AFFIRMED; Opinion Filed June 

### 2

, 2000.

in The 

### Gttnxrt 

## nt Anat ittI 3htrirt uf iiItxai at Oat{zui No. 05-99-00123-CR No. 05-99-00124-CR
CUTBERTO CARRENO CASTANEDA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause Nos. F98-52229-VK and F98-52230-VK 

### OPINION Before Justices Ovard, Morris, and Wright Opinion By Ovard Cutberto Carreno Casteneda appeals his convictions for possessing four or more grams of cocaine with the intent to deliver and possessing 400 or more grams ofheroin with the intent to deliver. After a singletrial onbothoffenses, appellantwas sentencedto 45 years imprisonmentand
a $10,000 fineforthe cocaine offense and 75 years imprisonmentand a $250,000 fineforthe heroin offense. In one point of error, appellant contends he received ineffective assistance of counsel because his trial counsel: (1) waived his right to have thejury consider probation as a possible punishment; (2) failed to object when the trial court dismissed a potentialjuror sna sponte; and (3)failed to preserve errorwhen thetrial court denied counsel’s challengefor cause to apotentialjuror. Because we conclude appellant did notmeethis burden ofproving ineffectiveassistance, we affirm. Factual Background Police officers executed a search warrant at appellant’s apartment and discovered large amounts ofheroin, cocaine, marijuana, and drugparaphernalia. Appellantwas arrested atthe scene. Standard ofReview To prevail on an ineffective assistance of counsel claim, appellant must prove by a preponderance ofthe evidence that (1) counsel’s representation fell below an objective standard of reasonableness based upon prevailing norms and (2) there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. See Thompson i State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); see also Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999) (holding that the same standard ofreview applies to all ineffective assistance challenges). We examinethetotality ofcounsel’s representationto determine whether appellant received effective assistance. See Thompson, 9 S.W.3d at 813. We do notjudge counsel’s strategic decisions in hindsight, and we strongly presume counsel’s competence. See Id Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstratethe alleged ineffectiveness. See Id. In most cases, a silentrecord which provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. See id. at 8 13-14. Ineffective Assistance ofCounsel Appellant first argues his trial counsel’s representation was ineffective because counsel waived appellant’s rightto havethejury considerprobation as apossible punishment. Specifically,

—2—appellant contends trial counsel erredby filing an unsworn application forprobation and by failing to produce any evidence at trial ofappellant’s eligibility for probation. Although appellant claims he was eligible for probation, there is no indication in the record that evidence of appellant’s eligibility existed. Therefore, we cannot conclude trial counsel’s failure to present such evidence
was objectively unreasonable. See Wi/kerson v. State, 726 S.W.2d 542, 550 (Tex. Crim. App. 1986); Johnston v. State, 959 S.W.2d 230, 236 (Tex. App—Dallas 1997, no writ). In addition, without evidence ofappellant’s eligibility, we cannot conclude trial counsel’s failure to file a sworn application for probation constituted ineffective assistance. While appellant correctly argues probation is possible only when a sworn application is filed before trial, see TEx. CoDE CRIM. PROC. ANN. art. 42.12 (Vernon Supp. 2000), there is no evidence in the record appellant was otherwise eligible for probation. Consequently, appellant has not established a reasonable probability that he would have received probation had trial counsel filed a sworn application. See Thompson, 9 S.W.3d at 813. Next, appellantallegeshistrialcounsel’srepresentationwas ineffectivebecausetrial counsel failed to object when the trial court dismissed a prospectivejuror sua sponte. Assuming the trial court’s actionwas error, the record is silentas to counsel’s rationalefornotobjecting. Counsel may havehadreasontobelievethetrial court’s actionwas beneficial to appellant. Withouttrial counsel’s testimony, we cannot meaningfully address counsel’s reasoning or strategy. See Id at 814; McWhorter v. State, 957 S.W.2d 928, 931 (Tex. App,—Beaumont 1997, no pet.). Therefore, appellant has not established trial counsel’s failure to object constituted objectively unreasonable performance. See Thompson, 9 S.W.3d at 814. Finally, appellantclaimstrialcounsel’srepresentationwas ineffectivebecausecounsel failed

—3—to preserve error afterthe trial court denied a challenge for cause to aprospectivejuror. Appellant argues he was prejudiced because the vote ofonly onejuror can prevent a conviction and another juror could have influenced thejury to impose a lesser sentence. However, even ifappellant’s trial counsel erred as appellant alleges, an assertion that error had some conceivable effect on the outcome ofa case is not enough forus to conclude appellant suffered a prejudice. SeeMcFarland
v. State, 928 S.W.2d 482, 500 (Tex, Crim. App. 1996). To prove prejudice, appellant must show from the record a reasonable probability that but for the error, the fact finder would have made different findings respecting his guilt or his sentence. See id Appellant’s assertion that a different juror may have influenced thejury to reach a different conclusion does not reach the level of a reasonable probability. Consequently, appellant has not established he was prejudiced by trial counsel’s alleged failure to preserve for review the challenge for cause. See Id We conclude appellant failed to prove he received ineffective assistance in any of the grounds asserted, therefore, we overrule his point oferror. We affirm the trial court’sjudgment.

JOHN OVARD JUSTICE
Do Not Publish Thx. R. App. P. 47

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### Qnurt of uati 1Fiftl! 3nitritt of exaii at 3atIa JUDGMENT CIJTBERTO CARRENO CASTANEDA, Appellant No. 05-99-00123-CR V. THE STATE OF TEXAS, Appellee Appeal from the Criminal District Court No. 4 ofDallas County, Texas. (Tr.Ct.No. F98- 52229-VK). Opinion delivered by Justice Ovard, Justices Morris and Wright participating.
Based on the Court’s opinion ofthis date, thejudgment ofthe trial court is AFFIRMED.
Judgment entered June 

### 11, 2000.

JOHN OVARD JUSTICE(Ltnurt 

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## Aiiaki 3Fiftt! ThiInrt Lit 

### Jixai 

## at 3atkui JUDGMENT CUTBERTO CARRENO CASTANEDA, Appellant No. 05-99-00124-CR V Appeal from the Criminal District Court No. 4 ofDallas County, Texas, (Tr.Ct.No. F98- 52230-VK). Opinion delivered by Justice Ovard, Justices Morris and Wright participating. THE STATE OF TEXAS, Appellee Based on the Court’s opinion ofthis date, thejudgment ofthe trial court is AFFIRMED.
Judgment entered June 

## Z1

, 2000.

/ I ;J OVARD JUSTICE /41 ./.