Reyes, Orlando v. State ( 2002 )

Opinion issued May 23, 2002

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-00-01262-CR

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ORLANDO REYES, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 828584

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O P I N I O N  

Appellant, Orlando Reyes, pleaded guilty, without an agreed punishment recommendation from the State, to aggravated sexual assault of a child. After a pre-sentence investigation (PSI) hearing, the trial court found appellant guilty and sentenced him to 45 years confinement. Appellant filed a motion for new trial and a supplemental motion for new trial arguing he had been denied effective assistance of counsel. The trial court denied both motions without a hearing.

In two issues, appellant challenges (1) the trial court's refusal to conduct a hearing on his motion for new trial, which was based on a claim of ineffective assistance of counsel, and (2) its denial of his motion. We previously sustained appellant's first issue and, by our Order of August 2, 2001, abated this appeal for the trial court to conduct a hearing on appellant's motions for new trial. A hearing was conducted, and a record of those proceedings and supplemental briefs from the parties are now before this Court. ⁽¹⁾ We now address appellant's second issue.

We affirm.

Facts and Procedural Background

At the motion for new trial hearing, appellant's former trial counsel, Chad Henderson, testified he had been a licensed attorney for over four years and had defended more than 300 criminal cases, including more than 50 felony cases. At the time he undertook the representation of appellant, Henderson had represented only one client in a trial for aggravated sexual assault of a child.

Appellant, who was 38 years old at the time he was charged, told Henderson he did not want to try the case to a jury. Prior to appellant's plea of guilty, Henderson "went over all the admonishments in detail" with appellant. Henderson explained "each and every form that [appellant] filled out." In doing so, Henderson did not notice any indication that appellant did not understand his legal rights and the legal effect of entering a guilty plea.

Henderson fully advised appellant of the charges against him, which, according to the probable cause affidavit prepared in November of 1999 by Pasadena Police Officer T.K. Brinson, were that, on or about December 1, 1997, appellant had "put his penis inside [the complainant's] anus" and had "touched [the complainant] on her vagina many times before that with his hand." ⁽²⁾ As he discussed the charges with appellant, Henderson described them as alleging that appellant had placed his penis in the complainant's rear and "wiggled it around." He did not ask appellant whether appellant "penetrated the victim's anus." Appellant did not admit to penetrating the complainant's anus but did not deny any of the charges against him. According to Henderson, appellant told him, "I should never have taken it out on [the complainant]" and "[She] didn't deserve that." Appellant also told Henderson the incident occurred "[B]ecause of the way my ex-wife treated me." Based on his conversations with appellant concerning the allegations, Henderson believed a factual basis existed for appellant's entry of a guilty plea. ⁽³⁾ Henderson recalled that at no time during the plea proceedings did appellant deny the charges against him. ⁽⁴⁾  

Henderson stated he explained to appellant that the range of punishment for aggravated sexual assault was five to 99 years imprisonment. Henderson recalled that he also advised appellant that, although he was eligible for it, it was unlikely appellant would receive probation for this type of offense, because the State would not recommend it to the trial court, and because Henderson felt it was unlikely the judge or a jury would assess it as punishment in this case. During plea negotiations, the lowest punishment recommendation by the State was 20 years confinement, and Henderson testified he repeatedly and strongly urged appellant to accept this recommended punishment. He told appellant that, in his opinion, the trial court would probably assess a higher punishment, and he urged appellant not to request a PSI hearing. Appellant refused the State's offer as to punishment and refused to go to trial.

Although Henderson did not subpoena any witnesses to the punishment hearing, he asked appellant to bring some family members to testify as character witnesses. All of appellant's family members in attendance, except his brother, declined to testify. At the hearing, Henderson questioned appellant concerning whether he could or would pay for counseling for the victim but did not specifically argue to the court that it was "in the best interest of victim" for appellant to be given probation.

