Affirmed as Modified; Opinion Filed June 28, 2016.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-15-01319-CR
                                      No. 05-15-01320-CR
                       MICHAEL DEWAYNE ANTHONY, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                     On Appeal from the 283rd Judicial District Court
                                   Dallas County, Texas
                     Trial Court Cause Nos. F14-18562-T, F14-76602-T

                             MEMORANDUM OPINION
                         Before Justices Myers, Stoddart, and Whitehill
                                   Opinion by Justice Myers
       Michael Dewayne Anthony appeals his convictions for assault on a public servant and

robbery. In three issues, appellant contends he did not receive effective assistance of counsel

and the trial court’s judgments should be modified to show there was no plea agreement in either

case. We modify the trial court’s judgments and affirm as modified.

                                         BACKGROUND

       Appellant waived a jury, pleaded guilty to assault on a public servant and robbery, and

pleaded true to two enhancement paragraphs. See TEX. PENAL CODE ANN. §§ 22.01(a)(1), (b)(1),

29.02(a)(a) (West 2011 & Supp. 2015). During the punishment phase, appellant testified about

the offenses and his criminal history. Appellant testified he rejected the prosecutor’s plea offer

of three years’ imprisonment because he wanted to enter an open guilty plea and ask the trial
court for probation. The trial court found appellant guilty of assault on a public servant and

robbery, found the enhancement paragraphs true, and sentenced appellant to twenty-five years’

imprisonment in each case.

                                      INEFFECTIVE COUNSEL

       In his first issue, appellant contends he did not receive effective assistance of counsel

because counsel failed to investigate the fact that he had been unsuccessful on a previous

probation. Because of counsel’s ineffectiveness, argues appellant, he was induced to initially fail

to disclose a prior unsuccessful probation, causing the trial court to reject his request for

probation. Appellant asserts that there is a reasonable probability that the disposition of these

cases would have been different had counsel known his probation history.

       To show ineffective assistance of counsel, an appellant must demonstrate that (1)

counsel’s representation fell below an objective standard of reasonableness based on prevailing

professional norms, and (2) but for counsel’s errors, there is a reasonable probability the result of

the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694

(1984). This standard of proof of ineffective assistance applies to the punishment phase as well

as to the trial stage of criminal proceedings. Hernandez v. State, 988 S.W.2d 770, 771–72 (Tex.

Crim. App. 1999).

       Evaluations of effectiveness are based on “the totality of the representation.” Frangias v.

State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013). Allegations of ineffectiveness must be

firmly established by the record. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). It

is an appellant’s burden to prove a claim of ineffective assistance of counsel by a preponderance

of the evidence. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The appellant

must satisfy both prongs of the Strickland test, or the claim of ineffective assistance will fail.

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

                                                –2–
       In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness

claims because the record for that type of claim is usually undeveloped. Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett, 65 S.W.3d at 63. In addition, before

their representation is deemed ineffective, trial attorneys should be afforded the opportunity to

explain their actions. Id. If that opportunity has not been provided, an appellate court should not

determine that an attorney’s performance was ineffective unless the conduct at issue “was so

outrageous that no competent attorney would have engaged in it.” See Garcia, 57 S.W.3d at

440.

       Although appellant filed a motion for new trial in each case, he did not assert his counsel

had been ineffective. Accordingly, trial counsel did not have an opportunity to explain herself in

the trial court and we cannot determine from this record counsel’s strategy conducting

appellant’s defense. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);

Goodspeed, 187 S.W.3d at 392. Because there is no evidence in the record concerning trial

counsel’s actions, appellant has not overcome the strong presumption of reasonable assistance

and has not established trial counsel’s conduct was so outrageous that no competent attorney

would have engaged in it. See Garcia, 57 S.W.3d at 440.

       Further, on this record, appellant has failed to establish he was prejudiced by the alleged

error. Appellant testified he understood a twenty-five-year sentence would be the minimum

sentence the trial court could assess due to his pleas of true to the two enhancement paragraphs

alleging prior felony convictions. Appellant stated he wanted to take a chance that the trial court

would grant him probation instead of prison, and he acknowledged he did not follow counsel’s

advice not to enter open pleas of guilty.

       We conclude appellant has not met his burden of showing that trial counsel was

ineffective. See Thompson, 9 S.W.3d at 812. We overrule appellant’s first issue.

                                               –3–
                                       MODIFY JUDGMENTS

       In appellant’s second and third issues, he contends the trial court’s judgments should be

modified to show there was no plea bargain agreement in either case. Because the record clearly

shows appellant entered open guilty pleas to the charges in the indictments, we sustain his

second and third issues.

       We also note the judgments erroneously recite the pleas and findings on the two

enhancement paragraphs as “N/A.” Accordingly, we modify each judgment as follows: the section

entitled “terms of plea bargain” is modified to show “open,” the section entitled “plea to 1st

enhancement paragraph” is modified to show “true,” the section entitled “findings on 1st

enhancement paragraph” is modified to show “true,” the section entitled “plea to 2nd

enhancement/habitual paragraph” is modified to show “true,” and the section entitled “findings

on 2nd enhancement/habitual paragraph” is modified to show “true.” See TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d

526, 529–30 (Tex. App.—Dallas 1991, pet. ref'd).

       As modified, we affirm the trial court’s judgments.



                                                      /Lana Myers/
                                                      LANA MYERS
                                                      JUSTICE
Do Not Publish
TEX. R. APP. P. 47
151319F.U05




                                                –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MICHAEL DEWAYNE ANTHONY,                              On Appeal from the 283rd Judicial District
Appellant                                             Court, Dallas County, Texas
                                                      Trial Court Cause No. F14-18562-T.
No. 05-15-01319-CR         V.                         Opinion delivered by Justice Myers. Justices
                                                      Stoddart and Whitehill participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The section entitled “Terms of Plea Bargain” is modified to show “Open.”

       Add section “Plea to 1st Enhancement Paragraph: True.”

       Add section “Plea to 2nd Enhancement/Habitual Paragraph: True.”

       Add section “Findings on 1st Enhancement Paragraph: True.”

       Add section “Findings on 2nd Enhancement/Habitual Paragraph: True.”

       As modified, we AFFIRM the trial court’s judgment.




Judgment entered this 28th day of June, 2016.




                                                –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

MICHAEL DEWAYNE ANTHONY,                              On Appeal from the 283rd Judicial District
Appellant                                             Court, Dallas County, Texas
                                                      Trial Court Cause No. F14-76602-T.
No. 05-15-01320-CR         V.                         Opinion delivered by Justice Myers. Justices
                                                      Stoddart and Whitehill participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The section entitled “Terms of Plea Bargain” is modified to show “Open.”

       Add section “Plea to 1st Enhancement Paragraph: True.”

       Add section “Plea to 2nd Enhancement/Habitual Paragraph: True.”

       Add section “Findings on 1st Enhancement Paragraph: True.”

       Add section “Findings on 2nd Enhancement/Habitual Paragraph: True.”

       As modified, we AFFIRM the trial court’s judgment.




Judgment entered this 28th day of June, 2016.




                                                –6–
