Silas Wirth v. State ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00775-CR
Silas WIRTH,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR9447
Honorable Sid L. Harle, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: September 26, 2018
AFFIRMED
Silas Wirth appeals his conviction for aggravated sexual assault of a child. In one issue,
Wirth argues the trial court committed reversible error by denying his motion for new trial based
upon ineffective assistance of counsel. We affirm.
BACKGROUND
Wirth was charged with continuous sexual abuse of a child (Count I); aggravated sexual
assault of a child (Count II); and sexual contact with a child (Count III). He entered into a plea
bargain in which the State agreed to drop Counts I and III and proceed only on Count II, the
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aggravated sexual assault of a child charge. The plea bargain included an agreement that
punishment would be assessed at twenty-five years in prison and there would be no application for
community supervision or deferred adjudication. Wirth signed a “Waiver, Consent to Stipulation
of Testimony and Stipulations” and a “Court’s Admonishment and Defendant’s Waivers and
Affidavit of Admonitions.” Wirth entered a plea of “no contest” and the trial court signed a
judgment assessing a twenty-five-year prison sentence.
Thereafter, Wirth’s newly-appointed appellate attorney filed a motion for new trial. The
trial court then held a hearing on the motion, denied the motion, and granted Wirth permission to
appeal. In his appeal, Wirth contends the trial court erred in denying his motion for new trial based
upon ineffective assistance of counsel at his plea hearing.
INEFFECTIVE ASSISTANCE OF COUNSEL
We measure a claim of ineffective assistance of counsel against the two-prong test
established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). See
Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex. Crim. App. 1986) (applying Strickland test). A
person claiming that counsel was ineffective must prove, by a preponderance of the evidence, that
(1) counsel’s performance was deficient, falling below an objective standard of reasonableness;
and (2) the deficient performance prejudiced the defense such that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012). Further, we indulge in a strong
presumption that counsel’s conduct fell within the wide range of reasonable assistance and that the
challenged action might be considered sound trial strategy. Id. “The mere fact that another attorney
might have pursued a different tactic at trial does not suffice to prove a claim of ineffective
assistance of counsel.” Id. “The Strickland test is judged by the ‘totality of the representation,’ not
by counsel’s isolated acts or omissions, and the test is applied from the viewpoint of an attorney
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at the time he acted, not through 20/20 hindsight.” Id. Thus, any allegation of ineffectiveness must
be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
The accused is entitled to effective assistance of counsel during plea negotiations. Lafler
v. Cooper, 566 U.S. 156, 162 (2012). Further, the Strickland test applies where there is a challenge
to a guilty plea based on ineffective assistance of counsel. Id. at 162-63. In other words, the
defendant must show counsel’s representation fell below an objective standard of reasonableness.
Id. at 163. And, the defendant must show the outcome of the plea process would have been
different with competent advice. Id. In making such an evaluation, the defendant must show there
is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and
instead would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985).
We review a trial court’s denial of a motion for new trial under an abuse of discretion
standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). We determine whether
the trial court’s decision was arbitrary or unreasonable and do not substitute our judgment for that
of the trial court. Id. At the motion for new trial hearing, the judge determines the credibility of
the witnesses and has the discretion to disbelieve even uncontradicted testimony. Id.
DISCUSSION
At the hearing in which Wirth pled “no contest,” the State announced it was proceeding
only on the aggravated sexual assault of a child charge, and the following exchange occurred:
THE COURT: You could have a jury trial, but I understand you’ve
agreed to waive that and proceed before me; correct?
THE DEFENDANT: Yes, sir.
THE COURT: Yes?
THE DEFENDANT: Yes, sir.
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THE COURT: You know the offense that is remaining is a first
degree felony, a minimum 5 years in the Texas
Department of Corrections to a maximum 99 years
or life confinement. You’re aware of that?
THE DEFENDANT: Yes.
THE COURT: And there’s an optional $10,000 fine.
THE DEFENDANT: Yes.
THE COURT: Do we have a plea agreement?
THE PROSECUTOR: Yes, Judge, it’s punishment to be assessed at 25
years, there’s not an application for community
supervision or deferred adjudication, Chapter 62
compliance, and no contact with [the victim].
THE COURT: You understand the plea agreement?
THE DEFENDANT: Yes.
THE COURT: You know I’m not bound by it; if I follow it, there is
no appeal?
THE DEFENDANT: Yes.
THE COURT: You know because of the nature of that offense you
have to serve 50 percent or one-half calendar time
day-for-day, exclusive of any good time credit,
before becoming eligible for parole?
THE DEFENDANT: Yes, sir.
THE COURT: And you’re aware of your duties and responsibilities
under Chapter 62, sex offender registration; correct?
THE DEFENDANT: Yes.