Henderson recalled he was surprised when, during the sentencing hearing, appellant denied penetrating the complainant's anus. Following appellant's denial, Henderson did not request that the trial court permit appellant to withdraw his plea, but attempted to get appellant to admit his guilt, and explained his strategy as follows:

I looked at it again as the PSI is taking responsibility [sic]. Now if you plead guilty, like I explained to him, you plead guilty, you are guilty. You can't go back after that point in time. And once you plead guilty you can't get in front of the Judge and say, [']No, I am not guilty because I didn't do this.['] Because of the PSI you have to take responsibility and try to let the Court know that you were trying to correct your wrong, not going to deny it.

Concerning his investigation of the charges against appellant, Henderson testified he never talked to the complainant or her mother and never reviewed the videotaped statements of the complainant or appellant. Henderson did review the entire contents of the State's file and believed he read the written transcriptions of the videotaped statements. Henderson testified his investigation was limited because the case was not going to trial. He explained, "from the beginning, again, [appellant's] whole position was, [']I want to work it out with the State[']."

At the time of the punishment hearing, Henderson did not investigate whether the complainant's mother had any prior felony convictions. Henderson testified he would have investigated such information had he been preparing the case for a trial and had it been likely that the complainant's mother would testify. In Henderson's opinion,

[I]f it was a trial, it would have been different. . . . [A] PSI, again, to me, is all about taking responsibility. I didn't want to put the mother on the stand and start attacking her. You know, the whole purpose of a PSI was to really saying [']I did this['] and I - and to take responsibility for it, not for me to attack the victim or her mother, even though the mother had a lot of stuff in her background. That's the reason why I didn't feel it was necessary to have the mother testify. . . . I feel it would have hurt us as opposed to help us.

With regard to appellant's competency, Henderson conceded he did not discuss appellant's medical history with him. Henderson was aware of appellant's limited ability to read, so he gave no documents to appellant. In Henderson's opinion, appellant did not appear "retarded," "mentally challenged," or "mentally impaired," although appellant did seem "not [as] intelligent as most people." However, he saw no indication that appellant suffered from any medical condition, nor did appellant tell Henderson about any such condition. Henderson was not aware that appellant had sustained a serious head injury in a motorcycle accident in the early 1980s. Henderson did not think appellant was sufficiently mentally diminished to call appellant's competency to the trial court's attention.

Troy Locklear testified as a witness for appellant at the motion for new trial hearing. Locklear is an attorney practicing criminal law in Harris County and has been licensed since 1994. In Locklear's opinion, appellant's case could have been successfully tried and appellant did not receive effective assistance of counsel. He based his opinion on the "staleness" of offense, the lack of any medical records pertaining to the complainant, and the prior criminal history of the complainant's mother. However, Locklear admitted he had not reviewed the State's file and did not know whether it contained any medical records pertaining to the complainant. Locklear also criticized Henderson for not reviewing the videotaped interviews of the complainant and appellant, but conceded he had not reviewed either tape and did not know whether they contained any exculpatory evidence.  

Locklear also testified that he was not present during Henderson's conversations with appellant and did not know Henderson had attempted to persuade appellant to take the case to trial or accept the State's offer as to punishment. In Locklear's opinion, once appellant had denied committing the offense at the punishment hearing, it was Henderson's "obligation to move to withdraw the plea." However, on cross-examination, Locklear conceded that, unlike a motion to withdraw a plea at an earlier phase of trial, the decision to permit the withdrawal of a guilty plea at the punishment phase of trial is subject to the discretion of trial court.

Barbara Ann Reyes, appellant's sister-in-law, testified appellant was "slow" before he was involved in a motorcycle accident in approximately 1980. Following the accident, appellant was in a coma for three or four months. After the accident, in her opinion, appellant was "a lot slower than before" and, as an example, would become confused when told to get a soda out of a refrigerator door. Barbara testified she met with appellant and his attorney on the day of the punishment hearing and was given the impression that appellant would receive probation. She admitted she was not present for all the conversations between appellant and his counsel. She also testified appellant was married with children, had been employed earning as much as $14.50 per hour, had a driver's license, and paid his bills.

