Andre Demont Thompson v. State

ACCEPTED

01-14-00862-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/13/2015 7:29:20 PM

CHRISTOPHER PRINE

CLERK

NO. 01-14-00862-CR

In The Court Of Appeals Of Texas FILED IN -

For The 1st COURT OF--APPEALS

- ----

HOUSTON, -

--- TEXAS

First Supreme Judicial District Of Texas 4/13/2015 - - ----ID K ------

- 7:29:20

- -- PM

---- VO ------

_____________________________________________________________

CHRISTOPHER ---- --

A. PRINE

----Clerk

NO.1364962

IN THE 178th JUDICIAL DISTRICT COURT

FILED IN

1st COURT OF APPEALS

OF HARRIS COUNTY, TEXAS HOUSTON, TEXAS

4/13/2015 7:29:20 PM

The Honorable David Mendoza, presiding CHRISTOPHER A. PRINE

Clerk

____________________________________________________________

Andre Demont Thompson

Appellant

VS

THE STATE OF TEXAS

Appellee

____________________________________________________________

APPELLANT’S ANDERS BRIEF

IN SUPPORT OF MOTION TO WITHDRAW

____________________________________________________________

GLENN J. YOUNGBLOOD

Appellant's Attorney

5555 West Loop South, Ste. 395

(713) 432-1013

(713) 432-1013 FAX

SBOT # 22217400

glenlaw@comcast.net

ORAL ARGUMENT NOT REQUESTED

TABLE OF CONTENT

TABLE OF CONTENT .................................................................................. 2

IDENTIFICATION OF THE PARTIES ........................................................ 8

STATEMENT OF CASE ............................................................................... 9

SUMMARY .................................................................................................... 9

ANDER'S BRIEF CHECKLIST ITEMS ..................................................... 10

STATEMENT OF FACTS ........................................................................... 18

STATE'S WITNESSES ............................................................................. 18

Houston Police Department Officer Rafael Flores ............................... 18

Houston Police Department Officer Adrienne King.............................. 19

Houston Police Department Officer Ivan Ullo ...................................... 20

Jackie Bergeron ..................................................................................... 21

Juan Garcia............................................................................................ 24

Houston Police Department Officer Bob Brown ................................... 24

ISSUES PRESENTED ................................................................................. 25

FRIVILOUS APPEAL .............................................................................. 25

ISSUE NUMBER ONE ............................................................................. 26

Argument and Authority......................................................................... 26

Page 2 of 49

Injecting Unsworn Testimony ............................................................ 26

Mistrial................................................................................................ 27

ISSUE NO. 2.............................................................................................. 32

Argument and Authority......................................................................... 32

IMPROPER JURY ARGUMENT ..................................................... 32

General................................................................................................ 32

Prosecutor's Opinion/Bolstering ......................................................... 34

Striking at Appellant over the shoulder of counsel ............................ 36

Name Calling ...................................................................................... 39

Ineffective Assistance of Counsel ...................................................... 43

CONCLUSION ............................................................................................. 46

Issue No. 1 Denial of Mistrial ................................................................ 46

Issue No. 2 Ineffective Assistance- Failure to Object to Improper

Argument ................................................................................................ 47

Page 3 of 49

LIST OF AUTHORITIES

CASES

Alberts v. State, 302 S.W.3d 495 (Tex.App.-Texarkana 2009, no pet.) ........................... 46

Anders v. California, 386 US 738,744, 18 LEd.2d 493, 87 S Ct 1396 (1967 ................... 7

Archie v. State, 221 S.W.3d 695,(Tex. Crim. App. 2007) .................................................. 26

Borjan v. State, 787 S.W.2d 53 (Tex. Crim. App. 1990) ................................................... 31

Brown v. State, 270 S.W.3d 564, (Tex. Crim. App. 2008) ............................................... 31

Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984) ................................................ 41

Coble v. State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993) ........................................... 31

Currie v. State, 516 SW 2d 684, 685 (Tex. Cr. App. 1974); .............................................. 7

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ................................................ 28

Evans v. State, 60 S.W.3d 269 (Tex.App.-Amarillo 2001, pet. ref'd) ................................ 45

Ex parte Chandler, 182 S.W.2d 350 (Tex. Crim. App. 2005) ........................................... 42

Ex parte Raborn, 658 S.W.2d 602 (Tex.Cr.App.1983) .................................................... 43

Fernandez v. State, 564 SW2d 771 (Tex. Crim. App. 1978)............................................ 16

Gaddis v. State, 753 S.W.2d 396 (Tex.Crim.App.1988) .................................................. 40

Garcia v. State, 57 S.W.3d 436 (Tex.Crim.App.2001) .................................................... 45

Gardner v. State, 730 S.W.2d 675 (Tex. Crim. App. 1987)................................... 28, 29, 44

Gorman v. State, 480 S.W.2d 188 (Tex.Crim.App.1972) .................................................. 36

Harris v. State, 122 S.W.3d 871, (Tex. App.--Fort Worth 2003, pet. ref'd) ..................... 30

Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004) .......................................... 25

High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978). .................................................. 7

Hubbard v. State, 770 S.W.2d 31 (Tex.App.-Dallas 1989, pet. ref'd)).............................. 45

Page 4 of 49

Jackson v. State, 766 S.W.2d 504 (Tex.Cr.App.1985) ...................................................... 43

Johnson v. State, 83 S.W.3d 229, (Tex. App.-Waco 2002, pet. ref'd) ................................ 27

Jordan v. State, 646 S.W.2d 946, (Tex. Crim. App. 1983) ............................................... 31

Kuhn v State, 393 S.W.3d 519 (Tex.App.-Austin 2013) .................................................... 45

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999)............................................... 25

Linder v. State, 828 S.W.2d 290, (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd) .......... 28

Logan v. State, 698 S.W.2d 680, (Tex.Crim.App.1985) ................................................... 41

Longoria v. State, 154 S.W.3d 747(Tex. App.-; Houston [14th Dist.] 2004, pet. ref'd) ... 27

McCoy v Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 108 S.Ct. 1895, 1902, 100

L.Ed. 2d 440 (1988). ...................................................................................................... 23

Mendez v. State, 138 S.W.3d 334 (Tex. Crim. App. 2004) .......................................... 32, 45

Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App.1981) (op. on reh'g) ................ 33

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992) .......................................... 42

Moore v. State, 999 S.W.2d 385, (Tex. Crim. App. 1999) ................................................. 27

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) ............................................... 26

Nevels v. State, 954 S.W.2d 154, (Tex. App.--Waco 1997, pet. ref'd) ............................ 35

