William David Dennie v. State ( 2011 )

NOS. 12-09-00373-CR
12-09-00374-CR
12-09-00375-CR
12-09-00376-CR
12-09-00377-CR
12-09-00378-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
WILLIAM DAVID DENNIE, § APPEALS FROM THE 8TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § RAINS COUNTY, TEXAS
MEMORANDUM OPINION
William David Dennie appeals his two convictions for aggravated sexual assault of a child,
two convictions for sexual assault of a child, and five convictions for indecency with a child.
After finding him guilty, the jury assessed punishment at eight ninety-nine year terms of
imprisonment and one twenty year term of imprisonment, and a total of $90,000.00 in fines. In
his sole issue, Appellant contends his trial attorney provided ineffective assistance of counsel.
We affirm.
BACKGROUND
In June 2001, Appellant was indicted for numerous offenses against two children. Rather
than face those charges, he chose to move out of state. He was eventually arrested and, in 2007,
he was convicted of bail jumping and failure to appear, for which he received a twenty year
sentence and a $10,000.00 fine. See Dennie v. State, No. 12-07-00307-CR, 2009 Tex. App.
LEXIS 1599 (Tex. App.–Tyler Mar. 4, 2009, no pet.) (mem. op., not designated for publication).
In October 2009, Appellant turned down a plea bargain offered by the district attorney and
pleaded not guilty to the two charges of aggravated sexual assault of a child, two charges of sexual
assault of a child, and five charges of indecency with a child that were currently pending against
him. The jury found him guilty and assessed the maximum penalty for each offense.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his sole issue, Appellant asserts his trial counsel failed to provide effective legal
assistance. He contends counsel was unable to assist him in assessing the plea offer because
counsel did not review any evidence before the expiration of the plea negotiations.
Applicable Law
An accused is denied effective assistance of counsel when he is given advice that prevents
him from making an informed and conscious choice regarding his right to a jury trial. Tallant v.
State, 866 S.W.2d 642, 643 (Tex. App.–Tyler 1993, pet. ref’d). To prove ineffective assistance of
counsel, appellant must show that (1) trial counsel’s representation fell below an objective
standard of reasonableness, based on prevailing professional norms, and (2) there is a reasonable
probability that, but for trial counsel’s deficient performance, the result of the proceeding would
have been different. Strickland v. Washington, 466 U.S. 668, 688-92, 104 S. Ct. 2052, 2064-67,
80 L. Ed. 2d 674 (1984).
There is a strong presumption that counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See Mallett v. State, 65 S.W.3d 59, 63
(Tex. Crim. App. 2001). To overcome the presumption of reasonable professional assistance, 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, 814
(Tex. Crim. App. 1999).
Discussion
More than eight years after the indictments were presented, a pretrial hearing was held in
preparation for the following week’s trial. In attendance were Appellant’s court appointed
attorney and an attorney who Appellant had just retained. At the hearing, the attorneys explained
to the court that the “files” on Appellant’s cases had been lost between the time the failure to
appear case was appealed and the current hearing. Appellant’s new attorney stated that he had
read the transcript from the failure to appear trial, which included “a good majority of the
testimony” that will be introduced in the upcoming trial. In addition, he had reviewed some of the
State’s photographic evidence.
Appellant took the stand and testified that he and his new attorney had discussed his cases
for two or three hours that morning, including the status of his representation and the plea offer that
the State had made. Appellant agreed that counsel had adequately explained both the risks of
switching counsel at that point in the proceedings and the pros and cons of the State’s plea offer.
He stated that he understood the pros and cons of the offer and had decided to reject the State’s
offer.
On cross examination, the prosecutor verified that Appellant understood that the State
offered him a twenty year sentence to run concurrently with his other sentences. Appellant said
he understood that, upon conviction, he could potentially receive a sentence that would be stacked
on his prior sentences. The prosecutor went on to explain that, in addition to the several indicted
offenses for which he was about to be tried, there were a large number of offenses on which
indictments had not yet been sought. He further explained that each of those could be tried and
the sentences stacked on each other, leading to a likelihood that Appellant would never get out of
prison. Appellant replied, “There’s a likelihood I never will anyway with the sentence I already
have. I have nothing to lose.” He then verified that he wanted to pass up the State’s offer that
had been relayed to him by his attorney.
Contrary to Appellant’s assertion, his trial counsel was familiar with the facts of the case.
Counsel had discussed it with Appellant, had read the reporter’s record from the failure to appear
case, in which the victims had testified, and had reviewed photographic evidence provided by the
State. Appellant has not presented any evidence of what his attorney told him or whether the
attorney recommended that Appellant take the offer or not. Further, Appellant has not argued or
shown that he would have taken the plea offer, thus leading to a different result, if counsel had
been in possession of the entire file. On the contrary, Appellant’s testimony indicates that he
understood his situation and was willing to forego the twenty year sentence on the chance that the
jury would not believe the victims’ testimony. On this record, we cannot conclude that Appellant
met his burden of proving that his decision to turn down the State’s plea offer was made as a result
of ineffective assistance of counsel. See Mitich v. State, 47 S.W.3d 137, 141 (Tex. App.–Corpus
Christi 2001, no pet.). We overrule Appellant’s sole issue.
DISPOSITION
We affirm the trial court’s judgments.
SAM GRIFFITH
Justice
Opinion delivered April 20, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)