                                  NO. 07-05-0416-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 AUGUST 10, 2006
                         ______________________________

                      RICHARD JAMES ASHTON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

            FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY;

               NO. 0951433D; HONORABLE ROBERT K. GILL, JUDGE
                       _______________________________


Before QUINN, C.J., and REAVIS and HANCOCK, JJ.


                              MEMORANDUM OPINION


      Appellant, Richard James Ashton, appeals his conviction for aggravated sexual

assault with a deadly weapon and his punishment, enhanced by a prior felony conviction,

of confinement for life in the Institutional Division of the Texas Department of Criminal

Justice. Appellant contends in eighteen issues that the trial court committed reversible

error. We affirm.
                                    Factual Background


       In October 2004, appellant forced his way into her apartment when the victim

answered the door. Appellant assaulted the victim and pushed her into the bathroom

where he forced her to perform oral sex on him. Throughout the assault, appellant was

highly agitated at the victim because he could not maintain an erection. Appellant

alternatively held sharp objects, later identified as a pencil and the jagged end of a broken

glass pipe, against her throat. During the entire period, appellant threatened the victim

culminating with a threat to kill her. At the conclusion of the assault, appellant simply got

up, put his clothes on, and walked out of the victim’s apartment. The victim called 911 and

two police units were dispatched from a nearby parking lot. Appellant was stopped leaving

the apartment complex and was arrested at the scene. The victim was taken to the

hospital where rape samples were taken. While appellant was incarcerated, samples of

hair, saliva and blood were taken from him pursuant to a search warrant. DNA testing on

the evidence recovered from the victim and the victim’s apartment proved positive for

appellant’s DNA. Additionally, DNA testing from blood on appellant’s penis and hand

tested positive for the victim’s DNA. During the trial, appellant’s trial strategy appeared to

be that the sexual encounter was consensual and that there were no threats against the

victim nor was she held against her will.


       Appellant contends through eighteen issues, that:


       1) The State committed error by commenting on the failure of appellant to
       testify;
       2) Trial counsel was ineffective; and

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       3) The trial court erred in its refusal to grant a pro se motion for continuance.


                      State’s comment on appellant’s failure to testify


       We begin by addressing the contention that the State commented during closing

arguments on appellant’s failure testify. Appellant contends that when the State made the

following comment during the closing argument before the jury, the State was commenting

on the failure of the appellant to testify:


       This is a deadly weapon used in the course of the same criminal episode,
       which lasted from the time that he seized her, took her freedom away until
       the time he releases her when he leaves her apartment. It can happen
       anytime in between. If he uses or shows this, and he did. He did. That’s
       undisputed. Same with the DNA. Same with his DNA. Undisputed
       evidence, uncontroverted. (Emphasis as provided in appellant’s brief)


       It is beyond dispute that a defendant in a criminal case has the right to remain silent

and that the State may not comment on the failure of a defendant to testify. U.S. CONST .

amend. V; TEX . CODE CRIM . PROC . ANN . art. 38.08 (Vernon 2005); Griffin v. California, 380

U.S. 609, 611-12, 85 S.Ct. 1229, 14 L.Ed.2d 105 (1965); Wead v. State, 129 S.W.3d 126,

128 (Tex.Crim.App. 2004). In order to violate appellant’s constitutional and statutory rights,

the objectionable comment, viewed from the jury’s perspective, must be manifestly

intended to be or of such a character that the jury would necessarily and naturally take it

as a comment on the accused’s failure to testify. Fuentes v. State, 991 S.W.2d 267, 275

(Tex.Crim.App. 1999). Indirect or implied allusions to the accused’s failure to testify does

not violate appellant’s right to remain silent. Id. Furthermore, simply calling attention to

the absence of evidence which only the defendant could produce will result in reversal only


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if the comment can only be construed to refer to appellant’s failure to testify and not the

failure of appellant to produce other evidence. Id. The facts, circumstances of the case,

and the context of the jury argument in question must be analyzed on a case-by-case basis

to test whether the character of the language was such that the jury would naturally and

necessarily take it to be a comment on the accused’s failure to testify. See Dickinson v.

State, 685 S.W.2d 320, 323 (Tex.Crim.App. 1984).


