             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-82,940-01


                     EX PARTE CURTIS ALLEN KIRKLAND, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
              CAUSE NO. 11-10-11344-CR (1) IN THE 9th DISTRICT COURT
                         FROM MONTGOMERY COUNTY


        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession with

intent to deliver a controlled substance, methamphetamine, and sentenced to seventy years’

imprisonment. The Ninth Court of Appeals affirmed his conviction. Kirkland v. State, 400 S.W.3d

625 (Tex. Crim. App.—Beaumont 2013).

        In several grounds for relief, Applicant contends both of his trial attorneys rendered

ineffective assistance in this case. The trial court recommends relief be granted after holding an
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evidentiary hearing and determining trial counsels’ performance was deficient and such deficient

performance prejudiced Applicant at both the guilt-innocence and punishment phases of his trial.

However, we do not agree with the trial court’s determination regarding prejudice in this application.

       At first blush, the trial court’s recommendation to grant a new trial on punishment appears

to be supported by the record and case law. See Ex parte Lane, 303 S.W.3d 702 (Tex. Crim. App.

2009).1 In Lane, we held the applicant was prejudiced by counsel’s failure to object, during the

punishment phase, to testimony by a law enforcement agent on the dangers and societal costs caused

by methamphetamine, that methamphetamine was one of the two most highly addictive drugs, and

that the amount of drugs found in applicant’s car was enough to get 45,000 people high.2 However,

the applicant in Lane did not have the same lengthy criminal background as the Applicant in this

case and, while we believe counsel should have made objections, the statements by the prosecutor

here are not nearly as outrageous as the statements made in the Lane case.

       Therefore, as with Applicant’s other claims for relief, we find he has not shown a reasonable

probability, one sufficient to undermine confidence in the result, that the outcome would have been

different but for his counsels’ deficient performance. Ex parte Chandler, 182 S.W.3d 350 (Tex.

Crim. App. 2005).

       We exercise our authority to reach the contrary conclusion, and, accordingly, relief is denied.



       1
         We did not grant a new trial in Lane, a case with a far more favorable factual situation to
the one in this case. Therefore, other than to find it is without merit, we will not address the trial
court’s recommendation to grant a new trial.
       2
       The amount of methamphetamine in the Lane case was 225.44 grams. The amount of
methamphetamine in this case was 42.35 grams.
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See Ex parte Reed, 271 S.W.3d 698, 727-728 (Tex. Crim. App. 2008).

Filed: August 26, 2015
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