ACCEPTED 01-13-00496-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/26/2015 12:42:33 PM CHRISTOPHER PRINE No. 01-13-00496-CR CLERK In the Court of Appeals For the FILED IN First District of Texas 1st COURT OF APPEALS At Houston HOUSTON, TEXAS 1/26/2015 12:42:33 PM CHRISTOPHER A. PRINE No. 1853071 Clerk In the County Court at Law No. 7 Of Harris County, Texas JESUS ESCOBAR Appellant V. THE STATE OF TEXAS Appellee
STATE’S APPELLATE BRIEF
DEVON ANDERSON District Attorney Harris County, Texas
KATIE DAVIS Assistant District Attorney Harris County, Texas State Bar Number: 24070242 davis_katie@dao.hctx.net
THOMAS WADDLE BRADLEY MEANS Assistant District Attorneys
Harris County, Texas 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone: (713) 755-5826 Fax Number: (713) 755-5809
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral
argument is requested by the appellant.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon AndersonDistrict Attorney of Harris County
Katie DavisAssistant District Attorney on appeal
Thomas Waddle; Bradley Means Assistant District Attorneys at trial
Appellant or Criminal Defendant:
Jesus Escobar
Counsel for Appellant:
Alexander Bunin – Chief Public Defender
Sarah V. Wood – Assistant Public Defender on appeal
Lazaro Izaguirre—Counsel at trial
Trial Judge:
Honorable Pam DerbyshireJudge of County Court at Law No. 7
i TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.................................................................................... iii
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ........................................................................ 3
REPLY TO APPELLANT’S SOLE POINT OF ERROR ......................................... 4
State’s reply to the prosecutor’s voir dire comments ................................................ 4 I. The appellant failed to preserve any appellate complainant regarding the prosecutor’s voir dire because he failed make a timely objection. .................5
II. The prosecutor’s introductory comments about his role and duties as a prosecutor generally were not improper. .........................................................8
State’s reply to the appellant’s claim of ineffective assistance of counsel ..............13 CONCLUSION ........................................................................................................ 17
CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 18
ii INDEX OF AUTHORITIES
CASES
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ...............................................................6 Beltran v. State, 99 S.W.3d 807 (Tex. App.— Houston [14th Dist.] 2003, pet. ref’d) ........................................................... 5, 7, 9 Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) .................................................................6 Briddle v. State, 742 S.W.2d 379 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986 (1988) ..........................................................................5 Campos v. State, 946 S.W.2d 414 (Tex. App.— Houston [14th Dist.] 1997, no pet.)............................................................... 11, 12 Clayton v. State, 502 S.W.2d 755 (Tex. Crim. App. 1973) ...................................................... 11, 12 Cude v. State, 588 S.W.2d 895 (Tex. Crim. App. 1979) .............................................................14 Ex parte White, 160 S.W.3d 46 (Tex. Crim. App. 2004) ...............................................................14 Fowler v. State, 500 S.W.2d 643 (Tex. Crim. App. 1973) ...................................................... 11, 12 Gordon v. State, 191 S.W.3d 721 (Tex. App.— Houston [14th Dist.] 2006, no pet.)........................................................................9 Ingham v. State, 679 S.W.2d 503 (Tex. Crim. App. 1984) .............................................................14 Jackson v. State, 726 S.W.2d 217 (Tex. App.— Dallas 1987, pet. ref’d) .........................................................................................11
iii Johnson v. State, 698 S.W.2d 154 (Tex. Crim. App. 1985) ...................................................... 11, 12 Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) ...................................................... 14, 15 Mallet v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001) .................................................................15 Mendoza v. State, 552 S.W.2d 444 (Tex. Crim. App. 1977) .................................. 8, 9, 10, 11, 12, 15 Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992) .............................................................13 Mitchell v. State, 68 S.W.3d 640 (Tex. Crim. App. 2002) ...............................................................13 Murchison v. State, 93 S.W.3d 239 (Tex. App.