ALI HASSAN MCKINLEY, JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed March 23, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-00710-CR
............................
 
ALI HASSAN MCKINLEY, JR., Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-19638-T
.............................................................
 
OPINION
 
Before Chief Justice Wright and Justices Maloney   See Footnote 1  and Thomas   See Footnote 2 
Opinion By Justice Maloney
 
 
        The trial court convicted appellant of aggravated sexual assault on his plea of guilty, found family-violence, and assessed a fifteen-year sentence. In two issues, appellant contends he received ineffective assistance of counsel and the trial court abused its discretion in sentencing him to prison. We affirm the trial court's judgment.
JURISDICTION
        The State argues the record before this Court contains no certification of appellant's right to appeal. The original certification filed with the record recites that appellant waived his right of appeal. The State contends this Court lacks jurisdiction to review appellant's issues, but concedes that “[a]rguably, the waiver, however, was ineffective.” Appellant executed and affirmed his waiver of appeal without an agreement or recommendation on punishment. Ordinarily, a waiver of the right to appeal executed without an agreed sentence recommendation does not result in a knowing and intelligent waiver of the right to appeal. Ex Parte Delaney, 207 S.W.3d 794, 799 (Tex. Crim. App. 2006). On this Court's Order, the trial court filed an amended certification showing appellant has the right to appeal. Accordingly, this Court has jurisdiction to hear this appeal.
 
SENTENCING
 
        In appellant's second issue, he argues the trial court violated the objectives of the penal code by “sentencing appellant to imprisonment . . . [and did not recognize] . . . differences in rehabilitation possibilities among individual defendants.” The State responds that appellant did not preserve this issue for review because he never complained to the trial court about his sentence. Additionally, the State argues that the trial court did not abuse its discretion because it sentenced appellant within the range provided by statute. We agree.
        To preserve error on appeal, appellant must show he timely objected when the trial court imposed sentence or in his motion for new trial. See Tex. R. App. P. 33.1 (a) (1); Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Appellant neither objected nor filed a motion for new trial and did not preserve this issue for our review.
        Additionally, had appellant preserved error, he would still fail. As a general rule, punishment assessed within the statutory range for the offense charged is not excessive. Kirk v. State, 949 S.W.2d 769, 772 (Tex. App.-Dallas 1997, pet. ref'd). Appellant pleaded guilty, the trial court convicted appellant of aggravated assault, a first degree offense, and assessed punishment within the range provided by law. See Tex. Penal Code Ann.§§ 29.02, 29.03 (Vernon 2003); Act of May 29, 1993, 73d Leg., R.S., ch. 900, §1.01, 1993 Tex. Gen. Laws 3586, 3603 (amended 2009) (current version at Tex. Penal Code Ann. § 12.32 (Vernon Supp. 2009)).
        We resolve appellant's second issue against him.
INEFFECTIVE ASSISTANCE OF COUNSEL
 
        In appellant's first issue, he contends that his attorney was ineffective because he neither investigated the facts of his case nor presented mitigating mental health evidence. The State responds that because the record (1) does not show that mitigating evidence existed and (2) is silent on trial counsel's reasons for not presenting “additional evidence concerning [appellant's] mental abnormality,” this Court cannot review appellant's first issue.
1. Standard of Review
        
        We evaluate the effectiveness of counsel under the standard of Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Mallet v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001 ) (citing Strickland, 466 U.S. at 687-88, 694). Our courts have interpreted “reasonable probability” as “a probability sufficient to undermine confidence in the outcome.” Id. at 63.
2. Applicable Law
        
        Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant must show by a preponderance of the evidence that no plausible professional reason exists for a specific act or omission. Id. at 836. We do not necessarily attribute the length of sentence to unprofessional or incompetent trial counsel. See id. at 836-37.
        Ineffective assistance of counsel must be firmly founded in the record, not on retrospective speculation. See id. at 835. When the record is silent regarding the motive behind counsel's tactical decisions, the appellant usually cannot overcome the strong presumption that counsel acted reasonably. Mallett, 65 S.W.3d at 63. Usually, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999).
3. Application of Law to Facts
        Appellant did not file a motion based on ineffective assistance grounds. Thus, the record does not show the extent of counsel's investigation or why he did not present the complained of evidence. The trial court fully admonished appellant on the consequences of entering a plea of guilty before the court. The clerk's record contains evaluations of appellant's competency to stand trial, including background information, and restoration of competency. Nothing in the record suggests that any witnesses could have offered any other testimony in mitigation of punishment. Viewing the record as a whole, we resolve appellant's first issue against him.
        We affirm the trial court's judgment.
 
 
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
080710F.U05
 
Footnote 1 The Honorable Frances Maloney, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 The Honorable Linda Thomas, Chief Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.