                           NUMBER 13-17-00683-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG


FELICIANO CRUZ,                                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 214th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Longoria and Perkes
         Memorandum Opinion by Chief Justice Contreras

      Appellant Feliciano Cruz was convicted of murder, a first degree felony, and

tampering with physical evidence, a third degree felony. See TEX. PENAL CODE ANN.

§§ 19.02, 37.09. On appeal, he argues: (1) the evidence was insufficient to support the

murder conviction; (2) the indictment “failed to charge felony murder properly” and an
invalid charge was submitted to the jury; (3) the punishment charge “exaggerated the

effect of good conduct time” and caused egregious harm; (4) his trial counsel provided

ineffective assistance; and (5) the trial court erred by allowing trial spectators to wear

“expressive clothing.” We affirm.

                                      I. BACKGROUND

       A Nueces County grand jury returned an indictment alleging that appellant, while

“in the course of and in furtherance of the commission or attempt of” a felony, intentionally

or knowingly committed an act dangerous to human life that resulted in the death of

Monica Ramos (Count I). See id. § 19.02(b)(3). The predicate felony was specified in

the indictment as “aggravated assault or injury to a child,” and the act dangerous to human

life was specified as “striking [D.C., appellant’s daughter,] with a loaded firearm.” Based

on the same incident, the indictment also alleged manslaughter, aggravated assault, and

injury to a child (Counts II, III, and IV, respectively). See id. §§ 19.04, 22.02, 22.04.

Finally, the indictment alleged that appellant, knowing that an offense had been

committed, intentionally or knowingly concealed a firearm with intent to impair its verity or

availability as evidence in a subsequent proceeding related to the offense (Count V). See

id. § 37.09.

       At trial, A.G. testified that, on her sixteenth birthday on July 7, 2016, she went to

the house of her fourteen-year-old friend, D.C. Ramos, a friend of appellant who was

thirty years old, was at the house. Appellant came to the house and then left with A.G.

and D.C. to drive them to a store. According to A.G., while driving to the store, appellant

was “swerving” and “going in both lanes.” The store was closed, but D.C. saw some of

her friends there, and they started talking outside of the car. Meanwhile, appellant fell



                                             2
asleep in the driver’s seat and A.G. waited in the back seat.

       A.G. stated that, at that point, Ramos then arrived and started talking to appellant.

Ramos made appellant get in the passenger seat and told D.C. to get back in the car.

According to A.G., Ramos wanted to drive and was “mad” because appellant was “driving,

I guess, intoxicated or something.” At some point, D.C. realized she had lost her phone,

so the group went back to the area of the store to look for it. D.C. eventually found her

phone, but appellant took the phone away, insulted her, and told her to walk home. D.C.

got out of the car and started walking on the left side of the road. Ramos followed behind,

driving slowly. From the back seat, A.G. then saw D.C. take a rock and threaten to break

the window of the car. At that point, appellant exited the car with a gun and began “hitting

[D.C.] with the gun and his hands.” A.G. clarified that appellant hit D.C. five or six times

with the “back of the gun” on the top of her head; he was also “pulling her hair and hitting

her with his hand.” A.G. explained that this assault went on for about thirty seconds.

       A.G. then heard two gunshots about three seconds apart, and she heard Ramos

tell appellant, “You shot me.” Ramos, who was in the driver’s seat at the time the shots

were fired, was bleeding and gasping for air, and she slumped out of the car. Appellant

took his shirt off and wrapped it around Ramos. He then threw his gun “in the gutter” and

he told D.C. and A.G. to lie to police, though he did not specify what exactly they should

say. When police first questioned A.G., she falsely told them she did not know what

happened because she was scared of appellant. She later told police the truth at the

police station, where she “felt more safe.”

       A.G. said that appellant and D.C were standing still immediately after the shots

were fired, but she confirmed that appellant was in the process of assaulting D.C. as the



                                              3
shooting took place. She acknowledged on cross-examination that she put her head

down for a few seconds toward the end of the assault because she thought she was going

to get shot. She also conceded that she initially told police that the gunshot came from

outside the car while appellant was in the car. When A.G. later spoke to D.C. about the

incident, D.C. was crying and was worried about what would happen if appellant “gets in

trouble.”

       D.C., who was fifteen years old at the time of trial, testified that after A.G. came to

her house, appellant drove the girls to a store. Because appellant was “swerving,” D.C.

believed appellant “was under the influence of something” and so she called Ramos.

