                                    NUMBER 13-08-537-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


OWEN THOMAS HARRIS,                                                                          Appellant,

                                                     v.

THE STATE OF TEXAS,                                                                           Appellee.


                        On appeal from the 94th District Court
                              of Nueces County, Texas.


                               MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Benavides and Vela
                 Memorandum Opinion by Justice Vela

        Appellant, Owen Thomas Harris, was indicted for three counts of indecency with a

child by exposure,1 a third-degree felony. See TEX . PENAL CODE ANN . § 21.11(a)(2)(A), (d)


        1
         Except for the victim ’s nam e, each count was identical and alleged that appellant “on or about MAY
23, 2005, in Nueces County, Texas, did then and there with the intent to arouse and gratify the sexual desire
of the defendant, intentionally or knowingly expose the defendant’s GENITALS knowing that [victim ], a child
younger than 17 years and not the spouse of the defendant, was present. . . .” (em phasis in original).
(Vernon Supp. 2009). He pleaded guilty to all three counts without a recommended

punishment. After a punishment hearing, the trial court sentenced him to ten years’

imprisonment for each count, with the sentences for counts 1 and 2 running consecutively

and the sentence for count 3 running concurrently with counts 1 and 2. In three issues,

appellant complains that: (1) the evidence is insufficient to support his guilty plea; (2)

double jeopardy barred multiple prosecutions and punishments for the same offense; and

(3) he received ineffective assistance of trial counsel. We affirm.

                              I. SUFFICIENCY OF THE EVIDENCE

       In his first issue, appellant contends that the evidence is insufficient to support his

guilty plea because the State did not introduce the judicial confession and the written

stipulation as required by article 1.15 of the Texas Code of Criminal Procedure. See TEX .

CODE CRIM . PROC . ANN . art. 1.15 (Vernon 2005).

A. Applicable Law

       The United States Constitution does not require the State to present evidence in

support of a guilty plea in Texas courts. Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.

App. 2009). Article 1.15 of the code of criminal procedure constitutes “an additional

procedural safeguard required by the State of Texas but not by federal constitutional law.”

Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986). In Texas, “[n]o trial court

is authorized to render a conviction in a felony case, consistent with Article 1.15, based

upon a plea of guilty ‘without sufficient evidence to support the same.’” Menefee, 287

S.W.3d at 13; see TEX . CODE CRIM . PROC . ANN . art. 1.15.

       With respect to the form of evidence required by article 1.15, the court of criminal

appeals has explained:

       Evidence offered in support of a guilty plea may take many forms. The
                                          2
        statute expressly provides that the defendant may consent to the proffer of
        evidence in testimonial or documentary form, or to an oral or written
        stipulation of what the evidence against him would be, without necessarily
        admitting to its veracity or accuracy; and such a proffer or stipulation of
        evidence will suffice to support the guilty plea so long as it embraces every
        constituent element of the charged offense. Alternatively, our case law has
        recognized that the defendant may enter a sworn written statement, or may
        testify under oath in open court, specifically admitting his culpability or at
        least acknowledging generally that the allegations against him are in fact true
        and correct; and again, so long as such a judicial confession covers all of the
        elements of the charged offense, it will suffice to support the guilty plea.

Menefee, 287 S.W.3d at 13 (footnote omitted).

B. Analysis

        At the plea hearing, the State did not introduce either a written stipulation of

evidence or a written judicial confession. The State contends that appellant’s testimony

adduced at the punishment hearing independently served to provide evidentiary support

for his guilty plea.2 Taking into account all of appellant’s testimony at the punishment

        2
            First, the State calls our attention to the following colloquy between appellant and his defense
counsel:

        Counsel:           [D]o you understand why you’re hear today?

        Appellant:         Yes, sir.

        Counsel:           W hat do you think of the crim e that you just pled guilty to?

        Appellant:         I’m very asham ed.

                           ****

        Counsel:           I don’t believe they’re present today in the courtroom , but what would you
                           have to say to the parents of the victim s of the offense?

        Appellant:         I would tell them that I’m here today proceeding in the m anner that I am
                           because I want to do things differently. I want to take responsibility for—

        Counsel:           Okay.

        Appellant:         — -for things.

Next, the State points to the following colloquy between appellant and the prosecutor:

        Prosecutor:        How— would you consider this a secretive crim e?

