In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-12-00178-CR _________________
EX PARTE PAUL ROBERT WASSERLOOS ________________________________________________________________________ On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 07-10-10091-CR ________________________________________________________________________
MEMORANDUM OPINION
Paul Robert Wasserloos appeals the trial court‟s order denying his
application for writ of habeas corpus. Appellant argues that the trial court erred in
denying relief because he was denied the effective assistance of counsel at trial.
We affirm the order of the trial court.
I. BACKGROUND
In August 2007, Wasserloos, a certified public accountant, spent the day out
of the office, meeting with different clients. After his last meet ended around 6:30
p.m., Wasserloos drove to an adult entertainment club in Houston. Wasserloos
told the jury he was at the club from around 7:00 p.m. until 11:00 p.m., during 1 which time he consumed three scotch and water beverages, along with food.
Wasserloos left the club with one of the female employees, to whom he offered a
ride home. Wasserloos stated he drove about an hour to The Woodlands area, but
because his companion was intoxicated, she was unable to give him proper
directions to her intended destination. Wasserloos spent another hour driving up
and down the freeway trying to find the correct exit.
Shortly after 1:00 a.m., Cody Cullar, a trooper with the Texas Department of
Public Safety, stopped Wasserloos for driving 78 miles per hour in a 65 mile per
hour speed zone. Cullar smelled the odor of alcohol on Wasserloos‟s breath and
Wasserloos admitted that he had consumed alcohol. Cullar also observed that
Wasserloos‟s speech was slurred and Cullar had a difficult time understanding
what Wasserloos was saying. Cullar administered standard field sobriety tests and
observed clues on each test that indicated Wasserloos was intoxicated. Cullar
observed Wasserloos continually opening his mouth and licking his lips, which
Cullar attributed to “dry mouth;” a common side-effect of intoxication. Cullar
arrested Wasserloos for driving while intoxicated. Wasserloos declined to provide
a breath sample.
2 At trial, Wasserloos attributed his slurred speech and poor performance on
the field sobriety tests to several claimed disabilities.1 Wasserloos presented
evidence that his slurred speech was the result of auditory dyslexia, and his poor
performance on the field sobriety tests was caused by a variety of physical
problems, including a left knee replacement, a right arthritic knee, bunions, and
hammertoes. He also presented evidence that he was roughly 50 pounds
overweight. During trial, defense counsel attempted to introduce business records
affidavits, a report from a speech therapist, and medical records from an orthopedic
doctor, to corroborate witness testimony regarding Wasserloos‟s claimed
disabilities. However, the trial court sustained the State‟s objection to the
admissibility of this evidence on the basis that defense counsel failed to provide the
State with proper notice.
In his direct appeal, Wasserloos argued, in part, that defense counsel was
ineffective for failing to give the State proper notice of the filing of the business
records and the affidavits of his medical experts. Wasserloos v. State, No. 09-09- 1 The trial record does not appear as an exhibit to the application for habeas corpus, and it is unclear from the record whether it was properly before the trial court at the hearing. However, both parties appear to concede that the trial record was relied on by the trial court in denying the application for habeas relief. Both parties cited and relied upon the trial record in presenting their arguments on appeal, and the trial record was designated by appellant to be part of the appellate record before us. Therefore, we rely upon the trial record in order to address the merits of the issues presented on appeal. 3 00225-CR, 2010 WL 1711753, at *2-3 (Tex. App.—Beaumont Apr. 28, 2010, pet.
ref‟d). We held that even if defense counsel‟s failure to properly notify the State
resulted in the inadmissibility of the documents, Wasserloos failed to show a
reasonable probability that but for defense counsel‟s alleged ineffectiveness, the
result of the proceeding would have been different. Id. at *2 (citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We
affirmed the judgment of conviction. Id. at *7.
