Opinion
14-21-00502-CR
05-18-2023
ROBERTO GARCIA, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish - Tex.R.App.P. 47.2(b).
On Appeal from the 177th District Court Harris County, Texas Trial Court Cause No. 1488311
Panel consists of Justices Spain, Poissant, and Wilson (Spain, J., concurring).
MEMORANDUM OPINION
Margaret “Meg” Poissant, Justice
A jury convicted appellant Roberto Garcia of the first-degree felony of continuous sexual abuse of a young child. See Tex. Penal Code Ann. § 21.02(b)(1). The jury assessed punishment at twenty-five years' imprisonment. In three issues, appellant argues that: (1) the trial court erred by denying appellant's motion for mistrial based on improper jury argument; (2) the trial court erred by failing to include an instruction of the defense of medical care in the jury charge; and (3) his trial counsel rendered ineffective assistance of counsel. We affirm.
I. Background
In 2016, appellant was indicted for continuous sexual assault of a young child. The indictment alleged that in 2015, appellant committed at least two acts of aggravated sexual assault against S.P. spanning more than thirty days: once in April 2015 and once in October 2015. See id. § 22.021(a)(2)(B). In 2018, appellant's first trial ended in a mistrial with a deadlocked jury. Appellant's second trial began in August 2021. We will summarize the relevant testimony presented at trial below.
Because the parties are familiar with the facts of the case and the evidence adduced at trial, we set forth the facts of the case necessary to advise the parties of the court's decision and the basic reasons for it in light of the issues raised. See Tex. R. App. P. 47.1, 47.4.
In 2015, appellant was living with his wife, D.P., her daughter, S.P., and their son, T.G. At the time, S.P. was eleven years old. Due to her struggle with depression after the death of her mother in early 2015, D.P. normally went to bed early while appellant put the children to bed. S.P. testified that at first, appellant would just sit on the edge of her bed and scratch her back to put her to sleep. However, S.P. claimed that after several weeks, instead of just scratching her back, appellant began rubbing her butt, breasts, and vagina. Eventually, this escalated to the point that appellant penetrated S.P.'s vagina with his sexual organ. According to S.P., appellant penetrated her vagina with his sexual organ on more than twenty different occasions over a period of several months.
We will refer to the parties involved using pseudonyms. See Tex. Const. art. I, § 30 (granting crime victims "the right to be treated with fairness and respect for the victim's dignity and privacy throughout the criminal justice process"); Tex.R.App.P. 9.8 cmt.; McClendon v. State, 643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
D.P. testified that during this time, S.P. was more agitated than normal and acting out at school and during cheerleading practice. One day, while they were in the car, D.P. asked S.P. why she was so angry and irritated, and then asked her if anyone had touched her. S.P. responded in the affirmative. According to D.P., when she followed up by asking "who?", S.P. looked away like she was scared and embarrassed; S.P. eventually answered by saying, "daddy."
The following day, D.P. took S.P. to her pediatrician, who referred them to Texas Children's Hospital. At the hospital, medical staff assessed S.P., and a social worker interviewed D.P. and S.P. about S.P.'s allegations. After the interviews, the social worker contacted the Texas Department of Child Protective Services ("CPS"), which started an investigation. On October 13, 2015, D.P. took S.P. to the Children's Assessment Center ("CAC") for a forensic interview. S.P. returned to the CAC on October 20, 2015, for a sexual assault examination and medical assessment by another doctor.
Appellant was asked by Houston Police Detective Annette Keyes to come in and give a statement. Appellant testified he met with Detective Keyes on October 19, 2015, and thought he was being questioned about a time that he lost his temper and spanked S.P. After Officer Keyes informed appellant that he was being accused of sexual misconduct, appellant provided a statement to Officer Keyes, stating:
I made a mistake, I was not in the frame of mind [sic]. I touched her in [an] area where she was not supposed to be touched. I'm sorry if I hurt her feelings and anyone else in my family. I'm human and I made a bad mistake. Never to do [sic] this again in my life.
