Edward Guzman v. State

ACCEPTED

03-13-00131-CR

5307620

THIRD COURT OF APPEALS

Kristen Jernigan AUSTIN, TEXAS

5/15/2015 3:29:02 PM

JEFFREY D. KYLE

Attorney at Law CLERK

207 S. Austin Ave., Georgetown, Texas 78626

(512) 904-0123 (AUSTIN AREA) (832) 642-3081 (HOUSTON AREA)

FILED IN

KRISTEN@TXCRIMAPP,COM 3rd COURT OF APPEALS

AUSTIN, TEXAS

5/15/2015 3:29:02 PM

B BOARD

CERTIFIED* CRIMINAL APPELLATE

JEFFREY D. KYLELAW

Clerk

May 15,2015

VIA CERTIFIED MAIL, RRR # 7013 2250 9570 1745

Edward Guzman

TDCJ No. 01845822

Robertson Unit

12071 FM 3522

Abilene, Texas 79601

Re: Edward Guzman v. The State of Texas, No. 03-13-00131-CR

Dear Edward:

I have enclosed a copy of the Court of Appeals' opinion in your case.

Unfortunately, your conviction and sentence were affirmed by the Court. The

Court's opinion was issued on May 13, 2015. You now have the right to file zpro

se Petition for Discretionary Review. That Petition is due within thirty days of the

date of the Court's opinion, making it due on or before June 12, 2015. As a

courtesy, I have filed an extension of that filing deadline with the Court of

Criminal Appeals, which I have enclosed. If that motion is granted, your petition

will be due on or before August 11, 2015. I have enclosed a copy of the relevant

Rules of Appellate Procedure that apply to petitions for discretionary review so

that you will know the deadlines and requirements for filing the petition. When

you file the petition, be sure to attach a copy of the Court of Appeals' opinion. I

urge you to contact the Hays County District Clerk to obtain the records you may

need to draft your petition. In addition I have attached a motion you can file with

the Court of Appeals to obtain a copy of your appellate record.

The Hays County District Clerk's address is:

Beverly Crumley

Hays County District Clerk

712 S. Stagecoach Trail

San Marcos, Texas 78666

The Court of Appeals address is:

Third Court of Appeals

P.O. Box 12547

Austin, Texas 78711

The Texas Court of Criminal Appeals address is:

Texas Court of Criminal Appeals

P.O. Box 12308

Austin, Texas 78711

I wish you the best of luck.

Sincerely,

/s/ Kristen Jernigan

Kristen Jernigan

No. 03-13-00131-CR

In the

COURT OF APPEALS

For the

THIRD SUPREME JUDICIAL DISTRICT

at Austin

On Appeal from the 22nd Judicial District Court of

Hays County, Texas

Cause Number 12-0006

EDWARD GUZMAN, Appellant

v.

THE STATE OF TEXAS, Appellee

MOTION FOR PRO SE ACCESS TO APPELLATE RECORD

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF

APPEALS:

COMES NOW, Edward Guzman, Appellant herein, and files this, his

Motion for Pro Se Access to Appellate Record. In support of said motion,

Appellant would show the Court the following:

On May 13, 2015, this Court affirmed Appellant's conviction and sentence

in this case. Appellant is now representing himself pro se and requests access to

the appellate record for the preparation of his pro se petition for discretionary

review.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

requests that this Court grant his Motion for Pro Se Access to the Appellate

Record.

Respectfully submitted,

Edward Guzman

DATE:

TEXAS RULES OF APPELLATE PROCEDURE Page 71

opinion without modifying its judgment, the Court will ordinarily 663. Reasons for Granting Review

deny a second motion for rehearing unless the new opinion is

substantially different from the original opinion. While neither controlling nor fully measuring the Court of

Criminal Appeals' discretion, the following will be considered by

the Court in deciding whether to grant discretionary review:

Rule 65. Enforcement of Judgment

after Mandate (a) whether a court of appeals' decision conflicts with

another court of appeals' decision on the same issue;

65.1. Statement of Costs

(b) whether a court of appeals has decided an important

The Supreme Court clerk will prepare, and send to the question of state or federal law that has not been, but

clerk to whom the mandate is directed, a statement of costs should be, settled by the Court of Criminal Appeals;

showing:

(c) whether a court of appeals has decided an important

(a) the costs that were incurred in the Supreme Court, question of state or federal law in a way that

with a notation of those items that have been paid conflicts with the applicable decisions of the Court

and those that are owing; and of Criminal Appeals or the Supreme Court of the

United States;

(b) the party or parties against whom costs have been

adjudged. (d) whether a court of appeals has declared a statute,

rule, regulation, or ordinance unconstitutional, or

65.2. Enforcement of Judgment appears to have misconstrued a statute, rule,

regulation, or ordinance;

IftheSupreme Court renders judgment, the trial court need

not make any further order. Upon receiving the Supreme Court's (e) whether the justices of a court of appeals have

mandate, the trial court clerk must proceed to enforce the disagreed on a material question of law necessary to

the court's decision; and

judgment of the Supreme Court's as in any other case. Appellate

court costs must be included with the trial court costs in any

process to enforce the judgment If all or part of the costs are (f) whether a court of appeals has so far departed from

the accepted and usual course of judicial

collected, the trial court clerk must immediately remit to the

proceedings, or so far sanctioned such a departure by

appellate court clerk any amount due to that clerk. a lower court, as to call for an exercise of the Court

of Criminal Appeals1 power of supervision.

Notes and Comments

66.4. Documents to Aid Decision

Comment to 1997 change: Subdivision 65.1 is new.

Subdivision 65.2 is from former Rule 183.

(a) Acquiring Documents. The Court of Criminal

Appeals — or any judge of the Court—may order

the court of appeals clerk to promptly send the

SECTION FIVE:

following items to the Court in order to aid it in

PROCEEDINGS IN THE

deciding whether to grant discretionary review:

COURT OF CRIMINAL APPEALS

(1) the appellate record;

Rule 66. Discretionary Review

in General (2) a copy of the opinions of the court of appeals;

66.1. With or Without Petition (3) a copy of the motions filed in the court of

appeals; and

The Court of Criminal Appeals may review a court of

appeals' decision in a criminal case on its own initiative under (4) certifiedcopiesofanyjudgmentororderofthe

Rule 67 or on the petition of a party under Rule 68. court of appeals.

6&2. Not a Matter of Right (b) Return of Documents. If discretionary review is not

granted, the clerk of the Court of Criminal Appeals

Discretionary review by the Court of Criminal Appeals is will return the appellate record to the court of

not a matter of right, but of the Court's discretion. appeals clerk.

71

Page 72 TEXAS RULES OF APPELLATE PROCEDURE

Notes and Comments

68.1. Generally

Comment to 1997 change: This is former Rule 200. The

former rule's reference to motions for rehearing now appears in On petition by any parry, the Court of Criminal Appeals

Rule 49.9. The rule is otherwise amended without substantive may review a court of appeals' decision in a criminal case.

68.2. Time to File Petition

Rule 67. Discretionary Review (a) First Petition. The petition must be filed within 30

Without Petition days after either the day the court of appeals'

judgment was rendered or the day the last timely

67.1. Four Judges'Vote motion for rehearing or timely motion for en banc

reconsideration was overruled by the court of

By a vote of at least four judges, the Court of Criminal appeals.

Appeals may grant review of a court of appeals' decision in a

criminal case at any time before the mandate of the court of (b) Subsequent Petition. Even if the time specified in (a)

has expired, a party who otherwise may file a

appeals issues. An order granting review will be filed with the

clerk of the Court of Criminal Appeals, who must send a copy to petition may do so within 10 days after the timely

the court of appeals clerk. filing of another party's petition.

67.2. Order Staying Mandate (c) Extension of Time. The Court of Criminal Appeals

may extend the time to file a petition for

To provide enough time forthe Court of Criminal Appeals discretionary review if a party files a motion

to decide whether to grant discretionary review under 67.1, the complying with Rule 10.5(b) no later than 15 days

after the last day for filing the petition. The Court of

Court—or any judge of the Court—may file with the clerk of Criminal Appeals may extend the time to file a

the court of appeals an order staying the court of appeals'

mandate. The order must be signed by a judge of the Court of response or reply if a party files a motion complying

with Rule 10.5(b) either before or after the response

Criminal Appeals. The clerk of the Court of Criminal Appeals

or reply is due.

must immediately send a copy of the order to the court of appeals

clerk.

