No. 4-05-00940-CR
Delivered and Filed: September 13, 2006. DO NOT PUBLISH.
Appeal from the 290th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-9883C, Honorable Sharon MacRae, Judge Presiding. Affirmed.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice Rebecca SIMMONS, Justice.
Opinion by: PHYLIS J. SPEEDLIN, Justice.
Mark Mitchell pled nolo contendere to aggravated kidnapping and was placed on deferred adjudication for ten years. Mitchell's deferred adjudication was subsequently revoked, and he was sentenced to eight years imprisonment. In Mitchell's sole issue on appeal, he contends that he received ineffective assistance of counsel because his trial counsel failed to preserve sentencing error after the revocation. We affirm the trial court's judgment.
The judgment erroneously states that Mitchell was convicted of aggravated robbery. At the conclusion of this opinion, we instruct the trial court to amend the judgment to correctly reflect the offense of conviction.
Background
Mark Mitchell was indicted on several counts of aggravated robbery and aggravated kidnapping. He pled nolo contendere to three counts of aggravated kidnapping and was placed on ten years of deferred adjudication on August 25, 2005. The State subsequently filed a motion to enter an adjudication of guilt and revoke his community supervision based on several alleged violations. On November 22, 2005, Mitchell pled true to carrying a gun and possessing marijuana in violation of his deferred adjudication probation. The trial court revoked Mitchell's deferred adjudication, adjudicated him guilty on the underlying offense, and sentenced him to eight years imprisonment. Mitchell filed a pro se motion to reduce his sentence on December 15, 2005, but the motion was never ruled on. This appeal followed. Analysis
Mitchell's only issue on appeal is that he was denied effective assistance of counsel at the sentencing hearing after his deferred adjudication was revoked. Specifically, Mitchell claims that the eight-year sentence was disproportionate to the offense, and that his counsel rendered ineffective assistance because he failed to object at the sentencing hearing and failed to set a hearing on Mitchell's pro se motion to reduce his sentence. We conclude that Mitchell has failed to establish ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish ineffective assistance of counsel, a defendant must show by a preponderance of the evidence that (1) his trial counsel's performance was deficient, and (2) the deficient performance prejudiced him to such a degree as to deprive him of a fair trial. Id.; Hernandez v. State, 988 S.W.2d 770, 770 n. 3 (Tex.Crim.App. 1999); Harling v. State, 899 S.W.2d 9, 12 (Tex.App.-San Antonio 1995, pet. ref'd). Failure to make the required showing of either deficient performance or sufficient prejudice will defeat a claim for ineffective assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). To establish deficient performance, the first prong of the Strickland standard, the defendant must show that counsel's performance fell below an objective standard of reasonableness and must rebut the presumption that counsel's trial decisions were based on sound trial strategy. Id. at 812-14. To satisfy this prong, any allegations of ineffectiveness must be firmly founded in the record. Id. at 813. The appellate court does not look at isolated acts or omissions to determine effectiveness, but reviews the totality of the representation. Id.; Harling, 899 S.W.2d at 12. Here, the record shows that Mitchell's trial counsel presented evidence regarding punishment and attempted to mitigate Mitchell's sentence through the testimony of his mother and through counsel's argument that boot camp, or, in the alternative, a minimum five-year sentence, was the appropriate punishment. Upon adjudication of guilt for the first degree felony of aggravated kidnapping, the trial court had the authority to sentence Mitchell to any term of imprisonment within the statutory range of five years to life. See Tex. Pen. Code Ann. §§ 12.32(a), 20.04 (Vernon 2003); Tex. Code Crim. Proc. Ann. art. 42.12 § 5(b) (Vernon Supp. 2005). Mitchell asserts that, even though it fell at the low end of the statutory range, his eight-year sentence was disproportionate to the offense committed, and his attorney should have preserved the sentencing error. No motion for new trial was filed, however, and therefore no record was developed on counsel's strategy. Absent record evidence to the contrary, we must presume that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813-14 (record that is silent on trial counsel's reasons for particular action or inaction will rarely suffice to rebut presumption that decision was reasonable); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim App. 2005). To conclude that the representation by Mitchell's counsel was deficient without a proper record exploring counsel's strategy would require this court to speculate as to counsel's motivation and reasoning, which we may not do. Without evidence in the record to both establish deficiency and rebut the prevailing presumption that trial counsel's actions were within the range of reasonable performance, we hold that Mitchell has failed to establish deficient performance by his trial counsel, and has therefore failed to prove ineffective assistance of counsel pursuant to Strickland. Based on the foregoing reasons, Mitchell's sole issue on appeal is overruled. We affirm the trial court's judgment, but order the trial court to enter a corrected judgment reflecting that Mitchell was convicted of aggravated kidnapping, not aggravated robbery.