                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00076-CR



          JESSE LUCAS WILSON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 173rd District Court
              Henderson County, Texas
           Trial Court No. CR16-0937-173




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                    MEMORANDUM OPINION
        A Henderson County jury convicted Jesse Lucas Wilson of two counts of aggravated sexual

assault of a child younger than fourteen. 1 See TEX. PENAL CODE ANN. § 21.02. Wilson was

sentenced to thirty-three years’ imprisonment and was ordered to pay $900.00 in attorney fees for

his court-appointed counsel in two separate judgments, one for each count.

        On appeal, Wilson argues that his counsel rendered ineffective assistance during

guilt/innocence by refusing to allow him to testify and by failing to present allegedly exculpatory

evidence. In his point of error, Wilson contends that the trial court abused its discretion by

overruling his challenges to two veniremembers for cause. We find that the trial court did not

abuse its discretion in overruling Wilson’s motion for new trial based on ineffective assistance of

counsel and that Wilson failed to preserve his last point of error. That said, because Wilson is

indigent, we modify the trial court’s judgments by deleting the assessment of court-appointed

attorney fees. As modified, we affirm the trial court’s judgments.

I.      The Trial Court Did Not Abuse Its Discretion in Overruling Wilson’s Motion for New
        Trial Based on Ineffective Assistance of Counsel

        Wilson filed a motion for new trial arguing that his counsel rendered ineffective assistance

during guilt/innocence by (1) refusing to allow him to testify in his defense and (2) by failing to

present exculpatory witnesses. Wilson’s motion for new trial was accompanied by his affidavit

stating, “It was my wish to testify in my trial. I repeated my wish to testify over and over, but my



1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

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attorney would not agree to call me to testify and ended up not putting on any defense at all.” The

affidavit did not detail the allegedly exculpatory evidence he wished to present, but merely

characterized it as “evidence regarding the circumstance of the offense and living arrangements at

the time of the alleged offense.” The trial court denied Wilson’s motion for new trial without a

hearing. 2

           A.       Standard of Review

           When, as here, “the trial court denies a motion for a new trial alleging ineffective assistance

of counsel, ‘we view the relevant legal standards through the prism of abuse of discretion.’”

Lampkin v. State, 470 S.W.3d 876, 903 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Ramirez

v. State, 301 S.W.3d 410, 415 (Tex. App.—Austin 2009, no pet.)). As a result, we use the standard

set by Riley v. State:

           An appellate court reviews a trial court’s denial of a motion for new trial for an
           abuse of discretion, reversing only if the trial judge’s opinion was clearly erroneous
           and arbitrary. A trial court abuses its discretion if no reasonable view of the record
           could support the trial court’s ruling. This deferential review requires the appellate
           court to view the evidence in the light most favorable to the trial court’s ruling. The
           appellate court must not substitute its own judgment for that of the trial court and
           must uphold the trial court’s ruling if it is within the zone of reasonable
           disagreement. “Where there are two permissible views of the evidence, the
           factfinder’s choice between them cannot be clearly erroneous.”

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012) (citations omitted), overruled on other

grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018) (quoting Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 574 (1985)); see Burch v. State, 541 S.W.3d 816, 820 (Tex.




2
    Wilson does not complain about the lack of hearing on appeal.
                                                           3
Crim. App. 2017). We must decide whether the trial court erred in determining that Wilson failed

to meet his burden to show counsel rendered ineffective assistance.

       As many cases have noted, the right to counsel does not mean the right to errorless counsel.

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prevail on a claim of

ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). See Ex parte Imoudu, 284 S.W.3d 866,

869 (Tex. Crim. App. 2009) (orig. proceeding). A failure to make a showing under either prong

defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim.

App. 2003).

       The first prong requires a showing “that counsel’s performance fell below an objective

standard of reasonableness.” Strickland, 466 U.S. at 688. This requirement can be difficult to

meet since there is “a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Id. at 689. As a result, the Texas Court of Criminal Appeals

has said, “Trial counsel ‘should ordinarily be afforded an opportunity to explain his actions before

being’” found ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)

(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

       When an appellate record is silent on why trial counsel failed to take certain actions, the

appellant has “failed to rebut the presumption that trial counsel’s decision was in some way—be

it conceivable or not—reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007);

see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This is because allegations of

ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 828, 833 n.13

                                                 4
(Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)).

