Opinion
Nos. 05-04-00722-CR, 05-04-00723-CR, 05-04-00724-CR, 05-04-00725-CR, 05-04-00726-CR
Opinion Filed October 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F92-04939-SW, F92-05296-W, F01-51889-W, F01-73742-TW, F01-73743-TW. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER
OPINION
Consuelo Flores de la Garza waived a jury trial and entered guilty pleas to delivery of cocaine in an amount under twenty-eight grams (cause nos. 05-04-00722-CR and 05-04-00723-CR), possession with intent to deliver heroin in an amount of four grams or more but less than 200 grams (cause no. 05-04-00724-CR), and possession with intent to deliver heroin in an amount of one gram or more but less than four grams (cause nos. 05-04-00725-CR and 05-04-00726-CR). In cause nos. 05-04-00722-CR and 05-04-00724-CR, appellant was initially placed on ten years' deferred community supervision, but was later adjudicated guilty and sentenced to thirty-five years' imprisonment. In cause nos. 05-04-00723-CR, 05-04-00725-CR, and 05-04-00726-CR, appellant was sentenced to ten years' confinement, probated for ten years, and assessed fines of $1000 and $800. Subsequently, the trial court revoked appellant's community supervision and sentenced her to ten years' imprisonment in each case. In a single issue, appellant contends she did not receive effective assistance of counsel. We affirm the trial court's judgments. 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, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005). Only in rare circumstances will a record show, even without counsel's explanation, that there was no sound strategy for trial counsel's acts or omissions. See Andrews v. State, 159 S.W.3d 98, 103 (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; see also Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). Appellant argues counsel failed to present evidence about her drug addiction and abusive spouse, or that appellant had stayed off drugs for most of the time she was on probation. Appellant contends counsel's sentencing strategy involved only asking the trial court to not make a finding on the enhancement paragraph and asking for a sentence less than fifteen years in prison, even though appellant had pleaded true to the enhancement paragraph. Appellant asserts that but for counsel's ineffective representation, she would not have received such harsh sentences. The State responds that appellant has not met her burden to show counsel was ineffective because the record is silent as to counsel's reasons for his action or alleged inaction. On May 11, 2004, the trial court held a joint hearing on the State's motions to proceed with adjudication of guilt and motions to revoke probation along with a new case for the offense of delivery of cocaine. Appellant testified she was freely and voluntarily pleading true to the allegations in the State's motions and that she violated her probation by committing new offenses, failing to report, and not entering the Substance Abuse Felony Program (SAFP) as directed by the court. Appellant said she failed to enter SAFP because her grown daughter, who was caring for appellant's two younger children, needed help. Appellant started using drugs again and did not turn herself in for one year. Appellant's counsel asked if she was asking the trial court to not make a finding on the enhancement paragraph and to sentence her to something "on the lower end, certainly less than 15 years." Appellant said, "I'm begging." Appellant testified her family members were in court to support her, including her mother, brother, sister, and daughter. Appellant said her mother cared for a younger sister, who had cerebral palsy, and could not help out with appellant's children. Appellant asked the court to have mercy on her and consider her family's hardships before sentencing her. Appellant also testified her drug addiction caused all of her criminal activity. During the punishment phase, counsel stated, "we'd just resubmit the testimony that's previously been tendered on these other cases for the court's consideration." There was evidence of appellant's drug addiction in the record. Moreover, nothing shows what other mitigating evidence existed or that the results of the proceedings would have been different. Thus, appellant has not met her burden of showing trial counsel was ineffective. See Goodspeed, 2005 WL 766996 at * 2; Bone, 77 S.W.3d at 833; Rylander, 101 S.W.3d at 111. We overrule appellant's sole issue on appeal. We affirm the trial court's judgment in each case.