                                   IN THE
                           TENTH COURT OF APPEALS

                                   No. 10-12-00092-CR

PAUL KEVIN MCGOWN,
                                                                Appellant
v.

THE STATE OF TEXAS,
                                                                Appellee



                             From the 40th District Court
                                 Ellis County, Texas
                               Trial Court No. 35540CR


                            MEMORANDUM OPINION


       In six issues, appellant, Paul Kevin McGown, challenges his conviction for

assault (family violence) by occlusion, a third-degree felony that was enhanced under

the habitual-felony-offender statute. See TEX. PENAL CODE ANN. § 12.42 (West Supp.

2012); see also id. § 22.01(a)(1), (b)(2)(B) (West 2011). We affirm.

                                      I.     BACKGROUND

       This appeal pertains to an altercation that transpired between appellant and his

wife at the time, Candace Sellers. According to her testimony, Sellers recalled that, on
December 14, 2010, she received a telephone call from a neighbor while she was at work

in Dallas, Texas. The neighbor informed Sellers that appellant had broken into Sellers’s

house in Palmer, Texas. Apparently, appellant has just been released on parole that

morning. Sellers testified that she and appellant were estranged, though technically

married. She indicated that she had sent appellant a letter stating that she wanted a

divorce. Nevertheless, after receiving the neighbor’s telephone call, Sellers called the

Palmer police. Police told Sellers that they could not remove appellant from the house

because appellant and Sellers were still married. Police did say, however, that they

would assist Sellers in removing appellant if Sellers asked appellant to leave and he

refused to do so. Sellers headed to the house in Palmer. On her way, she called

appellant’s mother and requested that she come get appellant.

       What happened once Sellers arrived at the house is hotly contested. Sellers

testified that when she arrived at the house, the back screen door was locked from the

inside. Because the back screen door was locked, Sellers knocked and asked appellant

to come outside. Sellers recounted that appellant opened the door and subsequently

“grabbed [her] arm and yanked [her] inside the house and slammed the door.” Next,

appellant allegedly pushed Sellers against the refrigerator and grabbed her cell phone.

According to Sellers, appellant broke the cell phone in two and “threw it down the

length of the kitchen.” Appellant then yanked Sellers’s hair, causing her to fall. While

she was on the ground, appellant kicked her. After kicking Sellers, appellant cursed at




McGown v. State                                                                   Page 2
Sellers and told her that he was eating dog food while she was “out doing [her] thing.”1

Sellers got up and tried to get outside, but appellant grabbed her arms and shoved her

into an end table near the back door. He then turned Sellers around and proceeded to

stick two fingers in her mouth, grab her lower teeth, and pull her towards him. Sellers

recounted that appellant “then shoved me back with his fingers into the stove and I hit

my head.” Subsequently, appellant put his hands around Sellers’s neck and started to

apply pressure. Sellers tried to grab appellant’s hand, but she started to feel dizzy; her

eyes started to water; and she thought she was going to die. Sellers asserted that she

could not breathe at this time, though she recalled hearing appellant state that she “was

never going to see the light of day again.” Due to the pressure applied by appellant,

Sellers slumped to the ground, and appellant stepped over her and walked away.

       Eventually, Sellers was able to exit out the back door and run away. However, in

doing so, Sellers “rolled off the porch and fell on [her] knees.” Thereafter, Sellers

flagged down a car that was passing by. The driver of the vehicle took Sellers to the

police station, and one of the passengers of the car assisted Sellers with walking into the

police station.

       Jayne Gallagher, a secretary at the Palmer Police Department, stated that she was

present when Sellers entered the police station. According to Gallagher, Sellers “was in

a very frantic, terrified mode.” Sellers kept saying that appellant was trying to kill her.




       1 In his testimony, appellant admitted that he was upset because Sellers allegedly neglected him
while he was in jail.

McGown v. State                                                                                 Page 3
Sellers was coughing, out of breath, and felt like she was going to faint. Gallagher sat

with Sellers until an emergency medical technician arrived a few minutes later.

       Neil Moore, a first responder and volunteer fire fighter, evaluated Sellers. Moore

noticed that Sellers was “very anxious,” “breathing very rapidly,” crying, and very

upset. Sellers indicated to Moore than her neck was hurting. Moore observed redness

to the front of Sellers’s throat and around her cheeks. Moore also observed “a small

laceration to the back of her throat, probably two to three millimeters in length.” Moore

testified that the laceration was fresh; that it had just stopped bleeding; and that

Sellers’s throat was swollen. When Moore asked about her neck, Sellers noted that “the

back of her throat was real scratchy and she felt like she had been swallowing blood.”

