                                                                            ACCEPTED
                                                                        01-15-00342-CR
                                                             FIRST COURT OF APPEALS
                                                                     HOUSTON, TEXAS
                                                                   12/7/2015 1:54:35 PM
                                                                  CHRISTOPHER PRINE
                                                                                 CLERK

                      NO. 01-15-00342-CR
_____________________________________________________________
                                                       FILED IN
                                                1st COURT OF APPEALS
                           IN THE                   HOUSTON, TEXAS
                                                12/7/2015 1:54:35 PM
                     COURT OF APPEALS           CHRISTOPHER A. PRINE
                                                        Clerk

                          FOR THE

          FIRST SUPREME JUDICIAL DISTRICT OF TEXAS

                       HOUSTON, TEXAS
_____________________________________________________________

               JAMES JESSE HUBBARD, Appellant

                             V.

                 THE STATE OF TEXAS, Appellee
_____________________________________________________________

                 On Appeal from the District Court
                    of Galveston County, Texas
                       405th Judicial District
                       Cause No. 14CR0848
_____________________________________________________________

             FIRST AMENDED BRIEF FOR APPELLANT
_____________________________________________________________



                                  Greg Russell
                                  711 59th Street
                                  Galveston, Texas 77551
                                  (409) 497-4743
                                  (409) 497-4721
                                  SBN: 17411550
                                  ATTORNEY FOR APPELLANT
                      NO. 01-15-00342-CR
_____________________________________________________________

                           IN THE

                     COURT OF APPEALS

                          FOR THE

          FIRST SUPREME JUDICIAL DISTRICT OF TEXAS

                       HOUSTON, TEXAS
_____________________________________________________________

               JAMES JESSE HUBBARD, Appellant

                             V.

                 THE STATE OF TEXAS, Appellee
_____________________________________________________________

                 On Appeal from the District Court
                    of Galveston County, Texas
                       405th Judicial District
                       Cause No. 14CR0848
_____________________________________________________________

             FIRST AMENDED BRIEF FOR APPELLANT
_____________________________________________________________


                                  Greg Russell
                                  711 59th Street
                                  Galveston, Texas 77551
                                  (409) 497-4743
                                  (409) 497-4721
                                  SBN: 17411550
                                  ATTORNEY FOR APPELLANT
                  IDENTITY OF PARTIES AND COUNSEL



Parties and counsel in this case are as follows:


1.    James Jesse Hubbard, Appellant, represented at trial by Adam Brown,
300 Main Street, Suite 200, Houston, Tx. 77573; represented on appeal by
Greg Russell, 711 59th Street, Galveston, Tx. 77551.

2.    The State of Texas, Appellee, represented at trial by Chris Henderson
and Matt Shawhan, Assistant District Attorneys and on appeal by Jack
Roady, Criminal District Attorney for Galveston County, 600 59th Street,
Galveston, Tx. 77551.
                   CITATION TO THE RECORD



Clerk’s Record   ……………………………………          CR (page)

Clerk’s Supplemental Record ……………………..   CR Supp. (page)

Reporter’s Record ………………………………….         RR (volume & page)
                                     TABLE OF CONTENTS


                                                                                           Page

Index of Authorities .................................................................     i - ii

Statement of the Case .................................................………                 1

Issue Presented ........................................................…………               1

Summary of Facts ......................................................……… ..              2-5

Summary of Argument ………………………... ………......……                                               5-6

Argument in Support of Appellant’s Issue… ……….................                             6 - 19

Conclusion and Prayer ................................................………..                20

Certificate of Service .................................................................   21

Certificate of Compliance…………………………………………                                                  21




