Christobal Garcia v. State

• Court: Court of Appeals of Texas
• Decided: February 21, 2008
• Docket: 13-07-00162-CR
• Status: Published

Opinion

NUMBERS 13-07-162-CR and 13-07-163-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CHRISTOBAL GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 214th District Court

of Nueces County, Texas

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Vela

Memorandum Opinion by Justice Vela

A jury convicted appellant, Christobal Garcia, of evading arrest or detention with a vehicle ⁽¹⁾ (Cause No. 13-07-162-CR) and deadly conduct ⁽²⁾ (Cause No. 13-07-163-CR), and assessed punishment at seventeen months in a state-jail facility, plus a $3,000 fine, and five years in prison plus a $5,000 fine, respectively. Garcia presents four issues on appeal. We affirm.

A. Factual Background

On October 11, 2006, Corpus Christi police officer Lorenzo Lopez saw a Mazda turn off of Holly Road onto Flynn Parkway. While following the Mazda, he heard "shots being fired" and saw that Jacob Gonzalez, the Mazda's right front-seat passenger, was shooting at a Chevy Tahoe. Lopez turned on his lights and siren in order to stop the Mazda. Garcia, the Mazda's driver, sped away. Lopez testified that during his pursuit of the Mazda, "he [Garcia] slammed on his brakes in an attempt to get me to hit him. I swerved to the left to try to avoid the impact, and then, he tried twice to come over and knock me off the road . . . ." Lopez chased Garcia for about 7.7 miles until Garcia stopped in a cul-de-sac. There, the Mazda's occupants, Garcia, Clarence Hastings and Gonzalez, were arrested.

On cross-examination, Lopez testified that he did not see the back-seat passenger fire any shots. Lopez did not see anyone in the Tahoe shoot at the Mazda.

During their search of the Mazda, police found several magazines with ammunition on the front floorboard. They also found a pistol, a sub-machine gun, and several high-capacity magazines inside the air-bag compartment. At the scene of the shooting, police recovered seven nine millimeter luger casings, seven .45 auto casings, and one projectile. While examining the Tahoe involved in the shooting, they saw a "small graze" or "small dent, indention" on the passenger's side front-quarter panel, a hole to the left side of the rear license plate, and a bullet lodged in the driver's side, third-row captain's seat. Police did not find any firearms, live ammunition, or spent casings in the Tahoe.

Clarence Hastings testified that on the night in question, he, Garcia, and Gonzalez were buying gas. While buying gas, Hastings saw a Chevy Tahoe with two people inside stop on the opposite side of the gas pumps where Garcia's Mazda was parked. A person in the Tahoe pointed a gun at them, and then the Tahoe drove away. After buying gas, Hastings and his companions rode around the town. At some point, they saw the Tahoe. When the prosecutor asked Hastings, "[H]ow'd the shooting start?", he replied, "They started shooting first, sir. We just started hearing gunshots, and then, I was handed a gun--[.]" Hastings stated that Garcia gave him a black handgun. Hastings, who was sitting in the Mazda's right rear seat, fired four or five shots up in the air. He did not point the gun at the Tahoe. He said that while he fired in the air, Gonzalez, who was sitting in front of him, "hanged out the window shooting" towards the Tahoe.

Gabriel Tamez testified that on the night in question, he was riding in the Tahoe and that his cousin, Adan Benavidez, was the driver. Tamez stated that after they left the gas station, "We were at a stop sign, saw some guy get out of his car and lean over on top of the hood, start shooting at us. So we take off, go around the park." He said that neither he nor Adan had a firearm with them.

Garcia, testified that while he, Gonzalez, and Hastings were buying gas, Hastings told him that "some guys pulled up" and that they "wanted some S-H, you know." Garcia saw that the driver, who had pulled up behind his Mazda, had a black revolver in his hand. Garcia testified that the driver pulled the gun on Hastings because Hastings was standing behind Garcia's car. At that point, Garcia told Gonzalez, "'[T]hese guys got a gun . . . .'" Gonzalez grabbed a gun from the air-bag compartment of Garcia's car and gave it to Garcia. After the vehicle drove away, Garcia and his companions left. Garcia testified that Hastings, who was sitting in the back seat, took the gun from him. Soon thereafter, Gonzalez "leaned out the car and started shooting some shots." Garcia testified that Hastings had "commandeered my vehicle because he told me he wasn't gonna give me my gun back till I got out the vehicle--till he got out the vehicle." Hastings told Garcia to follow the vehicle, which he did. As Garcia drove behind the vehicle, Gonzalez fired some shots. Garcia heard more shots coming from the back seat. When Hastings stopped shooting, Gonzalez leaned out the car and started shooting again. Hastings told Garcia that the police were behind them and that "I better not crash and I better not stop." So, Garcia continued to drive. When counsel asked Garcia, "[Y]ou did run away from him [the policeman] in the vehicle?", he replied:

Yes, sir. I was scared because Mr. Clarence Hastings had a pistol in the back seat, and he told--he was already irate 'cause they pulled out the weapon on him. I didn't feel like they really put it out on me so much, because--but I guess if he's in danger, I'm in danger, too, 'cause we're in the same vehicle.

Q. And that's the only reason that you ran from the police officer, was because of Mr. Hastings?

A. Yes, sir.

Q. Okay.

A. Well, it's either I get shot and crash, or I come and plead my case.

A. That's how I felt at the time.

* * *

I didn't feel like talking to the officers in the first place, 'cause they're accusing me of doing something wrong, which I didn't. I don't believe I did. I don't know how anybody would feel if they was in my situation when somebody's in the back seat has a weapon, telling you to do this, do that, what are you supposed to do? I'm not gonna try to say that he held me hostage or--I don't know how to explain it. . . .

[I]t was either die right there or go to jail, and I chose to go ahead and go to jail over getting killed right there.

On cross-examination, Garcia testified that the guns and the car he was driving belonged to him. He stated that "Clarence [Hastings] commandeered my vehicle by having the gun in the back seat and telling me ride or die and this and that." He denied handing Gonzalez a gun.

B. Charge Error

By issues one and three, Garcia argues the trial court "fundamentally erred" ⁽³⁾ by failing to instruct the jury on the law of (1) accomplice-witness testimony, and (2) the affirmative defense of duress. Garcia did not request these instructions or object to the lack of these instructions in either charge.

Standard of Review

In Druery v. State, the court of criminal appeals stated the standard for reviewing charge error:

In reviewing charge error, we must first determine whether error exists. If we find error, we must then determine whether the error caused sufficient harm to require reversal . . . . [T]he degree of harm necessary for reversal depends upon whether the error was preserved. Error properly preserved by an objection to the charge will require reversal as long as the error is not harmless. We have interpreted this to mean that any harm, regardless of degree, is sufficient to require reversal. But when the charging error is not preserved, a greater degree of harm is required, and this standard of harm is described as egregious harm. Errors that result in egregious harm are those affecting the "'very basis of the case,'" those depriving "the defendant of a 'valuable right,'" or those that "'vitally affect a defensive theory.'"

225 S.W.3d 491, 504 (Tex. Crim. App. 2007) (footnotes omitted).

The Accomplice-Witness Rule

Texas law requires that, before a conviction may rest upon an accomplice witness's testimony, independent evidence tending to connect the accused with the crime must corroborate the testimony. Tex. Code Crim. Proc. Ann. art. 38.14 (Vernon 2005) ⁽⁴⁾; Druery, 225 S.W.3d at 498. An accomplice is one who participates in an offense, before, during, or after its commission and acts with the required culpable mental state. Druery, 225 S.W.3d at 498. A person who is indicted for the same offense with which the defendant is charged is an accomplice as a matter of law. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex. Crim. App. 1991); see Cocke v. State, 201 S.W.3d 744, 747-48 (Tex. Crim. App. 2005). "If a witness is an accomplice as a matter of law, the trial court is required to provide an accomplice-witness instruction to the jury." Cocke, 201 S.W.3d at 748. Failure to do so is error. Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).

Because Garcia and Hastings were indicted as co-defendants for both offenses, Hastings is an accomplice as a matter of law. Zepeda, 819 S.W.2d at 876; Cocke, 201 S.W.3d at 748. Thus, the trial court erred by failing to instruct the jury to that effect. Herron, 86 S.W.3d at 631.

Sufficiency of the Corroborating Evidence

The accomplice-witness rule creates a statutorily imposed review and is not derived from federal or state constitutional principles that define the legal and factual sufficiency standards. Druery, 225 S.W.3d at 498. Rather, in conducting a sufficiency review under the accomplice-witness rule, we must eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the offense. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). "'Tendency to connect' rather than rational sufficiency is the standard: the corroborating evidence need not be sufficient by itself to establish guilt." Id. In other words, there simply needs to be other evidence tending to connect the accused to the offense. Id. Even apparently insignificant incriminating circumstances may sometimes afford satisfactory evidence of corroboration. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex. Crim. App. 1996).

