                                NUMBER 13-09-00511-CR
                                NUMBER 13-09-00512-CR

                                COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI – EDINBURG


FRANCISCO TREVINO,                                                           Appellant,

                                                  v.

THE STATE OF TEXAS,                                                           Appellee.


                      On appeal from the 105th District Court
                            of Nueces County, Texas.


                            MEMORANDUM OPINION
                Before Justices Rodriguez, Benavides, and Vela
                 Memorandum Opinion by Justice Benavides

      Appellant, Francisco Trevino, appeals from his convictions arising out of his alleged

sexual abuse of V.N., a child. In trial court cause number 06-CR-3851-D,1 Trevino was


      1
          Appellate cause num ber 13-09-512-CR.
convicted of six counts of aggravated sexual assault of a child. See TEX . PENAL CODE ANN .

§ 22.021 (Vernon Supp. 2009). The jury assessed punishment at ten years’ confinement

in the Texas Department of Criminal Justice—Institutional Division on each count, and the

trial court ordered those sentences to run consecutively. In trial court cause number 07-

CR-0775-D,2 Trevino was convicted of two counts of indecency with a child. See id. §

21.11 (Vernon Supp. 2009). The jury assessed punishment at ten years’ confinement on

each count, and the trial court also ordered these sentences to run consecutively. Trevino

filed a motion for new trial in both cases arguing ineffective assistance of counsel, which

the trial court denied at a hearing on the motion. Trevino has appealed both cases to this

Court.

         We consider these companion appeals together. By three issues, which we have

renumbered, Trevino argues that: (1) the trial court erred by denying his motion for a

directed verdict on the charges of indecency with a child (trial court cause number 07-CR-

0775-D); (2) the statute allowing cumulative sentences is unconstitutional (both causes);

and (3) he received ineffective assistance of counsel (both causes). We affirm.3

                                           I. DIRECTED VERDICT

         By his first issue, Trevino argues that the trial court erred by denying his motion for

a directed verdict on the charges for indecency with a child. Specifically, Trevino argues

that the indictment alleged that he touched V.N.’s genitals, while the evidence shows that

he did not. We disagree.


         2
             Appellate cause num ber 13-09-511-CR.

         3
           As this is a m em orandum opinion and the parties are fam iliar with the facts of the case, we will not
recite them here except as necessary to advise the parties of this Court's decision and the basic reasons for
it. See T EX . R. A PP . P. 47.4.
                                                        2
A.     Standard of Review

       We treat a challenge to the denial of a motion for a directed verdict as a challenge

to the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.

Crim. App. 1996). To assess whether the evidence supporting a verdict is legally sufficient,

we consider all the evidence in the record in the light most favorable to the jury verdict and

determine whether a rational jury could have found the defendant guilty of all the elements

of the crime beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); Swearingen v. State,

101 S.W.3d 89, 95 (Tex. Crim. App. 2003). We measure the legal sufficiency of the

evidence by the elements of the offense as defined by a hypothetically correct jury charge.

Grotti v. State, 273 S.W.3d 273, 280-81 (Tex. Crim. App. 2008).

       The hypothetically correct jury charge in this case would have required the jury to

find that: (1) on or about December 12, 2006 (Count 1) or December 15, 2006 (Count 2);

(2) Trevino intentionally or knowingly; (3) engaged in sexual contact with V.N. by touching

her genitals; (4) with the intent to arouse or gratify his sexual desire; and (5) V.N. was then

a child younger than seventeen years old and not Trevino’s spouse. See TEX . PENAL CODE

ANN . § 21.11(a)(1), (c)(1); see also Tovar v. State, No. 13-08-00592-CR, 2010 WL

2783873, at *8 (Tex. App.–Corpus Christi July 15, 2010, no pet. h.) (mem. op., not

designated for publication).

B.     Analysis

       Trevino points to testimony from V.N. on direct examination, which he asserts shows

that he did not touch her genitals:

       [The State]:                   Was there a time that he touched other parts of

                                               3
               your body when he was staying with you when
               he wasn’t supposed to be there?

[V.N.]:        No.

