Opinion
Nos. 05-06-00752-CR, 05-06-00753-CR
Opinion Filed November 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause Nos. F99-36740-RH, F99-36741-RH. Affirm.
Before Justices BRIDGES, FITZGERALD, and LANG.
OPINION
Antjuan Christopher Houston waived a jury and pleaded guilty to two assault on a public servant offenses. In each case, the trial court deferred adjudicating guilt, placed appellant on five years' community supervision, and assessed a $500. The State later moved to proceed with adjudication of guilt, alleging appellant violated the conditions of his community supervision by committing new offenses. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at ten years' imprisonment in each case. In a single point of error, appellant contends he did not receive effective assistance of counsel during punishment. We affirm. 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 did not receive effective assistance of counsel after adjudication of guilt because counsel failed to object to the sentences, and because the ten-year sentences constitute cruel and unusual punishment, counsel rendered ineffective assistance by failing to timely object on constituional grounds. The State responds that the record does not support appellant's claims that trial counsel was ineffective. The trial court found appellant had violated the conditions of his community supervision by committing burglary of a habitation and sexual contact as alleged in the State's motions to proceed with adjudication of guilt. The trial court then assessed the maximum punishment for the offenses at ten years' imprisonment in each case. See Tex. Pen. Code Ann. §§ 12.34, 22.01 (Vernon 2003 Supp. 2006). Sentences within the statutory punishment range are not constitutionally cruel and unusual. See Kirk v. State, 949 S.W.2d 769, 772 (Tex.App.-Dallas 1997, pet. ref'd). Because the ten-year sentences are not constitutionally cruel and unusual, trial counsel could not be ineffective for failing to object on constitutional grounds. See id. Thus, nothing in the record supports appellant's claims. 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, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We overrule appellant's point of error. We affirm the trial court's judgments.