       In analyzing the first part of the argument made by the State, “If he uses or shows

this, and he did. He did. That’s undisputed” it is apparent that, rather than referring to

the failure of appellant to testify, the statement is a reaffirmation of the State’s position that

the evidence before the jury clearly shows that a deadly weapon was used during the

commission of the aggravated sexual assault. The State’s argument that use of a deadly

weapon was undisputed does not directly allude to appellant’s right not to testify. See

Fuentes, 991 S.W.2d at 275. Appellant can and did attack the State’s allegation of the use

of a deadly weapon by contending that the injuries were inconsistent with the use of force,

without appellant being required to testify. It cannot be said that the statement by the State

was manifestly intended to be or that it was of such a character that the jury would

necessarily and naturally take it as a comment on the accused’s failure to testify. Id. In

addition, the comments of the State about the DNA being undisputed are born out in the

stipulation signed by appellant.1 This argument can not be said to have been manifestly


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        During the trial, appellant’s counsel joined by appellant signed a stipulation of
evidence regarding the various DNA tests done on samples collected from the victim and
appellant. The stipulation included a statement that the DNA collected from the oral swab
taken from the victim matched the DNA profile of appellant. The stipulation further
provided that the penile swab taken from appellant contained DNA that matched that of the

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intended to necessarily or naturally be taken as a comment on the appellant’s failure to

testify. Id. Accordingly, appellant’s issue on the State commenting on appellant’s failure

to testify is overruled.


                              Ineffective assistance of counsel


       Next, appellant contends that his trial counsel was ineffective in ten issues covering

four general areas of the trial.2 Appellant alleges counsel was ineffective because counsel

failed to: 1) request a continuance; 2) object to evidence seized pursuant to a search

warrant; 3) preserve voir dire error; and, 4) effectively represent him by, what appellant

styles as ineffective assistance, cumulative effect.


           When confronted with an ineffective assistance of counsel claim, we apply the

two-pronged analysis set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v.

State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986) (adopting Strickland as applicable standard

under Texas Constitution).


       Under the first prong of the Strickland test, an appellant must show that counsel's

performance was deficient. Strickland, 466 U.S. at 687. "This requires showing that


victim. Finally, the stipulation concluded that the DNA taken from blood traces found on
appellant’s hand matched the DNA of the victim.
       2
         Appellant also alleges that counsel was ineffective for failure to object to the
State’s comment on appellant’s failure to testify. Inasmuch as we have determined that
the State’s argument was not a comment on the failure of appellant to testify, we need not
address appellant’s contention that trial counsel was ineffective for failure to object to the
State’s argument. TEX . R. APP. P. 47.1

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counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. To be successful in this regard,

an appellant "must show that counsel's representation fell below an objective standard of

reasonableness." Id. at 688. Under the second prong, an appellant must show that the

deficient performance prejudiced the defense. Id. at 687. The appropriate standard for

judging prejudice requires an appellant to "show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding would have been

different.” Id. at 694 “A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Id. Appellant must prove both prongs of Strickland by a

preponderance of the evidence in order to prevail. Tong v. State, 25 S.W.3d 707, 712

(Tex.Crim.App. 2000). Appellate review of counsel’s representation is highly deferential

and presumes counsel’s actions fell within the wide range of reasonableness and

professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002).


       Any allegation of ineffective assistance of counsel must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at

835. Failure to make the required showing of either deficient performance or sufficient

prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700. Appellate courts

look to the totality of the representation and the particular circumstances of each case in

evaluating the effectiveness of counsel.         Ex parte Nailor, 149 S.W.3d 125, 130

(Tex.Crim.App. 2004).


       Normally the record on direct appeal is not sufficiently developed to show that trial

counsel’s representation was so deficient and so lacking in tactical or strategic decision

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making as to overcome the presumption of reasonableness and professional assistance.

See Bone, 77 S.W.3d at 833.          A petition for writ of habeas corpus usually is the

appropriate vehicle to investigate ineffective assistance claims. Id. Having set out the

standard of review with respect to claims of ineffective assistance of counsel, we now

review each of appellant’s issues.


            Failure to request a continuance and subpoena medical records


       Appellant contends that trial counsel’s failure to request a continuance to subpoena

medical records is an act of ineffective assistance of counsel warranting reversal. Prior to

beginning jury voir dire, trial counsel indicated that appellant wished to make a statement

to the court. During the statement, which contained a litany of complaints against his trial

counsel, appellant stated one of the acts that had not been done “. . . had to do with

medical reports that can prove that someone lied. The other had to do with a medical

report that will prove the size of me having a hernia because of the nature of this case.”

To support his position, appellant directs this court to a statement by counsel wherein

appellant alleges that trial counsel confessed error. When read in context, appellant’s trial

counsel agrees that appellant had sent him the requests to subpoena the medical records

but not that the records were germane, relevant or dispositive of any issue to be tried.

Without any support in the record, we are asked to presume that the requested records

support the unsworn statement by appellant. Even the unsworn statement by appellant

does not demonstrate the relevance or necessity for the medical records. Rather, all we

have is a conclusory statement by appellant that the records are necessary. We are

further asked to assume that trial counsel had no tactical or strategic reason for not

                                             7
subpoenaing the requested records. However, it is appellant’s burden to show that the

failure of trial counsel to subpoena the records was deficient conduct. Strickland, 466 U.S.

at 687. Additionally, appellant has not shown that the alleged ineffective assistance by trial

counsel was of the nature as to undermine the confidence of this court in the jury’s verdict.

