                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-10-00285-CR
                               No. 10-10-00286-CR
                               No. 10-10-00287-CR
                               No. 10-10-00288-CR
                               No. 10-10-00289-CR

LACEDRIC RAY,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                       From the 77th District Court
                         Limestone County, Texas
     Trial Court Nos. 11343-A, 11344-A, 11345-A, 11346-A and 11630-A


                         MEMORANDUM OPINION


      A jury found Appellant Lacedric Ray guilty of aggravated assault with a deadly

weapon in appellate cause numbers 10-10-00285-CR (trial court cause number 11343-A),

10-10-00286-CR (trial court cause number 11344-A), and 10-10-00287-CR (trial court

cause number 11345-A); unlawful possession of a firearm by a felon in appellate cause

number 10-10-00288-CR (trial court cause number 11346-A); and unlawfully carrying a
weapon on premises licensed for the sale of alcohol in appellate cause number 10-10-

00289-CR (trial court cause number 11630-A).          The jury assessed his punishment,

enhanced by prior felony convictions, at thirty-five years’ confinement for each offense,

to run concurrently. Ray appeals his convictions. Because he asserts identical issues

among the five appeals, we will decide them together.

                         MOTION FOR NEW TRIAL HEARING

         In his first issue in each of his five appeals, Ray contends that the appeal should

be abated to the trial court for a hearing on his motion for new trial. Ray argues that he

is entitled to a hearing because his motions for new trial raise matters that are not

determinable from the record.         The State responds that Ray did not meet the

presentment requirement of Rule of Appellate Procedure 21, and, therefore, the trial

court did not abuse its discretion in not holding a hearing on the motions. In light of

the State’s argument, Ray contends alternatively that if his trial counsel failed to timely

present the motions for new trial to the trial court, then his trial counsel was ineffective

for failing to do so. The State responds that Ray’s motions for new trial did not actually

raise facts outside the record upon which error could be predicated; thus, even if his

counsel had presented the motions to the trial court, a hearing was not required.

    A.    Presentment of Motion

         The trial court is under no requirement to conduct a hearing on a motion for new

trial if the motion is not timely presented. See TEX. R. APP. P. 21.6 (“The defendant must

present the motion for new trial to the trial court within 10 days of filing it.”); Rozell v.

State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). In Carranza v. State, 960 S.W.2d 76

Ray v. State                                                                           Page 2
(Tex. Crim. App. 1998), the Court of Criminal Appeals explained that presentment

requires a defendant to go beyond simply filing the motion for new trial with the clerk

of the trial court; “present” means “the record must show the movant for a new trial

sustained the burden of actually delivering the motion for new trial to the trial court or

otherwise bringing the motion to the attention or actual notice of the trial court.” Id. at

79. The Carranza court said that its holding was “essentially the same holding as that set

out in [a concurring] opinion” written by Judge Overstreet. Id. at 79-80. That opinion

stated:

          In order to “present” a motion for new trial, the movant must give the
          trial court actual notice that it has timely filed a motion for new trial and
          request a hearing on the motion within ten days of filing it. The
          presentment must be directed to the trial court or another authorized to
          act on behalf of the trial court. The presentment must result in actual
          notice to the trial court and may be evidenced by the judge’s signature or
          notation on a proposed order or by a hearing date set on the docket. This
          list is not meant to be exhaustive, but merely suggestive as to how one
          may fulfill the communication requirement for presenting a motion for
          new trial.

Id. at 81 (Overstreet, J., concurring).

          Ray timely filed a motion for new trial in each cause, but the record does not

contain any ruling on the motions, proposed orders containing the trial judge’s

signature or notation, or docket entries evidencing a hearing on the motions. 1 The only

suggestion of presentment in the record of each cause is a “Certificate of Presentment”

included at the end of each motion, stating, “By signature above, I hereby certify that a

true and correct copy of the above and foregoing has been hand-delivered to the Office



1   Ray’s motions for new trial were denied by operation of law. See TEX. R. APP. P. 21.8.

Ray v. State                                                                                 Page 3
for the 77th Judicial District Court of LIMESTONE County, on this day, February 2,

2009.”2 The only signature on each document, however, is that of Ray’s attorney; the

documents do not include any notation from the trial judge or other court personnel.

