                                    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).

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       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).




                                            4
        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.




                                               5
                                      CONCLUSION


      The trial court’s judgment is affirmed.


                                                Patrick A. Pirtle
                                                    Justice




Do not publish.




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