AFFIRM; Opinion issued January 31. 2013.




                                              i rfll
                                 IItiurt tif Apprah
                         Fiffl! 1itrirt cu cxaa at a11a
                                       No. 05-1 1-00842-CR
                                       No, 05-11-00843-CR


                                  JAMES KEIiEY, Appellant

                                                 V.

                              TIlE STATE OF TEXAS, Appellee


                     On Appeal from the 282nd Judicial District Court
                                   I)allas County. Texas
                    Trial Court Cause Nos. F09-59178-S and F09-72634-S


                                           OPINION
                          Before Justices Lang-Miers, Myers, and Lewis
                                 Opinion By Justice Lang-Miers

       Appellant James Kelley was charged with one count of possession of less than one gram of

cocaine in a drug free zone and one count of fraudulent possession of between five and nine items

of identifying information. Appellant waived a jury trial and entered an open plea of guilty in both

cases. The trial court assessed punishment in each case at five years in prison and ordered the

sentences to run consecutively. Appellant raises three issues on appeal. In his first issue appellant

argues that he received ineffective assistance of counsel because a court reporter did not record the

open plea proceeding. In his second and third issues appellant argues that thejudgment in both cases

should be reformed to reflect the fact that appellant entered an open plea of guilty and was not
sentenced in accordance with the terms of a plea bargain agreement. We modify the judgments and

i lii flll 1S fl 10(1   lied.

                                               FIRST ISSUE

           In his first issue appellant argues that he received ineffective assistance of counsel because

he was depri ve(l ol a reporter’s record of the open plea proceeding.

           We examine ineffective assistance of counsel claims by the standard set out in Strickland v.

Washington. 466 U.S. 668 (1984). To obtain reversal based on ineffective assistance of counsel, an

appellant must show that (1) counsel’s representation fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that, hut for counsel’s errors, the result of the

proceeding would have been different. See Andrews        i’. Slate,   159 S.W.3d 98. 101 (Tex. Crim. App.

2005). An ineffective assistance claim must be “firmly founded in the record,’ and the record must

affirmatively demonstrate that the claim has merit. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim. See Williams     i.   State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009); Andrews, 159 S.W.3d at 101.

           Appellant argues that his counsel was ineffective for failing to request that a court reporter

transcribe the plea hearing because appellant was entitled to a court reporter under Texas Rule of

Appellate Procedure 1 3.1. Appellant also notes that he made a pretrial written request for a court

reporter and his written pleas do not indicate that he waived his right to a court reporter. Appellant

argues that he was harmed by his counsel’s failure to request a court reporter at the plea hearing

because a transcript of the proceedings would have shown that appellant’s guilty pleas were not

made voluntarily. To support this claim appellant cites to his statement contained in the presentence

report prepared approximately two months before appellant’s plea hearing:




                                                   —2—
       Judge ( ‘hatham. I would like the Opportunity to attempt this lrohalion in order to
       resubstantiate my lile. Previous to this last arrest I had started a company and it had
       just acquired the last few pieue.s of equipment needed to hegin. Also, I have
       relocated my dauihter’s mother and daughter here from Kansas City. in order to he
       closer to me. These two things conzruent are what I have needed to he happy with
       lit and a new beginning here in Dallas. l3asically. I am NOT a menace to society
       and I will he a prominent basketball coach for children ages elementary school to
       middle school. I believe that I will successfully complete the probation offered and
       you will not have any further problems (nil of James L. Kelley.

Appellant argues that this statement demonstrates that appellant did not understand the consequences

of his guilty pleas because it shows that he believed he would be given probation.

       With respect to the first prong of Strickland, it is not per se ineffective assistance of counsel

to fail to request a court reporter to record a plea hearing. See Rivera r’. Slate, 981 S.W.2d 336, 339

(Tex. App.—Flousron [14th Dist.] 1998, no pet.). Because a silent record provides no explanation

lou counsel’s actions, the record on direct appeal is usually not sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome

the presumption that counsels conduct was reasonable and professional. Cannon v. Stale, 252

S.W.3d 342, 349 (Tex. Crim. App. 2008); Rvlander v. Slate, 101 S.W.3d 107, 1 10--I 1 (Tex. Crim.

