Andre Demont Thompson v. State

ACCEPTED
01-14-00862-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/13/2015 7:29:20 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00862-CR
In The Court Of Appeals Of Texas FILED IN -
For The 1st COURT OF--APPEALS
- ----
HOUSTON, -
--- TEXAS
First Supreme Judicial District Of Texas 4/13/2015 - - ----ID K ------
- 7:29:20
- -- PM
---- VO ------
_____________________________________________________________
CHRISTOPHER ---- --
A. PRINE
----Clerk
NO.1364962
IN THE 178th JUDICIAL DISTRICT COURT
FILED IN
1st COURT OF APPEALS
OF HARRIS COUNTY, TEXAS HOUSTON, TEXAS
4/13/2015 7:29:20 PM
The Honorable David Mendoza, presiding CHRISTOPHER A. PRINE
Clerk
____________________________________________________________
Andre Demont Thompson
Appellant
VS
THE STATE OF TEXAS
Appellee
____________________________________________________________
APPELLANT’S ANDERS BRIEF
IN SUPPORT OF MOTION TO WITHDRAW
____________________________________________________________
GLENN J. YOUNGBLOOD
Appellant's Attorney
5555 West Loop South, Ste. 395
(713) 432-1013
(713) 432-1013 FAX
SBOT # 22217400
glenlaw@comcast.net
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENT
TABLE OF CONTENT .................................................................................. 2
IDENTIFICATION OF THE PARTIES ........................................................ 8
STATEMENT OF CASE ............................................................................... 9
SUMMARY .................................................................................................... 9
ANDER'S BRIEF CHECKLIST ITEMS ..................................................... 10
STATEMENT OF FACTS ........................................................................... 18
STATE'S WITNESSES ............................................................................. 18
Houston Police Department Officer Rafael Flores ............................... 18
Houston Police Department Officer Adrienne King.............................. 19
Houston Police Department Officer Ivan Ullo ...................................... 20
Jackie Bergeron ..................................................................................... 21
Juan Garcia............................................................................................ 24
Houston Police Department Officer Bob Brown ................................... 24
ISSUES PRESENTED ................................................................................. 25
FRIVILOUS APPEAL .............................................................................. 25
ISSUE NUMBER ONE ............................................................................. 26
Argument and Authority......................................................................... 26
Page 2 of 49
Injecting Unsworn Testimony ............................................................ 26
Mistrial................................................................................................ 27
ISSUE NO. 2.............................................................................................. 32
Argument and Authority......................................................................... 32
IMPROPER JURY ARGUMENT ..................................................... 32
General................................................................................................ 32
Prosecutor's Opinion/Bolstering ......................................................... 34
Striking at Appellant over the shoulder of counsel ............................ 36
Name Calling ...................................................................................... 39
Ineffective Assistance of Counsel ...................................................... 43
CONCLUSION ............................................................................................. 46
Issue No. 1 Denial of Mistrial ................................................................ 46
Issue No. 2 Ineffective Assistance- Failure to Object to Improper
Argument ................................................................................................ 47
Page 3 of 49
LIST OF AUTHORITIES
CASES
Alberts v. State, 302 S.W.3d 495 (Tex.App.-Texarkana 2009, no pet.) ........................... 46
Anders v. California, 386 US 738,744, 18 LEd.2d 493, 87 S. Ct. 1396 (1967 ................... 7
Archie v. State, 221 S.W.3d 695,(Tex. Crim. App. 2007) .................................................. 26
Borjan v. State, 787 S.W.2d 53 (Tex. Crim. App. 1990) ................................................... 31
Brown v. State, 270 S.W.3d 564, (Tex. Crim. App. 2008) ............................................... 31
Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984) ................................................ 41
Coble v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993) ........................................... 31
Currie v. State, 516 S.W.2d 684, 685 (Tex. Cr. App. 1974); .............................................. 7
Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ................................................ 28
Evans v. State, 60 S.W.3d 269 (Tex.App.-Amarillo 2001, pet. ref'd) ................................ 45
Ex parte Chandler, 182 S.W.2d 350 (Tex. Crim. App. 2005) ........................................... 42
Ex parte Raborn, 658 S.W.2d 602 (Tex.Cr.App.1983) .................................................... 43
Fernandez v. State, 564 S.W.2d 771 (Tex. Crim. App. 1978)............................................ 16
Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App.1988) .................................................. 40
Garcia v. State, 57 S.W.3d 436 (Tex.Crim.App.2001) .................................................... 45
Gardner v. State, 730 S.W.2d 675 (Tex. Crim. App. 1987)................................... 28, 29, 44
Gorman v. State, 480 S.W.2d 188 (Tex.Crim.App.1972) .................................................. 36
Harris v. State, 122 S.W.3d 871, (Tex. App.--Fort Worth 2003, pet. ref'd) ..................... 30
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) .......................................... 25
High v. State, 573 S.W.2d 807, 813 (Tex. Cr. App. 1978). .................................................. 7
Hubbard v. State, 770 S.W.2d 31 (Tex.App.-Dallas 1989, pet. ref'd)).............................. 45
Page 4 of 49
Jackson v. State, 766 S.W.2d 504 (Tex.Cr.App.1985) ...................................................... 43
Johnson v. State, 83 S.W.3d 229, (Tex. App.-Waco 2002, pet. ref'd) ................................ 27
Jordan v. State, 646 S.W.2d 946, (Tex. Crim. App. 1983) ............................................... 31
Kuhn v State, 393 S.W.3d 519 (Tex.App.-Austin 2013) .................................................... 45
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)............................................... 25
Linder v. State, 828 S.W.2d 290, (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd) .......... 28
Logan v. State, 698 S.W.2d 680, (Tex.Crim.App.1985) ................................................... 41
Longoria v. State, 154 S.W.3d 747(Tex. App.-; Houston [14th Dist.] 2004, pet. ref'd) ... 27
McCoy v Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 108 S. Ct. 1895, 1902, 100
L. Ed. 2d 440 (1988). ...................................................................................................... 23
Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) .......................................... 32, 45
Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App.1981) (op. on reh'g) ................ 33
Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) .......................................... 42
Moore v. State, 999 S.W.2d 385, (Tex. Crim. App. 1999) ................................................. 27
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ............................................... 26
Nevels v. State, 954 S.W.2d 154, (Tex. App.--Waco 1997, pet. ref'd) ............................ 35
Nixon v. State,
572 S.W.2d 699 (Tex. Crim. App. 1978) ...................................................................... 16
Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) ............................................ 25
Orona v. State, 791 S.W.2d 125, (Tex.Crim.App.1990) ................................................... 36
Perez v. State, 187 S.W.3d 110, (Tex. App.-; Waco 2006, no pet.) .................................. 28
Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) ............................................... 41
Strickland v. Washington, 466 U.S. 668 (1984) ............................................................... 41
Page 5 of 49
Temple v. State, 342 S.W.3d 572 (Tex. App.--Houston [14th Dist.] 2010)...................... 31
Temple v. State, 342 S.W.3d 572 (Tex.App.-Houston [14 Dist.] 2010) ............................ 30
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ............................................... 42
Thompson, 9 S.W.3d at 813) ............................................................................................ 42
v. State, 894 S.W.2d 330 (Tex.Crim.App.), cert. denied, 516 U.S. 832, 116 S. Ct. 106, 133
L. Ed. 2d 59 (1995) .......................................................................................................... 36
Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) ........................................... 26
Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ....................................... 28, 31
Williamson v. State, 771 S.W.2d 601 (Tex. App.--Dallas 1989, pet. ref'd) ...................... 32
Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) ............................................. 25
Young v. State, 137 S.W.3d 65, (Tex. Crim. App. 2004) ............................................ 32, 45
Young v. State, 137 S.W.3d 65, (Tex. Crim. App. 2004).................................................. 27
STATUTES
RULES
Code Crim. Proc. Ann. art. 42.12, § 21(d) (Vernon Supp. 2008) ..................................... 40
TEX. CODE CRIM. PRO. ART. ART 1.04 ..................................................................... 29
CONSTITUTIONAL PROVISIONS
Tex. Const. Art. 1, § 10 ..................................................................................................... 40
THE TEX. CONST. ART. 1 §§ 13,19 ............................................................................. 29
U.S. Const. amend. VI ....................................................................................................... 40
Page 6 of 49
Page 7 of 49
IDENTIFICATION OF THE PARTIES
Pursuant to Tex.R.App.P. 38.1(a), listed below is a list of the
interested parties:
1. Appellant: Mr. Andre Thompson, 01959294
Holiday Unit
295 IH-45 North
Huntsville, TX 72320
2 Appellate counsel: Glenn J. Youngblood
Attorney at Law
5555 South Loop West, Ste. 396
Bellaire, Texas 77401
(713) 432-1013
(713) 574-3042 FAX
SBOT: 22217400
glenlaw1@comcast.net
3 Trial Judge: Hon. David Mendoza
1201 Franklin St., 19th Fl.
Houston, Tx 77002
4 Complainant:
5 Defendant'sTrial Jules Johnon & Eric Davis
Counsel: Public Defender's Office
1201 Franklin St.
Houston, TX 77002
SBOT :24041199 & 24003493
6 State's Trial Counsel Mr. David Abrams
1201 Franklin St., Ste. 600
Houston, TX 77002
SBOT: 24063679
(713) 755-6916
7 Appellate Counsel for the Alan Curry
State: Assistant District Attorney
1201 Franklin, Suite 600
Houston, TX 77002
Curry_alan@dao.hctx.net
Page 8 of 49
STATEMENT OF CASE
The Appellant, Andre Demont Thompson was indicted on 1/16/2013
by a Harris County Grand Jury on a charge of Murder, a First degree felony,
alleged to have occurred on 10/5/2012. Upon Appellant’s plea of not guilty
the case was tried before a jury on October 1, 2014 through October 8,
2014. The jury found the Appellant guilty as charged and after hearing the
evidence and argument during the punishment phase of the trial sentenced
Appellant to 30 years years confinement in the Institutional Division of the
Texas Department of Criminal Justice.
Appellant gave timely and proper Notice of Appeal on 10/8/2014
SUMMARY
This Brief is prepared pursuant to the requirements for frivolous
appeals as set forth in Anders v. California, 386 US 738,744, 18 LEd.2d 493,
87 S Ct. 1396 (1967); Currie v. State, 516 S.W.2d 684, 685 (Tex. Cr. App.
1974); and High v. State, 573 S.W.2d 807, 813 (Tex. Cr. App. 1978).
Appellate counsel sets forth two issue(s) dealing with 1) the Court's abuse of
discretion in denying Appellant's Motion for mistrial and 2) trial counsel’s
Ineffective Assistance for failure to object to several instances of improper
jury argument during the guilt/innocence and punishment phases of the trial.
Page 9 of 49
ANDER'S BRIEF CHECKLIST ITEMS
As required by the Guidelines for filing an Anders Brief the checklist
of items and comments are set forth below in conformance with said
guidelines for Jury or Bench Trial.
1. Sufficiency of the indictment.
The Appellant was properly true billed on January 6, 2014. The
Indictment is in compliance with the requirements of Tex. Code Crim.
Pro. Art. 21.01 et.seq.
2. Any adverse pretrial rulings affecting the course of the trial, including
but not limited to rulings on motions to suppress, motions to quash, and
motions for a speedy trial.
Pretrial motions and rulings filed by the parties:
Clerk's Motion Ruling Filed by
Record.
118 Motion For None; Pro Se
Discovery
40 Discovery Order Granted Court's Standard
Order
Page 10 of 49
3. Any adverse rulings during trial on objections or motions, including but
not limited to objections to admission or exclusion of evidence, objections
premised on prosecutorial or judicial misconduct, and motions for
mistrial.
Reporter's Objection Ruling Party Objecting
Record.
Vol 2/13 Improper Overruled Defense
commitment
question Motion
For Discovery
Vol 2/40 Speculation Granted Defense
Vol 4/47 Asked and Overruled Defense
Answered
Vol 4/53 Leading Overruled Defense
Vol4,/54 Relevance Overruled Defense
Vol4/57 Nonresponsive Overruled Defense
Vol4/63 Asked and Sustained State
answered
Vol4/63 Asked and Sustained State
answered
Vol4/63 Asked and Sustained State
answered
Vol4/71 Relevance Overruled Defense
Vol4/72 Improper opinion Overruled Defense
evidence
Vol 4/120 Relevance Overruled Defense
Vol4/133 Speculation Overruled Defense
Page 11 of 49
Vol4/134 Relevance Overruled Defense
Vol4/135 Legal conclusion Overruled Defense
Vol4/170 Power Point Overruled Defense
presentation may
contain hearsay
Vol4/186 narrative Overruled Defense
Vol4/232 narrative Overruled Defense
Vol4/233 Witness belief not Overruled Defense
relevant
Vol4/ 236 Relevance Overruled Defense
Vol5/101 Improper Sustained State
argument -think
that Andre is you
Vol5/131 (during bench Overruled Defense
conference)
Victim Impact
Statement
Vol5/133 Renew previous Sustained Defense
objection
Vol5/133 Relevance and Overruled Defense
improper victim
impact testimony
Vol5/141 Relevance Overruled Defense
Vol6/34 Improper Overruled Defense
Argument
Vol5/35 Improper Overruled`` Defense
argument
Vol5/36 Improper-calls for Overruled Defense
law enforcement
Vol6/7 Relevance Sustained State
Page 12 of 49
Vol6/34 Improper Overruled Defense
argument
Vol6/35 Improper Overruled Defense
argument
Vol6/36 Calls for law Overruled Defense
enforcement
4. Any adverse rulings on post-trial motions, including motions for a new
trial.