In this case, the non-accomplice evidence showed the following: Officer Lopez saw the Mazda's front-seat passenger shoot at the Tahoe. When Lopez turned on his overhead lights and siren, Garcia sped away from the scene of the shooting. While Lopez chased Garcia, Garcia ignored traffic signals, drove at a high rate of speed, slammed on his brakes in an attempt to get Lopez to hit him, and tried to "knock" Lopez off the road. He chased Garcia approximately 7.7 miles before Garcia stopped in a cul-de-sac. Garcia testified that he was driving the Mazda, that it belonged to him, and that the weapons belonged to him.

While a defendant's mere presence in the company of an accomplice before, during, and after the commission of the offense is insufficient by itself to corroborate accomplice testimony, evidence of such presence, coupled with other suspicious circumstances, may tend to connect the defendant to the offense. Id. We conclude that the non-accomplice witness evidence sufficiently corroborates the accomplice-witness testimony and tends to connect Garcia to both offenses. Consequently, the evidence is sufficient to comply with article 38.14. See Tex. Code. Crim. Proc. Ann. art. 38.14 (Vernon 2005); Fentis v. State, 582 S.W.2d 779, 780-81 (Tex. Crim. App. 1976) (providing that evidence of flight evinces a consciousness of guilt).

Omission of the Accomplice-

Witness Instruction from the Charge

When considering whether the court's failure to give an accomplice-witness instruction was harmful, we examine the effect an accomplice-witness instruction has on the trial. Herron, 86 S.W.3d at 631. A harmless-error analysis for the omission of an accomplice-witness instruction should take into account (1) the existence and strength of any non-accomplice evidence and (2) the applicable standard of harm. Id. at 632. In determining the strength of a particular item of non-accomplice evidence, we examine (1) its reliability or believability and (2) the strength of its tendency to connect the accused to the crime. Id. The reliability inquiry may be satisfied if (1) there is non-accomplice evidence, and (2) there is no rational and articulable basis for disregarding the non-accomplice evidence or finding that it fails to connect the accused to the offense. Id. at 633.

Because Garcia did not object to the trial court's failure to provide the accomplice-witness instruction, he must show "egregious" harm. Druery, 225 S.W.3d at 504; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). "Under the egregious harm standard, the omission of an accomplice witness instruction is generally harmless unless the corroborating (non-accomplice) evidence is 'so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive.'" Herron, 86 S.W.3d at 632 (quoting Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991)).

As previously addressed, sufficient non-accomplice evidence tends to connect Garcia to both offenses. There is no rational and articulable basis for disregarding the non-accomplice evidence, and the record does not support a finding that the non-accomplice evidence failed to connect Garcia to both offenses. The corroborating evidence is not "so unconvincing in fact as to render the State's overall case for conviction clearly and significantly less persuasive." Therefore, because the non-accomplice evidence tends to connect Garcia to both offenses, and because there is evidence to corroborate the accomplice-witness testimony, we cannot say either the corroborating evidence is insufficient, nor can we conclude Garcia suffered egregious harm as a result of the trial court's failure to instruct the jury.

The Affirmative Defense of Duress

An accused has the right to an instruction on any defensive issue raised by the evidence whether the evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Duress is an affirmative defense requiring the accused to prove by a preponderance of the evidence that he committed the offense "because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another." Tex. Penal Code Ann. §§ 2.04(d), 8.05(a) (Vernon 2003); Edwards v. State, 106 S.W.3d 833, 843 (Tex. App.-Dallas 2003, pet. ref'd). There are two components of immediacy in an imminent threat: (1) the person making the threat must intend and be prepared to carry out the threat immediately; and (2) carrying out the threat must be predicated upon the threatened person's failure to commit the charged offense immediately. Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd). This affirmative defense is not available to an accused if he or she intentionally, knowingly, or recklessly placed himself or herself in a situation in which it was probable that he would be subject to compulsion. Tex. Penal Code Ann. § 8.05(d) (Vernon 2003). To establish compulsion, a defendant must prove that "the force or threat of force rendered a person of reasonable firmness incapable of resisting the pressure." Tex. Penal Code Ann. § 8.05(c); Edwards, 106 S.W.3d at 843.

