                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00053-CR


LARRY LOUIS BRIM                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1383522D

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                         MEMORANDUM OPINION1

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                                 I. INTRODUCTION

      Appellant Larry Louis Brim pleaded guilty to one count of aggravated

sexual assault of a child under fourteen years of age and was sentenced to

twenty-five years’ confinement. In a single issue, Brim argues that his guilty plea

was not knowingly and voluntarily made as a result of ineffective assistance of


      1
       See Tex. R. App. P. 47.4.
counsel. Because Brim failed to overcome the strong presumption that his trial

counsel provided adequate assistance and because he failed to rebut the

record’s prima-facie showing of the voluntariness of his plea, we will affirm.

                     II. FACTUAL AND PROCEDURAL BACKGROUND

         In July 2014, K.K. (Kelly),2 the seventeen-year-old victim, made an outcry

that her stepfather, Brim, had sexually assaulted her over the course of many

years.       During the investigation of the offense, Kelly stated that Brim had

penetrated her sexual organ with his fingers when she was eight years old. Kelly

said that as she got older and had boyfriends, Brim touched her vaginal opening

on multiple occasions to check to see if she was still a virgin. Kelly told her

mother about the sexual abuse when she (Kelly) was admitted to Millwood

Hospital following a suicide attempt.

         When Kelly’s mother confronted Brim, he admitted that he had checked to

see if Kelly was a virgin on two different occasions, and then he threatened

suicide. Kelly’s mother reported this to the police.

         The police interviewed Brim, who admitted that he had rubbed lotion on

Kelly “from her head to her toes” but did not rub the lotion directly on her breasts

or on her “private part but rubbed all around it.” Brim said that it was possible he

had touched Kelly’s sexual organ while rubbing lotion on her. Brim also admitted


       To protect the victim’s identity, we refer to her by a pseudonym. See
         2

McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.]
1982).


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to “checking” Kelly to determine her virginity on two different occasions and

stated “it was possible it [had] happened more than two times[,] but he couldn’t

remember.” He said that he started the inspections when Kelly was fourteen or

fifteen years old. He “was unable to say that he did not touch the victim’s vagina

while checking to see if she was a virgin.”

      The State charged Brim with one count of continuous sexual abuse of a

young child and seven counts of aggravated sexual assault of a child under

fourteen years of age.     In exchange for the State’s waiver of one count of

continuous sexual abuse of a young child and six counts of aggravated sexual

assault of a child under fourteen years of age, Brim signed a judicial confession,

swearing to the truth of one count of aggravated sexual assault of a child under

fourteen years of age; signed a written waiver asserting that his plea was

“knowingly, freely, and voluntarily entered”; and entered an open plea of guilt to

the charge of aggravated sexual assault of a child under fourteen years of age.

Brim requested the preparation of a presentence investigation (PSI) report.

      At the sentencing hearing, the trial judge stated that he had reviewed the

PSI report.   No other evidence or testimony was presented.       Brim’s counsel

argued for leniency, stating that Brim was sixty-eight years old, that he suffered

from multiple health conditions, that he was remorseful for his actions, and that

he had letters from his biological daughter and from church members praising

him. Brim’s counsel requested a sentence of ten years’ imprisonment.          The

State argued that Kelly had lasting emotional and physical scars as a result of


                                         3
Brim’s conduct and that she had tried to commit suicide on multiple occasions.

The State further noted that the PSI report reflected that Brim lacked impulse

control and was attracted to postpubescent girls ages fourteen to sixteen years of

age. The State requested that the trial court sentence Brim to twenty-five years’

imprisonment. At the conclusion of the hearing, the trial court sentenced Brim to

twenty-five years’ confinement.

      Brim filed a motion for new trial that did not raise any ground regarding the

voluntariness of his plea or any claim that his trial counsel was ineffective. Brim

then perfected this appeal.

III. BRIM DID NOT OVERCOME THE STRONG PRESUMPTION THAT TRIAL COUNSEL’S
CONDUCT WAS EFFECTIVE, AND BRIM DID NOT REBUT THE RECORD’S PRIMA-FACIE
                 SHOWING OF THE VOLUNTARINESS OF HIS PLEA

      In his sole issue, Brim argues that his guilty plea was not knowingly and

voluntarily made as a result of ineffective assistance of counsel. Brim contends

that he was forced to plead guilty in lieu of going to trial with an unprepared

lawyer.

      A guilty plea may not be accepted by a court unless it appears to be free

and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13 (West Supp. 2016). In

considering the voluntariness of a guilty plea, the court should examine the

record as a whole. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App.

1998). When a defendant is properly admonished before entering his plea, a

prima-facie showing of voluntariness is established, which shifts the burden to

the   defendant   to   show   he   pleaded   guilty   without   understanding   the


                                        4
consequences of his plea. See id. This burden is a high one that is difficult to

meet in light of proper admonishments. See Starks v. State, 266 S.W.3d 605,

614 (Tex. App.—El Paso 2008, no pet.).