Nixon v. State,

572 SW2d 699 (Tex. Crim. App. 1978) ...................................................................... 16

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) ............................................ 25

Orona v. State, 791 S.W.2d 125, (Tex.Crim.App.1990) ................................................... 36

Perez v. State, 187 S.W.3d 110, (Tex. App.-; Waco 2006, no pet.) .................................. 28

Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991) ............................................... 41

Strickland v. Washington, 466 U.S. 668 (1984) ............................................................... 41

Page 5 of 49

Temple v. State, 342 S.W.3d 572 (Tex. App.--Houston [14th Dist.] 2010)...................... 31

Temple v. State, 342 S.W.3d 572 (Tex.App.-Houston [14 Dist.] 2010) ............................ 30

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) ............................................... 42

Thompson, 9 S.W.3d at 813) ............................................................................................ 42

v. State, 894 S.W.2d 330 (Tex.Crim.App.), cert. denied, 516 U.S. 832, 116 S.Ct. 106, 133

L.Ed.2d 59 (1995) .......................................................................................................... 36

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) ........................................... 26

Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) ....................................... 28, 31

Williamson v. State, 771 S.W.2d 601 (Tex. App.--Dallas 1989, pet. ref'd) ...................... 32

Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) ............................................. 25

Young v. State, 137 S.W.3d 65, (Tex. Crim. App. 2004) ............................................ 32, 45

Young v. State, 137 S.W.3d 65, (Tex. Crim. App. 2004).................................................. 27

STATUTES

RULES

Code Crim. Proc. Ann. art. 42.12, § 21(d) (Vernon Supp. 2008) ..................................... 40

TEX. CODE CRIM. PRO. ART. ART 1.04 ..................................................................... 29

CONSTITUTIONAL PROVISIONS

Tex. Const. Art. 1, § 10 ..................................................................................................... 40

THE TEX. CONST. ART. 1 §§ 13,19 ............................................................................. 29

U.S. Const. amend. VI ....................................................................................................... 40

Page 6 of 49

Page 7 of 49

IDENTIFICATION OF THE PARTIES

Pursuant to Tex.R.App.P. 38.1(a), listed below is a list of the

interested parties:

1. Appellant: Mr. Andre Thompson, 01959294

Holiday Unit

295 IH-45 North

Huntsville, TX 72320

2 Appellate counsel: Glenn J. Youngblood

Attorney at Law

5555 South Loop West, Ste. 396

Bellaire, Texas 77401

(713) 432-1013

(713) 574-3042 FAX

SBOT: 22217400

glenlaw1@comcast.net

3 Trial Judge: Hon. David Mendoza

1201 Franklin St., 19th Fl.

Houston, Tx 77002

4 Complainant:

5 Defendant'sTrial Jules Johnon & Eric Davis

Counsel: Public Defender's Office

1201 Franklin St.

Houston, TX 77002

SBOT :24041199 & 24003493

6 State's Trial Counsel Mr. David Abrams

1201 Franklin St., Ste. 600

Houston, TX 77002

SBOT: 24063679

(713) 755-6916

7 Appellate Counsel for the Alan Curry

State: Assistant District Attorney

1201 Franklin, Suite 600

Houston, TX 77002

Curry_alan@dao.hctx.net

Page 8 of 49

STATEMENT OF CASE

The Appellant, Andre Demont Thompson was indicted on 1/16/2013

by a Harris County Grand Jury on a charge of Murder, a First degree felony,

alleged to have occurred on 10/5/2012. Upon Appellant’s plea of not guilty

the case was tried before a jury on October 1, 2014 through October 8,

2014. The jury found the Appellant guilty as charged and after hearing the

evidence and argument during the punishment phase of the trial sentenced

Appellant to 30 years years confinement in the Institutional Division of the

Texas Department of Criminal Justice.

Appellant gave timely and proper Notice of Appeal on 10/8/2014

SUMMARY

This Brief is prepared pursuant to the requirements for frivolous

appeals as set forth in Anders v. California, 386 US 738,744, 18 LEd.2d 493,

87 S Ct. 1396 (1967); Currie v. State, 516 SW 2d 684, 685 (Tex. Cr. App.

1974); and High v. State, 573 SW2d 807, 813 (Tex. Cr. App. 1978).

Appellate counsel sets forth two issue(s) dealing with 1) the Court's abuse of

discretion in denying Appellant's Motion for mistrial and 2) trial counsel’s

Ineffective Assistance for failure to object to several instances of improper

jury argument during the guilt/innocence and punishment phases of the trial.

Page 9 of 49

ANDER'S BRIEF CHECKLIST ITEMS

As required by the Guidelines for filing an Anders Brief the checklist

of items and comments are set forth below in conformance with said

guidelines for Jury or Bench Trial.

1. Sufficiency of the indictment.

The Appellant was properly true billed on January 6, 2014. The

Indictment is in compliance with the requirements of Tex. Code Crim.

Pro. Art. 21.01 et.seq.

2. Any adverse pretrial rulings affecting the course of the trial, including

but not limited to rulings on motions to suppress, motions to quash, and

motions for a speedy trial.

Pretrial motions and rulings filed by the parties:

Clerk's Motion Ruling Filed by

Record.

118 Motion For None; Pro Se

Discovery

40 Discovery Order Granted Court's Standard

Order

Page 10 of 49

3. Any adverse rulings during trial on objections or motions, including but

not limited to objections to admission or exclusion of evidence, objections

premised on prosecutorial or judicial misconduct, and motions for

mistrial.

Reporter's Objection Ruling Party Objecting

Record.

Vol 2/13 Improper Overruled Defense

commitment

question Motion

For Discovery

Vol 2/40 Speculation Granted Defense

Vol 4/47 Asked and Overruled Defense

Answered

Vol 4/53 Leading Overruled Defense

Vol4,/54 Relevance Overruled Defense

Vol4/57 Nonresponsive Overruled Defense

Vol4/63 Asked and Sustained State

answered

Vol4/63 Asked and Sustained State

answered

Vol4/63 Asked and Sustained State

answered

Vol4/71 Relevance Overruled Defense

Vol4/72 Improper opinion Overruled Defense

evidence

Vol 4/120 Relevance Overruled Defense

Vol4/133 Speculation Overruled Defense

Page 11 of 49

Vol4/134 Relevance Overruled Defense

Vol4/135 Legal conclusion Overruled Defense

Vol4/170 Power Point Overruled Defense

presentation may

contain hearsay

Vol4/186 narrative Overruled Defense

Vol4/232 narrative Overruled Defense

Vol4/233 Witness belief not Overruled Defense

relevant

Vol4/ 236 Relevance Overruled Defense

Vol5/101 Improper Sustained State

argument -think

that Andre is you

Vol5/131 (during bench Overruled Defense

conference)

Victim Impact

Statement

Vol5/133 Renew previous Sustained Defense

objection

Vol5/133 Relevance and Overruled Defense

improper victim

impact testimony

Vol5/141 Relevance Overruled Defense

Vol6/34 Improper Overruled Defense

Argument

Vol5/35 Improper Overruled` Defense

argument

Vol5/36 Improper-calls for Overruled Defense

law enforcement

Vol6/7 Relevance Sustained State

Page 12 of 49

Vol6/34 Improper Overruled Defense

argument

Vol6/35 Improper Overruled Defense

argument

Vol6/36 Calls for law Overruled Defense

enforcement

4. Any adverse rulings on post-trial motions, including motions for a new

trial.

