THE STATE OF TEXAS v. RYAN PHILIP RIBBECK (2026)

OPINION

The State appeals the trial court's order granting a new trial to appellee Ryan Philip Ribbeck following his conviction for sexual assault of a child under the age of seventeen. See Tex. Penal Code § 22.011(a)(2). The trial court granted a new trial on grounds that appellee was denied his constitutional right to testify and in the “interest of justice.” The State argues that the court lacked authority to grant a new trial for the stated reasons because appellee did not assert them in his motion for new trial or they are not legally valid grounds in this case.

We conclude the trial court erred in granting a new trial. For the reasons explained below, we hold that one of the grounds on which the trial court relied was not presented in appellee's motion for new trial and that the order is not otherwise supportable on the grounds appellee asserted in the motion.

We reverse the trial court's order and remand with instructions to reinstate the judgment of conviction and sentence.

Background

A grand jury indicted appellee for sexual assault of a child under the age of seventeen (the “complainant” or “M.W.”). See Tex. Penal Code § 22.011(a)(2).

At trial, the complainant testified that he met appellee when he was eleven or twelve years old; appellee was “probably 27, at least.” Appellee was a cousin of one of the complainant's friends. The complainant struggled in school, lived with his father, and had a difficult relationship with his mother, who abused drugs. Appellee was a supportive and guiding influence, and the complainant spent a lot of time with him.

The complainant described an incident, when he was fourteen years old, at appellee's apartment. Appellee asked the complainant to “sit on top of him while he was undressed on his bed.” The complainant felt appellee penetrate his anus with appellee's penis, and he “got up because it hurt.” The complainant did not report the abuse to anyone at that time, and he continued to “hang out” with appellee after that incident.

The complainant admitted that his mother confronted appellee about her suspicions of an inappropriate relationship. In response, appellee asked the complainant to sign an affidavit “so that this stuff does not come back and bite me in the ass.” The complainant “was confused” and “did not know what an affidavit was,” but he signed an affidavit stating that appellee was his friend and “there has never been any improper conduct, touching or advances made by [appellee].” The complainant's father signed a similar affidavit.

The defense's trial theory was that the complainant fabricated the allegations. According to the defense, the complainant was “a problem child ․ [who] had a problem with authority ․ [and] was not assaulted by anyone.” Defense counsel pointed out that the alleged assault “happened before he signed his affidavit,” meaning, if the allegations in the indictment were true, the complainant lied in his affidavit. The defense also elicited testimony from the complainant's father, who praised appellee's influence on his son and denied ever seeing anything inappropriate between the two.

The complainant was the State's final witness. After the State rested, appellee rested without testifying or presenting any evidence. The jury found appellee guilty as charged in the indictment. The trial court sentenced him to four years' confinement.

Appellee filed a timely motion for new trial, arguing that his trial counsel was ineffective by depriving him of his constitutional right to testify in his defense. He also sought a new trial in the “interest of justice.” In support of the motion, appellee attached his own affidavit, as well as affidavits from his trial counsel and his parents. According to defense counsel, he implemented a trial strategy, in consultation with appellee, that enabled the defense to exclude from evidence twenty-one of twenty-two extraneous sexual offenses and grooming acts related to the complainant. During trial preparation, counsel explained to appellee that testifying in his own defense would risk opening the door to the admission of these extraneous acts, and appellee decided that he would not testify. Based on appellee's decision to not testify, counsel stated that he did not further consult with appellee after the State rested but instead rested the defense's case without asking if appellee wanted to testify.

For his part, appellee averred in his affidavit that he told counsel throughout the trial that he was ready and willing to testify. After the State rested, the court recessed for lunch. During the break and after hearing the complainant's testimony, appellee felt certain that the jury needed to hear from him that he did not sexually assault the complainant. But appellee learned from his counsel that he had already rested without giving appellee the opportunity to testify and without asking him if he wanted to. Appellee said he did not consent to resting without testifying.

At the hearing on the motion for new trial, both trial counsel and appellee testified consistently with their affidavits. Additionally, trial counsel confirmed that before trial, appellee knowingly and voluntarily told him that he did not want to testify. The first time counsel learned otherwise was after the State rested. But when appellee raised the subject of testifying after the lunch break, counsel told him, “that ship had already sailed because I had rested” and “we're not going to put on any testimony.” Counsel acknowledged that Rule 404(b) concerns about extraneous acts do not outweigh a defendant's right to testify if he so chooses.

