BRYAN DANIEL FITTS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed June 10, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00584-CR
No. 05-08-00585-CR
No. 05-08-00586-CR
............................
BRYAN DANIEL FITTS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F08-00297-WQ, F06-35055-RQ, F06-35054-RQ
.............................................................
OPINION
Before Justices Richter, Lang-Miers, and Myers
Opinion By Justice Myers
        Bryan Daniel Fitts appeals his convictions for indecency with a child, possession of child pornography, and aggravated sexual assault of a child under fourteen years of age. Appellant pleaded guilty to the three offenses without agreements on punishment. The trial court found appellant guilty of indecency with a child and sentenced him to eleven years' imprisonment. The court found appellant guilty of possession of child pornography, sentenced him to ten years' imprisonment, and suspended imposition of the sentence and placed appellant on community supervision for ten years. On the charge of aggravated sexual assault, the court deferred adjudication of appellant's guilt, imposed a fine of $1500, and placed appellant on community supervision for ten years. On appeal, appellant contends the evidence was legally and factually insufficient to establish the corpus delicti for aggravated sexual assault, his guilty pleas were involuntary, and he lacked effective assistance of counsel at trial. We affirm the trial court's judgments.
SUFFICIENCY OF THE EVIDENCE
        In his first and second issues, appellant asserts the evidence was legally and factually insufficient to establish the corpus delicti for aggravated sexual assault because there was no evidence corroborating appellant's confession.
        State's exhibit 1 in each case, titled “Judicial Confession,” was admitted into evidence without objection at the guilty-plea hearing. The exhibits were signed by appellant, and the document was signed as “Approved” by appellant's trial counsel, the assistant district attorney, and the trial court. In each of the documents, appellant stated he consented “to the introduction of this Judicial Confession.” The exhibits state, “having waived my Federal and State constitutional right against self-incrimination, and after having been sworn, upon oath, I judicially confess to the following facts and agree and stipulate that these facts are true and correct and constitute the evidence in this case.” The exhibits then state “I did unlawfully,” and they set out the elements of the offense as alleged in the indictments. The exhibits also state, “I further judicially confess that I committed the offense with which I stand charged exactly as alleged in the indictment in this cause.”
        When a defendant knowingly, intelligently, and voluntarily pleads guilty or nolo contendere, the federal due process burden of proof on the State and the factual sufficiency requirements of the Texas Constitution do not apply. See McGill v. State, 200 S.W.3d 325, 331 (Tex. App.-Dallas 2006, no pet.); O'Brien v. State, 154 S.W.3d 908, 909 (Tex. App.-Dallas 2005, no pet.). Appellant told the trial court he was entering his guilty pleas freely, voluntarily, and without coercion. As discussed in issue 3, appellant has failed to show his pleas were not entered intelligently, knowingly, and voluntarily.
        Under article 1.15 of the code of criminal procedure, when a person pleads guilty before the trial court, “it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant . . . and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same.” Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon 2005). A sworn written statement of the defendant or the defendant's sworn testimony in court covering all the elements of the offense and in which the defendant specifically admits his culpability or acknowledges that the allegations against him are true and correct “will suffice to support the guilty plea.” Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009).
        Appellant argues that his confessions did not satisfy the corpus delicti requirement and that his confessions had to be corroborated by independent evidence before he could be convicted. See Salazar v. State, 86 S.W.3d 640, 644 (Tex. Crim. App. 2002); Franklin v. State, 140 Tex. Crim. 251, 252, 144 S.W.2d 581, 582 (1940). However, those cases hold that a defendant's extra-judicial confession does not establish the corpus delicti. Salazar, 86 S.W.3d at 644; Franklin, 140 Tex. Crim. at 252, 144 S.W.2d at 582. As the court of criminal appeals stated in Menefee, a judicial confession “will suffice to support the guilty plea.” Menefee, 287 S.W.3d at 13. In this case, appellant's guilty pleas were supported by his judicial confessions, which embraced all the elements of the offenses.
        We conclude the State introduced “evidence into the record showing the guilt of the defendant” as required by article 1.15 and adequately established the corpus delicti through appellant's judicial confessions. We overrule appellant's first and second issues.
VOLUNTARINESS OF APPELLANT'S PLEAS
        In his third issue, appellant contends his guilty pleas were involuntary because they were not entered knowingly due to the ineffective assistance of his trial counsel.
        Before a trial court accepts a plea of guilty or nolo contendere, article 26.13 requires that the court provide certain admonishments to the defendant. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2009). The court may make the admonishments either orally or in writing. Id. art. 26.13(d). If the court gives written admonishments, the court “must receive a statement signed by the defendant and the defendant's attorney that he understands the admonitions and is aware of the consequences of his plea.” Id. A record showing the trial court properly admonished the defendant is a prima facie showing that the defendant entered his plea knowingly and voluntarily. McGill v. State, 200 S.W.3d 325, 333 (Tex. App.-Dallas 2006, no pet.); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas 1997, pet. ref'd). The burden then shifts to the defendant to show he entered the plea without knowing its consequences and was harmed. McGill, 200 S.W.3d at 333; Kirk, 949 S.W.2d at 771.
