             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-17-00419-CR
     ___________________________

BRANDON DESHAWN HUMES, Appellant

                      V.

          THE STATE OF TEXAS


On Appeal from Criminal District Court No. 1
           Tarrant County, Texas
        Trial Court No. 1483296D


Before Sudderth, C.J.; Gabriel and Pittman, JJ.
 Memorandum Opinion by Justice Pittman
                           MEMORANDUM OPINION

      A jury convicted Appellant Brandon Deshawn Humes of murdering Jane,1 the

mother of his child, and assessed his punishment at fifty-five years’ confinement. The

trial court sentenced him accordingly. In two issues, Appellant contends:

      •      The evidence is insufficient to show that he intentionally or knowingly
             murdered Jane or that he intended to cause her serious bodily injury
             (Issue Two); and

      •      He received ineffective assistance of counsel from his trial counsel (Trial
             Counsel) (Issue One).
Because we hold that the evidence is sufficient to support Appellant’s murder

conviction and that he failed to satisfy his burden to prove ineffective assistance of

Trial Counsel, we affirm the trial court’s judgment.

                    FACTS AND PROCEDURAL HISTORY

I.    Appellant and Jane Fought After He Found Evidence that She Was
      Cheating on Him.

      Appellant and Jane began dating while Jane was pregnant with her daughter

Kate, and later they had a daughter, Amy, together. On the morning of December 10,

2016, when Kate was four years old and Amy was one year old, Appellant and Jane

got into a heated argument, apparently because he discovered evidence on her cell

phone that she had been cheating on him. At the time, they were living in Fort Worth


      1
       We use aliases to refer to the decedent, her children, and select witnesses to
protect the identities of minors. See Tex. R. App. P. 9.10(a); Daggett v. State,
187 S.W.3d 444, 446 n.3 (Tex. Crim. App. 2005); Wilson v. State, 442 S.W.3d 779,
782 n.1 (Tex. App.—Fort Worth 2014, pet. ref’d).

                                           2
with Appellant’s stepmother Tonya, and several other extended family members were

staying in the home as well.     The couple’s argument occurred in their upstairs

bedroom.

      Jane spoke with her mother on the phone two different times that morning and

told her she was packing to move back to San Antonio.

II.   After the Initial Argument, Appellant, Who Owned a Gun, Told a Family
      Member that He Should Have Shot Jane.

      Appellant left the house with Tonya’s niece Leeanna and her husband Robert

to run errands and to “cool down” after his first argument with Jane that day.

Meanwhile, Jane discussed the argument with other inhabitants of the house. Jane

told Tonya’s daughter Tammy that:

      •     Appellant had seen photos of Jane with another man and texts she had
            exchanged with that man;

      •     During the argument, Appellant had thrown her into a wall and choked
            her;

      •     Her ribs hurt; and

      •     Jane was afraid Appellant was suicidal.
      During the car ride with Robert and Appellant, Leanna learned that Jane had

been cheating on Appellant, and Appellant stated, “I should have shot her.” Leeanna

took the statement seriously but did not think that the threat was genuine, even

though she knew Appellant owned a gun that he used in his job. She noted that

Appellant and Jane continued to communicate by phone while he was in the car.



                                         3
About twenty to thirty minutes after they left Tonya’s house, Robert and Leeanna

returned to the house and dropped off Appellant.

III.   Appellant and Jane Argued Again, Jane Was Shot, and Appellant Fled
       the House with His Gun.

       When Appellant returned to the house, he went to the kitchen and then back

upstairs to the bedroom he shared with Jane. Katrina, a young, teenaged relative who

was also staying with Tonya and who had heard the first argument, testified that

Appellant still looked mad but was also calm. However, Tonya’s daughter Tammy

testified that she had never seen him that mad before. Appellant and Jane began

arguing again in their bedroom.

       Katrina went upstairs to ask Jane if she could have some of Jane’s pizza rolls.

Katrina knocked on the bedroom door and opened it slightly to voice her request.

