                                                                     PD-1652-14
                                                    COURT OF CRIMINAL APPEALS
                                                                     AUSTIN, TEXAS
                                                  Transmitted 1/16/2015 4:13:55 PM
                                                    Accepted 1/16/2015 4:20:36 PM
JANUARY 16, 2015
                                                                      ABEL ACOSTA
                           PD – 1652-14                                       CLERK

                              IN THE
                    COURT OF CRIMINAL APPEALS
                            OF TEXAS


                          GARY PARKER
                           PETITIONER

                                V.

                        THE STATE OF TEXAS
                           RESPONDENT


               PETITION FOR DISCRETIONARY REVIEW
                       OF DECISION BY THE
                  THIRTEENTH COURT OF APPEALS
                 IN APPEAL NUMBER 13-13-00128-CR



                   148TH DISTRICT COURT
                   NUECES COUNTY, TEXAS
            TRIAL COURT NUMBER 12-CR-2371-E(S1)
          HONORABLE JUDGE GUY WILLIAMS, PRESIDING


                                 VIRGINIA KOBLIZEK BURT
                                 Attorney at Law
                                 P.O. Box 717
                                 Sinton, Texas 78387
                                 (361) 877-2048
                                 virginiak.burt@gmail.com
                                 State Bar No. 00784411
                                 Attorney for GARY PARKER


                   ORAL ARGUMENT NOT REQUESTED
            CERTIFICATE OF PARTIES AND COUNSEL

       A complete list of the names and addresses of all parties to the
trial court’s final judgment and their counsel is as follows:


Appellant
Gary Parker
Last Known Address from
Texas Department of Criminal Justice


Counsel for the State of Texas
MS. COURTNEY HANSEN
SBOT NO. 2406819900
ASSISTANT DISTRICT ATTORNEY
901 Leopard, Rm. 206
Corpus Christi, Texas 78401
Phone: (361) 888-0410


Trial counsel for Appellant
MR. JAMES L. STORY
SBOT NO. 2400068
McLemore, Reddell, Ardoin & Story, P.L.L.C.
8128 Leopard Street
Corpus Christi, Texas 78409
Phone: (361) 883-5200

Appeal counsel for Appellant

Mrs. Virginia Koblizek Burt
Attorney at Law
SBN: 0784411
P.O. Box 717
Sinton, Texas 78387
virginiak.burt@gmail.com
Telephone: 361-877-2048




                                   2
                        TABLE OF CONTENTS


INDEX OF AUTHORITIES------------------------------------------------------ 5

CERTIFICATE OF PARTIES AND COUNSEL-----------------------------2

STATEMENT REGARDING ORAL ARGUMENT------------------------- 6

STATEMENT OF CASE----------------------------------------------------------6

STATEMENT OF PROCEDURAL HISTORY------------------------------ 6

GROUNDS FOR REVIEW ----------------------------------------------------- 7

GROUND ONE PRESENTED FOR REVIEW------------------------------8
FOR THE ADMISSIBILITY OF NEWLY DISCOVERED EVIDENCE,
IS THE THIRD PRONG OF THE KEETER TEST MEANT TO
STRICTLY AND NARROWLY DENY ANY IMPEACHABLE
EVIDENCE, EVEN IF THE NEW EVIDENCE EXONERATES THE
APPELLANT AND IS MATERIAL AND FAVORABLE TO THE
ACCUSED UNDER THE STATUTE? (RR v. 3, p. 24-35; RR v. 5, p.
12-32)

REASONS FOR REVIEW

      A. The Court of Appeals decision was in direct conflict
      with decisions of the Court of Criminal Appeals on the
      same issue under TEX.R.APP.P. 66.3(c)-------------------------7

      B. The court of appeals has so far departed from the
      accepted and usual course of judicial proceedings as to
      call for an exercise in supervision by this Court------------14

GROUND TWO PRESENTED FOR REVIEW-------------------------15




                                     3
AS AN EXCEPTION TO THE RULE, A PROSECUTOR MAY
VOUCH FOR THE CREDIBILITY OF A WITNESS ONLY IN A
DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, AND
THE RULE DOES NOT INVITE THE IMPROPER BOLSTERING OF
THE ENTIRE CAST OF THE STATE’S CASE-IN-CHIEF, WITH THE
PROSECUTOR IMPOSING HER PERSONAL BELIEFS THAT ALL
OF HER WITNESSES WERE CREDIBILE AND TRUTHFUL.
(RR v. 3, p. 73-82)

REASON FOR REVIEW

       A. The Court of Appeals decision was in direct conflict
       with decisions of the Court of Criminal Appeals on the
       same issue under TEX.R.APP.P. 66.3(c)------------------------15

PRAYER --------------------------------------------------------------------------21

CERTIFICATE OF SERVICE ------------------------------------------------22

CERTIFICATE OF COMPLIANCE------------------------------------------22

APPENDIX
Opinion from Thirteenth Court of Appeals issued November 13, 2014




                                         4
                          INDEX OF AUTHORITIES
Strickland v. Washington. 466 U.S. 668, 687 (1984)-------------------21

STATE CASES
COURT OF CRIMINAL APPEALS

Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014)----------------11

Chapman v. State, 503 S.W.2d 237 (Tex. Crim. App. 1974)---------18

Hammond v. State, 799 S.W.2d 741 (Tex. Crim. App. 1990)
    cert. denied 111 S.Ct 2912 (1991)----------------------------------20

Hernandez v. State, 726 S.W.2d 53(Tex. Crim. App. 1986)---------21

Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002)---------------11


COURT OF APPEALS

Flores v. State, 778 S.W.2d 526 (Tex. App. Corpus Christi, 1989)--19

Sepulveda v. State, 751 S.W.2d 667 (Tex. App. - Corpus Christi,
     1988, pet. ref’d)------------------------------------------------------------20

Thomas v. State, No. 01-11-00631-CR, 2013 WL 652719
    (Tex. App.—Houston [1st Dist.] Feb. 21, 2013, pet. ref’d)------18


STATUTES
Tex. Code Crim. Proc. Ann. Art. 40.001.----------------------------------10

Texas Penal Code, Section 22.01 -------------------------------------------5

Tex. R. App. P. 68.2(a)----------------------------------------------------------5



                                         5
TEX.R.APP.P. 66.3(c)-----------------------------------------------------------6

Tex.R.App.P.66.3(f).------------------------------------------------------------15


            STATEMENT REGARDING ORAL ARGUMENT

      Oral argument is waived.



                        STATEMENT OF THE CASE

      A jury convicted the appellant Gary Parker of the felony offense

of Assault (Family Violence by impeding breath or circulation) under

Section 22.01 of the Texas Penal Code, and further found beyond a

reasonable doubt that the Defendant has been previously convicted

of two felonies as alleged in the indictment and assessed the

Defendant's punishment at thirty-five (35) years in the Institutional

Division of the Texas Department of Criminal Justice. (CR p. 3)

              STATEMENT OF PROCEDURAL HISTORY


      The Thirteenth Court of Appeals affirmed this conviction in an

unpublished Memorandum Opinion delivered on November 13, 2014.

