Nos. 05-07-01440-CR, 05-07-01441-CR, 05-07-01442-CR
Opinion issued September 10, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F03-26684-RP, F05-49250-P, F06-67353-UP.
Before Justices WRIGHT, LANG-MIERS, and MAZZANT.
Opinion By Justice MAZZANT.
Romar Tyquan Bernard appeals from his convictions for assault on a public servant and possession of cocaine. In a single issue, appellant contends he did not receive effective assistance of counsel. We affirm the trial court's judgments.
Procedural History
In cause nos. 05-07-01440-CR and 05-07-01441-CR, appellant waived a jury and pleaded guilty to assault on a public servant and possession of cocaine in an amount of one gram or more but less than four grams. See Tex. Penal Code Ann. § 22.01(a), (b)(1) (Vernon Supp. 2008); Tex. Health Safety Code Ann. § 481.115(a), (c) (Vernon 2003). Pursuant to plea agreements, the trial court deferred adjudicating appellant's guilt, placed him on five years' community supervision for assault and four years' community supervision for possession of cocaine, and assessed $1500 fines in each case. The State later moved to adjudicate guilt, alleging appellant committed a new possession of cocaine offense along with other violations. Appellant pleaded true to the allegations at a hearing on the motions. The trial court granted the motions, adjudicated appellant guilty, and assessed punishment at eight years' imprisonment in each case. In cause no. 05-07-01442-CR, appellant waived a jury and pleaded guilty to possession of cocaine in an amount of less than one gram. See Tex. Health Safety Code Ann. § 481.115(a), (b). The trial court assessed punishment at two years' confinement in a state jail facility. Applicable Law
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). Discussion
Appellant argues he did not receive effective assistance of counsel because counsel stopped listening during the proceedings, depriving appellant of the opportunity for a punishment hearing. The State responds appellant has not shown he was deprived of effective assistance of counsel. During a hearing on the motions to adjudicate, counsel presented testimony from appellant and appellant's girlfriend and his mother. Counsel announced he could also call appellant's sister and an aunt, who were in the courtroom, to testify, but they would give testimony similar to that already heard by the court. Counsel asked the judge to place appellant on probation with drug treatment. The trial judge granted the motions to proceed and adjudicated appellant guilty in each case. After announcing the punishment, the judge asked if there was any legal reason why appellant should not be sentenced at that time. Counsel replied, "[I] apologize, Your Honor, I wasn't listening." The judge repeated the question, and counsel said, "[N]o reason under law." Appellant now argues that because counsel had "mentally checked out" during the trial court's pronouncement of the verdicts, counsel failed to provide effective assistance. Appellant asserts counsel essentially admitted he had no reason to not request a punishment hearing. A separate punishment hearing is not required when a defendant has the opportunity to present evidence in mitigation of punishment. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex.Crim.App. 1999). Here, appellant had the opportunity to present evidence during the proceedings, and nothing in the record shows the other witnesses' testimony would have changed the punishment assessed. We conclude counsel was not ineffective for failing to request a separate punishment hearing when no such hearing was required. Id. Nothing in the record supports the remainder of appellant's ineffective assistance arguments. The record does not show counsel was not attentive during the entire hearing. Moreover, counsel did not have an opportunity to explain himself. 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 or that the results of the proceedings would have been different. See Thompson, 9 S.W.3d at 813; Moore v. State, 227 S.W.3d 421, 427 (Tex.App.-Texarkana 2007, pet. ref'd). We resolve appellant's sole issue against him. We affirm the trial court's judgment in each case.