                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00059-CR


LARRY KEVIN BONNER                                                   APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                    ------------

          FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION1

                                    ------------

                                 I. INTRODUCTION

      Appellant Larry Kevin Bonner appeals his conviction for three counts of

aggravated robbery with a firearm. In three issues, Bonner contends that the trial

court abused its discretion by not allowing him to question a State‘s witness

regarding the witness‘s prior conviction for possession of marijuana and deferred

adjudication regarding the delivery of a controlled substance; that the trial court

      1
       See Tex. R. App. P. 47.4.
erred by not granting a mistrial at the punishment phase after the trial court

sustained his objection to one of the prosecutor‘s closing remarks; and that he

received ineffective assistance at trial. We will affirm.

                                  II. BACKGROUND

      Tamika Jones and her husband were loading their car for a trip on the

morning of April 18, 2008. Jones observed a silver Monte Carlo quickly pull into

her neighbor‘s driveway across the street—Curtis Bailey‘s driveway. Three men

dressed in black with bandana-covered faces jumped out of the car, went to the

door of Bailey‘s home, banged on the door, and yelled that they were the police.

Frightened, Jones told her husband to close the garage door. She then went

upstairs and watched Bailey‘s home from an upstairs window as she called 911.

Jones observed the three men kick in the door. Next, Jones heard five or six

gunshots. She then saw the three men run outside, get back in the car, and

drive away. Jones recalled that Bailey, ―came out of his house, and he was all

bloody and he had been shot.‖

      Bailey testified that he was home sleeping that morning. Bailey‘s girlfriend,

Angel Chapman, was with him in the bedroom, and Bailey‘s cousin—Kevin

Johnson—and Johnson‘s son were in the front of the house. Bailey said that he

heard banging on the front door and yells of ―task force.‖ Next, Bailey heard

Johnson say, ―Let my son go.‖ Bailey also heard an unknown person demand,

―Where is the money?‖ Bailey said that at that time he knew the intruders were

not the police: ―[W]hen I heard them say where is the money, I knew it wasn‘t the


                                          2
police.‖ Bailey next heard Johnson yell, ―My mom and dad [are] in their room.

Please don‘t kill them. There‘s some money on top of the dresser.‖

         Bailey said that he knew this was Johnson‘s cryptic way of warning him.

Bailey recalled that he told Chapman ―to go to the restroom and call 911‖ and

then someone ―knocked on the door, was trying to come through the door, and I

started shooting rapidly.‖ The intruders shot back, and Bailey was shot.

         Bailey said, ―It just got quiet all of a sudden.‖ At that point, Bailey left his

bedroom and looked for Johnson and Johnson‘s son, but they were no longer in

the house. Bailey continued his search outside when Jones and her husband

came over to help him. Emergency personnel took Bailey to the hospital. Bailey

admitted that he initially lied to police about owning and firing his gun and,

because he feared Johnson had a warrant out for his arrest, he told police that

Johnson‘s name was Clarence.            Bailey said he never saw the perpetrators‘

faces.

         The prosecutor asked Bailey if he ran a snow cone stand. Bailey said that

he ran a snow cone stand and did lawn work. Bailey testified that he did not

know why the perpetrators chose his house. On cross-examination, defense

counsel asked whether Bailey had ever had any other occupations besides

running the snow cone stand and his lawn business.               Bailey answered no.

Defense counsel then asked to approach the bench. The trial court then asked

the jury to step out of the courtroom.




                                             3
      Defense counsel stated that he wanted to impeach Bailey‘s testimony.

Defense counsel‘s argument was that he should be allowed to introduce

evidence admitted in a prior case where Bailey received deferred adjudication in

a delivery of a controlled substance charge.       Specifically, defense counsel

contended that Bailey‘s prior admission for delivering a controlled substance was

an inconsistent statement with his testimony that he had never held any other

occupations besides the two testified to. The trial court sustained the State‘s

objection.

