No. 14-05-00309-CR
Memorandum Opinion filed March 30, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 400th District Court, Fort Bend County, Texas, Trial Court Cause No. 39,353. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
EVA M. GUZMAN, Justice.
A jury convicted trial, appellant Justin Glaze Edmonds was convicted of the offense of aggravated sexual assault of a child and sentenced him to five years confinement in the Texas Department of Criminal Justice Division — Institutional Division. In accordance with the jury's recommendation, the trial court suspended the sentence and placed appellant on community supervision for eight years. In his sole point of error, appellant claims he received ineffective assistance of counsel because his attorney failed to object when the State moved to amend the indictment on the date trial began. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUNDBACKGROUND
On January 20, 2004, appellant was indicted for the offense of aggravated sexual assault of a child younger than fourteen years of age. The complainant's name, however, was misspelled in the indictment. On February 9, 2005, the day voir dire began, the State filed a motion to amend the indictment to reflect the correct spelling of the victim's last name, which was "Tabor." Appellant's trial Defense counsel stated that he did not object to the State's motion and acknowledged his understanding that he was entitled to a ten-day continuance if an objection to the amendment was sustained. After waiving his right to a continuance, the State and appellant's trial counsel discussed various pre-trial matters with the trial court, and did not return to the issue of amending the indictment. At the conclusion of the trial, the jury convicted appellant of aggravated sexual assault and sentenced him to five years imprisonment, but suspended the sentence for eight years. Appellant did not file a motion for new trial. This appeal ensued. II. DISCUSSION
A. Standard of Review In order to prevail on a claim of ineffective assistance of counsel, appellant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Specifically, he must show that his attorney's performance was deficient and that he was prejudiced by his attorney's deficient performance. Id. at 6874. In order to demonstrate prejudice, appellant "must show that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. There is a strong presumption that defense counsel's conduct falls within the "wide range of reasonable professional assistance." Id. at 689. In order for an appellate court to find trial counsel ineffective, "any allegation 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). Generally, when the record is silent as to counsel's motivations for tactical decisions, an appellant cannot overcome the "strong presumption that counsel's conduct was reasonable." Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). B. Analysis
In the present case, appellant argues that his attorney was ineffective for failing to object when the State amended the indictment to reflect the correct spelling of the victim's name on the date trial began. He argues that he was entitled to a ten-day continuance pursuant to article 28.10 of the Texas Code of Criminal Procedure Article 28.10, and that counsel's performance was deficient in waiving the continuance. With respect to counsel's performance, the record does not reflect counsel's reasons or strategy behind waiving the ten-day continuance. Therefore, appellant is unable to show his attorney's performance was deficient. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813. Regarding prejudice, appellant claims that had his attorney objected to the amendment, and the trial court had overruled his objection, appellant would have been entitled to a new trial. Appellant's conjecture over what might have occurred at trial and his speculation as to what he might have been entitled to on appeal are not allegations of ineffectiveness which are firmly grounded in the record. See Thompson, 9 S.W.3d at 813. Moreover, appellant does not argue how a ten-day continuance would have changed the outcome of the proceeding, had the trial court sustained an objection to the amended indictment. As such, appellant is unable to show he was prejudiced by counsel's alleged ineffectiveness. Strickland, 466 U.S. at 684. Appellant has not satisfied the requirements of the two-prong test for establishing a claim of ineffective assistance of counsel. Id. Accordingly, appellant's sole point of error is overruled.