      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00313-CR



                                  Cory Shane Harris, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
        NO. D-1-DC-08-900015, HONORABLE BOB PERKINS, JUDGE PRESIDING



                               MEMORANDUM OPINION


               A jury found appellant Cory Shane Harris guilty of sexual assault, see Tex. Penal

Code Ann. § 22.011 (West Supp. 2008), and assessed punishment at seven years’ imprisonment.

Harris had previously rejected a plea bargain offer of five years’ probation. On appeal, Harris argues

that his decision to reject that offer and proceed to trial was involuntary because the trial court and

trial counsel provided erroneous advice regarding his parole eligibility and because trial counsel gave

him erroneous advice about the admissibility of extraneous-offense evidence. We affirm the

judgment of the trial court.


                                         BACKGROUND

The Events of November 21-22, 2007

               On the evening of November 21, 2007, Harris and C.B. went out together to several

bars in Austin, Texas. Both Harris and C.B. drank alcoholic beverages throughout the evening.
Early in the morning on November 22, C.B. drove them back to the duplex where Harris was staying.

They went inside to watch a movie together. During the movie, they began making out. Harris and

C.B. got undressed, Harris put on a condom, and the two began having sexual intercourse.

               It is uncontested that the intercourse started out as consensual. However, C.B.

testified that, after about five or ten minutes, Harris took his condom off. At that point, according

to C.B., she told Harris that she did not want to continue having sex:


       The State:      So when you saw him taking the condom off, what did you do? Did
                       you say anything?

       C.B.:           I told him I didn’t want to anymore.

       The State:      And did you tell him—how did he respond to that?

       C.B.:           He said, I’ll put it back on, I’ll put it back on.

       The State:      And did he?

       C.B.:           I have no idea.

       The State:      Did you want to continue at that point?

       C.B.:           No.

       The State:      Did you tell him that?

       C.B.:           Yes.


               C.B. testified that she was crying and told him to stop several times but that Harris

“didn’t care. He just kept going.” According to C.B., she was unable to make Harris stop because

he was significantly larger than her. Harris turned C.B. over and held her down and continued to

penetrate her. When he turned her back over and again resumed penetrating her, C.B. tried to get

him to stop by telling him she needed to go to the bathroom: “When nothing else was working, I

                                                   2
told him that I had to go to the bathroom about four times. And so the fifth time I hit him in the

chest and yelled it really loud, and then he stopped.” According to C.B., she went into the bathroom

and locked the door and “tried to think of the best way to get out of there.” When C.B. came out of

the bathroom, she put her clothes on and told Harris that she had to leave. Harris became angry with

her, picked her up and moved her to the living room. He then picked up C.B.’s shoes, picked her

up again, put her outside the apartment, and threw her shoes at her.

               Harris contradicted C.B.’s version of events. According to Harris, the entire

encounter was consensual. Harris testified that C.B. never asked him to stop, complained that he

was being too rough, or otherwise indicated that she did not wish to continue having sex with him.

Harris acknowledged that his condom broke while they were having sexual intercourse. He stated

that, when C.B. brought this to his attention, he took off the broken condom and put on a new one,

and they continued to have intercourse. At some point, C.B. told Harris that she had to go to the

bathroom, and then repeated it again within a few seconds. Harris then rolled over, and C.B. got up

and went to the bathroom. According to Harris, there was no indication that C.B. was upset until

she returned from the bathroom. Harris stated that C.B. began gathering her clothes and getting

dressed, and he asked her what was wrong, but “[s]he said absolutely nothing. She just acted very

shy.” Harris became frustrated with C.B. because she wouldn’t respond to his questions: “And I

was like, you know, well, if you are going to act weird and, you know, you are making me feel

uncomfortable, you can just get your shit and go, basically. Like I said, she still didn’t respond.”

Harris then picked C.B. up by the waist and carried her into the living room. He asked her again why

she was acting upset and when she did not respond, “I picked her up again and I opened the door and

I basically sat her outside the door. And I said, you know, something derogatory like, you can just

                                                 3
get the fuck out, you bitch, or something like that. I closed the door and locked it, not thinking that

she was leaving or anything.” Harris stated that he regretted kicking her out, but that he did so

because she was not responding to his questions and he “was just looking for any kind of response.”

