TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00106-CR
Mohsinuddin Saiyed, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 75571, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
Mohsinuddin Saiyed appeals his judgment of conviction on his open plea of guilty
to the second-degree felony offense of sexual assault of a child under seventeen years old. See Tex.
Penal Code § 22.011. After a hearing, the trial court assessed punishment at seventeen years’
imprisonment. The trial court certified Saiyed’s right of appeal.
Saiyed’s court-appointed attorney has filed a motion to withdraw supported by a brief
addressing this appeal and concluding that this appeal is frivolous and without merit. The brief
meets the requirements of Anders v. California, 386 U.S. 738, 744 (1967), by presenting a
professional evaluation of the record in this cause demonstrating why there are no arguable appellate
grounds to be advanced. See id.; see also Penson v. Ohio, 488 U.S. 75, 80 (1988); High v. State,
573 S.W.2d 807, 811-13 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim.
App. 1974); Jackson v. State, 485 S.W.2d 553, 553 (Tex. Crim. App. 1972); Gainous v. State,
436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Counsel sent a copy of the brief to Saiyed, advised
him of his right to examine the appellate record in this cause and to file a pro se brief, and supplied
Saiyed with a form motion for pro se access to the appellate record. See Anders, 386 U.S. at 744;
Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014). After requesting and receiving an
extension of time, Saiyed filed a pro se brief raising nine issues that we will address after briefly
summarizing the testimony from Saiyed’s punishment hearing.
Testimony from Saiyed’s punishment-hearing
Following Saiyed’s plea of guilty, the district court conducted a punishment hearing
and heard testimony from Saiyed, his victim T.M. (who was his stepdaughter), and his ex-wife M.S.
(T.M.’s mother). T.M. testified that when she was fourteen, Saiyed first touched her “boobs.” She
said that she told Saiyed doing that “was not right,” and she said that if her mother saw him do that,
her mother would say something to him. T.M. recalled that over time, Saiyed’s assaults progressed
to other sexual activity, including oral sex and intercourse. T.M. testified that she was too scared
and ashamed to tell her mother initially. But T.M. stated that after routine blood tests for a kidney
infection revealed that she was pregnant, she told her mother what had been going on. T.M. testified
that Saiyed is the father of the baby. T.M. also testified about difficulties in Saiyed’s past
relationship with her mother, including his physical violence towards her mother.
M.S. testified, corroborating her daughter’s testimony about the discovery of her
pregnancy and listing a number of the baby’s health issues that arose from his premature birth at
thirty-one weeks. M.S. stated that Saiyed made regular monthly payments to help support the baby.
She also stated that Saiyed provided her with a car and money for car repair and gas, but she stated
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that the car was “nondriveable” and “needed work.” M.S. testified that Saiyed had been physically
abusive to her in the past and that domestic-violence classes and counseling seemed to help him,
although he later became verbally abusive towards her. M.S. stated that she had difficulty
remembering the year that she married Saiyed because the “left side of my brain is not fully
developed so I’m not good with dates but I do remember events.”
Saiyed testified about his remorse for his actions with T.M. and reiterated his guilt
for those actions. He acknowledged that he spoke to a Harker Heights police detective, waived his
rights, and “gave evidence against himself” because he committed the offense of “having sex with
a minor.” Saiyed also testified in response to several questions from the district-court judge about
his guilt for the offense and his income from all sources that would be available for the baby’s care
and support.
Issues in Saiyed’s pro se brief are frivolous
Saiyed’s brief acknowledges his commission of the offense by noting in his statement
of facts that “[o]n March 22, 2016, victim [T.M.], had [a] sexual relationship with Appellant at the
time she was 16 years old, Appellant [was] charged with sexual assault of a minor.” Saiyed then
contends in nine issues that he received ineffective assistance of counsel, that M.S. and T.M. testified
untruthfully, that T.M. engaged in promiscuous activities, and that M.S. “consented” to her
daughter’s assault. All of these issues are frivolous.
In his first five issues, Saiyed contends that his counsel provided ineffective
assistance by misleading him about the sentence that he would receive, instructing him not to talk
unless asked, telling him there was a fifteen-year deal and then an eight-year deal but later denying
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there was any deal, and discussing “shock probation” with him even though he was ineligible for it,
wasting the time for filing a motion for “retrial.” Saiyed cites one case in support of these issues,
Adekanbi v. State, No. 05-02-00521-CR, 2002 Tex. App. LEXIS 8512 (Tex. App.—Dallas
Dec. 3, 2002, no pet.) (not designated for publication).
