Opinion
No. 05-04-00118-CR
Opinion Filed October 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 296th Judicial District Court, Collin County, Texas, Trial Court Cause No. 296-81293-02. Affirmed.
Before Justices O'NEILL, LANG, and LANG-MIERS.
OPINION
A jury convicted Jemail Yemeil Grant of two aggravated sexual assault of a child offenses and the judge assessed punishment at life imprisonment for each offense. In a single point of error, appellant contends that this case should be reversed and remanded for new trial because of the ineffectiveness of his trial counsel. We affirm the trial court's judgment as modified. 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 that 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 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 and methods involved concerning counsel's actions at trial, the court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814. Appellant argues that his trial counsel was ineffective because he did not file a plea to the trial court's jurisdiction. Appellant asserts that the indictment was returned in the 380th Judicial District Court, but that his case was tried in the 296th Judicial District Court. He contends that because there was no order transferring the case from the 380th Judicial District Court to the 296th Judicial District Court, trial counsel was ineffective because he did not raise that issue below. Appellant argues that but for counsel's deficient performance, there is a reasonable probability that the plea to the jurisdiction would have been sustained and that the case would have been continued until a proper transfer order was rendered. The State responds that no order to transfer was needed because the 380th Judicial District Court organized a grand jury, but was never assigned the case after indictment. Instead, the 296th Judicial District Court was assigned the case. Additionally, the State contends that appellant fails to show how he was harmed by counsel's alleged failures or that the results of the proceeding would have been different if the objection to the jurisdiction had been made. We agree with the State. Although counsel did not file a plea to the trial court's jurisdiction, nothing in the record shows that the case was originally filed in the 380th Judicial District Court and was transferred to the 296th Judicial District Court or that the trial would not have proceeded in the 296th Judicial District Court even if an objection had been made. As a result, appellant has not demonstrated that his counsel was ineffective. Additionally, appellant has not shown that the results of the proceeding would have been different had counsel objected about the absence of a transfer order. Thus, we conclude that appellant has not met his 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. We overrule appellant's sole point of error. Finally, the trial court's judgment as to Count III does not accurately reflect the proceedings. The judgment reflects that appellant was convicted of aggravated sexual assault of a child and sentenced to twenty years' confinement. However, the trial court assessed punishment at life imprisonment for the two aggravated sexual assault of a child offenses. 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 trial court's judgment as to Count III to show appellant was sentenced to life imprisonment. We affirm the trial court's judgment as to Count I. We affirm the trial court's judgment as to Count III as modified.
The reporter's record reflects that the court also sentenced appellant to twenty years' confinement for an indecency with a child conviction, to run concurrently with the life sentences appellant received for each aggravated sexual assault of a child conviction. However, the record also reflects that the jury found appellant guilty of two offenses of sexual assault of a child but that there was no conviction for indecency with a child.