Ramos came and told appellant to get in the passenger seat. After D.C. realized she lost

her phone, Ramos drove the group back to the store. At some point, D.C. got into an

argument with appellant, and appellant told her to walk home despite the fact that she

was not wearing shoes. D.C. started to walk and then “picked up a rock” and “threatened”

appellant, saying: “Leave me alone or I am going to throw this rock at your window.” At

that point, according to D.C., appellant

       pointed the gun at me and then I just told him to pull the trigger. And then
       he got off the car from the passenger side and then he came to where I was
       on the driver’s side. And [Ramos] opened the door and she said, Get in
       before your dad gets mad. And then so I was going to get in the car and
       then he pulled me out . . . [b]y my hair. And then he started hitting me with
       his gun and then it just went off.

When asked where on her body appellant hit her with the gun, D.C. replied: “I don’t

remember; I didn’t feel nothing. It just happened too quick.” She later agreed that

appellant was hitting her “over the head” and that she was covering her head with her

arms. Photos entered into evidence showed that she had some small scratches on her

hand after the incident.


                                              4
         Like A.G., D.C. testified that she initially did not tell police the truth because she

was scared, but she later told a detective the truth about what happened. D.C. denied

that appellant verbally told her to lie to police. However, she agreed that she sent

Facebook messages to her boyfriend in November 2016 stating “My dad wants me to lie

in court about what happened” and “He wants me to say he never had the gun and

[Ramos] had the gun the whole time.” D.C. also sent a message to another friend

describing the July 8 incident in detail and consistently with her trial testimony. She

explained in the message that appellant was “all barred out” at the time and that she

initially lied to police because she was living with appellant and “didn’t want them to take

him.”1

         On cross-examination, D.C. recanted her earlier testimony that appellant never

told her to lie. By way of explanation, she stated: “I don’t remember because I don’t like

to think about the whole situation. So I just forget things and then I just don’t remember

them until I see them again.”

         Police recovered a broken car door handle, two bullet casings, and a large rock

from the area where the incident took place. The door handle had been broken off from

the passenger-side front door of appellant’s car. Officers also located a Glock handgun

at the bottom of a storm drain near appellant’s car and a corresponding ammunition

magazine under the driver’s seat of the car. Appellant’s roommate testified that he

reported that exact handgun stolen in May of 2016; he suspected appellant or appellant’s

brother stole the gun because the theft did not involve a forced entry, there was no sign




       1 D.C. testified she deleted these messages.   However, they were obtained from Facebook
pursuant to a search warrant.


                                               5
of burglary, and appellant was his only roommate.2

          The medical examiner testified that Ramos died from a gunshot wound to the

chest, and she also suffered a gunshot wound to her left forearm. A firearms examiner

from the Corpus Christi Police Department testified that he test-fired the gun found at the

scene and determined it was the source of the casings recovered by police. A gunshot

residue analyst determined, based on evidence collected from appellant, that appellant

“fired a weapon, was in the immediate proximity of a weapon as it was being fired[,] or

came into contact with a surface that had gunshot residue particles on it” within four hours

before the evidence was collected. Another officer testified that, while being transported

to the police station that night, appellant admitted to using Xanax and claimed that he was

asleep in the car at the time Ramos was shot.

          The jury found appellant guilty on all five counts. It sentenced appellant to life in

prison on Count I and ten years’ imprisonment on Count V,3 and the trial court ordered

the sentences to run concurrently. Appellant filed a motion for new trial which was denied

by operation of law after a hearing. See TEX. R. APP. P. 21.8(c). This appeal followed.

                                                II. DISCUSSION

A.        Evidentiary Sufficiency

          Appellant contends by his first issue that the evidence was insufficient to support

his conviction for murder. In reviewing the sufficiency of the evidence to support a

conviction, we consider the evidence in the light most favorable to the verdict to determine

whether any rational trier of fact could have found the essential elements of the crime


          2   Appellant’s roommate testified that, when he asked appellant about the gun, appellant “just got
angry.”
          3   The State abandoned Counts II, III, and IV prior to the punishment phase.