        In this case, the trial court delivered the full admonishments in writing and repeated most of them orally at the plea hearing. Appellant told the court he understood all the admonishments and that he wanted to give up his right to a jury trial and enter a plea of guilty in each case. Nothing in the plea hearing indicates appellant's guilty pleas were not entered intelligently, knowingly, and voluntarily. Accordingly, the record contains a prima facie showing that appellant entered his pleas knowingly and voluntarily, and appellant has the burden of establishing he entered the pleas without knowing the consequences and that he was harmed.
        Appellant bases his argument that his pleas were involuntary on his motion for new trial supported by his affidavit. In his motion for new trial, appellant asserted his pleas were involuntary due to trial counsel's ineffective assistance in failing to explain appellant's rights to him so that he could understand them. The docket sheet indicates the trial court began a hearing on appellant's motion for new trial, heard evidence on the motion, and continued the hearing. The docket sheet then shows that the next day, appellant withdrew the motion for new trial.   See Footnote 1  By withdrawing the motion, appellant waived any right to rely on the motion. Accordingly, we conclude we may not consider appellant's motion for new trial and its supporting affidavit. See 71 C.J.S. Pleading § 589 (2000) (“A withdrawal of a pleading by the court's permission has the effect of removing it from any and all consideration, and the issues are then left in the same status as though the withdrawn pleading had never been filed.”). Because appellant withdrew his motion for new trial, appellant has no evidence to rebut the presumption that his pleas were voluntary. We overrule appellant's third issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
        In his fourth issue, appellant contends he lacked effective assistance of counsel. To prevail on a claim of ineffectiveness of counsel at trial, an appellant must establish: (1) trial counsel's representation fell below an objective standard of reasonableness in that counsel made errors so serious that counsel was not functioning as the reasonably effective counsel guaranteed by the state and federal constitutions; and (2) a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (1986). We indulge a strong presumption that defense counsel's conduct falls within the wide range of reasonable, professional assistance-that the challenged actions might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 770-71 (Tex. Crim. App. 1994). To defeat this presumption, “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, 812 (Tex. Crim. App. 1999). When the record contains no evidence of the reasoning behind trial counsel's actions, we cannot conclude that counsel's performance was deficient. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
        Appellant asserts his trial counsel was ineffective because he did not file motions to suppress appellant's oral statements and to suppress the fruits of the search of appellant's home and computer, did not object to other evidence, and asserted incorrect or untimely objections. The record contains no evidence of the reasoning for counsel's actions. In this situation, we will not speculate as to the reasons for counsel's actions, and we cannot conclude counsel's performance was deficient. See Rylander, 101 S.W.3d at 110-11.
        Appellant also argues the record shows counsel was ineffective because he failed to familiarize himself with the facts and conduct a reasonable investigation of the case. Appellant first asserts trial counsel never talked to the psychiatrist who had treated appellant for five years, and he cites to his affidavit in support of the motion for new trial. Because appellant withdrew his motion for new trial, this allegation is not firmly founded in the record.
        Appellant asserts the record shows trial counsel failed to review the recorded interviews with appellant because when the prosecutor began to question the detective about his interview with appellant, trial counsel stated, “Excuse me. It's my understanding that this has to be recorded. He's apparently going into an oral confession.” The prosecutor then offered the recording of the interview into evidence. This exchange shows trial counsel required the State to prove it had a recording of the interview before questioning the detective about the interview. These facts do not show ineffective representation by counsel.
        Appellant asserts counsel's lack of preparation was shown by counsel's statement when the State offered the recording of the detective's interview with appellant into evidence: “If it's as represented by the State I have no objections. If it's not, then I object.” This statement does not affirmatively demonstrate that counsel did not review the recording before trial. We decline to find this statement shows counsel was ineffective without him being provided an opportunity to explain the statement.
        Finally, appellant cites to this questioning by appellant's trial counsel of appellant's father as showing trial counsel was unprepared:
 
Q
 
The mother of the victim, name the church that you all met at. What church was that?
 
 
 
A
 
The Oaks Baptist Church.
 
 
 
Q
 
And where is that located?
 
 
 
A
 
It's on Interstate 20 in South Grand Prairie.
 
 
 
Q
 
You still attend there?
 
 
 
A
 
No, sir.
 
 
 
Q
 
Do you all attend church anymore?
 
 
 
A
 
No, sir.
 
Appellant does not explain how this line of questioning demonstrated that counsel was so unprepared as to render him ineffective.
        We conclude appellant has not established he lacked effective assistance of counsel at trial. We overrule appellant's fourth issue.
        We affirm the trial court's judgments.
                                                          
                                                          LANA MYERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080584F.U05
 
Footnote 1 The motion for new trial was filed by appellant's attorney on appeal-the same attorney who filed appellant's brief. However, that attorney not only failed to inform the Court that the motion for new trial was withdrawn, but he represented that the motion could be considered by this Court by citing to the motion and affidavit in support of his arguments on appeal.