                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00035-CR
        ______________________________


   RONNIE CHARLES BAYLOR, JR., Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 354th Judicial District Court
                Hunt County, Texas
               Trial Court No. 26920




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                            MEMORANDUM OPINION

            After having been convicted by a jury for aggravated assault of Louis Tubbs with a

deadly weapon and having been sentenced to fifteen years’ imprisonment, Ronnie Charles

Baylor, Jr., has filed an appeal. Baylor raises three points on appeal: (1) he denies that the

evidence was legally sufficient to support the judgment; (2) he posits that he received ineffective

assistance of counsel; and (3) he alleges that “because evidence was admitted that was not

provided to trial counsel in discovery, trial counsel was unfairly surprised.”

            The incident giving rise to the charges against Baylor occurred at Baylor’s home.

Richard Garcia, Baylor’s neighbor, testified that he was standing outside his own home when he

observed Tubbs and his friend, Anthony Duckett, arrive in a car at the front of Baylor’s

residence. Garcia watched as “[a]ll three walked to the backyard,”1 after which Garcia heard the

report of a gunshot. Immediately after the gunshot, Tubbs, who had been shot in the “leg and

kneecap,” ran into Garcia’s house and yelled for Garcia to call the emergency 9-1-1 hotline.

Garcia noticed that Baylor was “just kind of waiving [sic] his hands” in a manner suggesting to

Garcia not to call the police. Despite Baylor’s protest, Garcia placed the emergency call.

            Tubbs testified that he was with Duckett when “[t]he guy that shot me just popped up.”

Tubbs made an in-court identification of Baylor as the shooter. Although he was unable to

identify Baylor from a photographic lineup,2 Tubbs recognized Baylor after “[a] girl showed

[pictures] to me on a computer because he was going around saying that -- you know, bragging

1
    Tubbs admitted that he was a drug dealer. No narcotics were found at the scene.
2
    Tubbs stated that the picture in the photographic lineup did not look like Baylor.


                                                              2
about it or whatever and I remembered him and the little haircut he had at the time, I

remembered it.” At trial, Tubbs remembered that the shooter was wearing “red shorts, a white

T-shirt, and a red rag on his head.”3 This description matched the clothing Baylor wore at the

time of his arrest.

        Tubbs, who told the jury that he did not know Baylor at the time of the shooting, testified

that nothing was said as Baylor “popped up with the gun and . . . loaded it and shot me.”

Duckett was Baylor’s brother-in-law. Delvin Sharé Duckett (Duckett’s wife and Baylor’s sister)

testified that she had known Tubbs for twelve years and that Tubbs met Baylor on many

occasions and knew him. Duckett testified that his “homeboy” Tubbs was shot in Baylor’s

backyard, but that there was no way Baylor could have shot him. Tubbs told the jury that he had

spoken to Baylor the day before trial and that Baylor had then “called me a snitch and [was]

making little threats to me, playing stare wars.”

        Officer Mike Johnston suspected Baylor after speaking to witnesses at the scene. A

search of Baylor’s home uncovered a “9mm” “shell casing and some other evidence that made it

appear that’s where it occurred.” Baylor had retreated inside his home and initially refused to

come outside to speak with Johnston. When he agreed to speak with officers outside, he told

them that “[h]e was inside; and he said he didn’t hear anything, see anything, didn’t know what

happened.” A gun was found “in the refrigerator just sitting on a shelf in there,” along with


3
 According to a police report, Tubbs had “described the person who shot him as a black male in his early 20’s
wearing a white shirt, blue jeans, and a black and red cap.” However, Detective Jamie Fuller testified that Tubbs
told her that the shooter was wearing “red shorts, a white shirt with red writing on it,” and “a red skull cap.”
Exhibits admitted at trial clarified that Baylor was wearing “Red Dickies jean shorts,” a white, ribbed undershirt, a
white shirt with red designs, and a red “do-rag.”

                                                         3
boxes of “Independence” brand and “Wolf Ammo” brand “9mm ammunition.” The gun was a

“Masterpiece 9mm weapon,” serial number B1224, belonging to Baylor.