He further testified that he was "in shock" when he learned he was being accused of sexual misconduct. Since the alleged incidents, appellant has lived with his brother. Appellant's family members-including an ex-wife, adult son, adult daughter, sister, and sister-in-law-testified that appellant has a good character for the fair, safe, and moral treatment of children. None of them had concerns about appellant's interactions with children, including his brother's grandchildren.
The jury in the second trial found appellant guilty of continuous sexual abuse of a young child as alleged in the indictment. The jury assessed punishment at twenty-five years' confinement in the Texas Department of Criminal Justice, Correctional Institutions Division. Appellant filed a timely appeal.
II. Did the trial court err in denying appellant's motion for mistrial?
In his first issue, appellant argues that the trial court erred by denying his motion for mistrial based on improper jury argument.
A. Standard of Review & Applicable Law
We review the denial of a motion for mistrial for an abuse of discretion. See Archie v. State, 221 S.W.3d 695, 699-700 (Tex. Crim. App. 2007). In reviewing a trial court's ruling on a motion for mistrial, an appellate court must uphold the trial court's ruling if it was within the zone of reasonable disagreement. See id. (citing Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004). The Texas Court of Criminal Appeals has "adopted a three-factor approach for measuring abuse of discretion in failing to grant a mistrial, which balance[s]: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment (likelihood of the conviction absent the misconduct)." Lee v. State, 549 S.W.3d 138, 145 n.8 (Tex. Crim. App. 2018) (citing Hawkins, 135 S.W.3d at 77).
"The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted in evidence." Milton v. State, 572 S.W.3d 234, 239 (Tex. Crim. App. 2019) (internal quotation omitted). "Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel's argument, or (4) a plea for law enforcement." Jackson v. State, 17 S.W.3d 664, 673 (Tex. Crim. App. 2000). A proper plea for law enforcement may include arguing the relationship between the jury's verdict and the deterrence of crime in general, arguing that juries should deter specific crimes by their verdicts, and arguing the impact of the jury's verdict on the community. See Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990). In upholding the four general areas of jury argument, the Texas Court of Criminal Appeals observed:
The focus, therefore, has always been upon encouraging the jury to decide the case on the evidence in front of it rather than encouraging juries to reach a decision based upon information outside the record. This is because improper references to information outside the record are generally designed to arouse the passion and prejudice of the jury, and, as such, are inappropriate.Milton, 572 S.W.3d at 239. Determining the bounds of proper closing argument are left to the sound discretion of the trial court. See id.
The law provides for and presumes a fair trial free from improper argument by the prosecuting attorney. Borjan, 787 S.W.2d at 56. Improper jury arguments generally constitute non-constitutional error. See Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim. App. 2000) (en banc) ("Most [jury arguments] that fall outside the areas of permissible argument will be considered to be error of the non-constitutional variety."). A non-constitutional error "that does not affect substantial rights must be disregarded." Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim. App. 2011); see Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008) (concluding that even when the State makes an improper jury argument, it is error to deny a mistrial only if the argument is "extreme or manifestly improper"). Errors that affect a defendant's substantial rights "are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive." Taylor v. State, 332 S.W.3d 483, 490 (Tex. Crim. App. 2011).
B. Application
Appellant asserts that the State made two improper jury arguments when: (1) the prosecutor "testified" that he knew from meeting with S.P. that she wanted to protect other children from sexual abuse, including the named grandchildren of appellant's brother, and (2) the prosecutor repeatedly declared that appellant was the "most manipulative man ever."
1. Improper closing argument-S.P., I.G., and M.G.
During his closing argument, the prosecutor mentioned an interview he conducted with S.P., and the following exchange occurred:
State: You heard evidence that I met with [S.P.] on August 10th of 2015 [sic] so just a few weeks ago and . . . when [S.P.] walked into that meeting she looked exhausted. I could tell she didn't want to be here.
Defense: Objection[,] outside the record.