— Houston [14th Dist.] 2002, pet. ref’d) ....................................................................7 Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) .................................................................14 Rodriguez v. State, 899 S.W.2d 658 (Tex. Crim. App. 1995) .............................................................14 Schmidt v. State, No. 09-09-00149-CR, 2010 WL 4354027 (Tex. App.— Beaumont Nov. 3, 2010, no pet.) ...........................................................................7 Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009) .............................................................13 Strickland v. Washington, 466 U.S. 668 (1984) ...................................................................................... 13, 16 Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .................................................................15 Unkart v. State, 400 S.W.3d 94 (Tex. Crim. App. 2013) .................................................................6 Valtierra v. State, 310 S.W.3d 442 (Tex. Crim. App. 2010) ...............................................................5 Weathersby v. State, 627 S.W.2d 729 (Tex. Crim. App. 1982) .............................................................14
iv Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987) ........................................................................14 Williams v. State, 417 S.W.3d 162 (Tex. App.— Houston [1st Dist.] 2013, pet. ref’d) ....................................................................10 Ybarra v. State, No. 14-03-00655-CR, 2004 WL 2401406 (Tex. App.— Houston [14th Dist.] Oct. 28, 2004, pet. ref’d) ........................................... 8, 9, 11 Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004) ...............................................................16 Zaiontz v. State, 700 S.W.3d 303 (Tex. App.— San Antonio 1985, pet. ref’d) ...........................................................................9, 10
STATUTES
TEX. CODE. CRIM. PROC. ANN. art. 2.01 (West 2005) ..............................................................................................4
RULES
TEX. R. APP. P. 33.1(a) ...........................................................................................5, 8 TEX. R. APP. P. 38.1(f) ...............................................................................................4 TEX. R. APP. P. 39....................................................................................................... i
v TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged the appellant with the delivery of less than one-fourth of
an ounce of marijuana, enhanced by one felony offense, and the jury found the
appellant guilty (CR – 5, 41; 3 RR 22). In accordance with a plea agreement
between the State and the appellant, the State abandoned the enhancement
paragraph and the trial court sentenced him to 120 days in the Harris County Jail
(CR – 43-44; 3 RR 25). The appellant filed a timely notice of appeal, and the trial
court certified that he had the right to appeal (CR – 46-7).
STATEMENT OF FACTS
On September 24, 2012, Officers Mark Ong and Rosalinda Ibanez of the
Houston Police Department’s (HPD) Narcotics Division conducted an undercover
“buy-bust investigation” in an area well-known for narcotics trafficking (2 RR 58,
82-4-5). Ong and Ibanez were both dressed in plain clothes and rode in an
unmarked vehicle (2 RR 64, 82). Ong noticed the appellant standing in front of a
convenience store watching traffic and “not really doing anything” (2 RR 59-60).
Ong associated this behavior with selling drugs (2 RR 60).
Ong approached the appellant and asked him for a “[twenty]-dollar bag of
weed” (2 RR 60). The appellant responded in Spanish (2 RR 60). Ibanez, who spoke fluent Spanish, then spoke with the appellant (2 RR 60, 88-9). Ibanez again
asked the appellant for a “twenty” of marijuana, and the appellant told her he knew
someone who sold “weed” (2 RR 86-7). Ibanez gave the appellant her phone
number and told him to call her when he had some marijuana (2 RR 61, 87). As
they drove out of the parking lot, Ibanez explained her conversation with the
appellant to Ong (2 RR 61).
Approximately thirty minutes later, Ibanez received a call from the appellant
who told her he had “it” (2 RR 61, 89). Ong and Ibanez drove back to the same
location where they had met the appellant earlier that day (2 RR 61, 90). The
appellant approached the passenger side of the vehicle where Ibanez was sitting (2
RR 61, 91). Ibanez handed him twenty dollars, and the appellant gave her a bag of
a green leafy substance (2 RR 62, 91). Based on their training and experience,
Ibanez and Ong immediately noticed the substance was marijuana (2 RR 62-3, 92).
They made the bust signal and described the appellant to the surveillance team that
was waiting two blocks away (2 RR 63, 92-3).
