COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00059-CR

LARRY KEVIN BONNER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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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 

 

1See Tex. R. App. P. 47.4.
2

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 
3

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.
4

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 
5

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.
6

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 
7

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.
8

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 
9

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 
10

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.
11

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 
12

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 
13

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 
14

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 
15

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.
16

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.
17

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 
18

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 
19

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 
20

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