Court: Sustained.
Defense: Please instruct the jury to disregard the State's statement.
Court: Ladies and gentlemen[,] please disregard the Prosecutor's last comment.
Defense: Your Honor, I'm forced to request a mistrial.
Court: Denied.
State: Judge, this is closing argument. A plea for law enforcement [is] certainly allowed. On August 10th[,] I met with [S.P.] and I spoke with her. She walked into that room-
Defense: Objection. Counsel is testifying. From his prospective [sic] what he saw. It's outside the record.
Court: Counsel please stay within the record.
State: This is within the record[,] Judge. She looked exhausted.
Defense: Objection[,] Your Honor. His prospective [sic] how he's seeing things. This is testimony from the State. Objection.
Court: Sustained. Once again counsel[,] please stay within the record.
Defense: Please instruct the jury to disregard[,] Your Honor.
State: We need to approach.
Court: Ladies and Gentlemen of the Jury[,] please disregard the last comment made by the prosecutor. Once again State[,] please stay within the record. You may argue evidence that is in the record. You may not argue evidence outside the record.
State: Thank you[,] Judge.
Defense: Your Honor, I'm forced to move for a mistrial based on counsel's continuous misconduct.
Court: That request is denied.
Defense: Thank you[,] Your Honor.
State: Well, Ladies and Gentlemen[,] let me say it this way. After that meeting, it was evident to me that [S.P.] wasn't just fighting for herself[;] she was fighting for the future victims of this case. The people that I'm talking about are people like [I.G.], age seven[,] and [M.G.], age 14, that [appellant] is still living with today. It's not just [S.P.] that the State of Texas is fighting for. It's every child that this man will ever have contact with again in his life.
Appellant argues that these statements were extremely inflammatory because the prosecutor implied that if the jury did not return a guilty verdict, then the jury would be responsible for putting other children in danger. However, because appellant objected to the prosecutor's argument about his meeting with S.P., but did not specifically object to the prosecutor's remarks about possible future victims, I.G. and M.G., we analyze each argument separately.
a. Interview with S.P.
As to the prosecutor's meeting with S.P., appellant objected that these comments were outside the record, obtained instructions from the court for the jury to disregard them, and was denied a mistrial. It is improper to refer to facts that are not in evidence and are not an inference from the evidence. Borjan, 787 S.W.2d at 57.
Assuming without deciding the State's arguments were improper, we will find reversible error only if appellant's substantial rights were affected. See Freeman, 340 S.W.3d at 728.
Severity of the Misconduct
To determine whether appellant's substantial rights were affected, the first factor we consider is the severity of the misconduct (i.e., the prejudicial effect). See Brown, 270 S.W.3d at 572-73. In evaluating the severity of the misconduct, we must assess "whether [the] jury argument is extreme or manifestly improper [by] look[ing] at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial." Brown, 270 S.W.3d at 573 (quoting Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)); see Todd v. State, 598 S.W.2d 286, 297 (Tex. Crim. App. 1980) ("Even when an argument exceeds the permissible bounds of the above areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused into the trial proceeding.").
Viewing the jury argument immediately preceding the prosecutor's comments about meeting with S.P., the thrust of the State's argument was that S.P. had "held the title of child sexual abuse victim, a title she hates" for six years between her reporting the offense until trial; that the six years had been a "nightmare"; and that for six years. S.P. had "fought on behalf of truth." Viewing the State's closing arguments as a whole, much of the State's emphasis was S.P.'s consistency over time, "from the moment [she told her mother] on October 8, 2015, to the moment she took that stand in here." We cannot conclude that the limited statements about a meeting with S.P., S.P.'s reluctance to attend the meeting, and her exhaustion were a willful and calculated effort to deprive appellant of a fair and impartial trial. Viewing the record as a whole, we cannot conclude that appellant was prejudiced by the remarks. See Brown, 270 S.W.3d at 572-73.