And although the certificate states that the motion was “hand-delivered to the Office for

the 77th Judicial District Court of LIMESTONE County,” it does not indicate that

counsel in fact communicated a request for a hearing to the trial court or another

authorized to act on behalf of the trial court. Thus, we conclude that this evidence is

insufficient to establish presentment. See TEX. R. APP. P. 21.6; Bearnth v. State, --- S.W.3d

---, ---, No. 01-09-00906-CR, 2011 WL 5110241, *10 (Tex. App.—Houston [1st Dist.] Oct.

27, 2011, no pet. h.) (holding that request for evidentiary hearing in prayer of motion for

new trial and certificate of presentment signed only by defense counsel were

insufficient to establish presentment); Hiatt v. State, 319 S.W.3d 115, 122-23 (Tex. App.—

San Antonio 2010, pet. ref’d) (holding that certificate of presentment signed by defense

counsel was insufficient evidence of presentment); Burrus v. State, 266 S.W.3d 107, 115

(Tex. App.—Fort Worth 2008, no pet.) (holding that certificate of presentment and

docket entry noting filing of motion were insufficient to establish presentment). In the

absence of a proper showing that Ray’s motions for new trial were presented to the trial

court, the trial court did not abuse its discretion in not conducting a hearing on Ray’s

motions for new trial. See TEX. R. APP. P. 21.6.




2The motions for new trial were each filed and served on March 2, 2009. In fact, the affidavit attached to
the motions for new trial was not signed until March 2, 2009. We thus assume, as the State does, that the
date in the “Certificate of Presentment” was in error and that everything occurred on March 2, 2009.

Ray v. State                                                                                       Page 4
    B.    Ineffective Assistance of Counsel

         We must then address Ray’s alternative argument that his trial counsel provided

ineffective assistance by failing to timely present the motions for new trial to the trial

court. To prevail on an ineffective assistance of counsel claim, the familiar Strickland v.

Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535,

156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984)); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App.

2005) (same). Under Strickland, the appellant must prove by a preponderance of the

evidence that (1) counsel’s performance was deficient, and (2) the defense was

prejudiced by counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at

2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Andrews, 159 S.W.3d at 101. Absent

both showings, an appellate court cannot conclude the conviction resulted from a

breakdown in the adversarial process that renders the result unreliable. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

         The purpose of a hearing on a motion for new trial is to (1) decide whether a

cause should be retried and (2) prepare a record for presenting appellate issues if the

motion is denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). A hearing

on a motion for new trial is not an absolute right and is not required when the matters

raised in the motion are determinable from the record. Id. In addition, when a matter is

not determinable from the record, no hearing is required unless the complaining party

establishes the existence of “reasonable grounds” showing that he would be entitled to

relief. Id. at 339. It is thus required, as a prerequisite to a hearing when the grounds in

Ray v. State                                                                         Page 5
the motion are based on matters not already in the record, that the motion be supported

by an affidavit, either of the defendant or someone else, specifically setting out the

factual basis for the claim. Id. The affidavit need not establish a prima facie case, but a

fair reading of it must give rise to reasonable grounds in support of the claim. Id.

Affidavits that are conclusory in nature and unsupported by facts do not provide the

requisite notice of the basis for the relief claimed; thus, no hearing is required. Id.

        Here, Ray argues that he was entitled to a new trial hearing due to juror

misconduct. In support of his motions, Ray attached the affidavit of his trial counsel, in

which she states, “After the trial of this matter I discovered that juror Nikia Wiley was

in fact closely related to victim Shanique [sic] Amos. Ms. Wiley failed to dislose [sic]

this information during the voir dire process.”

        When a juror “’withholds material information during the voir dire process, the

parties are denied the opportunity to exercise their challenges, thus hampering their

selection of a disinterested and impartial jury.’” Franklin v. State, 138 S.W.3d 351, 354

(Tex. Crim. App. 2004) (quoting Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App.

