AFFIRMED; Opinion Filed January 5, 2017.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01214-CR No. 05-15-01215-CR No. 05-15-01216-CR No. 05-15-01217-CR
MANUEL ROBLES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F14-56298-V, F14-56299-V, F14-56300-V, F15-54771-V
MEMORANDUM OPINION Before Justices Lang, Myers, and Evans Opinion by Justice Myers Appellant Manuel Robles pleaded guilty to unlawful possession of a firearm by a felon, 1
possession with intent to deliver 4 grams or more but less than 200 grams of methamphetamine, 2
and two counts of possession of less than 1 gram of heroin.3 The jury found appellant guilty in
each of the four cases and assessed punishment at 10 years’ imprisonment for possession of a
firearm, 35 years for possession with intent to deliver methamphetamine, and 2 years’
confinement in a State jail facility in both of the possession of heroin offenses. The trial court
1 No. 05-15-01214-CR (F14-56298-V) 2 No. 05-15-01216-CR (F14-56300-V). 3 Nos. 05-15-01215-CR (F14-56299-V); 05-15-01217-CR (F15-54771-V). ordered the sentences to run concurrently. In two issues, appellant argues (1) the State’s closing
argument was extreme and manifestly improper, and (2) appellant’s trial counsel was ineffective
when he failed to object to the State’s allegedly improper jury argument. We affirm.
DISCUSSION
I. State’s Closing Argument
In his first issue, appellant contends the State’s closing argument “was extreme,
manifestly improper,” and that its “prejudicial effect could not be cured by an instruction to
disregard.” The record shows that, during closing argument in this case, the State argued as
follows:
This defendant has no problem breaking into cars, carrying handguns, evading arrest, theft, burglary of a building, robbery. The person he robbed was simply out walking his dog when this defendant approaches him, assaults him and takes his wallet. Are you guys going to give him a slight slap on the wrist so that in a few years, it’s your neighbors out walking their dog when you come across this defendant? The community is depending on you to protect them from this defendant.
****
Ladies and gentlemen, this is your community. If you want to be safe from this defendant, you want your family and friends to be safe from this community (sic); you’ll give him a number. You send him the message, This is our community. And I don’t want to come into my house and I find you there stealing things I worked for. I don’t want to come out to my car and find you have stolen it and it’s at a chop shop to sell parts to—
I don’t want to be walking my dog, come upon you for you to rob me of my money. You have to send the statement to him, today, ladies and gentlemen, our community commands he take responsibility. Thank you.
Appellant contends this argument was of such a nature that it was designed to arouse the
passion and prejudices of the jury and was highly inappropriate. He argues that the State did not
just make a plea for law enforcement but created a fear for the jurors by injecting new and
harmful facts that were not in evidence, such that the future safety of the jurors and their
–2– neighbors would be in jeopardy if they did not send appellant to prison. However, the record
shows appellant did not object to this argument and, therefore, failed to preserve error. The
essential requirement to preserve error for improper jury arguments is a timely, specific request
that is refused by the trial court. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); see
also TEX. R. APP. P. 33.1. “[A] defendant’s failure to object to a jury argument or a defendant’s
failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to
complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996); see also Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (failure to
object to an allegedly “manifestly improper” jury argument forfeits the right to raise the issue on
appeal); Alfaro v. State, 224 S.W.3d 426, 434 (Tex. App.––Houston [1st Dist.] 2006, no pet.).
Even if a prosecutor’s statement is so inflammatory and prejudicial that it cannot be cured by an
instruction to disregard, the defendant is required to object and request a mistrial. Mathis v.
State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002) (objection and request for a mistrial
required to preserve error when prosecutor called the defendant a “despicable piece of human
trash” in closing argument). While some fundamental, absolute rights cannot be waived for
failure to preserve an objection, improper jury argument does not fall into that category. See
Ladd v. State, 3 S.W.3d 547, 569–70 (Tex. Crim. App. 1999) (complaint about State’s argument
violating defendant’s right to due process was waived for failure to object); Haro v. State, 371
S.W.3d 262, 265 (Tex. App.––Houston [1st Dist.] 2011, pet. ref’d) (even for “incurable” or
“constitutional” error, trial counsel must object to preserve error). By failing to object to the
State’s closing argument, appellant failed to preserve his issue for appellant review. We overrule
appellant’s first issue.