      When an appellant challenges the voluntariness of a plea, contending that

trial counsel was ineffective, the appellant must prove: (1) that counsel’s advice

was not within the range of competence demanded of attorneys in criminal cases

and if it is not, (2) that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to

trial. Ex parte Moody, 991 S.W.2d 856, 857–58 (Tex. Crim. App. 1999). The

court must first make a threshold determination that counsel erroneously and

incompetently advised the appellant before the second prong concerning

prejudice to the appellant is reached. Fimberg v. State, 922 S.W.2d 205, 208

(Tex. App.—Houston [1st Dist.] 1996, pet. ref’d). An appellant’s uncorroborated

testimony that he was misinformed by counsel is not sufficient to show that his

plea was involuntary. Id. Instead, an ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999).      Moreover, review of counsel’s representation is highly

deferential, and the reviewing court indulges a strong presumption that counsel’s

conduct was not deficient. Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.

2013).




                                         5
      Here, Brim executed written plea admonishments in conjunction with his

guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a). In the written plea

admonishment document, Brim agreed in writing that he was “aware of the

consequences of [his] plea” and that his plea was “knowingly, freely, and

voluntarily entered.” See generally id. art. 26.13(b). The clerk’s record, which is

the only record before us, reflects that the trial court properly admonished Brim in

writing and received a statement from Brim and his attorney that Brim understood

the admonitions and was aware of the consequences of his plea.              See id.

Accordingly, the record reflects a prima-facie showing that Brim’s guilty plea was

made voluntarily. See Scott v. State, 86 S.W.3d 374, 375–76 (Tex. App.—Fort

Worth 2002, no pet.) (relying on evidence in clerk’s record to address the

voluntariness of appellant’s plea); cf. McDougal v. State, 105 S.W.3d 119, 121

(Tex. App.—Fort Worth 2003, pet. ref’d) (holding “[a] criminal defendant may not

waive the making of a record and then, on appeal, rely on the absence of

evidence to support reversal of his conviction”).

      The burden then shifted to Brim to show he pleaded guilty without

understanding the consequences of his plea. On appeal, Brim does not argue

that he did not understand the consequences of his plea. He argues instead that

his “trial counsel provided assistance so ineffective that it rendered [his] guilty

plea involuntary.” Brim argues that his trial counsel’s advice—for Brim to enter

an open plea of guilt in the hope of receiving a lighter sentence or probation—

was not within the range of competence demanded of attorneys in criminal cases


                                         6
because it “was based not on sound trial strategy or a well-reasoned assessment

of the case but on his own (admitted) lack of confidence in his ability to try and

win [Brim’s] case.” Brim’s argument relies on an affidavit that he filed pro se over

a month after he was sentenced in which he stated that his trial counsel told him

that he had recently lost a case, that he did not think that he could help Brim, and

that the best deal would be for Brim to enter an open plea in the hope of

receiving a lighter sentence or probation.         The record, however, is silent

regarding any discussions that Brim’s trial counsel may have had with him about

his decision to enter an open plea of guilt, and thus the record contains no

evidence corroborating Brim’s allegations.3 See Fimberg, 922 S.W.2d at 208.

      In the absence of a fully developed record,4 we hold that Brim’s

uncorroborated after-the-fact allegations in his affidavit are not sufficient to rebut

the prima-facie showing of the voluntariness of his plea or to overcome the

      3
        Had Brim gone to trial, he would have faced one count of continuous
sexual abuse of a young child and seven counts of aggravated sexual assault of
a child under fourteen years of age, and he would have been subjected to the
risk of a minimum twenty-five year sentence without the possibility of parole. See
Tex. Penal Code Ann. § 21.02(h) (West Supp. 2016); Tex. Gov’t Code Ann.
§ 508.145(a) (West Supp. 2016). Instead, Brim entered an open plea of guilt to
one count of aggravated sexual assault of a child under fourteen years of age,
which carries a five-year minimum sentence with the possibility of parole. See
Tex. Penal Code Ann. § 12.32 (West 2011), § 22.021(a)(2)(B) (West Supp.
2016).
      4
       The main cases relied on by Brim are distinguishable because evidentiary
hearings were held, and the appellate records contained evidence of the advice
given by trial counsel. See Ex parte Dunham, 650 S.W.2d 825, 826–27 (Tex.
Crim. App. 1983); Murphy v. State, 663 S.W.2d 604, 605–10 (Tex. App.—
Houston [1st Dist.] 1983, no pet.).


                                          7
presumption that counsel’s conduct was not deficient.5 See Nava, 415 S.W.3d at

307; Martinez, 981 S.W.2d at 197; Gracia v. State, Nos. 14-15-00106-CR, 14-15-

00147-CR, 2016 WL 3965108, at *6 (Tex. App.—Houston [14th Dist.] July 21,

2016, pet. filed) (mem. op., not designated for publication) (holding appellant had

not demonstrated that trial counsel’s performance was deficient or that his guilty

plea was the result of erroneous advice); Alexander v. State, No. 14-03-00258-

CR, 2004 WL 253536, at *1–2 (Tex. App.—Houston [14th Dist.] Feb. 12, 2004,

no pet.) (mem. op., not designated for publication) (holding appellant failed to

substantiate claims of involuntariness of plea and ineffective assistance because

record contained written plea documents signed by appellant but contained no

evidence of counsel being unprepared, of how he had advised appellant with

regard to plea, or his reasons for doing so). Accordingly, we overrule Brim’s sole

issue.




         5
        Because we hold that Brim has failed to satisfy the first prong of the
Moody test, we need not address the second prong. See Fimberg, 922 S.W.2d
at 208.


                                        8
                                IV. CONCLUSION

      Having overruled Brim’s sole issue, we affirm the trial court’s judgment.



                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.


DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 17, 2016




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