When a party raises an ineffective assistance of counsel claim for the first time on direct appeal,

the defendant must show that “under prevailing professional norms,” Strickland, 466 U.S. at 688,

no competent attorney would do what trial counsel did or no competent attorney would fail to do

what trial counsel failed to do. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

         B.       Analysis

         “A motion for new trial must be supported by an affidavit that specifically sets out the

factual basis for the claim.” Robinson v. State, 514 S.W.3d 816, 825 (Tex. App.—Houston [1st

Dist.] 2017, pet. ref’d) (citing Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009)).

When ineffective assistance of counsel is raised in a motion for new trial, “a defendant must allege

sufficient facts from which a trial court could reasonably conclude both that counsel failed to act

as a reasonably competent attorney and that, but for counsel’s failure, there is a reasonable

likelihood that the outcome of his trial would have been different.” Smith v. State, 286 S.W.3d

333, 340–41 (Tex. Crim. App. 2009).

         Wilson’s motion for new trial and his accompanying affidavit did not set forth facts

establishing either prong. Wilson’s motion was supported only by his own affidavit, which merely

said that counsel refused to allow him to testify and that, had he testified, his testimony would

include “impeachment evidence, evidence regarding the circumstance of the offense and living

arrangements at the time of the alleged offense.” 3 The statement in the motion for new trial that


3
 “Even though the appellant may file a motion for new trial . . . , [i]f there is no hearing, or if counsel does not appear
at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective assistance claim.”
Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d) (citing Howard v. State,
894 S.W.2d 104, 107 (Tex. App.—Beaumont 1995, pet. ref’d)). Absent such an affidavit, “[i]t is not our role to
                                                            5
counsel “did not put on several defense witnesses who were available to testify as to exculpatory

evidence including multiple instances of complainant’s recanting, and living arrangements which

would have made it impossible” to commit the offense were wholly unsupported by any affidavit.

Critically, although Wilson complained of omissions by counsel, the motion and affidavit did not

allege facts showing that counsel failed to act as a reasonably competent attorney in making the

omissions.

         As for counsel’s failure to allow Wilson to testify, to establish ineffective assistance of

counsel on this ground, it is necessary for appellant to show where in the trial record he asserted

his right to testify and that his attorney failed to protect that right. Salinas v. State, 163 S.W.3d

734, 741 (Tex. Crim. App. 2005); see Agosto v. State, 288 S.W.3d 113, 117 (Tex. App.—Houston

[1st Dist.] 2009, no pet.). The trial court could have found that the trial record did not support

Wilson’s claim. 4 Alternatively, the court may have decided that there were many reasons why

counsel could have been competent in preventing Wilson’s testimony after the child victim

testified in detail about many acts of sexual abuse. It could have determined that counsel

reasonably believed that the evidence Wilson sought to present was not truly exculpatory, that

Wilson may have made a poor witness, and that his cross-examination would reveal he had


speculate as to the basis for trial counsel’s actions; thus, a record that is silent on the reasoning behind counsel’s
actions is sufficient to deny relief.” Fulton v. State, 576 S.W.3d 905, 916 (Tex. App.—Tyler 2019, no pet. h.) (citing
Stults, 23 S.W.3d at 208; Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003)).
4
 The only mention of Wilson’s wish to testify came after the jury’s verdict on guilt/innocence. First, in a letter written
to the trial court, Wilson said, “[Counsel] argued with me when I said I wanted to take the stand and managed to talk
me out of it.” In his affidavit accompanying the motion for new trial, Wilson stated, “It was my wish to testify in my
trial. I repeated my wish to testify over and over, but my attorney would not agree to call me to testify . . . I never
gave up on my wish to testify, but I did finally give up asking.” Even if an affidavit supporting a motion for new trial
is uncontroverted, “[t]he trial court is free to disbelieve an affidavit, especially one unsupported by live testimony.”
Riley, 378 S.W.3d at 457.
                                                            6
engaged in other extraneous offenses and had been accused of sexual assault before by another

victim. See Martinez v. State, No. 14-01-00674-CR, 2002 WL 1354238, at *3 (Tex. App.—

Houston [14th Dist.] June 20, 2002, no pet.) (mem. op., not designated for publication) (concluding

counsel did not render ineffective assistance in disallowing defendant’s testimony). 5 Thus, the

trial court could have determined that Wilson failed to meet the first Strickland prong on this claim

of ineffective assistance.

