsel, Ms. Pat Egwuatu, was ineffective because she (a) failed to investigate appellant=s claims, (b) failed to subpoena witnesses to testify regarding punishment, (c) promised appellant that he would receive probation without obtaining a written plea agreement, and (d) advised appellant to plead guilty despite a lack of evidence of guilt.
A. Standard of Review
In reviewing claims of ineffective assistance of counsel, we apply the two prong test set out in Strickland v. Washington, 466 U.S. 668, 687B91, 104 S. Ct. 2052, 2064B67, 80 L. Ed. 2d 674 (1984). See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland). To establish ineffective assistance of counsel, appellant must prove by a preponderance of the evidence that (1) his trial counsel=s representation was deficient in that it fell below the standard of prevailing professional norms, and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the trial would have been different. Id.; Mallett v. State, 65 S.W.3d 59, 62B63 (Tex. Crim. App. 2001). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 63.
When evaluating a claim of ineffective assistance, the appellate court looks 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). There is a strong presumption that counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas, 163 S.W.3d at 740; Stults v. State, 23 S.W.3d 198, 208 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). To overcome the presumption of reasonable professional assistance, Aany allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.@ Thompson, 9 S.W.3d at 813. When the record is silent as to the reasons for counsel=s conduct, a finding that counsel was ineffective would require impermissible speculation by the appellate court. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Stults, 23 S.W.3d at 208. Hence, absent specific explanations for counsel=s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
B. Analysis
Appellant first argues his trial counsel=s assistance was ineffective because counsel failed to investigate appellant=s claims. The State argues that appellant failed to file a motion for new trial and develop a record sufficient for an appellate court to make that determination. We agree with the State. An attorney=s failure to investigate or present evidence will be a basis for establishing ineffective assistance of counsel only where it is affirmatively shown that the presentation of that evidence would have benefitted appellant. Garrett v. State, 998 S.W.2d 307, 314 (Tex. App.CTexarkana 1999, pet. ref=d, untimely filed). Appellant has made no showing of how he could have benefitted from his counsel=s investigation, or precisely what counsel should have investigated. Further, appellant fails to identify any portion of the record from which a failure to investigate may be inferred. Therefore, appellant has failed to overcome the Astrong presumption@ of reasonable professional assistance with respect to his counsel=s efforts to investigate. See Salinas, 163 S.W.3d at 740.
Appellant next argues that he received ineffective assistance of counsel because his attorney failed to subpoena witnesses to testify regarding punishment. Appellant claims that at least four witnesses could have testified on his behalf. Appellant was given an opportunity to present testimony during the punishment phase of the trial. The record indicates that appellant=s counsel informed the trial court that two witnesses were traveling from Dallas to testify on appellant=s behalf. The record also shows that the witnesses did not arrive in time to testify. However, the record contains no indication as to whether trial counsel issued or failed to issue subpoenas to compel the appearance of appellant=s witnesses. Because we may not speculate regarding counsel=s actions or inactions, or the reasons therefor, we cannot conclude that counsel=s alleged failure to subpoena witnesses was deficient under the first prong of the Strickland analysis. See Stults, 23 S.W.3d at 208. Moreover, there is no showing as to the substance of the evidence the witnesses would have provided.
Appellant further argues that his trial counsel=s assistance was ineffective because counsel promised appellant that he would receive a sentence of probation if appellant pleaded guilty, and because counsel failed to obtain a written plea agreement from the State. The record contains no evidence of any promise made to appellant by his attorney regarding a sentence of probation.[1] Rather, the record indicates appellant was admonished by the trial court that he would receive a sentence of not less than five years= confinement if found guilty.[2] Therefore, based on the record before us, appellant has failed to demonstrate that counsel rendered deficient performance by promising appellant he would receive probation. See Thompson, 9 S.W.3d at 813 (AAny allegation of ineffectiveness must be firmly founded in the record.@); Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (A[T]here is no indication in the record that appellant=s trial counsel assured appellant he would receive probation if he pled guilty. To find that trial counsel was ineffective based on these circumstances would call for speculation, which we will not do.@). Further, the record contains no explanation of why appellant=s counsel did not obtain an agreed sentencing recommendation from the State. It is possible that the State was unwilling to agree to a sentencing recommendation, and appellant=s counsel believed that appellant=s interests were best served by entering a plea of guilty and requesting leniency during the punishment phase of the trial. In the absence of evidence to the contrary, we presume that counsel=s actions and decisions were reasonably professional and motivated by sound strategy. See Salinas, 163 S.W.3d at 740. Therefore, appellant has not demonstrated that his trial counsel=s performance was deficient based on the alleged promise of probation or failure to obtain an agreed sentencing recommendation from the State.
