                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                               ________________
                               NO. 09-16-00133-CR
                               ________________

                       RONALD RAY EWING, Appellant

                                          V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 75th District Court
                        Liberty County, Texas
                      Trial Cause No. CR32182
__________________________________________________________________

                          MEMORANDUM OPINION

      A jury convicted appellant Ronald Ray Ewing as an habitual offender of credit

card or debit card abuse and assessed punishment at nine years of confinement. In

two appellate issues, Ewing argues that trial counsel rendered ineffective assistance

by (1) “failing to diligently pursue the attendance of a defensive witness” and (2)

failing to offer the witness’s statement, or, alternatively, present an offer of proof

regarding the statement of the witness.



                                               1
      To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-pronged test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
      fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a

reasonable probability that but for his counsel’s errors, the outcome would have been

different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “Appellate

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

counsel’s actions fell within the wide range of reasonable and professional

assistance.” Id.

      Ewing must prove that there was no professional reason for specific acts or

omissions of his counsel. See id. at 836. In addition, “[a]ny allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 482, 500

(Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d

                                             2
249 (Tex. Crim. App. 1998)). The bare record on direct appeal is usually insufficient

to demonstrate that “counsel’s representation was so deficient and so lacking in

tactical or strategic decisionmaking as to overcome the presumption that counsel’s

conduct was reasonable and professional.” Bone, 77 S.W.3d at 833 (citation

omitted). “A claim of ineffective assistance of counsel based on counsel’s failure to

call witnesses fails in the absence of a showing that such witnesses were available

to testify and that the defendant would have benefitted from their testimony.” Wade

v. State, 164 S.W.3d 788, 796 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(citing Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986; King v.

State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983)); see also Garrett v. State, 998

S.W.2d 307, 314 (Tex. App.—Texarkana 1999, pet. ref’d).

      After voir dire, the following colloquy between defense counsel and the trial

judge occurred:

              [DEFENSE COUNSEL]: Your Honor, we this morning have
      filed a motion for continuance. We have attempted to locate a witness
      that is necessary for the full adjudication of this matter.
              We have heretofore been unable to locate this witness. Although
      he was interviewed by the investigator and an audio recording was
      made of his statement, he informed the officer he lived out of state in
      Arkansas; and the only information we have is his telephone number.
              I have made calls continuously for about two weeks, and I have
      heard nothing from Mr. [M.].
              THE COURT: When you call the number, is it answered?
              [DEFENSE COUNSEL]: It is. It’s a voice mail for [M.]. It says
      it’s him.
                                             3
             THE COURT: What other efforts have been employed by the
      defense to secure the presence of this witness other than calling the
      telephone number?
             [DEFENSE COUNSEL]: Judge, he doesn’t have a permanent
      address that I can locate. I Googled him, and I get nothing. So, I know
      he lives in an RV based on the audio recording. I guess he goes around
      [to] different places in his RV working.
      ...
             THE COURT: Have you reviewed the statement?
             [DEFENSE COUNSEL]: I have.
             THE COURT: And will that suffice?
             [DEFENSE COUNSEL]: It would be helpful, yes, sir. . . . It
      would be more helpful if I had him here, but . . . in light of the fact that
      [another witness] is now going to testify [M.] even becomes a more
      critical witness.
             THE COURT: Well, tell me about other efforts employed to
      attempt to gain the presence of this witness.
             ...
             [DEFENSE COUNSEL]: Other than the efforts that I previously
      described, nothing else.
             THE COURT: Has a subpoena been requested?
             [DEFENSE COUNSEL]: Yes, sir.
             ...
             [DEFENSE COUNSEL]: So, I renewed an application for
      subpoena again this morning; but, Judge, quite frankly I don’t have any
      idea where to even begin to serve that subpoena.

The trial court denied defense counsel’s motion for continuance, and the case

proceeded to trial after the trial judge noted, “I want to assure this record that nothing

was brought to the court’s attention with respect to this witness until this morning at

about 8:20.”

      Ewing did not file a motion for new trial, so the record is silent as to why

counsel did not raise the issue of M.’s attendance at trial earlier, offer M.’s statement,
                                               4
or make an offer of proof regarding what the substance of M.’s testimony would

have been. See Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833; see also

Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010). In addition, on this

record, we conclude that Ewing has failed to establish that the witness was available

and that Ewing would have benefitted from the witness’s testimony, nor has Ewing

defeated the strong presumption that counsel’s decisions during trial fell within the

wide range of reasonable professional assistance. See Wade, 164 S.W.3d at 796;

Bone, 77 S.W.3d at 833. The record does not demonstrate that defense counsel’s

performance was the product of an unreasoned or unreasonable trial strategy, or that

counsel’s performance led to an unreliable verdict or punishment. See Bone, 77

S.W.3d at 834. Furthermore, our review of the record does not indicate that, but for

the complained-of errors, the result of Ewing’s trial would have been different. See

id. at 833. Accordingly, we overrule issues one and two and affirm the trial court’s

judgment.

      AFFIRMED.

                                       ________________________________
                                             STEVE McKEITHEN
                                                 Chief Justice
Submitted on January 5, 2017
Opinion Delivered February 22, 2017
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.
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