                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00089-CR


RICHARD MORENO GOMEZ A/K/A                                          APPELLANT
RICHARD GOMEZ

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR13456

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                        MEMORANDUM OPINION1

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      Appellant Richard Moreno Gomez, a/k/a Richard Gomez, appeals from his

conviction for felony driving while intoxicated and sentence of eighty-five years’

confinement. Gomez asserts that his counsel was constitutionally ineffective for

failing to object to the State’s closing jury argument. Because the undeveloped

record does not allow us to second-guess counsel’s strategic choices and

      1
       See Tex. R. App. P. 47.4.
because the challenged argument was a proper plea for law enforcement, we

cannot conclude that counsel’s performance was unconstitutionally deficient and,

therefore, affirm.

      On February 7, 2016, at “approximately 1:24 a.m.,” Granbury Police Officer

Dustin Causey stopped the car Gomez was driving and “smell[ed] the odor of an

alcoholic beverage emitting from his breath as he spoke to [Causey].” Gomez

admitted he had consumed “a 12-pack of beer prior to the stop,” which he had

finished less than thirty minutes before Causey stopped him. Gomez failed the

field-sobriety tests, and Causey arrested Gomez for driving while intoxicated. A

blood test revealed that Gomez’s blood-alcohol concentration was 0.19—over

twice the legal limit of 0.08. See Tex. Penal Code Ann. § 49.01(2)(B) (West

2011).

      A grand jury indicted Gomez for felony driving while intoxicated based on

his 1990 and 2006 convictions for driving while intoxicated. See id. § 49.09(b)(2)

(West Supp. 2017).      The indictment further included two habitual-offender

paragraphs, which as alleged rendered the charged felony offense punishable as

a first-degree felony: (1) Gomez had been finally convicted of felony assault

involving family violence in 2009 and (2) Gomez had been finally convicted of

aggravated assault with a deadly weapon in 1997. See id. § 12.42(d) (West

Supp. 2017).

      Gomez pleaded guilty to felony driving while intoxicated but pleaded not

true to the habitual-offender paragraphs. At his jury trial on punishment, Gomez


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testified and apologized to Causey and the community for driving while

intoxicated on February 7, 2016. He agreed that if Causey had not stopped him,

he was afraid of what could have happened. He thanked Causey for saving his

and others’ lives. Gomez recognized that driving while intoxicated is dangerous

and that he could have hurt or killed someone. But he testified that he did not

know “how to answer” whether his 1997 aggravated-assault conviction and 2009

assault conviction were true because he “was a kid [and] didn’t know the law

then.” The State introduced verified copies of the judgments of conviction in

those two cases.2

      During the State’s closing jury arguments, the prosecutors urged the jury,

without objection, to assess Gomez’s punishment at ninety-nine years’

confinement to prevent other drunk-driving victims:

      When the defendant spoke to Officer Causey, that . . . also really
      stuck with me, because that’s what I was really thinking during this
      whole trial, is thanking him for not only saving this defendant’s life
      but who knows how many countless other lives that night. In this
      job, I get to work with people who have been seriously injured by
      drunk drivers and families who have lost loved ones to drunk drivers,
      and those people, for the rest of their lives, think, “What - - if only
      that night could have just be [sic] a little different. . . .” And I just
      think about the night of this offense and how many of those prayers
      were answered that night, how many people were saved that night.

            ....


      2
       In the family-violence conviction, Gomez was sentenced to twenty years’
confinement. He was placed on community supervision for the 1997 aggravated
assault; however, the trial court subsequently revoked it and sentenced Gomez
to eight years’ confinement.


                                         3
             . . . [H]ow many times have [drunk-driving victims] not
      survived, and how many of those victims’ loved ones have prayed
      the heartbroken, agonizing prayer, “My God, my God, why did they
      not leave five minutes later? Why didn’t they hesitate a moment, an
      instant longer, until they rushed out the door that morning, or that
      afternoon, or that evening?”

             . . . I don’t know that there are answers for those kinds of
      prayers, at least not the kind that you or I can understand just yet,
      but what you’ve been given today on this jury is something special.
      You’ve been given the chance to take a habitual felon, a serial drunk
      driver off the road. What you’ve been given is so much more than
      that, because what you’ve really been given is the amazing
      opportunity to answer those heartbroken prayers yourself. Answer
      them before they’re even prayed, - -

            ....

            . . . to dispense mercy before it’s even needed, to heal the
      heart before it’s even hurt, and to sew up the souls of those loved
      ones before they’re even saddened. We ask that you sentence Mr.
      Gomez to 99 years, because now that you’ve been given this
      opportunity, now that you’ve been given this chance to answer those
      prayers, I ask you, “What will you do with it?”

      The jury found Gomez guilty of felony driving while intoxicated, found the

habitual-offender paragraphs true, and assessed his sentence at eighty-five

years’ confinement. See Tex. Penal Code Ann. § 12.32 (West 2011); Tex. Code

Crim. Proc. Ann. art. 26.14 (West 2009). The trial court sentenced Gomez in

accordance with the jury’s verdict. Gomez filed a motion for new trial, arguing

that the verdict was “contrary to the law and the evidence,” which was deemed

denied. See Tex. R. App. P. 21.3(h), 21.8(c). On appeal, Gomez argues that

counsel was constitutionally ineffective for failing to object to the State’s jury

argument because (1) “no evidence was presented during the trial about prayer,



                                        4
or people praying or accidents that were prevented” and (2) the comments “were

clearly intended to ‘inflame’ the [spiritual] passions of the jurors against the

Defendant.”3

      To establish ineffective assistance of counsel, Gomez 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

been different. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Bledsoe

v. State, 479 S.W.3d 491, 497 (Tex. App.—Fort Worth 2015, pet. ref’d). A claim

of ineffective assistance must be “firmly founded in the record,” and counsel

“should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

      Here, there is no record evidence to explain counsel’s inaction during the

State’s jury argument, which could have been grounded in legitimate trial

strategy; thus, we defer to counsel’s decisions. See Garza v. State, 213 S.W.3d

338, 348 (Tex. Crim. App. 2007). Additionally, the State’s jury argument clearly


      3
        Evidence is, by necessity, prejudicial; the admissibility rules merely
proscribe unfair prejudice. See Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim.
App. 1993) (“‘Unfair prejudice’ does not, of course, mean that the evidence
injures the opponent’s case—the central point of offering evidence.”). Similarly,
effective closing jury argument necessarily will be somewhat inflammatory. But it
may not be so inflammatory that it deprives the defendant of a fair trial. See,
e.g., Boyde v. State, 513 S.W.2d 588, 590–93 (Tex. Crim. App. 1974).


                                        5
was an appropriate plea for law enforcement and a reasonable deduction from

Gomez’s testimony. See, e.g., Strahan v. State, 358 S.W.2d 626, 627 (Tex.

Crim. App. 1962); Waters v. State, 330 S.W.3d 368, 375–77 (Tex. App.—Fort

Worth 2010, pet. ref’d). We cannot conclude that counsel’s failure to object to

permissible jury argument was constitutionally deficient performance.        See

Goodspeed v. State, 167 S.W.3d 899, 904 (Tex. App.—Texarkana 2005, no

pet.).

         Because the record is undeveloped regarding counsel’s strategic choices

and because counsel’s performance cannot be deficient for failing to object to

permissible jury argument, we overrule Gomez’s points and affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).


                                                  /s/ Lee Gabriel

                                                  LEE GABRIEL
                                                  JUSTICE

PANEL: WALKER, GABRIEL, and BIRDWELL, JJ.

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

DELIVERED: January 25, 2018




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