Opinion
Nos. 05-02-00490-CR, 05-02-00491-CR, 05-02-00492-CR, 05-02-00493-CR 05-02-00494-CR, 05-02-00859-CR
Opinion Filed August 21, 2003. DO NOT PUBLISH. Tex.R.App.P. 47
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F01-21311-MQ, F01-21312-MQ, F02-39697-SQ, F01-40466-KQ, F01-75851-MQ, and F02-71714-RQ. AFFIRM
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
OPINION
Calandra Denise Bell appeals six convictions for forgery and credit card abuse. In cause nos. 05-02-00490-CR, 05-02-00491-CR, 05-02-00493-CR, and 05-02-00494-CR, appellant waived a jury trial, entered open guilty pleas to forgery and credit card abuse, and pleaded true to two enhancement paragraphs in each case. See Tex. Pen. Code Ann. §§ 32.21, 32.31 (Vernon 2003). The trial court found appellant guilty and the enhancement paragraphs true and sentenced appellant to ten years' confinement and a $1000 fine in each case. In cause nos. 05-02-00492-CR and 05-02-00859-CR, appellant waived a jury trial and entered open guilty pleas to forgery. The trial court sentenced appellant to two years in a state jail facility in each case, and assessed fines of $1000 and $500, respectively. In two points of error, appellant contends the trial court abused its discretion in sentencing her to the maximum prison terms and erred in failing to obtain a drug evaluation before sentencing her. We affirm the trial court's judgment in each case. In her first point of error, appellant argues the trial court abused its discretion in sentencing a person with appellant's health problems to the maximum term in prison. Appellant's brief contains no citations to authority to support her contention. Texas Rule of Appellate Procedure 38 requires appellant's brief to contain a succinct, clear, and accurate statement of the arguments in the body of the brief, and a clear and concise argument with citations to authorities and to the record. See Tex.R.App.P. 38.1(g), (h). Appellant's brief on this point does not comply with rule 38. Thus, we overrule appellant's first point of error for inadequate briefing. In her second point of error, appellant argues the trial court sentenced her without first obtaining a drug evaluation, in violation of article 42.12, section 9(h) of the Texas Code of Criminal Procedure. In the alternative, appellant argues her attorney's failure to object at trial about the lack of a drug evaluation prior to sentencing resulted in appellant receiving ineffective assistance of counsel. The State responds the record does not support appellant's claims and appellant cannot show counsel was ineffective. We agree with the State. Appellant did not complain at trial or in a motion for new trial about the failure to conduct a drug evaluation. The right to a drug evaluation may be waived by a failure to object. See Marin v. State, 851 S.W.2d 275, 279 (Tex.Crim.App. 1993) overruled on other grounds by Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997). Thus, appellant has not preserved this issue for appellate review. Appellant also argues trial counsel was ineffective in not objecting to the lack of a drug evaluation. To prevail on her claim, 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. See 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. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). When facing a silent record as to defense counsel's strategy, the court will not speculate as to defense counsel's tactics or guess what the reasons might be for taking or not taking certain actions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Without evidence of the strategy and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814. The record shows appellant testified about her drug addiction problems and asked the trial judge to give her probation and drug treatment. After appellant entered her guilty pleas and pleas of true to the enhancement paragraphs, the trial court passed the cases for a presentence investigation report (PSI). During the sentencing hearing, appellant testified she had a presentence interview with the probation department in which she openly told them about her nineteen-year drug addiction; she was diagnosed with breast cancer and was scheduled to have surgery the next month; the friends she was around prevented her from seeking drug treatment previously; she committed the forgeries and credit card abuse because of the type of friends she was around; and the probation department recommended she first go to the restitution center and then to a structured drug treatment facility if the judge placed her on probation. Appellant has not shown the results of the proceeding would have been different had counsel objected about the absence of a drug evaluation, especially since appellant had already testified about her discussions with the probation department and the probation department's recommendation that appellant go to a drug treatment facility if she were placed on probation. We conclude appellant has not met her 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 second point of error. We affirm the trial court's judgment in each case.