      No Motion for Rehearing was filed.




                                         6
     An extension of time to file this Petition for Discretionary

Review was granted and this petition will be timely filed if done on or

before January 14, 2014. See Tex. R. App. P. 68.2(a).




                      GROUNDS FOR REVIEW


GROUND ONE FOR REVIEW

FOR THE ADMISSIBILITY OF NEWLY DISCOVERED EVIDENCE,
IS THE THIRD PRONG OF THE KEETER TEST MEANT TO
STRICTLY AND NARROWLY DENY ANY IMPEACHABLE
EVIDENCE, EVEN IF THE NEW EVIDENCE EXONERATES THE
APPELLANT AND IS MATERIAL AND FAVORABLE TO THE
ACCUSED UNDER THE STATUTE?
(RR v. 3, p. 24-35; RR v. 5, p. 12-32)


REASONS FOR REVIEW

     A. The Court of Appeals decision was in direct conflict with
        decisions of the Court of Criminal Appeals on the same
        issue. TRAP 66.3


     B. The court of appeals has so far departed from the
     accepted and usual course of judicial proceedings as to
     call for an exercise in supervision by this Court under
     Tex.R.App.P.66.3(f).


GROUND TWO FOR REVIEW

AS AN EXCEPTION TO THE RULE, A PROSECUTOR MAY
VOUCH FOR THE CREDIBILITY OF A WITNESS ONLY IN A

                                   7
DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, AND
THE RULE DOES NOT INVITE THE IMPROPER BOLSTERING OF
THE ENTIRE CAST OF THE STATE’S CASE-IN-CHIEF, WITH THE
PROSECUTOR IMPOSING HER PERSONAL BELIEFS THAT ALL
OF HER WITNESSES WERE CREDIBILE AND TRUTHFUL.
(RR v. 3, p. 73-82)


REASON FOR REVIEW

      A. The Court of Appeals decision was in direct conflict with
         decisions of the Court of Criminal Appeals on the same
         issue. TRAP 66.3

ARGUMENT


                     GROUND ONE FOR REVIEW

FOR THE ADMISSIBILITY OF NEWLY DISCOVERED EVIDENCE,
IS THE THIRD PRONG OF THE KEETER TEST MEANT TO
STRICTLY AND NARROWLY DENY ANY IMPEACHABLE
EVIDENCE, EVEN IF THE NEW EVIDENCE EXONERATES THE
APPELLANT AND IS MATERIAL AND FAVORABLE TO THE
ACCUSED UNDER THE STATUTE?
(RR v. 3, p. 24-35; RR v. 5, p. 12-32)

                       REASONS FOR REVIEW

A. The Court of Appeals decision was in direct conflict with
decisions of the Court of Criminal Appeals on the same issue
under TEX.R.APP.P. 66.3(c).

      The Thirteenth Court of Appeal’s conclusion that Appellant’s

newly discovered evidence was merely impeachable, and thus failed

the third prong of the Keeter test for a new trial, is error.

Evidence Presented at the Motion for New Trial Hearing


                                     8
     The complainant and Appellant Parker have been in a

relationship on and off for the past 27 years and were legally married

at one time.   They are heavy drinkers and have both had a volatile

past together. Appellant’s verdict was based solely on the testimony

of the complainant who testified at trial that she was assaulted by

Parker and her injuries were so bad that the whole side of her face

turned black, and she was unable to work the next day. RR v. 3, p.

24. She told the jury, “[t]hey were – they was a lot darker the next

day, and then down my jaw line it was all dark and on this side of my

jaw. I couldn’t even – they wouldn’t let me work.” RR v. 3, p. 24.

She claimed that she went to work the next day, but had “to stay in

the classroom because my supervisor said that I had too many facial

injuries and my face was out to here”. RR v. 3, p. 25. She testified

that she was not allowed to perform her work duties because of her

injuries and was sent home. RR v. 3, p. 26, 29, 31, 35.

       However, Mr. Dane Smith, the complainant’s work supervisor,

testified at the motion for new trial hearing that he did not see any

injuries on the complainant on that day. RR v. 5, p. 12. He testified

that he never saw bruises on her face and at no time did he have to

send her home because of her injuries. RR v. 5, p. 16. He directly



                                  9
contradicted her testimony at trial. RR v. 5, 14-16. He testified that

all of the events that the complainant had claimed in the trial were

false. RR v. 5, p. 16.




                                  10
      Parker also offered the testimony of a former attorney who

represented him on a felony theft charge brought by the same

complainant.    RR v. 5, p. 36. The attorney testified that during his

investigation he found evidence showing that the complainant lied

about the theft charges against Parker.      The case was dismissed

when the complainant failed to appear at the trial.

Argument and Authority

      Appellant argues that the newly discovered evidence proves

the complainant lied on the stand about crucial elements of the case,

enough to doubt the integrity of the jury’s verdict, and a new trial

should have been granted.

      The law in Texas allows for a new trial where material evidence

favorable to the accused has been discovered since trial.” Tex. Code

Crim. Proc. Ann. Art. 40.001. (West, Westlaw through 2013 3d C.S.).

The courts will grant a new trial based on newly discovered evidence

if all four prongs of the test set out in Keeter are met. A party seeking

a new trial on the ground of newly discovered evidence must show

(1) the newly discovered evidence was unknown or unavailable to the

movant at the time of his trial; (2) the movant’s failure to discover or

obtain the evidence was not due to a lack of diligence, (3) the new



                                   11
evidence is admissible and is not merely cumulative, corrobative,

collateral, or impeaching; and (4) the new evidence is probably true

and will probably bring about a different result on another trial.

Keeter v. State, 74 S.W.3d 31,37 (Tex. Crim. App. 2002); see also

Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014).

      Under Keeter, the         new evidence must not be merely

cumulative, corrobative, collateral, or impeaching. Keeter v. State,

The ruling does not automatically excluded impeaching evidence as a

hard and fast rule, but only if it is merely impeachment evidence that

serves as material evidence favorable to the accused.


      The court of appeals relied on Carsner 1 to deny Appellant’s

relief, holding that the since “newly discovered evidence is based on

using this evidence solely to impeach the complainant, it fails the third

prong of the Carsner test.”         Carsner v. State, 444 S.W.3d 1

(Tex.Crim.App. 2014). It is not the Carsner test, but the Keeter test

that dictates the requirements for a new trial. Keeter v. State, 74

S.W.3d at 37. In Carsner, this Court merely sent the case back to the

court of appeals for failing to address every issue necessary to the


1
 “The new evidence must be admissible and must not merely be impeaching,
among other things.” Carsner, 2014 WL 4722762.

                                    12
disposition of the appeal, namely all of the four prongs set out in

Keeter.


