Robert Sabatini v. State ( 2020 )

Affirmed and Memorandum Opinion filed December 31, 2020.
In The
Fourteenth Court of Appeals
NO. 14-20-00066-CR
ROBERT SABATINI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Cause No. 1557732
MEMORANDUM OPINION
Appellant Robert Sabatini appeals his conviction for sexual assault of a child.
A jury found appellant guilty and assessed his punishment at seven years in prison.
In four issues appellant contends he received ineffective assistance of counsel
because his trial counsel failed to object to inadmissible hearsay and improper
argument. We affirm.
BACKGROUND
In early summer 2015, the complainant, J.E. (“John”)1 joined a motocross
team with his friend Marcus. Appellant was the team’s coach and Marcus’s father,
Mark, frequently traveled with the team. John traveled to Rio Bravo, the motocross
track, approximately every other weekend usually staying from Friday after school
through Sunday. John remained on the team for five to six months after which John’s
mother made him quit the team because she “stopped feeling good about the
environment he was in.” John’s mother testified that she felt comfortable with the
environment in the beginning but when John started school in August, he began
having behavioral issues, which included tearing motocross posters off his walls and
being disrespectful toward others.
John, who was 14 or 15 at the time he joined the team, began to receive money
from appellant after joining the team. Appellant paid John as much as $100 or $150
at a time. Appellant also bought a motocross motorcycle for John despite the fact
that John was not racing, but was acting as a mechanic for the team. John’s mother
described other gifts such as a stand for the motorcycle, a racing jacket, motocross
goggles, and other items that other team members did not receive.
John’s friend Marcus testified that he met appellant at the same time John met
him. Marcus was a motocross racer who joined appellant’s team. Marcus testified
that appellant gave John a racing motorcycle despite the fact that John did not race
on the team. Marcus, Mark, and John frequently traveled together on the weekends
for the motocross racing team. Mark purchased a camping trailer for Marcus, John,
and him to sleep in on the weekend outings. Appellant, however, insisted that John
sleep with him in a small tent instead of the trailer. Marcus observed appellant pay
1
We use a pseudonym to refer to the complainant who was a minor at the time of the
offense. See Tex. Code Crim. Proc. Ann. art. 57.02.
2
more attention to John than the other members of the team. John and appellant would
take long walks and “disappear together, random times of the day.” Appellant did
not take long walks with other members of the team. Appellant provided alcohol to
the team members even though they were under the legal drinking age. Appellant
asked John to call him “dad” and Marcus observed that appellant appeared to try to
fill in as a father figure to John.
John testified that when he first joined the motocross team he would sleep in
the trailer with Marcus and Mark, and appellant would sleep in his truck. After a few
weeks, appellant brought a tent and John and appellant would sleep in the tent.
Appellant treated John differently than other members of the team, including paying
John for the weekends of practice and racing while other team members were not
paid. Appellant asked John to keep the payment a secret. John testified that he
considered the money to be “kind of a bribe.” Appellant bought John a motocross
motorcycle, a very expensive vaporizing pen for smoking, and accessories for the
motocross team. John described appellant as the first adult he had been able to trust.
The first time appellant sexually assaulted John appellant had arranged for
only Marcus, Mark, appellant, and John to be at the track that weekend. After Marcus
and his father went to sleep appellant walked John to a bridge in the area and began
“grabbing [John] inappropriately” and kissing him. Appellant then walked John into
the woods, backed him into a tree, and performed oral sex on John in addition to
continuing to kiss and grope him.
The next time appellant sexually assaulted John, they were at Marcus’s house
and appellant came over on Friday night presumably to get ready for the motocross
weekend. The two boys and two men were drinking, and Marcus and his father went
to bed. Appellant and John were in the backyard where the trailer was parked. They
eventually went into the trailer and appellant performed oral sex on John. John
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testified that each time appellant engaged in inappropriate behavior appellant began
the conversation asking John about John’s parents, friendships, and his diabetes
diagnosis. These questions “put [John] in a vulnerable place before starting
anything.”
John described another incident that occurred in a trailer at the motocross track
that had been set up for ticket sales (the “ticket trailer”). Appellant and John entered
the ticket trailer at night after it had closed, tripping over items near the door.
