Rivis Byrd v. State

Affirmed and Memorandum Opinion filed December 3, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00374-CR ____________ RIVIS BYRD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 339th District Court Harris County, Texas Trial Court Cause No. 1070798 M E M O R A N D U M  O P I N I O N A jury convicted appellant Rivis Byrd of aggravated sexual assault, and the trial court assessed punishment at 30 years= confinement. In six issues, appellant challenges (1) the legal and factual sufficiency of the evidence, (2) the pretrial and in-court identifications, and (3) the trial court=s denial of his motion for new trial based on allegations of ineffective assistance of counsel at the guilt/innocence and punishment phases. We affirm. I. Factual Background In the early morning hours of April 23, 2006, as the complainant was getting in her vehicle at her apartment complex, she saw a gun at her window. Two men were standing beside her car. The man with the gun asked for her purse and threw it to the other man. At trial, the complainant identified appellant as the man with the gun. The complainant testified that appellant ordered her out of the vehicle and pushed her to the wall. She stated that appellant told her to take off her shirt or he would shoot her. According to her testimony, appellant then forced her down and demanded oral sex. After a minute or less, appellant asked her where she lived. With the gun at the back of her head, she walked to her apartment and into her bedroom. The complainant testified that her bedroom light was on. According to the complainant=s testimony, appellant told her to take off her pants, pushed her to the bed, took off his pants, and put his penis in her vagina. She stated that the gun was pointed at her head during this time. She testified that when she tried to move, appellant told her he was going to shoot. She stated that the other male was knocking on the door, asking for the gun. The complainant=s mother testified to hearing a man=s voice inside the apartment. When the complainant=s mother opened her bedroom door, she saw a man standing in the house and heard another man=s voice inside her daughter=s room. She knocked on her daughter=s bedroom door, and the man came out and ran. The complainant called the police. Her purse was still at her home, but money was taken from it. Officer Fabian Lee was dispatched to the scene at 6:19 a.m. He testified that the complainant initially Awas an emotional wreck.@ The complainant told Officer Lee that her assailant was Aapproximately between the ages of 18 and 21, maybe 5 feet, 9 inches to 5 feet, 11 inches in height, and approximately maybe 150 to 160 pounds.@ She described him as a black male with a dark complexion and no facial hair. On April 26, 2006, Officer Scott Girard detained appellant two blocks from where the assault took place and removed a BB gun from appellant=s waist. At trial, the complainant identified the gun as the same or similar to the one used in the assault. Officer David Garcia assembled a lineup on April 27, 2006. He testified that the lineup was not based on the complainant=s description. Three weeks after the assault, the complainant viewed a videotape of the lineup. The lineup consisted of five African-American males in civilian clothing. Officer Pedro Moreno, who showed the complainant the videotape, testified that the complainant selected appellant from the lineup without hesitation. At trial, the complainant testified she had no doubt that appellant was her assailant when she looked at the video lineup. After viewing the lineup, the complainant wrote a sworn statement describing the person who assaulted her. Appellant=s mother testified at trial on appellant=s behalf. She stated that she and appellant fell asleep in the living room around 3 a.m. on April 23, 2006. She stated that she woke up at 5 a.m. to begin her morning routine and saw appellant asleep on the living-room floor. She testified that she took her dog for a 15-20 minute walk around 5:45 a.m. When she returned from walking the dog, appellant was still asleep. She testified that she watched television in the same room where appellant was sleeping until 7 a.m. She went to the kitchen, got some things out for dinner that night, and then went back to bed. Appellant=s mother stated that she and appellant left the house around 4 or 5 p.m. to go to a park. Appellant was convicted by a jury of aggravated sexual assault. At the beginning of the punishment phase, appellant pleaded guilty to an unrelated robbery that occurred on April 26, 2006, and the trial court sentenced him to two years= imprisonment pursuant to a plea agreement. After testimony from the victim of the robbery, the complainant in the sexual-assault case, and appellant=s relatives, the trial court sentenced appellant to thirty years= imprisonment for the aggravated sexual assault. Appellant filed a motion for new trial alleging he received ineffective assistance of counsel. After a hearing, the trial court denied the motion. II. Analysis A. Pretrial and In-Court Identification In his third issue, appellant argues that the trial court erred by admitting the complainant=s in-court identification because the in-court identification was tainted by an impermissibly suggestive pretrial lineup. In reviewing the trial court=s decision on the admissibility of identification evidence, we give almost total deference to the trial court=s determination of the facts, especially when the trial court=s findings are based on an evaluation of credibility and demeanor. Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). The same amount of deference is given to mixed questions of law and fact if the resolution of those ultimate questions turns on an examination of credibility and demeanor of the witnesses. Id. However, we review de novo mixed questions of fact and law that do not turn on an evaluation of credibility and demeanor. Id. In this case, the question of whether a pretrial identification procedure was impermissibly suggestive is a mixed question of law and fact that does not turn on an evaluation of credibility and demeanor. See id. at 773. Accordingly, we apply a de novo standard of review. Id. In reviewing the trial court=s ruling, we generally consider only the evidence adduced at the suppression hearing. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007). However, when the parties later relitigate the suppression issue at the trial on the merits, we consider all evidence, from both the pretrial hearing and the trial, in our review of the trial court=s determination. Id. Here, the trial court held a hearing on appellant=s motion to suppress and denied the motion at the conclusion of the hearing. At trial, the parties relitigated the pretrial identification issue. Therefore, we will consider the evidence presented at both the suppression hearing and the trial. An in-court identification is inadmissible if tainted by an impermissibly suggestive pretrial identification. See id. at 771B72. In determining whether the trial court was correct in admitting an in-court identification, we employ a two-step analysis: (1) we first examine whether the out-of-court identification procedure was impermissibly suggestive and (2) if so, we examine the totality of the circumstances to determine whether the impermissibly suggestive procedure gave rise to the substantial likelihood of irreparable misidentification. Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). The defendant has the burden to show by clear and convincing evidence that the pretrial identification procedure was impermissibly suggestive and that the in-court identification is unreliable. Id. at 33B34. Under the first step of the analysis, we evaluate the pretrial lineup itself to determine whether it was impermissibly or unduly suggestive. AA lineup is considered unduly suggestive if other participants are greatly dissimilar in appearance from the suspect.@ Withers v. State, 902 S.W.2d 122, 125 (Tex. App.CHouston [1st Dist.] 1995, pet. ref=d) (citing United States v. Wade, 388 U.S. 218, 232B33, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)). A suspect may be greatly dissimilar in appearance from the other participants because of his distinctly different appearance, race, hair color, height, or age. See id. However, minor discrepancies among line-up participants will not render a line-up impermissibly suggestive. See id. The participants in a line-up do not have to be identical to satisfy the requirements of due process. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985). Appellant contends the video lineup was impermissibly suggestive because (1) appellant was the only dark-complected person in the lineup, (2) one of the lineup participants standing next to appellant was considerably shorter than appellant and wearing a red shirt, and (3) another lineup participant had a heavier build than appellant. During the suppression hearing, Officer Garcia testified that the lineup was composed of five African-American males with the same color hair wearing civilian clothing. When viewing the video recording of the lineup, one can see that one of the lineup participants is much shorter than the other participants and wearing a red shirt and another lineup participant has a heavier build than the others. The participants range in shades of complexion, and appellant is not noticeably darker complected than all of the other participants. Despite any dissimilarities, all are African-American males, in civilian clothes, with similar facial hair and similar facial features, and of similar age. There was nothing about the lineup that singled out appellant or drew particular attention to him. We conclude appellant has not demonstrated by clear and convincing evidence that the lineup was impermissibly suggestive. See Buxton, 699 S.W.2d at 216 (finding lineup not unduly suggestive where there was weight range of forty pounds, height range of five inches, some lineup participants had on bright shirts, and three of six had dark skin tone); Cienfuegos v. State, 113 S.W.3d 481, 491 (Tex. App.CHouston [1st Dist.] 2003, pet. ref=d) (holding lineup was not impermissibly suggestive where participants had similar facial hair, all were Hispanic, wore civilian clothes, were of similar age, height and build, with the exception of one participant who was obviously older and shorter than the others). Furthermore, even if appellant met his burden of