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

Appellant Nicholas Edward Ayers pleaded guilty in two bench trials to indecency with a child; the court imposed concurrent 18-year TDCJ sentences on August 27, 2015.
Evidence included Child Advocacy Center interview DVDs and testimony from witnesses about the outcry; appellant did not testify and presented one character witness.
During punishment argument, the State referred to a letter Ayers had filed with the clerk (not admitted into evidence) and made statements about Ayers’ addiction to pornography, lack of remorse, and references to the prosecutor’s family.
No objection was made at trial to the State’s punishment argument.
The letter referenced by the prosecutor appears in the clerk’s record (CR36) but was not admitted at the punishment hearing.
Appellant timely appealed and raised two issues: (1) the State’s punishment argument was outside the evidence and constituted fundamental error; and (2) trial counsel was ineffective for failing to object to that argument.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the State’s punishment argument outside the evidence and fundamental error?	Ayers: Prosecutor repeatedly relied on a non‑admitted letter and asserted facts (pornography addiction, lack of remorse, references to prosecutor’s mother) not in evidence; argument was prejudicial and requires reversal.	State: (Not detailed in brief) No contemporaneous objection was made; State would likely argue argument was permissible or harmless.	N/A — brief requests reversal and remand for new punishment hearing (appellate decision not included in this brief).
Did Ayers receive effective assistance of counsel when counsel failed to object to the alleged improper argument?	Ayers: No plausible trial strategy justified failing to object; counsel’s omission was unreasonable and prejudiced punishment outcome.	State: (Not detailed in brief) Likely argues failure to object preserved no error or that any error was not egregious; brief does not present State’s response.	N/A — raised as appellate claim; outcome not in this brief.

Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App.) (improper argument and limits on prosecutorial conduct)
Vaughn v. State, 888 S.W.2d 62 (Tex. App.) (discusses counsel’s failure to object and prejudice)
Johnson v. State, 233 S.W.3d 109 (Tex. App.) (standard for assessing prejudice from improper argument)
Peak v. State, 57 S.W.3d 14 (Tex. App.) (prosecutorial argument outside the record may warrant reversal)
Washington v. State, 16 S.W.3d 70 (Tex. App.) (addressing limits on argument and reversible error)