Notes and Comments

673. Time to Issue Mandate Extended Comment to 2011 change: The amendment to Rule 63.2(a)

resolves timely filing questions concerning motions for en banc

Unless otherwise limited in the order itself, an order reconsideration by including those motions in calculating time to

staying the court of appeals' mandate under 67.2 will extend for file.

an additional 45 days the time before issuance of the court of

appeals' mandate. An order granting review prevents the 683. Where to File Petition

issuance of the court of appeals' mandate pending the further

order of die Court of Criminal Appeals. If four judges do not

(a) The petition and all copies of the petition must be filed

agree to grant review within that time the court of appeals clerk with the clerk of the Court of Criminal Appeals.

must issue the mandate.

Notes and Comments (b) Petition Filed in Court of Appeals. If a petition is

mistakenly filed in the court of appeals, the petition is deemed to

have been filed the same day with the clerk of the Court of

Comment to 1997 change: This is former Rule 201. The Criminal Appeals, and the court of appeals clerk must

rule is amended without substantive change.

immediately send the petition to the clerk of the Court of

Criminal Appeals.

Comment to 2000 change: Language which was in the

olchline of former Rule 201 has been deleted from Rule 67.1, to Notes and Comments

restore the substance of the rule, and to remove any implication

that the court may not grant review on its own motion when a Comment to 2011 change: Rule 68 J is changed to require

petition for discretionary review has been filed petitions for discretionary review to be filed in the Court of

Criminal Appeals rather than in the court of appeals. With the

deletion of Rule 50, there is no reason to file petitions in the

Rule 68. Discretionary Review court of appeals. Rule 683(b) is added to address and prevent

With Petition the untimely filing of petitions for discretionary review that are

72

TEXAS RULES OF APPELLATE PROCEDURE

_Page73

incorrectly filed in the court of appeals rather than in the Court If the petitioner has access to die record, the

of Criminal Appeals. petitioner must (after each ground) refer to the page

of the record where the matter complained of is

6&4. Contents of Petition found. Instead of listing grounds for review, the

petition may contain the questions presented for

A petition for discretionary review must be as brief as review, expressed in die terms and circumstances of

possible. It must be addressed to the "Court of Criminal Appeals the case but without unnecessary detail. The

of Texas'* and must state the name of the party or parties statement of questions should be short and concise,

applying for review. The petition must contain the following not argumentative or repetitious.

items:

(h) Argument. The petition must contain a direct and

(a) Identity of Judge, Parties, and Counsel. The petition concise argument, with supporting authorities,

must list the trial court judge, all parties to the amplifying the reasons for granting review. See Rule

judgment or order appealed from, and the names and 663. The court of appeals' opinions will be

addresses of all trial and appellate counsel. considered with the petition, and statements in those

opinions need not be repeated if counsel accepts

(b) Table of Contents. The petition must include a table them as correct

of contents with references to the pages of the

petition. The table of contents must indicate the (i) Prayer for Relief. The petition must state clearly the

subject matter of each ground or question presented nature of the relief sought

for review.

0) Appendix, The petition must contain a copy of any

(c) Index of Authorities. The petition must include an opinion of the court of appeals.

index of authorities arranged alphabetically and

indicating the pages of the petition where the 68.5. Deleted

authorities are cited.

6SjS. Nonconforming Petition

(d) Statement Regarding Oral Argument. The petition

must include a short statement of why oral argument The Court may strike, order redrawn, or summarily refuse

would be helpful, or a statement that oral argument a petition for discretionary review that is unnecessarily lengthy

is waived. If a reply or cross-petition is filed, it or that does not conform to these rules.

likewise must include a statement of why oral

argument should or should not be heard. 68.7. Court of Appeals Clerk's Duties

(e) Sto/emen/(^i*e Owe. The petition must state briefly Within 15 days of receiving notice of the filing of a

the nature of the case. This statement should seldom petition for discretionary review from the clerk of the Court of

exceed half a page. The details of the case should be Criminal Appeals, the clerk of the court of appeals must send to

reserved and stated with the pertinent grounds or the clerk of the Court of Criminal Appeals the record, any

questions. motions filed in the case, and copies of any judgments, opinions,

and orders of the court of appeals. The clerk need not forward

(f) Statement of Procedural History. The petition must any nondocumentary exhibits unless ordered to do so by the

state: Court of Criminal Appeals.

(1) the date any opinion of the court of appeals Notes and Comments

was handed down, or the date of any order of

the court of appeals disposing of the case Comment to 2011 change: Rule 68.7(a) and (b) are deleted

without an opinion; and (c) is amended to reflect changes consistent with filing the

petition and reply in the Court of Criminal Appeals rather than

(2) the date any motion for rehearing was filed (or in the court of appeals, and to order the record to be sent to the

a statement that none was filed); and Court of Criminal Appeals. Additionally, Rule 68.7(c) is

amended to delete reference to Rule 50, which is abolished..

(3) the date the motion for rehearing was overruled

or otherwise disposed of 6&& Court of Criminal Appeals Clerk's Duties

(g) Grounds for Review. The petition must state briefly, Upon receipt of the record from the court of appeals, the

without argument, the grounds on which the petition clerk of the Court of Criminal Appeals will file the record and

is based. The grounds must be separately numbered. enter the filing on the docket

73

Page7£ TEXAS RULES OF APPELLATE PROCEDURE

Notes and Comments Comment to 2011 change: The address for the

State Prosecuting Attorney is deleted because it has changed

Comment to 2011 change: Rule 68.8 is amended to reflect and may change again.

changes consistent with filing the petition in the Court of

Criminal Appeals. Rule 69. Action of Court on Petition

for Discretionary Review and After

Granting Review

68.9 Reply.

69.1. Granting or Refusal

The opposing party has 15 days after die timely filing of

the petition in the Court of Criminal Appeals to file a reply to If four judges do not vote to grant a petition for

the petition with the clerk of the Court of Criminal Appeals.

discretionary review, the Court will enter a docket notation that

the petition is refused. If four judges vote to grant a petition, the

Court will enter a docket notation that discretionary review is

Notes and Comments granted.

Comment to 2011 change. This Rule is added so that any 69.2. Setting Case for Submission

reply will be filed in the Court of Criminal Appeals since the

petition is also filed in the Court of Criminal Appeals. If discretionary review is granted, either on the petition of

a party or by the Court on its own initiative, the case will be set

for submission.

68.10. Amendment

693. Improvident Grant of Review

Upon motion the petition or a reply may be amended or

supplemented at any time justice requires. If, after granting discretionary review, five judges are of

the opinion that discretionary review should not have been

Notes and Comments granted, the case will be dismissed.

Comment to 2011 change: This Rule is changed to reflect 69.4. Clerk's Duties

the filing of the petition and any reply in the Court of Criminal

Appeals. Thus, the rule is also changed to require a motion and (a) On Refusal or Dismissal. When the Court refuses or

to delete a time frame because the petition will be filed in the dismisses a petition, die clerk will send to the parties

Court of Criminal Appeals. and the State Prosecuting Attorney a notice

informing them that the petition was refused or

68.11. Service on State Prosecuting Attorney dismissed. The clerk will retain die petition and all

other items filed in the case for at least 15 days from

In addition to the service required by Rule 9.5, the date of the refusal or dismissal. At the end of that

service of the petition, the reply, and any amendment or time, if no motion for rehearing has been timely

supplementation of a petition or reply must be made on the filed, or upon the overruling or dismissal of such a

State Prosecuting Attorney. motion, the clerk will send to the court of appeals

clerk a certified copy of the order refusing or

Notes and Comments dismissing the petition (as well as any order

overruling a motion for rehearing). The clerk of the

Comment to 1997 change: This is former Rule 202. Court of Criminal Appeals will return the appellate

Subdivisions (k) and (1) of the former rule have been relocated to record to the court of appeals clerk but will retain the

Rule 69. The new rule limits the length of a petition and reply. petition, and other documents filed in the Court of

The time for amendment of a petition or reply is increased to Criminal Appeals.

conform with the amendment in Rule 50. The rule is otherwise

amended without substantive change. (b) On Granting Review. If the Court grants

discretionary review, the clerk will send to the

Comment to 2002 change: The original catchline of parties and the State Prosecuting Attorney a notice

subdivision 68.4(g) was "Reasons for Review," which caused informing them that discretionary review was

confusion because of its similarity to the catchline in subdivision granted.