Appellee acknowledged that he was informed about his right to testify before trial but denied telling his attorney that he did not want to testify. He said that he was not told that he had the right to make the ultimate decision on whether he would testify. Had his counsel told him that he had the final call on testifying, he would have testified before resting.

The trial court granted a new trial and later denied the State's motion to reconsider. The State appealed. See Tex. Code Crim. Proc. art. 44.01(a)(3). We abated the appeal for the trial court to sign written findings of fact and conclusions of law. The court found, in pertinent part:

I. Findings of Fact

․

2. On August 23, 2024, Defendant timely filed a motion for a new trial, which alleged that Defendant's trial counsel [ ] provided ineffective assistance of counsel and “in the interest of justice” citing the denial of his right to testify in his own defense.

3. On September 19, 2024, the Court held a hearing on the motion for new trial. During the hearing, the following three witnesses testified: [trial counsel], [appellee's mother], and Defendant.

4․ The Court finds the testimony of the witnesses and [trial counsel] credible.

5. Before trial, [trial counsel] advised Defendant of his right to testify at trial․ [Trial counsel] warned Defendant that if he testified at trial, his testimony would likely open the door to extraneous sexual acts between Defendant and M.W. Before trial, Defendant told [trial counsel] he did not want to testify at trial․

7. During trial, [trial counsel] filed a motion to exclude extraneous evidence pursuant to article 38.37 of the Code of Criminal Procedure. Specifically, [trial counsel] requested 22 alleged extraneous sexual acts between Defendant and M.W. be excluded. The Court granted [trial counsel's] motion in-part and excluded 21 out of the 22 extraneous sexual acts from being introduced during trial․

10. a. During trial, after the State rested its case-in-chief, [trial counsel] rested without calling any witnesses during the guilt-innocence phase of trial. [Trial counsel] rested without consulting with Defendant, relying on the previous discussions where Defendant had expressed to his attorney that he did not intend to testify․ Then, not understanding or knowing he could in fact re-open the case, he testified: “It was brought to my attention [after lunch] that ․ he wanted to run it by me. I told him the ship had already sailed because I had rested.” [emphasis in original]

11. [Trial counsel] rested without calling Defendant to the stand to testify because of Defendant's previous representation that he would not be testifying. [Trial counsel] did rest knowing that his client wanted to testify but stopped short of asking him to confirm that decision before resting. The Court then recessed for lunch. Defendant testified before lunch occurred it was his understanding that he could testify at trial. However, Defendant did not formulate the desire to testify until after lunch.

12. [Trial counsel] failed to ask this Court to re-open evidence so that the Defendant could testify. The Court certainly would have allowed him to do so, had he requested to do so or for time to consult before resting.

13. During the lunch break, Defendant discussed the idea of testifying with his parents. After the lunch break, Defendant told [trial counsel] he wanted to run “the idea of testifying” by [trial counsel]. [Trial counsel] had represented Defendant for over two years and this was the first time Defendant informed [trial counsel] of his desire to testify. [Trial counsel] informed Defendant it was too late because he had rested․

15.a. Defendant testified that if he had testified at trial he would have testified about the following: him [sic] background, his education, and what he does for a living. Defendant testified that he would've told the jury that the allegations were false․

15.b. Defendant testified that he was aware that if he testified, the state may have been allowed to offer evidence regarding the excluded acts, wrongs or omissions excluded pursuant to a pretrial ruling․

17. This case was a “he-said” sexual assault where the complainant's testimony was a critical part of the State's case against Defendant.

18 Defendant would have “absolutely” denied the allegations and explained why they were false.

II. Conclusions of Law

This Court grants this motion for new trial for the following reasons:

(1) In the interest of justice and

(2) Denial of the defendant's Sixth Amendment right to testify based on the following conclusions of law:

1. A defendant has a right to testify at his own trial, and it is a fundamental constitutional right. Only the defendant can waive this right. In this case, defense counsel in guilt-innocence: Defendant was denied his right to testify under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and article I, Section 10 of the Texas Constitution.

