Tonia Landry v. State of Texas ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-235 CR ____________________

TONIA LANDRY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. 83596

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O P I N I O N

Without benefit of a plea bargain agreement, Landry pleaded guilty to the felony offense of injury to a child. See Tex. Pen. Code Ann. § 22.04 (Vernon Supp. 2002). Landry was convicted and sentenced to twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division.

After Landry perfected appeal to this Court, her appellate counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 493 (1967) and High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), concluding there was no arguable error to support an appeal. Landry then filed a pro se brief, and brings two issues on appeal.

In her first issue, she asserts the indictment was defective as it failed to include the element of "recklessly" causing injury to a child. However, Landry is wrong about the wording of the indictment. The wording for count two of the indictment, the one to which Landry pleaded guilty, alleged that Landry did "recklessly cause serious bodily injury to [Complainant], a child not older than fourteen years of age . . . by shaking and squeezing Complainant with her hand."(Emphasis added). Issue one is overruled.

In her second issue, Landry contends she received ineffective assistance of counsel. In order for Landry to prevail on her ineffective assistance of counsel claim, she must show both deficient conduct and prejudice. In other words, she must demonstrate that her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that there is a reasonable probability that but for counsel's ineffectiveness, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Allegations of ineffectiveness "must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Landry makes several complaints about defense counsel. She maintains defense counsel failed to object to the reading of the defective indictment. However, as explained above, the indictment was not defective and further the record shows that reading of the indictment was waived. Landry also asserts her attorney failed to ensure that she was sentenced for a state jail felony under Texas Penal Code section 22.04 (f). However, section 22.04 (f) only applies to offenses under subsection 22.04 (a)(3), which concerns conduct causing "bodily injury." See Tex. Pen. Code Ann. § 22.04 (Vernon Supp. 2002). And Landry was indicted under section 22.04 (a)(1) which concerns conduct causing "serious bodily injury." (Emphasis added).

Landry also complains of matters not found in the record. She alleges her defense counsel failed to investigate or prepare her case properly, failed to inform her of the consequences of her guilty plea, and failed to inform her she could receive the maximum sentence. ⁽¹⁾

Absent an evidentiary hearing in which defense counsel is provided the opportunity to explain his actions, and in which Landry is able to fully develop evidence supporting her claim of ineffective assistance, Landry cannot overcome the presumption that counsel rendered reasonably effective assistance. Moreover, Landry does not establish that but for counsel's conduct, the result would have been different. Issue two is overruled.  

We have reviewed the clerk's and reporter's records and find no arguable error requiring us to order appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Accordingly, we affirm the trial court's judgment.  

AFFIRMED.

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DON BURGESS

Justice

Submitted on July 12, 2002

Opinion Delivered July 24, 2002

Do not publish

Before Walker, C.J., Burgess, and Gaultney, JJ.

1. The trial court properly admonished Landry when she entered her guilty plea, and explained the range of punishments. Landry also signed written admonishments.