Opinion filed September 10, 2009

In The

Eleventh Court of Appeals

__________

No. 11-08-00121-CR

__________

KEITH BERNARD VANDERBILT, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 104th District Court

Taylor County, Texas

Trial Court Cause No. 16232B

M E M O R A N D U M O P I N I O N

The jury convicted Keith Bernard Vanderbilt of the first degree felony offense of sexual

assault and the second degree felony offense of attempted sexual assault. The trial court found an

enhancement allegation charging appellant as a repeat offender on each charge to be true and

assessed his punishment for the sexual assault conviction at confinement for life and for the

attempted sexual assault at twenty years confinement. The trial court ordered that the sentences run

concurrently. In his sole appellate issue, appellant contends that he received ineffective assistance

of counsel at trial because his counsel denied him the right to testify on his own behalf. We affirm.
Strickland v. Washington, 466 U.S. 668 (1984). 

1

2

A criminal defendant has a constitutional right to testify on his own behalf. Smith v. State,

286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009) (citing Rock v. Arkansas, 483 U.S. 44, 51-52

(1987)). This right can be knowingly and voluntarily waived only by the defendant, not by his

counsel. Id. (citing Emery v. Johnson, 139 F.3d 191, 198 (5th Cir. 1997)). The trial court has no

duty to inform a defendant represented by counsel of his right to testify. Johnson v. State, 169

S.W.3d 223, 235 (Tex. Crim. App. 2005). Rather, “defense counsel shoulders the primary

responsibility to inform the defendant of his right to testify, including the fact that the ultimate

decision belongs to the defendant.” Id. Because imparting that information is defense counsel’s

responsibility, a claim by a defendant that he was denied his right to testify is properly addressed

under the Strickland framework for ineffective-assistance-of-counsel claims. Smith, 286 S.W.3d 1

at 341-42; Johnson, 169 S.W.3d at 235, 239. 

To establish ineffective assistance of counsel, appellant must show that his counsel’s

representation fell below the standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have been different.

Strickland, 466 U.S. at 690, 694; 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). 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. 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 v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App.

1999). In the majority of cases, the record on direct appeal is undeveloped and cannot adequately

reflect the motives behind trial counsel’s actions. 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.

Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 814.

In this cause, the record is silent as to whether appellant’s trial counsel informed appellant

that he had the right to testify and that the ultimate decision as to whether to testify belonged to

appellant. After the punishment phase evidence was concluded, the trial court asked appellant if

there was anything that he wanted to say before sentence was pronounced. Appellant addressed the
3

trial court. In his brief, appellant relies on the following statements that he made to the trial court

about his trial counsel:

He told me I couldn’t speak in court. I wrote him a note and slid it to him.

He looked, and the officer that brought me to the court looked. . . . He takes me in

there and tells me not – don’t even want me to say nothing. You know, he just wants

me to stand here quiet just like I done the whole trial. I never said I didn’t want to

testify. That was him. He didn’t want me to open my mouth at all to hear no side of

what I had to say. I just don’t see how that’s fair.

These statements do not support appellant’s contention that he received ineffective assistance of

counsel. First, the statements do not indicate that appellant’s counsel failed to advise him of his right

to testify, that appellant ever told his trial counsel that he wanted to testify, or that his trial counsel

somehow prevented him from testifying. Second, the statements were not evidence. Appellant did

not make the statements under oath. He made them while addressing the trial court at the

punishment hearing. 

Appellant did not raise hisineffective-assistance-of-counsel claim in a motion for new trial;

therefore, he did not present any evidence to the trial court in support of his claim. Because the

record contains no evidence to support appellant’s claim, we cannot conclude that appellant’s trial

counsel’s performance was deficient. See Salinas, 163 S.W.3d at 741 (“[A]ppellant’s assertions in

his brief on appeal, in the absence of anything in the trial record, are insufficient to show that he

asserted his right to testify and his attorney failed to protect it.”). Appellant has not met the

standards set out in Strickland. Therefore, we overrule appellant’s sole issue. 

We affirm the judgment of the trial court.

TERRY McCALL

JUSTICE 

September 10, 2009

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J., 

McCall, J., and Strange, J.