(a) rested immediately after the close of the State's evidence,

(b) never conferred with Defendant before resting on whether he wanted to testify,

(c) went to lunch immediately afterwards and returned, at which point Defendant stated to defense counsel that he had wanted to testify in his own defense, AND

(d) never asked to re-open the case (in fact, defense counsel told the defendant incorrectly that it was too late, when in actuality a party can ask to re-open the case, after resting, any time before summation)․

3. The Court concludes that [trial counsel] did inform Defendant Ribbeck of his right to testify. However, the failure to confirm before resting or at the very least, asking the Court to reopen testimony effectively den[ied] Mr. Ribbeck the fundamental “right to be heard” as guaranteed in the sixth and fourteenth amendments. Notwithstanding that error, [trial counsel's] failure to consult with Defendant before resting does not rise to the level of ineffective assistance․

5. The Court finds that [trial counsel] provided effective assistance. However, the failure to request to re-open the case effectively violated the Defendant's rights under the sixth and fourteenth amendments of the United State's [sic] and Texas Constitutions.

6. However, the Court grants the motion for new trial based on the legal conclusion that Mr. Ribbeck expressed a desire to testify to his attorney during the trial, before closing arguments and was denied the opportunity by an omission by his attorney and that denial affected Defendant's right to a fair trial and is in the interest of justice.

After receiving the findings and conclusions, we reinstated the appeal.

Standard of Review

We review a trial court's ruling on a motion for new trial for an abuse of discretion. State v. Herndon, 215 S.W.3d 901, 906-07 (Tex. Crim. App. 2007). The court abuses its discretion only if its ruling was clearly erroneous and arbitrary, such as when no reasonable view of the record supports it. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). The Court of Criminal Appeals has clarified that a court may not grant a new trial unless the motion asserts a valid legal reason. State v. Thomas, 428 S.W.3d 99, 104-05 (Tex. Crim. App. 2014); Herndon, 215 S.W.3d at 907-08. That is, a court generally does not abuse its discretion in granting a new trial if the defendant (1) articulated a valid legal claim in the motion, (2) produced evidence or pointed to record evidence that substantiated his claim, and (3) showed prejudice under applicable harmless error standards. State v. Arizmendi, 519 S.W.3d 143, 148 (Tex. Crim. App. 2017). A judge may not grant a new trial on mere sympathy, an inarticulate hunch, or simply because she believes the defendant received a raw deal or is innocent. Herndon, 215 S.W.3d at 907. To grant a new trial “for a non-legal or legally invalid reason” is an abuse of discretion. Thomas, 428 S.W.3d at 104; Herndon, 215 S.W.3d at 907.

As factfinder, the trial court is the sole judge of witness credibility on a motion for new trial with respect to affidavits and live testimony. See Dixon v. State, 595 S.W.3d 216, 224 n.24 (Tex. Crim. App. 2020); Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013). Thus, we afford almost total deference to a trial court's determination of the historical facts and of mixed questions of law and fact that turn on the credibility and demeanor of witnesses. See Okonkwo, 398 S.W.3d at 694; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We apply this same deferential review to a trial court's determination of historical facts based solely on affidavits, regardless whether the affidavits are controverted. See Okonkwo, 398 S.W.3d at 694. However, a reviewing court is not bound by the trial court's legal conclusions. See Guzman, 955 S.W.2d at 89.

Analysis

A. Is the order sustainable on grounds presented to the trial court?

The State argues in its first issue that the trial court granted a new trial on grounds not asserted in the motion for new trial. Generally, a trial court may grant a new trial only on valid legal grounds timely pleaded in the defendant's motion for new trial. See State v. Zalman, 400 S.W.3d 590, 595 (Tex. Crim. App. 2013). The State posits that the only legal ground presented in the motion was ineffective assistance of counsel, and because the trial court did not grant a new trial based on that ground (because it found counsel effective), the new trial order is unsupportable. Appellee contends that his motion for new trial included more than just an ineffective assistance of counsel claim. According to appellee, he also asserted the violation of his fundamental right to testify as an alternate and separate “stand alone” basis for new trial, and it was permissible for the trial court to grant a new trial based on that violation in the interest of justice even though the court did not find trial counsel ineffective.

