                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS
 DWAYNE ROBERTS,                                §
                                                                No. 08-12-00112-CR
                             Appellant,         §
                                                                  Appeal from the
 v.                                             §
                                                                346th District Court
 THE STATE OF TEXAS,                            §
                                                              of El Paso County, Texas
                             Appellee.          §
                                                                (TC# 20090D05559)
                                                §

                                          OPINION

       A jury found Appellant, Dwayne Roberts, guilty of one count of stalking. TEX. PENAL

CODE ANN. § 42.072 (West 2011).           The trial court assessed punishment at three years’

confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant

raises two issues on appeal. We affirm.

                                         BACKGROUND

       Appellant met the complainant, Heather Robinson, when she was jogging near her home in

Northeast El Paso. The two exchanged phone numbers and began corresponding through text

messages later that evening. Robinson stopped responding to Appellant’s text messages after he

identified himself with a different name than the one he had given her earlier that day, which she

felt was not right. Appellant persisted in sending Robinson text messages. At first, Robinson

ignored the messages but eventually responded with messages which in her opinion, made it clear
to Appellant that she no longer wanted to communicate with him. A few days later while out

jogging, Robinson noticed Appellant following her. Robinson ran home because she was afraid

and thought Appellant could hurt her.

         A couple of days after that incident, Robinson was jogging again when Appellant surprised

her by stopping in front of her and blocking her way. Robinson was taken off guard because

Appellant was driving a different vehicle than she had seen him driving previously. Robinson felt

like she could not leave without either running into heavy traffic on Dyer Street or turning her back

to Appellant’s vehicle, and she felt too afraid to do either. Appellant asked Robinson where she

was going and she responded home to her children. Appellant then leaned out of the driver-side

window, grabbed Robinson in the vaginal area, touching her over her clothes with his hand, and

said, “What have you got up there?”

         After Appellant saw the shocked and angry expression on Robinson’s face, he fled the

scene.      Robinson immediately called 911 to report the incident and gave the dispatcher

Appellant’s license-plate number. Responding officers located Appellant a few blocks away

from where the incident occurred and detained him. Officers brought Robinson to the location

and she positively identified Appellant. Appellant was arrested and later indicted on one count of

stalking.

         Attorney Gary Hill represented Appellant at trial. Hill presented no witnesses or evidence

during guilt-innocence.     At punishment, Hill proffered two letters attesting to Appellant’s

character, career, and family responsibilities. The State objected to the admission of the letters

because they were not sworn documents, the individuals who wrote them were not present to

testify, and the defense failed to lay the proper predicate for their admission. The trial court


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sustained the State’s objection and Hill stated, “Fine. This case is going to be overturned on

appeal….I was ineffective in this case in that I’m not computer literate, and I don’t know anything

about cell phones.” The defense then closed.

       During closing arguments, Hill argued Appellant had no prior felonies, but the trial court

had not heard evidence regarding Appellant’s criminal history or lack thereof. The trial court

allowed Hill to reopen and present evidence on the issue. Appellant testified that he had no prior

felony convictions and the defense rested its case. The trial court assessed punishment at three

years’ confinement in the Institutional Division of the Texas Department of Criminal Justice.

       Appellant retained new counsel on appeal. Appellant, through appellate counsel, filed a

motion for new trial alleging evidence tending to establish Appellant’s innocence was withheld

and not produced at trial. The trial court held two separate hearings on the motion for new trial.

The first hearing continued the motion to allow Appellant time to subpoena evidence from the

custodian of records of Appellant’s phone company. At the beginning of the second hearing, the

State objected to its continuance under Texas Rule of Appellate Procedure 21.8. TEX. R. APP. P.

21.8(a), (c) (A court must rule on a motion for new trial within 75 days of imposing sentence in

open court, a motion not timely ruled on by written order is deemed denied after 75 days). Being

well past 75 days from the time Appellant’s sentence was imposed, the trial court found the motion

for new trial overruled by operation of law and that the trial court no longer had jurisdiction over

the matter. This appeal followed.

                                          DISCUSSION

       In Issue One, Appellant argues trial counsel usurped his right to testify on his own behalf.

In Issue Two, he claims the ineffective assistance of trial counsel prevented him from receiving a


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fair trial during both the guilt/innocence and punishment phases of trial. Because both issues

claim error in ineffective assistance of counsel, we address them together.

                                        Standard of Review

       In order to prevail on an ineffective assistance of counsel claim, Appellant must satisfy two

prongs, establishing that: (1) defense counsel’s actions fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that, but for counsel’s ineffectiveness, the

result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687–

88 694, 104 S.Ct. 2052, 2064-65, 2068, 80 L.Ed.2d 674 (1984); Smith v. State, 286 S.W.3d 333,

340 (Tex.Crim. App. 2009). The first prong requires a complainant to show trial counsel’s

performance was so deficient it fell below an objective standard of reasonableness for professional

representation.   Strickland, 466 U.S. at 687–88; Thompson v. State, 9 S.W.3d 808, 812

(Tex.Crim.App. 1999). The second prong requires a complainant to show counsel’s deficient

performance so prejudiced his defense that a reasonable probability exists that, but for the deficient

performance, the outcome of the proceeding would have been different. Strickland, 466 U.S. at

687; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A reasonable probability is

one sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Jackson, 877

S.W.2d at 771.