Appellant performed oral sex on John while in the ticket trailer. John testified that
he and appellant hurt themselves “climbing over some stuff to get” into the ticket
trailer.
Two or three times appellant attempted anal sex with John but was not
successful because John was resistant. Appellant asked John “to call him dad,” and
refer to appellant as his father. Over the course of three to five months appellant
engaged in inappropriate contact with John 12 to 20 times. John’s parents became
suspicious of appellant, and John’s stepfather started going to the track with John.
The abuse ended when the team disbanded, shortly after John’s stepfather started
accompanying John to the racing track.
John delayed making an outcry because he knew the motocross team would
be disbanded once he did. John not only did not want to lose the motorcycle appellant
had given him, but he did not want the team to disband for Marcus’s sake. John
eventually confided in Marcus about the abuse, but Marcus did not believe him and
began bullying him in school.
Appellant testified denying the allegations against him. Appellant admitted
giving John cash, but said it was to compensate him for his time. Appellant noted
that he paid race entry fees for other team members. Appellant denied providing
alcohol to any of the racing team members including Marcus and John, and denied
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sexual contact with John. Appellant admitted purchasing a motorcycle, gear, and a
vaping pen for John, but denied that the vaping pen was expensive. Appellant said
he provided the same items to other members of the team with the exception of the
vaping pen.
The jury convicted appellant of sexual assault of a child and assessed
punishment at seven years in prison. This appeal followed.
ANALYSIS
In four issues appellant asserts he received ineffective assistance of counsel
because counsel failed to object to (1) hearsay testimony at the guilt-innocence
phase; (2) improper closing argument at guilt-innocence that asserted facts not in
evidence; (3) improper closing argument at guilt-innocence referring to appellant as
a “monster” and John as a “lamb to the slaughter”; and (4) improper closing
argument at the punishment phase.
I. Standard of Review and Applicable Law
We examine claims of ineffective assistance of counsel under the standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, appellant
must establish that his trial counsel’s representation was deficient, and that the
deficient performance was so serious that it deprived him of a fair trial. Id. at 687.
Counsel’s representation is deficient if it falls below an objective standard of
reasonableness. Id. at 688. This deficiency will only deprive appellant of a fair trial
when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To
demonstrate prejudice, appellant must show a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id. at 694. Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.
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Our review of defense counsel’s performance is highly deferential, beginning
with the strong presumption that the attorney’s actions were reasonably professional
and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768,
771 (Tex. Crim. App. 1994). When the record is silent as to trial counsel’s strategy,
we will not conclude that appellant received ineffective assistance unless the
challenged conduct was “so outrageous that no competent attorney would have
engaged in it.” See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). Rarely will the trial record contain sufficient information to permit a
reviewing court to fairly evaluate the merits of such a serious allegation. See Bone
v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of cases, the
appellant is unable to meet the first prong of the Strickland test because the record
on direct appeal is underdeveloped and does not adequately reflect the alleged
failings of trial counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App.
2007).
A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel. See
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for examination.”
McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on
other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). “It is not
sufficient that the appellant show, with the benefit of hindsight, that his counsel’s
actions or omissions during trial were merely of questionable competence.” Mata,
226 S.W.3d at 430. Rather, to establish that the attorney’s acts or omissions were
outside the range of professionally competent assistance, appellant must show that
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counsel’s errors were so serious that he was not functioning as counsel. See Patrick
v. State, 906 S.W.2d 481, 495 (Tex. Crim. App. 1995).
In this case appellant did not file a motion for new trial alleging ineffective
assistance of counsel or develop a record of counsel’s reasons for his actions.
Therefore, in addressing counsel’s alleged ineffectiveness, the record is silent as to
counsel’s strategy.
II. Trial counsel did not render ineffective assistance by failing to object to
hearsay statements by the forensic interviewer.
Lisa Holcombe, a forensic interviewer with the Children’s Assessment Center
(“CAC”), testified to the general nature and purpose of a forensic interview.
Holcombe testified that the purpose of the interview is not to evaluate the
truthfulness of the disclosure but to look for demeanor and behavioral details that
give the interviewer an idea of what events might have occurred. Holcombe testified
that John named appellant as the perpetrator of the abuse against him. Trial counsel
did not object to Holcombe’s testimony.