The State's first issue is based on the proposition that defense counsel's deprivation of a client's right to testify may be presented only as an ineffective assistance of counsel claim, which requires the defendant to show that counsel's deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668 (1984). Texas state and federal courts have historically held as much. See, e.g., Johnson v. State, 169 S.W.3d 223, 225, 236-240 (Tex. Crim. App. 2005); see also United States v. Mullins, 315 F.3d 449 (5th Cir. 2002), cert. denied, 541 U.S. 1031 (2004). The State's premise, however, may no longer be true after McCoy v. Louisiana, 584 U.S. 414, 421 (2018).

The Sixth Amendment guarantees to each criminal defendant “the Assistance of Counsel for his defence.” U.S. Const. amend VI; McCoy, 584 U.S. at 421. In McCoy, the Supreme Court reiterated that certain defense decisions are “reserved for the client,” including whether to plead guilty, to demand a jury, or to testify on one's behalf. McCoy, 584 U.S. at 422. The fundamental right at issue in McCoy was whether to assert innocence. Id. There, trial counsel violated the defendant's right to claim innocence by admitting guilt in a capital trial over the defendant's objection. Id. The court held that counsel must honor the client's objective of his defense and could not override it by conceding guilt. Id. at 423.

Turning to the question of harm, the McCoy court clarified that ineffective-assistance-of-counsel jurisprudence does not apply when the issue is a “client's autonomy, not counsel's competence,” id. at 426, such as when counsel deprives the defendant of his right to decide whether to maintain innocence. The violation of McCoy's Sixth Amendment autonomy right “was complete” when counsel “usurp[ed] control of an issue within McCoy's sole prerogative.” Id. at 426-27. The violation of this type of autonomy right, moreover, constitutes “structural” error, which when raised at trial and on direct appeal compels “ ‘automatic reversal’ regardless of the error's actual ‘effect on the outcome.’ ” Weaver v. Massachusetts, 582 U.S. 286, 299 (2017) (quoting Neder v. United States, 527 U.S. 1, 7 (1999)); see McCoy, 584 U.S. at 427. When a defendant's Sixth Amendment autonomy right is violated, courts are to presume prejudice on appeal from a conviction. See McCoy, 584 U.S. at 427; Weaver, 582 U.S. at 295 (structural error “def[ies] analysis by harmless error standards”). Because McCoy's right to decide whether to admit guilt was violated, the court held he was entitled to a new trial without the need to show prejudice. McCoy, 584 U.S. at 428. But the framework is different when the violation was not raised at trial; defendants in that case must show prejudice because failure to raise the issue at trial deprives the trial court “of the chance to cure the violation.” Weaver, 582 U.S. at 302.

Here, the trial court found that appellee was denied his Sixth Amendment right to testify because counsel failed to confirm before resting that appellee still did not want to testify and failed to request to reopen the evidence. For that reason, coupled with the “interest of justice,” the court granted a new trial. Clearly, the court did not rely on ineffective assistance grounds, as the court expressly found counsel provided effective representation. But the court cited no authority in its findings or conclusions holding that a new trial may be granted under these circumstances absent compliance with Strickland.¹ Because the court granted a new trial while finding neither deficient performance nor prejudice, we construe the findings and conclusions as an implicit application of McCoy's structural error framework to appellee's right to testify. Effectively, the court found that trial counsel “usurped control of an issue”—the right to testify—within appellee's “sole prerogative.” McCoy, 584 U.S. at 426-27. Although at no time did the parties or the trial court cite McCoy or discuss “structural error,” it is difficult to interpret the ruling as granting relief based on a legal claim other than a structural deprivation akin to McCoy.

Although McCoy plainly ranks a criminal defendant's right to testify among the category of rights “reserved to the client,” id. at 422, the parties have not briefed whether McCoy's structural error analysis applies to a deprivation of a defendant's Sixth Amendment right to testify. See Thompson v. State, No. 02-18-00230-CR, 2019 WL 1065925, at *5 (Tex. App.—Fort Worth Mar. 7, 2019, pet. ref'd) (“At this point, the court of criminal appeals has not applied the principles of McCoy to the right to testify in a noncapital case or in the procedural context of the instant case.”). But the outcome of this case does not depend on whether counsel's violation of appellee's right to testify qualifies as structural error because assuming that it does, appellee did not timely present that complaint in the motion for new trial, and thus the court erred in relying on it as a basis to grant a new trial. See id. at *5 (declining to decide whether the right to testify is a structural error under McCoy).

