                                          In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-12-00178-CR
                              _________________

                 EX PARTE PAUL ROBERT WASSERLOOS
________________________________________________________________________
                     On Appeal from the 221st District Court
                          Montgomery County, Texas
                        Trial Cause No. 07-10-10091-CR
________________________________________________________________________

                           MEMORANDUM OPINION

      Paul Robert Wasserloos appeals the trial court‟s order denying his

application for writ of habeas corpus. Appellant argues that the trial court erred in

denying relief because he was denied the effective assistance of counsel at trial.

We affirm the order of the trial court.

                                I. BACKGROUND

      In August 2007, Wasserloos, a certified public accountant, spent the day out

of the office, meeting with different clients. After his last meet ended around 6:30

p.m., Wasserloos drove to an adult entertainment club in Houston. Wasserloos

told the jury he was at the club from around 7:00 p.m. until 11:00 p.m., during
                                            1
which time he consumed three scotch and water beverages, along with food.

Wasserloos left the club with one of the female employees, to whom he offered a

ride home. Wasserloos stated he drove about an hour to The Woodlands area, but

because his companion was intoxicated, she was unable to give him proper

directions to her intended destination. Wasserloos spent another hour driving up

and down the freeway trying to find the correct exit.

      Shortly after 1:00 a.m., Cody Cullar, a trooper with the Texas Department of

Public Safety, stopped Wasserloos for driving 78 miles per hour in a 65 mile per

hour speed zone. Cullar smelled the odor of alcohol on Wasserloos‟s breath and

Wasserloos admitted that he had consumed alcohol. Cullar also observed that

Wasserloos‟s speech was slurred and Cullar had a difficult time understanding

what Wasserloos was saying. Cullar administered standard field sobriety tests and

observed clues on each test that indicated Wasserloos was intoxicated. Cullar

observed Wasserloos continually opening his mouth and licking his lips, which

Cullar attributed to “dry mouth;” a common side-effect of intoxication. Cullar

arrested Wasserloos for driving while intoxicated. Wasserloos declined to provide

a breath sample.




                                         2
      At trial, Wasserloos attributed his slurred speech and poor performance on

the field sobriety tests to several claimed disabilities.1     Wasserloos presented

evidence that his slurred speech was the result of auditory dyslexia, and his poor

performance on the field sobriety tests was caused by a variety of physical

problems, including a left knee replacement, a right arthritic knee, bunions, and

hammertoes. He also presented evidence that he was roughly 50 pounds

overweight. During trial, defense counsel attempted to introduce business records

affidavits, a report from a speech therapist, and medical records from an orthopedic

doctor, to corroborate witness testimony regarding Wasserloos‟s claimed

disabilities. However, the trial court sustained the State‟s objection to the

admissibility of this evidence on the basis that defense counsel failed to provide the

State with proper notice.

      In his direct appeal, Wasserloos argued, in part, that defense counsel was

ineffective for failing to give the State proper notice of the filing of the business

records and the affidavits of his medical experts. Wasserloos v. State, No. 09-09-
      1
        The trial record does not appear as an exhibit to the application for habeas
corpus, and it is unclear from the record whether it was properly before the trial
court at the hearing. However, both parties appear to concede that the trial record
was relied on by the trial court in denying the application for habeas relief. Both
parties cited and relied upon the trial record in presenting their arguments on
appeal, and the trial record was designated by appellant to be part of the appellate
record before us. Therefore, we rely upon the trial record in order to address the
merits of the issues presented on appeal.
                                          3
00225-CR, 2010 WL 1711753, at *2-3 (Tex. App.—Beaumont Apr. 28, 2010, pet.

ref‟d). We held that even if defense counsel‟s failure to properly notify the State

resulted in the inadmissibility of the documents, Wasserloos failed to show a

reasonable probability that but for defense counsel‟s alleged ineffectiveness, the

result of the proceeding would have been different. Id. at *2 (citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). We

affirmed the judgment of conviction. Id. at *7.