Jane said, “[Y]es.” As Katrina was going back downstairs, she heard a “pow,” and she

and Tammy both heard Jane scream. Katrina turned around when she heard the

noise and saw Appellant leaving the couple’s bedroom.          Katrina testified that

Appellant was in “[b]east mode”; she had “never seen [anything] like that.” On cross-

examination, she explained that he “was like heated, mad and . . . like the devil came

out of him.” Katrina went into the room and found Jane lying on her back on the

bed, bleeding and nonresponsive. Jane’s two young daughters—the only other people

in the room—were in a corner.

       Appellant ran downstairs and left in his car, and someone in the house called



                                          4
911 to report the shooting. Tonya called Leeanna, who had been gone from the

house only a few minutes, and said, “[Appellant] done killed this girl.”

       When Appellant drove away from Tonya’s house, her daughter Tammy

followed him in her car. He stopped at a pond nearby, and she saw his gun in his

hand. Tammy then followed Appellant to their old neighborhood, and when he

stopped, she saw the gun in the passenger seat. At some point during this journey,

they talked, and Tammy learned that Jane had been injured. After their talk, they both

drove back to Tonya’s house.

IV.    Appellant Was Arrested, and the Police Recovered His Gun and
       Ammunition.

       By the time Appellant returned to Tonya’s house after the shooting, the police

were there. Fort Worth Police Department (FWPD) Officer G. Reynolds approached

Appellant’s car and asked if he had the gun. Appellant told him it was in the

floorboard; Officer Reynolds saw the gun and then arrested Appellant.           After

Appellant’s first interview with police, they released him, and at his request, they

transported him to a local hospital for a mental health evaluation.

       FWPD Crime Scene Officer Jessica Wright recovered the gun and a magazine

containing eight bullets from under the front passenger seat of Appellant’s car; the

magazine could hold up to ten bullets. She found a gun belt and two more magazines

of ten bullets each in the couple’s bedroom closet and a live round on a television

cabinet at the foot of their bed.



                                           5
V.     The Forensic Evidence Showed that Jane Had Been Shot at Close Range
       with Appellant’s Gun.

       Officer Wright photographed the bedroom where the shooting had occurred.

Jane’s body, which had an obvious head wound, lay face-up in the center of the bed,

with her head near the top of the bed and her left foot near the foot of the bed and

therefore visible from the hall. The couple’s torn-up marriage license lay on the bed

to the right of Jane’s body. No blood or spatter was visible on Jane’s hands. Officer

Wright found two bullet fragments to the left of the body—a “majority of the

projectile” at the top left corner of the bed and a smaller fragment on the carpet to

the left of the bed. After the body was removed from the bed, Officer Wright could

see a lot of blood and a spent casing that had been lying underneath the body.

      Tarrant County Deputy Medical Examiner Dr. Susan Roe concluded that a

bullet had entered behind Jane’s left ear at the “junction of the ear and the . . . skull,”

and although a fragment of the bullet remained inside Jane’s brain until the autopsy,

most of the bullet had exited her body from the right eyebrow area. Dr. Roe found

no rib injuries or evidence of choking. She determined that Jane had died from a

gunshot wound to her head and that her manner of death was homicide at the hands

of another. Dr. Roe clarified that had she believed Jane’s death was an accident or a

suicide, she could have so ruled.

      Jamie Becker, a firearm and toolmark examiner for the Tarrant County Medical

Examiner’s Office, tested the casing, bullet fragments, and Appellant’s gun and



                                            6
determined that two of the bullet fragments and casing were fired from Appellant’s

gun; the remaining fragment did not have enough characteristics from the firing

process for comparison.

          Becker, Dr. Roe, and Officer Wright all agreed that the gunshot occurred at

close range, with Becker opining that at the time of firing, the gun’s muzzle had been

less than three inches from the entry point behind Jane’s left ear and Dr. Roe

concluding that the muzzle had made partial contact with Jane’s skin at the time of

firing.

