In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-25-00255-CR
WARD RUSSELL MOORE, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR16706
Before Sudderth, C.J.; Wallach and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
A jury convicted Appellant Ward Russell Moore of two first-degree felony
counts of possession of child pornography and one first-degree felony count of
continuous sexual abuse of a young child. See Tex. Penal Code §§ 21.02(b), 43.26.
For each offense, the jury assessed Moore a life sentence. See id. §§ 21.02(h), 43.26(d),
(d-1). At the State’s request, the three sentences were applied consecutively. See id.
§ 3.03. Moore now appeals, arguing in a single issue that his trial counsel was
ineffective. We will affirm.
I. BACKGROUND
A. Offense
In April 2024, Abby, Betty, and Claire1—three girls who were younger than
fourteen years of age—reported to their school counselor that Moore had touched
Abby’s and Betty’s vaginas over their clothes and that he had penetrated Claire’s
vagina with his fingers while taking pictures with his phone, each while the girl stayed
at his house as his daughter’s guest.2 The school counselor relayed the report to
Robert Bradshaw, an investigator for the Hood County District Attorney’s Office,
who requested that the girls be interviewed by a forensic examiner and that Claire
To protect the underage victims’ identities, we use pseudonyms to refer to
1
them. See Tex. R. App. P. 9.10(a)(3).
2
Abby alleged that Moore had touched her on December 31, 2020; Betty on June 1, 2023; and Claire on April 18, 2024.
2
receive a sexual-assault examination. Bren Ledbetter, a forensic nurse examiner at
Cook Children’s hospital, interviewed all three girls about the assaults, conducted a
sexual-assault examination on Claire, and took swabbed samples from Claire for DNA
analysis.
Josef Lopez, a DNA analyst with the Texas Department of Public Safety,
performed the analysis. Lopez analyzed the samples and determined that they
contained Claire’s DNA but did not contain DNA he could confidently trace to
Moore.
Moore was indicted for continuous sexual assault of a minor and three
lesser-included offenses of indecency with a child by contact.
While Moore was held pending trial, he assigned power of attorney to Sharon
Owens, a member of his family who worked at a law office. Moore gave Owens a
map of his home and asked her to go there to locate some USB drives and “get rid of
them” because, he told her, they contained pornographic material depicting Owens’s
adult niece. Owens did not immediately comply with his request.
Soon after, though, Owens and her former sister-in-law Mickie Matlock went
to Moore’s home to look for salable items to pay property taxes Moore owed on the
home. They found the two USB drives in a plastic bag, hidden in the room where
Moore had said the pornographic material would be.
Owens and Matlock took the USB drives to the law office to see what was on
them. On the USB drives, they found three videos depicting an adult man sexually
3
assaulting a prepubescent girl. Owens contacted Bradshaw and gave him the USB
drives. Bradshaw reviewed the drives and cataloged their contents. Thereafter, the
State indicted Moore for one count of possession of child pornography for each video
file—three in total.
Bradshaw and another investigator interviewed Moore about Moore’s alleged
assaults against the three girls.3 When an investigator asked Moore whether he
inserted his fingers into Claire’s vagina, he replied, “[J]ust the top as far as I’m aware,”
and said that he had left his hand there for less than one minute. Moore claimed that
he had touched Claire’s vagina out of curiosity. He stated that he did nothing for
sexual gratification because, as a result of a burned nerve during back surgery, he had
very little feeling below his waist.
B. Trial by Jury
Moore’s case was tried to a jury. Trial proceeded on four counts in total: three
counts of possession of child pornography and one count of continuous sexual abuse
of a child younger than fourteen years of age.4 Moore pleaded not guilty to each
count.
The interview was recorded, and the video was played for the jury during trial.
3
The State abandoned the three lesser-included offenses of indecency with a
4
child by contact at the beginning of trial. Then, after the close of evidence, the State abandoned one of the three counts of possession of child pornography.