None

5. Jury selection

Jury selection was without controversy.

6. Jury instructions

There were no objections to the jury charge or instructions. The

defense requested and received a charge on sudden passion.

7. Sufficiency of the evidence, including a recitation of the elements of the

offense(s) and facts and evidence adduced at trial relevant to the offense(s)

upon which conviction is based.

The evidence produced by the State consisted of testimony by:

Page 13 of 49

Jackie Bergeron who stated that he and his friend, the Complainant,

came to a park within the Green Arbor Apartment complex located in

Houston, Texas . The Appellant was there. The witness and the defendant

had been in an altercation on a previous occasion. Jackie claimed the

Appellant approached them with a gun tucked in his waist band in front of

his shirt. Jackie explained that this was considered a threat in the

neighborhood.

He went on to say that the Complainant showed that he also had a

gun. The three of them got into a verbal altercation with name calling and

cursing. When the Appellant pulled out his gun, Jackie and the Complainant

ran; each taking a different path. Jackie said he did not see the shooting but

that he did hear gunshots. When he came around the building he saw the

Complainant laying on the ground dead. Jackie said he took the gun that the

Complainant had and hid it. He said he intended to come back and retrieve

that gun because guns were hard to come by. [Reporter's Record, Vol. 3, Pg.

163- 188; Vol 4, Pg. 47-74].

Additional testimony was elicited from Houston Police Department

Officer Bob Brown. Officer Brown worked in the Criminal Intelligence

Division in a unit called the Cellular Intelligence Unit. Officer Brown

testified explaining how cell phone records can be used to track the travel

Page 14 of 49

and approximate location of a cell phone. He described how he used the cell

phone records of the Appellant to place the cell phone near the crime scene

at the time of the murder. [Reporter's Record, Vol. 4, Pg 169 - 231].

Mr. Juan Garcia gave testimony relating that he was in his apartment

when he heard gun shots. He looked out of his glass sliding patio door and

could clearly see the playground area. He said he saw a guy with a gun and a

boy running. As he watched he saw the boy fall. The guy then walked to the

boy, stood over him and partially raised the boy and shot him one or two

more times. [Reporter's Record, Vol. 4, Pg. 69 -231].

Additional testimony was presented through:

• the initial responding officer describing the crime scene;

• an Houston Police Department Detective who investigated the case;

• a Crime Scene Unit officer describing how the scene was preserved;

• a ballistics expert who gave some information about guns described

the gun Jackie hid as a 22 caliber revolver; and

• A DNA Analyst to explain the lack of usable DNA.

Dr. Roger Milton of the Harris County Institute of Forensic Sciences,

formerly the Harris County Medical Examiner's Office, testified regarding

his findings from the autopsy he conducted. He described the seven wounds

to the body of the Complainant. He pointed out the relative positions of the

Page 15 of 49

body with respect to each wound and which wounds were fatal and non-

fatal. [Reporter's Record, Vol. 5, Pg 8 - 54].

Elements of the offense charged are:

 In Harris County, Texas;

 Andre Demont Thompson;

 Did then and there unlawfully;

 Intentionally and knowingly

 cause the death of Thomas Williams;

 by shooting the Complainant sic [Thomas Williams];

 with a deadly weapon, namely a firearm.

 without any consent of any kind.

Further:

• Andre Demont Thompson;

• Did then and there unlawfully;

• intend to cause serious bodily injury;

• to Thomas Williams;

• and did cause the death of Thomas Williams;

• by intentionally and knowingly;

• committing an act clearly dangerous to human life;

Page 16 of 49

• by shooting the Complainant with a deadly weapon, namely a

firearm.

8. Any failure on the part of Appellant’s trial counsel to object to

fundamental error.

None. All trial objections are set forth in the Table of Objections in

Item 2 above.

9. Any adverse rulings during the punishment phase on objections or

motions.

All trial objections during the punishment phase are set forth in the

Table of Objections in Item 2 above under the column Reporter's Record,

Vol.6.

10. Whether the sentence imposed was within the applicable range of

punishment.

Appellant was found guilty as charged. The 30 year sentence was

within the range of punishment for the offense.

11. Whether the written judgment accurately reflects the sentence that was

imposed and whether any credit was properly applied.

Page 17 of 49

The Judgment jury finding and the Court imposed sentence accurately

reflects the sentence and the time credited to his 30 year sentence.

12. Examination of the record to determine if the Appellant was denied

effective assistance of counsel.

The record was examined to determine if Appellant had been denied

effective assistance of counsel and none was found. However, in accordance

with the requirements of an Anders brief arguable points of ineffective

assistance are included within the following brief.

STATEMENT OF FACTS

As must be done in accordance Fernandez v. State, 564 SW2d

771 (Tex. Crim. App. 1978) and Nixon v. State, 572 SW2d 699 (Tex. Crim.

App. 1978), viewed in the light most favorable to the verdict, the record

reflects the following:

STATE'S WITNESSES

Houston Police Department Officer Rafael Flores

Officer Flores explained generally how Houston Police Department

responds to calls and how a crime scene is secured until the crime scene unit

and investigators arrive. He also explained that statements from potential

witnesses are sought and taken.

Page 18 of 49

Officer Flores stated that he was on patrol and received a dispatch to

10601 Sabo the Green Arbor Apartment Complex. When he arrived he was

directed to the scene by residents where he found the body of the Thomas

Williams. There were about fifty people gathered around and he was

concerned the crime scene would be contaminated and he tried to move

them back. There was a man who said he was a nurse giving the

Complainant chest compressions he was allowed to continue his efforts. A

paramedic arrived and assisted in preserving the scene. later the investigators

arrived. After that Officer Flores left the scene. [Reporter's Record, Vol. 3,

Pg. 24 -29; 30-40].

