                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         ______________________________

               No. 06-08-00136-CR
         ______________________________


               JESSIE RUIZ, Appellant

                           V.

          THE STATE OF TEXAS, Appellee



 On Appeal from the Criminal Judicial District Court #4
                 Dallas County, Texas
             Trial Court No. F07-23594-K




      Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Moseley
                                   MEMORANDUM OPINION

       Jessie Ruiz was tried on six charges arising from two separate encounters with law

enforcement officers, was convicted of all six charges (including this one, a charge of possession of

between four grams and 200 grams of methamphetamine with the intent to deliver, for which he

received a sentence of twenty years' and four months' imprisonment),1 and has appealed each of those

convictions. The basis for each of his complaints rests upon a claim that he received ineffective

assistance of counsel.2 Ruiz's allegations arise over the lack of any objection by his trial counsel

when the State made three separate comments during closing arguments. We disagree, hold that

Ruiz failed to show that he received ineffective assistance of counsel, and affirm all six convictions.




       1
          In cause numbers 06-08-00137-CR, 06-08-00138-CR, and 06-08-00139-CR, he appeals
convictions for possession of marihuana in an amount between four ounces and five pounds,
possession of less than one gram of cocaine, and evading arrest, respectively. In these three cases,
Ruiz was sentenced to two years' imprisonment in a state-jail facility, to run concurrently. Ruiz also
appeals his conviction in cause number 06-08-00140-CR of possession of methamphetamine in an
amount between one and four grams. Ruiz was sentenced in this case to five years' imprisonment,
to run concurrently. Finally, in cause number 06-08-00141-CR, Ruiz was convicted of attempting
to take a weapon from a police officer, for which he received two years' imprisonment in a state-jail
facility, to run concurrently, and was assessed a $2,000.00 fine.
       2
         The conviction having been in Dallas County, this case was originally appealed to the Fifth
Court of Appeals and was then transferred to this Court by the Texas Supreme Court pursuant to its
docket equalization efforts. See TEX . GOV 'T CODE ANN . § 73.001 (Vernon 2005). We are unaware
of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant
issue. See TEX . R. APP . P. 41.3.

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I.     Factual Background

       In the first encounter, during the early morning hours of March 10, 2007, Ruiz slammed a

car into a signal light pole, knocking it to the ground, damaging the car sufficiently that it was

rendered "not drivable [sic]." The investigating officer discovered that Ruiz had no proof of liability

insurance and purposed to impound the vehicle. A routine inventory of the automobile incident to

its impoundment found it to contain seventy-eight grams of methamphetamine, two bags containing

marihuana, crack cocaine, scales used to weigh drugs, a realistic-looking plastic BB gun, a used

syringe, small plastic bags, and other assorted drug paraphernalia. After this discovery, Ruiz was

promptly arrested and indicted on several counts as a result of this incident, including: 1) possession

of methamphetamine in an amount more than four grams but less than 200 grams with intent to

distribute; 2) possession of marihuana in an amount over four ounces but less than five pounds; and

3) possession of less than one gram of cocaine. In due course, Ruiz was released from jail.

       More troubles with the operation of a motor vehicle precipitated Ruiz's next police encounter.

At two in the morning on July 10, 2007 (while the cases arising from the first incident were still

pending trial), another Dallas police officer, T. W. McClure, observed a red Ford pickup truck

driving on the wrong side of the road. McClure switched on his red and blue lights and stopped the

truck, driven by Ruiz. McClure approached the truck and asked Ruiz to produce his driver's license

for inspection, but a nervous Ruiz failed to respond to the request. As McClure asked him to step

out of the truck and reached to open the door, Ruiz accelerated and sped away. McClure ran back



                                                  3
to his patrol car and chased, with sirens blaring, after Ruiz. During the ensuing chase, Ruiz

proceeded against the flow of traffic on a one-way street; per Dallas police policy, McClure

terminated the chase rather than follow.

        Forty minutes later, McClure caught sight of the truck again and resumed his pursuit,

initiating a fifteen-minute high-speed chase (during which McClure estimated the speed of the truck

at ninety miles per hour on main roads and sixty to seventy miles per hour through residential areas).

Two other patrol cars (one driven by Officer M. L. St. Clair and another driven by Officer K. D.

Tyler) joined the chase. As is typical of many high-speed police chases, Ruiz lost control of the

truck, driving it into a tree. Ruiz then jumped out of the truck and continued his flight on foot

through the residential area in which he was then located. St. Clair, following on foot, tackled Ruiz

to the ground and the two began to wrestle.

