                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                          ________________________

                             NO. 09-14-00240-CR
                          ________________________

                         JESSIE HAYNES, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee


                On Appeal from the County Court at Law No. 3
                           Jefferson County, Texas
                           Trial Cause No. 299967


                         MEMORANDUM OPINION
      Appellant Jessie Haynes (Haynes) was charged by information for the

offense of obstructing a passageway, a Class B misdemeanor. See Tex. Penal Code

Ann. § 42.03 (West 2011). Haynes entered a plea of “[n]ot guilty.” The jury found

Appellant guilty of the offense of obstructing a passageway. Haynes elected to

have the trial court assess her punishment. The court sentenced Appellant to ninety

days‟ confinement in jail, probated that sentence for a period of two years, and


                                        1
assessed a two thousand dollar fine. The trial court considered and granted Haynes‟

request for community supervision. The trial court entered a Nunc Pro Tunc dated

May 22, 2014, correcting the probation order. And, the trial court certified Haynes

had a right to appeal. After filing her Notice of Appeal, Haynes filed a Motion for

New Trial and Motion In Arrest of Judgment with the trial court, which the trial

court denied.

      Haynes raises five issues on appeal. First, she argues the evidence is legally

insufficient to sustain her conviction for obstruction of a passageway. Second, she

contends that she received ineffective assistance from trial counsel. Third, she

argues that the trial court abused its discretion in denying her motion for new trial.

Fourth, Haynes argues that reversible error occurred when the State was allowed to

engage in prejudicial argument, thereby denying her a fair trial. And, in her fifth

issue, Haynes contends that the State improperly introduced evidence about

Haynes‟ character. We affirm.

                                UNDERLYING FACTS

Testimony of Michael Neil

      Michael Scott Neil (Neil) testified that he was a board member of the

Beaumont Independent School District (BISD). Jessie Haynes was employed by

the BISD, and she had the title of “Special Assistant to the Superintendent,” and,

                                          2
according to Neil, she was “over the communications -- the Communications

Department[]” for BISD. Neil testified that, as the communications director,

Haynes dealt with the media, public relations, and communications, and Haynes

had no authority over the school board members like Neil.

      Neil testified that on August 1, 2013, the BISD school board conducted a

special meeting at the BISD administration building in Beaumont, Texas. Neil

explained that at the time of the meeting, the BISD and several individuals were

engaged in litigation regarding redistricting. Neil recalled that on the day of the

meeting, there had been some rulings from the Texas Education Agency or the

courts, and he described the meetings as “boiling and boiling more and more.”

According to Neil, the public had access to the school board meeting that evening,

except when the board entered executive session. Neil agreed that the board

meetings were monitored by the BISD campus uniformed police. Referencing a

diagram of the administration building‟s floorplan that was offered and admitted

into evidence as State‟s Exhibit 1, Neil described the location of the boardroom

and the meetings. He explained that the school board met in the boardroom and the

executive sessions were held in a side room, both located in the BISD

administration building. He stated that most people would enter through the main

entrance and proceed down a hallway that would take them to the boardroom. Neil

                                        3
testified that he had never known there to be any restrictions placed on that

hallway. Neil agreed that the double doors to the boardroom would close the

hallway, however he testified that he had never known the doors to be locked and

he recalled the doors were always open. According to Neil, even if the area had

been closed to the general public, it would not have been closed to him as a BISD

trustee:

      [State‟s attorney]: To the best of your knowledge, that public -- that
      hallway has always been an accessible place for the public and that‟s
      evidenced, in your opinion, by what factors?

      [Neil]: Well, first of all, it‟s never been closed. Another factor is
      several months before then when there was, I think, a decision made
      that the public couldn‟t bring drinks in to the boardroom, that the []
      then President Woodrow Reese let people know if they needed
      something to drink there was a water fountain down the hall. There
      was [sic] drink machines in the cafeteria which was an obvious
      indication that it‟s not closed off to the public.

      [State‟s attorney]: And when persons weren‟t allowed to bring a drink
      into the boardroom, obviously at times of recess, everybody would go
      get a glass of water or Coke or something and mill about that
      hallway?

      [Neil]: Well, there wasn‟t a lot of milling about but there was access
      down there. There‟s also -- the two restrooms right off the boardroom
      are very small. There‟s also another set of restrooms down that
      hallway across -- about across from the cafeteria. So, it‟s not unusual
      to have someone down that hall.

      Neil testified that on the evening in question, after the executive session had

adjourned, it came to his attention that something was going on in the hallway and
                                         4
that he might be needed in the hallway. Neil testified that he then proceeded out of

the boardroom and down the hallway. He further explained to the jury:

      I had heard that there was a meeting with the media and that they were
      not allowing a certain journalist in the meeting. And so they asked me
      to, I guess, come check -- I‟m not sure what exactly they asked me to
      do but I knew there had been an ongoing situation between Ms.
      Haynes and this person with the media, him being left out of media
      things, not being on certain e-mail lists, stuff like that. So, that‟s when
      I went and asked Ms. Haynes why he wasn‟t being allowed to be in
      the press conference or whatever they were calling it at the time.

