Lacedric Ray v. State ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00285-CR
No. 10-10-00286-CR
No. 10-10-00287-CR
No. 10-10-00288-CR
No. 10-10-00289-CR
LACEDRIC RAY,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court Nos. 11343-A, 11344-A, 11345-A, 11346-A and 11630-A
MEMORANDUM OPINION
A jury found Appellant Lacedric Ray guilty of aggravated assault with a deadly
weapon in appellate cause numbers 10-10-00285-CR (trial court cause number 11343-A),
10-10-00286-CR (trial court cause number 11344-A), and 10-10-00287-CR (trial court
cause number 11345-A); unlawful possession of a firearm by a felon in appellate cause
number 10-10-00288-CR (trial court cause number 11346-A); and unlawfully carrying a
weapon on premises licensed for the sale of alcohol in appellate cause number 10-10-
00289-CR (trial court cause number 11630-A). The jury assessed his punishment,
enhanced by prior felony convictions, at thirty-five years’ confinement for each offense,
to run concurrently. Ray appeals his convictions. Because he asserts identical issues
among the five appeals, we will decide them together.
MOTION FOR NEW TRIAL HEARING
In his first issue in each of his five appeals, Ray contends that the appeal should
be abated to the trial court for a hearing on his motion for new trial. Ray argues that he
is entitled to a hearing because his motions for new trial raise matters that are not
determinable from the record. The State responds that Ray did not meet the
presentment requirement of Rule of Appellate Procedure 21, and, therefore, the trial
court did not abuse its discretion in not holding a hearing on the motions. In light of
the State’s argument, Ray contends alternatively that if his trial counsel failed to timely
present the motions for new trial to the trial court, then his trial counsel was ineffective
for failing to do so. The State responds that Ray’s motions for new trial did not actually
raise facts outside the record upon which error could be predicated; thus, even if his
counsel had presented the motions to the trial court, a hearing was not required.
A. Presentment of Motion
The trial court is under no requirement to conduct a hearing on a motion for new
trial if the motion is not timely presented. See TEX. R. APP. P. 21.6 (“The defendant must
present the motion for new trial to the trial court within 10 days of filing it.”); Rozell v.
State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). In Carranza v. State, 960 S.W.2d 76
Ray v. State Page 2
(Tex. Crim. App. 1998), the Court of Criminal Appeals explained that presentment
requires a defendant to go beyond simply filing the motion for new trial with the clerk
of the trial court; “present” means “the record must show the movant for a new trial
sustained the burden of actually delivering the motion for new trial to the trial court or
otherwise bringing the motion to the attention or actual notice of the trial court.” Id. at
79. The Carranza court said that its holding was “essentially the same holding as that set
out in [a concurring] opinion” written by Judge Overstreet. Id. at 79-80. That opinion
stated:
In order to “present” a motion for new trial, the movant must give the
trial court actual notice that it has timely filed a motion for new trial and
request a hearing on the motion within ten days of filing it. The
presentment must be directed to the trial court or another authorized to
act on behalf of the trial court. The presentment must result in actual
notice to the trial court and may be evidenced by the judge’s signature or
notation on a proposed order or by a hearing date set on the docket. This
list is not meant to be exhaustive, but merely suggestive as to how one
may fulfill the communication requirement for presenting a motion for
new trial.
Id. at 81 (Overstreet, J., concurring).
Ray timely filed a motion for new trial in each cause, but the record does not
contain any ruling on the motions, proposed orders containing the trial judge’s
signature or notation, or docket entries evidencing a hearing on the motions. 1 The only
suggestion of presentment in the record of each cause is a “Certificate of Presentment”
included at the end of each motion, stating, “By signature above, I hereby certify that a
true and correct copy of the above and foregoing has been hand-delivered to the Office
1 Ray’s motions for new trial were denied by operation of law. See TEX. R. APP. P. 21.8.
Ray v. State Page 3
for the 77th Judicial District Court of LIMESTONE County, on this day, February 2,
2009.”2 The only signature on each document, however, is that of Ray’s attorney; the
documents do not include any notation from the trial judge or other court personnel.