        Ruiz swung his arms at St. Clair and struck him in the chest. St. Clair got on top of Ruiz and

administered a level one lateral vascular neck restraint. As St. Clair was attempting to secure a level

two restraint,3 he felt a tug on his right side and saw that Ruiz had grasped his pistol and holster.

St. Clair screamed for assistance and instinctively rolled on his side to prevent Ruiz from gaining

        3
         With a level one (or clinical) restraint, pressure is applied to both sides of the neck with the
trachea and throat being protected in the crook of the elbow. Pressure is applied by squeezing the
forearm and bicep together, while pressing in and down on the elbow. No pressure is directed to the
throat, and the subject can still breathe and speak with only minimal discomfort. With a level two
(or locked) restraint, the pressure application is identical, but this restraint is locked into position
with the subject's second arm. By locking a vascular restraint into position, it prevents the restraint
from sliding into a respiratory restraint (bar-arm choke hold), which is common during an actual
physical struggle. http://www.brazilianjiujitsugear.com/forums/showthread. php?t=5201.

                                                   4
full access to the pistol. Tyler ran to the wrestling match and struck Ruiz on his head twice with his

flashlight, whereupon Ruiz released his grasp on the pistol, but continued to resist and even grabbed

St. Clair's pepper spray. The two officers could not restrain Ruiz by themselves.

       Finally, McClure arrived at the scene of the brawl and administered pepper spray in Ruiz's

face. This enabled the three officers to gain control of Ruiz and place him in handcuffs. As they

were escorting Ruiz to a patrol car, a crowd (apparently consisting of family or friends of Ruiz)

became unruly and screamed at the police officers. The crowd was controlled, Ruiz was placed in

the back of a patrol car, and the officers conducted a search of the truck Ruiz had been driving. The

search revealed methamphetamine.

       As a result of this second incident, Ruiz was charged with evading arrest, possession of

between one and four grams of methamphetamine, and attempt to take a weapon from a police

officer. The charges from the March 10 and July 10 incidents were combined and Ruiz entered a

plea of guilty to all six counts, with punishment to be decided by a jury.

       Ruiz complains that his counsel was ineffective because he failed to object to certain

statements made by the State during jury argument at punishment; those statements discussed parole,

referenced plea bargains, and allegedly introduced new evidence.

II.    Standard of Review

       Any allegation of ineffectiveness must be firmly founded in the record. Goodspeed v. State,

187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.



                                                  5
App. 1999). From the record received by this Court, Ruiz bears the burden of proving by a

preponderance of the evidence that counsel was ineffective. See Goodspeed, 187 S.W.3d at 392;

Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). We

apply the two-pronged Strickland test handed down by the United States Supreme Court to determine

whether Ruiz received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668

(1984). Failure to satisfy either prong of the Strickland test is fatal. Jaubert v. State, 74 S.W.3d 1,

9 n.2 (Tex. Crim. App. 2002). Thus, if one of the prongs of the Strickland test cannot be met, we

need not examine the other. Strickland, 466 U.S. at 697.

       Ruiz must first show counsel's performance fell below an objective standard of

reasonableness when considering prevailing professional norms. Id. at 687–88. "This requires

showing that counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Sanchez v. State, No. 07-06-0435-CR, 2008

Tex. App. LEXIS 4363, at *3 (Tex. App.—Amarillo June 13, 2008, no pet.) (mem. op., not

designated for publication). Our review of counsel's performance is highly deferential. Ex parte

White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim.

App. 2000). There is a strong presumption that counsel's conduct fell within the wide range of

reasonable professional assistance and that the challenged action could be considered sound trial

strategy. Strickland, 466 U.S. at 689; White, 160 S.W.3d at 51; Tong, 25 S.W.3d at 712. Therefore,

we will not second guess the strategy of counsel at trial through hindsight. Blott v. State, 588 S.W.2d



                                                  6
588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005,

pet. ref'd). Where the record is silent as to why counsel failed to make an objection or take certain

actions, we will assume it was due to any strategic motivation that can be imagined, and the

appellant will have failed to rebut the presumption that trial counsel's actions were in some way

reasonable. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State, 57 S.W.3d

436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485–86 (Tex. App.—Texarkana

2005, pet. ref'd). In other words, we will not conclude the challenged conduct deficient unless it was

so outrageous that no competent attorney would have engaged in it. Thompson, 9 S.W.3d at 808;

Fox, 175 S.W.3d at 485–86.