663 ("Reasons for Granting Review"). It is changed to

"Argument" Notes and Comments

74

TEXAS RULES OF APPELLATE PROCEDURE P«ge7S

Comment to 1997 change: This is former subdivisions (k) 713. Briefs

and 0) of Rule 201 Internal procedures of the Court are

deleted. Provisions are added in 69.4(a) and (b) for the clerk to Briefs in a direct appeal should be prepared and filed in

send notice of the granting, refusal, or dismissal of a petition for accordance with Rule 38, except mat the brief need not contain

discretionary review. Other nonsubstantive changes are made. an appendix (Rule 38.1(k)). AU briefs must be filed in the Court

of Criminal Appeals. The brief must includeashortstatementof

why oral argument would be helpful, or a statement that oral

Rule 70. Brief on the Merits argument is waived.

70.1. Initial Brief 71.4. Additional Briefs

If review is granted, the petitioner — or, if there was no Upon motion by a parry the Court may permit die filing

petition, the party who lost in the court of appeals—must file a of additional briefs other than those provided for in Rule 38.

brief within 30 days after review is granted.

Notes and Comments

70.2. Respondent's Brief

Comment to 1997 change: This is former Rule 210. The

The opposing party must file a brief within 30 days after rule is extended to all direct appeals. A page limit is added for

the petitioners brief is filed. death penalty cases. Other nonsubstantive changes are made.

703. Brief Contents and Form Comment to 2002 change: A requirement that briefs

include a statement regarding oral argument is added.

Briefs must comply with the requirements of Rules 9 and

38, except that they need not contain the appendix (Rule

38. l(k)). Copies must be served as required by Rule 68.11. Rule 72. Extraordinary Matters

704. Other Briefs 72.1. Leave to File

The Court of Criminal Appeals may direct that a party file A motion for leave to file must accompany an original

a brief, or an additional brief, in a particular case. Additionally, petition for writ of habeas corpus, mandamus, procedendo,

upon motion by a party the Court may permit the filing of prohibition, certiorari, or other extraordinary writ, or any other

additional briefs. motion not otherwise provided for in these rules.

Notes and Comments 723. Disposition

Comment to 1997 change: This is former Rule 203. The If five judges tentatively believe that the case should be

rule is amended without substantive change. filed and set for submission, the motion for leave will be granted

and the case will then be handled and disposed of in accordance

with Rule 52.7. If the motion for leave is denied, no motions for

Rule 71. Direct Appeals rehearing or reconsideration will be entertained. But the Court

may, on its own initiative, reconsider a denial of a motion for

71.1. Direct Appeal leave.

Notes and Comments

Cases in which the death penalty has been assessed under

Code of Criminal Procedure article 37.071, and cases in which

Comment to 1997 change: This is former Rule 211. The

bail has been denied in non-capital cases under Article I, Section

rule is amended to include all the Court's jurisdiction of

1 la of the Constitution, are appealed directly to the Court of

Criminal Appeals. extraordinary matters. Internal procedures of the Court are

deleted. Other nonsubstantive changes are made.

71.2. Record

The appellate record should be prepared and filed in Rule 73. Postconviction Applications for

accordance with Rules 31, 32,34, 35 and 37, except that the Writs of Habeas Corpus

record must be filed in the Court of Criminal Appeals. After

73.1. Form for Application Filed Under Article 11.07 of the

disposition of the appeal, the Court may discard copies of juror

information cards or other portions of the clerk's record that are Code of Criminal Procedure

not relevant to an issue on appeal.

75

No.

In the

COURT OF CRIMINAL APPEALS

On Appeal from the 22nd Judicial District Court of

Hays County, Texas

Cause Number 12-0006; and the Opinion of the Third Court of Appeals

in Cause Number 03-13-00131-CR, Delivered May 13,2015

EDWARD GUZMAN

v.

THE STATE OF TEXAS

MOTION FOR EXTENSION OF TIME TO FILE

PRO SE PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL

APPEALS:

COMES NOW, Kristen Jernigan, the undersigned attorney of record for

Edward Guzman, the Appellant, herein, and files this Motion for Extension of

Time to File Pro Se Petition for Discretionary Review. As set out below, the

undersigned respectfully requests a sixty-day extension so that Appellant can file

his Pro Se Petition for Discretionary Review. In support of said motion, the

undersigned would show the Court the following:

1. Appellant's Petition for Discretionary Review is currently due in this

case on June 12,2015.

2. Appellant seeks an extension of sixty days in which to file his Petition

tor Discretionary Review, making his Petition due on or before August 11, 2015.

3. The undersigned counsel will not be representing Appellant after the

filing of this motion. Appellant will now have to obtain and review the record in

order to prepare and file a Pro Se Petition for Discretionary Review. The

undersigned believes that there is insufficient time between now and June 12,

2015, to accomplish those goals. Consequently, the undersigned respectfully

requests that the Court grant Appellant the additional time.

4. The undersigned has not filed any previous motions for extension of

time in this case.

5. For the reasons set forth above, the undersigned respectfully requests

that Appellant be granted an extension of sixty days so that his brief in this case

will now be due on August 11,2015.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the undersigned

respectfully requests that this Court grant this Motion for Extension of Time to File

Pro Se Petition for Discretionary Review.

Respectfully submitted,

Is/ Kristen Jernigan

KRISTEN JERNIGAN

State Bar Number 90001898

207 S. Austin Ave.

Georgetown, Texas 78626

(512)904-0123

(512) 931-3650 (fax)

Kristen@txcrimapp.com

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the

foregoing Appellant's Motion for Extension of Time has been mailed to the Hays

County District Attorney's 712 Stagecoach, San Marcos, Texas 78666 on May 15,

2015.

/s/ Kristen Jernigan

Kristen Jernigan

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00131-CR

Edward Guzman, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT

NO. CR-12-0006, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Edward Guzman of four felony offenses—aggravated

kidnapping, aggravated assault with a deadly weapon, aggravated assault causing serious bodily

injury, and unlawful restraint—all arising out of an encounter between appellant and his former

girlfriend.1 See Tex. Penal Code §§ 20.04, 22.02, 20.02. The jury assessed his punishment at

confinement in the Texas Department of Criminal Justice for 60 years for the kidnapping, 20 years

and 60 years for the assaults, and 10 years for the unlawful restraint. See id. §§ 12.32-34. On

appeal, appellant complains about ineffective assistance of counsel, the admission of extraneous

conduct evidence, error in the jury charge, and improper jury argument. Finding no reversible error,

we affirm the trial court's judgments of conviction.

1 The jury acquitted appellant of an additional attempted murder charge. See Tex. Penal

Code §§ 15.01,19.02.

BACKGROUND

Appellant and Danielle Gay dated for eight years and have a daughter together. One

evening in October of 2011, about nine months after they had broken up, appellant went to Gay's

home to pick up their six-year-old daughter for his visitation. He spoke briefly with Gay at the front

door, then took their daughter out to his car. Pursuant to a prearranged plan, he gave his daughter

to his current girlfriend, Ofelia Cisneros, who drove her to their home. Appellant then returned to

Gay's door and asked for their daughter's cell phone. When Gay went inside her home to retrieve

it, appellant entered her home and followed her upstairs to the bedroom. Standing in the doorway

of the room, he told Gay to put her hands behind her back. She laughed and told him to get out of

her house. He then told her that if she screamed, he would hurt her. Gay turned to run away, and

appellant tackled her to the floor. He taped and tied her hands behind her back, picked her up off

the floor, and put her on the bed. He then paced around the bed and told Gay that she had ruined his

life and taken things from him that he wanted. After several minutes, appellant bent her legs and tied

her feet to her hands bound behind her back. Gay complained that he was hurting her, cutting off

the circulation in her hands. Appellant responded that he did not care and continued tightening the

bindings. He then put something in Gay's mouth and gagged her by tying a scarf (or scarf-like

fabric) around her head covering her face.