None
5. Jury selection
Jury selection was without controversy.
6. Jury instructions
There were no objections to the jury charge or instructions. The
defense requested and received a charge on sudden passion.
7. Sufficiency of the evidence, including a recitation of the elements of the
offense(s) and facts and evidence adduced at trial relevant to the offense(s)
upon which conviction is based.
The evidence produced by the State consisted of testimony by:
Page 13 of 49
Jackie Bergeron who stated that he and his friend, the Complainant,
came to a park within the Green Arbor Apartment complex located in
Houston, Texas . The Appellant was there. The witness and the defendant
had been in an altercation on a previous occasion. Jackie claimed the
Appellant approached them with a gun tucked in his waist band in front of
his shirt. Jackie explained that this was considered a threat in the
neighborhood.
He went on to say that the Complainant showed that he also had a
gun. The three of them got into a verbal altercation with name calling and
cursing. When the Appellant pulled out his gun, Jackie and the Complainant
ran; each taking a different path. Jackie said he did not see the shooting but
that he did hear gunshots. When he came around the building he saw the
Complainant laying on the ground dead. Jackie said he took the gun that the
Complainant had and hid it. He said he intended to come back and retrieve
that gun because guns were hard to come by. [Reporter's Record, Vol. 3, Pg.
163- 188; Vol 4, Pg. 47-74].
Additional testimony was elicited from Houston Police Department
Officer Bob Brown. Officer Brown worked in the Criminal Intelligence
Division in a unit called the Cellular Intelligence Unit. Officer Brown
testified explaining how cell phone records can be used to track the travel
Page 14 of 49
and approximate location of a cell phone. He described how he used the cell
phone records of the Appellant to place the cell phone near the crime scene
at the time of the murder. [Reporter's Record, Vol. 4, Pg 169 - 231].
Mr. Juan Garcia gave testimony relating that he was in his apartment
when he heard gun shots. He looked out of his glass sliding patio door and
could clearly see the playground area. He said he saw a guy with a gun and a
boy running. As he watched he saw the boy fall. The guy then walked to the
boy, stood over him and partially raised the boy and shot him one or two
more times. [Reporter's Record, Vol. 4, Pg. 69 -231].
Additional testimony was presented through:
• the initial responding officer describing the crime scene;
• an Houston Police Department Detective who investigated the case;
• a Crime Scene Unit officer describing how the scene was preserved;
• a ballistics expert who gave some information about guns described
the gun Jackie hid as a 22 caliber revolver; and
• A DNA Analyst to explain the lack of usable DNA.
Dr. Roger Milton of the Harris County Institute of Forensic Sciences,
formerly the Harris County Medical Examiner's Office, testified regarding
his findings from the autopsy he conducted. He described the seven wounds
to the body of the Complainant. He pointed out the relative positions of the
Page 15 of 49
body with respect to each wound and which wounds were fatal and non-
fatal. [Reporter's Record, Vol. 5, Pg 8 - 54].
Elements of the offense charged are:
 In Harris County, Texas;
 Andre Demont Thompson;
 Did then and there unlawfully;
 Intentionally and knowingly
 cause the death of Thomas Williams;
 by shooting the Complainant sic [Thomas Williams];
 with a deadly weapon, namely a firearm.
 without any consent of any kind.
Further:
• Andre Demont Thompson;
• Did then and there unlawfully;
• intend to cause serious bodily injury;
• to Thomas Williams;
• and did cause the death of Thomas Williams;
• by intentionally and knowingly;
• committing an act clearly dangerous to human life;
Page 16 of 49
• by shooting the Complainant with a deadly weapon, namely a
firearm.
8. Any failure on the part of Appellant’s trial counsel to object to
fundamental error.
None. All trial objections are set forth in the Table of Objections in
Item 2 above.
9. Any adverse rulings during the punishment phase on objections or
motions.
All trial objections during the punishment phase are set forth in the
Table of Objections in Item 2 above under the column Reporter's Record,
Vol.6.
10. Whether the sentence imposed was within the applicable range of
punishment.
Appellant was found guilty as charged. The 30 year sentence was
within the range of punishment for the offense.
11. Whether the written judgment accurately reflects the sentence that was
imposed and whether any credit was properly applied.
Page 17 of 49
The Judgment jury finding and the Court imposed sentence accurately
reflects the sentence and the time credited to his 30 year sentence.
12. Examination of the record to determine if the Appellant was denied
effective assistance of counsel.
The record was examined to determine if Appellant had been denied
effective assistance of counsel and none was found. However, in accordance
with the requirements of an Anders brief arguable points of ineffective
assistance are included within the following brief.
STATEMENT OF FACTS
As must be done in accordance Fernandez v. State, 564 S.W.2d
771 (Tex. Crim. App. 1978) and Nixon v. State, 572 S.W.2d 699 (Tex. Crim.
App. 1978), viewed in the light most favorable to the verdict, the record
reflects the following:
STATE'S WITNESSES
Houston Police Department Officer Rafael Flores
Officer Flores explained generally how Houston Police Department
responds to calls and how a crime scene is secured until the crime scene unit
and investigators arrive. He also explained that statements from potential
witnesses are sought and taken.
Page 18 of 49
Officer Flores stated that he was on patrol and received a dispatch to
10601 Sabo the Green Arbor Apartment Complex. When he arrived he was
directed to the scene by residents where he found the body of the Thomas
Williams. There were about fifty people gathered around and he was
concerned the crime scene would be contaminated and he tried to move
them back. There was a man who said he was a nurse giving the
Complainant chest compressions he was allowed to continue his efforts. A
paramedic arrived and assisted in preserving the scene. later the investigators
arrived. After that Officer Flores left the scene. [Reporter's Record, Vol. 3,
Pg. 24 -29; 30-40].
