Opinion
No. 05-08-01120-CR
Opinion issued April 28, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F07-51172-ML.
Before Justices WRIGHT, BRIDGES, and FRANCIS.
OPINION
Melvin Lawrence Willis waived a jury and pleaded guilty to burglary of a habitation. Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on community supervision for seven years, and assessed a $1500 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. After a hearing, the trial court granted the State's motion, adjudicated appellant guilty, and assessed punishment at four years in prison. In two points of error, appellant contends the trial court erred by failing to hold a separate punishment hearing and counsel rendered ineffective assistance. We affirm the trial court's judgment. In his first point of error, appellant, citing Issa v. State, 826 S.W.2d 159 (Tex.Crim.App. 1992), contends he was entitled to a separate punishment hearing, and the trial court deprived him of the opportunity to present evidence focused on punishment. The State responds that appellant waived any error because he did not complain at trial or in a motion for new trial. We agree with the State. See Tex. R. App. P. 33.1; Castaneda v. State, 135 S.W.3d 719, 723 (Tex.App.-Dallas 2003, no pet.). Moreover, contrary to appellant's argument, Issa does not stand for the absolute right to a separate punishment hearing. Instead, it requires a defendant have an opportunity to present evidence in mitigation of punishment. See Pearson v. State, 994 S.W.2d 176, 178 (Tex.Crim.App. 1999). The record shows appellant had the opportunity to present evidence during the proceedings, and he testified about the violations of the terms of his community supervision. See Castaneda, 135 S.W.3d at 723. 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 overrule appellant's first point of error. In his second point of error, appellant contends trial counsel was ineffective for failing to object when the trial court imposed punishment without conducting a separate punishment hearing. Appellant asserts counsel failed to object to an "utter lack of an opportunity to present mitigating evidence," and was thus ineffective. The State responds that the record does not support appellant's claim that counsel was ineffective. 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). The record shows appellant presented evidence relevant to the assessment of punishment during the adjudication proceedings. Counsel was not ineffective for failing to object to the absence of a separate, unnecessary punishment hearing. See Hardeman, 1 S.W.3d at 691; Pearson, 994 S.W.2d at 178. Further, counsel did not have an opportunity to explain his trial strategy regarding punishment. See Goodspeed, 187 S.W.3d at 392. Nothing in the record supports appellant's claims. 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 overrule appellant's second point of error. We affirm the trial court's judgment.