Nos. 05-04-01739-CR, 05-04-01740-CR
Opinion Issued August 22, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F00-72442-MS, F00-47810-US. Affirmed.
Before Justice FRANCIS, LANG-MIERS, and MALONEY.
The Honorable Frances Maloney, Retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Opinion By Justice MALONEY.
The trial court convicted appellant of aggravated sexual assault of a child and indecency with a child. The judge assessed a fifty-year sentence and a $500 fine in the aggravated sexual assault charge (cause number 04-1739-CR) and twenty-year sentence and a $500 fine in the indecency with a child charge (cause number 04-1739-CR). In one issue, appellant contends he received ineffective assistance of counsel. We affirm the trial court's judgment.
DID APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
Appellant contends the record shows his trial counsel was unprepared for trial, ineffective in cross-examining witnesses, did not call any defense witnesses, and "failed to present persuasive argument." Additionally, appellant alleges it is "common knowledge" this trial judge gives "harsh sentences" and the trial attorney incorrectly advised appellant to "proceed before . . . [this trial judge] based [sic] on the evidence presented." Appellant further complains that trial counsel was "unfamiliar with 'on or about' terminology and the statue of limitations for sex offenses." The State responds that each of appellant's complainants could well be trial strategy. Additionally, the State contends the record does not reveal any evidence of this trial attorney's strategy on appellant's challenged actions or inactions. Finally, the State argues that because this silent record cannot overcome the presumption that trial counsel's assistance was within the range of reasonably professional assistance, we cannot speculate on the nature of this attorney's trial strategy. 1. Applicable Law
We evaluate the effectiveness of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Mallet v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App. 2001) (citing Strickland, 466 U.S. at 693-94). Our courts have interpreted "reasonable probability" as "a probabilitysufficient to undermine confidence in the outcome." Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002) (citing Strickland, 466 U.S. at 687; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986)). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Appellant must show by a preponderance of the evidence that no plausible professional reason exists for a specific act or omission. See id. at 836. We do not necessarily attribute the length of sentence to unprofessional or incompetent trial counsel. See id. When the record is silent regarding the motive behind counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett, 65 S.W.3d at 63. Usually, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Ineffective assistance of counsel must be firmly founded in the record, not on retrospective speculation. See Bone, 77 S.W.3d at 836-37. 2. Application of Law to Facts
Nothing in this record shows that appellant's trial counsel advised him to go trial before this judge and not a jury. Rather, the record shows that trial counsel advised appellant to take the State's plea bargain offer. Nor does going to trial before this trial judge demonstrate that counsel was unprepared for trial and unfamiliar with the trial judge. We can find nothing in the record that affirms appellant's claim that this trial judge gives "harsh sentences." We agree that the trial court could not give probation, and, at arraignment, the trial court admonished appellant on the consequences of a trial before the court. That admonishment included the trial court's inability to grant probation in "these cases" and the range of punishment in each case. Appellant acknowledged that he understood the trial court could not probate any sentence and wanted to proceed to trial before the judge. Nowhere in the record do we find evidence that appellant's trial counsel gave appellant any erroneous information. The only evidence of his trial attorney's advice occurred immediately before trial began when appellant rejected his attorney's advice to accept the State's plea bargain agreement. Trial counsel used cross-examination to point out discrepancies in the witnesses' testimony, including the complaining witness's testimony. Nothing in the record suggests that any witnesses were available to testify in appellant's defense or in mitigation of punishment. Nor does the record contain any evidence of counsel's trial strategy. Finally, appellant does not show a reasonable probability that, but for his trial counsel's unprofessional errors, a different outcome would result. Viewing the record as a whole, we conclude appellant has not met his burden under Strickland to show trial counsel was ineffective. Accordingly, we resolve appellant's issue against him. We affirm the trial court's judgment.