      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-02-00459-CR



                                  Gary Lane Moyer, Appellant

                                                 v.

                                  The State of Texas, Appellee




           FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY
            NO. 00-4695-1, HONORABLE KEVIN HENDERSON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Gary Lane Moyer appeals his Class A misdemeanor conviction for assault

upon his wife, Marsha Moyer, by choking her with his hands. See Tex. Pen. Code Ann.

§ 22.01(a)(1) (West 2003).1 The jury found appellant guilty and the trial assessed punishment at

confinement in the county jail for one year and a fine of $4,000. The imposition of the sentence was

suspended and appellant was placed on probation subject to certain conditions.




       1
          The misdemeanor information alleged in pertinent part that on or about August 6, 2000
appellant “intentionally, knowingly, recklessly cause[d] injury to Marsha Moyer, a member of the
family or household of the defendant, by choking Marsha Moyer with his hands.” The “member of
the family or household” language was apparently taken from section 22.01(b)(2), but there was no
allegation or proof of a similar prior offense under section 22.01. See Tex. Pen. Code Ann.
§ 22.01(b)(2) (West 2003).
                                           Points of Error

               Appellant advances two points of error. Appellant claims that the trial court abused

its discretion in denying the motion for new trial based on the claim of ineffective assistance of

counsel (1) in violation of the Sixth and Fourteenth Amendments to the United States Constitution

and (2) in violation of article I, section ten of the Constitution of the State of Texas.

               With regard to the points of error, appellant states in his brief that his trial counsel’s

conduct was deficient as follows:


       1.   Trial counsel pursued an objectively unreasonable strategy of either not
            objecting to or introducing countless extraneous offenses during the State’s
            case-in-chief without any judicial determination that these extraneous offenses
            were admissible under Tex. R. Evid. 404(b).

       2.   Trial counsel pursued an objectively unreasonable strategy of either not
            objecting to or introducing countless extraneous offenses during the State’s
            case-in-chief without any judicial determination that these extraneous offenses
            were admissible under Tex. R. Evid. 403.

       3.   Trial counsel pursued an objectively unreasonable strategy of eliciting
            inadmissible hearsay from State’s witness Roma Schubert that corroborated the
            complainant as to her version of events.

       4.   Trial counsel pursued an objectively unreasonable strategy of not objecting
            when the prosecutor told jurors in final argument that if Appellant was “a beater
            in 1991, you’re going to be a beater in 2000.”

       5.   Trial counsel failed to adequately prepare Appellant to testify so that he could
            have made a knowing and voluntary decision as to whether to testify on his own
            behalf.

       6.   Trial counsel failed to tell the prosecutor of the results of a polygraph
            examination that Appellant passed in an effort to have this case dismissed or
            handled as a deferred disposition.




                                                   2
                 Appellant further claims that counsel’s deficient conduct prejudiced him to the extent

of depriving him of a fair trial.


                                        Background and Facts

                 Prior to trial, without a request from appellant, the State filed two written notices that

other crimes, wrongs, and acts of misconduct “may be presented” at trial. See Tex. R. Evid. 404(b).

The first notice listed certain acts committed against the complainant, Marsha Moyer, between 1994

and 2001, such as choking, hitting, slapping, verbal abuse, and acts earlier committed against other

named women. The second notice listed acts committed by appellant against the complainant during

1999 and 2000.

                 There appears to have been a tentative agreement between the parties that they would

approach the bench before extraneous matters involving the complainant would be offered into

evidence. Appellant vigorously opposed any attempt to introduce extraneous offenses concerning

third parties.

                 In his opening statement, trial counsel told the jury that the claims of domestic

violence did not begin on August 6, 2000, the date of the alleged offense, but started seventeen days

after the couple married in 1991, and this was followed shortly thereafter by a divorce petition with

allegations “hauntingly familiar to what she’s telling you now.” Counsel referred to the increase in

the net worth of the complainant during marriage and stated that she was a “gold digger.” Counsel

expected the evidence to show that the complainant had filed a divorce suit forty-eight hours after

the assault charge on August 6, 2000, and noted that she was asking “a million dollars in exemplary

damages” because of domestic violence. Counsel told the jury that appellant could not be convicted

                                                     3
on complainant’s testimony. Counsel promised that he would produce a witness who saw the

complainant the day after the alleged assault and did not see a mark on her.


