David Allen Vandyne v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00328-CR
DAVID ALLEN VANDYNE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 05-05403-CRF-272
MEMORANDUM OPINION
Appellant David Allen Vandyne appeals his conviction for two counts of
aggravated sexual assault of a child. We will affirm.
Background
Vandyne was charged by indictment with two counts of aggravated sexual
assault of a child. Vandyne pleaded nolo contendere to the first count and guilty to the
second count of the indictment. After a punishment hearing, the trial court found
Vandyne guilty on both counts and assessed his punishment at two consecutive life
sentences. Vandyne then filed a motion for new trial. Following an evidentiary
hearing, the trial court denied the motion; however, it vacated the “stacking” order,
ordering instead that Vandyne’s life sentences run concurrently. Asserting three points,
Vandyne appeals.
Sufficiency of the Evidence
We begin with Vandyne’s first and second points, in which he argues that (1) the
stipulation of evidence is legally insufficient to support the trial court’s finding of guilt
as to the first count of the indictment and (2) the evidence is legally insufficient to
support the trial court’s finding of guilt on either count of the indictment because, in
violation of article 1.15 of the Code of Criminal Procedure, his “waiver of jury trial and
consent to stipulate to evidence was not approved by the trial court in writing and filed
in the papers of each count.”
A defendant’s plea of guilty or nolo contendere, alone, is not sufficient to support a
judgment of conviction. See TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005).
Article 1.15 requires the State to introduce sufficient evidence showing the defendant’s
guilt. Id. The evidence may be stipulated by the defendant. Id. Article 1.15 provides:
The evidence may be stipulated if the defendant in such case consents in
writing, in open court, to waive the appearance, confrontation, and cross-
examination of witnesses, and further consents either to an oral
stipulation of the evidence and testimony or to the introduction of
testimony by affidavits, written statements of witnesses, and any other
documentary evidence in support of the judgment of the court.
Id. However, “[s]uch waiver and consent must be approved by the court in writing,
and be filed in the file of the papers of the cause.” Id.
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The requirement that the trial court approve a defendant’s waiver of the
appearance, confrontation, and cross-examination of witnesses and his consent to oral
stipulations of testimony or the introduction of testimony in written form is mandatory
and must be strictly followed. McClain v. State, 730 S.W.2d 739, 742 (Tex. Crim. App.
1987); Messer v. State, 729 S.W.2d 694, 698 (Tex. Crim. App. 1986) (op. on reh’g). Where
the trial court has failed to sign the waiver and consent to stipulate evidence, the waiver
and consent do not become a “writing of the court,” and it is error for the trial court to
admit the stipulation. McClain, 730 S.W.2d at 742; Messer, 729 S.W.2d at 700. The trial
court may not consider a stipulation as evidence where the defendant’s waiver and
consent to stipulate is not signed by the court as required by article 1.15. McClain, 730
S.W.2d at 742.
In the present case, the State acknowledges that Vandyne’s waiver and consent
to stipulate evidence were not signed by the trial judge even though spaces appeared
for the judge’s signature. Thus, the trial court erroneously admitted the stipulated
evidence, and its judgment could not be based on the stipulation. See McClain, 730
S.W.2d at 742; Messer, 729 S.W.2d at 700; Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App.—
Corpus Christi 2002, no pet.); Whitmire v. State, 33 S.W.3d 330, 335 (Tex. App.—Eastland
2000, no pet.). The State argues, however, that this error was harmless. We agree.
When the evidence admitted apart from erroneously admitted stipulations or
stipulated testimony is sufficient to support the conviction, any error in a trial court’s
failure to comply with article 1.15 is harmless. See Ybarra, 93 S.W.3d at 926-28; Whitmire,
33 S.W.3d at 335-36; Stewart v. State, 12 S.W.3d 146, 148-49 (Tex. App.—Houston [1st
Vandyne v. State Page 3
Dist.] 2000, no pet.). Under article 1.15, the evidence will be deemed sufficient if it
embraces each essential element of the offense charged and establishes the defendant’s
guilt. Chindaphone v. State, 241 S.W.3d 217, 219 (Tex. App.—Fort Worth 2007, pet. ref’d);
Breaux v. State, 16 S.W.3d 854, 857 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); see
Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996).
Count One
To obtain a conviction for aggravated sexual assault based on count one of the
indictment, the State was required to prove beyond a reasonable doubt that Vandyne
intentionally or knowingly caused the penetration of the anus of C.B., a child under the
age of fourteen, by inserting his penis into C.B.’s anus. See TEX. PEN. CODE ANN. §
22.021(a) (Vernon 2003). The State may prove penetration by circumstantial evidence.