         As for the second ground of ineffective assistance, Wilson asserted that his counsel should

have called the family members and friends that testified at punishment during guilt/innocence. 6

Wilson did not attach an affidavit showing defense counsel’s effort, or lack of effort, in

investigating their testimony. 7 Robinson, 514 S.W.3d at 826. The record revealed that some of

these witnesses were under subpoena and were available to testify during guilt/innocence. 8 That




5
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
6
 These witnesses testified favorably to Wilson at punishment. Although the trial court disallowed testimony on “the
weakness and relative strength of the allegations” because it was related to the decided issue of guilt, bills of exception
showed that the witnesses questioned the child’s motive to lie and the defendant’s intent and opportunity to commit
the offenses.
7
 Wilson’s post-conviction letter showed that Wilson gave counsel “a lot of information to help [his] case,” that counsel
initially represented that there were witnesses who could testify favorably, but that counsel decided not to call those
witnesses. As a result, the trial court could have concluded that counsel’s decision not to call the witnesses was a
reasonable one made after further research into their backgrounds and purported testimony.

8
 During punishment, Wilson called Dr. Thomas Allen, who was retained to evaluate Wilson’s risk of reoffending.
Wilson argues on appeal that had Allen “been called to testify, he would have explained his concerns about the
weakness of the state’s case to the jury, along with all of the information regarding Appellant’s designation of being
in a low risk category.” Nothing shows that any testimony by Allen speculating about the truthfulness of the child
victim’s allegations or his risk assessment would be relevant or admissible. See Yount v. State, 872 S.W.2d 706, 708
(Tex. Crim. App. 1993) (“[E]xpert testimony which decides an ultimate fact for the jury, such as ‘a direct opinion on
the truthfulness of the child,’ crosses the line and is not admissible under Rule 702.”); Edwards v. State, 107 S.W.3d
107, 115 (Tex. App.—Texarkana 2003, pet. ref’d).
                                                            7
said, “there may be many logical and reasonable explanations for not calling certain witnesses,

such as a belief that these witnesses would not favorably impress the jury or that they were

susceptible to impeachment and therefore presented more potential for harm than help.” Stults, 23

S.W.3d at 209. Because Wilson did not support his ineffective assistance claim by sufficient facts

from which the trial court could have concluded that counsel failed to act as a reasonably

competent attorney, we cannot say that the trial court abused its discretion in finding Wilson failed

to show that counsel’s performance was deficient. See Anderson v. State, 193 S.W.3d 34, 39 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d) (trial court did not abuse its discretion in declining to

find counsel deficient for failing to call witnesses where the record did not explain counsel’s

reasoning for the omissions).

        Because the trial court was within its discretion to find that Wilson had not met the first

Strickland prong, we find no abuse of discretion in the trial court’s decision to overrule Wilson’s

motion for new trial based on ineffective assistance of counsel. As a result, we overrule Wilson’s

first two points of error.

II.     Wilson Failed to Preserve His Last Point of Error

        During voir dire, Wilson’s counsel informed the venire that the State had to prove its case

beyond a reasonable doubt and engaged in the following discussion:

        It’s such a strong burden that if you have 99 reasons to believe that the person is
        guilty and one reasonable doubt that they’re not, then the law requires the person
        accused to be found not guilty. Anybody have any opinions on that? . . . .

               Anybody here that if they’re on the jury that if you had 99 reasons to convict
        and one reasonable doubt, you’d still convict them after we just talked about that?
        Anybody that says, you know what? I just can’t do that. I’ve got this one -- I’ve

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         got these 99 reasons, and they by far weigh out -- outweigh? Anybody that feels
         that way?

