                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


 GABRIEL EDWARD GOMEZ,                            §
                                                                  No. 08-10-00276-CR
                              Appellant,          §
                                                                     Appeal from the
 v.                                               §
                                                                   409th District Court
                                                  §
 THE STATE OF TEXAS,                                            of El Paso County, Texas
                                                  §
                              Appellee.                           (TC# 20050D02303)
                                                  §


                                           OPINION

       Gabriel Gomez appeals his conviction of two counts of aggravated assault with a deadly

weapon. Gomez argues that: (1) the trial court erred in sua sponte excusing a disqualified juror

and declaring a mistrial; (2) he was denied a fair trial as a result of improper and prejudicial

arguments made by the State of Texas during closing argument; and (3) his trial counsel rendered

ineffective assistance on ten separate occasions during the course of the trial. Finding no error,

we affirm.

                                          BACKGROUND

       On May 25, 2005, Appellant was charged by indictment with three counts of aggravated

assault with a deadly weapon. Count I alleged that Gomez assaulted Michael Carrasco with a

knife (Paragraph A) or a metal pole (Paragraph B). Count II alleged that Gomez assaulted Jorge

Martinez with a knife (Paragraph A) or a metal pole (Paragraph B). Finally, Count III alleged

that Gomez assaulted Julianna Marquez with a knife.

       The case was originally called for trial on May 7, 2010. After the twelve members of the
jury were sworn and seated, one of the jurors raised his hand and informed the trial court that he

had held back information during voir dire. The trial court commenced an inquiry and learned

that the juror had been the victim of an assault approximately fifteen years’ prior and that the

juror would not be fair to the defense. The trial court then informed the parties that it was

declaring a mistrial based on manifest necessity, and inquired of counsel as to whether they had

any objection. Defense counsel stated that he had no objections, and when asked whether he

joined “in this mistrial” stated “[a]bsolutely.” The prosecutor was asked if he joined in the

mistrial of the case, and he responded “Judge, so long as it doesn’t create a jeopardy situation, I

don’t have a problem.”

       Jury selection and trial were then re-set for August 27, 2010. At trial, Appellant’s

counsel waived his opening statement and Jorge Martinez, Julianna Marquez, and Michael

Carrasco each testified that they had been stabbed by Gabriel Gomez during the course of an

altercation between themselves and numerous other individuals. The fight occurred in the early

morning hours of February 13, 2005, at approximately 2:30 a.m. Janet Nunez testified that after

the altercation, Gomez admitted that he had stabbed somebody during the fight. Roxanne

Gomez (no relation to Appellant) testified that Appellant participated in the fight in which three

individuals were stabbed, but she did not specifically see the actual stabbings.

       One of Appellant’s relatives testified that Gomez was home that evening until about 9:15

p.m. at which time he left to go to a party. Appellant testified that he stayed at a party all night,

he did not participate in any fight, he did not stab anyone, he had never seen Michael Carrasco,

Jorge Martinez, or Julianna Marquez before they testified in court, and that Carrasco, Martinez,

Marquez, and the other witnesses “made everything up.”


                                                 -2-
       During the State’s closing argument, the prosecutor argued that Appellant’s testimony

was a lie and repeatedly referred to various Disney characters as he attempted to portray

Appellant’s testimony as a fantasy. Defense counsel’s closing argument encompasses

approximately two pages of the trial transcript.

       The trial court elected to submit only Paragraph A of Count I, Paragraph A of Count II,

and Count III to the jury. The court did not submit Paragraph B of either Count I or Count II to

the jury. The jury returned a verdict of guilty as to Counts I and II, and not guilty as to Count III

of the Indictment. Following a punishment hearing, the jury assessed punishment at

confinement in the Institutional Division of the Texas Department of Criminal Justice for a

period of twenty (20) years and a fine of $10,000 as to Count I and Count II. The trial court

imposed the sentence assessed by the jury and ordered that both counts run concurrent to one

another.