Villalon v. State, 791 S.W.2d 130, 133 (Tex. Crim. App. 1990); Murphy v. State, 4 S.W.3d
926, 929 (Tex. App.—Waco 1999, pet. ref’d). The victim need not testify as to
penetration. Villalon, 791 S.W.2d at 133; Murphy, 4 S.W.3d at 929. Evidence of the
slightest penetration is sufficient to uphold a conviction, so long as it has been shown
beyond a reasonable doubt. Luna v. State, 515 S.W.2d 271, 273 (Tex. Crim. App. 1974);
Murphy, 4 S.W.3d at 929. In Vernon v. State, the Court of Criminal Appeals determined
what constitutes a “penetration” for purposes of aggravated sexual assault. That court
held, “[M]ere contact with the outside of an object does not amount to penetration of it.
But pushing aside and reaching beneath a natural fold of skin into an area of the body
not usually exposed to view, even in nakedness, is a significant intrusion beyond mere
Vandyne v. State Page 4
external contact.” 841 S.W.2d 407, 409 (Tex. Crim. App. 1992); see Murphy, 4 S.W.3d at
929.
Detective Leslie Malinak of the Bryan Police Department testified Vandyne told
her that he had molested C.B. Detective Malinak testified Vandyne told her he had
taken a bath with then ten-year-old C.B. and rubbed C.B.’s exposed penis. He also told
her he performed oral sex on C.B.; they slept in the bed together that same night; and
during the night he placed his penis between C.B.’s thighs and rubbed until he achieved
orgasm. C.B. testified that during a sleepover with Vandyne, Vandyne asked him to
pretend that he was paralyzed, after which Vandyne “pulled his private areas out” and
entered C.B.’s “butt crack.” C.B. also testified as follows: he and Vandyne had taken a
bath together; he believed he slept in the same bed as Vandyne that night; during the
night, he drank some orange juice prepared by Vandyne; when he woke up the next
morning, he felt pain and soreness on the inside of his rectum; the inside of his rectum
felt warm, and he felt like he could not control his bladder; and when he asked
Vandyne what had happened, Vandyne replied that he had just “played around” or
“messed around” with him a little bit.
In his first point, Vandyne argues that the evidence fails to show that he
penetrated C.B.’s anus.1 To support his position, Vandyne points to C.B.’s testimony
during the punishment phase of trial that he could not remember Vandyne ever
1 The greater part of Vandyne’s first point addresses the sufficiency of the stipulation. But as stated above,
the trial court erroneously admitted the stipulated evidence; therefore, it is irrelevant whether the
stipulation shows that Vandyne penetrated the victim’s anus. The issue we must determine is whether the
evidence apart from the erroneously admitted stipulations or stipulated testimony is sufficient to support
the conviction.
Vandyne v. State Page 5
penetrating his anus. However, C.B. did not need to directly testify as to the
penetration for the State to sufficiently prove the element. See Villalon, 791 S.W.2d at
133. In this case, the circumstantial evidence is sufficient to embrace the essential
element of penetration. See Proctor v. State, No. 12-06-00264-CR, 2007 WL 4328362, at *5-
7 (Tex. App.—Tyler Dec. 12, 2007, pet. ref’d) (not designated for publication) (holding
that the victim’s comment that appellant hurt her combined with the victim’s anus
being red was sufficient circumstantial evidence to establish penetration beyond a
reasonable doubt).
Furthermore, the evidence introduced during the punishment phase of trial as
detailed above is also sufficient to support the trial court’s finding of guilt on the other
essential elements of the offense. See Stewart, 12 S.W.3d at 148-49 (holding evidence
sufficient under article 1.15 based only on evidence introduced during punishment
phase of trial). Therefore, the State satisfied its burden under article 1.15 “to introduce
evidence into the record showing the guilt of the defendant,” see TEX. CODE CRIM. PROC.
ANN. art. 1.15, and the trial court’s failure to comply with article 1.15 is harmless as to
the first count of the indictment.
Count Two
Regarding the second count of the indictment, the State was required to show
that Vandyne intentionally or knowingly caused the sexual organ of C.B., a child under
the age of fourteen, to contact Vandyne’s mouth. See TEX. PEN. CODE ANN. § 22.021(a).
In this case, Vandyne signed a judicial confession in which he confessed to committing
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the crime as alleged in the second count of the indictment,2 and this confession was
received into evidence at the plea hearing. Thus, it was “evidence introduced into the
record,” and we may consider it in deciding whether the State met its evidentiary
burden under article 1.15. Ybarra, 93 S.W.3d at 927; Daw v. State, 17 S.W.3d 330, 333-34
(Tex. App.—Waco 2000, no pet.) (citing Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim.