4
On the first day of trial, the State called seven witnesses: Abby, Betty,5 Claire,
Ledbetter, Owens,6 Matlock, and Bradshaw. Abby, Betty, and Claire testified about
Moore’s assaults. Ledbetter testified about her interviews with Abby, Betty, and
Claire and the sexual-assault examination she performed on Claire. Owens and
Matlock testified about finding the USB drives containing child pornography. And
Bradshaw testified about his initial investigation of Abby, Betty, and Claire’s
allegations, his videotaped interview with Moore, and his receipt and cataloging of the
USB drives.
On the second day, the defense called three witnesses: Lopez; Jennifer Waugh,
a friend of Moore’s; and Moore himself. Lopez testified about his sample analysis and
his conclusions. Waugh testified that she had been Moore’s friend since 2009, that
she had been his coworker in a haunted house business, and that, had she known of
the USB drives, she would have turned them over to the police exactly as Owens had
done.
Moore testified that while Claire was sleeping in a room by herself, he observed
that she was uncovered and that her shorts were inappropriately short, so he “had to
While cross-examining Betty, trial counsel twice confused the names of one of
5
the three victims with that of Moore’s daughter. Betty clarified the correct name each time.
Before beginning her cross examination of Owens, trial counsel introduced
6
herself, saying, “I represent Russel Owens -- I’m sorry -- Russel Moore here today.” There was no indication that trial counsel misunderstood which party she represented.
5
reach over and grab the shorts and kind of pull over” because he “could not get [at]
the blanket” that was underneath her. He stated that he took pictures of the process
because he needed to protect himself from being “messed with” by Claire, and he
implied that she had made sexual advances toward him, which had troubled him.7
Moore said he did not inappropriately touch any of the three girls, but that if he had
accidentally touched them, it would have been while covering them up, which he said
he had done to each.
Moore also insisted he had lied in the videotaped interview with Bradshaw
about touching Claire because he had thought the officers had told him he would
receive probation and be released from jail if he admitted to the offense. He also said
that he knew the USB drives contained child pornography when he asked Owens to
“get rid” of them and that he had lied to Owens about their contents, but he claimed
he had downloaded the material because he thought it included his home address and
images of his daughter and that he wanted to “get rid of this stuff” and “want[ed] this
stuff off the internet.”
Near the end of his testimony, the following exchange occurred regarding his
taking photographs of Claire:
Q: . . . So the only adult in the house when you were doing these
things, covering these girls up --A: Was me.
The State introduced three photographs Moore had taken of Claire.
7
6
Q: -- was you. So who were you protecting the girls from?
A: Just protecting their modesty in general, sir.
Q: By taking pictures of their vagina? [sic]
A: It was not the best idea, but I was just thinking, hey, if anybody
ever did say anything, I’m -- I’m covered. I’m -- I would think
that those pictures would cover me, sir.
Q: Does that make any sense to you, Mr. Moore, that if you --A: Not a whole lot in life makes sense to me, sir, but looking back on
it, no, it was not the best choice.
The jury found Moore guilty of both remaining counts of possession of child
pornography and of continuous sexual abuse of a child.
During the punishment phase of the trial, the State called no witnesses and
Moore testified again. Moore testified that he did not call the police because he was
“an idiot” and was “afraid that more of this would get out and the girls would be
embarrassed.” Asked about photographing Claire, Moore said that he had
photographed all three girls and that the photographs of Abby and Betty were of the
same character as those of Claire. Moore also reiterated his concerns that the girls
had been making sexual advances toward him.
The jury assessed his punishment at imprisonment for life for each offense—
which the trial court assessed consecutively—with no fine. See Tex. Penal Code
§§ 3.03, 12.32, 21.02, 43.26.
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C. Post-Trial Motions
After he was convicted, Moore filed a motion for new trial, arguing that the
judgment and sentence were contrary to the law and evidence. See Tex. R. App. P.
21.3. After holding a hearing,8 the trial court denied the motion.
The same day, Moore filed a motion to reconsider the motion for new trial,
alleging discovery of new evidence indicating ineffective assistance of counsel. The
trial court held a hearing on the motion to reconsider.
Moore called only himself as a witness. Moore testified that his trial counsel,
Pamela Walker, fell asleep “on numerous occasions.” He said that he saw her close
her eyes, tilt her head down, and that she did not respond when he called her name.