[The State]:   So he put his hand in your pants and he only did
               that one time?

[V.N.]:        Yes.

[The State]:   Was there a time that you had to sleep in the
               bed with him?

[V.N.]:        Yes.

[The State]:   Who was in the bed?

[V.N.]:        My mom.

[The State]:   And who else?

[V.N.]:        And me and him.

[The State]:   And how would y’all [sic] be sleeping?

[V.N.]:        My mom would be in the middle. He would be
               on this side and I would be on the other side.

[The State]:   And did he ever try to touch you when he was in
               bed with y’all [sic]?

[V.N.]:        No. Well—

               ....

               No. Like [sic], in the morning, my mom would
               have to go to work and I would be—I will still be
               laying there and he would just move over and
               then—and then put his private in my butt
               and—or in my middle.

[The State]:   And this was after you guys went to Mexico?

[V.N.]:        Uh-huh, yes.




                         4
[The State]:               So he would actually do those other things to
                           you again?

[V.N.]:                    Yes.

[The State]:               Did he ever touch any part of you with his hand?

[V.N.]:                    Well, only the—to put his finger, only in my butt.
                           That’s it.

[The State]:               Okay. And he would only touch your butt with
                           his hand, though?

[V.N.]:                    Yes.

[The State]:               Okay. He never touched any other part of your
                           body with his hand?

[V.N.]:                    No.

On cross-examination, V.N. further testified as follows:

[Defense Counsel]:         Okay. You said that—that in the apartment after
                           y’all [sic] got back from Mexico—that was when
                           y’all [sic] were supposed to show up in court
                           here, but y’all [sic] went to Mexico. Do you
                           remember that?

[V.N.]:                    Yes.

[Defense Counsel]:         That he—touched you on the butt?

[V.N.]:                    Yes.

[Defense Counsel]:         And that’s the only place he touched you, is that
                           right?

[V.N.]:                    And in my—um, yeah.

[Defense Counsel]:         Just in the butt, just on the outside of the butt?

[V.N.]:                    Well, in. Like, [sic] he would go—he would put
                           his hand in—in my pants and in my underwear.

[Defense Counsel]:         Okay. But the only place he touched you was on



                                     5
                                    the butt?

       [V.N.]:                      Was on my butt.

       [Defense Counsel]:           Okay. And you’re sure about that?

       [V.N.]:                      Yes.

       While it is not entirely clear from his brief, it appears that Trevino argues that he can

only be convicted of indecency with a child by contact if he touched V.N.’s genitals with his

hand, and this testimony indicates that Trevino only touched V.N.’s “butt” with his hand.

The State argues, and we agree, that sexual contact includes touching that is done with

a part of the offender’s body other than his hand. Sexual contact is defined as “any

touching of any part of the body of a child, including touching through clothing, with the

anus, breast, or any part of the genitals of a person.” See TEX . PENAL CODE ANN . §

21.11(c)(2). The Texas Court of Criminal Appeals has defined “touch” as “to put the hand,

finger, or other part of the body on, so as to feel; to perceive by the sense of feeling.”

Resnick v. State, 574 S.W.2d 558, 559 (Tex. Crim. App. 1978). V.N. testified that Trevino

“put his private in my butt and—or in my middle.” We hold that this testimony is sufficient

to allow a rational jury to find that Trevino touched V.N.’s genitals with his penis, which is

“sexual contact” as defined by the indecency statute. See Trevino v. State, 783 S.W.2d

731, 735 (Tex. App.–San Antonio 1989, no pet.) (holding that defendant “touched” victim’s

anus by engaging in anal intercourse). Accordingly, we overrule Trevino’s first issue.

                                 II. CUMULATIVE SENTENCES

       By his second issue, Trevino argues that the trial court’s judgment, cumulating his

sentences, is unconstitutional because the cumulative sentence exceeds the punishment

authorized by the jury on the individual counts. Specifically, Trevino argues that the jury



                                                6
assessed ten years’ imprisonment for each of the eight counts; therefore, the jury must

have intended for Trevino to serve only ten years in prison. The judgment cumulating the

sentences, as allowed by section 3.03 of the Texas Penal Code, requires Trevino to serve

eighty years in prison. See TEX . PENAL CODE ANN . § 3.03 (Vernon Supp. 2009). Trevino

argues that cumulating sentences in this manner violates his right to a jury trial and to due

process. See U.S. CONST . amends. V, VI, XIV.