Ruben Reyes, appellant's brother, testified appellant, after failing two grades, got as far as the ninth grade in school before dropping out. Appellant had been placed in a "special ed" class because of a learning disability. It was his opinion appellant had sustained a massive head injury in his motorcycle accident, but he was not aware of any subsequent brain surgery. Ruben recalled appellant suffered some problems with his memory following the accident but had gradually recovered. He testified he did not think appellant's mental condition had recovered fully. He did not know whether his brother had undergone any treatment for memory loss or psychiatric problems. Ruben testified that, when he met with appellant and Henderson before appellant's punishment hearing, Henderson told him he was going to try to get probation for appellant.

Appellant testified he dropped out of school before completing the ninth grade, had a hard time learning, and could read "a little bit." He sustained a head injury and was in a coma following a motorcycle accident in 1980, but he did not know whether he suffered any brain damage from that accident. Appellant testified he told Henderson only that he had been involved in a motorcycle accident and was "real slow of reading and understanding."

Appellant testified he never spoke to Henderson at Henderson's office, never received any mail or copies of legal documents from Henderson, and never discussed legal strategy with Henderson on the telephone. Appellant could not remember whether he signed a contract with Henderson for his legal representation. Appellant discussed his case with Henderson at the courthouse. Appellant testified that, during his conversations with Henderson, they never discussed the facts of his case, the function of a jury, or the requirement of unanimity in a jury's "guilty" verdict. Appellant admitted Henderson asked him whether he wanted a jury trial. However, appellant testified he did not know that the decision to request a jury trial was ultimately his to make.

Appellant recalled that Henderson had explained the range of punishment for the offense was five to 99 years. Appellant further testified Henderson informed him of the State's offer of 20 years as an agreed punishment recommendation. Appellant refused the recommendation and instructed Henderson to attempt to get him placed on probation. Appellant identified his signature on a motion for probation filed on his behalf by Henderson. He could not remember whether Henderson explained the motion for probation to him.

Appellant testified Henderson never provided him with a copy of the indictment in his case. Henderson also never took appellant to view the videotaped interviews of the complainant and of appellant, despite appellant's requests to see them.

Appellant could not remember any "off the record" conversations with Henderson during the punishment hearing. Appellant denied ever discussing withdrawing his plea with Henderson. He also denied ever seeing a copy of the PSI report prepared in his case.

On cross-examination, appellant admitted he understood the allegations lodged against him and that "what [he] did was wrong." He also conceded that, if he had not understood something Henderson attempted to explain to him, he could have asked for an explanation. Appellant also testified he remembered the trial court admonished and instructed him concerning the charges against him at the plea proceeding.

Appellant agreed that his former counsel read the trial court's admonishments form to him before he signed it, but he recalled his attorney would "read them just halfway and then he w[ould] start saying 'blah, blah, blah this and that and sign it right here.'" Appellant initialed the sections of the admonishments form where Henderson instructed. However, appellant agreed that, because several sections of the admonishments form did not apply to him and were crossed out, his attorney could simply have been skipping over the non-applicable portions of that document when he said "blah, blah, blah."

Appellant conceded that, sometime after he was charged with this offense, he told the congregation at his church that he was willing to take responsibility for his actions and accept whatever punishment was ordered by the trial court. Appellant admitted that neither his attorney nor anyone else promised him that he would be placed on probation.

Appellant did not initially remember being interviewed by the investigator who prepared the PSI report, but he later admitted he met with someone who asked him questions about his job, background, previous criminal offenses, and marriage. During that interview, appellant recalled he admitted to touching the complainant's vagina but denied penetrating her anus.

Ineffective Assistance of Counsel

In his remaining issue on appeal, appellant argues he was denied effective assistance of counsel at both the guilt-innocence and punishment phases of trial, depriving him of his right to effective counsel under both the United States ⁽⁵⁾ and Texas ⁽⁶⁾   constitutions. Specifically, he contends Henderson was ineffective for failing to (1) ensure he understood the waivers, stipulations, admonishments, and the charges against him, (2) investigate his claim of innocence, (3) raise the issue of his competency to stand trial, and (4) "satisfy the professional norms of reasonableness."

