No. 01-01-01221-CR
April 3, 2003. DO NOT PUBLISH.
On Appeal from the 184th District Court, Harris County, Texas, Trial Court Cause No. 854,430.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HANKS.
SAM NUCHIA, Justice.
Juan A. Salazar, appellant, was indicted for the felony offense of aggravated sexual assault of a child. Appellant pled guilty without an agreed recommendation by the State. Following the presentence investigation, the trial court assessed punishment at 12 years confinement in the Texas Department of Criminal Justice Institutional Division. Appellant's sole point of error contends that his trial counsel was ineffective. We affirm.
Discussion Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). See Thompson v. State , 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Appellant has the burden to prove that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) but for the counsel's error, the result of the proceedings would have been different. Strickland , 466 U.S. at 687, 104 S.Ct. at 2064; Thompson , 9 S.W.3d at 812. Defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland , 466 U.S. at 689, 104 S.Ct. at 2065; Thompson , 9 S.W.3d at 813. Voluntariness of the Plea
Appellant contests the voluntariness of his guilty plea. He claims that his trial attorney was ineffective and advised him incorrectly regarding his eligibility for probation, which induced him to enter his guilty plea. A claim that he was misinformed by his defense counsel, standing alone, is not enough to lead a reviewing court to the determination that the plea was involuntarily given. Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. At the original plea hearing, appellant signed plea papers indicating that he understood the consequences of his plea after consulting with his trial attorney and that he was entering his plea knowingly and voluntarily. The trial court's written comments on the plea papers reiterate appellant's awareness by stating, "Defendant said he understood no promises were made and judge would consider entire range of punishment. He said attorney told him probation possible, but not likely." There is no record of the plea nor is there testimony from appellant or his lawyer to suggest that he was misinformed about the range of his sentence. To find that trial counsel was ineffective based on the asserted grounds would call for speculation, which we will not do. See Jackson v. State , 877 S.W.2d 768, 771 (Tex.Crim.App. 1994); Gamble , 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). Therefore, the first prong of the Strickland test has not been satisfied. Accordingly, we overrule appellant's point of error. Conclusion
We affirm the trial court's judgment.