Opinion filed March 21, 2019




                                      In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-17-00052-CR
                                    __________

                     STONY RAY WILSON, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 32nd District Court
                            Mitchell County, Texas
                          Trial Court Cause No. 7607


                     MEMORANDUM OPINION
      After he waived his right to a jury trial, Stony Ray Wilson entered an open
plea of guilty to the second-degree felony offense of aggravated assault with a deadly
weapon.    The trial court found Appellant guilty, assessed his punishment at
confinement for sixteen years and a fine of $5,000, and sentenced him accordingly.
In two issues on appeal, Appellant contends that he was denied effective assistance
of counsel when trial counsel (1) failed to object to an unsworn “victim impact
statement” made by the victim’s wife, Mindy Hale, and (2) failed to object when the
trial court allowed Mindy Hale, who was not under oath, to read her statement to the
trial court before the trial court had assessed punishment and pronounced sentence.
We affirm.
      After he had spent the day drinking heavily, Appellant threatened to kill his
wife, Elizabeth Wilson. When Elizabeth ran out of their residence, Appellant went
to find her. Armed with a gun and a knife, Appellant went to Teresa Lopez’s house,
banged on her door, stated that his wife was missing, and shot his gun at Lopez’s
house. Lopez called 9-1-1.
      Mitchell County Deputy Sheriff Jeremiah Witte and Westbrook Volunteer
Fire Chief Brandon Hale, the victim in this case, responded to the 9-1-1 call; Chief
Hale arrived first. While Deputy Witte searched for Appellant, Chief Hale talked to
Elizabeth, and while he was talking to her, Appellant attacked him. Appellant hit
Chief Hale in the face and knocked him down. Chief Hale testified that, during the
attack, he felt Appellant try to cut his throat. Appellant stabbed Chief Hale several
times—twice in the face. They wrestled on the ground until Deputy Witte arrived.
When Deputy Witte arrived, Appellant fled.
      Bambi Redwine, a first responder paramedic, testified that a knife wound in
Chief Hale’s back was not only deep but was so wide that she “could’ve stuck [her]
hand inside of it.” During his recovery, Chief Hale developed three or four staph
infections and lost his left eye. Chief Hale testified that this incident made life
difficult and stressful for him and for his family, especially for his wife.
Additionally, Chief Hale was not able to work for the three months that it took for
him to recover from the injuries inflicted upon him by Appellant.
      Appellant testified that, on the evening of the assault, he saw his wife with
“some guy” and “freaked out”; he felt like he was being attacked. Appellant testified
that, during the incident, he was coming in and out of being “blacked out” from
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drinking and did not remember that he threatened his wife, that he shot his gun at
Lopez’s residence, or that he attacked Chief Hale. Appellant testified that he had
struggled with alcohol addiction for thirty years. He also testified that, after the
assault, he was diagnosed with bipolar depression and that he had stopped drinking
alcohol.
      After Appellant entered his guilty plea, and before the trial court assessed
punishment, Mindy Hale verbally read a statement that she had prepared and in
which she described the impact of the assault on her, her husband, and their children.
As we have noted, Mindy Hale’s written statement was not made under oath and
neither was she placed under oath in the trial court. Immediately after Mindy Hale
read her statement to the trial court, the trial court found Appellant guilty, assessed
his punishment, and sentenced him.
      Subsequently, Appellant filed a motion for new trial. In the motion and in an
affidavit filed with the motion, counsel who represented Appellant during the plea
proceedings admitted that he “failed” to object to Mindy Hale’s statements even
though he should have because “Mindy Hale is not a victim and should not have
been allowed to testify as a victim.” Counsel claimed that his failure to object
constituted ineffective assistance and was harmful to Appellant and that, therefore,
a new punishment hearing should be held. We reiterate that Appellant seeks relief
based solely upon his ineffective-assistance-of-counsel claims.
      Even if we were to agree that Mindy Hale’s oral and written statements should
not have been considered by the trial court for the reasons claimed by Appellant,
issues upon which we express no opinion, Appellant would not prevail in this appeal.
In order to establish that trial counsel rendered ineffective assistance at trial,
Appellant must show that trial counsel’s representation fell below an objective
standard of reasonableness and that there is a reasonable probability that the result
would have been different but for counsel’s errors. Strickland v. Washington, 466
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U.S. 668, 687, 694 (1984); Ex parte Bryant, 448 S.W.3d 29, 39–40 (Tex. Crim. App.
2014). Courts must indulge a strong presumption that counsel’s conduct fell within
the wide range of reasonable professional assistance, and Appellant must overcome
the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Strickland, 466 U.S. at 689. “[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in
the exercise of reasonable professional judgment.” Id. at 690.
      “[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, 814 (Tex. Crim. App. 1999) (quoting McFarland v. State, 928
S.W.2d 482, 500 (Tex. Crim. App. 1996)). Under normal circumstances, “[d]irect
appeal is usually an inadequate vehicle for raising such a claim because the record
is generally undeveloped.” Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim.
App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005)). The Texas Court of Criminal Appeals has said that “trial counsel should
ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). If
trial counsel did not have an opportunity to explain his actions, we will not find
deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440
(Tex. Crim. App. 2001).
      Appellant presented nothing to overcome the strong presumption that trial
counsel’s actions constituted sound trial strategy. Although Appellant filed a motion
for new trial, there was never a hearing on that motion. In the motion and in an
affidavit filed with the motion, trial counsel admitted that he “failed” to object to
Mindy Hale’s statements even though he should have because “Mindy Hale is not a
victim and should not have been allowed to testify as a victim.” Appellant’s trial
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counsel claimed that his failure to object constituted ineffective assistance, was
harmful to Appellant, and warranted a new trial on punishment.               However,
Appellant’s trial counsel did not present this affidavit as evidence to the trial court.
Even if an affidavit is attached to a motion for new trial, the motion for new trial is
not self-proving. Jackson v. State, 139 S.W.3d 7, 20 (Tex. App.—Fort Worth 2004,
pet. ref’d). A trial court may receive evidence by affidavit during a hearing on a
motion for new trial, but the mere attachment to the motion is not itself evidence.
Id. It is not evidence until it is introduced as such. Id.
      The record reflects that Mindy Hale’s victim impact statement described the
emotional stress felt by her husband and by her family. Appellant appeared to base
his defense on contrition related to the incident. Any attack upon Mindy Hale’s
statement might very well have caused Appellant to appear something other than
contrite. In his testimony, Chief Hale described how the assault had made life
difficult and stressful for him and for his family, especially his wife, and stated that
he was off work for three months while he recovered from the stab wounds inflicted
by Appellant.
      Even if we were to agree that trial counsel’s representation fell below an
objective standard of reasonableness, Appellant has not shown how he was
prejudiced. The trial court heard testimony that Appellant threatened to kill his wife
and stabbed a fire chief several times. Appellant claimed that he was coming in and
out of being “blacked out” from drinking and did not remember that he had
threatened his wife, that he had shot at Lopez’s residence, or that he had attacked
Chief Hale. Given the seriousness of the crime and the extent of Chief Hale’s
injuries, Appellant has not shown that, but for trial counsel’s allegedly deficient
performance, the trial court would have reached a more favorable verdict on
punishment. To hold otherwise would be an impermissible exercise in conjecture


                                           5
and speculation. See Ex parte Cash, 178 S.W.3d 816, 818–19 (Tex. Crim. App.
2005).
        Accordingly, we conclude that Appellant has not shown that he received
ineffective assistance of counsel. We overrule Appellant’s first and second issues
on appeal.
        We affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


March 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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