                                                                                    ACCEPTED
                                                                               01-13-00496-CR
                                                                     FIRST COURT OF APPEALS
                                                                             HOUSTON, TEXAS
                                                                         1/26/2015 12:42:33 PM
                                                                           CHRISTOPHER PRINE
                     No. 01-13-00496-CR                                                 CLERK
                             In the
                       Court of Appeals
                            For the
                                                          FILED IN
                    First District of Texas        1st COURT OF APPEALS
                          At Houston                   HOUSTON, TEXAS
                                                   1/26/2015 12:42:33 PM
                   
                                                   CHRISTOPHER A. PRINE
                         No. 1853071                        Clerk
               In the County Court at Law No. 7
                    Of Harris County, Texas
                   
                      JESUS ESCOBAR
                           Appellant
                               V.
                   THE STATE OF TEXAS
                           Appellee
                   

                STATE’S APPELLATE BRIEF

                  

                                      DEVON ANDERSON
                                      District Attorney
                                      Harris County, Texas

                                      KATIE DAVIS
                                      Assistant District Attorney
                                      Harris County, Texas
                                      State Bar Number: 24070242
                                      davis_katie@dao.hctx.net

                                      THOMAS WADDLE
                                      BRADLEY MEANS
                                      Assistant District Attorneys

                                      Harris County, Texas
                                      1201 Franklin Street, Suite 600
                                      Houston, Texas 77002
                                      Telephone: (713) 755-5826
                                      Fax Number: (713) 755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 39, the State requests oral argument only if oral

argument is requested by the appellant.


                    IDENTIFICATION OF THE PARTIES

Counsel for the State:

      Devon AndersonDistrict Attorney of Harris County

      Katie DavisAssistant District Attorney on appeal

      Thomas Waddle; Bradley Means  Assistant District Attorneys at trial

Appellant or Criminal Defendant:

      Jesus Escobar

Counsel for Appellant:

      Alexander Bunin – Chief Public Defender

      Sarah V. Wood – Assistant Public Defender on appeal

      Lazaro Izaguirre—Counsel at trial

Trial Judge:

      Honorable Pam DerbyshireJudge of County Court at Law No. 7




                                          i
                                        TABLE OF CONTENTS
                                                                                                            Page
STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 3

REPLY TO APPELLANT’S SOLE POINT OF ERROR ......................................... 4

State’s reply to the prosecutor’s voir dire comments ................................................ 4
   I.    The appellant failed to preserve any appellate complainant regarding the
         prosecutor’s voir dire because he failed make a timely objection. .................5

   II. The prosecutor’s introductory comments about his role and duties as a
       prosecutor generally were not improper. .........................................................8

State’s reply to the appellant’s claim of ineffective assistance of counsel ..............13
CONCLUSION ........................................................................................................ 17

CERTIFICATE OF SERVICE AND COMPLIANCE ........................................... 18




                                                          ii
                                     INDEX OF AUTHORITIES


CASES

Almanza v. State,
  686 S.W.2d 157 (Tex. Crim. App. 1984) ...............................................................6
Beltran v. State,
  99 S.W.3d 807 (Tex. App.—
  Houston [14th Dist.] 2003, pet. ref’d) ........................................................... 5, 7, 9
Blue v. State,
  41 S.W.3d 129 (Tex. Crim. App. 2000) .................................................................6
Briddle v. State,
  742 S.W.2d 379 (Tex. Crim. App. 1987),
  cert. denied, 488 U.S. 986 (1988) ..........................................................................5
Campos v. State,
  946 S.W.2d 414 (Tex. App.—
  Houston [14th Dist.] 1997, no pet.)............................................................... 11, 12
Clayton v. State,
  502 S.W.2d 755 (Tex. Crim. App. 1973) ...................................................... 11, 12
Cude v. State,
  588 S.W.2d 895 (Tex. Crim. App. 1979) .............................................................14
Ex parte White,
  160 S.W.3d 46 (Tex. Crim. App. 2004) ...............................................................14
Fowler v. State,
  500 S.W.2d 643 (Tex. Crim. App. 1973) ...................................................... 11, 12
Gordon v. State,
 191 S.W.3d 721 (Tex. App.—
 Houston [14th Dist.] 2006, no pet.)........................................................................9
Ingham v. State,
  679 S.W.2d 503 (Tex. Crim. App. 1984) .............................................................14
Jackson v. State,
  726 S.W.2d 217 (Tex. App.—
  Dallas 1987, pet. ref’d) .........................................................................................11



