In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-18-00092-CR

MATTHEW JAMES AUBIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 123rd District Court

Panola County, Texas

Trial Court No. 2016-C-0109

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Stevens
2

MEMORANDUM OPINION

A Panola County jury convicted Matthew James Aubin of sexual assault of a child, Alice.1 

Following a bench trial on punishment, Aubin was sentenced to twenty years’ imprisonment. On 

appeal, Aubin argues that the trial court erred in overruling his motion for new trial based on 

counsel’s alleged failure to adequately investigate the facts of the case or to present mitigating 

evidence. Aubin also raises new grounds on appeal related to trial counsel’s alleged 

ineffectiveness that were not considered by the trial court. He argues that counsel rendered 

ineffective assistance by introducing unfavorable extraneous-offense evidence, alluding to 

Aubin’s Fifth Amendment right to remain silent, and permitting improper victim-allocution 

evidence at punishment. 

We conclude that the trial court did not abuse its discretion in overruling Aubin’s motion 

for new trial. We also conclude that the silent record does not support Aubin’s new claims of 

ineffective assistance of counsel and that Aubin cannot show prejudice resulting from any alleged 

ineffectiveness. We, therefore, affirm the trial court’s judgment. 

I. General Standards for Ineffective Assistance of Counsel 

All of Aubin’s complaints on appeal are rooted in claims of ineffective assistance of 

counsel. “The applicant has the burden to prove ineffective assistance of counsel by a 

preponderance of the evidence.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011)

(quoting Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). The right to counsel 

does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. 

 1

We use a pseudonym to protect the identity of the child. See TEX. R. APP. P. 9.10. 
3

App. 2006). Thus, to prevail on a claim of ineffective assistance of counsel, the defendant must 

satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687–88 (1984). 

See also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The first prong requires 

a showing that counsel’s performance fell below an objective standard of reasonableness. 

Strickland, 466 U.S. at 688. This requirement can be difficult to meet since there is “a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 689. “If this Court ‘can conceive potential reasonable trial strategies that 

counsel could have been pursuing,’ then we cannot conclude that counsel’s performance was 

deficient.” Turner v. State, 528 S.W.3d 569, 577 (Tex. App.—Texarkana 2016, no pet.) (quoting 

Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005)).

The second Strickland prong, sometimes called “the prejudice prong,” requires a showing 

that, but for counsel’s unprofessional error, there is a reasonable probability that the result of the 

proceeding would have been different. Strickland, 466 U.S. at 694. “A reasonable probability” is 

defined as “a probability sufficient to undermine confidence in the outcome.” Id. Thus, to 

establish prejudice,

an applicant must show “that counsel’s errors were so serious as to deprive 

defendant of a fair trial, a trial whose result was reliable.” [Strickland, 466 U.S.] at 

687 . . . . It is not sufficient for Applicant to show “that the errors had some 

conceivable effect on the outcome of the proceeding.” Id. at 693 . . . . Rather, [he]

must show that “there is a reasonable probability that, absent the errors, the 

factfinder would have had a reasonable doubt respecting guilt.” Id. at 695 . . . .

Martinez, 330 S.W.3d at 901. 

A failure to make a showing under either prong defeats a claim for ineffective assistance. 

Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003). “Thus, we need not examine 
4

both Strickland prongs if one cannot be met.” Turner, 528 S.W.3d at 577 (citing Strickland, 466 

U.S. at 697).

The Strickland test “of necessity requires a case-by-case examination of the evidence.” 

Williams v. Taylor, 529 U.S. 362, 382 (2000) (quoting Wright v. West, 505 U.S. 277, 308 (1992) 

(Kennedy, J., concurring in judgment)). We “must look to the totality of the representation, and 

its decision must be based on the facts of the particular case, viewed at the time of counsel’s 

conduct so as to eliminate hindsight bias.” Martinez, 330 S.W.3d at 901 (citing Strickland, 466 

U.S. at 690). In all cases, the “ultimate focus of inquiry must be on the fundamental fairness of 

the proceeding.” Id. (quoting Strickland, 466 U.S. at 696). 