In this case, the evidence with respect to evading arrest showed that Hastings was in the back seat with a loaded weapon. He ordered Garcia to drive or die. Thus, Hastings intended or was prepared to carry out the threat immediately. Furthermore, the threatened harm was conditioned on Garcia's evasion of the police. Therefore, the evidence raised duress as a defense to the offense of evading arrest, because Garcia was compelled to evade the police by threat of imminent death or serious bodily injury to himself. Regarding the offense of deadly conduct, the evidence is weak that Garcia participated in this offense because Hastings compelled him to do so. Nevertheless, we will analyze the case to determine whether the trial court erred in failing to give the instruction on duress for both offenses.

Because Garcia did not object to the trial court's failure to so instruct the jury, he "will obtain a reversal only if the error was so egregious and created such harm that he or she 'has not had a fair and impartial trial-in short 'egregious harm.'" Druery, 225 S.W.3d at 505 (quoting Almanza, 686 S.W.2d at 171). We measure the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, argument of counsel, and any other relevant information revealed by the trial record. Id.

State of the Evidence

The jury heard, and we have already stated, Garcia's testimony relating to Hastings placing him under fear of death if he did not evade the police following the shooting.

Argument of Counsel

In his closing argument at the guilt/innocence stage, counsel argued to the jury:

Chris [Garcia] had a chance to plead guilty to this. He told you he had a chance to plead guilty. He had a chance to get probation on this, but he, in good conscience, could not plead guilty to this, regardless of the situation, regardless of the circumstances, regardless of the fact that he had guns in the car. He was not the instigator for the shooting. He did not want to shoot at those people, and he told you that the reason that he did that was because of Mr. Hastings. Mr. Hastings was in the back seat with a pistol and told him that he had to do this. The key thing that--both of these situations is in the deadly conduct. He has to be somebody who is a willing participant, who has to do something to aid, encourage and direct, encourage and direct a person, the people who actually do the shooting, and Chris came up here and told you, "I didn't want to shoot at them. The only reason I did what I did was because of Mr. Hastings, and the only reason I fled from the police officer"--and that's something else. Even though he did flee from the police officer, there has to be something that--a willful conduct on his part, has to be something that he intended to do and not that he was forced to do.

Now, I'd just ask you to remember Chris' testimony. He came in here. He told you, "I could have pleaded guilty to this, but I didn't. This was not my idea. I was in circumstance that I couldn't get out of. I would've plead guilty and taken probation, but I didn't do this. This was--if this was my conduct, if this was something that I was responsible for, I would have stepped up and taken responsibility for it." So I ask you to consider that, ladies and gentlemen . . . .

The Jury Charge

The court submitted the case to the jury on separate charges. Both charges instructed the jury on the presumption of innocence and the burden of proof. The charge of evading arrest instructed the jury that "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." The charge further instructed the jury that they could convict Garcia of evading arrest if he "while using a vehicle, intentionally flee from Larry Lopez, a person the Defendant knew to be a peace officer who was attempting lawfully to arrest or detain the defendant . . . ."

The charge on deadly conduct instructed the jury on the law of parties ⁽⁵⁾ and also stated that:

A person acts "knowingly," or with "knowledge," with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

A person acts "recklessly," or is "reckless," with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the defendant's standpoint.

The charge further instructed the jury that they could convict Garcia of deadly conduct if he "knowingly discharge[d] a firearm at or in the direction of a vehicle, and the defendants were then and there reckless as to whether the vehicle was occupied . . . ."

Although neither charge included an instruction on duress, the evading-arrest charge defined "intentionally," and the jury could not convict Garcia of this offense unless the State proved beyond a reasonable doubt that he acted intentionally. The charge on deadly conduct defined "knowingly" and "recklessly" and stated that the jury could not convict Garcia of this offense unless the State proved beyond a reasonable doubt he acted knowingly and recklessly.

We have reviewed the charges, the evidence, and counsel's jury argument, and find that even if the instruction on duress was erroneously omitted from both charges, the omission did not cause egregious harm. Issues one and three are overruled.

C. Intent

By issue two, Garcia also asserts the evidence was "insufficient" to establish his intent. ⁽⁶⁾ Garcia contends that "[n]o evidence corroborated [the] accomplice witness testimony that [he] acted with the requisite intent." Garcia further argues that Hastings's testimony was the only evidence showing that he acted with the requisite intent.