               After C.B. left Harris’s place, she called her ex-girlfriend, Megan McGuffee.

McGuffee testified that when C.B. called she was crying and sounded “very distraught.” At first,

McGuffee had a hard time understanding C.B.:


       I would say we were on the phone for approximately ten minutes before she had
       calmed down enough and got enough of a deep breath to start—to actually speak.
       And then she said she had been raped and then she started crying again, and I had to
       get her calmed down again.


C.B. then went to where McGuffee was working. When C.B. arrived, “[s]he was very upset. She

seemed really scared. She was shaking.” McGuffee and her supervisor attempted to calm C.B. and

then called the police.

               Two officers from the Austin Police Department arrived at McGuffee’s

office and interviewed C.B. The officers testified that C.B. appeared upset and was crying.

Officer Becky Briegel testified that C.B. was reluctant to talk to them at first, so Briegel “just kept

talking to her, making small talk with her trying to get her to open up to me to tell me what had

happened.” After C.B. told them about the events of the evening, they took C.B. to St. David’s

hospital to be examined by a Sexual Assault Nurse Examiner (“SANE nurse”). According to the

SANE nurse, C.B. had injuries that are indicative of non-consensual sex. The SANE nurse testified

that sexual assault victims often have no visible injuries and that “when you do see injury, it is a

significant finding.”


                                                  4
                  That night and over the next couple of days, Harris sent several derogatory messages

to C.B.—via text message, voicemail, and the website MySpace. In one message, Harris told C.B.,

“Wat [sic] a slut ... I’m calling you [sic] family tomorrow .. You are nasty .. I’m telling everyone if

you don’t call me.” (Ellipses in original.) Harris testified that the messages were another effort to

get C.B. to tell him why she was upset with him.


The Plea Offers

                  Harris was charged with sexually assaulting C.B. On March 18, 2007, the parties

appeared before the trial court for the purpose of hearing several pre-trial motions. At that time, the

trial court inquired into the status of the plea negotiations:


        The Court:               And has the State made an offer to you in the case?

        Defense Counsel:         They have.

        The Court:               What’s the offer?

        Defense Counsel:         It was five years in TDC.

        The Court:               And you’ve talked to Mr. Harris about that; is that right?

        Defense Counsel:         Yes, sir.

        The Court:               Mr. Harris, do you understand what the offer is from the State
                                 in this case?

        Harris:                  Yes.

        The Court:               Have you had an adequate chance to discuss that with your
                                 lawyer?

        Harris:                  Yes.

        The Court:               Do you want to take that offer or not?


                                                     5
       Harris:                  Absolutely not.

       The Court:               I’m sorry?

       Harris:                  Absolutely not.

       The Court:               Did you-all have a counteroffer that you wanted to make?

       Defense Counsel:         Judge, we kind of entertained some discussion. I believe his
                                position on trying to get the State to reduce it to a
                                misdemeanor for some time, he is not open to that at this
                                point.

       The Court:               And so you-all are not going to do that?

       The State:               No, Judge.


                 The court then ruled on the pre-trial motions, requiring the State to make its file

available to defense counsel and to provide a witness list and notice regarding any extraneous-

offense evidence it intended to introduce at least seven days before trial. On April 14, 2008, the

State sent Harris a witness list and notice of its intent to introduce evidence of fourteen separate

extraneous offenses and bad acts, including a prior sexual assault charge.

                 The case was set for trial on April 21, 2008. When the parties appeared on that day,

the trial court again inquired about the plea negotiations:


       The Court:               And my understanding is that this is on the jury docket today
                                because of the—y’all have not worked the case out; is that
                                right?

       Defense Counsel:         Yes, Judge.

       The Court:               And your understanding was that the State had made an offer
                                to y’all earlier of five years TDC?

       Defense Counsel:         Yes, Judge.