II. Overruling Aubin’s Motion for New Trial Was Not an Abuse of Discretion

Aubin argues that trial counsel failed to (1) conduct an adequate investigation of the case 

in preparation for trial and (2) present mitigating evidence during punishment. Both grounds for 

ineffective assistance were urged in his motion for new trial below. 

A. Standard of Review on Aubin’s Motion for New Trial

Our standard of review is slightly altered on these claims because a reviewing court 

measures a trial court’s ruling on a motion for new trial under an abuse of discretion standard.

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on other grounds by Miller 

v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018). A trial court abuses its discretion in this context 

only when no reasonable view of the record could support its ruling, which will be upheld on 

appeal so long as it falls within the zone of reasonable disagreement. Id. For that reason, “[w]hen 

the trial court denies a motion for a new trial alleging ineffective assistance of counsel, ‘we view 
5

the relevant legal standards through the prism of abuse of discretion.’” Lampkin v. State, 470 

S.W.3d 876, 903 (Tex. App.—Texarkana 2015, pet. ref’d) (quoting Ramirez v. State, 301 S.W.3d 

410, 415 (Tex. App.—Austin 2009, no pet.)). We must therefore decide whether the trial court 

erred in determining that Aubin failed to meet the two-prong Strickland test.

B. Evidence Taken at the Motion for New Trial Hearing 

At the hearing on Aubin’s motion for new trial, counsel testified that he reviewed every 

piece of discovery with Aubin during numerous telephone calls and four face-to-face meetings, 

including the last meeting that occurred one week before trial. On Aubin’s recommendation, 

counsel identified Aubin’s girlfriend, Desiree Nitzschke, as a potential witness and spoke with her 

twice before trial. According to counsel, Nitzschke relayed the favorable version of events, but 

flipped course at trial. Counsel admitted that he was surprised by Nitzschke’s testimony, which 

was even different from her recorded police interview. 

As for other witnesses, counsel claimed that Aubin pointed him to Cory Mims, a local 

police officer who “never had . . . any correct knowledge of this particular crime,” and several 

“drug addicts and prostitutes that could vouch for his character.” Counsel testified that he could 

not locate Alice’s mother, who was also a known drug addict, and could not recall from his 

memory whether he had spoken with the child’s grandmother. Ultimately, counsel explained that 

the State had already subpoenaed the witnesses he believed would be required at trial. Counsel 

admitted that he did not seek Alice’s school records and knew nothing about an open Child 

Protective Services case involving Alice in Texas. 
6

The trial court scheduled the sentencing hearing two months after the jury rendered its 

verdict of guilt to allow for the return of a presentence investigation report (PSI).2 In the interim, 

Aubin filed a letter with the trial court thanking it for the new lawyer appointed to his case, who 

had already met with him. Because of that letter, counsel stated he was under the mistaken 

assumption that he was no longer Aubin’s counsel on punishment and failed to communicate with 

him prior to the sentencing hearing. That said, although he had stopped working on the case, 

counsel clarified that he had prepared for the sentencing hearing. 

During his investigation into possible mitigating evidence on punishment, counsel testified 

that, although Aubin was competent to stand trial, he had a history of mental-health treatment and 

“explosive disorder.” Although he did not obtain all of Aubin’s mental health records, a 2014 

psychiatric evaluation conducted by Community Healthcore was entered into evidence during 

punishment. After describing Aubin’s mental health history, the report relayed that Aubin suffered 

from post-traumatic stress and mood disorders, had contemplated suicide, and sought assistance 

for chronic anger, anxiety, and mood problems.3

 The report also detailed Aubin’s tumultuous 

childhood resulting from detailed accounts of abuse suffered by Aubin at the hands of his foster 

parents. According to the report, Aubin’s foster parents had him “placed in institutions” beginning 

at age thirteen, where he was also abused, and eventually relinquished him “to the state” until he 

was “released to the streets” at adulthood. Aubin began experimenting with drugs and was arrested

and incarcerated on several drug-related charges. Counsel also admitted a 2013 psychological 

 2

The PSI detailed Aubin’s sizeable arrest record and criminal history. 

