Opinion
Nos. 05-05-00505-CR, 05-05-00506-CR
Opinion issued February 1, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F03-26702-SL, F03-56602-L. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
April Dawn Taylor waived a jury trial, entered negotiated guilty pleas to burglary of a habitation and possession of cocaine in an amount less than one gram, and pleaded true to one enhancement paragraph. Pursuant to the plea agreements, the trial court found the enhancement paragraph true, deferred adjudicating guilt, placed appellant on community supervision for ten years and five years, respectively, and assessed a $750 fine in each case. The State later moved to proceed with adjudication of guilt, alleging appellant violated the terms of her community supervision. At a hearing on the motion, appellant pleaded true to the allegations and presented evidence about her drug addiction and the violations. The trial court found the allegations true, adjudicated appellant guilty in each case, and sentenced her to five years' imprisonment for burglary of a habitation and two years' confinement in a state jail facility for possession of cocaine. In a single issue, appellant contends she did not receive effective assistance of counsel. We affirm the trial court's judgments. Appellant argues counsel failed to object to the absence of a separate punishment hearing and failed to offer any evidence in mitigation of punishment. Appellant asserts that but for counsel's ineffective representation, the trial court would have assessed substantially less punishment. The State responds that appellant has not met her burden to show counsel was ineffective, and a separate punishment hearing was unnecessary because appellant had the opportunity to offer her testimony. We examine ineffective assistance of counsel claims under the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant's burden is to show by a preponderance of the evidence that (i) trial counsel's performance fell below the prevailing professional norms, and (ii) counsel's deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Although we examine the totality of counsel's representation to determine whether appellant received effective assistance, we do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. See id. An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Goodspeed v. State, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 2005); Thompson, 9 S.W.3d at 812. Direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped. See Goodspeed, 2005 WL 766996, at *2. In most cases, a silent record provides no explanation for counsel's actions and, therefore, will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Although appellant filed motions for new trial, the complaint raised in her motions were that the "evidence was insufficient to support the verdict." Her motion did not allege she received ineffective assistance of counsel. Thus, the record provides no discussion of trial counsel's purported errors, nor does it contain any discussion of counsel's trial strategy. Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met her burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003) (appellant did not develop a record in the trial court for the purpose of establishing claim); Jackson v. State, 877 S.W.2d 768, 772 (Tex.Crim.App. 1994) (appellate court not required to speculate about counsel's decision-making processes or why counsel acted or failed to act in a particular manner). We resolve appellant's sole issue against her. We affirm the trial court's judgment in each case.