Appellant then left the bedroom, leaving Gay bound face down on the bed. Gay heard

him downstairs rummaging through things in her house. Eventually, appellant returned to the

bedroom. He removed the scarf from Gay's head, untied her feet from her hands, sat her up on the

bed, and then retied her feet together. He sat down next to her and continued telling her that she had

ruined his life. Gay apologized and told appellant that he could have back whatever he wanted. He

said it was too late for that. He untied her hands from behind her back and retied them in front of

her. He then tried to give her something to drink but she refused, not knowing what it was. After

several unsuccessful attempts to force her to drink the liquid, appellant set the cup aside and told her

that they had to go to his house to get his car because all of the things he wanted to take would not

fit in her car. He loosened the bindings on her feet to give her leeway to walk and escorted her

downstairs. At the bottom of the stairs, appellant pulled up his shirt to show her a gun he had stuffed

in his pants "in case [she tried] anything." Gay recognized the gun as her gun that she kept in the

top cabinet of her kitchen. Appellant pulled her through the house and then took her to her car,

holding her arm. He put her in the passenger seat and then went around to the driver's seat. He got

in the car, looped the rope that bound Gay's hands around the base of his seatbelt, and buckled

his seatbelt.

Appellant drove them to his house. At his house, he woke up Ofelia and had her

bring his daughter to his car, telling her that Gay was going to put gas in both of their cars. Gay

remained bound in the passenger seat of her car and saw Ofelia carry her sleeping daughter to

appellant's car. She also saw appellant get a gas can off the porch and put it in her car. With Ofelia

driving appellant's car and appellant driving Gay's car, they drove to the gas station where appellant

removed Gay's debit card from her purse, asked her for the PIN number, and used her debit card to

put gas in both cars and the gas can. After filling up, appellant started driving back to her house.

At one point, he pulled over and went to talk to Ofelia, who had pulled over in his car. He instructed

Ofelia to go to a particular location and wait for him.

Appellant then drove toward Gay's house, but stopped at a church about two blocks

from her house. After a few minutes, he left the church and drove to Gay's house. He took her

inside, telling her that they were waiting for Ofelia to come pick him up. After a while, appellant

took Gay back out to the car, explaining that they could drive around to look for Ofelia. After

driving for a few minutes, appellant pulled over on the side of the road. He got out of the car, looked

around, then got back into the car and drove further down the road, pulled over again, and got out

to look around again. Appellant repeated this pulling over process four times. He then drove back

to Gay's house and then around town several times, all the while pretending to be looking for Ofelia.

Eventually, appellant parked at the end of Gay's street. He turned off the car and told Gay that he

wanted her to get in the driver's seat because it was hurting his back. He removed the bindings from

her hands, pulled her over the console to the driver's seat, and told her to put her hands on the

steering wheel. Appellant then got out and came around to sit in the passenger seat. After a few

minutes, Gay told appellant that she had to use the bathroom. He agreed to allow her to go to her

house to use the bathroom. Tightly holding her arm, they walked to her house. He stood in the open

doorway of the bathroom while Gay went to the bathroom. He then took her back to her car, putting

her back in the driver's seat.

As they sat in the car, purportedly looking for Ofelia's car, appellant became agitated.

He sat on the edge of his seat shaking his leg and he repeatedly checked his phone. Gay continued

looking for Ofelia's car. At one point, as she turned from looking down the road, appellant started

hitting her in the head. As he repeatedly struck her in the face with what felt like fists, Gay managed

to open the driver's door. Appellant grabbed her, and they struggled as she tried to get out of the car.

At that point, Gay noticed her gun in appellant's hands and she attempted to grab it. As they

struggled over the gun, they both fell out of the car. After they landed on the ground, appellant

started kicking Gay in addition to hitting her with either his fists or the gun. Gay testified that she

could feel blows all over her body. She began screaming, and he kicked her in the face with his

boot; Gay then felt herself begin to lose consciousness. At that point, as they once again struggled

over the gun, she heard the gun going off. Gay fell backward onto the pavement and tried to pull

herself away from appellant. Appellant grabbed her, dragging her back toward him. He sat on her

back straddling her and started pulling her hair, yelling at her to stop screaming. Gay managed to

stand up and fall back onto appellant causing him to release her. She again tried to crawl away.

Appellant grabbed her by the throat and dragged her back toward the car. At one point, appellant

pushed Gay back onto the hood of the car and choked her with his hands around her neck. Gay then

recalls her body suddenly hitting the ground, and appellant was gone. She pushed herself up and ran

screaming toward her complex. She ran into her neighbor's carport and banged on his door. She

made contact with her neighbors, who called the paramedics.

Gay was transported by a life flight helicopter to a hospital in Austin where she was

treated for severe facial and head injuries, including soft tissue trauma to her face of such complexity

it required a plastic surgery consultation (a laceration from her forehead down across her nose went

through the muscle and exposed the bone), a nasal bone fracture, a chin laceration, and two large

scalp lacerations that required multiple staple sutures.

DISCUSSION

In five points of error, appellant asserts that his trial counsel rendered ineffective

assistance, the trial court erred in admitting extraneous conduct evidence during the guilt-innocence

phase, the trial court submitted an erroneous self-defense instruction in the jury charge, and the

prosecutor engaged in improper jury argument in the punishment phase.

Ineffective Assistance of Counsel

In his first and last points of error, appellant contends that his trial counsel rendered

ineffective assistance at trial because counsel failed to object to certain testimony from the

investigating detective and failed to prove up appellant's eligibility for community supervision.

To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

defendant. Strickland v. Washington, 466 U.S. 668,687 (1984); Nava v. State, 415 S.W.3d289,307

(Tex. Crim. App. 2013). The appellant must first demonstrate that counsel's performance fell below

an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

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

Appellate review of counsel's representation is highly deferential; we must "indulge

in a strong presumption that counsel's conduct was not deficient." Nava, 415 S.W.3d at 307-08;

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious

nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);

Goodspeedv. State, 187 S.W.3d 390,392 (Tex. Crim. App. 2005). Rarely will the trial record by

itself be sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial

counsel has not been afforded the opportunity to explain the reasons for his conduct, we will not find

him to be deficient unless the challenged conduct was "so outrageous that no competent attorney

would have engaged in it." Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d

at 392.

In this case, appellant filed a motion for new trial. However, he did not raise a claim

of ineffective assistance of counsel in the motion.2 Thus, the record is silent as to why trial counsel

failed to act in the manner that appellant now complains about on appeal. Consequently, the record

before this Court is not sufficiently developed to allow us to evaluate those failures to act because

"[njeither [his] counsel nor the State have been given an opportunity to respond to" the claims of

ineffectiveness. See Menefield, 363 S.W.3d at 593. The record is silent as to whether there was a

strategic reason for counsel's conduct or what the particular strategy was. Appellant's assertions that

2 In appellant's affidavit attached to the motion and a subsequently filed affidavit from

appellant's father, appellant appears to complain about trial counsel's failure to call a particular

witness on his behalf. However, the failure to call this witness is not a ground for ineffectiveness

that appellant raises on appeal.

"there can be absolutely no trial strategy" for not objecting to the detective's testimony and that

"there can be no trial strategy in depriving [appellant] of the possibility of probation" are mere

speculation. Such speculation does not constitute a demonstration, founded in the record, that no

reasonable trial strategy existed. See Villa v. State, 417 S.W.3d 455,463 (Tex. Crim. App. 2013)

("[C]ounsel's alleged deficiency must be affirmatively demonstrated in the trial record.");

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) ("[Counsel's deficiency

must be affirmatively demonstrated in the trial record; the court must not engage in

retrospective speculation.").

Appellant's trial attorney was not afforded an opportunity to explain his reasons for

the complained-of conduct. Absent record evidence regarding counsel's strategy or reasoning, we

will presume he exercised reasonable professional judgment. See Hill v. State, 303 S.W.3d 863,879

(Tex. App.—Fort Worth 2009, pet. ref d); Poole v. State, 974 S. W.2d 892,902 (Tex. App.—Austin

1998, pet. ref d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the strong

presumption of reasonable assistance because without explanation for trial counsel's decisions, the

complained-of conduct does not compel a conclusion that his performance was deficient. We cannot

say that "no reasonable trial strategy could justify" his decision to engage in the complained-of

conduct.3 See Lopez, 343 S.W.3d at 143. Nor can we conclude that his conduct was "so outrageous

3 For example, appellant criticizes his attorney for failing to object to testimony from the

detective regarding her belief that Gay's statements to the police were truthful, that appellant lied

in his statements to police, and that Ofelia's statements to police were rehearsed. Ordinarily,

witnesses are not permitted to testify as to their opinion about the truthfulness of other witnesses,

Lopezv. State, 343 S.W.3d 137,140 (Tex. Crim. App. 2011), the credibility of a complainant or the

truthfulness of a complainant's allegations, Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App.