                              Direct Examination of Complainant

               The State’s first witness was the complainant. She testified that she and appellant

each had been married and divorced from others and each had children from the previous

relationships. They met through a video dating service in 1988 or 1989 and married in 1991. The

State then elicited from her, without objection, that as a result of a choking incident seventeen days

after their marriage, she had filed for divorce alleging domestic violence. She did not report the

matter to the police. There was a reconciliation and the divorce suit was dismissed.

               The State then launched an inquiry about other extraneous matters. The complainant

testified about being hit and choked on other occasions. The conduct, however, was not consistent

and did not occur in public. In a somewhat disjointed fashion, she mentioned 1994, 1997, and 1998

as when these acts occurred. Still pursuing extraneous offenses without objection, the prosecutor

elicited testimony about two incidents in July 2000. On one occasion, appellant threw her down on

a bed, smothered her with a pillow, and twisted her leg. On the other occasion, appellant threw the

complainant down, stomped her and “smeared his hands” over her face peeling her eyelids open.

               Eventually, the interrogation turned to August 6. The complainant testified that about

5:30 p.m. she and appellant were eating their evening meal. She commented that her eldest daughter,

who was leaving her employment in Dallas, had been complimented by her employer on her job

performance. Appellant replied that was done just to be “politically correct.” The complainant




                                                  4
responded that it would be nice if appellant could accept a compliment when it was offered to

someone. As the complainant began to clear the dishes from the table, appellant jumped up, pushed

her against the wall, hitting her head several times, placed his hand over her face, and told her that

he wanted her “gone.” Appellant then placed his hands around her neck and began to choke her.

The complainant stated that she was able to pry the fingers of the much larger individual away from

her throat and she “slipped away.” She locked herself in the bathroom. Appellant pounded on the

door and yelled for about ten minutes. Determining that appellant was no longer at the door, the

complainant left her refuge and got to her automobile.

               The complainant drove to the home of her long time hairdresser, Roma Schubert, and

reported what had happened. After a conversation with Schubert, the complainant went to the

Sheriff’s office and gave a written statement. She later learned that appellant was arrested as a result

of her complaint. Within a few days, a divorce suit was filed. A “CD/Rom” disk created from a

recorded cellular telephone message was played for the jury. The complainant testified she had

received the message from appellant on her cell phone on the evening of August 6, 2000. On the

disk, appellant pleaded with the complainant to return home and was remorseful about his conduct,

but did not admit to the acts later charged against him.

               The complainant acknowledged that she had met with appellant on several occasions

after August 6, 2000, but decided against reconciliation. She told the prosecutor that she was

“asking for over a million dollars in the divorce”; that she “put a lot” into the marriage.




                                                   5
                               Cross-examination of Complainant

               On cross-examination, trial counsel established that when the complainant married

appellant she only had about $8,000, knew appellant was a wealthy man, and was not happy with

the prenuptial agreement regarding his company, Paper Resources, his separate property. The

complainant acknowledged that she was seeking a million dollars in actual and exemplary damages

and seeking alimony. The prenuptial agreement was also being questioned. All these matters were

apparently dependent upon a finding of family violence. Counsel suggested, without receiving direct

answers to his questions, that “this case is your ticket to a big payday in the divorce court” and that

any civil judgment against appellant would have “to be paid out of his company.”

