Opinion
No. 05-02-00731-CR.
Opinion Issued January 29, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F01-50662-VJ. AFFIRMED.
Before Justices WRIGHT, BRIDGES, and O'NEILL.
OPINION
Oscar Omar Ortiz appeals his conviction for burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (Vernon Supp. 2003). Appellant waived a jury trial and entered a non-negotiated guilty plea before the court. The trial court sentenced appellant to thirteen years' confinement and assessed a $500 fine. In a single point of error, appellant contends he did not receive effective assistance of counsel. We affirm the trial court's judgment. To prevail on his claim of ineffective assistance of counsel, appellant must show 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). In the context of a guilty plea, appellant must show that but for counsel's deficient performance, he would not have pleaded guilty and would have insisted upon going to trial. See Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). 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). Appellant argues he did not receive effective assistance of counsel because (1) counsel did not present any witnesses other than appellant at the punishment hearing, (2) appellant's parents were available and could and would have testified at the punishment hearing, and (3) counsel did not file a written application for probation or present final arguments requesting probation. The State argues appellant fails to show how he was harmed by counsel's alleged failures and, thus, fails to meet his burden of proving by a preponderance of the evidence that counsel was ineffective. We agree with the State. At the March 25, 2002 sentencing hearing, appellant testified he had discussed the presentence investigation report with counsel, he understood the punishment range, and he understood the trial court would decide whether to grant him probation. Appellant admitted he and another man broke into a woman's house and stole her property. Appellant claimed he did not know the woman was in the house with two small children at the time he broke in. Appellant testified that after he entered his guilty plea at a hearing on May 31, 2001, he knew he was supposed to return to the trial court on July 12, 2001 for sentencing. Appellant did not show up for sentencing because he went to New Mexico in search of a better paying job to support his nine-month-old son. Appellant asked the trial judge to place him on probation, and testified his mother and father were fully supportive of him in that his mother was willing to take care of his infant son and his father was going to get appellant a job with the father's employer. Appellant further testified that as a juvenile, he had been sentenced to the Texas Youth Commission. Other than the bare statements of appellant, nothing in the record shows whether there were other witnesses available to offer testimony, or what those witnesses would have said. Further, nothing in article 42.12, section 3 requires counsel to file an application for probation when going to the judge for punishment, nor has appellant shown the results of the proceeding would have been different if counsel had filed such an application. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3 (Vernon Supp. 2003). Through appellant's own testimony, the trial judge knew appellant was seeking probation. There is nothing in the record that shows appellant was harmed or mislead by counsel or that the results of the proceeding would have been different. Moreover, the record contains no evidence to rebut the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689. Thus, we conclude appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.