      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-03-00448-CR



                                 Pedro Palomo Lucio, Appellant

                                                  v.

                                   The State of Texas, Appellee




      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-03-028, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found appellant Pedro Palomo Lucio guilty of attempted sexual assault. See

Tex. Pen. Code Ann. § 15.01 (West 2003), § 22.011 (West Supp. 2004-05). The district court

assessed punishment, enhanced by previous felony convictions, at imprisonment for seventy years.

In his sole point of error, appellant contends his trial counsel was ineffective. We will overrule this

contention and affirm the conviction.

               The complainant, Guadalupe Natal, lived in a San Marcos apartment with her brother,

Alex Rodriguez, and their parents. Rodriguez testified that on the morning of November 11, 2002,

he noticed that Natal was “beat up”; she had “a busted lip and a bruise on the side of her face.” She

was crying and appeared to be frightened, but refused to call the police. Rodriguez decided to call

the police himself.
                Officer Rudy Mesa responded to the call. He found Natal to be “withdrawn,

frightened.” He noticed bruising on her nose and cheek, and a redness along her scalp. These

injuries appeared to be fresh. Natal refused to give a statement or allow Mesa to photograph her.

She told Mesa that she did not want to pursue the matter.

                Natal testified that she had known appellant for about four years. They had been

romantically involved and, in fact, Natal still loved appellant. Natal said that on the night in

question, she was walking home when appellant pulled up beside her in his car. Appellant was

drunk, and he demanded that Natal get in the car with him. Afraid of what he might do if she

refused, Natal got in the car. Appellant drove to a nearby apartment complex and parked in the lot.

He ordered Natal to remove her clothes, then removed his own. Natal told appellant she was not

interested in sex and tried to get out of the car. Appellant hit her in the face with his hand. Natal

grabbed her pants and managed to open the car door. As appellant attempted to restrain her, the two

fell from the car. Natal’s head hit the pavement, causing the injury to her scalp. Natal ran to her

apartment, where she told her brother what had happened. Natal did not want to press charges

against appellant because “I loved him and I’m scared of him.”

                During cross-examination, Natal acknowledged that after this incident, she

accompanied appellant to his work on several occasions. Appellant’s employer, called by the

defense, also testified to this. He added that appellant and Natal appeared to have a “fine”

relationship.

                In rebuttal, the State called a domestic violence counselor who testified that it is

common for a woman who is the victim of domestic abuse to remain in the abusive relationship. She



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said that it is also common for a domestic violence victim to minimize the extent of the abuse she

has suffered and profess her continuing love for the abuser.

               Appellant’s point of error is based on defense counsel’s failure to object to what

appellant argues was improper jury argument by the prosecutor. That argument, and the context in

which it was made, is as follows:


               Let’s talk about the testimony briefly here. Let’s talk about Guadalupe Natal.
       You saw Guadalupe Natal. You heard this morning from Taylor Skaar, the counselor
       for the women’s center who does counseling for women who have been abused. You
       saw with your own eyes somebody who fit every one of those things Taylor Skaar
       talked to you about to an absolute “T.”

              She was terrified just to walk into this courtroom. It took her even a little
       while to even get started to answer questions. And even then I suggest to you—I
       suggest to you strongly that this is a reason why you should believe what she did tell
       you.

               I suggest to you strongly that she minimized the violence that was perpetrated
       to her back on November of last year. She told you she still loved Pedro Lucio. She
       told you, despite what he had done, that [s]he didn’t want him to get in trouble.

              She told Officer Mesa that back on November [11th] when he went out there,
       not because she called, but because her brother, Alex, observing that she had been
       beaten up with visible injuries to her face and to her head. He called the police.
       Guadalupe Natal told the officer then—Officer Mesa told you that she told him—[]he
       told you that she told him, “I don’t want to do anything about this case.”