Several pictures of Sellers were admitted into evidence. These pictures showed dark

bruises on numerous parts of Sellers’s body, especially her neck, arms, and torso.

       Thereafter, officers arrested appellant at the house. Sellers later returned to the

house accompanied by another police officer—Corporal Isidro Lopez. Corporal Lopez

recalled that Sellers was shaking, scared, and upset that day. He also recalled that

Sellers had red markings around her neck. After arriving at the house, Corporal Lopez

escorted Sellers inside and observed Sellers’s cell phone ripped apart and submerged in

water in the bathroom sink.2

       Appellant testified in his own defense. Appellant recounted that he had been in

jail from early 2010 until December 14, 2010. Upon release, he walked to the house in



       2   Appellant admitted submerging Sellers’s cell phone in the bathroom sink once she left.


McGown v. State                                                                                     Page 4
Palmer, fixed himself something to eat, and went to sleep. Appellant claimed that he

had packed up all of his property and that he was at the house to ask Sellers for the

keys to his car. According to appellant, when Sellers arrived at the house, she showed

him his keys, threw her cell phone at him, and ran out the door. Appellant denied

threatening Sellers or touching her in any way. In fact, he denied causing any of

Sellers’s injuries depicted in the pictures admitted into evidence. He also explained that

Sellers has muscular dystrophy and that she takes medication, methotrexate, to treat the

disease.3 Finally, appellant discussed his numerous prior convictions but emphasized

that he has no convictions for assaulting anyone.

        At the conclusion of the evidence, the jury found appellant guilty of assault

(family violence) by occlusion. See id. § 22.01(a)(1), (b)(2)(B). During the punishment

phase, appellant pleaded true to the two enhancement paragraphs contained in the

indictment, which referenced appellant’s prior convictions for felony possession of a

controlled substance and felony burglary of a vehicle. Subsequently, the jury assessed

punishment at thirty-five years’ incarceration in the Institutional Division of the Texas

Department of Criminal Justice. The trial court ordered that this imposed sentence

begin when the judgment and sentence associated with appellant’s 1992 burglary-of-a-

vehicle case in Dallas County, Texas, ceases to operate.4 The trial court also certified

appellant’s right of appeal, and this appeal followed.


        3 Sellers testified that she is 5’7” and weighs 120 pounds, whereas appellant is 6’1” and weighs

about 170 to 180 pounds.

        4   Specifically, the trial court’s judgment states that:


McGown v. State                                                                                  Page 5
                           II.     EXTRANEOUS-OFFENSE EVIDENCE

        In his third issue, appellant complains about testimony adduced regarding

appellant’s involvement in a purported insurance scam.          Appellant contends that

evidence of this incident constituted improper extraneous-offense evidence that affected

his substantial rights and had a substantial and injurious influence on the jury’s verdict.

        During cross-examination of Sellers, appellant’s counsel asked whether Sellers

had gone to appellant’s mother’s house while appellant was in jail. Sellers responded

that she had been to appellant’s mother’s house a couple of times while appellant was

in jail. In the following exchange, appellant’s counsel asked about a specific time in

which Sellers went to appellant’s mother’s house accompanied by a police investigator:

        Q [Appellant’s counsel]:   Who did you go with?

        A [Sellers]:               One time with my sister, and the other time
                                   with Investigator Jiminez.

        Q:                         And what were you doing over there with
                                   Investigator Jiminez?

        A:                         Recovering a stolen car.

        Q:                         And you didn’t ever go over there with
                                   Robert?

        A:                         Who is Robert?


        IT IS FURTHER ORDERED BY THE COURT THAT THE PUNISHMENT UNDER
        THE SENTENCE HERE IMPOSED SHALL BEGIN WHEN THE JUDGMENT AND
        SENTENCE AGAINST THIS DEFENDANT IN CAUSE NO. 9204927-N, IN THE 195
        TH DISTRICT COURT OF DALLAS COUNTY, TEXAS, WHEREIN THE
        DEFENDANT WAS ON THE 31ST DAY OF DECEMBER, 1992, DULY AND
        LEGALLY SENTENCED TO A TERM OF 35 YEARS FOR THE OFFENSE OF
        BURGLARY OF [A] VEHICLE SHALL HAVE CEASED TO OPERATE.