In his final allegation of ineffective assistance of counsel, appellant claims counsel urged him to plead guilty despite a lack of evidence of guilt. Specifically, appellant argues that there was no medical evidence, no DNA evidence, no witness to any crime, and Aonly the statement of the minor child.@ Contrary to appellant=s claim, the record does contain evidence of appellant=s guilt. L.O. gave a statement to a Houston Police Officer in which she identified appellant as the person who assaulted her and provided specific details of the assault. Sandra gave a statement in which she corroborated portions of L.O.=s claims and provided circumstantial evidence of appellant=s guilt. A medical examination performed on L.O. revealed an abrasion consistent with penetration trauma to the female sex organ. Based upon our review of the record as a whole, we find that counsel=s recommendation that appellant enter a plea of guilty may have been motivated by sound trial strategy. Appellant has not identified any defenses he had to the allegations in the indictment. Therefore, appellant has failed to overcome the strong presumption that his trial counsel=s actions and decisions were reasonably professional and motivated by sound trial strategy, as required by the first prong of the Strickland analysis. See Salinas, 163 S.W.3d at 740.
After reviewing the record and considering all of appellant=s claims of ineffective assistance, we conclude that appellant has not met his burden under Strickland. Appellant=s claims that his counsel failed to investigate, failed to subpoena witnesses, and promised that appellant would receive a sentence of probation are unsupported by the record. Further, appellant has failed to demonstrate that his counsel rendered ineffective assistance by recommending the entry of a plea of guilty. Because appellant has failed to prove his counsel=s performance was deficient, we need not reach the second prong of the Strickland analysis. See Strickland, 466 U.S. 668, 687B91, 104 S. Ct. 2052, 2065B67. Accordingly, we overrule appellant=s first point of error.
II. Voluntariness of Appellant=s Guilty Plea
In his second issue, appellant argues his guilty plea was not entered voluntarily because it was induced by trial counsel=s promise of probation, and because appellant did not understand the nature of the charge against him or consequences of his plea.
A. Standard of Review
A plea of guilty must be entered voluntarily and freely. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2006); Houston v. State, ___ S.W.3d. ___, 2006 WL 2294495, at *3 (Tex. App.CHouston [14th Dist.] Aug. 10, 2006, no pet. h.). In considering the voluntariness of a guilty plea, the appellate court examines the record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998). A showing in the record that a defendant was admonished by the trial court creates a prima facie showing that the plea was entered knowingly and voluntarily. Id. The burden then shifts to the defendant to show that he entered the plea without understanding the consequences of his action and was harmed as a result. Ex Parte Gibauitch, 688 S.W.2d 868, 871 (Tex. Crim. App. 1985); Pena v. State, 132 S.W.3d 663, 666 (Tex. App.CCorpus Christi 2004, no pet.). A defendant who was properly admonished by the trial court bears the heavy burden of proving that his plea was entered involuntarily. Martinez, 981 S.W.2d at 196B97 (holding appellant failed to overcome showing of voluntariness arising from written admonishments signed by appellant); Cantu v. State, 988 S.W.2d 481, 484 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d) (finding insufficient evidence in the record to overcome showing of voluntariness arising from written admonishments).
B. Analysis
The record shows that appellant received written admonishments from the trial court in compliance with article 26.13(a) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2006). Appellant signed the admonishments and placed his initials next to several numbered paragraphs, specifically acknowledging his understanding of the charges against him and the consequences of his guilty plea. Hence, there is a prima facie showing that appellant=s plea was entered voluntarily and knowingly, and appellant bears the heavy burden of proving his plea was involuntary. See Martinez, 981 S.W.2d at 197.
