                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-10-00511-CR


JESUS MANUEL CISNEROS                                                    APPELLANT

                                          V.

THE STATE OF TEXAS                                                             STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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      A jury convicted Appellant Jesus Manuel Cisneros of intoxication

manslaughter and assessed his punishment at twenty years’ confinement and a

$10,000 fine. The trial court sentenced him accordingly. In two points, Appellant

argues that he was denied effective assistance of counsel at the punishment

stage of his trial and that the trial court abused its discretion by denying a mistrial

after the prosecutor argued outside the record.            Because the trial court
      1
       See Tex. R. App. P. 47.4.
committed no reversible error and because Appellant did not satisfy his burden of

proving ineffective assistance of counsel at trial, we affirm the trial court’s

judgment.

I. Background Facts

      Appellant was a Fort Worth police officer who had been honorably

discharged from the military following his service in Desert Storm and in

Honduras. At the time of the events at issue, Appellant had served as a Fort

Worth police officer for ten years and had served in the patrol, DWI, and

narcotics units. He had worked as an undercover narcotics officer as recently as

December 2009.

      Appellant and fellow officer Erik Martinez were working on a human

trafficking investigation on the night of December 10, 2009.       Appellant was

driving a Toyota Highlander SUV, a city vehicle, and he and Martinez went to

several bars where they drank beer and pretended to be drug dealers in an

attempt to become known in that community. When they left the bars where they

were working, they went to another bar, the Pour House, where police officers

were holding a birthday party for a fellow narcotics officer. The Pour House was

equipped with sixteen video surveillance cameras. Mark Porter, a forensic video

analyst, testified that the video depicted Appellant drinking eight beers and four

“shots” between 9:23 p.m. and 1:41 a.m.           The trial court admitted still

photographs that the analyst had isolated from the surveillance video; the

photographs show Appellant’s drinking the twelve drinks.        The photographs


                                        2
reflect that Appellant chugged the last beer without using his hands.        Porter

testified that from his review of the surveillance video, Appellant did not seem

abnormal when he left the Pour House.

      Appellant drove Martinez to a friend’s house in the SUV, even though the

evidence shows that police officers are allowed to drive a city vehicle only while

on duty. In Martinez’s opinion, Appellant drove well and did not appear to be

intoxicated.   Martinez, however, admitted to being “buzzed” after consuming

seven or eight beers.

      Luis Patino was driving to a Walmart at 2:00 a.m. when an SUV passed

him at a high rate of speed, cut in front of him, turned right, ran a red light, and

did not stay in its lane. Patino called 911 and attempted to follow the SUV, which

ran another red light. Patino accelerated to sixty miles per hour in an effort to

catch up to the SUV, but it was traveling at sixty-five to seventy miles per hour.

Patino abandoned his pursuit and turned into the parking lot when he reached

Walmart.

      Sonia Baker was driving a PT Cruiser when she turned left at an

intersection, and the SUV and the PT Cruiser collided. Patino testified that the

SUV shown in a photograph taken after the collision looked like the SUV he had

followed. Baker died at the scene as a result of blunt force trauma to the head

and chest. Appellant called 911 on a department-issued cell phone but could

only moan and groan.




                                         3
      Medstar arrived at the scene pursuant to a different 911 call and

transported Appellant to a hospital for a blood draw. EMT Bobby Metcalf testified

that on the way to the hospital, he noticed that Appellant had an odor of alcohol

on his breath and that Appellant admitted that he had been drinking. Appellant’s

blood-alcohol level was 0.18 at 3:17 a.m.

      Tim Lovett, an accident reconstructionist, testified that, in his opinion, the

SUV was traveling at seventy-six miles per hour, and the PT cruiser was

traveling at nine miles per hour at the time of the collision. Lovett also testified

that the wreck was caused by Appellant’s intoxication.

