Opinion
No. 05-08-01457-CR
Opinion issued September 14, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 204th Judicial District Court Dallas County, Texas, Trial Court Cause No. F08-23785-MQ.
Before Justices MORRIS, BRIDGES, and MURPHY.
OPINION
Phillip Jerome Taylor waived a jury and pleaded guilty to retaliation. Pursuant to a plea agreement, the trial court assessed punishment at ten years' imprisonment, probated for three years, and a $1000 fine. The State later moved to revoke appellant's community supervision, alleging he violated the conditions of community supervision. Appellant pleaded true to the allegations in a hearing on the motion. The trial court found the allegations true, revoked appellant's community supervision, and assessed punishment at ten years' imprisonment. In two points of error, appellant contends he did not receive effective assistance of counsel, and the trial court abused its discretion by sentencing him to prison. We affirm the trial court's judgment. In his first point of error, appellant contends counsel was ineffective for not investigating and presenting evidence of his mental health issues. The State responds that appellant was not deprived of the 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 a hearing on the motion to revoke, the record shows appellant's counsel presented evidence relevant to appellant's competency and mental health issues. Counsel told the trial judge that appellant had been evaluated for competency by The Pittman Group and was found competent. Counsel also had appellant undergo a psychiatric examination, and stated that a copy of the report was contained in the court's file. The trial judge took judicial notice of the contents of the court's file, and announced that the "dual diagnosis/psychological evaluation" of appellant was in the file. During his testimony, appellant admitted he repeatedly made telephone contact with the complainant while on probation and left her recorded messages that said, "[I] ain't scared. I won't be in jail forever; I'm gonna slit your throat and cut your baby out." Notwithstanding appellant's testimony, counsel asserted, during final argument, that appellant had a mental illness and should get treatment rather than a long prison sentence. Nothing in the record supports appellant's claim. The record shows counsel had a psychiatric evaluation administered to appellant prior to the revocation hearing, and the trial court took appellant's mental health issues into account before revoking his community supervision and assessing the ten-year sentence. 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; Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.-Dallas 1999, no pet.). We overrule appellant's first point of error. In his second point of error, appellant contends the trial court abused its discretion and violated the rehabilitation objectives of the Texas Penal Code by sentencing him to a prison term because the sentence was not necessary to prevent the recurrence of any criminal behavior. Appellant asserts the evidence shows he was severely mentally ill and should have been placed on probation with mental health treatment. The State responds that appellant has failed to preserve his complaint for appellate review and, alternatively, the sentence is authorized by statute. Appellant did not complain about the sentence either at the time it was imposed or in a motion for new trial. See Tex. R. App. P. 33.1(a)(1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Moreover, the trial court imposed punishment within the statutory range for the offense. See Tex. Pen. Code Ann. §§ 12.34, 36.06(a) (Vernon 2003 Supp. 2008); Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). We conclude the trial court did not abuse its discretion in assessing the ten-year sentence. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). We overrule appellant's second point of error. We affirm the trial court's judgment.