On cross examination Holcombe re-iterated that it was not her job to evaluate
the validity of the evaluation. Also when John testified, on cross-examination
defense counsel used John’s statements to Holcombe to impeach John on
inconsistencies between what John told Holcombe and his testimony at trial.
Relying on this court’s opinion in Merrit v. State, 529 S.W.3d 549, 553 (Tex.
App.—Houston [14th Dist.] pet. ref’d), appellant argues that Holcombe’s testimony
was not admissible, and its admission harmed appellant’s substantial rights. In
Merrit, this court held that any error in the admission of the forensic interviewer’s
hearsay description of the complainant’s outcry statement was harmless when both
the complainant and a law enforcement officer also testified about the sexual abuse.
Id. at 556–57. Appellant argues that even though John testified about the abuse, no
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one other than the forensic interviewer and John testified that appellant was the
perpetrator of the abuse.
The improper admission of hearsay testimony under article 38.072 of the
Code of Criminal Procedure is nonconstitutional error that is harmless unless the
error affected the appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Garcia
v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004); Nino v. State, 223 S.W.3d
749, 754 (Tex. App.—Houston [14th Dist.] 2007, no pet.). An error is harmless if
we are reasonably assured that the error did not influence the verdict or had only a
slight effect. See Garcia, 126 S.W.3d at 927; Shaw v. State, 329 S.W.3d 645, 653
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). Likewise, the improper
admission of evidence is not reversible error if the same or similar evidence is
admitted without objection at another point in the trial. See Mayes v. State, 816
S.W.2d 79, 88 (Tex. Crim. App. 1991); Merrit, 529 S.W.3d at 556.
To demonstrate ineffective assistance based on a failure to object to evidence,
an appellant must show that the trial court would have committed harmful error by
overruling the objection had trial counsel objected. Donald v. State, 543 S.W.3d 466,
478 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Here, appellant has made no
such showing. The inadmissible testimony was the identification of appellant as the
perpetrator. John testified about multiple sexual assaults committed by appellant.
Therefore, the same testimony came in without objection during John’s testimony.
Even if trial counsel had objected, the admission of Holcombe’s hearsay testimony
would have been harmless.
Appellant argues that the jury was affected by Holcombe’s testimony as
evidenced by their request for a synopsis of the CAC interview. Given that trial
counsel heavily cross-examined John on statements made in the CAC interview, it
is just as likely that counsel’s cross-examination piqued the jury’s interest in the
8
interview synopsis rather than Holcombe’s testimony that John told her appellant
was the perpetrator.
Plausible professional reasons exist for not objecting to hearsay. There may
have been strategic reasons for not objecting in these instances, but we may not
speculate on counsel’s motives in the face of a silent record. See Thompson v. State,
9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see also Gamble v. State, 916 S.W.2d
92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (declining to speculate on
various failures to object to admission of evidence). In this case counsel may not
have objected because he planned to use the interview notes to impeach John. We
cannot say that defense counsel’s conduct was “so outrageous that no competent
attorney would have engaged in it.” See Goodspeed, 187 S.W.3d at 392. Therefore,
we conclude that appellant has not satisfied the first prong of Strickland on his
ineffective-assistance complaint related to the failure to object to allegedly
inadmissible evidence. We overrule appellant’s first issue.
III. Trial counsel did not render ineffective assistance by failing to object to
portions of prosecutor’s argument during the guilt-innocence phase.
In his second and third issues appellant asserts allegations of ineffective
assistance based on his counsel’s failure to object to the prosecutor’s comments in
closing argument in the guilt-innocence phase.
A. Prosecutor’s argument about ticket trailer
In issue two appellant asserts his counsel rendered ineffective assistance by
failing to object to the following argument during guilt-innocence:
So then it happens another time in that ticket trailer on the property. He
said they had to basically hurt themselves to break into this trailer.
Again, not a detail you just fabricate and make up, and you certainly
don’t remember it five years later if it was fabricated and made up. Had
to basically hurt themselves breaking into a trailer.
9
The law provides for, and presumes a fair trial, free from improper argument
by the prosecuting attorney. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App.
1990). The failure to object to improper jury argument does not ordinarily reflect
ineffective assistance. Porter v. State, 832 S.W.2d 383, 385 (Tex. App.—Houston
[1st Dist.] 1992, no pet.). The approved areas of jury argument are (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).