                                                  6
       The Court:               And that was to the charge of sexual assault?

       Defense Counsel:         Yes.

       The Court:               Okay. And sexual assault is not a 3g offense.1 It’s one he
                                could get good conduct time, and he would be eligible at the
                                end of a quarter of his sentence; is that right?

       Defense Counsel:         Yes.

       The Court:               And you have conferred with your client Mr. Harris about this
                                offer; is that right?

       Defense Counsel:         Yes, I have.

       The Court:               Mr. Harris, do you understand what the offer is from the State
                                in this case?

       Harris:                  Yes, sir.

       The Court:               Okay. And do you want to accept that offer or not?

       Harris:                  No, sir.

       The Court:               Okay. And you understand that they’re not going to be
                                offering that after this morning?

       Harris:                  Yes, sir.


                 As the trial court further admonished Harris that this was his last chance to accept the

proffered plea, the State interjected that the most recent offer was five years’ probation, not

five years’ imprisonment. Defense counsel stated that she had not received that offer, and the




        1
           Tex. Code Crim. Proc. Ann. art. 42.12 § 3g (West Supp. 2008); see also Tex. Gov’t Code
Ann. § 508.145(d) (West Supp. 2008) (person convicted of certain offenses listed in section 3g(a)(1)
of article 42.12 is not eligible for parole until his actual calendar time served, without consideration
for good conduct time, equals one half of the sentence or thirty calendar years, whichever is less).
We note that sexual assault is in fact listed in section 3(g). See Tex Code Crim. Proc. Ann. art. 42.12
§ 3g(a)(1)(H).

                                                    7
trial court recessed to allow Harris to confer with his trial counsel. When reconvened, the trial court

checked with Harris regarding the new offer:


       The Court:              All right. In this cause, Mr. Harris, when we were recessed,
                               my understanding is the State had made an offer to you in the
                               case of five years to be probated over a five-year period,
                               which was new information as far as all of us were concerned.
                               I recessed at that point to give you a chance to discuss this
                               with your lawyer. Have you been able to discuss this new
                               plea bargain offer with your lawyer since then?

       Harris:                 Yes.

       The Court:              Okay. And have you been able to talk to her to your
                               satisfaction, or do you need some more time to talk to her
                               about it?

       Harris:                 I believe I’ve talked to her enough.

       The Court:              I’m sorry?

       Harris:                 I’ve talked to her enough.

       The Court:              Okay. And you want to accept their offer or not?

       Harris:                 I won’t register as a sex offender, sir.


After confirming that Harris would have to register as a sex offender if he pleaded to the offense as

alleged in the indictment, the trial court asked defense counsel if they had a counteroffer. Defense

counsel stated, “Our counteroffer was that Mr. Harris was willing to plead to anything that would

not require him to register as a sex offender.” The trial court then asked the State if it was willing

to offer either a misdemeanor offense or a felony that would not require sex offender registration.

The State declined, and the trial court again checked with Harris:




                                                  8
       The Court:       Okay. And so you understand, Mr. Harris, that they are not willing
                        to change their offer, that it would be five years probation to sexual
                        assault?

       Harris:          I’m ready to take it to trial.

       The Court:       I’m sorry?

       Harris:          I’m ready to take it to trial.

       The Court:       Okay, you want to reject all their offers then?

       Harris:          Yes.


Harris then pleaded not guilty and the case proceeded to jury selection and trial.


The Trial

                 The key issue in dispute at trial was whether C.B. ever revoked her consent. C.B.

testified, as did McGuffee, the two police officers who responded to McGuffee’s call, the police

investigator assigned to the case, and the SANE nurse who examined C.B.

                 The State then sought to call R.W., a woman who had made similar allegations

against Harris in June of 2006, which resulted in Harris pleading guilty to simple assault, a

Class A misdemeanor.2 See Tex. Penal Code Ann. § 22.01 (West Supp. 2008). R.W. first testified

outside the presence of the jury. She told the court that she met Harris at a party, where they were

both drinking alcoholic beverages. She stated that the party lasted all night and, early the next

morning, Harris asked her to give him and a friend a ride to Harris’s apartment. When they arrived,

Harris asked R.W. to come in and watch a movie. During the movie, Harris and R.W. began making


        2
          R.W. was included on the witness list that the State provided prior to trial, and the incident
that is the subject of her testimony was included in the State’s notice of intent to introduce
extraneous-offense evidence.