THE COURT: Do you believe he’s competent?
DEFENSE COUNSEL: I believe he is, Your Honor.
THE COURT: To the offense how would you like to plead, guilty,
not guilty, no contest?
THE DEFENDANT: No contest.
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THE COURT: On the no contest plea, you know I can find you
guilty if the evidence is sufficient?
THE DEFENDANT: Yes, sir.
THE COURT: No one has forced you in any manner?
THE DEFENDANT: No, sir.
The trial court then announced it would accept the plea agreement and assessed punishment at
twenty-five-years in prison.
Subsequently, at the motion for new trial hearing, Wirth’s trial counsel testified about his
representation of Wirth before and during the plea hearing. Prior to the plea hearing, trial counsel
met with Wirth three times at the Bexar County jail. Wirth told trial counsel he did not want to go
to trial, and he wanted to enter into a plea bargain because he did not want his daughter to have to
testify. Trial counsel had reviewed the initial police report and outcry statements prior to the plea
hearing, but he did not review the district attorney’s file until the day of the plea hearing. On the
day of the plea hearing, the State first offered forty years, but then reduced it to twenty-five years
if the offer was accepted that day. Trial counsel testified he informed Wirth of the offers and told
him his options were to go to trial or accept the plea bargain. Trial counsel also testified he
reviewed the contents of the offense reports with Wirth and went over the plea papers with Wirth,
and Wirth had a chance to review the plea papers before signing them. Further, trial counsel further
stated he went through the questions the judge would ask Wirth when he entered his plea. Trial
counsel testified he proceeded the way he did in representing Wirth because that’s what Wirth
wanted him to do. According to trial counsel, Wirth never at any point indicated he wanted a jury
trial.
Wirth also testified at the motion for new trial hearing. According to Wirth, the first plea
offer was sixty years to life, the second offer was forty years, and the third offer was twenty-five
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years. Wirth testified he told trial counsel he was willing to go to trial. Although Wirth would
rather his daughter not have to testify, he was willing to have a jury trial if necessary. According
to Wirth, the first time he saw the offense reports and outcry statements was when he saw the plea
bargain paperwork, and trial counsel told him he had to sign the plea papers before reviewing the
offense reports and statements. Wirth testified he signed the plea papers without reading them
because trial counsel had told him to do so. Wirth stated he did not know he could read them first.
Further, Wirth testified trial counsel did not explain the plea papers to him. However, Wirth said
he did read the reports and statements prior to going before the judge. Wirth further testified he
told trial counsel, “It was all a lie,” but trial counsel said it did not matter because he had already
signed the plea papers. Wirth said he would not have signed the plea papers if he had read the
offense reports and statements first. According to Wirth, he answered all the judge’s questions as
trial counsel had told him to do. Wirth also stated his trial counsel lied when he testified that Wirth
had never said he wanted to go to trial.
On appeal, Wirth argues that trial counsel rendered ineffective assistance while
representing him at the plea hearing. Wirth’s specific complaints of deficient performance under
Strickland’s first prong are focused on Wirth’s testimony that he had told trial counsel he wanted
to go to trial, that trial counsel had never explained any of the paperwork to him, and that trial
counsel had advised Wirth to sign the plea papers without reading anything. As to Strickland’s
second prong, that Wirth was prejudiced by counsel’s deficient performance, Wirth points to his
own testimony that if he had read the paperwork before agreeing to the plea bargain, he would not
have agreed to sign the plea agreement. And, had he not agreed, Wirth argues there would have
been a trial or dismissal.
At the motion for new trial hearing, trial counsel’s testimony directly conflicted with
Wirth’s in all pertinent respects. Trial counsel testified Wirth consistently told him he did not want
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to go to trial, but rather wanted to enter into a plea bargain to spare his daughter from having to
testify. Wirth, on the other hand, testified that he had told trial counsel he wanted to go to trial.
Although trial counsel testified he had reviewed what was in the offense reports with Wirth, went
over the plea papers with Wirth, and gave Wirth a chance to review the plea papers before signing,
Wirth testified that trial counsel did not explain anything to him and required his signature on the
plea papers before he had an opportunity to read anything.
The trial court, however, was the sole judge of the credibility and weight to be given to the
testimony. See Colyer, 428 S.W.3d at 122. The trial court apparently credited trial counsel’s
testimony and disbelieved Wirth’s testimony. As the reviewing court, we cannot substitute our
judgment for that of the trial court. See id. And, because Wirth has not shown trial counsel’s
representation was deficient, we need not address the prejudice prong of Strickland. See
Thompson, 9 S.W.3d at 812 (stating that assuming appellant demonstrates deficient assistance, it
is then necessary to prove prejudice). We affirm the trial court’s judgment.
Karen Angelini, Justice
Do not publish
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