               Further, trial counsel revisited all the extraneous offenses mentioned on direct

examination. Counsel established that the complainant was claiming that during approximately nine

years of marriage, appellant had choked and smothered her and punched her all over the body; that

on occasion appellant had grabbed her hair, pulled open her eyelids, “smeared” his hands on her face,

and pinched and twisted her nipples. Counsel used a chart or list in the jury’s presence to emphasize

the numerous assaults that she claimed in her divorce petition or otherwise that appellant had

inflicted upon her. Counsel also elicited from the complainant that appellant had raped her in 1999,

and that in a divorce hearing she had testified that appellant had threatened to kill her “probably 20

times.” The complainant acknowledged that in the divorce case appellant had testified and denied

the physical abuse. Counsel elicited the fact that the complainant had never reported a single

incident to the police. The complainant stated that she received an eye injury in 1997, but she did

not seek medical help until 2000 after the divorce suit was filed and she was seeking money.



                                                  6
                                             Other Evidence

               Roma Schubert testified for the State that she was the complainant’s hairdresser; that

on the evening of August 6, 2000, the complainant arrived at the Schubert home; that the

complainant’s face and eyes appeared puffy and there were red marks or redness on her neck; and

that the complainant reported what had happened earlier. After a conversation of one hour, the

complainant left for the Sheriff’s office.

               Sergeant James Maugham of the Williamson County Sheriff’s Office took a family

violence complaint from the complainant on the evening of August 6, 2000, concerning an assault

in appellant’s rural home near Florence. Maugham observed the complainant’s puffy face, a busted

lip, and the redness on her neck. He testified that appellant was arrested later that evening.

               The only defense witness was Johnnie Jacobson, a neighbor, who knew both appellant

and the complainant. He testified that on August 7, 2000, at the complainant’s request, he helped

remove the complainant’s belongings from the house. He used appellant’s truck to transport the

complainant’s property to the home of the complainant’s mother in Victoria. Jacobson saw no marks

on the complainant and observed nothing unusual about her the day after the alleged offense.

               As noted, the jury convicted appellant, and the trial court placed appellant on

probation.


                                Ineffective Assistance of Counsel
                                    The Standard of Review

               The Sixth Amendment to the United States Constitution guarantees the right to the

reasonably effective assistance of counsel in a state criminal proceeding. McMann v. Richardson,



                                                   7
397 U.S. 759, 771 n.14 (1970); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);

Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986). In Strickland v. Washington, 466

U.S. 668, 689 (1984), the United States Supreme Court held that in order to show ineffective

assistance of counsel, a convicted defendant must show that (1) his trial counsel’s performance was

deficient, in that counsel made such serious errors he was not functioning effectively as counsel; and

(2) the deficient performance prejudiced the defense to such a degree that the defendant was deprived

of a fair trial. In this connection, a strong presumption exists that counsel rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional judgment.

“Prejudice” is demonstrated when the convicted defendant shows “a reasonable probability that but

for counsel’s unprofessional errors, the result of the proceedings would have been different.” Id. at

694. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Parmer v. State, 38 S.W.3d 661, 665 (Tex. App.—Austin 2000, pet. ref’d); Banks v. State, 819

S.W.2d 676, 681 (Tex. App.—San Antonio 1991, pet. ref’d). Unless a defendant makes both

showings, it cannot be said that the conviction resulted from a breakdown in the adversary process

that renders the results unreliable. Strickland, 466 U.S. at 687; Oestrick v. State, 939 S.W.2d 232,

237 (Tex. App.—Austin 1997, pet. ref’d). Under Strickland, a defendant has the burden to prove

a claim of ineffective assistance of counsel by a preponderance of the evidence. McFarland v. State,

928 S.W.2d 482, 500 (Tex. Crim. App. 1996); Parmer, 38 S.W.3d at 665.

               The two-pronged standard for testing claims of ineffective assistance of counsel set

out in Strickland has been adopted for Texas constitutional claims. Hernandez v. State, 726 S.W.2d

53, 57 (Tex. Crim. App. 1986). Under the Strickland-Hernandez standard, any allegation of



                                                  8
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); Josey

v. State, 97 S.W.3d 687, 696 (Tex. App.—Texarkana 2003, no pet.). The assessment of whether a

defendant received effective assistance of counsel must be made according to the facts of each case.

Lopez v. State, 96 S.W.3d 406, 417 (Tex. App.—Austin 2002, pet. ref’d). Whether the Strickland

test has been met is to be judged by the “totality of the representation” rather than by isolated acts

or omissions of trial counsel, and the test is applied at the time of the trial, not through hindsight.

Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990); Banks, 819 S.W.2d at 681. Any

judicial review of a defendant’s claim of ineffective assistance must be highly deferential to trial

counsel. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel’s conduct fell

within the wide range of reasonable professional assistance. Id.; Jackson v. State, 877 S.W.2d 768,

771 (Tex. Crim. App. 1994).

               A reviewing court will not second guess through hindsight the strategy of counsel at

trial. In the absence of direct evidence in the record of counsel’s reasons for the challenged conduct,

an appellate court will assume a strategic motivation if any can be imagined. Garcia, 57 S.W.3d at

441; Skeen v. State, 96 S.W.3d 567, 580 (Tex. App.—Texarkana 2002, no pet.). The challenged

conduct will not, under the circumstances, constitute deficient performance unless the conduct was

so outrageous that no competent attorney would have engaged in it. Garcia, 57 S.W.3d at 441;

Thompson, 9 S.W.3d at 814.




                                                  9
                                       Motion for New Trial

               In the instant case, unlike many on direct appeal, we have a record of trial counsel’s

reasons for his trial strategy. Appellant’s counsel on appeal filed a motion for new trial based solely

upon a claim of ineffective assistance of counsel. See Reyes v. State, 849 S.W.2d 812 (Tex. Crim.

App. 1993) (ineffective assistance may be raised in motion for new trial).

               At the hearing on the motion, appellant called Cole Spainhour, the prosecutor; Keith

Hampton, an Austin attorney with whom trial counsel had briefly consulted pretrial; and trial

counsel. The prosecutor explained some of his actions at trial. Hampton was asked a number of

procedural legal questions. The prosecutor felt that trial counsel “did a great job in cross-

examining.” Hampton agreed that trial counsel’s strategy was plausible and objectively reasonable.

The hearing revealed that trial counsel had been licensed to practice law in Texas in 1979, had been

a prosecutor in Dallas and Williamson counties, had been in private practice since 1987, had tried

over 200 jury trials, and was certified in criminal law in 1989 by the Texas Board of Legal

Specialization, State Bar of Texas, being the first lawyer in Williamson County to be so certified.

Counsel stated that there had been no previous allegations or claims of ineffective assistance of

counsel levied against him. He had obtained fourteen acquittals in criminal cases in Williamson

County.2




       2
        In argument at the hearing on the motion for new trial, one prosecutor observed that the
number of acquittals was an exceptional record “given the Williamson County judicial system.”

                                                  10
                Counsel explained that he was confronted with defending appellant against the instant

assault charge with a pending divorce suit. He knew that a conviction on the assault charge would

result in an affirmative finding of family violence. See Tex. Code Crim. Proc. Ann. art. 42.013

(West Supp. 2003). Counsel recognized from consultation with appellant’s divorce attorney and

others that such an affirmative finding would severely impact the issues of alimony, the prenuptial

agreement, and damages being sought by complainant.3 From the depositions and divorce hearings,

the State’s Rule 404(b) notices, and other sources, counsel knew that the complainant was claiming

the commission of numerous extraneous offenses occurred during the marriage from 1991 until the

separation in August 2000, but that she had never reported any of these extraneous offenses to the

police at the time they occurred.

                Counsel consulted with attorney Hampton about the possibility that these numerous

extraneous offenses might become admissible. Counsel became convinced that the extraneous

matters would find their way into evidence. He stated that if the prosecutor limited himself on direct

examination of the complainant to the August 6 incident, counsel would be constrained in every

question on cross-examination to avoid opening the door to the extraneous matters while trying to

effectively demonstrate the witness’s bias and prejudice relative to her financial stake in the outcome

of the criminal case. Counsel believed that regardless of a “bare bones approach” on cross-

examination, there would be a mid-trial Rule 404(b)4 hearing and the trial court would admit the



       3
         Counsel revealed that he received a plea bargain offer of $1.00 fine upon a plea of guilty
but with a finding of family violence. See Tex. Code Crim. Proc. Ann. art. 42.013 (West Supp.
2003). The offer was rejected for the reasons stated.
       4
           Tex. R. Evid. 404(b).