Curative Measures
We next consider curative measures by the trial court. Lee, 549 S.W.3d at 145 n.8. When appellant objected to argument about the prosecutor's meeting with S.P., the trial court instructed the jury to disregard after each objection. Additionally, after the State responded that the argument was a plea for law enforcement and requested a bench conference, the trial court admonished the prosecutor in front of the jury, "Once again, State, please stay within the record. You may argue evidence that is in the record. You may not argue evidence outside the record." An instruction to disregard will generally cure error when a prosecutor mentions facts outside the record. Freeman, 340 S.W.3d at 727-28. The prosecutor's mentions of the meeting were brief, interrupted, and lacked detail. Thus, we conclude the trial court's instructions to disregard, further emphasized by its admonishing the State, were curative. See id.
Certainty of Conviction
As to the certainty of conviction absent the prosecutor's personal observations of S.P. in meeting with him, the disputed issue at trial was whether S.P. had fabricated her story. In contrast to appellant's testimony that he had only applied antibiotic ointment to a rash in her genital area, the jury heard testimony that appellant had penetrated S.P.'s sexual organ on ten to twenty different occasions. After reviewing the record, we conclude that the prosecutor's personal observations had an inconsequential effect as opposed to the certainty of conviction. See Tucker v. State, 15 S.W.3d 229, 238 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd) (other evidence rebutting appellant's explanation was strong and from multiple sources).
Considering these three factors, we conclude that the prosecutor's argument about S.P.'s exhaustion when meeting with him had little effect, if any, on the jury.
b. Reference to I.G. and M.G.
Proper jury argument includes a plea for law enforcement, which can take multiple forms. Borjan, 787 S.W.2d at 55. The State may argue the relationship between the jury's verdict and deterrence of crime in general; that juries should deter specific categories of crimes; and the impact of the jury's verdict on the community and on narrower groups making up the community. Id. at 55-56. But the State may not call upon the jury to consider the existence of other adolescent or child victims of the appellant. Id. at 57. A prosecutor is "clearly prohibited" from referring to extraneous offenses for which the accused is not on trial. Id.
Typically, the prosecutor's remark in closing argument about "future victims of this case . . . people like [I.G.], age seven, and M.G., age 14," requires a determination of whether the statement was a proper plea for law enforcement or an improper suggestion that these minors were additional victims. However, appellant made no objection to this statement made by the State about I.G. and M.G.; no curative instruction or mistrial was requested. We are therefore constrained by precedent from addressing this portion of the State's closing argument. The Texas Court of Criminal Appeals has determined that failure to specifically object and pursue the objection to an adverse ruling forfeits the issue on appeal. Hall v. State, 663 S.W.3d 15, 38-39 (Tex. Crim. App.), cert. denied, 143 S.Ct. 581 (2023); Hernandez v. State, 538 S.W.3d 619, 623 (Tex. Crim. App. 2018). Further, the Court of Criminal Appeals has refused to review improper jury argument for fundamental error: "[W]e will not elevate the right to be free of improper jury argument to the status of an absolute requirement . . . . Erroneous jury argument must be preserved by objection pursued to an adverse ruling; otherwise, any error is waived." Hernandez, 538 S.W.3d at 623. Even violations of the Eighth and Fourteenth Amendments caused by improper jury argument are subject to procedural default. Hall, 2021 WL 5823345, at *15. Thus, this court may not review improper jury argument when no objection was made to preserve review.
Because Appellant did not specifically object after the State argued that I.G. and M.G. were possible future victims, we cannot address this portion of the State's jury argument.
2. Improper closing argument-"most manipulative man"
In his closing argument, the prosecutor made the following comment concerning appellant:
State: I know [Defense counsel] and I've been speaking to you for almost a[n] hour and a half and if you listen to nothing else[,] let me just take one minute of your time. That's all I ask. [Appellant] is the most manipulative man that you have ever been in a room with. And I know that for a fact because [Appellant] is the most manipulative man I've ever been in the room with.
Defense: Objection to the prosecutor injecting his opinion.
