Opinion
No. 05-05-01469-CR
Opinion Filed April 21, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 219th Judicial District Court, Collin County, Texas, Trial Court Cause No. 219-82251-04. Affirmed as Modified.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
OPINION
A jury convicted Donald Lee Wicker of sexual assault. See Tex. Pen. Code Ann. § 22.011 (Vernon Supp. 2005). During the punishment phase, the trial court found two enhancement paragraphs true and sentenced appellant to imprisonment for thirty-five years. In a single point of error, appellant contends he received ineffective assistance of counsel. We affirm the trial court's judgment as modified. 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, No. PD-1882-03, 2005 WL 766996, at *2 (Tex.Crim.App. Apr. 6, 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). Appellant argues trial counsel was ineffective in not filing a plea to the trial court's jurisdiction. Appellant asserts the indictment was returned in the 416th Judicial District Court, but his case was tried in the 219th Judicial District Court, with no order transfering the case. Appellant argues that, but for counsel's deficient performance, there is a reasonable probability a plea to the jurisdiction would have been sustained and the case would have been continued until a proper transfer order was entered. The State responds that no transfer order was needed because the 416th Judicial District Court organized a grand jury, but was never assigned the case after indictment. Instead, the 219th Judicial District Court was assigned the case. Additionally, the State contends that appellant fails to show the result would have been different had counsel filed a plea to the jurisdiction. We agree with the State. The record shows the grand jury was impaneled in the 416th Judicial District Court and, after the indictment was returned, the case was assigned to the 219th Judicial District Court. Nothing in the record shows the case was originally filed in the 416th Judicial District Court. This Court has held no transfer order is required when one court empanels the grand jury that returns an indictment in the case, but the case is actually filed in another court. See Bourque v. State, 156 S.W.3d 675, 678 (Tex.App.-Dallas 2005, pet. ref'd). Since no transfer order was required, trial counsel could not be ineffective for failing to file a plea to the jurisdiction complaining about the lack of a transfer order. See id. We conclude 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 point of error. We note the section of the trial court's judgment regarding the enhancement paragraphs says "not applicable." The record reflects appellant pleaded not true to two enhancement paragraphs and the trial court found the enhancement paragraphs true before assessing punishment. We may modify the trial court's judgment when we have the necessary information before us to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to show appellant pleaded not true to the enhancement paragraphs and the trial court found the enhancement paragraphs true. As modified, we affirm the trial court's judgment.