Opinion issued November 10, 2015




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-15-00269-CR
                          ———————————
                  SHAUN DEVILLE BRIGGS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 263rd District Court
                          Harris County, Texas
                      Trial Court Case No. 1430016


                        MEMORANDUM OPINION

     Shaun Briggs pleaded guilty to the first-degree felony offense of aggravated

robbery with a deadly weapon. The trial court sentenced him to fifteen years’

confinement. Briggs appeals, contending that he did not receive a punishment
hearing and that his attorney was ineffective for failing to request that a reporter’s

record be made. Finding no error, we affirm.

                                    Background

      In August 2014, a grand jury indicted Briggs for aggravated robbery with a

deadly weapon. Briggs pleaded guilty without an agreed recommendation from

the State as to punishment. There is no reporter’s record, and the clerk’s record

does not contain a presentence investigation report. The judgment recites that

Briggs waived his right to a presentence investigation report and to have a court

reporter record his plea. The judgment recites that the trial court received his plea,

found him guilty, and certified his right to appeal, sentencing him to fifteen years’

imprisonment.

                                    Waiver of Appeal

      The trial court in this case certified Briggs’s right to appeal the judgment

against him. In the plea papers, however, Briggs signed a handwritten statement

stating that he pleaded guilty in exchange for the State’s agreement to dismiss a

charge of “attempted aggravated robbery” against him. The statement refers to a

different trial court cause number, but the record before us does not include further

information about the nature of the charge or a copy of it.

      As a preliminary matter, we consider our jurisdiction over Briggs’s appeal.

Texas Rule of Appellate Procedure 25.2 requires that the trial court include a



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certification of the defendant’s right to appeal with the record. TEX. R. APP. P.

25.2(d). In a plea bargain case, the certification must reflect that the defendant’s

right of appeal is limited to matters raised by written motion before trial, or grant

permission to appeal other matters. TEX. R. APP. P. 25.2(a)(2), (b). In Shankle v.

State, the Court of Criminal Appeals held that an agreement to abandon a charged

offense in exchange for an open plea of guilty on another charge is a plea bargain

for purposes of Rule 25.2(a)(2). 119 S.W.3d 808, 813–14 (Tex. Crim. App. 2003).

If, in a plea bargain case, the certification incorrectly represents that the defendant

has the right to appeal, dismissal is appropriate. Barcenas v. State, 137 S.W.3d

865, 866 (Tex. App.—Houston [1st Dist.] 2004, no pet.). However, where the

State has not argued that the certification is inconsistent with the record, an

appellate court is not required to dismiss the appeal sua sponte for lack of

jurisdiction. See Menefee v. State, 287 S.W.3d 9, 12 n.12 (Tex. Crim. App. 2009)

(declining to dismiss an appeal sua sponte despite indications in the record that the

trial court’s certification of the defendant’s right to appeal was defective).

      Because nothing on the face of the record confirms the State’s agreement to

abandon the charge, or that the charge was abandoned, or that the trial court

accepted the abandonment of the offense as part of the plea agreement, the record

before us does not conclusively establish that the trial court’s certification is

incorrect. Neither the State nor Briggs challenges our jurisdiction over the appeal.



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Accordingly, following Menefee, we address the merits of the parties’ arguments.

See id., 287 S.W.3d at 12 n.12.

                               Punishment Hearing

      Noting that Article 42.03 of the Texas Code of Criminal Procedure requires

that the trial court pronounce sentence in the defendant’s presence, Briggs

contends in his first issue that the record contains no evidence that the trial court

held a punishment hearing or reviewed a pre-sentence investigation report. TEX.

CODE CRIM. PROC. ANN. art. 42.03 (West 2006 & Supp. 2014) (requiring that

sentence be pronounced in the defendant’s presence). He further contends that

there is no evidence that he was sentenced in open court.          The trial court’s

judgment, however, recites that Briggs appeared with counsel to be sentenced and

that it considered any pre-sentence investigation report. A notation on the docket

sheet corresponding to the date of the judgment reads: “Delivery order issued,

Texas Department of Criminal Justice.” The record contains Briggs’s written

waiver of a record of the plea proceedings.