1978)). To obtain a new trial based on juror misconduct, the defendant must show that

the juror withheld material information during voir dire despite the defendant’s due

diligence. Id. at 355-56; see Armstrong v. State, 897 S.W.2d 361, 363-64 (Tex. Crim. App.

1995). Diligence requires that counsel ask questions calculated to bring out information

that might indicate a juror’s inability to be impartial and truthful.         Armstrong, 897

S.W.2d at 363-64. Unless defense counsel asks such questions, material information that

a juror fails to disclose is not really “withheld.” Id. at 364. Counsel must ask specific

Ray v. State                                                                              Page 6
questions, not rely on broad ones, to satisfy this obligation and must ask follow-up

questions after a potential bias is discovered. Gonzales v. State, 3 S.W.3d 915, 917 (Tex.

Crim. App. 1999).

           During voir dire in this case, defense counsel did not inquire as to what kinship,

if any, the venire members had with the alleged victims, Shenique Amos, Eric

Washington, and their son.3 The trial court and the State asked the venire members

whether they knew Shenique Amos, Eric Washington, or their son. See Armstrong, 897

S.W.2d at 364 n.1 (defense counsel is entitled to rely on questions asked by court and

prosecutor). Neither the trial court nor the State, however, asked the venire members if

they were related in any way to the alleged victims.4                        If not asked the pertinent

question, the potential juror could not have failed to disclose the information. See id. at

364. Therefore, Ray did not demonstrate reasonable grounds to support a new trial

hearing. Moreover, because Ray did not demonstrate reasonable grounds to support a

new trial hearing, he has failed to prove by a preponderance of the evidence that his

defense was prejudiced by counsel’s alleged deficient performance, and he cannot

prevail on his ineffective assistance of counsel claims. We overrule Ray’s first issue in

all five appeals.




3The record is silent as to the reasons for defense counsel’s decision to omit such inquiries. Thus, we
presume that counsel’s decision was reasonably professional and motivated by sound trial strategy. See
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—
Houston [1st Dist.] 1996, no pet.).

4   The State did ask if the venire members knew, were kin to, or were friends of Ray or his family.

Ray v. State                                                                                           Page 7
                           SUFFICIENCY OF THE EVIDENCE

        In his second and third issues in cause numbers 10-10-00285-CR, 10-10-00286-CR,

and 10-10-00287-CR, Ray contends that the evidence is legally and factually insufficient

to support the jury’s implicit rejection of his self-defense claim.

        The Court of Criminal Appeals recently overruled Clewis v. State, 922 S.W.2d 126

(Tex. Crim. App. 1996) and factual-sufficiency review. See Brooks v. State, 323 S.W.3d

893, 895 (Tex. Crim. App. 2010) (plurality op.). The court held that the Jackson v. Virginia

legal-sufficiency standard is the only standard a reviewing court should apply in

determining the sufficiency of the evidence. Id. Ray argues that we should disregard

Brooks because it is a nonbinding plurality opinion that violates the Texas Constitution

and statutory authority.        However, the Court of Criminal Appeals has supported

Brooks’s holding in subsequent majority opinions. See, e.g., Lucio v. State, 351 S.W.3d

878, 895 (Tex. Crim. App. 2011); Griego v. State, 337 S.W.3d 902, 903 (Tex. Crim. App.

2011). And as an intermediate court of appeals, we must adhere to principles of vertical

stare decisis. We therefore decline this opportunity to depart from the dictates of

Brooks, and because we cannot review the evidence for factual sufficiency, we overrule

Ray’s third issue in cause numbers 10-10-00285-CR, 10-10-00286-CR, and 10-10-00287-

CR and will proceed to a sufficiency review for his second issues.

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that

Ray v. State                                                                          Page 8
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio, 351 S.W.3d at 894.

        The Court of Criminal Appeals has also explained that our review of “all of the

evidence” includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

        A defendant has the burden of producing some evidence to support a claim of

self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Smith v. State,

352 S.W.3d 55, 62 (Tex. App.—Fort Worth 2011, no pet.). After the defendant has


Ray v. State                                                                                Page 9
introduced some evidence of a defense, the State bears the burden of persuasion to

disprove it. Zuliani, 97 S.W.3d at 594; Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim.