            Baylor was arrested, and his hands were tested for gunpowder residue. 4 Detective Jamie

Fuller testified that Baylor “kept trying to rub his hands around and ball up his fists” during the

gunshot residue test and that he offered an explanation that he had been “shooting off fireworks.”

Officer Richard M. Clark testified that after his arrest, Baylor yelled to Duckett, “Don’t do it,

you’ll be a rat; and he repeated this several times.” Fuller went to the hospital to speak with

Tubbs. She deduced that Tubbs “knew who shot him and he didn’t want to tell.” Firearm and

tool mark examiner Amanda Harvey-Schreiner testified that the “fired cartridge case with

‘BLAZER 9mm LUGER’ headstamp” was fired from Baylor’s “Masterpiece . . . 9mm Luger

caliber semiautomatic pistol, serial number B1224.”

            The evidence showed that only three people had been in Baylor’s yard when the shooting

occurred––Baylor, the victim, and Baylor’s brother-in-law. After the shooting occurred, Baylor

attempted to dissuade Garcia from calling for emergency assistance and then retreated into his

home when police arrived, telling the investigating officers that he was inside the house when the

shooting occurred.            He underwent the gunpowder residue test reluctantly, volunteering an

alternative explanation for why his hands might contain gunpowder residue. As he was being

arrested, Baylor warned Tubbs not to become a “rat.” Baylor’s gun was found inside his

refrigerator, an unlikely place for the everyday storage of a firearm, and it was discovered that




4
    The test kit was never sent to the laboratory.

                                                     4
the discharged cartridge case found in the backyard had been fired by that gun.                            Most

importantly, Tubbs identified Baylor as the shooter.5

        We affirm the trial court’s judgment, concluding that the evidence was legally sufficient,

that counsel provided effective assistance, and that the issue of unfair surprise was waived.

I.      Sufficiency of the Evidence to Support Baylor’s Conviction

        A.       Standard of Review

        In evaluating legal sufficiency, we review all of the evidence in the light most favorable

to the jury’s verdict to determine whether any rational jury could have found the essential

elements of aggravated assault with a deadly weapon beyond a reasonable doubt. Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,

319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)

(citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal

sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–

18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19).



5
 Baylor attempts to discredit Tubbs’ in-court identification by highlighting that Tubbs was unable to make a prior
identification of Baylor as the shooter. These are attacks on Tubbs’ credibility. Further, there was evidence that
Tubbs knew that Baylor was the shooter, but that he did not want to reveal the information due to Baylor’s
relationship with Duckett.

                                                        5
        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge “sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.” Id.

        Baylor committed the offense of aggravated assault if he intentionally or knowingly

caused bodily injury to Tubbs6 and used or exhibited a deadly weapon during the commission of

the assault. TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02(a)(2) (West 2011). A deadly weapon

is “anything that in the manner of its use or intended use is capable of causing death or serious

bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2012). The only element

challenged on appeal is the sufficiency of the proof that Baylor was the person who shot Tubbs.

        B.       Analysis of the Evidence

        It is not necessary to reiterate the evidence set out above. A rational jury could have

found, beyond a reasonable doubt, that Baylor shot Tubbs.

        We find the evidence legally sufficient to support Baylor’s conviction. This point of

error is overruled.




6
 The indictment in this case read that Baylor “did then and there intentionally or knowingly cause bodily injury to
LOUIS TUBBS by shooting him with a firearm, and the defendant did then and there use or exhibit a deadly
weapon, to wit: a firearm, during the commission of the assault.”

                                                        6
II.    Baylor’s Claims of Surprise at Trial Were Waived

       In an unrelated case, Melvin O. Mapps was arrested in Greenville, Texas, more than a

month before the shooting for which Baylor was charged. Officers arresting Mapps confiscated

a gun from him which belonged to Baylor. Baylor filed a “motion to return property” in that

case, alleging that the “Masterpiece Arms, 9MM pistol Serial Number B1224” belonged to him

and attached a copy of the receipt for its purchase to the motion. The judge presiding over the

Mapps case granted Baylor’s motion and signed an order releasing the firearm to Baylor. The

State sought to introduce this order.