Subsequent to our decision in his direct appeal, Wasserloos filed a post-
conviction writ of habeas corpus alleging that he was denied effective assistance of
counsel at trial because defense counsel failed to present expert medical testimony
to corroborate the existence of Wasserloos‟s claimed disabilities. Specifically,
Wasserloos argued that after the trial court excluded the medical records, defense
counsel failed to call the doctor and speech therapist to provide live testimony as to
the contents of those records and failed to request a continuance to obtain their live
testimony. In addition, Wasserloos alleged that defense counsel was deficient in
failing to object to a comment by the prosecutor during his cross-examination of
the defense expert witness. Wasserloos asserted that but for counsel‟s deficient
performance, there was a reasonable probability that the jury would have acquitted
4 Wasserloos or deadlocked.2 After reviewing the pleadings and hearing argument
from the parties, the trial court denied Wasserloos‟s application for habeas corpus.
The trial court entered findings of fact and conclusions of law. This appeal
followed.
II. STANDARD OF REVIEW
An applicant must prove his claim for habeas corpus relief by a
preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.
App. 2006); Ex parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per
curiam order). We review a trial court‟s order denying habeas corpus relief for an
abuse of discretion. See Kniatt, 206 S.W.3d at 664. We view the facts in the light
most favorable to the trial court‟s ruling and afford almost total deference to the
trial court‟s fact findings, particularly when those fact findings are based upon an
evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819
(Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte
2 Wasserloos relies on the fact that the jury sent out a note during deliberations indicating it was deadlocked 9-3. Over the State‟s objection, the trial court gave the jury an “Allen” charge, after which they convicted Wasserloos. Wasserloos, 2010 WL 1711753, at *4; see Barnett v. State, 189 S.W.3d 272, 277 n.13 (Tex. Crim. App. 2006) (citing Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896) (explaining that an Allen charge is a supplemental charge sometimes given to a jury to remind the jury that if it is unable to reach a verdict, “a mistrial will result, the case will still be pending, and there is no guarantee that a second jury would find the issue any easier to resolve.”)). 5 Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007); see also Ex parte Amezquita, 223
S.W.3d 363, 367 (Tex. Crim. App. 2006). We apply the same deference to the trial
court‟s application of the law to the facts, if the resolution of the ultimate question
turns on an evaluation of credibility and demeanor. Ex parte Legrand, 291 S.W.3d
31, 36 (Tex. App.—Houston [14th Dist.] 2009, pet. ref‟d). If the resolution of the
ultimate question turns solely on question of law, we review the determination de
novo. Id.
In order to establish a right to habeas corpus relief on the ground of
ineffective assistance of counsel, appellant must show (1) counsel‟s performance
fell below an objective standard of reasonableness; and (2) a reasonable probability
exists that, but for counsel‟s errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 687-88, 694. A reasonable probability is one
sufficient to undermine confidence in the outcome. Id. at 694. The benchmark of
a claim for ineffective assistance of counsel “must be 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.” Id. at 686. Our review of counsel‟s
performance is “highly deferential.” Id. at 689. We must make every effort to
“eliminate the distorting effects of hindsight” and evaluate counsel‟s conduct from
the perspective at the time. Id.
6 The United States Supreme Court elaborated on Strickland’s prejudice
standard:
In assessing prejudice under Strickland, the question is not whether a court can be certain counsel‟s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. Instead, Strickland asks whether it is reasonably likely the result would have been different. This does not require a showing that counsel‟s actions more likely than not altered the outcome, but the difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters only in the rarest case. The likelihood of a different result must be substantial, not just conceivable.
Harrington v. Richter, 131 S. Ct. 770, 791-92, 178 L. Ed. 2d 624 (2011) (internal
citations and quotations omitted).
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. Failure to Call Medical Experts to Testify at Trial
Defense counsel presented testimony from three long-time friends of
Wasserloos regarding Wasserloos‟s disabilities. All three witnesses testified
regarding Wasserloos‟s physical condition, as well as their knowledge of his
auditory dyslexia and its affect on his speech. In summary, the witnesses testified
that when Wasserloos gets excited or nervous he tends to talk too fast or slur his
words. They also explained that he has problems with his knees and feet, he is not
able to walk straight, and he cannot stand for very long. In addition, each of the
three witnesses testified that they had viewed the traffic-stop video and that 7 Wasserloos appeared the same on the video as he normally appears. Wasserloos
also testified regarding his physical condition and auditory dyslexia.
