Because the trial court's findings are supported by the record, we accept them as correct.......It is easier than recognizing due process rights ...

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NUMBER 13-02-00218-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



ALEJANDRO RODRIGUEZ MATA, Appellant,


v.


THE STATE OF TEXAS, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

OPINION ON REMAND


Before Justices Yañez, Rodriguez, and Wittig (1)

Opinion on remand by Justice Wittig

On direct appeal, this Court reversed and remanded for a new trial on the issue of punishment; however, the court of criminal appeals reversed our decision and remanded the case to this Court for consideration of appellant's remaining issues. Mata v. State, 141 S.W.3d 858 (Tex. App.-Corpus Christi, 2004), rev'd, 226 S.W.3d 425, 433 (Tex. Crim. App. 2007). Issues one through seven and ten have already been adressed in our prior opinion. See generally Mata, 141 S.W.3d at 426-33. We now address the remaining issues.

Ineffective Counsel

In his eighth and ninth issues, appellant argues that his trial counsel was ineffective for not objecting to the punishment charge because it violated the government code and the due process clause. In his eleventh issue, he charges counsel was ineffective for not objecting to the State's argument to consider parole eligibility in imposing a sentence.

Review of an ineffective assistance of counsel claim is conducted under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). The first requirement under Strickland states: "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. The second requirement sets out the general requirement that the defendant affirmatively prove prejudice, i.e., that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694.

In his eighth and ninth issues, appellant argues counsel was ineffective for not objecting to the punishment charge. We address the allegations of error concerning the charge itself in issue twelve below.

In the charge, the trial court inserted superfluous language. The charge stated:


Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed, or 30 years, whichever is less, without consideration of any good conduct time he may earn.


The court's charge included the following additional, non-statutory language: "plus any good conduct time earned." However, the charge also instructed the jury not to consider the manner in which the parole law might be applied to the defendant and was otherwise substantially correct. We also observe there was no evidence the jury was confused about the instructions in the charge.

Even if we were to assume error, the record is silent as to why counsel did not object. When the record is silent as to defense counsel's rationale or strategy, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003); Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); see Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Review of counsel's representation is highly deferential, and the reviewing court indulges a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); Thompson, 9 S.W.3d 813-14; Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); see also Ex parte Duffy, 607 S.W.2d 507, 513 (Tex. Crim. App. 1980). "Experience has taught us that in most instances a reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim." Thompson, 9 S.W.3d at 813-14. "In the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions." Mallett, 65 S.W.3d at 63. To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson, 9 S.W.2d at 813 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)).

The record shows that appellant presented no evidence that overcomes the presumption that trial counsel's decision not to object was reasonable. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.2d at 813. We overrule appellant's eighth and ninth issues.

In his eleventh issue, appellant charges counsel was ineffective for not objecting to the State's argument to consider parole eligibility in imposing a sentence because it violated due process. He cites Miller v. State, 741 S.W.2d 382, 391 (Tex. Crim. App. 1987) (stating that an exception to the general rule requiring an objection to preserve error, is that improper argument may present a Fourteenth Amendment due process claim if the prosecutor's argument so infected the trial with unfairness as to make the resulting conviction a denial of due process). Appellant made virtually the same ineffective assistance argument in his tenth issue, contending there that the charge violated the Texas Code of Criminal Procedure rather than due process. The Texas Court of Criminal Appeals has already addressed this parallel issue in part. It held:

First, on our review of the record, the prosecutor's statement to the jury that a person convicted of murder "can get good time credit" is not so clearly a misstatement of the law as the Court of Appeals claimed. A defendant convicted of murder is neither more nor less eligible to receive good conduct time credit during his or her sentence. The only criteria for determining an inmate's eligibility to receive good time are his classification by the Texas Department of Criminal Justice and his conduct while incarcerated. The statutory instruction at issue here serves only to inform the jury of the limitations imposed upon the convicted person's ability to have his or her accrued good conduct time considered by a parole board in determining whether he should be eligible for release. It explicitly states that, whatever good conduct time the defendant may receive during his incarceration, no amount of good conduct time accrued will be calculated as part of his time served until he has served a sufficient amount of actual time. It also informs the jury that such decisions are exclusively the province of the prison and parole board. Thus, it was not a misstatement of law for the State to tell the jury that the appellant could "get good time credit," even if the State omitted the statutory condition under which his good time credit could be considered by a parole board.


Mata, 226 S.W.3d at 431.