HPD Officer Kevin Hubenak, a member of the surveillance team, received
the bust signal and description of the appellant (2 RR 117). Ibanez told him the
appellant was a Hispanic male wearing a brown shirt and jeans (2 RR 117). Ibanez
informed him that the appellant had just entered the convenience store (2 RR 117).
Hubanek went in the store and found the appellant standing in line (2 RR 117).
2 Although there were a couple other patrons in the store, only the appellant matched
the description Ibanez provided Hubanek (2 RR 118). Hubanek recovered the
twenty-dollar bill Ibanez gave him to purchase the marijuana (2 RR 119). Hubanek
confirmed the money’s serial number matched the number written down before the
exchange (2 RR 65, 93, 119). And he placed the appellant into custody (2 RR 120).
Ibanez submitted the marijuana to the HPD Crime Lab to be tested (2 RR
95-6). Angelica Noyola, a criminalist trained in detecting controlled substances,
analyzed the evidence Ibanez submitted and determined it to be marijuana (2 RR
130-34). The marijuana weighed 0.11 ounces or 3.3 grams (2 RR 137-38).
SUMMARY OF THE ARGUMENT
The prosecutor’s voir dire examination did not improperly violate the
appellant’s presumption of innocence because his comments were general in nature
and did not specifically refer to the appellant or his trial. Even if the comments
were improper, they were not fundamental error; thus, the appellant’s failure to
object waived any complaint about the prosecutor’s comments during voir dire.
Trial counsel cannot be ineffective for failing to object to a proper voir dire
examination. Nevertheless, the appellant failed to rebut the presumption of sound
trial strategy and failed to show how he was prejudiced.
3 REPLY TO APPELLANT’S SOLE POINT OF ERROR
In a single point of error, the appellant contends that the prosecutor violated
the presumption of innocence by informing the jury panel that he believed the
appellant was guilty and that prosecuting him was the right thing to do. The
appellant further contends that his trial counsel was ineffective for not objecting to
this comment.1
State’s reply to the prosecutor’s voir dire comments
At the beginning of the prosecutor’s voir dire, he explained to the venire that
he was a recent hire, that this was his first jury trial, and that he was excited to be
there (2 RR 12-13). He showed the venire what the criminal code states regarding
the role of a prosecutor: “It shall be the primary duty of all prosecuting attorneys
… not to convict, but to see that justice is done.” (2 RR 13); see TEX. CODE. CRIM.
PROC. ANN. art. 2.01 (West 2005). The prosecutor explained that he was “excited
about that because it [meant] that [his] job [was] to do the right thing.” (2 RR 13).
He stated that he did not have to prosecute someone that he did not believe was
guilty, and could go forward only on those cases he believed in (2 RR 13).
1 Although the appellant’s point of error is multifarious and a vast majority of the argument centers on the prosecutor’s voir dire comment, the State will address the appellant’s complaint of ineffective assistance of counsel in the interest of justice. (App’nt Brf. 12-13); see TEX. R. APP. P. 38.1(f).
4 The prosecutor further told the jury panel that the current District Attorney
Mike Anderson in a recent training session said that he was “thankful for this job
and [his] position because [he] never [had] to try a case [he didn’t] believe in.” (2
RR 13). And because of these things, the prosecutor was glad to be there (2 RR
13).
I. The appellant failed to preserve any appellate complainant regarding the prosecutor’s voir dire because he failed make a timely objection. The appellant argues that the prosecutor improperly injected his personal
opinion that the appellant was guilty, therefore violating the presumption of
innocence. (App’nt Brf. 9). But the appellant admits he failed to make any
objections during the prosecutor’s voir dire (2 RR 13). (App’nt Brf. 11). And any
impropriety in a prosecutor’s comment during voir dire is waived by not making a
proper objection contemporaneously with the comment. Briddle v. State, 742
S.W.2d 379, 389 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986 (1988);
Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.—Houston [14th Dist.] 2003, pet.
ref’d) (holding because the appellant did not object to a prosecutor’s improper
comment during voir dire, any error has been waived); see also TEX. R. APP. P.
