Affirmed and Memorandum Opinion filed November 1, 2012.




                                         In The

                       Fourteenth Court of Appeals

                                  NO. 14-11-00820-CR

                     DERRICK DESHAWN BRYANT, Appellant

                                            V.

                           THE STATE OF TEXAS, Appellee


                        On Appeal from the 212th District Court
                               Galveston County, Texas
                           Trial Court Cause No. 10CR0762


                         MEMORANDUM OPINION

       Appellant Derrick Deshawn Bryant was convicted of aggravated robbery. In two
issues, he contends that the prosecutor engaged in improper argument, and that he was
denied the effective assistance of trial counsel. We overrule both issues and affirm the
judgment of the trial court.

                                    BACKGROUND

       In November 2009, the complainant, Kenneth Townsend, was attacked at an
empty car wash in La Marque, Texas, by two men demanding his wallet. Townsend, a
retired army pilot, attempted to fight off both of his attackers. The struggle lasted until
the shorter of the two robbers struck Townsend over the head with a handgun, knocking
him to his knees. Townsend was then forced to the pavement, where both attackers went
through his pockets, pulled out a billfold, and ran away. Townsend tried to pursue them
in his vehicle, but he lost sight of the men after they ran through a fence. Townsend
eventually abandoned the chase and dialed 911.

       When police arrived at the scene, Townsend described his attackers as young
African-American males. The shorter male was light-skinned, standing at five feet eight
inches tall, and weighing between 155 and 160 pounds. The taller male had a darker
complexion and traces of facial hair. Without specifying the attacker, Townsend also said
that one man had a shirt with horizontal red and orange stripes.

       Less than an hour after the robbery, Townsend’s stolen credit card was used at a
nearby convenience store. Authorities rushed to the store and obtained surveillance
footage of two African-American males using the card. Neither male matched the
descriptions provided by Townsend. When shown still photographs of the suspects,
Townsend said that he did not recognize them as his attackers.

       Two weeks after the robbery, while patrolling the area near the car wash, an
investigating detective spotted an individual who matched the description of the shorter
robber. The individual made eye contact with the detective and displayed obvious signs
of tension in his movements. The detective followed the man as he walked to a nearby
apartment complex, losing sight of him only after the man entered one of the buildings.
Authorities spoke with the manager of the apartment complex, who identified appellant
as a tenant of that particular building. The detective confirmed at trial that appellant was
the man he had been tracking into the complex.

       With appellant named as a possible suspect, the investigating detective used a
database containing appellant’s picture to compile two photo spreads, each depicting six
similarly featured males. Appellant’s picture appeared in only a single photo spread.
When both photo spreads were given to him, Townsend instantly identified appellant’s
picture as the shorter man who had robbed him.

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       The detective tried to question appellant after Townsend’s positive identification,
but all attempts to contact him proved unsuccessful. At one point, the detective received
an anonymous voice message naming another person, Terry McClain, as the shorter man
involved in the robbery. The anonymous informant also stated that McClain lived in the
same building as appellant, but in a different apartment. The detective investigated the
lead, but could not find any photo or information regarding McClain. Believing he had
already identified the more aggressive robber involved in the incident, the detective
decided to refer the case to the district attorney’s office and proceed with other
investigative priorities.

       At trial, appellant tried to direct responsibility for the robbery onto one of his
neighbors. Appellant called to the stand the property manager for his apartment complex,
who testified that a family of known troublemakers lived in the apartment next door to
him. The family’s rental application showed members of two households, the McClains
and the Campbells, but Terry McClain was not listed among them individually.

       Appellant’s private investigator also testified as a witness. Based on his
independent investigation, the investigator said that he could identify three males,
including Terry McClain, who may have had some connection to appellant or the
robbery. However, the investigator said that McClain could not be implicated in the
crime because he was incarcerated on the date of the robbery.

       Appellant also called Stephen Smith, an expert witness and psychology professor
specializing in the subject of memory and eyewitness identifications. Smith testified that
several factors may have compromised Townsend’s eyewitness identification of
appellant. Relying on past studies, Smith opined that Townsend may have mistakenly
identified appellant because the two men are of different races, and cross-racial
identifications tend to be less reliable. Smith also noted that the time delay may have
made Townsend’s identification less accurate; in this case, photo spreads were not
presented to Townsend until sixteen days after the robbery. Finally, Smith testified that
Townsend’s memory may have been compromised by his advanced age of seventy-one

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and by the level of anxiety he experienced during the attack. Despite all of these factors,
Smith agreed that the photo spreads compiled by police were not biased or tainted. If
anything, he said, the photo spreads suggested another individual whom Townsend did
not select.