                                                      i
                         INDEX OF AUTHORITIES

CASES                                                             PAGE

Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App. 1973)………….. 17
Brown v. State, 475 S.W.2d 761 (Tex.Crim.App. 1972)……………… 17
Brown v. State, 866 S.W.2d 675, 678 (Tex. App.-Houston [1st Dist.]
1993, pet. ref’d) ………………………………………............................... 7
Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)………………. 10
Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. 1980)……... 12
Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed. 333 (1980)... 6
Ex Parte Cruz, 739 S.W.2d at 58 (Tex.Crim.App. 1987)……………… 7
Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App. 1980)…………………. 6
Ex Parte Walker, 777 S.W.2d 427 (Tex.Crim.App. 1989)………………. 7
Ex Parte Walker, 794 S.W.2d 36 (Tex.Crim.App. 1990)………………. 7
Ex Parte Welborn, 785 S.W.2d 391, 395 (Tex.Crim.App. 1990)……….. 11
Garrett v. State, 632 S.W.2d 350, 353-54 (Tex.Crim.App.
[Panel Op.] 1982)………………………………………………………….. 12-13
Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999)……………. 12
Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App. 1986)…………….. 7
Hill v. State, 666 S.W.2d 663, 668 (Tex. App.-Houston [1st Dist.] 1984),
aff’d 686 S.W.2d 184 (Tex.Crim.App. 1985)……………………………… 7
Hodge v. State, 488 S.W.2d 779 (Tex.Crim.App. 1972)………………. 17
Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000)……….. 18
Mathews v. State, 635 S.W.2d 532, 539 (Tex.Crim.App [Panel Op.]
1982)………………………………………………………………………… 12
Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App. 1981)…………….. 7

                                      ii
Mosley v. State, 983 S.W. 2d 249, 259 (Tex.Crim.App. 1998)……….. 18
Myer v. State, 416 S.W.2d 415 (Tex.Crim.App. 1967)………………… 17-18
Porter v. State, 623 S.W.2d 374, 385 (Tex.Crim.App. 1981)…………… 11
Simms v. State, 848 S.W.2d 754, 757 (Tex. App.-Houston [1st Dist.]
1993, pet. ref’d)……………………………………………………………… 7
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674(1984)………………………………………………………..... 7




STATUTES                                                        PAGE

Tex. Code Crim.Proc. §36.19……………………………………………                         10
Tex. Rule App. Proc. 44.2…….………………………………………….                        10
Tex.R.App.P. 81(b)(2)……………………………………………………                            13




CONSTITUTIONS                                                   PAGE

United States Constitution, Sixth and Fourteenth Amendments… …..     6
Texas Constitution, Article I, Section 10………………………………… 6




                                    iii
                      NO. 01-15-00342-CR
_____________________________________________________________

                                  IN THE

                           COURT OF APPEALS

                                 FOR THE

            FIRST SUPREME JUDICIAL DISTRICT OF TEXAS

                       HOUSTON, TEXAS
_____________________________________________________________

                   JAMES JESSE HUBBARD, Appellant

                                     V.

                 THE STATE OF TEXAS, Appellee
_____________________________________________________________

                     On Appeal from the District Court
                       of Galveston County, Texas
                          405th Judicial District
                          Cause No. 14CR0848

             FIRST AMENDED BRIEF FOR APPELLANT
_____________________________________________________________


TO THE HONORABLE COURT OF APPEALS:


     Now Comes JAMES JESSE HUBBARD and pursuant to TRAP 38.7,

files this First Amended Brief for Appellant. This Brief is Amended due to

some facts and authority being inadvertently omitted from the Original Brief.
                         STATEMENT OF THE CASE



      Appellant was charged by indictment with Robbery. (CR, 6) The case

was tried in the 405th District Court of Galveston County, Texas, the

Honorable C.G. Dibrell, III, presiding. (RR, 1, 1)

      The jury found appellant guilty.       Appellant pled true to the two

enhancements and the trial court assessed punishment at forty (40) years in

the Institutional Division of the Texas Department of Criminal Justice. (RR 5,

24) Appellant timely filed Notice of Appeal. (CR Supp., 7)




                             ISSUE PRESENTED


   Appellant received ineffective assistance of counsel at the guilt-innocence
   phase of trial in two ways:


        1) by trial attorney not objecting to prejudicial statement by the
           detective that she “knew” appellant and was “familiar” with
           appellant.


