In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00574-CR
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TRAVIS JAMES GUILLORY, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 11-11914
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MEMORANDUM OPINION
A jury convicted appellant Travis James Guillory of possession of a
controlled substance as a habitual felony offender and assessed punishment at
twenty-five years of confinement. In his sole appellate issue, Guillory contends
trial counsel provided ineffective assistance. We affirm the trial court’s judgment.
Guillory argues that trial counsel provided ineffective assistance by
attempting to offer into evidence two exculpatory affidavits from co-defendants
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rather than calling the affiants to testify at trial.1 To prevail on a claim of
ineffective assistance of counsel, an appellant must satisfy a two-pronged test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App.
1986). An appellant must demonstrate a reasonable probability that but for his
counsel’s errors, the outcome would have been different. Bone v. State, 77 S.W.3d
828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s
representation is highly deferential and presumes that counsel’s action fell within
the wide range of reasonable and professional assistance.” Id.
Guillory must prove that there was no professional reason for specific acts or
omissions of his counsel. See id. at 836. Furthermore, “[a]ny 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) (citing McFarland v. State, 928 S.W.2d
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The trial judge refused to admit the affidavits into evidence.
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482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually
insufficient to demonstrate that “counsel’s representation was so deficient . . . as to
overcome the presumption that counsel’s conduct was reasonable and
professional.” Bone, 77 S.W.3d at 833 (footnote omitted).
The record is silent concerning trial counsel’s reasons for not calling the
affiants to testify at trial. Although Guillory filed a motion for new trial, the sole
ground asserted in his motion was that the verdict was contrary to the law and the
evidence. Guillory did not contend in the motion that trial counsel provided
ineffective assistance, nor did he create a record elucidating counsel’s possible
reasons for attempting to present statements rather than calling the witnesses to
testify at trial. The record contains a response by the State to Guillory’s motion for
new trial, as well as the trial court’s order denying the motion, but there is no
indication in the record that a hearing was held on Guillory’s motion for new trial.
With a silent record, we cannot presume that counsel’s conduct constituted
ineffective assistance. See Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833.
We must presume that counsel’s conduct falls within a wide range of reasonable
representation. See Strickland, 466 U.S. at 690; Bone, 77 S.W.3d at 833.
Accordingly, we overrule Guillory’s sole issue and affirm the trial court’s
judgment.
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AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on June 20, 2013
Opinion Delivered July 10, 2013
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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