                                          DISCUSSION

       In his first issue, Appellant argues that the trial court erred when it sua sponte declared a

mistrial after learning that an impaneled juror would not be fair to the defense. Appellant asserts

that the trial court did not: (1) properly examine the juror to determine whether he should, in

fact, be disqualified; and (2) examine any less drastic alternatives to declaring a mistrial based on

manifest necessity. Finally, although it is not clear, it appears that Appellant also argues that

jeopardy had attached at the time the trial court declared a mistrial which barred further

prosecution.

       The Double Jeopardy Clause of the United States Constitution provides: “[N]or shall

any person be subject for the same offence to be twice put in jeopardy of life or limb. . . .” U.S.


                                                   -3-
CONST. AMEND. V. Article I, Section 14 of the Texas Constitution states: “No person, for

the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put

upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.”

TEX.CONST. art. I, § 14 n.1. Jeopardy attaches when a jury is impaneled and sworn. Ex parte

Brown v. State, 907 S.W.2d 835, 839 (Tex.Crim.App. 1995), citing Crist v. Bretz, 437 U.S. 28,

35, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978). Consequently, if, after jeopardy has attached,

the jury is discharged without reaching a verdict, double jeopardy will bar retrial. Brown, 907

S.W.2d at 839, citing Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 224, 2 L.Ed.2d

199 (1957).

       An exception to this rule exists if the defendant consents to a retrial, or if a retrial is

mandated by some form of manifest necessity. Arizona v. Washington, 434 U.S. 497, 505, 98

S.Ct. 824, 830, 54 L.Ed.2d 717 (1978); Brown, 907 S.W.2d at 839; Ex parte Little, 887 S.W.2d

62, 65 (Tex.Crim.App. 1994). This exception exists to prevent the defeat of the ends of public

justice, including the public’s interest in fair trials designed to end in just judgments. See

Harrison v. State, 788 S.W.2d 18, 21 (Tex.Crim.App. 1990). Thus, where manifest necessity

exists to declare a mistrial, the constitutional prohibition against double jeopardy is not

implicated and retrial is permitted. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083,

2087-88, 72 L.Ed.2d 416 (1982); Brown, 907 S.W.2d at 839. Neither the Supreme Court nor

the Court of Criminal Appeals has precisely defined the circumstances in which manifest

necessity exists, but a trial judge’s discretion to declare a mistrial based on manifest necessity is

limited to extraordinary and striking circumstances. See Brown, 907 S.W.2d at 839 (and cases

cited therein). As a general rule, however, manifest necessity exists where the circumstances


                                                  -4-
render it impossible to arrive at a fair verdict, where it is impossible to continue with trial, or

where the verdict would be automatically reversed on appeal because of trial error. Brown, 907

S.W.2d at 839. While the trial judge has discretion in declaring a mistrial based on manifest

necessity, the judge is required to consider and rule out “less drastic alternatives” before granting

a mistrial. See Brown, 907 S.W.2d at 839. In reviewing the trial court’s ruling, we apply an

abuse of discretion standard. See Brown, 907 S.W.2d at 839; Little, 887 S.W.2d at 66.

        Because of the fundamental nature of double jeopardy protections, a double jeopardy

claim may be raised for the first time on appeal, or even for the first time by collateral attack,

when the undisputed facts show the double jeopardy violation is clearly apparent on the face of

the record and when enforcement of usual rules of procedural default serves no legitimate state

interests. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex.Crim.App. 2000).

        At the conclusion of jury selection on May 7, 2010, the following exchange between the

trial court and defense counsel occurred:

        [The Court]: I am declaring a mistrial based on manifest necessity as of this
        point. Do you have any objections?
        [Defense counsel]: None, Your Honor.
        [The Court]: You join in this mistrial?
        [Defense counsel]: Absolutely.

        Appellant clearly and unequivocally joined in the mistrial and consented to a new trial.

See Arizona, 434 U.S. at 505. 09 S.Ct. at 830. We need not reach Appellant’s contention that

the trial court erred by sua sponte declaring a mistrial in light of the fact that Appellant willfully

joined in and consented to the mistrial. Nor need we examine the applicability of the manifest

necessity exception given Appellant’s consent to the mistrial. We find no abuse of discretion by

the trial court and Appellant’s first issue is overruled.


