Opinion
No. 05-03-01205-CR.
Opinion issued March 29, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 366th Judicial District Court, Collin County, Texas, Trial Court Cause No. 366-80016-03. Affirmed.
Before Justices JAMES, WRIGHT, and BRIDGES.
MEMORANDUM OPINION
A jury found Isaac Montreal Cook guilty of aggravated robbery with a deadly weapon. Punishment was assessed at sixty-five years confinement. In his sole point of error, appellant complains he received ineffective assistance of counsel because his trial attorney did not object to the absence of a transfer order. We affirm the trial court's judgment as modified. To prevail on a claim of ineffective assistance of counsel, appellant must show counsel's performance fell below an objective standard of reasonableness and there is a reasonable probability that but for counsel's errors, there would have been a different result in the proceeding. 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 Bone, 77 S.W.3d at 833. When faced with a silent record as to defense counsel's strategy, appellate courts will not speculate as to counsel's tactics and will presume sound strategy. See Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim. App. 1999). Appellant contends counsel was ineffective because she did not file a plea to the jurisdiction complaining of the absence of a transfer order from the 401st Judicial District Court to the 366th Judicial District Court, out of which appellant's conviction was obtained. Appellant argues that had counsel objected, the plea would have been sustained and the proceedings continued until a transfer order was obtained. The State responds that the record is silent as to trial counsel's strategy, counsel was not ineffective in not objecting to the lack of a transfer order because the indictment was returned in the 366th Judicial District Court, and appellant has not shown the result would have been different. We agree with the State. The record does not reflect that this case was ever filed in the 401st Judicial District Court. Rather, the record reflects that the 401st Judicial District Court presided over the grand jury, and the "Collin County Grand Jury Report" contained in the supplemental clerk's record reflects the indictment was returned to the 366th Judicial District Court. Moreover, nothing in the record shows the trial could not have proceeded in the 366th Judicial District Court or that appellant would not have been convicted and sentenced had an objection been made. Other than his bare statements, appellant has not shown the results of the proceeding would have been different. Thus, we conclude appellant has not met his burden of showing ineffective assistance of counsel. See Strickland, 466 U.S. at 687-88, 694; Bone, 77 S.W.3d at 833. We overrule appellant's sole point of error. We note, however, that the trial court's judgment does not accurately reflect the proceedings. The judgment reflects appellant pleaded guilty. However, appellant pleaded not guilty to the offense. We may modify the trial court's judgment when we have the necessary information before us to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the "plea to offense" section of the trial court's judgment to show appellant pleaded "not guilty." As modified, we affirm the trial court's judgment.