       The State points out that the Texas Court of Criminal Appeals has expressly

rejected these precise constitutional challenges to the sentencing cumulation statute, and

we are bound to follow its decision. Barrow v. State, 207 S.W.3d 377, 379 (Tex. Crim.

App. 2006) (holding that the cumulation of sentences under section 3.03 does not violate

the Sixth Amendment right to a jury trial or due process). Trevino neither acknowledges

nor attempts to distinguish the controlling authority, which is directly contrary to his

argument. We overrule Trevino’s second issue.

                         III. INEFFECTIVE ASSISTANCE OF COUNSEL

       By his third issue, Trevino argues that he received ineffective assistance of counsel.

Trevino points to the following alleged failures by his trial counsel to support his claim: (1)

counsel failed to investigate potential witnesses; (2) counsel failed to hire an expert witness

to testify that the lack of any physical trauma to V.N. was significant; (3) counsel failed to

strike a juror who previously worked for the Texas Department of Family and Protective

Services; (4) counsel failed to object when the State’s experts testified that V.N.’s claims

were truthful; (5) counsel failed to object to improper jury argument in both the

guilt/innocence and punishment phases of trial; (6) counsel failed to object to the State’s

inflammatory arguments to the trial court regarding Trevino’s nationality and cumulating the



                                              7
sentences; and (7) counsel improperly injected Trevino’s nationality into the trial. We will

address each argument in turn.

A.     Standard of Review and Applicable Law

       We apply the two-pronged Strickland analysis to determine whether counsel’s

representation was so deficient that it violated a defendant’s constitutional right to effective

assistance of counsel. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);

Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.); see

Strickland v. Washington, 466 U.S. 668, 684 (1984). An appellant claiming a Strickland

violation must establish that “(1) his attorney’s representation fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for his

attorney’s errors, the result of the proceeding would have been different.” Jaynes, 216

S.W.3d at 851; see Strickland, 466 U.S. at 687. We afford great deference to trial

counsel’s ability—“an appellant must overcome the strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance.” Jaynes, 216

S.W.3d at 851. The appellant must prove both elements of the Strickland test by a

preponderance of the evidence. Munoz v. State, 24 S.W.3d 427, 434 (Tex. App.–Corpus

Christi 2000, no pet.).

       Typically, a silent record that provides no explanation for counsel’s actions will not

overcome the strong presumption of effective assistance. Rylander v. State, 101 S.W.3d

107, 110-11 (Tex. Crim. App. 2003). In this case, however, Trevino filed a motion for new

trial, and the trial court held a hearing on his ineffective assistance claims. We review the

trial court’s ruling on a motion for new trial for an abuse of discretion. Charles v. State, 146

S.W.3d 204, 208 (Tex. Crim. App. 2004); My Thi Tieu v. State, 299 S.W.3d 216, 223 (Tex.



                                               8
App.–Houston [14th Dist.] 2009, pet. ref’d). We afford almost total deference to a trial

court’s determination of the historical facts and of mixed questions of law and fact that turn

on an evaluation of the credibility and demeanor of the witnesses. Kober v. State, 988

S.W.2d 230, 233 (Tex. Crim. App. 1999). Where the trial court has not made explicit

findings of fact, as in this case, we will imply all findings necessary to support the ruling

“when such implicit factual findings are both reasonable and supported in the record.”

Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005).