And although the certificate states that the motion was “hand-delivered to the Office for
the 77th Judicial District Court of LIMESTONE County,” it does not indicate that
counsel in fact communicated a request for a hearing to the trial court or another
authorized to act on behalf of the trial court. Thus, we conclude that this evidence is
insufficient to establish presentment. See TEX. R. APP. P. 21.6; Bearnth v. State, --- S.W.3d
---, ---, No. 01-09-00906-CR, 2011 WL 5110241, *10 (Tex. App.—Houston [1st Dist.] Oct.
27, 2011, no pet. h.) (holding that request for evidentiary hearing in prayer of motion for
new trial and certificate of presentment signed only by defense counsel were
insufficient to establish presentment); Hiatt v. State, 319 S.W.3d 115, 122-23 (Tex. App.—
San Antonio 2010, pet. ref’d) (holding that certificate of presentment signed by defense
counsel was insufficient evidence of presentment); Burrus v. State, 266 S.W.3d 107, 115
(Tex. App.—Fort Worth 2008, no pet.) (holding that certificate of presentment and
docket entry noting filing of motion were insufficient to establish presentment). In the
absence of a proper showing that Ray’s motions for new trial were presented to the trial
court, the trial court did not abuse its discretion in not conducting a hearing on Ray’s
motions for new trial. See TEX. R. APP. P. 21.6.
2The motions for new trial were each filed and served on March 2, 2009. In fact, the affidavit attached to
the motions for new trial was not signed until March 2, 2009. We thus assume, as the State does, that the
date in the “Certificate of Presentment” was in error and that everything occurred on March 2, 2009.
Ray v. State Page 4
B. Ineffective Assistance of Counsel
We must then address Ray’s alternative argument that his trial counsel provided
ineffective assistance by failing to timely present the motions for new trial to the trial
court. To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.
Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535,
156 L. Ed. 2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.
2005) (same). Under Strickland, the appellant must prove by a preponderance of the
evidence that (1) counsel’s performance was deficient, and (2) the defense was
prejudiced by counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at
2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent
both showings, an appellate court cannot conclude the conviction resulted from a
breakdown in the adversarial process that renders the result unreliable. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
The purpose of a hearing on a motion for new trial is to (1) decide whether a
cause should be retried and (2) prepare a record for presenting appellate issues if the
motion is denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). A hearing
on a motion for new trial is not an absolute right and is not required when the matters
raised in the motion are determinable from the record. Id. In addition, when a matter is
not determinable from the record, no hearing is required unless the complaining party
establishes the existence of “reasonable grounds” showing that he would be entitled to
relief. Id. at 339. It is thus required, as a prerequisite to a hearing when the grounds in
Ray v. State Page 5
the motion are based on matters not already in the record, that the motion be supported
by an affidavit, either of the defendant or someone else, specifically setting out the
factual basis for the claim. Id. The affidavit need not establish a prima facie case, but a
fair reading of it must give rise to reasonable grounds in support of the claim. Id.
Affidavits that are conclusory in nature and unsupported by facts do not provide the
requisite notice of the basis for the relief claimed; thus, no hearing is required. Id.
Here, Ray argues that he was entitled to a new trial hearing due to juror
misconduct. In support of his motions, Ray attached the affidavit of his trial counsel, in
which she states, “After the trial of this matter I discovered that juror Nikia Wiley was
in fact closely related to victim Shanique [sic] Amos. Ms. Wiley failed to dislose [sic]
this information during the voir dire process.”
When a juror “’withholds material information during the voir dire process, the
parties are denied the opportunity to exercise their challenges, thus hampering their
selection of a disinterested and impartial jury.’” Franklin v. State, 138 S.W.3d 351, 354
(Tex. Crim. App. 2004) (quoting Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App.