showing the video-lineup procedure was impermissibly suggestive, appellant has not met his burden of showing the video-lineup procedure gave rise to a very substantial likelihood of irreparable misidentification. Under the second step, we examine the totality of the circumstances to determine whether the impermissibly suggestive procedure gave rise to the substantial likelihood of irreparable misidentification. Jackson v. State, 657 S.W.2d 123, 127 (Tex. Crim. App. 1983). In assessing reliability under the totality of the circumstances, the following five non-exclusive factors should be weighed against the corrupting effect of any suggestive identification procedure: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness=s degree of attention, (3) the accuracy of the witness=s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199B200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999). Because the five Biggers factors are all issues of historical fact, we must consider them deferentially in a light favorable to the trial court=s ruling. Ibarra, 11 S.W.3d at 195. The factors, viewed in this light, must then be weighed de novo against Athe corrupting effect@ of the suggestive pretrial identification procedure. Id. at 195-96. The complainant testified at the suppression hearing that she had the opportunity to view her assailant inside her bedroom, her bedroom light was on, his face was a couple of inches from hers, and she got a good look at his face. She identified appellant as the person who sexually assaulted her and stated she was basing her in-court identification on who she saw on the date she was assaulted. At trial, the complainant also testified that she got a good look at her assailant=s face outside by her car.[1] She identified appellant as the man with the gun and again as the man she identified in the video lineup. In terms of degree of attention, a witness who is also a victim has a greater degree of attention than a casual bystander. See Cantu v. State, 738 S.W.2d 249, 253 (Tex. Crim. App. 1987). At the suppression hearing, the complainant testified that she gave the responding officer a general description of her assailantCtall, thin, and dark-complected with short black hair and a New Orleans accent. However, according to the responding officer=s testimony at trial, the complainant=s description was much more detailed. She told him her assailant was a dark-complected African-American male between the ages of approximately eighteen and twenty-one, possibly five feet, nine inches to five feet, eleven inches in height, and approximately 150 to 160 pounds with no facial hair. Appellant is a dark-complected African-American male. He was seventeen at the time of the incident and, in viewing the video lineup, he appears to be slightly over six feet tall. The testimony at trial did not indicate exactly how much appellant weighed at the time of the incident. Appellant had facial hair in the video lineup, which was assembled four days after the incident; however, as Officer Lee testified, facial hair can be grown or removed. While the testimony at trial indicates appellant does not have a New Orleans accent, the video lineup gave no indication of accent because the lineup participants were not asked to speak. Finally, appellant contends the complainant did not identify the scars on appellant=s face and arm; however, at trial, appellant=s mother testified that the scars on appellant=s face are small and the burn mark on his arm is visible, but dark. The lineup was not assembled based on the complainant=s description, but was at the request of another police division. The officer who showed the complainant the video lineup testified that the complainant did not hesitate in her identification of appellant. The complainant also testified that when she looked at the video lineup, she had no doubt appellant was the person who sexually assaulted her. Finally, the assault took place on April 23, 2006, the complainant viewed the video lineup and identified appellant on May 15, 2006, and the in-court identification at the suppression hearing occurred on March 10, 2008. We do not find this interval of sufficient duration to automatically assume the complainant=s memory had faded. Delk v. State, 855 S.W.2d 700, 707 (Tex. Crim. App. 1993) (concluding eighteen-month time span between robbery and in-court identification did not undermine reliability because witness remembered details and provided consistent testimony); Brown v. State, 29 S.W.3d 251, 256 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (stating sixty-seven days between burglary and lineup identification not of sufficient duration to automatically assume victim=s memory had faded). Under the totality of the circumstances, we conclude the video-lineup procedure did not give rise to a substantial likelihood of irreparable misidentification. As such, the trial court did not err in admitting the in-court identification. Accordingly, appellant=s third issue is overruled. B. Legal and Factual Sufficiency In issues one and two, appellant contends the evidence is both legally and factually insufficient to support his conviction. 