3

Aubin’s psychiatric records showed that he was prescribed mood-stabilizing medications in the past. Counsel 

testified that he was unaware of whether Aubin was taking those medications during the time of the assault. 
7

evaluation containing much of the information in the 2014 report and had Aubin testify at length 

about those mitigating factors. Although counsel admitted that he did not seek help from an expert 

or investigator, he testified that he could not fathom what mitigating evidence was omitted during 

punishment. 

C. The Trial Court’s Strickland Findings Were Not an Abuse of Discretion 

After reviewing the transcript of the motion for new trial hearing, we can find no abuse of 

discretion in the trial court’s conclusion that the record failed to show that trial counsel put forth 

an insufficient investigative effort or that he lacked a thorough understanding of the available

guilt/innocence and mitigating evidence. See Humphrey v. State, 501 S.W.3d 656, 664 (Tex. 

App.—Houston [14th Dist.] 2016, pet. ref’d). 

In support of his argument that counsel failed to adequately investigate the case, Aubin 

argues that counsel “billed Panola County for more than 17 hours of client meetings and more than 

40 hours of trial preparation,” but his “testimony and trial performance indicate that there is no 

way he spent more than 50 hours preparing for trial.” We reject this conclusory argument.4

 

Counsel’s efforts in preparing for this case, which were unrefuted, were detailed at the hearing on 

Aubin’s motion for new trial. From counsel’s testimony, the trial court could have reasonably 

concluded that counsel’s preparation of the case did not fall below an objective standard of 

reasonableness. 

 4

Aubin claims that counsel failed to adequately communicate with a witness, but does not identify the witness. 

Assuming Aubin refers to Nitzschke, counsel’s testimony demonstrated that he had spoken with Nitzschke twice, but 

that she reneged her favorable story at trial. We cannot say that the trial court’s decision that counsel adequately 

prepared for Nitzschke’s testimony constituted an abuse of discretion. 
8

Aubin also argues that counsel failed to communicate with him after the jury’s verdict and 

failed to present “any competent mitigating evidence” at sentencing. Although the record shows 

that counsel did not speak with Aubin before the sentencing hearing, counsel testified that he had 

completed his preparation for the hearing. Counsel presented mitigating evidence through his 

client, which was corroborated by the mitigating evidence admitted in Aubin’s psychological 

evaluations. Simply put, the trial court was free to find that Aubin did not meet the first Strickland 

prong because ample mitigating evidence was presented. 

The trial court could have also concluded that Aubin did not meet the second Strickland 

prong. Absent from both the hearing and Aubin’s appellate brief is any discussion about what 

evidence would have been uncovered by further investigation. “Without a showing of what an 

investigation would have revealed that reasonably could have changed the result of the case, a 

claim fails for ineffective assistance based on trial counsel’s general failure to investigate the facts 

of the case.” Straight v. State, 515 S.W.3d 553, 568 (Tex. App.—Houston [14th Dist.] 2017, pet. 

ref’d). “Likewise, a claim for ineffective assistance based on trial counsel’s failure to interview a 

witness cannot succeed without a showing of what the interview would have revealed that 

reasonably could have changed the result of the case.” Id.; see Cantu v. State, 993 S.W.2d 712, 

719 (Tex. App.—San Antonio 1999, pet. ref’d) (citing King v. State, 649 S.W.2d 42, 44 (Tex. 

Crim. App. 1983)). 

Aubin also offered no additional mitigating evidence at the hearing, but instead questioned

the fact that counsel did not seek appointment of an expert witness to uncover mitigating evidence. 