      Subsequent to our decision in his direct appeal, Wasserloos filed a post-

conviction writ of habeas corpus alleging that he was denied effective assistance of

counsel at trial because defense counsel failed to present expert medical testimony

to corroborate the existence of Wasserloos‟s claimed disabilities. Specifically,

Wasserloos argued that after the trial court excluded the medical records, defense

counsel failed to call the doctor and speech therapist to provide live testimony as to

the contents of those records and failed to request a continuance to obtain their live

testimony. In addition, Wasserloos alleged that defense counsel was deficient in

failing to object to a comment by the prosecutor during his cross-examination of

the defense expert witness. Wasserloos asserted that but for counsel‟s deficient

performance, there was a reasonable probability that the jury would have acquitted



                                          4
Wasserloos or deadlocked.2 After reviewing the pleadings and hearing argument

from the parties, the trial court denied Wasserloos‟s application for habeas corpus.

The trial court entered findings of fact and conclusions of law. This appeal

followed.

                          II. STANDARD OF REVIEW

      An applicant must prove his claim for habeas corpus relief by a

preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim.

App. 2006); Ex parte Scott, 190 S.W.3d 672, 673 (Tex. Crim. App. 2006) (per

curiam order). We review a trial court‟s order denying habeas corpus relief for an

abuse of discretion. See Kniatt, 206 S.W.3d at 664. We view the facts in the light

most favorable to the trial court‟s ruling and afford almost total deference to the

trial court‟s fact findings, particularly when those fact findings are based upon an

evaluation of credibility and demeanor. Ex parte Peterson, 117 S.W.3d 804, 819

(Tex. Crim. App. 2003) (per curiam), overruled on other grounds by Ex parte


      2
         Wasserloos relies on the fact that the jury sent out a note during
deliberations indicating it was deadlocked 9-3. Over the State‟s objection, the trial
court gave the jury an “Allen” charge, after which they convicted Wasserloos.
Wasserloos, 2010 WL 1711753, at *4; see Barnett v. State, 189 S.W.3d 272, 277
n.13 (Tex. Crim. App. 2006) (citing Allen v. United States, 164 U.S. 492, 501, 17
S. Ct. 154, 41 L. Ed. 528 (1896) (explaining that an Allen charge is a supplemental
charge sometimes given to a jury to remind the jury that if it is unable to reach a
verdict, “a mistrial will result, the case will still be pending, and there is no
guarantee that a second jury would find the issue any easier to resolve.”)).
                                         5
Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007); see also Ex parte Amezquita, 223

S.W.3d 363, 367 (Tex. Crim. App. 2006). We apply the same deference to the trial

court‟s application of the law to the facts, if the resolution of the ultimate question

turns on an evaluation of credibility and demeanor. Ex parte Legrand, 291 S.W.3d

31, 36 (Tex. App.—Houston [14th Dist.] 2009, pet. ref‟d). If the resolution of the

ultimate question turns solely on question of law, we review the determination de

novo. Id.

      In order to establish a right to habeas corpus relief on the ground of

ineffective assistance of counsel, appellant must show (1) counsel‟s performance

fell below an objective standard of reasonableness; and (2) a reasonable probability

exists that, but for counsel‟s errors, the result of the proceeding would have been

different. Strickland, 466 U.S. at 687-88, 694. A reasonable probability is one

sufficient to undermine confidence in the outcome. Id. at 694. The benchmark of

a claim for ineffective assistance of counsel “must be whether counsel‟s conduct so

undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result.” Id. at 686. Our review of counsel‟s

performance is “highly deferential.” Id. at 689. We must make every effort to

“eliminate the distorting effects of hindsight” and evaluate counsel‟s conduct from

the perspective at the time. Id.

                                          6
      The United States Supreme Court elaborated on Strickland’s prejudice

standard:

            In assessing prejudice under Strickland, the question is not
      whether a court can be certain counsel‟s performance had no effect on
      the outcome or whether it is possible a reasonable doubt might have
      been established if counsel acted differently. Instead, Strickland asks
      whether it is reasonably likely the result would have been different.
      This does not require a showing that counsel‟s actions more likely
      than not altered the outcome, but the difference between Strickland’s
      prejudice standard and a more-probable-than-not standard is slight and
      matters only in the rarest case. The likelihood of a different result
      must be substantial, not just conceivable.

Harrington v. Richter, 131 S. Ct. 770, 791-92, 178 L. Ed. 2d 624 (2011) (internal

citations and quotations omitted).