       Appellant testified in his own defense, denying any sort of involvement in the
robbery. He also claimed that one person captured in the surveillance photos at the
convenience store resembled a separate neighbor in the next door apartment, a member of
the Campbell family. The jury rejected appellant’s testimony and sentenced him to fifteen
years’ imprisonment. Appellant did not file a motion for new trial. This appeal followed.

                                CLOSING ARGUMENT

       In his first issue, appellant contends that the prosecutor engaged in improper jury
argument. His complaint focuses on a passage from closing arguments in which the
prosecutor attempted to dissuade the jury from accepting the testimony of appellant’s
expert witness. The particular discussion focused on the subject of photo spreads. At trial,
appellant’s expert had testified that, according to some studies, in-person line ups could
be more suggestive, and therefore less reliable, than photo spreads presented on paper.
The expert was unconvinced that all studies supported this finding, and he testified that
guidelines had been prepared by the U.S. Department of Justice to minimize the
suggestiveness of the entire investigative process. In her closing argument, the prosecutor
recounted this testimony in a different way, stating that the Department of Justice had
recommended the use of photo spreads over in-person line ups. The prosecutor’s
argument, and the objection it triggered, proceeded as follows:

       STATE:        [The expert] testified about the photo line ups and even noted
                     that the Department of Justice prefers you doing photo line
                     ups instead of a live line up instead of bringing a person in
                     front of the -- the Department of Justice says --
       DEFENSE: Objection, Your Honor, there’s no evidence of that in the
                record. I object to the prosecutor arguing outside the record.



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       COURT:        All right. The lawyers are going to disagree about what you
                     saw and heard but you remember what you saw and heard, so
                     go by that.
The prosecutor’s argument continued with other aspects of the expert’s testimony, none
of which revisited the issue of preferences from the Department of Justice.

       Jury argument is permissible if it constitutes a summation of the evidence, a
reasonable deduction from the evidence, an answer to argument of opposing counsel, or a
plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).
Appellant contends that he was harmed because the prosecutor’s mischaracterization of
evidence falls into none of these categories.

       Appellant failed to preserve error. To complain of improper jury argument, a
defendant must generally object to the argument and pursue his objection to an adverse
ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Nadal v. State, 348
S.W.3d 304, 319 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). If the trial court
sustains the objection, the defendant must also request an instruction to disregard and
move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); Campos
v. State, 946 S.W.2d 414, 417 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Here,
appellant objected to the prosecutor’s argument, but the trial court did not make a ruling
on the objection, issuing a cautionary instruction instead. Cf. Washington v. State, 127
S.W.3d 111, 116 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that trial
court’s instruction to prosecutor to “stay within the record” following objection to
improper argument was not an adverse ruling). Because appellant did not pursue his
objection to an adverse ruling, his complaint is forfeited.

       Even if error had been preserved, we would still conclude that the error was not
reversible. When argument is improper, it will not result in reversal unless, in light of the
record as a whole, it is extreme or manifestly improper, violative of a mandatory statute,
or injects new facts harmful to the accused into the trial proceeding. Wesbrook v. State,
29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Todd v. State, 598 S.W.2d 286, 297 (Tex.
Crim. App. [Panel Op.] 1980).

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         Appellant does not contend that the prosecutor’s argument was extreme or in
violation of a statute, but he does argue that he was harmed by the injection of new facts.
For his harm analysis, appellant cites heavily to Denton v. State, 946 S.W.2d 607 (Tex.
App.—Fort Worth 1997, pet. ref’d), a case involving another instance of improper jury
argument. Denton is distinguishable though, because it relied on former Rule 81(b)(2),
which instructed that error should be reviewed under the same standard for constitutional
error, even though an error may not be constitutional in magnitude. See id. at 610; see
also VanNortrick v. State, 227 S.W.3d 706, 709–10 (Tex. Crim. App. 2007) (discussing
Rule 81(b)(2) before the adoption of Rule 44.2 of the Texas Rules of Appellate
Procedure). The Denton Court also conducted its harm analysis using factors that the
court of criminal appeals has recently disavowed. See Denton, 946 S.W.2d at 610–12
(applying factors announced in Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989),
overruled in part by Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011)). For
these reasons, we do not believe Denton is applicable here.

