Opinion
No. 05-04-01392-CR
Opinion issued April 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-80793-03. Affirmed.
Before Justices MORRIS, LANG, and MAZZANT.
OPINION
Jeffrey Michael Couch waived a jury trial and entered a negotiated guilty plea to possession of child pornography. See Tex. Pen. Code Ann. § 43.26 (Vernon 2003). Pursuant to the plea bargain agreement, the trial court deferred appellant's guilt, placed him on community supervision for six years, and assessed a $2000 fine. The State later moved to adjudicate guilt, alleging appellant violated the terms of his community supervision. The trial court found the allegations true, adjudicated appellant guilty, and sentenced him to six years' confinement and a $5000 fine. In a single issue, appellant contends he was denied effective assistance of counsel. We affirm the trial court's judgment. 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). When faced with a silent record as to defense counsel's strategy, the reviewing court will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). 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; see also Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). Appellant argues he was denied effective assistance of counsel because counsel failed to object to damaging testimony from the probation officer and to cross-examine witnesses leading up to the State's motion to adjudicate. However, no appeal may be taken from the trial court's decision to proceed with adjudication of guilt. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004-05); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Thus, we do not have jurisdiction to address this portion of appellant's complaint. Appellant also argues counsel failed to advocate on appellant's behalf for continued community supervision. After the trial court adjudicated appellant guilty, it heard testimony from appellant during the punishment phase. Appellant testified he wanted to explain why he did not complete his community service hours, which was one of the conditions of community supervision the trial court had found appellant had violated. During closing arguments, appellant's counsel requested that the court impose a sentence less than the five years advocated by the State, and counsel specifically asked for a maximum three-year prison term. Counsel did not advocate for appellant to remain on community supervision. The record reflects appellant absconded from his community supervision and violated other conditions. The record does not reflect what trial counsel's strategy was, nor does the record reflect that the court would have placed appellant on community supervision after adjudicating him guilty if counsel had requested the court to do so. We conclude appellant has not met his burden to show he received ineffective assistance of counsel. See Bone, 77 S.W.3d at 833. We resolve appellant's sole issue against him. We affirm the trial court's judgment.