                                                  -5-
          In his second issue, Appellant asserts that he was denied a fair trial as a result of the State

of Texas’ improper and prejudicial closing argument which Appellant characterizes as

“completely inappropriate and childish” and “an embarrassment to the legal dignity of the

Court.”

          Specifically, Appellant complains of the following statements made by the prosecutor:

          Mr. Callan: Thank you, Your Honor. Ladies and gentlemen of the jury, I am
          going to propose to you something that may sound shocking. And in most other
          cases that I have tried it is completely out of place and that is this: You are not
          having to deal with one thing, you are having to deal with two things. You are
          having to decide whether or not he committed this crime. And you are having to
          deal with an affront to justice. And that affront to justice is his testimony. His
          testimony was a lie. That’s perjury. That’s another crime. That is how brazen
          he is.

                                    .                .                .

                   Walt Disney could have gotten up here and told a better story. He could
          have gotten up here and said, I was at my Aunt – oh, let’s pick a name – Annette
          Funicello’s house, who is really my cousin. And we were there – I was eating
          pizza there with Peter. And then we decided to go to a party and we were going
          to go with Mauro and so my aunt told me goodbye. Cross-examination, Well,
          how did she tell you goodbye? Well, she said, Now, it’s time to say goodbye to
          all our family. G-A-B-R-I-E-L G-O-M-E-Z. (Mr. Callan singing).

                   Goodbye, Gabrial Gomez. Don’t stay out too late. Come back early.
          So he takes off to his party with Peter. Well, Mr. Gomez, Who is Peter? Well,
          he is a leader. No. No. What is his last name? I think it’s Pan. Peter Pan.
          Well, what is he? He is a leader. Well, who is he the leader of? The Lost
          Boys. Are you a lost boy? No, I am the Lost Boy.

                                    .                .                .

                  Well, who was there? Well, there was a lot of guys there. Well, what
          kind of guys were there. Well, there was Bashful, Doc, Dopey, Grumpy, Happy,
          and there was Sleepy. Well, what are their last names? I don’t know. I don’t
          know.

                                    .                .                .


                                                    -6-
                Well, can you describe them? They are dwarfs. But you don’t know
       their last names and you don’t know where they live? No. Well, did they see
       you at the party? I don’t know. Well, what about Sleepy, did he see you? No,
       he was asleep. What about Sneezy? No, he is sick all the time. Well, why
       didn’t you call him to testify? Well, I couldn’t find him and he was probably sick
       anyways so he couldn’t come to court.

               Well, who else was there? Well, Dopey was there. What is Dopey’s last
       name? I don’t know. Well, did he see anything? I don’t think so. You know,
       Dopey, he dopes. He was probably sky high and can’t remember a thing. What
       about Bashful? Well, we didn’t call him because he is shy and he probably
       wouldn’t have been able to tell us anything because he is so shy. He would have
       stage fright.

                                 .              .               .

              Well, who else? Well, Doc was there. Well, could Doc tell you what
       happened? No, he was busy dispensing medication, prescription drugs out to all
       these guys. Well, what was he giving out? Rohypnol. Well, why did he do
       that? Because he wanted to make sure the guys had an edge. Well, what do you
       mean? Well, you know, Rohypnol, it’s the date rape drug. And there were all
       these good-looking women there. And they need an edge to get the advantage.

               Well, who were the good-looking women there? Well, there was Bianca
       Nieves. It was her quinceanera. It was Snow White’s quinceanera. Well, did
       she see anything? No, some old hag, some lady gave her apple [sic] and she fell
       asleep so but [sic] the time I got there, she was asleep. Well, what other young
       girls were there? Aurora. Well, did she see anything? No, she was asleep to
       [sic]. Well, what do you mean? Well, she is Sleeping Beauty. She sleeps all
       the time. Well, who else was there? Well, Ariel was there. Well, did she see
       anything? No, she was in the backyard in the pool. She likes water.