Houston Police Department Officer Adrienne King

Houston Police Department Crime Scene Unit Officer King arrived at

the scene. Officer King described how she met with Officer Flores, began to

take photographs and mark possible items of evidence. This included placing

numbered markers at locations where shell casings, etc. were found. She

also took photographs of a gun, later determined to be a .22 caliber revolver

carried by the Complainant, hidden in bushes.

Officer King stated that she prepared a rough sketch of the area

surrounding the crime scene and indicated the relative locations of the items

of possible evidence. The State offered State's Exhibits 1-3, 4-44, and 61

Page 19 of 49

through Officer King; all of which were admitted without objection except

for State's Exhibit 61. The defense objected to State's 61 on the grounds that

it was a photograph of the body of the Complainant which would be highly

prejudicial. The objection was overruled.

Houston Police Department Officer Ivan Ullo

Houston Police Department Detective Ivan Ullo stated that he and his

partner, along with a probationary Detective arrived at the Green Arbor

apartment complex. He said that he and his partner began locating possible

witnesses while the probationary detective investigated the scene.

Detective Ullo was able to locate a witness named Jackie Bergeron.

He also developed a suspect known as Dre., later determined to be the

Appellant, Andre Thompson. After repeated attempts to contact the

Appellant, Detective Ullo had a warrant issued for the arrest of the

Appellant. During his investigation Detective Ullo was able to locate two

telephone numbers belonging to the Appellant; one was a land line and the

other was a cell phone. The State offered State's Exhibit 62, a photograph of

the Appellant. State's 62 was admitted without objection. [Reporter's Record,

Vol. 3 Pg 145 - 148].

Page 20 of 49

Jackie Bergeron

Jackie Bergeron, a nineteen year old male testified that he and his

friend Thomas Williams, the Complainant, went to the Green Arbor

apartment complex on October 5, 2012. He described the Complainant as a

friend he hung out with a lot who was fifteen years old at the time of his

death. The witness described how he and the Complainant were waiting for a

ride and were just "chilling out" and talking to some other acquaintances at

the playground area in the complex.

He described where they were on State's Exhibit 3A. He then

responded to the Prosecutor's question that he"…knew exactly who

murdered his friend… I see him right now…" When asked could he point

him out and identify him by a piece of clothing he is wearing he responded

"Blue in his tuxedo with the little twists in his head. Dude right there. You

see him." The witness positively identified the Appellant. [Reporter's

Record, Vol. 3, Pg. 163-169].

Jackie Bergeron testified that when he and the Complainant arrived at

the playground area he saw the Appellant was there "hanging out". Mr.

Bergeron stated that he knew the Appellant hung around the apartment

complex and that he had had an altercation, a fist fight, with him before. The

witness also stated that he had no bad blood toward the Appellant; he

Page 21 of 49

thought the incident was over. The witness testified that the Appellant

approached him and the Complainant with his gun "tucked"; the gun was

showing, he had the shirt behind the gun so it was showing. [Reporter's

Record, Vol. 3, 169 -174].

The witness explained that when the Appellant approached them the

Complainant lifted his shirt to show that he had a gun as if to say they were

not worried. "He was like, you know what I'm saying, we ain't worried about

your gun. We got guns, too. You know what I'm saying? He showed him

just like this. We have guns. We're not worried about your gun." [Reporter's

Record, Vol. 3, Pg. 177-179].

The three of them got into a verbal confrontation involving name

calling and cursing. The witness stated that at that time he just wanted to

fight the Appellant, but when the Appellant put his hand on his gun he

thought there was no squabbling, no fighting He told his friend "He is not

trying to fight, let's go. The next thing the witness knew gun shots came. he

started shooting." He went on to state that that is when they started running;

both in the same direction. [Reporter's Record, Vol.3 Pg. 180- 183].

Jackie Bergeron testified that he thought his friend was running with

him and when he turned and saw his friend falling. The witness ran in a

circle going through a couple of alley ways and came back around because

Page 22 of 49

he thought the Appellant was chasing him. When he came back around the

Appellant was gone and he saw his friend on the ground. Mr. Bergeron

estimated the time it took for him to run around that circle was

approximately thirty seconds.[Reporter's Record, Vol. 3, Pg. 184-185].

Jackie said that when he came around he saw his friend laying on the

ground face down in the grass. He was dead. The witness further explained

that "When I seen him it was like he was trying to gasp for some air, you

know what I'm saying?" The next thing he knew his friend took his last

breath and he was gone. He explained that at that time he was crazy. There

was nothing he could do. He was sad, mad, and everything. Jackie Bergeron

went on to admit that he took the gun from his friend's body and hid it in the

immediate vicinity. In closing direct examination he stated that he was 110%

sure the Appellant was the man he saw on October 5, 2012. [Reporter's

Record, Vol. 3, Pg. 186 -189].

After a lengthy discussion at the bench out-side the jury's presence,

and a recess until the next day to allow the Court to review the law and

argument of counsel, the Defense was allowed to go into the aggravated

robbery committed by the Complainant and Jackie Bergeron's just before the

shooting of the Complainant. He also admitted that he was serving

[Reporter's Record, Vol.3 Pg. 188- 206; Vol. 4 Pg. 5 - 21].

Page 23 of 49

Juan Garcia

Mr. Juan Garcia gave testimony relating that he was in his apartment

when he heard gun shots. He looked out of his glass sliding patio door and

could clearly see the playground area. He said he saw a guy with a gun and a

boy running. As he watched he saw the boy fall. The guy then walked to the

boy, stood over him and partially raised the boy and shot him one or two

more times. [Reporter's Record, Vol. 4, Pg. 69 -231].

Houston Police Department Officer Bob Brown

Additional testimony was elicited from Houston Police Department Officer

Bob Brown. Officer Brown worked in the Criminal Intelligence Division in

a unit called the Cellular Intelligence Unit. Officer Brown testified

explaining how cell phone records can be used to track the travel and

approximate location of a cell phone. He described how he used the cell

phone records of the Appellant to place the cell phone near the crime scene

at the time of the murder. [Reporter's Record, Vol. 4, Pg 169 - 231].

Page 24 of 49

ISSUES PRESENTED

FRIVILOUS APPEAL

Appellate counsel has a duty to master the trial record, thoroughly

research the law, and exercise judgment in identifying the arguments that

may be advanced on appeal. McCoy v Court of Appeals of Wisconsin, Dist.

