Affirmed and Memorandum Opinion filed November 18 , 2021.

In The 

## Fourteenth Court of Appeals

NO. 14
- 20
- 00209
- CR

TAYLOR GUILLORY , Appellant

V. THE STATE OF TEXAS , Appellee
On Appeal from the 174th District Court

Harris County, Texas Trial Cou r t Ca us e No. 159 6766

MEMORANDUM OPINION Appellant Taylor Guillory challenges his co nviction for aggravated assault

w ith a deadly weapon , asserting that he received inef fective assistance of counsel and the trial court erred in failing to grant him a new tria l

. C oncluding that appe llant has not demonstr ated he received ineffective assistance on this undeveloped record on direct appeal , w e affirm

.2 Ba ckground
Eleven

- year
- old D.G. was walking home with a fr i end one afterno on. As he passed by appellant ’ s hous e, h e observed appell ant wi th a n assault rifle and a shotgun. According to D.G. , a ppellant put the assault rifle into his car, and then aimed the shotgun at D.G. an d his friend. D.G. testified that he told his friend to run home and D.G. himself ran home . Appe ll ant followed D.G. wi th the gun site as D.G. ran . D.G. ran into his home and told his s tepfather what happened and that he was afraid. Two days later , police officers arrived at appellant ’ s ho me and seized a shotgun from appellant ’ s bedroom. The officers di d not have a search war rant, but an officer tes tified that appellant ’ s mother consented to the search. He conced ed that she did not sign the st andard consent to search form. Appellant ’ s mother also testified as a defense witness. She told the jury that s he initially r efused to a ll ow officers to search her hom e and did not consent to the search until an officer threatened to arr est her and she wa s placed into a patrol car in hand cuffs

. During the punishm ent phase of trial, D.G. ’ s mother testif ied that app el lant came to th ei r house , a sked her and her husband why they were pressing charges , and accused D.G. of lying. According to D.G. ’ s mother, aft e r they t old ap pellant

“ that t hey were going to take it to court, ” appellant “ became a li ttle more hostile, thro wi ng his hand s arou nd, pacing , ” and after they asked him to leave, appellant

“ continued to mumble and walk back and forth in fron t of [their] h ome ” befor e he left. Defense counsel objecte d on the basis that he ha d not received notice of the State ’ s intenti on to elicit test im ony about this inci dent , but after he adm itted that he had not request ed no tice, the trial court overruled the objection. 1

1 T h e pro secutor inform e d the trial cou rt that notic e of this incident ha d been provided to app ellant.3

D.G. ’ s mother al so t ol d the jury that appellant previously had threatened to ki ll her husband. T he trial court su st ained defense cou nsel ’ s hearsay object ion to this te stimony and instructed the j ury to disregard it. 2 D.G. ’ s mother subsequently testified without objection that he r husband was in “ an extreme emot ional state ” when he told her he re ceived a death threat fr om appellant. Thi s in cident was not included in the State ’ s notice of extraneous offenses and bad acts.
Discussion
I n four issues, appellant con tends that he received ineffective assistance on the grounds that his trial attorney (1) did not file a pret ri al motion to suppre ss or object to the a dmission at tr ial of a firearm sei zed from appellant ’ s home , (2) failed to investigate the State ’ s punis hment case or request notice of extraneous offenses the State intended to introduce during the punishment phas e of trial , and (3) f ailed
to investigate or present mitigating evidence of appellant ’ s mental health history during the punishment phase of trial. To prevail on a claim of ineffective assistance of counsel, an appellant must show that (1) trial counsel ’ s p er formance was def i cient bec ause it fell below an objective standard of reasonableness; and (2) the deficient performance prejudiced the defense. S trickland v. Washington , 466 U.S. 668, 68 7 (1984); Lopez v. State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)

. The failure to s a tisfy one prong of the Strickland test negates a court ’ s need to consider the other prong. Lopez , 343 S.W.3d at 142.
To satis fy the first prong, an appellant must prove by a preponderance of the evidence that trial counsel ’ s performance fe ll below an obje c tive stan dard of