     The court of appeals is misguided trying to use the holding in

Carsner as a catch-all to deny an appellant’s relief for any evidence

that is newly discovered, that may also tend to be impeachable. By

its’ very nature, any new evidence which tends to refute the charges

against an accused, it is inherently impeachable evidence as well. In

this case, the newly discovered evidence directly refutes a critical

element in the case and questions the integrity of verdict. The new

evidence tended to exonerate the appellant and fortify his defense

that he was innocent and the complainant was making another false

claim against him.


     Since the complainant’s false testimony was the sole basis for

the conviction, the fact that it may also be impeachable evidence

should not negate its’ significance.     Appellant’s Brief, p. 27.   The

new evidence is more than “merely impeachable” because it

substantiated, in a way no other evidence offered at trial did, the

appellant’s defense that the assault never occurred and the

complaintant’s accusations were false.



                                  13
     The court of appeals is deciding this case through the key hole

of a door and not grasping the larger legal significance of the new

evidence. The newly discovered evidence established the appellant’s

innocence and cooberated his defense, which he held throughout the

trial, that no assault had ever taken place, and the complainant had a

history of making false claims against him. The additional evidence

showing that the complainant had made false allegations about a

felony theft charge against the appellant in a previous case dismissed

the year before, was also coorabarating evidence that the charges

against the appellant were false. The trial court’s ruling denied the

appellant of evidence of a motive to fabricate the charges against him

and harm is shown.

     The appellant has been wrongly convicted of a false accusation

brought against him. The newly discovered evidence tended to prove

his innocence and also established proof that the complainant had

lied before in a previous case against the appellant that was rightly

dismissed. It would be illogical for Carsner to stand for the premise

that newly discovered evidence tending to prove an accused’s

innocence cannot withstand the third prong of the Keeter test if it also

serves as impeachment evidence as well.             Newly discovered



                                  14
evidence that tends to prove an accused’s innocence cannot be

systemically dismissed by Carson, just because it may also serve to

impeach the complaining witness’s testimony.               When the newly

discovered evidence establishes the appellant’s innocence, and

directly contradicts an essential element of the crime, it is a far cry

from being “merely impeachment evidence”. See Opinion, p. 4-5.

       A proper analysis of the new evidence should be conducted in

the spirit of the statute, “that a new trial shall be granted an accused

where material evidence favorable to the accused has been

discovered since trial”, and the appellant’s newly discovered evidence

tending to prove his innocence should be adequate for a new trial.

Tex. Code Crim. Proc. Ann. Art. 40.001 (West, Westlaw through 2013

3d C.S.); see also Keeter v. State, 74 S.W.3d at 37; see also Opinion

p. 2. In addition, the legal ramifications from the newly discovered

evidence make it more than likely that a different outcome could have

resulted in another trial, thus meeting the third and fourth prong of the

Keeter test. 2




2
 The court of appeals assumed that Parker established the first two prongs under
Carsner v. State, PD-0153-14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept.
24, 2014). Opinion, p. 4.

                                      15
B. The court of appeals has so far departed from the accepted
and usual course of judicial proceedings as to call for an
exercise in supervision by this Court under Tex.R.App.P.66.3(f).

     Under the specific circumstances of this case, the impossibility

that newly discovered evidence tending to prove the appellant’s

innocence is not enough for a new trial under the statute is a daunting

display of unsound legal reasoning and lack of judicial fair-

mindedness.

     Many cases have demonstrated the notion that newly

discovered evidence favorable to the accused should warrant a new

trial. See Appellant’s Brief, p. 19-26. The court of appeal’s denial of

any meaningful appellate review of Appellant’s legally preserved error

is so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise in supervision by this Court

under Tex.R.App.P.66.3(f).

       Texas statute dictates that a new trial shall be granted an

accused where material evidence favorable to the accused has been

discovered since trial.”   Tex. Code Crim. Proc. Ann. Art. 40.001.

(West, Westlaw through 2013 3d C.S.).         The facts of this case

illustrate that the new evidence was more than “merely impeachable”,

but had a direct impact on the jury’s verdict. The actions of the court


                                  16
of appeals is so far departed from the usual judicial proceedings that

the issue warrants a review by this Court under TEX.R.APP.P. 66.3(f)

and provides a compelling reason for granting appellants petition for

discretionary review.


                   GROUND TWO FOR REVIEW

AS AN EXCEPTION TO THE RULE, A PROSECUTOR MAY
VOUCH FOR THE CREDIBILITY OF A WITNESS ONLY IN A
DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, AND
THE RULE DOES NOT INVITE THE IMPROPER BOLSTERING OF
THE ENTIRE CAST OF THE STATE’S CASE-IN-CHIEF, WITH THE
PROSECUTOR IMPOSING HER PERSONAL BELIEFS THAT ALL
OF HER WITNESSES WERE CREDIBILE AND TRUTHFUL.
(RR v. 3, p. 73-82)
                    REASON FOR REVIEW


A. The Court of Appeals decision was in direct conflict with
decisions of the Court of Criminal Appeals on the same issue
under TEX.R.APP.P. 66.3(c).

     During final argument, the prosecutor made several improper

remarks to the jury about the veracity of the state’s witnesses that

constituted reversible error, and trial counsel failed to make an

objection each time the state improperly bolstered the witnesses.

The State only called three witnesses in the case-in-chief: the

arresting officer, the investigating detective and the victim. During

closing argument, the prosecutor improperly commented on the



                                  17
veracity of every witness, including the complainant. The prosecutor

improperly attached her personal belief to the truthfulness of each

witness, and the effect was to unlawfully bolster the credibility of the

witnesses with unsworn testimony.

         The prosecutor’s remarks went unchecked as she argued to the

jury that the police officer had “no reason to tell you a lie” and “[h]e

has absolutely nothing to gain from coming in here and saying that,

because his job is on the line. There's no reason for him to lie about

that”.

         The prosecutor also commented, without objection, on the

veracity of the detective in the case, arguing “[a]nd she didn't lie to

you today. She didn't say that she remembered it when she didn't.

She just was honest with you and straightforward”.

         More significantly, the prosecutor gave her opinion before the

jury that the complainant “was honest with you about [her testimony]”.

RR v. 3, p. 76, line 12-16. [emphasis added]

         Appellant alleged ineffectiveness based on his counsel’s failure

to object to the prosecutor’s comments in closing argument bolstering

the credibility of the State’s witnesses. Appellant was prejudiced by

his counsel’s failure to object after the prosecutor improperly injected



                                     18
her personal opinion by vouching for the credibility and truthfulness of

every witness in the state’s case-in-chief during final argument. The

prosecutor’s comments were so prejudicial that they warranted a

reversal without a showing of harm.

      In this case, the court of appeals denied Appellant’s relief and

relied on Thomas to conclude that the the improper comments were

made in direct response to allegations by the defendant, and

therefore an exception could be made to the rule. Thomas v. State,

No. 01-11-00631-CR, 2013 WL 652719, at *8 (Tex. App.—Houston

[1st Dist.] Feb. 21, 2013, pet. ref’d); Chapman v. State, 503 S.W.2d

237, 238 (Tex. Crim. App. 1974) (While “it is ordinarily improper for a

prosecutor to vouch for the credibility of a witness during [her]

argument, . . . if the argument in question was invited by argument of

appellant's attorney, and was in reply thereto, no reversible error is

shown”).