1997); Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993), or the guilt or innocence of a

that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 592; see also

Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) ("The mere fact that another

attorney might have pursued a different tactic at trial does not suffice to prove a claim of ineffective

assistance of counsel."). Accordingly, we conclude that appellanthas failed to demonstrate deficient

performance on the part of his trial counsel. SeeFrangias v. State, 450 S.W.3d 125,136 (Tex. Crim.

App. 2013) ("[U]nless there is a record sufficient to demonstrate that counsel's conduct was not the

product of an informed strategic or tactical decision, a reviewing court should presume that trial

counsel's performance was constitutionally adequate 'unless the challenged conduct

was so

409 S.WJd 259,292

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counsel allowed the complained-of testimony here in order to demonstrate the bias of the State's

witnesses. Subsequent questions propounded to the law enforcement official during cross

examination arguably attempted to highlight the detective's immediate assumption mat appell^

guilty after hearing only Gay's version of events, which led to a failure to conduct a thorough or

complete investigation.

Further, as to counsel's failure to prove up appellant's eligibility for community supervision

appellant correctly notes that the record reflects that trial counsel was initially mistaken in his belief

that filing the sworn affidavit of appellant was sufficient to prove up his eligibility for community

supervision. However, the record also reflects that after the court advised counsel that the sworn

affidavit was insufficient and that witness testimony was required to put the issue before the jury

trial counsel conferred with appellant. Subsequently, he opted not to reopen to put on any evidence'

Appellant testified about this issue (outside the jury's presence), indicating that even with the

requirement that evidence of his eligibility be presented—and the fact that he was "the primary

witness" as to that matter— appellant decided it was not in his best interest to testify. Appellant and

his counsel could very well have determined that the benefit of appellant testifying to prove up his

community supervision eligibility was outweighed by the exposure to cross examination, balancing

the remote possibility that the jury would recommend community supervision against possible

damaging or incriminating testimony that could be elicited by the State to appellant's detriment. In

his brief, appellant attempts to dismiss trial counsel's strategic decision not to have appellant testify

by arguing that counsel was unprepared to present evidence regarding appellant's community

supervision eligibility because he did not have a witness other than appellant ready to testify as to

appellant's eligibility. This contention speculates that some witness other than appellant was

available to provide such testimony, something not demonstrated by the record.

outrageous that no competent attorney would have engaged in it.'") (quoting Goodspeed,lS7S.W3d

at 392).

Because appellant failed to meet his burden on the first prong of Strickland, we need

not consider the requirements of the second prong—prejudice. Lopez, 343 S.W.3d at 144; see

Williams v. State, 301 S.W.3d 675,687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy

one prong of the Strickland test negates a court's need to consider the other prong."). Nevertheless,

we also find that appellant failed to demonstrate that he suffered prejudice.

Even if an appellant shows that particular errors of counsel were unreasonable, he

must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at

693-95; Cochran v. State, 78 S.W.3d 20,24 (Tex. App.—Tyler 2002, no pet.). It is not sufficient

that a defendant show, with the benefit of hindsight, that his counsel's actions or omissions during

trial were of questionable competence. Lopez, 343 S.W.3d at 142-43. Further, merely showing that

the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at

693; Ex parte Martinez, 330 S.W.3d 891,901 (Tex. Crim. App. 2011). Instead, he must prove that

counsel's errors, judged by the totality of the representation, not by isolated instances of error or by

a portion of the trial, denied him a fair trial. Strickland, 466 U.S. at 695.

In his argument regarding prejudice, appellant argues that he was "undoubtedly

harmed" by the detective's testimony (regarding her belief that Gay's statements to the police were

truthful, that appellant lied in his statements to police, and that Ofelia's statements to police were

rehearsed) because this was a situation where there were two sides to the story and the officer

endorsed one side. He asserts that "a jury could not help but be swayed by testimony of this nature."

10

However, this assertion is a speculative claim without support in the record. Moreover, we observe

that the detective's opinions were not particularly powerful. Given the fact that she secured an arrest

warrant for appellant and forwarded this case to the district attorney's office for prosecution after her

investigation, one could logically assume that the detective found Gay credible and her allegations

truthful, and that she believed appellant was not truthful in his version of the events.

Appellant also maintains that he was harmed by counsel's failure to prove his

eligibility for community supervision because he "waived any chance appellant had at receiving

[community supervision] for punishment." However, in order to be eligible for community

supervision, the jury would have had to return sentences often years or less. See Tex. Code Crim.

Proc. art. 42.12, § 4(a), (d)(1). The jury only did so in the unlawful restraint case, and in that case

the ten-year sentence was the maximum. The other sentences returned by the jury—60 years for the

first degree aggravated kidnapping, 60 years for the first degree aggravated assault causing serious

bodily injury, and 20 years for the second degree aggravated assault with a deadly weapon (also the

maximum for that offense)—indicate that the jury was seeking to impose harsh sentences for

appellant's conduct.4 Nothing in the record suggests that the jury was inclined to return the more

lenient punishment of community supervision even had such an option been available.5 Appellant's

4 We also note that the jury assessed the maximum fine of $10,000 for each of the

four offenses.

5 We observe that in his punishment closing argument, appellant's trial counsel did not even

ask for the minimum prison sentences in these cases. Rather—perhaps recognizing the severity of

the offenses for which the jury found appellant guilty and accurately reading the jury's perception

of the serious nature of the offenses—he asked for a ten-year sentence for all four cases.

11

suggestion that the purported waiver of community supervision subjected him to harsher sentences

than he was originally exposed to is a speculative claim not supported by the record.

An accused is not entitled to entirely errorless representation, and we look to the

totality of the representation in gauging the adequacy of counsel's performance. Frangias,

450 S.W.3d at 136. The record in this case reveals that trial counsel ably and adequately presented

the defense strategy, which involved attacking the credibility of Gay's version of events,

emphasizing the biased and incomplete nature of the police investigation, and raising self-defense.

During guilt-innocence, counsel focused on the bias of the State's witnesses, the inconsistencies in

the testimony, the inadequate and one-sided police investigation, and the lack of corroborating

evidence. Also, through the State's evidence, he asserted a claim of self-defense. During

punishment, counsel focused on the mitigating factor of appellant's age and asked for a minimal

sentence often years in all four cases. The fact that these strategies ultimately proved unsuccessful

does not render counsel's assistance ineffective.

On the record before us, appellant has failed to demonstrate deficient performance

on the part of his trial counsel or that he suffered prejudice because of the alleged errors of counsel.

Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel. We

overrule appellant's first and fifth points of error.

Extraneous Conduct Evidence

In its case-in-chief in the guilt-innocence phase of trial, the State offered evidence

during Gay's testimony of appellant's extraneous abusive conduct toward her during their

relationship. She detailed three instances of appellant's abusive conduct: a physical altercation on

12

New Year's Eve of 2010, an incident on appellant's birthday on January 3, 2011, and an occasion

in February or March of 2011 where appellant pointed a gun at her.6 In his second point of error,

appellant asserts that the trial court erred in permitting this testimony because it was inadmissible

character-conformity evidence.

We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Sandoval v. State,

409 S.W.3d 259,297 (Tex. App.—Austin 2013, no pet.). A trial court abuses its discretion only if

its determination "lies outside the zone of reasonable disagreement." Martinez, 327 S.W.3d at 736;

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court's decision to admit

evidence of an extraneous offense is generally within this zone if the evidence shows that (1) an

6 More specifically, Gay testified that during an altercation in their home on New Year's Eve

appellant threatened her (by making a slashing motion across his neck), pushed her, punched her in

the face at least three times, grabbed her by the back of her neck and ponytail, and threw her down

on the floor. She stated that as a result of this incident, she had two black eyes and a bloody and

swollen nose.

Regarding the birthday incident, Gay testified that when appellant returned from celebrating

his birthday with friends, he came home angry and began screaming at her, demanding that she leave.

When she went to the bedroom to collect her things, he kicked open the bedroom door and hit her

in the middle of her body, knocking her backwards. Then, when she tried to get her daughter to

leave, appellant took the child from her and took the child into the bedroom. He then forcibly

removed Gay from their home by grabbing her at the back of her neck and around the waist and

dragging her out of the house. Gay was without any of her things and ended up moving in with

appellant's aunt next door.