Houston Police Department Officer Adrienne King
Houston Police Department Crime Scene Unit Officer King arrived at
the scene. Officer King described how she met with Officer Flores, began to
take photographs and mark possible items of evidence. This included placing
numbered markers at locations where shell casings, etc. were found. She
also took photographs of a gun, later determined to be a .22 caliber revolver
carried by the Complainant, hidden in bushes.
Officer King stated that she prepared a rough sketch of the area
surrounding the crime scene and indicated the relative locations of the items
of possible evidence. The State offered State's Exhibits 1-3, 4-44, and 61
Page 19 of 49
through Officer King; all of which were admitted without objection except
for State's Exhibit 61. The defense objected to State's 61 on the grounds that
it was a photograph of the body of the Complainant which would be highly
prejudicial. The objection was overruled.
Houston Police Department Officer Ivan Ullo
Houston Police Department Detective Ivan Ullo stated that he and his
partner, along with a probationary Detective arrived at the Green Arbor
apartment complex. He said that he and his partner began locating possible
witnesses while the probationary detective investigated the scene.
Detective Ullo was able to locate a witness named Jackie Bergeron.
He also developed a suspect known as Dre., later determined to be the
Appellant, Andre Thompson. After repeated attempts to contact the
Appellant, Detective Ullo had a warrant issued for the arrest of the
Appellant. During his investigation Detective Ullo was able to locate two
telephone numbers belonging to the Appellant; one was a land line and the
other was a cell phone. The State offered State's Exhibit 62, a photograph of
the Appellant. State's 62 was admitted without objection. [Reporter's Record,
Vol. 3 Pg 145 - 148].
Page 20 of 49
Jackie Bergeron
Jackie Bergeron, a nineteen year old male testified that he and his
friend Thomas Williams, the Complainant, went to the Green Arbor
apartment complex on October 5, 2012. He described the Complainant as a
friend he hung out with a lot who was fifteen years old at the time of his
death. The witness described how he and the Complainant were waiting for a
ride and were just "chilling out" and talking to some other acquaintances at
the playground area in the complex.
He described where they were on State's Exhibit 3A. He then
responded to the Prosecutor's question that he"…knew exactly who
murdered his friend… I see him right now…" When asked could he point
him out and identify him by a piece of clothing he is wearing he responded
"Blue in his tuxedo with the little twists in his head. Dude right there. You
see him." The witness positively identified the Appellant. [Reporter's
Record, Vol. 3, Pg. 163-169].
Jackie Bergeron testified that when he and the Complainant arrived at
the playground area he saw the Appellant was there "hanging out". Mr.
Bergeron stated that he knew the Appellant hung around the apartment
complex and that he had had an altercation, a fist fight, with him before. The
witness also stated that he had no bad blood toward the Appellant; he
Page 21 of 49
thought the incident was over. The witness testified that the Appellant
approached him and the Complainant with his gun "tucked"; the gun was
showing, he had the shirt behind the gun so it was showing. [Reporter's
Record, Vol. 3, 169 -174].
The witness explained that when the Appellant approached them the
Complainant lifted his shirt to show that he had a gun as if to say they were
not worried. "He was like, you know what I'm saying, we ain't worried about
your gun. We got guns, too. You know what I'm saying? He showed him
just like this. We have guns. We're not worried about your gun." [Reporter's
Record, Vol. 3, Pg. 177-179].
The three of them got into a verbal confrontation involving name
calling and cursing. The witness stated that at that time he just wanted to
fight the Appellant, but when the Appellant put his hand on his gun he
thought there was no squabbling, no fighting He told his friend "He is not
trying to fight, let's go. The next thing the witness knew gun shots came. he
started shooting." He went on to state that that is when they started running;
both in the same direction. [Reporter's Record, Vol.3 Pg. 180- 183].
Jackie Bergeron testified that he thought his friend was running with
him and when he turned and saw his friend falling. The witness ran in a
circle going through a couple of alley ways and came back around because
Page 22 of 49
he thought the Appellant was chasing him. When he came back around the
Appellant was gone and he saw his friend on the ground. Mr. Bergeron
estimated the time it took for him to run around that circle was
approximately thirty seconds.[Reporter's Record, Vol. 3, Pg. 184-185].
Jackie said that when he came around he saw his friend laying on the
ground face down in the grass. He was dead. The witness further explained
that "When I seen him it was like he was trying to gasp for some air, you
know what I'm saying?" The next thing he knew his friend took his last
breath and he was gone. He explained that at that time he was crazy. There
was nothing he could do. He was sad, mad, and everything. Jackie Bergeron
went on to admit that he took the gun from his friend's body and hid it in the
immediate vicinity. In closing direct examination he stated that he was 110%
sure the Appellant was the man he saw on October 5, 2012. [Reporter's
Record, Vol. 3, Pg. 186 -189].
After a lengthy discussion at the bench out-side the jury's presence,
and a recess until the next day to allow the Court to review the law and
argument of counsel, the Defense was allowed to go into the aggravated
robbery committed by the Complainant and Jackie Bergeron's just before the
shooting of the Complainant. He also admitted that he was serving
[Reporter's Record, Vol.3 Pg. 188- 206; Vol. 4 Pg. 5 - 21].
Page 23 of 49
Juan Garcia
Mr. Juan Garcia gave testimony relating that he was in his apartment
when he heard gun shots. He looked out of his glass sliding patio door and
could clearly see the playground area. He said he saw a guy with a gun and a
boy running. As he watched he saw the boy fall. The guy then walked to the
boy, stood over him and partially raised the boy and shot him one or two
more times. [Reporter's Record, Vol. 4, Pg. 69 -231].
Houston Police Department Officer Bob Brown
Additional testimony was elicited from Houston Police Department Officer
Bob Brown. Officer Brown worked in the Criminal Intelligence Division in
a unit called the Cellular Intelligence Unit. Officer Brown testified
explaining how cell phone records can be used to track the travel and
approximate location of a cell phone. He described how he used the cell
phone records of the Appellant to place the cell phone near the crime scene
at the time of the murder. [Reporter's Record, Vol. 4, Pg 169 - 231].
Page 24 of 49
ISSUES PRESENTED
FRIVILOUS APPEAL
Appellate counsel has a duty to master the trial record, thoroughly
research the law, and exercise judgment in identifying the arguments that
may be advanced on appeal. McCoy v Court of Appeals of Wisconsin, Dist.