      Stella Lopez, Baker’s mother, testified about Baker’s background, her good

qualities, and the manner in which her death had affected the family.

      Lieutenant Robert Rangel, Appellant’s supervisor in the narcotics unit,

testified without objection that a few years before the December 2009 events in

this case, Appellant’s wife, Carmen, had come to Rangel’s home late one night

and told him that another woman had told her that she was in a relationship with

Appellant and that Appellant was abusing drugs and alcohol.             Rangel also

testified that Carmen had told him that Appellant drank too much and was

intoxicated when he discharged a gun while he and Carmen were in a moving

vehicle. Carmen asked Rangel not to report the woman’s accusations. Rather,

Carmen told him that she was trying to determine whether those accusations

were true.   Rangel testified that he told Carmen that he did not think that

Appellant used drugs and that Appellant was subject to random drug testing.


                                         4
      Rangel, however, did report his conversation with Carmen to his

supervisor and ordered Appellant to report to his office the following morning.

Rangel received additional information from the chief of police and from Sergeant

Herschel Tebay that an unnamed Mansfield police officer had stopped Appellant

in a city vehicle one morning at 3:00 a.m. with a female passenger named Joy

Ivins. Rangel testified that Appellant had violated departmental rules by driving a

city vehicle when he was off-duty and by having an unauthorized person in the

vehicle.

      Appellant passed a drug test. Ivins stated that she had never said that

Appellant used drugs, but that if she had said that he had used drugs, she had

been angry and did not mean it.       The other allegations were sustained in a

review, and Appellant was suspended without pay for twenty days.            Rangel

testified that Appellant was transferred from the narcotics unit to the DWI unit

because Rangel could no longer trust him with the responsibilities of a narcotics

officer. Rangel had to transfer Appellant out of the narcotics unit despite the fact

that Appellant was very effective at removing drugs from the streets. Appellant’s

superiors wanted Appellant to see the destruction caused by drunk drivers in an

effort to stop Appellant from drinking excessively. Appellant was also required to

enter an employee assistance program to determine the extent of his alcohol

problem.

      Appellant asked Rangel to allow him to return to the narcotics unit, saying

that he had learned his lesson when a fellow officer was hit from behind by a


                                         5
drunk driver and burned to death. Rangel refused his request, explaining that his

captain would never allow Appellant to return to the narcotics unit. Appellant,

nevertheless, successfully convinced the captain to allow him to return.

Appellant, however, did not have permission to take home a city vehicle the night

of the wreck. Additionally, he was drinking at a bar rather than working on the

night of Baker’s death.

      Rangel testified that the police department was in the process of

terminating Appellant when he resigned. Rangel also testified with no objection

that he did not consider Appellant to be trustworthy, reliable, or a good candidate

for community supervision.

      Jeremy Thompson, the senior community supervision officer for the 371st

District Court, was called by the defense to testify. On direct examination, he

testified to the standard conditions of community supervision and stated that he

would never recommend community supervision for anyone convicted of

intoxication manslaughter. Thompson knew very little about Appellant or whether

he personally would be a good candidate for community supervision. On cross-

examination, Thompson testified that the community supervision department in

Tarrant County cannot adequately supervise a person on community supervision

for intoxication manslaughter. On redirect examination, Thompson testified that

former law enforcement officers are harder to supervise on community

supervision because they know how to beat a drug test.




                                        6
      Appellant assumed responsibility for his actions, and his sister, brother,

and wife testified that he was remorseful. They testified that he had not drunk an

alcoholic beverage or driven a vehicle since the wreck, that he was eligible for

community supervision, and that he would follow the rules of community

supervision.

      In jury argument, the State asked for prison time, not only because of

Appellant’s actions in causing Baker’s death but also because of his misconduct

as a police officer and his infidelity to his wife. The prosecutor also reminded the

jury that the community supervision officer “[did]n’t think this [was] a case for

[community supervision].”        The defense asked for community supervision

because Appellant is a decorated war veteran who has served in Desert Storm

and who had been a good narcotics officer who never had problems until he

began to work undercover. The defense also pointed out that Appellant did not

act intentionally in causing Baker’s death.