      Defense counsel then took Bailey on voir dire, where Bailey confirmed that

he did judicially admit to delivery of a controlled substance in 1997. Defense

counsel then asked the court for a ruling regarding his desire to address, in front

of the jury, an outstanding warrant that Bailey had at the time of trial.      The

warrant was in relation to an unpaid fine regarding a prior conviction Bailey had

for possession of marijuana. The trial court ruled that defense counsel could not

introduce evidence of the marijuana conviction or the warrant because the

conviction was indeed a past final conviction that is neither a felony nor a crime

of moral turpitude.

      Chapman testified that she and Bailey were in the bedroom that morning

when she heard a loud noise. She said that she heard men yelling ―police‖ but

warned Bailey that she did not believe it was the police and advised Bailey to get

his gun. She went into the bathroom to call the police, and then she heard




                                        4
gunshots. Bailey came into the bathroom, saying that he had been shot, and

Chapman noticed a hole in his shirt and blood.

      Johnson testified that he and his son had spent the prior evening at

Bailey‘s house. The next morning, Johnson heard banging on the front door and

saw three guys burst into the house, yelling that they were part of a task force

and ordering everyone to the ground. Johnson‘s three-year-old son was sitting at

the table eating cereal. Johnson initially thought that the men were coming to

arrest him, but then Johnson noticed that the men were not police because of

their attire. At that time, one of the men, who was unmasked, pointed a gun at

Johnson and demanded to know where the money was. Johnson replied he

didn‘t have any money. While pointing the gun toward the three-year-old‘s head,

the gunman, whom Johnson later identified as Bonner, told Johnson that if he did

not tell him where the money was, he was going to ―blow‖ the ―noodles and

cereal out of‖ the child‘s head.

      Johnson explained that in order to free his son from Bonner‘s grasp, he

told Bonner that his ―mom and daddy‖ had money with them in the bedroom. As

one of the other intruders went down the hall to the bedroom, Johnson heard

gunshots. Johnson grabbed his son and ran out the back door. Once the police

arrived, Johnson returned to Bailey‘s home. But, because he had a warrant out

for his arrest, Johnson told the police his name was ―Clarence.‖ Once the police

determined who he was, they arrested him.




                                       5
      Ryan Aust, a paramedic at Harris Southwest Hospital, testified that he was

working that morning when Bonner told him that his friend had been shot and

needed his help. Aust took a wheelchair to an injured man in the passenger seat

of Bonner‘s car. The man was bloodied, unconscious, and barely breathing. The

man, later identified as Edward Robinson, died a short time later. Dr. Gary L.

Sisler, who performed the autopsy on Robinson, said that Robinson had been

shot in the right side of his chest and that his death was a homicide.

      Officer Timothy Hennessy, a patrol officer for North Richland Hills, said

that he was at the hospital with his wife when he saw Bonner get out of a silver

Monte Carlo and call out for help. Hennessy saw an unconscious man in the

right front passenger seat, and Hennessy questioned Bonner about what had

transpired. According to Hennessy, Bonner told him that the injured passenger

had been shot at a park. Hennessy asked Bonner whose car it was, and Bonner

responded that he did not know who owned the car, which Hennessy noticed had

a buyer‘s tag on it. Hennessy patted Bonner down and took the car keys from

him. Hennessy instructed Bonner to sit on the curb, but Bonner jumped up and

started to run away.      Hennessy pursued him, eventually restraining him until

other officers arrived.

      Fort Worth police officer Robert Hill said that he impounded the Monte

Carlo. Hill and another officer found a spent bullet outside the entrance to the

ER. The bullet matched Bailey‘s gun. Police also found blood in the Monte

Carlo and Bonner‘s wallet. Detective Brent Johnson of the Fort Worth homicide


                                         6
unit testified that he interviewed Bonner on the day of the shooting. Bonner told

Johnson that Robinson had been shot in a park while the two of them were

talking to some girls.   Johnson also testified that he investigated Bonner for

felony murder because of the manner and circumstances surrounding

Robinson‘s death.

      The jury returned a verdict of guilty, and the trial proceeded to the

punishment phase.     During closing arguments at the punishment phase, the

following exchange occurred:

      [Prosecutor]: Whatever [Bonner] was learning [where he grew up] just
      made his offense become more and more severe, and lastly, as violent as
      it can get, one step away from murder. And we heard the definition of
      murder was met in this case. Because in a violent crime, a commission of
      that intent with that gun in his hand, Edward Robinson was killed. So it
      was murder.

