1

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-12-00574-CR 

__________________

TRAVIS JAMES GUILLORY, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________________________________________ _

On Appeal from the Criminal District Court

Jefferson County, Texas

Trial Cause No. 11-11914

_________________________________________________________________ _

MEMORANDUM OPINION

A jury convicted appellant Travis James Guillory of possession of a 

controlled substance as a habitual felony offender and assessed punishment at 

twenty-five years of confinement. In his sole appellate issue, Guillory contends 

trial counsel provided ineffective assistance. We affirm the trial court’s judgment.

Guillory argues that trial counsel provided ineffective assistance by 

attempting to offer into evidence two exculpatory affidavits from co-defendants
2

rather than calling the affiants to testify at trial.1 To prevail on a claim of 

ineffective assistance of counsel, an appellant must satisfy a two-pronged test:

First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious 

that counsel was not functioning as the “counsel” guaranteed the 

defendant by the Sixth Amendment. Second, the defendant must show 

that the deficient performance prejudiced the defense. This requires 

showing that counsel’s errors were so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); see also Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 

1986). An appellant must demonstrate a reasonable probability that but for his 

counsel’s errors, the outcome would have been different. Bone v. State, 77 S.W.3d 

828, 833 (Tex. Crim. App. 2002). “Appellate review of defense counsel’s 

representation is highly deferential and presumes that counsel’s action fell within 

the wide range of reasonable and professional assistance.” Id.

Guillory must prove that there was no professional reason for specific acts or 

omissions of his counsel. See id. at 836. Furthermore, “[a]ny allegation of 

ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing McFarland v. State, 928 S.W.2d 

 1

The trial judge refused to admit the affidavits into evidence.
3

482, 500 (Tex. Crim. App. 1996)). The bare record on direct appeal is usually 

insufficient to demonstrate that “counsel’s representation was so deficient . . . as to 

overcome the presumption that counsel’s conduct was reasonable and 

professional.” Bone, 77 S.W.3d at 833 (footnote omitted).

The record is silent concerning trial counsel’s reasons for not calling the 

affiants to testify at trial. Although Guillory filed a motion for new trial, the sole 

ground asserted in his motion was that the verdict was contrary to the law and the 

evidence. Guillory did not contend in the motion that trial counsel provided 

ineffective assistance, nor did he create a record elucidating counsel’s possible 

reasons for attempting to present statements rather than calling the witnesses to 

testify at trial. The record contains a response by the State to Guillory’s motion for 

new trial, as well as the trial court’s order denying the motion, but there is no 

indication in the record that a hearing was held on Guillory’s motion for new trial. 

With a silent record, we cannot presume that counsel’s conduct constituted 

ineffective assistance. See Thompson, 9 S.W.3d at 813; Bone, 77 S.W.3d at 833. 

We must presume that counsel’s conduct falls within a wide range of reasonable 

representation. See Strickland, 466 U.S. at 690; Bone, 77 S.W.3d at 833. 

Accordingly, we overrule Guillory’s sole issue and affirm the trial court’s 

judgment.
4

AFFIRMED.

______________________________

 STEVE McKEITHEN

 Chief Justice

Submitted on June 20, 2013

Opinion Delivered July 10, 2013

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.