No. 05-09-00334-CR
Opinion Filed April 1, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-71115-WR.
Before Justices RICHTER, LANG-MIERS, and MURPHY.
Opinion By Justice RICHTER.
Following a plea of guilty, appellant was convicted of injury to a child causing serious bodily injury and sentenced to 30 years' imprisonment. In two issues on appeal, appellant argues trial counsel was ineffective for failing to argue a lesser-included offense and the trial court abused its discretion by sentencing appellant to 30 years' imprisonment. Concluding appellant's arguments are without merit, we affirm the trial court's judgment. The background of the case and the evidence adduced at trial are well known to the parties, and therefore we limit our recitation of the facts. We issue this memorandum opinion pursuant to Tex. R. App. P. 47.4 because the law to be applied in this case is well settled. Appellant gave birth to a child, covered him in a towel, placed him in a plastic bag, and threw him in the trash. Appellant was subsequently indicted for capital murder. The State filed a motion to reduce the offense charged, after which appellant entered an open plea of guilty to the offense of injury to a child causing serious bodily injury. The trial court accepted appellant's plea and sentenced her to 30 years' imprisonment.
Ineffective Assistance of Counsel
In her first issue, appellant argues trial counsel was ineffective because he failed to argue that appellant should be convicted of a lesser-included offense. According to appellant, although she was charged with an offense that required proof of an intentional or knowing act, the record contains evidence that appellant committed only a criminally negligent or reckless act. Appellant acknowledges that the trial court, as the trier of facts, may chose to find the defendant guilty of a lesser-included offense on its own accord. See Aldrich v. State, 104 S.W.3d 890, 893 (Tex. Crim. App. 2003). Nonetheless, appellant insists counsel's performance was deficient because he failed to make a specific request. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Appellant must show by a preponderance of the evidence that her counsel's performance fell below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate that the claim has merit. Goodspeed, 187 S.W.3d at 392 (quoting Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). In the absence of a record of counsel's reasoning or strategy, we must apply the strong presumption that counsel's performance was part of trial strategy, and we typically will not second guess a matter of trial strategy. See id.; Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). When trial counsel has not had an opportunity to explain his actions, we should not find his performance deficient unless it was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Thus, in challenging counsel's performance, appellant's burden is "highly demanding" and she faces a "substantial risk of failure" on direct appeal. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Thompson, 9 S.W.3d at 813. Appellant filed a motion for new trial, but she did not raise ineffective assistance in the motion and did not have a hearing. As a result, we have no record showing that counsel was given an opportunity to explain his performance, and appellant has not rebutted the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Without a record, we cannot conclude that appellant has met her burden under the first prong of Strickland, and must presume counsel's decisions were made as a part of sound trial strategy. Appellant's first issue is resolved against her. Sentencing
In her second issue, appellant contends the trial court abused its discretion in sentencing her to 30 years in prison because the sentence violates the objectives of the system of prohibition, penalties, and correctional measures in the penal code. Appellant asserts the evidence establishes that she is a sheltered, naive young woman with a low IQ who was abandoned by the married man who impregnated her, and there is nothing in the record to suggest she is beyond redemption or cannot be rehabilitated. The State responds that appellant has failed to preserve her complaint for appellate review and the trial court did not abuse its discretion. We note initially that appellant did not complain about the sentence either at the time it was imposed or in her motion for new trial. See Tex. R. App. P. 33.1(a); Castenada v. State, 133 S.W.3d 719, 723 (Tex. App.-Dallas 2003, no pet.). Appellant asserts that no objection was required in these circumstances because the basis for the ground of appeal is apparent from the context, and since counsel argued for a light sentence, an objection would have been redundant. Despite appellant's request for a light sentence, however, she never argued that a lengthy sentence violated the objectives of the Texas Penal Code. When the trial court inquired whether there was any reason why sentence should not be imposed, defense counsel responded, "[n]one, Your Honor." The boilerplate language in appellant's motion for new trial, which claimed the verdict "is contrary to the law and the evidence," also failed to inform the trial court of any complaint that the sentence was contrary to the objectives of the penal code. See Castenada, 135 S.W.3d at 723 n. 1. Because appellant failed to advance her argument in the trial court, nothing has been preserved for our review. But even if we were to consider appellant's argument on appeal, the record does not reflect that the trial court abused its discretion in sentencing appellant. There is nothing to suggest the trial court did not consider the entire range of punishment. Indeed, when pronouncing sentence, the trial judge commented that he had thought about the case a long time, found it very disturbing, and was troubled by appellant's lack of candor with the police and the court. The sentence was within the statutory range of punishment for the offense. See Tex. Penal Code Ann. §§ 12.32, 22.04 (e) (Vernon 2003). Therefore, the sentence is not cruel and unusual, and complies with the objectives of the penal code. See Carpenter v. State, 783 S.W.2d 232, 233 (Tex. App.-Dallas 1989, no pet.). Appellant's second issue is overruled. Having resolved both of appellant's issues against her, we affirm the trial court's judgment.