1978)). To obtain a new trial based on juror misconduct, the defendant must show that
the juror withheld material information during voir dire despite the defendant’s due
diligence. Id. at 355-56; see Armstrong v. State, 897 S.W.2d 361, 363-64 (Tex. Crim. App.
1995). Diligence requires that counsel ask questions calculated to bring out information
that might indicate a juror’s inability to be impartial and truthful. Armstrong, 897
S.W.2d at 363-64. Unless defense counsel asks such questions, material information that
a juror fails to disclose is not really “withheld.” Id. at 364. Counsel must ask specific
Ray v. State Page 6
questions, not rely on broad ones, to satisfy this obligation and must ask follow-up
questions after a potential bias is discovered. Gonzales v. State, 3 S.W.3d 915, 917 (Tex.
Crim. App. 1999).
During voir dire in this case, defense counsel did not inquire as to what kinship,
if any, the venire members had with the alleged victims, Shenique Amos, Eric
Washington, and their son.3 The trial court and the State asked the venire members
whether they knew Shenique Amos, Eric Washington, or their son. See Armstrong, 897
S.W.2d at 364 n.1 (defense counsel is entitled to rely on questions asked by court and
prosecutor). Neither the trial court nor the State, however, asked the venire members if
they were related in any way to the alleged victims.4 If not asked the pertinent
question, the potential juror could not have failed to disclose the information. See id. at
364. Therefore, Ray did not demonstrate reasonable grounds to support a new trial
hearing. Moreover, because Ray did not demonstrate reasonable grounds to support a
new trial hearing, he has failed to prove by a preponderance of the evidence that his
defense was prejudiced by counsel’s alleged deficient performance, and he cannot
prevail on his ineffective assistance of counsel claims. We overrule Ray’s first issue in
all five appeals.
3The record is silent as to the reasons for defense counsel’s decision to omit such inquiries. Thus, we
presume that counsel’s decision was reasonably professional and motivated by sound trial strategy. See
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—
Houston [1st Dist.] 1996, no pet.).
4 The State did ask if the venire members knew, were kin to, or were friends of Ray or his family.
Ray v. State Page 7
SUFFICIENCY OF THE EVIDENCE
In his second and third issues in cause numbers 10-10-00285-CR, 10-10-00286-CR,
and 10-10-00287-CR, Ray contends that the evidence is legally and factually insufficient
to support the jury’s implicit rejection of his self-defense claim.
The Court of Criminal Appeals recently overruled Clewis v. State, 922 S.W.2d 126
(Tex. Crim. App. 1996) and factual-sufficiency review. See Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010) (plurality op.). The court held that the Jackson v. Virginia
legal-sufficiency standard is the only standard a reviewing court should apply in
determining the sufficiency of the evidence. Id. Ray argues that we should disregard
Brooks because it is a nonbinding plurality opinion that violates the Texas Constitution
and statutory authority. However, the Court of Criminal Appeals has supported
Brooks’s holding in subsequent majority opinions. See, e.g., Lucio v. State, 351 S.W.3d
878, 895 (Tex. Crim. App. 2011); Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App.
2011). And as an intermediate court of appeals, we must adhere to principles of vertical
stare decisis. We therefore decline this opportunity to depart from the dictates of
Brooks, and because we cannot review the evidence for factual sufficiency, we overrule
Ray’s third issue in cause numbers 10-10-00285-CR, 10-10-00286-CR, and 10-10-00287-
CR and will proceed to a sufficiency review for his second issues.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
Ray v. State Page 8
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio, 351 S.W.3d at 894.
The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: “Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
A defendant has the burden of producing some evidence to support a claim of
self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Smith v. State,
352 S.W.3d 55, 62 (Tex. App.—Fort Worth 2011, no pet.). After the defendant has
Ray v. State Page 9
introduced some evidence of a defense, the State bears the burden of persuasion to
disprove it. Zuliani, 97 S.W.3d at 594; Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim.