Appellant argues that the prosecutor’s argument about the ticket trailer was
outside the record and not supported by the evidence. The record reflects, however,
the following testimony from John:
Q. Okay. And then you said at some point he had gotten — Mr. Sabatini
had gotten into a trailer on the property of Rio Bravo?
A. Yeah. There was one — some sort of trailer that they had brought
over there that they were selling like race tickets or something, and one
night after Mark and Marcus had gone to bed, Mr. Sabatini brought me
over there. That’s where we ended up fooling around there.
*****
Q. And on this particular time, can you tell me what happened?
A. Yeah. Mr.— we would enter the trailer, whatever.
Q. Let me stop you right there. Was it nighttime or daytime?
A. It was nighttime. There was nothing in the trailer. We couldn’t
actually see. We tripped over a few things ourselves trying to get things,
but at that time, he undressed me and had me lay on my back. And that’s
when he sucked my dick, and then I guess kind of proceeded to climb
on top and make out with me and other things like that.
*****
Q. And you said you guys hurt yourself climbing over some stuff to get
in there?
A. Yeah, it was very dark, it was nighttime, probably like 12:30, 1:00
10
a.m. We finally got the door open and then there was like a couple of
chairs we tripped over and shit like that. And, yeah.
We analyze the closing argument in light of the entire record and not on the
argument’s isolated occurrence. Smith v. State, 483 S.W.3d 648, 657 (Tex. App.—
Houston [14th Dist.] 2015, no pet.). Appellant argues the prosecutor’s argument
about a ticket trailer and John hurting himself as they broke into the trailer
impermissibly placed matters before the jury that were outside the record. We
disagree. Wide latitude is allowed without limitation in drawing inferences from the
evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered
in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Thomas
v. State, 445 S.W.3d 201, 211 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d). It
is a reasonable deduction from the evidence cited above that appellant and John
broke into a trailer used to sell tickets and hurt themselves while tripping over things
as they entered the trailer.
Because the State’s argument about breaking into the ticket trailer was a
reasonable deduction from the evidence, it was not improper. See Torres v. State, 92
S.W.3d 911, 922 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). The failure to
object to argument that is not improper does not constitute ineffective assistance of
counsel. Davis v. State, 830 S.W.2d 762, 766 (Tex. App.—Houston [1st Dist.] 1992,
pet. ref’d); see also Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)
(explaining that isolated failures to object to improper evidence generally do not
constitute ineffective assistance of counsel). We overrule appellant’s second issue.
B. Prosecutor’s comments that appellant was a “monster” and
comparing the complainant to a “lamb to the slaughter”
In appellant’s third issue he asserts an allegation of ineffective assistance for
trial counsel’s failure to object to the following arguments of the prosecutor during
guilt-innocence:
11
And Mr. Sabatini, he is not the victim here. He is not the easy target.
[John] is the easy target. [John] is the one who is a lamb to the slaughter.
If you’re sitting there thinking, How could someone do this, sit there so
calm, cool, collected, and you sit there thinking that you will see a
monster, that some — you’re going — something telling, some facial
expression, or maybe he should look a different way or something. No.
What makes him the most terrifying monster of all is the monster hiding
among us. He is a monster you won’t think anything of if he is talking
to your kid at Home Depot. He is a monster that you won’t think
anything of if he is at the same motorcross park. And that’s what makes
him so dangerous. If you are sitting there thinking that he could have
done — couldn’t have done this, then you underestimate him.
*****
I’m asking you to find this man guilty and to not be more people fooled
by a monster hiding among us.
Appellant argues that the prosecutor’s repeated references to appellant as a
“monster” and John as a “lamb to the slaughter” were so prejudicial that counsel
rendered ineffective assistance by failing to object to the argument.
In Tompkins v. State, the Court of Criminal Appeals addressed the propriety
of a similar argument as the one presented here. 774 S.W.2d 195, 217–18 (Tex.