                                                         iii
Johnson v. State,
  698 S.W.2d 154 (Tex. Crim. App. 1985) ...................................................... 11, 12
Lopez v. State,
  343 S.W.3d 137 (Tex. Crim. App. 2011) ...................................................... 14, 15
Mallet v. State,
 65 S.W.3d 59 (Tex. Crim. App. 2001) .................................................................15
Mendoza v. State,
 552 S.W.2d 444 (Tex. Crim. App. 1977) .................................. 8, 9, 10, 11, 12, 15
Miniel v. State,
 831 S.W.2d 310 (Tex. Crim. App. 1992) .............................................................13
Mitchell v. State,
 68 S.W.3d 640 (Tex. Crim. App. 2002) ...............................................................13
Murchison v. State,
 93 S.W.3d 239 (Tex. App.—
 Houston [14th Dist.] 2002, pet. ref’d) ....................................................................7
Ortiz v. State,
  93 S.W.3d 79 (Tex. Crim. App. 2002) .................................................................14
Rodriguez v. State,
  899 S.W.2d 658 (Tex. Crim. App. 1995) .............................................................14
Schmidt v. State,
  No. 09-09-00149-CR, 2010 WL 4354027 (Tex. App.—
  Beaumont Nov. 3, 2010, no pet.) ...........................................................................7
Smith v. State,
  286 S.W.3d 333 (Tex. Crim. App. 2009) .............................................................13
Strickland v. Washington,
  466 U.S. 668 (1984) ...................................................................................... 13, 16
Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999) .................................................................15
Unkart v. State,
 400 S.W.3d 94 (Tex. Crim. App. 2013) .................................................................6
Valtierra v. State,
  310 S.W.3d 442 (Tex. Crim. App. 2010) ...............................................................5
Weathersby v. State,
 627 S.W.2d 729 (Tex. Crim. App. 1982) .............................................................14


                                                        iv
Wilkerson v. State,
 726 S.W.2d 542 (Tex. Crim. App. 1986),
 cert. denied, 480 U.S. 940 (1987) ........................................................................14
Williams v. State,
 417 S.W.3d 162 (Tex. App.—
 Houston [1st Dist.] 2013, pet. ref’d) ....................................................................10
Ybarra v. State,
  No. 14-03-00655-CR, 2004 WL 2401406 (Tex. App.—
  Houston [14th Dist.] Oct. 28, 2004, pet. ref’d) ........................................... 8, 9, 11
Young v. State,
  137 S.W.3d 65 (Tex. Crim. App. 2004) ...............................................................16
Zaiontz v. State,
  700 S.W.3d 303 (Tex. App.—
  San Antonio 1985, pet. ref’d) ...........................................................................9, 10


STATUTES

TEX. CODE. CRIM. PROC. ANN.
  art. 2.01 (West 2005) ..............................................................................................4


RULES

TEX. R. APP. P. 33.1(a) ...........................................................................................5, 8
TEX. R. APP. P. 38.1(f) ...............................................................................................4
TEX. R. APP. P. 39....................................................................................................... i




                                                            v
TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      The State charged the appellant with the delivery of less than one-fourth of

an ounce of marijuana, enhanced by one felony offense, and the jury found the

appellant guilty (CR – 5, 41; 3 RR 22). In accordance with a plea agreement

between the State and the appellant, the State abandoned the enhancement

paragraph and the trial court sentenced him to 120 days in the Harris County Jail

(CR – 43-44; 3 RR 25). The appellant filed a timely notice of appeal, and the trial

court certified that he had the right to appeal (CR – 46-7).


                            STATEMENT OF FACTS

      On September 24, 2012, Officers Mark Ong and Rosalinda Ibanez of the

Houston Police Department’s (HPD) Narcotics Division conducted an undercover

“buy-bust investigation” in an area well-known for narcotics trafficking (2 RR 58,

82-4-5). Ong and Ibanez were both dressed in plain clothes and rode in an

unmarked vehicle (2 RR 64, 82). Ong noticed the appellant standing in front of a

convenience store watching traffic and “not really doing anything” (2 RR 59-60).

Ong associated this behavior with selling drugs (2 RR 60).