               That’s his story ladies and gentlemen of the jury. That’s his story.

       The prosecutor continued his closing argument by referring to a number of other fictional

characters including Woody, Jessie, and Buzz. At that point, defense counsel objected noting

that while the prosecutor’s argument was “all very entertaining,” he was “arguing outside the

record.” The trial court overruled the objection, and the prosecutor then referred to Space

Rangers, Emperor Zurg, Mr. and Mrs. Potato Head, and Long Tall Sally.


                                               -7-
       Appellant argues, inter alia, that the State used its closing argument to place matters

before the jury which were outside the record and “prejudicial to the accused” sufficient so as to

deny him a fair trial. The State counters that Appellant’s single objection to the prosecutor’s

comments was insufficient to preserve this issue for our review, that Appellant’s multiple

appellate complaints do not comport with the objection made at trial, and that the prosecutor did

not improperly argue facts outside the record.

       Generally, improper jury argument may be cured by an instruction to disregard, unless “in

light of the record as a whole it was extreme or manifestly improper, violative of a mandatory

statute, or injected new facts harmful to the accused.” Hawkins v. State, 135 S.W.3d 72, 75

(Tex.Crim.App. 2004), citing Cooks v. State, 844 S.W.2d 697, 727 (Tex.Crim.App. 1992), cert.

denied, 509 U.S. 927, 113 S.Ct. 3048, 125 L.Ed.2d 732 (1993).

       To preserve error regarding improper jury argument, a party is required to continue to

object each time improper jury argument is offered. Dickerson v. State, 866 S.W.2d 696, 699

(Tex.App.--Houston [1st Dist.] 1993, pet. ref’d). A defendant ordinarily should: (1)

contemporaneously object to the statement; (2) request an instruction that the jury disregard the

statement if the objection is sustained; and (3) move for a mistrial if the instruction is granted.

Cooks, 844 S.W.2d at 727-28. However, while this sequence is not essential to preserve

complaints for appellate review, the essential requirement is a timely, specific request that the

trial court refuses. Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App. 2004). “[A]n event that

could have been prevented by timely objection or cured by instruction to the jury will not lead an

appellate court to reverse a judgment on an appeal by the party who did not request these lesser

remedies in the trial court.” Young, 137 S.W.3d at 70. Moreover, the appellate complaint


                                                 -8-
challenging the motion for mistrial must comport with the motion made at trial. Broxton v.

State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). The mistrial motion must be timely, that is,

it must be made as soon as the grounds for the mistrial become apparent. Griggs v. State, 213

S.W.3d 923, 927 (Tex.Crim.App. 2007).

          In determining whether the State engaged in improper jury argument, we consider the

entire argument presented, not isolated sentences. Rodriguez v. State, 90 S.W.3d 340, 364

(Tex.App.--El Paso 2001, pet. ref’d). Generally, proper jury argument consists of: (1)

summation of the evidence; (2) reasonable deductions from the evidence; (3) answer to argument

of opposing counsel; and (4) a plea for law enforcement. Jackson v. State, 17 S.W.3d 664, 673

(Tex.Crim.App. 2000); Morales v. State, 11 S.W.3d 460, 463 (Tex.App.--El Paso 2000, pet.

ref’d).

          Here, counsel lodged a single objection to the complained of argument which was

overruled by the trial court. Appellant did not request a running objection to the arguments

made by the State. Further, counsel made no request for an instruction that the jury be ordered

to disregard the prosecutor’s statements, nor did he make a motion for mistrial. Under these

circumstances, we cannot say that Appellant preserved this complaint sufficient for our review.

          Had we determined that Appellant preserved this issue for review, we conclude, after

considering the entire argument presented, that the prosecutor, however inartfully, was

attempting to draw a comparison between the evidence offered by the State and the evidence

offered by Appellant, in order to convince the jury that Appellant’s version of the events was not

believable or credible. Such arguments are proper. Issue Two is overruled.