In determining whether a motion for new trial presents a valid legal claim, we judge the document by its plain language. “Straightforward communication in English will always suffice.” Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008). At bottom,

the standards of procedural default ․ are not to be implemented by splitting hairs in the appellate courts. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.

Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992); see Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005). Although the issue here is not “preservation” of error by appellee—because appellee is not the appealing party—reference to Rule 33.1 is instructive. Rule 33.1 provides that, to preserve error, a complaint must be “made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex. R. App. P. 33.1(a)(1)(A).

It is undisputed that appellee's motion presented a legal claim of ineffective assistance of counsel. The question is whether it also presented something more. Appellee directs us specifically to paragraphs 3 and 4 of his motion, where he correctly asserted that he had a fundamental right to testify at his trial.² We would not tend to read these paragraphs in isolation, but even if we did they did not articulate how the identified right was violated and why he was entitled to a new trial because of it. The rest of the motion spoke to that. In subsequent paragraphs, the motion asserted that counsel has the duty to inform the defendant that the ultimate decision whether to testify belongs to him. The motion then stated that trial counsel deprived appellee of his right to testify and that counsel's performance was deficient and amounted to ineffective assistance of counsel. Appellee then referenced attached affidavits in support of the motion. At the end, appellee asserted that the court has discretion to grant a new trial in the interest of justice.

Did appellee present a McCoy-type structural error argument with sufficient specificity in the motion? Even reading the motion liberally, we conclude he did not. The upshot of McCoy is that a defendant who is deprived by counsel of a Sixth Amendment autonomy right is entitled to a new trial without having to comply with Strickland's deficient performance and prejudice requirements. In his motion, appellee did not cite McCoy or any like case; he did not discuss or assert structural error; and he did not argue that he was entitled to a new trial regardless whether counsel was ineffective and even if he was effective. Although he identified the right he claimed was violated—his right to decide whether or not to testify in his defense—he did not contend that right was violated by means other than counsel's deficient performance. Nor did he assert that the deprivation of his autonomy right to testify was complete upon counsel's assumption of control over that issue.

The reporter's record from the hearing confirms this reading of the motion. Appellee's new counsel argued the motion solely as an ineffective assistance of counsel claim. Counsel discussed the relevant violation and attacked the entirety of trial counsel's performance in terms of ineffective assistance, explaining why he believed trial counsel performed deficiently and why appellee was prejudiced under Strickland. But appellee made no attempt to suggest that he was otherwise entitled to a new trial based on the deprivation of his right to testify regardless whether his counsel was ineffective. Nor was it apparent from the context ³ of counsel's argument that he was asserting an entitlement to a new trial based on a valid legal claim independent of ineffective assistance of counsel.

A McCoy-type claim is substantively different from an ineffective assistance of counsel claim because it does not depend on counsel's deficient performance or prejudice to the defendant. The facts elicited and discussed at the hearing may support both legal theories, but the two theories are not intertwined. Also, though appellee's failure to cite McCoy in his motion is not alone determinative of whether he presented a McCoy-type complaint, see Clarke, 270 S.W.3d at 582-83, he still must have presented the argument with sufficient specificity to have made the trial court aware that he was asserting such a position.

At the end of the hearing, the trial court emphatically found no ineffective assistance of counsel. The court granted a new trial nonetheless, stating that appellee had an absolute right to testify and did not waive it.⁴

Eleven days later, the State filed a motion for reconsideration, objecting that the court's reason for granting a new trial was not presented by appellee. The State asserted that appellee did not plead in his motion for new trial that he was denied his right to testify in any manner other than ineffective assistance of counsel. Further, the State argued that a new trial could not be ordered because the court had found no ineffective assistance.

The court held a hearing on the State's motion for reconsideration. It was at this hearing that appellee proposed for the first time an interpretation of his motion for new trial as asserting the violation of his right to testify as a “separate ground” for new trial independent of his ineffective assistance of counsel claim. This occurred after the State had objected to the grant of a new trial on any grounds other than ineffective assistance of counsel.⁵ In any event, appellee does not contend on appeal that he presented a McCoy-type issue at the motion for new trial hearing or at the motion for reconsideration hearing. He argues only that he presented such a complaint in the motion for new trial itself. As stated, we disagree.