VI.       Gunshot Residue (GSR) Was Found on Both Appellant and Jane.

          On the day Jane died, FWPD Crime Scene Officer Cliff Hankins collected

samples from Appellant’s hands and face for GSR testing, and four months later,

Officer Hankins collected a sample for GSR testing of the clothes Appellant had

worn on the day Jane died. Vicki Hall, a senior trace analyst of the Tarrant County

Medical Examiner’s Office and Forensic Laboratory, analyzed samples from Jane’s

hands, Appellant’s hands, his face, and his clothes for GSR. Hall found GSR on both

Appellant’s and Jane’s hands. Hall testified that “it’s not unusual for a shooting

victim . . . to have residue on their hands from just being in that environment, having

their hands in the environment of a discharging firearm. They may have fired the gun

themselves, or they may have just been in close proximity.” She concluded that the

presence of the GSR indicated that Appellant and Jane either fired the gun, touched it

or something that had GSR on it, or were nearby when the gun was discharged.

                                           7
       There was no evidence whether Jane was left-handed, right-handed, or

ambidextrous.

VII. Jane’s Blood Was Found on the Gun.

       Even though no blood was found on Jane’s hands, her blood was found on the

gun’s slide.

                                     DISCUSSION

I.     The Evidence Is Sufficient to Show that Appellant Intentionally or
       Knowingly Murdered Jane or Intended to Cause Her Serious Bodily
       Injury.

       In his second issue, Appellant contends that the evidence is insufficient to

show that he intentionally or knowingly killed Jane or intended to cause her serious

bodily injury.

       A.        We Review the Evidence in the Light Most Favorable to the
                 Verdict.
       Federal due process requires that the State prove beyond a reasonable doubt

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.

2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-

sufficiency review, we view all the evidence in the light most favorable to the verdict

to determine whether any rational factfinder could have found the crime’s essential

elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). This standard gives full

play to the factfinder’s responsibility to resolve conflicts in the testimony, to weigh the



                                            8
evidence, and to draw reasonable inferences from basic facts to ultimate facts. See

Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Queeman, 520 S.W.3d at 622.

      The factfinder alone judges the evidence’s weight and credibility. See Tex. Code

Crim. Proc. Ann. art. 38.04; Queeman, 520 S.W.3d at 622. Thus, when performing an

evidentiary-sufficiency review, we may not re-evaluate the evidence’s weight and

credibility and substitute our judgment for the factfinder’s. Queeman, 520 S.W.3d at

622. Instead, we determine whether the necessary inferences are reasonable based on

the evidence’s cumulative force when viewed in the light most favorable to the

verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015); see Villa v. State,

514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency

review must not engage in a ‘divide and conquer’ strategy but must consider the

cumulative force of all the evidence.”). We must presume that the factfinder resolved

any conflicting inferences in favor of the verdict, and we must defer to that resolution.

Murray, 457 S.W.3d at 448–49.

      The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins

v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).            Although motive and

opportunity are not elements of a criminal offense, they can be circumstances that

indicate guilt; therefore, we may properly consider them in our sufficiency review.

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). “Having the opportunity

to murder someone and then fleeing the crime scene is a circumstance of guilt.”

                                           9
Ingerson v. State, 559 S.W.3d 501, 510 (Tex. Crim. App. 2018).

      We must scrutinize circumstantial evidence of intent as we do evidence of

other elements of an offense. Laster v. State, 275 S.W.3d 512, 519–20 (Tex. Crim.

