Opinion
Nos. 05-04-00511-CR, 05-04-00512-CR, 05-04-00513-CR, 05-04-00514-CR
Opinion Filed October 26, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F97-51857-UV, F97-51858-UV, F97-51859-WV, F03-58392-IV. Affirmed.
Before Justices MORRIS, MOSELEY, and FITZGERALD.
OPINION
Juan Olivares, Jr. appeals his convictions for robbery and aggravated robbery. Appellant originally received a sentence of ten years' confinement, probated for ten years, and a $300 fine in the robbery case (05-04-00511-CR), and ten years' deferred adjudication probation for two aggravated robberies (05-04-00512-CR and 05-04-00513-CR). Appellant was later convicted of a new aggravated robbery (05-04-00514-CR). His probation was revoked in the robbery case and guilt was adjudicated in the two earlier aggravated robbery cases. The judge then sentenced appellant to ten years' confinement for the robbery and forty years' confinement for each aggravated robbery. On appeal, appellant complains he received ineffective assistance of counsel. We affirm. To prevail on a claim of ineffective assistance of counsel, appellant must show 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 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 and methods involved concerning counsel's actions at trial, the 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 counsel failed to offer expert testimony in mitigation of punishment. Appellant asserts that because he was a heroin addict and had been accepted into the Cenikor Program, counsel should have offered medical evidence or testimony regarding appellant's drug addiction and possible treatment. Appellant argues that but for counsel's error, a reasonable probability exists that the trial court would have assessed substantially less punishment. The State responds appellant received effective assistance of counsel and he has not shown that the results of the proceedings would have been different had counsel offered expert testimony. The trial court held a joint hearing that included the State's motion to revoke and motions to proceed with adjudication of guilt, and appellant's plea on the new aggravated robbery offense. Appellant testified he had been a heroin addict for over a year before he committed the new offense and he had used heroin that day. Appellant's wife drove the van while appellant and his uncle robbed an elderly man. Appellant's uncle held the gun. Appellant further testified he contacted Cenikor while he was in jail and was accepted into their treatment program. Other than appellant's bare statements, nothing in the record shows an expert witness was available, what such a witness would have said, or that the testimony would have been favorable. Likewise, nothing in the record shows the results of the proceedings would have been different had counsel offered testimony from an expert witness about appellant's drug addiction and possible treatment. Appellant was on probation for three robbery offenses at the time he committed the new offense. Moreover, once the judge adjudicated appellant guilty of the aggravated robberies, he had no option but to sentence appellant to prison. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon Supp. 2004-05). Nothing shows appellant would have received lesser sentences than those imposed. 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; Rylander, 101 S.W.3d at 111. We overrule appellant's sole point of error. We note that the trial court's judgment in cause no. 05-04-00514-CR incorrectly shows the terms of plea bargain as "40 years TDC." The record shows appellant entered an open guilty plea, not a negotiated plea. 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 appellant entered an open plea. In cause nos. 05-04-00511-CR, 05-04-00512-CR, and 05-04-00513-CR, we affirm the trial court's judgment. In cause no. 05-04-00514-CR, we modify the trial court's judgment to show the terms of plea bargain were "open," and we affirm the trial court's judgment as modified.