Neil understood that the press conference or media event was occurring down the

hallway on the other side of the doors located in the hallway. According to Neil,

when he arrived he encountered Jessie Haynes along with reporter Jerry Jordan and

attorney Michael Getz at the closed doorway. Neil testified that Haynes was

standing directly in front of the doors and blocking Jerry Jordan from access

through the doors to the media event. Neil explained that he asked Haynes why she

was not allowing Jordan to go through the doors and that Neil then reached around

behind Haynes for the handle on one of the doors. According to Neil, it was

apparent to him that Haynes was not going to move to let him or Jordan through

the door. The incident in the hallway was captured by video and audio recordings,

and the recordings were offered and admitted (without objection) into evidence as

State‟s Exhibits 9 and 10, and then played for the jury.


                                          5
Testimony of Sergeant Delco

      BISD Police Sergeant Aqua Delco (Delco or Sgt. Delco) also testified at

trial. Sgt. Delco testified that she regularly attends the BISD board meetings, and

she and other officers provide security at the meetings. Sgt. Delco stated that, on

the evening in question, she was at the BISD administration building to provide

security. Delco explained that at one point she was told there was going to be a

press conference, and the BISD attorney, Melody Chappell, told Sgt. Delco that

Chappell preferred that Jordan “not be allowed to attend” the press conference,

although Chappell did not give the officer a specific instruction to keep Jordan out.

Sgt. Delco stated that when the board meeting adjourned, she saw Jordan and told

him that Ms. Chappell preferred that he not attend the press conference. Sgt. Delco

said that initially Jordan left but he later returned. According to Sgt. Delco, she and

Haynes were standing on the side of the doors that are in the hallway, and Sgt.

Delco told Jordan he was not welcome, and then Sgt. Delco went into the

conference. At that point, Sgt. Delco testified that Haynes and Jordan were on the

other side of the doors. Sgt. Delco agreed that it was a public passageway and a

public doorway:

      [State‟s attorney]: But it‟s in a public building. That‟s a public
      passageway in that public building. That‟s a public doorway. It was a
      public press conference that everyone should have been allowed to
      attend. Do you agree with me on that?
                                          6
[Sgt. Delco]: Yes, ma‟am.

[State‟s attorney]: And you agree that Mr. Jordan, whether or not he is
liked or loathed, has a First Amendment right to attend a press
conference if that‟s what Ms. Chappell was holding? Whether titled it
a press conference or an interview, she was clearly discussing
something with members of the media; correct?

[Sgt. Delco]: Correct.

[State‟s attorney]: And -- and he clearly should have been allowed
behind those doors; correct?

[Sgt. Delco]: He could have been.

[State‟s attorney]: Maybe you shouldn‟t have blocked those doors
either?

[Sgt. Delco]: I -- well, I didn‟t block the door. I blocked Jerry Jordan.

[State‟s attorney]: But do you clearly see Ms. Haynes blocking the
door itself? Do you see a difference between you[] asking Mr. Jordan
or even telling him, “No, you‟re not invited to the press conference[”]
and what Ms. Haynes did[]?

[Sgt. Delco]: Yes, ma‟am.

[State‟s attorney]: And what is the difference?

[Sgt. Delco]: My access was just to Jerry, not to anybody else to block
access.

[State‟s attorney]: Would you have blocked Mr. Mike Neil, board
trustee, from going through that door? Would you have blocked him,
as a sergeant?

[Sgt. Delco]: No, ma‟am.

                                    7
Testimony of Jerry Jordan

      Jerry Jordan (Jordan) testified that he is an “investigative reporter with

setinvestigates.com[,]” and that he has covered BISD meetings as a citizen and as a

reporter for about twenty-six years. Jordan testified that he attended the BISD

board meeting that night as a reporter and that he had previously attended many

other meetings in the past. According to Jordan, he had never previously been

denied access to a press conference. He explained that he felt he should not have

been prevented from reporting on the events that occurred that night. According to

Jordan, Sgt. Delco stepped into the conference and Haynes blocked the doorway:

      [State‟s attorney]: At some point did Ms. Delco or Sergeant Delco
      step into the press conference behind the closed doors?

      [Jordan]: Yes, she did.

      [State‟s attorney]: And at that point you were not allowed in still?

      [Jordan]: No, I was not.

      [State‟s attorney]: And what did Ms. Haynes do?

      [Jordan]: She blocked the doorway.

At trial, Jordan identified the defendant as Haynes and as the person who blocked

the doorway.




                                         8
Testimony of Corporal Juan San Miguel

      Officer Juan San Miguel (San Miguel), a corporal in the BISD police

department, also testified. San Miguel testified that he did not personally observe

the incident, but he was inside the boardroom when Ms. Haynes came in and told

him she wanted to file charges against Michael Neil for assaulting her:

      [State‟s counsel]: Can you relate for the jury when it is that you
      became involved in what has led us here today?