We follow the standard for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2066-68 (1984) and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim App. 1986). The Strickland test requires an appellant to show (1) counsel's performance was deficient, and (2) the deficient performance prejudiced or harmed the appellant. Strickland, 466 U.S. at 688, 104 S. Ct. at 2068; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Counsel's performance is deficient if it fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 813. An appellant bears the burden of proving, by a preponderance of the evidence, that counsel was ineffective. Id. An appellant who has shown deficient performance must then show, beyond a reasonable probability, that, but for counsel's deficient performance, a different result would have occurred. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. An appellant must show both of the two prongs to prevail on a claim of ineffective assistance of counsel. Id. In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Id.  

Explanation of Waivers, Stipulations, Admonishments, and Charges

As noted above, appellant contends his former trial counsel did not adequately explain, or ensure that he understood, the charges against him and the waivers, stipulations, and admonishments read to him and signed by him.

Appellant testified Henderson never explained the function of a jury or the requirement of a unanimous verdict of guilty. Appellant also denied discussing legal strategy or the facts of his case with Henderson. However, appellant admitted Henderson asked if appellant wanted a jury trial, explained the applicable range of punishment, and communicated the State's 20-year punishment recommendation.

Appellant testified Henderson skipped over portions of the admonishments form when reading it to him, but admitted that could have been because several sections of the form did not apply to him and were crossed out. Appellant also conceded that he could have asked Henderson to explain anything he did not understand. Appellant further testified the trial court admonished him at the plea proceeding and informed him of the charges against him.

In contrast, Henderson testified he explained "each and every" document appellant signed, explained the admonishments "in detail," and fully advised appellant of the charges against him. Henderson described the charges as alleging appellant had placed his penis in the complainant's rear and "wiggled it around." Appellant did not deny the charges and indicated he did not want a jury trial. Appellant told Henderson "I should never have taken it out on [the complainant]" and "[She] didn't deserve that." Appellant also told Henderson the incident occurred "[B]ecause of the way my ex-wife treated me." Henderson testified he detected no indication appellant did not understand his legal rights or the effect of entering a guilty plea. Based on his conversations with appellant concerning the allegations, Henderson believed a factual basis existed for appellant's entry of a guilty plea. At no time during the plea proceedings did appellant deny the charges against him.

Henderson testified that, after explaining the full range of punishment, he urged appellant to either take the case to a jury trial or accept the State's agreed punishment recommendation offer, but appellant refused to do either. Henderson advised appellant it was unlikely he would receive probation for this type of offense and told appellant that, in his opinion, the trial court would probably assess a higher punishment.  

Based on the record presented, we conclude appellant has not met his burden to show his trial counsel's conduct fell below an objective standard of reasonableness on this issue. Thompson, 9 S.W.3d at 812.  

Investigation

Appellant argues his former trial counsel did not adequately investigate his "claim of innocence to the charge of penetration," did not review any medical reports, did not investigate the credibility of the complainant's mother, and did not view the videotaped interviews of the complainant or appellant.

At his punishment hearing, appellant denied penetrating the complainant's anus. However, Henderson testified that, when he explained to appellant the charges brought against him, appellant did not deny them and told Henderson, "I should never have taken it out on her," referring to the complainant, and "[the complainant] did not deserve that." Appellant also instructed Henderson he did not want a jury trial. Appellant admitted that, during his plea proceeding, he was admonished and informed of the charges against him by the trial court yet he did not deny the charges in entering his guilty plea.

Further, Henderson explained his strategy at the punishment hearing, in part, as follows:

[O]nce you plead guilty you can't get in front of the Judge and say, [']No, I am not guilty because I didn't do this.['] Because of the PSI you have to take responsibility and try to let the Court know that you were trying to correct your wrong, not going to deny it.

Henderson's expressed strategy was not to attempt to withdraw appellant's guilty plea, but to try to limit the amount of punishment assessed against appellant by the trial court.   

Concerning appellant's claim that Henderson should have reviewed the complainant's medical records, no evidence was presented that any medical records pertaining to the complainant were part of the State's file. With regard to Henderson's investigation of the prior criminal history of the complainant's mother and the videotaped interviews of the complainant and appellant, Henderson explained that, had he been preparing the case for trial, he would have acted differently. Appellant refused a jury trial and pleaded guilty. Henderson testified he felt it unnecessary to conduct an investigation of matters he considered irrelevant to the punishment hearing. Finally, Henderson testified he reviewed the State's entire file, including transcripts of the videotaped interviews of the complainant and appellant.