(Emphasis in original).

McGown v. State                                                                      Page 6
       Q:                          Robert is the gentleman that mows your yard.

       A:                          No. I don’t have anyone who mows my yard
                                   by the name of Robert.

       Q:                          Robert Green?

       A:                          No, sir.

       Q:                          And you don’t have a dating relationship with
                                   Robert Green?

       A:                          I don’t know who that is.

       On re-direct, the State questioned Sellers about the purported insurance scam.

Apparently, appellant had stolen a friend’s car so that the friend could file an insurance

claim. Sellers explained that she eventually found out about the insurance scam and

informed appellant about her knowledge of the event. She further testified that the

scam was one of the reasons why she told appellant that the marriage was over.

       In any event, the record does not indicate that appellant objected to any of the

testimony provided by Sellers regarding the stolen car and insurance scam. To preserve

error, Texas Rule of Appellate Procedure 33.1(a) requires the complaining party to make

a specific objection or complaint and obtain a ruling thereon before the trial court. See

TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

This requirement ensures that trial courts are provided an opportunity to correct any

error “at the most convenient and appropriate time—when the mistakes are alleged to

have been made.” Hull v. State, 67 S.W.3d 215, 216 (Tex. Crim. App. 2002). Because

appellant did not object to Sellers’s testimony about the stolen car and insurance scam,

we cannot say that this error has been preserved. See TEX. R. APP. P. 33.1(a); see also

McGown v. State                                                                        Page 7
Wilson, 71 S.W.3d at 349. And even if we were to conclude otherwise, we note that the

Texas Court of Criminal Appeals has stated that appellant “cannot complain of

testimony he first elicited on cross-examination.” See Ingham v. State, 679 S.W.2d 503,

507 (Tex. Crim. App. 1984); see also Christ v. State, 480 S.W.2d 394, 397 (Tex. Crim. App.

1972). Accordingly, we overrule appellant’s third issue.

                           III.   THE STATE’S CLOSING ARGUMENT

       In his first issue, appellant argues that the State injected new and unsupported

facts during its closing argument for the guilt-innocence phase. In particular, appellant

complains about the State’s mentioning that Sellers has “no convictions” when

discussing with the jury the judging of the credibility of witnesses. For context, we

recite the following statements made by the State in its closing argument, which

includes the complained-of statement:

       [The State]:   And as he’s choking her he says, you’re not going to see the
                      light of day again. You know, Candace Sellers, you’ve seen
                      her, five seven, 118 pounds. This defendant, six one, 180
                      pounds. She is no match for him. She’s no match. He knew
                      about her muscular dystrophy. He knew about that.

                             He knew that she couldn’t fight him. She couldn’t
                      stand a chance against him. And yet, what he wants today is
                      to not be accountable for anything. And [defense counsel]
                      wants you to believe that he is not violent. What do you
                      think a robbery is? Robbery. That’s violent.

                            You know, you get to judge his testimony the same as
                      everybody else. Who has a criminal history? He does.
                      Who’s on parole, who was sentenced to 35 years in 1992?
                      Got out in seven years. Still on parole, and yet still
                      committing crimes? He is. You have Candace Sellers, no
                      convictions. She’s working hard, taking care of herself and


McGown v. State                                                                      Page 8
                     her two dogs. Who do you believe? Whose story makes
                     more sense?

       At the outset of our analysis of this issue, we note that appellant did not object to

the State’s closing argument.     As stated earlier, to preserve error, Texas Rule of

Appellate Procedure 33.1(a) requires the complaining party to make a specific objection

or complaint and obtain a ruling thereon before the trial court. See TEX. R. APP. P.

33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because

appellant did not object to the State’s closing argument, we conclude that appellant has

failed to preserve this issue for review. See TEX. R. APP. P. 33.1(a); see also Wilson, 71

S.W.3d at 349.

       However, even if appellant had preserved this issue, we believe that the State’s

comment about Sellers’s lack of convictions constituted proper jury argument as a

reasonable deduction from the evidence or as an answer to opposing counsel’s

argument. See Brown v. State, 207 S.W.3d 564, 570 (Tex. Crim. App. 2008) (stating that

proper jury argument must encompass one of the following: (1) a summation of the

evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an

answer to the opposing counsel’s argument; or (4) a plea for law enforcement); Lagrone

v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997) (same). The record reflects that

appellant testified about his criminal history to highlight the fact that his offenses were

non-violent. Essentially, to bolster his credibility, appellant put his criminal history at

issue. Sellers also testified. Appellant did not impeach her with any convictions.