App. 2009). We may infer intent from a defendant’s words and behavior. See Guevara

v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

      B.        Appellant Was Indicted and Tried on Two Theories of Murder.

      Section 19.02(b) of the Texas Penal Code provides that a person commits

murder if he:

      (1)       intentionally or knowingly causes the death of an individual;
      (2)       intends to cause serious bodily injury and commits an act clearly
                dangerous to human life that causes the death of an individual; or
      (3)       commits or attempts to commit a felony, other than
                manslaughter, and in the course of and in furtherance of the
                commission or attempt, or in immediate flight from the
                commission or attempt, he commits or attempts to commit an act
                clearly dangerous to human life that causes the death of an
                individual.
Tex. Penal Code Ann. § 19.02(b). Appellant was indicted for murder under the first

two theories. See id. § 19.02(b)(1)–(2). Specifically, the indictment charged that (1) he

intentionally or knowingly caused Jane’s death by shooting her with a firearm; and

(2) with intent to cause Jane serious bodily injury, he intentionally committed an act

clearly dangerous to human life—shooting her with a firearm—that caused her death.

      C.        Sufficient Evidence Supports the Jury’s Guilty Verdict.

      In his entire analysis of the law to the facts in this issue, Appellant contends:


                                             10
             There is no clear evidence to show that [Appellant] intended to
      kill Jane or that he intended to cause her serious bodily injury. The
      gunshot wound to Jane was on the left side at the back of her head and
      the exit wound was through her right eyebrow which is consistent with
      the gun being held side-ways. The gun residue was clearly shown on
      both Jane’s and [Appellant’s] hands. The presence of gunshot residue
      particles indicates that both [Appellant] and Jane, either . . . fired or
      discharged the firearm, handled a firearm or a firearm component that
      has residue on it, or that they were in close proximity at the time of the
      discharge.
             Furthermore, the medical examiner indicated that she could not
      tell who possessed the gun. She also indicated that they both could have
      been in the possession of the weapon.
Appellant therefore appears to challenge the sufficiency of the evidence that he was

the shooter as well as the evidence of his intent.

      Reviewing all the evidence, not just the forensic evidence, and deferring to the

jury’s resolution of any conflicts in the evidence in favor of its verdict, we hold that

the evidence is sufficient to support Appellant’s conviction. First, in the car ride

between his two arguments with Jane, Appellant told Leeanna that he should have

shot Jane. Second, Jane was shot with Appellant’s gun, and her blood was on the gun

but not on her hands. Third, Appellant fled the scene after the shooting, and he took

his gun with him. Fourth, Appellant was angry with Jane, even after the car ride he

took to “cool down” following their first argument, and when his relative Katrina saw

him exit the couple’s bedroom directly after the shooting, he was in “[b]east mode”;

“like heated, mad and . . . like the devil came out of him.” Fifth, the only people in the

bedroom when Jane was shot were Appellant, Jane, four-year-old Kate, and one-year-



                                           11
old Amy.

      By convicting Appellant, the jury rejected any inference that Jane had shot

herself, and we defer to that resolution. See Murray, 457 S.W.3d at 448–49. Also,

Appellant’s statement that he should have shot Jane, his anger and angry demeanor,

the GSR on his hands, and his fleeing the crime scene with his gun that had killed

Jane suffice to prove his intent beyond a reasonable doubt, and all the evidence,

viewed in a light favorable to the verdict, sufficiently supports the elements of murder

beyond a reasonable doubt. See id.; see also Tex. Penal Code Ann. § 19.02(b)(1)–(2); see,

e.g., Payne v. State, No. 06-16-00034-CR, 2017 WL 1534012, at *12–13 (Tex. App.—

Texarkana Apr. 28, 2017, pet. ref’d) (mem. op., not designated for publication)

(deferring to jury’s rejection of suicide and relying in part on evidence of opportunity

and recent argument in holding evidence sufficient to satisfy elements of capital

murder). We overrule Appellant’s second issue.

II.   Appellant Did Not Prove His Claim of Ineffective Assistance of Trial
      Counsel.
      In his first issue, Appellant contends that Trial Counsel rendered ineffective

assistance by failing (1) to dispute the State’s forensic evidence during the guilt-

innocence phase; (2) to introduce evidence of sudden passion during the punishment

phase; and (3) to fully inform Appellant of the consequences of not testifying during

the punishment phase.