      Appellant’s case can be distinguished from these cases, in that

the prosecutor in both Thomas and Chapman did not impose their

personal beliefs on the jury regarding the veracity of every witness in

the state’s case. It is one thing to allow a prosecutor to vouch for a

witness’s credibility in response to a direct negative attack on their



                                   19
truthfulness.    However, there is no legal justification for the

prosecutor to bolster every witness in her case-in-chief with her

personal opinions and beliefs regarding all of the witnesses

credibility. This distinction can be made from the cases relied on by

the state, wherein the prosecutor was able to vouch for the credibility

of a particular witness without imposing their personal opinions and

beliefs on the jurors.

      In Appellant’s case the prosecutor did more than just vouch for

the credibility of a witness. The prosecutor imposed her personal

beliefs before the jury, bolstering the credibility of every witness for

the state, even though she could have denounced the appellant’s

claims without imposing her personal beliefs.        The prosecutor’s

improper bolstering was especially harmful to Appellant because his

conviction was based solely on the testimony of the complainant.

See Flores v. State, 778 S.W.2d 526 (Tex. App. Corpus Christi,

1989)( The case was reversed for improper argument by the

prosecutor where the prosecutor argued that the state would not have

brought the case if the victim‘s testimony was not true. The error was

not harmless beyond a reasonable doubt where the victim’s

testimony was the only evidence against the defendant. ); see also



                                  20
Sepulveda v. State, 751 S.W.2d 667 (Tex. App. - Corpus Christi,

1988, pet. ref’d)

      Although this Court allows some leeway for the prosecution to

vouch for the credibility of a witness in a direct response invited by

the appellant’s argument, it does not allow for a free-for-all bolstering

of the state’s entire cast of witnesses in its case-in-chief. In this case,

the prosecutor did more than just vouch for the credibility of a witness

in her argument. The prosecutor bolstered the testimony of every

witness in the state’s case-in-chief with her personal beliefs, which

was not a proper reply to any arguments made by the defense.

      Appellant received ineffective assistance of counsel where

counsel failed to object to the prosecutor’s expressing his opinion of

each witness’s credibility. The prosecutor’s argument, at the very

least, would have required an instruction to disregard. Hammond v.

State, 799 S.W.2d 741 (Tex. Crim. App. 1990) cert. denied 111 S.Ct

2912 (1991)(Error was harmless, and the conviction was affirmed

where there was prompt instruction to disregard and the evidence

against the defendant was “fairly compelling”). Under the Hammond

analysis, in this case there was no prompt instruction to the jury to

disregard and the evidence against the appellant was by no means



                                    21
“fairly compelling”.   In fact, in Appellant’s case, the complainant’s

testimony was the sole basis for his conviction, and there was

evidence that she had made false claims against him in the past.

      The prosecutor’s imposition of her personal beliefs regarding

the credibility of all of the witnesses in her case-in-chief was not

invited by Parker’s counsel, the remarks were improper, and the court

of appeals erred in holding that counsel’s failure to object to the

admission of the testimony was deficient. Thus, the first prong of

Strickland has been satisfied that defense counsel’s performance

was deficient and Appellant showed that his counsel made errors so

serious that counsel was not functioning at an objective standard for

adequate legal representation guaranteed by the Sixth Amendment.

Strickland v. Washington. 466 U.S. 668, 687 (1984); see Hernandez

v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc)

(adopting Strickland as applicable standard under the Texas

Constitution).

      The end result reveals that Appellant’s conviction was based on

false testimony that the state capitalized on during final argument.

Since the victim’s credibility was crucial to the case, the error was not




                                   22
harmless, and the improper jury argument requires a reversal of

Appellant’s conviction, for which he is entitled to a new trial.


                                PRAYER

      WHEREFORE PREMISES CONSIDERED, the Petitioner prays

that this Honorable Court grant discretionary review of the decision of

the Court of Appeals herein and that the Judgment of the Court of

Appeals and Trial Court be reversed and the indictment and

prosecution against Petitioner herein be dismissed or this cause be

remanded for a new trial.

                                     RESPECTFULLY SUBMITTED,

                                     /s/Virginia Koblizek Burt
                                     VIRGINIA KOBLIZEK BURT
                                     Attorney at Law
                                     P.O. Box 717
                                     Sinton, Texas 78387
                                     361-877-2048
                                     virginiak.burt@gmail.com
                                     SBN: 00784411
                                     ATTORNEY FOR GARY PARKER




                                    23
                     CERTIFICATE OF SERVICE

      I, Virginia K. Burt, do hereby certify that the Petition for

Discretionary Review was e-filed on this the 14th day of January

2015, along with copies mailed regular mail, to the clerk of the Texas

Court of Criminal Appeals and a copy delivered to the Nueces County

District Attorney’s office, Appellate Section, and a copy mailed to the

TDCJ address of the Petitioner, Gary Parker.

                              /s/Virginia Koblizek Burt
                              VIRGINIA KOBLIZEK BURT




                 CERTIFICATION OF COMPLIANCE

      Now comes counsel of record, Virginia K. Burt, for the Appellant,
GARY PARKER, in the above styled and numbered cause, and hereby
certifies that counsel is in compliance with Texas Rules of Appellate
Procedure 9.4(i)(3), and I certify that the number of words in this
petition, excluding those matters listed in Rule 9.4(k)(1) is 2, 989.


                                     /s/ Virginia K. Burt
                                     VIRGINIA K. BURT




                                    24
                            NUMBER 13-13-00128-CR

                                COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG

                              GARY PARKER, Appellant,

                                                 v.

                         THE STATE OF TEXAS, Appellee.

                    On appeal from the 148th District Court

                               of Nueces County, Texas.


                            MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Rodriguez

        Appellant Gary Parker challenges his conviction for family violence assault by

impeding breath or circulation, a third-degree felony.1 See TEX. PENAL CODE ANN. §

1 Because   this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic

reasons for it. See TEX. R. APP. P. 47.4. 2




                                                 25
22.01(b)(2)(B) (West, Westlaw through 2013 3d C.S.). The jury returned a guilty

verdict. For enhancement purposes, the jury found that Parker was a habitual felony

offender, see id. § 12.42 (West, Westlaw through 2013 3d C.S.), and sentenced him

to thirty-five years in the Institutional Division of the Texas Department of Criminal

Justice. By four issues, Parker contends: (1) the trial court abused its discretion in

denying his motion for new trial based on newly discovered evidence; (2) the State’s

witness Jacqueline Luckey was not qualified as a fingerprint expert; (3) the

prosecutor’s closing argument constituted reversible error; and (4) trial counsel

provided ineffective assistance. We affirm.

