Opinion filed October 8, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-13-00360-CR
                                    ___________

                 RUDY ALVARADO GARCIA, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 441st District Court
                                Midland County, Texas
                          Trial Court Cause No. CR41780


                      MEMORANDUM OPINION
      The trial court found Rudy Alvarado Garcia guilty of felony driving while
intoxicated and assessed his punishment at confinement for forty years. Appellant
raises three points of error for review. We affirm.
      At approximately 1:00 a.m. on the date of the offense, City of Midland Police
Officer Bradley Barnes saw Appellant as he drove his vehicle on the center stripe of
two lanes of traffic. Officer Barnes turned on his overhead lights and stopped
Appellant. After Appellant stopped his vehicle, he got out. When Officer Barnes
approached Appellant, he smelled alcohol on Appellant’s breath. Officer Barnes
testified that Appellant used the vehicle for balance and that Appellant had “a bit of
a slur” when he spoke. Appellant admitted that he had consumed alcohol that night,
and he refused to perform any field sobriety tests. Officer Barnes arrested Appellant
for driving while intoxicated.
      Appellant repeatedly asked Officer Barnes to charge him with public
intoxication rather than driving while intoxicated. Officer Barnes took Appellant to
Midland Memorial Hospital so that blood could be drawn and analyzed to determine
Appellant’s blood alcohol content.
      Misty Coates, a nurse at Midland Memorial Hospital, drew Appellant’s blood
and returned the sealed vials of Appellant’s blood to Officer Barnes. Officer Barnes
took the blood samples to the police department evidence room, where the evidence
was stored in a climate-controlled container. Marissa Silva, a chemist with the Texas
Department of Public Safety Laboratories in Midland, analyzed Appellant’s blood
and found that Appellant’s blood alcohol content was 0.205.
      Appellant elected to have a bench trial. At trial, the State called three
witnesses: Officer Barnes, Coates, and Silva. After the State rested, the defense also
rested. The defense neither gave an opening statement nor presented any evidence.
      The trial court found Appellant guilty. During the punishment phase of the
trial, the State presented evidence of three prior convictions for enhancement
purposes: two previous DWI convictions and a sexual-assault-of-a-child conviction.
Appellant’s counsel did not object to the admissibility of the prior DWI convictions.
However, Appellant’s counsel argued that the State did not prove that the sexual-
assault enhancement was true because there was an inconsistency between the date


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of conviction shown in the judgment and the date alleged in the enhancement
paragraph in the State’s notice of enhancement.
      In three points of error, Appellant argues that his counsel provided ineffective
assistance, that his due process rights were violated, and that the State made
improper remarks in its closing arguments.
      In Appellant’s first point of error, he argues that his trial counsel provided
ineffective assistance. The State points out that, under Texas Rule of Appellate
Procedure 38.1, Appellant has waived this issue on appeal. Rule 38.1 provides,
“[t]he brief must contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1(i).
The State argues that Appellant merely offered conclusory statements and failed to
cite authority for his argument. We agree.
      However, even if Appellant did not waive this argument under Rule 38.1, we
still do not find that his trial counsel provided ineffective assistance. In order to
determine whether Appellant’s trial counsel rendered ineffective assistance at trial,
we must first determine whether Appellant has shown that counsel’s representation
fell below an objective standard of reasonableness and, if so, then determine whether
there is a reasonable probability that the result would have been different but for
counsel’s errors. Strickland v. Washington, 466 U.S. 668, 681 (1984); Hernandez v.
State, 988 S.W.2d 770, 770–71 (Tex. Crim. App. 1999); Hernandez v. State, 726
S.W.2d 53, 55 (Tex. Crim. App. 1986). We must indulge a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional assistance,
and Appellant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Stafford v. State, 813
S.W.2d 503, 506–09 (Tex. Crim. App. 1991). Appellant is not entitled to perfect or
error-free counsel. McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App.


                                          3
1992). Isolated instances of errors do not render counsel’s performance ineffective;
ineffective assistance of counsel cannot be established by isolating one portion of
trial counsel’s performance for examination. Id.
      We begin our analysis of Appellant’s ineffective-assistance-of-counsel claim
with his argument that his attorney’s failure to give a closing argument at the
guilt/innocence stage of Appellant’s trial constituted ineffective assistance of
counsel. Appellant’s counsel used his closing argument time to briefly state that the
court heard the evidence and that he relied on the court’s judgment. Appellant argues
that this amounted to no closing argument at all. Several courts have analyzed the
necessity that trial counsel give an opening statement and make a closing argument.
See, e.g., Perkins v. State, No. 11-05-00088-CR, 2007 WL 178234, at *2 (Tex.
App.––Eastland Jan. 25, 2007, no pet.) (not designated for publication); Mayfield v.
State, No. 04-02-00635-CR, 2003 WL 22047148, at *4 (Tex. App.––San Antonio
Sept. 3, 2003, pet. ref’d) (mem. op., not designated for publication); Thomas v. State,
No. 06-01-00021-CR, 2002 WL 171598, at *16 (Tex. App.––Texarkana Feb. 5,
2002, no pet.) (not designated for publication).
      In each of these cases, the courts analyzed whether counsel’s failure to make
an opening statement or to give a closing argument had a negative effect. Perkins,
2007 WL 178234, at *2; Mayfield, 2003 WL 22047148, at *4; Thomas, 2002 WL
171598, at *16. It is clear from the reading of these cases that the record must
“affirmatively” show that the outcome of the case would have been different if
counsel had made an opening statement or closing argument. Perkins, 2007 WL
178234, at *2; Mayfield, 2003 WL 22047148, at *4; Thomas, 2002 WL 171598, at
*16. Because Appellant failed to affirmatively show, and the record does not reflect,
how his trial counsel’s failure to give a closing argument affected the outcome of




                                          4
this case, we cannot say that his counsel provided ineffective assistance. We
overrule Appellant’s first point of error.
      In Appellant’s second point of error, he argues that the trial court violated his
right to due process when it admitted evidence of a previous conviction for sexual
assault of a child. A defendant is entitled to notice of a prior conviction that the
State intends to use for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex.
Crim. App. 1997). Although proper notice must be timely, it is not necessary to
plead it in the indictment so long as the State gives notice “in some form” prior to
trial. Id. at 34. It is unnecessary to allege prior convictions for enhancement of
punishment with the same particularity that is required in charging the primary
offense. See Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986). As the
State argues, Appellant’s argument is vague and references “certain documents” that
prejudiced his case. Appellant did not provide any specific arguments or authority
for his contention. Consequently, we agree with the State that Appellant has waived
the issue on appeal. See TEX. R. APP. P. 38.1(i). And, even if he did not waive the
issue, we hold that the notice provided by the State as to enhancement allegations
was sufficient and that the trial court did not violate Appellant’s due process rights
when it admitted evidence of the prior conviction. We overrule Appellant’s second
point of error.
      Finally, Appellant argues that the State made improper remarks in its closing
argument. Closing arguments should be limited to four categories of information:
(1) a summary of the evidence, (2) reasonable deductions from the evidence
admitted, (3) response to arguments made by opposing counsel, and (4) a plea for
law enforcement. Cantu v. State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992).
Appellant’s counsel did not object to any remarks made by the State throughout the
State’s closing arguments and does not present a fundamental error argument to this


                                             5
court. Because Appellant did not object to the statements made by the State at trial,
he has waived this argument for appellate review. See TEX. R. APP. P. 33.1. We
overrule Appellant’s third point of error.
      We affirm the judgment of the trial court.




                                                 JIM R. WRIGHT
                                                 CHIEF JUSTICE


October 8, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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