Opinion filed September 10, 2009




                                              In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-08-00121-CR
                                         __________

                    KEITH BERNARD VANDERBILT, Appellant

                                                 V.

                               STATE OF TEXAS, Appellee


                           On Appeal from the 104th District Court

                                      Taylor County, Texas

                                 Trial Court Cause No. 16232B


                            MEMORANDUM OPINION
       The jury convicted Keith Bernard Vanderbilt of the first degree felony offense of sexual
assault and the second degree felony offense of attempted sexual assault. The trial court found an
enhancement allegation charging appellant as a repeat offender on each charge to be true and
assessed his punishment for the sexual assault conviction at confinement for life and for the
attempted sexual assault at twenty years confinement. The trial court ordered that the sentences run
concurrently. In his sole appellate issue, appellant contends that he received ineffective assistance
of counsel at trial because his counsel denied him the right to testify on his own behalf. We affirm.
       A criminal defendant has a constitutional right to testify on his own behalf. Smith v. State,
286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009) (citing Rock v. Arkansas, 483 U.S. 44, 51-52
(1987)). This right can be knowingly and voluntarily waived only by the defendant, not by his
counsel. Id. (citing Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)). The trial court has no
duty to inform a defendant represented by counsel of his right to testify. Johnson v. State, 169
S.W.3d 223, 235 (Tex. Crim. App. 2005). Rather, “defense counsel shoulders the primary
responsibility to inform the defendant of his right to testify, including the fact that the ultimate
decision belongs to the defendant.” Id. Because imparting that information is defense counsel’s
responsibility, a claim by a defendant that he was denied his right to testify is properly addressed
under the Strickland1 framework for ineffective-assistance-of-counsel claims. Smith, 286 S.W.3d
at 341-42; Johnson, 169 S.W.3d at 235, 239.
       To establish ineffective assistance of counsel, appellant must show that his counsel’s
representation fell below the standard of prevailing professional norms and that there is a reasonable
probability that, but for counsel’s deficiency, the result of the trial would have been different.
Strickland, 466 U.S. at 690, 694; Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);
Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). Review of counsel’s representation
is highly deferential, and the reviewing court indulges a strong presumption that counsel’s conduct
fell within a wide range of reasonable representation. Mallett, 65 S.W.3d at 63. A reviewing court
will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective-assistance
claim. Salinas, 163 S.W.3d at 740; Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App.
1999). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately
reflect the motives behind trial counsel’s actions. Mallett, 65 S.W.3d at 63. To overcome the
presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly
founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness.
Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 814.
       In this cause, the record is silent as to whether appellant’s trial counsel informed appellant
that he had the right to testify and that the ultimate decision as to whether to testify belonged to
appellant. After the punishment phase evidence was concluded, the trial court asked appellant if
there was anything that he wanted to say before sentence was pronounced. Appellant addressed the

       1
           Strickland v. Washington, 466 U.S. 668 (1984).

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trial court. In his brief, appellant relies on the following statements that he made to the trial court
about his trial counsel:
                 He told me I couldn’t speak in court. I wrote him a note and slid it to him.
        He looked, and the officer that brought me to the court looked. . . . He takes me in
        there and tells me not – don’t even want me to say nothing. You know, he just wants
        me to stand here quiet just like I done the whole trial. I never said I didn’t want to
        testify. That was him. He didn’t want me to open my mouth at all to hear no side of
        what I had to say. I just don’t see how that’s fair.

These statements do not support appellant’s contention that he received ineffective assistance of
counsel. First, the statements do not indicate that appellant’s counsel failed to advise him of his right
to testify, that appellant ever told his trial counsel that he wanted to testify, or that his trial counsel
somehow prevented him from testifying. Second, the statements were not evidence. Appellant did
not make the statements under oath. He made them while addressing the trial court at the
punishment hearing.
        Appellant did not raise his ineffective-assistance-of-counsel claim in a motion for new trial;
therefore, he did not present any evidence to the trial court in support of his claim. Because the
record contains no evidence to support appellant’s claim, we cannot conclude that appellant’s trial
counsel’s performance was deficient. See Salinas, 163 S.W.3d at 741 (“[A]ppellant’s assertions in
his brief on appeal, in the absence of anything in the trial record, are insufficient to show that he
asserted his right to testify and his attorney failed to protect it.”). Appellant has not met the
standards set out in Strickland. Therefore, we overrule appellant’s sole issue.
        We affirm the judgment of the trial court.




                                                                 TERRY McCALL
                                                                 JUSTICE
September 10, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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