I. MOTION FOR NEW TRIAL

By his first issue, Parker contends that the trial court abused its discretion when it

denied his motion for new trial because newly discovered evidence proved that the

complainant gave false testimony at trial about her injuries.

A. Applicable Law and Standard of Review

“A new trial shall be granted an accused where material evidence favorable to the

accused has been discovered since trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001

(West, Westlaw through 2013 3d C.S.). In order to be entitled to a new trial on the

basis of newly discovered evidence, the defendant must satisfy the following four-

pronged test:

(1) the newly discovered evidence was unknown or unavailable to the defendant at

the time of trial;

(2) the defendant's failure to discover or obtain the new evidence was not due to the

defendant's lack of due diligence;

(3) the new evidence is admissible and not merely cumulative, corroborative,

collateral, or impeaching; and, 3


                                           26
27
(4) the new evidence is probably true and will probably bring about a different result

in a new trial.

Carsner v. State, PD-0153-14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept. 24,

2014). “Motions for new trials on grounds of newly discovered evidence are not

favored by the courts and are viewed with great caution.” Drew v. State, 743 S.W.2d

207, 225 (Tex. Crim. App. 1987) (en banc); see Moreno v. State, 1 S.W.3d 846,

852–53 (Tex. App.—Corpus Christi 1999, pet. ref’d).

An appellate court reviews a trial court's denial of a motion for new trial for an abuse

of discretion, reversing only if the trial judge's opinion was clearly erroneous and

arbitrary. A trial court abuses its discretion if no reasonable view of the record could

support the trial court's ruling. This deferential review requires the appellate court to

view the evidence in the light most favorable to the trial court's ruling. The appellate

court must not substitute its own judgment for that of the trial court and must uphold

the trial court's ruling if it is within the zone of reasonable disagreement.

Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); see Celis v. State, 354

S.W.3d 7, 21 (Tex. App.—Corpus Christi 2011), aff’d, 416 S.W.3d 419 (Tex. Crim.

App. 2013).

B. Discussion

1. Evidence Presented at the New-Trial Hearing

Dane Smith, the complainant’s work supervisor, testified at the new-trial hearing that

he did not see any significant injuries on the complainant when she came to work the

day after the alleged assault. Parker asserts that this testimony directly contradicts

the following trial testimony of the complainant: “[My face] was a lot darker the next

day, and then down my jaw line it was all dark and on this side of my jaw. I couldn’t

even—they wouldn’t let me work.” Parker argues that this newly discovered


                                            28
evidence proved the complainant lied on the stand, specifically about not going to

work the day following the 4




                                         29
incident and about the seriousness of her injuries.

Parker also offered the testimony of a former attorney who represented him on a

felony theft charge brought by the same complainant. The attorney testified that

during his investigation he found evidence showing that the complainant lied about

the theft charges against Parker. The case was dismissed when the complainant

failed to appear at the trial.2

2 Parker   also asserts that Robin Cassel, a detective with the Corpus Christi Police Department

Family Violence Unit, provided testimony establishing that the complainant lied about her injuries.

However, the State offered this referenced testimony during the trial of this case. It was not

evidence that Parker discovered since trial. See TEX. CRIM. PROC. CODE ANN. art. 40.001 (West,

Westlaw through 2013 3d C.S.). So we will not consider it in our review.

3 Because    our discussion of the third and fourth prongs of the Carsner test are dispositive of this

issue, we will assume without deciding that Parker established the first two prongs. See Carsner

v. State, PD-0153-14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept. 24, 2014).

2. Carsner’s Third Prong3

“The rule is well settled that a new trial will not be granted for newly[ ]discovered

evidence to impeach a witness.” Grate v. State, 23 Tex. App. 458, 5 S.W. 245, 245–

46 (Tex. App. 1887, no pet.). The court of criminal appeals recently repeated this

proposition in the third prong of its test for admitting newly discovered evidence—the

new evidence must be admissible and must not merely be impeaching, among other

things. Carsner, 2014 WL 4722762, at *2; see Strong v. State, 138 S.W.3d 546, 556

(Tex. App.—Corpus Christi 2004, no pet.) (“His only arguments for the admission of

the evidence were based on using it to impeach or corroborate. This fails the third

prong of the [Carsner] test . . . .”); see also Willingham v. State, 897 S.W.2d 351,

358 (Tex. Crim. App. 1995) (en banc) (“Impeachment of a witness means adducing




                                                   30
proof that such witness is unworthy of belief or credit.”). So to the extent Parker’s

argument for the admission of 5




                                           31
the newly discovered evidence is based on using this evidence solely to impeach the

complainant, it fails the third prong of the Carsner test. See Carsner, 2014 WL

4722762, at *2.

3. Carsner’s Fourth Prong

“[W]hen the newly discovered testimony, although tending to discredit or impeach a

witness, is material and competent independent of its impeaching tendency .      ..,

the fact that the testimony also impeaches a witness does not deprive the accused in

a proper case of the right to a new trial.” Hale v. State, 51 S.W.2d 611, 613 (Tex.

Crim. App. 1932); see Lawson v. State, 206 S.W.2d 608, 609 (Tex. Crim. App. 1947)

(op. on reh’g) (per curiam); see also TEX. CRIM. PROC. CODE ANN. art. 40.001. So if

the fourth prong of the Carsner test is established—that the new evidence is

probably true and will probably bring about a different result in a new trial,

independent of impeachment—then the evidence is more than merely impeaching.

See Carsner, 2014 WL 4722762, at *2; see also TEX. CRIM. PROC. CODE ANN. art.

40.001.

Addressing this fourth prong, Parker contends that the new evidence has been

shown probably to be true; that there is nothing in the record to give reason to doubt

the credibility of the supervisor whose testimony constituted the majority of the new

evidence. And Parker asserts that the circumstances in this case make it very likely

that the new evidence would have resulted in a different outcome. Being mindful that

a new trial will be granted when the newly discovered evidence is material and

competent, independent of its impeaching tendency, see Hale, 121 Tex. Crim. at 368,

51 S.W.2d at 613; see also TEX. CRIM. PROC. CODE ANN. art. 40.001, we still cannot




                                           32
conclude that this new evidence, even if true, would probably bring about a different

result in a new trial. See Carsner, 6




                                          33
2014 WL 4722762, at *2.

The complainant testified at trial that after Parker hit her “in the head, the eyes, [and]

mouth” with “[h]is fist,” and was choking her, she blacked out. The complainant then

answered the following questions asked by the State:

Q. What's the first thing you remember when you woke up?

A. Coming to and Mr. Parker had his hands around my throat and telling me to get

up and calling me vicious names, and he just kept punching and choking me and

kicking me and—maybe after he did that I was like just sitting there trying to get my

breath and stuff because I was shortness [sic] of breath and real dizzy.

....

Q. Now, what—he used his hand and put it around your throat; is that right?

A. Yes. Uh-huh.

Q. And how many—did he use both hands or one?

A. Yes, both hands, because he was like just shaking me like a rag doll on the couch

with both his hands.