                                                        6
beyond a reasonable doubt. Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016);

see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing

Jackson v. Virginia, 443 U.S. 307, 319 (1979)).                         We resolve any evidentiary

inconsistencies in favor of the verdict, keeping in mind that the jury is the exclusive judge

of the facts, the credibility of the witnesses, and the weight to give their testimony. Brooks,

323 S.W.3d at 899; see TEX. CODE CRIM. PROC. ANN. art. 38.04.

        In his sufficiency argument, appellant observes that the jury charge incorrectly

stated that injury to a child requires a showing that the victim was “younger than fourteen

(14) years of age.” In fact, for purposes of the predicate felony offense of injury to a child,

“child” means “a person 14 years of age or younger.” Id. § 22.04(c)(1).4 But sufficiency

of the evidence is measured by the elements of the offense as defined by a hypothetically

correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc). Here, a hypothetically

correct charge would instruct the jury to find appellant guilty of felony murder as alleged

in Count I if: (1) he committed or attempted to commit aggravated assault or injury to a

child, and (2) in the course of and in furtherance of the commission or attempt, he

committed or attempted to commit an act clearly dangerous to human life that caused

Ramos’s death. See TEX. PENAL CODE ANN. § 19.02(b)(3). It would state that a person

commits aggravated assault if he intentionally, knowingly, or recklessly causes bodily

injury to another while using or exhibiting a deadly weapon. Id. § 22.02(a)(2). And it

would state that a person commits the offense of injury to a child if he intentionally,




        4 The correct statutory definition of “child” was set forth twice elsewhere in the charge, including in

the application paragraph.


                                                      7
knowingly, recklessly, or with criminal negligence causes “a person 14 years of age or

younger” to suffer bodily injury. Id. § 22.01(a)(1), 22.04(a), (c)(1).

        Appellant notes that D.C. testified she “felt nothing” when appellant struck her with

the gun. Appellant also argues that D.C. “suffered no visible injuries,” though she testified

that she had a small abrasion on her arm which she thought was as a result of the gun

going off. Appellant argues that, in light of this evidence, no reasonable juror could find

beyond a reasonable doubt that appellant “assaulted” his daughter. We construe this

argument as challenging the sufficiency of the evidence to support a finding that he

caused D.C. to suffer “bodily injury.” See id. §§ 22.01(a)(1), 22.02(a)(2), 22.04(a).5

        “Bodily injury” means “physical pain, illness, or any impairment of physical

condition.” Id. § 1.07(a)(8). “Any physical pain, however minor, will suffice to establish

bodily injury,” Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012), as will “even

relatively minor physical contacts so long as they constitute more than mere offensive

touching.” Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). And “[a] fact

finder may infer that a victim actually felt or suffered physical pain because people of

common intelligence understand pain and some of the natural causes of it.” Id. Here,

although D.C. testified that she “didn’t feel nothing” when appellant hit her with the gun,

the jury could have disbelieved that testimony. See Lancon v. State, 253 S.W.3d 699,



         5 Depending on the manner in which it was committed, aggravated assault does not necessarily

require a showing that the victim actually suffered bodily injury. See TEX. PENAL CODE ANN. § 22.01(a)(2),
(a)(3) (providing that a person commits assault if he “intentionally or knowingly threatens another with
imminent bodily injury” or “intentionally or knowingly causes physical contact with another when the person
knows or should reasonably believe that the other will regard the contact as offensive or provocative”); id.
§ 22.02(a)(2) (stating a person commits aggravated assault if he commits assault as defined in § 22.01
while using or exhibiting a deadly weapon). The indictment did not specify the manner in which appellant
allegedly committed aggravated assault. We assume for purposes of this opinion that, in order to show
that appellant committed the completed offense of aggravated assault, the State needed to show that D.C.
suffered bodily injury.


                                                     8
707 (Tex. Crim. App. 2008) (“Because the jury is the sole judge of a witness’s credibility,

and the weight to be given the testimony, it may choose to believe some testimony and

disbelieve other testimony.”). The jury could have instead reasonably inferred—from

evidence that appellant was hitting D.C. over the head while D.C. was protecting her head

with her hands—that the scratches on D.C.’s hands were caused by appellant’s assault.

       In any event, the State did not need to prove that appellant actually caused D.C.

to suffer bodily injury; instead, consistent with the indictment, it could have established

the predicate felony offense by merely showing that appellant attempted to cause bodily

injury to D.C. See TEX. PENAL CODE ANN. § 19.02(b)(3). “A person commits an offense

if, with specific intent to commit an offense, he does an act amounting to more than mere

preparation that tends but fails to effect the commission of the offense intended.” Id.

§ 15.01(a). The evidence showed that appellant was arguing with D.C. and pointed his

gun at her before exiting the car and striking her with the gun. The jury could have

reasonably inferred from this that appellant had the specific intent to cause bodily injury

to D.C., whether or not she actually suffered such injury. See id. §§ 15.01(a), 19.02(b)(3).