      [San Miguel]: I was in the boardroom when Ms. Haynes walked in --
      walked back, I guess, from the hallway and said, “Officer, I need to
      file charges on someone for assaulting me. Mike Neil.”

            ....

      [State‟s counsel]: What happened next?

      [San Miguel]: She asked me to follow her into the hallway because
      she wanted to show me where the incident occurred.

       [State‟s counsel]: How did she appear in her demeanor? Did she
      appear to you that she had just been assaulted?

      [San Miguel]: She didn‟t appear to be, like, in pain or hurt or real
      upset but she -- you could tell she wasn‟t happy.

      [State‟s counsel]: Based upon your experience as a police officer,
      when someone makes a claim to you that they have been assaulted,
      you know what it is that you need to look for; correct?

      [San Miguel]: Yes.

      [State‟s counsel]: And did you see any of those factors in Ms.
      Haynes?
                                         9
      [San Miguel]: No.

San Miguel further explained that he followed Haynes outside into the hall and

obtained more information, observed that there were cameras in the hallway, and

later prepared a report. After refreshing his memory with the copy of the report that

he prepared, San Miguel testified as follows about what Haynes told him:

      [State‟s attorney]: What did Ms. Haynes specifically state to you in
      reference to any alleged assault that occurred first involving Mr. Mike
      Neil?

      [San Miguel]: That he grabbed her by the shoulders and pushed her
      down.

      [State‟s attorney]: Okay. And then did she also report a few moments
      later that she was assaulted by Jerry Jordan?

      [San Miguel]: Yes.

According to San Miguel, he investigated the allegations made by Haynes and he

obtained and viewed the video of the incident. The video recording was displayed

to the jury. After the video was displayed, the State asked San Miguel about what

he observed on the video:

      [State‟s attorney]: I‟m asking you your opinion as a police officer. Did
      you see him grab her by the shoulders and throw her down?

      [San Miguel]: No, ma‟am.

      [State‟s attorney]: Did you see her obstruct him from entering that
      doorway?

                                         10
[San Miguel]: Yes, ma‟am.

[State‟s attorney]: And you‟re familiar with the law. You‟re familiar
with Texas Penal Code 42.03. In fact, I believe in our conversation
earlier you told me that you‟ve actually filed an obstruction case
yourself; right?

[San Miguel]: Yes, ma‟am.

[State‟s attorney]: You‟re familiar with the elements of that offense.

[San Miguel]: Yes, ma‟am.

[State‟s attorney]: And does it require that an individual obstruct a
passageway that‟s open to the public or a substantial group thereof?

[Defense Attorney]: Excuse me. Objection. She‟s asking a legal
information -- legal conclusion.

[State‟s Attorney]: Your Honor, may I respond?

THE COURT: Go ahead.

[State‟s Attorney]: I‟m simply asking him a question as a peace
officer who stated that he has filed the charge under 42.03 previously.
I‟m asking if he is familiar with the code.

THE COURT: You can answer if you‟re familiar with the code, but
do not give a legal opinion in this case. All right?
      Do you understand what I just said?

[San Miguel]: Yes, sir. Yes, sir.

THE COURT: You can answer as to your familiarity with the code,
but do not give a legal opinion in this particular case.

[San Miguel]: Yes, Your Honor.

                                    11
      THE COURT: Go ahead.

            ....

      [State‟s attorney]: If an individual were to stand in front of those
      doorways and prevent access from either a reporter or a trustee by
      standing in front of and physically blocking those doorways, would
      they be obstructing that passageway?

      [San Miguel]: Yes, ma‟am.

      [State‟s attorney]: Did you observe Ms. Haynes on that video to do
      that?

      [San Miguel]: Yes, ma‟am.

            ....

      [State‟s attorney]: And, in fact, Corporal, Mr. Neil would not even
      have had to have been denied full access. It was -- [] full passageway
      through there. It was even being denied access. There‟s no
      requirement that he actually had to have been prevented from going
      on through the door; correct? Is that your understanding?

      [Defense Attorney]: Again, objection. She‟s asking a legal conclusion.

            ....

      THE COURT: No, what I‟ll do, again, is that any personal
      information you have or your observations you can answer that
      particular question based upon your training and experience.
      However, do not give a legal opinion in this particular case. All right.

Testimony of The State‟s Other Witnesses

      Michael Getz (Getz), a self-employed attorney, who has been involved in

litigation with the BISD, and who in his capacity as an attorney also represents
                                        12
Jerry Jordan, also testified at trial. Getz explained that the doors in the hallway in

question were typically open for public access and that the water fountain,

cafeteria, restrooms, and memorabilia are all located within that hallway. Another

citizen, Pamela Shelander (Shelander), testified she attended school board

meetings at the administration building, she was familiar with the area, she has

never been prevented access, and the hallway is always open to her as a member of

the general public. Shelander stated that she had never seen the doors closed

before.