Because this case centered on the credibility of appellant and Sellers, and because


McGown v. State                                                                       Page 9
appellant put his criminal history at issue to bolster his credibility and did not impeach

Sellers with any convictions, the State’s comment on Seller’s lack of convictions is a

reasonable inference from the evidence and an answer to opposing counsel’s argument

that Sellers’s account is unbelievable. See Brown, 207 S.W.3d at 570; see also Lagrone, 942

S.W.2d at 619. Accordingly, even if appellant had preserved this issue, we do not

believe that the State’s closing argument was extreme or manifestly improper or

injected new and harmful facts into evidence so as to constitute reversible error. See

Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996); see also Brown, 270 S.W.3d

at 570 (“Consequently, error exists when facts not supported by the record are injected

in the argument, but such error is not reversible unless, in light of the record, the

argument is extreme or manifestly improper.”). We therefore overrule appellant’s first

issue.

                                   IV.    THE JURY CHARGE

         In his second issue, appellant contends that assault by occlusion is a result-

oriented offense and that the jury charge improperly includes full statutory definitions

of intent. Though he did not object to the charge in the trial court, appellant asserts that

the inclusion of the full statutory definitions of intent caused him egregious harm.

A.       Applicable Law

         In reviewing a jury-charge issue, an appellate court's first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

McGown v. State                                                                      Page 10
properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial. Id.

To obtain a reversal for jury-charge error, appellant must have suffered actual harm and

not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App.

2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

       Appellant admits that he did not object to the jury charge, nor did he request

alternative definitions for the culpable mental states in this case; thus, he must show

egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the final arguments

of the parties, and any other relevant information revealed by the record of the trial as a

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

B.     Discussion

       At the outset, we note that article 36.14 of the Texas Code of Criminal Procedure

provides that the trial court must provide the jury with “a written charge distinctly

setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007). In doing so, the abstract portion of the charge included the definitions of

“intentionally,” “knowingly,” and “recklessly,” as defined in section 6.03 of the Texas

McGown v. State                                                                      Page 11
Penal Code.5 See TEX. PENAL CODE ANN. § 6.03(a)-(c) (West 2011). Appellant argues that

the inclusion of these definitions in their entirety was erroneous because assault by

occlusion is a result-oriented offense and the inclusion of “nature of conduct” language

was clearly erroneous and caused him egregious harm.

       In an assault-by-occlusion case, this Court has stated that assault with bodily

injury is a “result-of-conduct” offense. See, e.g., Morgan v. State, Nos. 10-10-00367-CR &

10-10-00371-CR, 2011 Tex. App. LEXIS 8133, at **10-11 (Tex. App.—Waco Oct. 12, 2011,

no pet.) (mem. op., not designated for publication) (citing Landrian v. State, 268 S.W.3d

532, 540 (Tex. Crim. App. 2008)). Therefore, it would appear that the jury charge

erroneously included both “nature-of-conduct” and “result-of-conduct” language with

regard to the culpable mental states.

       However, based on our review of the record, we cannot say that appellant was

egregiously harmed by this error. As mentioned earlier, because he did not object,


       5  In fact, the charge provided the following definitions for “intentionally,” “knowingly,” and
“recklessly,” all of which mirror those prescribed in section 6.03 of the Texas Penal Code:

       A person acts intentionally, or with intent, with respect to the nature of his conduct or to
       a result of his conduct when it is his conscious objective or desire to engage in the
       conduct or cause the result.

       A person acts knowingly, or with knowledge, with respect to the nature of his conduct or
       to circumstances surrounding his conduct when he is aware of the nature of his conduct
       or that the circumstances exist. A person acts knowingly, or with knowledge, with
       respect to a result of his conduct when he is aware that his conduct is reasonably certain
       to cause the result.

       A person acts recklessly, or is reckless, with respect to the result of his conduct when he
       is aware of but consciously disregards a substantial and unjustifiable risk that the result
       will occur. The risk must be of such a nature and degree that its disregard constitutes a
       gross deviation from the standard of care that an ordinary person would exercise under
       all the circumstances, as viewed from the actor’s standpoint.

TEX. PENAL CODE ANN. § 6.03(a)-(c) (West 2011).