Based on the testimony and the record presented, we conclude appellant has not met his burden to show his trial counsel's conduct fell below an objective standard of reasonableness relating to Henderson's investigation of this case. See Thompson, 9 S.W.3d at 812.  

Competency

Appellant argues his former trial counsel should have raised the issue of his competency to stand trial.

Appellant testified he did not tell Henderson he had sustained a brain injury, only that he had been in a motorcycle accident and was "real slow of reading and understanding." Henderson testified he perceived appellant's reading difficulty, so he read and explained to appellant "each and every" document appellant signed. Appellant conceded that, if he did not understand something, he could have asked Henderson for an explanation.

Henderson testified that, in his opinion, appellant did not seem impaired, although he described appellant as "not [as] intelligent as most people." He saw no indication that appellant was suffering from any medical condition and did not think appellant was sufficiently mentally diminished to call it to the trial court's attention.  

Based on the testimony and the record presented, we conclude appellant has not met his burden to show his trial counsel's conduct fell below an objective standard of reasonableness relating to appellant's competency. See Thompson, 9 S.W.3d at 812.  

Trial Counsel's Performance

Appellant asserts that, in general, his former trial counsel's performance "fell below the professional norms for reasonableness" and caused the negative outcome of the trial court proceedings. Appellant bases this contention on the opinions expressed by Troy Locklear at the hearing on appellant's motions for new trial.

Locklear expressed the opinion that appellant's case could have been successfully tried because of the "staleness" of offense, the lack of any medical records pertaining to the complainant, and the prior criminal history of the complainant's mother. However, Locklear admitted he had not reviewed the State's file and did not know whether it contained any medical records pertaining to the complainant. Further, Locklear failed to take into account appellant's decisions to plead guilty and to forego a jury trial. Locklear also conceded he was not present during Henderson's conversations with appellant and was not aware Henderson had attempted to persuade appellant to take the case to trial or accept the State's punishment offer. Locklear criticized Henderson for not reviewing the videotaped interviews of the complainant and appellant but conceded he had not reviewed either tape and did not know whether they contained any exculpatory evidence.  

In Locklear's opinion, once appellant denied committing the offense at the punishment hearing, it was Henderson's "obligation to move to withdraw the plea." However, on cross-examination Locklear conceded that, unlike a motion to withdraw a plea at an earlier phase of trial, the decision to permit the withdrawal of a guilty plea at the punishment phase of trial is subject to the discretion of the trial court. See DeVary v. State, 615 S.W.2d 739, 740 (Tex. Crim. App. 1981); Donovan v. State, 17 S.W.3d 407, 410 (Tex. App.--Houston [1st Dist.] 2000), affirmed, 68 S.W.3d 633, 638 (Tex. Crim. App. 2002) (holding trial court has broad discretion to deny motion to withdraw plea when raised after case is taken under advisement).  

Based on the testimony and the record presented, we conclude appellant has not met his burden to show his trial counsel's performance fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812.  

Conclusion

We conclude the trial court did not err in denying appellant's motion for new trial, on the grounds of ineffective assistance of counsel, and we overrule appellant's remaining issue.

We affirm the judgment of the trial court.

   Terry Jennings

Justice

Panel consists of Justices Jennings, Radack, and Price. ⁽⁷⁾  

Do not publish. Tex. R. App. P. 47.

1.

This case was reinstated by our Order of November 15, 2001.

2.

The complainant, who was eight years old at the time of the assault, is the daughter of appellant's ex-wife.

3.

According to the probable cause affidavit, appellant was interviewed by Officer Brinson after Brinson took a statement from the complainant, and, in the interview appellant admitted to touching the complainant on her vagina and stated he "d[id] not remember putting his penis into the anus of the Complainant, but that it could have happened."

4.

Appellant waived the preparation of a record of the plea proceedings.

5.

U.S. Const. amend. VI.

6.

Tex. Const. art. I, § 10.

7.

The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.