Testimony of Melody Chappell

      Melody Chappell (Chappell), an attorney for the BISD, testified on behalf of

the defense. Chappell explained to the jury that the hallway in question was not

open to the public, and further that at the time of the incident, the BISD board

meeting had already concluded. Chappell testified that after the board meeting she

granted some reporters an interview, but not Jerry Jordan. According to Chappell,

neither school board member Neil nor the public had the right to access that part of

the building after the board meeting concluded. Chappell explained it to the jury as

follows:

            During a board meeting they will let them go down that hall. I
      think I said that. Because sometimes the rest rooms -- well, they‟re
      small; and there are only two in there. So, particularly when we‟re
      taking a break between regular session and executive session, we‟re
                                         13
      all rushing that way so we do go down that hall. But after school
      board meetings, no, ma‟am, the police officers corral everyone to
      leave because we‟re all trying to get out of there. And we can‟t leave
      until everyone leaves. So -- I say „„we,” but I can leave. But, you
      know, they want everyone gone. So, they do not let people down that
      hallway, no.

      Chappell testified that after the board meeting ended, Chappell met with the

board in executive session, and the public and press are not allowed access during

an executive session. Chappell recalled that earlier in the day and before the board

meeting, a court opinion had been issued relating to redistricting. After the

executive session was concluded, she remained in the hallway to meet with other

BISD attorneys and to talk to the superintendent. Ron Reynolds, also with the

BISD Communications Department, asked Chappell to speak to two reporters from

two television stations and she agreed to answer their questions. Ms. Chappell

testified that she did not consider the interview to be a press conference and that it

is her position that she had the right to decide who does or does not interview her.

According to Chappell, earlier that evening she had an encounter with reporter

Jerry Jordan and she was not going to talk to him:

      [Defense attorney]: I want you to tell me the first time that you
      encountered him on August 1.

      [Chappell]: I don‟t know if it was the first time I encountered him. I
      probably saw him at that meeting and, you know, he usually speaks.
      You know, he tries to have a rapport; and I think he does that with
      everybody. So, I probably spoke to him; but I don‟t talk to him a
                                         14
      whole conversation. He may talk to me. It‟s kind of yeah, you know,
      friendly. But after the executive session I walked out and he was
      standing at the door and we have had instances with him trying to
      come in executive session but he tends to stand at the door. They
      stopped that now, but at this point he was at the door. One of the news
      cameramen were sitting -- was sitting down and I don‟t remember
      who it was but from one of the TV stations and Mr. Jordan‟s talking
      to him.

      Chappell testified that Jordan then made a derogatory comment to the

cameraman which she overheard and that she believed to be directed at her.

According to Chappell she walked away, but it was the first time Jordan had

“disrespected” her in that manner. She also stated that Jordan, Getz, Neil, and

others would sometimes “get rude.” According to Chappell, she decided to treat

Jordan the same way she treats Neil and Getz, and she was “not going to talk to

him.” Chappell told Ron Reynolds she would talk to reporters from the two TV

stations but that she would not talk to Jordan. According to Chappell, while the

press was setting up for the interview with reporters, Jordan came through the

doors and Ron Reynolds told Jordan he could not enter. Chappell testified that

             . . . [Jordan] screamed . . . “Well, you‟re a member of the public
      and you‟re going to talk to me. I‟m a member of the press and you‟re
      going to talk to me.” And I screamed back, “No, I‟m not. I‟m not a
      public person and I can talk to whoever I want to talk to and I‟m not
      talking to you.”




                                         15
Chappell testified that people are excluded from coming through that hallway

during an interview with a television reporter. Chappell explained that school

board members do not maintain offices in the administration building, they do not

have the right to enter the building after hours, and they do not have keys or access

codes to the building. However, according to Chappell, as an employee of the

district, Haynes would have those rights to the extent it was in the exercise of her

job duties for the BISD.

      Chappell also testified about the contents of Defense Exhibits 18 and 19 and

the video recordings of what happened that day. The exhibits were published to the

jury. Chappell testified that she gave no instructions for Michael Neil to be

excluded, and she did not remember talking to Sgt. Delco. According to Chappell,

Haynes was not acting on Chappell‟s authority or at Chappell‟s direction, and

Chappell stated that she did not give any instructions to Haynes that evening.

      On cross-examination, Chappell disagreed that the First Amendment would

give Jordan the right to be in the interview with the press, stating as follows:

             [The] First Amendment doesn‟t give him the right to be there.
      [The] First Amendment gives him the right to say what he wants to
      say, print what he wants to say. But, I mean, he was escorted out
      because he was disturbing the interview. He was yelling and arguing.
      That‟s the only reason why Officer Delco -- it caught her attention. He
      was in the room. Mr. Reynolds was telling him that I was not going to
      answer any questions for him. And he was escorted out because he
      started yelling because he decided that if I wasn‟t going to answer any
                                          16
      questions for him, he was going to disrupt it. He wasn‟t going to let it
      happen. And he is taking pictures and he is yelling at me and it was
      disruptive. I didn‟t ask him to leave. I just said I‟m not going to talk
      to you, and I wasn‟t going to talk to him.

