Affirmed as Modified; Opinion Filed January 21, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-01606-CR
ADELANKE SAMUEL ALAKE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F-10-42185-I
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Evans
After pleading no contest pursuant to a sentencing cap agreement, Adelanke Samuel
Alake appeals his conviction for the offense of aggravated sexual assault of a child under
fourteen years of age. In three issues, appellant asserts (1) the trial court did not properly
admonish him on the correct range of punishment for the offense, (2) his trial counsel was
ineffective, and (3) the judgment of conviction incorrectly reflects that he pleaded “not guilty.”
After reviewing the record, we modify the judgment of conviction to reflect that appellant
pleaded “no contest” to the charged offense and that the terms of the plea bargain consisted of a
cap on punishment not to exceed twenty years’ imprisonment. As modified, we affirm the trial
court’s judgment.
BACKGROUND
Appellant was charged with aggravated sexual assault of a child under fourteen arising
out of contact he had with the complainant whom he and his wife babysat after school. 1 In light
of the nature of the issues presented, a detailed recitation of the facts is not necessary to our
disposition of this appeal. On June 10, 2013, the matter was called to trial. After appellant
rejected the State’s latest plea bargain offer of twenty-five years, he entered a plea of not guilty,
and the parties proceeded to voir dire a jury panel. Appellant was present during voir dire. At
that time the judge, defense counsel, and prosecutor each informed the panel that the range of
punishment for the charged offense was from probation to 99 years or life in the penitentiary,
and up to a $10,000 fine. 2
After several of the prospective jurors indicated they could not consider probation, the
trial court dismissed the entire panel because the remaining number of members was insufficient
to constitute a jury. The next day, the prosecutor offered to recommend a fifteen-year sentence
in exchange for a guilty plea, but appellant rejected the offer. The case was scheduled for trial
three months later on September 16, 2013. At that time, both parties waived a jury trial and
agreed that appellant would plead no contest in exchange for an agreed range of punishment
from probation to twenty years if the State proved the offense beyond a reasonable doubt. The
trial court heard evidence on guilt, found the evidence substantiated appellant’s guilt, but
deferred adjudication of guilt pending a PSI report. At a subsequent hearing, the trial court
sentenced appellant to twelve years’ imprisonment, which was within the agreed punishment
range.
1
Complainant was ten or eleven at the time of the offense and eighteen at the time of trial.
2
See TEX. PENAL CODE ANN. § 12.32 (West 2011). The prosecutor did not mention the $10,000 fine.
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ANALYSIS
In his first issue, appellant complains the trial court failed to admonish him on the range
of punishment for the charged offense in violation of article 26.13 of the code of criminal
procedure and his due process rights. 3
Pursuant to article 26.13 of the code of criminal procedure, the trial court must admonish
a defendant on the range of punishment before accepting a plea of guilty or no contest. TEX.
CODE CRIM. PROC. ANN. art. 26.13(a)(1) (West Supp. 2014). Although three months earlier
during voir dire the sentencing range was discussed by the Court, the prosecutor, and appellant’s
counsel, on September 17, 2013, at the hearing on appellant’s plea bargain and guilt, the trial
court only orally admonished appellant on the deportation consequences of his no contest plea.
Nothing in the reporter’s record of the September hearing shows that appellant was admonished
on the range of punishment. Moreover, the record does not contain any written admonishments
indicating the range of punishment. We do not decide whether or not there was compliance with
article 26.13, because we decide this issue on the basis that appellant was not harmed.
Failure to admonish pursuant to article 26.13(a)(1) is considered statutory error that is
subject to a non-constitutional harm analysis. See TEX. R. APP. P. 44.2(b); Burnett v. State, 88
S.W.3d 633, 637 (Tex. Crim. App. 2002). When reviewing for harm under this standard, we
look to the record as a whole to determine whether it demonstrates appellant was unaware of the
particular consequences of his plea and that he was misled or harmed by the trial court’s failure
to admonish him regarding the range of punishment. Id. at 638. Here, there is nothing in the
3
To the extent that appellant is attempting to raise a separate due process complaint in this issue, he has failed
to proffer any analysis, argument, or legal authority to support such a contention. Accordingly, he has waived his
due process claim due to inadequate briefing. See TEX. R. APP. P. 38.1(i); Salazar v. State, 38 S.W.3d 141, 147
(Tex. Crim. App. 2001) (constitutional complaints waived by inadequate briefing).
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record to suggest that appellant did not know the consequences of his plea, i.e, the applicable
range of punishment.
The record shows that before entering his no contest plea, appellant had been offered and
rejected more than one plea bargain offer. Additionally, appellant was present during voir dire in
June when the trial court, prosecutor, and defense counsel each advised the jury panel of the full
range of punishment applicable to the offense. The prosecutor and defense counsel then
questioned the panel members about their ability to consider the entire punishment range. The
trial court dismissed the panel after a number of prospective jurors indicated they could not
consider the entire punishment range. At a hearing the following day, the trial court reminded
appellant of the panel members that were dismissed because they could not consider probation
and noted it was likely he could receive a lot of time in the penitentiary. By the time appellant
appeared for trial on September 16, 2013, he had agreed to plead no contest in exchange for an
agreed range of punishment from probation to twenty years. Based on the record before us, there
is nothing that supports an inference that appellant was unaware of the actual statutory
punishment range for the offense at the time he entered his plea or that the failure to admonish
mislead him into pleading no contest. To the contrary, the record indicates that before he
pleaded no contest, appellant was aware of the applicable statutory range of punishment and
agreed to a reduced range of punishment of probation to twenty years. Accordingly, the trial
court’s failure to admonish appellant at the hearing in September in accordance with article
26.13 was harmless. We resolve appellant’s first issue against him.