He said this happened eight to twelve times. However, Moore said he was able to
communicate with trial counsel during the trial and that, at one point, the court
admonished him for speaking too loudly. After testifying, Moore rested.
The State called Walker to testify. She said she worked with Moore for
eighteen months to prepare for trial. She said that she did not fall asleep during trial
and that she paid attention to and cross-examined witnesses, but she may have closed
her eyes from time to time as she listened. She said that she was able to communicate
8
At the hearing on the motion, no witnesses testified and neither party offered any exhibits. Moore asked the court to take judicial notice of the proceedings in the case which the trial court did.
8
with Moore, except when doing so would have distracted her attention from witness
testimony. Moore declined to cross-examine her.
After the hearing, the trial court denied the motion to reconsider.
II. DISCUSSION
In his sole appellate issue, Moore contends that his trial counsel’s performance
was so deficient that it prejudiced his defense, denying him his rights to the effective
assistance of counsel and a fair trial. We disagree.
A. Applicable Law and Standard of Review
The Sixth Amendment guarantees a criminal defendant the effective assistance
of counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. Const.
amend. VI. To establish ineffective assistance, an appellant must prove by a
preponderance of the evidence both that his counsel’s representation was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 2064 (1984); Prine v. State, 537 S.W.3d 113, 116 (Tex. Crim. App.
2017); see Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). We need
not address both parts of the Strickland test if the appellant makes an insufficient
showing of one component. Strickland, 466 U.S. at 697, 104 S. Ct. at 2069.
An appellant claiming ineffective assistance of counsel at trial must identify
counsel’s allegedly erroneous acts and omissions. Id. at 690, 104 S. Ct. at 2066; Cooper
v. State, 333 S.W.3d 859, 867 (Tex. App.—Fort Worth 2010, pet. ref’d). The appellate
court then determines whether, in light of all the circumstances, these identified acts
9
or omissions were outside the wide range of what constitutes competent assistance.
Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Cooper, 333 S.W.3d at 867.
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all of the
circumstances and prevailing professional norms at the time of the alleged error. See
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava v. State, 415 S.W.3d 289, 307
(Tex. Crim. App. 2013); Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App.
1999). An attorney’s isolated acts or omissions generally do not constitute deficient
performance. See, e.g., Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
However, an egregious error may satisfy both parts of the Strickland test on its own.
Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). Our review of counsel’s
representation is highly deferential, and we indulge a strong presumption that
counsel’s conduct was not deficient. Nava, 415 S.W.3d at 307–08.
Furthermore, the record must affirmatively demonstrate that the
ineffective-assistance claim has merit. Thompson, 9 S.W.3d at 813. An appellate court
may not infer ineffective assistance simply from an unclear record or a record that
does not show why counsel failed to do something. Menefield v. State, 363 S.W.3d 591,
593 (Tex. Crim. App. 2012); Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App.
2007). Trial counsel “should ordinarily be afforded an opportunity to explain his
actions before being denounced as ineffective.” Menefield, 363 S.W.3d at 593. We
10
should not conclude that counsel performed deficiently unless the challenged conduct
was “so outrageous that no competent attorney would have engaged in it.” Nava,
415 S.W.3d at 308. Direct appeal is usually inadequate for raising an
ineffective-assistance claim because the record generally does not show counsel’s
reasons for any alleged deficient performance. See Menefield, 363 S.W.3d at 592–93;
Thompson, 9 S.W.3d at 813–14.
Strickland’s prejudice prong requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial—that is, a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant
must show a reasonable probability that the proceeding would have turned out
differently without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava,
415 S.W.3d at 308. A “reasonable probability” is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava,
415 S.W.3d at 308. We must ultimately focus on examining the fundamental fairness
of the proceeding in which the result is being challenged. Strickland, 466 U.S. at 696,
104 S. Ct. at 2069. “[A] verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with overwhelming record
support.” Id., 104 S. Ct. at 2069.