      The State also asked Chappell about the claim that Haynes filed wherein

Haynes claimed to have been assaulted during the incident. Chappell explained

that after the incident, Haynes made a request for “assault leave” and that the BISD

practice is that an employee who requests “assault leave” is placed on leave, and if

a subsequent investigation finds no assault occurred, then the BISD would take the

employee off assault leave, but BISD cannot reprimand the employee for asking

for the leave.

      Haynes did not testify at trial. Following arguments of counsel and

deliberations, the jury found Appellant guilty of the offense of obstructing a

passageway. After the presentation of punishment evidence, and after further

argument of counsel, the Court sentenced Haynes to ninety days‟ confinement in

jail, probated that sentence for a period of two years, and the court assessed a

$2,000.00 dollar fine. Haynes timely filed a Notice of Appeal.

                          OBSTRUCTING A PASSAGEWAY

      Haynes was charged with obstructing a passageway under section

42.03(a)(1) of the Texas Penal Code, which reads as follows:


                                        17
      (a) A person commits an offense if, without legal privilege or
      authority, he intentionally, knowingly, or recklessly:

            (1) obstructs a highway, street, sidewalk, railway, waterway,
      elevator, aisle, hallway, entrance, or exit to which the public or a
      substantial group of the public has access, or any other place used for
      the passage of persons, vehicles, or conveyances, regardless of the
      means of creating the obstruction and whether the obstruction arises
      from his acts alone or from his acts and the acts of others. . . .

Tex. Penal Code Ann. § 42.03(a)(1). The offense is a Class B misdemeanor. Id.

§ 42.03(c). The State had the burden to prove beyond a reasonable doubt that

Haynes intentionally, knowingly, or recklessly obstructed (a) a highway, street,

sidewalk, railway, waterway, elevator, aisle, hallway, entrance, or exit to which the

public or a substantial group of the public has access, or (b) any other place used

for the passage of persons, vehicles, or conveyances. Id. § 42.03(a)(1).

                       LEGAL SUFFICIENCY OF THE EVIDENCE

      In her first issue, Haynes argues that the evidence is “legally insufficient to

sustain the conviction.” She argues that the State failed to prove each essential

element beyond a reasonable doubt. More specifically, she contends that the State

failed to prove that Haynes blocked access to anyone other than Jordan, who did

not have permission to go into the area, and Neil, who was a school board member

and not a member of the public. Haynes argues that the evidence was legally

insufficient to show that she obstructed “a hallway, entrance, []or exit to which the

                                         18
public or a substantial group of the public had access.” According to Haynes,

simply because the public has access to an area at a given point in time does not

mean it has access to the area at all times. Haynes maintains that after the school

board meeting ended, the area of the hallway in question was no longer an area to

which the public had access.

      Legal and factual sufficiency challenges are reviewed under the standard

articulated in Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). See Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). In reviewing a sufficiency

challenge to a criminal conviction, we view all the evidence in the light most

favorable to the verdict. Id. at 899. Based on the evidence admitted during the trial,

together with the reasonable inferences that are available from the evidence, we

then determine whether a rational factfinder could have found the essential

elements of the crime beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743,

746 (Tex. Crim. App. 2011). This standard allows the jury to weigh the evidence,

to fairly resolve any conflicts in the testimony, and to draw reasonable inferences

from the basic facts. Id. (citing Jackson, 443 U.S. at 319).

      The evidence at trial consisted of not only testimony from witnesses but also

video and audio recordings of the incident. Haynes does not challenge the video.

She does not deny that she stood in front of the doors in the hallway and that she

                                          19
refused to allow Jordan or Neil access. She argues that she did not obstruct a

hallway, entrance, or exit to which the public or a substantial group of the public

had access.

      The testimony at trial established that the school board met in the

boardroom, which was accessed by the hallway in question and that there was a

water fountain, a cafeteria, vending machines, restrooms, and memorabilia in the

hallway. The jury heard testimony from Michael Neil, BISD Sgt. Delco, BISD Cpl.

San Miguel, Michael Getz, Pamela Shelander, and Melody Chappell. Each testified

in some respect as to whether or not the public had access to the hallway.

      According to Neil, he had never known the access to the hallway to be

restricted or the doors to be closed during a BISD board meeting. Neil indicated

that the public was given access to the restrooms, water fountains, and drink

machines in the hallway and would come and go through the hallway. Neil further

testified that the hallway was open to the public and that everyone had access to it

and was welcome there. Sgt. Delco agreed that the area was a “public

passageway.” Reporter Jerry Jordan testified he had covered BISD meetings as a

citizen and reporter for twenty-six years in the administration building, covering

many events in that hallway. Attorney Michael Getz testified the doors were

typically open as an area of public access and that the water fountain, cafeteria,

                                        20
restrooms, and memorabilia are all located within that hallway. Getz indicated that

he had been allowed access to and from that hallway on multiple occasions.

Shelander, a citizen also in attendance at the board meeting that evening, testified

that she had attended many school board meetings and that the hallway had always

been open to the public. Cpl. San Miguel agreed that the hallway was considered to

be open to the public “on a regular basis[.]”

      On the other hand, Chappell testified that the hallway was not open to the

public after the school board meeting adjourns. Chappell also testified that she had

the right to grant an interview to some members of the press and exclude Jordan.