       Appellant further contends by this issue that “the act constituting the underlying

felony and the act clearly dangerous to human life have merged, and thus could not

support a conviction for felony murder.” Appellant cites Garrett v. State for the proposition

that “there must be a showing of felonious criminal conduct other than the assault causing

the homicide” in a felony murder case. See 573 S.W.2d 543, 546 (Tex. Crim. App. 1978)

(holding that application of the felony murder doctrine is improper where “[t]he aggravated

assault and the act resulting in the homicide were one and the same”).6 However, the



       6   Garrett does not state, implicitly or explicitly, that the act constituting the underlying felony must

                                                        9
court of criminal appeals has since clarified that the rule elucidated in Garrett applies only

“when the underlying felony is manslaughter or a lesser included offense of

manslaughter.” Lawson v. State, 64 S.W.3d 396 (Tex. Crim. App. 2001); Johnson v.

State, 4 S.W.3d 254, 258 (Tex. Crim. App. 1999). Regardless, the act constituting the

underlying felony in this case (hitting D.C. with a gun) is separate from the act which

caused the homicide (the unintentional shooting of Ramos).

        Appellant’s first issue is overruled.

B.      Indictment

        By his second issue, appellant argues that “[t]he indictment failed to charge felony

murder properly” and the conviction is “invalid” because “valid and invalid charges [were]

submitted to the jury.” He contends that “the alternate charges in the felony murder

indictment lack an essential element of the offense altogether—the mens rea” and that “if

some jurors found [appellant] guilty of the merged murder (in the course of the aggravated

assault) and some found him guilty of the non-existent injury to a child (in the course of

injury to a child); we do not have a valid unanimous guilty verdict for felony murder.”

        Appellant does not cite authority regarding jury unanimity. See TEX. R. APP. P.

38.1(i). He does cite case law establishing that, in some circumstances, a verdict must

be set aside when it cannot be determined whether the verdict was based on a

constitutionally valid ground. See Griffin v. United States, 502 U.S. 46, 53 (1991) (noting

that “where a provision of the Constitution forbids conviction on a particular ground, the

constitutional guarantee is violated by a general verdict that may have rested on that

ground”). Appellant does not explain how his conviction is constitutionally prohibited



be separate from the “act clearly dangerous to human life” to support a felony murder conviction.


                                                   10
except to reiterate the arguments made in his first issue regarding the inconsistent

definitions of “child” in the jury charge and the necessity of showing separate felonious

conduct under Garrett. We have already rejected those arguments. Accordingly, we also

reject appellant’s second issue.

C.    Punishment Charge Error

      Appellant contends by his third issue that the jury charge at the punishment phase

incorrectly “exaggerated the effect of good conduct time on [his] sentence and parole”

and caused him to suffer egregious harm.

      1.     Error

      The charge in this case instructed the jury in relevant part as follows:

      Under the law, applicable in this case the defendant, if sentenced to a term
      of imprisonment, may earn time off the period of incarceration imposed
      through the award of good conduct time. Prison authorities may award
      good conduct time to a prisoner who exhibits good behavior, diligence in
      carrying out prison work assignments and attempts at rehabilitation. If a
      prisoner engages in misconduct, prison authorities may also take away all
      or part of any good conduct time earned by the prisoner.

      It is also possible that the length of time for which the defendant will be
      imprisoned might be reduced by the award of parole.

      In regards to Count 1 under the law applicable in this case, if the defendant
      are [sic] sentenced to a term of imprisonment, he will not become eligible
      for parole until the actual time served plus any good conduct time earned
      equals one-half of the sentence imposed or 30 years, whichever is less.
      Eligibility for parole does not guarantee that parole will be granted.

      ....

      It cannot accurately be predicted how the parole law and good conduct time
      might be applied to each [sic] defendant if he is sentenced to a term of
      imprisonment, because the application of these laws will depend on
      decisions made by prison and parole authorities.

      You may consider the existence of the parole law and good conduct time.
      However you are not to consider the extent to which good conduct time may
      be awarded to or forfeited by this particular defendant. You are not to


                                           11
       consider the manner in which the parole law may be applied to this
       particular defendant.

(Emphasis added.) The State concedes that the italicized portion set forth above is

erroneous.    Instead, the jury should have been instructed that appellant would not

become eligible for parole until he has actually served half of his sentence, or thirty years,

whichever is less, “without consideration of any good conduct time he may earn.” See

Act of May 26, 1985, 69th Leg., R.S., ch. 576, § 1, 1985 Tex. Gen. Laws 2195, 2195

(amended 2019) (current version at TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4(a))

(requiring the inclusion of certain language regarding parole and good conduct time in a

punishment charge for, among other offenses, murder).

