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”
How later courts described this case
- 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”
Written by the judges who cited it.
The opinion
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
58
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.
59