MAJORITY OPINION
EDELMAN, Justice.
A jury convicted appellant of the misdemeanor offense of criminal mischief and the trial court assessed punishment at one year confinement. On appeal, appellant’s three points of error contend that he received ineffective assistance of counsel and that the trial court erred in overruling his objections to improper prosecutorial argument. We affirm.
Ineffective Assistance of Counsel
Appellant’s first point of error claims his trial counsel was ineffective in failing to: (1) have the voir dire transcribed, (2) file a motion to preclude the State from cross-examining appellant with his prior convictions, (3) adequately prepare appellant to testify, (4) object when the prosecutor cross-examined appellant with the details of his prior misdemeanor convictions, (5) seek a jury instruction limiting the jury’s consideration of appellant’s prior convictions, (6) object to the prosecutor’s final argument, and (7) secure an adverse ruling from the trial court to improper jury argument.
To establish ineffective assistance of counsel a defendant must show that counsel’s performance was deficient and prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The prejudice prong requires the defendant to show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. 2052. In analyzing the assistance of counsel, we presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Appellant has the burden of rebutting this presumption by presenting evidence indicating why trial counsel did what he did. See id.
In this case, appellant did not file a motion for new trial alleging ineffective assistance or otherwise develop a record of counsel’s reasons for the actions and omissions complained of. Because the record thus fails to reflect that defense counsel’s performance fell below an objective standard, appellant has faked to meet the first [796]*796prong of Strickland. See id. Accordingly, his first point of error is overruled.
Jury Argument
Appellant’s second point of error contends that the prosecutor was permitted to inject new and harmful facts outside the record to bolster the complainant’s and her neighbor’s credibility by stating that neither had criminal records:
THE STATE: [Appellant] has come up with this story that he wasn’t there, that it couldn’t have possibly happened, that [the neighbor] and [the complainant] are just both making it up. They’re both getting up here, neither of lohom have any criminal records perjuring themselves—
DEFENSE COUNSEL: Judge, I think she’s testifying outside the record again.
THE COURT: Overruled.
(emphasis added).
The purpose of closing argument is to facilitate the jury’s analysis of evidence presented at trial to arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. See Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.]1980). Permissible jury argument consists of: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000). In this case, it might be inferred from the lack of cross-examination of the witnesses based on a criminal record that neither had one. Nevertheless, because there was no evidence before the jury establishing the nonexistence of criminal records for the complainant and her neighbor, the foregoing argument was technically improper, and the trial court erred in overruling appellant’s objection to it.
Appellant’s third point of error contends that the prosecutor injected new and harmful facts when she referred to details of appellant’s prior misdemeanor conviction. The complained of argument pertained to the portion of appellant’s cross-examination in which the following exchange occurred:
Q. Back on '97, did you commit an assault on a woman, where you pled guilty in Court 14, on your ex-wife?
A. I’m not married.
Q. Did you plead guilty in an assault against a woman in Court 14?
A. I don’t recall.
Q. You don’t remember that?
A. No. ‘
When the prosecutor referred to that testimony in closing argument, the following transpired:
THE PROSECUTOR: I’m a convicted felon, but I don’t remember that assault. I don’t remember pleading guilty to that second assault on a woman, attacking a woman when she’s most vulnerable.
DEFENSE COUNSEL: Please the Court, there’s no evidence that this gentleman has attacked a woman. There is evidence of assault but there’s nothing about him attacking a woman.
TRIAL COURT: Overruled.
The prosecutor’s argument challenged appellant’s credibility in claiming not to remember an assault on another woman (his ex-wife) for which he had pled guilty and been convicted. The State contends the allegation that appellant assaulted a woman when she was most vulnerable was a reasonable deduction from the evidence. However, because appellant’s testimony regarding that guilty plea did not indicate that he assaulted a woman or the underlying circumstances, this argument was also outside the record and thus improper.
Harm Analysis
Having found that the trial court erred in overruling appellant’s objections to both arguments, we now consider whether those errors warrant reversal. See Tex.R.App. P. 44.2. Erroneous rulings [797]*797related to jury argument are generally treated as non-constitutional error within the purview of Rule 44.2(b). Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Rule 44.2(b) requires any error that does not affect substantial rights to be disregarded. See Tex.R.App. P. 44.2(b). In other words, “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after reviewing the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998).
Free access — add to your briefcase to read the full text and ask questions with AI
MAJORITY OPINION
EDELMAN, Justice.
A jury convicted appellant of the misdemeanor offense of criminal mischief and the trial court assessed punishment at one year confinement. On appeal, appellant’s three points of error contend that he received ineffective assistance of counsel and that the trial court erred in overruling his objections to improper prosecutorial argument. We affirm.
Ineffective Assistance of Counsel
Appellant’s first point of error claims his trial counsel was ineffective in failing to: (1) have the voir dire transcribed, (2) file a motion to preclude the State from cross-examining appellant with his prior convictions, (3) adequately prepare appellant to testify, (4) object when the prosecutor cross-examined appellant with the details of his prior misdemeanor convictions, (5) seek a jury instruction limiting the jury’s consideration of appellant’s prior convictions, (6) object to the prosecutor’s final argument, and (7) secure an adverse ruling from the trial court to improper jury argument.