         Appellant also cites to Rule 44.2(a), the current standard for reviewing harm in
cases of constitutional error. But appellant does not explain what constitutional error, if
any, was committed when the trial court failed to sustain his objection. Under the facts of
this case, we perceive that any error would have been nonconstitutional in nature. Cf.
Brown, 270 S.W.3d at 572 (discerning nonconstitutional error where trial court overruled
objection to prosecutor arguing facts outside the record). Nonconstitutional error that
does not affect a defendant’s substantial rights must be disregarded. Tex. R. App. P.
44.2(b). To determine whether appellant’s substantial rights were affected, we balance
the severity of the misconduct, the measures adopted to cure the misconduct, and the
certainty of conviction absent the misconduct. Threadgill v. State, 146 S.W.3d 654, 666–
67 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.
1998); Watts v. State, 371 S.W.3d 448, 459 (Tex. App.—Houston [14th Dist.] 2012, no
pet.).




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       When considering the severity of the prosecutor’s misconduct, we examine the
prejudicial effect of her remarks, assessing whether there was a willful and calculated
effort to deprive appellant of a fair and impartial trial. Mosley, 983 S.W.2d at 259; Cantu
v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). Viewing the record as a whole,
we cannot ascertain any such prejudice. The prosecutor’s misstatement pertained to a
minor issue in the case. The contested fact at trial was the complainant’s eyewitness
identification, not the merits of using photo spreads over in-person line ups, and certainly
not the preferences of the Department of Justice as they relate to such identification
techniques. Moreover, the prosecutor’s misstatement was an isolated comment in her
closing argument, one that was never once revisited. We cannot say that the argument
was so prejudicial as to create an undue risk that the jury might have reached its verdict
on an improper basis.

       Under the next factor, we consider the efficacy of any cautionary instruction from
the trial judge. Mosley, 983 S.W.2d at 259. In this case, the trial judge stated that the
advocates had disagreed on the state of the evidence. In the face of this disagreement, the
judge advised the jury to base its decision on what was seen and heard at trial. Although
no instruction to disregard was given, the record does demonstrate that some measure
was adopted to cure any misconduct on the part of the prosecutor.

       Finally, under the third factor, we consider the strength of the evidence supporting
the conviction. Id. Appellant’s conviction depended largely on the reliability of
Townsend’s identification. Appellant’s expert witness doubted his identification for
several reasons. As mentioned above, the expert testified that cross-racial identifications
can be unreliable, there was a prolonged delay before Townsend was first shown the
photo spreads, and Townsend’s memory may have been compromised by his age and
anxiety.

       The State disputed each basis for the expert’s opinions. The evidence showed that
the robbery was committed on a bright and sunny day, when visibility was ideal. Officers
testified that Townsend was able to provide many details relating to the crime shortly

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after its occurrence. Based on those details, police were able to compile a photo spread
containing a picture of appellant, who fully matched the description provided for one of
the robbers. Townsend instantly identified appellant as his attacker when he was shown
the photo spreads. Townsend also testified that he was raised among racial minorities,
which might support the reliability of his cross-racial identification. Townsend also
testified that his military training sharpened his ability to notice details, which might
diminish any suggestion that his anxiety levels compromised his memory. All of this
testimony goes to the weight of the evidence, which we, as an appellate court, are ill-
equipped to review. We would note, however, that appellant’s own expert also added that
the photo spreads used in this case were not biased against appellant.

       After considering all three factors and the record as a whole, we conclude that any
error relating to the prosecutor’s improper argument was not so harmful as to affect
appellant’s substantial rights. Appellant’s first issue is overruled.

                              ASSISTANCE OF COUNSEL

       In his second issue, appellant argues that he was denied the effective assistance of
counsel because counsel made an untimely Batson challenge and because counsel elicited
damning testimony from one of his own witnesses. See Batson v. Kentucky, 476 U.S. 79
(1986) (holding that Equal Protection Clause forbids prosecutor from challenging
potential jurors solely on account of their race). We examine such claims under the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

       Under Strickland, appellant must prove that his trial counsel’s representation was
deficient, and that the deficient performance was so serious that it deprived him of a fair
trial. Id. at 687. Counsel’s representation is deficient if it falls below an objective
standard of reasonableness. Id. at 688. This deficiency will deprive appellant of a fair trial
only when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To
demonstrate prejudice, appellant must show a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
Id. at 694. Failure to make the required showing of either deficient performance or

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sufficient prejudice defeats the claim of ineffectiveness. Id. at 697. This test is applied to
claims arising under both the United States and Texas Constitutions. See Hernandez v.
State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

       As a reviewing court, we look to the totality of the representation and to the
circumstances of the case, not to isolated instances in the record reflecting errors of
omission or commission. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App.
2006). Moreover, we consider the adequacy of assistance as viewed at the time of trial,
rather than through hindsight. Id. at 482. 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). Accordingly, we do not speculate as to the
reasons supporting counsel’s behavior. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim.
App. 2002). Any allegation of ineffectiveness must be firmly founded in the record, and
the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State,
9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to trial counsel’s
strategy, we will not conclude that appellant received ineffective assistance unless the
challenged conduct was “so outrageous that no competent attorney would have engaged
in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