1, 486 U.S. 429, 438, 108 S. Ct. 1895, 1902, 100 L. Ed. 2d 440 (1988). In
searching for the strongest arguments available, the attorney must be zealous
and must resolve all doubts and ambiguous legal questions in favor of his or
her client. Id. 486 U.S. at 444, 108 S. Ct. at 1905. If the only theories that the
attorney can find after a conscientious review of the record and the law are
arguments that cannot conceivably persuade the appellate court then the
appeal should be considered frivolous. Id. 486 U.S. at 436, 108 S. Ct. at
1901.
The undersigned attorney has reviewed the trial court record and has
researched the applicable law and has found only two theories which might
remotely constitute a basis upon which to appeal this cause. However, in his
opinion this theory cannot conceivable persuade the appellate court in favor
of reversal or remand of Appellant’s cause. The legal theories appellate
counsel has found are presented below as Issues Number One and Two.
Page 25 of 49
ISSUE NUMBER ONE
THE TRIAL COURT ABUSED IT'S DISCRETION DURING THE
TRIAL WHEN IT OVERRULED THE DEFENSE OBJECTION TO
IMPROPER JURY ARGUMENT DURING GUILT/INNOCENCE PHASE
OF THE TRIAL.
Argument and Authority
Injecting Unsworn Testimony
During closing argument at the guilt/innocence phase of trial the
Prosecutor injected unsworn testimony that was outside the record when he
said at [Reporter's Record, Vol. 5, Pg. 105]:
2 MR. ABRAMS: In her entire career she
3 has never found DNA on a shot shell casing. We don't
4 have pristine bullets. Absolutely, if we had one
5 pristine bullet, that would be wonderful, right?
6 We'd try to get fingerprints or DNA. There is no DNA
7 on spent shell casings.
8 MR. JOHNSON: Objection, Your Honor;
9 outside the record.
Page 26 of 49
10 THE COURT: That's sustained
11 MR. JOHNSON: Your Honor, I'd ask that
12 the jury be instructed to disregard.
13 THE COURT: Jury is instructed to
14 disregard the last comment.
15 MR. JOHNSON: Your Honor, we'd ask for
16 a mistrial.
17 THE COURT: That's denied.
Mistrial
A mistrial halts trial proceedings when error is so prejudicial
that expenditure of further time and expense would be wasteful and futile.
Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The particular
facts of the case determine whether an error requires a mistrial. Id. A mistrial
is an appropriate remedy in extreme circumstances for a narrow class of
highly prejudicial and incurable errors. See Hawkins v. State, 135 S.W.3d 72,
77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.
App. 2000).
A trial court's denial of a motion for a mistrial is reviewed for an abuse
of discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).
The evidence is viewed in the light most favorable to the trial court's ruling,
Page 27 of 49
considering only those arguments before the court at the time of its ruling
and the courts will uphold the ruling if it was within the zone of reasonable
disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).
The Court of Criminal Appeals has determined that the appropriate test
for determining whether a trial court abused its discretion by denying a
motion for a mistrial is a tailored version of the Mosley test according to
which it will balance three factors: (1) the severity of the misconduct (the
magnitude of the prejudicial effect of the prosecutor's remarks); (2) the
measures adopted to cure the misconduct (the efficacy of any cautionary
instruction by the trial court); and (3) the certainty of conviction absent the
misconduct (the strength of the evidence supporting the conviction). See
Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (citing Mosley
v. State, 983 S.W.2d 249, 259&260 (Tex. Crim. App. 1998)); Hawkins, 135
S.W.3d at 77 (same).
Due to the extremity of the remedy, a mistrial should be granted only
when less drastic alternatives have been explored (i.e., instructing the jury to
disregard inadmissible evidence or comment) and residual prejudice yet
remains. See Ocon, 284 S.W.3d at 884,885. While requesting lesser
remedies is not a prerequisite to a motion for mistrial in all situations, when
the movant fails to request a lesser remedy, we will not reverse the court's
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judgment if the less drastic alternative could have cured the problem. Ocon,
284 S.W.3d at 885; Young v. State, 137 S.W.3d 65, (Tex. Crim. App. 2004);
see also Wood, 18 S.W.3d at 648 (concluding that trial court did not abuse
its discretion in denying defendant's motion for mistrial when defendant had
not requested less drastic remedy of continuance). See Archie, 221 S.W.3d at
699,700 (stating that harmless-error analysis under Rule 44.2(a) is improper
when trial court sustains objection but denies request for mistrial because
only adverse ruling -denial of mistrial is reviewed for abuse of discretion).
The only issue with which we are presented is whether the denial of
Appellant's motion for mistrial was an abuse of discretion.
Numerous Courts have held that such errors may be cured by an
instruction by the trial court to disregard the comment. See Moore v. State,
999 S.W.2d 385, 405, 406 (Tex. Crim. App. 1999) (concluding that
instruction to disregard cured harm from comment on defendant's failure to
testify); Longoria v. State, 154 S.W.3d 747, 763, 764 (Tex. App.-; Houston
[14th Dist.] 2004, pet. ref'd) (holding instruction to disregard prosecutorial
comment on defendant's failure to testify cured error); Johnson v. State, 83
S.W.3d 229, 231, 233 (Tex. App.-Waco 2002, pet. ref'd) (holding trial court
did not abuse its discretion in denying motion for mistrial because
instruction to disregard prosecutorial question regarding defendant's failure
Page 29 of 49
to testify cured error); Linder v. State, 828 S.W.2d 290, 301 (Tex. App.-
Houston [1st Dist.] 1992, pet. ref'd) (holding instruction to disregard
prosecutorial comment on defendant's failure to testify cured error). When
an instruction to disregard is given, it is presumed that the jury followed the
instruction in the absence of evidence that it did not. See Ladd, 3 S.W.3d at
567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.
1987)).
In most instances, an instruction to disregard will cure the prejudicial
effect. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). An
instruction to disregard is presumptively inadequate only in the most blatant
cases; only offensive or flagrant improper conduct warrants reversal when
there has been an instruction to disregard. Perez v. State, 187 S.W.3d 110,
112,113 (Tex. App.-; Waco 2006, no pet.) (citing Dinkins v. State, 894
S.W.2d 330, 356 (Tex. Crim. App. 1995)).
Although the nature of the right affected by the Prosecutor's insertion
of unsworn testimony was serious, the prejudicial effect may be lessened by
the absence of flagrancy and persistency. See Perez, 187 S.W.3d at 112,113.