McGown v. State                                                                                       Page 12
appellant is not entitled to a reversal unless he was egregiously harmed by those

definitions. See Almanza, 686 S.W.2d at 171. And among the aforementioned items that

factor into an egregious-harm analysis, we may also consider the degree, if any, to

which the culpable mental states were limited by the application portion of the jury

charge. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Hughes v. State,

897 S.W.2d 285, 296 (Tex. Crim. App. 1994); Cook v. State, 884 S.W.2d 485, 492 (Tex.

Crim. App. 1994); see also Olivas, 202 S.W.3d at 144.

       In this case, although the trial court gave the full statutory definitions of the

culpable mental states in the abstract portion of the charge, the trial court limited the

scope of the definitions in the application paragraph pertaining to the alleged conduct:

       Now, if you find from the evidence beyond a reasonable doubt that on or
       about the 14th day of December, 2010, in Ellis County, Texas, the
       defendant, PAUL KEVIN MCGOWN, did then and there intentionally or
       knowingly or recklessly cause bodily injury to Candace Sellers, a member
       of the defendant’s family, as described by Section 71.003, Family Code, by
       intentionally or knowingly or recklessly impeding the normal breathing
       or circulation of the blood of the said Candace Sellers by applying
       pressure to the throat or neck of the said Candace Sellers, then you will
       find the defendant guilty as charged in the indictment.

(Emphasis added). Thus, the jury was instructed that it could convict appellant of

assault by occlusion only if it found that he had intentionally, knowingly, or recklessly

caused bodily injury to Sellers by applying pressure to Sellers’s throat or neck, thereby

impeding her normal breathing or circulation of blood. This is consistent with the

statutorily-prohibited conduct. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B). When

the application paragraph correctly instructs the jury on the law applicable to the case,

this mitigates against a finding of egregious harm.      See Patrick, 906 S.W.2d at 493;

McGown v. State                                                                     Page 13
Hughes, 897 S.W.2d at 296-97; Pitre v. State, 44 S.W.3d 616, 621 (Tex. App.—Eastland

2001, pet. ref’d).

       Furthermore, intent was not a contested issue at trial. Appellant’s defense was

not that he had accidentally choked Sellers or that he lacked the requisite mens rea to

commit the charged offense. Instead, appellant denied that the incident even occurred,

and his theory during the trial was that Sellers fabricated the story. Consequently,

throughout trial and during closing arguments, the parties focused on the credibility of

appellant and Sellers, not on whether appellant possessed the culpable mental state

required to commit the offense.

       Accordingly, on this record, we cannot conclude that the alleged charge error

affected the very basis of the case, deprived appellant of a valuable right, vitally

affected appellant’s defensive theory, or made a case for conviction clearly and

significantly more persuasive. See Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.—

Corpus Christi 1989, no pet.) (“Where no defense is presented which would directly

affect an assessment of mental culpability, there is no harm in submitting erroneous

definitions of ‘intentionally’ and ‘knowingly.’”). Because we cannot say that the alleged

error in the jury charge egregiously harmed appellant, we overrule appellant’s second

issue. See Patrick, 906 S.W.2d at 493; Hughes, 897 S.W.2d at 296-97; see also Pitre, 44

S.W.3d at 621.

                       V.     INEFFECTIVE ASSISTANCE OF COUNSEL

       In his fourth issue, appellant asserts that his trial counsel was ineffective. We

disagree.

McGown v. State                                                                   Page 14
A.     Applicable Law

       To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,

80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

First, appellant must show that counsel was so deficient as to deprive appellant of his

Sixth Amendment right to counsel.         Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

Second, appellant must show that the deficient presentation was prejudicial and

resulted in an unfair trial. Id. To satisfy the first prong, appellant must show that his

counsel’s representation was objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, appellant must show that

there is “a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable

probability exists if it is enough to undermine the adversarial process and thus the

outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett v. State, 65

S.W.3d 59, 62-63 (Tex. Crim. App. 2001).