Chappell stated that Jordan was “disruptive” and that he had made a comment that

she overheard that was directed at her, and she decided she did not want to talk to

Jordan. However, Chappell testified that she did not instruct Haynes to block

Jordan or Neil from the interview with the press.

      In reviewing a case where the issue is whether the evidence is sufficient to

support a verdict, we are required to give the factfinder, in this case the jury,

deference as to its responsibility to fairly resolve any conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from the facts admitted in

the case at trial. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007). We do not substitute our judgment for the factfinder‟s judgment. Id. Viewed

                                          21
in the light most favorable to the verdict, we conclude that a rational jury could

have found that Haynes intentionally, knowingly, or recklessly obstructed an aisle,

hallway, entrance, or exit to which the public or a substantial group of the public

has access. A rational jury could have found the essential elements of the offense

beyond a reasonable doubt. Issue one is overruled.

                     INEFFECTIVE ASSISTANCE OF COUNSEL AND
                        DENIAL OF MOTION FOR NEW TRIAL

      Haynes argues issues two and three together because both deal with her

argument that she received ineffective assistance of counsel at trial. She argues that

her retained attorney allowed witnesses to give “opinions as to Appellant‟s guilt,

with no logical trial tactic to support same.” She further argues that her trial

attorney was ineffective for not calling BISD superintendent Dr. Timothy Chargois

to testify when he was available and prepared to testify, and that he would have

testified that the area was not open to the public. Haynes contends that the trial

court erred in denying her motion for new trial, which was based in part upon the

ineffectiveness of her trial counsel.

      To prevail on a claim of ineffective assistance of counsel, an appellant must

prove two elements by a preponderance of the evidence: (1) trial counsel‟s

performance was deficient; and (2) harm resulted from that deficiency sufficient to

undermine confidence in the outcome of the trial. Strickland v. Washington, 466
                                         22
U.S. 668, 687, 694 (1984); Ex parte LaHood, 401 S.W.3d 45, 49-50 (Tex. Crim.

App. 2013). An appellant‟s failure to make either of the required showings of

deficient performance or sufficient prejudice defeats the claim of ineffective

assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); see

also Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An

appellant‟s failure to satisfy one prong of the Strickland test negates a court‟s need

to consider the other prong.”).

      An ineffective assistance of counsel claim “must be „firmly founded in the

record‟ and „the record must affirmatively demonstrate‟ the meritorious nature of

the claim.” Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012)

(quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)).

Ordinarily, the record on direct appeal is simply undeveloped and does not

adequately reflect trial counsel‟s failings, especially when counsel‟s reasons for

failing to do something do not appear in the record. Menefield, 363 S.W.3d at 592-

93.

      We indulge a strong presumption that counsel‟s conduct fell within the wide

range of reasonable professional assistance, and, therefore, an appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Strickland, 466 U.S. at 689; Williams, 301 S.W.3d at 687. When the

                                         23
record is silent, an appellate court may not speculate about why counsel acted as he

did. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v.

State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Without

testimony from trial counsel, the court must presume counsel had a plausible

reason for his actions. Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App.—Houston [1st

Dist.] 1999, pet. ref‟d).

      Haynes argues on appeal that her trial counsel should have objected to the

testimony of witnesses who were “allowed to testify as to whether Appellant was

guilty of the charged offense by testifying as to whether . . . Appellant had

committed the elements required by the offense.” She argues that no witness is

competent to express an opinion as to guilt or innocence, citing generally to Boyde

v. State, 513 S.W.2d 588 (Tex. Crim. App. 1974). According to Haynes, “[t]he

record is replete” with examples of trial counsel‟s failure to object to

“impermissible testimony[.]”

      A witness may testify to his perceptions of events that the witness personally

observed or experienced. See Williams v. State, 402 S.W.3d 425, 437 (Tex. App.—

Houston [14th Dist.] 2013, pet. ref‟d) (citing Fairow v. State, 943 S.W.2d 895, 898

(Tex. Crim. App. 1997)). Perceptions include a witness‟s interpretation of

information acquired through his or her senses or experiences at the time of the

                                        24
event. See Osbourn v. State, 92 S.W.3d 531, 535 (Tex. Crim. App. 2002). Such

testimony can include opinions, beliefs, or inferences as long as they are drawn

from the witness‟s own experiences or observations. Id.

      Haynes argues that “[n]umerous witnesses for the State were allowed to

testify as to whether Appellant was guilty of the charged offense” by giving their

opinion as to whether the appellant committed the elements required of the offense.

She then globally cites to several areas in the appellate record that pertain to

portions of the testimony provided by Michael Neil, Jerry Jordan, Michael Getz,

Sgt. Delco, Pamela Shelander, and Cpl. San Miguel. We disagree with her

characterization that the testimony provided by the witnesses in question was

“impermissible.”