The defense requested an instruction and the Court instructed the jury
to disregard the last comment. The Prosecutor's argument cannot be said to
have been flagrant or persistent. It is presumed that the jury followed the
Page 30 of 49
instruction in the absence of evidence that it did not. See Ladd, 3 S.W.3d at
567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.
1987)). No such evidence of flagrancy or persistence is presented in this
case.
Page 31 of 49
ISSUE NUMBER TWO
THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL DUE TO TRIAL COUNSE 'S FAILURE TO OBJECT TO THE
IMPROPER ARGUMENT OF THE PROSECUTOR DURING CLOSING
ARGUMENTS IN THE GUILT/INNOCENCE AND PUNISHMENT
PHASES OF THE TRIAL, CONSTITUTING A DENIAL OF
APPELLANT'S RIGHTS UNDER THE U.S. CONST. AMEND. 6TH AND
14TH, THE TEX. CONST. ART. 1 §§ 13,19 AND TEX. CODE CRIM.
PRO. ART. ART 1.04
Argument and Authority
IMPROPER JURY ARGUMENT
General
The First Court of Appeals stated in Temple v. State, 342 S.W.3d 572
(Tex.App.-Houston [14 Dist.] 2010), the purpose of closing argument is to
facilitate the jury's proper analysis of the evidence presented at trial in order
to arrive at a just and reasonable conclusion based solely on the evidence.
Harris v. State, 122 S.W.3d 871, 883 (Tex. App.--Fort Worth 2003, pet.
ref'd). Proper jury argument generally falls within one of four general areas:
(1) summation of the evidence;
(2) reasonable deduction from the evidence;
Page 32 of 49
(3) answer to argument of opposing counsel; and
(4) plea for law enforcement.
See also Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); see
also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Coble v.
State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993).
A prosecuting attorney is permitted in his argument to draw from the
facts in evidence all inferences which are reasonable, fair, and legitimate,
but he may not use the jury argument to get before the jury, either directly or
indirectly, evidence which is outside the record. Borjan v. State, 787 S.W.2d
53, 57 (Tex. Crim. App. 1990) (citing Jordan v. State, 646 S.W.2d 946, 948
(Tex. Crim. App. 1983)).
When jury argument falls outside the approved areas, " it will not
constitute reversible error unless it is extreme or manifestly improper or
injects new facts harmful to the accused into the trial proceeding." Temple v.
State, 342 S.W.3d 572, 602-603 (Tex. App.--Houston [14th Dist.] 2010),
aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013); see Tex. R. App. P. 44.2(b);
Brown, 270 S.W.3d at 570.
To preserve error based on improper jury argument, the
defendant must object to the argument and pursue the objection until the trial
court rules adversely. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d
Page 33 of 49
334, 341 (Tex. Crim. App. 2004). The objection must be " a timely, specific
request that the trial court refuses." Young v. State, 137 S.W.3d 65, 69 (Tex.
Crim. App. 2004).
Prosecutor's Opinion/Bolstering
Argument that injects the prosecutor's opinion of a witness' credibility
is improper. Williamson v. State, 771 S.W.2d 601, 608 (Tex. App.--Dallas
1989, pet. ref'd). Proper jury arguments may, however, include argument as
to the truthfulness of a witness's testimony so long as the argument is based
on the evidence presented and reasonable deductions from such evidence,
including the complainant's demeanor while testifying. See Gonzalez, 337
S.W.3d at 483; see also Good, 723 S.W.2d at 736-37 (holding that
prosecutor's argument on truthfulness of witness was reasonable deduction
from witness's testimonial demeanor, which is considered to be in evidence);
Graves, 176 S.W.3d at 431 (stating that jury argument may include
vouching for witnesses' credibility if it is reasonable deduction from
evidence). Hinosa v State, 433 S.W.3d 742 (Tex.App.-San Antonio 2014)
The State's closing injected the Prosecutor's opinion vouching for
truthfulness of Jackie Bergeron's testimony when he argued "…he told the
truth…". This inserted opinion was not " based on reasonable deductions
from the evidence" and constituted unsworn testimony. See Gonzalez, 337
Page 34 of 49
S.W.3d at 483; see also Wesbrook, 29 S.W.3d at 115; Felder, 848 S.W.2d at
95. The prosecutor in furtherance of his opinion went on to argue "…he told
the truth…", "…he was up front with you…", "He has no reason to come in
here and say anything that's not true." [Reporter's Record, Vol. 5, Pg. 106 -
107]. The prosecutor's statements were improper and turned him into an
unsworn witness. These assertions that the prosecutor improperly expressed
were his personal opinion regarding the credibility of the State's key witness.
In Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App.1981) (op.
on reh'g) The Court stated " In the instant case Virse Hayes was the only
witness who could identify Appellant as the person who committed the
offense. On cross-examination her credibility was subjected to strong attack.
She admitted to having given a different statement about the color of the car
used by the robbers, and at one point she stated, '... you know, this robbery
has been far back, you know; you can't hardly remember.' The credibility of
this witness was critical to the trial of this case. The jury argument injected
the prosecutor's personal opinion of her credibility. In view of the trial
court's action overruling Appellant's objection, we cannot find harmless
error."
Page 35 of 49
In Appellant's case the credibility of the key witness Jackie Bergeron
was critical to this case. He was the only witness who could identify
Appellant as the person who committed the offense. On cross-examination
his credibility was subjected to attack. He admitted to committing an
aggravated robbery earlier in the day just before arriving at Green Arbor
apartment complex. He admitted that it was he who held the gun on the
victims of his earlier crime and that he was on eight years deferred
adjudication for that offense. He admitted he still had seven years to serve.
He further reluctantly admitted that his conduct on probation was to make
himself look good in the eyes of the probation officer. [Reporter's Record,
Vol. 4., Pg 17 - 20 ].
As in Menefee, the Prosecutor injected his personal opinion of the
credibility of the State's key witness and cannot be considered harmless
error. Here, however, the defense failed to raise an objection, request an
instruction to disregard or move for a mistrial.
Striking at Appellant over the shoulder of counsel
Comments which appear to cast aspersions on the character of defense
counsel, and as a result, " strike over counsel's shoulders at the defendant,"
are not within the zone of proper jury argument. Nevels v. State, 954 S.W.2d
Page 36 of 49
154, 158 (Tex. App.--Waco 1997, pet. ref'd). During the State's closing the
prosecutor made the following comments [Reporter's Record, Vol. 5, Pg.
104]:
Mr. Abrams:
….
