Troy Williams II v. State

Opinion issued November 14, 2013.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00251-CR

———————————

TROY WILLIAMS II, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Case No. 1248664

OPINION

A jury convicted Troy Williams II of first degree murder, and the trial court

assessed his punishment at eighteen years’ confinement. On appeal, Williams

contends that (1) the trial court erred in denying his motion for a mistrial during

voir dire, granting the State’s challenge for cause of a venire person, and denying

his motion for mistrial during closing argument, and (2) he received ineffective

assistance of counsel.

We affirm.

Background

Avila’s neighbor, Juan Machado, testified that he was awakened one

December morning between 5:00 and 6:00 a.m. by loud noises from the apartment

above his that sounded “like a fight or a struggle.” He then heard Avila “crying out

for help” in Spanish. He estimated that Avila cried out for help about ten times

with a steady stream of “screaming and moaning.” He also heard another voice

coming from the apartment saying, “Shut up,” in Spanish. Machado called

emergency assistance. The noises continued for about ten minutes and then

stopped. He then called emergency assistance a second time when he “started

hearing the struggle again.” The fighting ended with a final, louder noise. When

police officers eventually arrived at the scene, Machado told them what he had

heard.

Houston Police Department Officer J. Vasquez testified that he and Officer

Z. Wang received a dispatch at 6:49 a.m. to a disturbance at the apartments. As

they arrived on the scene at 6:54, they passed Williams walking away from Avila’s

apartment. Williams was carrying his shoes and some shirts, and had blood stains

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on his socks and upper body. Vasquez placed Williams in the patrol car, told

Wang to check Avila’s apartment, and released Williams shortly thereafter. Upon

entering the apartment, Vasquez found Avila lying on a bed with blood “all on his

head,” “all over [the] side of the bed on the floor,” and dripping off of Avila.

Vasquez said that Avila appeared to be the victim of an “assault” or a “beating,”

rather than a fight. Believing that Williams may have had something to do with

the scene, Vasquez instructed Wang to find him. Wang reported over the radio

that Williams was running away, and when Vasquez caught up to them, Wang had

Williams in custody. They then turned Williams over to homicide detectives.

HPD Officer A. Taravella, who also was dispatched to the scene, testified

that he saw “drops of blood” and “blood spatter” on the wall and headboard of the

bed. He also seized two cellular telephones, one from inside the apartment and one

that Officer Wang had recovered from Williams. He observed several disks of

pornography that appeared to be “recently watched,” a plate with what appeared to

be cocaine residue, a used condom, and a twenty-pound dumbbell. Based on the

blood, a broken lamp, and a sofa cushion that was no longer on the couch, he

believed “some sort of struggle” had taken place. Taravella testified that he

believed that Avila had been struck in the head approximately five or six times and

moved to the bed after he was first injured. HPD Crime Lab DNA analyst Clay

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Davis testified that Avila’s DNA was found on the dumbbell and on Williams’s

clothes, chest, and hands.

HPD Homicide Detective P. Motard interviewed Williams the same day. He

testified that Williams was “argumentative, erratic,” “almost nonsensical,” and

“had blood scattered all over his body.” An ambulance transported Williams to a

hospital, but Motard did not notice that he was cut or bruised. Motard obtained

DNA samples of the blood on Williams’s clothing. Once at the hospital, Williams

did not claim that he had been sexually assaulted and resisted medical treatment.

Albert Chu, an assistant medical examiner at the Harris County Institute of

Forensic Sciences, performed an autopsy of Avila. Chu testified that Avila’s cause

of death was “[b]lunt force injuries of the head and neck” consistent with a

homicide. Avila had two fractures to his skull, bleeding on the surface of his brain,

and some bruising of his brain. Avila’s head had lacerations with “a similar shape

to what was seen on the edges of the dumbbell.” Chu opined that Avila had been

struck with a dumbbell or another blunt object at least three or four times. Chu also

noted compression of Avila’s neck, indicating strangulation. He characterized

bruising on Avila’s right middle finger and left forehand as injuries likely

“sustained in the course of defending one’s self.” Cocaine and alcohol were both

present in Avila’s system at the time of his death.

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Williams testified in his defense. By way of background, he testified that his

father was a chaplain who raised him in a “very religious” household with “very

strict” rules. His parents disapproved of his uncle’s homosexuality, and they did

not interact with his uncle for years because they would not allow him to bring “a

homosexual partner” to their home. Williams testified that he also disapproved of

his uncle’s lifestyle.

After playing basketball in high school, Williams attended Baylor

University, where he started using marijuana and ecstasy and got suspended for

stealing a laptop. He then attended Houston Baptist University but was expelled

when he was discovered with marijuana.

On the day of Avila’s death, Williams was nineteen years old and living in

an apartment with the financial assistance of his parents. He testified that he used

ecstasy twice daily.

Williams testified that he had not met Avila before the day in question. On

the evening before Avila’s death, Williams was picked up by his friend, “Toya,”

because his automobile was being repaired. He had already taken marijuana and

ecstasy. At her apartment, they used marijuana, consumed alcohol, played

dominoes, and “hung out” with some of her friends for several hours. Williams

left Toya’s apartment after midnight because one of her male friends was “hitting

on” him, making him uncomfortable. Toya declined to give Williams a ride home,

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but two women in the parking lot whom he had never met before agreed to drop

him off near his apartment complex. When he could not find his apartment keys,

he went to a friend’s apartment but she was not home. His phone had a dead

battery; therefore, he could not call anyone else.

At approximately 4:00 or 5:00 a.m., Williams went back down to the

parking lot of his friend’s apartment complex, where he started talking with an

African-American man and a Hispanic man, later identified as Avila. Williams

asked them if they could give him a ride to his parent’s house in Fort Bend County

or a place to stay because he was cold; the African-American man declined, but

Avila agreed to Williams’s request to stay in his apartment.

Once inside, Avila offered Williams cocaine, but he declined. After Avila

went into the kitchen, Williams laid on the couch in the living room and fell asleep,

still fully clothed. Williams testified that he later realized that Avila was removing

his sweatshirt and shirt as Williams was sleeping. Williams did nothing about it;

he was “letting it go” because “[i]t didn’t bother” him. When he awoke again, his

shirt, shorts, and shoes had been removed, and Avila was performing oral sex on

him. Williams pushed Avila off of him. According to Williams, Avila got up off

the floor and punched him, and the two started fighting. At some point during the

fight, Williams picked up a twenty pound dumbbell from the hallway; he began

“swinging away” with the dumbbell and knocked Avila’s teeth out. After

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Williams “managed to get on top” of Avila and “pin him” lying face down, he

repeatedly hit Avila with the dumbbell and did not stop until he “knew he was

dead.” After initially objecting to re-enacting the blows with a dumbbell because it

would “incriminate me,” Williams demonstrated the force he used to hit Avila by

hitting a piece of wood. Williams testified that he killed Avila because he “wanted

to make sure” he would “[s]top trying to sexually assault me.”

Williams conceded that the front door to the apartment was less than twenty

steps away, that Avila was about four inches smaller than him and in his forties,

yet he claimed that Avila “was stronger” than him. He also recalled that Avila was

“yelling for help” at some point. He acknowledged that Avila “needed help

because [Williams] was beating him.” Williams testified that “striking [Avila] in

the back of the head with a dumbbell numerous times until he died was

immediately necessary to defend [him]self.”

Using Avila’s cellular telephone, Williams attempted to call his family and a

friend around 6:00 a.m., but none of them answered. He did not call 911. Near

7:00 a.m, he put his shorts on and walked out of the apartment, carrying his shirt,

shoes, and Avila’s cellular telephone.

