Opinion
No. 05-08-01500-CR
Opinion Filed October 27, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 055285-59.
Before Justices MORRIS, BRIDGES, and MURPHY.
OPINION
Clifton Earl-Shane Jones waived a jury and pleaded guilty to aggravated assault with a deadly weapon, a motor vehicle. Pursuant to a plea agreement, the trial court assessed punishment at six years' imprisonment. In a single point of error, appellant contends he was denied effective assistance of counsel. We affirm the trial court's judgment. 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). During the plea hearing, appellant testified he understood his constitutional rights, understood the charges in the indictment, and understood the punishment range for the offense. Appellant told the trial judge he was satisfied with everything his attorney had done for him, that he and his attorney had "plenty of opportunity" to prepare for trial, and that he and his attorney had worked for over a year to be ready for trial, but he decided to take the prosecutor's six-year plea offer. Appellant also testified he was pleading guilty because he was guilty and for no other reason, and that no one forced, coerced, or promised him anything if he entered a guilty plea. One month after the trial court accepted appellant's plea of guilty and imposed sentence in accordance with the plea agreement, appellant filed a motion for new trial and motion to withdraw his guilty plea. During a hearing on that motion, appellant testified his grandmother hired his previous attorney and paid him $15,000 to represent appellant. Appellant met with the attorney only once, but met with the attorney's legal assistant three or four times. Neither the attorney nor his assistant discussed appellant's constitutional rights or the facts surrounding the offense. Appellant testified the attorney forced him to enter the guilty plea, and he maintained he was not guilty of the offense. During cross-examination, appellant testified he lied at the plea hearing when he said no one had forced him to plead guilty. Appellant acknowledged that at one point a trial date had been set for this case, but he and his attorney told the prosecutor that he was going to plead guilty. The prosecutor took the case off the trial docket. During that time, appellant was arrested for a new assault offense. Appellant contends he was denied effective assistance of counsel. Specifically, appellant asserts counsel was ineffective for failing to (1) independently investigate the case, (2) communicate with appellant, and (3) discuss any possible defenses with appellant. Nothing in the record supports appellant's claims. The trial court could choose to believe appellant's testimony during the plea hearing that he had worked with counsel for over a year preparing for trial and disbelieve his testimony during the hearing for the motion for new trial that counsel forced him to enter the guilty plea. Moreover, 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 Thompson, 9 S.W.3d at 813; Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.-Dallas 1999, no pet.). We overrule appellant's sole point of error. We affirm the trial court's judgment.