      [Defense Counsel]: Your Honor, object to that. The DA's office specifically
      declined to prosecute him for murder.

      [Trial Court]: Sustained.

      [Defense Counsel]: We ask that the jury be instructed to disregard.

      [Trial Court]: Disregard.

      [Defense Counsel]: And we respectfully ask for a mistrial.

      [Trial Court]: Denied.

      After both parties closed, the jury found true a repeat offender paragraph

and assessed punishment at thirty-three years‘ confinement on each count. The

trial court entered judgment accordingly with Bonner‘s sentences to run

concurrently, and this appeal followed.


                                          7
                                  III. DISCUSSION

      A.    The Trial Court’s Disallowing Testimony Regarding Bailey’s
            Prior Conviction and Deferred Adjudication

      In part of his first issue, Bonner contends that the trial court erred by not

allowing him to question Bailey about a 1997 charge for delivery of a controlled

substance. Specifically, Bonner contends that Bailey was inconsistent about how

he earned money. The gist of Bonner‘s issue is that when Bailey testified that he

earned a living by running a landscaping business and a snow cone stand only, it

was inconsistent with Bailey having previously judicially admitting to delivery of a

controlled substance in exchange for deferred adjudication. And, according to

Bonner, delivery of a controlled substance necessarily implies that Bailey earned

money selling illegal drugs. Thus, Bonner contends that the trial court abused its

discretion by not allowing him to introduce evidence from the 1997 case—his

judicial admission—as an inconsistent statement.

      As a general rule, a party may impeach a witness with evidence of a prior

inconsistent statement if the party first presents the witness with the existence of

the statement, the details and circumstances surrounding the statement, and an

opportunity to explain or deny the statement. Tex. R. Evid. 613(a). Moreover, to

be admissible as an inconsistent statement, the prior statement must actually be

inconsistent with the one given at trial. Lopez v. State, 86 S.W.3d 228, 230 (Tex.

Crim. App. 2002).      The trial court makes the determination whether the

statements are indeed inconsistent. See id.; see also United States v. Hale, 422



                                         8
U.S. 171, 176, 95 S. Ct. 2133, 2140 (1975) (―As a preliminary matter, however,

the court must be persuaded that the statements are indeed inconsistent.‖). We

review the trial court‘s exclusion of testimony under an abuse of discretion

standard.   Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App.), cert.

denied, 534 U.S. 855 (2001). As long as the trial court‘s ruling is within the zone

of reasonable disagreement, we will not intercede. Id.

      Here, Bonner took Bailey on voir dire outside the jury‘s presence and

Bailey acknowledged that he had in fact previously pleaded guilty to delivery of a

controlled substance.    But the trial court was not persuaded by counsel‘s

argument that Bailey‘s prior judicial admission that he had delivered a controlled

substance was inconsistent with his testimony at trial that he had only held the

occupations of landscaper and snow-cone-stand operator.            See Lopez, 86

S.W.3d at 230 (reasoning that trial court stands in position to determine whether

a prior statement is inconsistent). Indeed, during voir dire, Bonner did not inquire

of Bailey any information regarding whether he had ever made money delivering

a controlled substance, whether he considered it an occupation, or the

circumstances surrounding the previous charge. Furthermore, it certainly falls

within the zone of reasonable disagreement whether having delivered a

controlled substance is an ―occupation‖ creating an inconsistency with Bailey‘s

testimony that he had only ever held the two occupations he testified to. We hold

that the trial court did not abuse its discretion by determining that the 1997




                                         9
judicial admission was not inconsistent and excluding it, and we overrule this

portion of Bonner‘s first issue. See id.

      In part of his first issue, Bonner argues that the trial court erred by not

allowing him to impeach Bailey through introduction of evidence regarding the

prior delivery offense ―because it showed that Bailey was given deferred

adjudication and may be testifying favorable for the State because he was

treated favorably at the prior setting.‖ Citing Maxwell v. State, Bonner contends

that an appellant ―must be allowed to question a witness regarding any possible

favoritism based on the granting of a deferred adjudication.‖ 48 S.W.3d 196, 200

(Tex. Crim. App. 2001), overruled to the extent it conflicts with Carpenter v.