Wasserloos argues that the testimony of medical experts with no personal
interest in the outcome of the trial would have been significantly more persuasive
to the jury than the lay testimony of Wasserloos and his friends. However, the
defensive theory was not based solely on the testimony of Wasserloos and his
friends. Defense counsel also presented testimony from a field sobriety expert,
Lance Platt. Platt testified that he served as a police officer for nine years before
he went to work for Texas Engineering Extension Services, a branch of the Texas
A&M University system, where he helped train police officers throughout the State
of Texas in the administration of standard field sobriety tests.3 Platt testified that
he considers himself an expert in DWI detection and standardized field sobriety
testing.
Platt told the jury he administered the standard field sobriety tests on
Wasserloos in his office in November 2008 while Wasserloos was not under the
influence of any intoxicants.4 Platt testified that he observed four out of six clues
3 Platt worked in that capacity from 1999 until 2002, when he started his own business. 4 Prior to performing the field sobriety tests, Wasserloos blew into a portable breath test that was negative for the presence of alcohol. Wasserloos also stated 8 of intoxication during the horizontal gaze nystagmus test (“HGN”), three clues on
the walk-and-turn test, and three clues on the one-leg stand test. Platt stated that
Wasserloos told him he had been diagnosed with dyslexia “which [Platt testified]
is a neurological disorder which just so happens to be the same [neurological]
system” that the HGN test evaluates.5 Platt told the jury he believes Wasserloos
has nystagmus, or involuntary eye movement, all the time, regardless of whether
he is intoxicated. Platt opined that Wasserloos did poorly on the walk-and-turn and
one-leg stand tests on the night of his arrest because he is overweight, has knee
problems, has bunions on his feet, and has problems with his legs. Platt explained
that Wasserloos‟s physical problems “could cause him to exhibit a false positive”
on the field sobriety tests. Platt stated that Wasserloos was not “a good candidate”
for the walk-and-turn and one-leg stand test because of his “obvious physical
impairment” prior to the introduction of alcohol into his system. Platt discussed
other alternative divided attention tests that could have been administered. Platt
testified that Wasserloos appeared to mentally comprehend everything he was
that he had not taken any central nervous system depressants, such as drugs, inhalants, or PCP. 5 The State objected to this testimony on the basis that it was outside Platt‟s area of expertise. The trial court sustained the objection, however, the State failed to secure an instruction to the jury to disregard the testimony. Therefore, this evidence was before the jury and they were free to consider it. See Estrada v. State, 313 S.W.3d 274, 313 (Tex. Crim. App. 2010). 9 asked to do during the field sobriety tests, but he was physically unable to perform
the tests satisfactorily. Platt told the jury that Wasserloos appeared the same in his
office as he did on the video of the traffic stop, and opined that Wasserloos was not
intoxicated at the time of his arrest.
1. Failure to Call Medical Experts to Testify Regarding the Contents of the Excluded Medical Records
As evidence in support of his application for writ of habeas corpus,
Wasserloos attached affidavits from Sheryl Morales and William Granberry, the
speech therapist and orthopedic specialist whose records were excluded at trial. In
her affidavit, Morales detailed her evaluation of Wasserloos, explained that he
exhibits characteristics of dyslexia and “speech/language/communication
problems.” Morales stated that Wasserloos appears to be “„cluttering,‟” which she
distinguished from “stuttering.” She also noted that cluttering could be
characteristic of slurred speech. Morales recommended that Wasserloos be referred
to a learning disabilities specialist, a speech-language pathologist, and an
audiologist for further evaluation. In his affidavit, Granberry detailed Wasserloos‟s
physical condition based on his orthopedic evaluation of Wasserloos. Granberry
stated that Wasserloos “suffers from severe bunions, flat feet, collapsed arches, and
hammertoe deformities on both feet.” Granberry concluded that Wasserloos was a
candidate for reconstructive surgical correction of both feet and noted that his left 10 knee had been replaced and he was suffering from “mild degenerative arthritis” in
the right knee. Neither Morales nor Granberry offered an opinion regarding how
Wasserloos‟s physical condition may have affected his performance on the field
sobriety tests.
