LARRY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed June 16, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01658-CR
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LARRY JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court #1
Dallas County, Texas
Trial Court Cause No. F-07-40147-H
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MEMORANDUM OPINION
Before Justices O'Neill, Francis and Murphy
Opinion By Justice O'Neill
        Appellant Larry Johnson pleaded guilty pursuant to a plea bargain agreement to burglary of a building. The trial court deferred a finding of guilt and placed appellant on community supervision for three years. The State filed a motion to adjudicate alleging appellant committed several probation violations. Appellant pleaded true to the allegations in the State's motion to revoke. The trial court adjudicated appellant's guilt and sentenced him to 210 days' confinement in state jail. In two issues, appellant contends (1) he received ineffective assistance of counsel, and (2) he did not knowingly and voluntarily waive his right to ten days' for counsel to prepare for the adjudication hearing. For the following reasons, we affirm the trial court's judgment.
        In his first issue, appellant contends his trial counsel at the adjudication hearing was ineffective. In particular, he contends counsel should have presented mitigating evidence. 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 to the contrary, we will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111.
        According to appellant, counsel was ineffective for failing to call witnesses in mitigation of punishment. To show ineffective assistance based on counsel's failure to call witnesses, an appellant must show such evidence was available and appellant would have benefitted from it. Perez v. State, PD-0560-09, 2010 WL 2077156, * 4-5 (Tex. Crim. App.-May 26, 2010); Brennan v. State, 05-08-00123-CR, 2009 WL 485508, * 12 (Tex. App.-Dallas 2009, February 27, 2009, no pet.). Here, appellant did not file a motion for new trial. Thus, there is no evidence in the record to support appellant's claims of ineffective assistance. In particular, appellant has not shown any mitigating evidence existed that counsel should have presented. Therefore, he cannot show ineffective assistance. We resolve the first issue against appellant.
        In his second issue, appellant contends the trial court violated article 1.051(e) of the code of criminal procedure by proceeding on the State's motion to adjudicate without giving his court- appointed counsel ten days to prepare. The trial court appointed appellant's attorney on the day before the hearing on the State's motion to adjudicate. An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court. See Tex. Code Crim. Proc. Ann. art. 1.051(e) (Vernon 2005).
        In the written plea papers, appellant stated “I waive arraignment, and reading of the State's motion, the appearance, confrontation, and cross-examination of witnesses, and my right to ten days to prepare for trial after the appointment of counsel (if counsel has been appointed.).” (emphasis added). The waivers are signed by appellant and his attorney. At the plea hearing, appellant verified that he read and understood the plea papers. However, when appellant's lawyer questioned appellant, he orally asked “I explained to you that you had a right to wait at least three days before going forward; is that correct?” Appellant answered, “Yes.” Appellant testified that he wanted to go forward that day.
        On appeal, appellant does not dispute that he signed the written waiver of the right to have ten days for counsel to prepare. Instead, he relies on trial counsel's oral statement at the adjudication hearing which referenced a right to a minimum of three days to prepare. However, in light of appellant's testimony about the written plea papers and his testimony that he wanted to proceed that day, we conclude the conflict in the oral waiver is not sufficient to show the written waiver was not knowingly and intentionally made. We resolve the second issue against appellant.
        We affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
        
Do Not Publish
Tex. R. App. P. 47
081658F.U05