              III. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Failure to Call Medical Experts to Testify at Trial

      Defense counsel presented testimony from three long-time friends of

Wasserloos regarding Wasserloos‟s disabilities.          All three witnesses testified

regarding Wasserloos‟s physical condition, as well as their knowledge of his

auditory dyslexia and its affect on his speech. In summary, the witnesses testified

that when Wasserloos gets excited or nervous he tends to talk too fast or slur his

words. They also explained that he has problems with his knees and feet, he is not

able to walk straight, and he cannot stand for very long. In addition, each of the

three witnesses testified that they had viewed the traffic-stop video and that
                                       7
Wasserloos appeared the same on the video as he normally appears. Wasserloos

also testified regarding his physical condition and auditory dyslexia.

       Wasserloos argues that the testimony of medical experts with no personal

interest in the outcome of the trial would have been significantly more persuasive

to the jury than the lay testimony of Wasserloos and his friends. However, the

defensive theory was not based solely on the testimony of Wasserloos and his

friends. Defense counsel also presented testimony from a field sobriety expert,

Lance Platt. Platt testified that he served as a police officer for nine years before

he went to work for Texas Engineering Extension Services, a branch of the Texas

A&M University system, where he helped train police officers throughout the State

of Texas in the administration of standard field sobriety tests.3 Platt testified that

he considers himself an expert in DWI detection and standardized field sobriety

testing.

       Platt told the jury he administered the standard field sobriety tests on

Wasserloos in his office in November 2008 while Wasserloos was not under the

influence of any intoxicants.4 Platt testified that he observed four out of six clues

       3
       Platt worked in that capacity from 1999 until 2002, when he started his
own business.
       4
       Prior to performing the field sobriety tests, Wasserloos blew into a portable
breath test that was negative for the presence of alcohol. Wasserloos also stated
                                         8
of intoxication during the horizontal gaze nystagmus test (“HGN”), three clues on

the walk-and-turn test, and three clues on the one-leg stand test. Platt stated that

Wasserloos told him he had been diagnosed with dyslexia “which [Platt testified]

is a neurological disorder which just so happens to be the same [neurological]

system” that the HGN test evaluates.5 Platt told the jury he believes Wasserloos

has nystagmus, or involuntary eye movement, all the time, regardless of whether

he is intoxicated. Platt opined that Wasserloos did poorly on the walk-and-turn and

one-leg stand tests on the night of his arrest because he is overweight, has knee

problems, has bunions on his feet, and has problems with his legs. Platt explained

that Wasserloos‟s physical problems “could cause him to exhibit a false positive”

on the field sobriety tests. Platt stated that Wasserloos was not “a good candidate”

for the walk-and-turn and one-leg stand test because of his “obvious physical

impairment” prior to the introduction of alcohol into his system. Platt discussed

other alternative divided attention tests that could have been administered. Platt

testified that Wasserloos appeared to mentally comprehend everything he was

that he had not taken any central nervous system depressants, such as drugs,
inhalants, or PCP.
      5
        The State objected to this testimony on the basis that it was outside Platt‟s
area of expertise. The trial court sustained the objection, however, the State failed
to secure an instruction to the jury to disregard the testimony. Therefore, this
evidence was before the jury and they were free to consider it. See Estrada v. State,
313 S.W.3d 274, 313 (Tex. Crim. App. 2010).
                                          9
asked to do during the field sobriety tests, but he was physically unable to perform

the tests satisfactorily. Platt told the jury that Wasserloos appeared the same in his

office as he did on the video of the traffic stop, and opined that Wasserloos was not

intoxicated at the time of his arrest.

1. Failure to Call Medical Experts to Testify Regarding the Contents of the
   Excluded Medical Records

      As evidence in support of his application for writ of habeas corpus,

Wasserloos attached affidavits from Sheryl Morales and William Granberry, the

speech therapist and orthopedic specialist whose records were excluded at trial. In

her affidavit, Morales detailed her evaluation of Wasserloos, explained that he

exhibits   characteristics   of   dyslexia   and   “speech/language/communication

problems.” Morales stated that Wasserloos appears to be “„cluttering,‟” which she

distinguished from “stuttering.” She also noted that cluttering could be

characteristic of slurred speech. Morales recommended that Wasserloos be referred

to a learning disabilities specialist, a speech-language pathologist, and an

audiologist for further evaluation. In his affidavit, Granberry detailed Wasserloos‟s

physical condition based on his orthopedic evaluation of Wasserloos. Granberry

stated that Wasserloos “suffers from severe bunions, flat feet, collapsed arches, and

hammertoe deformities on both feet.” Granberry concluded that Wasserloos was a

candidate for reconstructive surgical correction of both feet and noted that his left
                                         10
knee had been replaced and he was suffering from “mild degenerative arthritis” in

the right knee. Neither Morales nor Granberry offered an opinion regarding how

Wasserloos‟s physical condition may have affected his performance on the field

sobriety tests.

