Opinion
No. 05-07-01339-CR
Opinion Filed August 11, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the County Court at Law No. 2, Collin County, Texas, Trial Court Cause No. 002-86783-06.
Before Justices FITZGERALD, RICHTER, and LANG-MIERS.
OPINION
Richard Edward Hayward waived a jury and pleaded not guilty to driving while intoxicated. After finding appellant guilty, the trial court assessed punishment at three days' confinement in the county jail. In two issues, appellant contends the judgment is void and he did not receive effective assistance of counsel. We affirm. In his first issue, appellant argues the judgment is void because it was not signed by the judge who presided at the trial. The Honorable Richard Mays, a visiting judge, presided over the trial. The Honorable Jerry Lewis, the elected judge of County Court at Law No. 2, signed the judgment. Appellant argues Judge Lewis cannot be characterized as the trial judge pursuant to article 42.01 of the Texas Code of Criminal Procedure because the record does not show he had anything to do with the case. A judgment is the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of a defendant. Tex. Code Crim. Proc. Ann. art. 42.01, § 1 (Vernon 2006). A visiting judge may be assigned to a court to serve in cases in which the regularly elected judge is not available to sit or when they need assistance. See Tex. Gov't Code Ann. § 74.056(b) (Vernon 2005). Either a visiting judge or the elected judge of a court may hear all or any part of the case pending in the court and may rule or render judgment on any part of the case. See id. § 74.121(a); Eubanks v. State, 11 S.W.3d 279, 281 (Tex.App.-Texarkana 1999, no pet.). We conclude that Judge Lewis, the elected judge of the trial court, could sign the judgment even where Judge Mays, the visiting judge properly assigned to the case, presided over the trial. See Eubanks, 11 S.W.3d at 281. Thus, the judgment is not void. We resolve appellant's first issue against him. In his second issue, appellant argues trial counsel was ineffective because he failed to present any evidence or witnesses and failed to subject the prosecution's case to meaningful adversarial testing. The State responds that appellant has not shown trial counsel was ineffective. 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 relies on Cannon v. State to support his contention that "trial counsel entirely failed to subject the prosecution's case to meaningful adversarial testing so that there was a constructive denial of the assistance of counsel altogether." See Cannon v. State, 252 S.W.3d 342 (Tex.Crim.App. 2008) (op. on reh'g). In Cannon, defense counsel basically refused to participate in the two-day jury trial. The Texas Court of Criminal Appeals held counsel's behavior, considered as a whole, constructively denied the appellant his right to effective assistance of counsel. See Cannon, 252 S.W.3d at 352. Cannon is distinguishable from this case. Here, appellant's counsel did not refuse to participate during the proceedings or announce he was not prepared to go forward. The prosecution presented a video DVD of appellant's traffic stop, his subsequent performance during field sobriety testing, and his refusal to give a breath sample. The prosecution did not call the arresting officers or present any other evidence. Counsel objected to the DVD on the grounds of probable cause to stop, which was denied by the judge. The DVD shows appellant repeatedly told officers that he had drunk "too much to be driving." During the punishment phase, counsel asked the judge to follow the prosecution's recommendation for the minimum punishment. There was nothing showing what other witnesses were available or to what they would have testified. We conclude appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective or that the results of the proceedings would have been different had counsel presented witnesses. See Thompson, 9 S.W.3d at 813; Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.). We resolve appellant's second issue against him. We affirm the trial court's judgment.