Opinion
Nos. 05-06-01339-CR, 05-06-01340-CR, 05-06-01341-CR
Opinion Filed July 20, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F06-61054-VU, F06-61055-VU, F06-61056-VU.
Before Justices WRIGHT, RICHTER, and LANG.
OPINION
Christopher Jesus Sevier waived a jury and pleaded guilty to two counts of aggravated robbery with a deadly weapon, a firearm, and evading arrest or detention while using a vehicle. See Tex. Pen. Code Ann. §§ 29.02, 29.03, 38.04 (Vernon 2003). The trial court assessed punishment at thirty years' imprisonment and a $2000 fine for each aggravated robbery, and two years in a State jail facility and a $1500 fine for evading arrest. In two points of error, appellant contends his guilty pleas were involuntary because he believed he would receive drug treatment, and ineffective assistance of counsel rendered his guilty pleas involuntary. We affirm the trial court's judgments. In his first point of error, appellant argues his guilty pleas were involuntary because he was seeking drug treatment and believed he would receive drug treatment. Appellant asserts he did not understand the consequences of his guilty pleas and turned down a twenty-year plea offer from the prosecutor in order to receive drug treatment. The State responds that the record shows appellant's guilty pleas were voluntary. The trial court admonished appellant both orally and in writing in these cases. See Tex. Code Crim. Proc. Ann. art. 26.13(a), (c) (Vernon Supp. 2006); Kirk v. State, 949 S.W.2d 769, 771 (Tex.App.-Dallas 1997, pet. ref'd). During the plea hearing, appellant testified he understood the charges in the indictments and the punishment ranges for the offenses, and was freely and voluntarily pleading guilty to the charges in the indictments. Appellant's signed judicial confessions were offered into evidence without objection. During the sentencing hearing, appellant testified he had used drugs for four years, and wanted the judge to give him probation with in-patient drug treatment. The fact that appellant received greater punishment than he hoped for does not render his pleas involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex.App.-Dallas 1993, no pet.). Having reviewed the records, we conclude appellant's guilty pleas were voluntary. See Kirk, 949 S.W.2d at 771. We overrule appellant's first point of error. In his second point of error, appellant argues he did not receive effective assistance of counsel because counsel failed to have him examined for drug treatment, which would have bolstered his plea to the judge for drug treatment. The State responds that the records do not reflect that appellant was denied effective assistance of counsel. 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). During the plea hearing, appellant testified that counsel explained the "papers" to him and he understood them. After entering open guilty pleas to the charges in the indictments, the trial court passed these cases for a presentence investigation report and sentencing. During the sentencing hearing, appellant admitted he committed two aggravated robberies while using a firearm and led police officers on a high-speed chase when they tried to apprehend him after the robberies. Appellant testified he had used drugs just hours prior to the offenses and needed drug treatment. Appellant also testified he did not receive any drug treatment when he had been on probation for a previous offense. Nothing in the record supports appellant's claims. Nothing shows whether the trial court would have given appellant probation even if counsel had appellant evaluated for drug treatment. Further, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392. We conclude appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective or that his guilty pleas were involuntary. See Thompson, 9 S.W.3d at 813; Thomas v. State, 2 S.W.3d 640, 642 (Tex.App.-Dallas 1999, no pet.); Kirk, 949 S.W.2d at 771. We overrule appellant's second point of error. The trial court's judgment is affirmed in each case.