1. Legal sufficiency Appellant contends the evidence is legally insufficient to show appellant committed the offense because (1) there was no fingerprint or DNA evidence, (2) the complainant=s testimony lacked credibility, (3) appellant=s mother testified that appellant was asleep in her apartment when the incident occurred, and (4) an expert witness for the defense testified about a study conducted by the Department of Justice discrediting eyewitness identification. In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the trier of fact, Ais the sole judge of the credibility of the witnesses and of the strength of the evidence.@ Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to believe or disbelieve any portion of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury may also draw reasonable inferences from basic facts to ultimate facts. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). When faced with conflicting evidence, we presume the trier of fact resolved conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). A person commits the offense of aggravated sexual assault if the person Aintentionally or knowingly causes the penetration of the . . . sexual organ of another person by any means, without that person=s consent . . . and if the person by acts or words places the victim in fear that . . . serious bodily injury . . . will be imminently inflicted on any person.@ Tex. Penal Code Ann. ' 22.021(a)(1)(A)(i), (a)(2)(A)(ii) (Vernon Supp. 2008). A conviction under Texas Penal Code section 22.021 is supportable on the uncorroborated testimony of the victim of the sexual offense if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. Tex. Code Crim. Proc. art. 38.07(a) (Vernon 2005). Here, the complainant contacted the police right after the incident took place. The testimony of a victim, standing alone, is sufficient to support a conviction for sexual assault. Cruz v. State, 238 S.W.3d 389, 395 (Tex. App.CHouston [1st Dist.] 2007, pet. ref=d); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). Furthermore, the jury heard the complainant=s testimony and weighed her credibility and any inconsistencies in her testimony. See Fuentes, 991 S.W.2d at 271. The jury also heard the defense witnesses= testimony and weighed their credibility. Id. The jury could have accepted or rejected any or all of the evidence on either side. Sharp, 707 S.W.2d at 614. Viewed in the light most favorable to the verdict, the complainant=s testimony was sufficient to establish the elements of the offense of aggravated sexual assault. Therefore, we overrule appellant=s first issue. 2. Factual sufficiency Appellant contends the evidence is factually insufficient because (1) the video lineup was suggestive as appellant was the only dark-complected person in the lineup, (2) there was no DNA, fingerprint, or medical evidence introduced at trial, and (3) the complainant lacked credibility. In evaluating the factual sufficiency of the evidence, we view all the evidence in a neutral light and will set aside the verdict only if we are able to say, with some objective basis in the record, that the conviction is clearly wrong or manifestly unjust because the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 414B17 (Tex. Crim. App. 2006). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury=s resolution of that conflict. See Watson, 204 S.W.3d at 417. We afford almost complete deference to a jury=s decision that is based upon an evaluation of credibility. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). In our review, we discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). If we determine the evidence is factually insufficient, we must explain in exactly what way we perceive the conflicting evidence to greatly preponderate against conviction. Watson, 204 S.W.3d at 414. First, the video lineup was not impermissibly suggestive, as we have previously discussed. While the participants range in shades of complexion, appellant is not noticeably darker than the other participants. Second, there is no specific legal requirement of physical evidence linking a defendant to an offense. See Lancon, 253 S.W.3d at 706B07 (lack of physical evidence alone was not dispositive in factual-sufficiency review when witness testimony was available for the jury=s consideration). In addition, witnesses testified why there was no DNA or fingerprint evidence. The complainant testified that she did not think appellant ejaculated. Officer Lee testified to the lack of fingerprint evidence. He stated he was looking for possible prints on the vehicle, but because the vehicle was wet, he was not able to obtain a fingerprint. He testified that he did not attempt to take fingerprints from the purse or from inside the house. Third, appellant argues the complainant=s testimony was not credible because (a) she told police her assailant had a New Orleans accent and, after identifying appellant, stated he might have been faking the accent, (b) she did not identify marks on her assailant=s arms or face and appellant has scars, (c) she testified that there was a light on in her room, but did not tell police this fact, (d) she did not provide the responding officer with a description of her assailant=s facial features, and (e) she described her assailant as between the ages of eighteen and twenty-one and appellant was seventeen at the time. These arguments go to the weight and credibility of the complainant=s testimony. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Lancon, 253 S.W.3d at 705, 707. We afford almost complete deference to a jury=s decision that is based upon an evaluation of credibility. Id. at 705. The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony. Id. Here, the complainant positively identified appellant as the perpetrator both in the video lineup and in court and did not waiver in her identification of appellant. She stated that she got a good look at appellant=s face outside her vehicle and inside her bedroom. The complainant testified that she did not tell police about the light being on in her bedroom because she was not asked. She also testified that she was not looking for scars, but she saw the person in front of her during the assault. Although there was no fingerprint, DNA, or other physical evidence linking appellant to the crime, there was other circumstantial evidence. Officer Girard testified that he came into contact with appellant on April 26, 2006, three days after the sexual assault, two blocks from where the assault took place. He removed a BB gun from appellant=s waist. Officer Girard stated that the BB gun looked like a real gun. The complainant identified the gun at trial as the same or similar to the one used during the assault. Appellant also argues the verdict is against the great weight and preponderance of the evidence because his mother testified that appellant spent the night at her apartment and was asleep at the time of the incident, and the defense=s expert witness testified about a research paper that questioned the reliability of eyewitness identification. The jury could have chosen to believe some testimony and disbelieve other testimony. Lancon, 253 S.W.3d at 707. Here, the jury could have believed the complainant=s testimony and not the testimony of appellant=s mother or the defense=s expert witness. Viewing the evidence in a neutral light, and with appropriate deference to the jury=s credibility determinations, we conclude the evidence supporting the verdict is not too weak to support the jury=s finding on guilt beyond a reasonable doubt and the weight of the evidence contrary to the verdict is not so strong that the State could not have met its burden of proof. Therefore, we overrule appellant=s second issue. C. Ineffective Assistance of Counsel In his fourth issue, appellant contends he was denied effective assistance of counsel at the guilt/innocence phase because his trial counsel failed to adequately explain his right to testify. Specifically, appellant argues his attorney did not explain how to avoid evidence of his extraneous offenses in the event he chose to testify. In his fifth issue, appellant contends he was denied effective assistance of counsel at the punishment phase because trial counsel (1) suggested he admit his guilt to receive a lighter sentence and (2) failed to file a sworn application for probation. In his sixth issue, appellant contends the trial court abused its discretion by denying his motion for new trial because he received ineffective assistance of counsel. We review claims of ineffective assistance of counsel under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under Strickland, an appellant must establish that (1) his trial counsel=s representation was deficient and (2) the deficient performance was so serious that it deprived the appellant of a fair trial. Id. at 687. To establish these prongs, the appellant must prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms, and there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. See id. at 690B94. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial. Id. at 694; Ex parte Ellis, 233 S.W.3d 324, 330B31 (Tex. Crim. App. 2007). This test is applied to claims arising under the Texas Constitution as well as those arising under the United States Constitution. Hernandez v. State, 726 S.W.2d 53, 56B57 (Tex. Crim. App. 1986). When, as here, a defendant asserts ineffective assistance of counsel in a motion for new trial, we review the trial court=s denial of the motion for abuse of discretion. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). Therefore, we will reverse only if, viewing the evidence in the light most favorable to the trial court=s ruling, the court=s decision was arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). 