                                                        3
hearing, appellant did not specifically admit his culpability or at least acknowledge generally

that the allegations against him are in fact true and correct. He also did not acknowledge,

independent of his guilty plea, that he committed all of the elements of the charged

offense. See Menefee, 287 S.W.3d at 13; see also TEX . PENAL CODE ANN . § 21.11(a)(2)(A)

(stating the elements of indecency with a child by exposure).3 Accordingly, appellant’s




        Appellant:        Secretive? No. I m ean, anybody can look up m y record. I m ean, it’s—

        Prosecutor:       No, but I m ean the type of crim e where you’re not a nam e. Obviously, your
                          nam e’s not on your chest. You just expose yourself and then take off. Is
                          that not secretive?

        Appellant:        I don’t see how. I’m going to forever wear a scarlet letter on m y chest now.

                          ****

        Prosecutor:       How would you feel if som ebody walked up and did that— what you did to
                          those three children in 2005, if you did that— som ebody did that to your
                          children, your 11-year-old girl, how would you feel?

                          ****

        Appellant:        W ell, I m yself am here pleading guilty, and if it happened to m y child, I would
                          call the police and I would have him arrested because I’m a hum an and I
                          m ake m istakes. So I would do— take the proper procedure and I would— I
                          would just do that. Because it’s not m y— it’s not m y position to judge.

                          ****

        Prosecutor:       I m ean, should a— should a nine-year-old girl and two six-year-old girls who
                          were the victim s— or two nine-year-olds and one six-year-old who were the
                          victim s of your crim e, should they be forced to look at a grown m an
                          m asturbating in an open car?

        Appellant:        W ell, I was there. It wasn’t— it wasn’t necessarily m y— I didn’t go there with
                          that in m ind or anything.

        Prosecutor:       You did it though. Should they have to look? Should they be exposed to
                          that; yes or no?

        Appellant:        No, they shouldn’t.

        3
          The crim e of indecency with a child by exposure consists of the following elem ents: 1) that the child
was younger than seventeen years and not m arried to the accused; 2) that a child was present; 3) that the
accused had the intent to arouse or gratify som eone’s sexual desire; 4) that the accused knew a child was
present; and 5) that the accused exposed his anus or genitals. See T EX . P EN AL C OD E A N N . § 21.11(a)(2)(A)
(Vernon Supp. 2009);Yanes v. State, 149 S.W .3d 708, 710 (Tex. App.–Austin 2004, pet. ref’d).
                                                        4
testimony does not support the guilty plea,4 and therefore, the conviction constituted trial

error. See Menefee, 287 S.W.3d at 14 (stating that “[a] conviction rendered without

sufficient evidence to support a guilty plea constitutes trial error.”).

3. Harm

        “‘[I]t is the responsibility of the reviewing court, once it concludes there was error,

to determine whether the error affected the judgment.’” Id. at 19 n.48 (quoting Ford v.

State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002)). Insufficient evidence to substantiate

appellant’s guilty plea under article 1.15 is subject to a harmless-error analysis under rule

44.2(b) of the Texas Rules of Appellate Procedure. Id. at 18.5 “Pursuant to Texas Rule

of Appellate Procedure 44.2(b), any non-constitutional error that does not affect appellant’s

substantial rights must be disregarded.” Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim.

App. 2005) (citing TEX . R. APP. P. 44.2(b)). “A substantial right is affected when the error

had a substantial and injurious effect or influence in determining the [fact finder’s] verdict.”

Id.; Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). “A criminal conviction

should not be overturned for non-constitutional error if the appellate court, after examining

the record as whole [sic], has fair assurance that the error did not influence the jury, or had

but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

        In Haley, the court of criminal appeals stated:

        In assessing the likelihood that the [fact finder’s] decision was adversely
        affected by the error, an appellate court should consider everything in the
        record, including any testimony or physical evidence admitted for the [fact


        4
         See Menefee v. State, 287 S.W .3d 9, 13 (Tex. Crim . App. 2009).

          5
            See also Emmert v. State, No. 07-08-0456-CR, 2009 W L 5823613, at *3 (Tex. App.–Am arillo Feb.
10, 2010, no pet. h.) (m em . op., not designated for publication) (stating that “[e]ven if the trial court erred in
failing to receive evidence sufficient to substantiate [Em m ert’s] plea under article 1.15, such error would be
subject to harm less error analysis under Rule 44.2(b) of the T exas R ules of Appellate Procedure.”) (citing
Menefee, 287 S.W .3d at 18).
                                                         5
       finder’s] consideration, the nature of the evidence supporting the verdict, the
       character of the alleged error and how it might be considered in connection
       with other evidence in the case. The reviewing court may also consider the
       jury instructions, the State’s theory and any defensive theories, closing
       arguments, voir dire, and whether the State emphasized the error.