As he left the apartment, he was confronted by Officers Vasquez and Wang

and said, “I was kidnapped. It was self-defense.” The police officers allowed him

to leave, but shortly thereafter Wang “came after [him].” Williams ran but Wang

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caught him and placed him under arrest. Williams testified that he asked to be

taken to the hospital because he was “ashamed” and “didn’t want them to know

that [he] was sexually assaulted.”

When Williams was interviewed by HPD, he told the officers that he had

been kidnapped, Avila had threatened to call his uncle, and he had “lightly” hit

Avila with the dumbbell. He later admitted that his “elaborate story . . . was full of

lies.” He “had no problem putting that story together,” and claimed that he

fabricated the story because he was ashamed that he had been sexually assaulted.

He denied having sex with Avila, but did tell the officers that Avila was “touching

on me.” Similarly, he testified that he never told his parents or family members

what happened before the trial because “they would look at me different” and he

“didn’t want anybody to label me . . . as being gay.” He also testified that he asked

to be taken to the hospital to get away from the police station, but he “didn’t feel

comfortable” telling the health care providers about the sexual assault. He

conceded that his testimony at trial that he had been sexually assaulted was the first

time anyone other than his lawyers had heard this version of the events. He also

testified on re-direct examination that he initially did not even tell his lawyer the

“truth.”

Williams also testified about his trial preparation. He had a copy of the

police report. He listed to his recorded statement “a few times,” and “practice[d]”

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his testimony. He asserted, however, that he “wouldn’t make up a story to not go to

prison.”

On cross-examination, Williams admitted that he committed a number of

extraneous offenses. He was expelled from Baylor University because he stole a

laptop and several students’ wallets, for which he was placed on deferred

adjudication for theft. Williams also pled guilty to and received deferred

adjudication for a theft at a Wal-Mart convenience store. He was later expelled

from Houston Baptist University because he was found in possession of narcotics.

After Williams testified, several of his family members and acquaintances

testified to his religious upbringing, including his father, a chaplain.

The State called Latoya Jones to testify on rebuttal on the issue of

Williams’s response to homosexuals. Jones first met Williams a month or two

before Avila’s death. Jones was “openly gay,” and on the night in question, she

and Williams went to the apartment of her friend “Calibra,” a man who was also

openly gay. She testified that, at some point, Calibra began “hitting on” Williams,

but Williams did not appear to be bothered by it.

Prosecutor’s Statement during Voir Dire

In his first issue, Williams argues that the trial court erred in denying his

motion for a mistrial after the prosecutor told the venire panel “that he would have

dismissed the case if he did not think that Williams was guilty.”

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Comments to the venire

Williams first complains of the following statements made to the venire

panel during voir dire:

[STATE]: My duty is to prove my case. What

should I—if I don’t believe this

case—look, I’ll tell you right now. If

I don’t believe this case and I don’t

think that the defendant’s guilty, what

should I have already done?

[VENIREPERSON]: Not charged him.

[STATE]: We dismiss cases—

[DEFENSE COUNSEL]: Your Honor, I object. This voir

dire—

[TRIAL COURT]: Sustained. It’s not argument.

[DEFENSE COUNSEL]: And I ask the Court to instruct the

jury to disregard the prosecutor’s

statements.

[TRIAL COURT]: Okay. Please disregard the last

comment of [the prosecutor’s]

opinion.

[DEFENSE COUNSEL]: Ask for a mistrial, Your Honor.

[TRIAL COURT]: Overruled.

Standard of review

We review the trial court’s denial of a defendant’s motions for mistrial for

an abuse of discretion. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999);

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Woodall v. State, 77 S.W.3d 388, 399 (Tex. App.—Fort Worth 2002, pet. ref’d). A

trial court may declare a mistrial when an error occurs that is so prejudicial that the

expenditure of further time and expense would be wasteful. Wood v. State, 18

S.W.3d 642, 648 (Tex. Crim. App. 2000). Whether a trial court abused its

discretion in denying a motion for mistrial depends on whether the court’s

instruction cured any prejudicial effect. Dinkins v. State, 894 S.W.2d 330, 357

(Tex. Crim. App. 1995); Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.—Fort

Worth 1997, pet. ref’d). Generally, an instruction to disregard cures the prejudicial

effect. Dinkins, 894 S.W.2d at 357; Woodall, 77 S.W.3d at 399. However, a

comment may be so egregious or inflammatory as to render the instruction

ineffective in curing the prejudice. Dinkins, 894 S.W.2d at 357; Woodall, 77

S.W.3d at 399.

The prosecutor’s comments were improper but did not require a mistrial

A prosecutor may not inject personal opinion in statements to the jury.

Johnson v. State, 698 S.W.2d 154, 167 (Tex. Crim. App. 1985), cert. denied, 479

U.S. 871 (1986); Tucker v. State, 15 S.W.3d 229, 236 (Tex. App.—Houston [14th

Dist.] 2000, pet. ref’d). Such a statement improperly conveys the idea that the

prosecutor has a basis for such an opinion outside the evidence presented at trial.

See Wyatt v. State, 566 S.W.2d 597, 604 (Tex. Crim. App. 1978).

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Here, the prosecutor’s statement to the venire that he would have dismissed

the case against Williams if he believed he was innocent constituted an improper

expression of his personal opinion that Williams was guilty. See, e.g., Beltran v.

State, 99 S.W.3d 807, 811–12 (Tex. App.—Houston [14th] Dist. 2003, pet. ref’d)

(holding that prosecutor’s statement during voir dire that he would not be there if

he did not believe defendant was guilty was improper); Campos v. State, 946

S.W.2d 414, 415–18 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (holding that

prosecutor’s statement that “we wouldn’t be here” if he did not believe defendant

was guilty was improper).

But the trial court made a prompt instruction to disregard the comment and

specifically noted that the comment only constituted the prosecutor’s opinion.

Under similar circumstances, Texas courts have held that a prompt instruction to

disregard cures any resulting harm. See Wilkerson v. State, 510 S.W.2d 589, 591–

92 (Tex. Crim. App. 1974) (holding that trial court’s instruction to disregard cured

any harm resulting from prosecutor’s statement that “I feel like from what I know

about the case the man is guilty”); Cox v. State, No. 14-94-00476-CR, 1997 WL

563149, at *5 (Tex. App.—Houston [14th Dist.] Sept. 11, 1997, pet. ref’d) (not

designated for publication) (holding that trial court’s instruction to disregard cured

any harm resulting from prosecutor’s statement that he knew “beyond a reasonable

doubt” that he would prove every element of the alleged crime); Zaiontz v. State,

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700 S.W.2d 303, 307 (Tex. App.—San Antonio 1985, pet. ref’d) (explaining that

harm resulting from prosecutor’s comment that he “wouldn’t be here if [he] didn’t

believe the Defendant to be guilty” could have been cured by instruction).

Williams does not cite any cases in which similar voir dire statements were held to

be incurable by a prompt jury instruction.

From this record, we cannot conclude that the prosecutor’s brief statement

was so egregious or inflammatory that it was not cured by the trial court’s

instruction to disregard. Accordingly, we hold that Williams has not demonstrated

that the trial court abused its discretion and overrule Williams’s first issue.

Challenge for Cause

In his second issue, Williams argues that the trial court erred in granting the

State’s challenge for cause of veniremember 28 who had been convicted of

indecent exposure. The State asserted that the crime constituted “a conviction for a

crime of moral turpitude,” and the trial court granted its challenge-for-cause.

Should the trial court have excused the juror?