In his application for writ of habeas corpus, Wasserloos argued that defense
counsel was deficient in failing to call Morales and Granberry to testify regarding
the contents of their excluded medical records. The State concedes that the defense
counsel‟s failure to call medical experts to ensure the admission of the excluded
medical records was likely deficient. On direct appeal, considering the vast amount
of evidence presented to the jury regarding Wasserloos‟s physical condition, we
concluded that even if counsel‟s lack of proper notice to the State resulted in the
inadmissibility of the medical records, Wasserloos failed to show a reasonable
probability that but for counsel‟s error the result of the proceeding would have
been different. See Wasserloos, 2010 WL 1711753, at *3. We concluded that
although the jury did not have the excluded documents, the record was replete with
evidence of Wasserloos‟s physical problems, as well as evidence from three long-
time friends that he suffers from auditory dyslexia, which causes him to slur his
words. Id. We also found significant that the jury saw appellant perform the field
11 sobriety tests and heard him speak on the traffic-stop video, and observed him
testify at trial. Id.
In the habeas hearing, defense counsel argued that the testimony of
Wasserloos and his friends, regarding Wasserloos‟s condition, was uncorroborated.
Wasserloos cites Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) for his contention
that such omission rendered counsel‟s assistance ineffective. However, unlike in
Miller, where defense counsel relied solely on the testimony of the defendant and
her ex-husband to establish Miller‟s claim that at the time of the commission of the
crime she was suffering from mental and emotional injuries, Platt provided expert
testimony that corroborated Wasserloos‟s claim that his ability to perform the field
sobriety tests was hindered by his disabilities. Compare Miller, 420 F.3d at 364-
66.
The affidavits of Morales and Granberry provide no further information than
what is set forth in the excluded medical records. Counsel is not required to
prepare for every potential contingency. Harrington, 131 S. Ct. at 791. “Strickland
does not guarantee perfect representation, only a „reasonably competent attorney.‟”
Id. (quoting Strickland, 466 U.S. at 687); see also Bridge v. State, 726 S.W.2d 558,
571 (Tex. Crim. App. 1986). The constitutional right to effective assistance of
counsel does not require counsel to be a “flawless strategist or tactician[.]”
12 Harrington, 131 S. Ct. at 791. Nevertheless, even assuming that counsel‟s failure
to call the medical experts to testify to the contents of the excluded records was
deficient, we conclude that Wasserloos has failed to show a reasonable probability
that but for the alleged error, the result of the proceeding would have been
different. See Wasserloos, 2010 WL 1711753, at *3.
2. Failure to Conduct a Reasonable Investigation
Wasserloos appears to argue on appeal from the habeas corpus that defense
counsel was deficient for failing to conduct a reasonable investigation and present
other readily available evidence through expert testimony that would have raised a
reasonable doubt.6 In support of this claim, Wasserloos attached to his application
for habeas corpus, the affidavits of Timothy Sitter, another orthopedic specialist,
and Ray Battin, a licensed psychologist. Sitter‟s affidavit indicates that he did not
evaluate Wasserloos until August 2011. Battin‟s affidavit indicates that he
evaluated Wasserloos in December 2011. There is nothing in the record to indicate
that defense counsel contacted or consulted with either Sitter or Battin prior to
trial.
6 While Wasserloos did not make this argument in his written application for habeas corpus, he did make this argument to the trial court during the hearing on the application. Therefore, Wasserloos preserved this issue for review. See Tex. R. App. P. 33.1. 13 Like Granberry‟s affidavit, Sitter‟s affidavit detailed Wasserloos‟s physical
condition, including his obesity, unstable knees, bunions, and the observation that
he demonstrates poor balance when he stands on one leg, and he walks with a limp.
