|
|
Opinion of November 6, 2003, Withdrawn, Affirmed and Memorandum Opinion filed April 1, 2004.
In The
Fourteenth Court of Appeals
____________
NO. 14-03-01101-CR
NO. 14-03-01102-CR
____________
ROBRICHEE DANIEL JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 935,000 & 935,001
M E M O R A N D U M O P I N I O N
This court withdraws its opinion of November 6, 2003 and issues this opinion in its place.
Appellant entered a guilty plea to the offenses of aggravated robbery and aggravated assault of a public servant. On August 19, 2003, the trial court sentenced appellant to confinement for twenty years for aggravated robbery and twenty-five years for aggravated assault of a public servant. Appellant filed a pro se notice of appeal.
Appellant=s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978).
A copy of counsel=s brief was delivered to appellant. Appellant was advised of the right to examine the appellate record and appellant filed a pro se response on March 9, 2004.
In his pro se response, appellant contends he received ineffective assistance of counsel because (1) counsel erroneously advised appellant he would be eligible for community supervision, (2) counsel erroneously advised appellant the court agreed to a cap on punishment, and (3) counsel failed to make an argument with regard to punishment.
Appellant must show his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding could have been different. Strickland v. Washington, 466 U.S. 668, 688‑93, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997). Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, to rebut this presumption, appellant must show, by a preponderance of the evidence, why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). If the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient or speculate about the reasons behind trial counsel=s actions. Jackson, 877 S.W.2d at 771.
If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he must still affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Id. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial, or his claim fails. Bone, 77 S.W.3d at 833.
The record contains no evidence of whether counsel gave appellant erroneous advice. Further, the record reflects that appellant=s trial counsel made an argument at the presentence investigation hearing. Appellant failed to present evidence of counsel=s ineffectiveness, nor has trial counsel been afforded an opportunity to explain his actions. Without such an opportunity, appellant failed to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy. Stults v. State, 23 S.W.3d 198, 208‑09 (Tex. App.‑Houston [14th Dist.] 2000, pet. ref'd).
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Judgment rendered and Memorandum Opinion filed April 1, 2004.
Panel consists of Justices Yates, Anderson, and Hudson.
Do Not Publish C Tex. R. App. P. 47.2(b).