Affirmed as Modified; Opinion Filed August 26, 2013.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00671-CR

DEMARKO DEON COOPER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1

Dallas County, Texas

Trial Court Cause No. F11-27720-H

MEMORANDUM OPINION

Before Justices Lang, Myers, and Evans 

Opinion by Justice Evans

A jury convicted Demarko Deon Cooper of aggravated robbery with a deadly weapon 

and sentenced him to fifty years’ confinement. Appellant complains that he received ineffective 

assistance of trial and that the judgment should be modified to properly reflect his plea to the 

enhancement paragraphs in the case. We affirm the judgment as modified. The background of 

the case and the evidence adduced at trial are well known to the parties, and therefore we limit 

recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate 

Procedure 47.4 because the law to be applied in the case is well settled.

A surveillance video from the Dash-In Grocery that was admitted into evidence showed a 

man in a red baseball cap committing robbery with a deadly weapon in the store and then 

running from the scene, losing his cap as he flees. Forensic testing of the cap showed appellant 
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to be the major DNA contributor of the DNA taken from it. An accomplice to the robbery told 

the investigating officer that a “Marco” had been wearing the cap and had acted as the gunman

during the robbery. One of the store’s owners also identified appellant as the robber in a 

photographic lineup, although he had identified a non-suspect as the robber in a previous 

photographic lineup that did not contain appellant’s photograph. The investigating officer in the 

case testified about how he developed the initial suspects in the case and how he ultimately came 

to arrest appellant. Some of the officer’s testimony pertained to information he was given by 

third parties and an accomplice to the offense.

Appellant complains in his first point of error that he received ineffective assistance of 

counsel because his attorney failed to object to hearsay testimony given by the officer. He 

particularly complains the officer testified about (1) information he had received from a 

Richardson police officer about how the Richardson officer located the vehicle that had been 

used in the offense; (2) information he had received from the vehicle’s owner about whom she 

had loaned it to; (3) information from an accomplice to the crime implicating a “Marco” in the 

offense; (4) information the officer learned from occupants of an apartment complex in his 

search for “Marco” and where he might live; and (5) information from another officer identifying 

“Marco” as appellant.

To prevail on his claim of ineffective assistance of counsel, appellant must show his 

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). Failure to make the required showing either 
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of deficient performance or sufficient prejudice defeats an ineffectiveness claim. See Andrews v. 

State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).

We 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 employed, we will presume sound 

trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Texas 

procedure makes it “virtually impossible” for appellate counsel to present an 

adequate ineffective assistance of trial counsel claim on direct review. Trevino v. Thaler, 569 

U.S ____, ____, 133 S. Ct. 1911, 1918 (2013). This is because the inherent nature of 

most ineffective assistance of trial counsel claims means that the trial court record “will often fail 

to ‘contai[n] the information necessary to substantiate’ the claim.” Id. (quoting Ex parte Torres, 

943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc)).

The record before us contains no discussion of trial counsel’s reasons for refraining from 

objecting to the complained-of testimony. As the State notes in its reply brief, it is possible 

defense counsel chose not to object to the testimony because he knew the State could elicit the 

same evidence through the testimony of the assorted witnesses, and he thought such testimony 

would be more damaging to appellant’s case. See Ortiz v. State, 93 S.W.3d 79, 95 (Tex. Crim. 

App. 2002). Appellant has failed to meet his burden of proving ineffective assistance of trial 

counsel in his case. We overrule his first point of error.

In his second point of error, appellant asserts that the trial court’s judgment should be 

modified to reflect that he entered pleas of not true to the two enhancement paragraphs in his 

case. The State agrees. The judgment currently states that appellant pleaded true to the 

enhancement paragraphs, but the court reporter’s record makes clear he entered a plea of not true 

to each enhancement paragraph. We have the authority to modify the trial court’s judgment to 
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make the record speak the truth. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas

1991, pet. ref’d); TEX. R. APP. P. 43.2(b). We therefore sustain appellant’s second point of error 

and modify the judgment to reflect that appellant entered a plea of not true to each of the 

enhancement paragraphs.

We affirm the trial court’s judgment as modified.

Do Not Publish

TEX. R. APP. P. 47

120671F.U05

/David Evans/

DAVID W. EVANS

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

DEMARKO DEON COOPER, Appellant

No. 05-12-00671-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court 

No. 1, Dallas County, Texas

Trial Court Cause No. F11-27720-H.

Opinion delivered by Justice Evans. 

Justices Lang and Myers participating.

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

to reflect that appellant pleaded NOT TRUE to each of the two enhancement 

paragraphs.

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 26th day of August, 2013.

 

/David Evans/

DAVID EVANS

JUSTICE