Because there was no motion for a new trial, appellant=s burden is compounded by the absence of a record in this case. Appellant cites no evidence in the record in support of his contention. Our review of the clerk=s record and the transcripts of the PSI hearing and supplemental hearing reveal no support for appellant=s claim. The record contains no evidence that appellant=s trial counsel promised appellant that he would receive a sentence of probation. See Cantu, 988 S.W.2d at 484. (holding appellant failed to overcome presumption of voluntariness where the record contained no evidence appellant=s trial counsel promised he would receive a sentence of probation). Further, a guilty plea is not involuntary simply because the sentence exceeded what an accused expected, even if that expectation was raised by his attorney. West v. State, 702 S.W.2d 629, 633 (Tex. Crim. App. 1986); Houston, ___ S.W.3d. ___, 2006 WL 2294495, at *3; Russell v. State, 711 S.W.2d 114, 116 (Tex. App.CHouston [14th Dist.] 1986, pet. ref=d). Therefore, based on our review of the record as a whole, we find that appellant has failed to meet his heavy burden of proving that his plea was entered involuntarily.
We overrule appellant=s second point of error.
III. Sufficiency of the Evidence
In his third issue, appellant argues there is insufficient evidence to support a finding of guilt. The State asserts that appellant=s judicial confession, standing alone, is sufficient evidence to support a verdict of guilty. We agree with the State.
A. Standard of Review
A plea of guilty does not authorize a felony conviction unless there is sufficient evidence to support such a plea and the judgment to be entered. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005); Dinnery v. State, 592 S.W.2d 343, 351 (Tex. Crim. App. 1980). The State must introduce sufficient evidence to support the conviction.[3] Tex. Code Crim. Proc. Ann. art. 1.15. One way in which the State may satisfy its burden is with a judicial confession. Brink v. State, 78 S.W.3d 478, 484 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). AIt is well settled that a judicial confession, standing alone, is sufficient to sustain a conviction upon a guilty plea.@ Dinnery, 592 S.W.2d at 353; see also Brink, 78 S.W.3d at 483B84 (holding execution of a valid judicial confession waives any challenge to the sufficiency of the evidence). The judicial confession must establish each element of the offense charged. See Dinnery, 592 S.W.2d at 352.
B. Analysis
On December 16, 2004, appellant signed a AWaiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession@ in which he stipulated to the evidence and confessed to each element of the offense alleged in the indictment. Specifically, appellant confessed that on or about January 30, 2004, he Adid then and there unlawfully, intentionally and knowingly cause the penetration of the FEMALE SEX ORGAN of [L.O.] hereinafter called the Complainant, a person younger than fourteen years of age and not the spouse of the Defendant, by placing HIS FINGER in the FEMALE SEX ORGAN of the Complainant.@ Appellant=s judicial confession satisfies each element of the offense of aggravated sexual assault of a child and complies with article 1.15 in all respects. See Tex. Pen. Code Ann. ' 22.021(a)(1)(B)(i); Tex. Code Crim. Proc. Ann. art. 1.15. Therefore, we find sufficient evidence in the record to support appellant=s conviction and overrule appellant=s third pont of error.
Accordingly, the judgment of the trial court is affirmed.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed October 17, 2006.
Panel consists of Justices Anderson, Hudson, and Guzman.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] Community supervision was not available in this case because the trial judge did not make Aa finding in open court that placing the defendant on community supervision is in the best interest of the victim,@ as required by the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.12, '5(a) (Vernon Supp. 2006). Adhering to the presumption of reasonable professional assistance, nothing in the record rebuts the presumption counsel knew probation was not available and, therefore, would not advise appellant to the contrary.
[2] Although there is no reporter=s record of the plea hearing, the clerk=s record contains written admonishments signed by appellant and his trial counsel. The written admonishments instruct appellant to place his initials next to each of several numbered paragraphs, acknowledging his understanding of the information contained therein. Appellant wrote his initials next to two paragraphs containing the following information: A(1) you are charged with the felony of Agg. Sex Assault Child. If convicted, you face the following range of punishment: . . . FIRST DEGREE FELONY: A term of not more than 99 years or less than 5 years in the Institutional Division of the Texas Department of Criminal Justice, and in addition, a fine not to exceed $10,000.00 may be assessed.@
[3] Article 1.15 of the Code of Criminal Procedure provides in pertinent part:
[I]t shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005).