                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-19-00267-CR

                                         John Marshall LEE,
                                              Appellant


                                                  v.

                                        The STATE of Texas,
                                              Appellee

                 From the 2nd 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 00-0495-CR
                           Honorable Gus J. Strauss, Jr., Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: April 15, 2020

AFFIRMED

           John Marshall Lee appeals his conviction of murder. In a single issue on appeal, Lee

contends he received ineffective assistance of counsel. We affirm the trial court’s judgment.

                                            BACKGROUND

           On the night of February 5, 2000, Lee and Larry Holt ordered Elizabeth Tatum and Ricardo

Gutierrez out of their vehicle at gunpoint, robbed them of their jewelry and cash, and carjacked

their vehicle. Lee was in the driver’s seat, and Holt was in the front passenger’s seat.
                                                                                       04-19-00267-CR


       Gutierrez then notified authorities, and the police responded. At high speed, police officers

pursued Lee and Holt by vehicle from New Braunfels, Texas to Marion, Texas. The pursuit ended

when Lee crashed into a parked vehicle in a residential neighborhood in Marion. Misty Milligan

was seated inside the parked vehicle. She died on impact. Holt died at the scene of the collision

soon thereafter.

       Following a trial by jury, Lee was found guilty of the murder of Milligan and Holt. The

jury assessed punishment at ninety-nine years’ and forty years’ confinement, respectively.

       On March 27, 2019, the Texas Court of Criminal Appeals found that Lee was entitled to

file an out-of-time direct appeal. Ex parte Lee, No. WR-42,153-05, 2019 WL 1433730, at *1 (Tex.

Crim. App. Mar. 27, 2019) (per curiam) (not designated for publication). This appeal ensued. In

his sole issue, Lee contends that he received ineffective assistance of counsel at trial.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       When evaluating a claim of ineffective assistance of counsel, we use the two-pronged test

set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, the defendant must

prove by a preponderance of the evidence that (1) his counsel’s performance was deficient in that

it fell below an objective standard of reasonableness, and (2) counsel’s deficient performance

prejudiced his defense. See id. at 687; Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

To show prejudice, “[t]he defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. Failure to show either deficient performance or prejudice defeats

an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999).




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       Our review of counsel’s representation is highly deferential, and we presume that counsel’s

conduct fell within the wide range of reasonable and professional assistance. Strickland, 466 U.S.

at 689. It is the defendant’s burden to “overcome the presumption that, under the circumstances,

the challenged action ‘might be considered sound trial strategy.’” Id. at 689 (quoting Michel v.

Louisiana, 350 U.S. 91, 101 (1955)).

                                              ANALYSIS

       Lee contends that his trial counsel was ineffective for failing to object to the following

statements the State made in its closing argument:

       Sometimes it is said that the job of defense lawyers is to get jurors to go down rabbit
       trails. I think you know what rabbit trails are. They are the little faint trails through
       the grass or pasture that lead away from the main road that leads to truth. I ask you
       not to be deceived. Don’t go down those rabbit trails. Stay on the main road. I ask
       you to return a verdict of which you can be proud, guilty as charged.

Lee argues that because his trial counsel did not object to these comments, error was not preserved

and, thus, he cannot complain on appeal about the State’s improper closing argument.

       On this record, we cannot conclude that Lee’s trial counsel performed deficiently by failing

to object. Assuming without deciding that these statements were objectionable, the record is silent

as to why counsel failed to object, or chose not to object, to the State’s closing argument. “When

the record is silent on the motivations underlying counsel’s tactical decisions, the [defendant]

usually cannot overcome the strong presumption that counsel’s conduct was reasonable.” Mallett

v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Moreover, counsel may have chosen

strategically not to object so as not to direct the jury’s attention to the State’s closing argument by

objecting. See Richards v. State, 912 S.W.2d 374, 381 (Tex. App.—Houston [14th Dist.] 1995,

pet. ref’d) (determining counsel’s failure to object to the State’s improper comments may have

been reasonable trial strategy); see also Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App.

2005) (stating that when a reviewing court “can conceive potential reasonable trial strategies” for


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counsel’s conduct, it “cannot conclude that counsel has performed deficiently”). Because the

record is silent as to why counsel failed to object, or chose not to object, to the State’s closing

argument, Lee has failed to overcome the strong presumption that his counsel’s actions fell within

the wide range of reasonable and professional assistance. See Mallett, 65 S.W.3d at 63.

                                          CONCLUSION

       We conclude Lee has failed to prove his counsel’s performance was deficient and, thus, he

cannot show he received ineffective assistance of counsel. See Thompson, 9 S.W.3d 808 at 813.

We overrule Lee’s sole issue on appeal and, accordingly, affirm the trial court’s judgment.

                                                 Rebeca C. Martinez, Justice

DO NOT PUBLISH




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