### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00106- CR

Mohsinu ddi n Sai yed, Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 755 71, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Mohsinuddin Saiy ed appeals hi s judgme nt of conviction on his open plea of guilty to the second- deg ree felony offe nse of sexual assault of a child under sevente en y ear s old. See Tex. Penal Code § 22.011. After a hear ing, the trial court assessed punishment at seve nteen y ear s’ imprisonment. The trial cour t cer tified Saiy ed’s r ight of

appea l. Saiy ed’s court-a

ppointed attorney has filed a motion to withdraw supported by a brief addre ssing this appea l and concluding that this appea l is frivolous an d without merit. The brief meets the requi reme nts of Anders v. Calif ornia , 386 U.S. 738, 744 (1967), by prese nting a profe ssional evaluation of the rec ord in this cause demonstrating why there are no arguable appellate g rounds to be advanc ed. See id. ; see also Penson v. Ohio , 488 U.S. 75, 80 (1988); High v. Stat e , 573 S.W .2d 807, 811-13 (Tex. Crim. App. 1978); Currie v. State , 516 S.W .2d 684, 684 (Tex. Crim. App. 1974); Jack

s o n v. State , 485 S.W .2d 553, 553 (Tex. Crim. App. 1972); Gainous v. State ,436 S.W .2d 137, 138 (Tex. Crim. App. 1969). Counsel se nt a copy of the brief to Saiyed, advised

him of his rig ht to examine the appellate rec ord in this cause and to file a pro se brief, and supplied Saiy ed with a form motion for pro se a cce ss to the appellate r ecor d. See A nders , 386 U.S. at 744; Kelly v. State , 436 S.W .3d 313, 319-20 (Tex. Crim. App. 2014). After reque sting and rec eiving an extension of time, Saiy ed filed a pro se brief raising nine issues t h at we will addre ss afte r briefly summarizing the testimony from Saiy ed’s punishment hea ring
. Testim ony f

rom Saiyed’s pu nish m ent-hear ing Following Saiy ed’s plea of g uilty , the district court conducte d a punishment hear ing and hear d testimony from Saiy ed, his victim T.M. (who was his stepdaug hter), and his ex-wife M.S. (T.M.’s mother). T.M. testified that when she was fourtee n, Saiy ed first touched her “boobs.” She said that she told Saiy ed doing that “wa s not rig ht,” and she said that if her mother saw him do that, her mother would say something to him. T.M. rec alled that over time, Saiy ed’s assaults prog resse d to other sex ual activity , including o ral sex and int erc ourse. T.M. testified t hat s he was too scar ed and ashame d to te ll he r mother initially
. But T.M. stated that afte r routine blood te sts f or a kidney infec tion reve aled that she was pregnant, she told her mother what had been g oing on. T.M. testified that Saiy ed is the fathe r of the baby
. T.M. also testified about difficulties in Saiy ed’s past relationship wit h her mother , including his phy sical violence towards he r mother.

M.S. testified, corr oborating h er d au g hter’s testimony about the discovery of her pregnancy and listi ng a number of the baby ’s health issues that aros e fr o m h i s prema ture birth at thirty -one wee ks. M.S. stated that Saiy ed made regular monthly pay ments to help support the baby
. She also stated that Saiy ed provided her with a car and money for car repa ir and g as, but she stated

2that the car was “nondrive able” and “nee ded work.” M.S. testified that Saiy ed had been phy sically

abusive to her in the past and that domestic-violence classes and counseling seeme d to help him, althou gh h e l at er beca

me verba lly abusive towards her. M.S. stated that she had difficulty
reme mbering the y ear that she marrie d S ai y ed beca use the “lef

t side of my brain is not fully develope d so I ’m not g ood with dates but Ido reme mber e vents.”

Saiy ed testi fied about his remorse for his actions wit h T.M. and re iterate d his g uilt for those actions. He acknow ledg ed that he spoke to a Har ker Heig hts police detec tive, waived his rig hts, a nd “g ave evidenc e ag ainst himself” beca use he committed the offe nse of “having sex with
a minor.” Saiy ed also testified in r esponse to se vera l que stions fr om the district-court judge about his g uilt for the offe nse and his income from all source s that would be available for the baby ’s car e and support. Issues in Saiyed’s pro se brief are frivolou s

Saiy ed’s brief acknow ledg es his commission of the offe nse by noting in his sta tement of fac ts that “[o] n Marc h 22, 2016, victim [T.M.] , had [a] sexual relationship with Appellant at the time she was 16 y ear s old, Appellant [was] cha rg ed with sexual assault of a minor.” Saiy ed then contends in nine issues that he rec eived ineffe ctive assistance of counsel, that M.S. and T.M. testified untruthfully , that T.M. eng ag ed in promiscuous activities, and that M.S. “conse nted” to her daug hter’s a ssault. All of these issues ar e fr ivolous.

In hi s fi rst five issues, Saiy ed contends that his counsel provided ineffe ctive assistance by

misleading him about t he sentence that he would re ceive , instructing him not to talk unless asked, telling him there was a fiftee n-year deal and then an eig ht-y ear deal but later denying

3there was any deal, and discussing “shock probation” with him even though he was ineligible for it,

wasting the t ime for filing a motion for “retria l.” Saiy ed cites one case in support of t hese issues, Adek anbi v. State , No. 05-02-00521-CR, 2002 Tex. App. L EXI S 8512 (Tex. App.—Dallas Dec . 3, 2002, no pet.) (not de signated for publication).

