Opinion
No. 05-06-00783-CR.
Opinion Filed December 12, 2006. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court No. 7, Dallas County, Texas, Trial Court Cause No. MB03-44351H AFFIRMED
Before Justices WHITTINGTON, MOSELEY, and O'NEILL
OPINION
A jury convicted William Thomas Morgan of driving while intoxicated and assessed punishment at thirty days' confinement in the county jail and a $2000 fine. See Tex. Pen. Code Ann. § 49.04 (Vernon 2003). In a single issue, appellant contends he did not receive 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). Appellant argues counsel conducted only minimal cross-examination of the arresting officer, did not call any witnesses, and prejudiced appellant's defense by her ineffectivness. The State responds that appellant has not shown counsel was ineffective. The record shows trial counsel made objections, cross-examined the arresting officer, and made closing arguments. Nothing shows whether any witnesses were available or if their testimony would have been beneficial to appellant. Although appellant filed a motion for new trial alleging ineffective assistance of counsel, no hearing was held on the motion. Thus, counsel did not have an opportunity to explain herself. See Goodspeed, 187 S.W.3d at 392. Nothing in the record supports appellant's claims. 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 resolve appellant's issue against him. We affirm the trial court's judgment.