Opinion
No. 05-06-00581-CR
Opinion issued October 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 283rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-53987-MT. Affirmed.
Before Justices MOSELEY, FRANCIS, and MAZZANT.
OPINION
Ricky Wayne Handy waived a jury and pleaded guilty to robbery. See Tex. Pen. Code Ann. § 29.02 (Vernon 2003). The trial court deferred adjudicating guilt, placed appellant on ten years' community supervision, and assessed a $1000 fine. The State later moved to proceed with adjudication of guilt, alleging appellant committed a new offense. The trial court found the allegation true and assessed punishment, enhanced by two prior felony convictions, at twenty-five years' imprisonment. In three issues, appellant contends the evidence is legally insufficient to support the finding that he committed a new offense, the sentence imposed was not authorized by law, and he did not receive effective assistance of counsel. We affirm the trial court's judgment. In his first issue, appellant argues the evidence is legally insufficient to support the trial court's finding that he violated the conditions of his community supervision by unlawfully carrying an illegal knife on his person. Appellant's complaint challenges the trial court's decision to adjudicate guilt, which is not permitted. See Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (Vernon Supp. 2006); Phynes v. State, 828 S.W.2d 1, 2 (Tex.Crim.App. 1992); Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Crim.App. 1992). Because we do not have jurisdiction over this issue, we dismiss it. In his second issue, appellant argues the twenty-five-year sentence imposed by the trial court was not authorized by law and is void. Appellant asserts a prior conviction for possession of a controlled substance used to enhance the punishment range was a state jail felony and could not be used for enhancement purposes. The State responds that the sentence is authorized by law. An enhancement paragraph raises the statutory minimum sentence for a repeat or habitual felony offender. See Tex. Pen. Code Ann. § 12.42 (Vernon Supp. 2006). When a defendant pleads true to an enhancement allegation, the State's burden of proving the prior felony conviction is removed. See Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App. 1981) (op. on reh'g). Once a finding of true to the enhancement paragraph is made, the punishment range is absolutely fixed by law. See State v. Allen, 865 S.W.2d 472, 474 (Tex.Crim.App. 1993). The indictment in this case contained two enhancement paragraphs for 1993 and 1999 felony convictions for credit card abuse and possession of a controlled substance. Although appellant argues the 1999 possession of a controlled substance conviction was a state jail felony, the record shows the indictment alleged two prior felony convictions and appellant pleaded true to both enhancement paragraphs. Thus, the trial court properly sentenced appellant as an habitual offender. See Tex. Pen. Code Ann. § 12.42(d). We resolve appellant's second issue against him. In his third issue, appellant argues he received ineffective assistance of counsel because counsel allowed him to plead true to a defective enhancement paragraph. Appellant asserts counsel never objected to a state-jail felony conviction being used to enhance the punishment. The State responds that appellant's claims of ineffective counsel are not supported by the record. 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). We have already noted above that the enhancement paragraphs alleged two prior felony convictions and appellant pleaded true to both paragraphs. During the punishment hearing, appellant testified extensively about his previous criminal history, the felony convictions included in the enhancement paragraphs, and that his crimes spanned over a twenty-year period. Nothing in the record supports appellant's claims. 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, 101 S.W.3d at 111; Thompson, 9 S.W.3d at 813. We resolve appellant's third issue against him. We affirm the trial court's judgment.