Opinion
No. 05-06-00366-CR
February 22, 2007. DO NOT PUBLISH.
Appeal from the 195th Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-24332-UN.
Before JUSTICES WHITTINGTON, MOSELEY and O'NEILL. Opinion By JUSTICE O'NEILL.
OPINION
Appellant appeals his conviction for indecency with a child. After finding appellant guilty, the trial court assessed punishment, enhanced by a prior felony conviction, at life confinement. In his sole point of error, appellant contends he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment. The grand jury indicted appellant for indecency with a child under seventeen years of age. At trial, the State presented evidence that appellant sexually assaulted his stepdaughter when she was thirteen years old. At punishment, appellant pleaded true to an enhancement allegation that he had a prior conviction for "rape." The State presented a pen packet showing appellant also had four prior convictions for indecency with a child. In addition to the pen packet, the State presented the testimony of the victims in the indecency cases. Appellant stipulated that he was the same person previously convicted in those cases. The trial court sentenced appellant to life imprisonment. In his sole point of error, appellant contends his counsel was ineffective for failing to object to the pen packet showing his prior indecency convictions. He asserts counsel should have objected because the judgments showing the indecency convictions were not properly authenticated. To prevail on an ineffective assistance claim, a defendant must show: (1) counsel's performance was deficient, and (2) there exists a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). An appellant has the burden of showing ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Castaneda v. State, 135 S.W.3d 719, 721 (Tex.App.-Dallas 2003, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). When the record is silent regarding counsel's reasons for his conduct, we defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002). Here, appellant contends counsel was ineffective for failing to object to his pen packet because the indecency convictions contained therein were not properly authenticated. However, the victims in the indecency cases testified at punishment. Appellant does not dispute that this testimony was properly admitted. The pen packet showed appellant pleaded guilty in the indecency cases and was being punished for those offenses. We cannot conclude counsel's failure to object to the pen packet was not sound strategy. We resolve the sole issue against appellant and affirm the trial court's judgment.