      Ong approached the appellant and asked him for a “[twenty]-dollar bag of

weed” (2 RR 60). The appellant responded in Spanish (2 RR 60). Ibanez, who
spoke fluent Spanish, then spoke with the appellant (2 RR 60, 88-9). Ibanez again

asked the appellant for a “twenty” of marijuana, and the appellant told her he knew

someone who sold “weed” (2 RR 86-7). Ibanez gave the appellant her phone

number and told him to call her when he had some marijuana (2 RR 61, 87). As

they drove out of the parking lot, Ibanez explained her conversation with the

appellant to Ong (2 RR 61).

      Approximately thirty minutes later, Ibanez received a call from the appellant

who told her he had “it” (2 RR 61, 89). Ong and Ibanez drove back to the same

location where they had met the appellant earlier that day (2 RR 61, 90). The

appellant approached the passenger side of the vehicle where Ibanez was sitting (2

RR 61, 91). Ibanez handed him twenty dollars, and the appellant gave her a bag of

a green leafy substance (2 RR 62, 91). Based on their training and experience,

Ibanez and Ong immediately noticed the substance was marijuana (2 RR 62-3, 92).

They made the bust signal and described the appellant to the surveillance team that

was waiting two blocks away (2 RR 63, 92-3).

      HPD Officer Kevin Hubenak, a member of the surveillance team, received

the bust signal and description of the appellant (2 RR 117). Ibanez told him the

appellant was a Hispanic male wearing a brown shirt and jeans (2 RR 117). Ibanez

informed him that the appellant had just entered the convenience store (2 RR 117).

Hubanek went in the store and found the appellant standing in line (2 RR 117).



                                        2
Although there were a couple other patrons in the store, only the appellant matched

the description Ibanez provided Hubanek (2 RR 118). Hubanek recovered the

twenty-dollar bill Ibanez gave him to purchase the marijuana (2 RR 119). Hubanek

confirmed the money’s serial number matched the number written down before the

exchange (2 RR 65, 93, 119). And he placed the appellant into custody (2 RR 120).

      Ibanez submitted the marijuana to the HPD Crime Lab to be tested (2 RR

95-6). Angelica Noyola, a criminalist trained in detecting controlled substances,

analyzed the evidence Ibanez submitted and determined it to be marijuana (2 RR

130-34). The marijuana weighed 0.11 ounces or 3.3 grams (2 RR 137-38).


                      SUMMARY OF THE ARGUMENT

      The prosecutor’s voir dire examination did not improperly violate the

appellant’s presumption of innocence because his comments were general in nature

and did not specifically refer to the appellant or his trial. Even if the comments

were improper, they were not fundamental error; thus, the appellant’s failure to

object waived any complaint about the prosecutor’s comments during voir dire.

      Trial counsel cannot be ineffective for failing to object to a proper voir dire

examination. Nevertheless, the appellant failed to rebut the presumption of sound

trial strategy and failed to show how he was prejudiced.




                                         3
              REPLY TO APPELLANT’S SOLE POINT OF ERROR

       In a single point of error, the appellant contends that the prosecutor violated

the presumption of innocence by informing the jury panel that he believed the

appellant was guilty and that prosecuting him was the right thing to do. The

appellant further contends that his trial counsel was ineffective for not objecting to

this comment.1


State’s reply to the prosecutor’s voir dire comments

       At the beginning of the prosecutor’s voir dire, he explained to the venire that

he was a recent hire, that this was his first jury trial, and that he was excited to be

there (2 RR 12-13). He showed the venire what the criminal code states regarding

the role of a prosecutor: “It shall be the primary duty of all prosecuting attorneys

… not to convict, but to see that justice is done.” (2 RR 13); see TEX. CODE. CRIM.

PROC. ANN. art. 2.01 (West 2005). The prosecutor explained that he was “excited

about that because it [meant] that [his] job [was] to do the right thing.” (2 RR 13).

He stated that he did not have to prosecute someone that he did not believe was

guilty, and could go forward only on those cases he believed in (2 RR 13).




1
  Although the appellant’s point of error is multifarious and a vast majority of the argument
centers on the prosecutor’s voir dire comment, the State will address the appellant’s complaint of
ineffective assistance of counsel in the interest of justice. (App’nt Brf. 12-13); see TEX. R. APP.
P. 38.1(f).

                                                4
       The prosecutor further told the jury panel that the current District Attorney

Mike Anderson in a recent training session said that he was “thankful for this job

and [his] position because [he] never [had] to try a case [he didn’t] believe in.” (2

RR 13). And because of these things, the prosecutor was glad to be there (2 RR

13).