To establish ineffective assistance of counsel for failing to hire an expert witness, Aubin needed 
9

to show that he would have benefitted from such a witness’ testimony. Ex parte Flores, 387 

S.W.3d 626, 638 n.54 (Tex. Crim. App. 2012). Aubin has not shown that an expert witness would 

have presented mitigating evidence not already introduced at punishment. 

We overrule Aubin’s first point of error because we find no abuse of discretion in the trial 

court’s decision to overrule his motion for new trial. 

III. The Record Does Not Support Aubin’s New Grounds of Ineffective Assistance 

In his remaining points of error, Aubin raises grounds of ineffective assistance that were

not raised before the trial court. For that reason, counsel was not questioned about these grounds 

at the hearing on Aubin’s motion for new trial. The Texas Court of Criminal Appeals has said,

“Trial counsel ‘should ordinarily be afforded an opportunity to explain his actions’ before being 

denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012)

(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). As a result,

allegations of ineffectiveness “must ‘be firmly founded in the record.’” Bone v. State, 77 S.W.3d 

828, 833 n.13 (Tex. Crim. App. 2002) (quoting Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. 

Crim. App. 1999)). “[T]he presumption of a sound trial strategy cannot be overcome absent 

evidence in the record of the attorney’s reasons for his conduct.” Martinez, 330 S.W.3d at 901

(quoting Busby v. State, 990 S.W.2d 263, 269 (Tex. Crim. App. 1999)). Thus, where an appellate 

record is silent on why trial counsel failed to take certain actions, the appellant has “failed to rebut 

the presumption that trial counsel’s decision was in some way—be it conceivable or not—

reasonable.” Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 

9 S.W.3d 808, 814 (Tex. Crim. App. 1999). 
10

A. Extraneous-Offence Evidence 

Aubin argues that counsel rendered ineffective assistance when he failed to object to 

evidence of Aubin’s extraneous sexual acts with Alice and elicited unfavorable testimony during 

his cross-examinations of Alice and Nitzschke. 

1. Evidence of Aubin’s Extraneous Sexual Acts

The State’s indictment alleged that Aubin intentionally or knowingly caused Alice’s sexual 

organ to contact his mouth. The State’s first witness was a Children’s Advocacy Center 

interviewer who had summarized, in writing, Alice’s allegation as “Victim’s Father Supposedly 

Penetrated Her Anus With His Penis.” Alice was the State’s second witness. 

Alice testified that she lived in Philadelphia with her grandmother, but moved to Texas in 

2013 to live with Aubin, Nitzschke, and her half-brother. Alice said she was happy with the living 

arrangement until 2014, when Aubin began touching her breasts and vagina. Alice testified that 

the indecent touching occurred many times and progressed to other sexual acts. The child told the 

jury that Aubin had forced her to fellate him several times and had also taken the child’s sexual 

organ in his mouth. Alice said she credited Aubin’s statements that no one would believe any 

outcry made by her. 

Alice testified that, on or about the date alleged in the indictment, she left for a motel with 

Aubin after he had fought with Nitzschke. Alice described how Aubin pulled down her pants and 

“lick[ed]” her vagina. To establish proof of the abuse, Alice managed to take a photo of the 

incident on her cell phone while Aubin was engaged in the act and texted it to her half-brother, 
11

who promptly informed Nitzschke. The photographic evidence of Aubin’s sexual assault of Alice 

was published to the jury. 

The record is silent as to counsel’s reasoning for failing to object to evidence of Aubin’s 

extraneous sexual acts with Alice. By statute, when a defendant is tried for a sexual offense 

committed against a child under seventeen years of age, the State may, despite Rules 404 and 405 

of the Texas Rules of Evidence, introduce 

evidence of other crimes, wrongs, or acts committed by the defendant against the 

child who is the victim of the alleged offense . . . for its bearing on relevant matters, 

including:

(1) the state of mind of the defendant and the child; and

(2) the previous and subsequent relationship between the defendant and 

the child.