How ev er, as Adek

anbi states, to preva il on an ineffe ctive-a ssistance claim, a defe ndant must s h o w t h at his counsel’s repr esentation was defic ient and that the defic ient perf ormanc e prejudice d the defe nse. Id
. at *11 (citing Strickland v. W ashington , 466 U.S. 668, 687 (1984))
. Claims of ineffe ctive assistance of counsel must be supported by the rec ord, and wher e the
rec ord is silent reg arding counsel’s strateg y or tactics, we will not speculate as to the basis for
co u n s el ’s d ecision. Id
. at *12 (citing Jack son v. State , 877 S.W .2d 768, 771 (Tex. Crim. Ap p . 1994)). Fa ilure to make the require d showing of either defic ient perf ormanc e or sufficie nt prejudice defe ats the ineffe ctiveness claim. Id
. (citing Thompson v. State , 9 S.W .3d 808, 813 (Tex. Crim. App. 1999)). Her e, we conclude that Saiy ed’s various claims of ineffe ctive assistance of counsel lack merit beca

use the rec ord is silent as to his counsel’s strateg y or tactics and thus, Saiy ed has not met his burden of showing defic ient perf ormanc e and prejudice
. See id
. at *17-18; see also Strickland , 466 U.S. at 687.

In his six th issue, Saiy ed contends that M.S. testified untruthfully about Saiy ed’s domestic abuse of her, about her disabilit y , an d about Saiy ed providing her with a car that was “unre paira

ble.” In his ninth issue, Saiy ed contends that T.M. was afr aid of her mother and testified untruthfully that her mother told Saiy ed to “stop playing with [T.M.’s] boobs.” These issues prese nt challeng es to the cr edibility of wit nesses. We defe r t o the deter minations of the fac tfinder—he re,

4the district court—a s to the cre dibilit y of witnesses and the weig ht to be g iven to their testimony , and

we do not substitut e our judgme nt on these matters. See Nowli n v. State , 473 S.W .3d 312, 317 (Tex. Crim. App. 2015); see also Quintana v. State , No. 07-04-0086- CR, 2005 Tex . App. L EXI S 7243, at *7-8 (Tex. App.—Amar illo Aug
. 31, 2005, no pet.) (mem. op., not desig nated for pub l i ca t i o n) (re jecting pro se appellant’ s challeng es t o cre dibilit y of wit nesses at punishment hear ing) ; Grothe

v. St ate , No. B14- 91-01088-CR, 1992 Tex. App. L EXI S 1734, at *5 (Tex. App.—Houston [14t h Dist.] J une 25, 1992, no writ) (not desig nated for publ ication) (“As t he sol e finder of fa ct at the puni shment hear ing, it is within the proper exercise of the t rial court’s discretion to deter mine the cr edibility

of the witnesse s and the we ight to be g iven the evide nce.” ). In his seventh issue, Saiy ed conte nds that M.S. “wa s awa re [of] and consent[ed] to [t he] sexual assault Appellant and victim had on 22nd Marc h 2016.” But Sa i y ed points to no evidenc e in the rec ord, and provides no argument, supporting this contention. See Tex. R. App. P. 38.1(i) (re quiring brief to contain clea r and concise argument for contentions made with appropr iate citations to authorities and to rec ord).

In his e ighth issue, Saiy ed contends that T.M. eng ag ed in “promiscuous activities.” Saiy ed does not explain this statement but cites to three case s addre ssing the former statutory defe nse of the victim’s promiscuity
. See May v. State , 919 S.W .2d 422 (Tex. Crim. App. 1996); Hernande z
v. State , 861 S.W .2d 908 (Tex. Crim. App
. 1 993); Rankin v. State , 821 S.W .2d 230 (Tex. App.—Houston [14t h Dist.] 1991, no pet.); see For mer Tex. Penal Code § 22.011(d)( 1) (conta ining “promiscuity defe nse”)
. Howeve r, the sta t u t o ry “promiscuity defe nse” was repe aled more than twenty -two y ear s ag o and does not absolve Saiy ed of his cr iminal responsibilit y for the of fense of

5sexual assault of a child under sevente en, to which he pleade d g uilty
. See May , 919 S.W .2d at 423

n. 1 (noting that “promiscuity defe nse” in Texas Penal Code § 22.011(d)( 1) was repe aled eff ective September 1, 1994)
.

The issues in Saiy ed’s pro se brief fail to prese nt a nonfrivolous g round for reve rsing his conviction on appea l. Having thoroug hly revie wed the rec ord an d t h e briefs filed in this
cause , we ag ree with counsel’s assessment that this appea l i s fr i v o lous and without merit. See Garner v. State , 300 S.W .3d 763, 766 (Tex. Crim. App. 2009); Bledsoe v

. State , 178 S.W .3d 824, 826-27 (Tex. Crim. App. 2005). Counsel’s motion to withdraw is g rante d
. The judgme nt of conviction is aff

irmed.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices F ield and B ourland Affir med Filed: Jul y

31, 2017 Do Not Publish

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