        2) by trial attorney not objecting to prosecutor’s prejudicial
           statements that appellant had a “drug habit” and was “on drugs”
           despite nothing in the record to support such statements.
                                        1
                           SUMMARY OF FACTS



      On February 27, 2015, the complainant, Robert Robinson, attended

Mardi-Gras in Galveston, Texas. (RR 3, 21) Mr. Robinson went to the

Crow’s Bar on the Strand where he met appellant who was sitting at the bar

eating. (RR 3, 24) Mr. Robinson testified that he bought appellant a beer

and they talked for about an hour. (RR 3, 25 – 26) Mr. Robinson testified

that he had about two beers with appellant at the bar. (RR 3, 26) After

spending about one to two hours with appellant inside the bar, they both go

outside to the patio and smoke cigarettes. (RR 3, 28) Mr. Robinson further

testified that he and appellant both drank some more beer on the patio and at

this point had consumed approximately five beers. (RR 3, 28) Mr. Robinson

testified that he opened his wallet in front of appellant when he purchased the

beers. (RR 3, 30) They left the bar and began walking along the Strand and

appellant borrows Mr. Robinson’s cell phone to call his girlfriend. (RR 3, 30 –

31) Approximately forty-five minutes to an hour after they left Crow’s bar,

they then go into a convenience store called Bob’s Grocery where Mr.

Robinson buys two packs of cigarettes. (RR 3, 31 - 32) Mr. Robinson

testified that after leaving Bob’s Grocery they proceed to walk down the
                                      2
street and about a block later appellant “coldcocks” him. (RR 3, 32) Mr.

Robinson further testified that he ran away, tripped over a curb and appellant

came up to him and starting beating on him. (RR 3, 34) Mr. Robinson

testified that appellant grabbed his wallet and made a “beeline for it” and ran

behind a church. (RR 3, 34) Mr. Robinson then crawled across the street

and hid behind a wall where he called his dad to pick him up and went to the

hospital the next morning. (RR 3, 35 - 36)

      Mr. Robinson’s father, Fred Robinson testified that his son called to

pick him up and the next day they called the police. (RR 3, 100 – 101)

      Appellant’s wife, Lisa Gutierrez, testified that appellant called her the

night of February 27, 2014 and said that he was helping someone find his

truck. (RR 3, 107 – 108) Ms. Gutierrez testified that appellant arrived home

at approximately 4:00 a.m. (RR 3, 110)

      Officer Christopher McNeil of the Galveston Police Department testified

that he was dispatched to University of Texas Medical Branch Emergency

Room and met with Mr. Robinson who gave a description of his attacker.

(RR 4, 16) Officer McNeil then went to the Crow’s Bar to talk with the

employees who said the description that was given by Mr. Robinson matched

the description of appellant. (RR 4, 16)

      Detective Michelle Sollenberger met with Mr. Robinson who gave her a
                                      3
description of the person who robbed him.         (RR 4, 36).     Detective

Sollenberger testified that she “knew” and was “familiar” appellant. (RR 4,

37, 39) Mr. Robinson then showed the detective a phone number that was

dialed from his phone by appellant. (RR 4, 38 – 39; State’s Exhibit # 7)

Detective Sollenberger researched the phone number in State’s Exhibit # 7

and it came back belonging to Lisa Gutierrez who was appellant’s girlfriend.

(RR 4, 39) Detective Sollenberger created a photo array that contained

appellant’s photo.     (RR 4, 45 – 46; State’s Exhibit # 9)       Detective

Sollenberger testified that Mr. Robinson picked appellant out of the photo

array and that he was “absolutely confident” in his selection. (RR 4, 45;

State’s Exhibit # 9)

      The Charge of the Court was read to the jury. (RR 4, 69) During the

state’s closing argument, the prosecutor referred to appellant as having a

“drug habit” and was on “drugs.” (RR 4, 78, 90 & 94)

      On February 24, 2015, the jury found appellant guilty of Robbery. (RR

4, 95) Appellant elected for the trial court to assess and requested that a

Pre-Sentence Investigation be prepared. (RR 4, 96)

      On March 27, 2015, the punishment trial was had before the court

where appellant pled true to the two enhancement paragraphs. (RR 5, 6) At

punishment, the State introduced into evidence four prior felony judgments
                                     4
and two prior misdemeanor judgments. (State’s Exhibits 1 – 4; 6 – 7)

      The trial court assessed punishment at forty (40) years, Institutional

Division of the Texas Department of Corrections. (RR 5, 24)




                         SUMMARY OF ARGUMENT


APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT
THE GUILT-INNOCENCE PHASE OF TRIAL IN TWO WAYS:

   1) BY TRIAL ATTORNEY NOT OBJECTING TO PREJUDICIAL
      STATEMENTS BY THE DETECTIVE THAT SHE “KNEW”
      APPELLANT AND WAS “FAMILIAR” WITH APPELLANT.