TEX. CODE CRIM. PROC. ANN. art. 38.37, § 1(b) (West 2018). And in cases much like this one, 

Texas courts have ruled that such evidence also passes the Rule 403 balancing test. See Harty v. 

State, 552 S.W.3d 928, 935 (Tex. App.—Texarkana 2018, no pet.); Caston v. State, 549 S.W.3d 

601, 613 (Tex. App.—Houston [1st Dist.] 2017, no pet.); Belcher v. State, 474 S.W.3d 840, 848 

(Tex. App.—Tyler 2015, no pet.). 

As for evidence of other crimes, wrongs, or acts committed by Aubin against Alice, we 

find that Aubin cannot meet the first Strickland prong since counsel could have decided to forgo

an objection based on a reasonable belief that this evidence was admissible.5 We overrule this 

point of error. 

 5

“The failure to object to admissible evidence is not ineffective assistance.” Burruss v. State, 20 S.W.3d 179, 188 

(Tex. App.—Texarkana 2000, pet. ref’d).
12

2. Testimony Elicited During Cross-Examination 

During Alice’s cross-examination, counsel elicited the lurid details of Aubin’s anal sexual 

assault of Alice and Aubin’s promise to her that she could visit with her friend if she remained 

silent about the incident. From Nitzschke, counsel established that Aubin had genital herpes. 

Counsel also engaged in the following discussion with Nitzschke on cross-examination:

Q. Now, there comes a time when you find out that [Alice] has shown 

her breasts to your son, correct?

A. That’s not what I recall. Well, maybe she did. Inappropriate 

behavior happened.

Q. Okay. And did he try to -- did she try to seduce him?

A. That was somewhat of the story. 

. . . . 

Q. Okay. Tell me how you felt whenever you found out that this had 

occurred?

A. Well, this was one of the times [Alice] came to me and asked me if 

I would believe her if she said that her dad was doing stuff to her. . . . 

And [Aubin] immediately jumped in and said, “I have a video of the two of 

them.” I said, “You have a video?” And [Alice] came back with, “That’s why I 

won’t say anything to you, because he told me if I said anything to you, he would 

show you a video.”

And so it turns out that he supposedly had set his game camera up in my 

son’s room. And [Alice] said that he offered her $100 to go into his room and give 

him a blow job, and so she had gone into his room with the video camera set up. 

And [Alice’s brother] said that she just came in . . . and that she put a 

condom on him. And then [Aubin] had the video, and he came in and took the 

video out of -- took the game camera and said not to tell me anything.

Q. So your son sat there and let her put a condom on him?
13

A. Apparently.

Q. And where is this video?

A. [Aubin] said he destroyed it. 

Aubin’s trial strategy involved attacking Alice’s credibility and establishing that the child 

had been engaging in sexualized acts with others from a young age. After eliciting testimony that 

Aubin had genital herpes, counsel attacked the veracity of Alice’s testimony by stressing the lack 

of any evidence showing Alice had contracted genital herpes during her alleged frequent sexual 

encounters with Aubin. Counsel also tried to cast doubt on whether Alice’s allegations occurred. 

As an example, the State first offered evidence that Aubin tried to anally rape Alice. In response, 

counsel pointed out that Alice told her friend, Haley, and Haley’s mother about the encounter the 

same day, but Haley’s mother decided not to report it, so as not to “hurt” anyone. 

This Court has held that it will not second guess the strategy of trial counsel through 

hindsight. See Harner v. State, 997 S.W.2d 695, 704 (Tex. App.—Texarkana 1999, no pet.). That

another attorney might have pursued a different course will not support a finding of 

ineffectiveness. Id. (citing Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979)). Because 

we find counsel’s trial strategy reasonable, we cannot conclude that his performance was deficient. 

See Turner, 528 S.W.3d at 577. 