II. Ineffective Assistance of Counsel
In his second issue, appellant argues his trial counsel was ineffective because he failed to
–3– object to the State’s allegedly improper jury argument.
To prove a claim of ineffective assistance of counsel, appellant must show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In
reviewing counsel’s performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that counsel’s performance falls within
the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187
S.W.3d 475, 482–83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs
by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.
1998). “An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009);
see also Strickland, 466 U.S. at 697.
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AFFIRMED; Opinion Filed January 5, 2017.
In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01214-CR No. 05-15-01215-CR No. 05-15-01216-CR No. 05-15-01217-CR
MANUEL ROBLES, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F14-56298-V, F14-56299-V, F14-56300-V, F15-54771-V
MEMORANDUM OPINION Before Justices Lang, Myers, and Evans Opinion by Justice Myers Appellant Manuel Robles pleaded guilty to unlawful possession of a firearm by a felon, 1
possession with intent to deliver 4 grams or more but less than 200 grams of methamphetamine, 2
and two counts of possession of less than 1 gram of heroin.3 The jury found appellant guilty in
each of the four cases and assessed punishment at 10 years’ imprisonment for possession of a
firearm, 35 years for possession with intent to deliver methamphetamine, and 2 years’
confinement in a State jail facility in both of the possession of heroin offenses. The trial court
1 No. 05-15-01214-CR (F14-56298-V) 2 No. 05-15-01216-CR (F14-56300-V). 3 Nos. 05-15-01215-CR (F14-56299-V); 05-15-01217-CR (F15-54771-V). ordered the sentences to run concurrently. In two issues, appellant argues (1) the State’s closing
argument was extreme and manifestly improper, and (2) appellant’s trial counsel was ineffective
when he failed to object to the State’s allegedly improper jury argument. We affirm.
DISCUSSION
I. State’s Closing Argument
In his first issue, appellant contends the State’s closing argument “was extreme,
manifestly improper,” and that its “prejudicial effect could not be cured by an instruction to
disregard.” The record shows that, during closing argument in this case, the State argued as
follows:
This defendant has no problem breaking into cars, carrying handguns, evading arrest, theft, burglary of a building, robbery. The person he robbed was simply out walking his dog when this defendant approaches him, assaults him and takes his wallet. Are you guys going to give him a slight slap on the wrist so that in a few years, it’s your neighbors out walking their dog when you come across this defendant? The community is depending on you to protect them from this defendant.
****
Ladies and gentlemen, this is your community. If you want to be safe from this defendant, you want your family and friends to be safe from this community (sic); you’ll give him a number. You send him the message, This is our community. And I don’t want to come into my house and I find you there stealing things I worked for. I don’t want to come out to my car and find you have stolen it and it’s at a chop shop to sell parts to—
I don’t want to be walking my dog, come upon you for you to rob me of my money. You have to send the statement to him, today, ladies and gentlemen, our community commands he take responsibility. Thank you.
Appellant contends this argument was of such a nature that it was designed to arouse the
passion and prejudices of the jury and was highly inappropriate. He argues that the State did not
just make a plea for law enforcement but created a fear for the jurors by injecting new and
harmful facts that were not in evidence, such that the future safety of the jurors and their
–2– neighbors would be in jeopardy if they did not send appellant to prison. However, the record
shows appellant did not object to this argument and, therefore, failed to preserve error. The
essential requirement to preserve error for improper jury arguments is a timely, specific request
that is refused by the trial court. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); see
also TEX. R. APP. P. 33.1. “[A] defendant’s failure to object to a jury argument or a defendant’s
failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to
complain about the argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.
1996); see also Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) (failure to
object to an allegedly “manifestly improper” jury argument forfeits the right to raise the issue on
appeal); Alfaro v. State, 224 S.W.3d 426, 434 (Tex. App.––Houston [1st Dist.] 2006, no pet.).
Even if a prosecutor’s statement is so inflammatory and prejudicial that it cannot be cured by an
instruction to disregard, the defendant is required to object and request a mistrial. Mathis v.
State, 67 S.W.3d 918, 926–27 (Tex. Crim. App. 2002) (objection and request for a mistrial
required to preserve error when prosecutor called the defendant a “despicable piece of human
trash” in closing argument). While some fundamental, absolute rights cannot be waived for
failure to preserve an objection, improper jury argument does not fall into that category. See
Ladd v. State, 3 S.W.3d 547, 569–70 (Tex. Crim. App. 1999) (complaint about State’s argument
violating defendant’s right to due process was waived for failure to object); Haro v. State, 371
S.W.3d 262, 265 (Tex. App.––Houston [1st Dist.] 2011, pet. ref’d) (even for “incurable” or
“constitutional” error, trial counsel must object to preserve error). By failing to object to the
State’s closing argument, appellant failed to preserve his issue for appellant review. We overrule
appellant’s first issue.