Haley, 173 S.W.3d at 518-19.

       Here, appellant was charged with three counts of indecency with a child by

exposure. He pleaded guilty to the three counts in open court. In connection with entering

his plea, appellant signed a document entitled, “Defendant’s Statement Understanding

Admonishments,” upon which he placed his initials in the space that preceded the phrase,

“I enter my plea of guilty because I am in fact guilty of said offense.” Appellant is not

arguing that he is innocent of the three counts of indecency with a child by exposure or that

he was somehow tricked into pleading guilty to an offense that never occurred.

Furthermore, appellant is not arguing that independent evidence of his guilt does not exist

or that evidence does not support his punishment. But for the failure of the prosecutor to

introduce either a written stipulation of evidence or a written judicial confession, appellant

would not have before this Court the argument he now contends should result in an

acquittal. After examining the record as a whole, including appellant’s testimony at the

punishment hearing, we have a fair assurance that the lack of substantiating evidence did

not influence the trial court’s verdict, or had but a slight effect. Accordingly, the error did

not have a substantial and injurious effect or influence in determining the trial court’s

verdict, and therefore, did not affect appellant’s substantial rights. We hold that appellant

was not harmed by the error. Issue one is overruled.

                                    II. DOUBLE JEOPARDY

       In his second issue, appellant contends that the trial court erred in its conviction and

subsequent punishment for three separate counts of indecency with a child by exposure,
                                         6
all arising from the same criminal episode, when the offense is a non-victim-based crime

for which double jeopardy bars multiple prosecutions.

        The Double Jeopardy Clause of the Fifth Amendment6 “protects an accused against

a second prosecution for the same offense for which he has been previously acquitted or

previously convicted. It also protects him from being punished more than once for the

same offense in a single prosecution.” Gonzales v. State, No. PD-0337-09, 2010 WL

625056, at *4 (Tex. Crim. App. Feb. 24, 2010). “Sameness” in the latter context is a matter

for legislative intent. Id. “‘With respect to cumulative sentences imposed in a single trial,

the Double Jeopardy Clause does no more than prevent the sentencing court from

prescribing greater punishment than the legislature intended.” Id. (quoting Missouri v.

Hunter, 459 U.S. 359, 366 (1983)).

        “[T]he protection against double jeopardy is inapplicable where separate and distinct

offenses occur during the same transaction.” Spradling v. State, 773 S.W.2d 553, 556

(Tex. Crim. App. 1989); Sanchez v. State, 269 S.W.3d 169, 170 (Tex. App.–Amarillo 2008,

pet. ref’d). When “there are two victims, a separate victim for each offense, the acts,

though occurring at the same time and place, constitute separate offenses involving

separate issues of law, and separate prosecutions are not barred by former jeopardy.”

Spradling, 773 S.W.2d at 556. Appellant argues that although more than one child may

be present when an accused engages in the conduct that the indecency-with-a-child-by-

exposure statute prohibits, only one offense occurs because “neither the child’s awareness

of the perpetrator’s presence and/or the witnessing of the perpetrators [sic] anus or any

part of the person’s genitalia is a required element of the charge.” However, the Double


        6
         The Double Jeopardy Clause of the Fifth Am endm ent provides that no person shall “be subject for
the sam e offense to be twice put in jeopardy of life or lim b.” U.S. C ON ST . am end. V.
                                                    7
Jeopardy Clause “does not restrict a legislature from carving as many offenses as it

chooses from one transaction so long as each offense requires proof of a fact which the

other does not.” Phillips v. State, 787 S.W.2d 391, 394 (Tex. Crim. App. 1990) (internal

quotation marks omitted).