To show error in a trial court's grant of a state's challenge of a potential juror

for cause, a defendant must demonstrate one of two things: (1) the trial judge

applied the wrong legal standard in sustaining the challenge or (2) the trial judge

abused his discretion in applying the correct legal standard. Jones v. State, 982

S.W.2d 386, 388 (Tex. Crim. App. 1998). The erroneous excusing of a potential

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juror will call for reversal only if the record shows that the error deprived the

defendant of a lawfully constituted jury. Id. at 394.

A challenge for cause may be made of a veniremember if he has been

convicted of misdemeanor theft or any felony. TEX. CODE CRIM. PROC. ANN. art.

35.16(a)(2) (West 2011). Indecent exposure constitutes a Class B misdemeanor.

TEX. PENAL CODE ANN. § 21.08(b) (West 2011). Williams argues that, because

indecent exposure is only a misdemeanor and the Texas Code of Criminal

Procedure does not excuse veniremembers based on misdemeanors of moral

turpitude, the trial court erred in granting the State’s challenge for cause regardless

of whether indecent exposure constitutes a crime of moral turpitude. The State

argues that the trial court was, nevertheless, entitled to grant the State’s challenge

for cause under the Texas Government Code, which states that a person is

disqualified to serve as a juror unless, among other provisions, the person is “of

sound mind and good moral character.” See TEX. GOV’T CODE ANN. § 62.102(4)

(West 2011).

Any error was harmless

Assuming, without deciding, that the trial court erred in granting the State’s

challenge for cause of veniremember 28, we must disregard a trial court error in

granting a State’s challenge for cause unless it affected the defendant’s substantial

rights. TEX. R. APP. P. 44.2(b). A defendant does not have the right to have any

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particular individual sit on the jury; rather, a defendant’s “only substantial right is

that the jurors who do serve be qualified.” See Jones, 982 S.W.2d at 393. Thus,

“the erroneous excusing of a veniremember will call for reversal only if the record

shows that the error deprived the defendant of a lawfully constituted jury.” Id. at

394; see also Gray v. State, 233 S.W.3d 295, 301 (Tex. Crim. App. 2007) (holding

that trial court’s erroneous exclusion of potential juror for economic reasons did

not merit reversal because defendant did not show he did not “received a trial by an

impartial jury comprised of qualified individuals”). If the jurors who serve are

qualified, then the jury is lawfully constituted, the defendant’s substantial rights are

not affected, and reversal of the defendant’s conviction based on the erroneous

granting of a challenge for cause is not required. Jones, 982 S.W.2d at 394; Moore

v. State, 54 S.W.3d 529, 538 (Tex. App.—Fort Worth 2001, pet. ref’d).

Here, Williams does not show that he was deprived of a lawfully constituted

jury. Accordingly, we hold that any error in the trial court’s granting of the State’s

challenge for cause of veniremember 28 would be harmless. See Gray, 233

S.W.3d at 301; Jones, 982 S.W.2d at 394; Moore, 54 S.W.3d at 538.

We overrule Williams’s second issue.

Closing Argument

In his third issue, Williams argues that the trial court erred in denying his

motion for mistrial after the State “argued during summation that Williams was

15

able to fabricate a defense through defense counsel’s access to the State’s open

file.”

The argument was improper

Proper jury argument is generally limited to (1) a summation of the evidence

presented at trial, (2) reasonable deductions drawn from that evidence, (3) answers

to opposing counsel’s argument, and (4) pleas for law enforcement. Wesbrook v.

State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc); Swarb v. State, 125

S.W.3d 672, 685 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d). A trial court

has broad discretion to control the scope of closing argument. Lemos v. State, 130

S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.); see Herring v. New York,

422 U.S. 853, 862–63, 95 S. Ct. 2550, 2555–56 (1975). The State is afforded wide

latitude in its jury arguments and may draw all reasonable, fair, and legitimate

inferences from the evidence. Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim.

App. 1988). The State may not, however, use closing argument to “strike” at a

defendant over the shoulders of his counsel or accuse counsel of bad faith. Magana

v. State, 177 S.W.3d 670, 674 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see

also Mosley v. State, 983 S.W.2d 249, 258–59 (Tex. Crim. App. 1998).

A prosecutor runs the risk of improperly “striking” at a defendant over the

shoulders of counsel when the argument is made in terms of defense counsel

personally or when the argument explicitly impugns defense counsel’s character.

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Mosley, 983 S.W.2d at 259; Magana, 177 S.W.3d at 674–75. “[A]rguments

attacking defense counsel are improper because they unfairly inflame the jury

against the accused.” Wilson v. State, 7 S.W.3d 136, 147 (Tex. Crim. App. 1999).

It is, however, permissible for a prosecutor to attack the defense’s argument. See

Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008); Magana, 177

S.W.3d at 675.

Specifically, Williams complains of the following statement made during

closing arguments:

[STATE]: What did the defendant have access to

before trial? He’s had years to craft a

story. As we said in voir dire, we

have an open file policy. They have

access to copies of police reports,

statements, and photos. They can

build a whole defense that fits

everything that we have. That’s just

how the game is. It doesn’t mean

they get credit for it or you believe it.

[DEFENSE COUNSEL]: Your Honor, that’s striking at the

defendant. It’s improper argument.

[TRIAL COURT]: Sustained.

[DEFENSE COUNSEL]: Ask the Court to instruct the jury—

[TRIAL COURT]: Disregard the last comment made by

the prosecutor. And overruled.

[DEFENSE COUNSEL]: And I ask for a mistrial.

[TRIAL COURT]: Overruled.

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[STATE]: Well, the defendant told you from the

witness stand he’s read his statement.

And the expert told you he had access

to all the records and tapes. This

defendant would not admit anything

on cross-examination that made him

look bad. Not a thing. In fact, I

thought it was very telling.

The State’s argument was not limited to conduct by a singular person, the

defendant. The prosecutor argued that “they” have access to the file and “they”

can build a defense. The trial court sustained the objection and instructed the jury

to disregard the prosecutor’s statement.

The trial court did not abuse its discretion in denying the motion for mistrial

The trial court sustained Williams’s objection but denied his motion for

mistrial. Williams contends that the argument was egregious and harmful and,

therefore, incurable.

When, as here, the trial court instructs the jury to disregard improper

argument, the proper analysis is whether the trial court abused its discretion by

denying the motion for mistrial. Archie v. State, 340 S.W.3d 734, 738–39 (Tex.

Crim. App. 2011); Hawkins v. State, 135 S.W.3d 72, 76−77 (Tex. Crim. App.

2004); Carballo v. State, 303 S.W.3d 742, 748 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). We must uphold the trial court’s ruling denying a motion for

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mistrial if it was within the zone of reasonable disagreement. Archie v. State, 221

S.W.3d 695, 699 (Tex. Crim. App. 2007).

A mistrial is an extreme remedy and should be exceedingly uncommon. See

Hawkins, 135 S.W.3d at 77 (stating that a mistrial is required only “in extreme

circumstances, where the prejudice is incurable”); see also Bauder v. State, 921

S.W.2d 696, 698 (Tex. Crim. App. 1996), overruled on other grounds by Ex parte

Lewis, 219 S.W.3d 335, 337 (Tex. Crim. App. 2007). A mistrial is required only

when the impropriety is clearly calculated to emotionally inflame the jurors’ minds

and is of such a character as to suggest the impossibility of withdrawing the

impression produced on the jurors’ minds, Hinojosa v. State, 4 S.W.3d 240, 253

(Tex. Crim. App. 1999), or when the impropriety is “so prejudicial that

expenditure of further time and expense would be wasteful and futile.” Hawkins,

135 S.W.3d at 77 (quoting Ladd, 3 S.W.3d at 567); Archie, 340 S.W.3d at 739.

“In most instances, an instruction to disregard the remarks will cure the

error.” Wesbrook, 29 S.W.3d at 115; see e.g., Moore v. State, 999 S.W.2d 385,

405–06 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000) (concluding

that instruction to disregard cured harm from comment on defendant’s failure to

testify); Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (concluding

that testimony referring to inadmissible extraneous offense was rendered harmless

by instruction to disregard because testimony “was no[t] so inflammatory as to

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undermine the efficacy of the trial court’s instruction to disregard”); Brown v.