                                           12
      A.     Appellant Must Prove by a Preponderance of the Evidence Both
             Deficient Representation by Trial Counsel and a Reasonable
             Probability that Without It, His Trial’s Outcome Would Have
             Been Different.
      The Sixth Amendment guarantees a criminal defendant the effective assistance

of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.

amend. VI.    To establish ineffective assistance, an appellant must prove by a

preponderance of the evidence that his counsel’s representation was deficient and that

the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,

104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.

2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The record

must affirmatively demonstrate that the claim has merit. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999).

      In evaluating counsel’s effectiveness under the deficient-performance prong,

we review the totality of the representation and the particular circumstances of the

case to determine whether counsel provided reasonable assistance under all the

circumstances and prevailing professional norms at the time of the alleged error. See

Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson,

9 S.W.3d at 813–14. Our review of counsel’s representation is highly deferential, and

we indulge a strong presumption that counsel’s conduct was not deficient. Nava,

415 S.W.3d at 307–08.

      An appellate court may not infer ineffective assistance simply from an unclear



                                          13
record or a record that does not show why counsel failed to do something. Menefield v.

State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425,

432 (Tex. Crim. App. 2007).        Trial counsel “should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective.” Menefield,

363 S.W.3d at 593. If trial counsel did not have that opportunity, we should not

conclude that counsel performed deficiently unless the challenged conduct was “so

outrageous that no competent attorney would have engaged in it.” Nava, 415 S.W.3d

at 308. Direct appeal is usually inadequate for raising an ineffective-assistance-of-

counsel claim because the record generally does not show counsel’s reasons for any

alleged deficient performance.      See Menefield, 363 S.W.3d at 592–93; Thompson,

9 S.W.3d at 813–14.

      Strickland’s prejudice prong requires a showing that counsel’s errors were so

serious that they deprived the defendant of a fair trial—that is, a trial with a reliable

result. 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must show a

reasonable probability that the proceeding would have turned out differently without

the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A

“reasonable probability” is a probability sufficient to undermine confidence in the

outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. We

must ultimately focus on examining the fundamental fairness of the proceeding in

which the result is being challenged. Strickland, 466 U.S. at 696, 104 S. Ct. at 2069.

“[A] verdict or conclusion only weakly supported by the record is more likely to have

                                           14
been affected by errors than one with overwhelming record support.” Id., 104 S. Ct.

at 2069.

      B.     Appellant Does Not Show that He Would Have Benefitted from
             Additional Evidence or Further Cross-Examination.

      Appellant complains that Trial Counsel did not put on a case for the defense

during the guilt-innocence phase and that he did not put on sudden-passion evidence

during the punishment phase. The Texas Court of Criminal Appeals has held that

“[c]ounsel’s failure to call witnesses at the guilt-innocence and punishments stages is

irrelevant absent a showing that such witnesses were available and appellant would

benefit from their testimony.” King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.

1983). This court has followed that binding precedent. See Gomez v. State, 552 S.W.3d

422, 435–36 (Tex. App.—Fort Worth 2018, no pet.).

      Appellant contends that Trial Counsel made no effort to sponsor a trace-

evidence expert to dispute testimony, but Appellant does not show proof in the

record that a trace-evidence expert would dispute the State’s evidence or that he

would have benefitted from a trace-evidence expert’s testimony.

      Appellant further contends that Trial Counsel failed to put on evidence

supporting a sudden-passion mitigation theory—testimony Appellant claims only he

could provide, along with his post-arrest mental health records—during the

punishment phase. See Tex. Penal Code Ann. § 19.02(d). However,

      That sudden passion is a subjective concept does not . . . necessitate that
      there be direct evidence of the defendant’s state of mind. Indeed, such

                                          15
      direct evidence is neither needed nor usually available. Rather, because
      sudden passion is essentially a culpable mental state, it may be inferred
      from the acts of the accused and the circumstances under which those
      actions occur.