Crim. App. 1987), aff’d per curiam by an equally divided Court, 490 U.S. 754(1989). The prosecutor in Tompkins referred to the defendant as an “animal” during
closing arguments of the sentencing phase. Id. at 217. There was an objection, an
instruction to disregard, and a motion for mistrial, which was denied. Id. The
Tompkins court disapproved of the prosecutor’s remark but acknowledged there
were past decisions of the Court of Criminal Appeals that found similar remarks
proper deductions from the evidence and also decisions that reversed convictions for
such remarks. See id. at 217–18. Accordingly, the court stated that “[w]hether such
an argument will constitute reversible error, however, must be decided on an ad hoc
basis.” Id. at 217.
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Relying on Ponce v. State, 299 S.W.3d 167, 175 (Tex. App.—Eastland 2009,
no pet.), appellant argues that the State should not refer to the defendant by a
derogatory term designed to subject him to personal abuse. In Ponce, a prosecution
for aggravated sexual assault, the prosecutor in closing argument characterized the
defendant as a “monster.” Id. at 174. The court found the argument was improper
but held the improper argument did not affect the defendant’s substantial rights. Id.
at 175. In so holding the court noted that “[t]here is a difference ‘between harmless
argument outside the record and arguments calculated to deprive the defendant of a
fair and impartial trial.’” Id. (quoting Stein v. State, 492 S.W.2d 548, 552 (Tex. Crim.
App. 1973)). The court held that the solitary mention of the word “monster” was not
an argument calculated to deprive the defendant of a fair and impartial trial. Id.Here, appellant attempts to distinguish Ponce in that in this case the prosecutor
repeatedly referred to appellant as a “monster.” Texas law has made it clear that
context is highly important when deciding whether a closing argument is proper or
improper. See e.g. See Long v. State, 823 S.W.2d 259, 270 (Tex. Crim. App. 1991)
(“less human than any person with which the jury will ever have contact.”); McKay
v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985) (referring to defendant as a
“wolf”); Easley v. State, 454 S.W.2d 758, 761 (Tex. Crim. App. 1970) (referring to
defendant as a “savage”); Burns v. State, 556 S.W.2d 270, 285 (Tex. Crim. App.
1977) (holding that a reference to the accused as an animal is not improper when the
defendant had brutally tortured and murdered a 58-year-old man); Ponce v. State, 89
S.W.3d 110, 121 (Tex. App.—Corpus Christi 2002, no pet.) (“Dramatic epithets may
be used against a defendant during closing arguments as proper deductions based
upon the evidence and nature of the crime.”); Belton v. State, 900 S.W.2d 886, 898
(Tex. App.—El Paso 1995, pet. ref’d) (reference to defendant as an animal not
improper when the facts showed the accused broke into a family’s home, terrorized
13
them, and ultimately shot three of them dead).
Other cases have upheld as supported by the evidence characterizations of the
defendant as a “troublemaker,” a “cold-blooded murderer,” a “professional
shoplifter,” a “con man,” as “heartless, cold-blooded, blood sucking,” “a savage,” a
“beast,” a “mad dog,” and a “gangster.” See GEORGE E. DIX & JOHN SCHMOLESKY,
43 TEX. PRACTICE SERIES: CRIMINAL PRACTICE AND PROCEDURE § 45:15 (3d ed.
2019) and cases cited therein. “Despite the reasonableness of an approach calling for
appropriate decorum in courtroom argument, it is apparent that courts will allow a
degree of latitude for intemperate characterizations when there is a basis for the label
used in the evidence.” Id.
In the absence of direct evidence of counsel’s reasons for the challenged
conduct, an appellate court will assume a strategic motivation if any can be
imagined. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). That another
attorney, including appellant’s counsel on appeal, might have pursued a different
course of action does not necessarily indicate ineffective assistance. Josey v. State,
97 S.W.3d 687, 696 (Tex. App.—Texarkana 2003, no pet.). The decision to refrain
from objecting must be evaluated in light of the information available at the time.
Ex parte Carillo, 687 S.W.2d 320, 324 (Tex. Crim. App. 1985). Given the varying
nature of the courts’ rulings on arguments such as the prosecutor’s argument in this
case, and a silent record with regard to counsel’s trial strategy, we cannot conclude
that counsel’s failure to object to the prosecutor’s use of the term “monster” or
reference to the complainant as a “lamb to the slaughter” was conduct “so outrageous
that no competent attorney would have engaged in it.” See Goodspeed, 187 S.W.3d
at 392. The courts’ precedents in this area are conflicting. Counsel could have
believed that an objection would have been overruled, or even if sustained, may have
unnecessarily emphasized the derogatory term. Appellant did not file a motion for
14
new trial in this case, and this is not a habeas corpus proceeding; accordingly, the
record does not contain any express explanation for counsel’s conduct. We overrule
appellant’s third issue.