Q. So, did he put pressure on your throat?

A. Yes. Uh-huh.

Q. Did that hurt?

A. Yes.

Q. Now, did that impede your normal breathing whenever that occurred?

A. Yes, it did.

Q. And can you tell the jury a little bit about how that felt?

A. Well, I had to like gasp for air, and when I finally got away from him—and then I

just—like I started like hiccupping, but not—it wasn't 7




                                            34
35
hiccupping. It was just like probably gaping (sic) for air but really bad.

....

Q. Okay. Now, in this [911] recording were you crying?

A. Yes, but I could hardly talk. It was—it was very difficult to talk, and I couldn't even

remember my address, that's how shook up—and my head was hurting so bad . . .

and my throat.

....

Q. I'd like to go back over—to go back to whenever the Defendant was choking you.

Can you demonstrate to the jury with your hands how his hands were on your neck?

A. He just had ahold of me like this, and I was like laying down on the couch, and he

was just choking me and banging my head around like that.

Q. So you're indicating that he had both hands around your neck?

A. Yes.

Q. Do you know how long you couldn't breathe?

A. I don't know, three to five minutes, something like that. That's about how long he

was—started choking on me and choking on me. And this side of my neck, right here,

it—it hurt the worst on this side over here because—I don't—I don't know why, but it

was just—had a big knot and stuff right here on this side of my neck right in there.

Q. Okay. Now I'd like to talk about some of the injuries that you sustained from the

attack. . . . Do you see any injuries on that picture [State’s Exhibit 4]?

A. Yes. Right here in my neck area, right there, and then my eye, and then there was

a lump right there on my head. . . . See, there's the knot on my neck, right there,

from him choking me. I don't know if you can see that right in there, and then like—

he had my—he had handprints right there on the side, right there by my hair.




                                            36
Q. I'm holding up State's Exhibit 2, do you want to indicate on here for the jury where?

8




                                          37
A. Okay. That's the knot on my neck, right here, and then there was hand marks

right in through here where my hair is right there.

In addition, when the trial court admitted a photograph of the complainant’s face and

neck as a trial exhibit, Officer Mario Olivares, a police officer with the Corpus Christi

Police Department who responded to the domestic disturbance call, testified that it

depicted “some of the redness to the [complainant’s] neck area.” When asked to

describe what he saw when he looked at the victim’s neck, Officer Olivares replied,

“We noticed some redness around her neck area and what would look to be some

purplish markings also.”

Parker was convicted of family violence when he intentionally, knowingly, or

recklessly caused bodily injury to his former wife by impeding her normal breathing

or circulation of the blood by applying pressure to her throat or neck or by blocking

her nose or mouth. See TEX. PEN. CODE ANN. § 22.01(b)(2)(B). In light of the

evidence that Parker caused bodily injury to the complainant by impeding her normal

breathing by applying pressure to her throat or neck, we cannot conclude that the

evidence regarding the complainant’s facial bruising or the timing of her return to

work would likely have produced a different outcome, independent of its impeaching

tendency. See Carsner, 2014 WL 4722762, at *2. Neither the absence of additional

bruising on the complainant’s face nor a different date when she returned to work

would change any aspect of the trial testimony regarding the bruising on the

complainant’s neck.

4. Summary

Because a motion for new trial on grounds of newly discovered evidence is not

favored by the courts and is viewed with great caution, see Drew, 743 S.W.2d at 225;

9


                                            38
39
Moreno, 1 S.W.3d at 852–53, and because we must view the evidence in the light

most favorable to the trial court's ruling and not substitute our own judgment for that

of the trial court, see Riley, 378 S.W.3d at 457; Celis, 354 S.W.3d at 21, we

conclude that Parker has not shown that the trial court abused its discretion in

denying his new-trial motion. Its ruling was well within the zone of reasonable

disagreement. See Riley, 378 S.W.3d at 457; Celis, 354 S.W.3d at 21. We overrule

Parker’s first issue.

II. QUALIFIED FINGERPRINT EXPERT AT THE PUNISHMENT PHASE

By his second issue, Parker argues that the evidence was insufficient to prove that

he was the same person who had been convicted in the prior convictions relied upon

by the State for enhancement purposes without a qualified expert to properly match

his fingerprints. Based on Parker’s arguments, we construe this issue as a challenge

to the qualifications of Luckey, an identification clerk with the Identification Section of

the Nueces County Sheriff’s Office, whom the State presented as its fingerprint

expert.

Parker’s indictment contains two enhancement paragraphs pleading two prior felony

convictions—both in Texas for driving while intoxicated. See TEX. PENAL CODE ANN.

§ 12.42(d). During the punishment phase of the trial, the State offered into evidence

penitentiary (pen) packets related to these prior offenses. Luckey testified that the

fingerprints in the packets matched fingerprints she took from Parker. Defense

counsel objected to the admission of one of the pen packets and asked to take

Luckey on voir dire. After the voir dire examination, Parker objected that Luckey had

not been qualified as an expert. The trial court overruled Parker's objection.

A. Applicable Law and Standard of Review

“If scientific, technical, or other specialized knowledge will assist the trier of fact to 10


                                             40
41
understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education may testify thereto in

the form of an opinion or otherwise.” TEX. R. EVID. 702.

Thus, before admitting expert testimony under [r]ule 702, the trial court must be

satisfied that three conditions are met: (1) the witness qualifies as an expert by

reason of his knowledge, skill, experience, training, or education; (2) the subject

matter of the testimony is an appropriate one for expert testimony; and (3) admitting

the expert testimony will actually assist the fact-finder in deciding the case.

Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). “These conditions

are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Vela v.

State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). “Qualification is distinct from

reliability and relevance and, therefore, should be evaluated independently.” Id.

“Because the possible spectrum of education, skill, and training is so wide, a trial

court has great discretion in determining whether a witness possesses sufficient

qualifications to assist the jury as an expert on a specific topic in a particular case.”

Rodgers, 205 S.W.3d at 527–28; see Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim.

App. 2000); see also TEX. R. EVID. 702; Harrison v. State, No. 2-02-339-CR, 2003

WL 21513618, at *3 (Tex. App.—Fort Worth July 3, 2003, no pet.) (mem. op., not

designated for publication). “For this reason, appellate courts rarely disturb the trial

court’s determination that a specific witness is or is not qualified to testify as an

expert.” Rodgers, 205 S.W.3d at 528 n.9; Wyatt, 23 S.W.3d at 27. “In any event, the

appellate court must review the trial court’s ruling in light of what was before that

court at the time the ruling was made.” Rodgers, 205 S.W.3d at 528–29. 11




                                            42
B. Qualification

At the time the trial court ruled that Luckey was an expert in the field of fingerprinting,

the State had established the following:

• Luckey had been comparing fingerprints as an identification clerk in the

Identification Section of the Nueces County Sheriff’s Office since 1991;

• Luckey’s daily duties included comparing inked fingerprints;

• Over the past nineteen years, she was trained by Lieutenant Fred Flores who had

both national and state experience regarding fingerprint identification, working in

fingerprinting for over thirty-five years, and receiving FBI and DPS training in that

area;

• In 1993, Luckey took a forty-hour “Basic Fingerprints” course taught by Charles

Parker, the supervisor of the fingerprint section of the Corpus Christi Police

Department;

• Luckey is a member of the International Association for Identification;

• Prior to this trial, Luckey had testified twenty to twenty-five times as an expert in the

area of fingerprint identification;

• Since 1991, Luckey received training every day at work; and

• Luckey compared thousands of fingerprints over the course of her identification job.