      With respect to the testimony of Cpl. San Miguel, Haynes‟ trial attorney

made objections to some of the questions of the officer, and the trial court

sustained the objections and instructed the witness he could not give a legal

opinion. As to witnesses, Neil, Jordan, Getz, Delco, and Shelander, the State did

not ask the witnesses to give an opinion as to whether or not they felt Haynes was

guilty of the offense for which she was charged. However, the State did elicit

testimony from such witnesses regarding the hallway, the public‟s access to the

hallway, and about their experiences and items they observed. Accordingly, the

                                        25
questioning of each of these witnesses regarding the public‟s access to the hallway

or their own recollection of the events in question did not constitute

“impermissible” testimony.

      Next, Haynes contends her trial attorney was ineffective for failing to call

Dr. Timothy Chargois, the Superintendent for the BISD, as a witness. Haynes

argues Chargois would have testified and provided “exculpatory” evidence for the

jury and would have stated that the hallway in question was not open to the public

and that “[Haynes] was acting within her authority[.]” Haynes also contends that

the trial court erred in failing to grant her motion for new trial, which she filed after

the trial and to which she attached an affidavit from Chargois. Nothing in the

record shows why trial counsel did not call Chargois as a witness, nor is there any

indication that Chargois would have provided evidence that would have changed

the outcome of the trial. Because the record is silent regarding the strategy or

decisions of trial counsel, we may not speculate as to why the trial counsel did not

call Chargois as a witness at the trial. See Jackson, 877 S.W.2d at, 771; see also

State v. Thomas, 428 S.W.3d 99, 107 (Tex. Crim. App. 2014) (The failure of

defense trial counsel to call a potentially exculpatory witness who was available at

trial and known to the defense is not, by itself, a valid legal claim that is sufficient

to grant a motion for new trial.). Haynes has also failed to establish that but for

                                           26
counsel‟s alleged errors the result of the trial would have been different.

Strickland, 466 U.S. at 694.

      On the record before us, we cannot say that trial counsel was ineffective, and

we cannot say that the trial court abused its discretion in denying the motion for

new trial. Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010) (deciding

the record was insufficient to address ineffective assistance of counsel claims

where it did not sufficiently show that counsel‟s representation was deficient as to

tactical and strategic decisions); see also Salazar v. State, 38 S.W.3d 141, 148

(Tex. Crim. App. 2001) (a trial court does not abuse its discretion in denying a

motion for new trial provided its decision is not arbitrary or unreasonable). We

overrule issues two and three.

                          PREJUDICIAL JURY ARGUMENT

      In her fourth issue Haynes complains that the State was allowed to engage in

prejudicial jury argument which denied Haynes a fair trial. More specifically she

complains about the following statements made by the State‟s attorney during

closing argument:

             . . . Notice [Chappell] doesn‟t even flinch over Jessie Haynes
      obviously lying about assaults that never took place on that videotape
      and about lying about her injuries to the point where she wants to get
      paid leave. All [Chappell] says is with a smile on her face, „Hey, she
      asked for it. It‟s the law. We‟ve got to give it.‟ Not one single word
      about advising that board or about saying, „Hey, guys, we need to
                                        27
fight this kind of crap because this is corruption at the worst level.‟
„Just pay the lady.‟ That‟s basically what she said. That‟s fraud. And
I‟m not accusing her of it. I‟m just saying she didn‟t flinch. She just
says, „We‟ve got to pay her.” No big deal.
       That‟s the problem. Nobody wants to fight for the kids. Truth
be damned. It‟s irrelevant.

      ....

       . . . This is a joke to [Haynes]. And because of it, the school
board‟s becoming a joke and I‟m sick and tired of it. . . . So, hello,
Jessie Haynes, because the whole thing from top to bottom tells her
she can get away with this all she wants.

      ....


       This is a joke to these people. This isn‟t about hurting her
personally. It‟s about administering some discipline here like we do
with our children, holding her accountable for juvenile behavior; and
it‟s only you that can do that. You have to take the first step so that
she will sit in class, do her job, and behave herself or go somewhere
else so that the other little misbehaving juveniles at B.I.S.D. will take
notes, sit down, pay attention, and behave themselves or like in this
case that only you can start with, there will be or not be consequences.
There will be consequences, and to the rest of that board there will be
consequences.

      ....

       Gentlemen, it‟s time to begin the process of holding B.I.S.D.
and its administrators accountable for their actions and the first step in
doing that is holding Ms. Haynes accountable for her actions. You
send a message to this community by your verdict that the corruption
and the cover-ups will be tolerated no more. By holding Jessie Haynes
accountable for her actions, you send that message.
       ....


                                   28
             The cover-ups and the corruption have got to stop. If you find
      her not guilty, that cover that just came off the cover-up goes right
      back on. It‟s time, gentlemen, to begin the process of holding B.I.S.D.
      and its administrators, including Ms. Haynes, accountable for their
      actions. We have to do that to take the first step in healing the divide
      in our community that we talked about on Monday, the divide that‟s
      come as a result at the hands of the constant dysfunction and childlike
      behavior, bickering politics, that B.I.S.D. has become. It‟s time for
      B.I.S.D. and its employees to realize that they don‟t get to play by a
      different set of rules. They play by the same rules that you do and the
      same rules that I do.