       Our review is highly deferential and presumes that counsel’s actions fell within a

wide range of reasonable professional assistance. Mallett, 65 S.W.3d at 63; Thompson, 9

S.W.3d at 813.     The right to “reasonably effective assistance of counsel” does not

guarantee errorless counsel or counsel whose competency is judged by perfect

hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). Appellant bears

the burden of proving by a preponderance of the evidence that counsel was ineffective,

and an allegation of ineffectiveness must be firmly founded in the record. Thompson, 9

McGown v. State                                                                         Page 15
S.W.3d at 813. Trial court counsel should ordinarily be afforded an opportunity to

explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d

107, 111 (Tex. Crim. App. 2003). In the absence of a record of trial counsel’s reasons for

the challenged conduct, a court will not conclude that counsel was ineffective unless

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

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Roberts v. State, 220 S.W.3d

521, 533 (Tex. Crim. App. 2007).       For this reason, “[a] substantial risk of failure

accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.”

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

B.     Discussion

       Here, appellant complains that his trial counsel was ineffective because he failed

to object to the State’s closing argument and the jury charge, he introduced appellant’s

criminal history into evidence, and because he failed to obtain a medical expert to

explain Sellers’s injuries. In analyzing this complaint, we first note that the record is

silent as to trial counsel’s reasons for not taking the actions proposed by appellant on

appeal. To conclude that trial counsel was ineffective based on a silent record would

call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994); see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st

Dist.] 1996, no pet.). Further, the Texas Court of Criminal Appeals has stated that for a

defendant to prevail on an ineffective assistance of counsel claim based on the failure to

object, the defendant must first show that the trial court would have committed error to

overrule the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).

McGown v. State                                                                      Page 16
Because we have overruled appellant’s issue pertaining to the State’s closing argument,

we cannot say that appellant has met his burden in demonstrating that the trial court

would have committed error to overrule the objection. See id. Moreover, the record is

silent regarding trial counsel’s decision to not object to the jury charge or call a medical

expert to testify about Sellers’s injuries. And finally, we cannot say that trial counsel’s

decision to introduce appellant’s criminal history into evidence was so outrageous that

no competent attorney would have engaged in it. See Roberts, 220 S.W.3d at 533; see also

Garcia, 57 S.W.3d at 440. As was clear from his closing argument, appellant’s counsel

introduced appellant’s criminal history to bolster appellant’s credibility by showing

that his prior convictions were non-violent and to show that appellant did not commit

this violent act against Sellers.

       Based on the foregoing, we cannot conclude that appellant has overcome the

presumption that trial counsel’s representation was reasonably professional and

motivated by sound trial strategy. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.

App. 2005); Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813; see also Gamble, 916

S.W.2d at 93. Accordingly, we overrule appellant’s fourth issue.

                                     VI.     “THE RULE”

       In his fifth issue, appellant contends that the trial court erred in accepting the

testimony of a witness, Alan Purcell, who violated Texas Rule of Evidence 614 by being

present in the courtroom during the cross-examination of Sellers. See TEX. R. EVID. 614.

       At the beginning of trial, defense counsel invoked the Rule. See id. In response

to this request, the trial court swore in a witness who was in the courtroom, Karen

McGown v. State                                                                      Page 17
Cannon, and instructed her regarding the Rule. However, appellant’s complaint in this

issue pertains to the testimony of Purcell, Sellers’s brother, during the punishment

phase of trial.

       At the punishment phase, appellant testified in his own behalf, and the State

called Sellers in rebuttal. During the cross-examination of Sellers, defense counsel

asked Sellers to introduce her family members that were present in the courtroom.

Sellers introduced Purcell and her sister-in-law. Defense counsel then asked Sellers

about the relationship between appellant and her family.

       The State called Purcell to testify. In response to questions from the State, Purcell

admitted that he was in the courtroom while Sellers testified during the punishment

phase and that Sellers answered the questions truthfully. At no point did appellant

object to Purcell’s testimony in the trial court.

       As stated several times in this memorandum opinion, to preserve error, Texas

Rule of Appellate Procedure 33.1(a) requires the complaining party to make a specific

objection or complaint and obtain a ruling thereon before the trial court. See TEX. R.

APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

Because appellant did not object to the State’s closing argument, we conclude that

appellant has failed to preserve this issue for review. See TEX. R. APP. P. 33.1(a); see also

Wilson, 71 S.W.3d at 349. And even if he had preserved this issue, we do not believe

that the trial court abused its discretion in admitting Purcell’s testimony. See Phillips v.

State, 64 S.W.3d 458, 460 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“When, as here,

the witness was one who had no connection with either the State’s or the defendant’s

McGown v. State                                                                       Page 18
case in chief and was not likely to be called as a witness because of a lack of personal

knowledge regarding the offense, the trial court does not abuse its discretion in

allowing the testimony.” (citing Guerra v. State, 771 S.W.2d 453, 476 (Tex. Crim. App.