App. 1991); Smith, 352 S.W.3d at 62. This burden does not require the State to produce
evidence disproving the defense; it requires only that the State prove its case beyond a
reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913; Smith, 352
S.W.3d at 62. To determine the legal sufficiency of the evidence to disprove self-
defense, the appellate court asks whether, after viewing all the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the charged offense beyond a reasonable doubt and also could
have found against the appellant on the self-defense issue beyond a reasonable doubt.
Saxton, 804 S.W.2d at 914; Smith, 352 S.W.3d at 62.
As limited by the indictments, a person commits the offense of aggravated
assault with a deadly weapon if the person intentionally or knowingly threatens
another with imminent bodily injury and uses or exhibits a deadly weapon during the
commission of the assault. TEX. PEN. CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (West 2011).
Self-defense is justified when a person “reasonably believes” that “force is immediately
necessary to protect the actor against the other’s use or attempted use of unlawful
force.” TEX. PEN. CODE ANN. § 9.31(a) (West 2011). The use of deadly force is warranted
only where “self-defense is justified under Section 9.31, a reasonable person would not
have retreated, and when deadly force is reasonably necessary to protect against
another’s use or attempted use of deadly force.” Bumguardner v. State, 963 S.W.2d 171,
173 (Tex. App.—Waco 1998, pet ref’d); see Act of May 16, 1995, 74th Leg., R.S., ch. 235, §
Ray v. State Page 10
1, 1995 Tex. Gen. Laws 2141, 2141-42 (amended 2007) (current version at TEX. PEN. CODE
ANN. § 9.32(a) (West 2011)).
On the evening of June 2, 2007, Ray, along with Brent Jackson, Gabriel Jackson,
and at least two others, pulled into the parking lot of a gas station in Groesbeck.
Shenique Amos, who had been behind Ray, drove by the gas station. Her boyfriend
Eric Washington was in the passenger seat of the car, and their six-year-old son was
lying down in the back seat. Once Amos passed the gas station, she “made the block,”
coming back to a stop sign by the station. Amos testified that her son said that he was
hungry so she was going back to the Sonic to get him something to eat. Washington
also initially testified that they were going to get their son something to eat but later
stated that they came back because he was looking for a fistfight with Brent and Gabriel
Jackson, whom he had had an earlier altercation with. As Amos approached the stop
sign, Ray was handed a gun. Ray pointed the gun at Washington, Amos, and their son
and fired three shots. Two bullets hit the car before Amos drove away. Amos called 9-
1-1 and drove toward her mother’s house even though the Groesbeck Police
Department was just two blocks from the gas station. Shortly thereafter, Amos received
a call asking them to come back to the gas station, and they did. Washington testified
that he did not have a gun with him, and no weapon was found in the car.
Ray claimed in his recorded statement to the police that he was acting in self-
defense because of the feuding in the days leading up to the incident. The first
altercation happened two or three days before the shooting at the gas station.
Ray v. State Page 11
Washington stated that he was visiting his mother-in-law’s house when Ray’s brother
Isaac, who lived close by,
thought I was trying to sell a -- a lady some weed and -- and after -- and
he came out of the house and said, “Man, you can’t sell no weed in front
of my house, and all that. You can’t be in front -- on my street.” And it
escalated from there and we started talking about each other’s mamas and
it escalated from there.
Isaac testified that Washington left for about forty-five minutes, and when he came
back, they “had a few more words.” Isaac stated that Washington said he was “going to
put me where my mama at,” and because his mother had died, that meant to him that
Washington was going to bury him. According to several witnesses, Washington then
fired at least one shot toward Isaac and those around him. Verri Pelton, a friend of
Washington’s, testified that Washington shot the gun and then left with Amos while she
drove Washington’s brown Suburban back to her house.
The evidence is contradictory as to how much of this altercation Ray witnessed.
