Nicholas Edward Ayers v. State, 06-15-00157-CR

Appellant Nicholas Edward Ayers pled guilty in bench trials to two counts of indecency with a child; the court assessed concurrent 18-year sentences on August 27, 2015.
Evidence and punishment hearing occurred after guilty pleas; several witnesses (victim interview foundation, jail deputy, outcry witnesses) testified; appellant did not testify.
Appellant filed a letter to the court (CR 36) and multiple character letters (CR 67–89) the day before the punishment hearing; both parties agreed the court could review those filings.
The State referenced the appellant’s filed letter during punishment argument, characterizing it as testimony without cross-examination.
Appellant appealed, alleging (1) the State’s punishment argument relied on evidence outside the record (the letter) constituting reversible, fundamental error; and (2) trial counsel was ineffective for failing to object.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State’s punishment argument relied on evidence outside the record such that fundamental error requires reversal	Ayers: State argued from a letter not admitted into evidence; that argument was outside the record and reversible	State: Parties agreed the court would review the letter; bench court can disregard improper argument; Wilson (jury cases) is inapplicable; no fundamental error	State urges affirmance: no reversible error because the court reviewed the letter by agreement and is presumed to have disregarded any improper argument
Whether counsel was ineffective for failing to object to the State’s reference to the letter	Ayers: Failure to object was ineffective assistance at punishment	State: Counsel’s failure to object was reasonable strategy (letter was filed by appellant and available to court); no harm shown because bench court presumed to disregard any improper argument	State urges affirmance: counsel’s conduct was within reasonable strategy and appellant failed to show prejudice

Wilson v. State, 938 S.W.2d 57 (Tex. Crim. App. 2002) (discusses permissible jury argument categories)
Lopez v. State, 725 S.W.2d 487 (Tex. App.—Corpus Christi 1987) (presumption that judge disregards improper argument in bench trials)
Stone v. State, 751 S.W.2d 579 (Tex. App.—Houston [1st Dist.] 1988) (ineffective assistance requires showing both deficiency and harm)
Vaughn v. State, 888 S.W.2d 62 (Tex. App.—Houston [1st Dist.] 1994) (standard for evaluating counsel’s effectiveness at punishment)