THOMAS EARL CASTLE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as MODIFIED; Opinion Filed February 18, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00130-CR
............................
THOMAS EARL CASTLE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F07-73192-Y
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MEMORANDUM OPINION
Before Justices Morris, FitzGerald, and Lang-Miers
Opinion By Justice Lang-Miers
        Thomas Earl Castle was charged with burglary of a building. After the jury convicted him of that offense, he pleaded true to two enhancement paragraphs and was sentenced to prison for twenty years. In five issues on appeal, appellant argues that the evidence is legally and factually insufficient to establish one of the offenses alleged for enhancement, his trial counsel rendered ineffective assistance of counsel, and the judgment should be modified to reflect the offense of conviction. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We modify the judgment and, as modified, affirm.
 
Background
 
        Nathaniel Williams inherited his parents' house in Dallas, Texas. The house was not occupied, and Nathaniel and his brother, Lester Williams, noticed that the house was being vandalized. Lester went to the house one morning to board the windows. As he stood on the front porch, he saw two people standing in the kitchen. He said he did not know the people and they did not have permission to be in the house. Lester fired his pistol four or five times in the direction of the trespassers as they ran through a window and into the back yard. Lester's sister-in-law, who was also at the house, called the police. Lester gave a statement to the police and surrendered his gun. In a separate police call, appellant was found a few blocks away and taken to a hospital for the treatment of gunshot wounds. A detective visited appellant that same day in the hospital. Although the detective read appellant the Miranda   See Footnote 1  warnings because he thought the shooting might be related to a burglary in the same general area, the detective told appellant he was not under arrest and that he was investigating him as the victim of a shooting. Appellant told the detective that he had been approached by a lady who offered him $15 to help her move some furniture out of a house. Appellant said he thought the lady owned the house, but after they entered the house through the unlocked front door, he heard a gunshot and he and the lady ran through the back window and through the yard. Appellant told the detective that as he ran through the back yard, he realized he had been shot. He kept running until he collapsed. After taking appellant's oral statement, the detective left the hospital without arresting appellant. About a week later, appellant was indicted for burglary of a building, Nathaniel's house. Appellant pleaded not guilty; he was found guilty by a jury. Prior to the punishment phase, appellant pleaded true to two enhancement paragraphs, a 1990 burglary of a habitation and a 1986 robbery. The trial judge found the enhancement paragraphs true and sentenced appellant to twenty years in prison.
Sufficiency of the Evidence
 
        In issues one and two, appellant argues that the evidence is legally and factually insufficient to establish that he was convicted of burglary of a habitation in 1990 as alleged for enhancement purposes.
        Before the State may obtain an enhanced sentence based on a prior felony conviction, it must prove that the defendant was the person previously convicted of the alleged enhancement offense. Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984); Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App.), cert. denied, 454 U.S. 840 (1981). A defendant's plea of true to the enhancement allegation satisfies the State's burden of proof. Wilson, 671 S.W.2d at 526; Harvey, 611 S.W.2d at 111. In addition, a defendant who enters a plea of true to an enhancement paragraph cannot complain on appeal that the evidence was insufficient to support the enhancement allegation. Harvey, 611 S.W.2d at 111.
        Here, appellant pleaded true to the indictment's enhancement paragraphs, and the trial court accepted appellant's pleas of true. Appellant's plea of true to the 1990 burglary of a habitation enhancement allegation relieved the State of its burden to prove that allegation. And having pleaded true, appellant cannot now complain about the sufficiency of the evidence to support the allegation. We resolve issues one and two against appellant.
Ineffective Assistance of Counsel
 
        In issues three and four, appellant argues that his counsel was ineffective in both phases of trial. In issue three, he argues that trial counsel was ineffective in the punishment phase because he allowed appellant to plead true to the 1990 burglary of a habitation conviction alleged for enhancement. Appellant contends that the State could not prove that he was the defendant convicted of the 1990 burglary because the final judgment in that case was missing the page containing the trial judge's signature. He contends that if the State could not establish the prior burglary conviction, he would have been subject to the punishment range for a state jail felony, not a second- degree felony. In issue four, appellant contends that his trial counsel was ineffective in the guilt phase of trial because he did not move to suppress the oral statement appellant made to police while he was in the hospital. Appellant argues that his oral statement was not admissible under article 38.22 of the code of criminal procedure because it was not voluntary or recorded.
        We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Appellant must show by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's errors, the result would have been different. Id. (citing Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). An ineffective assistance claim must be “firmly founded in the record,” and the record must affirmatively demonstrate that the claim has merit. Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 812. In the absence of a record of counsel's reasoning or strategy, we must apply the strong presumption that counsel's performance was part of trial strategy, and we typically will not second guess a matter of trial strategy. See id.; Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). When trial counsel has not had an opportunity to explain his actions, we should not find his performance deficient unless it was “so outrageous that no competent attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
        Appellant bears the burden of rebutting the presumption of reasonable assistance by presenting evidence explaining trial counsel's conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant filed a motion for new trial, but he did not raise ineffective assistance in the motion and did not have a hearing on the motion. As a result, we have no record showing that counsel was given an opportunity to explain his performance, and appellant has not rebutted the strong presumption of reasonable assistance.   See Footnote 2  See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). The Texas Court of Criminal Appeals has made clear that in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance, and an application for writ of habeas corpus is the more appropriate vehicle to raise such claims. Id. at 110. Without a record, we cannot conclude that appellant has met his burden under the first prong of Strickland. Whatever counsel's reasons for the alleged improper acts or omissions, without a record, we must presume the decisions were made as part of sound trial strategy. We resolve issues three and four against appellant.
Reformation of the Judgment
 
        In issue five, appellant argues that the judgment should be reformed. The judgment states that appellant was convicted of “Burglary of a Building/Hab.” Appellant contends that this language indicates that he was convicted of habitually burglarizing buildings. The State argues that it could mean that appellant was convicted of burglary of a building/habitation, but agrees that the judgment should be reformed. We have the power to modify judgments when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify the judgment under the heading “Offense for which Defendant Convicted” by deleting “Burglary of a Building/Hab” and by inserting “Burglary of a Building.”
 
Conclusion
 
        As modified, we affirm the judgment of the trial court.
 
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
080130F.U05
 
 
Footnote 1 See Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote 2 We note that a final judgment is not the only manner by which the State may prove a defendant has been convicted of a prior offense alleged for enhancement purposes. See Flowers v. State, 220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007). We also note that appellant testified in the punishment phase and admitted that he was convicted of burglary of a habitation in 1990 and was sentenced to twenty-five years in prison. With regard to appellant's oral statement, we note that the record shows that the trial court conducted a hearing on the admissibility of the statement and concluded that it was not subject to article 38.22 because it did not stem from custodial interrogation as appellant was not in custody at the time he made the statement.