IV. Trial counsel did not render ineffective assistance by failing to object to
portions of prosecutor’s argument during the punishment phase.
In appellant’s fourth issue he asserts his counsel rendered ineffective
assistance by failing to object to the following argument:
There is no guarantee he will be revoked if he violates. No guarantee.
After this, this is out of your hands; and you have no control on whether
or not he is revoked if he violates probation. Finally, if he is revoked,
the Court shall proceed to dispose of the case as if there had been no
community supervision not to exceed the term of years assessed by the
jury.
At the beginning of the punishment hearing defense counsel read into the
record a copy of general conditions of probation that could be imposed if the jury
suspended appellant’s sentence and granted probation. Appellant’s brother also
testified to appellant’s character and his fitness for probation.
In closing argument defense counsel argued for probation including telling the
jury that if appellant violated a condition of probation, “The Judge would issue an
arrest warrant and can sentence him all the way up to 20 years in prison.”
Appellant argues the prosecutor’s argument was improper because a
prosecutor cannot “infer that probation is never revoked when certain conditions are
violated.” We do not read the prosecutor’s argument as making such an inference.
The prosecutor’s argument was a permissible response to defense counsel’s
argument explaining that the judge would issue an arrest warrant if appellant violated
the conditions of probation.
A defendant cannot complain of improper prosecutorial argument if he invited
15
the argument. Watts v. State, 371 S.W.3d 448, 458 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (citing Ripkowski v. State, 61 S.W.3d 378, 393 (Tex. Crim. App.
2001)). “[I]f the defendant’s counsel goes outside of the record in his argument, the
prosecutor is then also permitted to go outside the record to respond.” Reynolds v.
State, 505 S.W.2d 265, 266 (Tex. Crim. App. 1974). The prosecutor may not,
however, stray beyond the scope of the invitation. Drew v. State, 76 S.W.3d 436,
463 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
Appellant argues that the prosecutor’s argument was improper because the
argument inferred that probation is never revoked when certain conditions are
violated. Relying on Carnathan v. State, 478 S.W.2d 490, 494 (Tex. Crim. App.
1972) overruled on other grounds by Blake v. State, 971 S.W.2d 451, 456 n. 19 (Tex.
Crim. App. 1998).and Morris v. State, 755 S.W.2d 505, 510 (Tex. App.—Houston
[1st Dist.] 1988, pet. ref’d) appellant argues the prosecutor’s argument was an
attempt to arouse the passion and prejudices of the jury. We find the arguments found
to be improper in those cases distinguishable from the prosecutor’s argument here.
In Carnathan, the court held that it is improper for a prosecutor to infer that
probation is never revoked when certain conditions are violated. 478 S.W.3d at 493–
94. In Morris, the court held it was improper for a prosecutor to argue probation is
the equivalent of excusing an offender. 755 S.W.2d at 508–09. The argument in this
case did not rise to the level of inferring that probation is never revoked when certain
conditions are violated or that probation is the equivalent of excusing an offender.
In this case, defense counsel inferred that revocation of probation would be
the inevitable consequence of any violations of a condition of probation. The
prosecutor responded to appellant’s argument about the consequences of violating a
condition of probation pointing out that violation of a condition of probation was not
a guarantee of revocation of probation. The prosecutor’s argument therefore was a
16
permissible response to defense counsel’s argument. See Brown v. State, 270 S.W.3d
564, 571 (Tex. Crim. App. 2008) (proper jury argument includes answering jury
argument made by opposing counsel during the argument itself).
Inasmuch as we have determined the prosecutor’s argument was not
objectionable, we hold the failure to object to the argument does not constitute
ineffective assistance of counsel. See Davis v. State, 830 S.W.2d at 766. We overrule
appellant’s fourth issue.
CONCLUSION
Having overruled appellant’s issues on appeal we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Christopher, Zimmerer, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).
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