          In his final issue, Appellant claims that he was denied a fair trial because his counsel was


                                                   -9-
ineffective. Appellant makes ten specific complaints regarding his counsel’s conduct during the

trial. They are that: (1) the trial court permitted Janet Nunez’ identification testimony without

the proper predicate over counsel’s objection; (2) a metal pole was admitted into evidence

without a proper chain of custody; (3) photographs of Michael Carrasco’s vehicle were admitted

into evidence without the proper predicate and identification; (4) 48 additional photographs were

admitted into evidence without “proper review” or authentication; (5) 36 additional photographs

were admitted into evidence without the proper predicate; (6) defense counsel waived opening

statement at both the guilt/innocence and punishment phases of the trial; (7) defense counsel

made a “short jury argument” at the guilt/innocence stage of the trial; (8) defense counsel failed

to move for a directed verdict as to all counts in the indictment; (9) defense counsel failed to

request an alibi instruction; and (10) defense counsel failed to move for a mistrial when a witness

called by the State invoked her Fifth Amendment right not to testify during the course of her

testimony in the punishment stage of the trial.

       The standard for reviewing claims of ineffective assistance of counsel is the two-step

analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish ineffective assistance of counsel,

an appellant must prove that: (1) his counsel’s performance was deficient; and (2) he was

prejudiced by the deficiency. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. If an appellant

fails to satisfy his burden under the first Strickland prong, there is no need to address the second.

See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999).

       Under the first prong of the Strickland analysis, counsel’s performance is deficient when

it falls below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Appellate


                                                  -10-
review of trial counsel’s conduct is highly deferential and presumes that counsel’s actions fell

within the wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63

(Tex.Crim.App. 2001). The burden of overcoming this presumption falls on the appellant.

Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Any allegation of ineffectiveness must be firmly

rooted and affirmatively demonstrated in the record to overcome this strong presumption.

Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). In

the majority of instances, this task is extremely difficult because the record on direct appeal is

simply undeveloped and cannot adequately reflect the deficiencies of trial counsel’s performance.

Thompson, 9 S.W.3d at 813-14.

       As is the case in so many claims of ineffective assistance on direct appeal, we do not have

the benefit of a record containing trial counsel’s explanation for not pursuing the objections,

motions and other matters in the manner Appellant now argues. As a consequence, we must

presume that trial counsel had a reasonable professional basis for his decisions and actions, and

that he acted within the range of reasonable professional assistance. Thompson, 9 S.W.3d at

814. Absent a developed record, our inquiry on direct appeal is limited to whether the

challenged conduct was, “so outrageous that no competent attorney would have engaged in it.”

See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005).

       As noted above, Appellant contends that trial counsel’s representation was

constitutionally deficient in ten separate instances.

       Appellant first complains that the trial court allowed Janet Nunez’ to testify as to her

identification of Appellant without the proper predicate being laid and over counsel’s objection.

Because Appellant’s counsel did, in fact, object to the identification testimony at the time that it


                                                 -11-
was offered, his claim of ineffective assistance of counsel is not firmly found in the record. See

Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App. 2011). We cannot conclude that his

performance was deficient given that he made an objection to the proffered evidence and

received a ruling from the trial court. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

       Next, Appellant argues that a “metal pole, the alleged weapon used in this case, was

introduced by the State without any chain of custody.” Although the argument is not

particularly clear, given the objection lodged by trial counsel to this evidence, we presume that

Appellant is arguing that the fact that the trial court’s overruling of trial counsel’s objection to

the admission of the metal pole into evidence constituted ineffective assistance of counsel.

Again, trial counsel objected to this evidence when it was offered, and as a result, Appellant’s

claim of ineffective assistance of counsel is not firmly found in the record. See Lopez, 343

S.W.3d at 142. Again, we cannot conclude that counsel’s performance was deficient given that

he made an objection to the proffered evidence and received a ruling from the trial court. See

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

       Appellant’s next three complaints relate to the admission into evidence of six

photographs of Michael Carrasco’s vehicle, as well as eighty-four crime scene and other

photographs, without “proper” identification, review, authentication, and predicate and that their

admission somehow constitutes ineffective assistance of counsel. First, counsel objected to the

six photographs of Mr. Carrasco’s vehicle arguing that the proper predicate had not been laid.