1 The defense's job is to come in here
2 and say, "We want more evidence." They do it every
3 day. It's what they do. And personally it offends
4 me when they come in here and try to say you should
5 feel guilty of yourselves to make this decision.
6 It's on you. Absolutely not.
7 It's on him. He's the one that did
8 that. He's the one that took this action. The
9 defense's job is to throw everything up in the air as
10 much as they can and see what sticks. Well, maybe it
11 could be this, maybe it could be that. I think
12 Mr. Johnson said there were just too many maybes.
13 That is not reasonable doubt. It never is.
[Reporter's Record, Vol. 5, Pg. 104/1-12].
Again no objection by the defense.
Page 37 of 49
"This Court maintains a special concern for final arguments that result
in uninvited and unsubstantiated accusation of improper conduct directed at
a defendant's attorney." Orona v. State, 791 S.W.2d 125, 128
(Tex.Crim.App.1990). Courts have indicated in the past that mild comments
may not be erroneous, so long as they can be interpreted as an attack on
arguments made by the defense counsel. Gorman v. State, 480 S.W.2d 188,
190 (Tex.Crim.App.1972)(Prosecutor said of defense counsel: "Don't let him
smokescreen you, he has smoke-screened you enough"). However, that
holding has been brought into question by more recent precedent indicating
that legitimate arguments by defense counsel cannot serve as a basis for
permitting prosecutorial comments that "cast aspersion on defense counsel's
veracity." Dinkins v. State, S.W.2d 330, 357 (Tex.Crim.App.), cert. denied,
516 U.S. 832, 116 S. Ct. 106, 133 L. Ed. 2d 59 (1995)(Prosecutor stated that
defense counsel "wants to mislead you a little bit by saying....").
The State's argument, as well as inserting unsworn testimony, was a
clear effort to inflame the jurors against the Appellant and counsel. This
argument was an attempt to discredit defense counsel by insinuating that
counsel would try to mislead the jury, "it's what they do" "they do it every
day" by "…throwing everything up in the air as much as they can and see
Page 38 of 49
what sticks." The accused is entitled to a fair trial without reference to
outside prejudicial influence of the prosecutor's improper argument.
``Again no objection was raised.
Name Calling
The prosecutor argued during the punishment phase and introduced
unsworn testimony from outside the record to support his improper name
calling of the Appellant. In calling the jury's attention to the time aspect of
punishment rather than the economic aspect he argued:
4 And in determining that, you heard the
5 expression, "Motivation determines behavior." What
6 that means is that who you are as a person, decides
7 how you act. I don't know if any of you saw that it
8 was in a video back on CNN, maybe six months, a year
9 ago, something like that, where it was a mother, who
10 had her little baby, and she was holding -- she was
11 at the zoo -- and she holding this baby near the lion
12 cage.
13 And there was a clear plastic barrier
14 between this baby and the lion, and the baby is
Page 39 of 49
15 sitting there dancing, moving around, and the lion
16 comes out. It's gnawing right there. Everybody
17 thinks, oh, it's hilarious. It's cute. It's so
18 great mom's filming it, sends it to CNN, everybody
19 watches it. But was that really cute? What would
20 have happened if that glass barrier was not there?
21 That baby is a goner. Because the motivation of a
22 lion, a lion is a killer. A lion is a predator.
23 That lion would have eaten that baby and nothing
24 would have changed.
25 The defendant is a killer. He is a
1 predator.
[Reporter's Record, Vol. 6, Pg 32].
Not being satisfied with the extent of his vituperation he went on
with:
25 MR. ABRAMS: Have you seen the movie,
1 Jaws? I mean, for those who haven't seen it, it's a
2 about a man-eating shark, right? And there is a
3 scene in which there on a dock, all right.
4 And Chief Brody, he's one of the main
5 characters in the movie. And they're on this dock,
Page 40 of 49
6 and he has this gigantic shark hanging right there
7 and he's standing there. He's feeling good. He's
8 pumping his chest. I did a great job. I caught this
9 shark, and there's a group of people around him.
10 They're pumping their chests. Great job, Chief.
11 And then there's a woman that comes up
12 to him. She's dressed in black. She's obviously
13 mourning, slaps him across the face and says, "Why
14 did you let people go in the water if you knew there
15 was a shark?" And she walks away.
16 Now, everyone else gets around and
17 says, "Don't worry, you did a good job. You caught
18 that shark. Don't worry. Don't listen to her. It's
19 not your fault."
20 And he says, "No, it is."
21 This man is a shark. We have to decide
22 if we want to let him back in the waters in our
23 community.
[Reporter's Record, Vol. 6, Pg. 34 -35].
Page 41 of 49
Again no objection was made.
Although there appear to be decisions by this Court approving
referring to the defendant as "an animal", we also find that there are many
decisions of this Court which have reversed convictions because of such
remarks as were made here. See the cases collated in Erisman's Manual of
Reversible Errors in Texas Criminal Cases (1956 edition), § 529. Whether
such an argument will constitute reversible error, however, must be decided
on an ad hoc basis." Tompkins v. State, 774 S.W.2d 195 (Tex.Crim.App.
1987).
Again, Appellant did not object to this argument.
Proper jury arguments include summation of the evidence presented at
trial and reasonable deductions from that evidence. Gaddis v. State, 753
S.W.2d 396, 398 (Tex.Crim.App.1988). The prosecutors' references to
Appellant as an lion, a predator and a shark were not summations of the
witnesses' testimony because none of the witnesses referred to Appellant in
those terms. Additionally, arguing a CNN news item and scenes from the
movie Jaws, was the introduction of unsworn testimony outside the record
was meant to aggravate an already bad argument to harm the Appellant..
Page 42 of 49
These arguments were not reasonable deductions from the evidence.
The use of such terms was not warranted in the this case and were an
improper deduction from the evidence.
Again the potential for harm in the arguments could arguably have
been cured by instructions to disregard if Appellant had objected and
requested such instructions. Logan v. State, 698 S.W.2d 680, 682
(Tex.Crim.App.1985).
Ineffective Assistance of Counsel
Both federal and state constitutions guarantee a defendant the right to
counsel. See U.S. Const. amend. VI; Tex. Const. Art. 1, § 10. Defendants
have a right to effective assistance of counsel unless it is affirmatively
waived. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(d) (Vernon Supp.
2008). "The right to counsel affords an accused an attorney ``reasonably
likely to render and rendering reasonably effective assistance.'" Stafford v.
State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (quoting Cannon v.