In reversing our prior opinion, on this related issue, the court of criminal appeals held that, although we had found there to be no conceivable reason for trial counsel to have failed to object to the State's improper argument, the fact remained that the appellate record was silent as to why trial counsel failed to so object. "Therefore, the appellant has failed to rebut the presumption that trial counsel's decision was in some way -- be it conceivable or not -- reasonable." Id.

Appellant also argues that the State clearly referred to the pen packet during the punishment phase during its argument. However, the State's intention in doing so was just as likely for the proper purpose of informing the jury that parole and good conduct time do exist in Texas. Id. at 432. The existence of such laws may be considered as part of assessing punishment even if the operation of those laws may not. Id. "The appellant's pen packet was merely a simple and available example for the jury to understand that parole laws apply to all incarcerated persons, including the appellant." Id. The record demonstrates that the appellant's pen packet was not introduced as "evidence on the operation of parole and good conduct laws," as prohibited by the statute. Id. Rather, the pen packet had been introduced into evidence during the punishment phase to prove the alleged enhancing factors of the appellant's prior crimes. Id. "At the very least, it is not clear that the State's reference to the appellant's pen packet in this instance necessitated an objection by appellant's trial counsel." Id. at 433.

Because the law of the case has already disposed of the underpinnings of appellant's due process claims, appellant's due process argument must fail. See Howlett v. State, 994 S.W.2d 663, 666 (Tex. Crim. App. 1999) (stating that an appellate court's resolution of a question in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal). In any event, we hold that appellant presented no evidence in the record that overcomes the presumption that trial counsel's decision not to object was reasonable. Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.2d at 813; Mata 226 S.W.3d at 433. We overrule appellant's eleventh issue.

Jury Charge

By his twelfth issue, appellant charges that the trial court erred in failing to submit the law applicable to the case to the jury. The Texas Code of Criminal Procedure provides that in a specified felony case, the court "shall" charge the jury (inter alia) that:

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn.


See Tex. Code Crim. Proc. Ann. art. 37.07 § 4(a) (Vernon 2006). The actual charge given stated:

Under the law applicable in this case, the Defendant, if sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served plus any good conduct time earned equals one-half of the sentence imposed, or 30 years, whichever is less, without consideration of any good conduct time he may earn.


(Emphasis added). The trial court properly instructed the other four paragraphs under section 4(a). Id.

Appellant cites Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000) (stating that a statutorily defined word or phrase must be included in the charge as part of the "law applicable to the case"), and argues that the trial court sua sponte must submit the correct law applicable. We agree. However, in Huizar, the trial court failed to instruct that extraneous offenses need be proved beyond a reasonable doubt. Id. Further, Huizar held that such error was purely "charge error" under article 36.19 and did not implicate constitutional rights. Id. Rather, the rule in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh'g), is applied in the harm analysis. Huizar is distinguishable because here, the trial court did give the statutorily required language. See Huizar, 12 S.W.3d at 483 (noting that disregard of a statutory provision referenced in article 36.19 is the type of omission that does not require a timely request or objection by a party).

Appellant also cites Luquis v. State, 72 S.W.3d 355, 366-67 (Tex. Crim. App. 2002), which holds that the court will not find federal constitutional error unless it concludes that a reasonable jury probably was actually confused by this charge or that there was a reasonable probability that it did mislead the jury. Id. Appellant argues that the court's instruction was a plain misstatement of the law. According to appellant, the error was exacerbated because of the final argument of the State.

The State counters that the addition of this superfluous phrase was isolated clerical error that does not require reversal, citing Lozano v. State, 676 S.W.2d 433, 436-37 (Tex. App.-San Antonio, 1984, no pet.) (providing that an inadvertent or clerical error in an instruction does not require reversal of a conviction where the charge as a whole correctly applies the law to the facts).

The instruction and sentence in question was designed to provide the jury with some background instruction about parole. The same segment of the charge also specifically warned the jury not to attempt to calculate good time credit and parole law. Because the jury was also instructed not to apply any good time, the extraneous phrase did not affect the overall meaning of the parole instruction. Unlike Huizar, the trial court did not completely fail to instruct the jury about the burden of proof concerning extraneous offenses. Huizar, 12 S.W.3d at 484.

Under Almanza, omission of an unrequested jury instruction applicable to the case calls for a new trial only when the defendant was greatly disadvantaged. Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). This degree of harm, sufficiently serious to be called "egregious," is present whenever a reviewing court finds that the case for conviction or punishment was actually made clearly and significantly more persuasive by the error. Id.

