Opinion
Nos. 05-04-00448-CR, 05-04-00449-CR, 05-04-00450-CR
Opinion Filed: November 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 15th Judicial District Court, Grayson County, Texas, Trial Court Cause Nos. 051320, 047935, and 047934. Affirm, Dismiss.
Before Justices BRIDGES, RICHTER, and LANG.
OPINION
Morris Robert Sanders, Jr. waived a jury trial and entered negotiated guilty pleas to forgery of a financial instrument and burglary of a habitation (05-04-00449-CR and 05-04-00450-CR). Pursuant to the plea bargain agreements, the trial court deferred adjudicating guilt, placed appellant on five years' probation, and assessed a $500 fine in each case. The State moved to proceed with adjudication of guilt, alleging various violations, including that appellant committed new offenses. At a joint hearing, appellant pleaded true to th allegations in the motion to adjudicate and guilty to the new offense of attempted burglary of a habitation (05-04-00448-CR). The trial court found the allegations in the motion to adjudicate true, adjudicated appellant guilty, and sentenced him to two years in a state jail facility for the forgery and twelve years' confinement for the burglary. The judge also found appellant guilty of attempted burglary and sentenced him to ten years' confinement. In two points of error, appellant contends he received ineffective assistance of counsel. For the reasons stated below, we dismiss the appeals in cause nos. 05-04-00449-CR and 05-04-00450-CR. We affirm the trial court's judgment in cause no. 05-04-00448-CR. In his first point of error, appellant argues trial counsel failed to properly admonish him regarding the consequences of deferred adjudication probation before he entered his guilty pleas in cause nos. 05-04-00449-CR and 05-04-00450-CR. The State responds that this Court is without jurisdiction to hear appellant's complaints regarding the original plea proceedings. We agree. Appellant's complaints about his original guilty pleas are too late. A defendant placed on deferred adjudication probation may raise issues related to the original plea proceedings only in appeals taken when deferred adjudication probation is first imposed. See Manuel v. State, 994 S.W.2d 658, 661-62 (Tex.Crim.App. 1999); see also Clark v. State, 997 S.W.2d 365, 368 (Tex.App.-Dallas 1999, no pet.). Thus, we do not have jurisdiction to address appellant's complaints. Accordingly, we dismiss appellant's first point of error. In his second point of error, appellant argues he received ineffective assistance of counsel during the punishment hearing related to the attempted burglary case. Appellant contends that because counsel offered appellant's wife as the sole witness and only elicited routine information about appellant, counsel provided ineffective assistance. The State responds counsel provided effective assistance at the punishment hearing. 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 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). At the joint hearing, appellant testified he discussed the charges and any defenses he might have with counsel, and he was satisfied with counsel and had no complaints he wanted to make to the judge. Appellant testified he was pleading guilty to the attempted burglary offense because he attempted to enter a neighbor's house through the attached garage. However, the neighbor came home and caught appellant. Appellant testified he had been a drug user for thirty-five years and he committed his crimes to get money for drugs. Appellant asked the judge to sentence him to only five years so he could get off drugs. Appellant's counsel called appellant's wife as a witness for the defense. Mrs. Sanders testified she and appellant have been together for about thirteen years and they had one daughter. She further testified that when appellant's twin sister died in a car accident, appellant went on a drug binge. She asked the judge to sentence appellant to only five years so he could get help. Other than appellant's bare statements, nothing in the record shows the results of the proceedings would have been different had counsel offered testimony from appellant's wife about appellant's work history, community involvement, or lack of violent nature. 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 second point of error. In cause nos. 05-04-00449-CR and 05-04-00450-CR, we dismiss the appeals for want of jurisdiction. In cause no. 05-04-00448-CR, we affirm the trial court's judgment.