      We uphold a trial court’s recitals in a judgment absent indicia that they are

erroneous. A presumption of regularity applies to all proceedings and documents

in the trial court. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000)

(citing McCloud v. State, 527 S.W.2d 885, 887 (Tex. Crim. App. 1975)). Per this

presumption of regularity, recitals in court documents such as the judgment “are



                                         4
binding in the absence of direct proof of their falsity.” Breazale v. State, 683

S.W.2d 446, 450 (Tex. Crim. App. 1984); accord Houston v. State, 201 S.W.3d

212, 218 (Tex. App.—Houston [14th Dist.] 2006). The defendant bears the burden

of overcoming this presumption. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex.

Crim. App. 1986).

      Briggs claims that the docket sheet entry for February 18, 2015 rebuts the

presumption of regularity. The docket sheet is silent, however, as to whether the

trial court held a punishment hearing or considered any pre-sentence investigation

report. The absence of an entry in the docket sheet is not an affirmative showing

that a hearing did not occur. See id. Because the judgment is not affirmatively

contradicted by the record, we presume that it correctly reflects the events in the

trial court, including that the trial court heard the parties on the matter of

punishment and sentenced Briggs in open court. See Light, 15 S.W.3d at 107;

Breazale, 683 S.W.2d at 450.

                           Ineffective Assistance of Counsel

      In his second issue, Briggs challenges the effectiveness of trial counsel in

regard to his punishment hearing. To prevail on a claim of ineffective assistance of

counsel, the defendant must show that (1) his counsel’s performance was deficient;

and (2) a reasonable probability exists that the result of the proceeding would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,



                                         5
2064 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The

first prong of this test requires the defendant to show that counsel’s performance

fell below an objective standard of reasonableness, in that counsel made such

serious errors that he was not functioning effectively as counsel. Strickland, 466

U.S. at 687, 104 S. Ct. at 2064; Lopez, 343 S.W.3d at 142. Thus, the defendant

must prove objectively, by a preponderance of the evidence, that his counsel’s

representation fell below professional standards.     Lopez, 343 S.W.3d at 142;

Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). The second prong

requires the defendant to show a reasonable probability that, if not for counsel’s

errors, the result of the proceeding would have been different. Strickland, 466 U.S.

at 694, 104 S. Ct. at 2068; Lopez, 343 S.W.3d at 142. A reasonable probability is

“a probability sufficient to undermine confidence in the outcome.” Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing Hernandez v. State, 726

S.W.2d 53, 55 (Tex. Crim. App. 1986)).

      Briggs contends that his attorney was ineffective for failing to request that a

reporter’s record be made of the punishment hearing. He asks that we find this to

be ineffective assistance per se. The failure to request that a court reporter record

trial proceedings, however, is not ineffective assistance of counsel per se. Young v.

State, 425 S.W.3d 469, 473 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d);

Gonzales v. State, 732 S.W.2d 67, 68 (Tex. App.—Houston [1st Dist.] 1987, no



                                         6
pet.). Briggs waived the reporter’s record as part of the plea bargain he made with

the State.

      Regardless whether waiver of the punishment hearing was a reasonable

strategy in the context of a plea bargain without an agreed recommendation, we

cannot find that Briggs has proved the second prong under Strickland. See id.

Without a court reporter’s record, we do not know what transpired in the trial

court. Young, 425 S.W.3d at 473; McQueen v. State, 702 S.W.2d 302, 304 (Tex.

App.—Houston [1st Dist.] 1985, no pet.) (“This Court cannot speculate as to what

actually transpired at trial.”). Because we can determine from the record neither

whether the trial court erred in determining punishment nor whether Briggs was

harmed by any error, we hold that Briggs has not established that his counsel

rendered ineffective assistance. Id.

                                       Conclusion

      We affirm the judgment of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. See TEX. R. APP. P. 47.2(b).




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