Opinion
No. 05-06-01605-CR
Opinion Filed January 22, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5 Dallas County, Texas, Trial Court Cause No. F05-52150-SL.
Before Justices, MORRIS, WRIGHT, and MOSELEY.
OPINION
Phelom Ray Lewis, Jr. waived a jury, pleaded guilty to aggravated robbery with a deadly weapon, a firearm, and true to one enhancement paragraph. See Tex. Pen. Code Ann. § 29.03(a) (Vernon 2003). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $2000 fine. The State later moved to proceed with adjudication of guilt, alleging appellant violated the conditions of his community supervision. The trial court granted the State's motion, adjudicated appellant guilty, and assessed punishment at fifteen years' imprisonment. In a single issue, appellant contends he did not receive effective assistance of counsel. The State brings a cross-point seeking to correct an error in the judgment. 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). 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 trial counsel was ineffective because counsel failed to object to the absence of a separate punishment hearing, did not offer any evidence in mitigation of punishment, and should have offered testimony from appellant's family members. Appellant contends that but for counsel's ineffectiveness, the trial court would have assessed less punishment. The State responds that appellant has not shown counsel was ineffective because appellant had an opportunity to present mitigation evidence and the trial court assessed a sentence at the low end of the punishment range. During a hearing on the motion to proceed with adjudication of guilt, appellant testified he was ordered to participate in drug treatment at the Seidler House. Appellant left drug treatment on the second day because he had an "altercation" with one of the counselors. Appellant testified he stayed away from drug treatment for three months because he was looking for work. When he could not find work because of an outstanding warrant for his arrest, he turned himself in. There is no absolute right to a separate punishment hearing, but a defendant must have an opportunity to present evidence in mitigation of punishment. See Pearson v. State, 994 S.W.2d 176, 178 (Tex.Crim.App. 1999). Here, the record shows appellant had the opportunity to present evidence during the proceedings. It is immaterial that the presentation of this evidence occurred before the actual words of adjudication. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex.Crim.App. 1999). We conclude counsel was not ineffective for failing to object to a separate punishment hearing when no such hearing was required. See Pearson, 994 S.W.2d at 178; Hardeman, 1 S.W.3d at 691. Moreover, nothing in the record supports the remainder of appellant's ineffective assistance arguments. The record does not show what family members, if any, were available or what evidence they would have offered. 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 v. State, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We resolve appellant's sole issue against him. In a cross-point, the State asks us to modify the trial court's judgment to reflect an affirmative deadly weapon finding. The records show the trial court made an affirmative finding that appellant used or exhibited a deadly weapon, a firearm, during the commission of the offense. However, the trial court's judgment states "N/A" under "Findings on Deadly Weapon." Thus, the trial court's judgment is incorrect. We sustain the State's cross-point. We modify the trial court's judgment to show an affirmative deadly weapon finding. 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). As modified, we affirm the trial court's judgment.