Appellee did not assert his McCoy-type argument in the motion for new trial, and the State timely objected to granting a new trial on that basis. Therefore, the trial court should have considered appellee's argument that he was denied his right to testify within the ineffective assistance of counsel framework in which appellee presented it. See Harrison v. State, 595 S.W.3d 879, 885 n.5 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd) (addressing defendant's McCoy autonomy violation argument as part of ineffective assistance claim, as defendant presented it in motion for new trial). The trial court could not have granted a new trial on an unasserted McCoy error without finding deficient performance and prejudice. See id. at 884, 887; Martinez v. State, No. 13-18-00621-CR, 2020 WL 4381997, at *5 (Tex. App.—Corpus Christi–Edinburg July 30, 2020, pet. ref'd) (“Although McCoy provides a good example of structural error, it does not apply here. The trial court was not made aware that Martinez allegedly wished to testify during the guilt/innocence phase of the trial and counsel allegedly prevented him from doing so.”). The trial court abused its discretion in granting a new trial on a ground not presented in the motion for new trial without those findings. We sustain the State's first issue.

B. Did appellee assert any other legal claim that would support the order?

Nevertheless, we will uphold the trial court's order if any appropriate ground exists to support it, even if the trial court relied on erroneous reasoning. See Herndon, 215 S.W.3d at 905 n.4; State v. Provost, 205 S.W.3d 561, 566 (Tex. App.—Houston [14th Dist.] 2006, no pet.). In its second issue, the State argues that the trial court could not have properly granted a new trial on any grounds asserted in the motion for new trial.

In the motion, appellee argued that he was entitled to a new trial: (1) because he received ineffective assistance of counsel; and (2) in the interest of justice. We first address the ineffective assistance of counsel ground even though the trial court did not grant a new trial on that ground. See Provost, 205 S.W.3d at 566. Then we will address the “interest of justice” ground, on which the trial court relied in part in granting a new trial.

1. The trial court could not have properly granted a new trial on an ineffective assistance of counsel claim.

To prove that trial counsel provided ineffective assistance of counsel, a claimant must show by a preponderance of the evidence that (1) trial counsel's performance was deficient and (2) such deficiency prejudiced him, meaning that there is a reasonable probability that the result of the proceeding would have been different but for counsel's deficient performance. Strickland, 466 U.S. at 687; Ex parte Salinas, 664 S.W.3d 894, 909 (Tex. Crim. App. 2022). The failure to satisfy either prong of the Strickland test is fatal to an ineffective-assistance claim. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).

First, it must be established whether trial counsel's performance fell below an objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475,483 (Tex. Crim. App. 2006). There is a strong presumption that trial counsel's conduct falls within a wide range of reasonableness and constitutes a “sound trial strategy.” Strickland, 466 U.S. at 689; see Moore v. State, 584 S.W. 524, 530 (Tex. App.—Houston [14th Dist.] 2019, pet. ref'd). Trial counsel's performance may fall below an objective standard of reasonableness when no reasonable trial strategy would justify trial counsel's conduct, even when trial counsel's subjective reasoning is adequately reflected in the record. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

Under the second prong of the Strickland test, the movant establishes prejudice by showing that there is a reasonable probability, sufficient to undermine confidence in the outcome, that the result of the proceeding would have been different. Strickland, 466 U.S. at 687.

Assuming for argument's sake that counsel performed deficiently by both failing to confirm with appellee before resting that he still did not want to testify and failing to inform appellee that he could seek to reopen the evidence even after resting—questions we do not decide today—appellee failed to prove by a preponderance of the evidence that he suffered prejudice. While we defer to the trial court's determinations of underlying historical facts, we review the ultimate question of prejudice de novo. See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005).

In his brief, appellee argues that he was prejudiced by not testifying because: (1) the complainant's testimony was “powerful”; (2) the case was merely a “he-said” case based on the complainant's testimony when it could have been a he-said/he-said dispute if appellee had testified; (3) his attorney put on no evidence to challenge the complainant's credibility; and (4) the impact of extraneous offenses, had they been admitted once appellee testified, would have been minimal.