2 D.G. ’ s mother initially te stified that her husband received a death t hreat, and the trial court sustained a h earsay o bjection but did not instruct the jury to disregard the statement. T h e trial cou rt instructed the ju ry to disr e gard the later statement from D. G

. ’ s mother that her h usband told her “ I just received a death threat. ”4

reasonableness under prevailing professional norms. Id

. In making this showing, an appellant must overc ome a strong presumption that trial counsel ’ s actions fell within the wide range of reasonable and professional assis ta nce. See id

. ; Garza v. State , 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). “Before granting relief on a claim that de fense counsel failed to do something, we ordinarily require that counsel be afforded the opportunity to outline the r easons for the omi s si on .” Ro berts v. State , 220 S.W.3d 521, 533 (Tex. Crim. App. 2007). In determining whether c ounsel was ineffective, we consider the totality of the circumstances

. Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any alleg ation of ineffectiv eness m us t be firmly founded in the record, and the record must affirmatively demonstrate the all eged ineffectiveness. Id

. If trial counsel ’ s reasons for his conduct do not appear in the record and there is at least the possibilit y that the conduct could have be en grounded in legitimate trial strategy, we will typically defer to counsel ’ s decisions an d deny relief on an ineffective assistance claim. Garza , 213 S.W.3d at 348. “ It is not sufficient that appellant show, with the bene fit of hindsight, that hi s cou n se l ’ s actions or omissions during trial were merely of questionable competence. ” Lopez , 3 43 S.W.3d at 142

- 43 (quoting Mata v. State , 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). Absent a record sufficient to demonstrate that trial counsel ’ s conduct

was n ot t he product of a strategic or tactical decision, we should presume that trial counsel ’ s performance was constitutionally adequate “unless the challenged conduct was so outrageous that no competent attorney would have engage d in i t.” State v. Morale s , 25 3 S. W.3d 686, 696

- 97 (Tex. Crim. App. 2008)

. To satisfy the second prong, an appellant must show that there is a reasonable probability

— or a probability sufficient to undermine confidence in the
outcome

— that the result of the proceeding woul d hav e be en diffe re nt but for trial5

counsel ’ s unprofessional errors. Lopez , 343 S.W.3d at 142.
I. Failure to Suppress Not Prejudicial Appellant contends in his first issue that his trial counsel did not “ adequately p ursue the suppression of ” a shotgun seized from appe llant ’ s ho me because counsel did not file a pretrial m otion to suppress or seek a pret rial hearing and present evidence that appellant ’ s mother did not voluntarily consent to allow officers to search the home

. A trial counsel ’ s failure to file a m oti on to suppress i s not per se ineffective assistance of counsel. Wert v. State , 383 S.W.3d 747, 753 (Tex. App.

— Houston [14th Dist.] 2012, no pet.). To prove ineffective assistance of counsel for failing to move to suppress evidence, ap pellant is required to s how not only t hat the motion to suppress would have been granted but also that the remaining evidence would have been insufficient to support his conviction

. See Jackson v. State , 973 S.W.2d 954, 957 (Tex. Crim. App. 1998) (per curi am) (to satisfy Str ickla nd , a

ppellan t is o bliged to prove that motion to suppress would have been granted); Wert , 383 S.W.3d at 753.
Her e, an officer testified at trial that appellant ’ s mot her consented to the search . A t that point, defen se counsel examined the officer on voi r dir e outsid e t he presence of the jury , and the officer admitted that he did not have a search warrant and app ellant ’ s mother did not sign a consent to search form. Defense counsel orally moved to suppress the shotgun seized from appell ant ’ s home, which t he tr ial

co ur t d en ied

. Later during the defense case
- in

- chief, appellan t ’ s mother testified that she initially r efused to all ow officers to search her hom e and only consented to
turn o ver the shotgun after an officer threatened to arr est her and she wa s h and cuf fed and pla ce d into a patrol car

. P resuming without deciding that a pretri al motion to sup press would have been granted after a pretrial hearing in which appellant presented this testimony6

from his mother, we are also required to de termi ne whether th e othe r evidence pr esented during trial was sufficient to support appellant ’ s conviction

. T h e State

was required to prove that appellant intentionally or knowingly threatened D.G. with imminent bodily injury whi le using or exhibiting a de adly weapon. Tex. Pen al Code § § 22. 01 (a)(2), 22.02(a)(2). Aiming a deadly weapon at someone is sufficient evidence of a threat to sup port an aggravated assault conviction. Ward v. State , 113 S.W.3d 518, 521 (Tex. App.

