Opinion issued April 14, 2015




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00496-CR
                          ———————————
                        JESUS ESCOBAR, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


          On Appeal from the County Criminal Court at Law No. 7
                           Harris County, Texas
                       Trial Court Case No. 1853071


                         MEMORANDUM OPINION

      A jury convicted Jesus Escobar of delivery of less than one-fourth of an

ounce of marijuana. 1 On appeal, he argues that unobjected-to comments by a

prosecutor during voir dire constitute fundamental error warranting a new trial.


1
      TEX. HEALTH & SAFETY CODE ANN. § 481.120 (West 2010).
Alternatively, he contends that his trial counsel’s failure to object constitutes

ineffective assistance of counsel. We affirm.

                                      Background

         During voir dire, the prosecutor said:

         And the criminal code actually says, “It shall be the primary duty of
         all prosecuting attorneys, including any special prosecutors, not to
         convict, but to see that justice is done.” And I’m excited about that
         because it means that my job is to do the right thing. So when we see
         that someone that we believe to be not guilty, we can dismiss that
         case. When we believe them to be guilty, then we proceed. I also have
         had the opportunity to view our assistant district attorney, Mike
         Anderson, in a training session. He said, you know, “I’m so thankful
         for this job and this position because I never have to try a case that I
         don’t believe in.” And, so, I’m glad to be here today.

Escobar did not object.

         The prosecutor subsequently told the venire that the State had the burden to

prove all elements of the offense, that the State’s burden was beyond a reasonable

doubt, and that Escobar was entitled to a fair trial and a presumption of innocence

until proven guilty.

         The jury convicted Escobar. He timely appealed.

                       Improper Comments by the Prosecutor

A.       The prosecutor improperly stated his personal belief in Escobar’s guilt.

         Escobar contends that the prosecutor’s statement was improper because he

effectively told the venire that he personally believed Escobar to be guilty. We

agree.


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      The prosecutor indicated that he tries defendants if and only if he believes

that they are guilty. He decided to try Escobar. The unavoidable conclusion is that

the prosecutor personally believed that Escobar was guilty. See, e.g., Clayton v.

State, 502 S.W.2d 755, 756 (Tex. Crim. App. 1973) (“The prosecutor’s argument

that he would not prosecute a man he did not know in his heart to be guilty is

improper.”); Williams v. State, 417 S.W.3d 162, 171–72 (Tex. App.—Houston [1st

Dist.] 2013, pet. ref’d) (concluding that prosecutor’s statement that he dismisses

cases when “I don’t think that the defendant’s guilty” was improper); Beltran v.

State, 99 S.W.3d 807, 811 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

(holding that prosecutor’s statement that “[i]f I believed the man was not guilty I

wouldn’t be here” was improper).

      “A prosecutor may not inject personal opinion in statements to the jury.

Such a statement improperly conveys the idea that the prosecutor has a basis for

such an opinion outside the evidence presented at trial.” Williams, 417 S.W.3d at

172. Further, such a statement encourages jurors to conclude that a defendant is

“necessarily guilty because he was being tried.” See Mendoza v. State, 552 S.W.2d

444, 447 (Tex. Crim. App. 1977). Therefore, the prosecutor’s comment, which

conveyed his personal belief in Escobar’s guilt, was improper.




                                         3
B.    Escobar waived review by failing to object

      However, Escobar did not object to the prosecutor’s statements. “Rule 33.1

of the Texas Rules of Appellate Procedure requires that, in general, for a

complaining party to preserve an alleged error for appellate review, the record

must show that the party raised the issue with the trial court in a timely and

specific request, objection, or motion.” McLean v. State, 312 S.W.3d 912, 915

(Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing TEX. R. APP. P. 33.1(a) and

Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007)). “However, Texas

Rule of Evidence 103(d) provides that, ‘In a criminal case, nothing in these rules

precludes taking notice of fundamental errors affecting substantial rights although

they were not brought to the attention of the court.’” Id. (quoting TEX. R. EVID.

103(d)); accord Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).

      We have already concluded that the prosecutor’s remarks were improper.

See Williams, 417 S.W.3d at 172. We must therefore determine if the error was

fundamental. See McLean, 312 S.W.3d at 915. “Fundamental error must be so

egregious it prevents a fair and impartial trial.” Beltran, 99 S.W.3d at 811 (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).

      Escobar cites no case, nor have we found any, holding that a prosecutor’s

statement of personal belief in a defendant’s guilt before a venire was a

fundamental error not requiring an objection. See id. at 811–12. But numerous



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Texas cases suggest that a trial judge’s improper statement to a venire might

constitute fundamental error if it rises to “such a level as to bear on the

presumption of innocence or vitiate the impartiality of the jury.” McLean, 312

S.W.3d at 917; see Blue, 41 S.W.3d at 132. But it is unclear if this rule should also

apply to prosecutors’ voir dire statements. Notably, once voir dire is over and the

jury is impanelled, The Court of Criminal Appeals has held that “a defendant's

failure to object to a jury argument or a defendant's failure to pursue to an adverse

ruling his objection to a jury argument forfeits his right to complain about the

argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App.