Because they answered affirmatively, two veniremembers, venire number 37 and venire number

42, were the subject of Wilson’s challenges for cause. His request was denied. 9 Wilson argues

that the trial court’s ruling constituted an abuse of discretion.

         As explained by the Texas Court of Criminal Appeals,

         To preserve error for a trial court’s erroneous denial of a challenge for cause,
         appellant must show that: (1) he asserted a clear and specific challenge for cause;
         (2) he used a peremptory challenge on the complained-of venire member; (3) his
         peremptory challenges were exhausted; (4) his request for additional strikes was
         denied; and (5) an objectionable juror sat on the jury. Green v. State, 934 S.W.2d
         92, 105 (Tex. Crim. App. 1996).

Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).

         After his challenges for cause to venire number 37 and venire number 42 were denied,

Wilson used and exhausted his peremptory strikes on them and requested another strike for venire

number 41, who said her niece was a victim of sexual assault. The trial court denied the request

for another peremptory strike. That said, our record shows that an objectionable juror did not sit

on the jury. Instead, the record shows that venire number 37, venire number 42, and venire




9
 In Sledge v. State, counsel asked the venire, “Now, if you have 99 reasons to say somebody is guilty and you have
one reasonable doubt, that’s not guilty. That’s what the law says.” Sledge v. State, No. 03-03-00092-CR, 2004 WL
438958, at *9 (Tex. App.—Austin Mar. 11, 2004, no pet.) (mem. op., not designated for publication). The Austin
Court of Appeals found that the trial court did not abuse its discretion in denying the appellant’s challenge for cause
to the veniremember who said he “would have to say they’re guilty because it’s 99 percent.” Id. at *9–10. Although
this unpublished opinion has no precedential value, we note the Court reasoned that “appellant demonstrated only that
counsel’s hypothetical definition of ‘99 to 1’ was enough to convince [the veniremember] of proof beyond a reasonable
doubt,” but “[t]he record d[id] not further reflect what [the veniremember’s] definition of proof beyond a reasonable
doubt might be.” Id. at *10. In denying the challenges for cause here, the trial court used the same reasoning discussed
in Sledge.
                                                           9
number 41 were not seated on the jury. As a result, Wilson failed to preserve his last point of

error. It is overruled.

III.    We Delete the Assessments of Court-Appointed Attorney Fees

        Because the trial court found Wilson indigent, he was presumed to remain indigent absent

proof of a material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p),

26.05(g) (Supp); Stinecipher v. State, 438 S.W.3d 155, 165 (Tex. App.—Tyler 2014, no pet.).

Even so, the trial court, who also found Wilson indigent after trial, assessed $900.00 in attorney

fees against him in two separate judgments, one for each count of aggravated sexual assault.

        Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the

authority to order the reimbursement of court-appointed attorney fees only if the court determines

that a defendant has financial resources that enable him to offset in part or in whole the costs of

the legal services provided, including any expenses and costs. TEX. CODE CRIM. PROC. ANN. art.

26.05(g). “[T]he defendant’s financial resources and ability to pay are explicit critical elements in

the trial court’s determination of the propriety of ordering reimbursement of costs and fees” of

legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011)

(quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there is no finding

of the ability of Wilson to pay them, the assessments of the attorney fees were erroneous. See

Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309 S.W.3d

552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946–47 (Tex. App.—Texarkana

2013, no pet.).




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       “Appellate courts ‘have the authority to reform judgments and affirm as modified in cases

where there is non reversible error.’” Walker v. State, 557 S.W.3d 678, 690 (Tex. App.—

Texarkana 2018, pet. ref’d) (quoting Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco

2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments));

see Stinecipher, 438 S.W.3d at 166. We modify the trial court’s judgments by deleting the

assessments of $900.00 for attorney fees from them.

IV.    Conclusion

       We modify both of the trial court’s judgments by deleting the assessments of $900.00 for

attorney fees. We affirm the trial court’s judgments, as modified.




                                             Scott E. Stevens
                                             Justice

Date Submitted:       August 29, 2019
Date Decided:         August 30, 2019

Do Not Publish




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