The trial court overruled the objection. Accordingly, Appellant’s claim of ineffective assistance

of counsel is not firmly found in the record. See Lopez, 343 S.W.3d at 142. Further, we cannot

conclude that counsel’s performance was deficient given that he made an objection to the


                                                  -12-
proffered evidence and received a ruling from the trial court. See Strickland, 466 U.S. at 687,

104 S.Ct. at 2064. Appellant’s trial counsel did not object to the 84 crime scene and other

photographs, but it is well settled that defense counsel is not ineffective for failing to object to

admissible evidence. See, e.g. Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004). The

officers’ testimony as to all of the photographs, regardless of who may have actually taken them,

was sufficient to authenticate them and establish the predicate for their admission into evidence.

See. TEX.R.EVID. 901. With respect to all of the photographs, both officers testified that each

photograph accurately depicted that which it purported to show. A witness who authenticates a

photograph need not have been the actual photographer, nor even have been present when the

photograph was taken. See Hughes v. State, 878 S.W.2d 142, 155 (Tex.Crim.App. 1992)(op. on

reh’g), cert. denied, 511 U.S. 1152, 114 S.Ct. 2184, 128 L.Ed.2d 902 (1994). The record before

us does not indicate why counsel failed to object to the photographs, and we can certainly

envision many tactical reasons for his decision. Because we find that the photographs were

sufficiently authenticated and because Appellant has not established that they were otherwise

inadmissible, he is unable to show any deficient performance by his trial counsel. See

Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

       Next, Appellant complains that his trial counsel was ineffective because he waived

opening statements at the beginning of both the guilt/innocence and punishment stages of the

trial, and gave a short closing argument at the conclusion of the guilt/innocence stage. Again,

the record is silent as to the reasons why Appellant’s trial counsel elected to waive opening

statements and give a short closing argument. However, such decisions are inherently strategic

in nature, and there are many plausible reasons for waiving an opening statement or delivering a


                                                  -13-
brief closing argument. See Taylor v. State, 947 S.W.2d 698, 704 (Tex.App.--Fort Worth 1997,

pet. ref’d)(defendant failed to show ineffective assistance of counsel due to waiving opening

statement where record was silent on direct appeal as to counsel’s trial strategy). Because we

are unable to determine counsel’s strategy on the basis of the record before us, Appellant is

unable to show any deficient performance by his trial counsel as to these claims. See Strickland,

466 U.S. at 687, 104 S.Ct. at 2064.

         Appellant also argues that his counsel was ineffective for the reason that he failed to

move for a directed verdict as to all counts in the indictment. Once the State rested its

case-in-chief, defense counsel moved for a directed verdict as to Count I of the indictment. He

did not move for a directed verdict as to Counts II and III.1 Counsel is not deficient for failing to

move for a directed verdict if the State presents more than a scintilla of evidence to support a

guilty verdict. See Wooster v. State, 08-05-00177-CR, 2007 WL 2385925, at *6-7

(Tex.App.--El Paso Aug. 16, 2007, no pet.)(not designated for publication); Gill v. State, 111

S.W.3d 211, 217 (Tex.App.--Texarkana 2003, no pet.). Here, given the testimony of Jorge

Martinez himself, the State presented more than a scintilla of evidence to support a finding that

Appellant stabbed Jorge Martinez with a knife as alleged in Paragraph A of Count II of the

indictment. See Padilla v. State, 254 S.W.3d 585, 590 (Tex.App.--Eastland 2008, pet.

ref’d)(victim’s testimony alone, if believed, is sufficient to support a conviction for aggravated

assault with a deadly weapon). Obviously, in light of the verdict, the jury believed




1
  Notwithstanding trial counsel’s determination not to move for a directed verdict as to Counts II and III, the trial
court, by virtue of its Charge of the Court, apparently granted counsel’s motion for directed verdict as to Paragraph
B of Count I and Paragraph B of Count II in that neither of those Paragraphs were submitted to the jury.

