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.

Judgment entered this 5th day of January, 2017.




                                             –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.

Judgment entered this 5th day of January, 2017.




                                             –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.

Judgment entered this 5th day of January, 2017.




                                             –9–