33.1(a) (“As a prerequisite to presenting a complaint for appellate review, the
record must show that: (1) the complaint was made to the trial court by a timely
request, objection, or motion … and (2) the trial court: (A) ruled on the request,
5 objection, or motion, either expressly or implicitly; or (B) refused to rule on the
request, objection, or motion, and the complaining party objected to the refusal.”).
The appellant argues that this type of error does not require an objection
because it is so egregious that it rises to the level of a fundamental error, citing
Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.). (App’nt
Brf. 11-12); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1984) (noting fundamental error must be so egregious it prevents a fair and
impartial trial). But the Court of Criminal Appeals has since held that Blue, a
plurality opinion, has no precedential value. Unkart v. State, 400 S.W.3d 94, 101
(Tex. Crim. App. 2013) (finding in Blue “it is not possible to ascertain a majority
holding or the narrowest ground or rule that commands a majority of the court”).
Additionally, the facts in Blue are distinguishable. In Blue, the trial judge
made comments that the reason the jury panel waited so long was that the appellant
was considering a plea offer from the State, and the judge would have preferred the
appellant pled guilty. Blue, 41 S.W.3d at 130. And when discussing the appellant’s
right to remain silent, the trial judge presented a hypothetical in which a defense
attorney puts Sister Teresa on the stand because no one thinks she would lie even
though she previously admitted to her lawyer that she was guilty. Id. The court
found that these remarks implicated the right to an impartial trial court because
6 they reasonably could be interpreted as the judge’s predetermination of the
appellant’s guilt. Id. at 135–39 (Keasler, J., concurring).
Here, the appellant has not shown that the prosecutor’s comments rose to the
level of Blue (2 RR 13). The prosecutor’s comments merely addressed his role and
ethical duties generally, and do not rise to such a level as to vitiate the impartiality
of the jury or bear on the presumption of innocence of this appellant. See
Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—Houston [14th Dist.] 2002,
pet. ref’d) (distinguishing Blue, holding there was no fundamental error in the trial
court’s remarks that conveyed the court was irritated at the defense attorney; thus,
the appellant needed to object to preserve any error).
Furthermore, the appellant cites no authority in which similar voir dire
statements were held to be fundamental error. Cf. Beltran, 99 S.W.3d at 811
(holding no fundamental error when a prosecutor’s statement in response to a
venire member’s question indicated her personal opinion that defendant was
guilty); Schmidt v. State, No. 09-09-00149-CR, 2010 WL 4354027, at *7 (Tex.
App.—Beaumont Nov. 3, 2010, no pet.) (mem. op., not designated for publication)
(holding no fundamental error or violation of the presumption of innocence when a
prosecutor’s answered a veniremember’s concern about sitting in judgment of
others with the fact that the jury would hear additional evidence at punishment).
7 Therefore, the appellant’s failure to object waived any appellate complaint about
the prosecutor’s remarks.
Finally, the appellant’s argument that the prosecutor improperly invoked the
name of Mike Anderson to garner sympathy due to Anderson’s life-threatening
illness lacks merit for several reasons. (App’nt Brf. 10, 12). First, it is not
preserved because the appellant failed to object. See TEX. R. APP. P. 33.1(a).
Second, besides Blue, he failed to cite any authority to support this contention.
(App’nt Brf. 10, 12). Finally, there is no evidence or mention by the prosecutor of
Anderson’s illness in the record. Thus, the appellant’s sole point of error should be
dismissed.
II. The prosecutor’s opening remarks in voir dire about his role and duty as a prosecutor generally were not improper. The appellant argues that the prosecutor improperly injected his personal
opinion that the appellant was guilty and therefore violated his presumption of
innocence. (App’nt Brf. 9). But the prosecutor’s opening remarks in voir dire were
not directed at the appellant, and general statements that do not constitute a
statement that the prosecutor believed the appellant was guilty are allowed (2 RR
13). Mendoza v. State, 552 S.W.2d 444, 446–47 (Tex. Crim. App. 1977); Ybarra v.
