WILLIAM WILSON HOOKER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 29, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00309-CR
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WILLIAM WILSON HOOKER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F02-73545-PU
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OPINION
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        William Wilson Hooker waived a jury and pleaded guilty to indecency with a child younger than seventeen. See Tex. Pen. Code Ann. § 21.11 (Vernon 2003). The trial court deferred adjudicating appellant's guilt, placed him on ten years' community supervision, and assessed a $2000 fine. The State later moved to proceed with adjudication of guilt, alleging appellant violated the terms of his community supervision. At a hearing on the motion, appellant pleaded true to the allegations. The trial court found the allegations true, adjudicated appellant guilty, and assessed punishment at five years' imprisonment. In a single issue, appellant contends he was denied effective assistance of counsel after adjudication of guilt. We affirm the trial court's judgment.
        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 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 because counsel failed to object to the absence of a separate punishment hearing. Appellant also argues counsel did not offer any evidence in mitigation of punishment and should have offered testimony from appellant's physician or other medical personnel and appellant's medical records. Appellant contends that but for counsel's ineffectiveness, the trial court would have assessed less punishment. The State responds that appellant has not shown counsel was ineffective because appellant had an opportunity to present mitigation evidence and the trial court assessed a sentence at the low end of the punishment range.
        During a hearing on the motion to proceed with adjudication of guilt, appellant testified he suffers from diabetes, a personality disorder, “blood pressure and stomach problems,” and has been on dialysis for two years. Appellant admitted he failed polygraph tests on two occasions and was not always truthful in his group therapy sessions. Appellant testified he chatted online with underage females, and admitted he told the polygraph examiner that he was at a bus stop, pulled up his underwear from under his pants so a fourteen-year-old female could see his underwear, then later masturbated on two occasions thinking about what he had done at the bus stop.
        There is no absolute right to a separate punishment hearing, but a defendant must have an opportunity to present evidence in mitigation of punishment. See Pearson v. State, 994 S.W.2d 176, 178 (Tex. Crim. App. 1999). Here, the record shows that after appellant pleaded true to violating the terms of his community supervision, he had the opportunity to present evidence during the proceedings. It is immaterial that the presentation of this evidence occurred before the actual words of adjudication. See Hardeman v. State, 1 S.W.3d 689, 691 (Tex. Crim. App. 1999). We conclude counsel was not ineffective for failing to object to a separate punishment hearing when no such hearing was required. See Pearson, 994 S.W.2d at 178; Hardeman, 1 S.W.3d at 691.
        Moreover, nothing in the record supports appellant's claims. The record does not show what medical personnel, if any, were available or what evidence they would have offered. Further, 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 Rylander v. State, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We resolve appellant's sole issue against him.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
070309F.U05