B. Analysis
Moore argues that his trial counsel was deficient because she failed to require
conferences at the bench be recorded by the court reporter, and, during her closing
11
arguments, spoke ill of Moore and said she believed his victims. He also complains
that trial counsel confused the names of Moore’s victims and daughter and that she
once referred to Moore by an incorrect name.
1. Failure to Require Bench Conferences be Recorded
During the trial of this case, the record shows six bench conferences that were
“off the record” and three that were “on the record.” Of the six “off the record”
bench conferences, one was “inaudible.” Moore argues that trial counsel’s failure to
object and to require a record be made of each and every bench conference requires
us to speculate that had such objections been made, the outcome of the proceedings
would have been different. However, this is contrary to the law.9 We must instead
begin by presuming that counsel’s actions fell within the range of acceptable and
professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
Moore must show how the record affirmatively demonstrates the alleged
ineffectiveness. Thompson, 9 S.W.3d at 813–14. His failure to do so is fatal to this
argument. See Howard v. State, 239 S.W.3d 359, 367 (Tex. App.—San Antonio 2007,
pet. ref’d) (declining to find counsel’s performance deficient when record was silent as
to what happened at unrecorded bench conferences).
9
Moore claims his trial counsel was ineffective for failing to enforce her own pretrial motion that all bench conferences be recorded, but he concedes that “counsel’s failure to enforce pretrial motions does not constitute deficient performance.”
12
Further, at the hearing on the motion for rehearing, Moore declined to ask trial
counsel any questions about her trial strategy or lack thereof in having off-the-record
bench conferences or about the topics of the unrecorded bench conferences. Where
the record merely fails to show counsel’s strategy, we cannot conclude that counsel’s
performance was deficient. See Jackson v. State, 877 S.W.2d 768, 771–72 (Tex. Crim.
App. 1994); Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.]
2006, pet. ref’d) (holding that because appellant did not call trial counsel to explain
trial strategy, record does not support ineffective assistance claim).
Moore has not satisfied Strickland’s deficient performance prong under this
theory.
2. Closing Arguments
Moore argues that trial counsel’s closing arguments were prejudicial to him. He
argues that she called him “kind of stupid,” that she was “appalled” when she met
him, and that she characterized the videos Moore admitted to downloading, depicting
an adult man sexually assaulting a prepubescent girl, as “sick, . . . sad, and . . . creepy.”
Moore argues that trial counsel’s closing argument fell below the acceptable
professional standard.
However, mentioning negative details of a client’s character and sympathizing
with the jury is “precisely the sort of calculated risk that lies at the heart of an
advocate’s discretion.” Martin v. State, 265 S.W.3d 435, 446 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (citing Yarborough v. Gentry, 540 U.S. 1, 9, 124 S. Ct. 1, 6 (2003),
13
noting Yarbrough’s counsel referred to him as “a bad person, lousy drug addict,
stinking thief, [and a] jail bird”). Use of a “rhetorical device that personalizes the
doubts that anyone might have,” given the evidence presented, is a common
technique to win over an audience by empathy. Id. at 447. Because we cannot
conclude that the comments, in the larger context of trial counsel’s closing, were not
such a strategy, we cannot conclude that Moore has satisfied Strickland’s deficient
performance prong under this theory. See id.; see also Brown v. State, 866 S.W.2d 675,
681 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (holding that where counsel
referred to defendant as a “dope head” and conceded that defendant had helped
another “dope head” obtain drugs was not sufficient to show deficient performance
under Strickland).
3. Prejudice
But even were we to presume that Moore’s trial counsel acted unreasonably in
her presentation of the case, Moore cannot satisfy his burden to show a reasonable
probability that the proceeding would have turned out differently without the
deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Nava,
415 S.W.3d at 308.
The record contains substantial evidence of Moore’s guilt. Moore’s three
victims testified about Moore’s assaults. Owens testified that Moore described where
the USB drives containing child pornography would be. She described their contents.