Ray’s statement indicates that he witnessed most, if not all, of it. Ray said in his
statement that he called 9-1-1 and reported that a shot had been fired and that the
shooter was driving a brown SUV. Officer Mike Ferrell testified that he searched
Washington’s Suburban that night and that he did not find a weapon. Washington
testified that it was a verbal altercation and that he did not own a gun at that time.
Nevertheless, Rachonna Richardson, who works at a gas station in Mexia and knows
Washington from his coming in the store, testified that toward the end of May 2007,
Washington told her he had gotten “in a shoot out with them Ray boys in Groesbeck.”
Ray v. State Page 12
There was also testimony about an incident where Washington allegedly had a
gun at the city park earlier on the day of the shooting at the gas station. Keandra
Waters, who is acquainted with Ray and knows Washington, testified that she was
standing by Ray in the park when Washington drove by them, let the window down
halfway, pointed the gun out the window, and said, “You all don’t want none of this.”
Ashley Tatum, who is acquainted with both Ray and Washington, also stated that she
saw Washington waving a gun as he drove through the park that day. Officer Thomas
Shoemaker responded to the report of Washington brandishing a gun at the city park.
Officer Shoemaker located Washington approximately five to ten minutes after
receiving the call. Washington admitted being at the park but denied having or
displaying a gun. He said that Ray, Ray’s brother Isaac, and Brent Jackson showed up
at the park and started to harass him, so he left the park. Washington testified that the
police actually searched him and his car and found no weapon. Officer Shoemaker
testified that he did not search Washington but that he only questioned him.
Finally, Washington testified that earlier on the day of the shooting at the gas
station, he was talking to a friend when Brent and Gabriel Jackson “came out of
nowhere and tried to snatch me . . . out of my car and hit me in my mouth.” He did not
recall whether Ray was there. Ray indicated in his statement that he was there when
his cousin hit Washington. Washington reported the incident to the police. Officer
Ferrell testified that he spoke with Washington after the alleged assault. Washington
told him that he thought either Brent or Gabriel Jackson had hit him. Officer Ferrell
Ray v. State Page 13
could tell that Washington had been hit because “his upper lip was kind of pushed out
a little bit.”
After viewing all the evidence in the light most favorable to the prosecution, we
conclude that any rational trier of fact could have found the essential elements of
aggravated assault with a deadly weapon beyond a reasonable doubt and also could
have found against Ray on the self-defense issue beyond a reasonable doubt.
Ultimately, the jury was the sole judge of the credibility of the witnesses and the weight
to be given their testimony and was free to believe or disbelieve the evidence proffered
by Ray regarding the issue of self-defense. We thus overrule Ray’s second issue in
cause numbers 10-10-00285-CR, 10-10-00286-CR, and 10-10-00287-CR.
TRANSFERRED INTENT
In his fourth issue in cause numbers 10-10-00285-CR and 10-10-00286-CR, Ray
contends that he was egregiously harmed by the trial court’s failure to abstractly define
transferred intent as it applies to self-defense in the jury charge and by its failure to
apply the law of transferred intent as it applies to self-defense to the facts in the case. In
other words, Ray argues that the trial court erred in omitting from the charges that he
should be found not guilty of the aggravated assault of Amos and her son, respectively,
if the jury believed that Ray was acting in necessary self-defense against Washington.
Because Ray did not object to the charge on this basis, error will not result in
reversal of his conviction in the absence of “egregious harm.” Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). In examining the record for
egregious harm, we consider the entire jury charge, the state of the evidence, the final
Ray v. State Page 14
arguments of the parties, and any other relevant information revealed by the record of
the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury
charge error is egregiously harmful if it affects the very basis of the case, deprives the
defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218
S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.
App. 2006).
In cause number 10-10-00287-CR, Ray was charged with aggravated assault with
a deadly weapon of Washington. The trial court instructed the jury on self-defense in
the charge, and Ray makes no complaint about that charge. The jury found Ray guilty,
implicitly rejecting Ray’s self-defense claim. Thus, even assuming the trial court failed
to properly instruct the jury on transferred intent as it applies to self-defense in cause
numbers 10-10-00285-CR and 10-10-00286-CR, in which Amos and her son are the
alleged victims, Ray could not have been egregiously harmed by the error.