                                                    9
out. R.W. told Harris that she wanted to have sexual intercourse with him, but that she was

uncomfortable with some of his actions, because his friend was in the room. Harris then called a cab

for his friend. While they were waiting for the cab to arrive, Harris continued to kiss R.W. and

attempted to fondle her. Harris’s persistence despite his friend’s presence disturbed R.W., so she

started to leave when the friend did, but was persuaded by Harris to remain and finish watching the

movie. About thirty minutes after the friend left, Harris and R.W. began to make out again. R.W.

testified that they disrobed and she asked Harris if he had a condom. When he said he did not, she

told him she would not have intercourse with him without a condom. R.W. said that Harris then

performed oral sex on her, with her consent, before penetrating her without her consent.

               The State argued that, because the fact pattern that R.W. testified to was similar to

the allegations in the case at bar, R.W. should be allowed to testify before the jury to rebut the

defense of consent as raised through Harris’s opening statements and his cross-examinations of C.B.

and the other witnesses, citing to Casey v. State, 215 S.W.3d 870 (Tex. Crim. App. 2007) (holding

that evidence of similar sexual assault was admissible to show intent in face of consent defense and

to show modus operandi). See also Tex. R. Evid. 404(b) (“Evidence of other crimes, wrongs or acts

is not admissible to prove the character of a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes, such as proof of . . . intent”). Harris objected,

arguing that (1) the defense had not raised the issue of consent, rather it had simply held the State

to its burden of proving every element of the offense; (2) R.W.’s and C.B.’s fact patterns were not

similar enough to come in under Casey even if the defense had raised the issue of consent; and

(3) even if R.W.’s testimony was admissible under Casey it should be excluded as more prejudicial

than probative. See Tex. R. Evid. 403 (relevant evidence should be excluded if its probative value


                                                 10
is substantially outweighed by the danger of unfair prejudice). The trial court overruled these

objections and admitted R.W.’s testimony.3 R.W. then repeated substantially the same testimony

in the presence of the jury.

                Harris testified on his own behalf. He acknowledged having sexual intercourse with

C.B., but testified that it was a consensual encounter. Regarding the evening he spent with R.W.,

Harris testified that when she said she did not want to have sexual intercourse without a condom,

he performed oral sex on her only, but never attempted to penetrate her. Harris characterized C.B.

and R.W. as the sexual aggressors, noting that “[b]oth women seemed to be a lot more sporadic, like

I said, and charismatic outside of here than they [were] behind this microphone.”

                The jury found Harris guilty of sexual assault. At the punishment phase, in addition

to further testimony from C.B. and R.W., the jury heard from C.H., Harris’s ex-girlfriend. C.H. had

dated Harris for approximately three months beginning in December 2005. C.H. testified that Harris

was both mentally and physically abusive to her during the relationship. C.H. testified that one night

near the end of their relationship, after they had both been drinking, they got into an argument and

Harris grabbed her wrists and put his hand over her mouth. When she woke up the next morning,

she had bruises on her wrists and her mouth hurt from having bitten the inside of her cheek while

struggling against him as he held her face. C.H. also testified that, though she had made it clear to

Harris that she was no longer interested in having an intimate relationship with him, when she woke

up the next morning neither she nor Harris were clothed and she suspected that they had had

intercourse the night before, though she was too intoxicated to remember it. After C.H. broke up

with Harris, she changed her phone number so that he could not contact her. She testified,


       3
           Harris does not appeal these rulings.

                                                   11
       And then he came to my house one evening. I was the only one there. And he started
       banging on the front door and telling me to open it and saying things like, you can’t
       do this to me, I love you. And then, of course, when I wouldn’t, he got more angry
       and he went to the back door and he started banging on the back door, and I had
       already locked that one as well.