       In his application for writ of habeas corpus, Wasserloos argued that defense

counsel was deficient in failing to call Morales and Granberry to testify regarding

the contents of their excluded medical records. The State concedes that the defense

counsel‟s failure to call medical experts to ensure the admission of the excluded

medical records was likely deficient. On direct appeal, considering the vast amount

of evidence presented to the jury regarding Wasserloos‟s physical condition, we

concluded that even if counsel‟s lack of proper notice to the State resulted in the

inadmissibility of the medical records, Wasserloos failed to show a reasonable

probability that but for counsel‟s error the result of the proceeding would have

been different. See Wasserloos, 2010 WL 1711753, at *3. We concluded that

although the jury did not have the excluded documents, the record was replete with

evidence of Wasserloos‟s physical problems, as well as evidence from three long-

time friends that he suffers from auditory dyslexia, which causes him to slur his

words. Id. We also found significant that the jury saw appellant perform the field



                                        11
sobriety tests and heard him speak on the traffic-stop video, and observed him

testify at trial. Id.

       In the habeas hearing, defense counsel argued that the testimony of

Wasserloos and his friends, regarding Wasserloos‟s condition, was uncorroborated.

Wasserloos cites Miller v. Dretke, 420 F.3d 356 (5th Cir. 2005) for his contention

that such omission rendered counsel‟s assistance ineffective. However, unlike in

Miller, where defense counsel relied solely on the testimony of the defendant and

her ex-husband to establish Miller‟s claim that at the time of the commission of the

crime she was suffering from mental and emotional injuries, Platt provided expert

testimony that corroborated Wasserloos‟s claim that his ability to perform the field

sobriety tests was hindered by his disabilities. Compare Miller, 420 F.3d at 364-

66.

       The affidavits of Morales and Granberry provide no further information than

what is set forth in the excluded medical records. Counsel is not required to

prepare for every potential contingency. Harrington, 131 S. Ct. at 791. “Strickland

does not guarantee perfect representation, only a „reasonably competent attorney.‟”

Id. (quoting Strickland, 466 U.S. at 687); see also Bridge v. State, 726 S.W.2d 558,

571 (Tex. Crim. App. 1986). The constitutional right to effective assistance of

counsel does not require counsel to be a “flawless strategist or tactician[.]”

                                        12
Harrington, 131 S. Ct. at 791. Nevertheless, even assuming that counsel‟s failure

to call the medical experts to testify to the contents of the excluded records was

deficient, we conclude that Wasserloos has failed to show a reasonable probability

that but for the alleged error, the result of the proceeding would have been

different. See Wasserloos, 2010 WL 1711753, at *3.

2. Failure to Conduct a Reasonable Investigation

         Wasserloos appears to argue on appeal from the habeas corpus that defense

counsel was deficient for failing to conduct a reasonable investigation and present

other readily available evidence through expert testimony that would have raised a

reasonable doubt.6 In support of this claim, Wasserloos attached to his application

for habeas corpus, the affidavits of Timothy Sitter, another orthopedic specialist,

and Ray Battin, a licensed psychologist. Sitter‟s affidavit indicates that he did not

evaluate Wasserloos until August 2011. Battin‟s affidavit indicates that he

evaluated Wasserloos in December 2011. There is nothing in the record to indicate

that defense counsel contacted or consulted with either Sitter or Battin prior to

trial.



         6
        While Wasserloos did not make this argument in his written application for
habeas corpus, he did make this argument to the trial court during the hearing on
the application. Therefore, Wasserloos preserved this issue for review. See Tex.
R. App. P. 33.1.
                                      13
      Like Granberry‟s affidavit, Sitter‟s affidavit detailed Wasserloos‟s physical

condition, including his obesity, unstable knees, bunions, and the observation that

he demonstrates poor balance when he stands on one leg, and he walks with a limp.