B.     Reasonable Investigation of Witnesses

       Trevino argues that because there was no medical evidence in this case, the entire

case rested on the credibility of Trevino and V.N. Trevino claims that he suggested to his

trial counsel that friends and family members could testify as to V.N.’s tendency to tell lies,

the living arrangements of the parties, his lack of opportunity to commit the offense, and

his general character and behavior around children and V.N. Specifically, Trevino argues

that the following witnesses could have provided relevant testimony but were not called:

•      B.G., who was V.N.’s mother, Veronica Garza, and Claudia Trevino were available
       and willing to testify about Trevino’s character, that Trevino did not have the
       opportunity to commit the crimes, that V.N. is manipulative, and that V.N.’s father
       did not like Trevino;

•      Maria Gomez was available and willing to testify that Trevino lacked the opportunity
       to commit the crimes and to his character;

•      V.N.’s brother could have testified regarding V.N.’s credibility, Trevino’s character,
       and V.N.’s father’s influence on her.

Trevino argues that these witnesses would have allowed the jury to see that Trevino was

a devoted father, a hard worker, and a good candidate for probation.

       At the hearing on the motion for new trial, Trevino’s trial attorney testified that he



                                              9
hired an investigator, who interviewed all of the witnesses Trevino suggested and relayed

the substance of what those witnesses would say at trial back to him. Trevino’s attorney

testified that, after speaking to them at length about their possible testimony, he decided

not to call the witnesses Trevino proposed because “they would not help us in the case,

especially [B.G.] would not help us.” He explained that none of the witnesses could

provide relevant testimony as to V.N.’s credibility, and testimony about the influence of

V.N.’s father “wasn’t what it was reported to be.” Although he conceded that these

witnesses may have been able to provide character evidence favorable to Trevino, none

could provide damaging character evidence against V.N., which he believed was the

relevant issue. Furthermore, Trevino’s attorney testified that the witnesses were “wishy-

washy about where they were” and “whether they were present at the time that the

offenses were committed,” and therefore, he believed they could not provide significant

testimony about Trevino’s opportunity to commit the crimes.

       An attorney’s strategic decision to not call a witness will be reviewed only if there

was no plausible basis for not calling the witness, and the failure to call witnesses whose

testimony is of marginal benefit does not amount to ineffective assistance of counsel when

the totality of counsel’s representation was acceptable. See Velasquez v. State, 941

S.W.2d 303, 310 (Tex. App.–Corpus Christi 1997, pet. ref’d); Ordonez v. State, 806

S.W.2d 895, 900 (Tex. App.–Corpus Christi 1991, pet. ref’d). In this case, the trial court

was presented with a plausible basis for trial counsel’s refusal to present these

witnesses—namely, that their testimony was not what it was represented to be and would

not be helpful. The trial court’s implied determination that a plausible trial strategy was




                                            10
implemented is supported by Trevino’s attorney’s testimony and entirely reasonable, and

accordingly, was not an abuse of discretion. Johnson, 169 S.W.3d at 239.

C.     Failure to Retain Experts

       Trevino argues that his counsel was ineffective in failing to retain an expert witness

“to explore the significance of the lack of any physical trauma” to V.N. Sexual Assault

Nurse Examiner Elizabeth Andleman testified that there was no evidence of physical

trauma to V.N., but she further testified that such evidence will not always be present even

if abuse has occurred. Trevino testified at the motion for new trial hearing that he had

asked his attorney about hiring an expert to refute the nurse’s testimony. The State

argues, among other things, that to complain of ineffective assistance by failing to call an

expert witness, the defendant must first show that the expert would have testified in a

manner beneficial to him. See Cate v. State, 124 S.W.3d 922, 927 (Tex. App.–Amarillo

2004, pet. ref’d); Teixeira v. State, 89 S.W.3d 190, 194 (Tex. App.–Texarkana 2002, pet.

ref’d). We agree. Trevino does not point to any evidence in the record demonstrating that

an expert witness actually would have testified on his behalf and that the testimony would

have been beneficial. Accordingly, we reject this argument.

D.     Objection to Veniremember

       Trevino next argues that during voir dire, his attorney learned that a veniremember

had previously been employed by Child Protective Services as an investigator in the sexual

abuse unit. Trevino argues that he informed his attorney that he did not want that person

on the jury, and both agreed to use a peremptory strike. Trevino’s attorney, however,

failed to strike her, and she ultimately became the foreperson of the jury. At the hearing




                                             11
on the motion for new trial, Trevino’s attorney conceded that he “fully intended to strike that

juror and indicated so on [his] seating chart, and it was so full of red marks there that when

it came time to make strikes[,] I just overlooked her. That was a mistake on my part.” He

conceded that his failure to strike the juror was not trial strategy.

