                                 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.



Vandyne v. State                                                                       Page 2
       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




Vandyne v. State                                                                      Page 6
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.


Vandyne v. State                                                                                 Page 7
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.




Vandyne v. State                                                                     Page 8
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]




Vandyne v. State                                                                  Page 13
