                                       In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00207-CR
                               __________________

                     NATHAN KYLE GOBLISH, Appellant

                                          V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 221st District Court
                      Montgomery County, Texas
                   Trial Cause No. 17-08-10206-CR
__________________________________________________________________

                           MEMORANDUM OPINION

      A jury found appellant Nathan Kyle Goblish guilty of online solicitation of a

minor and assessed his punishment at confinement for twenty years. In his sole

issue, Goblish complains that his trial counsel provided him with ineffective

assistance by failing to timely present mitigation witnesses during the punishment

stage of trial, thereby denying him a fair trial. We affirm the trial court’s judgment.




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      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 jury’s assessment of

punishment would have been less severe. Bone v. State, 77 S.W.3d 828, 833 (Tex.

Crim. App. 2002); Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—Houston [1st

Dist.] 2012, pet. ref’d). “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.” Bone, 77 S.W.3d at 833.

      An attorney’s decision not to present particular witnesses during the

punishment phase of trial is largely a matter of trial strategy. Robinson v. State, 514

S.W.3d 816, 824 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). Goblish must

prove that there was no professional reason for specific acts or omissions of his

counsel. See Bone, 77 S.W.3d at 836. In addition, any allegation of ineffectiveness

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“must be ‘firmly founded in the record’ and ‘the record must affirmatively

demonstrate’ the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d

591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005)). Ordinarily, trial counsel should be given an

opportunity to explain his actions before being denounced as ineffective.

Menefield, 363 S.W.3d at 593. Thus, 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). Here, because no motion for new trial was filed, Goblish’s

counsel was not provided an opportunity to fully explain the choices he made in

representing Goblish and in presenting the case to the jury.

      Goblish argues that his own testimony was the only evidence his trial

counsel presented during punishment, and that an “undefined number of friends”

were willing to testify. Goblish also argues that his trial counsel both failed to

timely present these witnesses and failed to request a recess to secure the

witnesses. According to Goblish, because his trial counsel failed to arrange to have

these witnesses available for trial, there was no opportunity to bring in his former

wives or girlfriends to prove he was not a pedophile, and the lack of such

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testimony prejudiced the outcome of his trial. Goblish asks that this Court allow

the trial court the opportunity to review what the testimony of these unnamed

witnesses would have been to determine the degree of prejudice resulting from the

lack of such testimony.

      A defendant who complains about trial counsel’s failure to call witnesses

must show that the witnesses were available and that he would have benefitted

from their testimony. Robinson, 514 S.W.3d at 824. The record shows that at the

beginning of the punishment phase, trial counsel informed the trial court that one

of Goblish’s friends would be present to testify “in about an hour.” After the State

rested, the trial court granted trial counsel’s request for a short recess to give

Goblish’s fellow colleagues and supervisors time to appear. Later, trial counsel

asked the trial court for permission to testify in Goblish’s defense concerning

Goblish’s criminal history and divorce, explaining that Goblish had elected not to

testify during punishment and that his other potential witnesses were not going to

make it in time to testify. The trial court noted that it had granted Goblish a twenty-

minute recess, and after forty minutes, Goblish’s witnesses had failed to appear. At

that point, Goblish decided to testify on his behalf. Goblish testified that he worked

for ALATAS Americas, and that the vice-president, Robin Thomas, was on his

way to court to testify in his defense. After Goblish testified on direct examination,

                                          4
trial counsel requested additional time to allow Thomas to get to court, but the

record shows Thomas failed to appear before the trial ended. Trial counsel

informed the trial court that he had tried to find witnesses for the punishment phase

but had not anticipated that the trial would move so quickly.

      On this record, Goblish cannot establish ineffective assistance based on his

trial counsel’s failure to present witnesses during the punishment phase, even

though trial counsel admitted that the reason no witnesses were present was due, at

least in part, to counsel’s failure to ensure their attendance. Goblish failed to

present evidence showing that he would have benefitted from any testimony of

these witnesses. See Ex parte McFarland, 163 S.W.3d 743, 758 (Tex. Crim. App.

2005); Robinson, 514 S.W.3d at 824; Milburn v. State, 15 S.W.3d 267, 269-70

(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). We conclude that Goblish has

failed to establish ineffective assistance of counsel by a preponderance of the

evidence, and we overrule his sole issue and affirm the trial court’s judgment. See

Strickland, 466 U.S. at 687; Bone, 77 S.W.3d at 833.

      AFFIRMED.

                                             ______________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice




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Submitted on March 26, 2019
Opinion Delivered April 10, 2019
Do Not Publish

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




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