State, No. 14-03-00655-CR, 2004 WL 2401406, at *3 (Tex. App.—Houston [14th
Dist.] Oct. 28, 2004, pet. ref’d) (mem. op., not designated for publication); see also
Gordon v. State, 191 S.W.3d 721, 726-27 (Tex. App.—Houston [14th Dist.] 2006,
8 no pet.) (holding the trial court’s comments on how the criminal justice system
generally operates did not address the appellant’s guilt or innocence).
The appellant relies on Beltran, in which this Court held that the
prosecutor’s statement during voir dire that “[i]f I believed the man was not guilty
I wouldn’t be here” was improper. Beltran, 99 S.W.3d at 811 (emphasis added).
But this Court later distinguished Beltran. See Ybarra, 2004 WL 2401406 at *2-3.
In Ybarra, the prosecutor stated during her voir dire, “I took an oath to see
that justice is done and I take that oath very seriously. Sometimes it means I
dismiss cases. Sometimes it means I plea bargain them and sometimes it means I
take them to trial and fight tooth and nail for what I think is right.” Id. at *2. This
Court held that because this was a general comment it was not error. Ybarra, 2004
WL 2401406 at *3 (citing Mendoza, 552 S.W.2d at 446–47). But comments, like
those in Beltran, that directly express the prosecutor’s opinion that the defendant is
guilty are improper. Id. at *2-3 (distinguishing Beltran, 99 S.W.3d at 811, and
Zaiontz v. State, 700 S.W.3d 303, 307 (Tex. App.—San Antonio 1985, pet. ref’d)).
In reaching this conclusion, this Court relied on the Court of Criminal
Appeals’ holding in Mendoza. Ybarra, 2004 WL 2401406 at *3. The prosecutor in
Mendoza stated during voir dire, “our staff, myself being one of its members, has
the responsibility of seeing that the individuals who are guilty of criminal offenses
are brought to trial, and hopefully brought to justice.” Mendoza, 552 S.W.2d at
9 446. The court held that the prosecutor’s general statement was not a statement that
the appellant was guilty and thus not improper. Id. at 447. Therefore, although a
prosecutor cannot inject personal opinion in statements to the jury, generalized
statements are allowed.
In the present case, none of the prosecutor’s comments were specific to the
appellant or his trial, but rather were about the role and duty of a prosecutor
generally (2 RR 13). At no point did the prosecutor state that he believed the
appellant was guilty. When read in context with the rest of his introduction, the
prosecutor merely expressed his general excitement about becoming a prosecutor
and trying his first jury trial (2 RR 12). Even if the prosecutor implied that he
believed in this case, that is not the same as telling the jury he believed the
appellant was guilty. Cf. Zaiontz, 700 S.W.2d at 307 (finding the prosecutor’s
comment that he “wouldn't be here if [he] didn’t believe the Defendant to be
guilty” was improper); Williams v. State, 417 S.W.3d 162, 173 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d) (holding the prosecutor’s statement to the
venire that he would have dismissed the case if he believed the defendant was
innocent constituted an improper expression of his opinion that the defendant was
guilty).
Additionally, these comments are not reviewed in isolation. See Mendoza,
552 S.W.2d at 446-47 (noting that the prosecutor’s comments viewed in isolation
10 may be misleading, but when looking at the voir dire as a whole, the prosecutor
explained the presumption of innocence and the burden of proof). Here, after his
introductory remarks the prosecutor went on to clarify the appellant’s rights and
the State’s burden of proof (2 RR 14-15). See id. Additionally, his remarks were
made before the jury was impaneled, and evidence adduced. See Ybarra, 2004 WL
2401406 at *3. Furthermore, the record reveals the jury received instructions from
the trial court regarding the appellant’s presumption of innocence and the State’s
burden of proof before deliberations (CR – 37-38; 3 RR 5-11). Moreover, any
possible error would have been harmless. See Mendoza, 552 S.W.2d at 447. Thus,
the prosecutor’s comments in voir dire did not violate the appellant’s presumption
of innocence.