       And it’s an old, rickety house with glass doors. I thought—I mean, I literally thought
       he could have busted in the door if he really wanted to. So I called [my roommate]
       and told her what was going on and told her I didn’t know what to do. And she was
       actually walking home from school at that point almost at the house, and she told me
       she was going to call the police.


C.H.’s roommate testified that when she got home, Harris was still banging on the door and on

C.H.’s bedroom window, but that he left before the police arrived. The State also introduced

evidence that Harris had been arrested for driving while intoxicated in 2006 and for evading arrest

in 2005 and 2007. The officer who arrested Harris for the DWI offense testified that after he placed

Harris under arrest, “[h]e began to taunt me and use a lot of profanity towards me, wanting to fight

me.” Harris received deferred adjudication for the 2005 incident and charges were still pending for

the 2006 and 2007 incidents.

               After the State submitted its punishment phase testimony, the court presented its

proposed jury charge to the parties. The following exchange then took place:


       The State:              Judge, I have no objections. I just want to make a
                               clarification in paragraph II at the very end with regard to
                               parole eligibility. It talks about one half of the time served.
                               I want to make sure that’s correct.

       The Court:              My understanding is that—

       The State:              I think it is.

       The Court:              You know, when I looked it up it says—it’s in 3g(a)(1) and
                               it’s (H), which is a limit on judicially granted probation and

                                                 12
                                makes him ineligible to get probation from me, but he could
                                still get it from the jury.4

                                And then when you look at 37.07, you know, it talks about
                                it’s 3g(a)(1) and then it says, except for these, and (H) is not
                                one of the exceptions.5 So far as I know, it would be a
                                situation where he would not be able to get good conduct time
                                and he would have to do one half of the sentence imposed.

        The State:              That was my understanding, too. I just wanted to make sure.

        The Court:              Is that your understanding as well?

        Defense Counsel:        Yes.


After confirming Harris’s parole eligibility, the State and the defense both agreed to the charge.

                 The jury assessed punishment at seven years’ imprisonment. Under the provisions

of article 42.12 and section 508.154 of the government code, Harris is not eligible for parole until

he has served three and a half years. See Tex. Gov’t Code Ann. § 508.145(d) (West Supp. 2008)

(prisoner convicted of certain offenses listed in section 3g(a)(1) of article 42.12, code of criminal

procedure, is not eligible for parole until his actual calendar time served, without consideration for

good conduct time, equals one half of the sentence or thirty calendar years, whichever is less).

                 On appeal, Harris claims that, had he not been initially misinformed that he would

be eligible for parole after serving just one-quarter of his sentence, he would have taken the proffered

plea bargain rather than risking trial. Therefore, he argues that the incorrect admonishment by the

trial court, and the allegedly ineffective assistance of his trial counsel for not correcting the



        4
            Tex. Code Crim. Proc. art. 42.12 § 3g(a)(1)(H).
        5
         Id. at art. 37.07 § 4(c) (West Supp. 2008) (provisions regarding good conduct time are not
applicable to person convicted of offense listed in section 3g(a)(1) of article 42.12).

                                                  13
trial court, renders his not-guilty plea involuntary. Harris also contends that he was told by his

trial counsel that R.W. would not be allowed to testify at the guilt-innocence phase of the trial, and

that this incorrect advice constitutes ineffective assistance of counsel and also renders his not-guilty

plea involuntary.


                                             DISCUSSION

Misstatement by Trial Court

                In his first point of error, Harris argues that his decision to go to trial on a plea of not

guilty was involuntary because he was misinformed by the trial court regarding his parole eligibility.

