AFFIRM; and Opinion Filed December 12, 2016.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-15-01349-CR

                            DONALD WAYNE JONES, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                     On Appeal from the County Criminal Court No. 11
                                  Dallas County, Texas
                          Trial Court Cause No. MA-1532770-N

                             MEMORANDUM OPINION
                         Before Justices Francis, Stoddart, and Schenck
                                  Opinion by Justice Schenck
       A jury found appellant Donald Wayne Jones guilty on one count of assault against a

member of his family or household. TEX. PENAL CODE ANN. § 22.01(a)(1) (West 2015). The

court assessed punishment at 150 days in jail, probated for 15 months, and ordered him to

complete the Batterer’s Intervention Program and a Domestic Violence Impact Panel. In a single

issue, appellant contends he received ineffective assistance of counsel because trial counsel did

not request a jury instruction on self-defense. We overrule appellant’s issue and affirm his

conviction. Because all issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.4.

                                         BACKGROUND

       On the evening of December 13, 2014, appellant and his wife Teresa Jones were involved

in a physical altercation at their home. The altercation occurred after Teresa accused appellant of
engaging in an illicit affair. A verbal argument ensued and escalated to a physical altercation

that ultimately caught the attention of appellant’s neighbor, Diedra Sutton.       Sutton, while

retrieving an item from a vehicle parked in her driveway, witnessed appellant standing on his

front porch, kicking a woman. She then saw him try to pull the woman into the house at which

time she heard the woman scream “help me, please, somebody, help me.” Sutton called the

police. Sergeant Pearson responded to the call. He interviewed appellant and Teresa and placed

appellant under arrest.

        Appellant was charged by information with the offense of assault of a family member for

striking, dragging, and kicking his wife Teresa. Appellant pled not guilty and the case proceeded

to trial by jury.

        At trial, Sergeant Pearson recounted his interviews of Teresa and appellant. He testified

that when he arrived at appellant’s house he found Teresa outside crying. She told him appellant

had punched her in the head, kicked her in the posterior, dragged her to the front door, and

shoved her outside the house. Sergeant Pearson further testified that he felt two large lumps on

the side of Teresa’s head, noticed clumps of hair had been pulled from her head, and observed an

abrasion on her hand. Teresa thought the abrasion may have been caused by her resisting

appellant’s attempt to push her out of the house. Sergeant Pearson testified appellant told him

that Teresa was angry with him and accused him of cheating on her after finding male

enhancement drugs in the house. He claimed Teresa kicked him in the groin and scratched him

on the hand. Sergeant Pearson asked to see appellant’s hands. There were no scratches on them.

Appellant commented to Sergeant Pearson, “I heal quickly.”

        Appellant testified that on the evening in question, Teresa confronted him about the male

enhancement drugs she had found. He explained that he had grabbed her, while her hands were

at her side, because he thought she was going to hit him. He claimed Teresa then kneed him in

                                              –2–
the groin and he responded by pushing her, which caused her to fall to the ground. Appellant

wanted her out of the house so he struggled to get her out the front door. Appellant admitted that

in the process he may have pulled some of Teresa’s hair. He claimed he did not kick Teresa, but

merely used his foot to release her foot’s brace on the door to get her out of the house.

           After hearing testimony from appellant, Teresa, Sutton, Sergeant Pearson, and a victim’s

advocate, the jury found appellant guilty of the offense. 1 Pursuant to an agreement between the

State and appellant, appellant was sentenced by the trial court. Appellant filed a motion for new

trial arguing the verdict is contrary to the law and evidence. The motion for new trial was denied

by operation of law. This appeal followed.

                                                      STANDARD OF REVIEW

           To prevail on a claim for ineffective assistance of counsel, an appellant must show by a

preponderance of the evidence that (1) trial counsel’s performance fell below the objective

standard of reasonableness; and (2) the deficient performance prejudiced the defense. Strickland

v. Washington, 466 U.S. 668, 690–92 (1984); Hernandez v. State, 726 S.W.2d 53, 54–57 (Tex.

Crim. App. 1986) (adopting Strickland standards in Texas).

                                                               DISCUSSION

           The record must be sufficiently developed to overcome a strong presumption that counsel

provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App.

1999).       An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. The record in

this case is silent as to why appellant’s counsel chose not to request an instruction on self-

defense.        Appellant raises his claim of ineffective assistance for the first time on appeal;


     1
        At trial, Teresa was a hostile witness to the prosecution because she wanted the charges against appellant dropped. The victim’s advocate
testified about her interview of Teresa and explained why she would try to protect her husband.



                                                                     –3–
appellant did not make this claim at trial or in his motion for new trial.

       The court of criminal appeals addressed a similar claim of ineffective assistance of

counsel in a case where the defendant’s trial counsel failed to request a self-defense instruction.

See Beatty v. State, No. AP-75010, 2009 WL 619191 (Tex. Crim. App. Mar. 11, 2009) (per

curium, not designated for publication). In that case, the court of criminal appeals stated:

       We have consistently observed that usually “the record on direct appeal will not
       be sufficient to show that counsel’s representation was so deficient and so lacking
       tactical or strategic decision-making as to overcome the strong presumption that
       counsel’s conduct was reasonable and professional.” Here, we can only speculate
       why counsel acted or failed to act; thus, we presume that counsel’s actions were
       within the wide range of reasonable and professional assistance.

Id. at *10 (citations omitted).

       In this case, as in Beatty, we can only speculate why counsel did not request a self-

defense instruction; thus, we presume that counsel’s actions were within the wide range of

reasonable and professional assistance. See id. We overrule appellant’s sole issue.

                                           CONCLUSION

       We affirm the trial court’s judgment.




                                                       /David J. Schenck/
                                                       DAVID J. SCHENCK
                                                       JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47

151349F.U05




                                                 –4–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DONALD WAYNE JONES, Appellant                       On Appeal from the County Criminal Court
                                                    No. 11, Dallas County, Texas
No. 05-15-01349-CR        V.                        Trial Court Cause No. MA-1532770-N.
                                                    Opinion delivered by Justice Schenck.
THE STATE OF TEXAS, Appellee                        Justices Francis and Stoddart participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 12th day of December, 2016.




                                             –5–
