Affirmed and Memorandum Opinion filed March 31, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00211-CR

                   CONTINA FELICIA MEANS, Appellant

                                       V.

                      THE STATE OF TEXAS, Appellee

            On Appeal from County Criminal Court at Law No. 11
                           Harris County, Texas
                       Trial Court Cause No. 1916493

                MEMORANDUM                     OPINION


      A jury convicted appellant Contina Felicia Means of misdemeanor theft. The
trial court sentenced appellant to confinement for 180 days in the Harris County
Jail, suspended appellant’s sentence, and placed her on community supervision for
one year. Appellant challenges her conviction asserting she received ineffective
assistance of counsel. We affirm.
                                          BACKGROUND

       A loss-prevention associate with Wal-Mart saw appellant leaving the store
without paying for items in her shopping basket. Appellant was accompanied by
another woman, whom appellant would later identify as “N.O.” When the loss-
prevention associate approached the two women, he was able to stop appellant, but
the other woman walked away. Appellant testified that she or N.O. had paid for all
the items in the shopping basket.1

                       INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM

       In a single issue, appellant claims defense counsel’s assistance was
ineffective during the guilt-innocence phase of trial. Specifically, appellant argues
counsel’s failure to object to the State’s closing argument allegedly shifting the
burden of proof to appellant to prove her innocence deprived appellant of effective
assistance of counsel.

       To prevail on an ineffective-assistance claim, a defendant must prove (1)
counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that but for counsel’s deficiency the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S. 668,
687, 694 (1984); see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.
1986) (applying Strickland standard to ineffective-assistance claims under the
Texas Constitution). In considering an ineffective-assistance claim, we indulge a
strong presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and were motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this
       1
        We limit our discussion of the evidence to that which is necessary for the issue raised
on appeal.

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presumption, an appellant’s claim of ineffective assistance of counsel must be
firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases,
direct appeal is an inadequate vehicle for raising such a claim because the record is
generally undeveloped and cannot adequately reflect the motives behind trial
counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. Crim. App.
2003); Thompson, 9 S.W.3d at 813–14. When the record is silent regarding trial
counsel’s strategy, we will not find deficient performance unless the challenged
conduct was “so outrageous that no competent attorney would have engaged in it.”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

      The record reflects that during closing argument, the State argued, without
objection, as follows:

      So, she’s going to talk about N.O., the mystery woman, the N.O.
      who’s in Louisiana, who nobody can find.
      She could’ve been subpoenaed; those videos could have been
      subpoenaed by the defense; the loss prevention officer in the parking
      lot could have been subpoenaed by defense, none of that happened.
      ...
      She was on video. You know she’s there. You know she’s with this
      woman. She knows her well enough to take her to Wal-Mart, pay for
      her stuff; but we still don’t know who she is. She’s not sitting there
      supporting this story. She’s not sitting there defending Ms. Means in
      any way.


Citing Garrett v. State, 632 S.W.2d 350, 353 (Tex. Crim. App. 1982), appellant
argues the State may not comment on the failure to call competent and material
witnesses unless it is shown that such witnesses were available to testify on her
behalf. An attorney’s failure to object to proper argument cannot be ineffective
assistance, so we first decide whether the State’s argument was improper. Richards
v. State, 912 S.W.2d 374, 379 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).

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      Garrett is distinguishable from the case at bar. In Garrett, the issue was the
prosecution’s comment in closing that the defendant was “a man that if his friends
and family could bring you an alibi [defense, they] would [have].” Id. The Court of
Criminal Appeals found that this statement was not only outside the record but also
constituted an improper allusion to the defendant’s failure to testify because the
State put on all of the witnesses who were present during the robberies and there
was no evidence before the jury that anyone else was available. Id. The high court
found that “there was nothing whatsoever to reflect that the appellant had any
witnesses who could have testified to the defense of alibi.” Id. at 351. The Garrett
court held that the comment clearly constituted trial error because the defendant
was the only person left who could have been in a position to testify as to an alibi.
Id. at 353. (explaining that “an implied or indirect allusion to the failure of the
accused to testify” is not enough to support error unless the comment calls “for a
denial of an assertion of fact ... that only the defendant is in a position to offer”).

      Appellant testified, and in the State’s closing argument the prosecutor,
referred to evidence that could have come from N.O., not to evidence that could
come only from appellant. The State may assert in its closing argument that the
defendant failed to present evidence in her favor. See Bible v. State, 162 S.W.3d
234, 249 (Tex. Crim. App. 2005) (stating that prosecutor may comment on
defendant’s failure to call certain witnesses and such comment is not impermissible
attempt to shift burden of proof); Jackson v. State, 17 S.W.3d 664, 674 (Tex. Crim.
App. 2000) (prosecutor’s reference during closing argument to defendant’s failure
to produce expert testimony was not improper because the remark did not fault the
defendant for exercising his right not to testify); Patrick v. State, 906 S.W.2d 481,
491 (Tex. Crim. App. 1995) (holding that a prosecutor’s comment is not improper
if it “can reasonably be construed to refer to appellant’s failure to produce evidence


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other than his own testimony”); Rodgers v. State, 486 S.W.2d 794, 797 (Tex. Crim.
App. 1972) (explaining that a prosecutor may comment on the accused’s failure to
call a witness absent a showing that the witness was incompetent or that the
accused could not, despite his exercise of due diligence, secure the witness’s
attendance at the trial); Baines v. State, 401 S.W.3d 104, 107–08 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (holding that a prosecutor’s comment on the
defense’s failure to subpoena two witnesses was not error); Caron v. State, 162
S.W.3d 614, 618 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (noting that
“[d]uring jury argument, the State may comment on appellant’s failure to present
evidence in his favor”). Thus, the argument was not improper and there could be
no ineffective assistance of counsel by failing to object. See Johnson v. State, 987
S.W.2d 79, 84 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d). We overrule
appellant’s sole issue on appeal.

      The trial court’s judgment is affirmed




                                      /s/       Kem Thompson Frost
                                                Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).




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