Opinion
No. 05-03-00611-CR
Opinion Filed January 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 401st Judicial District Court, Collin County, Texas, Trial Court Cause No. 401-81554-02. Affirm.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINION
Walter Waller appeals his conviction for injury to a child. After appellant pleaded guilty without the benefit of a plea bargain agreement, the trial court assessed punishment at confinement for thirty years. In a single issue, appellant contends he did not receive the effective assistance of counsel at trial. We overrule appellant's issue and affirm the trial court's judgment. Appellant complains he received ineffective assistance of counsel, which rendered his plea involuntary. Appellant contends counsel gave him erroneous advice about the use of a prior felony to enhance his punishment and did not attempt to withdraw appellant's plea after the advice was corrected. Appellant also complains about counsel's failure to object to and obtain certain evidence as well as counsel's failure to present an adequate closing argument. According to appellant, but for counsel's deficient performance, he would not have entered the plea. The State responds that the record does not show counsel's alleged acts or omissions were not part of a reasonable trial strategy or that appellant was harmed by counsel's representation. To prevail on his claim, appellant must show 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. See 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). In the context of a guilty plea, appellant must show that but for counsel's deficient performance, he would not have pleaded guilty and would have insisted upon going to trial. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex.Crim.App. 1999). When faced with a silent record as to defense counsel's strategy, we will not speculate as to counsel's tactics or reasons for taking or not taking certain actions. See 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, we presume sound trial strategy. See Thompson, 9 S.W.3d at 814. Specifically, appellant argues counsel (1) erroneously advised him to plead guilty because if he went to trial, the State would enhance his punishment with a prior felony conviction; (2) failed to attempt to withdraw his guilty plea; (3) failed to adequately explain the law concerning lesser-included offenses; (4) failed to object to certain evidence; (5) elicited certain evidence; (6) failed to subpoena his psychiatric or medical records; and (7) presented an inadequate closing argument. According to appellant, but for counsel's failures or actions, the outcome of the proceedings would have been different. The State responds the record fails to show counsel provided ineffective assistance and that appellant's guilty plea was not voluntary. We agree with the State. At the plea hearing and again at the sentencing hearing, appellant testified he understood the charge in the indictment and the punishment range of five to 99 years. Appellant further testified at both hearings that he was freely and voluntarily pleading guilty to the offense of injury to a child and that he voluntarily signed a stipulation of evidence to the offense. At the sentencing hearing, appellant indicated that he pleaded guilty because his attorney told him that if he were to go to trial, the State would use a prior felony conviction to enhance punishment, raising the minimum sentence from five to fifteen years. The trial court informed appellant that the prior conviction could not be used to enhance punishment because it was not yet a final conviction. However, when questioned by the trial court, appellant stated that although he was previously unaware that the felony conviction could not be used for enhancement purposes, knowing did not change "anything about the way [he] wish[ed] to proceed with [his] case." After reviewing the entire record, we cannot conclude it affirmatively demonstrates appellant's allegations of ineffectiveness. The majority of appellant's complaints concern matters of trial strategy. See, e.g., Mallett v. State, 65 S.W.3d 59, 64 (Tex.Crim.App. 2001) (decision not to request guilty plea); Duckworth v. State, 89 S.W.3d 747, 752 (Tex. App.-Dallas 2002, no pet.) (closing argument); Gill v. State, 111 S.W.3d 211, 217 (Tex. App.-Texarkana 2002, no pet.) (failure to object to extraneous offense evidence); Stroman v. State, 69 S.W.3d 325, 332 (Tex. App.-Texarkana 2002, pet. ref'd) (counsel may make strategic decision to allow certain evidence in an attempt to appear open and honest); Vasquez v. State, 2 S.W.3d 355, 360 (Tex. App.-San Antonio 1999, pet. ref'd) (failure to object to autopsy photographs). Because appellant did not file a motion for new trial, the record provides no explanation of the motivation behind counsel's decisions. Thus, we presume counsel's strategy was sound. See Thompson, 9 S.W.3d at 814. Nor does the record support appellant's allegations of harm. With respect to erroneous advice regarding punishment enhancement, appellant indicated that having the correct information would not change anything about the way he wished to proceed. Likewise, the record does not show harm with respect to counsel's failure to provide appellant's medical and psychiatric reports. Our record does not contain these reports and we will not speculate about whether these records would have changed the outcome of the proceeding. Moreover, evidence of appellant's diagnosis of ADHD and learning disabilities was before the trial court. Other than his bare statements, appellant has not shown by a preponderance of the evidence that counsel was ineffective or that the results of the proceeding would have been different. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. Nothing in the record shows appellant would not have pleaded guilty to the offense, and that counsel's trial strategy was unsound. See Thompson, 9 S.W.3d at 814. We conclude appellant has not shown he would not have pleaded nolo contendere or that the results of the proceeding would have been different. Therefore, appellant has not met his burden of proving by a preponderance of the evidence that counsel was ineffective. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 813. We overrule appellant's sole issue. Accordingly, we affirm the trial court's judgment.