       The State counters that, among other things, Trevino has failed to prove prejudice.

We agree. Trevino does not explain how a person’s previous employment for child

protective services would affect his or her judgment on his guilt. See TEX . R. APP. P.

38.1(i). While it is possible that a former child protective services worker would be biased

against an a person accused of crimes against children, that is not necessarily the case.

As the State points out, the veniremember testified that her prior employment would not

affect her service as a juror, and that she could put aside all she had learned and decide

the present case solely on the evidence presented. See Lopez v. State, 79 S.W.3d 108,

113 (Tex. App.–Amarillo 2002, no pet.) (presuming that jurors follow the trial court’s

instructions and only consider the evidence in the case). On this record, we hold that

Trevino has failed to show that his counsel’s failure to strike the veniremember constituted

ineffective assistance of counsel.

E.     Failure to Object to Testimony Regarding V.N.’s Truthfulness

       Trevino argues that his counsel was ineffective by failing to object to testimony from

two witnesses, a nurse and a forensic interviewer, who he claims offered opinions that V.N.

was telling the truth. The State argues that the testimony on which Trevino relies does not

constitute an opinion on V.N.’s credibility; thus, had his attorney objected, the trial court

would not have abused its discretion in overruling the objection. Again, we agree with the




                                              12
State.

         In order to show ineffective assistance of counsel for the failure to object to the

admission of evidence, the defendant must show that, had the objection been lodged, the

trial court would have erred by overruling it. See Ex parte White, 160 S.W.3d 46, 53 (Tex.

Crim. App. 2004). Expert testimony that a child exhibits symptoms consistent with sexual

abuse does not constitute an opinion on the child's truthfulness. See Schutz v. State, 957

S.W.2d 52, 73 (Tex. Crim. App. 1997); Hitt v. State, 53 S.W.3d 697, 707 (Tex. App.–Austin

2001, pet. ref’d); see also Rushing v. State, No. 09-08-00396-CR, 2010 WL 2171628, at

*5 (Tex. App.–Beaumont May 26, 2010, no pet.) (mem. op., not designated for publication).

         Trevino first argues that the following testimony from Nurse Andleman constituted

an opinion on V.N.’s credibility. The testimony occurred in the context of explaining that

there was no physical evidence of a sexual assault on V.N.:

         [The State]:        What is the percentage of those children that you have
                             examined that you actually find some sort of trauma in
                             their sexual organ or in their anus when they’ve given
                             this type of history?

         Andleman:           Very unlikely to find it.

         [The State]:        Can you explain to the jury why that might be?

         Andleman:           There are a lot of reasons why, especially in children.
                             When it’s a stranger with the child, someone that
                             doesn’t really care about the child, they don’t care if
                             they hurt them or what they might leave behind, but
                             when it’s someone who knows the child—and usually
                             with this kind of sexual abuse, it is someone who knows
                             the child; it’s not a stranger—they want access to the
                             child over and over again. So if they hurt them, the
                             child has more of a chance of saying to stop or to tell,
                             where [sic] than if they don’t hurt them or they make it
                             a game, they will be able to have access over and over



                                              13
                          again.

                          ....

      [The State]:        And even with the history that [V.N.] gave, that these
                          things had happened more than one time, would this
                          finding that you had still be indicative that the history
                          given was what it was?

      Andleman:           Yes.

                          ....

      [The State]:        Now, [defense counsel] asked about the examination
                          and whether or not it yielded any—any actual evidence
                          that she had been sexually abused. Did it disprove that
                          she had been sexually abused?

      Andleman:           No, ma’am.

      [The State]:        And is that because typically you do not find trauma in
                          these cases?

      Andleman:           That’s correct.

      Next, Trevino points to testimony from Ricardo Jimenez, a forensic examiner at the

Children’s Advocacy Center:

      [The State]:        And Mr. Jimenez, when you are interviewing a child,
                          what are some of the things you look for in terms of
                          whether or not a child is giving information that is
                          consistent with abuse?