According to Gay's testimony, a month or two later, appellant indicated in amessage through

his aunt that Gay could return to their home to collect her belongings. When she was inside the

house, appellant became agitated when she began asking about the location of certain personal items

(such as her driver's license and social security card) and told her to get out. When she reminded

appellant that he had told her she could come get her things, he stomped off to the bedroom and

returned with a gun. He pointed the gun directly at her and repeated his demand that she leave

their home.

13

extraneous transaction is relevant to a material, non-propensity issue, and (2) the probative value of

that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading of the jury. DeLa Paz v. State, 279 S.W.3d 336,344 (Tex. Crim. App. 2009).

If the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, we will

uphold that decision. Id; Sandoval, 409 S.W.3d at 297.

Texas Rule of Evidence 404(b) prohibits the admission of extraneous conduct (other

crimes, wrongs, or acts) to prove a person's character or to show that the person acted in conformity

with that character. See Tex. R. Evid. 404(b). However, extraneous conduct evidence may be

admissible when it has relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457,

469 (Tex. Crim. App. 2011). Extraneous conduct may be admissible for some other purpose, such

as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident. See Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim.

App. 1991) (op. on reh'g). This list is illustrative—the exceptions are neither mutually exclusive

nor collectively exhaustive. See De La Paz, 279 S. W.3d at 343. Extraneous conduct evidence may

also be admissible to rebut defensive theories raised by the defense. See Williams, 301 S.W.3d at

687 (rebuttal of defensive theory is "one of the permissible purposes for which [relevant] evidence

may be admitted under Rule 404(b)"). Further, "'Rule 404(b) is a rule of inclusion rather than

exclusion.'" De La Paz, 279 S.W.3d at 343 (quoting United States v. Bowie, 232 F.3d 923, 929

(D.C. Cir. 2000)). "The rule excludes only that evidence that is offered (or will be used) solely for

the purpose of proving bad character and hence conduct in conformity with that bad character." Id.

(emphasis added) (citing Rankin v. State, 914 S.W.2d 707,709 (Tex. Crim. App. 1996)).

14

Throughout the course of trial, appellant advanced several defensive theories—he

denied causing Gay's injuries, he challenged Gay's version of the events, he attacked the police

investigation, and he asserted self-defense—all premised on his claim that he acted that night to

protect himself from Gay when she fired shots at him. He first made this claim during his phone call

to the detective the morning after the incident when Gay was in the hospital (a recording of which

was admitted into evidence and published to the jury). He then made similar comments during his

interview with the detective later that day (a recording of which was also admitted into evidence and

published to the jury). Appellant's counsel alluded to it during jury selection when questioning the

venire panel about contradictory testimony and the use of self-defense in any setting, even within a

close personal relationship. He developed it through cross-examination of the State's witnesses,

particularly the police detective, when he highlighted the fact that she took no actions to investigate

appellant's claims regarding Gay's alleged threats toward him and Ofelia and when he sought the

detective's confirmation that appellant's comments to her reflected that he acted in self-defense.

The State offered the evidence of appellant's extraneous abusive conduct toward Gay,

in part, to rebut appellant's theory that she was the first aggressor and that he acted in self-defense

as well as to rebut appellant's explanation that Gay's injuries were self-inflicted during their struggle

over the gun. Based on the evidence before it, the trial court could have concluded that the evidence

of appellant's extraneous prior abusive conduct toward Gay rebutted the defensive theories

presented to the jury. Consequently, we cannot say that the trial court's admission of the

complained-of testimony was an abuse of discretion. We overrule appellant's second point of error.

15

Jury Charge Error

In this case, on appellant's request, the trial court included an instruction on

self-defense in the court's jury charge. In the abstract portion of the court's charge, the trial court

instructed the jury as follows:

Upon the law of self defense [sic] you are instructed that a person is justified

in using force against another when and to the degree he reasonably believes the

force is immediately necessary to protect himself against the other's use or attempted

use of unlawful force.

A person is justified in using force against another: (1) if he would be

justified in using force against the other; and (2) if a reasonable person in the

defendant's situation would not have retreated; and (3) when and to the degree he

reasonably believes the force is immediately necessary to protect himself against the

other's use or attempted use of unlawful force.

"Reasonable belief means a belief that would be held by an ordinary and

prudent person in the same circumstances as the defendant.

During the charge conference, appellant requested an additional instruction to explain self-defense.7

The State objected, maintaining that the instruction was already reflected in the charge. Appellant

next complained that the self-defense jury instruction "talk[ed] about the duty of a defendant to

retreat. That's nowhere in the statute." Both the prosecutor and the trial court maintained that the

duty to retreat "[is] in the law." The court overruled appellant's request for his submission and

7 Specifically, appellant asked that the following paragraph be added:

When a person is attacked, or an attempt is made to attack such person, with

unlawful force, and there is created in the mind of such person a reasonable

expectation or fear of some bodily injury, then the law excuses or justifies such

person in resorting to force to the degree that he reasonably believes is immediately

necessary, viewed from his standpoint at the time, to protect himself from attack or

attempted attack.

16

retained the language relating to the duty to retreat in the charge. In his third point of error, appellant

argues that the trial court erroneously instructed the jury that appellant had a duty to retreat in order

for the law of self-defense to apply. He further maintains that the incorrect instruction on

self-defense caused him harm.

We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Kirsch v. State, 357 S.W.3d 645,649 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d 738,743-44

(Tex. Crim. App. 2005). The trial court must charge the jury on the "law applicable to the case,"

which requires that the jury be instructed on each element of the offense charged. See Tex. Code

Crim. Proc. art. 36.14; see also Dinkins v. State, 894 S.W.2d 330,339 (Tex. Crim. App. 1995). The

trial court is also required to instruct the jury on statutory defenses, affirmative defenses, and

justifications when they are raised by the evidence and requested by the defendant. Walters v. State,

247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).

Under the Texas self-defense statute, a person may use deadly force if he reasonably

believes such force is immediately necessary to protect himself from another person's use or

attempted use of deadly force. See Tex. Penal Code § 9.32. Before 2007, the deadly-force

self-defense statute contained a provision imposing a general duty to retreat, providing that the use

of deadly force was justified only "if a reasonable person in the actor's situation would not have

retreated." See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141,

2141-42 (amended 2007) (current version at Tex. Penal Code § 9.32); Morales v. State,

357 S.W.3d 1,6 (Tex. Crim. App. 2011). However, effective September 1,2007, the Legislature

17

amended the statute to delete the language regarding a general duty to retreat. Morales, 357 S.W.3d

at 4-5; McBride v. State, 359 S.W.3d 683,694 (Tex. App.—Houston [14th Dist.] 2011, pet. ref d).

Because this general duty to retreat was removed from the self-defense statute in 2007, the

self-defense instruction given here—indicating that appellant had a duty to retreat—was erroneous.

See Morales, 357 S.W.3d at 6.

If the trial judge charges on a defensive issue but fails to do so correctly, this is charge

error subject to review under Almanza. Vega v. State, 394 S.W.3d 514,519 (Tex. Crim. App. 2013);

see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth

analysis for determining whether jury charge error requires reversal). Under Almanza, if the jury

charge error has been properly preserved by an objection or request for instruction, as in this case,

reversal is required if the appellant has suffered "some harm" from the error. Vega, 394 S.W.3d at

519; Almanza, 686 S. W.2d at 171. We assess whether the appellant has suffered actual harm "in light

of the entire jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information revealed by the

record of the trial as a whole." Vega, 394 S.W.3d at 521 (quoting Almanza, 686 S.W.2d at 171).

We engage in this assessment to illuminate the actual, not just theoretical, harm to the accused.

Almanza, 686 S.W.2d at 174; see Cornet v. State, 417 S.W.3d 446, 449 (Tex. Crim. App. 2013)

("This means that the trial record must demonstrate that there is some actual harm and not just a

theoretical complaint.").

Beginning with the jury charge itself, we observe that in addition to erroneously

instructing the jury in the abstract portion of the charge that a person was justified in using force

18

against another only if a reasonable person in the defendant's situation would not have retreated, the

trial court included the duty to retreat in each of the self-defense application paragraphs.8 Thus, the

jury charge, in four different places—the abstract portion of the charge and three self-defense

application paragraphs—impermissibly instructed the jury to determine whether there was a general

duty to retreat. See Morales, 357 S.W.3d at 5-6 (jury instruction on general duty to retreat

constituted comment on weight of evidence). Nothing in the remainder of the charge instructed the

jury that it should not determine, as a general matter, whether a duty to retreat existed. See id. at 6.

