GREGORY TYRONE WELLS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed July 28, 2008.
 
 
 
In The
                                        
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00479-CR
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GREGORY TYRONE WELLS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court One
Dallas County, Texas
Trial Court Cause No. F06-67348-H
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OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion By Justice Lang-Miers
        Gregory Tyrone Wells appeals his conviction for possession with intent to deliver cocaine in an amount of one gram or more but less than four grams. See Tex. Health & Safety Code Ann. § 481.112 (Vernon 2003). Following a guilty plea to the court without the benefit of a plea bargain and a plea of true to an enhancement paragraph, the trial court sentenced appellant to fifteen years in prison. On appeal, appellant argues that the trial court erred by not sua sponte withdrawing his guilty plea, his plea was involuntary, and his trial counsel was ineffective. We affirm.
        In his first issue, appellant argues that the trial court erred by not sua sponte withdrawing appellant's guilty plea when he testified that he possessed the cocaine for his personal use and not with the intent to deliver it. When a defendant waives trial by jury and pleads guilty, the trial court has no duty to conduct a special proceeding to evaluate that plea when evidence inconsistent with guilt is introduced. See Mendez v. State, 138 S.W.3d 334, 350 (Tex. Crim. App. 2004); McGill v. State, 200 S.W.3d 325, 332 (Tex. App.-Dallas 2006, no pet.). It was appellant's burden to timely seek to withdraw his guilty plea. See Mendez, 138 S.W.3d at 350. Appellant did not raise this issue in the trial court, did not ask to withdraw his guilty plea, and raises the issue for the first time on appeal. See id. We resolve appellant's first issue against him.
        In his second issue, appellant argues that his plea was involuntary because his guilty plea was based on his belief that he would receive community supervision. We determine the voluntariness of a guilty plea based on the totality of the circumstances. Ducker v. State, 45 S.W.3d 791, 796 (Tex. App.-Dallas 2001, no pet.). A record that indicates that the defendant was properly admonished before entering a guilty plea presents a prima facie showing that the plea was both knowing and voluntary. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). The burden then shifts to the defendant to show that he entered the plea without understanding the consequences. Id.
        The record shows that appellant pleaded guilty to the offense of possession with intent to deliver, true to an enhancement paragraph, and signed a judicial confession and stipulation of evidence. During the plea proceeding, the trial court admonished appellant that there was no plea bargain, his punishment was “totally up to the Court to decide,” and appellant would be punished within the range of “not less than five no more than 99 years or life, and a fine not to exceed $10,000.” Appellant said he understood. Three weeks later, during the punishment phase, the trial court again admonished appellant about the punishment options. The court explained that because of the enhanced punishment range, the law did not allow the court to sentence him to community supervision, but that deferred adjudication was an option. Appellant said he understood. Appellant testified during the punishment phase, and his attorney asked him if he understood that the court had two punishment choices: sentence appellant to deferred adjudication or send him to prison. Appellant said he understood.
        The record shows that appellant was properly admonished and said he understood the punishment options. Although appellant hoped to receive deferred adjudication and asked the trial court to order him to a drug treatment program, the record does not show that appellant pleaded guilty only because he believed the trial court would place him on deferred adjudication. We conclude that appellant has not shown that his plea was involuntary. We resolve appellant's second issue against him.
        In his third issue, appellant argues that his trial counsel was ineffective because he did not request a hearing on the voluntariness of appellant's plea, did not ask to withdraw appellant's plea, and did not ask the court to find appellant guilty of a lesser included offense.
        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. Strickland, 466 U.S. at 687-88, 694. 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 v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Goodspeed, 187 S.W.3d at 392. 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.” Id. (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195 (2003)).
        Appellant testified that he understood the consequences of pleading guilty and that he wanted to waive a jury and plead guilty to the offense of possession of cocaine with intent to deliver. He also testified that he wanted to waive his right to have the State prove that he committed the offense contained in the enhancement paragraph and plead true to that offense. When appellant testified during the punishment phase, he admitted that he possessed under four grams of cocaine, but he also testified that he did not intend to deliver the cocaine and that it was only for his personal use. He said the police did not find drug packaging in his house when they executed the search warrant, but he admitted they found scales. Appellant contends that, based on this testimony, trial counsel should have asked the trial court to inquire into the voluntariness of his guilty plea, withdraw his guilty plea, or sentence him to a lesser included offense.
        The record shows that appellant pleaded guilty voluntarily. Additionally, the record does not contain any explanation about why counsel did not ask the trial court to withdraw appellant's guilty plea or convict him of a lesser included offense after he testified that he did not intend to deliver the cocaine. See Mallett v. State, 65 S.W.3d 59, 63-65, 68 (Tex. Crim. App. 2001) (because record silent on counsel's reasons for not requesting withdrawal of guilty plea, appellant did not show counsel's performance deficient); McGill, 200 S.W.3d at 332. The record also is silent about the evidence the State was prepared to offer against appellant if he had decided not to plead guilty. See McGill, 200 S.W.3d at 332. Counsel may have been pursuing a reasonable trial strategy in appellant's case. See Goodspeed, 187 S.W.3d at 393-94; McGill, 200 S.W.3d at 332. We conclude that appellant has not carried his burden to show counsel's performance was deficient. We resolve appellant's third issue against him.
        We affirm the trial court's judgment.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 47
070479F.U05