Affirmed and Memorandum Opinion filed July 17, 2014.




                                        In The

                       Fourteenth Court of Appeals

                                NO. 14-13-00171-CR

                     RODOLFO JESUS MORALES, Appellant
                                          V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 179th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1100375

                    MEMORANDUM                    OPINION


          A jury convicted appellant of murder and sentenced him to confinement for
80 years in the Institutional Division of the Texas Department of Criminal Justice.
Appellant raises two issues on appeal concerning the State’s closing argument. We
affirm.
                                   BACKGROUND

      In December 2006, appellant’s wife asked Juan Jose Salguero, the
complainant, to fix appellant’s car and gave him $100. On January 11, 2007,
appellant went to Salguero’s apartment looking for him. Salguero’s wife, Wendy,
told appellant that Salguero was not living with her. On January 14, Salguero was
at Wendy’s apartment when appellant came to the apartment. Salguero answered
the door and went out. Shortly thereafter, Wendy heard a gunshot and ran outside.
She discovered Salguero had been shot and saw appellant.          Appellant had a
revolver and continued shooting. Appellant then fled. Two bullets were recovered
from Salguero’s body.     Appellant was eventually apprehended, charged with
murder, and convicted by a jury.

                                    ANALYSIS

      On appeal, appellant claims reversible error arises from the State’s closing
argument. The record reflects the State made the following argument in its closing
of the guilt-innocence phase:

      There is nothing that the defense brought to you to question Wendy’s
      testimony. Wendy was under cross-examination and the defense, they
      couldn’t -- she didn’t change her testimony because I tell you, if her
      testimony was different than that statement she gave, he would have
      brought it out. So there is no reason for her to lie.
Defense counsel objected to “shifting the burden of proof.” That objection was
overruled. In his first issue, appellant claims the State impermissibly commented
on his failure to testify. As appellant recognizes in his second issue, counsel did
not object on that basis. Because the complaint raised in appellant’s brief does not
comport with the objection made to the trial court, nothing is preserved for our
review. See McLendon v. State, 167 S.W.3d 503, 510 (Tex. App.—Houston [14th



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Dist.] 2005, pet. ref’d) (citing Paster v. State, 701 S.W.2d 843, 849 (Tex. Crim.
App. 1985)). Appellant’s first issue is overruled.

      Appellant’s second issue claims defense counsel was ineffective for failing
to object to the State’s argument as an impermissible comment on appellant’s
failure to testify. To demonstrate ineffective assistance of counsel, a defendant
must first show that counsel’s performance was deficient, i.e., that his assistance
fell below an objective standard of reasonableness. Strickland v. Washington, 466
U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).           Any allegation of
ineffectiveness must be firmly founded in the record, and the record must
affirmatively demonstrate the alleged ineffectiveness. Id. at 813. Appellant bears
the burden of proving by a preponderance of the evidence that counsel was
ineffective. Id. Our review of defense counsel’s performance is highly deferential,
beginning with the strong presumption that the attorney’s actions were reasonably
professional and were motivated by sound trial strategy. Jackson v, State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994).

      An improper comment on an accused’s failure to testify violates his
constitutional, as well as statutory, privileges against self-incrimination. U.S.
Const. amend. V; Tex. Const. art. I, § 10; Tex. Crim. Proc. Code art. 38.08; Archie
v. State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011); Bustamante v. State, 48
S.W.3d 761, 764 (Tex. Crim. App. 2001). A violation occurs if the language used
was manifestly intended as a comment on the defendant’s failure to testify or is of
such a character that the jury would necessarily and naturally take it as such.
Bustamante, 48 S.W.3d at 765. An implication that the comment referred to the
defendant’s failure to testify must be clear, and we consider the offending language
from the jury’s perspective. Id. A comment is improper if it calls the jury’s
attention to the absence of evidence that only a defendant’s testimony can supply.

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See Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982). If the remark
can reasonably be construed to refer to the failure to provide evidence other than a
defendant’s own testimony, however, the comment is not improper. See Fuentes v.
State, 991 S.W.2d 267, 275 (Tex. Crim. App. 1999). Whether a comment is
improper is determined by the entirety of the prosecutor’s comments, taken in the
context in which the words were used and heard by the jury. Bustamante, 48
S.W.3d at 765.

      Appellant argues that the prosecutor’s argument necessarily refers to
testimony that only he could supply because he, Wendy, and Salguero were the
only ones present. Because Salguero was killed and Wendy testified, he claims the
prosecutor’s comments could only have referred to the lack of testimony from him.

      We disagree that the prosecutor called the jury’s attention to the absence of
evidence that only appellant’s testimony could supply.           The prosecutor was
pointing out the lack of evidence suggesting Wendy was anything but truthful.
Appellant would have been entitled to impeach Wendy with appropriate prior
felony convictions and other convictions for crimes of moral turpitude. See Tex.
R. Evid. 609(a) (permitting the admission of such evidence if the trial court finds
that its probative value outweighs its prejudicial effect). Appellant could have
called reputation and opinion witnesses to discuss Wendy’s truthfulness. See Tex.
R. Evid. 608(a) (permitting the admission of such evidence if and only if it refers
to a witness’ “character for truthfulness or untruthfulness”).     Such evidence did
not have to come from appellant. See Baines v. State, 401 S.W.3d 104, 108 (Tex.
App.—Houston [14th Dist.] 2011, no pet.) (“Reversal is not required where the
language can be reasonably construed as referring to a defendant’s failure to
produce testimony or evidence from sources other than himself.”)



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       When considered from the jury’s perspective, the prosecutor’s statement that
there was no evidence contradicting Wendy’s testimony was not necessarily a
reference to appellant’s failure to testify. See Kan v. State, 4 S.W.3d 38, 45 (Tex.
App.—San Antonio 1999, pet ref’d) (holding that rhetorical questions “What
contradicted that sexual conduct occurred? What did Defendant put on there to
show that sexual contact did not happen?” in trial for sexual assault of a child were
proper summary of evidence and did not call jury’s attention to lack of evidence
only defendant could provide). In this case the prosecutor provided an example of
evidence other than appellant’s own testimony that was not provided — any
differences between Wendy’s testimony and the statement she gave. Taken in
context, we hold the prosecutor’s comments were not of such a character that the
jury would necessarily and naturally take them as a comment on appellant’s failure
to testify. Bustamante, 48 S.W.3d at 765.

       For these reasons, appellant has not established that his counsel performed
deficiently by failing to object to the prosecutor’s argument as an improper
comment on appellant’s failure to testify. Because appellant has not satisfied the
first prong of Strickland, we overrule his second issue.

                                   CONCLUSION

       Having overruled both of appellant’s issues, we affirm the judgment of the
trial court.


                                       /s/       J. Brett Busby
                                                 Justice



Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).

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