App. 1991); Smith, 352 S.W.3d at 62. This burden does not require the State to produce

evidence disproving the defense; it requires only that the State prove its case beyond a

reasonable doubt.     Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913; Smith, 352

S.W.3d at 62. To determine the legal sufficiency of the evidence to disprove self-

defense, the appellate court asks whether, after viewing all the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the charged offense beyond a reasonable doubt and also could

have found against the appellant on the self-defense issue beyond a reasonable doubt.

Saxton, 804 S.W.2d at 914; Smith, 352 S.W.3d at 62.

        As limited by the indictments, a person commits the offense of aggravated

assault with a deadly weapon if the person intentionally or knowingly threatens

another with imminent bodily injury and uses or exhibits a deadly weapon during the

commission of the assault. TEX. PEN. CODE ANN. §§ 22.01(a)(2), 22.02(a)(2) (West 2011).

Self-defense is justified when a person “reasonably believes” that “force is immediately

necessary to protect the actor against the other’s use or attempted use of unlawful

force.” TEX. PEN. CODE ANN. § 9.31(a) (West 2011). The use of deadly force is warranted

only where “self-defense is justified under Section 9.31, a reasonable person would not

have retreated, and when deadly force is reasonably necessary to protect against

another’s use or attempted use of deadly force.” Bumguardner v. State, 963 S.W.2d 171,

173 (Tex. App.—Waco 1998, pet ref’d); see Act of May 16, 1995, 74th Leg., R.S., ch. 235, §

Ray v. State                                                                        Page 10
1, 1995 Tex. Gen. Laws 2141, 2141-42 (amended 2007) (current version at TEX. PEN. CODE

ANN. § 9.32(a) (West 2011)).

        On the evening of June 2, 2007, Ray, along with Brent Jackson, Gabriel Jackson,

and at least two others, pulled into the parking lot of a gas station in Groesbeck.

Shenique Amos, who had been behind Ray, drove by the gas station. Her boyfriend

Eric Washington was in the passenger seat of the car, and their six-year-old son was

lying down in the back seat. Once Amos passed the gas station, she “made the block,”

coming back to a stop sign by the station. Amos testified that her son said that he was

hungry so she was going back to the Sonic to get him something to eat. Washington

also initially testified that they were going to get their son something to eat but later

stated that they came back because he was looking for a fistfight with Brent and Gabriel

Jackson, whom he had had an earlier altercation with. As Amos approached the stop

sign, Ray was handed a gun. Ray pointed the gun at Washington, Amos, and their son

and fired three shots. Two bullets hit the car before Amos drove away. Amos called 9-

1-1 and drove toward her mother’s house even though the Groesbeck Police

Department was just two blocks from the gas station. Shortly thereafter, Amos received

a call asking them to come back to the gas station, and they did. Washington testified

that he did not have a gun with him, and no weapon was found in the car.

        Ray claimed in his recorded statement to the police that he was acting in self-

defense because of the feuding in the days leading up to the incident.         The first

altercation happened two or three days before the shooting at the gas station.




Ray v. State                                                                      Page 11
Washington stated that he was visiting his mother-in-law’s house when Ray’s brother

Isaac, who lived close by,

        thought I was trying to sell a -- a lady some weed and -- and after -- and
        he came out of the house and said, “Man, you can’t sell no weed in front
        of my house, and all that. You can’t be in front -- on my street.” And it
        escalated from there and we started talking about each other’s mamas and
        it escalated from there.

Isaac testified that Washington left for about forty-five minutes, and when he came

back, they “had a few more words.” Isaac stated that Washington said he was “going to

put me where my mama at,” and because his mother had died, that meant to him that

Washington was going to bury him. According to several witnesses, Washington then

fired at least one shot toward Isaac and those around him. Verri Pelton, a friend of

Washington’s, testified that Washington shot the gun and then left with Amos while she

drove Washington’s brown Suburban back to her house.

        The evidence is contradictory as to how much of this altercation Ray witnessed.