II. Ineffective Assistance of Counsel
In his second issue, appellant argues his trial counsel was ineffective because he failed to
–3– object to the State’s allegedly improper jury argument.
To prove a claim of ineffective assistance of counsel, appellant must show that (1) his
trial counsel’s performance fell below an objective standard of reasonableness and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez
v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In
reviewing counsel’s performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that counsel’s performance falls within
the wide range of reasonable professional assistance or trial strategy. See Robertson v. State, 187
S.W.3d 475, 482–83 (Tex. Crim. App. 2006). Appellant has the burden to establish both prongs
by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App.
1998). “An appellant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009);
see also Strickland, 466 U.S. at 697. Generally, a silent record that provides no explanation for
counsel’s actions will not overcome the strong presumption of reasonable assistance. Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the rare case in which trial counsel’s
ineffectiveness is apparent from the record, an appellate court may address and dispose of the
claim on direct appeal. Lopez, 343 S.W.3d at 143. However, the record must demonstrate that
counsel’s performance fell below an objective standard of reasonableness as a matter of law and
no reasonable trial strategy could justify trial counsel’s acts or omissions, regardless of counsel’s
subjective reasoning. Id.
“The decision to object to a particular [jury] argument almost always involves trial-
strategy considerations.” Bollinger v. State, 224 S.W.3d 768, 781 (Tex. App.––Eastland 2007,
–4– pet. ref’d). In this case, the record is silent as to the why trial counsel did not object to the
State’s comments made during its closing argument. Appellant filed a motion for new trial but it
did not raise ineffective assistance of counsel. It is possible counsel may have determined that
an objection would only bring further attention to the comments. See Ex parte Saenz, 491
S.W.3d 819, 828 (Tex. Crim. App. 2016) (“‘[I]n the absence of evidence of counsel’s reasons for
the challenged conduct, an appellate court ‘commonly will assume a strategic motivation if any
can possibly be imagined,’ . . . and will not conclude the challenged conduct constituted deficient
performance unless the conduct was so outrageous that no competent attorney would have
engaged in it.’”) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (quoting
3 W. LAFAVE, ET AL., CRIMINAL PROCEDURE § 11.10(c) (2d. ed. 1999))); West v. State, 474
S.W.3d 785, 792 (Houston [14th Dist.] 2014, no pet.) (trial counsel’s failure to object to
mentioning of defendant’s tattoo may have been trial strategy to avoid drawing unwanted
attention); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.––Houston [1st Dist.] 2013, no
pet.) (defense counsel may not have sought limiting instruction so as to not bring unwanted
attention to testimony regarding defendant’s prior “altercations” with other employees). The
record does not provide any insight into defense counsel’s true reasoning. Based on this silent
record, we cannot conclude counsel’s performance was “so outrageous that no competent
attorney would have engaged in it.” Goodspeed, 187 S.W.3d at 392; Garcia, 57 S.W.3d at 440.
We overrule appellant’s second issue.
We affirm the trial court’s judgments.
/Lana Myers/ LANA MYERS JUSTICE Do Not Publish TEX. R. APP. 47 151214F.U05 –5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MANUEL ROBLES, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-15-01214-CR V. Trial Court Cause No. F14-56298-V. Opinion delivered by Justice Myers. Justices THE STATE OF TEXAS, Appellee Lang and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 5th day of January, 2017.
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MANUEL ROBLES, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-15-01215-CR V. Trial Court Cause No. F14-56299-V. Opinion delivered by Justice Myers. Justices THE STATE OF TEXAS, Appellee Lang and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–7– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MANUEL ROBLES, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-15-01216-CR V. Trial Court Cause No. F14-56300-V. Opinion delivered by Justice Myers. Justices THE STATE OF TEXAS, Appellee Lang and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MANUEL ROBLES, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-15-01217-CR V. Trial Court Cause No. F15-54771-V. Opinion delivered by Justice Myers. Justices THE STATE OF TEXAS, Appellee Lang and Evans participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
–9–