— Houston [1st Dist.] 2003, pet. ref’d) ; see a lso Bedard v. Stat e , No. 14

- 1 8

- 00345

- CR, 2019 WL 5444300, at *4 (Tex. App.

— Houston [14th Dist.] Oct. 24, 2019, no pet.) (mem. op. , not designated for publi cation ). Ey ewi tness t estimony regarding the use of a firearm is sufficient to support a finding of us e or exhibiti on of a deadly w ea pon. Gomez v. State , 685 S.W.2d 333, 336 (Tex. Crim. App. 1985) ; Carter v. State , 946 S.W.2d 507, 511 (Tex. App.

— Houston [14th Dist.] 1997 , pet. ref’d)

. A n d c orroboration of the complainant ’ s description of the weapon is not required to s uppor t a finding o f use

or exhibition of a deadly w eapon
. Gomez , 685 S.W.2d at 336

. D.G. testified that he was walking home when ap pellant aimed a shotgun at him and followed him with the gun site

. D.G. ’ s stepfather te stified that D.G. ra n int o his front d oor s creaming an d was panicked and “ in fear

. ” Mo reover, appellant ’ s mother testified during the defen se ’ s ca se
- in

- chi ef that on the day of the purporte d offense , she and appellant were going to the shooting range and appellant was carr yin g “ th e shotgun with the rifle ” to pu t in the trun k of the ir car when two younger children walked by

. T h at testimony is cons istent with D.G. ’ s testimony that he was walking with a friend when appellant pointed a shotgun at him. 3 A n other witness testi fied for the State that a few months afte r the alleged offense , appellant came into her place of business and told her, “ I already pull ed a

3 Appellant ’ s mother also testif ied that she told her son to be careful because there were kids nearby and appellant put the f i rearms directly into the trunk

.7

gun on my neighbors, and if you call the police, I will sho ot everyone in here. ” A ppellant has not sho wn that t his e vidence was insuff icient t o support his

c on viction

. See Guevara v. State , No. 14

- 16

- 0070 1

- CR, 2018 WL 771218, at *10

– 11 (Tex. App.

— Houston [14th Dist.] Feb . 8, 2018, pet. ref’d) (mem. op., not desi gnated fo r publication) (holding appellant see k ing to estab lish ineffective

a ssistanc e for failure t o fil e motion to s uppress did not meet burden to show that

rema ining evidence was insufficie n t to support con victions).
A ppellant has not shown on this record that the result of the proceeding would have be en diffe re nt but for trial counsel ’ s unprofession al errors
. We overrule appellant ’ s first issue

. II. F ailure to R equest Notice of State ’ s Inte ntion to Introduc e Ex tran eous Offenses or Bad Acts Not Prejudicial
I n his second issue, appellant con tends that he receiv e d in effective assist an ce during the punishmen t phase of trial because his attorney failed to request notice of extraneous crim es or bad acts that the Stat e intended to intro duce at trial. Specifically , appellant asserts that if his at torney had requested notic e , he could have a sked the trial court to e xclude evidence regarding a purported death threat from appellant against D.G. ’ s s t epfather on the basis that this inciden t was not included in the notice

. 4
Evidence of extraneous offens es or bad acts is adm issib le during the pu ni shment phase of trial. Te x. Code Crim . Proc

. art. 37.07 § 3(a) . On timely request from a defendant , the State is required to provide notice that it intends to offer this type of evidence

. Id

. art. 37.07 § 3(g)

. T h e purpose of the not ice

r equirement is to g ive the defendant adequ at e time to prepare for trial and avoid

4 As mentioned, D.G. ’ s m o th er a lso testified that app ellant came to their house , asked the m to drop the aggravated assault charge , and the n b ecame hostile and did not immediately leave when asked

. Appellant does not contend this incident was omitted from the notice

.8

trial by ambush. Loredo v. State , 157 S.W.3d 26, 29 (Tex. App.