                                                         -14-
Mr. Martinez’ testimony.2 As we have noted elsewhere in this opinion, because we are unable

to determine counsel’s strategy on the basis of the record before us, Appellant is unable to show

any deficient performance by his trial counsel as to this claim. See Strickland, 466 U.S. at 687,

104 S.Ct. at 2064.

         Next, Appellant asserts that his counsel was ineffective when he failed to request and

then failed to object to the absence of an instruction regarding Appellant’s alibi. The Court of

Criminal Appeals has addressed this issue, holding that a defendant is not entitled to an

instruction regarding an alibi as such an instruction would constitute an improper comment on

the weight of the evidence. See Giesberg v. State, 984 S.W.2d 245, 250 (Tex.Crim.App. 1998),

cert. denied, 525 U.S. 1147, 119 S.Ct. 1044, 143 L.Ed.2d 51 (1999). Because Gomez was not

entitled to an alibi instruction, he is unable to demonstrate any deficient performance by his

counsel in not requesting such an instruction and in then failing to object to the trial court’s not

including such an instruction in the court’s charge. Given the jury’s verdict, it is clear that they

chose not to believe the evidence of alibi offered by Gomez.

         Finally, Appellant argues that his counsel was ineffective when he failed to move for a

mistrial when Amanda Dias, while being examined by the State during the punishment phase of

the trial, invoked her Fifth Amendment right and elected not to answer any additional questions.

The State called Ms. Dias to testify to extraneous conduct evidence that she had been assaulted

by Gomez. Once on the witness stand, Ms. Dias stated that she did not remember the incident.

A 9-1-1 call made by Ms. Dias was played, but she was still unable to recall the incident. On

cross-examination, Ms. Dias told Appellant’s counsel she was unable to recall the incident. The


2
 Just as obviously, the jury apparently did not believe the testimony of Julianna Marquez given that a verdict of not
guilty was returned as to Count III. Any claim that counsel was ineffective because he did not move for a directed
                                                        -15-
State requested that the trial court declare Ms. Dias an adverse witness, and the court declined to

do so. The trial court then appointed counsel for Ms. Dias, at which time she invoked her Fifth

Amendment right and refused to answer any further questions. Appellant’s counsel then

objected to Ms. Dias’ testimony on the grounds that he would not be able to cross-examine her

on the issues raised in the 9-1-1 call, and moved to have the recording of the 9-1-1 call struck

from the record. Appellant’s counsel did not move for a mistrial or ask that Ms. Dias’ testimony

be stricken. As we have repeatedly noted herein, the record is silent as to why counsel did not

move for a mistrial or why he elected not to move to strike Ms. Dias’ testimony. There are any

number of conceivable reasons for such strategic decisions during trial, including that counsel

might have believed the testimony was not damaging because the witness was unable to recall

the incident. See Lopez, 343 S.W.3d at 143-44 (appellate court should assume that counsel had

a strategic reason for his actions if any reasonable strategic motivation can be imagined).

         Appellant has failed to demonstrate how his counsel’s actions fell outside the wide range

of reasonable professional assistance. Whether or not counsel’s decisions and actions were

optimal is not for this Court to determine. We must only ask whether the conduct was “so

outrageous that no competent attorney would have engaged in it” and in this case there is no

basis for such a conclusion. See Goodspeed, 187 S.W.3d at 392. Accordingly, Appellant has

failed to establish that counsel’s performance was deficient under the first prong of the Strickland

analysis, and it is unnecessary to address prejudice. See Thompson, 9 S.W.3d at 813-14. Issue

Three is overruled.

                                                   CONCLUSION



verdict as to Count III is moot in light of the verdict.
                                                           -16-
       Having overruled each of Appellant’s three issues, we affirm the trial court’s judgment.



February 8, 2012
                                             CHRISTOPHER ANTCLIFF, Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.

(Do Not Publish)




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