GRENARD STEVENSON v. THE STATE OF TEXAS (2010)

MEMORANDUM OPINION

Opinion By Justice Francis

Grenard Stevenson appeals his two convictions for sexual assault of a child and one conviction for aggravated sexual assault of a child younger than fourteen years of age.   Before the court, appellant entered a plea of nolo contendere to one sexual assault of a child offense and the trial court assessed punishment at twenty years in prison and a $5000 fine.   Before a jury, he pleaded guilty to the second sexual assault of a child and to the aggravated sexual assault of a child younger than fourteen years of age offenses.   The jury assessed punishment at twenty years in prison and a $5000 fine and forty-five years in prison and $5000 fine, respectively.   In three issues, appellant claims his pleas of guilty and nolo contendere were involuntary because he received ineffective assistance of counsel at trial and that the trial court erred in denying his motion for new trial.   We affirm.

Appellant, a high school teacher, began sexually abusing his biological daughter when she was thirteen years old.   He described the abuse to her as “education” on how her body would change and mature, and as the discussions progressed, so did the level of abuse.   Appellant began touching the complainant's vagina and later began inserting his finger into her vagina.   When she turned fourteen, appellant repeatedly penetrated her vagina with his penis.   This became “a routine” to her.   At age fifteen, the complainant made an outcry to a friend after appellant performed oral sex on her for the first time.   Appellant admitted the abuse and gave a written statement to police.

When a defendant enters a plea and later challenges the voluntariness of that plea based on ineffective assistance of counsel, the voluntariness of his plea is also subject to the two-prong Strickland test:  (1) whether counsel's advice was within the range of competence demanded of attorneys in criminal cases;  and, if not, (2) whether there is a reasonable probability that, but for counsel's error, the defendant would not have entered a plea and would have insisted on going to trial.   Ex Parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App.1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)).   The essential requisite in attacking a plea of guilty on the ground of ineffective assistance of counsel is showing that the guilty plea was unknowingly and involuntarily entered.   Ex parte Adams, 707 S.W.2d 646, 648 (Tex.Crim.App.1986).   Trial counsel who fails to inform a defendant about the direct, punitive consequences of a guilty plea provides ineffective assistance.  Arreola v. State, 207 S.W.3d 387, 392 (Tex.App.-Houston [1st Dist.] 2006, no pet.).   However, a defendant's claim that he was misinformed by counsel, without more, is insufficient to render a plea involuntary.  Tabora v. State, 14 S.W.3d 332, 335 (Tex.App.-Houston [14th Dist.] 2000, no pet.);   Fimberg v. State, 922 S.W.2d 205, 208 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).

In his original and reply briefs, appellant claims his nolo contendere plea and guilty pleas were involuntary because trial counsel failed to (1) hire an expert witness to perform a psychological evaluation and risk assessment of appellant's behavior, (2) interview appellant's character witnesses prior to trial, (3) prepare appellant for trial, including how to defend himself against extraneous offenses, and (4) object to the admission of extraneous offenses.   Appellant does not explain how any of these purported instances of ineffective assistance of counsel impacted his decision to plead guilty or nolo contendere.   He does not argue he would not have pleaded guilty or nolo contendere but for trial counsel's purported errors.   Instead, appellant argues that without this deficient performance, the trial court and jury would have had more information and could have better determined whether he was a reasonable candidate for probation.   The fact that appellant may have received a higher punishment than he anticipated or hoped does not render his pleas involuntary or establish, without more, that counsel's representation was ineffective.   See Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.).

The allegations in appellant's motion for new trial mirror those in his appellate brief.   The record from the hearing on the motion for new trial shows appellant admitted his guilt, stated he was remorseful, and had intended to plead guilty “from day one.”   He did not want anybody to ask questions or harass his daughter, the complainant in all three cases.   Although appellant detailed what errors he believed trial counsel committed, he did not assert that but for these errors, he would not have pleaded guilty.   Nor did he claim he would have otherwise proceeded to trial without a plea.   Finally, appellant does not claim nor did he testify at the motion for new trial that trial counsel misled him or misinformed him about the consequences of his plea.

Appellant has not alleged, much less shown, he would have proceeded to trial and would not have entered pleas but for trial counsel's purported acts of ineffectiveness.   Because the record shows none of the alleged deficiencies influenced appellant's decision to enter pleas of guilty and nolo contendere, we conclude appellant has not met his burden of establishing ineffective assistance of counsel at trial.   The trial court did not abuse its discretion in denying appellant's motion for new trial on the same grounds.   See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App.2004).   We overrule appellant's three issues.

We affirm the trial court's judgments.

MOLLY FRANCIS JUSTICE