       A.     Batson Challenge

       Appellant argues that counsel’s performance was constitutionally deficient
because counsel failed to timely lodge his Batson challenge. For a Batson challenge to be
timely, it must be raised after the parties deliver their lists of strikes and before the court
impanels the jury. Tex. Code Crim. Proc. art. 35.261; Cooper v. State, 791 S.W.2d 80, 81
(Tex. Crim. App. 1990). A jury is considered impaneled when the members of the jury
have been both selected and sworn. Hill v. State, 827 S.W.2d 860, 864 (Tex. Crim. App.
1992). In this case, trial counsel first raised the notion of a Batson challenge after the jury
had been sworn. Assuming counsel’s belatedness amounts to constitutionally deficient
performance, appellant still must demonstrate by a preponderance of the evidence that a

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different result would have occurred but for his counsel’s ineffective assistance. This he
has not done.

       In his brief, appellant urges a position advanced in the dissenting opinion of
Batiste v. State, which argued that “prejudice is certain” with Batson violations. 888
S.W.2d 9, 20 (Tex. Crim. App. 1994) (Baird, J., dissenting). But in the majority opinion,
the court of criminal appeals determined that prejudice could not be presumed under a
Strickland analysis where a defendant has claimed that counsel was ineffective for
untimely making a Batson challenge. See id. at 17 (majority opinion) (concluding that
court of appeals did not err by subjecting appellant’s claim to second prong of
Strickland). Appellant has not provided any authority to suggest that Batiste is no longer
controlling. As an intermediate appellate court, we must adhere to it out of principles of
vertical stare decisis.

       Appellant has not met his burden under Batiste of showing how he was prejudiced
by counsel’s errors, if any. Appellant has not provided this Court with a record showing
the racial composition of the venire panel. Our record includes a strike list, but appellant
has not identified which venire members were improperly struck on the basis of race.
There is also no record as to whether the prosecutor lacked a reason other than race for
exercising her peremptory strikes. Finally, with a record so underdeveloped, there is no
indication that the trial court would have granted appellant’s Batson challenge, or that a
properly constructed jury would have reached a different result had the challenge been
timely. Cf. Williams v. State, 313 S.W.3d 393, 402 (Tex. App.—Houston [1st Dist.] 2009,
pet. ref’d) (concluding that appellant had not shown prejudice in case where counsel
failed to object to the inclusion on the jury of five venire members whom counsel had
peremptorily challenged).

       B.       Damning Testimony

       Appellant also argues that counsel was ineffective because he elicited damning
testimony from the property manager of appellant’s apartment complex. Counsel called
the property manager for her testimony that appellant’s neighbors may have been

                                            10
involved in the robbery. When she was on the stand, counsel also elicited testimony that
appellant was a troublemaker, that he used drugs, and that he slightly resembled one of
the figures in the convenience store pictures. Appellant contends that allowing this
witness to testify about such subjects was objectively unreasonable.

       Appellant has failed to rebut the presumption that counsel’s actions were the result
of sound trial strategy. Before being condemned as unprofessional or incompetent,
counsel is normally afforded an opportunity to explain his actions, such as with a hearing
on a motion for new trial or with the filing of an affidavit. See Bone, 77 S.W.3d at 836;
Huerta v. State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
But appellant did not file a motion for new trial, and the record is likewise devoid of any
explanation regarding counsel’s actions. The record does not affirmatively show that
counsel knew or should have known that the property manager would have testified about
appellant in such a negative light.

       Any allegation of ineffectiveness must be firmly founded in the record, and the
record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). Because the record here is underdeveloped, we
must presume that counsel’s choice of questions was motivated by sound trial strategy.
See Strickland, 466 U.S. at 689 (observing that a fair assessment of attorney performance
must be made without the distorting effects of hindsight).

       Even if we were to assume that counsel was ineffective because of the testimony
he elicited, appellant has not demonstrated by a preponderance of the evidence that he
was prejudiced by counsel’s actions. Appellant testified that he did not use drugs. The
prosecutor did not cross-examine the property manager, nor did she emphasize the
manager’s testimony in closing argument. Moreover, the prosecutor tended to suggest in
her closing argument that appellant was not one of the individuals captured in the store
surveillance camera.

       Appellant has not shown a reasonable probability that the outcome of trial would
have been different but for counsel’s errors, if any. His second issue is overruled.

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                                    CONCLUSION

      The judgment of the trial court is affirmed.




                                         /s/     Adele Hedges
                                                 Chief Justice



Panel consists of Chief Justice Hedges and Justices Brown and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).




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