       2.     Harm Analysis

       Appellant’s trial counsel did not object to the punishment charge. Therefore, the

error requires reversal only if appellant suffered egregious harm as a result of the error.

Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). Egregious harm will be found

only if the error deprived the defendant of a fair and impartial trial. Id. The record must

disclose actual rather than theoretical harm, and the error must have affected the very

basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive

theory. Id. In reviewing for egregious harm, we consider “the entire jury charge, the state

of the evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record of the trial

as a whole.” Almanza, 686 S.W.2d at 171.

       In Igo v. State, a sexual assault case, the Texas Court of Criminal Appeals

considered a very similar charge error. 210 S.W.3d 645, 646 (Tex. Crim. App. 2006).


                                             12
There, the jury was incorrectly instructed that the appellant “would not become eligible for

parole until the actual time served, plus good [conduct] time, equaled one-fourth of the

sentence imposed.” Id. The jury should have been instructed that the appellant “would

not become eligible for parole until the actual time served, without considering good

[conduct] time, equaled one-half of the sentence imposed.” Id. In concluding that the

appellant did not suffer egregious harm as a result of the error, the Court stated:

       Although appellant did receive the maximum sentence, a number of other
       factors mitigate against a finding of egregious harm. First, the parole
       instruction contained the standard curative language admonishing the jury
       not to consider the extent to which the parole law might be applied to the
       defendant. Second, parole was not mentioned by either counsel during
       argument on punishment. And finally, the evidence relating to punishment
       was exceptionally strong.

Id. at 647. As to the strength of the punishment evidence, the Court noted in particular

that “the jury could have viewed the sexual assault here as especially heinous because

the victim was one of appellant’s students”; that the appellant “continued a sexual

relationship with the victim, even after he was indicted”; and that appellant “even tried to

bribe [the victim] to drop the charges.” Id.

       Appellant argues that his case is instead analogous to Hill v. State, 30 S.W.3d 505,

508–09 (Tex. App.—Texarkana 2000, no pet.), and Navratil v. State, No. 05-97-01404-

CR, 2001 WL 92688, at *3 (Tex. App.—Dallas Feb. 5, 2001, pet. ref’d) (not designated

for publication), two cases where egregious harm was found to result from charge errors

identical to the one presented here. In Hill, the appellant received a thirty-year sentence

for aggravated robbery, a first degree felony punishable by up to ninety-nine years or life

in prison. 30 S.W.3d at 508; see TEX. PENAL CODE ANN. §§ 12.32, 29.03(b). Despite the

fact that the appellant did not receive the maximum sentence—and without discussing

whether the charge contained the standard curative instruction or whether parole or good

                                               13
conduct time were mentioned in arguments—the Texarkana court held that the trial

court’s “misstatement of the law . . . misled the jury and seriously affected how it viewed

the existence of parole and good conduct time, which the instructions plainly told the jury

it could consider.” Hill, 30 S.W.3d at 508; see id. at 509 (noting that “[i]n some cases,

erroneous jury instructions alone can demonstrate egregious harm”). The Dallas court in

Navratil, citing Hill, held that the appellant suffered egregious harm because “the charge

misapplied the law to the particular facts of this case and therefore failed to lead the jury

to the ‘threshold of its duty.’” Navratil, 2001 WL 92688, at *3 (quoting Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996)).

       However, following the submission of briefing in this case, the Texarkana court

reconsidered and disavowed Hill in light of Igo. Murrieta v. State, 578 S.W.3d 552, 559

(Tex. App.—Texarkana 2019, no pet.) (“[W]e agree with our sister courts that Hill is no

longer good law.”) (citing Robinson v. State, No. 01-16-00565-CR, 2018 WL 454751, at

*4 (Tex. App.—Houston [1st Dist.] Jan. 18, 2018, no pet.) (mem. op., not designated for

publication) (recognizing Hill as abrogated); Sosa v. State, No. 13-12-00764-CR, 2015

WL 7352310, at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 19, 2015, no pet.) (mem.

op., not designated for publication) (declining to follow Hill and Navratil); Ferguson v.

State, No. 05-14-00281-CR, 2015 WL 1883073, at *3 (Tex. App.—Dallas Apr. 24, 2015,

no pet.) (mem. op., not designated for publication) (declining to follow Hill)).

       Though Hill has been repudiated and Igo is controlling, that is not the end of our

inquiry, because the record in this case differs significantly from that considered in Igo.