The record reveals the nature of the testimony appellee would have presented had he testified. For one, appellee said at the motion for new trial hearing that he would have told the jury about his personal “background,” specifically about his job and that he had no felony convictions, “to build up [his] credibility.” He also wanted to dispute the complainant's allegations directly during the guilt-innocence phase because “there were some things that ․ were outright lies.” He would have told the jury that the alleged sexual assault was “absolutely false” and “never occurred.” He also would have denied some ancillary accusations against him, such as that he threatened the complainant.

Regarding appellee's background, several of the State's witnesses testified on that subject. The jury heard that appellee was “really into computers” and worked in “IT” at a law firm, that appellee helped the complainant get a job as a clerk at that same law firm, and that appellee helped the complainant with school work and with learning how to drive. Thus, this type of evidence was before the jury.

Appellee's trial counsel also attacked the complainant's credibility and developed appellee's defensive theory through means other than appellee's testimony. During cross-examination, for example, counsel undermined the complainant's credibility by introducing the affidavits signed by the complainant and his father “denying that a sexual assault had occurred.” These were signed “at Defendant's direction and at Defendant's place of employment.” When asked at the motion for new trial hearing if “[t]he contents of the affidavit is what you would really want to tell the jury when you testified, that he was lying and that y'all's relationship was only one of mentorship,” appellee responded, “I would most certainly affirm that the contents of the affidavit were correct.”

Additionally, the complainant's father testified during the State's case-in-chief that he believed appellee was a “good influence” on the complainant; that he, the father, never saw “any inappropriate touching”; and that the complainant never told his father that he had been sexually assaulted.

We cannot say that a preponderance of the evidence would support a finding of prejudice under Strickland. The record does not substantiate appellee's contentions that the jury was lacking evidence of his version of events or that trial counsel failed to challenge the complainant's credibility. The complainant's father testified about appellee's role of mentor, and the jury saw an affidavit sworn by the complainant expressly denying any sexual assault. Closing arguments teed up the swearing match—the State said appellee sexually assaulted the complainant, and the defense denied the events ever happened. The trial court found that appellee acknowledged that his “not guilty” plea indicated to the jury he was rebutting the allegations, that the jury actually heard about his personal and professional background through the State's witnesses, and that the affidavits that were introduced in evidence during trial were the basis of his defensive theory.

Had appellee testified, he risked opening the door to twenty-one instances of extraneous offenses and acts (all involving the named complainant) that the trial court excluded before trial, including numerous sexual acts and a pattern of “grooming,” which spanned a three-year period of time while the complainant was in middle school and in high school.⁶ In its findings, the trial court suggested that the admission of the extraneous offenses may have advanced an alternative and reasonable defensive strategy by providing a basis to “impeach the complainant's credibility” because there was no corroborating evidence of the extraneous offenses, the complainant never reported the extraneous offenses at the time, and the complainant “continued having contact with Defendant and staying with him despite so many extraneous offenses.” These are certainly arguments the defense may have presented to the jury had the extraneous acts been admitted. But there exists an equally likely if not greater benefit to the State had the acts come into evidence. Although there was no corroborating evidence of any of the alleged acts, including the instant offense, the nature and particularity of the extraneous acts and the complainant's continued contact with appellee would reasonably tend to strengthen the State's theory of grooming rather than support the defensive theory of fabrication. At the same time the court suggested ways in which the defense could have attempted to use the extraneous acts evidence to appellee's benefit, it acknowledged nonetheless that their impact on the jury “may have been minimal.” The court recognized at the motion for new trial hearing that opening the door to the extraneous acts was unlikely to have given the jury “a different understanding of what happened or render a different verdict.”

On this record, we cannot find there is a reasonable probability that, but for counsel's challenged conduct, the result of the proceeding would have been different. Like courts before us, we conclude that appellee's testimony “ ‘might have persuaded’ ” the jury, but there is not “a reasonable probability that it would have done so.” See Johnson, 120 S.W.3d at 19 (quoting Mullins, 315 F.3d at 456); see also Weaver v. Massachusetts, 582 U.S. 286, 303 (2017) (finding no prejudice under Strickland's traditional test when it was only “possible that potential jurors might have behaved differently” or “the presence of the public might have had some bearing on juror reaction”).

Because the record would not support a finding of prejudice under Strickland, we hold that appellee did not establish his right to a new trial under a claim for ineffective assistance of counsel. Thus, we cannot affirm the order on this basis. We sustain this part of the State's second issue.