                                                  11
extraneous offenses; that the prosecutor would “redirect on all those bloody extraneouses” and that

he would then be defending against the “extraneouses” not mentioned on cross-examination.

Counsel felt the jury would “figure out” that the extraneous matters came into evidence over his

objection.

               Counsel stated that he had to play the hand that he was dealt, that the complainant was

“all about money” seeking a criminal conviction involving family violence in order to secure a

million dollars; that her claims about other assaults and verbal abuse were so numerous, lengthy and

detailed that they were “fantastic,” particularly in light of the failure to report any of these matters

to law enforcement or seek medical help at the time; and that all the evidence would reveal her as

a liar then and now. Counsel testified:


       It was my belief that the dynamic of the case was such that I would do better against
       Mrs. Moyer if I seized the bull by the horns and brought them out myself either by
       letting Spainhour [prosecutor] to bring them out on his direct without objection or
       cross-examining them thoroughly the way I did.


Counsel expressed disappointment that his trial strategy was not successful, but stated that he would

use the same strategy if he had to try the case again before a different jury.

               Appellant’s counsel on appeal sought to show by their interrogation that trial

counsel’s trial strategy was objectively unreasonable, exposing his client to the jury as a criminal

generally, and failing to use procedural devices to protect his client as a part of his strategy. Trial

counsel admitted that he did not seek a Rule 404(b) hearing prior to the testimony of the State’s first

witness, the complainant, in order to put the State to the burden of showing the purpose and




                                                  12
admissibility of the extraneous offenses listed in its Rule 404(b) notices. Counsel doubted that the

trial court in its discretion would have allowed such procedure, which would have resulted in two

trials, a lengthy evidentiary hearing and the trial itself. Not having requested a pretrial Rule 404(b)

hearing, counsel did not ask to exclude any admitted evidence on the basis of Rule 403. Tex. R.

Evid. 403. Likewise, counsel acknowledged that he did not ask for a limiting instruction concerning

extraneous offenses. See Tex. R. Evid. 105(a). Counsel was of the opinion that if he had been able

to exclude the extraneous offenses by virtue of a pretrial Rule 404(b) hearing or obtain limiting

instructions on those admitted, all the extraneous offenses would still have come into evidence

following his cross-examination. Appellant acknowledged being familiar with the Maynard v. State,

685 S.W.2d 60, 65 (Tex. Crim. App. 1985), and Nicholas v. State, 502 S.W.2d 169, 174-75 (Tex.

Crim. App. 1973), line of cases,5 but had not considered using that line of authority in the instant

case.

               Following the conclusion of the hearing, the trial court overruled the motion for new

trial. We shall examine the reasons appellant advances to show an abuse of discretion in that ruling.




        5
          It is a general rule that when a defendant offers the same evidence to which he earlier
objected, he is in no position to complain on appeal. See Rogers v. State, 853 S.W.2d 29, 35 (Tex.
Crim. App. 1993). A corollary to this rule is that there is no waiver in introducing the same evidence
when a defendant is seeking to meet, destroy, or explain it by the introduction of rebutting evidence.
Maynard v. State, 685 S.W.2d 60, 65 (Tex. Crim. App. 1985); Nicholas v. State, 502 S.W.2d 169,
174-75 (Tex. Crim. App. 1973). This rule is not one of “curative admissibility” but a harmless error
type rule. See Leday v. State, 983 S.W.2d 713, 716-19 (Tex. Crim. App. 1998).

                                                  13
                                 Have Your Cake and Eat It Too

               In complaining that his trial counsel’s trial strategy was objectively unreasonable,

appellant contends that counsel pursued a strategy of “either not objecting to or introducing countless

extraneous offenses during the State’s case-in-chief without any judicial determination that these

extraneous offenses were admissible” under Rules 404(b) and 403 of the Texas Rules of Evidence.