Specifically, unlike in Igo and the other cases involving error in the parole and good

conduct time instructions, here the State recited the erroneous instruction in its closing



                                             14
argument at the punishment phase. The prosecutor began his argument as follows:

       May it please the Court, counsel, members of the jury, once again. I want
       to first say that I’ve know[n defense counsel] a long time. He has a tough
       job and he has done the best that he could with this case. It is very hard to
       represent a murderer. Somebody that cold-blooded killed somebody while
       they are pistol whipping their daughter. I think he has done a wonderful job.
       And the reason I say that is because this punishment phase is not about
       [defense counsel]. It is about this man, it is about what he did. It is not
       about how likeable or non-likeable [defense counsel] is. It is not about me
       and it is not about [the other prosecutor]. This is about [appellant]. That’s
       what this is about. I want to make that clear. I want to also make something
       clear, going through this Charge again. I’m on page 3. I want to talk about
       the middle of the page. It talks about parole and the defendant and how it
       works. It says that “the defendant stands [sic] to a term of imprisonment will
       not become eligible for parole until the actual time served plus any good-
       conduct time earned equals one-half of the sentence imposed for 30 years,
       whichever is less.” So let’s break down what that means very quickly. What
       that means is that any person that is sentenced is [sic] 30 years or less
       they’re eligible for parole. If you have a ten-year sentence, you would be
       eligible for parole in five and a half. Now, once you get into higher numbers,
       like 60 years, since 30 is half of that, then in 30 years you would be eligible
       for parole. Any number after 60, say 70 years, half of that would be 35. But
       since 30 is less than that, you still would be eligible for parole in 30 years.
       If you were sentenced to life in prison, you’re still eligible in 30 years for
       parole. If you are sentenced to 99 years in prison, you are still eligible for
       parole in 30 years. 80 years, you are still eligible for parole in 30 years. So,
       that is what that explanation means on that part of the Charge.

Appellant contends that, by making this argument, the prosecutor “invited the jury to

consider the manner in which the parole laws would be applied specifically” to him and

rendered his trial unfair and partial.

       We disagree. Although the prosecutor recited the parole instruction in his closing

argument, he did not emphasize the erroneous portion of that instruction. In fact, the

prosecutor disregarded the effect of good conduct time when giving examples of how the

parole law would work in different sentencing scenarios.               For example, without

referencing the prospect of good conduct time, the prosecutor stated that “If you were

sentenced to life in prison, you’re still eligible in 30 years for parole,” which is exactly what


                                               15
the law calls for. Moreover, the prosecutor did not address how parole or good conduct

time would apply specifically to this appellant. See TEX. CODE CRIM. PROC. ANN. art.

37.07, § 4(a) (requiring jury to be instructed: “You are not to consider the manner in which

the parole law may be applied to this particular defendant”).

       Additionally, the State makes a persuasive logical argument for why the jury was

likely not considering the erroneous instruction when it assessed a life sentence. The

State notes that, regardless of whether good conduct time would advance appellant’s

parole eligibility, the same minimum period for parole eligibility would apply for any

sentence of sixty years or more. In other words, though the jury assessed a life sentence,

appellant’s parole eligibility would have been the same had it instead assessed a term of

sixty or more years. As the State argues, this suggests that the jury did not base its

sentencing decision on the fine details of good conduct time and parole law, but rather

believed a maximum sentence was justified for other reasons.

       With the above considerations in mind, and presuming that the jury followed the

trial court’s instruction not to consider the manner in which parole law might be applied to

appellant, we conclude that appellant did not suffer egregious harm as a result of the

erroneous punishment charge instruction. See Gamboa v. State, 296 S.W.3d 574, 580

(Tex. Crim. App. 2009) (“[W]e generally presume that a jury will follow the judge’s

instructions.”); see also Cueva v. State, 339 S.W.3d 839, 853 (Tex. App.—Corpus

Christi–Edinburg 2011, pet. ref’d) (finding that identical charge error did not cause

egregious harm where “neither parole nor good conduct time was mentioned during

punishment arguments”).

       Appellant’s third issue is overruled.



                                               16
D.    Ineffective Assistance of Counsel

      To obtain a reversal of a conviction on grounds of ineffective assistance of counsel,

a defendant must show that: (1) counsel’s performance fell below an objective standard

of reasonableness and (2) counsel’s deficient performance prejudiced the defense,

resulting in an unreliable or fundamentally unfair outcome of the proceeding. Davis v.