      [Jimenez]:          Well, the most—I mean, the thing you look for most in
                          these cases is the details that they’re providing, if
                          they’re able to tell you what happened, seeing
                          appropriate emotions, the type of wording that they’re
                          using, as well, things they should know, things they
                          shouldn’t know. Those are the things you look for, the
                          details.

      [The State]:        And in [V.N.]’s video, did she give you details about
                          what her—what the defendant did to her?



                                            14
      [Jimenez]:            Yes, ma’am.

      [The State]:          And was she able to describe how those things
                            happened and what it felt like?

      [Jimenez]:            Yes, ma’am.

      Nowhere in this testimony do Andleman or Jimenez offer a direct opinion on V.N.’s

truthfulness; rather, Andleman and Jimenez merely testified that V.N. exhibited symptoms

consistent with sexual abuse, which is admissible evidence. See Schutz, 957 S.W.2d at

73; see also Rushing, 2010 WL 2171628, at *5. Had Trevino’s attorney objected, the trial

court would not have abused its discretion in overruling the objection; therefore, Trevino

has not established ineffective assistance of counsel on this basis.

F.    Failure to Object to Improper Jury Argument

      Trevino argues that his counsel was ineffective in failing to object to the State’s

improper jury argument during both phases of his trial. We disagree. Permissible jury

argument generally falls into one of four areas: (1) summation of the evidence; (2)

reasonable deduction from the evidence; (3) an answer to the argument of opposing

counsel; or (4) a plea for law enforcement. Berry v. State, 233 S.W.3d 847, 859 (Tex.

Crim. App. 2007). If the State’s closing argument was proper, Trevino’s counsel was not

deficient by failing to object. See White, 160 S.W.3d at 53.

      1.     Guilt-Innocence Phase Closing Argument

      Trevino argues that his counsel failed to object to the following statement during the

State’s closing argument:

      [K]ids do not have the ability to describe sexual encounters unless they’ve
      experienced them. . . . Where would she have gotten that knowledge, if it
      didn’t happen to her?


                                            15
      ....

      Is it reasonable that these children can come in and give you such graphic
      details about sexual encounters they had and it not be true?

Trevino claims that the State’s argument inserted new facts into evidence and implied that

there has “never been a false allegation of sexual abuse.”

      Trevino’s interpretation of the record, however, is incorrect. As noted above,

Jimenez testified that when he interviews a sexual abuse complainant, he looks for details

and “things they should know, things they shouldn’t know.” The State pointed to V.N.’s

testimony describing the details of her assault and argued that she should be considered

a credible witness, which is a reasonable deduction from the evidence. See Andujo v.

State, 755 S.W.2d 138, 144 (Tex. Crim. App. 1988) (holding that an attorney will be

afforded wide latitude in closing argument “so long as his argument is supported by the

evidence and offered in good faith”) (quoting Griffin v. State, 554 S.W.2d 688, 696 (Tex.

Crim. App. 1977)). Because the State’s argument was within the bounds of acceptable

argument, Trevino’s counsel was not ineffective for failing to object. See White, 160

S.W.3d at 53.

      2.     Punishment Phase Closing Argument

      Trevino next argues that at the close of the punishment phase of trial, the State

argued to the jury that “[s]exual abuse is a soul-killer” and “probation . . . is a Judeo-

Christian concept that deals with atonement . . . making up for what you’ve done wrong.”

The State later argued that “community supervision allows them to walk around just like

you and I, some restrictions, but who’s really to monitor that? The defendant himself.

Because there’s not somebody walking around with him [twenty-four] hours a day.”



                                           16
Trevino argues that this argument is not based on any evidence in the case.

       A plea for law enforcement may include an argument regarding the relationship

between the jury's verdict and the deterrence of specific crimes or crime in general. Borjan

v. State, 787 S.W.2d 53, 55 (Tex. Crim. App. 1990). The State may also remind the jury

of the effect that its verdict may have on the community. Id. at 56. The comment that

sexual abuse is a “soul-killer” is a proper plea for law enforcement because it is a

description of the effect that the crime has on the community. See id. Likewise, the

prosecutor’s discussion of community supervision is also a plea for law enforcement that

informs the jury of the effect of its decision to impose jail time instead of probation. See

id.; see also Schilling v. State, No. 04-08-00591-CR, 2009 WL 2778667, at *3 (Tex.