               Appellant contends that there was a way for his trial counsel to have his cake and eat

it too. He urges that in view of the State’s two notices of intention to use extraneous offenses,

counsel should have filed a motion in limine6 or requested an evidentiary hearing based on Rule

404(b) prior to the testimony of the first witness. Under this procedure, the burden would have been

placed on the State to demonstrate the relevancy and admissibility of each extraneous offense listed

in the notices filed. See generally Turner v. State, 754 S.W.2d 668, 672 (Tex. Crim. App. 1988).

Upon the trial court’s ruling at the pretrial Rule 404(b) evidentiary hearing that the extraneous

offenses were admissible, appellant argues that counsel could have then requested a Rule 403

hearing in an attempt to exclude the extraneous offenses on other grounds. At trial, when the




       6
         A motion in limine would have availed appellant little. A ruling on a motion in limine does
not purport to be one on the merits but one regarding the administration of the trial. Harnett v. State,
38 S.W.3d 650, 655 (Tex. App.—Austin 2000, pet. ref’d). A traditional motion in limine is a motion
requesting that the opposing party be directed to approach the trial court before offering certain types
of evidence or otherwise going into particular areas before the jury. Id. It is axiomatic that motions
in limine do not preserve error whether the motion is granted or denied. Webb v. State, 760 S.W.2d
263, 275 (Tex. Crim. App. 1988); Harnett, 38 S.W.3d at 655; Patton v. State, 25 S.W.3d 387, 392
n.3 (Tex. App.—Austin 2000, pet. ref’d).

                                                  14
extraneous offenses were offered, counsel, according to appellant, could have asked for a limiting

instruction. See Tex. R. Evid. 105(a). Further, prior to the cross-examination of the complainant,

counsel could have announced that he was going to interrogate her about the extraneous offenses to

meet, destroy, explain or rebut the offenses. See Maynard, 685 S.W.2d at 65; Nicholas, 502 S.W.2d

at 174-75 (defendant does not waive challenge to admissibility of evidence admitted over objection

when he offers or uses such evidence to meet, explain or rebut it). Appellant’s counsel on appeal

argue that trial counsel could have thus preserved error as to the admission of the extraneous offenses

and still have cross-examined the complainant at will under the “meet, destroy, and explain”

doctrine.

                The fact that another attorney, including appellant’s counsel on appeal, might have

pursued a different course of action at trial does not support a finding of ineffectiveness. See Blott

v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Josey, 97 S.W.3d at 696; Skeen, 96 S.W.3d

at 579; Lopez, 96 S.W.3d at 417; Banks, 819 S.W.2d at 681. Therefore, we examine more closely

the question of whether appellant’s trial counsel could have had his cake and eaten it too.


                                          Pretrial Hearing

                A pretrial evidentiary hearing on the admissibility of extraneous offenses or bad acts

listed in the State’s Rule 404(b) notices would certainly be discretionary with the trial court.

Certainly such procedure, conducted, as appellant suggests, before the first witnesses testifies, is not

a common procedure. Appellant cites no authority to support his contention. Moreover, one of the

practical difficulties with the suggested procedure is that the case may in effect be tried twice in

order to have all the pertinent evidence before the trial court before it rules on the admissibility of



                                                  15
each extraneous matter. If forced pretrial to establish the admissibility of extraneous offenses, the

prosecution may seek a favorable ruling on every bad act listed, some of which may not have been

used at trial. In the instant case, this could include extraneous offenses against third parties which

trial counsel vigorously sought to avoid.

               The procedure appellant now claims that his trial counsel should have followed

presupposes a trial court’s pretrial ruling that all the extraneous offenses were admissible.

Otherwise, there would be no need for a request for a Rule 403 analysis or the need for limiting

instructions under Rule 105(a) nor an announcement of the intention to meet, destroy, and explain

extraneous offenses to prevent waiver of any error. What if the trial court’s ruling at the pretrial

hearing was that the extraneous offenses were inadmissible? Could trial counsel have had his cake

and eat it too, under these circumstances? Failure to follow what another attorney now says that he

would have done did not demonstrate deficient conduct and render trial strategy objectively

unreasonable. Banks, 819 S.W.2d at 681.