State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998), by Irby v. State, 327 S.W.3d

138 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 904 (2011).

      Impeachment based on proof of circumstances showing bias is permitted

unless the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice. See Tex. R. Evid. 403, 613; see also Davis v. Alaska,

415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974) (reasoning that right to confront

witnesses includes right to cross-examine witnesses concerning their possible

bias, self-interest, or motives in testifying); Hammer v. State, 296 S.W.3d 555,

561 (Tex. Crim. App. 2009). But the proponent of the impeachment evidence

must establish some causal connection or logical relationship between the

pending charges and the witness‘s vulnerable relationship or potential bias or

prejudice for the State, or testimony at trial. Carpenter, 979 S.W.2d at 634.


                                           10
         There are a number of flaws in Bonner‘s argument. First, the court of

criminal appeals has overruled Maxwell to the extent that it stands for the

proposition that a proponent of impeachment may impeach any witness serving

deferred adjudication even when there is no evidence of potential bias or

prejudice for the State. Irby, 327 S.W.3d at 152. Second, impeachment of a

witness serving deferred adjudication based on potential favoritism toward the

State contemplates that the witness is currently on deferred adjudication. See id.

at 148–51 (citing Carpenter and stating that the proponent must establish some

causal connection or logical relationship between the pending charges). In this

case, Bailey‘s admission regarding delivery of a controlled substance stemmed

from charges in 1997, and at the time of Bonner‘s trial, Bailey had already served

his deferred adjudication and the case had been dismissed. Finally, even under

Irby, Bonner, as the proponent of the impeachment evidence, failed to establish

any causal connection or logical relationship between the 1997 charge and

Bailey‘s testimony at trial.    See id. at 148 (―There must be some logical

connection between that ‗vulnerable relationship‘ and the witness‘s potential

motive for testifying as he does.‖). We overrule this portion of Bonner‘s first

issue.

         In the remainder of his first issue, Bonner contends that the trial court

abused its discretion by not allowing him to elicit testimony from Bailey regarding

an outstanding warrant in relation to unpaid fines regarding a prior conviction for

possession of marijuana.       Bonner contends that the warrant is a ―pending


                                         11
criminal case‖ against Bailey, and that thus he automatically should have been

allowed to question Bailey ―regarding any benefit received by Bailey regarding

that warrant in exchange for his testimony.‖

      Bonner relies on the court of criminal appeals‘s decision in Miller v. State

for the proposition that when a witness for the State has pending criminal

charges or is awaiting sentencing, evidence of this fact is always admissible to

show a possible motive for testifying on behalf of the State. 741 S.W.2d 382,

389 (Tex. Crim. App. 1987), cert. denied, 486 U.S. 1061 (1988). The policy

behind the rule in Miller is ―possible motives for fabrication due to charges

pending against the State‘s witnesses.‖ Simmons v. State, 548 S.W.2d 386, 391

(Tex. Crim. App. 1977). But Bonner‘s reliance on Miller is misplaced. Despite

Bonner‘s characterization to the contrary, the capias pro fine warrant issued

against Bailey that was outstanding at the time of Bonner‘s trial is not a ―pending

criminal charge.‖ As the trial court noted, the warrant was issued in response to

Bailey‘s alleged failure to pay a fine in relation to a prior conviction for marijuana

that had already been ―disposed‖ at the time of trial. See Tex. Code Crim. Proc.

Ann. art. 43.015 (West 2010) (stating that a capias pro fine is a writ ―issued by a

court having jurisdiction of a case after judgment and sentence‖) (emphasis

added). The trial court further informed Bonner at trial that as a past conviction

for possession of marijuana, Bailey‘s conviction was not admissible for

impeachment purposes because it was neither a felony nor a crime involving

moral turpitude. See Tex. R. Evid. 608(b), 609(a); see also Bell v. State, 620


                                         12
S.W.2d 116, 121 (Tex. Crim. App. [Panel Op.] 1980) (reasoning that

misdemeanor marijuana possession does not involve moral turpitude).           We

conclude that the trial court did not abuse its discretion by excluding testimony

regarding Bailey‘s outstanding warrant. We overrule the remainder of Bonner‘s

first issue.