— Waco 2004, pet. ref’d) . Accordingly, t h e failure to request such notice can result in trial counsel being a mbush ed with extraneous bad act s intr od uced by t he State during the pun ishment phase. Id

. One sister court has held such a failure to be “ unreasonable and not justifiable by sound trial strategy. ” See id

. A nother sister court has hel d to the contrary that the f

ailure to requ est notice, standing alon e, g enerally is not egregious enough to constitute ineffective assistance of counsel. See Rodriguez v. State , 981 S.W .2d 357, 359 (Tex. App.

— San Antonio 1998, no pet.)

. Y et another has no ted that “ [i]n general, tr ial cou nsel ’ s failure to file pre

trial moti on s, such as a request for notice of intent to introduce extraneous offense evidence, does not result i n ineffective assistance of counsel , ” but in that case , the
court declined to decide whether tr ial counsel ’ s fail ure to r equest notice under

a rticle 37.0 7 constituted def icient performa nce. See Martinez v. State , 449 S.W.3d 193, 208 (Tex. App.

— Houston [1st Dist.] 2014, pet. ref’d)

. We likew ise do not need to rea ch this issue because appellant has n ot demonstrated on this r e cord that if he had re ceived time ly notice , the jury ’ s assessment of punishment would have been less severe in the absence of counsel ’ s deficient performance

. See id . (citing Milburn v. State , 15 S.W.3d 267, 270 (Tex. App.

— Houston [14th Dist.] 2000, pet.

r ef’d) ). During the pu nishment ph as e, in addition to the testimony fr om D.G. ’ s mother, the State presented testimony from three other witnesses. A teacher from appellant ’ s high school tes tified that appellant intenti on ally pushed him and fell on top of hi m, which resulted in th e teacher h av ing a concussion, two se izures, and a
torn rotator cuff. At the time of trial six years later, the teach er was st ill on s eizure medication from the incident

. A gas station attendant testified that appellant displayed a m ac hete and t hreatened t o kill the at tendant and his family after the9

attendant refused to sell alcohol to appellant at a time when he was underage. D.G. also testified that he had been “ pretty scare d ” and under a lot of stress since the time of the alleged o ffense . He did not fe el safe t o go outside by him self

. Appellant also stipulated at trial t hat he had received juvenile court adjudications of fe lon y offenses for ag gravated assault using a dea dly weapon and

assau lt resulting in bodily injury against a public servant , as well as misdemea no r offens es for criminal tre spass and evading arrest

. Appellant further st ipulated that he had been convicted of the following misdemeanors that occurred after the alleged offense at hand : driving while in toxicated, theft, and crimina l trespa ss
. T h e jury ha d also h eard during the guilt

- innocen ce phas e of trial the testimony mentioned above that appellant allegedly threatened a witness by telling her he had pulled a gun on his neighb o rs and would “ shoot everyone in her e . . . if you call the po lice. ”
Dur ing c losing a rgument s , the prosecutor asked the jury to consider “ at least five year ’ s prison time ” based on the following factors: the effect of the alleged offense on D.G., appellant ’ s prior ju venile ad judications and misdem eanor convictions , t he threats th at appella nt ha d previously made against several people , and prior assaults

. T h e prosecutor did not mention the purported death t hreat against D.G. ’ s stepfather

. Considering the totality of evidence pre sented at trial, a ppellant has not establ ished on th is r ec ord th at, had his trial counsel requested notice from the State of its intent to offer extraneous offens es or bad acts evidence , a reasonable probability exists that the jury would have assessed a less severe sentence. See id

. at 208

- 09 . We overrule ap pe llant ’ s second issue.
III. Record Undevelope d as to Failure to Investigate Mental Health History and Present M itigating Evidence10