       I.    The appellant failed to preserve any appellate complainant
             regarding the prosecutor’s voir dire because he failed make
             a timely objection.
       The appellant argues that the prosecutor improperly injected his personal

opinion that the appellant was guilty, therefore violating the presumption of

innocence. (App’nt Brf. 9). But the appellant admits he failed to make any

objections during the prosecutor’s voir dire (2 RR 13). (App’nt Brf. 11). And any

impropriety in a prosecutor’s comment during voir dire is waived by not making a

proper objection contemporaneously with the comment. Briddle v. State, 742

S.W.2d 379, 389 (Tex. Crim. App. 1987), cert. denied, 488 U.S. 986 (1988);

Beltran v. State, 99 S.W.3d 807, 811 (Tex. App.—Houston [14th Dist.] 2003, pet.

ref’d) (holding because the appellant did not object to a prosecutor’s improper

comment during voir dire, any error has been waived); see also TEX. R. APP. P.

33.1(a) (“As a prerequisite to presenting a complaint for appellate review, the

record must show that: (1) the complaint was made to the trial court by a timely

request, objection, or motion … and (2) the trial court: (A) ruled on the request,



                                         5
objection, or motion, either expressly or implicitly; or (B) refused to rule on the

request, objection, or motion, and the complaining party objected to the refusal.”).

      The appellant argues that this type of error does not require an objection

because it is so egregious that it rises to the level of a fundamental error, citing

Blue v. State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000) (plurality op.). (App’nt

Brf. 11-12); see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984) (noting fundamental error must be so egregious it prevents a fair and

impartial trial). But the Court of Criminal Appeals has since held that Blue, a

plurality opinion, has no precedential value. Unkart v. State, 400 S.W.3d 94, 101

(Tex. Crim. App. 2013) (finding in Blue “it is not possible to ascertain a majority

holding or the narrowest ground or rule that commands a majority of the court”).

      Additionally, the facts in Blue are distinguishable. In Blue, the trial judge

made comments that the reason the jury panel waited so long was that the appellant

was considering a plea offer from the State, and the judge would have preferred the

appellant pled guilty. Blue, 41 S.W.3d at 130. And when discussing the appellant’s

right to remain silent, the trial judge presented a hypothetical in which a defense

attorney puts Sister Teresa on the stand because no one thinks she would lie even

though she previously admitted to her lawyer that she was guilty. Id. The court

found that these remarks implicated the right to an impartial trial court because




                                          6
they reasonably could be interpreted as the judge’s predetermination of the

appellant’s guilt. Id. at 135–39 (Keasler, J., concurring).

      Here, the appellant has not shown that the prosecutor’s comments rose to the

level of Blue (2 RR 13). The prosecutor’s comments merely addressed his role and

ethical duties generally, and do not rise to such a level as to vitiate the impartiality

of the jury or bear on the presumption of innocence of this appellant. See

Murchison v. State, 93 S.W.3d 239, 262 (Tex. App.—Houston [14th Dist.] 2002,

pet. ref’d) (distinguishing Blue, holding there was no fundamental error in the trial

court’s remarks that conveyed the court was irritated at the defense attorney; thus,

the appellant needed to object to preserve any error).

      Furthermore, the appellant cites no authority in which similar voir dire

statements were held to be fundamental error. Cf. Beltran, 99 S.W.3d at 811

(holding no fundamental error when a prosecutor’s statement in response to a

venire member’s question indicated her personal opinion that defendant was

guilty); Schmidt v. State, No. 09-09-00149-CR, 2010 WL 4354027, at *7 (Tex.

App.—Beaumont Nov. 3, 2010, no pet.) (mem. op., not designated for publication)

(holding no fundamental error or violation of the presumption of innocence when a

prosecutor’s answered a veniremember’s concern about sitting in judgment of

others with the fact that the jury would hear additional evidence at punishment).




                                           7
Therefore, the appellant’s failure to object waived any appellate complaint about

the prosecutor’s remarks.

      Finally, the appellant’s argument that the prosecutor improperly invoked the

name of Mike Anderson to garner sympathy due to Anderson’s life-threatening

illness lacks merit for several reasons. (App’nt Brf. 10, 12). First, it is not

preserved because the appellant failed to object. See TEX. R. APP. P. 33.1(a).

Second, besides Blue, he failed to cite any authority to support this contention.