Sitter further stated that in his opinion Wasserloos‟s “orthopedic maladies impaired

his ability to perform satisfactorily the standardized field sobriety tests when he

was arrested in 2007[,]” as well as during Sitter‟s evaluation of Wasserloos in

2011. Sitter also stated that in his opinion Wasserloos would not be able to perform

the standardized field sobriety tests satisfactorily “under any conditions, even if he

is not intoxicated.” Sitter opined that Wasserloos‟s performance on the

standardized field sobriety tests “was the result of his orthopedic maladies and

obesity, not the result of intoxication.”

      In his affidavit, Battin stated that Wasserloos‟s gross coordination was

impaired as a result of his knee problems, and Wasserloos appeared to have mild to

moderate hearing loss. Battin diagnosed Wasserloos with “dysarthric speech

pattern,” which he stated could cause Wasserloos to exhibit slurred speech. Battin

concluded that Wasserloos met the criteria for a “Specific Learning Disability in

basic reading skills; Auditory Processing Disorder; and a Dysarthria Disorder,” and

also stated that he would expect these disabilities to have caused Wasserloos

difficulty when he attempted to perform the divided-attention standardized field

                                            14
sobriety tests in 2007. Battin further stated that Wasserloos appeared the same

during his evaluation as he did on the video of the traffic stop. Both experts stated

in their affidavits that they would have testified to these conclusions if they had

been called to testify at trial.7

       A criminal defense attorney has a duty to make an independent investigation

of the facts of a case. Ex parte Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App.

1990).     A breach of this duty may result in a finding that counsel rendered

ineffective assistance when “the result is that any viable defense available to the

accused is not advanced.” Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim.

App. 1982). In explaining the duty to investigate, the United States Supreme Court

has stated that “counsel has a duty to make reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.        In any

ineffectiveness case, a particular decision not to investigate must be directly

assessed for reasonableness in all the circumstances, applying a heavy measure of

deference to counsel‟s judgments.” Strickland, 466 U.S. at 691.

       “[I]t is difficult to establish ineffective assistance when counsel‟s overall

performance indicates active and capable advocacy.” Harrington, 131 S. Ct. at

791. It is apparent from the record that defense counsel was well versed in the
       7
         Battin further stated in his affidavit that he would have been available to
testify at Wasserloos‟s trial.
                                           15
facts of the case, conducted an investigation, and prepared a defense prior to trial.

Because there was no breath test or blood sample from Wasserloos, the State‟s

case hinged on the testimony of the arresting officer, the field sobriety tests, and

the video tape of the traffic stop. The defensive theory presented at trial was that

Wasserloos‟s poor performance on the standardized field sobriety tests was a result

of physical problems with his knees, legs, and feet. Wasserloos also attributed his

slurred speech to auditory dyslexia. In addition to the testimony of Wasserloos and

three lay witnesses, expert testimony was presented to the jury in support of this

defensive theory. Not only did Platt testify that Wasserloos‟s performance on the

walk-and-turn and one-leg stand test were a result of his physical disabilities, but

he also presented testimony that sought to explain the arresting officer‟s

observation of clues of intoxication on the HGN test, arguably the State‟s strongest

evidence.8 Wasserloos has not shown that he was prevented from presenting a

viable defense to the jury.

      Nor has Wasserloos otherwise established that defense counsel failed to

adequately investigate Wasserloos‟s claimed disabilities. Significantly, defense

counsel‟s affidavits, attached to Wasserloos‟s application for habeas relief, do not

detail defense counsel‟s investigation of the case. In discussing his trial strategy,
      8
       Notably, none of the expert affidavits presented as evidence in the habeas
proceeding specifically addressed Wasserloos‟s performance on the HGN test.
                                       16
defense counsel stated in his supplemental affidavit that prior to trial he discussed

with Wasserloos “the possibility of calling the doctor and speech therapist” who

evaluated Wasserloos, and “the decision was made not to call them.” Defense

counsel further stated that he could not recall whether he re-evaluated this decision

with his client after the trial court excluded the related medical records. However,

defense counsel‟s affidavits do not speak to his conduct or decisions with regard to

his investigation or his failure to seek additional expert medical evaluations or

opinions. Compare Miller, 420 F.3d at 359 (Defense counsel admitted in his

affidavit, attached as evidence to defendant‟s habeas application, that he did not

prepare much for the punishment phase because he thought the defendant would

accept the plea bargain offer, and defense counsel conceded he could have

obtained information from her doctors and called them to testify); Compare Ex

parte Briggs, 187 S.W.3d 458, 466-67 (Tex. Crim. App. 2005) (Defense counsel

conceded that he did not consult with medical experts before advising defendant to

plead guilty because defendant could not pay for medical experts). On this record,

Wasserloos has not established that defense counsel‟s investigation fell below an

objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 691.