Accordingly, the remainder of the jury charge did not alleviate the harm caused by the incorrect

self-defense instruction. Thus, consideration of the entirety of the jury charge weighs in favor of a

finding of harm.

Next, we must consider the state of the evidence and determine whether the jury

charge error related to a contested issue. Appellant did not testify at trial. The defensive theories

were presented through the State's evidence—primarily the recording of appellant's interview with

8 After the application paragraph for the attempted murder, the court provided the following

application paragraph for self-defense:

Self defense [sic]

Now, if you find and believe from the evidence that on the occasion in

question the Defendant reasonably believed that his conduct of grabbing and twisting

Danielle Gay's head at the neck was immediately necessary to protect the Defendant

from Danielle Gay's use or attempted use of unlawful force; and that at such time a

reasonable person in the Defendant's situation would not have retreated, you will

acquit the defendant and say by your verdict not guilty as to Count II.

Similar application paragraphs applying self-defense were given following the application

paragraphs for aggravated assault with a deadly weapon and aggravated assault causing serious

bodily injury.

19

the detective—and the cross examination of the State's witnesses. During his interview with the

detective, appellant gave his version of the events. He indicated that when he and Ofelia picked up

his daughter that evening for his visitation, Gay asked him to stay but he declined and went home

with Ofelia and his daughter. According to appellant, Gay then showed up at his house in Kyle at

about 4:00 in the morning. She knocked on his window and said that if he wanted to get his stuff,

he needed to come and get it now. When he told Gay that he did not have any gas in his car, she

offered to buy the gas to fill his car. Appellant said that they then went to the gas station and filled

up the cars with gas—he and Gay in her car, Ofelia and his daughter in his car.9 After filling up, they

went to Gay's house. When he realized it was going to take time to sort out what things he could

take, he sent Ofelia home, telling her that Gay would just drop him off. Appellant told the detective

that eventually he got tired of waiting for Gay to decide what he could take, so he told Gay to just

take him home. He said that when they were in her car, she pulled her gun out of her pocket and

threatened to kill him and Ofelia. According to appellant, they struggled over the gun and fell out

of her car during the struggle. He said that he had his arms wrapped around Gay from behind when

she fired the gun multiple times. Appellant told the detective that he got away from Gay and called

Ofelia to come pick him up. He showed the detective an injury he had on his thumb where either

the hammer of the gun pinched him or the flash from the gunshot burned him.

While giving his version of the events, appellant said that he was "fighting for his

life" and was "just trying to get away from [Gay]." However, he adamantly maintained that he did

9 Appellant also explained that he filled up the gas can because Gay was having problems

with her car.

20

not cause her injuries. He repeatedly denied ever hitting or kicking Gay. In fact, even as he

conceded that Gay "might have" been hurt during the struggle over the gun, he still insisted he

"never hit her."10 Further, when the detective showed appellant photographs of Gay's injuries and

asked if he could explain them, he said that they were probably self-inflicted. When the detective

directly asked appellant if he "did this" (caused the injuries depicted in the photographs), he

responded, "No." When the detective admonished appellant that he needed to be honest and

expressed her opinion that more happened than he was telling her, appellant insisted that he "didn't

do anything" to Gay.

There was but the barest scintilla of evidence that during his encounter with Gay,

appellant was "fighting for [his] life" and thus may have unintentionally injured Gay during his

attempts to protect himself from her. However, appellant's primary defense was that he did not

cause Gay's injuries at all, that they were self-inflicted, and that the events had not transpired as Gay

claimed. The secondary defense was that if she was injured during the struggle, it was not his fault

because he was acting in self-defense. The self-defense theory applied only to three of the five

charges, and it was a marginal theory at best. A comparison of the photographs of Gay's extensive

injuries and appellant's minimal injuries demonstrates the unlikelihood that Gay's injuries were

self-inflicted and refutes appellant's repeated claim that he "didn't do anything" to Gay. Under the

circumstances, we cannot conclude that, given the weak evidence of self-defense combined with

appellant's adamant denial that he caused Gay's injuries, the state of the evidence demonstrates that

10 Appellant indicated that he and Gay fell over some mailboxes at some point when they

struggled over the gun, suggesting this might have caused her injuries.

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the trial court's erroneous instructions on the general duty to retreat caused appellant harm. Thus,

after reviewing the evidence in the record, we conclude that the state of the evidence weighs against

a finding of harm.

Concerning jury argument, both the State and appellant's counsel briefly mentioned

self-defense in closing arguments. However, neither side emphasized the erroneous jury instruction

or appellant's purported duty to retreat but instead only referred generally to the concept of whether

appellant's conduct was justified because he was acting in self-defense. The prosecutor argued that

as the aggressor, appellant did not act in self-defense.11 Appellant's trial counsel reminded the jury

that appellant told the detective in the interview that he "had to fight for his life." Also during his

argument, appellant's counsel referred the jury to the court's self-defense instruction in the charge.12

However, he did not emphasize the erroneous portion regarding the general duty to retreat but

11 At one point, the prosecutor argued:

He's trying to say that when he did that, he was doing it to defend himself. And any

time you see that self-defense in the jury charge, I would — short of just tearing it up,

it's preposterous, because he's trying to say he was justified in doing that, and that

he couldn't — he wasn't in a situation where he could run away, and that he had to

do it because if he didn't, she was about to kill him.

Arguably, this could be construed as a vague allusion to the fact that appellant did not retreat.

However, the prosecutor's argument is somewhat confusing and unclear and does not affirmatively

argue that appellant was required to retreat.

12 Appellant's counsel referred the jury to the self-defense instruction in the abstract portion

of the jury charge, although his disagreement and displeasure with the instruction was apparent:

There is a self-defense charge in the — in the jury's charge on page three, paragraph

four. You can read it for what it's worth. It indicates our theory of the case, that

there was a need for him to react to what was going on, and it was immediately

necessary to protect himself.

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referred to the fact that it was "immediately necessary" for appellant to react as he did to protect

himself from Gay. Overall, in the context of the entire jury argument, neither side focused on

self-defense and neither side argued that appellant had a duty to retreat. Thus, we conclude that the

arguments of counsel do not weigh in favor of a finding of harm.

Finally, with regard to the final factor, we consider the fact that appellant was not

actually entitled to a jury instruction on self-defense in this case to be relevant information in

evaluating harm. A defendant is entitled to a self-defense instruction if the issue is raised by the

evidence, regardless of whether that evidence is weak or strong, unimpeached or contradicted, and

regardless of what the trial court may think about the credibility of the witnesses or the viability

of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Ferrel v. State,

55 S.W.3d 586, 591 (Tex. Crim. App. 2001). However, because self-defense is justification for

one's actions, the assertion of the defense necessarily requires an admission that the alleged conduct

occurred. Anderson v. State, 11 S.W.3d 369,372 (Tex. App.—Houston [1st Dist.] 2000, pet. ref d);

see Shaw v. State, 243 S.W.3d 647,659 (Tex. Crim. App. 2007) ("[A] defensive instruction is only

appropriate when the defendant's defensive evidence essentially admits to every element of the

offense including the culpable mental state, but interposes the justification to excuse the otherwise

criminal conduct."). Assertion of self-defense is inconsistent with a denial of the conduct. Ford

v. State, 112 S.W.3d 788,794 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Thus, a defendant

is not entitled to an instruction on self-defense if "he claims that he did not perform the assaultive

acts alleged, or that he did not have the requisite culpable mental state, or both." VanBracJde

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v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin 2005, no pet.) (citing Ex parte Nailor,

149 S.W.3d 125,134 (Tex. Crim. App. 2004)).

In this case, although appellant admitted that he struggled with Gay for the gun, he

did not admit that he committed the assaultive conduct alleged.13 Appellant repeatedly denied ever

hitting or kicking Gay, adamantly maintained that he did not cause her injuries, asserted that the

injuries were self-inflicted by Gay, and suggested that the injuries were caused by other objects (such

as the mailboxes) during their struggle over the gun. Thus, because appellant did not admit to

committing the alleged conduct, he was not entitled to an instruction on self-defense. See Maxwell

v. State, No. 03-06-00473-CR, 2007 WL 2274883, at *2 (Tex. App.—Austin Aug. 6,2007, no pet.)