(App’nt Brf. 10, 12). Finally, there is no evidence or mention by the prosecutor of

Anderson’s illness in the record. Thus, the appellant’s sole point of error should be

dismissed.

      II.    The prosecutor’s opening remarks in voir dire about his role and
             duty as a prosecutor generally were not improper.
      The appellant argues that the prosecutor improperly injected his personal

opinion that the appellant was guilty and therefore violated his presumption of

innocence. (App’nt Brf. 9). But the prosecutor’s opening remarks in voir dire were

not directed at the appellant, and general statements that do not constitute a

statement that the prosecutor believed the appellant was guilty are allowed (2 RR

13). Mendoza v. State, 552 S.W.2d 444, 446–47 (Tex. Crim. App. 1977); Ybarra v.

State, No. 14-03-00655-CR, 2004 WL 2401406, at *3 (Tex. App.—Houston [14th

Dist.] Oct. 28, 2004, pet. ref’d) (mem. op., not designated for publication); see also

Gordon v. State, 191 S.W.3d 721, 726-27 (Tex. App.—Houston [14th Dist.] 2006,


                                          8
no pet.) (holding the trial court’s comments on how the criminal justice system

generally operates did not address the appellant’s guilt or innocence).

      The appellant relies on Beltran, in which this Court held that the

prosecutor’s statement during voir dire that “[i]f I believed the man was not guilty

I wouldn’t be here” was improper. Beltran, 99 S.W.3d at 811 (emphasis added).

But this Court later distinguished Beltran. See Ybarra, 2004 WL 2401406 at *2-3.

      In Ybarra, the prosecutor stated during her voir dire, “I took an oath to see

that justice is done and I take that oath very seriously. Sometimes it means I

dismiss cases. Sometimes it means I plea bargain them and sometimes it means I

take them to trial and fight tooth and nail for what I think is right.” Id. at *2. This

Court held that because this was a general comment it was not error. Ybarra, 2004

WL 2401406 at *3 (citing Mendoza, 552 S.W.2d at 446–47). But comments, like

those in Beltran, that directly express the prosecutor’s opinion that the defendant is

guilty are improper. Id. at *2-3 (distinguishing Beltran, 99 S.W.3d at 811, and

Zaiontz v. State, 700 S.W.3d 303, 307 (Tex. App.—San Antonio 1985, pet. ref’d)).

      In reaching this conclusion, this Court relied on the Court of Criminal

Appeals’ holding in Mendoza. Ybarra, 2004 WL 2401406 at *3. The prosecutor in

Mendoza stated during voir dire, “our staff, myself being one of its members, has

the responsibility of seeing that the individuals who are guilty of criminal offenses

are brought to trial, and hopefully brought to justice.” Mendoza, 552 S.W.2d at



                                          9
446. The court held that the prosecutor’s general statement was not a statement that

the appellant was guilty and thus not improper. Id. at 447. Therefore, although a

prosecutor cannot inject personal opinion in statements to the jury, generalized

statements are allowed.

       In the present case, none of the prosecutor’s comments were specific to the

appellant or his trial, but rather were about the role and duty of a prosecutor

generally (2 RR 13). At no point did the prosecutor state that he believed the

appellant was guilty. When read in context with the rest of his introduction, the

prosecutor merely expressed his general excitement about becoming a prosecutor

and trying his first jury trial (2 RR 12). Even if the prosecutor implied that he

believed in this case, that is not the same as telling the jury he believed the

appellant was guilty. Cf. Zaiontz, 700 S.W.2d at 307 (finding the prosecutor’s

comment that he “wouldn't be here if [he] didn’t believe the Defendant to be

guilty” was improper); Williams v. State, 417 S.W.3d 162, 173 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d) (holding the prosecutor’s statement to the

venire that he would have dismissed the case if he believed the defendant was

innocent constituted an improper expression of his opinion that the defendant was

guilty).

       Additionally, these comments are not reviewed in isolation. See Mendoza,

552 S.W.2d at 446-47 (noting that the prosecutor’s comments viewed in isolation



                                        10
may be misleading, but when looking at the voir dire as a whole, the prosecutor

explained the presumption of innocence and the burden of proof). Here, after his

introductory remarks the prosecutor went on to clarify the appellant’s rights and

the State’s burden of proof (2 RR 14-15). See id. Additionally, his remarks were

made before the jury was impaneled, and evidence adduced. See Ybarra, 2004 WL

2401406 at *3. Furthermore, the record reveals the jury received instructions from

the trial court regarding the appellant’s presumption of innocence and the State’s

burden of proof before deliberations (CR – 37-38; 3 RR 5-11). Moreover, any

possible error would have been harmless. See Mendoza, 552 S.W.2d at 447. Thus,

the prosecutor’s comments in voir dire did not violate the appellant’s presumption

of innocence.