We also note that Nitzschke’s long narrative about Aubin’s alleged recording of Alice’s 

sexual encounter with her half-brother was a non-responsive answer to counsel’s questions. 

Counsel could have decided not to the object to the narrative as non-responsive to prevent the jury 

from perceiving the objection as an attempt to hide something. In any event, even if we assume 
14

on this record that elicitation of this information and the lurid details of Alice’s anal rape 

constituted ineffective assistance, we find that Aubin cannot meet the second Strickland prong. 

The testimony of a child victim alone is enough to support a conviction for sexual assault

of a child. TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2018); Scott v. State, 202 S.W.3d 

405, 408 (Tex. App.—Texarkana 2006, pet. ref’d). Here, together with Alice’s testimony 

establishing all elements of the offense, the jury was presented with photographic memorialization 

of Aubin engaged in the crime. Given the proof presented during guilt/innocence, we cannot 

conclude that there was a reasonable probability that the jury would have found Aubin innocent 

absent counsel’s alleged ineffective assistance. See Strickland, 466 U.S. at 694. This point of 

error is overruled. 

B. Counsel’s References to the Fifth Amendment 

Next, Aubin argues that counsel impermissibly elicited evidence related to his Fifth 

Amendment right against compulsory self-incrimination. Carl Harris, a detective with the 

Carthage Police Department, testified on direct examination that Aubin did not present himself for 

questioning immediately and was not initially forthcoming during his police interview.6 During 

cross-examination, Aubin addressed this issue in the following colloquy:

Q. Reading your reports and listening to your testimony, you and 

Detective Poindexter made a big deal out of the fact he didn’t come in right away, 

correct?

A. Okay.

 6

Aubin does not complain about any alleged ineffectiveness resulting from a failure to object to Harris’ direct 

testimony. 
15

Q. Okay. And you, and apparently someone else before you, pursued 

him to try to get him to come in, correct?

A. I don’t know if somebody before us tried to get him to come in or 

not.

. . . .

Q. Is it -- in your mind, do you -- do you believe that people have a 

right not to come in?

A. Sure.

Q. Okay. So we’ve got a Fifth Amendment right.

A. Sure.

Q. And have you ever used the phrase, “If you don’t have anything to 

hide, why not come in?”

A. Sure.

Q. Okay. Kind of baiting them, getting them to come in?

A. If that’s what you would like to call it, yes.

Q. Okay, okay. So you would agree with me that the Fifth Amendment 

is an important right?

A. Sure.

Aubin argues that counsel rendered ineffective assistance by referring to his Fifth 

Amendment rights. The State argues that counsel’s questioning of Harris was a response to the 

State’s direct examination establishing that Aubin did not immediately respond to requests for a 

police interview. Because the record does not contain counsel’s reasoning for such questioning, 

we agree with the State and find this line of questioning reasonable given Harris’ direct testimony. 

In addition to the failure to establish the first Strickland prong, we also find the second prong 
16

unmet given Alice’s account of the crime and the photographic evidence of Aubin committing it. 

We overrule this point of error. 

C. Victim-Impact Evidence at Punishment 

The Strickland two-pronged standard for assessing the constitutional effectiveness of trial 

counsel applies to the punishment phase of a non-capital trial. Hernandez v. State, 988 S.W.2d 

770 (Tex. Crim. App. 1999). During punishment, Alice testified about the impact Aubin’s actions 

had on her life. Citing that evidence and Article 42.03 of the Texas Code of Criminal Procedure, 

Aubin argues that counsel rendered ineffective assistance in failing to object to improper victim 

allocution evidence. See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(b) (West 2018).

7

Article 42.03 pertains to post-sentence victim-impact statements and does not prohibit the 

admissibility and consideration of relevant victim-impact evidence during the punishment phase 

of trial before sentencing. Jagaroo v. State, 180 S.W.3d 793, 798–99 (Tex. App.—Houston [14th 

Dist.] 2005, pet. ref’d); Brown v. State, 875 S.W.2d 38, 40 (Tex. App.––Austin 1994, no pet.)

