Opinion
Nos. 05-04-00621-CR, 05-04-00622-CR
Opinion Filed July 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 416th Judicial District Court, Collin County, Texas, Trial Court Cause Nos. 296-81900-02, 296-81901-02. Affirm.
Before Justices WRIGHT, BRIDGES, and FITZGERALD.
OPINION
A jury convicted Nicolas Hernandez of four counts of aggravated sexual assault of a child and one count of indecency with a child. See Tex. Pen. Code Ann. § 21.11, 22.021 (Vernon 2003 Supp. 2004-05). The trial court assessed punishment at fifty years' confinement for each count of aggravated sexual assault of a child and twenty years' confinement for the indecency with a child. In a single point of error, appellant contends he 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). 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 argues that trial counsel was ineffective in not filing a plea to the jurisdiction in the trial court. Appellant contends that counsel should have objected to the lack of an order transferring the case from the 380th Judicial District Court, where the indictments were returned, to the 416th Judicial District Court, where the judgments were rendered. Appellant argues that but for counsel's error, the results of the proceeding would have been different. The State responds that trial counsel was not ineffective for failing to complain about the lack of a transfer order that was never needed in the first place. We agree with the State. The record shows the 380th Judicial District Court presided over the grand jury that returned the indictments. While any district court may impanel a grand jury, all cases returned by that grand jury are not necessarily assigned to that court. See Tex. Gov't Code Ann. § 24.303, 24.304 (Vernon 2004); see also Bourque v. State, 156 S.W.3d 675, 678 (Tex.App.-Dallas 2005, pet. filed). The cases were never filed in the 380th Judicial District Court. They were filed in the 296th Judicial District Court and transferred by formal order to the 416th Judicial District Court. No transfer order was required from the 380th Judicial District Court. Therefore, trial counsel was not ineffective in failing to complain about the lack of a transfer order. See Bourque, 156 S.W.3d at 678. We overrule appellant's sole point of error. We affirm the trial court's judgment in each case.
The four counts were alleged in one indictment. The clerk's record contains a separate judgment for each count.