Appellant contends in his thi rd issue that he received ineffective assistance because h is attorney p urportedly failed to investiga t e and pre sent mitigating evidence of his history of mental i llness. Appellant contends that trial counsel was aware of appellant ’ s mental illness a nd treatment his tory and testimony from appellant ’ s mother at hi s bond hearing should hav e generated further i nvestiga tion. Failure to conduct an adequate investigation may constitute ineffective assistance of counsel. See Wiggins v. Smith , 539 U.S. 510, 521

– 23 (2003). As the Supreme Court said in Strickland , “[C]ounsel has a duty t o make reas onable investigatio ns or to m ake a reasonable decision that makes particular investigations unnecessary
. ” 466 U.S. at 691. A clai m for ineffective assistance based on trial counsel ’ s failure to investigate gen erally fails absent a showing of what the investigatio n would have r evealed that reasonably could ha ve changed the result of the case. Stokes v. State , 298 S.W.3d 428, 432 (Tex. App.

— Houston [14th Dist.] 2009, pet. ref’d) (c iting Cooks v. State , 2 40 S.W.3d 906, 912 (Tex. Crim. App. 2007) ). Appellant argues th at his mothe r ’ s testim ony at his bond hearing show s his trial counsel “ knew the issue existed and merited further investigation. ” His moth er testified at the bond hearing that appellant had certain me ntal he alth issues, including “[ a]g gressive behaviors [

. ] S lightly ma yb e bipola r . ADH D for sure. ” A ccor ding to his mother, a ppellant had been under the care of me ntal health pro fessionals and was taking medication off an d on for years

. Appellant contends this information should have prompted his trial counsel to conduct fur th er inves tigations

. Presuming tha t is true, however , the record is silent as to what investigative steps counsel took and what conclusions he may have subsequently drawn

. See , e.g., Brown v. State , 129 S.W.3d 762, 767 (Tex. App.

— Houston [1st D ist.] 2004, no pet.) ( “We will not assume that counsel did not investigate a11

defense when the record is merely silent as to the depth of counsel ’ s investigation.” ) (citing Hernandez v. State , 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)). W hen the record is si lent as to c ou nsel ’ s t rial strategy, we may not speculate about why counsel acted as he did. See Rylander v. State , 101 S.W.3d 107, 110

– 11 (Tex. Crim. App. 2003)

. Appellant also contends that his trial counsel should have offered additional evidence of his mental heal th his tory at his punishment hearing and that failure to d o so was ineffective assistance of counsel. In particular, appellant argues that his counsel should have introduced more information regarding appellant ’ s diagnoses, what medications he took, and th e seriousn ess of his mental health struggles

. Appellant ’ s mothe r testified at the punishment hearing that her son was “ off balance from time to time , ” and “ had ADHD at one po int, bor derline bipolar. ” She also said he had received medical attent ion and was on medicat ion

. T h e State also introduced evidence showing that a ppellant w as ordered to undergo a psychological evaluation in a prior ju venile proceeding

. A lthough appel lant complains that a part from his mother ’ s testi mony , his counsel sho uld have introduc ed mo re information about his mental health history, appellant does not identify any specific mental health evidence related to his diagnoses and medication that the jur y could have consider ed to mitigate his punishment

. To meet his burden of sho wing his c ou nse l ’ s per formance was deficient , appellant was required to point to evidence in the re cord that affirmatively demonstrates “ the meritorious nature of the claim.” See Menefie ld v. State , 363 S.W.3d 591, 592 (Tex. Crim. App. 2012)

. T h e evidence in the rec or d regard in g appellant ’ s mental health history , moreover, is not unambiguously helpful for the defense: his mother recogn ized that appellant suffered from certain mental illne sses and sometimes took medication , but there is no evidence regardin g12

how appel la nt ’s mental health history could have been considered as a mit igating factor

— for example, this evidence does not show how his mental health history , without more , could , in ap pellant ’ s words , “ explain the cause of [his] behavior and the steps t h at could be taken to p revent further outbur sts

. ” 5 The record before us does not contain a statement by trial counsel explaining the reasons for the actions he took, including the decisio n not to introduce or rely upon additional evidence regarding appellan t ’ s menta l h ealth hist ory at the punishment hearing. Since the record is silent as to counsel ’ s strategy, we may not find deficient performance unless the conduct appellant now challenge s was so outrageous that no competent attorney would have engaged in i t. See Go od speed v. St ate , 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)

. Because the re cord is silent as to trial cou nsel ’ s investigative efforts and choices regardi ng what information from appellant ’ s record to introduce at trial, we cannot conclude that trial coun se l f urnish e d ineffective assistance

. On this record, appellant has not shown that trial counsel ’ s performance fell below an obje ctive stan dard of reasonableness under prevaili ng professional norms. We overrule appellant ’ s third issue.