State, 769 S.W.2d 565, 567 (Tex. Crim. App. 1989) (holding that improper

argument that jury consider parole law was not of such nature that trial court’s

curative instruction did not remedy error). Indeed, “[a]lmost any improper

argument may be cured by an instruction to disregard.” Garcia v. State, 943

S.W.2d 215, 217 (Tex. App.—Fort Worth 1997, no pet.). As this court has

previously explained:

[W]e presume that a jury will obey a trial court’s instruction to disregard

unless “the evidence is clearly calculated to inflame the minds of the jury

and is of such a character as to suggest the impossibility of withdrawing the

impression produced on their minds.” Only an extremely inflammatory

statement overcomes this presumption.

Johnson v. State, 01-07-00461-CR, 2009 WL 1331857, at *4 (Tex. App.—Houston

[1st Dist.] May 14, 2009, pet. ref’d) (mem. op.) (not designated for publication)

(citations omitted).

Thus, only in the most egregious cases when there is an “extremely

inflammatory statement” is an instruction to disregard improper argument

considered an insufficient response by the trial court. Moore, 999 S.W.2d at 405-

06 (quoting Waldo v. State, 746 S.W.2d 750, 753 (Tex. Crim. App. 1988));

Johnson, 2009 WL 1331857, at *4; see also Dinkins, 894 S.W.2d at 357

(explaining that only in most blatant examples will courts find instruction to

disregard inadequate to cure comment on failure to testify). Otherwise, the Court

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of Criminal Appeals “has tended to find [a curative] instruction to have force.”

Moore, 999 S.W.2d at 405.

The Court of Criminal Appeals has identified three factors to balance in

determining whether the trial court abuses its discretion in denying a motion for

mistrial: (1) the “severity of the misconduct” (also defined as “the magnitude of the

prejudicial effect of the [State’s] remarks”), (2) the curative measures taken by the

trial court, and (3) the certainty of conviction absent the conduct. Archie, 340

S.W.3d at 739; Hawkins, 135 S.W.3d at 77 (stating analysis for closing arguments

in punishment phase of trial); accord Brown, 270 S.W.3d at 572–73 (applying

same analysis in guilt phase of trial). In examining the severity of the argument, we

review whether it appears that the improper arguments were “a willful and

calculated effort on the part of the State to deprive [Williams] of a fair and

impartial trial.” Brown, 270 S.W.3d at 573 (internal quotation omitted).

Turning to the first factor—the severity of the misconduct—the trial court

could have reasonably concluded that the State’s improper argument was not so

egregious as to indicate a willful and calculated effort to inflame the jurors’ minds

or of such character as to suggest the impossibility of withdrawing the impression

produced in their minds.

The State’s argument would not have been improper if it had merely pointed

out that Williams fabricated a story; argument during summation that a defendant

21

has lied is allowed. See Smith v. State, 898 S.W.2d 838, 846 & n.8 (Tex. Crim.

App. 1995) (noting that State has right during closing argument to “attack the

veracity of a defendant who takes the stand”); Greer v. State, 523 S.W.2d 687,

690–91 (Tex. Crim. App. 1975) (holding that, where defendant takes witness

stand, it is not reversible error for prosecutor to attack veracity of defendant). But

the State went too far when it switched to the pronoun “they” and suggested that

defense counsel was involved in helping Williams “craft a story” by taking

advantage of the open file policy. A statement accusing defense counsel of

manufacturing evidence is inappropriate. See McMurrough v. State, 995 S.W.2d

944, 947 (Tex. App.—Fort Worth 1999, no pet.). Nonetheless, the offending

statement still must be “extremely inflammatory” to cause an instruction to

disregard to be ineffective and require a mistrial. Johnson, 2009 WL 1331857, at

*4 (“Only an extremely inflammatory statement overcomes” the presumption that

a jury “will obey” a curative instruction).

We therefore must review the evidence, which establishes the context of the

challenged statement, and the entire final argument during which the statement was

made. First, Williams admitted at trial that his original statement to the police was

“full of lies” and seemed “ridiculous” but that he had “no problem putting that

story together” to avoid disclosing what occurred in Avila’s apartment. Second,

Williams admitted that he never told police, doctors, family or friends before trial

22

that he was sexually assaulted by Avila. Third, Williams testified at length that he

had reviewed the police report and his statements to the police as part of his trial

preparation. Thus, from the evidence the jury knew that Williams had ample

opportunity to—and had—changed his version of the events after he reviewed the

police file. And, in closing argument, his counsel argued that Williams had told a

story “that was ridiculous, that makes no sense at all. It’s all over the world. It’s

not a story that would get someone out of trouble. It’s a story to get someone in

trouble.” Defense counsel later argued that Williams made such statements

because he was “in shock.”

When viewed in context of the evidence—against the backdrop of

Williams’s admission that he lied, that he had reviewed the police file, and that no

one had heard his trial version of the events in question before his testimony—the

statement that the defense crafted a story based on the police file falls short of

being “extremely inflammatory.” A review of the complete final argument also

suggests that this particular statement was not so severe as to constitute an

extremely inflammatory statement. The first sentence of the portion of the

argument in question refers to “the defendant” having access to the State’s open

file. The prosecutor said next that “[h]e’s had years to craft a story” based on

access to that file. Both statements are supported by the evidence. The three

sentences that follow, in which the prosecutor improperly used “they” instead of

23

“he,” would have been permissible if the prosecutor had referred to Williams

alone. Further, the State did not flagrantly refer to Williams’s attorney directly,

which counsels against a conclusion that the statements were so extremely

inflammatory that a jury could not follow an instruction to disregard them. See

Owens v. State, 381 S.W.3d 696, 707 (Tex. App.—Texarkana 2012, no pet.)

(examining flagrancy of violation). Finally, the prosecutor did not repeat the

improper argument once the court sustained the objection and instructed the jury to

disregard. Id. (examining persistence of prosecutor and flagrancy of violation). All

of this supports a conclusion that the improper argument was not severe.

The argument here has some similarities to the argument examined in

Whitney v. State, 396 S.W.3d 696, 703–06 (Tex. App.—Fort Worth 2013, pet.

ref’d). In that case, the prosecutor stated, during closing argument, that the

defendant changed her story regarding the events of a murder “after four or five

visits at the defense attorney’s office.” Id. at 703. The trial court sustained the

defendant’s objection but denied her motion for a mistrial. Id. The court of

appeals did not read the prosecutor’s statement as directly striking at the

defendant’s counsel:

Although it would not be unreasonable to infer that she changed her

story after consulting with defense counsel, it does not necessarily

follow that she did so at the counsel’s direction. Nor did the

prosecutor argue that counsel directed her to change her story. . . . The

cases showing strikes over the shoulders of counsel have been more

directly aimed at counsel than this.

24

Id. at 705. Moreover, the record supported that prosecutor’s argument. The

Whitney court assumed, nonetheless, that the argument was improper, but

concluded that the trial court did not abuse its discretion by denying the motion for

mistrial. In weighing the first factor—the severity of the misconduct—the court

noted that the remark “was not severe or unduly prejudicial” and “did not inject

anything into the trial of which the jury was previously unaware.” Id. at 706. The

same is true here.