Ray’s statement indicates that he witnessed most, if not all, of it. Ray said in his

statement that he called 9-1-1 and reported that a shot had been fired and that the

shooter was driving a brown SUV. Officer Mike Ferrell testified that he searched

Washington’s Suburban that night and that he did not find a weapon. Washington

testified that it was a verbal altercation and that he did not own a gun at that time.

Nevertheless, Rachonna Richardson, who works at a gas station in Mexia and knows

Washington from his coming in the store, testified that toward the end of May 2007,

Washington told her he had gotten “in a shoot out with them Ray boys in Groesbeck.”




Ray v. State                                                                         Page 12
        There was also testimony about an incident where Washington allegedly had a

gun at the city park earlier on the day of the shooting at the gas station. Keandra

Waters, who is acquainted with Ray and knows Washington, testified that she was

standing by Ray in the park when Washington drove by them, let the window down

halfway, pointed the gun out the window, and said, “You all don’t want none of this.”

Ashley Tatum, who is acquainted with both Ray and Washington, also stated that she

saw Washington waving a gun as he drove through the park that day. Officer Thomas

Shoemaker responded to the report of Washington brandishing a gun at the city park.

Officer Shoemaker located Washington approximately five to ten minutes after

receiving the call.   Washington admitted being at the park but denied having or

displaying a gun. He said that Ray, Ray’s brother Isaac, and Brent Jackson showed up

at the park and started to harass him, so he left the park. Washington testified that the

police actually searched him and his car and found no weapon. Officer Shoemaker

testified that he did not search Washington but that he only questioned him.

        Finally, Washington testified that earlier on the day of the shooting at the gas

station, he was talking to a friend when Brent and Gabriel Jackson “came out of

nowhere and tried to snatch me . . . out of my car and hit me in my mouth.” He did not

recall whether Ray was there. Ray indicated in his statement that he was there when

his cousin hit Washington. Washington reported the incident to the police. Officer

Ferrell testified that he spoke with Washington after the alleged assault. Washington

told him that he thought either Brent or Gabriel Jackson had hit him. Officer Ferrell




Ray v. State                                                                      Page 13
could tell that Washington had been hit because “his upper lip was kind of pushed out

a little bit.”

        After viewing all the evidence in the light most favorable to the prosecution, we

conclude that any rational trier of fact could have found the essential elements of

aggravated assault with a deadly weapon beyond a reasonable doubt and also could

have found against Ray on the self-defense issue beyond a reasonable doubt.

Ultimately, the jury was the sole judge of the credibility of the witnesses and the weight

to be given their testimony and was free to believe or disbelieve the evidence proffered

by Ray regarding the issue of self-defense. We thus overrule Ray’s second issue in

cause numbers 10-10-00285-CR, 10-10-00286-CR, and 10-10-00287-CR.

                                TRANSFERRED INTENT

        In his fourth issue in cause numbers 10-10-00285-CR and 10-10-00286-CR, Ray

contends that he was egregiously harmed by the trial court’s failure to abstractly define

transferred intent as it applies to self-defense in the jury charge and by its failure to

apply the law of transferred intent as it applies to self-defense to the facts in the case. In

other words, Ray argues that the trial court erred in omitting from the charges that he

should be found not guilty of the aggravated assault of Amos and her son, respectively,

if the jury believed that Ray was acting in necessary self-defense against Washington.

        Because Ray did not object to the charge on this basis, error will not result in

reversal of his conviction in the absence of “egregious harm.” Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). In examining the record for

egregious harm, we consider the entire jury charge, the state of the evidence, the final

Ray v. State                                                                           Page 14
arguments of the parties, and any other relevant information revealed by the record of

the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury

charge error is egregiously harmful if it affects the very basis of the case, deprives the

defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim.

App. 2006).

        In cause number 10-10-00287-CR, Ray was charged with aggravated assault with

a deadly weapon of Washington. The trial court instructed the jury on self-defense in

the charge, and Ray makes no complaint about that charge. The jury found Ray guilty,

implicitly rejecting Ray’s self-defense claim. Thus, even assuming the trial court failed

to properly instruct the jury on transferred intent as it applies to self-defense in cause

numbers 10-10-00285-CR and 10-10-00286-CR, in which Amos and her son are the

alleged victims, Ray could not have been egregiously harmed by the error.

