Opinion
No. 05-05-00035-CR
Opinion Filed May 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F00-29417-NU. Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
David James Flores waived a jury trial and entered a negotiated guilty plea to intoxication assault. See Tex. Pen. Code Ann. § 49.07 (Vernon 2003). Pursuant to the plea bargain agreement, the trial court sentenced appellant to ten years' confinement, probated for five years, and assessed a $750 fine. The State later moved to revoke appellant's probation, alleging appellant committed a new offense. The trial court found the allegation true, revoked appellant's probation, and sentenced him to ten years' confinement and a $359.25 fine. In two issues, appellant contends the trial court violated his due process rights and appellant did not receive effective assistance of counsel. We affirm the trial court's judgment. In his first issue, appellant argues the trial court violated his due process rights by revoking his probation based upon a violation that had occurred before the date of the hearing at which his community supervision was extended. The State responds that appellant failed to object to the revocation and has waived error. We agree with the State. Appellant did not present a due-process complaint to the trial court and has not preserved the issue for review. See Tex.R.App.P. 33.1(a)(1). We resolve appellant's first issue against him. In his second issue, appellant argues that trial counsel rendered ineffective assistance of counsel because she did not object at the revocation hearing that the violation had occurred before the date the community supervision was extended. Appellant contends that had counsel objected, appellant would have been continued on community supervision instead of being revoked and sentenced. The State responds that appellant has failed to show he received ineffective assistance of counsel because the record is silent as to counsel's strategy. We agree with the State. 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). When faced with a silent record as to defense counsel's strategy, the reviewing court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). 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; see also Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). Appellant was placed on probation in July 2000. In February 2001, the State moved to revoke appellant's probation, alleging appellant had used cocaine and morphine. In May 2004, appellant was arrested for allegedly assaulting his wife. On June 4, 2004, the trial court held a hearing on the February 2001 motion to revoke. After finding the allegations that appellant had used cocaine and morphine true, the trial court extended appellant's probation by five years and ordered him to serve ninety days in the county jail as a condition of probation. On June 15, 2004, the State filed a second motion to revoke, alleging the May 2004 assault. The trial court held a hearing on the motion on July 16, 2004. During the hearing, appellant testified he had drunk about eighteen beers and he had beaten his wife because she would not allow him to drive the car while he was intoxicated. The trial court found the allegation true and revoke appellant's probation. The record shows that appellant was on probation at the time he committed the assault. And, there was no period between the May 2004 assault and the July 2004 revocation hearing that appellant was not on community supervision. Therefore, the trial court could properly find that appellant violated the conditions of his probation. Nothing in the record shows counsel's trial strategy or why counsel did not object to the second motion to revoke. Thus, appellant has not met his burden of showing trial counsel was ineffective. See Bone, 77 S.W.3d at 833; Rylander, 101 S.W.3d at 111. We resolve appellant's second issue against him. We affirm the trial court's judgment.