                                        Hearsay Testimony

               Appellant urges that trial counsel’s performance was deficient because he elicited

“inadmissible hearsay from Roma Schubert that corroborated the complainant’s version of events.”

Schubert was the hairdresser to whose home the complainant drove after the alleged assault. On

cross-examination, trial counsel asked Schubert if the complainant had ever told about prior abuse.

Schubert answered in the negative, pointing out that other things were discussed when “she was with

me” on August 6, 2000. Counsel then sought to solidify that negative answer, but Schubert clarified




                                                 16
her answer to state that prior to August 6, the complainant had told her that appellant broke the

complainant’s nose.7

                Counsel readily admitted that he had elicited hearsay. He explained that he was in

the process of laying the predicate to impeach Schubert with her divorce-hearing testimony when

she made her clarifying statement. Counsel, however, believed Schubert’s interrogation was more

helpful than harmful. Schubert’s testimony confirmed that the complainant had not told her of prior

abuse except the nose injury.

                “A lawyer may well choose not to object to hearsay or other inadmissible evidence

if it potentially enhances his client’s defense or at least does not seriously prejudice it.” Thompson,

9 S.W.2d at 812. Likewise, a lawyer may elicit hearsay for the same reason. Moreover, whether the

Strickland standard has been met is to be judged by the “totality of the representation” rather than

by isolated acts or omissions of trial counsel, and the test is to be applied at the time of the trial, not

through hindsight. Wilkerson, 726 S.W.2d at 548; Banks, 819 S.W.2d at 681. Further, the

Strickland standard has never been interpreted to mean errorless or perfect counsel. Bridge v. State,

726 S.W.2d 558, 571 (Tex. Crim. App. 1986). Deficient conduct has not been shown with regard

to Schubert’s cross-examination.


                                            Jury Argument

                Appellant also contends that trial counsel pursued an objectively unreasonable

strategy of not objecting when the prosecutor told jurors in final argument: “If you’re a beater in


        7
          The complainant had testified appellant broke her nose in 1997. She sought medical help
for the nose only after the divorce suit was filed in 2000.

                                                    17
1991, you’re going to be a beater in 2000.” The areas of permissive jury argument are (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. Alejandro v. State, 493 S.W.2d 230, 231

(Tex. Crim. App. 1973); see also Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992);

Gaddis v. State, 753 S.W.2d 296, 298 (Tex. Crim. App. 1988); Todd v. State, 598 S.W.2d 286, 296-

97 (Tex. Crim. App. 1980). The complained-of argument was based on testimony from the

complainant that appellant had beaten her in 1991, shortly after their marriage, and on the date of

the charged offense, August 6, 2000. This testimony was elicited by the State without objection and

later by appellant’s trial counsel. There was no limiting instruction. The testimony was before the

jury for all purposes. If counsel had objected to the argument, it would have been proper for the trial

court to overrule the objection. Under these circumstances, no claim of ineffective assistance can

be supported. The instant case is distinguishable from Valencia v. State, 966 S.W.2d 188, 190-91

(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (failure to object to prosecutorial erroneous parole

law argument was ineffective assistance), and Oliva v. State, 942 S.W.2d 727, 733-34 (Tex.

App.—Houston [14th Dist.] 1997) (failure to object to prosecutorial jury argument commenting on

defendant’s failure to testify constituted ineffective assistance), pet. dism’d, improvidently granted,

991 S.W.2d 803 (Tex. Crim. App. 1998). Appellant’s reliance on these cases is misplaced.


                                       Preparation to Testify

               Appellant urges that his “trial counsel failed to adequately prepare appellant to testify

so that he could have made a knowing and voluntary decision as to whether to testify on his own

behalf.” Appellant did not testify at trial. At the hearing on the new trial motion, there was a

                                                  18
conflict between appellant’s affidavit which was introduced into evidence and the testimony of trial

counsel as to whether appellant had even prepared to testify.8 Witness credibility is determined by

the trial court at a hearing on a motion for new trial. Salazar v. State, 38 S.W.3d 141, 148 (Tex.