Williams cites four cases for the proposition that a prosecutor’s attack on

defense counsel’s integrity “is so prejudicial that it cannot be cured by an

instruction to disregard and requires a mistrial upon request.” We believe the cases

are distinguishable. In Fuentes v. State, 664 S.W.2d 333, 335 (Tex. Crim. App.

1984), the attorney’s statement was directed at counsel and was particularly

egregious.1 Moreover, the prosecutor’s statement “was not an isolated incident, but

was indicative of what transpired throughout the trial.” Id. at 337. In Lopez v.

State, 705 S.W.2d 296, 298 (Tex. App.—San Antonio 1986, no pet.), the

1

The prosecutor made an objection during cross-examination of a State’s witness

by saying, before the jury, “Oh, Judge, we object to that, he is in bad faith like

usual and we object to it. That is a bunch of garbage and he knows it.” Fuentes v.

State, 664 S.W.2d 333, 335 (Tex. Crim. App. 1984).

25

prosecutor “repeatedly attacked the lawful efforts of defense counsel to represent

his client.” 2 Unlike these two cases, the improper argument here was not repeated.

Williams’s two other cases likewise are distinguishable. In Branson v. State,

825 S.W.2d 162 (Tex. App.—Dallas 1992, no pet.), the prosecutor claimed twice,

during argument, that defense counsel had “lied” to the jury and made “constant

frivolous objections.” Id. at 164–65. The court of appeals stressed that “the

prosecutor repeated the accusation that defense counsel was lying, even when

faced with sustained objections and instructions to disregard.” Id. at 166. The

court held that, “[c]onsidering the repetition and nature of the improper argument,”

the defendant was denied a fair and impartial trial. Id. at 167. In the last case cited

by Williams, McMurrough, 995 S.W.2d at 947–48, the attorney did not repeat the

improper argument, but the jury sent a note inquiring into the substance of the

comment during its deliberations. Noting the jury’s inquiry, the court concluded

that the error could not have been cured by an instruction and had “a significant

and injurious affect on the verdict such that [the defendant’s] substantial rights

were affected.” Id. at 948. These four cases do not change the rule that a mistrial

in response to a final argument that attacks defense counsel and is immediately

2

For example, the prosecutor told the jury, during closing argument, that they had

evidence implicating the defendant that he could not present “because of all the

objections.” Lopez v. State, 705 S.W.2d 296, 298 (Tex. App.—San Antonio 1986,

no pet.). Immediately after, the prosecutor stated that “the entire strategy of

defense counsel” was “to keep as much evidence from you as possible.” Id.

26

followed by an instruction to disregard is the exception to the rule, and not the rule

itself. 3

We recognize that courts must have “special concern” for final arguments

that include “unsubstantiated accusation[s] of improper conduct directed at a

defendant’s attorney.” Orona v. State, 791 S.W.2d 125, 128 (Tex. Crim. App.

1990). But that does not mean that we can ignore the Mosley three–prong test for

determining if improper argument is harmful. For example, in Orona, the Court of

Criminal Appeals found that an improper argument by the prosecutor that the

defense lawyer knew how to argue “to get people off” was harmless even though it

was overruled. Similarly, in Mosley the Court of Criminal Appeals again held that

improper jury argument was harmless even though the court overruled the

objection. Mosley, 983 S.W.2d at 260. The prosecutor there also used the pronoun

“they.” He argued, “The defense has attempted to get you off the main road, to

divert you. They don’t want you to stay on the main road because they know where

that will take you . . . . They want you to take a side road, a series of side roads,

rabbit trails, and a rabbit trail that will lead you to a dead-end.” Id. at 258. The

3

Sunday v. State, 745 S.W.2d 436, 440 (Tex. App.—Beaumont 1988, pet. ref’d), is

likewise distinguishable. The court there held that the prosecution improperly

attacked defense counsel during final argument when the prosecutor stated that

defendant asserted his defensive theory only after hiring an attorney. A mistrial

was required because the trial court refused to give the requested curative

instruction. Id.

27

Court held that the argument was improper because it referred “to counsel

personally.” Id. at 259. The Court did not hold that the improper jury arguments

striking over the shoulders of counsel are per se so egregious as to require reversal.

Instead, it identified and applied the balancing factors and concluded that the

improper argument was harmless.

We conclude that the first Mosley factor—the severity of the misconduct—is

close, but does not compel a conclusion that the trial court was required to grant a

mistrial.

The second factor—the measures taken to cure the misconduct—also

supports a conclusion that the trial court did not abuse its discretion in denying the

motion for mistrial. The trial court “immediately ordered the jury to disregard it.”

Whitney, 396 S.W.3d at 706. Not only did the trial court sustain the objection, it

orally informed the jury before final arguments that the attorney’s arguments are

“not evidence. It’s simply their summary of what they believe the evidence has

shown.” The court had earlier instructed the jury during the voir dire “what the

lawyers say is not evidence. . . . What the witnesses say is evidence. So, bear in

mind that just what the witnesses say is the evidence.” Similarly, the court had

twice instructed the jury during the evidence phase of the trial, in sustaining an

28

objection by the State, that the lawyers’ statements did not constitute evidence.4

The court also instructed the jury that the lawyers’ statements are not evidence

after sustaining Williams’s objection to certain evidence. 5 The court’s written jury

instructions again advised the jury that it should not “consider, discuss, nor relate

any matters not in evidence.” Thus, we can presume from the cumulative weight of

these six instructions that the jury understood that the State’s improper comments

were not evidence, and that its decision should be based only on the evidence.

Courts also examine whether the prosecutor “revisit[ed] this line of

argument.” Id.; see also Owens, 381 S.W.3d at 706–07 (examining persistence of

prosecutor); Robertson, 100 S.W.3d at 41–45 (same); Adams, 156 S.W.3d at 156–

58 (same); Carnell v. State, No. 01-11-00252-CR, 2012 WL 1655548, *1–3 (Tex.

App.—Houston [1st Dist.] May 10, 2012, pet. ref’d) (mem. op.) (not designated for

publication) (same). Here the trial court immediately instructed the jury to

disregard the statement and the State did not repeat it. The second factor supports

the trial court’s ruling.

4

The first time the trial judge stated, “What the lawyers say is not evidence. So,

please don’t consider it as such.” The second time she stated, “Again, what

the lawyers say is not evidence.”

5

“What the lawyers say is not evidence. So, please don’t consider it as such.” She

gave the same instruction on at least two other occasions after sustaining an

objection by Williams.

29

The third factor—the certainty of conviction absent the misconduct—

supports a conclusion that the trial court did not abuse its discretion. Ample

evidence supported the jury’s finding of guilt. Williams admitted that he killed

Avila. Williams admitted that he had already told an elaborate story full of lies to

the police and also admitted he never claimed self-defense to a sexual assault to

anyone other than his lawyers—not even his family or friends—before trial. And

the evidence showed that Williams did not merely fend off Avila; he bludgeoned

Avila with a dumbbell while pinning him down. Under these circumstances, the

State’s improper use of the pronoun “they” instead of “he” was unlikely to strongly

influence the jury’s analysis of Williams’s credibility.

Finally, we decline Williams’s invitation to reverse for the purpose of

deterring future improper jury argument by the State. He contends that if we do not

conclude that the trial court abused its discretion, “the State can and most certainly

will” make this argument “in every case in which a defense is presented without

fear of reversal.” But no authority allows us to base our holding on concerns over

hypothetical consequences in future cases. Indeed, recent Court of Criminal

Appeals authority teaches that courts should confine their analysis to the case at

issue, without regard to whether declaring an error harmless encourages its

repetition in the future. See Snowden v. State, 353 S.W.3d 815, 820–22 (Tex. Crim.

