Opinion
No. 05-08-01675-CR
Opinion Filed February 26, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the 380th Judicial District Court, Collin County, Texas, Trial Court Cause No. 380-80382-01.
Before Justices O'NEILL, LANG, and MYERS.
OPINION
John Ochoa appeals the revocation of his community supervision. In a single issue, appellant contends he did not receive effective assistance of counsel. We affirm the trial court's judgment. In this case, appellant waived a jury and pleaded guilty to robbery. See Tex. Penal Code Ann. § 29.02(a) (Vernon 2003). The trial court deferred adjudicating guilt and placed appellant on five years' community supervision. The trial court later adjudicated appellant guilty, assessed a ten-year prison term, and placed appellant on regular community supervision. Subsequently, the State moved to revoke appellant's community supervision, alleging appellant violated the terms of his community supervision. Appellant pleaded true to the allegations in a hearing on the motion. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at ten years' imprisonment. 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). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813. 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 motivating 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 contends trial counsel was ineffective because she failed to present any defense or mitigating evidence on his behalf. Appellant asserts counsel presented no evidence that some of the allegations in the motion to revoke were untrue, and had counsel properly investigated the case and presented evidence, appellant would have been continued on community supervision or would not have received the maximum punishment. The State responds that appellant has not shown counsel was ineffective because counsel's decisions are consistent with a strategy of appealing to the judge's mercy. In its motion to revoke, the State alleged appellant violated eleven terms of his community supervision, including committing two new offenses: criminal mischief and driving while intoxicated. During the revocation hearing, appellant testified he understood his rights and that if his community supervision was revoked, he could be sentenced to up to ten years in prison. Appellant's signed plea of true and stipulation of evidence was admitted into evidence. Appellant testified he committed the two new offenses. During closing argument of appellant's counsel, appellant interjected that although he pleaded true to all of the violations, he had obtained his G.E.D. His counsel also argued appellant completed the Substance Abuse Felony Program (SAFP) relapse program while on community supervision. Appellant told the trial judge he was sorry for the underlying robbery offense, and he asked the judge to "please have mercy." Counsel stated that although she would like appellant's community supervision continued, she believed it was "unrealistic" to expect that outcome. She asked the judge to impose the minimum sentence, reiterating that appellant did many things well while on community supervision. Nothing in the record supports appellant's claims. Appellant admitted he committed two new offenses while on community supervision and that he has had multiple continuations of his community supervision. Nothing in the record shows counsel failed to investigate the allegations contained in the motion to revoke. Moreover, counsel did not have an opportunity to explain herself. 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 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 sole issue against him. We affirm the trial court's judgment.