       Baylor’s attorney made the following objection:

               MR. SHELTON: Your Honor, I received a call from the State’s attorney
       at approximately 6:00 o’clock last night informing me . . . [of] additional pieces
       of evidence that they were going to admit that they had recently discovered. I’m
       objecting to that being admitted.
               No. 1, I did file an omnibus pretrial motion that included discovery
       requests. It was not in the discovery packet. It does, I believe, go to my tactics in
       this case; and also, I’m arguing a complete surprise.

               ....

              . . . . Basically, it ties Mr[.] -- it further attempts to tie Mr. Baylor to the
       firearm that allegedly was used in the assault.

The prosecutor responded:

       Specifically, I got a call from Detective Fuller around 4:30 yesterday afternoon.
       She’s not even the lead investigator on the case.
              In that conversation she informed me that there is a public record that is
       available to the defense. It’s not in the State’s possession. It’s one of the two
       documents Mr. Shelton is referring to. It’s a court order signed by Judge Joe
       Leonard that released the firearm to this Defendant two months before this
       shooting. The only reason she had it is because she knew there was that order in
       another file. It wasn’t even in this file.

                                                 7
                 So my argument would be that; first, it wouldn’t be [a] surprise because
        his client would, obviously, know that he had an order releasing the gun to him;
        2, it’s not in the State’s possession so he had access to it. It’s -- he can get it in
        the clerk’s office.

The prosecutor argued that because Baylor was required to be present in person and show his

driver’s license to the judge presiding over the Mapps case in order “to take possession of the

gun,” he would have necessarily been aware of the entry of the order and could not be unfairly

surprised by the discovery of this information.7 After looking at the Mapps file, the trial court

overruled Baylor’s objection to the admission of the order, reasoning that it was public record

and that Baylor was aware of the existence of the order.

        Although Baylor made the claim that the presentation of the order effected a surprise, he

failed to request a continuance in order to prepare for an attempt at its revelation. 8 “It is well

settled that the proper procedure when alleging surprise due to violation of a trial court’s order

for discovery is to object or ask for a postponement or continuance of the trial.” Duff–Smith v.

State, 685 S.W.2d 26, 33 (Tex. Crim. App. 1985). Failure to do so results in a waiver of any

error based on surprise or violation of a discovery order. Smith v. State, 779 S.W.2d 417, 431

(Tex. Crim. App. 1989); Duff-Smith, 685 S.W.2d at 33; McQueen v. State, 984 S.W.2d 712, 718

(Tex. App.—Texarkana 1998, no pet.) (citing Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim.

App. [Panel Op.] 1982)); see Hall v. State, 283 S.W.3d 137, 169 (Tex. App.—Austin 2009, pet.
7
 For the first time on appeal, there is a suggestion that the gun might have belonged to Baylor’s father, since
“Appellant is Ronnie Charles Baylor, Jr.” As pointed out below, Baylor admitted that the gun was his.
8
 Baylor’s brief recited that “[w]hen the trial court admits evidence offered by the State that was not produced in
compliance with a discovery order, the inquiry is whether the prosecutor acted with the specific intent to willfully
disobey the discovery order by failing to turn over the evidence.” However, Baylor admits that “[i]t does not appear
from the record that [the prosecutor] acted willfully, or that the court abused its discretion.” We agree.


                                                         8
ref’d); Williams v. State, 995 S.W.2d 754, 762 (Tex. App.—San Antonio 1999, no pet.).

Because Baylor did not request a continuance, any alleged error was waived.

        Further, the record establishes a lack of surprise based upon Baylor’s own admission.9 At

a previous bond hearing, Baylor’s attorney stated, “My client’s involved in it because the gun

that was used in the shooting was found in the freezer which he owns. He owns the gun.” Then,

counsel engaged in the following exchange with Baylor:

                 [Defense Counsel]: Did you have anything to do with that shooting?

                 [Baylor]: No.

               [Defense Counsel]: All right. Now, the problem is, the gun that was shot
        was found in a freezer; is that correct?