                                         17
3. Failure to Object to Prosecutor‟s Comment

      Wasserloos argues additionally that defense counsel was ineffective for

failing to object to a comment made by the prosecutor during his cross-

examination of Platt. During the State‟s cross-examination of Platt the following

exchange took place:

      [State:]      You started out as a police officer; is that correct?

      [Platt:]      I‟m still a certified peace officer.

      [State:]    You actually worked and made arrests. What agency did
      you work for?

      [Platt:]      College Station.

      [State:]      Okay. And what years did you do that?

      [Platt:]      ‟90 to ‟99.

      [State:]      So, for nine years out of your life you spent your time
      trying to put people away for DWI; is that correct?

      [Platt:]   I spent my time enforcing the law. I never tried to put
      anybody away.

      [State:]      You spent your time making arrests for DWI; is that
      correct?

      [Platt:]      Amongst other things, yes.

             ....

      [State:]     Then something happened and you left and you went to
      the dark side, as it is; is that correct?
                                             18
      [Platt:]    You know, I‟ve always looked at justice as being blind,
      and I take offense to you saying that I‟m on the dark side because
      there‟s --

      [State:]      Okay.

      [Platt:]     There‟s not a dark side to justice. Justice is blind. The
      chips fall where they may.

      [State:]      You work primarily for defense attorneys; is that correct?

      [Platt:]      Yes.

      Wasserloos argued in his habeas application that counsel was ineffective for

failing to object to the prosecutor‟s comment that Platt had gone from being

employed by the police department to “the dark side.” Wasserloos contends that it

is improper for the prosecutor to compare the character of prosecution witnesses,

such as police officers, to the character of an expert retained for the defense, in the

absence of a factual basis to do so.

      Courts have found it is improper for a prosecutor to contrast the ethical

obligations of the State with those of criminal defense attorneys by arguing that

defense counsel did not take the prosecutor‟s sacred oath to see that justice is done

or that defense counsel wishes to see a guilty man go free. Wilson v. State, 938

S.W.2d 57, 58-60 (Tex. Crim. App. 1996), abrogated on other grounds by Motilla

v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002); cf. Bell v. State, 614 S.W.2d 122,

                                          19
123 (Tex. Crim. App. 1981). Generally, when determining whether jury argument

is improper, courts consider whether the argument refers to defense counsel

personally or if it impugns opposing counsel‟s character. Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998). Trial counsel must also confine his

arguments to matters supported by the evidence. Brown v. State, 270 S.W.3d 564,

570 (Tex. Crim. App. 2008). Jury argument that questions the credibility of a

witness is proper, so long as it involves a reasonable deduction from the evidence.

Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); George v. State,

117 S.W.3d 285, 287-88 (Tex. App.—Texarkana 2003, pet. ref‟d).

      While we agree the question was an improper attack on the defense expert‟s

credibility, we conclude that Wasserloos has not established that but for defense

counsel‟s failure to object, the result of the proceeding would have been different.

See Strickland, 466 U.S. at 694. The comment at issue was not made during

closing arguments. The reference to the “dark side” was made when the State

questioned Platt about leaving the police department to provide consulting services

primarily to criminal defense attorneys. Platt told the jury that “justice is blind”

that he believes there is no “dark side” when it comes to ensuring justice is done.

When taken in context, the prejudicial effect of the prosecutor‟s reference to the

“dark side” appears slight at best. We cannot say that Wasserloos has established a

                                        20
reasonable probability that but for counsel‟s failure to object to this comment, the

result of the proceeding would have been different. See id.

      Wasserloos has failed to show that the trial court abused its discretion in

denying his application for writ of habeas corpus. We overrule Wasserloos‟s sole

issue on appeal. We affirm the trial court‟s order denying Wasserloos‟s application

for habeas corpus.

         AFFIRMED.

                                               ___________________________
                                                    CHARLES KREGER
                                                         Justice
Submitted on October 25, 2012
Opinion Delivered March 27, 2013
Do not publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.




                                        21