As stated in our consideration of issue three, the charge defined the term "intentionally" for the jury. "Intent may be inferred from acts, words and conduct of accused." Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). "[M]ental culpability is of such a nature that it generally must be inferred from the circumstances under which a prohibited act or omission occurs." Id.

Here, the non-accomplice evidence tends to connect Garcia to both offenses. Based upon his conduct as well as the circumstances surrounding the offenses, the jury could infer that he: (1) intentionally evaded arrest; and (2) intended to assist or promote the commission of deadly conduct. Issue two is overruled.

D. Ineffective Assistance of Counsel

In issue four, Garcia argues his trial counsel was ineffective for failing to: (1) request an accomplice-witness instruction; (2) request an instruction on duress; (3) adequately investigate the case and present the defense; and (4) preserve error during the State's final argument at the punishment phase.

In Ex parte Ellis, the court of criminal appeals stated that the benchmark for judging any claim of ineffectiveness is:

whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In analyzing claims of ineffective assistance under the Sixth Amendment, we apply the two-part framework announced by the United States Supreme Court in Strickland v. Washington. Under this framework, [Garcia] must prove by a preponderance of the evidence that: (1) his counsel's performance was deficient; and (2) there is a reasonable probability-one sufficient to undermine confidence in the result-that the outcome would have been different but for his counsel's deficient performance.

To establish deficient performance, [Garcia] must show that counsel was not acting as a reasonably competent attorney, and his advice was not within the range of competence demanded of attorneys in criminal cases. [Garcia] must overcome the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Therefore, [Garcia] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Although the Supreme Court has said that strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[,] an attorney's cited strategy does not prevent us from determining whether a specific act or omission was outside the wide range of professionally competent assistance. The reasonableness of an attorney's performance is judged according to the prevailing professional norms, and includes an examination of all the facts and circumstances involved in a particular case. Reviewing courts must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.

Under the second part of the Strickland analysis, [Garcia] must establish that the constitutionally deficient performance prejudiced his defense-that is, he must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. When making this determination, any constitutionally deficient acts or omissions will be considered in light of the totality of the evidence before the judge or jury.

233 S.W.3d 324, 329-30 (Tex. Crim. App. 2007) (citations and quotation marks omitted).

1. Failure to Request Accomplice-Witness Instruction

The failure to request an instruction on accomplice-witness testimony in some circumstances may constitute ineffective assistance of counsel. See Ex parte Zepeda, 819 S.W.2d at 877. In Zepeda, aside from the accomplice-witness testimony, the other evidence did not tend to connect Zepeda to the offense. The Zepeda court said, given the state of the evidence which depended heavily on the accomplice testimony, counsel should have requested an instruction on accomplice-witness testimony. Furthermore, the court said that had the jury been informed that it could not convict Zepeda without corroboration of the accomplice-witness testimony in light of the remaining evidence presented, there was a reasonable probability a rational jury would not have convicted Zepeda. Counsel's failure to request the instruction constituted ineffective assistance of counsel.

The facts of this case are unlike those in Zepeda. Here, non-accomplice-testimony, including Officer Lopez's eye-witness testimony as well as Garcia's testimony that the weapons belonged to him, connected Garcia to both offenses. Considered in light of the totality of the evidence before the jury, Garcia has failed to show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different had the trial court given the accomplice-witness instruction. There being no reasonable probability under the Strickland standard, that the result of the trial would have been different if the trial court had submitted the accomplice-witness instruction, the error is not sufficient to undermine confidence in the outcome of the trial. Therefore, Garcia has failed to show that he received ineffective assistance of trial counsel on this basis.

2. Failure to Request Instruction on Duress

Assuming, without deciding, that counsel erred in his failure to request an instruction on the defense of duress, Garcia must show counsel's error resulted in prejudice. Ex parte Ellis, 233 S.W.3d at 330. None of the evidence other than Garcia's testimony suggested that he was acting under duress. Garcia's self-serving testimony that he acted under duress conflicts to some degree with that of Officer Lopez. Lopez testified that Garcia "slammed" on his brakes in an attempt to get Lopez to hit him and tried to "knock" him off of the road. Considered in light of the totality of the evidence before the jury, Garcia has failed to show there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different had the trial court submitted the instruction on the defense of duress. There being no reasonable probability under the Strickland standard, that the result of the trial would have been different if the trial court had given the instruction, the error is not sufficient to undermine confidence in the outcome of the trial. Garcia therefor has failed to show he received ineffective assistance of trial counsel.

