Opinion
No. 05-09-00265-CR
Opinion issued June 22, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-33431-MT.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Jose Luis Hernandez appeals his conviction for possession with intent to deliver four grams or more but less than 200 grams of cocaine. Appellant entered an open plea of guilty, and the trial court assessed punishment, enhanced by a prior conviction, at fifteen years in prison and a $500 fine. In two issues, appellant contends the trial court failed to give appellant a fair trial on the issue of punishment and he received ineffective assistance of counsel. We affirm the trial court's judgment. After entering his open plea, the trial court found him guilty and continued the case until a presentence investigation was completed. At the punishment hearing, appellant, appellant's wife, and appellant's sister testified. During the sister's testimony, the State asked her if she was aware appellant would be deported again if he was convicted of a first degree felony. Appellant objected "on the legal ground that that's in the future and it's not a sure thing." The trial court responded, "I won't presume anything." At the conclusion of the hearing, the trial court sentenced appellant to fifteen years in prison and a $500 fine. In his first issue, appellant argues the trial court erred when it sentenced appellant to fifteen years in prison because it based its sentencing decision on speculation that appellant would be deported. Appellant claims that, in doing so, the trial court failed to consider the full range of punishment in light of the admitted evidence. Appellant did not complain about the trial court's decision either at the time the sentence was pronounced or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.) (for error to be preserved for appeal, the record must show appellant made a timely request, objection, or motion). Because he did not object, we conclude he has not preserved this issue for our review. Furthermore, to the extent he claims the trial court failed to consider the full range of punishment, we disagree. Appellant pleaded guilty to possession with the intent to deliver four grams or more but less than 200 grams of cocaine and true to a prior conviction for a similar offense. The trial court could place appellant on deferred adjudication or any term not more than 99 years or less than 15 years. The record shows appellant, at the time of his arrest, had two grams of cocaine in a bag in his pants pocket. He admitted paying $50 for this cocaine. In addition, he was in possession of over $1300 cash and a "Crown Royal bag that had 16 bags of cocaine in it and a metal tin inside that Crown Royal bag that had another 24 bags of cocaine," all similarly packaged to the bag in appellant's pants pocket. The evidence also showed appellant had been previously convicted of selling drugs and deported. Nothing in the record shows the trial court did not consider the full range of punishment. In fact, the trial court's statement that "this might have been a probation case under any other circumstances" indicates the court contemplated deferred adjudication but rejected it in light of the circumstances of appellant's case. We overrule his first issue. In his second issue, appellant claims he received ineffective assistance of counsel. Specifically, appellant claims counsel failed to insist the trial court follow the "mandatory instructions of Texas Code of Criminal Procedure Article 42.12 to order an evaluation of [appellant's] need for drug rehabilitation." In a challenge to the effectiveness of counsel, appellant has the burden to show by a preponderance of the evidence (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the defendant such that but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. The court of criminal appeals has made clear that in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Appellant did not file a motion for new trial, and the record provides no discussion of trial counsel's purported errors. Although the record shows the trial court ordered a PSI, the report is not part of the record. Nothing in the record supports appellant's claim that the PSI did not include the "required drug and alcohol evaluation and rehabilitation plan." Because the record is silent regarding the contents of the PSI as well as any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003) (record insufficient to support conclusion appellant received ineffective assistance of counsel because appellant did not develop record in trial court for purpose of establishing claim); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We overrule appellant's second issue. We affirm the trial court's judgment.