      To support his contention, the appellant cites authorities addressing

misconduct in jury argument. (App’nt Brf. 9-12) (citing Fowler v. State, 500

S.W.2d 643 (Tex. Crim. App. 1973), Campos v. State, 946 S.W.2d 414 (Tex.

App.—Houston [14th Dist.] 1997, no pet.), Johnson v. State, 698 S.W.2d 154

(Tex. Crim. App. 1985), and Clayton v. State, 502 S.W.2d 755 (Tex. Crim. App.

1973)). But what is improper jury argument is different than what is an improper

comment during voir dire. See Jackson v. State, 726 S.W.2d 217, 221 (Tex. App.—

Dallas 1987, pet. ref’d) (noting “an improper statement during closing argument

has a greater impact on the jury than the same statement made during voir dire



                                       11
when much time still remains before deliberations.”); see also Mendoza, 552

S.W.2d at 447 (noting that “[t]he conduct of the voir dire examination, including

the opening remarks of counsel must rest largely within the sound discretion of the

trial court.”).

       Even if this Court were to analyze voir dire examination the same as jury

argument, the prosecutors’ remarks in Fowler, Campos, Johnson and Clayton were

all direct comments on that appellant’s guilt. See Fowler, 500 S.W.2d at 643 (“I

am certainly not going to prosecute a man that I don’t feel in my own heart is

guilty.”); Campos, 946 S.W.2d at 416 (“We know he committed the murder or we

wouldn’t be here…ladies and gentleman, Abraham Campos, unfortunately,

murdered Martin Rodriguez. I can’t change that fact. I’m submitting it to your

hands because I know it’s the truth…”); Johnson, 698 S.W.2d at 167 (referring to

the special issue question of provocation the prosecutor stated, “Now, if, I

personally don’t think there is…”); Clayton, 502 S.W.2d at 756 (“He couldn’t pay

me enough to come down here and prosecute a man I didn’t know in my heart to

be guilty.”). Accordingly, Fowler, Campos, Johnson and Clayton are

distinguishable from the present case. Thus, because the prosecutor’s comments

were not improper the appellant’s sole point of error should be overruled.




                                        12
State’s reply to the appellant’s claim of ineffective assistance of counsel
      The appellant has failed to show that his trial counsel rendered a deficient

performance that harmed the appellant. A claim of ineffective assistance is

governed by the two-prong test set out in Strickland v. Washington, 466 U.S. 668

(1984). In order to prove an ineffective assistance claim, the appellant must first

show that the trial counsel’s performance was deficient. Id. at 687; see Mitchell v.

State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Specifically, the appellant must

prove by a preponderance of the evidence that the trial counsel’s representation fell

below the objective standard of professional norms. Mitchell, 68 S.W.3d at 642;

Smith v. State, 286 S.W.3d 333, 340 (Tex. Crim. App. 2009). The appellant must

also show that the deficient performance, affirmatively demonstrated in the record,

prejudiced his defense. Strickland, 466 U.S. at 687. Prejudice is shown by the

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

the proceeding would have been different. Mitchell, 68 S.W.3d at 642.

      In reviewing a claim of ineffective assistance, a reviewing court presumes a

trial counsel’s competence, and the appellant has the burden to rebut this

presumption by proving that his attorney’s representation was not sound strategy.

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) (citing Strickland,

466 U.S. at 689). An appellate court looks to the totality of the representation,

rather than isolated acts or omissions of trial counsel. Wilkerson v. State, 726



                                         13
S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987);

Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App. 1995). And an appellate

court does not judge trial counsel’s decisions in hindsight. Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011).

      The appellant argues that trial counsel was ineffective for failing to object to

the prosecutor’s introductory remarks in voir dire. (App’nt Brf. 12). But, as

previously stated, the prosecutor’s remarks were not improper, and trial counsel

cannot be ineffective for failing to object to a proper voir dire examination. See

Ortiz v. State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) (holding when an

ineffective assistance claim alleges that counsel was deficient in failing to object to

the admission of evidence, the defendant must show as part of his claim that the

evidence was inadmissible); Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App.