Sitter further stated that in his opinion Wasserloos‟s “orthopedic maladies impaired
his ability to perform satisfactorily the standardized field sobriety tests when he
was arrested in 2007[,]” as well as during Sitter‟s evaluation of Wasserloos in
2011. Sitter also stated that in his opinion Wasserloos would not be able to perform
the standardized field sobriety tests satisfactorily “under any conditions, even if he
is not intoxicated.” Sitter opined that Wasserloos‟s performance on the
standardized field sobriety tests “was the result of his orthopedic maladies and
obesity, not the result of intoxication.”
In his affidavit, Battin stated that Wasserloos‟s gross coordination was
impaired as a result of his knee problems, and Wasserloos appeared to have mild to
moderate hearing loss. Battin diagnosed Wasserloos with “dysarthric speech
pattern,” which he stated could cause Wasserloos to exhibit slurred speech. Battin
concluded that Wasserloos met the criteria for a “Specific Learning Disability in
basic reading skills; Auditory Processing Disorder; and a Dysarthria Disorder,” and
also stated that he would expect these disabilities to have caused Wasserloos
difficulty when he attempted to perform the divided-attention standardized field
14 sobriety tests in 2007. Battin further stated that Wasserloos appeared the same
during his evaluation as he did on the video of the traffic stop. Both experts stated
in their affidavits that they would have testified to these conclusions if they had
been called to testify at trial.7
A criminal defense attorney has a duty to make an independent investigation
of the facts of a case. Ex parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App.
1990). A breach of this duty may result in a finding that counsel rendered
ineffective assistance when “the result is that any viable defense available to the
accused is not advanced.” Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim.
App. 1982). In explaining the duty to investigate, the United States Supreme Court
has stated that “counsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly
assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel‟s judgments.” Strickland, 466 U.S. at 691.
“[I]t is difficult to establish ineffective assistance when counsel‟s overall
performance indicates active and capable advocacy.” Harrington, 131 S. Ct. at
791. It is apparent from the record that defense counsel was well versed in the 7 Battin further stated in his affidavit that he would have been available to testify at Wasserloos‟s trial. 15 facts of the case, conducted an investigation, and prepared a defense prior to trial.
Because there was no breath test or blood sample from Wasserloos, the State‟s
case hinged on the testimony of the arresting officer, the field sobriety tests, and
the video tape of the traffic stop. The defensive theory presented at trial was that
Wasserloos‟s poor performance on the standardized field sobriety tests was a result
of physical problems with his knees, legs, and feet. Wasserloos also attributed his
slurred speech to auditory dyslexia. In addition to the testimony of Wasserloos and
three lay witnesses, expert testimony was presented to the jury in support of this
defensive theory. Not only did Platt testify that Wasserloos‟s performance on the
walk-and-turn and one-leg stand test were a result of his physical disabilities, but
he also presented testimony that sought to explain the arresting officer‟s
observation of clues of intoxication on the HGN test, arguably the State‟s strongest
evidence.8 Wasserloos has not shown that he was prevented from presenting a
viable defense to the jury.
Nor has Wasserloos otherwise established that defense counsel failed to
adequately investigate Wasserloos‟s claimed disabilities. Significantly, defense
counsel‟s affidavits, attached to Wasserloos‟s application for habeas relief, do not
detail defense counsel‟s investigation of the case. In discussing his trial strategy, 8 Notably, none of the expert affidavits presented as evidence in the habeas proceeding specifically addressed Wasserloos‟s performance on the HGN test. 16 defense counsel stated in his supplemental affidavit that prior to trial he discussed
with Wasserloos “the possibility of calling the doctor and speech therapist” who
evaluated Wasserloos, and “the decision was made not to call them.” Defense
counsel further stated that he could not recall whether he re-evaluated this decision
with his client after the trial court excluded the related medical records. However,
defense counsel‟s affidavits do not speak to his conduct or decisions with regard to
his investigation or his failure to seek additional expert medical evaluations or
opinions. Compare Miller, 420 F.3d at 359 (Defense counsel admitted in his
affidavit, attached as evidence to defendant‟s habeas application, that he did not
prepare much for the punishment phase because he thought the defendant would
accept the plea bargain offer, and defense counsel conceded he could have
obtained information from her doctors and called them to testify); Compare Ex
parte Briggs, 187 S.W.3d 458, 466-67 (Tex. Crim. App. 2005) (Defense counsel
conceded that he did not consult with medical experts before advising defendant to
plead guilty because defendant could not pay for medical experts). On this record,
Wasserloos has not established that defense counsel‟s investigation fell below an
objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 691.
