Opinion
No. 05-04-01862-CR
Opinion Filed July 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F00-48649-VH. Affirm as Modified.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
Steven Earl Lawson waived a jury trial and entered a negotiated guilty plea to unlawful possession of methamphetamine in an amount less than one gram. See Tex. Health Safety Code Ann. § 481.115(a), ((b) (Vernon 2003). Pursuant to the plea bargain agreement, the trial court deferred adjudicating guilt, placed appellant on four years' community supervision, and assessed a $1000 fine. Subsequently, the State moved to adjudicate guilt, alleging appellant violated the terms of his supervision. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at two years' confinement in a state jail facility. In a single point of error, appellant contends trial counsel was ineffective in not offering mitigation evidence at punishment. 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 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 reviewing 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 involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; see also Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). Appellant argues that counsel failed to offer mitigating evidence during the punishment hearing. Appellant asserts the trial court had to order an updated presentence investigation report (PSI) because counsel provided no evidence on the issue of punishment. Appellant contends that had counsel presented testimony from appellant's family and friends, appellant would not have received the maximum punishment. The State responds that appellant has failed to show he received ineffective assistance of counsel because the record is silent as to counsel's strategy. We agree with the State. Appellant relies on Andrews v. State, 159 S.W.3d 98 (Tex.Crim.App. 2005), to support his claim that there is no reasonable explanation or legitimate trial strategy for counsel to not offer mitigating evidence during punishment. Appellant's reliance on Andrews is misplaced. Andrews involved trial counsel's failure to object to the prosecutor's misstatement of the law regarding sentencing during the prosecutor's closing argument. See id. at 103. The court held it was one of the rare instances when the record on appeal showed counsel was ineffective because there was no reasonable strategy for not objecting to the misstatement. See id. Andrews is distinguishable from this case in that failing to provide mitigating evidence at punishment is not a misstatement of the law. Although counsel did not offer any evidence in mitigation of punishment during the punishment hearing, in response to the judge's inquiry about whether appellant had a substance abuse problem, counsel asked if the court wanted a PSI. The judge ordered an updated PSI. After reviewing the updated PSI, the trial court assessed the maximum punishment for the offense. See Tex. Health Safety Code Ann. § 481.115(a), (b) (Vernon 2003). The updated PSI stated that appellant was reluctant to talk about his drug use because he did not want to incriminate himself, and appellant said he did not report to the probation department because his probation officer did not write down the appointment times and dates for appellant. Nothing in the record shows counsel's trial strategy, what mitigating evidence, if any, was available, or that appellant's family and friends were available to testify. Thus, appellant has not met his burden of showing trial counsel was ineffective. See Bone, 77 S.W.3d at 833; Rylander, 101 S.W.3d at 111. We overrule appellant's sole issue on appeal. Appellant was sentenced to serve two years in a state jail facility. However, the trial court's judgment incorrectly recites that confinement is in the Institutional Division of the Texas Department of Criminal Justice. We have the power to modify incorrect judgments when we have the necessary information 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 to show the place of confinement is the State Jail Division of the Texas Department of Criminal Justice. As modified, we affirm the trial court's judgment.