       A case that aids us in our analysis of appellant’s argument is Baggett v. State, 860

S.W.2d 207 (Tex. App.–Houston [1st Dist.] 1993, no pet.). In that case, Grady Baggett,

at the same time and place, approached four people—two children and two adults—and

exposed his genitals to all of them. Id. at 208. After he pleaded guilty to one count of

indecent exposure with respect to one of the adults, he was indicted for two counts of

indecency with a child by exposure—one count for each child. Id. Baggett filed a pre-trial

motion to dismiss the indictment on the ground that because he had already pleaded guilty

to one count of indecent exposure and, because double jeopardy barred prosecution for

both counts of indecency with a child by exposure. Id. The trial court denied the motion

to dismiss, and after pleading nolo contendere to both counts of indecency with a child by

exposure, Baggett appealed the two convictions for indecency with a child by exposure,

arguing that his conviction for one count of indecent exposure precluded subsequent

prosecution for two counts of indecency with a child by exposure. Id. In rejecting this

argument, the appellate court stated:

              The State would have been justified in indicting, prosecuting, and
       punishing [Baggett] for four acts of indecent exposure or two acts of indecent
       exposure and two acts of indecency with a child. The essence of this
       multiple prosecution is that each offense required proof of a fact that the
       others did not: the identity of the victim. Because each victim in the two
       convictions was different, each conviction was based on a separate offense.
       Therefore, [Baggett’s] right to be protected against multiple prosecutions and
       punishments for the same offense was not violated.

Id. at 209.

                                             8
       A person commits the offense of indecency with a child by exposure if the person,

with intent to arouse or gratify the sexual desire of any person, exposes the person’s anus

or any part of the person’s genitals, knowing that the child is present. See TEX . PENAL

CODE ANN . § 21.11(a)(2)(A) (emphasis added). Thus, the statute provides a distinct

offense against each child present by a single act of exposure. Proof of an identifiable

child as an additional element of the statute is required, and thus an offense against each

child present would constitute a separate crime. See Baggett, 860 S.W.2d at 209. Thus,

double jeopardy does not bar multiple punishments or prosecutions for the same act of

indecency with a child by exposure when three different children are involved. Issue two

is overruled.

                      III. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

       In his third issue, appellant contends that he was denied his right to effective

assistance of trial counsel. See U.S. CONST . amend. VI. Specifically, he states that he

“was denied effective assistance of counsel and was given erroneous advice from counsel

that may have induced or caused him to plea guilty instead of proceeding to trial.”

A. Standard of Review

       When a defendant enters his or her plea upon counsel’s advice and subsequently

challenges the voluntariness of the plea on the basis of ineffective assistance of counsel,

the voluntariness of the plea depends on “(1) whether counsel’s advice was within the

range of competence demanded of attorneys in criminal cases and if not, (2) whether 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 Morrow, 952 S.W.2d 530, 536 (Tex.

Crim. App. 1997) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)); Forcey v. State, 265

S.W.3d 921, 925 (Tex. App.–Austin 2008, no pet.). Under the first part of the test, a
                                             9
defendant must overcome a strong presumption that trial counsel was competent. Mitich

v. State, 47 S.W.3d 137, 141 (Tex. App.–Corpus Christi 2001, no pet.) (citing Thompson

v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Under the second part of the test,

we consider both the circumstances surrounding the plea and the gravity of the

misrepresentation as it pertained to the defendant’s plea determination. Id. (citing Ex parte

Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999)).

B. Analysis

1. Advice With Respect To Community Supervision

       During the punishment hearing, while appellant was on the witness stand, defense

counsel asked him, “Now, you understand because this is a 3G offense you’re not eligible

for probation from the judge?”. In response, appellant said, “I understand. I understand.”

During closing argument, defense counsel argued to the trial court, “I wish I could ask the

Court for probation on this case but I can’t. Not to say the Court would even consider it,

but I wish I could ask you for it.” Based upon these remarks, appellant contends that trial

counsel wrongly advised both him and the trial court that the crime of indecency with a

child by exposure was a “3G offense,” making him ineligible for community supervision.

       Article 42.12, Section 3(a) of the Texas Code of Criminal Procedure broadly

authorizes a trial judge, after a guilty plea, to place an eligible defendant on community

supervision whenever he or she deems it “in the best interest of justice, the public, and the

defendant” to do so. Ivey v. State, 277 S.W.3d 43, 45 (Tex. Crim. App. 2009); see TEX .