App. 1996)).
A judicial confession, standing alone, is sufficient to sustain a conviction upon a
guilty plea and to satisfy article 1.15. Dinnery v. State, 592 S.W.2d 343, 353 (Tex. Crim.
App. 1979); Daw, 17 S.W.3d at 333-34. Furthermore, the judicial confession need not be
signed by the judge to be valid or admissible against a defendant in a guilty plea case.
Ybarra, 93 S.W.3d at 928 n.4. Thus, Vandyne’s judicial confession to the second count of
the indictment combined with the evidence introduced during the punishment phase of
trial is sufficient evidence to sustain his conviction on the second count. Therefore, the
State satisfied its burden under article 1.15 “to introduce evidence into the record
showing the guilt of the defendant,” see TEX. CODE CRIM. PROC. ANN. art. 1.15, and the
trial court’s failure to comply with article 1.15 is harmless as to the second count of the
indictment.
Having concluded that any error in the trial court’s failure to comply with article
1.15 is harmless because the evidence admitted apart from the erroneously admitted
2The judicial confession appears in a document entitled “Defendant’s Plea of Guilty, Waiver, Stipulation
and Judicial Confession” with regard to Count 2 of the indictment and reads:
I do further admit and judicially confess that I unlawfully committed the acts alleged in
the indictment/information in this cause at the time and place and in the manner alleged
and that such allegations are true and correct, and that I am in fact GUILTY of the offense
alleged.
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stipulations or stipulated testimony is sufficient to support the conviction, we overrule
Vandyne’s first and second points.
Denial of Motion for New Trial
In his third point, Vandyne contends that the trial court erred in denying his
motion for new trial because his right to effective assistance of counsel was violated.
We review a trial court’s ruling on a motion for new trial under an abuse of
discretion standard. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); Freeman
v. State, 167 S.W.3d 114, 116 (Tex. App.—Waco 2005, no pet.). When, as here, the
motion for new trial alleges ineffective assistance of counsel, we must determine
whether the trial court’s determination of the ineffective assistance claim and denial of
the motion for new trial were clearly wrong and outside the zone of reasonable
disagreement. Freeman, 167 S.W.3d at 116-17; see Bates v. State, 88 S.W.3d 724, 727-28
(Tex. App.—Tyler 2002, pet. ref’d).
To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.
Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535,
156 L. Ed. 2d 471 (2003) (citing Strickland, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80
L. Ed. 2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005)
(same). Under Strickland, we must determine: (1) whether counsel’s performance was
deficient, and if so, (2) whether the defense was prejudiced by counsel’s deficient
performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104
S.Ct. at 2064; Andrews, 159 S.W.3d at 101.
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Voluntariness of Pleas
Vandyne first argues that his right to effective assistance of counsel was violated
because his counsel erroneously informed him that his sentences could not be stacked.
Vandyne contends that he based his decision on what pleas to enter on this erroneous
legal advice, and his pleas were thus involuntary. We conclude that Vandyne has failed
to demonstrate prejudice.
The second prong of Strickland requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial, i.e., a trial whose result is
reliable. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. A defendant must show there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. See id. at 694, 104 S.Ct. at 2068.
At the hearing on his motion for new trial, Vandyne testified that on the morning
of his plea hearing, his trial counsel told him that his sentences on each count of the
indictment could not be stacked because both counts were being heard in the same
proceeding. Vandyne testified that, based on this advice, he pleaded nolo contendere to
the first count of the indictment and guilty to the second count. He further testified that
if he had known the two sentences could be stacked, he would have pleaded not guilty
and asserted his right to a jury trial.
Vandyne’s trial counsel testified, however, that Vandyne had been talking about
and considering pleading no contest and guilty for at least a year and a half before trial.
Vandyne’s counsel testified that if Vandyne had asked him the question about stacking
while he was in the middle of doing something else that morning, it was a possibility
Vandyne v. State Page 9
that he told Vandyne that his sentences could not be stacked, but he did not remember
talking about it that morning. Counsel testified that throughout his representation of
Vandyne, he knew that in a sexual assault case, sentences could be stacked even though
they were in the same proceeding. He testified that in cases where stacking might
apply, he usually explains the general law regarding stacking to his client. He also
testified that he did explain sentence stacking to Vandyne at an earlier time when the
State made an offer of forty-five years stacked on top of the apparent sentence he had
previously received in Kimble and Kerr County. We will assume without deciding that
counsel’s performance was deficient.
