                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             __________________
                               NO. 09-12-00574-CR
                             __________________

                   TRAVIS JAMES GUILLORY, Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
_________________________________________________________________ _

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                       Trial Cause No. 11-11914
_________________________________________________________________ _

                          MEMORANDUM OPINION

      A jury convicted appellant Travis James Guillory of possession of a

controlled substance as a habitual felony offender and assessed punishment at

twenty-five years of confinement. In his sole appellate issue, Guillory contends

trial counsel provided ineffective assistance. We affirm the trial court’s judgment.

      Guillory argues that trial counsel provided ineffective assistance by

attempting to offer into evidence two exculpatory affidavits from co-defendants



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rather than calling the affiants to testify at trial.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, 104 S.Ct. 2052, 80 L.Ed.2d 674

(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 action fell within

the wide range of reasonable and professional assistance.” Id.

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

omissions of his counsel. See id. at 836. Furthermore, “[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

      1
          The trial judge refused to admit the affidavits into evidence.
                                             2
482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually

insufficient to demonstrate that “counsel’s representation was so deficient . . . as to

overcome the presumption that counsel’s conduct was reasonable and

professional.” Bone, 77 S.W.3d at 833 (footnote omitted).

      The record is silent concerning trial counsel’s reasons for not calling the

affiants to testify at trial. Although Guillory filed a motion for new trial, the sole

ground asserted in his motion was that the verdict was contrary to the law and the

evidence. Guillory did not contend in the motion that trial counsel provided

ineffective assistance, nor did he create a record elucidating counsel’s possible

reasons for attempting to present statements rather than calling the witnesses to

testify at trial. The record contains a response by the State to Guillory’s motion for

new trial, as well as the trial court’s order denying the motion, but there is no

indication in the record that a hearing was held on Guillory’s motion for new trial.

With a silent record, we cannot presume that counsel’s conduct constituted

ineffective assistance. See Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833.

We must presume that counsel’s conduct falls within a wide range of reasonable

representation. See Strickland, 466 U.S. at 690; Bone, 77 S.W.3d at 833.

Accordingly, we overrule Guillory’s sole issue and affirm the trial court’s

judgment.

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      AFFIRMED.



                                           ______________________________
                                                  STEVE McKEITHEN
                                                     Chief Justice



Submitted on June 20, 2013
Opinion Delivered July 10, 2013
Do Not Publish

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




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