App. 2011) (rejecting consideration of “probable collateral implications” of finding

30

harm in case of constitutional error including “whether declaring the error harmless

would encourage the State to repeat it with impunity” and concluding that the

harmless–error inquiry “should adhere strictly to the question of whether the error

committed in a particular case contributed to the verdict obtained in that case”);

Mason v. State, 322 S.W.3d 251, 257 n.10 (Tex. Crim. App. 2010) (“the [Harris]

factor of ‘whether declaring the error harmless would encourage the State to repeat

it with impunity’ is misplaced when addressing nonconstitutional error under Rule

44.2(b)”).

Thus, whether a trial court must grant a motion for mistrial even after

instructing a jury to disregard an improper jury argument is a case specific inquiry,

and our analysis should be directed only to the argument in this case. See

generally Mosley, 983 S.W.2d at 259–60 (holding that improper final argument is

not constitutional error but is instead error reviewed under Rule 44.2(b), and then

adopting three–fold test for reviewing whether improper argument substantially

affected defendant’s rights).

Conclusion

Viewing the State’s closing argument in its entirety, we cannot conclude that

the trial court abused its discretion in denying the motion for mistrial. We are

guided by long-established precedent on the standard of review for determining

whether the trial court—which observed the entirety of the trial—abused its

31

discretion. Our task is not to determine whether we disagree with the trial court’s

ruling, but whether the trial court’s determination was beyond the zone of

reasonable disagreement. See Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim.

App. 2007) (reviewing court cannot substitute its judgment for that of trial court,

but instead determines whether trial court’s decision was arbitrary or

unreasonable). Cf. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002)

(an appellate court “cannot substitute its judgment for the trial court’s reasonable

judgment even if it would have reached a contrary conclusion.”).

In light of this standard, our review of the record as a whole does not

indicate that the State’s remark was of the tenor to require a mistrial. And there is

no evidence suggesting that the jury considered this improper remark or that it

disregarded the court’s instruction to disregard. A reasonable trial judge could have

concluded that its instruction cured the prejudice caused by the State’s improper

argument. Balancing all the factors, we hold that the trial court did not abuse its

discretion in denying the motion for mistrial. See Bauder, 921 S.W.2d at 698

(holding that mistrial is extreme remedy for prejudicial events that occur at trial,

and should be exceedingly uncommon).

We overrule Williams’s third issue.

32

Ineffective Assistance of Counsel

In his fourth issue, Williams argues that he received ineffective assistance of

counsel at trial because his trial counsel elicited, opened the door to, and failed to

object to inadmissible and prejudicial testimony.

The standard of review for evaluating claims of ineffective assistance of

counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). Strickland generally requires a two-step analysis in which a

defendant must show that (1) counsel’s performance fell below an objective

standard of reasonableness, and (2) but for counsel’s unprofessional error, there is

a reasonable probability that the result of the proceedings would have been

different. Id. at 687–94, 104 S. Ct. at 2064–68; Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999). A reasonable probability is a “probability sufficient

to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct.

at 2068. In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that his performance falls within the wide range of reasonable

professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. Williams has the

burden to establish both prongs by a preponderance of the evidence. Jackson v.

State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

33

A failure to make a showing under either prong defeats an ineffective-

assistance claim. See Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App.

2003). Moreover, allegations of ineffectiveness must be firmly founded in the

record. Thompson, 9 S.W.3d at 814; Bone v. State, 77 S.W.3d 828, 835 & n.13

(Tex. Crim. App. 2002). When the record is silent, we may not speculate to find

trial counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001). In the absence of evidence of counsel’s reasons for the challenged conduct,

an appellate court commonly will assume a strategic motivation if any can possibly

be imagined and will not conclude that the challenged conduct constituted deficient

performance unless the conduct was so outrageous that no competent attorney

would have engaged in it. See id.

Officer’s Testimony

Williams first complains of his trial counsel’s failure to object to the

following testimony of HPD Officer R. Moreno:

[STATE]: If you had had questions at all about

whether it was self-defense, would

you have done anything different in

your investigations?

[OFFICER MORENO]: Yes, sir.

[STATE]: What would you have done?

[OFFICER MORENO]: I would have notified the District

Attorney’s Office, explained the facts

to the District Attorney. Normally we

34

call chiefs that are on duty. And this

would have probably been a grand

jury referral rather than charges being

filed in the manner that they were. 6

The expression of guilt or innocence in any case is a conclusion to be

reached by the jury based upon the instructions given them in the court’s charge,

coupled with the evidence admitted by the judge through the course of the trial.

Taylor v. State, 774 S.W.2d 31, 34 (Tex. App.—Houston [14th Dist.] 1989, pet.

ref’d). No witness is competent to voice an opinion as to guilt or innocence.

Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974).

A lay witness may testify, however, “to those opinions or inferences which

are (a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’s testimony or the determination of a fact at issue.”

TEX. R. EVID. 701. Opinion testimony that is otherwise admissible is not

objectionable solely because it embraces an ultimate issue to be decided by the

trier of fact. TEX. R. EVID. 704.

Here, Officer Moreno, who was called to the stand by Williams, testified at

length on direct examination regarding his inspection of the scene at Avila’s

apartment. He testified that it appeared “something sexual” occurred at the scene

6

In his initial briefing to this Court, Williams also complains of several references

by HPD officers to the complainant’s apartment as a “crime scene” and Officer

Vasquez’s opinion that the complainant appeared to be the victim of “an assault”

or “a beating;” however, in his reply briefing to this Court, Williams abandons the

allegations of deficient performance with regard to that testimony.

35

but that it did not appear to be a “normal sexual assault.” And, at the time,

Williams had not asserted to Officer Moreno that he had been acting in self-

defense; he only asserted that he had been kidnapped. Under these circumstances,

trial counsel could have concluded that the officer’s testimony was admissible as a

lay opinion regarding the scene at Avila’s apartment considering that Williams had

not yet claimed self-defense. See Ex parte Nailor, 149 S.W.3d 125, 134 (Tex.

Crim. App. 2004) (holding admissible officer’s opinion testimony that defendant

had not been attacked); Solomon v. State, 49 S.W.3d 356, 364–65 (Tex. Crim. App.

2001) (holding admissible officer’s testimony that defendant was “responsible for

[the complainant] getting robbed”); Bryant v. State, 340 S.W.3d 1, 11–12 (Tex.

App.—Houston [1st Dist.] 2010, pet. ref’d) (holding that police investigator’s

testimony that sexual assault had occurred admissible when given after “the factual

background of a criminal investigation”). Accordingly, we hold that trial counsel

was not ineffective on the ground that he failed to object to Officer Moreno’s

testimony.

Extraneous Acts

Williams next complains that trial counsel erred in opening the door to

evidence that Williams had been expelled from Baylor University for stealing a

laptop computer and other students’ wallets and from Houston Baptist University

(HBU) for possession of narcotics. He also complains that trial counsel erred in

36

opening the door that he used narcotics “on a daily basis, carried a bag of ecstasy

on his person, and aspired to be a drug dealer for awhile.” Finally, Williams

complains of trial counsel’s failure to object to evidence “suggesting that [he] was

affiliated with a gang.” Williams contends that this extraneous evidence allowed

the State to characterize him, in closing argument, as a liar, cheater, stealer, and

“wannabe” narcotics dealer.

The State argues that Williams’s trial counsel “may have reasonably

believed that the door to the complained-of testimony would have likely been

opened by testimony from Williams, or his witnesses, which included his mother

and father, his uncle, and a former basketball coach” and chose to “bring it all out

during Williams’s direct-examination testimony before the State could, thereby

giving the jury the impression that Williams and counsel were being open and

honest about the disclosed facts.”