In his second issue, appellant asserts that he received ineffective assistance of counsel
because his attorney failed to advise him of the proper punishment range and also failed to move
for a new trial based on the trial court’s failure to properly admonish appellant on the punishment
range.
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To prevail on an ineffective assistance of counsel claim, appellant must show counsel’s
performance fell below an objective standard of reasonableness and a reasonable probability
exists that but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687–88 (1984); Hernandez v. State, 988
S.W.2d 770, 772 (Tex. Crim. App. 1999). The record must be sufficiently developed to
overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808,
813–14 (Tex. Crim. App. 1999). In general, a silent record that provides no explanation for
counsel’s actions will not overcome the strong presumption of reasonable assistance. Rylander
v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). We presume a sound trial strategy in
the absence of evidence of counsel’s strategic motives. Thompson, 9 S.W.3d at 813–14. We
may not reverse for ineffective assistance when counsel’s actions or omissions may have been
based on tactical decisions, but the record does not explain the reasons for counsel’s decisions.
Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). We should find ineffective
assistance as a matter of law, however, when no reasonable trial strategy could justify trial
counsel’s conduct, regardless of whether the record adequately reflects his subjective reasons for
the conduct in question. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Thus,
absent an opportunity for trial counsel to explain his conduct, we should not find ineffective
assistance unless the challenged conduct was “so outrageous that no competent attorney would
have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Here, there is nothing in the record to show what advice counsel gave appellant or
appellant’s subjective reasons for pleading no contest. Although appellant suggests that counsel
was deficient based on his statement the day before trial that the range of punishment was
probation to twenty years, it is clear from the context in which the statement was made, that
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counsel was referring to the agreed cap on punishment he had reached with the State and not the
statutory range of punishment for the offense. 4 There is nothing in the record to show appellant
pleaded no contest because he misunderstood the range of punishment, or that he would not have
pleaded no contest had he understood the statutory range of punishment. As noted above, the
record shows that the correct statutory range of punishment for the offense was stated multiple
times while appellant was present during voir dire.
Appellant also contends he received ineffective assistance of counsel because his attorney
failed to move for a new trial based on the trial court’s failure to properly admonish appellant on
the punishment. There is nothing in the record to show why appellant’s counsel did not file a
motion for new trial regarding the omission of admonishments regarding the range of
punishment. We cannot conclude there was no reasonable strategy to justify not filing such a
motion because counsel may have not wanted to point out to the trial court its technical omission
when, as we have already concluded, the record demonstrates appellant, appellant’s counsel, and
the trial court knew the full range of punishment and knew appellant’s plea bargain agreement
capped appellant’s maximum sentence to twenty years. Accordingly, we resolve appellant’s
second issue against him.
In his third issue, appellant contends the judgment of conviction should be modified to
reflect he pleaded “no contest” to the offense. The State agrees the trial court’s judgment should
be modified to correct the mistake. Where, as here, the record provides the necessary
information to correct inaccuracies in a trial court’s judgment, we have the authority to modify
the judgment to speak the truth. See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526,
529–30 (Tex. App.—Dallas 1991, pet. ref’d). Our review of the record confirms that appellant
4
Defense counsel stated, “Well, Judge, this morning, the State and I agreed that we would waive . . . a jury and
will allow Mr. Alake to plead no contest to you, . . . And if they prove their case beyond a reasonable doubt, then the
punishment range would be probation to 20 years.”
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pleaded “no contest” to the offense. The record further confirms that the judgment incorrectly
reflects the “Terms of the Plea Bargain” and “None” when in fact the terms of the plea bargain
consisted of a cap on punishment not to exceed twenty years’ imprisonment. We resolve
appellant’s third issue in his favor.
We modify the judgment of conviction to reflect that appellant pleaded “no contest” to
the offense of aggravated sexual assault of a child under fourteen years of age and to reflect the
terms of the plea bargain consisted of a cap on punishment not to exceed twenty years’
imprisonment. As modified, we affirm the trial court’s judgment.
/David Evans/
DAVID EVANS
Do Not Publish JUSTICE
TEX. R. APP. P. 47
131606F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ADELANKE SAMUEL ALAKE, Appellant On Appeal from the Criminal District Court
No. 2, Dallas County, Texas
No. 05-13-01606-CR V. Trial Court Cause No. F-10-42185-I
Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee Francis and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to reflect as follows:
Under the section “Plea to the Offense,” the judgment is modified to state "No
Contest."
Under the section “Terms of the Plea Bargain,” the judgment is modified to state
“a cap on punishment not to exceed twenty years’ imprisonment.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 21st day of January, 2015.
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Adelanke Samuel Alake v. State
Combined Opinion