1, 486 U.S. 429, 438, 108 S.Ct. 1895, 1902, 100 L.Ed. 2d 440 (1988). In

searching for the strongest arguments available, the attorney must be zealous

and must resolve all doubts and ambiguous legal questions in favor of his or

her client. Id. 486 U.S. at 444, 108 S.Ct. at 1905. If the only theories that the

attorney can find after a conscientious review of the record and the law are

arguments that cannot conceivably persuade the appellate court then the

appeal should be considered frivolous. Id. 486 U.S. at 436, 108 S.Ct. at

1901.

The undersigned attorney has reviewed the trial court record and has

researched the applicable law and has found only two theories which might

remotely constitute a basis upon which to appeal this cause. However, in his

opinion this theory cannot conceivable persuade the appellate court in favor

of reversal or remand of Appellant’s cause. The legal theories appellate

counsel has found are presented below as Issues Number One and Two.

Page 25 of 49

ISSUE NUMBER ONE

THE TRIAL COURT ABUSED IT'S DISCRETION DURING THE

TRIAL WHEN IT OVERRULED THE DEFENSE OBJECTION TO

IMPROPER JURY ARGUMENT DURING GUILT/INNOCENCE PHASE

OF THE TRIAL.

Argument and Authority

Injecting Unsworn Testimony

During closing argument at the guilt/innocence phase of trial the

Prosecutor injected unsworn testimony that was outside the record when he

said at [Reporter's Record, Vol. 5, Pg. 105]:

2 MR. ABRAMS: In her entire career she

3 has never found DNA on a shot shell casing. We don't

4 have pristine bullets. Absolutely, if we had one

5 pristine bullet, that would be wonderful, right?

6 We'd try to get fingerprints or DNA. There is no DNA

7 on spent shell casings.

8 MR. JOHNSON: Objection, Your Honor;

9 outside the record.

Page 26 of 49

10 THE COURT: That's sustained

11 MR. JOHNSON: Your Honor, I'd ask that

12 the jury be instructed to disregard.

13 THE COURT: Jury is instructed to

14 disregard the last comment.

15 MR. JOHNSON: Your Honor, we'd ask for

16 a mistrial.

17 THE COURT: That's denied.

Mistrial

A mistrial halts trial proceedings when error is so prejudicial

that expenditure of further time and expense would be wasteful and futile.

Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). The particular

facts of the case determine whether an error requires a mistrial. Id. A mistrial

is an appropriate remedy in extreme circumstances for a narrow class of

highly prejudicial and incurable errors. See Hawkins v. State, 135 S.W.3d 72,

77 (Tex. Crim. App. 2004); Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim.

App. 2000).

A trial court's denial of a motion for a mistrial is reviewed for an abuse

of discretion. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009).

The evidence is viewed in the light most favorable to the trial court's ruling,

Page 27 of 49

considering only those arguments before the court at the time of its ruling

and the courts will uphold the ruling if it was within the zone of reasonable

disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004).

The Court of Criminal Appeals has determined that the appropriate test

for determining whether a trial court abused its discretion by denying a

motion for a mistrial is a tailored version of the Mosley test according to

which it will balance three factors: (1) the severity of the misconduct (the

magnitude of the prejudicial effect of the prosecutor's remarks); (2) the

measures adopted to cure the misconduct (the efficacy of any cautionary

instruction by the trial court); and (3) the certainty of conviction absent the

misconduct (the strength of the evidence supporting the conviction). See

Archie v. State, 221 S.W.3d 695, 700 (Tex. Crim. App. 2007) (citing Mosley

v. State, 983 S.W.2d 249, 259&260 (Tex. Crim. App. 1998)); Hawkins, 135

S.W.3d at 77 (same).

Due to the extremity of the remedy, a mistrial should be granted only

when less drastic alternatives have been explored (i.e., instructing the jury to

disregard inadmissible evidence or comment) and residual prejudice yet

remains. See Ocon, 284 S.W.3d at 884,885. While requesting lesser

remedies is not a prerequisite to a motion for mistrial in all situations, when

the movant fails to request a lesser remedy, we will not reverse the court's

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judgment if the less drastic alternative could have cured the problem. Ocon,

284 S.W.3d at 885; Young v. State, 137 S.W.3d 65, (Tex. Crim. App. 2004);

see also Wood, 18 S.W.3d at 648 (concluding that trial court did not abuse

its discretion in denying defendant's motion for mistrial when defendant had

not requested less drastic remedy of continuance). See Archie, 221 S.W.3d at

699,700 (stating that harmless-error analysis under Rule 44.2(a) is improper

when trial court sustains objection but denies request for mistrial because

only adverse ruling -denial of mistrial is reviewed for abuse of discretion).

The only issue with which we are presented is whether the denial of

Appellant's motion for mistrial was an abuse of discretion.

Numerous Courts have held that such errors may be cured by an

instruction by the trial court to disregard the comment. See Moore v. State,

999 S.W.2d 385, 405, 406 (Tex. Crim. App. 1999) (concluding that

instruction to disregard cured harm from comment on defendant's failure to

testify); Longoria v. State, 154 S.W.3d 747, 763, 764 (Tex. App.-; Houston

[14th Dist.] 2004, pet. ref'd) (holding instruction to disregard prosecutorial

comment on defendant's failure to testify cured error); Johnson v. State, 83

S.W.3d 229, 231, 233 (Tex. App.-Waco 2002, pet. ref'd) (holding trial court

did not abuse its discretion in denying motion for mistrial because

instruction to disregard prosecutorial question regarding defendant's failure

Page 29 of 49

to testify cured error); Linder v. State, 828 S.W.2d 290, 301 (Tex. App.-

Houston [1st Dist.] 1992, pet. ref'd) (holding instruction to disregard

prosecutorial comment on defendant's failure to testify cured error). When

an instruction to disregard is given, it is presumed that the jury followed the

instruction in the absence of evidence that it did not. See Ladd, 3 S.W.3d at

567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.

1987)).

In most instances, an instruction to disregard will cure the prejudicial

effect. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). An

instruction to disregard is presumptively inadequate only in the most blatant

cases; only offensive or flagrant improper conduct warrants reversal when

there has been an instruction to disregard. Perez v. State, 187 S.W.3d 110,

112,113 (Tex. App.-; Waco 2006, no pet.) (citing Dinkins v. State, 894

S.W.2d 330, 356 (Tex. Crim. App. 1995)).

Although the nature of the right affected by the Prosecutor's insertion

of unsworn testimony was serious, the prejudicial effect may be lessened by

the absence of flagrancy and persistency. See Perez, 187 S.W.3d at 112,113.

The defense requested an instruction and the Court instructed the jury

to disregard the last comment. The Prosecutor's argument cannot be said to

have been flagrant or persistent. It is presumed that the jury followed the

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instruction in the absence of evidence that it did not. See Ladd, 3 S.W.3d at

567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.