      The      jury   assessed   the   maximum    punishment    of   twenty   years’

imprisonment and a $10,000 fine, despite the fact that Appellant had no prior

convictions and was eligible for community supervision.

II. Ineffective Assistance of Counsel

      Appellant filed a motion for new trial on punishment in which he raised

ineffective assistance of counsel. Both trial counsel testified in the hearing on the

motion for new trial. Appellant argued below, as he argues now in his first point,

that he was denied effective assistance of counsel at the punishment stage of his


                                         7
trial. Specifically, he argued below and argues here that his trial counsel were

ineffective by

      calling the senior community supervision officer to testify, knowing that he
      would also testify that he would never recommend community supervision
      for anyone convicted of intoxication manslaughter;

      eliciting from the community supervision officer testimony that over half of
      the people on felony community supervision in Tarrant County were
      revoked in fiscal year 2010;

      eliciting from the community supervision officer testimony that law
      enforcement officers are harder to supervise on community supervision
      because they know how to beat a drug test;

      failing to object to Rangel’s inadmissible hearsay testimony that
      Appellant’s wife, Carmen, had told him that Appellant drank too much and
      was intoxicated when he discharged his gun while they were in a moving
      vehicle;

      failing to object to Rangel’s inadmissible hearsay testimony that another
      woman had told Carmen that she was in a relationship with Appellant and
      that he was abusing drugs and alcohol; and

      failing to object to Rangel’s inadmissible hearsay testimony that the chief
      of police and another officer had told him that a Mansfield police officer
      had stopped Appellant in a city vehicle at 3:00 a.m. with a female
      passenger, Ivins.

      To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have




                                        8
been different.2 In evaluating the effectiveness of counsel under the first prong,

we look to the totality of the representation and the particular circumstances of

each case.3 The issue is whether counsel’s assistance was reasonable under all

the circumstances and prevailing professional norms at the time of the alleged

error.4       Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within a

wide range of reasonable representation.5 A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim.6 “In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions.”7          To

overcome the presumption of reasonable professional assistance, “any allegation

of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.”8 It is not appropriate for


          2
        Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009); Hernandez
v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999).
          3
          Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
          4
          See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
          5
       Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.
State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).
          6
          Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14.
          7
          Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63).
          8
          Id. (quoting Thompson, 9 S.W.3d at 813).


                                          9
an appellate court to simply infer ineffective assistance based upon unclear

portions of the record.9

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, that is, a trial with

a reliable result.10    In other words, an appellant must show that there is a

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

the proceeding would have been different.11          A reasonable probability is a

probability sufficient to undermine confidence in the outcome.12 The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding in

which the result is being challenged.13

      Trial counsel testified at the hearing on Appellant’s motion for new trial that

the strategy had been to show that alcohol had not caused the wreck. Rather,

trial counsel had intended to show very gently that Baker had caused the wreck

by pulling out in front of Appellant. That had been the defense strategy all along,

including during voir dire. Trial counsel’s statements to the jury panel and in

choosing the jury had been premised on that defense. Appellant, however, after


      9
       Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
      10
          Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
      11
          Id. at 694, 104 S. Ct. at 2068.
      12
          Id.
      13
          Id. at 697, 104 S. Ct. at 2070.


                                            10
speaking to his family, decided to take full responsibility for causing the wreck

because his family accepted responsibility when they did something wrong. Trial

counsel testified that they discussed the ramifications of this decision with

Appellant, who actively participated in his defense and in determining defense

strategy.