To support his contention, the appellant cites authorities addressing
misconduct in jury argument. (App’nt Brf. 9-12) (citing Fowler v. State, 500
S.W.2d 643 (Tex. Crim. App. 1973), Campos v. State, 946 S.W.2d 414 (Tex.
App.—Houston [14th Dist.] 1997, no pet.), Johnson v. State, 698 S.W.2d 154
(Tex. Crim. App. 1985), and Clayton v. State, 502 S.W.2d 755 (Tex. Crim. App.
1973)). But what is improper jury argument is different than what is an improper
comment during voir dire. See Jackson v. State, 726 S.W.2d 217, 221 (Tex. App.—
Dallas 1987, pet. ref’d) (noting “an improper statement during closing argument
has a greater impact on the jury than the same statement made during voir dire
11 when much time still remains before deliberations.”); see also Mendoza, 552
S.W.2d at 447 (noting that “[t]he conduct of the voir dire examination, including
the opening remarks of counsel must rest largely within the sound discretion of the
trial court.”).
Even if this Court were to analyze voir dire examination the same as jury
argument, the prosecutors’ remarks in Fowler, Campos, Johnson and Clayton were
all direct comments on that appellant’s guilt. See Fowler, 500 S.W.2d at 643 (“I
am certainly not going to prosecute a man that I don’t feel in my own heart is
guilty.”); Campos, 946 S.W.2d at 416 (“We know he committed the murder or we
wouldn’t be here…ladies and gentleman, Abraham Campos, unfortunately,
murdered Martin Rodriguez. I can’t change that fact. I’m submitting it to your
hands because I know it’s the truth…”); Johnson, 698 S.W.2d at 167 (referring to
the special issue question of provocation the prosecutor stated, “Now, if, I
personally don’t think there is…”); Clayton, 502 S.W.2d at 756 (“He couldn’t pay
me enough to come down here and prosecute a man I didn’t know in my heart to
be guilty.”). Accordingly, Fowler, Campos, Johnson and Clayton are
distinguishable from the present case. Thus, because the prosecutor’s comments
were not improper the appellant’s sole point of error should be overruled.
12 State’s reply to the appellant’s claim of ineffective assistance of counsel The appellant has failed to show that his trial counsel rendered a deficient
performance that harmed the appellant. A claim of ineffective assistance is
governed by the two-prong test set out in Strickland v. Washington, 466 U.S. 668
(1984). In order to prove an ineffective assistance claim, the appellant must first
show that the trial counsel’s performance was deficient. Id. at 687; see Mitchell v.
State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Specifically, the appellant must
prove by a preponderance of the evidence that the trial counsel’s representation fell
below the objective standard of professional norms. Mitchell, 68 S.W.3d at 642;
Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). The appellant must
also show that the deficient performance, affirmatively demonstrated in the record,
prejudiced his defense. Strickland, 466 U.S. at 687. Prejudice is shown by the
reasonable probability that but for his counsel’s unprofessional errors, the result of
the proceeding would have been different. Mitchell, 68 S.W.3d at 642.
In reviewing a claim of ineffective assistance, a reviewing court presumes a
trial counsel’s competence, and the appellant has the burden to rebut this
presumption by proving that his attorney’s representation was not sound strategy.
Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) (citing Strickland,
466 U.S. at 689). An appellate court looks to the totality of the representation,
rather than isolated acts or omissions of trial counsel. Wilkerson v. State, 726
13 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987);
Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). And an appellate
court does not judge trial counsel’s decisions in hindsight. Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011).
The appellant argues that trial counsel was ineffective for failing to object to
the prosecutor’s introductory remarks in voir dire. (App’nt Brf. 12). But, as
previously stated, the prosecutor’s remarks were not improper, and trial counsel
cannot be ineffective for failing to object to a proper voir dire examination. See
Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (holding when an
ineffective assistance claim alleges that counsel was deficient in failing to object to
the admission of evidence, the defendant must show as part of his claim that the
evidence was inadmissible); Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App.