1987)). No such evidence of flagrancy or persistence is presented in this

case.

Page 31 of 49

ISSUE NUMBER TWO

THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL DUE TO TRIAL COUNSE 'S FAILURE TO OBJECT TO THE

IMPROPER ARGUMENT OF THE PROSECUTOR DURING CLOSING

ARGUMENTS IN THE GUILT/INNOCENCE AND PUNISHMENT

PHASES OF THE TRIAL, CONSTITUTING A DENIAL OF

APPELLANT'S RIGHTS UNDER THE U.S. CONST. AMEND. 6TH AND

14TH, THE TEX. CONST. ART. 1 §§ 13,19 AND TEX. CODE CRIM.

PRO. ART. ART 1.04

Argument and Authority

IMPROPER JURY ARGUMENT

General

The First Court of Appeals stated in Temple v. State, 342 S.W.3d 572

(Tex.App.-Houston [14 Dist.] 2010), the purpose of closing argument is to

facilitate the jury's proper analysis of the evidence presented at trial in order

to arrive at a just and reasonable conclusion based solely on the evidence.

Harris v. State, 122 S.W.3d 871, 883 (Tex. App.--Fort Worth 2003, pet.

ref'd). Proper jury argument generally falls within one of four general areas:

(1) summation of the evidence;

(2) reasonable deduction from the evidence;

Page 32 of 49

(3) answer to argument of opposing counsel; and

(4) plea for law enforcement.

See also Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008); see

also Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Coble v.

State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993).

A prosecuting attorney is permitted in his argument to draw from the

facts in evidence all inferences which are reasonable, fair, and legitimate,

but he may not use the jury argument to get before the jury, either directly or

indirectly, evidence which is outside the record. Borjan v. State, 787 S.W.2d

53, 57 (Tex. Crim. App. 1990) (citing Jordan v. State, 646 S.W.2d 946, 948

(Tex. Crim. App. 1983)).

When jury argument falls outside the approved areas, " it will not

constitute reversible error unless it is extreme or manifestly improper or

injects new facts harmful to the accused into the trial proceeding." Temple v.

State, 342 S.W.3d 572, 602-603 (Tex. App.--Houston [14th Dist.] 2010),

aff'd, 390 S.W.3d 341 (Tex. Crim. App. 2013); see Tex. R. App. P. 44.2(b);

Brown, 270 S.W.3d at 570.

To preserve error based on improper jury argument, the

defendant must object to the argument and pursue the objection until the trial

court rules adversely. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d

Page 33 of 49

334, 341 (Tex. Crim. App. 2004). The objection must be " a timely, specific

request that the trial court refuses." Young v. State, 137 S.W.3d 65, 69 (Tex.

Crim. App. 2004).

Prosecutor's Opinion/Bolstering

Argument that injects the prosecutor's opinion of a witness' credibility

is improper. Williamson v. State, 771 S.W.2d 601, 608 (Tex. App.--Dallas

1989, pet. ref'd). Proper jury arguments may, however, include argument as

to the truthfulness of a witness's testimony so long as the argument is based

on the evidence presented and reasonable deductions from such evidence,

including the complainant's demeanor while testifying. See Gonzalez, 337

S.W.3d at 483; see also Good, 723 S.W.2d at 736-37 (holding that

prosecutor's argument on truthfulness of witness was reasonable deduction

from witness's testimonial demeanor, which is considered to be in evidence);

Graves, 176 S.W.3d at 431 (stating that jury argument may include

vouching for witnesses' credibility if it is reasonable deduction from

evidence). Hinosa v State, 433 S.W.3d 742 (Tex.App.-San Antonio 2014)

The State's closing injected the Prosecutor's opinion vouching for

truthfulness of Jackie Bergeron's testimony when he argued "…he told the

truth…". This inserted opinion was not " based on reasonable deductions

from the evidence" and constituted unsworn testimony. See Gonzalez, 337

Page 34 of 49

S.W.3d at 483; see also Wesbrook, 29 S.W.3d at 115; Felder, 848 S.W.2d at

95. The prosecutor in furtherance of his opinion went on to argue "…he told

the truth…", "…he was up front with you…", "He has no reason to come in

here and say anything that's not true." [Reporter's Record, Vol. 5, Pg. 106 -

107]. The prosecutor's statements were improper and turned him into an

unsworn witness. These assertions that the prosecutor improperly expressed

were his personal opinion regarding the credibility of the State's key witness.

In Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App.1981) (op.

on reh'g) The Court stated " In the instant case Virse Hayes was the only

witness who could identify Appellant as the person who committed the

offense. On cross-examination her credibility was subjected to strong attack.

She admitted to having given a different statement about the color of the car

used by the robbers, and at one point she stated, '... you know, this robbery

has been far back, you know; you can't hardly remember.' The credibility of

this witness was critical to the trial of this case. The jury argument injected

the prosecutor's personal opinion of her credibility. In view of the trial

court's action overruling Appellant's objection, we cannot find harmless

error."

Page 35 of 49

In Appellant's case the credibility of the key witness Jackie Bergeron

was critical to this case. He was the only witness who could identify

Appellant as the person who committed the offense. On cross-examination

his credibility was subjected to attack. He admitted to committing an

aggravated robbery earlier in the day just before arriving at Green Arbor

apartment complex. He admitted that it was he who held the gun on the

victims of his earlier crime and that he was on eight years deferred

adjudication for that offense. He admitted he still had seven years to serve.

He further reluctantly admitted that his conduct on probation was to make

himself look good in the eyes of the probation officer. [Reporter's Record,

Vol. 4., Pg 17 - 20 ].

As in Menefee, the Prosecutor injected his personal opinion of the

credibility of the State's key witness and cannot be considered harmless

error. Here, however, the defense failed to raise an objection, request an

instruction to disregard or move for a mistrial.

Striking at Appellant over the shoulder of counsel

Comments which appear to cast aspersions on the character of defense

counsel, and as a result, " strike over counsel's shoulders at the defendant,"

are not within the zone of proper jury argument. Nevels v. State, 954 S.W.2d

Page 36 of 49

154, 158 (Tex. App.--Waco 1997, pet. ref'd). During the State's closing the

prosecutor made the following comments [Reporter's Record, Vol. 5, Pg.

104]:

Mr. Abrams:

….

1 The defense's job is to come in here

2 and say, "We want more evidence." They do it every

3 day. It's what they do. And personally it offends

4 me when they come in here and try to say you should

5 feel guilty of yourselves to make this decision.

