Lisa Ragusa v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

No. 04-00-00314-CR
Lisa RAGUSA,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 719268
Honorable Wayne A. Christian II, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 28, 2001

AFFIRMED

Lisa Ragusa appeals the judgment convicting her of assault causing bodily injury and sentencing her to one year in the jail, probated for two years. We affirm.

Standard of Review

To sustain an ineffective assistance of counsel claim, a defendant must show: (1) trial counsel's performance was deficient, and (2) the deficient performance prejudiced his defense to such an extent confidence in the outcome is undermined. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland v. Washington, 466 U.S. 668, 700 (1984). The failure to seek a continuance to procure witness testimony will not constitute ineffective assistance of counsel absent a showing that the witness was available and his testimony would benefit the defendant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).

Discussion

Ragusa contends her trial counsel was ineffective for failing to move for a continuance or have an attachment issued to secure further testimony from Officer Kerawalla, who had testified on cross-examination that Ragusa had told him there was a fight and she was defending herself. However, the record does not establish that Kerawalla would have testified in a manner that would have benefitted Ragusa. She has thus failed to sustain her burden under King.

Conclusion

Considering the totality of the representation, Ragusa has failed to demonstrate that her trial counsel's performance was deficient or that, but for any deficiency, a different outcome would have resulted. We therefore overrule Ragusa's point of error and affirm the judgment.

Sarah B. Duncan, Justice

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