       B.      Trial Court’s Denial of Bonner’s Motion for Mistrial

       In his second issue, Bonner contends that the trial court abused its

discretion when it denied his request for a new trial. At the punishment phase

closing arguments, the prosecutor argued, ―And we heard the definition of

murder was met in this case. Because in a violent crime, a commission of that

intent with that gun in his hand, [Robinson] was killed.       So it was murder.‖

Defense counsel objected. The trial court sustained the objection.       Defense

counsel then asked for an instruction to the jury to disregard the prosecutor‘s

statement. The trial court instructed the jury to disregard the statement. Defense

counsel then moved for a mistrial, which the trial court denied.

       According to Bonner, the prosecutor‘s statement was so egregious that

Bonner is entitled to a new trial on punishment.       The State counters that it

introduced evidence of the extraneous offense of felony murder at the

punishment phase and showed beyond a reasonable doubt that Bonner

committed felony murder. Thus, the State argues that the statement was not

improper at all but reflective of a proven extraneous offense. See Tex. Code

Crim. Proc. Ann. art. 37.07 § 3(a)(1) (West Supp. 2010). We will assume without


                                        13
deciding that the prosecutor‘s argument was improper. We conclude, however,

that the trial court cured any potential error and did not otherwise abuse its

discretion by denying Bonner‘s motion for mistrial.

      Because the trial court sustained Bonner‘s objection and instructed the jury

to disregard the argument, ―[t]he only adverse ruling—and thus the only occasion

for making a mistake—was the trial court‘s denial of the motion for mistrial.‖

Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004). We review the

trial court‘s denial of a motion for mistrial under an abuse of discretion standard.

Russeau v. State, 171 S.W.3d 871, 885 (Tex. Crim. App. 2005), cert. denied, 548

U.S. 926 (2006); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999), cert.

denied, 529 U.S. 1070 (2000). The determination of whether a given error

necessitates a mistrial must be made by examining the particular facts of the

case. Ladd, 3 S.W.3d at 567; Hernandez v. State, 805 S.W.2d 409, 414 (Tex.

Crim. App. 1990), cert. denied, 500 U.S. 960 (1991). A motion for mistrial will be

granted only in ―extreme circumstances, where the prejudice is incurable.‖

Hawkins, 135 S.W.3d at 77; see Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.

App. 2000).     Generally, a prompt instruction to disregard an inadmissible

statement will cure error. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App.

2000).

      To evaluate whether the trial court abused its discretion by denying a

mistrial for improper jury argument, the court of criminal appeals, in Hawkins,

adopted the three factors from Mosley v. State, which balance: (1) the severity of


                                        14
the misconduct (the magnitude of the prejudicial effect of the prosecutor‘s

remarks), (2) the measures adopted to cure the misconduct (the efficacy of any

cautionary instruction by the judge), and (3) the certainty of conviction absent the

misconduct (the strength of the evidence supporting the conviction). Hawkins,

135 S.W.3d at 77 (citing Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998)).

      Further, we are to presume the jury will follow the court‘s instructions.

Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). In considering

whether an instruction is sufficient to cure error, courts consider whether the

reference was direct or implied, intentional or inadvertent, detailed or vague, and

whether the topic was pursued once the instruction was given. Kipp v. State, 876

S.W.2d 330, 339 (Tex. Crim. App. 1994); Waldo v. State, 746 S.W.2d 750, 752

(Tex. Crim. App. 1988).

      In this case, concerning the first Mosley factor, because the alleged

improper argument was embedded within other remarks that invited the jury to

draw a legitimate inference from evidence presented at the witness stand, the

magnitude of the argument was severely diminished.          We conclude that the

extent of potential prejudice was not so great here as necessarily to render a firm

and timely curative instruction inefficacious. To that end, and concerning the

second Mosley factor, the trial court promptly instructed the jury to disregard the

complained-of statement, and we presume that the jury followed that instruction.