Luckey also testified that “[a] fingerprint is identification of a person,” and that she

had never found two people to have the same fingerprint. Luckey specialized in the

area of inked prints, which she described as an ink impression taken off an ink pad

and rolled onto the paper. When asked to explain the science of identifying or

comparing 12




                                            43
fingerprints, Luckey responded,

First of all you’ve got to find [a pattern—find] out if it’s a loop, a whirl, or a tentative

arch or just an arch. . . . Then you start looking at the similarities. . . . And then once

you find that, then you go from there to see what—you know, the ending ridge, the

bifurcations, and the loops and the patterns of it. . . . Then after that, you start

looking at the —you know, the same points at the same time on the print. . . . You

can go up as high as 15 or 20 [points on a fingerprint] if you want.

Luckey agreed that this method of fingerprint comparison is generally accepted

within the scientific community.

On cross-examination, when asked if she had been trained by the FBI or the State of

Texas DPS, Luckey responded, “No.” Luckey explained that “[t]he core is the middle

of [the print]” and “[a] delta is where you start counting your ridges to the core of your

print.” She did not know the definition of a “Galton point.” Luckey explained that she

compared the patterns of the prints to determine whether one print matched another.

Because the special knowledge that qualifies a witness to give an expert opinion

may be derived from specialized education, practical experience, a study of technical

works, or a combination of these things, see TEX. R. EVID. 702; Wyatt, 23 S.W.3d at

27, based on this evidence, we cannot conclude that the trial court abused its

discretion when it permitted Luckey to testify as a fingerprint expert. We overrule this

portion of Parker's second issue.

C. Reliability and Relevance

While conceding that “since the use of fingerprint comparisons is a recognized

method of proving the defendant is the person who committed the previous crimes,

[he] is contesting [only] . . . the qualifications of the expert,” Parker nonetheless




                                              44
appears to argue that Luckey's fingerprint testimony was neither reliable nor relevant.

See Vela, 13




                                          45
209 S.W.3d at 131. Specifically, Parker complains that Luckey failed to follow proper

procedure for identifying Parker when she only matched Parker’s fingerprints that

she took the morning of trial to the “known print” and not to the fingerprints in each of

judgments from the pen packs.4

4 Luckey testified that she did not compare the prints on the judgments with the one she took the morning of trial, but that

she did make the following comparison:




                                                            46
All those judgments that he has, right, the known print, I checked them to that, all of them, at 9:00

o’clock when I got here. And then, when I—I mean, I fingerprinted him, I just went and compared

them to my known prints that I had, since I had already compared them with those.

To preserve a complaint for our review, a party must have presented to the trial court

a timely request, objection, or motion stating the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion.

TEX. R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App.

1998) (op. on reh'g) (en banc). And the trial court must have ruled on the request,

objection, or motion, either expressly or implicitly, or the complaining party must

have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Taylor v.

State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996) (en banc). “The legal basis of a

complaint raised on appeal cannot vary from that raised at trial.” Heidelberg v. State,

144 S.W.3d 535, 537 (Tex. Crim. App. 2004).

Parker did not object at trial on the ground that Luckey's fingerprint testimony was

unreliable. He did not object that it was not relevant. His only objection to Luckey’s

testimony and to the exhibits admitted in support of that testimony was that she was

not qualified as an expert in the field of fingerprinting. See id. And even had he

objected on the basis of reliability or relevance, we find no trial court ruling, either

express or 14




                                                 47
implied, on such an objection. See Taylor, 939 S.W.2d at 155. Parker did not

preserve in the trial court any reliability or relevancy complaints for our review. See

TEX. R. APP. P. 33.1(a)(1); Heidelberg, 144 S.W.3d at 537; Mosley, 983 S.W.2d at

265. We overrule the remaining portion of Parker's second issue.

III. IMPROPER BOLSTERING DURING THE PROSECUTOR’S CLOSING ARGUMENT

AT THE GUILT/INNOCENCE PHASE

In his third issue, Parker complains that the prosecutor improperly bolstered the

State’s witnesses during closing argument. In sum, Parker asserts the following:

In this case, the State called three witnesses in its’ [sic] case-in-chief: the arresting

officer, the investigating detective and the victim. In final argument, the prosecutor

was allowed to improperly comment on the veracity of every witness who testified in

the [S]tate’s case, including the [complainant]. The prosecutor was allowed to attach

her personal belief to the credibility of each witness, and the effect was to bolster the

credibility of the witnesses with unsworn testimony, which is improper.

In order to preserve error relating to improper jury argument, a defendant must

object to the jury argument about which he complains and pursue his objection to an

adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc)

(holding that a “defendant's failure to object to a jury argument . . . forfeits his right to

complain about the argument on appeal”); Martinez v. State, 951 S.W.2d 55, 59 (Tex.

App.—Corpus Christi 1997, no pet.); see TEX. R. APP. P. 33.1(a). Parker

acknowledges that he did not object to these arguments at trial.

Because Parker failed to object to these statements made by the prosecutor during

closing argument, he preserved nothing for our review. We overrule Parker’s third

issue.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL


                                             48
By his fourth issue, Parker contends that his trial counsel provided ineffective 15




                                          49
assistance when he failed to object to the prosecutor’s closing argument regarding

the credibility of the State’s witnesses. The State responds that defense counsel was

not ineffective because the prosecutor’s argument was responsive to the argument

presented by Parker’s trial counsel and therefore permissible. We agree with the

State.

A. Applicable Law and Standard of Review

Proper jury argument generally falls within one of the following areas: (1) summation

of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument

of opposing counsel; and (4) plea for law enforcement. Brown v. State, 270 S.W.3d

564, 750 (Tex. Crim. App. 2008). When examining challenges to a jury argument, a

reviewing court must consider the complained-of argument in the context in which it

appears. Gonzalez v. State, 337 S.W.3d 473, 483 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d). And while “it is ordinarily improper for a prosecutor to vouch for the

credibility of a witness during [her] argument, . . . if the argument in question was

invited by argument of appellant's attorney, and was in reply thereto, no reversible

error is shown.” Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim. App. 1974);

see Thomas v. State, No. 01-11-00631-CR, 2013 WL 652719, at *8 (Tex. App.—

Houston [1st Dist.] Feb. 21, 2013, pet. ref’d) (same).

We review ineffective assistance of counsel claims under the two-pronged test

articulated in Strickland v. Washington. 466 U.S. 668, 687 (1984); see Hernandez v.

