Opinion
Nos. 05-05-00149-CR, 05-05-00150-CR
Opinion Issued September 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F03-18342-WL, F03-49061-RL. Affirm.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
OPINION
Burke Bouvier Rogers waived a jury trial and entered negotiated guilty pleas to unlawful possession of a firearm by a felon and evading arrest or detention while using a vehicle. See Tex. Pen. Code Ann. §§ 38.04, 46.04 (Vernon 2003 Supp. 2004-05). The trial court deferred adjudicating guilt, placed appellant on nine years' community supervision, and assessed a $750 fine in each case. Later, the trial court granted the State's motions to proceed with adjudication of guilt, adjudicated appellant guilty, and sentenced him to ten years' imprisonment in each case. In a single issue, appellant contends he did not receive effective assistance of counsel. We affirm. 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 available evidence in mitigation of punishment. Appellant asserts counsel offered only the limited testimony of appellant's wife and that no testimony was offered from family or friends about appellant's personal history, relationship with his family, or why appellant deserved punishment in the lower range. Appellant contends there is a reasonable probability that had counsel offered evidence in mitigation of punishment, appellant would have received substantially less 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 of criminal appeals 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 of law. See id.Andrews is distinguishable from this case. Failure to offer mitigating evidence at punishment is not a misstatement of the law. Here, counsel offered testimony from appellant's wife. Nothing in the record shows counsel's trial strategy, whether appellant's other family members or friends were available to testify, that their testimony would have been favorable to appellant, or what other mitigating evidence existed. 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. We affirm the trial court's judgment in each case.