Opinion
No. 05-06-01482-CR
Opinion issued March 26, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F04-01564-JL.
AFFIRMED.
Before Justices O'NEILL, LANG-MIERS, and MAZZANT.
OPINION
Sharon Marie Alexander waived a jury and pleaded guilty to possession of cocaine in an amount of less than one gram, and using or exhibiting a deadly weapon, a firearm, during the commission of the offense. See Tex. Health Safety Code Ann. § 481.115(a), (b) (Vernon 2003); Tex. Pen. Code Ann. § 12.35(c) (Vernon 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $1500 fine. Subsequently, the trial court adjudicated appellant guilty and assessed punishment at five years' imprisonment. In a single issue, appellant contends she did not receive effective assistance of counsel. We affirm the trial court's judgment. To prevail on a claim of ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005). Without evidence of the strategy involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). Appellant argues, citing Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992), trial counsel failed to object to the absence of a separate punishment hearing. Appellant also argues counsel did not offer any evidence in mitigation of punishment and should have offered testimony from appellant's employer, co-workers, family, and friends. Appellant contends that but for counsel's ineffectiveness, the trial court would have assessed less punishment. The State responds that appellant has not shown counsel was ineffective because there is no absolute right to a separate punishment hearing and nothing in the record shows witnesses were available. Contrary to appellant's argument, Issa does not stand for the absolute right to a separate punishment hearing. Instead, it requires a defendant have an opportunity to present evidence in mitigation of punishment. See Pearson v. State, 994 S.W.2d 176, 178 (Tex.Crim.App. 1999). The record shows that after appellant pleaded true to violating the terms of her community supervision, she had the opportunity to present evidence during the proceedings, including answering the trial judge's questions about having two urinanalysis tests that were positive for cocaine. It is immaterial that the presentation of this evidence occurred before the actual words of adjudication. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex.Crim.App. 1999). We conclude counsel was not ineffective for failing to object to a separate punishment hearing when no such hearing was required. See Pearson, 994 S.W.2d at 178; Hardeman, 1 S.W.3d at 691. Nothing in the record supports appellant's claims. Nothing shows whether there were witnesses available or that their testimony would have been beneficial to appellant. Further, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392. We conclude appellant has not met her burden of proving by a preponderance of the evidence that counsel was ineffective. See Thompson, 9 S.W.3d at 813. We resolve appellant's sole issue against her. We affirm the trial court's judgment.