1. Guilt/Innocence Phase Appellant claims he was denied effective assistance of counsel at the guilt/innocence phase because trial counsel failed to adequately explain appellant=s right to testify. Specifically, appellant argues if he had known how to avoid opening the door to evidence of his extraneous offenses, he would have testified. The record shows that trial counsel informed appellant of his right to testify, appellant was aware that his extraneous offenses could come into evidence if he chose to testify, and appellant made the decision not to testify. Trial counsel testified at the hearing on the motion for new trial that he felt strategically it was the best move for appellant not to testify, in part, because the extraneous offenses and a prior statement could have come into evidence. While appellant suggests the evidence would have come in had he Aopened the door@ with a statement about pending charges or a prior arrest, it is also possible the evidence could have come in on the issue of identification. Page v. State, 137 S.W.3d 75, 78B79 (Tex. Crim. App. 2004) (stating Texas Rule of Evidence 404(b) permits introduction of extraneous offenses that are relevant to issue of identity). The trial court did not abuse its discretion in finding that appellant did not prove by a preponderance of the evidence that counsel=s representation fell below the objective standard of prevailing professional norms. In addition, appellant did not show there was a reasonable probability that, but for counsel=s alleged deficiency, the result of the proceeding would have been different. 2. Punishment Phase Appellant contends he received ineffective assistance of counsel at the punishment phase of trial because trial counsel (1) suggested that he admit his guilt to receive a lighter sentence and (2) failed to file a sworn application for probation. At the hearing on the motion for new trial, appellant stated that trial counsel discussed with him whether he should testify at the punishment phase[2] and told him if he were to admit guilt, the trial court would give him a lighter sentence. He testified that trial counsel did not file a motion in limine to prevent the State from asking a question for a curative admission. Appellant stated that if he had known he could testify without admitting his guilt, he would have testified. Appellant=s trial counsel stated he had a discussion with appellant about asking the trial court for mercy if appellant admitted his guilt and told appellant that his testifying could have an impact on his appeal. He explained that he discussed with appellant and his mother a strategy of hiring an expert to evaluate appellant and testify to his risk assessment. Appellant and his mother decided against this strategy because they thought it was an admission of guilt, according to trial counsel. Trial counsel testified that he informed appellant of his right to testify at sentencing, and appellant made the decision not to testify. While trial counsel stated that appellant could have gotten the impression that he wanted him to admit guilt because of the strategy he proposed, he also stated that he never told appellant he was going to file a motion to preclude him from testifying. In fact, trial counsel argued at the punishment phase that he did not believe appellant was guilty. Even if appellant met the first prong of the Strickland test, the trial court acted within its discretion in concluding appellant failed to establish a reasonable probability that the outcome would have been different but for trial counsel=s asserted deficiency. Appellant also contends he received ineffective assistance of counsel at the punishment phase of trial because trial counsel failed to file a motion for probation. The parties did not discuss trial counsel=s failure to file a motion for probation at the motion for new trial hearing, nor did the parties address it in their affidavits filed prior to the hearing. Consequently, the record is silent. In the face of a silent record, this court will not speculate about why counsel did not file a motion for probation. Sudds v. State, 140 S.W.3d 813, 820 (Tex. App.CHouston [14th Dist.] 2004, no pet.). In addition, the trial court was statutorily prohibited from considering probation as an appropriate sentence at the punishment phase. Under Texas Code of Criminal Procedure article 42.12(3g), judge-ordered community supervision is unavailable to a defendant adjudged guilty of aggravated sexual assault. Tex. Code Crim. Proc. Ann. art. 42.12(3g)(a)(1)(E) (Vernon 2006 & Supp. 2008). Appellant had been found guilty by the jury of aggravated sexual assault. Therefore, the trial court could not consider community supervision in assessing punishment. Counsel=s performance was not deficient because he failed to request a punishment that the trial court was prohibited from considering. Furthermore, appellant was not prejudiced by counsel=s failure to request this punishment because the trial court was prohibited from considering it. Viewing the evidence in the light most favorable to the trial court=s ruling, we conclude the trial court did not abuse its discretion in declining to find ineffective assistance of counsel and in denying the motion for new trial. Accordingly, we overrule appellant=s fourth, fifth, and sixth issues. III. Conclusion Having overruled appellant=s issues, we affirm the trial court=s judgment. /s/ Leslie B.Yates Justice Panel consists of Justices Yates, Frost, and Brown. Do Not Publish C Tex. R. App. P. 47.2(b). [1] The complainant=s testimony at trial about the length of time she viewed her assailant=s face differed on direct examination and cross-examination. On direct examination, the complainant said she was looking at her assailant=s face for 15-20 minutes; on cross examination, she agreed it could have been more like seven minutes based on her time estimates of the incident. [2] In his affidavit, appellant stated trial counsel never discussed with him his right to testify at sentencing.