                 [Baylor]: Correct.

                 [Defense Counsel]: And you’re admitting that’s your gun.

                 [Baylor]: Yes, sir.

                 [Defense Counsel]: All right.

                MS. AIKEN: And Mr. Tay -- Mr. Baylor, it’s a 9 millimeter; is that
        correct?

                 [Baylor]: Yes, ma’am.




9
 Typically, a trial court’s decision to admit or exclude evidence is reviewed under an abuse of discretion standard.
McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex.
Crim. App. 2002). A trial court does not abuse its discretion so long as the decision to admit evidence is within the
“zone of reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on
reh’g). If the trial court’s decision on the admission of evidence is supported by the record, there is no abuse of
discretion, and the trial court will not be reversed. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002).


                                                         9
       Since the effect of the evidence of Baylor’s attempt to regain the gun after it had been

taken from Mapps did nothing more than add further proof of ownership of the gun which Baylor

acknowledged that he owned, that evidence should constitute no unfair surprise.

       We overrule the point of error complaining of unfair surprise.

III.   Baylor Cannot Meet His Burden to Prove Ineffective Assistance of Counsel

       Baylor filed a generalized motion for new trial and attached his affidavit complaining that

he believed his trial counsel was unprepared and that he failed to admit certain evidence,

subpoena witnesses, or allow Baylor to testify that another person shot Tubbs because Tubbs

allegedly cheated the person “out of $9,000 worth [of] drugs.” Baylor’s attorney filed an

affidavit claiming that he was surprised by the motion to return property and that he had to

readjust his trial strategy. No further explanation of counsel’s trial strategy was given. The

motion for new trial was denied.

       On appeal, Baylor more specifically alleges that his counsel was ineffective because: “he

was not prepared for trial”; there was no “Challenge to Impermissibly Suggestive Pretrial

Identification”; “counsel should have objected at trial [to] . . . Detective Johnston[’s testimony]

regarding eyewitness identification”; “he did not follow up questioning Fuller about her not

submitting” the gunshot residue or DNA tests; he “Inadequate[ly] Impeach[ed] . . . Eyewitness

Identification Evidence”; and did not allow Baylor to testify on his own behalf.

       A.      Standard of Review

       Any allegation of ineffectiveness of counsel must be firmly founded in the record.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d

                                                10
808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana

2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). From the record received by this Court,

which does not include counsel’s reasoning for the complained-of actions, Baylor bears the

burden of proving that counsel was ineffective by a preponderance of the evidence.

Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401,

403 (Tex. Crim. App. 1984).

       We apply the two-pronged Strickland test handed down by the United States Supreme

Court to analyze Baylor’s ineffective assistance of counsel claims. Hill v. Lockhart, 474 U.S. 52,

57 (1985); Strickland v. Washington, 466 U.S. 668 (1984).         First, Baylor must show that

counsel’s performance fell below an objective standard of reasonableness in light of prevailing

professional norms. Strickland, 466 U.S. at 687–88.        There is a strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance and that the

challenged action could be considered sound trial strategy.      Id. at 689; Ex parte White, 160

S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.

2000). Therefore, we will not second-guess the strategy of Baylor’s counsel at trial through

hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State, 161

S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref’d).

       The second Strickland prejudice prong requires a showing that but for counsel’s

unprofessional error, there is a reasonable probability that the result of the proceeding would

have been different. Strickland, 466 U.S. at 687–88.         Failure to satisfy either prong of

the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App.

                                               11
2006). Thus, we need not examine both Strickland prongs if one cannot be met. Strickland, 466

U.S. at 697.

       Because Baylor’s challenge was made to the trial court in a motion for new trial, we

analyze the ineffective assistance claim as a challenge to the denial of his motion for new trial.

Charles v. State, 146 S.W.3d 204, 208–10 (Tex. Crim. App. 2004), superseded by rule on other

grounds by State v. Herndon, 215 S.W.3d 901 (Tex. Crim. App. 2007); Shanklin v. State, 190

S.W.3d 154, 158 (Tex. App.—Houston [1st Dist.] 2005), pet. dism’d, 211 S.W.3d 315 (Tex.