Court: Sustained.
Defense: Please instruct the jury to disregard the comment.
Court: Ladies and Gentlemen of the Jury[,] please disregard the last statement by the prosecutor.
Defense: Your Honor, I'm forced to move for mistrial.
Court: That request is denied.
State: [Appellant] is the most manipulative man you've ever been in the room with.
Appellant preserved error for the first comment but did not object to the second comment. He has thus waived any error for the second comment. See Hall, 663 S.W.3d at 38. For the first comment, assuming without deciding that it constituted improper jury argument, we again balance (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the conviction. Lee, 549 S.W.3d at 145 n.8.
Severity of the Misconduct
As to the severity of the State's first comment, we review the entirety of final arguments to determine if there was a willful and calculated effort to deprive appellant of a fair and impartial trial. See Brown, 270 S.W.3d at 572-73. The statement made by the prosecutor that appellant was the most manipulative man constituted only one portion of his closing argument. The focus of the prosecutor's argument was the evidence of S.P.'s credibility, years of therapy (which he argued she would not have undertaken if she were lying), medical records, and consistency. The prosecutor also focused on appellant's statement to police and that appellant conceded it did not appear S.P. had been coached by her mother as to what to say. The closing argument as a whole does not reflect a willful and calculated effort to deprive appellant of a fair and impartial trial.
Curative Measures
As to curative measures taken by the trial court, Lee, 549 S.W.3d at 145 n.8, the trial court sustained appellant's objection and instructed the jury to disregard the prosecutor's last statement. The law generally presumes that instructions to disregard will be duly obeyed by the jury. Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011). We agree with the State that the trial court's instruction cured any harm.
Certainty of Conviction
The third factor to consider is the certainty of conviction absent the improper argument. Id. Appellant argues that it is not certain he would have been convicted absent the prosecutor's improper statements, given that the first trial resulted in a hung jury. However, the jury heard S.P.'s and D.P.'s testimony regarding the allegations, including the allegation that appellant penetrated S.P.'s sexual organ on ten to twenty different occasions. The jury also heard the statement appellant gave to law enforcement, wherein he stated he touched S.P. in an "area where she was not supposed to be touched" and that touching her was a "big mistake." Considering the evidence introduced, that the trial court instructed the jury to disregard the prosecutor's statement, and considering that the alleged improper argument constituted only a small portion of the closing argument, the overall probability of prejudice flowing from the alleged instance of improper jury argument does not outweigh the probability that the jury verdict was grounded on the proceedings and sufficient evidence. See Lee, 549 S.W.3d at 145 n.8.
Thus, weighing all the factors and in light of the testimony adduced at trial, we cannot conclude that the prosecutor's comments affected appellant's substantial rights. See Freeman, 340 S.W.3d at 728; McGee, 774 S.W.2d at 239. Accordingly, the trial court did not abuse its discretion in denying appellee's motion for mistrial. See Archie, 221 S.W.3d at 699-700. We overrule appellant's first issue.
III. Failure to Include Instruction in Jury Charge
In his second issue, appellant argues that the trial court erred by failing to include an instruction on defense of medical care in the jury charge.
A. Standard of Review & Applicable Law
A review of alleged jury charge error involves a two-step process examining: (1) whether error existed in the charge; and (2) whether sufficient harm resulted from the error to compel reversal. See Ngo v. State, 175 S.W.3d 738, 743- 44 (Tex. Crim. App. 2005); Jones v. State, 531 S.W.3d 309, 321 (Tex. App.- Houston [14th Dist.] 2017, pet. ref'd). "Only if we find error do we then consider whether an objection to the charge was made and analyze for harm." Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd).
When the defendant fails to object, as in this case, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). Egregious harm deprives appellant of a fair and impartial trial. See id. In the egregious-harm analysis, we consider (1) the charge itself; (2) the state of the evidence, including contested issues and the weight of the probative evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the trial record as a whole. See Taylor, 332 S.W.3d at 489.