               She told you, “I’m only here because the State subpoenaed me to come in
       here and testify. I don’t want to do this.” That—those are not comments that would
       come from somebody who just wanted to come up here, you know, and give you a
       line of smoke and give you a bunch of lies just in order to get somebody in trouble
       for some kind of revenge. She wanted no revenge. She wanted not to testify.

               She still to this day—and she told you from the witness stand that she didn’t
       want anything to happen to him. It’s a classic example, I submit, of the kinds of
       things that Taylor Skaar sees in her line of work all the time. It doesn’t mean—the
       fact—in fact, it probably means just the opposite.

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                 The fact that [defense counsel] tried to make a big deal about this in his
        opening comments yesterday that she was back with him a mere week—and maybe
        less than that—later, that that somehow suggests that either (A), this never
        happen[ed] at all; or (B), it couldn’t possibly have been as bad as she said. I suggest
        it’s just the opposite.

                 She was back with him for the reason she told you from the witness stand.
        I think she was an honest and candid witness. She wasn’t trying to be evasive with
        anybody. As I said, in my view, if anything, she minimized the level of violence that
        occurred that evening because, as she said, “I still love the man. I still don’t want
        him to get into trouble.”

                But she did testify and she told you the truth.


(Italics added.) Appellant argues that in the italicized remarks, the prosecutor improperly expressed

his personal opinion regarding the complainant’s credibility. He contends that counsel was

ineffective for failing to object to this.

                It is improper to argue that the jury, as trier of fact, should defer to another’s

assessment of the truthfulness of testimony. Gardner v. State, 730 S.W.2d 675, 698 (Tex. Crim.

App. 1987). Thus, it is error for the prosecutor to personally vouch for the honesty of a witness or

argue that the jury should believe a witness simply because prosecutors or investigators do. Id. But

in this cause, the prosecutor did not assert that the jury should believe Natal because he did. Instead,

he argued that the factors that might cause one to doubt Natal’s credibility—her reluctance to testify,

her continuing relationship with and protestations of love for appellant—were typical of domestic

violence victims. Considering the prosecutor’s argument as a whole, his statement that Natal’s

testimony was truthful was a deduction from the evidence and not merely a personal endorsement

of her credibility.




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               Even if the prosecutor’s argument was objectionable, counsel’s failure to object does

not alone warrant the conclusion that his trial assistance was constitutionally deficient. To prevail

on a claim of ineffective assistance of counsel, an appellant must show that counsel made such

serious errors that he was not functioning effectively as counsel and that these errors prejudiced the

appellant’s defense to such a degree that he was deprived of a fair trial. See Strickland v.

Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex. Crim.

App. 1999); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); and see Moore v. State,

694 S.W.2d 528, 531 (Tex. Crim. App. 1985); O’Hara v. State, 837 S.W.2d 139, 143 (Tex.

App.—Austin 1992, pet. ref’d). Counsel’s performance must be judged in its totality, rather than

by isolating individual errors or omissions. See Oestrick v. State, 939 S.W.2d 232, 237 (Tex.

App.—Austin 1997, pet. ref’d). We must indulge a strong presumption that counsel’s conduct fell

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

771 (Tex. Crim. App. 1994). To overcome this presumption, any allegation of ineffectiveness must

be firmly founded in the record. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). In most

cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions. Id.

               Appellant did not raise ineffectiveness of counsel in his motion for new trial. Nothing

in the record before us reveals counsel’s reason for not objecting to the prosecutor’s argument.

Perhaps counsel believed, as we think a reasonable attorney could, that the prosecutor’s remarks

were not objectionable. Perhaps counsel believed that objecting would merely draw attention to the




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remarks. In any event, appellant does not overcome the strong presumption that counsel’s

representation as a whole was within the broad range of reasonable professional assistance.

               We overrule appellant’s sole point of error and affirm the judgment of conviction.




                                             __________________________________________

                                             W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Affirmed

Filed: March 17, 2005

Do Not Publish




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