DAVID TODD TATE, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued March 24, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00759-CR
No. 05-09-00760-CR
 
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DAVID TODD TATE, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause Nos. F09-00415-NH, F09-44948-NH
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OPINION
Before Justices Morris, FitzGerald, and Francis
Opinion By Justice Morris
        In these cases, David Todd Tate waived a jury and pleaded guilty to theft of property valued at $20,000 or more, but less than $100,000, and false statement to obtain property or credit. After finding two enhancement paragraphs true, the trial court assessed punishment at thirty-five and twenty years' imprisonment, respectively. In a single issue, appellant contends he did not receive effective assistance of counsel. We affirm the trial court's judgments.
Factual Background
        During his plea hearing, appellant testified he understood the charges in the indictments and understood he would be punished as an habitual offender in light of his two previous felony convictions. Appellant testified that he had talked with counsel several times about the cases. At one point, appellant said he thought he had waived his right of appeal in order to enter the open pleas. The trial judge corrected him, stating appellant had the right of appeal, then recessed the hearing for a short time so appellant could talk with his attorney. When the hearing resumed, appellant said he wanted to enter open guilty pleas and pleas of true to the enhancement paragraphs because he intended to ask the judge for probation and drug treatment. Appellant said at one time the State had offered a ten-year prison term on the theft case, but he declined the offer. The State then reindicted the theft charge and included two enhancement paragraphs, which made the minimum punishment a twenty-five-year prison term. Appellant said he stole a check from the church where he worked as an administrative assistant to support his cocaine habit. He also applied for and received a credit card by purporting to be the church's business manager. Appellant's signed judicial confessions and pleas of true and stipulations of evidence were admitted into evidence.
        During cross-examination, appellant testified about a manslaughter conviction in Florida involving his infant daughter, a previous burglary conviction, and the theft offense. The trial judge interrupted appellant and asked why he was “sparring with the prosecutor like this is some kind of word game or something” rather than simply answering the prosecutor's questions. The trial judge passed the case for two weeks to allow time to obtain the offense reports and other documentation on the previous burglary and manslaughter convictions. When the hearing resumed, appellant told the trial judge that the testimony he had given before about the burglary conviction had been false. Appellant said he took full responsibility for his actions in committing that burglary and the current theft from the church, and admitted he did not tell the church about his burglary and manslaughter convictions. Appellant also said he intended to make restitution to the church.
 
Discussion
        In his sole issue on appeal, appellant contends he was denied effective assistance of counsel because counsel failed to (1) encourage appellant to accept a plea offer of ten years' imprisonment, (2) prepare appellant to testify or advise him not to testify, and (3) object to hearsay testimony presented by the State on the previous burglary conviction. Appellant argues there is a reasonable probability the results of the proceeding would have been different in the absence of counsel's errors.
        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). Failure to make the required showing of either deficient performance or sufficient prejudice defeats an ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). 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 involved concerning counsel's actions at trial, the reviewing court will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
        In these cases, nothing in the records supports appellant's claims. Appellant chose to testify untruthfully to the prosecutor's questions, although he later disclosed his initial false testimony to the trial judge. There is nothing in the record that shows counsel failed to encourage appellant to accept a plea offer before the charge was reindicted or failed to advise appellant not to testify. After finding appellant guilty and the two enhancement paragraphs true, the trial judge sentenced appellant as a habitual offender. See Tex. Penal Code Ann. § 12.42(d) (Vernon Supp. 2009). Before imposing the sentences, the trial judge stated he believed appellant was “a liar, a con man, a thief, burglar, baby killer.” Nothing in the record supports appellant's position that had counsel conducted appellant's defense differently, the trial court would have given appellant probation and drug treatment rather than thirty-five and twenty-year prison sentences. Moreover, counsel did not have an opportunity to explain herself, so we cannot determine from this record why she conducted appellant's defense the way she did. 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. We resolve appellant's sole issue against him.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090759F.U05