DEWAYNE EDWARD BARNER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued November 24, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01541-CR
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DEWAYNE EDWARD BARNER, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F98-29356-T
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OPINION
Before Justices Wright, Lang-Miers, and Mazzant
Opinion By Justice Mazzant
        Dewayne Edward Barner was convicted of assaulting a public servant. Following the revocation of his community supervision, he was sentenced to ten years in prison. In two issues, he argues that the trial court erred in denying his pro se speedy trial motion and that he received ineffective assistance of counsel. As modified, we affirm the trial court's judgment.
background
        Appellant waived his right to a jury trial and entered a plea of guilty to the offense of assault on a public servant. The trial court found appellant guilty and set punishment at ten years in prison.
The court then ordered that appellant be placed in “boot camp,” a special alternative incarceration program of the Institutional Division of the Texas Department of Criminal Justice, for ninety days. On June 1, 2001, the court issued a “shock” probation order placing appellant on probation for ten years. On November 9, 2001, the State filed its first motion to revoke appellant's probation. The motion was subsequently amended several times over the next six years without a hearing.
        A hearing on the State's most recent motion to revoke was held on October 11, 2007. At the hearing, appellant pleaded true to seven of the eleven allegations in the State's motion to revoke. At the conclusion of the hearing, the trial court found the seven allegations to be true, revoked appellant's probation, and sentenced him to ten years in prison.
Discussion
        Speedy Trial
        In his first issue, appellant argues that the trial court erred when it denied his pro se speedy trial objection to the probation revocation.
        According to the record, appellant was taken into custody on May 18, 2006. Appellant was in and out of custody in other jurisdictions for unrelated charges from the time the State filed its original motion to revoke until May 2007, at which point he was acquitted of an offense in Tarrant County. On May 25, 2007, he filed a pro se speedy trial motion to dismiss several of the cases against him, including the instant case. On July 6, 2007, appellant's trial counsel filed a motion to dismiss asserting a violation of appellant's right to a speedy trial under the Sixth Amendment and Article 1, Section 10 of the Texas Constitution. Neither of these motions was ruled on by the trial court. Moreover, the record does not indicate that counsel sought a ruling on either of the speedy trial motions or that he complained about the trial court's failure to rule.
        To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court's refusal to rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). Appellant failed to preserve his speedy trial complaint for appellate review. Thus, his first issue is overruled.
        Ineffective Assistance of Counsel
        In his second issue, appellant argues that trial counsel was ineffective because he failed to obtain a ruling on appellant's speedy trial motion.
        To prevail on an ineffective assistance of counsel claim, an appellant must show counsel's performance fell below an objective standard of reasonableness, and a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110- 11 (Tex. Crim. App. 2003). Moreover, without evidence of counsel's trial strategy, we will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111. As the Texas Court of Criminal Appeals stated in Andrews v. State, “we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Because the reasonableness of counsel's choices often involves facts that do not appear in the record, an application for a writ of habeas corpus is normally the preferred vehicle for raising ineffective assistance of counsel claims. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002).
        In this case, appellant's motion for new trial did not contain any allegations of ineffective assistance of counsel. Thus, the record does not provide us with an explanation of counsel's decisions. Although appellant suggests counsel's action cannot be characterized as strategic, there is nothing to affirmatively indicate otherwise. Given the limited record before us, we can imagine a possible strategic motive for failing to obtain a ruling on counsel's speedy trial motion. For example, one of the factors that a court must weigh in reviewing any speedy trial claim is prejudice to the defendant. See State v. Munoz, 991 S.W.2d 818, 826 (Tex. Crim. App. 1999) (defendant has burden to make some showing of prejudice). Yet, appellant concedes in his brief that the record in this case is “devoid of any prejudice suffered by [him].” Counsel may have concluded that appellant simply did not have a viable speedy trial claim and elected not to assert the motion. See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (unless appellant shows pretrial motion had merit and that a ruling on the motion would have changed the outcome of the case, counsel is not ineffective for failing to assert the motion); see also Roberson v. State, 852 S.W.2d 508, 510-12 (Tex. Crim. App. 1993).
        Viewing counsel's actions collectively does not alter the presumption that he may have been pursuing a reasonable trial strategy. Accordingly, we cannot conclude counsel's performance was deficient or that, but for the performance, there was a reasonable probability the outcome would have been different. Appellant's second issue is overruled.
        State's Cross-Issue
        In a cross-issue, the State argues that the judgment should be modified to show that appellant pleaded true to seven of the allegations in the State's amended motion to revoke his probation.
        According to the record of the revocation hearing, appellant orally pleaded true to allegations 3, 4, 6, 7, 9, 10, and 11 in the State's amended motion to revoke. The judgment revoking appellant's probation, however, states that appellant pleaded “not true” to the allegations. We therefore modify the portion of the trial court's judgment entitled “Plea to Motion to Revoke” to show that appellant pleaded “true” to allegations 3, 4, 6, 7, 9, 10, and 11 and to further show that he pleaded “not true” to allegations 1, 2, 5, and 8. 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.
 
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071541F.U05