1996); accord Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).

      In Blue v. State, a trial judge disclosed to the venire that, to the judge’s

chagrin, the defendant turned down a plea bargain. 41 S.W.3d at 130. A plurality

of the Court of Criminal Appeals reasoned: “A juror who knows at the outset that

the defendant seriously considered entering into a plea agreement no longer begins

with a presumption that the defendant is innocent.” Id. at 132. Further, “[a] juror

who hears the judge say that he would have preferred that the defendant plead

guilty might assume that the judge knows something about the guilt of the

defendant that the juror does not.” Id. Accordingly, the plurality concluded that

“[t]he comments of the trial judge, which tainted appellant’s presumption of




                                         5
innocence in front of the venire, were fundamental error of constitutional

dimension and required no objection.” 2 Id.

      Escobar argues that (1) Blue, which examined a trial judge’s voir dire

statements, also applies to a prosecutor’s voir dire statements and (2) the

prosecutor’s remarks in this case tainted the presumption of innocence and thus

constitute fundamental error under Blue. He asserts that “an exuberant

prosecutor . . . brought the full force of moral righteousness down on the side of

guilt. . . . [H]e told the jury that it was his . . . duty to see Mr. Escobar found guilty

because he believed in it.” Escobar urges us to conclude that these comments

“irreparably violated the presumption of innocence and tainted the jury with an

inflammatory emotional demonstration.”

      The State urges us to consider the entire record. See Mendoza, 552 S.W.2d at

446–47 (considering prosecutor’s voir dire comments in light of entire record). It

notes that “the prosecutor went on to clarify the appellant’s rights and the State’s

burden of proof.” Accordingly, “the prosecutor’s comments in voir dire did not

violate the appellant’s presumption of innocence.” We agree with the State.



2
      “Although the lead [plurality] opinion described the fundamental right at issue in
      Blue as a defendant’s presumption of innocence, a concurring opinion described
      the fundamental right at issue as the right to an impartial trial judge.” Jaenicke v.
      State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
      Accordingly, the various opinions in Blue are persuasive, but not precedential.
      Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013).

                                            6
      The presumption of innocence is not impinged when, in the context of the

entire proceeding, “it is unlikely that potential jurors would have been led to

believe that the district attorney had a basis for his opinion unknown to the venire,

or that appellant was necessarily guilty because he was being tried.” Id. at 447. In

Mendoza, a prosecutor remarked to the venire that he “has the responsibility of

seeing that the individuals who are guilty of criminal offenses are brought to trial,

and hopefully brought to justice.” Id. at 446. “Immediately after these remarks

were made, defense counsel moved that the entire panel be quashed. The motion

was overruled; however, the court did admonish the district attorney to ‘be very

careful what you say.’” Id. at 446–47. Moreover, “the district attorney went on to

clarify the presumption of innocence and the State’s burden of proof.” Id. at 447.

“In light of this clarification and the court’s prompt admonishment, it is unlikely

that potential jurors would have been led to believe that the district attorney had a

basis for his opinion unknown to the venire, or that appellant was necessarily

guilty because he was being tried.” Id. “Since the remarks were general in nature

and made at a stage of the proceedings before the jury was impaneled and evidence

was adduced, dismissal of the venire was not warranted.” Id.

      The Fourteenth Court of Appeals has held that there is no fundamental error

when a prosecutor improperly states his personal opinion regarding the guilt of the

defendant, the defendant does not object, and other circumstances negate the harm



                                         7
to the defendant. Beltran, 99 S.W.3d at 811–12. In Beltran, the following exchange

occurred between the attorneys and a venireperson:

      VENIREPERSON: I have a follow up question. If the investigation
          over the last thirteen years has shown that the man was not
          guilty would the indictment be eliminated? Would the
          indictment be dropped?

      STATE: If I believed the man was not guilty I wouldn’t be here. My
          job is to see that justice is done and I wouldn’t be sitting here.

      DEFENSE COUNSEL: And I can tell you that if I believed he did this
          and the State could prove it beyond a reasonable doubt I
          wouldn’t be here, either.

Id. at 811. The defendant did not object. On appeal, the Fourteenth Court of

Appeals found no fundamental error. “We agree the prosecutor improperly stated

her personal opinion. Nonetheless, appellant cites no cases in which similar voir

dire statements were held to be fundamental error. Moreover, defense counsel’s

immediate response stating his own opinion negated any harm to appellant.” Id. at

811–12. Accordingly, our sister court upheld the conviction. Id. at 812.

      Generally, when a prosecutor improperly tells the venire that he personally

believes the defendant to be guilty, an instruction from the trial court will cure the

harm to the defendant. Williams, 417 S.W.3d at 171–72. In Williams, the following

exchange occurred between a prosecutor and a venireperson:

      STATE: My duty is to prove my case. What should I—if I don’t
          believe this case—look, I’ll tell you right now. If I don’t believe
          this case and I don’t think that the defendant’s guilty, what
          should I have already done?