2004) (noting “[t]o show ineffective assistance of counsel for the failure to object
during trial, the applicant must show that the trial judge would have committed
error in overruling the objection.”).
Additionally, an isolated failure to object may not constitute ineffective
assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App.
1984); Weathersby v. State, 627 S.W.2d 729 (Tex. Crim. App. 1982); Cude v.
State, 588 S.W.2d 895 (Tex. Crim. App. 1979). When looking to the totality of
counsel’s representation, he made thirteen appearances, conducted a thorough voir
14 dire, effectively cross-examined the State’s witnesses, and developed arguments
for why the jury should have reasonable doubt (2 RR 35-40, 65-75, 97-108, 120-
29, 138-146; 3 RR 11-15).
Furthermore, no direct evidence in the record established a reason that trial
counsel did not object to the prosecutor’s introductory remarks. And without a
sufficient record as to why counsel did not object, the existing record does not
rebut the “strong presumption that counsel’s conduct fell within the wide range of
reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808, 813-14
(Tex. Crim. App. 1999); see also Lopez, 343 S.W.3d at 142-43 (noting it is
difficult to demonstrate ineffective assistance of counsel on direct appeal); Mallet
v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (noting a record on direct
appeal cannot adequately reflect the motives behind trial counsel’s actions).
Therefore, counsel was not deficient.
The appellant speculates without providing any authority that the trial court
would have granted a mistrial had his trial counsel objected to the prosecutor’s
remarks. (App’nt Brf. 12-13). But a reviewing court cannot speculate to what the
trial court would or would not have done. See Thompson, 9 S.W.3d at 813 (finding
that an appellant must affirmatively prove prejudice); see also Mendoza, 552
S.W.2d at 447 (holding that the trial court did not abuse its discretion when it
chose not to dismiss the jury panel and grant a mistrial following the prosecutor’s
15 remarks during voir dire pursuant to the appellant’s request); Young v. State, 137
S.W.3d 65, 72 (Tex. Crim. App. 2004) (holding that the trial court did not err in
denying the appellant’s request for a mistrial following alleged improper voir dire
comments because an instruction to disregard would have cured any resulting
harm, where the appellant did not object or ask for such instruction and thus
foreclosed his opportunity to cure any prejudice).
Moreover, the State’s evidence was strong where two seasoned police
officers identified the appellant as the person who they requested marijuana from,
who called them, and who then sold them marijuana (2 RR 59, 83). Therefore,
there is no reasonable probability that a new trial, absent the alleged error, would
end in an acquittal. See Strickland, 466 U.S. at 695 (“When a defendant challenges
a conviction, the question is whether there is a reasonable probability that, absent
the errors, the factfinder would have had a reasonable doubt respecting guilt.”).
Accordingly, it is unlikely that the outcome would have been different in this case.
Thus, the appellant has not shown counsel was ineffective.
16 CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
/S/ _Katie Davis_________ KATIE M. DAVIS Assistant District Attorney Harris County, Texas 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone (713) 755-5826 Fax Number (713) 755-5809 Davis_Katie@dao.hctx.net State Bar Number: 24070242
17 CERTIFICATE OF SERVICE AND COMPLIANCE This is to certify that: (a) the word count function of the computer program used to prepare this document reports that there are 3,745 words in it; and (b) a copy of the foregoing instrument will be served by efile.txcourts.gov to:
Sarah V. Wood Assistant Public Defender Harris County, Texas 1201 Franklin, 13th Floor Houston, TX 77002 713-368-0016/p 713-368-9278/f Sarah.Wood@pdo.hctx.net
/S/ _Katie Davis_________ KATIE M. DAVIS Assistant District Attorney Harris County, Texas 1201 Franklin Street, Suite 600 Houston, Texas 77002 Telephone (713) 755-5826 Fax Number (713) 755-5809 Davis_Katie@dao.hctx.net State Bar Number: 24070242
Date: January 26, 2015