We overrule Ray’s fourth issue in cause numbers 10-10-00285-CR and 10-10-
00286-CR.
INEFFECTIVE ASSISTANCE/NECESSITY INSTRUCTION
In his second issue in cause numbers 10-10-00288-CR and 10-10-00289-CR, Ray
contends that trial counsel was ineffective for failing to request a necessity instruction
be included in the charge.
As stated above, to prevail on an ineffective assistance of counsel claim, the
appellant must prove by a preponderance of the evidence that (1) counsel’s
performance was deficient, and (2) the defense was prejudiced by counsel’s deficient
Ray v. State Page 15
performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104
S.Ct. at 2064; Andrews, 159 S.W.3d at 101. The appellate court looks to the totality of the
representation and the particular circumstances of each case in evaluating the
effectiveness of counsel. Id. Our review of counsel’s representation is highly
deferential, and we will find ineffective assistance only if Ray overcomes the strong
presumption that his counsel’s conduct fell within the range of reasonable professional
assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The right to “reasonably
effective assistance of counsel” does not guarantee errorless counsel or counsel whose
competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.
Crim. App. 1983). To overcome the presumption of reasonably professional assistance,
any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.
When the record is silent regarding the reasons for counsel’s conduct, a finding that
counsel was ineffective would require impermissible speculation by the appellate court.
Gamble, 916 S.W.2d at 93 (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994)). Therefore, absent specific explanations for counsel’s decisions, a record on
direct appeal will rarely contain sufficient information to evaluate an ineffective
assistance claim. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To
warrant reversal without affording counsel an opportunity to explain his actions, “the
challenged conduct must be ‘so outrageous that no competent attorney would have
engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007).
Ray v. State Page 16
Here, the record is silent as to defense counsel’s reasons for not requesting a
necessity instruction be included in the charge. To conclude then that trial counsel was
ineffective based on the asserted ground would call for speculation, which we will not
do. See Jackson, 877 S.W.2d at 771; Gamble, 916 S.W.2d at 93. Thus, we must conclude
that Ray has not overcome the presumption that counsel’s decision was reasonably
professional and motivated by sound trial strategy. See Salinas, 163 S.W.3d at 740;
Gamble, 916 S.W.2d at 93.
Ray argues that Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992), requires
that we determine that his counsel provided ineffective assistance. In Vasquez, the
Court of Criminal Appeals concluded that the failure to request an instruction on
necessity constituted ineffective assistance of counsel. Id. at 951. However, Vasquez is
distinguishable from the current cases. First, Vasquez involved one offense, possession
of a firearm by a felon, and necessity was the only defense available to the appellant. Id.
Here, defense counsel was dealing with five separate offenses that had been
consolidated into one trial. Furthermore, the record in this case is silent as to defense
counsel’s reasons for her actions and decisions while the record in Vasquez revealed that
trial counsel failed to conduct any independent investigation into the facts; counsel had
not fully researched the law regarding the offense, as evidenced by his total lack of
awareness about which defenses, if any, were available to his client, and that he advised
the trial court that his presentation of a defense came from appellant’s research in
Corpus Juris; and counsel, after trying unsuccessfully several times to present evidence
regarding appellant’s alleged kidnapping, failed to re-urge such evidence after the
Ray v. State Page 17
State’s attorney had “opened the door” to such evidence in cross-examination. Id. at 951
n.4.
We overrule Ray’s second issue in cause numbers 10-10-00288-CR and 10-10-
00289-CR.
CONCLUSION
Having overruled all of Ray’s issues in all five appeals, we affirm the trial court’s
judgment in each appeal.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed January 25, 2012
Do not publish
[CRPM]
Ray v. State Page 18