(mem. op., not designated for publication) ("A defendant must sufficiently admit to the commission

of the offense for which the defensive instruction is requested."). We conclude that the fact that

appellant was not entitled to a self-defense jury instruction under these circumstances weighs against

a finding of harm.

In sum, except for the jury charge itself, the factors discussed above militate against

a finding of harm. Accordingly, after reviewing the record and considering the relevant factors, we

13 In the attempted murder charge, the alleged conduct was that appellant "engaged in

conduct that amounted to more than mere preparation that tended but failed to effect the commission

of [murder]" by "grabbing and twisting Danielle Gay's head at the neck." In the aggravated assault

with a deadly weapon, the alleged conduct was that appellant "intentionally, knowingly, or recklessly

cause[d] bodily injury to Danielle Gay by kicking her" and using or exhibiting a firearm during the

offense. In the aggravated assault causing serious bodily injury, the alleged conduct was that

appellant "intentionally, knowingly, or recklessly cause[d] serious bodily injury to Danielle Gay by

striking [her] about the head with his hand or a firearm."

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hold that the erroneous self-defense instruction did not harm appellant. We overrule appellant's third

point of error.

Jury Argument

In his fourth point of error, appellant complains about the State's jury argument

during the punishment phase of trial.

We review a trial court's ruling on an objection to improper jury argument for an

abuse of discretion. Nzewi v. State, 359 S.W.3d 829,841 (Tex. App.—Houston [14th Dist.] 2012,

pet. ref d); see Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010). A trial court abuses

its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and

principles. Montgomery v. State, 810 S. W.2d 372,380 (Tex. Crim. App. 1990); see also McDonald

v. State, 179 S.W.3d 571,576 (Tex. Crim. App. 2005) ("A trial court abuses its discretion when its

decision is so clearly wrong as to lie outside that zone within which reasonable persons

might disagree.").

Appellant first complains about the prosecutor's comments regarding the absence of

mitigating evidence. During closing argument of the punishment phase, after explaining the State's

reasons for requesting a life sentence, the prosecutor argued:

So we expect life. And there have been plenty of juries that can agree on life.

That happens all the time.

But if you can't, then we're hoping that when you're looking to compromise,

you're doing it between 60 and life because that's really where he is. There is

nothing mitigating. There is nothing to put him in the midrange. There is nothing

to put him towards the minimum.

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You heard from Ofelia's mom all sorts of reasons why she deserved lenience.

The defense could have put on a case. You heard nothing, no evidence to mitigate,

to make it a less horrible —

Appellant objected, complaining, "That places the burden back on the defense. And we have no

obligation to testify." The trial court responded, "That's accurate. You don't. And the law that

applies to his testimony is contained in the charge." On appeal, appellant contends that the above

comments constituted an impermissible comment on his failure to testify.

Initially, we observe that appellant has arguably failed to properly preserve his

complaint about this jury argument for appellant review. For a party to preserve a complaint for

appellate review, the complaining party must make a specific objection and obtain a ruling on the

objection. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert denied,

135 S.Ct. 1158 (U.S. 2015); Tex. R. App. P. 33.1. In addition, the point of error on appeal

must comport with the objection made at trial. Yazdchi, 428 S.W.3d at 844; Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Here, appellant complained that the prosecutor's

argument shifted the burden of production to the defense. In doing so, counsel noted that

"we"—presumably referring to appellant—had no obligation to testify. Appellant did not, however,

explicitly complain that the prosecutor's argument was an improper comment on his right not to

testify. Moreover, the trial court failed to make a formal ruling either sustaining or overruling

appellant's objection. See Tex. R. App. P. 33.1(a)(2)(A). Assuming, however, that the trial court's

comment regarding the jury charge containing "the law that applies to [appellant's] testimony" was

an implied ruling on an objection complaining about an improper comment on appellant's failure

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to testify, we find no abuse of discretion in the trial court's implied overruling of appellant's

objection to the State's argument.

The law provides for, and presumes, a fair trial free from improper argument by the

State. Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009) (citing Long v. State,

823 S.W.2d 259,267 (Tex. Crim. App. 1991)). Proper jury argument must generally fall within one

of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence;

(3) responses to argument of opposing counsel; and (4) pleas for law enforcement. Freeman v. State,

340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Jimenez v. State, 240 S.W.3d 384, 407 (Tex.

App.—Austin 2007, pet. ref d). The fact that a defendant did not testify does not fall into any of

these categories and may not be the subject of comment by the prosecution. Cruz v. State,

225 S.W.3d 546,548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761,765 (Tex. Crim.

App. 2001).

A comment on a defendant's failure to testify violates both the state and federal

constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim.

App. 2011); see U.S. Const, amend. V; Tex. Const, art. I, § 10; Tex. Code Crim. Proc. art. 38.08;

see abo Griffin v. California, 380 U.S. 609,615 (1965). However, the implication that the State's

comment referred to the defendant's failure to testify must be a clear and necessary one. Randolph,

353 S.W.3d at 891; Bustamante, 48 S. W.3d at 767. If the language might reasonably be construed

as merely an implied or indirect allusion, there is no violation. Randolph, 353 S. W.3d at 891; Busby

v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008). The test is whether the language used was

manifestly intended or was of such a character that the jury would necessarily and naturally take it

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as a comment on the defendant's failure to testify. Randolph, 353 S.W.3d at 891; Cruz, 225 S .W.3d

at 548; see Bustamante, 48 S. W.3d at 765 (collecting cases). In applying this standard, the context

in which the comment was made must be analyzed to determine whether the language used was of

such character. Randolph, 353 S.W.3d at 891; Cruz, 225 S.W.3d at 548; Bustamante, 48 S.W.3d

at 765. Courts are not to find that the prosecutor manifestly intended to comment on the defendant's

failure to testify if some other explanation for the remark is equally plausible. Randolph,

353 S. W.3d at 891. In assessing whether the defendant's rights have been violated, courts must view

the State's argument from the jury's standpoint and resolve any ambiguities in the language in favor

of its being a permissible argument. Id.

Viewed from the jury's perspective, the prosecutor's comments in this case regarding

the lack of mitigation would not necessarily or naturally be taken as a comment on the defendant's

failure to testify. Rather, when placed in context, the prosecutor's statement can reasonably be

construed as referring to the absence of mitigating evidence from the testimony of character

witnesses testifying on appellant's behalf, and as an argument that the lack of mitigating evidence

warrants harsher, not more lenient, sentences. Thus, there is an equally plausible explanation for the

prosecutor's comment. Accordingly, there is no violation. See id. We conclude that the trial court

did not abuse its discretion by overruling appellant's objection to the prosecutor's argument

regarding the absence of mitigating evidence.

Also in this point of error, appellant argues that the prosecutor improperly "advised

the jury that appellant would earn sentence credits, would earn good conduct time, and would be

paroled." During final argument during the punishment phase, the prosecutor argued:

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So life doesn't mean life. 60 doesn't mean 60. You heard he got - he'll get credit

for his back time. He'll get good conduct time. He'll get parole. He'll get credit

after credit from everyone. He doesn't need anymore [sic] credit from you guys.

However, appellant did not object to this argument at trial. Preservation of error is a systemic

requirement on appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012). A

reviewing court should not address the merits of an issue that has not been preserved for appeal.

Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010). To preserve error regarding

improper jury argument for appellate review, a defendant must object and pursue his objection to an

adverse ruling. See Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Tex. R. App.

P. 33.1(a). A defendant must contemporaneously object to the statement, request an instruction that

the jury disregard the statement if the objection is sustained, and move for a mistrial if an instruction

to disregard is given. Cook v. State, 858 S.W.2d 467,473 (Tex. Crim. App. 1993). A defendant's

failure to object to a jury argument, or failure to pursue an adverse ruling to his objection to the jury

argument, forfeits his right to complain about the jury argument on appeal. Cockrell v. State,

933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Because appellant did not object to the prosecutor's

argument concerning credit for time served, good conduct time, or parole, he failed to preserve this

complaint for appellate review.

For the above reasons, we overrule appellant's fourth point of error.

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CONCLUSION

Having concluded that appellant failed to demonstrate that he suffered ineffective

assistance of counsel, that the trial court did not abuse its discretion by admitting the complained-of

extraneous conduct evidence, that the erroneous self-defense instruction in the jury charge did not

cause appellant harm, and that the trial court did not abuse its discretion by overruling appellant's

objection to the State's jury argument, we affirm the trial court's judgements of conviction.

Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: May 13, 2015

Do Not Publish

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