State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc) (adopting Strickland as

applicable standard under the Texas Constitution). The first prong of the Strickland

test requires a showing that counsel's performance was deficient, which requires a

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

counsel 16


                                           50
51
guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The second prong

of the Strickland test requires a showing that counsel's deficient performance

prejudiced the defense, which requires a showing that counsel's errors were so

serious as to deprive the defendant of a fair trial. Id. “To successfully assert that trial

counsel's failure to object amounted to ineffective assistance, the [appellant] must

show that the trial judge would have committed error in overruling such an

objection.” Ex parte Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011); Thomas,

2013 WL 652719, at *9 (“The failure to object to argument that is not improper does

not constitute ineffective assistance of counsel.”).

B. Closing Argument

The prosecutor for the State opened the closing arguments at the guilt/innocence

phase by emphasizing the elements of the offense and the evidence that established

those elements. Parker's trial counsel spoke next. In his closing argument, Parker's

counsel questioned the credibility of the complainant and of the police officers who

testified at trial. He began his argument by stating that “[the complainant’s] testimony

is not supported by the physical evidence.” He referred to this case as one in which

“someone is going to take the stand and either exaggerate, grossly exaggerate, or

lie . . . .” After arguing that the photographs neither represented nor supported the

complainant’s testimony and that Detective Robin Cassel, a detective with the

Corpus Christi Police Department Family Violence Unit, testified that she saw the

complainant four days after the incident for reporting purposes and “didn’t notice . . .

anything about her,” trial counsel explained that he wanted the jury “to see that [the

complainant] is shading her testimony. She’s . . . making things up.” He argued that

“hammering on 17




                                            52
53
this” was “the only way that [he would be] able to show [the jury] that [the

complainant] is incredible. Her testimony is not to be believed. She is grossly

exaggerating and/or making it up.”

Trial counsel also argued that “when [the complainant] went in to see Detective

Cassel four days later, okay, that’s time enough for those bruise[s] to come up, . . .

but Cassel, she testified she didn’t notice anything, you know, anything about her.

Cassel didn’t think to take any pictures of her because there was nothing there.” In

closing, trial counsel also urged that Officer Olivares, while trying to do the right thing,

appeared to have “bolstered his testimony a little bit” when he testified about the

photographs by saying, “Oh, yeah, [the injuries] looked worse in person.”

In response, the prosecutor argued, in relevant part:

When you-all go back and make the difficult decision to determine what happened

that day, I'm asking you to keep three things in mind: First, the victim is not on trial

today. The Defendant over there is on trial for what happened that day. Secondly,

the police work is not on trial. Although the police work is what brings you the

evidence here today, just because we don't have every single piece of what we

might have wanted does not mean that a crime did not occur, and we shouldn't

penalize that victim for what a police officer may or may not have done. Additionally,

the victim doesn't choose when and where they're [sic] assaulted. This victim didn't

know she was going to be assaulted that night and had been drinking in her home,

which she is allowed to do. If she had known that she was going to be assaulted,

she might not have been drinking. However, those are the facts of this case and

that's what happened that night, and she was honest with you about that. So, I want

you to keep all those things in mind when you're trying to figure out what really

happened that night.


                                            54
Now, let's talk about some of these injuries. The only thing that the Defendant is on

trial here for today, but you've got to hear about everything, because everything

happened that day, is choking. You heard from the officers [sic], who has absolutely

nothing—no reason to tell you a lie, that he saw bruising in those pictures, but he

also told you it's hard to see in those pictures, because when it's red and when you

first have a bruise, they don't always photograph very well. He told you that. [Officer

Olivares] 18




                                           55
has absolutely nothing to gain from coming in here and saying that, because his job

is on the line. There's no reason for him to lie about that. So, defense counsel's

insinuation that he's bolstering is honestly just ludicrous. He's here saying what he

saw what happened that day because that's his job, and he doesn't want to lose his

job. Additionally, you also heard testimony that you don't even often have these

marks on choking victims. This is something that is good.

(Emphasis added.)

Later, in response, the State made the following reference to Detective Cassel:

Now, Detective Cassel said that [s]he did not recall if there were any injuries.[ 5] That

doesn't mean there weren't any, that means [s]he has no recollection whether or not

there were or there weren't, so I just wanted to be clear on that point. Detective

Cassel didn't remember. Her job is more, as she told you, to take the case, put it

together, and present it to the District Attorney's office. That's not her main focus.

Her main focus is making sure all that evidence is collected. And she didn't lie to you

today. She didn't say that she remembered it when she didn't. She just was honest

with you and straightforward and said, "You know what, I don't remember one way or

the other."
5 During direct examination at trial, the following relevant exchange occurred between the State and Detective Cassel:

Q. Did—when the victim, or when [the complainant] came in and talked with you on the 17th, I

believe—

A. 18th.

Q. —18th, were you able to observe any injuries at that time?

A. I don't recall seeing any injuries, but I remember she did tell me that.

Q. We can't get into anything that she specifically told you.

A. I don't remember seeing any injuries on her.

Q. Okay.



                                                                        56
(Emphasis added.)

C. Discussion

Now on appeal, Parker alleges that counsel’s representation was ineffective 19




                                        57
because he failed to object to portions of the prosecutor's comments in her

responsive closing argument, which concerned the credibility of the State’s

witnesses. The italicized statements above, about which Parker complains, include

the following: (1) “[the complainant] was honest with you about that.”; (2) “[Officer

Olivares] has absolutely nothing to gain from coming in here and saying that,

because his job is on the line. There's no reason for him to lie about that.”; and (3)

“[Detective Cassel] just was honest with you and straightforward.” Parker contends

that these inappropriate remarks improperly bolstered witness testimony. He asserts

that “their cumulative effect was outrageous and especially harmful.”

When the complained-of comments are read in context, however, each of the State's

arguments that a witness was credible responded to a credibility argument made by

Parker's counsel. See Chapman, 503 S.W.2d at 238; Gonzalez v. State, 337 S.W.3d

at 483. Because the State's responsive arguments were invited by Parker’s counsel,

they were not improper, and the trial court would not have committed error in

overruling such an objection. See Chapman, 503 S.W.2d at 238; McDuffie, 854

S.W.2d at 216–17; see also Martinez, 330 S.W.3d at 900. Based on this analysis,

counsel’s failure to object to the admission of this testimony was not deficient, and

the first prong of Strickland has not been satisfied. See Strickland, 466 U.S. at 687;

Thomas, 2013 WL 652719, at *9; Davis v. State, 830 S.W.2d 762, 766 (Tex. App.—

Houston [1st Dist.] 1992, pet. ref'd). And because Parker must prove both prongs of

Strickland by a preponderance of the evidence in order to prevail, we need not

address the second prong. See Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App.

2000); see also TEX. R. APP. P. 47.1. We overrule Parker’s fourth issue. 20




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V. CONCLUSION

We affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the 13th

day of November, 2014.




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