   2) BY TRIAL ATTORNEY NOT OBJECTING TO PROSECUTOR’S
      PREJUDICIAL STATEMENTS THAT APPELLANT HAD A “DRUG
      HABIT” AND WAS “ON DRUGS” DESPITE NOTHING IN THE
      RECORD TO SUPPORT SUCH STATEMENTS.


      Appellant was found guilty of Robbery.             On direct-examination,

Detective Michelle Sollenberger, testified that she “knew” appellant and was

“familiar” with appellant. (RR 4, 37, 39) This testimony was prejudicial and

irrelevant to any issue at trial. This testimony was prejudicial because it

implied that appellant was a criminal and that Detective Sollenberger was

familiar with appellant due to his criminal activity. Appellant’s trial counsel did

                                        5
not object to this prejudicial testimony. (entire record) By trial counsel not

objecting to this testimony by Detective Sollenberger, appellant received

ineffective assistance.

      Additionally, during closing arguments in the guilt-innocence phase of

trial, the prosecutor, stated, without objection, that appellant had a drug habit

and was on drugs despite there not being any evidence in the record to

support such statements.




           ARGUMENT IN SUPPORT OF APPELLANT'S ISSUE


      Under the Sixth Amendment to the United States Constitution as made

applicable to the states by the Fourteenth Amendment, Cuyler v. Sullivan,

446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed. 333 (1980), and by the “Right to be

heard” provision of Article I, Section 10 of the Bill of Rights of the Texas

Constitution, Ex Parte Duffy, 607 S.W.2d 507 (Tex.Crim.App. 1980),

defendants are entitled to effective assistance of counsel in criminal cases

whether counsel is retained or appointed.

      With regard to whether the defendant received effective assistance of

counsel at the guilt-innocence phase of trial and at the punishment phase of

capital cases, Texas follows the two prong test set out by the United States

                                       6
Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53 (Tex.Crim.App.

1986).; Ex Parte Walker, 777 S.W.2d 427 (Tex.Crim.App. 1989). That test is

(1) whether counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms; and, (2) whether there

is a reasonable probability that but for counsel’s deficient performance, the

result of the proceeding would have been different.

      In reviewing an attorney’s assistance, a court must examine the

totality of the representation.        Ex Parte Walker, 794 S.W.2d 36

(Tex.Crim.App. 1990); Ex Parte Cruz, 739 S.W.2d at 58 (Tex.Crim.App.

1987).   Counsel need not be errorless and should not be judged by

hindsight but must be reasonably likely to render effective assistance.

Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App. 1981).

      “Matters of trial strategy will be reviewed only if an attorney’s actions

are without any plausible basis.” Brown v. State, 866 S.W.2d at 678, citing

Hill v. State, 666 S.W.2d 663, 668 (Tex. App.-Houston [1st Dist.] 1984), aff’d

686 S.W.2d 184 (Tex.Crim.App. 1985) and Simms v. State, 848 S.W.2d 754,

757 (Tex. App.-Houston [1st Dist.] 1993, pet. ref’d).




                                        7
1.   Detective Sollenberger’s statements that she knew and was familiar
     with appellant:




     On direct-examination, the prosecutor elicited the following testimony

from Detective Michelle Sollenberger:

Q. And who did you believe the suspect to be?

A. James Hubbard. 

Q. Do you see that person in the courtroom today?

A. I do. 

Q. Can you point to him and identify an article of clothing? 

A. He's the gentleman sitting at the defense table with a beard and a white
shirt.

     MR. HENDERSON: Your Honor, will the record reflect that the
witness has identified the defendant.

     THE COURT: All right. 	 

Q. (By Mr. Henderson) And so at that point why did you think the
defendant was the person who robbed Mr. Robinson?

A. I knew the defendant. (RR 4, 37)


     Appellant’s attorney failed to make an objection to the prosecutor’s

prejudicial and improper questioning of Detective Michelle Sollenberger

regarding the detective knowing appellant. Consequently, trial counsel

                                        8
failed to move for a mistrial. (entire record)



      Additionally, on direct-examination the prosecutor elicited the

following the testimony from Detective Sollenberger:


Q. And was that phone number associated with anyone in particular?

A. It was.

Q. Who was it associated with?

A. Lisa Gutierrez. 

Q. And did you know Lisa Gutierrez? 

A. I did.

Q. And were you familiar with anyone who Lisa Gutierrez was dating or
with?

A. I was.

Q. And who was that person?	 

A. James Hubbard.               (RR 4, 39)



      This testimony from Detective Sollenberger was prejudicial and

irrelevant to any issue at trial. This testimony was prejudicial because it

implied that appellant was a criminal and that Detective Sollenberger was

familiar with appellant due to his criminal activity

      To not object to these prejudicial statements was ineffective assistance

                                         9
of counsel, which was harmful to appellant and it surely cannot be construed

as any trial strategy. What possible strategy could be involved in the jury

hearing, during guilt-innocence, that the detective investigating this robbery

knew appellant.

      TRAP, Article 44.2, states in relevant part:

      (a)   Constitutional Error: If the appellate record in a criminal case
reveals constitutional error that is subject to harmless error review, the court
of appeals must reverse a judgment of conviction or punishment unless the
court determines beyond a reasonable doubt that the error did not contribute
to the conviction or punishment.

      (b)   Other Errors: Any other error, defect, irregularity, or variance that
does not affect substantial rights must be disregarded.




      In order for an appellant to win a reversal without an objection being

made at the trial level, the appellant must show egregious harm. Almanza v.

State, 686 S.W.2d 157 (Tex.Crim.App.1984).           Even if this Court determines

that this error should be analyzed and controlled by Tex. Code. Crim. Proc.,

Art. 36.19 and Almanza, supra 171, this error was so egregious to appellant

and created such harm as to deny the appellant a fair and impartial trial.

      It is well settled in Texas that an accused shall not be tried for some

                                       10
collateral crime or for being a criminal generally. Porter v. State, 623 S.W.2d

374, 385 (Tex.Crim.App. 1981), cert. denied, 456 U.S. 965, 102 S.Ct. 2046,

72 L.Ed.2d 491 (1982). Because our concern that an accused not be tried

for some collateral crime or for being a criminal generally, testimony

concerning    an    extraneous    offense    is   admissible    only   in   limited

circumstances.     Ex Parte Welborn, 785 S.W.2d 391, 395 (Tex.Crim.App.

1990).

      Appellant’s trial counsel did not object or even try to keep out these two

statements by Detective Sollenberger. Appellant’s attorney failing to object

to these statements during the guilt/innocence phase of the trial was

ineffective assistance that did contribute to his conviction.




2.    Prosecutor’s Closing Argument that appellant had a drug habit and was
      on drugs:

      During closing arguments in guilt-innocence, the prosecutor argued

outside the record and evidence without any objection from trial counsel.

This argument established a motive for appellant to commit this crime of

robbery.

      The purpose of closing argument is to facilitate the jury in properly


                                       11
analyzing the evidence presented at trial so that it may arrive at a just and

reasonable conclusion based on the evidence alone and not on any fact

not admitted into evidence.     Campbell v. State, 610 S.W.2d 754, 756

(Tex.Crim.App. 1980)

      The four permissible areas of jury argument are (1) summation of the

evidence; (2) reasonable deductions from the evidence; (3) answer to the

argument of opposing counsel; and (4) plea for law enforcement. Guidry v.

State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999). Appellant contends the

prosecutor's argument fell outside the permissible areas of jury argument.

      When an argument exceeds the permissible bounds of the above

areas, such will not constitute reversible error unless, in light of the record

as a whole, the argument is extreme or manifestly improper, is violative of a

mandatory statute, or injects new facts harmful to the accused into the trial

proceedings.    Mathews v. State, 635 S.W.2d 532, 539 (Tex.Crim.App

[Panel Op.] 1982).

      The test to determine whether improper jury argument is harmless

error is not whether a conviction could have been had without the improper

argument, but whether there is a reasonable possibility that the argument

complained of might have contributed to the conviction or the punishment

assessed. Garrett v. State, 632 S.W.2d 350, 353-54 (Tex.Crim.App. [Panel
                                      12
Op.] 1982); Tex.R.App.P. 81(b)(2). In making this determination, the

appellate court must review the evidence at the guilt-innocence stage as

well as that adduced at the punishment phase of the trial. Garrett v. State,

632 S.W.2d at 353-54



      The prosecutor, in his closing statement stated:

      “Now, defense counsel wants to make this case about alcohol, but

ladies and gentlemen of the jury, this case not about alcohol. It's about

drugs. It's about the defendant's habit. It's about his wife's habit and it's

about the need to feed that habit and it's really about easy targets.” (RR 4,

77)

      Additionally, the prosecutor, further stated in his closing argument:

      “He forgot about the cell phone. He forgot about Laura and Frank,

and when you're on drugs, you tend to do these things. You tend to not

think about the consequence of your actions. You don't think about, oh, I'm

scared of getting caught from this criminal episode. You're thinking about

your next score.” (RR 4, 93)

      Again, the prosecutor re-emphasized in his closing argument:

      “Members of jury, he wasn't getting paid money for a drug habit. He

was getting paid in food; and the little money that he did pick up here and

                                      13
there, he used for drugs for not only Lisa but himself.” (RR 4, 94)

      The trial court, in the Courts Charge, instructed the jury regarding

extraneous offenses as follows:

      “You are instructed that if there is any testimony before you in this

case regarding the defendant's having committed offenses other than the

offense alleged against him in the indictment in this case, you cannot

consider said testimony for any other purpose unless you find and believe

beyond a reasonable doubt that the defendant committed such other

offenses, if any were committed; and even then, you may only consider the

same in determining his intent or plan in connection with the offense, if any,

alleged against him in the indictment in this case and for no other purpose.”

(RR 4, 72)

      Despite there being no evidence regarding appellant using drugs, the

prosecutor apparently wanted the jury to believe that appellant was a drug

addict, to attempt to show a motive, intent or plan.

      Lisa Gutierrez testified on direct-examination for the state:

A. I was very strung out on drugs, sir.
Q. When James came home that day, did he ask you for anything?
A. No, he just asked me to use my phone.
Q. So he asked you for your cell phone. Why did he want your cell phone?
A. Well, I suppose to take care of my habit.
                                       14
Q. To take care of your habit?
A. Yes, sir, he took care of me very well.
Q. So you said, "your habit." How was he going to take care of your habit?
A. He had a job.
Q. How was he going to take care of your habit that night?
A. I don't know, sir. I don't take care of him. I don't ask him any questions. I
just know he gets me what I need.
Q. What were you needing that night?
A. I was sick that night, sir, very sick. I told you I had been sick all day so
he brought me food.
Q. Well, let's talk about -- what did you mean when you said, "to take care
of your habit"?
A. Well, I mean, if I needed drugs, he would make sure that he worked to
get it for me.
Q. What kind of drugs are you referring to?
A. I was very strung out on crack cocaine.
Q. Did James use crack cocaine during that time?
A. No, sir, not that I know of.      (RR 3, 109 – 110)


      Lisa Gutierrez further testified on direct examination as follows:


Q. And you stated that James worked at Crow's bar?
A. Yes, sir.
Q. About how long did he work there, not exact dates but about how long?
A. Well, I would say about three weeks to a month prior, I guess.
Q. So a very short period of time?

                                      15
A. Yes, sir.
Q. And when we say, "work there," James doesn't clock in and clock out
like a normal employee that has a W-2, correct?
A. I don't know, sir.
Q. And when James brings you food home from this bar, does he pay for
that food, to your knowledge?
A. I don't know, sir.
Q. You just know that he brings food home when he comes home from
work?
A. Whenever I say, "Daddy, I'm hungry," he gets me food.
Q. And you know that James 09:40:06 gets that food free from Crow's bar,
correct?
A. I don't know if it's free. I don't know how he pays for it. I figured that
since he worked there that, yeah, he probably got a percentage off or
something. I don't know, sir.
Q. In fact, you know that's how James gets paid. He gets paid with food
and drinks, correct?
A. No, sir. You're not allowed to drink at the club for one thing if you're
working. I would imagine that. And no, no, he wouldn't work for food and
drinks.
Q. Well, did you guys pay rent any place?
A. No, sir.
Q. So can you explain to the jury what your expenses were during that
time?
A. I was a dope addict, sir.
Q. Were you doing these drugs by yourself?