17 3. Failure to Object to Prosecutor‟s Comment
Wasserloos argues additionally that defense counsel was ineffective for
failing to object to a comment made by the prosecutor during his cross-
examination of Platt. During the State‟s cross-examination of Platt the following
exchange took place:
[State:] You started out as a police officer; is that correct?
[Platt:] I‟m still a certified peace officer.
[State:] You actually worked and made arrests. What agency did you work for?
[Platt:] College Station.
[State:] Okay. And what years did you do that?
[Platt:] ‟90 to ‟99.
[State:] So, for nine years out of your life you spent your time trying to put people away for DWI; is that correct?
[Platt:] I spent my time enforcing the law. I never tried to put anybody away.
[State:] You spent your time making arrests for DWI; is that correct?
[Platt:] Amongst other things, yes.
....
[State:] Then something happened and you left and you went to the dark side, as it is; is that correct? 18 [Platt:] You know, I‟ve always looked at justice as being blind, and I take offense to you saying that I‟m on the dark side because there‟s --
[State:] Okay.
[Platt:] There‟s not a dark side to justice. Justice is blind. The chips fall where they may.
[State:] You work primarily for defense attorneys; is that correct?
[Platt:] Yes.
Wasserloos argued in his habeas application that counsel was ineffective for
failing to object to the prosecutor‟s comment that Platt had gone from being
employed by the police department to “the dark side.” Wasserloos contends that it
is improper for the prosecutor to compare the character of prosecution witnesses,
such as police officers, to the character of an expert retained for the defense, in the
absence of a factual basis to do so.
Courts have found it is improper for a prosecutor to contrast the ethical
obligations of the State with those of criminal defense attorneys by arguing that
defense counsel did not take the prosecutor‟s sacred oath to see that justice is done
or that defense counsel wishes to see a guilty man go free. Wilson v. State, 938
S.W.2d 57, 58-60 (Tex. Crim. App. 1996), abrogated on other grounds by Motilla
v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002); cf. Bell v. State, 614 S.W.2d 122,
19 123 (Tex. Crim. App. 1981). Generally, when determining whether jury argument
is improper, courts consider whether the argument refers to defense counsel
personally or if it impugns opposing counsel‟s character. Mosley v. State, 983
S.W.2d 249, 259 (Tex. Crim. App. 1998). Trial counsel must also confine his
arguments to matters supported by the evidence. Brown v. State, 270 S.W.3d 564,
570 (Tex. Crim. App. 2008). Jury argument that questions the credibility of a
witness is proper, so long as it involves a reasonable deduction from the evidence.
Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); George v. State,
117 S.W.3d 285, 287-88 (Tex. App.—Texarkana 2003, pet. ref‟d).
While we agree the question was an improper attack on the defense expert‟s
credibility, we conclude that Wasserloos has not established that but for defense
counsel‟s failure to object, the result of the proceeding would have been different.
See Strickland, 466 U.S. at 694. The comment at issue was not made during
closing arguments. The reference to the “dark side” was made when the State
questioned Platt about leaving the police department to provide consulting services
primarily to criminal defense attorneys. Platt told the jury that “justice is blind”
that he believes there is no “dark side” when it comes to ensuring justice is done.
When taken in context, the prejudicial effect of the prosecutor‟s reference to the
“dark side” appears slight at best. We cannot say that Wasserloos has established a
20 reasonable probability that but for counsel‟s failure to object to this comment, the
result of the proceeding would have been different. See id.
Wasserloos has failed to show that the trial court abused its discretion in
denying his application for writ of habeas corpus. We overrule Wasserloos‟s sole
issue on appeal. We affirm the trial court‟s order denying Wasserloos‟s application
for habeas corpus.
AFFIRMED.
___________________________ CHARLES KREGER Justice Submitted on October 25, 2012 Opinion Delivered March 27, 2013 Do not publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.