"[A] defendant has a right to an instruction on any defensive issue raised by the evidence, whether the evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the evidence." Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006) (citations omitted). As is relevant to our analysis, the Texas Penal Code creates a medical-care defense to sexual assault and aggravated sexual assault which provides: "It is a defense to prosecution . . . that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party." Tex. Penal Code Ann. § 22.011(d); see id. § 22.021(d).
B. Application
Because appellant did not contemporaneously object, we will not reverse on this issue unless we find that appellant suffered egregious harm from the alleged error. See Ngo, 175 S.W.3d at 743-44.
Appellant complains that the trial court erred by failing to sua sponte include an instruction in the jury charge on the defense of medical care. According to appellant, a medical-care defense was raised by his testimony that his only contact with S.P.'s private areas involved the application of baby oil and/or Neosporin to S.P.'s private areas.
However, appellant did not establish his entitlement to an instruction because he did not admit every element of the charged offense. The Texas Court of Criminal Appeals has clarified that a defendant is only entitled to a medical-care instruction if the defendant admits every element of the charged offense:
The medical-care defense is one of confession and avoidance. As such, a defendant claiming entitlement to an instruction on the medical-care defense must admit to each element of the offense, including both the act and the requisite mental state. If the defensive evidence does no more than attempt to negate an element of the offense, a defendant is not entitled to a defensive instruction on any defense that is subject to the doctrine of confession and avoidance. An instruction on a confession and avoidance is appropriate only 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.Villa v. State, 417 S.W.3d 455, 462 (Tex. Crim. App. 2013) (internal quotations omitted).
The State had the burden to prove that appellant committed two or more acts of aggravated sexual assault against S.P. over a timeframe of thirty days or more. See Tex. Penal Code Ann. § 21.02(b)(1). Because appellant denied ever penetrating S.P.'s sexual organ and maintained he only touched the outside of S.P's vagina once, he did not admit to every element of the charged offense. See id. Therefore, the trial court did not err by refusing to include a medical defense instruction. See Ngo, 175 S.W.3d at 743-44.
As relevant to this case, a person commits the offense of aggravated sexual assault if he intentionally or knowingly causes the penetration of the sexual organ of a child under the age of fourteen by any means, regardless of whether the person knows the age of the child at the time of the offense. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(i).
We overrule appellant's second issue.
IV. Ineffective Assistance of Counsel
In his third issue, appellant argues that he received ineffective assistance of counsel because: (1) it is apparent from a reading of the records in both trials that trial counsel did not adequately review or familiarize himself or his client with the record from the first trial before beginning the second trial three years later; (2) trial counsel failed to request the trial court submit to the jury the lesser-included offense of indecency with a child; (3) trial counsel failed to request the trial court submit jury instructions regarding the defense of medical care; and (4) trial counsel failed to object to improper argument in the prosecutor's closing statement.
A. Standard of Review & Applicable Law
We review a trial court's denial of a motion for new trial for an abuse of discretion. See Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004). The test for abuse of discretion is "whether the trial court acted without reference to any guiding rules or principles." Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).
To sustain a claim of ineffective assistance of counsel, an appellant must prove two factors: (1) that counsel made errors so serious that counsel was no longer functioning as "counsel" under the Sixth Amendment, and (2) that the errors prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Ineffective assistance claims are subject to a strong presumption of reasonable trial strategy which an appellant must overcome. Ex parte Bryant, 448 S.W.3d 29, 39 (Tex. Crim. App. 2014); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Strickland, 466 U.S. at 689.
