In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00180-CR
________________________
JOHN EDWARD FORD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 72nd District Court
Crosby County, Texas
Trial Court No. 2011-3250; Honorable Ruben G. Reyes, Presiding
August 19, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, John Edward Ford, was convicted by a jury of the offense of
continuous sexual assault of a child 1 and sentenced to confinement for life. In a single
issue, Appellant contends his counsel was ineffective. We affirm.
1
See TEXAS PENAL CODE ANN. § 21.02 (W EST SUPP. 2012).
BACKGROUND
In May 2011, Appellant was indicted for committing two or more acts of sexual
abuse against A.R., 2 over a period that was more than thirty days in duration, by
intentionally or knowingly causing the penetration of the victim’s sexual organ by
Appellant’s sexual organ, and the victim was a child who was younger than fourteen
years of age at the time of each act of sexual abuse.
In April 2012, a three-day jury trial was held. A.R.’s mother testified that, in April
2011, the victim made an outcry to her describing various acts of sexual abuse
performed against the victim by Appellant, beginning in December 2010 and continuing
until a week before the outcry. A.R., twelve at the time of trial, testified in detail to
various acts of sexual abuse performed against her by Appellant. Her testimony was
corroborated by her half-sister who witnessed one of those sexual acts. The sexual
abuse involved penetration of A.R.’s sexual organ by Appellant’s sexual organ.
Patricia Salazar, a SANE nurse, examined A.R. shortly after her outcry. Salazar
opined that A.R. had suffered a traumatic penetrating injury and that injury was
consistent with her account of sexual abuse. Salazar also testified that A.R.’s detailed
description of the manner in which she was sexually abused lent credibility to her
account.
2
To protect the child-victim’s privacy, we refer to her by her initials. See TEX. FAM. CODE ANN. §
109.002(d) (W EST SUPP. 2012). See also TEX. R. APP. P. 9.8(b).
2
At the trial’s conclusion, the jury found Appellant guilty and sentenced him to
confinement for life. The trial court subsequently issued its judgment and this appeal
followed.
DISCUSSION
Appellant asserts his counsel was ineffective for failing to object to (1) improper
questioning during the State’s examination of A.R.’s mother, (2) arguments by the State
during closing that bolstered the testimony of A.R. and her half-sister, and (3)
references in the State’s closing argument to matters outside the record.
We examine an ineffective assistance of counsel claim by the standard
enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986).
Under Strickland, Appellant has the burden of establishing by a preponderance of
evidence that (1) trial counsel’s performance was deficient in that it fell below the
prevailing professional norms, and (2) the deficiency prejudiced the defendant; that is,
but for the deficiency, there is a reasonable probability that the result of the proceedings
would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.
1999). A reasonable probability is a probability sufficient to undermine confidence in the
outcome. Id. In conducting a deficient performance review, counsel’s conduct is to be
viewed with great deference, Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.
2005), bearing in mind that there is a “strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance.” Thompson, 9 S.W.3d at
813. Consequently, any allegation of ineffectiveness must be firmly founded in the
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record and the record must affirmatively demonstrate the alleged ineffectiveness.
Thompson, 9 S.W.3d at 812.
In the usual case in which an ineffective assistance claim is made, “the record on
direct appeal will not be sufficient to show that counsel’s representation was so deficient
and so lacking in tactical or strategic decision-making as to overcome the presumption
that counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d
828, 833 (Tex.Crim.App. 2002). This is so because a silent record provides no
explanation for counsel’s actions and therefore will not overcome the strong
presumption of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506
(Tex.Crim.App. 2003). The proper procedure for raising a claim of ineffective
assistance is almost always a habeas corpus proceeding. Aldrich v. State, 104 S.W.3d
890, 896 (Tex.Crim.App. 2003).
This case demonstrates the inadequacies inherent in evaluating such claims on
direct appeal. See Patterson v. State, 46 S.W.3d 294, 306 (Tex.App.—Fort Worth
2001, pet. ref’d). Like Patterson, Appellant did not claim ineffective assistance of
counsel in any motion for a new trial and the trial court did not hold a hearing to
determine whether Appellant’s complaints involved actions that may or may not have
been grounded in sound trial strategy. Courts “commonly assume a strategic motive if
any can be imagined and find counsel’s performance deficient only if the conduct was
so outrageous that no competent attorney would have engaged in it.” Andrews v. State,
159 S.W.3d 98, 101 (Tex.Crim.App. 2005).
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Here, the record is silent as to whether trial counsel’s failure to object at trial was
a matter of trial strategy, and if so, whether the strategy was sound. Thus, to find
Appellant’s counsel ineffective, we would have to engage in prohibited speculation. See
Lopez v. State, 343 S.W.3d 137, 143-44 (Tex.Crim.App. 2011) (ineffectiveness not
demonstrated on direct appeal where there is no record evidence of counsel’s reasons
for not objecting to opinion testimony by a State witness concerning the credibility of
another witness); Kuhn v. State, 393 S.W.3d 519, 539 (Tex.App.—Austin 2013, no pet.
h.) (ineffectiveness not demonstrated on direct appeal where there is no record
evidence of counsel’s reasons for not objecting to the State’s improper jury argument).
Absent evidence of counsel’s strategy, we cannot denounce his actions as ineffective
nor can we determine there is a reasonable probability that the outcome would have
been different. For this reason, Appellant has not met either prong of the Strickland
test.
Alternatively, even assuming the representation of Appellant’s attorney fell below
the prevailing professional norms, given A.R.’s testimony coupled with the results of her
SANE examination and the corroborative testimony by her half-sister and mother, we
cannot find there is a reasonable probability the outcome would have been different
even if Appellant’s attorney had objected. See Ex parte Martinez, 330 S.W.3d 891, 904
(Tex.Crim.App. 2011), cert. denied, ___ U.S. ___, 131 S.Ct. 3073, 180 L.Ed.2d 896
(2011) (“It is unlikely, in the face of all the evidence with which the jury was presented,
that the jury would have reached a different conclusion . . . and so we need not address
the first prong of Strickland.”) Accordingly, Appellant’s sole issue is overruled.
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CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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