2. The trial could not have properly granted a new trial in the “interest of justice.”

In the remainder of its second issue, the State argues that the only other ground stated in the motion—the “interest of justice”—is not an independently valid reason for granting a new trial. We have determined that appellee's ineffective assistance of counsel claim would not support a new trial. Thus, we are left with deciding whether the “interest of justice” ground will support affirmance.

The “interest of justice” is not alone a permissible basis on which to grant a new criminal trial. See Thomas, 428 S.W.3d at 104-05; Arizmendi, 519 S.W.3d at 161 (Hervey, J., concurring) (stating that the interest of justice is “not a legal claim unto itself”). The defendant must show himself to be entitled to one under the law. See Thomas, 428 S.W.3d at 104-05; Herndon, 215 S.W.3d at 907. While a trial court has wide discretion in ruling on a motion for new trial which sets out a valid legal claim, it should exercise that discretion by balancing a defendant's “interest of justice” claim against both the interests of the public in finality and the harmless-error standards. Herndon, 215 S.W.3d at 908 (citing Tex. R. App. P. 44.2). Trial courts should not grant a new trial if the defendant's substantial rights were not affected. Id. Because the only potentially valid legal claim for a new trial asserted in appellee's motion for new trial was ineffective assistance of counsel, and because the record will not support a new trial on that legal ground, the trial court's order is not supportable solely in the “interest of justice.”

We sustain this part of the State's second issue.

Conclusion

The trial court abused its discretion by granting appellee's motion for new trial based on a McCoy-type ground not raised in the motion. Moreover, applying a deferential standard of review, we conclude that granting a new trial based on the ineffective assistance of counsel ground raised in the motion would have been an abuse of discretion. For this reason, we also cannot affirm the order on “interest of justice” grounds. Accordingly, we reverse the order granting a new trial and remand the cause the trial court with instructions to reinstate the judgment of conviction and sentence.

FOOTNOTES

1.   During the hearing on the State's motion for reconsideration, the court remarked that it had relied on Mullins, which stated that counsel may not override the defendant's decision to testify. Mullins, 315 F.3d at 453. Even so, Mullins applied Strickland. Id. at 452, 455-56.

2.   Appellee cited Rock v. Arkansas, 483 U.S. 44 (1987).

3.   See Tex. R. App. P. 33.1(a)(1)(A).

4.   After we abated the appeal at the State's request, the trial court signed written findings and conclusions, which included the reasons for the trial court's ruling. These findings and conclusions control over the court's oral announcement at the hearing. Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (“[T]he written findings of the court control over an oral announcement.”); Eubanks v. State, 599 S.W.2d 815, 817 (Tex. Crim. App. 1980).

5.   The hearing occurred well after the thirty-day deadline for filing a motion for new trial. A motion for new trial must be filed within thirty days after sentence is imposed or suspended in open court. State v. Arizmendi, 519 S.W.3d 143, 150 (Tex. Crim. App. 2017). A valid legal claim presented in an untimely motion for new trial or at a new trial hearing may support a new trial if the State does not object and the court retains authority over the case. See id.; Clarke, 270 S.W.3d at 581; State v. Moore, 225 S.W.3d 556, 570 (Tex. Crim. App. 2007) (permitting trial court to consider merit of untimely motion for new trial amendment if the State does not object).

6.   The trial court made the following finding:Specifically, the Court excluded the following extraneous acts: Grooming acts, the buying and using of a sex toy with M.W., indecency with a child by touching M.W.'s anus and M.W.'s sexual organ, indecency with a child by causing M.W. to touch Defendant's anus and sexual organ, indecency with a child by Defendant exposing his anus and sexual organ, sexual assault of a child under 17 years of age when Defendant penetrated M.W.'s anus with Defendant's sexual organ, sex assault of a child under 17 years of age when Defendant made M.W.['s] sexual organ penetrate Defendant's anus, sexual assault of a child under 17 years of age by causing M.W.['s] mouth [to] contact Defendant's sexual organ, sexual assault of a child under 17 years of age by Defendant's mouth contacting M.W.'s sexual organ, and Defendant providing M.W., a minor, [with] alcohol.

Kevin Jewell Justice