State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). “Deficient performance means that ‘counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.’” Ex parte Napper, 322 S.W.3d 202, 246 (Tex. Crim. App. 2010)

(quoting Strickland, 466 U.S. at 687). “The prejudice prong of Strickland requires showing

‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Id. at 248 (quoting Strickland, 466 U.S. at 694).

      The burden is on appellant to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Appellant must overcome the strong presumption that counsel’s conduct fell within

the wide range of reasonable professional assistance and that his actions could be

considered sound trial strategy. See Strickland, 466 U.S. at 689. “We commonly assume

a strategic motive if any can be imagined and find counsel’s performance deficient only if

the conduct was so outrageous that no competent attorney would have engaged in it.”

Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Counsel’s effectiveness

is judged by the totality of the representation, not by isolated acts or omissions.

Thompson, 9 S.W.3d at 813.

      Appellant argues by his fourth issue that his counsel was ineffective by failing to



                                           17
object to the above-referenced punishment charge error or to the prosecutor’s recitation

of the erroneous instruction during his punishment closing argument. Appellant notes

that his trial counsel gave the following testimony regarding these alleged deficiencies at

the motion for new trial hearing:

        Q. [Appellate counsel]          Did you notice any error in the punishment
                                        charge?

        A. [Trial counsel]              No, sir.

        Q.                              [The prosecutor], in the punishment closing
                                        argument, he actually argued the punishment
                                        charge, correct?

        A                               Yes.

        Q.                              When he argued it, did you notice if there was
                                        any error in that punishment charge?

        A.                              No, sir.

        Q.                              So the reason for not objecting is you simply just
                                        didn’t notice it?

        A.                              I’m afraid not.

        Q.                              Well, did you look at what the proper charge is
                                        on a 3G[7] offense under article 37[.]07 in the
                                        Code of Criminal Procedure?

        A.                              I did not take a look at that. . . .

        Q.                              So you didn’t look at the 37[.]07 charge before
                                        this case?

        A.                              Before I began the case, no.

        Q.                              Are you aware of that, based on your expertise
                                        as a criminal defense attorney in town?



        7Referring to former Texas Code of Criminal Procedure article 42.12, § 3g (current version at TEX.
CODE CRIM. PROC. ANN. art. 42A.054(a) (listing offenses for which parole eligibility does not take into
account good conduct time)).


                                                   18
       A.                           I am. But I’m afraid I didn’t.

Appellant contends that no sound trial strategy could justify trial counsel’s actions.

       In Cueva, we concluded that an identical punishment charge error did not cause

egregious harm to the appellant. See 339 S.W.3d at 853. As here, the appellant in Cueva

also argued that his trial counsel provided ineffective assistance by failing to object to the

charge. See id. at 878–79. Cueva’s trial counsel testified that his failure to object was

“inadvertent”; he “read [the erroneous] portion, but the way it was phrased escaped [him]

at the time.” Id. at 878. We deferred to the trial court’s finding that counsel’s testimony

was credible, and we concluded that the trial court did not err in determining that counsel’s

assistance was not ineffective. Id. at 878–79 (citing Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006) (noting that the right to effective assistance of counsel merely

ensures “reasonably effective” assistance, not perfect assistance)). We further agreed

with the trial court that counsel’s alleged errors did not cause appellant to suffer prejudice,

in part because “the charge instructed the jurors that they were not to consider how good

conduct time and the parole law might be applied to Cueva” and “neither party argued the

concept of good conduct time or how it might be considered in evaluating parole

eligibility.” Id. at 879.

       Assuming but not deciding that counsel provided ineffective assistance, we

conclude that the deficiency did not prejudice appellant. Cueva is largely similar to this

case, with the main difference being that the prosecutor here recited the parole instruction

during his punishment closing argument. But, as noted in our discussion of appellant’s

third issue, the prosecutor did not emphasize the erroneous portion of the instruction;

instead, he provided examples which, consistent with the applicable law, disregarded the

effect of good conduct time on parole eligibility. And, again as set forth above, appellant’s

                                              19
parole eligibility would be the same if the jury had assessed a prison term of sixty or more

years rather than life. There is no reason to believe the jury would have sentenced

appellant to a term of less than sixty years had they been accurately instructed on the

effect of good conduct time on appellant’s parole eligibility. Thus, there is no reasonable

probability that the result of the punishment phase of trial would have been different if

counsel had objected to the charge. See Napper, 322 S.W.3d at 248.

       Appellant’s fourth issue is overruled.