To establish ineffective assistance of counsel a defendant must show that counsel’s performance was deficient and prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The prejudice prong requires the defendant to show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., 466 U.S. at 694, 104 S.Ct. 2052. In analyzing the assistance of counsel, we presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Appellant has the burden of rebutting this presumption by presenting evidence indicating why trial counsel did what he did. See id.
In this case, appellant did not file a motion for new trial alleging ineffective assistance or otherwise develop a record of counsel’s reasons for the actions and omissions complained of. Because the record thus fails to reflect that defense counsel’s performance fell below an objective standard, appellant has faked to meet the first [796]*796prong of Strickland. See id. Accordingly, his first point of error is overruled.
Jury Argument
Appellant’s second point of error contends that the prosecutor was permitted to inject new and harmful facts outside the record to bolster the complainant’s and her neighbor’s credibility by stating that neither had criminal records:
THE STATE: [Appellant] has come up with this story that he wasn’t there, that it couldn’t have possibly happened, that [the neighbor] and [the complainant] are just both making it up. They’re both getting up here, neither of lohom have any criminal records perjuring themselves—
DEFENSE COUNSEL: Judge, I think she’s testifying outside the record again.
THE COURT: Overruled.
(emphasis added).
The purpose of closing argument is to facilitate the jury’s analysis of evidence presented at trial to arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. See Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. [Panel Op.]1980). Permissible jury argument consists of: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) answer to the argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App.2000). In this case, it might be inferred from the lack of cross-examination of the witnesses based on a criminal record that neither had one. Nevertheless, because there was no evidence before the jury establishing the nonexistence of criminal records for the complainant and her neighbor, the foregoing argument was technically improper, and the trial court erred in overruling appellant’s objection to it.
Appellant’s third point of error contends that the prosecutor injected new and harmful facts when she referred to details of appellant’s prior misdemeanor conviction. The complained of argument pertained to the portion of appellant’s cross-examination in which the following exchange occurred:
Q. Back on '97, did you commit an assault on a woman, where you pled guilty in Court 14, on your ex-wife?
A. I’m not married.
Q. Did you plead guilty in an assault against a woman in Court 14?
A. I don’t recall.
Q. You don’t remember that?
A. No. ‘
When the prosecutor referred to that testimony in closing argument, the following transpired:
THE PROSECUTOR: I’m a convicted felon, but I don’t remember that assault. I don’t remember pleading guilty to that second assault on a woman, attacking a woman when she’s most vulnerable.
DEFENSE COUNSEL: Please the Court, there’s no evidence that this gentleman has attacked a woman. There is evidence of assault but there’s nothing about him attacking a woman.
TRIAL COURT: Overruled.
The prosecutor’s argument challenged appellant’s credibility in claiming not to remember an assault on another woman (his ex-wife) for which he had pled guilty and been convicted. The State contends the allegation that appellant assaulted a woman when she was most vulnerable was a reasonable deduction from the evidence. However, because appellant’s testimony regarding that guilty plea did not indicate that he assaulted a woman or the underlying circumstances, this argument was also outside the record and thus improper.
Harm Analysis
Having found that the trial court erred in overruling appellant’s objections to both arguments, we now consider whether those errors warrant reversal. See Tex.R.App. P. 44.2. Erroneous rulings [797]*797related to jury argument are generally treated as non-constitutional error within the purview of Rule 44.2(b). Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App.2000); Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Rule 44.2(b) requires any error that does not affect substantial rights to be disregarded. See Tex.R.App. P. 44.2(b). In other words, “[a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after reviewing the record as a whole, has fair assurance that the error did not influence the jury or had but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). The following three factors are used to analyze the harm associated with improper jury argument: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Martinez, 17 S.W.3d at 692-93; Mosley, 983 S.W.2d at 259.
In this case, the first argument alluded to the unproven facts that the complainant and another witness had no criminal records, as if a lack of criminal record would make them unlikely to perjure themselves. Because the lack of a criminal record, even if true, is not particularly probative of the credibility of the witnesses, the severity of the misconduct was not great. With regard to the second factor, although there was no curative instruction by the trial court, the prosecutor not only did nothing to emphasize it, but instead quickly corrected herself by stating, “There’s been no evidence that either of these people have criminal records.” To the extent the prosecutor misstated the evidence in her initial assertion, the latter statement corrected it, and left no reason for the jury to be misled by the first. Because the argument was a weak attempt to bolster the witnesses’ testimony, the third factor suggests that the certainty of conviction would not have been much less without the argument.
With regard to the second argument, defense counsel did not object to its reference to a previous assault conviction, but only to the lack of evidence that appellant had attacked a woman. Although an assault does not necessarily involve an attack, the distinction between the two was unimportant to the challenge being made to appellant’s credibility. Similarly, the reference to a woman was not severe in that appellant admitted that he had been convicted of yet another assault on a woman as well as an aggravated robbery. Therefore, the first factor weighs against harm. With regard to the second factor, the trial court did not make a curative instruction, but the State did not emphasize the erroneous aspects. In considering the third factor, the certainty of the conviction absent the misconduct, although the evidence at trial boiled down to a swearing match between the State’s witnesses and appellant, the complained of statements by the prosecutor could be expected to have had little effect on a rational jury’s image of appellant and his credibility in light of the evidence of his conduct in this case and other instances for which the evidence was not challenged. Because the record provides fair assurance that the arguments appellant complains of1 did not influence the jury or had but a slight effect, the second and third points of error [798]*798are overruled, and the judgment of the trial court is affirmed.