Trevino v. State, 60 S.W.3d 188, 194 (Tex. App.—Fort Worth 2001) (footnotes omitted)

(relying in part on Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998)), aff’d,

100 S.W.3d 232 (Tex. Crim. App. 2003). Before the State rested its punishment case,

the trial court admitted all evidence from the guilt-innocence phase, which included

testimony of those who were with Appellant before and after the shooting. Appellant

did not file a motion for new trial alleging ineffective assistance of Trial Counsel and

obtain an evidentiary hearing thereon. He therefore fails to provide any proof in the

record that his own testimony or his post-arrest mental health records would have

affected the jury’s rejection of his sudden-passion claim.

      Similarly, Appellant contends that Trial Counsel neither explored through cross-

examination the theory that Jane could have shot herself with her left hand nor

attacked the evidence (through cross-examination or objection) that Jane may have

been pinned down when she was shot. The record is silent regarding Trial Counsel’s

decision not to explore these areas.

      “Cross-examination is inherently risky, and a decision not to cross-examine a

witness is often the result of wisdom acquired by experience in the combat of trial.”

Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005). Further, Trial

Counsel cannot be deficient for failing to object unless the trial court would have



                                           16
abused its discretion by overruling the objection. Prine v. State, 537 S.W.3d 113, 117–

18 (Tex. Crim. App. 2017); cf. State v. Gutierrez, 541 S.W.3d 91, 99–103 (Tex. Crim.

App. 2017) (concluding that the defendant could not show prejudice because the

record did not show that the trial judge would likely have granted a mistrial when

defendant thought his counsel should have requested it and because the trial judge

would not have erred by denying a mistrial motion). The record does not show that

the trial court would have likely sustained an objection to the testimony that Jane may

have been pinned down when she was shot, nor does Appellant make any attempt to

convince us that the trial court would have abused its discretion by overruling such an

objection.

      We reject these complaints.

      C.       Appellant Does Not Show that Trial Counsel Failed to Fully
               Inform Him of His Right to Testify.

      In conjunction with Appellant’s complaint that Trial Counsel committed

ineffective assistance by failing to offer evidence of sudden passion during the

punishment phase to mitigate Appellant’s sentence, Appellant also complains that

Trial Counsel was ineffective in not fully informing him of the impact his failure to

testify during the punishment phase would have on his mitigation theory of sudden

passion.     “[D]efense 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,” Johnson v. State, 169 S.W.3d 223, 235 (Tex. Crim. App. 2005), and



                                          17
“may advise him on the advantages and disadvantages of testifying.” Soliz v. State,

No. 04-10-00087-CR, 2011 WL 193469, at *5 (Tex. App.—San Antonio Jan. 19, 2011,

no pet.) (mem. op., not designated for publication). “[A] claim that trial counsel

deprived the defendant of his right to testify must be supported by evidence in the

record that the defendant would have testified, and of what the defendant would have

said.” Dukes v. State, 486 S.W.3d 170, 182 (Tex. App.—Houston [1st Dist.] 2016, no

pet.) (op. on reh’g).

       The record shows that Appellant made the decision not to testify. Because

Appellant did not file a motion for new trial based on his claim of ineffective

assistance of Trial Counsel and obtain a hearing on the record, the record does not

support Appellant’s claim that Trial Counsel did not fully inform him of the law on

sudden passion or of the potential effects not testifying could have on the success of

that theory. The record also does not disclose that Appellant would have testified

even if he had believed it was necessary to convince the jury that he killed Jane in a

sudden passion or what Appellant’s testimony would have been had he testified.

Absent such evidence in the record, Appellant cannot satisfy his burden to show that

Trial Counsel’s performance was deficient or, even if it was, that Appellant’s testifying

during the punishment phase would have altered the jury’s verdict.            See Dukes,

486 S.W.3d at 182.

       We overrule Appellant’s first issue.



                                              18
                                 CONCLUSION

      Having overruled Appellant’s two issues, we affirm the trial court’s judgment.




                                                    /s/ Mark T. Pittman
                                                    Mark T. Pittman
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 14, 2019




                                         19
