Opinion
No. 05-06-01605-CR
Opinion Filed March 6, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F05-52150-SL.
Before Justices MORRIS, WRIGHT, and MOSELEY. Opinion By Justice MOSELEY.
OPINION
Appellant's motion for rehearing is denied. We withdraw our opinion of January 22, 2008 and vacate our judgment of that date. This is now the opinion of the Court. Phelom Ray Lewis, Jr. waived a jury, requested a hearing before a magistrate, and pleaded guilty to aggravated robbery with a deadly weapon, a firearm, and true to one enhancement paragraph. See Tex. Pen. Code Ann. § 29.03(a) (Vernon 2003). Pursuant to a plea agreement, the magistrate recommended the trial court defer adjudicating guilt, place appellant on ten years' community supervision, and assess a $2000 fine. The trial court later entered an order modifying one of the conditions of community supervision. The State later moved to proceed with adjudication of guilt, alleging appellant violated the conditions of his community supervision. The trial court granted the State's motion, adjudicated appellant guilty, and assessed punishment at fifteen years' imprisonment. In a single issue, appellant contends he did not receive effective assistance of counsel. The State brings a cross-point seeking to modify the judgment. 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 trial counsel was ineffective because counsel failed to object to the absence of a separate punishment hearing, did not offer any evidence in mitigation of punishment, and should have offered testimony from appellant's family members. 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 appellant had an opportunity to present mitigation evidence and the trial court assessed a sentence at the low end of the punishment range. During a hearing on the motion to proceed with adjudication of guilt, appellant testified he was ordered to participate in drug treatment at the Seidler House. Appellant left drug treatment on the second day because he had an "altercation" with one of the counselors. Appellant testified he stayed away from drug treatment for three months because he was looking for work. When he could not find work because of an outstanding warrant for his arrest, he turned himself in. There is no absolute right to a separate punishment hearing, but a defendant must have an opportunity to present evidence in mitigation of punishment. See Pearson v. State, 994 S.W.2d 176, 178 (Tex.Crim.App. 1999). Here, the record shows appellant had the opportunity to present evidence during the proceedings. 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 the lack of 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. Moreover, nothing in the record supports the remainder of appellant's ineffective assistance arguments. The record does not show what family members, if any, were available or what evidence they would have offered. Further, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392. We conclude appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective. See Rylander v. State, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We resolve appellant's sole issue against him. In a cross-point, the State asks us to modify the trial court's judgment to reflect an affirmative deadly weapon finding. The trial court's judgment adjudicating guilt states "N/A" under "Findings on Deadly Weapon." The State argues the presumption of regularity shows the judgment is incorrect and the record contains the necessary information to correct the judgment. We disagree. The original plea hearing was conducted before a magistrate. The record includes the plea agreement and appellant's written judicial confession tracking the language of the indictment. The magistrate made written findings and recommendations, including an affirmative finding that appellant used or exhibited a deadly weapon-a firearm-during the commission of the offense. However, the record does not show the trial court ever adopted the magistrate's findings. The record does not include the order deferring adjudication and placing appellant on community supervision, but does include an order signed by the trial judge modifying the conditions of community supervision. The presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court. Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App. 2000). If a presumption of regularity applies, then a reviewing court must consider "whether there is evidence sufficient to overcome the presumption." Id. Rather than providing us with evidence of an impropriety in the judgment adjudicating guilt, the State attempts to use the presumption to show the judgment is incorrect. The trial court is required to review a magistrate's recommendations before adopting them. Christian v. State, 865 S.W.2d 198, 202 (Tex.App.-Dallas 1993, pet. ref'd). But the presumption of regularity applies to the trial court's review of the magistrate's recommendations unless "the record affirmatively reflects that the trial judge did not review the magistrate's actions." Id. A court must presume, in the face of a silent record, that all of the actions of the magistrate were adopted. Kelly v. State, 676 S.W.2d 104, 108-09 (Tex.Crim.App. 1984). By statute, the action of a magistrate becomes the decree of the court if the court "does not modify, correct, reject, reverse, or recommit an action of the magistrate." Tex. Gov't Code Ann. § 54.312 (b) (Vernon 2005). Here the record is not silent. On this record, we presume the trial court modified the magistrate's deadly weapon finding when it adjudicated guilt by indicating "N/A" in the deadly weapon blank on the form judgment. Because the record does not contain evidence to overcome this presumption, we deny the State's request to modify the judgment. We affirm the trial court's judgment.