Opinion
Nos. 05-07-00109-CR, 05-07-00110-CR, 05-07-00111-CR
Opinion issued January 22, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court Dallas County, Texas, Trial Court Cause Nos. F06-67936-PH, F06-68645-PH, F06-87083-UH.
Before Justices FitzGERALD, LANG-MIERS, and MAZZANT.
OPINION
Dominique Patrick Freeman waived a jury and pleaded guilty to three counts of burglary of a habitation. See Tex. Pen. Code Ann. § 30.02 (Vernon 2003). The trial court assessed punishment at ten years' imprisonment in each case. In a single issue, appellant contends he did not receive effective assistance of counsel. We affirm the trial court's judgment in each case.
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).
Appellant argues he received ineffective assistance of counsel because counsel presented evidence of appellant's juvenile record. Appellant asserts that because counsel's questioning elicited facts that appellant had been committed to the Texas Youth Commission (TYC) and twice violated his parole from TYC, counsel's questions prejudiced appellant's ability to receive probation. The State responds that appellant has not shown counsel was ineffective and that an unsuccessful trial strategy does not equate to ineffective assistance of counsel.
Before appellant testified during the plea hearing, the trial judge took judicial notice of a presentence investigation report (PSI). Appellant then testified he was living with his girlfriend at the time he committed the burglaries because he had been in the county jail for a TYC violation and his mother had moved to another location by the time he was released from jail. Appellant testified that while he had been in TYC, he received his high school diploma and had an A-plus certification. Appellant testified he was enrolled at a community college in paralegal studies, but did not attend because he was in the county jail for violating his parole. Appellant asked the trial judge to place him on probation because his girlfriend, who committed the burglaries with him, received probation. Appellant further testified he talked with counsel before the hearing about bringing up his juvenile record to the judge and decided to tell the judge "everything we could." The record does not show whether the prosecutor had the information or would have brought the issue up during cross-examination, or if the information was already contained in the PSI. Further, 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. See Rylander v. State, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We resolve appellant's sole issue against him.
In each case, we affirm the trial court's judgment.