       Next, it is not enough for Ruiz to show that the errors had some conceivable effect on the

outcome of the proceeding. See Strickland, 466 U.S. at 693. To meet the second prong of the

Strickland test, Ruiz must show that the deficient performance damaged his defense to such a degree

that there is a reasonable probability the result or outcome of the trial would have been different.

Id.; Tong, 25 S.W.3d at 712. We evaluate this factor while taking into consideration the totality of

representation and the particular circumstances of this case. Thompson, 9 S.W.3d at 813; Ex parte

Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991).




                                                  7
III.   Application

       A.     The State's Argument Regarding Parole Was Proper

       In accord with Article 37.07 of the Texas Code of Criminal Procedure, the trial court's

punishment charge stated:

       It is also possible that the length of time for which the defendant will be imprisoned
       might be reduced by the award of parole.

        . . . if the defendant is sentenced to a term of imprisonment, he will not become
       eligible for parole until the actual time served equals one-fourth of the sentence
       imposed or 15 years, whichever is less, without any consideration of any good
       conduct time []he may earn.

       ....

       You may consider the existence of the parole law and good conduct time. However,
       you are not to consider the extent to which good conduct time may be awarded to or
       forfeited by this particular defendant. You are not to consider the manner in which
       the parole law may be applied to this particular defendant.

See Byrd v. State, 192 S.W.3d 69, 71 (Tex. App.—Houston [14th Dist.] 2006, pet. ref'd).

       Ruiz complains that the State made an improper jury argument regarding parole when

arguing the following:

               A couple of things I would like to point out to you. On the two larger cases,
       the 2 to 10 and the 5 to 99 or life, the Judge read you a portion about parole. What
       you get to know about those two cases is those two cases, a person becomes eligible
       for parole after serving one-quarter of their time or 15 years, whichever is less.
       Okay?

       So let's take, for example, somebody gets 20 years. A quarter time is 5. It's less than
       the 15, so they're eligible for parole in 5. That includes good time. All right? Make
       sense?


                                                 8
       Now, let's say somebody got 70. Quarter time of that is 17 and a half. 15 is less than
       17 and a half, so they would become eligible in 15. What the law says is you can't
       go back and say, Hey, let's give somebody 50 because they're going to be eligible in
       a quarter time. Can't do that. But the law does say you can be aware of that for your
       deliberations. Okay?

The State may explain the parole law's existence. Taylor v. State, 233 S.W.3d 356, 358 (Tex. Crim.

App. 2007); see also Taylor v. State, 911 S.W.2d 906, 911–12 (Tex. App.—Fort Worth 1995, pet.

ref'd) (State's jury argument that "if a person is sentenced to 20 years . . . then they become eligible

to be considered for release on parole after one quarter, which is five" merely discussed the trial

court's charge and was proper). This issue has been decided by the Texas Court of Criminal Appeals

and by this Court. Taylor, 233 S.W.3d at 358; Johnson v. State, No. 06-04-00038-CR, 2004 Tex.

App. LEXIS 11106, at *2–3 (Tex. App.—Texarkana Dec. 10, 2004, no pet.) (not designated for

publication) (holding counsel's failure to object to State's argument regarding parole law not

ineffective assistance of counsel).

       In Taylor, the trial court's jury charge tracked the parole language employed by the trial court

in this case. 233 S.W.3d at 358. During closing argument, the State argued, "A 40-year sentence

means the defendant becomes eligible for parole after serving 20 years. . . . A 60-year sentence

means he becomes eligible after serving 30 years. A sentence of life or 75 still means he becomes

eligible after 30 years." Id. The Texas Court of Criminal Appeals held this argument was proper

because the State "did not convey any information beyond what was properly contained in the charge




                                                   9
when he explained how the parole eligibility rules set out in the charge worked with forty, sixty and

seventy-five year sentences." Id. at 359.

        In Sanchez, the defendant complained that the State's argument that the jury would "see that

the only protection of the community that you can be assured of would be half of whatever you send

him," and the State's calculation if "you send him for 40 years, he would only be there for 20," was

an "attempt to inappropriately apply the parole law" to the defendant. 2008 Tex. App. LEXIS 4363,

at *6. The Amarillo Court of Appeals held defendant's counsel was not ineffective in failing to

object because the State committed no error since the language regarding parole during jury

argument merely tracked the trial court's jury charge. Id. at *6–7.