App.–San Antonio Sept. 2, 2009, pet. ref’d) (mem. op., not designated for publication)

(noting, in dicta, that prosecutor’s comment that probation is a “joke” was a proper plea for

law enforcement); Thiboult v. State, No. 2-06-449-CR, 2008 WL 45757, at *5 (Tex.

App.–Fort Worth Jan. 3, 2008, pet. ref’d) (mem. op., not designated for publication)

(holding that a prosecutor’s comments that “[y]ou give him probation, you could walk out

of the courtroom with him” and “[g]et on the elevator with him; you can follow him home”

were not improper). Because the arguments were proper, trial counsel’s failure to object

did not constitute ineffective assistance.

G.     Argument to the Trial Court Regarding Cumulative Sentences

       Trevino argues that his attorney failed to object to what he calls “inflammatory

argument” that the State made to the trial court. After the jury was discharged, the State

argued to the trial court that Trevino’s sentences should be cumulated:




                                             17
       You heard the testimony of the victim. . . .[She] suffered tremendously at the
       hands of this defendant, Judge. You heard her describe in graphic detail
       what she had to endure at his hands. But not only that, Your Honor, you
       know that this child was taken from the jurisdiction of the court to avoid his
       trial the first time that we were called to jury trial. The defendant testified that
       he actually brought [B.G.] a car. That car was probably used to leave to
       Mexico with the child. He also testified, Your Honor, that he had entered this
       country illegally. If his sentences concurrently [sic] and even—say he does
       do the [ten] years, there is nothing to prevent this defendant from then
       coming back, if he is deported to Mexico, back into this country illegally and
       being around children in our community. And for those reasons, I am asking
       that you consider running each of these counts consecutively.

       Trevino calls this argument “inflammatory,” but he does not cite a single case that

supports his argument that trial counsel can be held ineffective for failing to object to

statements made by the State to the trial judge outside the presence of the jury, particularly

where the trial court has broad discretion to grant the relief that the State is requesting.

See TEX . PENAL CODE ANN . § 3.03. The trial court heard all the testimony in the case and

was perfectly capable of ferreting out what ruling was supported by the evidence, and we

will not presume that a trial court was improperly swayed by “inflammatory” argument, if

any. See Lopez v. State, 725 S.W.2d 487, 490 (Tex. App.–Corpus Christi 1987, no pet.)

(“[T]he trial court was sitting as trier of fact and was quite capable of disregarding any

improper argument, and will be presumed to have done so.”). Accordingly, we reject

Trevino’s argument.

       Furthermore, Trevino argues that his trial counsel improperly injected his nationality

as an issue in the case. On direct examination by his attorney, Trevino testified that he

entered the United States illegally, but he qualified for amnesty and became a permanent

resident. The State argues that this testimony was admitted as part of trial counsel’s

development of Trevino’s life history, which is plausible trial strategy because his counsel



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could have been trying to be candid about his client’s shortcomings in order to build

credibility with the jury. See Martin v. State, 265 S.W.3d 435, 446 (Tex. App.–Houston [1st

Dist.] 2007, no pet.). Trevino did not question his attorney at the hearing on the motion for

new trial regarding the reason his attorney introduced Trevino’s nationality at trial. Given

that this could be a plausible trial strategy, on this record, we cannot say that Trevino’s

counsel was ineffective. Rylander, 101 S.W.3d at 110-11.

       Having rejected all of Trevino’s arguments, we overrule his second issue.

                                     IV. CONCLUSION

       Having overruled all of Trevino’s issues, we affirm the trial court’s judgments.




                                                         __________________________
                                                         GINA M. BENAVIDES,
                                                         Justice


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

Delivered and filed the
19th day of August, 2010.




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