However, the statutory requirements that the trial court ensure that the plea is “free and voluntary”

apply only to pleas of guilty or nolo contendere. See Tex. Code Crim. Proc. Ann. art. 26.13

(West Supp. 2008). This is so because there is a constitutional right to a fair trial, while there is no

corresponding constitutional right to a plea bargain. See Santobella v. New York, 404 U.S. 257, 261

(1971). Therefore, even if a defendant “involuntarily” pleads not guilty, where the result is a fair

trial, no constitutional right has been violated. Cf. State ex rel Turner v. McDonald, 676 S.W.2d

371, 373-74 (Tex. Crim. App. 1984) (requirement that State agree to trial by judge instead of trial

by jury does not violate defendant’s rights because “the result is simply that the defendant is subject

to an impartial trial by jury—the very thing that the Constitution guarantees him” (quoting

Singer v. United States, 380 U.S. 24, 36 (1965))).

                Even if Harris could challenge the voluntariness of a not-guilty plea in the same

manner as he could challenge the voluntariness of a guilty plea, his complaint would fail because he




                                                    14
has not proven that he was induced to plead not guilty by the trial court’s misstatement.6 See Brown

v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997) (appellant must show plea was actually induced

by incorrect admonishment); Ex parte Smith, 678 S.W.2d 78, 79 (Tex. Crim. App. 1984) (same).

There is nothing in the record to support Harris’s contention that he would have foregone his right

to trial and taken the proffered plea had he been aware that he would not be eligible for parole until

he served half of his sentence without credit for good-conduct time. The State’s proffer of five years

probation came after the trial court’s misstatement. The only reason Harris gave on the record for

rejecting the final offer was that he did not want to register as a sex offender. While Harris asserts

in his brief to this Court that parole eligibility was a significant factor in his decision, assertions of

fact in an appellate brief that are not supported by the record do not constitute evidence that may be

considered on appeal. McDonald v. State, 64 S.W.3d 86, 89 (Tex. App.—Austin 2001, no pet.).

                We overrule Harris’s first point of error.


Misstatements by Trial Counsel

                In his second and third points of error, Harris claims that his decision to go to trial

on a plea of not guilty was involuntary because he received erroneous advice from his trial counsel

regarding his parole eligibility and the admissibility of R.W.’s testimony. The State argues that we

should overrule these claims for the reason detailed above—because no constitutional right is

violated when a defendant involuntarily pleads not guilty. However, if Harris can prove that he was

harmed by erroneous advice from trial counsel, he is entitled to reversal whether we treat his claim

as an involuntary-plea claim or as a traditional ineffective-assistance-of-counsel claim. Either way,


        6
         We note that the trial court’s misstatement occurred in a conversation with trial counsel
and was not a formal admonishment directed at the defendant.

                                                   15
Harris must prove (1) his trial counsel’s performance was deficient, and (2) he was prejudiced by

this deficiency. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984) (ineffective assistance of

counsel); Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997) (citing Hill v. Lockhart,

474 U.S. 52, 56 (1985)) (involuntary plea). Therefore, in the interest of justice, we will address

Harris’s second and third points of error as traditional ineffective-assistance-of-counsel claims.


Parole Eligibility

               In his second point of error, Harris claims that he was prejudiced by ineffective

assistance of counsel because his trial counsel shared the trial court’s misapprehension regarding

Harris’s parole eligibility.   Without addressing whether this misapprehension rendered trial

counsel’s performance deficient, we conclude that Harris’s second point of error must fail because

he cannot show that he was prejudiced by this misapprehension.

               An attorney’s deficient performance is prejudicial when, but for the

attorney’s unprofessional conduct, there is a reasonable probability that the outcome of the

proceeding would have been different. Strickland, 466 U.S. at 694. Harris claims that he would

have accepted the proffered plea bargain if counsel had corrected the trial court’s misstatement

regarding parole eligibility, and thus the sentencing outcome would have been different. However,

as discussed above, there is nothing in the record to support this claim. See McDonald, 64 S.W.3d

at 89 (assertions of fact in appellate brief do not constitute evidence on appeal).

               Furthermore, we note that even if parole eligibility was an integral part of Harris’s

plea decision, he still could not show that he was prejudiced by his misapprehension because he

actually received less guaranteed prison time than he knowingly risked by pleading not guilty.