However, as Adekanbi states, to prevail on an ineffective-assistance claim, a
defendant must show that his counsel’s representation was deficient and that the deficient
performance prejudiced the defense. Id. at *11 (citing Strickland v. Washington, 466 U.S. 668, 687
(1984)). Claims of ineffective assistance of counsel must be supported by the record, and where the
record is silent regarding counsel’s strategy or tactics, we will not speculate as to the basis for
counsel’s decision. Id. at *12 (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994)). Failure to make the required showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim. Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999)). Here, we conclude that Saiyed’s various claims of ineffective assistance of counsel lack
merit because the record is silent as to his counsel’s strategy or tactics and thus, Saiyed has not met
his burden of showing deficient performance and prejudice. See id. at *17-18; see also Strickland,
466 U.S. at 687.
In his sixth issue, Saiyed contends that M.S. testified untruthfully about Saiyed’s
domestic abuse of her, about her disability, and about Saiyed providing her with a car that was
“unrepairable.” In his ninth issue, Saiyed contends that T.M. was afraid of her mother and testified
untruthfully that her mother told Saiyed to “stop playing with [T.M.’s] boobs.” These issues present
challenges to the credibility of witnesses. We defer to the determinations of the factfinder—here,
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the district court—as to the credibility of witnesses and the weight to be given to their testimony, and
we do not substitute our judgment on these matters. See Nowlin v. State, 473 S.W.3d 312, 317 (Tex.
Crim. App. 2015); see also Quintana v. State, No. 07-04-0086-CR, 2005 Tex. App. LEXIS 7243,
at *7-8 (Tex. App.—Amarillo Aug. 31, 2005, no pet.) (mem. op., not designated for publication)
(rejecting pro se appellant’s challenges to credibility of witnesses at punishment hearing); Grothe
v. State, No. B14-91-01088-CR, 1992 Tex. App. LEXIS 1734, at *5 (Tex. App.—Houston
[14th Dist.] June 25, 1992, no writ) (not designated for publication) (“As the sole finder of fact at
the punishment hearing, it is within the proper exercise of the trial court’s discretion to determine
the credibility of the witnesses and the weight to be given the evidence.”).
In his seventh issue, Saiyed contends that M.S. “was aware [of] and consent[ed] to
[the] sexual assault Appellant and victim had on 22nd March 2016.” But Saiyed points to no
evidence in the record, and provides no argument, supporting this contention. See Tex. R. App. P.
38.1(i) (requiring brief to contain clear and concise argument for contentions made with appropriate
citations to authorities and to record).
In his eighth issue, Saiyed contends that T.M. engaged in “promiscuous activities.”
Saiyed does not explain this statement but cites to three cases addressing the former statutory defense
of the victim’s promiscuity. See May v. State, 919 S.W.2d 422 (Tex. Crim. App. 1996); Hernandez
v. State, 861 S.W.2d 908 (Tex. Crim. App. 1993); Rankin v. State, 821 S.W.2d 230 (Tex.
App.—Houston [14th Dist.] 1991, no pet.); see Former Tex. Penal Code § 22.011(d)(1) (containing
“promiscuity defense”). However, the statutory “promiscuity defense” was repealed more than
twenty-two years ago and does not absolve Saiyed of his criminal responsibility for the offense of
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sexual assault of a child under seventeen, to which he pleaded guilty. See May, 919 S.W.2d at 423
n. 1 (noting that “promiscuity defense” in Texas Penal Code § 22.011(d)(1) was repealed effective
September 1, 1994).
The issues in Saiyed’s pro se brief fail to present a nonfrivolous ground for reversing
his conviction on appeal. Having thoroughly reviewed the record and the briefs filed in this
cause, we agree with counsel’s assessment that this appeal is frivolous and without merit. See
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); Bledsoe v. State, 178 S.W.3d 824,
826-27 (Tex. Crim. App. 2005). Counsel’s motion to withdraw is granted. The judgment of
conviction is affirmed.
Jeff Rose, Chief Justice
Before Chief Justice Rose, Justices Field and Bourland
Affirmed
Filed: July 31, 2017
Do Not Publish
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