Under the first prong, an appellant must show by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness and prevailing professional norms. See Strickland, 466 U.S. at 687; Chapa v. State, 407 S.W.3d 428, 431 (Tex. App.-Houston [14th Dist.] 2013, no pet.). To evaluate the effectiveness of counsel's performance, we look at the totality of the representation. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. If the record is silent on the motivation behind counsel's tactical decisions, then an appellant usually cannot overcome the strong presumption that counsel's representation was reasonable. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Jackson, 877 S.W.2d at 771. Because "the record is generally underdeveloped," direct appeal is usually an inadequate vehicle for claims of ineffective assistance of counsel. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Additionally, courts are hesitant to declare a counsel's performance as deficient until counsel has been afforded an opportunity to explain their reasoning behind their performance. See id. For that reason, "we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
Under the second prong, an appellant must show that counsel's performance prejudiced the defense such that there was a reasonable probability that, but for counsel's unprofessional errors, the outcome of the trial would have been different. See Strickland, 466 U.S. at 687.
B. Application
1. Adequate Trial Preparation
Appellant argues that his trial counsel's lack of familiarity with the record was evident because his counsel failed to impeach the State's witnesses when their testimonies in the second trial differed from their testimony in the first trial. For example, S.P. testified in the first trial that the first time appellant touched her inappropriately was when he "rubbed her boob." But in the second trial, S.P. explained that appellant started rubbing her buttocks first, and then her breast.
However, appellant cites to no evidence reflecting that his trial counsel failed to properly review the record from the first trial. The record reflects that appellant's counsel did cross examine S.P. and did attempt to impeach her on the inconsistencies in her testimony. The fact that appellant's trial counsel did not question S.P. on one specific inconsistency is not evidence of a lack of preparation. The standard for effective assistance does not require "errorless or perfect counsel," and "[i]solated instances in the record reflecting errors of commission or omission do not cause counsel to become ineffective, nor can ineffective assistance of counsel be established by isolating or separating out one portion of the trial counsel's performance for examination." Pelcastre v. State, 654 S.W.3d 579, 590- 91 (Tex. App.-Houston [14th Dist.] 2022, pet. filed) (quoting Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986)).
We note that appellant's trial counsel also called several additional witnesses that were not involved in the first trial to bolster appellant's good character. Thus, a review of the trial record as a whole reflects that appellant was adequately prepared and familiar with evidence from the prior trial. See Pelcastre, 654 S.W.3d at 590-91.
Appellant also complains that his counsel failed to review the record with him, which led to appellant being impeached multiple times. There is no evidence to support his allegation that he was impeached as a result of his counsel's lack of trial preparation. Additionally, the record also suggests that appellant was adequately prepared because he gave new explanations for his conduct. In the first trial, appellant conceded that he penetrated S.P.'s vagina with his finger, but in the second trial, appellant claimed that he admitted to penetrating her vagina only because he misunderstood the anatomical terms. Based on the record before us, appellant has failed to demonstrate that his counsel's trial preparations fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 813.
2. Lesser-Included Offense
Appellant next argues that his trial counsel failed to request the lesser-included offense of indecency with a child. However, it is possible that his counsel reasonably decided not to seek this instruction for various reasons. The Texas Court of Criminal Appeals has concluded that it is a reasonable trial strategy, for example, to not seek a lesser-included offense instruction when the defendant wishes to pursue an all-or-nothing strategy. See Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004). Ultimately, the record in this case is silent as to why appellant's trial counsel failed to request the lesser-included offense. Therefore, appellant has failed to rebut the presumption this was a reasonable decision. See Thompson, 9 S.W.3d at 814.
3. Medical-Care Defense
Appellant also complains that his trial counsel did not request a medical-care defense instruction. However, as discussed above, appellant was not entitled to such an instruction. See Villa, 417 S.W.3d at 462. Thus, his counsel could reasonably conclude that it would be futile to seek a medical-care defense instruction. Therefore, appellant has failed to rebut the presumption this was a reasonable decision. See Thompson, 9 S.W.3d at 814.
4. Objections to Closing Statements
Appellant further asserts that his counsel's performance was deficient for failing to object to the prosecutor's closing arguments. More specifically, appellant complains that his counsel was deficient for failing to object when: (1) the prosecutor asked the jury to put themselves in the shoes of D.P.; and (2) the prosecutor stated that appellant was the most manipulative man in the room.