       The party claiming ineffective assistance of counsel bears the burden of establishing both

prongs of the Strickland test by a preponderance of the evidence. Mitchell v. State, 68 S.W.3d

640, 642 (Tex.Crim.App. 2002). Failure to meet the burden for either prong defeats the

ineffectiveness claim.    Strickland, 466 U.S. at 697.        Counsel’s conduct carries a strong

presumption it was not deficient, and our review of counsel’s actions is highly deferential.


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Strickland, 466 U.S. at 689; Nava v. State, 415 S.W.3d 289, 307-08 (Tex.Crim.App. 2013). In

order to prevail, a defendant must overcome the presumption that, under the circumstances,

counsel’s conduct was sound trial strategy. Strickland, 466 U.S. at 689.

        A claim of ineffective assistance must be firmly founded in the record, and the record must

affirmatively demonstrate the merits of the claim. Menefield v. State, 363 S.W.3d 591, 592

(Tex.Crim.App. 2012). Because a silent record fails to provide an explanation of counsel’s

actions, the record on direct appeal is rarely sufficient to show counsel was so deficient to

overcome the presumption of reasonable, professional representation. See Cannon v. State, 252

S.W.3d 342, 349 (Tex.Crim.App. 2008); Rylander v. State, 101 S.W.3d 107, 110–11

(Tex.Crim.App. 2003).

                                           Right to Testify

        A criminal defendant’s right to testify on his own behalf is absolute. Rock v. Arkansas,

483 U.S. 44, 49, 107 S.Ct. 2704, 2707–08, 97 L.Ed.2d 37 (1987). It is defense counsel’s duty to

inform a defendant of his right to testify including the fact that the ultimate decision of whether or

not to testify is his. Johnson v. State, 169 S.W.3d 223, 234-35 (Tex.Crim.App. 2005). When a

defense attorney prevents a defendant from testifying on his own behalf, we use the Strickland

framework to address the allegation counsel was ineffective in allowing the defendant to exercise

his right to testify. See id. at 232.

        In Issue One, Appellant asserts trial counsel prevented him from testifying on his behalf by

not informing him it was his choice to testify and not his attorney’s choice. The only evidence

Appellant points to in support of this assertion is an affidavit attached to his appellate brief.

Affidavits attached to briefs are outside of the record, and as such, we are precluded from using


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them in our consideration of an appeal. Leza v. State, 351 S.W.3d 344, 362 (Tex.Crim.App.

2011); see also Belton v. State, 900 S.W.2d 886, 893 (Tex.App.—El Paso 1995, pet. ref’d). Thus,

the record provides no evidence indicating the reasons why Appellant did not testify on his own

behalf other than his limited testimony at punishment to establish he had not been previously

convicted of a felony. See Rylander, 101 S.W.3d at 111. Based on the silent record before us,

Appellant cannot meet his burden to overcome the strong presumption that trial counsel’s actions

fell within the wide range of reasonable professional representation and was not sound trial

strategy. Strickland, 466 U.S. at 689. Because Appellant has failed to satisfy the first prong of

Strickland, we need not address the second prong. See Strickland, 466 U.S. at 697. Issue One is

overruled.

                                        Inadequate Assistance of Counsel

         In Issue Two, Appellant claims the ineffective assistance of trial counsel prevented him

from receiving a fair trial. Appellant’s motion for new trial claimed evidence tending to establish

Appellant’s innocence was not produced at trial. In the motion for new trial and the hearings

relating to the motion, Appellant failed to raise a claim of ineffective assistance of counsel.

         The only evidence Appellant sets forth in support of Issue Two is attested to in trial

counsel’s affidavit. As discussed above, the affidavit is outside of the record and therefore

precluded from our consideration.              Leza, 351 S.W.3d at 362; Belton, 900 S.W.2d at 893. The

only indication of ineffective assistance we find in the record is trial counsel’s statement at

punishment, “This case is going to be overturned on appeal….I was ineffective in this case in that

I’m not computer literate, and I don’t know anything about cell phones.”1 However, trial counsel

1
  We note that Appellant’s briefing did not direct us to this portion of the record in an attempt to explain trial counsel’s
actions.
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does not go into detail about how his ignorance of computers and cell phones affected his decision

making or trial strategy nor does he explain his actions anywhere else in the record. Therefore,

we find that the record before us provides no explanations of trial counsel’s actions. See Cannon,

252 S.W.3d at 349. Appellant’s claims are unsupported by the record and fail to overcome the

strong presumption that trial counsel’s actions were sound trial strategy falling within the zone of

reasonable representation. Strickland, 466 U.S. at 689; Menefield, 363 S.W.3d at 592. Because

Appellant has failed to satisfy the first prong of Strickland, we need not address the second prong.

See Strickland, 466 U.S. at 697. Issue Two is overruled.

                                         CONCLUSION

       The trial court’s judgment is affirmed.



                                              GUADALUPE RIVERA, Justice
April 16, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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