CODE CRIM . PROC . ANN . art. 42.12, § 3(a) (Vernon Supp. 2009). Article 42.12, section 3g

limits the offenses for which the trial court can order community supervision. Section 3g(a)

states that “[t]he provisions of Section 3 of this article do not apply: (1) to a defendant

adjudged guilty of an offense under: . . . (c) Section 21.11(a)(1), Penal Code (Indecency
                                             10
with a child); . . . .” Id. § 3g(a)(1)(c). Article 42.12, Section 3g(a)(1)(c) specifically refers

to indecency with a child by contact7; the statute does not refer to indecency with a child

by exposure. Thus, trial counsel incorrectly advised appellant and the trial court that

appellant was ineligible for community supervision. However, the record does not show

that even if trial counsel had correctly advised appellant concerning his eligibility for

community supervision, there is a reasonable probability that, but for counsel’s error,

appellant would not have pleaded guilty and would have insisted on going to trial. “Any

allegation of ineffectiveness must be firmly founded in the record and the record must

affirmatively demonstrate the alleged ineffectiveness.” McFarland v. State, 928 S.W.2d

482, 500 (Tex. Crim. App. 1996).

        With respect to trial counsel’s incorrect statement to the trial court concerning

appellant’s eligibility for community supervision, the granting of community supervision is

a privilege, not a right, and the decision to grant community supervision is wholly

discretionary. Speth v. State, 6 S.W.3d 530, 533 (Tex. Crim. App. 1999). The record does

not show that had trial counsel correctly stated to the trial court that appellant was eligible

for community supervising, the trial court would have placed him on community

supervision. Thus, appellant has failed to show that but for counsel’s error, the result of

the proceeding would have been different. See Smith v. State, 286 S.W.3d 333, 340 (Tex.

Crim. App. 2009) (stating that to establish the prejudice prong of Strickland,8 a defendant

“must show there is a reasonable probability that, but for his counsel’s unprofessional

errors, the result of the proceeding would have been different.”) (internal quotation marks

          7
            Section 21.11 of the penal code provides, in relevant part, that: “(a) A person com m its an offense
if, with a child younger than 17 years of age, whether the child is of the sam e or opposite sex, the person: (1)
engages in sexual contact with the child or causes the child to engage in sexual contact; . . . .” T EX . P ENAL
C OD E A N N . § 21.11(a)(1) (Vernon Supp. 2009).

        8
         See Strickland v. W ashington, 466 U.S. 668 (1984).
                                                      11
omitted). Because we are limited to the record before us, the record must support

appellant’s assertions. McFarland, 928 S.W.2d at 500.

2. Failure to Advise Appellant about Double Jeopardy

       Appellant contends that he received ineffective assistance of trial counsel because

“counsel failed to advise [him] that a double jeopardy claim may exist to bar the multiple

prosecutions for the one single crime.” However, the record does not demonstrate that

counsel failed to advise appellant about this aspect of double jeopardy. Because we are

limited to the record before us, the record must support appellant’s assertions. McFarland,

928 S.W.2d at 500.

3. Failure to Object or File Pre-trial Motion

       Appellant contends that he received ineffective assistance of trial counsel because

counsel 1) did not file a pre-trial motion regarding a possible double-jeopardy challenge,

or 2) did not orally object either before or during the plea hearing regarding a possible

double jeopardy challenge. “The constitutional right to counsel does not mean errorless

counsel whose competency or accuracy of representation is to be judged by hindsight.”

Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). We have already held that

there was no double jeopardy violation—so there was no error in failing to request a ruling

on double jeopardy or failing to advise the defendant of that possibility. Trial counsel may

have concluded that double jeopardy was not violated, or trial counsel may have decided

not to object or file a pre-trial motion for reasons of trial strategy. If counsel's reasons for

his conduct do not appear in the record and there is “at least the possibility” that the

conduct could have been grounded in legitimate trial strategy, we will defer to counsel's

decisions and deny relief on an ineffective-assistance claim on direct appeal. Garza v.

State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). We hold that appellant failed to rebut

                                              12
the presumption that counsel acted reasonably. See Scheanette v. State, 144 S.W.3d

503, 509 (Tex. Crim. App. 2004) (stating that “[a]ppellate review of defense counsel’s

representation is highly deferential and presumes that counsel’s actions fell within the wide

range of reasonable and professional assistance”). Issue three is overruled.

                                      IV. CONCLUSION

       We affirm the trial court’s judgment.




                                                    ROSE VELA
                                                    Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the 15th
day of April, 2010.




                                               13