6 It's on you. Absolutely not.

7 It's on him. He's the one that did

8 that. He's the one that took this action. The

9 defense's job is to throw everything up in the air as

10 much as they can and see what sticks. Well, maybe it

11 could be this, maybe it could be that. I think

12 Mr. Johnson said there were just too many maybes.

13 That is not reasonable doubt. It never is.

[Reporter's Record, Vol. 5, Pg. 104/1-12].

Again no objection by the defense.

Page 37 of 49

"This Court maintains a special concern for final arguments that result

in uninvited and unsubstantiated accusation of improper conduct directed at

a defendant's attorney." Orona v. State, 791 S.W.2d 125, 128

(Tex.Crim.App.1990). Courts have indicated in the past that mild comments

may not be erroneous, so long as they can be interpreted as an attack on

arguments made by the defense counsel. Gorman v. State, 480 S.W.2d 188,

190 (Tex.Crim.App.1972)(Prosecutor said of defense counsel: "Don't let him

smokescreen you, he has smoke-screened you enough"). However, that

holding has been brought into question by more recent precedent indicating

that legitimate arguments by defense counsel cannot serve as a basis for

permitting prosecutorial comments that "cast aspersion on defense counsel's

veracity." Dinkins v. State, S.W.2d 330, 357 (Tex.Crim.App.), cert. denied,

516 U.S. 832, 116 S.Ct. 106, 133 L.Ed.2d 59 (1995)(Prosecutor stated that

defense counsel "wants to mislead you a little bit by saying....").

The State's argument, as well as inserting unsworn testimony, was a

clear effort to inflame the jurors against the Appellant and counsel. This

argument was an attempt to discredit defense counsel by insinuating that

counsel would try to mislead the jury, "it's what they do" "they do it every

day" by "…throwing everything up in the air as much as they can and see

Page 38 of 49

what sticks." The accused is entitled to a fair trial without reference to

outside prejudicial influence of the prosecutor's improper argument.

`Again no objection was raised.

Name Calling

The prosecutor argued during the punishment phase and introduced

unsworn testimony from outside the record to support his improper name

calling of the Appellant. In calling the jury's attention to the time aspect of

punishment rather than the economic aspect he argued:

4 And in determining that, you heard the

5 expression, "Motivation determines behavior." What

6 that means is that who you are as a person, decides

7 how you act. I don't know if any of you saw that it

8 was in a video back on CNN, maybe six months, a year

9 ago, something like that, where it was a mother, who

10 had her little baby, and she was holding -- she was

11 at the zoo -- and she holding this baby near the lion

12 cage.

13 And there was a clear plastic barrier

14 between this baby and the lion, and the baby is

Page 39 of 49

15 sitting there dancing, moving around, and the lion

16 comes out. It's gnawing right there. Everybody

17 thinks, oh, it's hilarious. It's cute. It's so

18 great mom's filming it, sends it to CNN, everybody

19 watches it. But was that really cute? What would

20 have happened if that glass barrier was not there?

21 That baby is a goner. Because the motivation of a

22 lion, a lion is a killer. A lion is a predator.

23 That lion would have eaten that baby and nothing

24 would have changed.

25 The defendant is a killer. He is a

1 predator.

[Reporter's Record, Vol. 6, Pg 32].

Not being satisfied with the extent of his vituperation he went on

with:

25 MR. ABRAMS: Have you seen the movie,

1 Jaws? I mean, for those who haven't seen it, it's a

2 about a man-eating shark, right? And there is a

3 scene in which there on a dock, all right.

4 And Chief Brody, he's one of the main

5 characters in the movie. And they're on this dock,

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6 and he has this gigantic shark hanging right there

7 and he's standing there. He's feeling good. He's

8 pumping his chest. I did a great job. I caught this

9 shark, and there's a group of people around him.

10 They're pumping their chests. Great job, Chief.

11 And then there's a woman that comes up

12 to him. She's dressed in black. She's obviously

13 mourning, slaps him across the face and says, "Why

14 did you let people go in the water if you knew there

15 was a shark?" And she walks away.

16 Now, everyone else gets around and

17 says, "Don't worry, you did a good job. You caught

18 that shark. Don't worry. Don't listen to her. It's

19 not your fault."

20 And he says, "No, it is."

21 This man is a shark. We have to decide

22 if we want to let him back in the waters in our

23 community.

[Reporter's Record, Vol. 6, Pg. 34 -35].

Page 41 of 49

Again no objection was made.

Although there appear to be decisions by this Court approving

referring to the defendant as "an animal", we also find that there are many

decisions of this Court which have reversed convictions because of such

remarks as were made here. See the cases collated in Erisman's Manual of

Reversible Errors in Texas Criminal Cases (1956 edition), § 529. Whether

such an argument will constitute reversible error, however, must be decided

on an ad hoc basis." Tompkins v. State, 774 S.W.2d 195 (Tex.Crim.App.

1987).

Again, Appellant did not object to this argument.

Proper jury arguments include summation of the evidence presented at

trial and reasonable deductions from that evidence. Gaddis v. State, 753

S.W.2d 396, 398 (Tex.Crim.App.1988). The prosecutors' references to

Appellant as an lion, a predator and a shark were not summations of the

witnesses' testimony because none of the witnesses referred to Appellant in

those terms. Additionally, arguing a CNN news item and scenes from the

movie Jaws, was the introduction of unsworn testimony outside the record

was meant to aggravate an already bad argument to harm the Appellant..

Page 42 of 49

These arguments were not reasonable deductions from the evidence.

The use of such terms was not warranted in the this case and were an

improper deduction from the evidence.

Again the potential for harm in the arguments could arguably have

been cured by instructions to disregard if Appellant had objected and

requested such instructions. Logan v. State, 698 S.W.2d 680, 682

(Tex.Crim.App.1985).

Ineffective Assistance of Counsel

Both federal and state constitutions guarantee a defendant the right to

counsel. See U.S. Const. amend. VI; Tex. Const. Art. 1, § 10. Defendants

have a right to effective assistance of counsel unless it is affirmatively

waived. Tex. Code Crim. Proc. Ann. art. 42.12, § 21(d) (Vernon Supp.

2008). "The right to counsel affords an accused an attorney `reasonably

likely to render and rendering reasonably effective assistance.'" Stafford v.

State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991) (quoting Cannon v.