After the motion for new trial hearing, the trial court vacated the stacking order
and instead ordered that Vandyne’s life sentences run concurrently. Vandyne thus
received the concurrent sentences about which he claims his counsel advised him and
on which he based his decision to plead guilty and no contest. Accordingly, we
conclude that Vandyne did not show that he suffered any prejudice from what he
alleges was trial counsel’s ineffective assistance of counsel.
Adequacy of Investigation
Vandyne finally argues that he was denied his right to effective assistance of
counsel because his trial counsel failed to investigate and present mitigating
punishment evidence, specifically, the testimony of Dr. Roy Luepnitz. Vandyne
contends that this deficiency by his trial counsel had a reasonable probability of
affecting the punishment outcome of the case.
Vandyne v. State Page 10
At the motion for new trial hearing, Dr. Luepnitz testified that he is a
psychologist whose practice is focused primarily on evaluating and treating sex
offenders and that he had treated Vandyne after an attempted suicide in 2002. Dr.
Luepnitz testified that during this treatment, he learned that Vandyne had been
sexually abused as a young child. Dr. Luepnitz testified that he believed that
Vandyne’s interest in eight- to ten-year-old boys was a direct result of the sexual abuse
he had suffered. Dr. Luepnitz testified that although Vandyne did have a clinically
significant interest in eight- to ten-year-old boys, he actually had more interest in adult,
adolescent females, which would be a normal adult sex drive. Dr. Luepnitz also
testified that Vandyne’s deviant behavior could be corrected by using cognitive
behavioral techniques and psychotropic medications and, if those were unsuccessful,
chemical castration.
Vandyne specifically complains that his counsel was ineffective because he did
not know that according to Dr. Luepnitz, Vandyne actually had a normal sex drive and
was interested in women; that his childhood sexual abuse had caused the sexual
confusion that led to his interest in prepubescent boys; and that these behaviors could
be unlearned, giving Vandyne hope that someday he might be rehabilitated. But
Vandyne’s counsel testified that he had talked about Dr. Luepnitz with Vandyne and
that it was clear that Vandyne did not want to call him as a witness. Vandyne’s counsel
testified, “[Vandyne] was unhappy with Dr. Luepnitz for the amount of cooperation
that Dr. Luepnitz gave to the department right from the beginning.” Furthermore, at
the punishment hearing, Vandyne testified as follows:
Vandyne v. State Page 11
Q. [Vandyne’s counsel] Is there – is there anybody outside this as a
defense witness that you wanted me to call on
your behalf?
A. [Vandyne] There’s no one.
Moreover, Vandyne’s counsel testified that he had called and talked with Dr. Luepnitz
for about thirty minutes. Counsel testified that he was aware that Vandyne had been
sexually abused as a young child, but after speaking with Dr. Luepnitz, he was
concerned that if Dr. Luepnitz testified, “he was going to bring in more stuff that wasn’t
going to come in otherwise because he knew so much about David.” Vandyne’s
counsel stated, “[H]e knew so much of David’s history. The stuff that the State didn’t
know about, Dr. Luepnitz could have been cross-examined and stuff would have come
out . . . .”
[C]ounsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary. In
any ineffectiveness case, a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances, applying a
heavy measure of deference to counsel's judgments.
The reasonableness of counsel's actions may be determined or
substantially influenced by the defendant's own statements or actions.
Counsel's actions are usually based, quite properly, on informed strategic
choices made by the defendant and on information supplied by the
defendant. In particular, what investigation decisions are reasonable
depends critically on such information. For example, when the facts that
support a certain potential line of defense are generally known to counsel
because of what the defendant has said, the need for further investigation
may be considerably diminished or eliminated altogether. And when a
defendant has given counsel reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel's failure to
pursue those investigations may not later be challenged as unreasonable.
Vandyne v. State Page 12
Strickland, 466 U.S. at 690-691, 104 S.Ct. at 2066. The record shows that counsel
investigated using Dr. Luepnitz as a witness. Vandyne did not want Dr. Luepnitz to
testify, and counsel strategically decided not to call Dr. Luepnitz. Counsel’s
performance cannot be held to be deficient because it was based on sound strategy, and
our review of defense counsel’s representation is highly deferential. See Davis v. State,
276 S.W.3d 491, 502 (Tex. App.—Waco 2008, pet. filed). The trial court did not abuse its
discretion in denying his motion for new trial. We overrule Vandyne’s third point.
Conclusion
Having overruled all of Vandyne’s points, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed May 27, 2009
Do not publish
[CRPM]
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