5 Appellant p r e s ented an affidavit i n support of his motion for new trial in which he attested that he had been hospital ized for mental health disorder s and dia gno sed with bipolar disorder, anxiety, ADHD, an d insomnia an d was taking various medications for these condit i o ns. He also attested that he raise d this issue with his trial attorney but “it was not presented to the judge. ” There is no evidence on this record that the trial court was presented with appe llant ’ s motion and the affi davi t, as discussed below, but even i f it were, we cannot sa y on this record that this i nformation , without more , provided the trial court with sufficient facts from which it could reasonably con clude that , but for counsel ’ s alle ged failures, a reasonable likelihood exi sts that t he outcome o f his trial would have been different because the affidavit does not reveal what investigative steps counsel took , what conclusions he may have subsequently drawn , how severe appellant ’ s mental health diso rders were, or whether appellant ’ s mental health h i s tory would be a mitig ating factor in his punishment.13

IV. Motion fo r New Trial N ot Present ed to Trial Court
I n his fourth and final issue , appellant asserts that the trial court abused its discretion in failing to grant appellant ’ s motion for new trial a nd allowing the motion to be overruled by opera t ion of law

. Appellant a sk s this co urt to rev erse and remand the case for a new trial or for a new puni shment hearing. Alternatively, appellant ask s us to abate the appea l and re mand the case for a hearing on the motion for new trial. T h e State contends that the trial court did not abu se it s discreti on in allowing the motion for new trial to be overruled by operation of law because the motion w as never presented to the trial court

. A defendant must present a mo tion for new trial to the trial court within ten days of filing it

. Te x. R. App. P . 21. 6. “T he purpose of the presentment rule is to put the trial court on actual notice that a defendant desires the trial co urt to take some action on the motion for new tri al such as a ruling or a hearing on it. ” Stokes v. State , 277 S.W.3d 2 0, 21 (Tex

. Crim. App. 2009)

. “Presentment” must be apparent from the record

. Gardner v. State , 306 S.W.3d 274, 305 (Tex. Crim. App. 2009)

. Prese ntment can be shown by such proof as the judge ’ s signature or notation on the motion or proposed order, or a do cket entry s howing pre sentment or setting a hearing date. Id

. Nothing in this record shows appellant ever presented his motion to the trial
court. See id . T h e only relevant docket entry shows th e motion was filed, but it does not show presentment. See Longoria v. S ta te , 154 S.W.3d 747, 762 (Tex. App.

— Houston [14th Dist.] 2004, pet. ref’d) ( “ Although the final entry on the
court ’ s docket sheet states ‘ Mo. for New Trial filed, ’ this notation is not sufficient to show presentment. ” )

. W ithout any showing that the trial co urt actually saw ap pellant ’ s motion for new trial, a trial court cannot be faulted for allowing a motion for new trial to be overruled by operation of law

. See Gardner , 306 S.W.3d14

at 305

. Because appellant did not show that he timely presented his moti o n for new trial to th e trial court , the trial court did not abuse i ts discretion in allowing the motion to be denied by operation of law or failing to conduct a hearing on the motion. S ee id. at 305

– 06 ; see also Longoria , 154 S.W.3d at 762

– 63 ( “ A trial co u rt cannot abuse its d iscretion by denying a motion for new trial by operation of law when the motion was not timely presented

. ” )

. We overrule appellant ’ s fourt h issue.
C onclusion
W e aff irm the judgment of the trial court.

/s/ Frances B ourliot Justice

Panel consists of Justices Wise, Bourliot, and Zimmerer. Do N ot P ublish

— T EX

. R. A PP

. P. 47.2( b).