BYRON LAMON ROSE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued September 14, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01380-CR
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BYRON LAMON ROSE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause No. F07-58951-YK
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OPINION
Before Justices Wright, Richter, and Fillmore
Opinion By Justice Wright
        Byron Lamon Rose waived a jury and pleaded guilty to aggravated robbery with a deadly weapon, a firearm. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). The trial court assessed punishment at eight years' imprisonment and a $750 fine. In three issues, appellant contends his guilty plea was involuntary, he received ineffective assistance of counsel, and the judgment should be modified to add his attorney's name. We affirm the trial court's judgment as modified.
Involuntary Plea
 
        In his first issue, appellant contends his guilty plea was involuntary because he believed the trial court would grant him probation and drug treatment. Specifically, appellant asserts the trial court did not inquire whether he had any expectation of receiving deferred adjudication probation, and the record shows he pleaded guilty in order to obtain probation and treatment for his drug and alcohol addictions. The State responds that appellant has failed to preserve error for review and alternatively, appellant failed to prove his guilty plea was involuntary.
        We determine the voluntariness of a guilty plea from the totality of the circumstances viewed in light of the entire record. See Drucker v. State, 45 S.W.3d 791, 796 (Tex. App.-Dallas 2001, no pet.). Under article 26.13 of the Texas Code of Criminal Procedure, the trial court must admonish a defendant of the applicable range of punishment before accepting a guilty plea. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2008); Kirk v. State, 949 S.W.2d 769, 771 (Tex. App.-Dallas, 1999, pet. ref'd). The trial court's substantial compliance with article 26.13 establishes a prima facie showing that a defendant entered a knowing and voluntary plea. See Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). If the record shows the trial court's substantial compliance, the burden shifts to the defendant to show he entered the plea without knowing its consequences and was thereby harmed. See id.; see also Tex. Code Crim. Proc. Ann. art. 26.13(c).
        Here, the record shows the trial court substantially complied with article 26.13 by orally admonishing appellant of the appropriate punishment range for the offense. Appellant also received written admonishments in the plea agreement. With this prima facie showing, the question becomes whether appellant met his burden to show the plea was not voluntary.
        During the plea hearing, appellant testified he understood the charges in the indictment and the punishment range for the offense. Appellant also said he discussed with counsel the facts of the case and all of the documents he had signed, and he was voluntarily pleading guilty to the offense. Appellant's signed and voluntary judicial confession was admitted into evidence without objection. The trial court passed the case for a presentence investigation report and sentencing. There is nothing in the record that shows appellant was incorrectly admonished, did not understand the nature of the charges against him, or did not understand the consequences of his guilty plea. The fact that appellant received greater punishment than he hoped for does not render his plea involuntary. See Tovar-Torres v. State, 860 S.W.2d 176, 178 (Tex. App.-Dallas 1993, no pet.).
        We conclude appellant has failed to rebut the prima facie showing of voluntariness of his guilty plea. See Martinez, 981 S.W.2d at 197. We resolve appellant's first issue against him.
Ineffective Counsel
 
        In his second issue, appellant contends ineffective assistance of counsel rendered his guilty plea involuntary. Specifically, appellant asserts counsel was ineffective for failing to present a closing argument on appellant's behalf. Appellant argues that had counsel presented a closing argument that appellant deserved probation and drug treatment, there is a probability that the trial court would have granted him deferred adjudication probation and drug treatment rather than assessing a prison term. The State responds that the record does not support appellant's claim that his guilty plea was rendered involuntary by ineffective assistance of counsel.
        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, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Without evidence of the strategy behind 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).
        Nothing in the record supports appellant's claims. During the sentencing hearing, appellant testified he and two other men robbed the complainant at gunpoint inside her home. Appellant claimed he did not know one of the men had a gun. The other two men passed the gun “back and forth between them” while threatening the complainant. Appellant testified he committed the robbery only because he had used PCP, cocaine, marijuana, and alcohol earlier that day. Appellant asked the trial court to give him drug treatment for his addictions to alcohol, marijuana, and cocaine. Nothing in the record supports appellant's position that had counsel presented a closing argument, the trial court would have given him probation and drug treatment rather than an eight-year prison term. Moreover, counsel did not have an opportunity to explain himself. See Goodspeed, 187 S.W.3d at 392.
        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 resolve appellant's second issue against him.
Modify Judgment
 
        In his third issue, appellant contends the trial court's written judgment should be modified to add the name of counsel who represented him at the sentencing hearing. The State agrees that counsel's name should be added to the trial court's written judgment.
        The record shows Mike Howard represented appellant during the August 28, 2008 plea hearing, and R. Scott Kendall represented appellant during the October 16, 2008 sentencing hearing. The trial court's written judgment, however, recites only Howard's name. Thus the trial court's judgment is incorrect. We sustain appellant's third point of error. We modify the trial court's judgment to add R. Scott Kendall's name as appellant's counsel. 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).
        As modified, we affirm the trial court's judgment.
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081380F.U05