App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions

before being condemned as unprofessional or incompetent. Rviander, 101 S.W.3d at ill; Bone v.

State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Consequently, the Texas Court of Criminal

Appeals has repeatedly explained that an application for writ of habeas corpus is usually the more

appropriate vehicle to raise claims of ineffective assistance of counsel. See, e.g., Rvlander, 101

S.W.3d at 110.

       In this case, appellant did not file a motion for new trial or introduce any evidence relating

to his counsel’s reasoning or rationale for not requesting a court reporter at the plea hearing. As a

result, we cannot conclude that the record firmly demonstrates that counsel’s performance fell below

an objective standard of reasonableness. See generally Goodspeed, 187 S.W.3d at 392 (noting
appellate couits otdinarily vil I nut declare trial counsel ineffective without a record showing counsel

had an   oppoitun itv to   explain hiiuscllj. We resolve appellant’s ii ist issue against him

                                        SECOND ANt) ‘I’HJRI) ISSUES

         In his second and third issues appellant argues that the judgments erroneously state that

appellant was sentenced in accordance with the terms of a plea bargain, and that the judgments

should he modified to reflect that appellant entered an open plea of guilty. The State agrees with

appellant.

         This Court has the power to modify an incorrect judgment to make the record speak the truth

when we have the necessary inlormation to do so .5cc TEx. R. App. P. 43.2(b); BigIe’ v. State, 865

S.W.2d 26, 27—28 (Tex. Crirn. App. 1993); Asherry v. State, 813 S.W.2d 526, 529—30 (Tex.

App.—Dallas 1 991, pet. ref d). The record demonstrates that appellant entered an open plea of

guilty. We modify the judgments to delete the notation “5 YEARS TDCJ” under the heading “Terms

of Plea Bargain.”

                                               CON CI USION

         We resolve appellant’s first issue against him. We resolve appellant’s second and third

issues in his favor. We modify the trial court’s judgments and affirm the trial court’s judgments as

modified
                                                                                      /

                                                                                  I       /


                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE


Do Not Publish
TEx. R. ApP. P.47

1 10842F.U05




                                                    -4-
                                Qnairi uf Aipra1i
                        Fif1I! JiIrirt of i’xa it Ja1Iw
                                       JUDGMENT
JAMES KELLEY. Appellant                              Appeal from the 282nd Judicial District
                                                     Court of Dallas County, Texas. (Tr.Ct.No.
No. 051 l00$4-CR              V.                     F09-59l78S).
                                                     Opinion delivered hy Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                         Justices Myers and Lewis participating.

       Based on the Court’s opinion of this date, the trial court’s judgment is modified to delete
           “5 YEARS TDCi’ under the heading “Terms of Plea Bargain.’
the notaflon


       As modified the trial court’s judgment is AFFIRMED.



Judgment entered January 3 1, 2013.




                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE
                                   (!nitrt tf \pirihi
                         3Fiftt! Ji3trirt uf cxa at Ja11a
                                        JUDGMENT
JAMES KELLEY. Appellant                               Appeal from the 282nd Judicial District
                                                      Court of Dallas County, Texas. (Tr.CtNo,
No. 051 l00843CR               V.                     F0972634S).
                                                      Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS. Appellee                          Justices Myers and Lewis participating.

        Based on the Court’s opinion of this date, the trial court’s judgment is modified to delete
the notation “5 YEARS TDCJ’’ under the heading “Terms of Plea I3argain.”

       As modified the trial court’s judgment is AFFIRMED.



Judgment entered January 31, 201 3.




                                                      ELIZABETIl LANG-MIERS*
                                                      JUSTICE