1988)); see also Minor v. State, 91 S.W.3d 824, 829 (Tex. App.—Fort Worth 2002, pet.

ref’d). We therefore overrule appellant’s fifth issue.

                        VII.   STACKING OF APPELLANT’S SENTENCES

       In his sixth and final issue, appellant argues that the trial court erred in stacking

his sentence in this case with his prior sentence for burglary of a vehicle.

A.     Applicable Law

       By statute, the trial court has the discretion to order sentences for a defendant

who has been convicted in two or more cases to: (1) run concurrently, or (2) cumulate,

or “stack,” the second and subsequent sentences—that is, being when the judgment and

the sentence imposed or suspended in the preceding conviction has ceased to operate.

TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2012); see Smith v. State, 575

S.W.2d 41, 41 (Tex. Crim. App. 1979) (“Normally, the trial judge has absolute discretion

to cumulate sentences.”); see also Guillory v. State, No. 03-10-00184-CR, 2010 Tex. App.

LEXIS 8154, at *3 (Tex. App.—Austin Oct. 6, 2010, no pet.) (mem. op., not designated for

publication). We review a trial court’s decision under article 42.08(a) for an abuse of

discretion. See Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex. App.—Houston [14th Dist.]

pet. ref’d). A trial court abuses its discretion when it imposes a sentence that is not in

compliance with the law.       See id.   In other words, so long as the law authorizes

cumulative sentences, the trial court acts within its discretion when it stacks sentences.

McGown v. State                                                                      Page 19
B.     Discussion

       Here, the indictment charged that appellant had been convicted of two prior

felonies, including burglary of a vehicle that occurred on December 31, 1992. During

the punishment phase, appellant explained that he received a thirty-five-year prison

sentence for his 1992 conviction for burglary of a vehicle. However, he also noted that

he was released on parole for that offense in 1999. After the jury assessed punishment

and was excused, the State moved to cumulate the sentence imposed in this case with

the sentence imposed in the 1992 burglary-of-a-vehicle case. Appellant objected, but the

trial court ultimately ordered that the sentence imposed in this case would “run

consecutive” to the sentence imposed in the 1992 burglary-of-a-vehicle case.

       On appeal, appellant argues that the trial court could not add a cumulation order

to an already-imposed sentence for which appellant has suffered a portion of his

punishment. While comparing his parole to community supervision, appellant likened

the cumulation order in this case to a Double-Jeopardy violation.

       First, we do not believe that appellant’s parole is akin to being on community

supervision.      Therefore, to the extent that appellant’s authority relies on such a

comparison, we do not find that case to be persuasive. See Worthington v. State, 38

S.W.3d 815, 816 (Tex. App.—Houston [14th Dist.] 2001), rev’d on other grounds, 67 S.W.3d

191 (Tex. Crim. App. 2001). Furthermore, Texas courts have held that a trial court has

authority to stack a new sentence onto a prior sentence for which the defendant is then

on parole, which is the case here. See Hill v. State, 213 S.W.3d 533, 538 (Tex. App.—

Texarkana 2007, no pet.) (“A trial court has the authority to stack a new sentence onto a

McGown v. State                                                                   Page 20
prior sentence for which the defendant is then on parole.”); Wilson v. State, 854 S.W.2d

270, 273 (Tex. App.—Amarillo 1993, pet. ref’d); Jimenez v. State, 634 S.W.2d 879, 881

(Tex. App.—San Antonio 1982, pet. ref’d) (holding that article 42.08 authorizes stacked

sentences for defendants on parole and that parole is “essentially a constructive

confinement” and not a release from the operation of the judgment); see also Sanchez v.

State, No. 02-11-00018-CR, 2012 Tex. App. LEXIS 478, at *6 (Tex. App.—Fort Worth Jan.

19, 2012, no pet.) (mem. op., no designated for publication). Because the trial court had

authority to stack the sentence imposed in this case onto the sentence imposed in the

1992 burglary-of-a-vehicle case, we cannot say that the trial court abused its discretion.

See Nicholas, 56 S.W.3d at 764-65. As such, we overrule appellant’s sixth issue.

                                     VIII. CONCLUSION

         Having overruled all of appellant’s issues, we affirm the judgment of the trial

court.




                                                AL SCOGGINS
                                                Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 26, 2013
Do not publish
[CRPM]




McGown v. State                                                                    Page 21
