Affirmed; Opinion Filed June 23, 2015.




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00954-CR

                          BARBARA KENNEDY WARD, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 292nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-0973060-V

                             MEMORANDUM OPINION
                           Before Justices Fillmore, Myers, and Evans
                                    Opinion by Justice Evans
       Barbara Kennedy Ward was convicted of aggravated assault with a deadly weapon after a

jury found that she had stabbed her ex-common-law husband with a knife. In her sole issue,

appellant asserts she received ineffective assistance of counsel because evidence adduced at the

punishment hearing suggested a theory of self-defense that was not raised by the defense during

the guilt/innocence phase of trial. We affirm the trial court’s judgment.

       Appellant’s ineffective assistance claim is based solely on her own testimony during the

punishment stage of trial. She did not testify at the guilt/innocence stage. Specifically, appellant

contends her testimony that on the day of the incident in question “my ex-husband was trying to

kill me with a butcher knife and he cut me,” along with her description of the injuries she

suffered on that day, was sufficient to support a self-defense claim. She therefore argues defense
counsel was ineffective for failing to present a self-defense claim to the jury at the

guilt/innocence stage.

         To prevail on an ineffective assistance of counsel claim, appellant must establish both

that her trial counsel performed deficiently and that the deficiency prejudiced her. See State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984). With respect to the first prong, the record on appeal must be sufficiently

developed to overcome the strong presumption of reasonable assistance. See Thompson v. State,

9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Absent an opportunity for trial counsel to

explain his actions, we will not conclude his representation deficient “unless the challenged

conduct was so outrageous that no competent attorney would have engaged in it.” See Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).           Texas procedure makes it “virtually

impossible” for appellate counsel to present an adequate ineffective assistance claim on direct

review. See Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013). This is because the inherent nature

of most ineffective assistance of trial counsel claims means that the trial court record “will often

fail to ‘contai[n] the information necessary to substantiate’ the claim.” Id. (quoting Ex parte

Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997) (en banc)). Consequently, the better

procedural mechanism for pursuing a claim of ineffective assistance is almost always through

writ of habeas corpus proceedings. Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App.

2003).

         The record does not show why trial counsel failed to raise a self-defense claim at the

guilt/innocence stage of trial. Without evidence showing trial counsel’s explanation as to why

self-defense was not raised, we cannot conclude that abandoning the defense was not reasonable

strategy. See Thompson, 9 S.W.3d at 813–14. Moreover, self-defense is a justification theory

that necessarily requires a defendant to admit that the conduct occurred. See Ford v. State, 112

                                                –2–
S.W.3d 788, 794 (Tex. App.—Houston [14th Dist.] 2003, no pet.). In her testimony during the

punishment stage, appellant denied stabbing her husband on the date in question. Thus, the

record demonstrates appellant denied committing the conduct forming the basis of the charge

against her, testimony that is clearly inconsistent with pursuing a self-defense claim. Based on

the record before us, we cannot conclude that defense counsel was ineffective for not raising a

self-defense claim during guilt/innocence stage of trial. We overrule appellant’s sole issue.

       We affirm the trial court’s judgment.




                                                     / David Evans/
                                                     DAVID EVANS
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47
140954F.U05




                                               –3–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

BARBARA KENNEDY WARD, Appellant                       On Appeal from the 292nd Judicial District
                                                      Court, Dallas County, Texas
No. 05-14-00954-CR        V.                          Trial Court Cause No. F-0973060-V
                                                      Opinion delivered by Justice Evans, Justices
THE STATE OF TEXAS, Appellee                          Fillmore and Myers participating.

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


Judgment entered this 23rd day of June, 2015.




                                                –4–