Sexual assault is a second-degree felony and carries a punishment range of two to twenty years. See


                                                 16
Tex. Penal Code Ann. § 22.011 (sexual assault is second-degree felony), § 12.33 (West 2003)

(punishment range for second-degree felony). Under Harris’s mistaken understanding of his parole

eligibility, by going to trial he risked serving a maximum of five years7—one-quarter of the

maximum twenty-year sentence—before being eligible for parole. Under the correct formulation,

Harris must serve just three-and-a-half years—one-half of his seven-year sentence—before being

eligible for parole. Therefore, Harris received a lighter sentence than he risked, both in terms of his

sentenced time and his actual time served before becoming eligible for parole.

               We overrule Harris’s second point of error.


Admissibility of Extraneous-Offense Evidence

               In his third point of error, Harris contends that he was prejudiced by ineffective

assistance of counsel because his trial counsel told him that R.W.’s testimony would not be

admissible at the guilt-innocence stage of trial unless Harris testified and directly challenged the

issue of consent in his own testimony. Therefore, Harris claims he originally planned to not testify

in order to keep R.W. from testifying.8 Harris contends that had he realized that R.W. would be able

       7
           The five-year minimum may be a combination of actual time served plus credit for good
behavior. See Tex. Code Crim. Proc. Ann. art. 37.07(c). Good-conduct time “is a privilege and not
a right,” see Tex. Gov’t Code Ann. § 498.003 (West 2003), and it is impossible to determine how
much credit Harris could have earned—therefore, it is too speculative to be used to prove harm in
this case.
       8
          At sentencing, Harris told the trial court that he objected to the imposition of the sentence
assessed by the jury because “I wouldn’t have fought that case if I had known that the second witness
was going to be allowed to testify. And the only reason I testified at all is because that second
witness was able to testify, and I felt like I needed to respond.” We assume that Harris is referring
to R.W.’s testimony at guilt-innocence, as there is no basis for excluding R.W.’s testimony at
punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (West Supp. 2008) (evidence
admissible at punishment includes “any other evidence of an extraneous crime or bad act that is
shown beyond a reasonable doubt to have been committed by the defendant or for which he could
be held criminally responsible, regardless of whether he has previously been charged with or finally

                                                  17
to testify based on his defensive theory of consent as raised in his opening statement and in his cross-

examination of the witnesses, he would have taken the proffered plea and received a lesser sentence.

                 An attorney’s performance is deficient if it falls below an objective standard of

reasonableness. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.

App. 1999). We indulge a strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994). Any allegation of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Salinas v. State, 163 S.W.3d 734, 740

(Tex. Crim. App. 2005) (citing Thompson, 9 S.W.3d at 813). The record before us is silent about

what trial counsel did or did not tell Harris regarding the admissibility of R.W.’s testimony.9 While

Harris asserts in his brief to this Court that he was told by trial counsel that R.W. would not be

allowed to testify at guilt-innocence if Harris did not testify, assertions of fact in an appellate brief

that are not supported by the record do not constitute evidence that may be considered on appeal.

McDonald, 64 S.W.3d at 89. Furthermore, “counsel should ordinarily be afforded an opportunity

to explain his actions before being denounced as ineffective.” Godspeed v. State, 187 S.W.3d 390,

392 (Tex. Crim. App. 2005) (citing Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003)).10


convicted of the crime or act”).
        9
         While Harris’s statement at sentencing provides some evidence that Harris was under the
impression that R.W. could not testify, it does not show what gave him that impression or what
advice his trial counsel gave him regarding the admissibility of R.W.’s testimony.
        10
           The court of criminal appeals has noted the difficulty defendants face in overcoming the
presumption of competent counsel and proving prejudice on direct appeal and has therefore
suggested that such claims are better pursued through a habeas-corpus proceeding. See Mallett
v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).

                                                   18
               Because Harris has not proven that his trial counsel’s performance fell below an

objective standard of reasonableness, we overrule his third point of error.


                                         CONCLUSION

               Having overruled all points of error on appeal, we affirm the judgment of conviction.



                                              __________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: August 26, 2009

Do Not Publish




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