                                     16
A. Yes, sir.
Q. You want this jury to believe that you were -- you had a habit and you
were the only person doing drugs around you?
A. Sir, I can just tell you what I know is true, that I do the dope. James –


      MR. HENDERSON: I'll pass the witness, your Honor.
      MR. BROWN: Was she finished answering the question?
      RECROSS-EXAMINATION BY MR. BROWN:


Q. You want to finish answering that question?
A. I just want to say, sir, that I never seen James smoke crack or meth or
anything like that. I am the dope addict in our family.
      MR. BROWN: I don't have any further questions, Judge.
                                                          (RR 3, 122 – 123)



      It is the duty of counsel to confine their arguments to the record;

reference to facts that are neither in evidence nor inferable from the

evidence is therefore improper. Alejandro v. State, 493 S.W.2d 230

(Tex.Crim.App. 1973)

      One of the most important factors in determining whether the

argument creates reversible error is in the effect it has on the jury. Hodge

v. State, 488 S.W.2d 779 (Tex.Crim.App. 1972); Brown v. State, 475

S.W.2d 761 (Tex.Crim.App. 1972); Myer v. State, 416 S.W.2d 415

                                      17
(Tex.Crim.App. 1967).



      The prosecutor’s argument constituted error and such error was not

harmless.    The error here rises to the level of constitutional error.

Martinez v. State, 17 S.W.3d 677, 692 (Tex.Crim.App. 2000). In such

cases, determining harm requires a balancing of the following factors: (1)

severity of the misconduct (the magnitude of the prejudicial effect caused

by the State's improper jury argument), (2) curative measures (the

effectiveness of any cautionary instruction given by the trial court), and (3)

certainty of conviction absent the misconduct (the strength of the evidence

supporting the conviction).     Mosley v. State, 983 S.W. 2d 249, 259

(Tex.Crim.App. 1998).

      Trial counsel was ineffective for not objecting to the prosecutor’s

closing argument and this, surely, could not be construed as trial strategy. It

is difficult to imagine what possible “plausible basis” trial counsel would have

for failing to object to the prosecutor’s closing argument that appellant had a

“drug habit” and was “on drugs.”

      The prosecutor's argument was extreme and injected new facts into

the case that were harmful to appellant.        There was no evidence that

appellant used drugs. In fact, the only evidence that was produced regarding
                                      18
drug use was the exact opposite: that he didn’t use drugs.

      The prosecutor committed reversible error in arguing to the jury that

appellant had a drug habit and was on drugs and said argument injected

harmful facts and was not based upon the evidence in the case.

      Allowing the prosecutor to state that appellant had a “drug habit” and

was “on drugs” provided the prosecutor with a clear motive to commit this

robbery and was extremely prejudicial to appellant.

      Additionally, appellant’s attorney failed to make an objection to the

prosecutor’s prejudicial and improper questioning of Detective Sollenberger

regarding   regarding    knowing     and   being    familiar   with   appellant.

Consequently, trial counsel failed to move for a mistrial. (entire record)

      Appellant received ineffective assistance of counsel by trial counsel not

objecting to the prosecutor’s closing argument that appellant had a drug habit

and by not objecting to the statements made by Detective Sollenberger that

she was “familiar” with appellant.




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                        CONCLUSION AND PRAYER




      WHEREFORE PREMISES CONSIDERED, appellant prays that the

judgment of the trial court be reversed and judgment of acquittal be entered

or in the alternative that appellant will be granted a new trial or that

appellant’s sentence will be set aside and for such other and further relief to

which appellant may be justly entitled.




                                           RESPECTFULLY SUBMITTED,

                                           /s/   Greg Russell
                                           Greg Russell
                                           Attorney for Appellant
                                           711 59th Street
                                           Galveston, Texas 77551
                                           (409) 497-4743
                                           (409) 497-4721 Fax
                                           SBN: 17411550




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                        CERTIFICATE OF SERVICE



   As Attorney of Record for Appellant, I do hereby Certify that a true and

correct copy of the above and foregoing document was this date provided to

the Attorney for Appellee, by email/e-file service to Mr. Jack Roady, District

Attorney of Galveston County at the offices of the District Attorney of

Galveston County, Texas, 600 59th Street, Galveston, Tx. 77551, on the 4th

day of December 2015.



                                            /s/   Greg Russell
                                                  Attorney for Appellant




                     CERTIFICATE OF COMPLIANCE

     I do hereby certify that this brief is in compliance with rule 9.4(i) of the

Texas Rules of Appellate Procedure because it is computer generated, and

its relevant portions contain 4573 words.



                                            /s/   Greg Russell
                                                  Attorney for Appellant
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