 7

In relevant part, the statute reads:

The court shall permit a victim . . . to appear in person to present to the court and to the 

defendant a statement of the person’s views about the offense, the defendant, and the effect of the 

offense on the victim. . . . The court reporter may not transcribe the statement. The statement must 

be made:

(1) after punishment has been assessed and the court has determined whether 

or not to grant community supervision in the case;

(2) after the court has announced the terms and conditions of the sentence; 

and

(3) after sentence is pronounced. 

TEX. CODE CRIM. PROC. ANN. art. 42.03, § 1(b).
17

(per curiam). The record shows that the State did not introduce Alice’s testimony under Article 

42.03. 

Instead, the victim-impact evidence was admitted under Article 37.07, which governs 

“[t]he procedures to be followed at the punishment stage of trial and the evidence that may be 

considered in determining punishment.” Brown, 875 S.W.3d at 39; see TEX. CODE CRIM. PROC.

ANN. art. 37.07, § 3(a)(1) (West Supp. 2018) (the State may present evidence “as to any matter 

that the court deems relevant to sentencing” in non-capital felony cases). Victim-impact testimony 

is relevant to sentencing if it has “some bearing on the defendant’s ‘personal responsibility and 

moral guilt,’” Stavinoha v. State, 808 S.W.2d 76, 79 (Tex. Crim. App. 1991) (per curiam) (quoting 

Miller-El v. State, 782 S.W.2d 892, 896 (Tex. Crim. App. 1990)), including “the physical, 

psychological, or economic effects of a crime on the victim or the victim’s family,” Espinosa v. 

State, 194 S.W.3d 703, 711 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see Moreno v. State, 

38 S.W.3d 774, 778 (Tex. App.—Houston [14th Dist.] 2001, no pet.) (plurality op.) (victim-impact 

evidence relevant if defendant should have anticipated particular effect on victim or victim’s 

family).

As the United States Supreme Court has observed, evidence of the impact of an offense on 

the life of the complainant and others may be introduced at the punishment phase of a trial as a 

way of informing “the sentencing authority about the specific harm caused by the crime in 

question.” Payne v. Tennessee, 501 U.S. 808, 825 (1991) (noting “victim impact evidence serves 

entirely legitimate purposes”); see Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002) 
18

(explaining victim-impact evidence “is designed to remind the jury that [a crime] has foreseeable 

consequences to the community”). 

Because the State did not introduce Alice’s punishment testimony as Article 42.03 victimallocution evidence, we reject Aubin’s complaint that counsel failed to object under Article 42.03. 

Instead, based on this record, which does not contain counsel’s reasoning on this subject, we 

conclude it reasonable for counsel to have determined the testimony was admissible under Article 

37.07. Therefore, the first Strickland prong is not met. 

Also, with respect to the prejudice prong, an appellant must show a reasonable probability 

that, but for trial counsel’s deficiency at the punishment phase, the punishment fact-finder would 

have reached a more favorable verdict. Ex parte Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 

2012) (orig. proceeding). It is not enough to satisfy this standard if the likelihood that the 

punishment fact-finder would have reached a more favorable verdict is merely “conceivable,”

based upon conjecture or speculation. Ex parte Cash, 178 S.W.3d 816, 818–19 (Tex. Crim. App. 

2005) (orig. proceeding) (citing Strickland, 466 U.S. at 693). Here, Aubin makes no argument 

that the trial court would have assessed a lesser sentence absent this evidence. In any event, such 

a conclusion would be mere conjecture in light of Aubin’s criminal history and Alice’s testimony 

during guilt/innocence. Therefore, the second Strickland prong is also not met. 

We overrule Aubin’s last point of error. 
19

IV. Conclusion 

We affirm the trial court’s judgment. 

Scott E. Stevens 

Justice

Date Submitted: February 20, 2019

Date Decided: March 15, 2019

Do Not Publish