On direct examination of Williams, trial counsel elicited that Williams was

suspended from Baylor after six months for “stealing a laptop” and suspended

from HBU. Trial counsel also elicited that, in 2007, Williams started smoking

marijuana “about three times a day” and taking ecstasy “about twice a day.” He

eventually became employed at Home Depot, but quit because he “wanted to try to

sell drugs.” On cross-examination, Williams testified, without objection, that he

was “kicked out” of Baylor for stealing a laptop and other students’ wallets, for

37

which he received deferred adjudication. Williams further testified that he had

received deferred adjudication for a second theft from a Wal-Mart store. He was

“kicked out” of HBU because he was “caught with drugs on campus.”

Evidence of extraneous offenses “is not admissible to prove the character of

a person in order to show action in conformity therewith.” TEX. R. EVID. 404(b).

However, trial counsel’s decision to not object to otherwise inadmissible

extraneous offenses may constitute a sound and plausible trial strategy. See, e.g.,

Heiman v. State, 923 S.W.2d 622, 626 (Tex. App.—Houston [1st Dist.] 1995, pet.

ref’d); see also Hall v. State, No. 01-09-00891-CR, 2010 WL 4121290, at *4 (Tex.

App.—Houston [1st Dist.] Oct. 21, 2010) (mem. op.) (not designated for

publication) (“The Court of Criminal Appeals has held that an ‘undoubtedly risky’

trial strategy that ultimately does not pay off is not necessarily unacceptable or

‘wholly unjustified.’”) (citing Delrio v. State, 840 S.W.2d 443, 446–47 (Tex. Crim.

App. 1992) (per curiam)).

Williams’s counsel could have reasonably believed that he needed to present

evidence of Williams’s drug use on the night in question to explain his behavior

that night7 as well as his “beating” of Avila. And once evidence of drug use was

part of the defense’s explanation of the events, it would not be unreasonable to

7

Williams’s version of the facts were that, after he had smoked marijuana and taken

ecstasy, he became stranded at Avila’s apartment complex and decided to spend

the night sleeping on the sofa of a stranger.

38

conclude that, with the door opened, it would be better to show the jury the entire

story—that Williams had a history of drug use. Counsel also could have

concluded that a defense strategy of portraying a strict family environment that did

not tolerate homosexuality would open the door to Williams’s bad acts and,

therefore, that it was better to introduce them on direct examination. Williams

testified, as did numerous other relatives and friends, that he had been raised in a

very strict household.

Likewise counsel could have concluded that evidence of his thefts were

helpful to explain why Williams ran from police and did not immediately inform

them of the sexual assault. As stressed in his closing argument, defense counsel

was attempting to portray his client as being “open and completely honest with

regard to all questions.” See Heiman, 923 S.W.2d at 626; Ahmadi v. State, 864

S.W.2d 776, 783 (Tex. App.—Fort Worth 1993, pet. ref’d); see also Villarreal v.

State, No. 14-00-00948-CR, 2001 WL 1249329, at *2–3 (Tex. App.—Houston

[14th Dist.] Oct. 18, 2001, pet. ref’d) (mem. op.) (not designated for publication).

Williams also complains that his counsel elicited testimony about his desire

to be a drug dealer. Williams testified that for “less than a month” his “aspiration

was to be a drug dealer.” He further testified

Q: Did you continue working at [Home Depot], or did you stop

working there?

A: I stopped working there.

39

Q: Why did you stop working there?

A: Because I wanted to try to sell drugs.

Q: What kind of drugs were you going to sell?

A: Ecstasy.

Q: And were you good at it?

A: No, sir.

Q: Why not?

A: Because I used them.

An ineffective assistance of counsel claim examines the conduct of counsel,

so our focus is not on the answer given by Williams but on whether counsel was

ineffective in asking the question. The record does not reveal whether Williams’s

attorney expected this answer to his initial open-ended question about why

Williams left his place of employment. Even assuming he did, he could have

reasonably believed that this evidence fit his theme of a rebellious and

irresponsible nineteen–year–old who never committed any violent crime.

In regard to evidence “suggesting that Williams was affiliated with a gang,”

Williams complains of his trial court’s failure to object to the admission into

evidence of two photographs procured from his Facebook or MySpace accounts.

The prosecutor questioned Williams, without objection, regarding the photographs

in the following exchange:

40

[STATE]: This is you throwing gang signs after you were charged

with murder, isn’t it?

[WILLIAMS]: That’s not a gang sign.

[STATE]: What is it?

[WILLIAMS] Southwest.

[STATE]: Representing the southwest side, right?

[WILLIAMS]: That’s me trying to be a gangster, but I’m from the

suburbs.

[STATE]: That’s you trying to be a gangster after you were charged

with murder, right?

[WILLIAMS]: Trying to look like a gangster, right.

[STATE]: Because you were proud of what you did?

[WILLIAMS]: No, sir.

[STATE]: That’s you throwing a gang sign after you were charged

with murder, isn’t it?

[WILLIAMS]: That’s not a gang sign.

[STATE]: What is that?

[WILLIAMS]: I don’t know what I was doing.

[STATE]: You were just throwing up random signs?

[WILLIAMS]: That just looks like a peace sign. . . .

41

On redirect examination, Williams testified that he did not know when the

photographs were taken and he “took them off” MySpace or Facebook because

they “didn’t represent” who he was.

Gang affiliation may be considered evidence of an “other crime, wrong or

act,” subject to exclusion under Texas Rule of Evidence 404(b). See Pondexter v.

State, 942 S.W.2d 577, 583–84 (Tex. Crim. App. 1996). Trial counsel may have

opted not to object to the questioning because he did not want to call attention to

the evidence. He could also have reasonably believed that Williams’s own

answers adequately dispelled the notion that he was affiliated with a gang.

From this record, we cannot conclude that trial counsel’s eliciting testimony

regarding Williams’s prior thefts, use of drugs, and attempts to sell drugs, or his

failure to object to pictures from Williams’s MySpace or Facebook account were

“so outrageous that no competent attorney would have engaged in it.” See Garcia,

57 S.W.3d at 440. Accordingly, we hold that Williams has not established that he

was deprived effective assistance of counsel with respect to those complaints.

Attorney-Client Privilege

Williams next argues that his trial counsel was deficient in not objecting “to

the prosecutor cross-examining Williams about privileged attorney-client

communications” in the following exchange, presented without objection:

42

[STATE]: Did you have a copy of the police report?

[WILLIAMS]: I know I had one sheet that had all the stuff on

there.

[STATE]: And you don’t need to look at Mr. Schneider

because I’m asking you the questions. You had a

copy of the police report, isn’t that right? It’s

just—and you’re not in any trouble for that. I’m

just asking a question.

[WILLIAMS]: I just remember my lawyers giving me a sheet with

my testimony and whatever else was on there.

[STATE]: You’ve told—so, you got a chance to review all of

that as well?

[WILLIAMS]: Yes, sir, I reviewed the packet.

[STATE]: How many times did you and the defense get

together and really go over everything?

[WILLIAMS]: We got together a lot when the trial was about to—

before the court dates were about to come up.

[STATE]: And you had a chance to practice what you were

going to tell the jury, right?

[WILLIAMS]: I had a chance to practice, yes, sir, what happened.

The prosecutor later asked,

[STATE]: And you realized that when you were

talking with your lawyers that what

you said in that statement was

ridiculous; isn’t that right?

[DEFENSE COUNSEL]: Your Honor, I object to any question

about talking to lawyers.

43

[STATE]: Sustained as to any conversations

with lawyers.

Later, a prosecutor asked Williams whether a “defense lawyer went over with you”

the contents of his cellular telephone, to which Williams responded, “No, sir.”