2004) (noting “[t]o show ineffective assistance of counsel for the failure to object

during trial, the applicant must show that the trial judge would have committed

error in overruling the objection.”).

      Additionally, an isolated failure to object may not constitute ineffective

assistance of counsel. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App.

1984); Weathersby v. State, 627 S.W.2d 729 (Tex. Crim. App. 1982); Cude v.

State, 588 S.W.2d 895 (Tex. Crim. App. 1979). When looking to the totality of

counsel’s representation, he made thirteen appearances, conducted a thorough voir



                                          14
dire, effectively cross-examined the State’s witnesses, and developed arguments

for why the jury should have reasonable doubt (2 RR 35-40, 65-75, 97-108, 120-

29, 138-146; 3 RR 11-15).

      Furthermore, no direct evidence in the record established a reason that trial

counsel did not object to the prosecutor’s introductory remarks. And without a

sufficient record as to why counsel did not object, the existing record does not

rebut the “strong presumption that counsel’s conduct fell within the wide range of

reasonable professional assistance.” Thompson v. State, 9 S.W.3d 808, 813-14

(Tex. Crim. App. 1999); see also Lopez, 343 S.W.3d at 142-43 (noting it is

difficult to demonstrate ineffective assistance of counsel on direct appeal); Mallet

v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (noting a record on direct

appeal cannot adequately reflect the motives behind trial counsel’s actions).

Therefore, counsel was not deficient.

      The appellant speculates without providing any authority that the trial court

would have granted a mistrial had his trial counsel objected to the prosecutor’s

remarks. (App’nt Brf. 12-13). But a reviewing court cannot speculate to what the

trial court would or would not have done. See Thompson, 9 S.W.3d at 813 (finding

that an appellant must affirmatively prove prejudice); see also Mendoza, 552

S.W.2d at 447 (holding that the trial court did not abuse its discretion when it

chose not to dismiss the jury panel and grant a mistrial following the prosecutor’s



                                        15
remarks during voir dire pursuant to the appellant’s request); Young v. State, 137

S.W.3d 65, 72 (Tex. Crim. App. 2004) (holding that the trial court did not err in

denying the appellant’s request for a mistrial following alleged improper voir dire

comments because an instruction to disregard would have cured any resulting

harm, where the appellant did not object or ask for such instruction and thus

foreclosed his opportunity to cure any prejudice).

      Moreover, the State’s evidence was strong where two seasoned police

officers identified the appellant as the person who they requested marijuana from,

who called them, and who then sold them marijuana (2 RR 59, 83). Therefore,

there is no reasonable probability that a new trial, absent the alleged error, would

end in an acquittal. See Strickland, 466 U.S. at 695 (“When a defendant challenges

a conviction, the question is whether there is a reasonable probability that, absent

the errors, the factfinder would have had a reasonable doubt respecting guilt.”).

Accordingly, it is unlikely that the outcome would have been different in this case.

Thus, the appellant has not shown counsel was ineffective.




                                         16
                                CONCLUSION

      It is respectfully submitted that all things are regular and the conviction

should be affirmed.

                                                 DEVON ANDERSON
                                                 District Attorney
                                                 Harris County, Texas


                                                 /S/ _Katie Davis_________
                                                 KATIE M. DAVIS
                                                 Assistant District Attorney
                                                 Harris County, Texas
                                                 1201 Franklin Street, Suite 600
                                                 Houston, Texas 77002
                                                 Telephone (713) 755-5826
                                                 Fax Number (713) 755-5809
                                                 Davis_Katie@dao.hctx.net
                                                 State Bar Number: 24070242




                                       17
              CERTIFICATE OF SERVICE AND COMPLIANCE
      This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,745 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

Sarah V. Wood
Assistant Public Defender
Harris County, Texas
1201 Franklin, 13th Floor
Houston, TX 77002
713-368-0016/p
713-368-9278/f
Sarah.Wood@pdo.hctx.net



                                                  /S/ _Katie Davis_________
                                                  KATIE M. DAVIS
                                                  Assistant District Attorney
                                                  Harris County, Texas
                                                  1201 Franklin Street, Suite 600
                                                  Houston, Texas 77002
                                                  Telephone (713) 755-5826
                                                  Fax Number (713) 755-5809
                                                  Davis_Katie@dao.hctx.net
                                                  State Bar Number: 24070242

Date: January 26, 2015




                                       18
