Affirmed and Memorandum Opinion filed September 6, 2012.




                                         In The


                      Fourteenth Court of Appeals

                                 NO. 14-11-00603-CR



                    KRISTEN LACHELLE BONNEE, Appellant,
                                            V.
                         THE STATE OF TEXAS, Appellee.

                       On Appeal from the 337th District Court
                                   Harris County
                           Trial Court Cause No. 1285410



                        MEMORANDUM OPINION

      After being charged with theft from the elderly, and pleading guilty, appellant
Kristen Lachelle Bonnee was convicted and sentenced to a term of imprisonment. In this
appeal she asserts ineffective assistance of counsel below. We affirm.

                                            I

      Bonnee was a home-healthcare worker caring for Geraldine Weldman, a woman
with numerous health problems who was 91 years old at the time of trial. Bonnee stole
almost $33,000 from Weldman over an eight-month period in 2009, emptying
Weldman’s bank accounts and forcing Weldman to move to a new apartment where her
quality of life was greatly diminished. Bonnee was indicted for the theft of between
$20,000 and $100,000 from an elderly individual, and the trial court properly admonished
her on the applicable range of punishment: a fine of up to $10,000 and between two and
twenty years’ confinement in the Institutional Division of the Texas Department of
Criminal Justice. Bonnee pleaded guilty and was sentenced to eighteen years in prison.
She did not move for a new trial.

       On appeal, Bonnee claims her trial counsel failed to communicate the State’s plea-
bargain offer of three years in prison. In her appellate briefing, she argues this is an offer
she would have accepted. Her argument relies on two documents in the record: an Agreed
Setting form filed February 18, 2011, and footnote 53 of an LSI-R1 report the trial court
relied on in assessing punishment. The Agreed Setting form is signed by Bonnee’s
attorney, the State’s attorney, and the trial court, and indicates that Bonnee was offered a
plea-bargain offer of three years in prison. Though several other Agreed Setting forms in
the record were signed by Bonnee herself, the February 18 form is not. Instead, the words
“In Custody” are handwritten in the space where her signature would be. Bonnee argues
these documents show not only that her trial counsel failed to communicate a plea offer
but also that had the offer been communicated, she would have accepted it. We conclude
these documents establish neither fact.

       The LSI-R report was based on an interview with Bonnee conducted on April 20,
2011. Footnote 53 purportedly explains the interviewer’s opinion that Bonnee has a poor
attitude toward impending sentencing. The document contains the notation: “states no
amount of time was discussed w/her. thinks 4–5 yrs is fair. did not take $37k. changed

       1
          An LSI-R is a Level of Service Inventory-Revised, a 54-item tool used to assess the risk of
recidivism by criminal offenders. See, e.g., Kevin S. Douglas & Jennifer L. Skeem, Violence Risk
Assessment, 11 Psychol. Pub. Pol’y & L. 347, 352–53 (2005).


                                                 2
time frame to 5–10 yrs. hrs cut, no new patients. gr-father moved in w/her so she could
care for him.”

                                            II

       An accused is entitled to reasonably effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984); King v. State, 649 S.W.2d 42, 44 (Tex. Crim.
App. 1983); Bradley v. State, 359 S.W.3d 912, 916 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d). In reviewing claims of ineffective assistance of counsel, we apply a
two-prong test. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). To
establish ineffective assistance, an appellant must prove by a preponderance of the
evidence that (1) his trial counsel’s representation fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel’s deficient
performance, the result of the trial would have been different. Strickland, 466 U.S. at
687; Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001). If a criminal
defendant can prove that trial counsel’s performance was deficient, she must still
affirmatively prove that counsel’s actions prejudiced her. Thompson, 9 S.W.3d at 812. To
demonstrate prejudice, a defendant must establish a reasonable probability that the result
of the proceeding would have been different if trial counsel had acted professionally. Id.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Mallett, 65 S.W.3d at 63.

       When evaluating a claim of ineffective assistance, we look to the totality of the
representation and the particular circumstances of each case. Thompson, 9 S.W.3d at 813.
Isolated strategic errors made by trial counsel do not necessarily render his performance
ineffective. See Robertson v. State, 187 S.W.3d 475, 483–84 (Tex. Crim. App. 2006).
Judicial review of counsel’s performance must be highly deferential and avoid the
distorting effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App.
1984) (citing Strickland, 466 U.S. at 689). Accordingly, there is a strong presumption that
counsel’s conduct fell within a wide range of reasonable representation. Salinas v. State,

                                            3
163 S.W.3d 734, 740 (Tex. Crim. App. 2005). The appellant bears the burden of proving
by a preponderance of the evidence that counsel was ineffective. Thompson, 9 S.W.3d at
813 (citing Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984)). To overcome
the presumption of reasonable professional assistance, any allegation of ineffectiveness
must be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Id. at 814. Direct appeal is generally an inadequate vehicle for
raising such a claim because the record is generally undeveloped and very rarely do
claims of ineffective assistance survive on direct appeal. Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005); see also Andrews v. State, 159 S.W.3d 98, 103 (Tex.
Crim. App. 2005).

                                             III

       Bonnee claims footnote 53 of the LSI-R is evidence that she believed as many as
ten years in prison would be a fair punishment, and she notes the disparity between that
purported belief and what she describes as her “apparent” refusal to accept a plea-bargain
offer of three years in prison. In her appellate brief, Bonnee argues that, “[t]he only
apparent explanation for [her] failure to accept a plea[-]bargain offer for a term of years
lower than even she considered fair is that she was unaware of it.”

       Failure of defense counsel to inform a criminal defendant of plea offers made by
the State is an omission that falls below an objective standard of professional
reasonableness. Ex parte Lemke, 13 S.W.3d 791, 795 (Tex. Crim. App. 2000). The
prevailing view is that a defense counsel’s failure to communicate a plea offer is
inherently prejudicial to the defendant. See id. at 796.

       However, to prevail on appeal, Bonnee must demonstrate, by a preponderance of
the evidence, that defense counsel failed to communicate the three-year plea offer. See
Thompson, 9 S.W.3d at 813. She fails to meet that burden. There was no motion for new
trial below, and the record contains very few facts at all regarding the three-year plea
offer. The facts available do not rebut the strong presumption that counsel’s conduct falls

                                              4
within the wide range of reasonable representation. See Salinas, 163 S.W.3d at 740. That
presumption of reasonable representation necessarily includes a presumption that counsel
has communicated all plea offers to the defendant. See Ex parte Lemke, 13 S.W.3d at
795. The record contains no evidence that would rebut this presumption. And, in any
event, we would be especially reluctant to find ineffective assistance where, as here, the
attorney himself has not had an opportunity to rebut the allegations against him. See
Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

      Bonnee’s argument that she would have accepted the plea offer is based entirely
on footnote 53 of the LSI-R report. The footnote is written with shorthand references, and
without an explanation from the author, its meaning and significance is unclear. The
record contains no evidence that Bonnee would have accepted the offer she claims was
not communicated to her. The documents on which she relies are insufficient to make this
showing. Even assuming Bonnee’s explanation were correct, footnote 53 does not
amount to the firm foundation in the record required to support an allegation of
ineffective assistance of counsel. See Thompson, 9 S.W.3d at 813. Bonnee has failed to
meet the requirements of Strickland, and we overrule her sole issue on appeal.

                                          ***

      For the foregoing reasons, we affirm the trial court’s judgment.




                                         /s/       Jeffrey V. Brown
                                                   Justice



Panel consists of Justices Frost, Brown, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).




                                               5