                                          8
      VENIREPERSON: Not charged him.

      STATE: We dismiss cases—

Id. at 171. The defendant objected, then unsuccessfully moved for a mistrial. We

concluded that “the prosecutor’s statement to the venire that he would have

dismissed the case against Williams if he believed he was innocent constituted an

improper expression of his personal opinion that Williams was guilty.” Id. at 172.

However, we also held that the trial court did not abuse its discretion in denying a

mistrial because it “made a prompt instruction to disregard the comment and

specifically noted that the comment only constituted the prosecutor’s opinion.

Under similar circumstances, Texas courts have held that a prompt instruction to

disregard cures any resulting harm.” Id.

      Here, other actions by the prosecutor cured any harm to the presumption of

innocence. The prosecutor explained to the venire, “This whole process is to

ensure that the defendant gets a fair trial today. And, so, that’s what we’re doing.”

He acknowledged his burden of proof: “And I have some things to prove to you

today. And these are all elements that I have to prove. And if I do not prove all of

them, if there’s even one missing, you have to find the defendant not guilty. I have

to prove that . . . .” He clarified, “Again, I have to prove each and every element

beyond a reasonable doubt. . . . [Y]ou get to decide what reasonable doubt is.”




                                           9
      The record demonstrates that the prosecutor promptly and thoroughly

explained the presumption of innocence and burden of proof to the venire. Thus,

this case is similar to Mendoza, Beltran, and Williams because these additional

circumstances mitigated any harm from the prosecutor’s error. 3 In light of the

entire record, the prosecutor’s improper statements did not bear on the presumption

of innocence or vitiate the impartiality of the jury. Thus, the statements did not

constitute fundamental error and, accordingly, Escobar forfeited appellate review

of them by failing to timely object.

                         Ineffective Assistance of Counsel

      Escobar contends that, in the alternative, his trial counsel’s failure to object

constitutes ineffective assistance of counsel.

A.    Standard of review

      “To prove ineffective assistance, a defendant must show, by a

preponderance of the evidence, that (1) counsel’s performance was so deficient

that he was not functioning as acceptable counsel under the Sixth Amendment and

(2) there is a reasonable probability that, but for counsel’s error or omission, the

result of the proceedings would have been different.” Apolinar v. State, 106

S.W.3d 407, 416 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184

3
      Notably, Escobar cites no additional irregularities that could have aggravated the
      prosecutor’s error or limited the effectiveness of his mitigating statements. For
      example, the jury charge included, as is common practice, instructions on the
      presumption of innocence and burden of proof.

                                          10
(Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687–96,

104 S. Ct. 2052, 2064–69 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999)). “Appellant bears the burden of proving by a preponderance of

the evidence that counsel was ineffective.” Thompson, 9 S.W.3d at 813. “When

handed the task of determining the validity of a defendant’s claim of ineffective

assistance of counsel, any judicial review must be highly deferential to trial

counsel and avoid the deleterious effects of hindsight.” Id. (citing Ingham v. State,

679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).

B.    Demonstrating ineffective assistance

      The State contends that Escobar cannot succeed on the second prong—

prejudice—because, as discussed above, the other circumstances of this case

negate any potential harm. It also contends that Escobar cannot succeed on the first

prong—performance—because the record does not rebut the presumption that trial

counsel acted strategically. We agree on both points.

      Escobar provides no argument on prejudicial effect other than the arguments

he relied upon to show an impingement of the presumption of innocence. Because

we have rejected those arguments, we do not find a reasonable probability that, but

for counsel’s error or omission, the result of the proceedings would have been

different.




                                         11
      Additionally, Escobar cannot show deficient performance. “Any allegation

of ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness.” 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. “An appellate court should be

especially hesitant to declare counsel ineffective based upon a single alleged

miscalculation during what amounts to otherwise satisfactory representation,

especially when the record provides no discernible explanation of the motivation

behind counsel’s actions—whether those actions were of strategic design or the

result of negligent conduct.” Id. at 814.

      Here, the record contains no indication why Escobar’s trial counsel chose

not to object. “We will normally not speculate to find trial counsel ineffective

when the record is silent as to counsel’s reasoning or strategy.” Apolinar, 106

S.W.3d at 416. Further, the rationale, if any, for that decision was not explored at

trial, and the issue was not raised in a motion for new trial. “Trial counsel ‘should

ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.’” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim.

App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005)). “If trial counsel is not given that opportunity, then the appellate court

should not find deficient performance unless the challenged conduct was ‘so



                                            12
outrageous that no competent attorney would have engaged in it.’” Menefield, 363

S.W.3d at 593 (quoting Goodspeed, 187 S.W.3d at 392).

      The record is silent on the attorney’s reason for not objecting, and his failure

to object to the prosecutor’s single remark is not so outrageous as to warrant

speculation into the matter. Accordingly, Escobar’s ineffective-assistance-of-

counsel claim fails.

                                    Conclusion

      We affirm the judgment of the trial court.




                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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