See Colburn, 966 S.W.2d at 520.


                                        15
       Furthermore, after the trial court instructed the jury to disregard the

statement, the State did not refer to it again, did not attempt to highlight it, and

did not make any use of it at all. Additionally, in the trial court‘s charge to the jury

on punishment, the jury was instructed that ―You are charged that it is only from

the witness stand that the jury is permitted to receive evidence regarding the

case.‖ We presume the jury followed this instruction as well. See generally

Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003) (citing Colburn,

966 S.W.2d at 520). Nothing in the record suggests the jury disregarded either

of the trial court‘s instructions.

       Lastly, under Mosley, because this argument occurred at punishment, we

analyze the third factor with regard to the certainty of the punishment assessed.

See Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (analyzing

Mosley factors at punishment phase). The evidence against Bonner in this case

is substantial both regarding the instant offense and Bonner‘s previous criminal

history.   Multiple eyewitnesses testified to Bonner‘s involvement in the home

invasion. One witness identified Bonner as the assailant who put a gun to a

three-year-old‘s head, threatening to blow the cereal out of the child‘s mouth.

Hennessy, the officer at the hospital where Bonner managed to drop off his

fatally-wounded accomplice, testified that Bonner fled after being patted down at

the hospital. Investigators also matched a bullet found near Bonner‘s vehicle at

the hospital to Bailey‘s gun.        In addition, they tied his deceased accomplice,

whom Bonner did drop off at the hospital, to the home invasion.


                                            16
      The State introduced evidence of Bonner‘s multiple prior convictions for

delivery of a controlled substance, assault with bodily injury to a family member,

fleeing a police officer, evading arrest, and failure to identify himself as a fugitive.

Moreover, the jury assessed punishment at thirty-three years‘ confinement on a

first degree felony, which carried with it a potential maximum of life in prison.

See Tex. Penal Code Ann. §§ 12.32(a) (stating that the punishment range for

first-degree felonies is ―for life or for any term of not more than 99 years or less

than 5 years‖), 29.03(b) (providing that, upon conviction for the offense of

aggravated robbery, a defendant is subject to the punishment range

corresponding to first-degree felonies) (West 2011).

      In our view, due to the strength of the State‘s punishment case, it is likely

that the same punishment would have been assessed regardless of the

prosecutor‘s alleged improper comment during closing argument of the

punishment phase. Thus, we overrule Bonner‘s third issue.

      C.      Effective Assistance of Counsel

      In his third issue, Bonner contends that he received ineffective assistance

of counsel at trial.    Specifically, Bonner contends that his counsel failed to

adequately prepare for trial by failing to ―investigat[e] and locat[e]‖ witnesses on

his behalf.

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel‘s representation fell below the

standard of prevailing professional norms and that there is a reasonable


                                          17
probability that, but for counsel‘s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel‘s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel‘s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel‘s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.

      A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

740; Thompson, 9 S.W.3d at 813–14. ―In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel‘s actions.‖ Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

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

record must affirmatively demonstrate the alleged ineffectiveness.‖ Id. (quoting


                                       18
Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel‘s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, but for counsel‘s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      This case demonstrates the ―inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.‖ Patterson v. State, 46 S.W.3d

294, 306 (Tex. App.—Fort Worth 2001, no pet.). Bonner did not file a motion for

new trial to afford the trial court a chance to hold a hearing and inquire into the

reasons for trial counsel‘s alleged acts or omissions, or the extent to which

counsel investigated Bonner‘s case, or the efforts he engaged in to locate

witnesses to testify on Bonner‘s behalf. Given the record before us, there is

nothing to rebut the presumption of reasonably effective assistance of counsel,

and we will not speculate to the contrary. See Jackson v. State, 877 S.W.2d




                                         19
768, 771 (Tex. Crim. App. 1994). Because Bonner has failed to meet the first

prong of Strickland, we overrule his third issue.

                                  IV. CONCLUSION

      Having overruled all three of Bonner‘s issues, we affirm the trial court‘s

judgments.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 25, 2011




                                         20
