Opinion
No. 05-10-00992-CR
Opinion issued April 28, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. F09-58293-VY.
Before Justices O'NEILL, FRANCIS, and MYERS.
MEMORANDUM OPINION
Christian Valenzuela appeals his conviction for aggravated robbery. In a single point of error, appellant contends he did not receive effective assistance of counsel. We affirm the trial court's judgment. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. Appellant waived a jury and pleaded guilty to aggravated robbery with a deadly weapon, a firearm. At punishment, Negsh Sherif, the complainant, testified that on August 22, 2009, at about 3:45 a.m., he was working behind the counter at a convenience store in Oak Cliff when two men entered and robbed him. One of the men pointed a gun at Sherif's head while the other man demanded that Sherif open the register. The men took money and cigarettes, then ran from the store. Police officers who were in the area chased the men and apprehended them, but never brought them back to the store for Sherif to identify. Sherif said although the men wore masks over part of their faces, he could tell one was "younger and thinner" than the other. The younger man had the gun and pointed it at Sherif. Sherif could not identify appellant in open court as one of the robbers. Appellant told the court he and his cousin entered the store and that the cousin had the gun. Although appellant testified he was freely and voluntarily pleading guilty to the robbery because he was guilty, he said the cousin was the person who pointed the gun at Sherif's head. Appellant admitted to having a juvenile criminal history, but said he had completed a drug class for a charge of felony possession of marijuana. Although he smoked marijuana while on bond for the aggravated robbery, he was a "changed person" and deserved a second chance. 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). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). 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 Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Appellant contends trial counsel was ineffective because counsel allowed appellant to plead guilty when identification could not otherwise be established. Specifically, appellant asserts that because he was not made aware that Sherif could not identify him, counsel should not have allowed him to enter a guilty plea. Appellant argues that but for counsel's conduct, he would have had a jury trial where he would have probably received a not guilty verdict or a probated sentence. The State responds that appellant has failed to prove that counsel rendered ineffective assistance. Other than appellant's bare statement, nothing in the record shows appellant did not know Sherif could not identify him as one of the robbers. Likewise, nothing in the record shows what counsel discussed with appellant. Appellant did not file a motion for new trial in which he could have complained about counsel's alleged ineffectiveness and requested a hearing on the motion. Thus, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392. Moreover, there is nothing in the record that shows a jury would have found appellant not guilty or assessed probation instead of a prison 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 sole point of error. We affirm the trial court's judgment.