      The defense knew that Ivins had been called to testify and was available to

testify. Trial counsel believed that it would be more damaging for the jury to hear

Ivins testify about Appellant’s infidelity and abuse of drugs and alcohol, as well as

violations of departmental rules, than for the evidence to come in through

Rangel. Additionally, Appellant insisted that Ivins not testify. Neither Appellant

nor his counsel knew what Ivins would testify to. They were afraid that if she

were allowed to testify, it would open “Pandora’s Box.” Trial counsel knew that

they would have to call Carmen to the stand. They thought that by allowing

damaging evidence to come in through Rangel’s testimony, they could avoid the

emotion of having the evidence come in through Carmen as well as the

unpredictability of Ivins’s testimony. Trial counsel also believed that they would

defuse the damage of Ivins’s accusations when Rangel testified that Appellant

had passed the drug test. Additionally, Rangel was able to testify that Appellant

was an outstanding police officer.

      Appellant himself insisted on calling Rangel to testify.        Trial counsel

attempted to convince Appellant that the police would not be his friends when

they testified at his trial, but Appellant refused to believe them. He was shocked


                                         11
by Rangel’s testimony. Trial counsel believed that because they were going to

ask Appellant’s family whether Appellant was a good candidate for community

supervision, Rangel would be able to testify in response to the same question.

Trial counsel admitted that they had no strategic reason for not filing a motion in

limine or requesting a hearing.

      Rangel’s opinion of whether Appellant could successfully complete

community supervision was properly admissible for the same reasons that

Appellant’s family’s opinions were admissible: they all had personal knowledge

of Appellant and what he was capable of.14 Whether Appellant should be placed

on community supervision, in Rangel’s opinion, was not admissible.15             By

following their strategy, trial counsel managed to keep Ivins off the stand and to

blunt the emotional force of the evidence of Appellant’s poor judgment and bad

behavior.   And we must not forget that Appellant made the decision to call

Rangel. The fact that the strategy did not produce the desired result does not

raise the decision to pursue that strategy to the level of ineffective assistance of

counsel.



      14
         See Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006)
(holding that perhaps the most important factor to consider when evaluating
admissibility of community supervision officer’s testimony regarding a defendant
is the community supervision officer’s personal knowledge and perceptions of the
defendant and complainant).
      15
        See Sattiewhite v. State, 786 S.W.2d 271, 290–91 (Tex. Crim. App.
1989), cert. denied, 498 U.S. 881 (1990).


                                        12
      As to the testimony of Jeremy Thompson, both defense lawyers were

aware of his opinion that people who were convicted of intoxication manslaughter

should never be placed on community supervision.           Both lawyers believed

whether to call Thompson to testify was a judgment call. Both defense lawyers

believed that Thompson’s opinion regarding the viability of community

supervision for a person convicted of intoxication manslaughter was admissible.

When asked if trial counsel would now agree that testimony from the convicting

court’s community supervision officer that he did not think anybody convicted of

intoxication manslaughter should ever be placed on community supervision was

harmful to Appellant, counsel testified that on balance it was both damaging and

helpful. Thompson had no personal knowledge of Appellant.

      Trial counsel believed that much of the testimony elicited from Thompson

was a double-edged sword. Their strategy was to bring out the harmful things

before the State did in an attempt to blunt the impact. Trial counsel believed that

Thompson’s opinions were admissible and testified that their decision to call him

and to ask the damaging questions themselves was trial strategy. They were

incorrect in assuming the admissibility of Thompson’s opinion regarding whether

Appellant in particular and police officers specifically should receive community

supervision.16 It is common trial strategy for a lawyer to offer harmful testimony

he expects to come in through the State in an attempt to blunt its impact. It is not

      16
       See Tex. R. Evid. 602 (providing that lay witness with no personal
knowledge may not testify to a matter); Ellison, 201 S.W.3d at 723.


                                        13
appropriate trial strategy for a lawyer to offer inadmissible evidence that is

harmful to his client.    But here, the strategy was to offer evidence that trial

counsel believed the State would elicit, and, by offering it first, to present it in the

least damaging light, essentially taking the emotional wind out of the State’s

sails.