A client has a privilege to refuse to disclose and to prevent any other person

from disclosing confidential communications made for the purpose of facilitating

the rendition of professional legal services. TEX. R. EVID. 503(b); Austin v. State,

934 S.W.2d 672, 673 (Tex. Crim. App. 1996). Therefore, application of the

attorney-client privilege depends on whether the communication sought to be

protected is “confidential.” Austin, 934 S.W.2d at 674. A communication is

“confidential” if it is not intended to be disclosed to third persons other than those

to whom disclosure is made in furtherance of the rendition of professional legal

services to the client. Id. The client bears the burden of establishing the existence

of the privilege. Id.

Here, Williams testified only that he reviewed his testimony and the police

report with his defense counsel on several occasions. Williams did not divulge any

confidential communications given to defense counsel or provided him by defense

counsel. We do not think the testimony elicited from Williams in this case

involved a disclosure which would “inhibit the normal communications necessary

for the attorney to effectively represent the client.” Id. From this record, we cannot

conclude that the testimony was inadmissible or that trial counsel was ineffective

44

for not objecting to it. Accordingly, we hold that Williams has not established that

he was deprived effective assistance of counsel at trial on the ground that trial

counsel failed to object to the above testimony.

Jones’s Testimony

Finally, Williams complains that trial counsel did not object to testimony

that his friend, Latoya Jones, “had never been convicted of a felony or a crime of

moral turpitude” and “failed to prove that she had just completed a felony deferred

adjudication probation.”

Before Jones’s testimony, during a recess, the State informed the trial court

that Jones had “a forgery out of the 208th where she successfully completed a

deferred. So, it’s not a final conviction; and under Texas case law, that’s not

admissible.” The State also noted that Jones “was not on deferred at the time that

the offense was committed, either. It was completed in 2005.”

At the outset of Jones’s testimony, the State asked whether she had “ever

been convicted of a crime, a felony or a crime of moral turpitude,” to which Jones

responded, “No.” Williams complains that trial counsel was deficient in not

questioning Jones “about the 2005 felony deferred adjudication probation after the

State opened the door by creating the false impression that she had no criminal

record.”

45

Improper “bolstering” has been defined as “any evidence the sole purpose of

which is to convince the factfinder that a particular witness or source of evidence is

worthy of credit, without substantively contributing ‘to make the existence of a fact

that is of consequence to the determination of the action more or less probable than

it would be without the evidence.’” Rivas v. State, 275 S.W.3d 880, 886 (Tex.

Crim. App. 2009) (emphasis in original) (quoting Cohn v. State, 849 S.W.2d 817,

819–20 (Tex. Crim. App. 1993)); see also Alley v. State, No. 14-09-00846-CR,

2011 WL 664742, at *5 (Tex. App.—Houston [14th Dist.] Feb. 24, 2011, pet.

ref’d) (mem. op.) (not designated for publication) (holding that trial court erred in

overruling objection to prosecutor’s question that witness had never been in trouble

with the law or been convicted of any “felonies or crimes of moral turpitude”).

The State argues that bolstering evidence is now admissible if it is relevant within

the meaning of the Texas Rules of Evidence. See TEX. R. EVID. 401, 402. It

further argues that the prosecutor’s question to Jones was relevant “to the

determination of the witnesses’ credibility because it makes a fact of consequence,

the credibility of the witness, slightly more probable than it would be without the

evidence.”

Assuming, without deciding, that the question posed to Jones was improper

and trial counsel was deficient in not objecting to the question, Williams still must

satisfy the second prong of Strickland. Under the second prong of Strickland, a

46

defendant must “show that there is a reasonable probability that, but for counsel’s

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

Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010) (quoting Strickland,

466 U.S. at 694, 104 S. Ct. at 2068). “The likelihood of a different result must be

substantial, not just conceivable.” Harrington v. Richter, ___U.S. __, 131 S. Ct.

770, 792 (2011).

Here, although the credibility of the witnesses, namely Williams, was critical

to the case, much of Jones’s testimony corroborated Williams’s previous testimony

regarding the incidents leading up to Avila’s death. For example, Jones testified

that she had provided Williams with ecstasy and smoked marijuana with him in the

past, that she had smoked marijuana and taken ecstasy with Williams at a friend’s

apartment on the night of the incident, and that Williams left her friend’s apartment

shortly thereafter. Jones did testify, however, that her friend was “openly gay” and

Williams did not appear to be “bothered” by that fact. Jones also testified that

Williams told her he had a girlfriend, but when he spoke on the phone with that

person, her voice sounded “masculine.”

Jones’s testimony constituted only a very small portion of the State’s case

and the evidence presented at trial. Much more time was spent describing the

police officers’ investigation of the scene at Avila’s apartment and Williams’s

characterization of his religious upbringing. The State did not bring up Jones’s

47

testimony or her credibility in final argument; it focused on Williams’s version of

the events by noting the number of times Avila was struck, the inconsistency of

Williams’s statements, and Machado’s testimony that he heard someone calling for

“help” in Spanish from the nearby apartment. And, finally, we believe that the

State’s single line of questioning pertaining to Jones’s criminal history would not

have greatly influenced the jury, particularly in light of Jones’s admission that she

used and provided illegal drugs to Williams. See Jones v. State, 38 S.W.3d 793,

797 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (stating that prosecutor’s

statement during closing argument that witnesses had no criminal record was “a

weak attempt to bolster the witnesses’ testimony”); see also Alley, 2011 WL

664742, at *8 (“The State did not emphasize Raymond’s lack of a criminal history

during its questioning of other witnesses or jury argument. Thus, it is unlikely the

jury’s decision to believe Raymond turned on his clean record.”).

Thus, even assuming that trial counsel was deficient in not objecting to the

prosecutor asking Jones whether she had been convicted of a felony or crime of

moral turpitude, we hold that Williams has not established that, but for such error,

if any, the results of the proceeding would be different. See Perez, 310 S.W.3d at

893.

48

We overrule Williams’s fourth issue. 8

Conclusion

We affirm the judgment of the trial court.

Harvey Brown

Justice

Panel consists of Justices Jennings, Brown, and Huddle.

Justice Jennings, dissenting.

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

8

Williams asks that, if this Court finds that the record is insufficient to establish

deficient performance of his trial counsel, we abate the appeal and remand to the

trial court for a hearing regarding his claim of ineffective assistance of counsel. In

support of this argument, Williams relies on Alvarez v. State, 79 S.W.3d 679, 682

(Tex. App.—Houston [1st Dist.] 2002, pet. dism’d). However, in Alvarez, the

defendant’s trial counsel said during sentencing that he “probably wouldn’t”

pursue a motion for new trial on the grounds of ineffective assistance of counsel.

Id. at 681. This Court held that the attorney’s statement constituted a conflict of

interest and abated the appear and remanded to the trial court for an opportunity to

file a new motion for new trial.

Here, on the contrary, there is no indication in the record that Williams’s trial

counsel failed to discuss with his client or failed to pursue a motion for new trial

on the ground of ineffective assistance of counsel. When the record does not

reflect that trial counsel withdrew or was replaced by new counsel after

sentencing, there is a rebuttable presumption that trial counsel continued to

effectively represent the defendant during the time limit for filing a motion for

new trial. See Smith v. State, 17 S.W.3d 660, 662 (Tex. Crim. App. 2000);

Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). As such, there is

also a rebuttable presumption that the defendant was counseled by his attorney

regarding the merits of the motion and ultimately rejected the option. Oldham,

977 S.W.2d at 363. And we note that Williams can always further develop the

record in this regard through an application for a writ of habeas corpus. See

Jackson v. State, 973 S.W.3d 954, 957 (Tex. Crim. App. 1998).

49