State, 668 S.W.2d 401, 402 (Tex. Crim. App. 1984)). In analyzing claims of
ineffective assistance of counsel, the two-part test announced in Strickland
v. Washington, 466 U.S. 668 (1984) is applied. Ex parte Ellis, 233 S.W.3d
324, 330 (Tex. Crim. App. 2007). Under this framework, Appellant "must
Page 43 of 49
prove by a preponderance of the evidence that: (1) ``his counsel's
performance was deficient'; and (2) ``there is a ``reasonable probability'--one
sufficient to undermine confidence in the result--that the outcome would
have been different but for his counsel's deficient performance.'" Id. (quoting
Ex parte Chandler, 182 S.W.2d 350, 353 (Tex. Crim. App. 2005)).
To establish deficient performance, Appellant "must show that
``counsel was not acting as ``a reasonably competent attorney,' and his advice
was not ``within the range of competence demanded of attorneys in criminal
cases.'" Id. (quoting Ex parte Chandler, 182 S.W.3d at 354). Appellant "must
overcome the ``strong presumption that counsel's conduct fell within the wide
range of reasonable professional assistance.'" Id. (quoting Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Therefore, Appellant
"must ``overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.'" Id. (quoting
Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992)). "The
reasonableness of an attorney's performance is judged according to the
``prevailing professional norms' and includes an examination of all the facts
and circumstances involved in a case." Id. (quoting Strickland, 466 U.S. at
688). "We 'must be highly deferential to trial counsel and avoid the
deleterious effects of hindsight.' " Id. (quoting Thompson, 9 S.W.3d at 813).
Page 44 of 49
Under the second prong of the Strickland analysis, Appellant "must
establish that the constitutionally deficient performance prejudiced his
defense--that is, he must show that ``there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have
been different.' " Id. (quoting Ex parte Chandler, 182 S.W.3d at 354). "``A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.'" Id. at 330-31 (quoting Strickland, 466 U.S. at 694). "When
making this determination, any constitutionally deficient acts or omissions
will be considered in light of the ``totality of the evidence before the judge or
jury.'" Id. at 331 (quoting Strickland, 466 U.S. at 695).
"While this Court normally looks to the "totality of the representation"
and "the particular circumstances of each case in evaluating the effectiveness
of counsel, Ex parte Raborn, 658 S.W.2d 602, 605 (Tex.Cr.App.1983), we
have also found that under some circumstances a 'single error of omission by
... counsel [can] constitute[ ] ineffective assistance'." Jackson v. State, 766
S.W.2d 504 (Tex.Cr.App.1985), modified on other grounds on remand from
the U.S. Supreme Court 766 S.W.2d 518 (Tex.Cr.App.1988).
Under these circumstances, Appellant's counsel by failing to object to
the improper argument of the State as set forth above rendered ineffective
assistance. Moreover, these errors, made at the punishment phase were of a
Page 45 of 49
magnitude significant enough to render applicant's counsel ineffective.
Jackson v. State, supra.
CONCLUSION
Conclusions as to each of the issues and their subparts raised follows.
Issue No. 1 Denial of Mistrial
The nature of the right affected by the Prosecutor's insertion of
unsworn testimony was serious, the prejudicial effect was increased by the
flagrancy and persistency. See Perez, 187 S.W.3d at 112,113. Throughout
his closings the Prosecutor's argument in Appellant's case were persistence
flagrant .
The defense requested an instruction and the Court instructed the jury
to disregard the last comment. It is presumed that the jury followed the
instruction in the absence of evidence that it did not. See Ladd, 3 S.W.3d at
567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.
1987)). No such evidence of flagrancy or persistence is presented in this
case.
Page 46 of 49
Issue No. 2 Ineffective Assistance- Failure to Object to Improper
Argument
In order to preserve any error based on improper jury argument, the
defendant must object to the argument and pursue the objection until the trial
court rules adversely. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d
334, 341 (Tex. Crim. App. 2004). The objection must be " a timely, specific
request that the trial court refuses." Young v. State, 137 S.W.3d 65, 69 (Tex.
Crim. App. 2004). Failure to object waives the complained of error.
"The decision to object to particular statements uttered during closing
argument is frequently a matter of legitimate trial strategy." Kuhn v State,
393 S.W.3d 519 (Tex.App.-Austin 2013),Evans v. State, 60 S.W.3d 269, 273
(Tex.App.-Amarillo 2001, pet. ref'd) (citing Hubbard v. State, 770 S.W.2d
31, 45 (Tex.App.-Dallas 1989, pet. ref'd)). "Thus, evidence of counsel's
strategy, if any, is crucial to determining whether he was ineffective" in
failing to object to such a statement. Id.
If any reasonably sound strategic motivation can be imagined Courts
will not find counsel's performance deficient. See Garcia v. State, 57
S.W.3d 436, 440 (Tex.Crim.App.2001). One such reasonably sound strategic
motivation could have been the desire to avoid drawing additional attention
to the prosecutor's opinion. Cf. Alberts v. State, 302 S.W.3d 495, 506 n. 7
Page 47 of 49
(Tex.App.-Texarkana 2009, no pet.) (concluding that counsel's decision to
withhold objection to testimony concerning victim's truthfulness may have
been tactical decision to avoid calling jury's attention to objectionable
testimony).
Had Appellant's counsel objected to the complained of statements, the
prosecutor would have stopped his argument at that point to respond to the
objection, and the jury could have focused its attention on the statement. The
decision not to object could have been strategically motivated, and without a
record demonstrating otherwise, counsel's performance cannot considered
deficient. Kuhn v State, 393 S.W.3d 519, 538 (Tex.App.-Austin
2013).Moreover, even assuming that counsel was deficient in failing to
object to the statement, the record before this court has failed to show that
there is a reasonable probability that, but for counsel's failure to object, the
result of the proceeding would have been different.
Based of the undersigned attorney’s review of the record in this case,
legal research conducted by said attorney and the argument presented
hereinabove, the appeal filed in this cause is wholly lacking in meritorious
issues and is frivolous.
Page 48 of 49
Respectfully submitted
Digitally signed by Glenn J.
Youngblood
DN: cn=Glenn J. Youngblood, o,
ou=Attorney at Law,
email=glenlaw@att.net, c=US
___________________________
Date: 2015.04.11 11:44:40 -05'00'
Glenn J. Youngblood
Attorney at Law
5555 West Loop South, Ste. 395
Bellaire, Texas 77401
(713) 432-1013
glenlaw@comcast.net
State Bar No. 22217400
Page 49 of 49