Opinion
Nos. 05-04-01183-CR, 05-04-01184-CR, 05-04-01185-CR
Opinion Filed June 3, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-56565-QP, F03-74296-P, and F03-74463-IP. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
Appellant Christopher Danyell Watson pleaded guilty to three charges of aggravated robbery with a deadly weapon. The trial court assessed punishment at thirty years' confinement for each offense. In this appeal, Watson charges the trial court erred in not continuing the punishment hearing long enough for Watson's mother to testify on his behalf and that he received ineffective assistance of counsel because his attorney did not file a motion seeking such a continuance. We affirm the trial court's judgment. The punishment phase of the trial opened at nine o'clock the morning of July 2, 2002. The State called four witnesses, each of whom had been a victim of one of the robberies. The witnesses recounted their experiences at the hands of Watson and his codefendant. The State rested, and Watson was called to testify in his own defense. Watson admitted he had two previous felony convictions. He testified that he had been using drugs on a regular basis and that he performed the robberies, in part, to support his habit. He acknowledged that he held the gun at two of the robberies. His testimony was completed at twenty-four minutes past eleven o'clock. Watson's counsel explained to the judge that he had called Watson's house at about nine thirty, and he had been told that Watson's mother was trying to get to the courthouse. Counsel said he would like to have her testify if there was any possible way to do so. The judge asked to be told by noon if she had arrived. Court reconvened shortly after two o'clock in the afternoon, and Watson's mother was still not present. Counsel stated on the record that he believed she had in fact arrived at the courthouse earlier but that, due to some misdirection, she had returned home. Counsel stressed she was not absent because of "indifference." The judge promised not to draw any inference from the mother's absence, but opined that the mother had been given sufficient time to come from her home in Dallas. Watson's counsel replied, "No problem, Judge," and rested. The record does not indicate whether Watson's mother ever arrived at the courthouse to testify. Nor does it contain any indication of what her testimony would have been had she testified. Watson's first point argues that the trial court abused its discretion by proceeding to sentencing rather than delaying long enough to allow Watson's mother to testify. Watson points us to no authority establishing an obligation on the trial court's part to delay proceedings for the untimely arrival of a witness described by the defense as a character witness. Our review of the record indicates the court was more than accommodating in delaying sentencing for almost three hours. When the court suggested the delay come to an end, counsel did not object or move for a continuance. We see no basis for concluding the trial court abused its discretion by proceeding to sentencing in this case. We decide Watson's first issue against him. Watson's second issue charges that he received ineffective assistance of counsel because his attorney failed to make a motion for continuance when his mother did not arrive at the courthouse to testify on his behalf. To prevail on an ineffective assistance of counsel claim, Watson must prove by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Id. Here, the record provides no discernible explanation of the motivation behind counsel's decision not to seek a continuance when Watson's mother had failed to arrive by mid-afternoon. This decision could well have been the result of strategic design. Consequently, we conclude the record is insufficient to support Watson's complaint on direct appeal. We resolve his second issue against him. Having decided both of Watson's issues against him, we affirm the judgment of the trial court.