During closing argument, the prosecutor asked the jury to imagine being in D.P.'s position:
State: Can you imagine being [D.P.] and not realizing that when your husband was sinking into your bed at night that he had just raped your daughter. And when she rolled over in the morning to get up early to take care of their children to take them to school she may have looked at this man who just raped her daughter hours ago and thought to herself[,] I love him. I hope I see him later that day[,] but she had no idea how disturbing that man is.Appellant cites to a single case for the proposition that it is improper for the State to ask the jury to place themselves in the shoes of those who are impacted by the alleged offense. See Boyington v. State, 738 S.W.2d 704, 709 (Tex. App.- Houston [1st Dist.] 1985, no pet.). However, Boyington does not support that argument; instead, Boyington noted that it was "improper for a prosecutor to ask members of the jury to place themselves in the shoes of the victim." Id. (emphasis added). Thus, appellant's counsel could have reasonably concluded that this comment was not improper because the prosecutor asked the jurors to place themselves in the shoes of the complainant's mother, not the complainant herself. We cannot conclude that his counsel was deficient for failing to object. See Strickland, 466 U.S. at 687.
Next, appellant argues that his counsel was deficient for failing to object when the prosecutor accused appellant of being the most manipulative man in the room. We note that when the prosecutor commented, "[appellant] is the most manipulative man I've ever been in the room with," appellant's counsel objected, and the trial court sustained the objection, and further instructed the jury to disregard the statement; however, after the trial court sustained the objection, the record reflects that the prosecutor repeated, "[appellant] is the most manipulative man you've ever been in the room with." We assume in making this argument on appeal, appellant is complaining of his counsel's failure to make a second objection when the prosecutor repeated the statement after the first objection was already granted.
Although the record is silent, there are several strategical reasons why his counsel may have decided to not object. It is possible that counsel did not want to focus the juror's attention on the argument that appellant is the most manipulative man in the room; it is also possible appellant's counsel wanted to avoid additional objections, if possible, because he had already objected numerous times during closing argument. See Huerta v. State, 359 S.W.3d 887, 894 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (observing that counsel "may have . . . decided to withhold objections to avoid drawing unwanted attention to a particular issue, or to prevent the impression that she was objecting at every opportunity as a means of stonewalling evidence").
Appellant similarly argues that his counsel was deficient for failing to object when the prosecutor referenced I.G. and M.G. When the prosecutor first mentioned meeting with S.P. during closing argument, appellant's trial counsel objected. The trial court sustained the objection, but the prosecutor continued, again mentioning the meeting with S.P., and then the prosecutor added the reference to I.G. and M.G. We assume in making this argument on appeal that appellant is complaining of his counsel's failure to make a new objection to the State's additional comment although his first objection had just been granted.
It is possible that counsel did not want to focus the juror's attention on the reference to the grandchildren of appellant's brother. And as discussed above, it is possible that appellant's counsel wished to avoid creating a negative impression with the jurors by objecting excessively. See Huerta, 359 S.W.3d at 894.
Based on the record before us, appellant has failed to demonstrate that his counsel's failure to object fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 813. Therefore, we conclude that appellant has not established that his counsel's performance was deficient or that he was prejudiced due to his counsel's alleged deficiencies. See Strickland, 466 U.S. at 687. We overrule his third issue.
V. Conclusion
We affirm the judgment of the trial court.
MEMORANDUM CONCURRING OPINION
CHARLES A. SPAIN, JUSTICE
I understand that we can assume without deciding whether the State's arguments and comments were improper and jump directly to the issue of reversible error. But I think the better approach is to determine first whether the State exceeded permissible bounds. The primary duty of all prosecuting attorneys is, after all, not to convict but to see that justice is done. Tex. Code Crim. Proc. Ann. art. 2.01. Directly ruling on whether those arguments and comments exceeded permissible bounds would assist prosecuting attorneys in their primary duty.
I otherwise join the court's opinion and concur in the judgment.