3. Failure to Adequately Investigate the Case and Present the Defense

Garcia argues that counsel was ineffective because he failed to request ballistics test results on the spent bullet recovered from inside the Tahoe. He claims that if the ballistics results showed the spent bullet was a .45 bullet, counsel could have used that evidence for three purposes. First, he could have impeached Hastings's credibility because (1) Hastings testified that he fired a .45 ⁽⁷⁾ into the air, not at the Tahoe, and (2) the spent shell casings recovered from the scene of the shooting were from a .45 and a nine millimeter. Second, the evidence would have undermined Hastings's characterization of himself as non-violent and non-threatening. And, third, the evidence would have bolstered his contention that Hastings was armed and dangerous, and had threatened him if he did not follow his orders.

If counsel's reasons for his conduct do not appear in the record and there is "at least the possibility" that the conduct could have been grounded in legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective-assistance claim on direct appeal. Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). Assuming, without deciding, that counsel erred in failing to request the ballistics results, Garcia must show counsel's error resulted in prejudice. Ex parte Ellis, 230 S.W.3d at 330. After considering the totality of the evidence before the jury, we conclude that Garcia has not met his burden of showing that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Thus, counsel's failure to request the ballistics test results is not sufficient to undermine confidence in the outcome of Garcia's trial.

4. Jury Argument at the Punishment Phase

Lastly, Garcia argues that counsel was ineffective because he failed to preserve error when the prosecutor, during final argument at the punishment phase, made the following comments to the jury:

What about his [Garcia's] attempts to hit . . . [Officer Larry Lopez's] vehicle? Is that the sort of thing somebody's gonna do under duress if it's not their idea, or did he see the officer about to overshoot and decide, "Well, I couldn't get him to ram me from behind, I'll gonna [sic] run him off the roadway. I'll ram him into somebody's house. I'll have him into a light pole. I don't care about Larry Lopez' children or his wife. If he gets injured, that's fine with me, I just want to get away," and when he [Garcia] got out of the vehicle, did he say, "Hey, I'm glad you're here, this wasn't any of my doing." No, he lawyered up and he came in here and he told you this incredible story because-

At that point, counsel objected as follows:

Counsel: Your Honor, I object.

The Court: Just argue the evidence, sir.

Counsel: I object that he's commenting on my client's Fifth Amendment right to remain silent, Judge.

The Court: Correct. Just argue the evidence, Mr. Mann.

Counsel did not ask the trial court to instruct the jury to disregard the comments. Despite counsel's failure to properly preserve the error, Garcia has not met his burden of showing that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different. Thus, counsel's failure to request an instruction to disregard the comments is not sufficient to undermine confidence in the outcome of Garcia's trial. We conclude Garcia has failed to show he received ineffective assistance of trial counsel. We therefor overrule issue four.

The trial court's judgments are affirmed.

ROSE VELA

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 21st day of February, 2008.

1. See Tex. Penal Code Ann. § 38.04 (Vernon 2003).

2. See Tex. Penal Code Ann. § 22.05(b)(1) (Vernon 2003).

3. Garcia is correct in complaining of fundamental error. The court of criminal appeals has stated "[T]hat if no proper objection was made at trial to the jury charge, an appellant must claim that the alleged error was fundamental." Druery v. State, 225 S.W.3d 491, 505 (Tex. Crim. App. 2007).

4. The accomplice-witness rule provides: "A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." Tex. Code Crim. Proc. Ann. art. 38.14.

5. The charge stated, in relevant part, that:

A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone will not constitute one a party to an offense.

Under the law of parties, if you find from the evidence beyond a reasonable doubt that . . . Jacob Gonzalez, did then and there intentionally and knowingly, commit Deadly Conduct and that . . . [Garcia] then and there knew of the intent, if any, of Jacob Gonzalez to commit Deadly Conduct and . . . [Garcia] acted with intent to promote or assist the commission of the offense of Deadly Conduct and by encouraged, directed, aided or attempted to aid Jacob Gonzalez to commit the offense of Deadly Conduct, you will find . . . [Garcia] guilty of Deadly Conduct . . . .

6. Garcia also asserts the evidence was "insufficient" to establish his intent

. To the extent Garcia's contention amounts to an attempt to superimpose a legal or factual sufficiency review upon the accomplice-witness standard, the court of criminal appeals has rejected this type of contention in Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999).

7. Hastings testified that Garcia gave him a "black handgun, probably a .45 or a .40. I don't really know which gun it was."