And Moore himself testified to having downloaded the pornographic videos, to
14
having touched Claire and taken photographs of her vagina, and to the possibility that
he touched Abby and Betty. The jury saw the videotaped interview in which Moore
admitted to assaulting Claire, the photographs Moore took of Claire, and the three
videos depicting an adult man sexually assaulting a child that Moore admitted to
having downloaded. Given the substantial evidence of Moore’s guilt, we conclude
that he has failed to show that the outcome of his trial probably would have been
different but for his trial counsel’s purportedly deficient performance. See Alaniz v.
State, No. 05-24-00436-CR, 2025 WL 3163318, at *3 (Tex. App.—Dallas Nov. 12,
2025, no pet.) (mem. op., not designated for publication) (holding defendant’s own
uncorroborated testimony insufficient alone to show prejudice under Strickland);
Stoneham v. State, No. 01-21-00462-CR, 2023 WL 3311466, at *6 (Tex. App.—Houston
[1st Dist.] May 9, 2023, pet. ref’d) (mem. op. not designated for publication) (holding
that, where defendant’s own testimony—considered in isolation—would be sufficient
to convict, defendant failed to demonstrate prejudice under Strickland); Hunter v. State,
State, No. 01-14-00895-CR, 2016 WL 921475, at *5–6 (Tex. App.—Houston [1st
Dist.] Mar. 10, 2016, no pet.) (mem. op. not designated for publication) (holding that
defendant’s uncorroborated testimony at motion for new trial hearing was insufficient
alone to show prejudice); Naranjo v. State, No. 14-99-01227-CR, 2001 WL 931380,
at *10 (Tex. App.—Houston [14th Dist.] Aug. 16, 2001, pet. ref’d) (mem. op. not
designated for publication) (holding that, even where trial counsel’s argument was
“aimless, incoherent, devoid of substance and without any apparent purpose,”
15
defendant failed to show prejudice under Strickland in the face of overwhelming
evidence); Brown, 866 S.W.2d at 681.
In light of the foregoing, we conclude that Moore has failed to satisfy
Strickland’s prejudice prong. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
However, Moore argues that he need make no showing of prejudice because he
alleges trial counsel fell asleep, along with other deficiencies; he asserts that an
allegation that counsel slept and made errors rather entitles him to a presumption that
his defense was prejudiced. For this proposition, Moore relies on a federal case,
Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001).
However, Burdine does not stand for the proposition as Moore articulates it,
and the Texas Court of Criminal Appeals has not adopted the presumption in that
form. See Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. Crim. App. 2005). Prejudice
may be presumed when an attorney is “mentally absent,” as epitomized by the “inert”
or “potted plant” lawyer who, “although physically and mentally present in the
courtroom, fails to provide (or is prevented from providing) any meaningful
assistance.” Id. (first citing Burdine, 262 F.3d at 341; and then citing Gochicoa v. Johnson,
238 F.3d 278, 284–85 (5th Cir. 2000)). However, a defendant whose attorney is
alleged to have slept during trial must still make a showing that his counsel was
“mentally absent.” See id.; Moore v. State, 227 S.W.3d 421, 424 (Tex. App.—Texarkana
2007, pet. ref’d) (holding defendant was not prejudiced though trial court, on the
record, woke sleeping counsel who nevertheless otherwise participated in examination
16
and cross-examination of the witnesses); see also Goodspeed v. State, 187 S.W.3d 390,
393–94 (Tex. Crim. App. 2005) (holding that even failure to ask any questions during
an entire phase of the trial was insufficient to give presumption of prejudice under
Strickland analysis). Moore, relying upon the presumption, makes no showing of any
prejudice caused by his counsel’s alleged sleeping. Conversely, the record—and
Moore’s issue—reflects that trial counsel participated in each phase of the trial,
questioned witnesses, and made arguments based upon the evidence. Moore has
failed to show that he is entitled to a presumption of prejudice. See McFarland,
163 S.W.3d at 752.
Having failed to satisfy Strickland’s prejudice prong or to show himself entitled
to a presumption that would excuse such a showing, we overrule Moore’s sole issue.
III. CONCLUSION
Having overruled Moore’s sole issue, we affirm the trial court’s judgment.
/s/ Brian Walker
Brian Walker
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 27, 2026
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