            ....

             I ask you who agrees with the law? Why do we have the law?
      Because we want things open. We want transparency. I ask you
      gentlemen to make certain that from this day forward every
      passageway, both literally and figuratively, will be open to all of us
      and to all of our kids and that nobody be shut out from the truth. Send
      a message to B.I.S.D., send a message to its administrators, and send a
      message to Ms. Jessie Haynes and our community as a whole that we
      will not allow them to close any more doors. We will not allow them
      to obstruct us from the truth any longer. Do not allow those childish
      ways, self-motivated, self-serving individuals that have caused this
      bickering to prevail any longer. Open up the doors, open up the
      hallways, open up the truth. Let transparency come in and by your
      guilty verdict send a message to this community that justice is done.

      “The law provides for, and presumes, a fair trial free from improper

argument by the State.” Thompson v. State, 89 S.W.3d 843, 850 (Tex. App.—

Houston [1st Dist.] 2002, pet. ref‟d) (citing Long v. State, 823 S.W.2d 259, 267

(Tex. Crim. App. 1991) (en banc)). “[P]roper jury argument generally falls within

one of four general areas: (1) summation of the evidence; (2) reasonable deduction

                                        29
from the evidence; (3) answer to argument of opposing counsel; and (4) plea for

law enforcement.” Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).

A prosecutor may argue his opinion concerning a witness‟s credibility or the truth

of witness‟s testimony only if the opinion is based on reasonable deductions from

the evidence and does not constitute unsworn testimony. See McKay v. State, 707

S.W.2d 23, 37 (Tex. Crim. App. 1985) (en banc). Wide latitude is allowed in

drawing inferences from the evidence, so long as the inferences drawn are

reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d

396, 398 (Tex. Crim. App. 1988). In examining challenges to a jury argument, a

court considers the remark in the context in which it appears. Id.

      A party may present on appeal a complaint about an improper jury argument

only if the record shows that (1) she timely and properly objected to the trial court

and (2) the trial court (a) overruled the objection, either expressly or implicitly, or

(b) refused to rule on the objection, and the party objected to the refusal. Tex. R.

App. P. 33.1(a); Gutierrez v. State, 36 S.W.3d 509, 510-11 (Tex. Crim. App.

2001); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc). The

Texas Court of Criminal Appeals has made clear that a defendant‟s failure to

object to improper jury argument forfeits the right to complain about the argument




                                          30
on appeal. See Threadgill v. State, 146 S.W.3d 654, 667, 670 (Tex. Crim. App.

2004).

      Haynes did not object to any part of the State‟s argument at trial.

Accordingly, we need not determine whether the complained-of argument

exceeded the scope of proper argument because Haynes did not preserve this

complaint for appeal. See Tex. R. App. P. 33.1(a). We overrule issue four.

                   PLACING HAYNES‟ CHARACTER IN ISSUE AND
                       BEING TRIED FOR OTHER CONDUCT

      In Haynes‟ fifth issue, she contends that the State improperly introduced

evidence about Haynes‟ character. Haynes argues that evidence of a person‟s

character is not admissible to show simply that she acted in conformity therewith.

She argues that the State was “allowed to present testimony ad nauseam to the jury

of Appellant‟s alleged character. However, Appellant had not, and did not, place

her character into evidence at any time.” She contends that the State produced

testimony before the jury about Haynes, including her medical records and her

claim seeking “assault leave,” and her claim that she was injured in this incident.

Haynes argues that she was not on trial for making a false claim of being the

victim of an assault, and she was not making a claim before the jury that she

exercised self-defense.


                                        31
      The Texas Rules of Evidence prohibit the use of extraneous offense

evidence to prove character conformity. See Tex. R. Evid. 404(b). However, such

evidence may be admissible if it has relevance apart from character conformity.

Id.; Montgomery v. State, 810 S.W.2d 372, 377 (Tex. Crim. App. 1990) (op. on

reh‟g). For example, evidence that logically serves as proof of “motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or lack of accident” is relevant beyond proving character conformity. See Tex. R.

Evid. 404(b); Montgomery, 810 S.W.2d at 377. We review a trial court‟s decision

to admit or exclude evidence pursuant to Rule 404 under an abuse of discretion

standard. See Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

      A party may present on appeal a complaint about improper evidence only if

the record shows that (1) she timely and properly objected to the trial court and

(2) the trial court (a) overruled the objection, either expressly or implicitly, or

(b) refused to rule on the objection, and the party objected to the refusal. Tex. R.

App. P. 33.1(a). Haynes did not make an objection at trial regarding the admission

of the evidence about which she complains on appeal. Accordingly, Haynes did not

preserve this complaint for appellate review. Id. Issue five is overruled.




                                          32
      Having overruled all issues, we affirm the judgment below.

      AFFIRMED.



                                                 _________________________
                                                     LEANNE JOHNSON
                                                           Justice

Submitted on August 6, 2015
Opinion Delivered December 23, 2015

Before Kreger, Horton, and Johnson, JJ.




                                          33
