Nicholas Edward Ayers v. State, 06-15-00156-CR

Appellant Nicholas Edward Ayers pled guilty in two bench trials to indecency with a child; the trial court assessed concurrent 18-year TDCJ sentences. Punishment evidence was heard August 27, 2015. Appellant timely appealed.
Prior to punishment, Appellant filed a letter to the court and character letters; both parties agreed the court would review those documents during punishment.
The State called seven witnesses (including CAC interview foundation witnesses and jail staff describing contraband); Appellant called one character witness and did not testify.
During punishment argument the State referenced Appellant’s filed letter; Appellant later complained the State’s argument relied on material not admitted into evidence.
Appellant also contended trial counsel was ineffective for failing to object to the State’s argument about the letter.

Issue	Appellant's Argument	State's Argument	Held
Whether the State’s punishment argument was outside the evidence and constituted fundamental error requiring reversal	State relied on Appellant’s letter not admitted into evidence, so argument was outside the record and was improper	Parties agreed the court would review the letter; bench trial judge is presumed to disregard any improper argument; Wilson (jury-argument case) is inapposite	No reversible fundamental error: because the parties had submitted the letter for the court’s review and this was a bench (not jury) proceeding, any purportedly improper argument did not require reversal
Whether counsel was ineffective for not objecting to the State’s argument about the letter	Failure to object to improper argument was ineffective assistance causing harm at punishment	Filing the letter was Appellant’s choice; counsel’s decision not to object can be strategic to avoid cross-examination of the letter; no harm shown because bench judge presumed to disregard any impropriety	No ineffective assistance: counsel’s conduct falls within reasonable strategy and Appellant failed to show resulting harm

Lopez v. State, 725 S.W.2d 487 (Tex. App. — Corpus Christi 1987) (presumption that trial court disregards improper argument)
Stone v. State, 751 S.W.2d 579 (Tex. App. — Houston [1st Dist.] 1988) (ineffective-assistance claim requires a showing of both deficient performance and harm)
Vaughn v. State, 888 S.W.2d 62 (Tex. App. — Houston [1st Dist.] 1994) (assessing appellate standards for effective assistance at punishment)
Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 1996) (discusses categories of proper jury argument; court stressed jury-specific standards)