        Here, as in Taylor and Sanchez, the State merely tracked the language in the jury charge and

explained the application of the parole formula in general terms. As such, no error was committed.

        Ruiz's first point of error is overruled.

        B.      Plea Bargain

        Unless clearly invited by defense counsel or introduced as evidence by the defense, attempts

at plea bargaining should never be alluded to in argument by prosecutors. Clayton v. State, 502

S.W.2d 755, 757 (Tex. Crim. App. 1973). During jury argument, the State said, "You know,

sometimes the reality is that the State and the defendant can't agree on a plea bargain. That's why we

have the 12 of you."4

        4
         In most plea bargain negotiations, one of the issues involves whether the defendant would
enter a guilty plea. In such a circumstance, if a jury heard mention of plea negotiations, it might infer

                                                    10
        Even assuming arguendo that this argument constituted error, declining to object to a portion

of the State's argument is often an inherently tactical decision based on the way the trial is unfolding

and the trial strategy employed. Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.—Fort Worth 1997,

pet. ref'd). Counsel could have made a tactical decision not to draw attention to, or re-enforce the

State's argument in front of the jury. Absent a record stating the reasons for counsel's failure to

object, we will not second guess counsel through hindsight. Claims of ineffective assistance of

counsel are often best developed through motions for new trial. Thompson, 9 S.W.3d at 814. We

have no such evidence as might have been developed at such a hearing here. Further, Ruiz failed

to brief or otherwise demonstrate how counsel's failure to object to this singular statement would

have resulted in a different outcome. Therefore, since Ruiz failed to meet either prong of the

Strickland test, this point of error is overruled.

        C.      No New Evidence Was Interjected During the State's Closing Argument

        Finally, Ruiz contends the following jury argument interjected new evidence:

                So I submit to you these incidents, state jails, third degrees, one first degree
        case, this is nothing to be looked at individually because they were not done by
        separate individuals. They were done by one person, Mr. Ruiz. I submit to you that
        you look at everything that he's done and you take that and you look at it and you say,
        where does he fall between that 5 or the low end to 99 years or life on the high end?
        Do we take off five years because he did not get the weapon? Do we take off five
        years because he was not able to take the pepper spray from the officer? Do we take
        off five years because he was not able to successfully force Officer St. Clair off his


that the defendant would have entered a plea of guilty if promised a light sentence. However, the
potential impact of a statement such as this is substantially reduced when, as here, a plea of guilty
is entered, rendering the sole negotiation point as being the penalty to be assessed.

                                                     11
       back? Do we take off five years because he did not have a car wreck and hurt
       somebody in the community on the streets? Do we take off five years because he
       was able to not harm any others on the street? Or do we take off five years because
       not only did he not take out -- he took out a traffic stop, but he hit -- didn't hit parked
       cars he swerved around.

       Areas of proper jury argument include summation of the evidence presented at trial, answer

to argument made by opposing counsel, or plea for law enforcement. Jackson v. State, 17 S.W.3d

664, 673 (Tex. Crim. App. 2000); Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

A "jury argument must be extreme or manifestly improper, or inject new and harmful facts into

evidence to constitute reversible error." Gaddis, 753 S.W.2d at 398.

       We reject Ruiz's theory that the jury argument above interjected new evidence which had not

been presented. It does no more than summarize some of the evidence elicited by officers during

the trial, evidence which established that although he tried, Ruiz was unable to gain control of

St. Clair's weapon or pepper spray, that Ruiz was eventually controlled by the officers, that no one

was physically harmed during either the March 10 or the July 10 incidents, and that he did not collide

with any other vehicles during either incident. Additionally, we believe that the argument was

merely a plea for law enforcement. Because the State's argument was proper, counsel was not

required to object. Therefore, the failure of Ruiz's counsel to object to this argument did not deny

him the effective assistance of counsel.




                                                   12
IV.    Conclusion

       We hold that Ruiz's counsel was not required to object to the State's proper references to

parole and its plea for law enforcement. Ruiz also failed to meet his burden to prove that he was

prejudiced by virtue of his counsel's failure to object to the State's reference to plea bargaining.

Accordingly, we find that Ruiz failed to show that he was denied the effective assistance of counsel

during the punishment trial.

       We affirm the judgment.




                                              Bailey C. Moseley
                                              Justice

Date Submitted:        January 5, 2009
Date Decided:          January 8, 2009

Do Not Publish




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