Crim. App. 2001); Lopez v. State, 96 S.W.3d 406 (Tex. App.—Austin 2002, pet. ref'd). The trial

court overruled the new trial motion.9 No abuse of discretion was shown.

               In Perrero v State, 990 S.W.2d 896, 899 (Tex. App.—El Paso 1999, pet. ref’d),

counsel was held ineffective for failing to adequately prepare the defendant to testify. In Perrero,

the defendant testified at trial, and both counsel and the defendant later agreed at the new trial

hearing that there was inadequate preparation. Underlying the Perrero decision was the fact that

counsel was unaware that if the defendant testified he could be impeached by his prior criminal

record. Id. at 899. Perrero is distinguishable from the instant cause.




       8
           Appellant’s counsel on appeal acknowledged that trial counsel was “almost evangelical”
in his assertion that he had prepared appellant to testify but did not believe appellant would be a good
witness.
       9
         There was evidence in the record that appellant had testified in the divorce hearings. He
had denied his wife’s allegations about assault, but had admitted that he had beaten his ex-wife.
Appellant was described as loquacious. In his affidavit, appellant admitted that trial counsel had
prepared him not to open the door for the State if he testified by never saying “never” as in “I’ve
never been arrested for anything.” Appellant complained of the lack of a suggestion for a mock trial
where he could have been cross-examined. He was not informed what to expect on direct
examination. Appellant expected to testify but accepted counsel’s decision at the close of the State’s
case.

                                                  19
                                       The Polygraph Test

               Appellant complains that trial counsel was ineffective because he “failed to tell the

prosecutor of the results of a polygraph examination that appellant passed in an effort to have this

case dismissed or handled as a deferred disposition.”

               The results of a polygraph examination are not admissible into evidence. See Nethery

v. State, 692 S.W.2d 686, 700 (Tex. Crim. App. 1985); Sparks v. State, 820 S.W.2d 924, 927 (Tex.

App.—Austin 1991, no pet.). Trial counsel testified that he put appellant in touch with Eric Holden,

a well known polygraph operator in Dallas, who was respected and trusted by law enforcement.

Even with a favorable report from Holden, counsel expected that there would be retest by a

polygraph operator for the police. What counsel received was a letter from a Houston lawyer that

he did not know including a polygraph report from an operator of whom he had no knowledge.

Appellant acted contrary to counsel’s advice. Counsel did not trust the “podunk polygraph” and

decided not to take it to the prosecutor. Knowing that most prosecutors were not favorably inclined

to polygraph tests, counsel had not anticipated any great success even if Holden had performed the

examination. Counsel also feared that the polygraph report could be subpoenaed because it had not

been conducted under auspices of the attorney-client relationship.

               The prosecutor testified that he had been with the County Attorney’s office for three

years and had never been presented with polygraph results by the defense; he would not give much

weight to polygraph tests.

               The polygraph report and results were offered into evidence at the hearing on the new

trial motion. The report reflects appellant was given “a specific type polygraph examination”



                                                20
without further description. The report also stated that in the opinion of the examiner, after

interpretation of the charts, there was “no consistent criteria indicative of deception to any of the

above-referenced questions (answers?).” The report concluded appellant was being truthful in

denying that he abused Marsha Moyer or injured her on August 6, 2000 and when he stated that in

the last ten years he had not inflicted a serious bodily injury on a female. Appellant has not

demonstrated that his trial counsel’s failure to present the polygraph results to the prosecutor was

deficient conduct under Strickland.

               We conclude that appellant has failed to meet the two-pronged standard of Strickland.

The trial court did not abuse its discretion in overruling the motion for new trial based on ineffective

assistance of counsel. Points of error one and two are overruled.

               The judgment is affirmed.




                                               __________________________________________

                                               John F. Onion, Jr., Justice

Before Chief Justice Law, Justices B. A. Smith and Onion*

Affirmed

Filed: June 5, 2003

Do Not Publish


*
    Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
    assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).



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