Crim. App. 2007); State v. Kelley, 20 S.W.3d 147, 151 (Tex. App.—Texarkana 2000, no pet.).

Therefore, we review the Strickland test through an abuse of discretion standard, and reverse

only if the trial court’s decision is arbitrary or unreasonable, viewing the evidence in the light

most favorable to the ruling. Shanklin, 190 S.W.3d at 158–59; Kelley, 20 S.W.3d at 151. A trial

court abuses its discretion in denying a motion for new trial only when no reasonable view of the

record could support the trial court’s ruling. Charles, 146 S.W.3d at 208.

       B.      Analysis

       Baylor believes that counsel “was deficient because he neglected to investigate all

evidence and adequately prepare for trial.” He argues that counsel “should have challenged any

in-court identification” by Tubbs because “[a]n in-court identification is inadmissible when it has

been tainted by an impermissibly-suggestive pretrial photographic identification.” Tubbs did not

identify Baylor from the photographic lineup; rather, he claimed that he recognized Baylor in

other photographs “a girl had shown” him, which were not included in the record. Instead of

seeking to suppress the identification, counsel chose to cross-examine Tubbs to call into question

                                                12
his credibility. Absent counsel’s reasoning, we surmise that counsel was aware that “[t]he test is

whether, considering the totality of the circumstances, ‘the photographic identification procedure

was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification.’” Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998). We can also

determine that he was aware of the rule that if no substantial likelihood of misidentification is

shown despite a suggestive pretrial procedure, subsequent identification testimony will be

deemed reliable. Id. Therefore, counsel could have determined that the identification would be

admissible because there was evidence from several sources that Tubbs knew Baylor, Fuller’s

testimony that Tubbs knew who shot him, but did not want to tell, and evidence that Baylor

warned Tubbs not to “snitch.” In other words, counsel could have reasoned that the second

group of photographs would not have given rise to misidentification of a person Tubbs knew.

       Baylor also believed that counsel should have objected to Johnston’s expert testimony

explaining that Tubbs might not have been able to identify Baylor from the photographic lineup

because based on Johnston’s experience, people might not look the same in a photographic

lineup as they do in person. Where an appellate record is silent as to why trial counsel failed to

take certain actions, the appellant has failed to rebut the presumption that the decision was in

some way reasonable. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). It is

plausible that counsel did not object because he believed Johnston was testifying as a lay person

based upon his experience, or that the State’s response to the objection could have highlighted

Tubbs’ testimony that Baylor looked different in the photographic lineup, lending more

credibility to the in-court identification.   Baylor also complains that counsel should have

                                               13
consulted with and had “an eyewitness expert witness to testify regarding memory processes that

occur and factors that affect the reliability of eyewitnesses.”10 Counsel could have decided it

was unnecessary to take that step given Tubbs’ in-court identification, the evidence suggesting

that Tubbs knew Baylor well, and Garcia’s testimony that Baylor attempted to instruct Garcia

not to dial 9-1-1.

         Baylor next argues that counsel should have emphasized Tubbs’ statements in the

hospital that he did not really see the shooter,11 could not remember whether the shooter was

wearing a black hat, and that he “‘fibbed’ to Detective Fuller about his criminal history.”

However, counsel cross-examined Tubbs regarding his statements to officers describing the

shooter’s attire and discussed Tubbs’ criminal history at length, including the prevarication to

Fuller. It is possible that counsel did not want to continue discussing Tubbs’ statement that he

did not see the shooter because it could emphasize Tubbs’ testimony during direct examination

that he saw Baylor at the hospital and recognized him as the shooter. Counsel could have also

feared that Tubbs would admit that he knew that Baylor shot him all along, but remained silent

out of fear. Further, counsel did emphasize during closing arguments Tubbs’ initial statements

that he did not see the shooter, the allegedly inconsistent statements of the shooter’s attire, and

the lie about his criminal record to officers.