State, 668 S.W.2d 401, 402 (Tex. Crim. App. 1984)). In analyzing claims of

ineffective assistance of counsel, the two-part test announced in Strickland

v. Washington, 466 U.S. 668 (1984) is applied. Ex parte Ellis, 233 S.W.3d

324, 330 (Tex. Crim. App. 2007). Under this framework, Appellant "must

Page 43 of 49

prove by a preponderance of the evidence that: (1) `his counsel's

performance was deficient'; and (2) `there is a `reasonable probability'--one

sufficient to undermine confidence in the result--that the outcome would

have been different but for his counsel's deficient performance.'" Id. (quoting

Ex parte Chandler, 182 S.W.2d 350, 353 (Tex. Crim. App. 2005)).

To establish deficient performance, Appellant "must show that

`counsel was not acting as `a reasonably competent attorney,' and his advice

was not `within the range of competence demanded of attorneys in criminal

cases.'" Id. (quoting Ex parte Chandler, 182 S.W.3d at 354). Appellant "must

overcome the `strong presumption that counsel's conduct fell within the wide

range of reasonable professional assistance.'" Id. (quoting Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999)). Therefore, Appellant

"must `overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy.'" Id. (quoting

Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992)). "The

reasonableness of an attorney's performance is judged according to the

`prevailing professional norms' and includes an examination of all the facts

and circumstances involved in a case." Id. (quoting Strickland, 466 U.S. at

688). "We 'must be highly deferential to trial counsel and avoid the

deleterious effects of hindsight.' " Id. (quoting Thompson, 9 S.W.3d at 813).

Page 44 of 49

Under the second prong of the Strickland analysis, Appellant "must

establish that the constitutionally deficient performance prejudiced his

defense--that is, he must show that `there is a reasonable probability that, but

for counsel's unprofessional errors, the result of the proceeding would have

been different.' " Id. (quoting Ex parte Chandler, 182 S.W.3d at 354). "`A

reasonable probability is a probability sufficient to undermine confidence in

the outcome.'" Id. at 330-31 (quoting Strickland, 466 U.S. at 694). "When

making this determination, any constitutionally deficient acts or omissions

will be considered in light of the `totality of the evidence before the judge or

jury.'" Id. at 331 (quoting Strickland, 466 U.S. at 695).

"While this Court normally looks to the "totality of the representation"

and "the particular circumstances of each case in evaluating the effectiveness

of counsel, Ex parte Raborn, 658 S.W.2d 602, 605 (Tex.Cr.App.1983), we

have also found that under some circumstances a 'single error of omission by

... counsel [can] constitute[ ] ineffective assistance'." Jackson v. State, 766

S.W.2d 504 (Tex.Cr.App.1985), modified on other grounds on remand from

the U.S. Supreme Court 766 S.W.2d 518 (Tex.Cr.App.1988).

Under these circumstances, Appellant's counsel by failing to object to

the improper argument of the State as set forth above rendered ineffective

assistance. Moreover, these errors, made at the punishment phase were of a

Page 45 of 49

magnitude significant enough to render applicant's counsel ineffective.

Jackson v. State, supra.

CONCLUSION

Conclusions as to each of the issues and their subparts raised follows.

Issue No. 1 Denial of Mistrial

The nature of the right affected by the Prosecutor's insertion of

unsworn testimony was serious, the prejudicial effect was increased by the

flagrancy and persistency. See Perez, 187 S.W.3d at 112,113. Throughout

his closings the Prosecutor's argument in Appellant's case were persistence

flagrant .

The defense requested an instruction and the Court instructed the jury

to disregard the last comment. It is presumed that the jury followed the

instruction in the absence of evidence that it did not. See Ladd, 3 S.W.3d at

567 (quoting Gardner v. State, 730 S.W.2d 675, 696 (Tex. Crim. App.

1987)). No such evidence of flagrancy or persistence is presented in this

case.

Page 46 of 49

Issue No. 2 Ineffective Assistance- Failure to Object to Improper

Argument

In order to preserve any error based on improper jury argument, the

defendant must object to the argument and pursue the objection until the trial

court rules adversely. Tex. R. App. P. 33.1(a); Mendez v. State, 138 S.W.3d

334, 341 (Tex. Crim. App. 2004). The objection must be " a timely, specific

request that the trial court refuses." Young v. State, 137 S.W.3d 65, 69 (Tex.

Crim. App. 2004). Failure to object waives the complained of error.

"The decision to object to particular statements uttered during closing

argument is frequently a matter of legitimate trial strategy." Kuhn v State,

393 S.W.3d 519 (Tex.App.-Austin 2013),Evans v. State, 60 S.W.3d 269, 273

(Tex.App.-Amarillo 2001, pet. ref'd) (citing Hubbard v. State, 770 S.W.2d

31, 45 (Tex.App.-Dallas 1989, pet. ref'd)). "Thus, evidence of counsel's

strategy, if any, is crucial to determining whether he was ineffective" in

failing to object to such a statement. Id.

If any reasonably sound strategic motivation can be imagined Courts

will not find counsel's performance deficient. See Garcia v. State, 57

S.W.3d 436, 440 (Tex.Crim.App.2001). One such reasonably sound strategic

motivation could have been the desire to avoid drawing additional attention

to the prosecutor's opinion. Cf. Alberts v. State, 302 S.W.3d 495, 506 n. 7

Page 47 of 49

(Tex.App.-Texarkana 2009, no pet.) (concluding that counsel's decision to

withhold objection to testimony concerning victim's truthfulness may have

been tactical decision to avoid calling jury's attention to objectionable

testimony).

Had Appellant's counsel objected to the complained of statements, the

prosecutor would have stopped his argument at that point to respond to the

objection, and the jury could have focused its attention on the statement. The

decision not to object could have been strategically motivated, and without a

record demonstrating otherwise, counsel's performance cannot considered

deficient. Kuhn v State, 393 S.W.3d 519, 538 (Tex.App.-Austin

2013).Moreover, even assuming that counsel was deficient in failing to

object to the statement, the record before this court has failed to show that

there is a reasonable probability that, but for counsel's failure to object, the

result of the proceeding would have been different.

Based of the undersigned attorney’s review of the record in this case,

legal research conducted by said attorney and the argument presented

hereinabove, the appeal filed in this cause is wholly lacking in meritorious

issues and is frivolous.

Page 48 of 49

Respectfully submitted

Digitally signed by Glenn J.

Youngblood

DN: cn=Glenn J. Youngblood, o,

ou=Attorney at Law,

email=glenlaw@att.net, c=US

___________________________

Date: 2015.04.11 11:44:40 -05'00'

Glenn J. Youngblood

Attorney at Law

5555 West Loop South, Ste. 395

Bellaire, Texas 77401

(713) 432-1013

glenlaw@comcast.net

State Bar No. 22217400

Page 49 of 49