Id. at 694. Inasmuch as we cannot presume ineffective assistance of counsel for failure

to subpoena the referenced medical records, we also cannot find counsel ineffective for

failing to request a continuance to subpoena those same medical records.


                                      Search Warrant


       Next, appellant contends he was denied effective assistance of counsel because

trial counsel did not attack the search warrant and did not make the search warrant and

accompanying affidavit part of the appellate record. Appellant admits that trial counsel filed

fourteen pre-trial motions but contends that counsel did not contest the validity of the

search warrant. This admission is an indicia that trial counsel had prepared his case for

trial. Further, the record indicates, through the cross-examination conducted by trial

counsel and the final arguments of counsel, that the defensive theory of the case was that

the sexual contact was consensual. The record further supports this defensive theory by

including a stipulation by appellant and his counsel wherein the results of the DNA testing

were admitted into evidence. In this situation, we cannot presume ineffectiveness absent

a showing that voluntary consent was not the defensive theory or that voluntary consent

was not a valid tactical or strategic decision. See Bone, 77 S.W.3d at 833. We defer to

the decisions of the trial counsel and will indulge in the presumption that counsel’s actions

fell within the wide range of reasonable and professional assistance. Id. As the Texas

                                              8
Court of Criminal Appeals noted in Thompson v. State, 9 S.W.3d 808, 813-14

(Tex.Crim.App. 1999), “[T]he reasonableness of counsel’s choices often involves facts that

do not appear in the appellate record.” Such is the case here; accordingly a petition for

writ of habeas corpus is the more appropriate way to explore this issue. Id. Based on the

record before us, we cannot and will not presume counsel ineffective for failing to contest

the search warrant and not including the same in the appellate record.


                              Failure to preserve voir dire error


       Appellant further contends that trial counsel was ineffective for his failure to take the

necessary steps to preserve error committed by the trial court in denying challenges for

cause as to three prospective jurors. To support his position, appellant correctly sets forth

the steps required to preserve error in the denial of challenges for cause. Martinez v.

State, 17 S.W.3d 677, 682 (Tex.Crim.App. 2000). Appellant concludes his argument by

stating that there can be no possible trial strategy for trial counsel’s failure to take the steps

set forth in Martinez.


       In reviewing allegations of ineffective assistance during voir dire, the Texas Court

of Criminal Appeals has consistently held that counsel should be afforded the opportunity

to explain his actions. See Goodspeed v. State, 187 S.W.3d 390, 394 (Tex.Crim.App.

2005) (counsel addressed jury panel but asked no questions and exercised two

preemptory challenges on jurors previously excused by the trial court); Jackson v. State,

877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (record silent as to why prospective juror was

not challenged). Yet today, we are asked to speculate why trial counsel did not appeal the


                                                9
denial of the challenges for cause.       As stated earlier, any allegation of ineffective

assistance of counsel must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Bone, 77S.W.3d at 835. The record

before us does not affirmatively demonstrate trial counsel’s deficient performance or that

there is a reasonable probability that the result of the proceeding would have been

different. Tong, 25 S.W.3d at 712. We decline to speculate as to counsel’s reasons for

not pursuing the denial of the challenges for cause.


                   Cumulative effect of ineffective assistance of counsel


       Appellant next contends that the cumulative effect of the various allegations of

ineffective assistance of counsel has resulted in no assistance of counsel. Unlike the

Burdine case referenced by appellant, trial counsel was active in representation of

appellant throughout the trial of the case. Burdine v. Johnson, 262 F.3d 336, 345 (5 th Cir.

2001) (counsel who slept during portions of the guilt-innocence phase of the trial is equal

to no counsel at all). The record clearly shows the attempts of counsel to represent

appellant. Appellant has failed in his burden to overcome the presumption that trial

counsel provided reasonable and professional assistance. Bone, 77 S.W.3d at 833.


       We have previously discussed the individual allegations of ineffective counsel and

appellant’s failure to demonstrate trial counsel’s ineffectiveness. Accordingly, we find that

appellant has failed to prove by a preponderance of the evidence that there was no

plausible professional reason for any of the complained of acts or omissions. See id. at

836. Therefore, we overrule appellant’s issue on ineffective assistance of counsel.


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                          Denial of pro se motion for continuance


       Appellant’s final contention is that the trial court committed error when it denied his

oral pro se motion for continuance. Initially it is noted that motions for continuance must be

sworn to by persons having personal knowledge of the facts relied upon for the

continuance. TEX . CODE CRIM . PROC . ANN . art. 29.08 (Vernon 1989). An unsworn oral

motion for continuance preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755

(Tex.Crim.App. 1999). Accordingly, we overrule appellant’s issue.


                                         Conclusion


       Having overruled appellant’s issues, the judgment of the trial court is affirmed.




                                          Mackey K. Hancock
                                              Justice




Do not publish.




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