10
  Counsel’s failure to call a witness is irrelevant absent a showing that the purported witness was available and that
their testimony would have benefitted the appellant. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983).
11
  Baylor also complains about counsel’s failure to admit recorded statements by Tubbs obtained during discovery.
As the State points out, the substance of these statements are not included in the record. We may assume failure to
present evidence was due to any strategic motivation that can be imagined, including the possibility that no
favorable evidence could be presented. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v.
State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485–86 (Tex. App.––Texarkana
2005, pet. ref’d).

                                                         14
        Baylor next complains that although counsel “did cross-examine Detective Fuller

regarding Gunshot Residue Testing . . . he did not follow up questioning Fuller about her not

submitting the [gunshot residue kit] or DNA for testing.” The decision not to cross-examine a

witness is most often considered a matter of trial strategy developed as a “result of wisdom

acquired by experience in the combat of trial.” Ex parte McFarland, 163 S.W.3d 743, 756 (Tex.

Crim. App. 2005) (quoting Coble v. State, 501 S.W.2d 344, 346 (Tex. Crim. App. 1973)); Miniel

v. State, 831 S.W.2d 310, 324 (Tex. Crim. App. 1992); Smith v. State, 968 S.W.2d 490, 491

(Tex. App.—Texarkana 1998, no pet.). It will not prove ineffective assistance, particularly when

the “[a]ppellant fails to show what could have been achieved by further cross-examination.”

Matthews v. State, 830 S.W.2d 342, 347 (Tex. App.—Houston [14th Dist.] 1992, no pet.). It was

well within the realm of sound trial strategy for Baylor’s counsel to decide not to further cross-

examine Fuller, considering that he had already established that the testing was not done.12 A

failure to beat a dead horse will not be seen as ineffective assistance.

        Finally, Baylor contends that counsel rendered ineffective assistance because he (Baylor)

was not allowed by trial counsel to testify in his own behalf. Baylor claims in his post-trial

affidavit that he wanted to testify that either “Jamail Lucas or Shemail Lucas shot Tubbs because

Tubbs owed money for drugs,” but that counsel did not allow him to do so. There is nothing in

the record, aside from Baylor’s post-trial affidavit, which the court was free to reject, suggesting

that counsel prevented Baylor from testifying. Instead, the record shows that counsel advised



12
 Baylor argues that counsel should have played a video recording of Baylor’s backyard that was admitted into
evidence. The jury was encouraged to view this recording during its deliberation.

                                                    15
Baylor not to testify and that Baylor agreed with counsel’s recommendation. During voir dire,

Baylor’s counsel stated,

       I cannot prohibit a defendant from taking the stand. That’s their absolute right
       under the law; but as Mr. Baylor’s counsel, I recommended to him – and he’s
       been one of my smarter clients. He sort of listens to me. I have clients that don’t
       listen to me; and usually, when they don’t listen to me, they get themselves in
       more trouble. But Mr. Baylor has listened to me; and he’s said, Fine,
       Mr. Shelton, if that’s what you’re telling me to do, I’ll do it.

The review of defense counsel’s representation is highly deferential and presumes that counsel’s

actions fell within a wide range of reasonable professional assistance. Mallett v. State, 65

S.W.3d 59, 62–63 (Tex. Crim. App. 2001). Because the record is silent, we can presume that

Baylor did not testify at trial because he was following counsel’s advice not to testify. This

advice could have been the result of trial strategy to prevent introduction of Baylor’s prior

convictions, or because counsel thought Baylor would have made a poor witness.

       We conclude that the trial court did not abuse its discretion in denying the motion for new

trial based on ineffective assistance. It was reasonable for the court to conclude that Baylor did

not meet his burden to show that counsel’s performance fell below an objective standard of

reasonableness in light of prevailing professional norms. Also, the court could have concluded,

given the evidence in this case, that Baylor could not show a reasonable probability that the

result of the proceeding would have been different but for counsel’s alleged errors. Accordingly,

we overrule Baylor’s ineffective assistance claims.




                                               16
III.   Conclusion

       We affirm the trial court’s judgment.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:       October 8, 2012
Date Decided:         October 11, 2012

Do Not Publish




                                                 17