        We overrule Ray’s fourth issue in cause numbers 10-10-00285-CR and 10-10-

00286-CR.

               INEFFECTIVE ASSISTANCE/NECESSITY INSTRUCTION

        In his second issue in cause numbers 10-10-00288-CR and 10-10-00289-CR, Ray

contends that trial counsel was ineffective for failing to request a necessity instruction

be included in the charge.

        As stated above, to prevail on an ineffective assistance of counsel claim, the

appellant must prove by a preponderance of the evidence that (1) counsel’s

performance was deficient, and (2) the defense was prejudiced by counsel’s deficient

Ray v. State                                                                        Page 15
performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104

S.Ct. at 2064; Andrews, 159 S.W.3d at 101. The appellate court looks to the totality of the

representation and the particular circumstances of each case in evaluating the

effectiveness of counsel.    Id.   Our review of counsel’s representation is highly

deferential, and we will find ineffective assistance only if Ray overcomes the strong

presumption that his counsel’s conduct fell within the range of reasonable professional

assistance. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. The right to “reasonably

effective assistance of counsel” does not guarantee errorless counsel or counsel whose

competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex.

Crim. App. 1983). To overcome the presumption of reasonably professional assistance,

any allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813.

When the record is silent regarding the reasons for counsel’s conduct, a finding that

counsel was ineffective would require impermissible speculation by the appellate court.

Gamble, 916 S.W.2d at 93 (citing Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.

1994)).   Therefore, absent specific explanations for counsel’s decisions, a record on

direct appeal will rarely contain sufficient information to evaluate an ineffective

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

warrant reversal without affording counsel an opportunity to explain his actions, “the

challenged conduct must be ‘so outrageous that no competent attorney would have

engaged in it.’” Roberts v. State, 220 S.W.3d 521, 533 (Tex. Crim. App. 2007).



Ray v. State                                                                        Page 16
        Here, the record is silent as to defense counsel’s reasons for not requesting a

necessity instruction be included in the charge. To conclude then that trial counsel was

ineffective based on the asserted ground would call for speculation, which we will not

do. See Jackson, 877 S.W.2d at 771; Gamble, 916 S.W.2d at 93. Thus, we must conclude

that Ray has not overcome the presumption that counsel’s decision was reasonably

professional and motivated by sound trial strategy. See Salinas, 163 S.W.3d at 740;

Gamble, 916 S.W.2d at 93.

        Ray argues that Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992), requires

that we determine that his counsel provided ineffective assistance. In Vasquez, the

Court of Criminal Appeals concluded that the failure to request an instruction on

necessity constituted ineffective assistance of counsel. Id. at 951. However, Vasquez is

distinguishable from the current cases. First, Vasquez involved one offense, possession

of a firearm by a felon, and necessity was the only defense available to the appellant. Id.

Here, defense counsel was dealing with five separate offenses that had been

consolidated into one trial. Furthermore, the record in this case is silent as to defense

counsel’s reasons for her actions and decisions while the record in Vasquez revealed that

trial counsel failed to conduct any independent investigation into the facts; counsel had

not fully researched the law regarding the offense, as evidenced by his total lack of

awareness about which defenses, if any, were available to his client, and that he advised

the trial court that his presentation of a defense came from appellant’s research in

Corpus Juris; and counsel, after trying unsuccessfully several times to present evidence

regarding appellant’s alleged kidnapping, failed to re-urge such evidence after the

Ray v. State                                                                        Page 17
State’s attorney had “opened the door” to such evidence in cross-examination. Id. at 951

n.4.

        We overrule Ray’s second issue in cause numbers 10-10-00288-CR and 10-10-

00289-CR.

                                      CONCLUSION

        Having overruled all of Ray’s issues in all five appeals, we affirm the trial court’s

judgment in each appeal.



                                                  REX D. DAVIS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed January 25, 2012
Do not publish
[CRPM]




Ray v. State                                                                          Page 18