         The decision to call Thompson to testify regarding the obligations of

community supervision is a common trial strategy.            It is more problematic,

however, that trial counsel called someone who would testify that he would never

recommend community supervision for a person convicted of intoxication

manslaughter and that police officers knew how to beat drug tests. And trial

counsel’s belief that Thompson’s testimony regarding his opinion of police

officers and whether he would recommend community supervision was

admissible is puzzling.      Eliciting that testimony cannot be justified as trial

strategy. Thompson did explain that the Tarrant County community supervision

office lacked the resources to provide adequate supervision of community

supervisioners who committed alcohol-related offenses. Although that testimony

is also opinion testimony, it is admissible because it is within Thompson’s realm

of expertise and not the result of his own biases and prejudices.17 Because the

jury could have understood that the basis for Thompson’s categorical refusal to

recommend community supervision in any involuntary manslaughter case was


         17
          See Tex. R. Evid. 602, 701; Ellison, 201 S.W.3d at 723.


                                          14
the community supervision department’s lack of resources, it could be said that

presenting evidence of Appellant’s willingness to seek help on his own and the

family’s testimony that Appellant had drunk no alcohol since the wreck was

defense strategy to defeat an anticipated prosecution strategy of arguing that the

community supervision department did not have the resources to provide

adequate supervision of Appellant. This is what trial counsel suggested. And,

although trial counsel was incorrect in believing that Thompson’s opinion of who

should be placed on community supervision was admissible, his testimony

regarding the department’s limited resources was admissible. The admissible

evidence had an effect similar to that of the inadmissible evidence. Although it is

difficult to understand why trial counsel would elicit this testimony when the

object was to convince the jury to grant community supervision, counsel did

explain the strategy. It was an attempt to be open and honest with the jury and

to give the jury as much information about community supervision as possible.

We cannot hold that trial counsel provided ineffective assistance of counsel

because they followed a strategy that we would not have chosen or because the

strategy they chose backfired. The admissible facts of the case clearly angered

the jury. Given those facts, any trial strategy ran the risk of backfiring.

      Applying the appropriate standard of review, and considering the record as

a whole, we cannot say that Appellant sustained his burden of showing that he

received ineffective assistance of counsel under the first prong of the test.

Consequently, we overrule Appellant’s first point.


                                          15
III. Improper Jury Argument

      In his second point, Appellant argues that the trial court abused its

discretion by denying a mistrial after a prosecutor argued outside the record

during summation that the family of the deceased suspected they could not trust

the police investigation because Appellant was a Fort Worth police officer and

would “get a break.” Appellant timely objected to the improper argument. The

trial court sustained the objection and instructed the jury to disregard the

argument.

      When a trial court sustains an objection and instructs the jury to disregard

but denies a defendant’s motion for a mistrial, the issue is whether the trial court

abused its discretion by denying the mistrial.18 Only in extreme circumstances,

when the prejudice caused by the improper argument is incurable, that is, “so

prejudicial that expenditure of further time and expense would be wasteful and

futile,” will a mistrial be required.19 In determining whether a trial court abused its

discretion by denying a mistrial, we balance three factors: (1) the severity of the

misconduct; (2) curative measures; and (3) the certainty of the punishment

assessed absent the misconduct.20 We assume the jury followed the trial court’s


      18
        Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App. 2004).
      19
        Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.
2003), cert. denied, 542 U.S. 905 (2004).
      20
       Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).


                                          16
instruction and disregarded the argument.21     The prompt instruction of the

conscientious trial court cured any harm caused by the argument. 22 We overrule

Appellant’s second point.

IV. Conclusion

      Having overruled Appellant’s two points, we affirm the trial court’s

judgment.




                                                LEE ANN DAUPHINOT
                                                JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2012




      21
       See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998).
      22
       See Simpson, 119 S.W.3d at 274.


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