E.     Trial Spectator Attire

       By his fifth issue, appellant contends that the trial court erred by denying his

objection to trial spectators wearing “expressive clothing and accessories showing

support” for Ramos. The record reflects the following colloquy took place on the final day

of the guilt-innocence phase of trial, after evidence had been heard but before closing

arguments began:

       [Defense counsel]: Your Honor, the victim’s family is in the courtroom
                          wearing T-shirts with her face and in memory of Monica
                          Rose Ramos. I’m concerned that may somehow
                          influence the jury in their deliberation while we are
                          going through closing arguments.

       THE COURT:           [Prosecutor], your response?

       [Prosecutor]:        My response is: First of all, I have nothing to do with
                            them wearing their shirts. I think they have a first
                            amendment right to wear whatever they want. I don’t
                            see what the problem is. But, of course, Judge, it is up
                            to your discretion.

       THE COURT:           I’m going to note your objection for the record, [defense
                            counsel]. I’m not going to make them leave or take
                            their shirts off.

       [Defense counsel]: Well, I’m not asking you to ask them to take their shirts
                          off. I just don’t want it to influence the jury.



                                            20
        THE COURT:              They are not going to be in the room with the jury when
                                they are deliberating. They are only going to be here
                                for the argument and for the reading of the Charge.

        [Defense counsel]: Yes. But the influence during closing arguments and
                           taking it back into that room.

        THE COURT               I’m noting your—

        [Prosecutor]:           And I am not trying to be sarcastic, but I think that the
                                pictures and the exhibits are the ones that are more
                                troublesome. I mean, I don’t think the shirts are really
                                going to be an impact. But that’s just my opinion.

        THE COURT:              Okay.

                                Are you ready?

        [Prosecutor]:           Ready.

        [Defense counsel]: Ready, Your Honor.

        In his motion for new trial and on appeal, appellant argues that “[s]ymbolic clothing

and accessories are inherently prejudicial” and that the trial court’s ruling “hindered the

possibility of his receiving a fair trial” and deprived him of his Sixth Amendment right to

confront witnesses.8 Appellant cites Estelle v. Williams, in which the United States

Supreme Court observed that “an accused should not be compelled to go to trial in prison

or jail clothing” because “[t]he defendant’s clothing is so likely to be a continuing influence

throughout the trial that . . . an unacceptable risk is presented of impermissible factors

coming into play.” 425 U.S. 501, 504–05 (1976). He also cites Norris v. Risley, in which

the Federal Ninth Circuit Court of Appeals held that the presence of spectators wearing

“Women Against Rape” buttons presented an “unacceptably high” risk to the defendant’s

right to a fair trial “both by eroding the presumption of innocence and by allowing



       8 At the new trial hearing, appellant testified that “[a]bout 20 people or more” were wearing shirts

with Ramos’s picture.


                                                   21
extraneous, prejudicial considerations to permeate the proceedings without subjecting

them to the safeguards of confrontation and cross-examination.” 918 F.2d 828, 829, 834

(9th Cir. 1990). However, in Carey v. Musladin, the United States Supreme Court held

that it was not “contrary to or an unreasonable application of clearly established federal

law” for a state court to allow a murder victim’s family to display buttons with the victim’s

image during trial. 549 U.S. 70, 77 (2006).

        In Howard v. State, the Texas Court of Criminal Appeals explained that “spectator

conduct or expression which impeded normal trial proceedings would not result in

reversible error unless an appellant showed a reasonable probability that the conduct or

expression interfered with the jury’s verdict.” 941 S.W.2d 102, 117 (Tex. Crim. App. 1996)

(observing that “[t]he federal test and the test articulated by this Court are essentially

interchangeable”) (citing Landry v. State, 706 S.W.2d 105, 112 (Tex. Crim. App. 1985);

Ashley v. State, 362 S.W.2d 847 (Tex. Crim. App. 1962)).

        Here, the record shows merely that several spectators wore shirts depicting

Ramos’s face. There is nothing to indicate that normal trial proceedings were impeded

or that the spectators did anything to attract the attention of the jurors. Without more, we

cannot conclude that the trial court abused its discretion in implicitly determining there

was no reasonable probability that the spectators’ attire interfered with the jury’s verdict.

See id.; see also Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017) (“An

appellate court reviews a trial court’s denial of a motion for new trial for an abuse of

discretion, reversing only if no reasonable view of the record could support the trial court’s

ruling.”).

        Appellant’s fifth issue is overruled.



                                                22
                                     III. CONCLUSION

       The trial court’s judgment is affirmed.

                                                       DORI CONTRERAS
                                                       Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 9th
day of January, 2020.




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