The function of the jury charge is to instruct the jury on applying the law to the facts. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "[A]n erroneous or an incomplete jury charge jeopardizes a defendant's right to jury trial because it fails to properly guide the jury in its fact-finding function." Id. "An erroneous or incomplete jury charge, however, does not result in automatic reversal of a conviction." Id. Instead, article 36.19 of the Texas Code of Criminal Procedure outlines the path this Court should follow to review error in the charge: "[F]irst, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal." Id. at 731-32. Where the error is urged for the first time on appeal, a reviewing court will search for "egregious harm." Almanza, 686 S.W.2d at 171. "Egregious harm consists of errors affecting the very basis of the case or that deprive the defendant of a valuable right, vitally affect a defensive theory, or make the case for conviction or punishment clearly and significantly more persuasive." Blumenstetter v. State, 135 S.W.3d 234, 240 (Tex. App.-Texarkana 2004, no pet.). The degree of harm demonstrated by the appellant must be actual, not merely theoretical. Almanza, 686 S.W.2d at 174; Taylor v. State, 146 S.W.3d 801, 804 (Tex. App.-Texarkana 2004, pet. ref d).

In Newman, our sister court addressed a similar situation. There, the crucial difference between the statutory charge and that provided to the jury resulted in the jury being incorrectly informed that good conduct time would be considered in calculating the one-half of the sentence Newman would be required to serve before being eligible for parole. Newman v. State, 49 S.W.3d 577, 581 (Tex. App.-Beaumont 2001, pet ref'd). As in Newman, appellant did not object to the charge, and thus, we may reverse the judgment only if the harm was so egregious that the accused did not have a fair and impartial trial. Almanza, 686 S.W.2d at 171. "The actual degree of harm must be assayed 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." Id.

We conclude there is no egregious harm for several reasons: 1) the charge instructed the jury not to consider the manner in which the parole law might be applied to the defendant; 2) there was no evidence the jury was confused about the instructions in the charge; 3) no motion for new trial was filed; 4) nothing in the record suggests the jury discussed, considered, or tried to apply good conduct time or the parole law in assessing punishment; 5) there was substantial evidence of guilt; and 6) the jury assessed punishment at less than the maximum sentence. See id. "[T]he instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Estelle v. McGuire, 502 U.S. 62, 72 (1991). Appellant likewise has not shown there is a "reasonable likelihood" that the jury applied the superfluous instruction in a way violative of the constitution. Id. Accordingly, we overrule this issue.

Reporter's Record

In his thirteenth issue, appellant maintains he is entitled to a new trial because part of the reporter's record is lost. Appellant requested the reporter's record for "events" of September 24, October 15, and November 6, 2001. No such records were produced, and thus appellant argues the records are "missing." Because of these complaints, we abated this appeal and remanded to the trial court to determine the status of the record.

At the hearing, the court reporter testified she had no notes or transcript pertaining to this case for September 24, October 15, or November 6, 2001. The trial court found in his May 20, 2003, order that "the current appellate record contains all proceedings which had occurred on the record during this case." The docket entry of September 24 simply indicated the case was reset for trial to October 15, 2001. The October 15 docket entry indicated a hearing in which both sides announced ready and a motion to withdraw was heard and denied. Also, the case was reset for trial November 15, 2001.

The evidence does not indicate anything occurred on the record at the October 15th hearing, i.e., the reporter took no notes at the hearing. The docket entries for November 6, 2001, indicated both sides appeared and the case was reset for trial December 3, 2001. Jury selection was set for 9 a.m. that day.

On October 31, 2001, the State filed a Motion for Leave of Court to Amend Indictment, seeking to change the last name of the victim from Munoz to Muniz. The proposed order accompanying the motion is unsigned. The indictment itself is not amended. The State submitted that it never urged its motion to amend.

The trial court concluded the reporter's record on file is complete. It also concluded that, even assuming other proceedings occurred on the pertinent dates, no such materials would be necessary for the resolution of the appeal.

Appellant contends that the missing record of October 15, 2001, prohibits him from showing the trial court erred by not allowing defense counsel to withdraw and that he was denied the right to effective assistance of counsel. The written motion to withdraw stated appellant no longer wished counsel to represent him and wished to seek advice and representation of other counsel. The motion was not reurged after its denial.

An appellant seeking to reverse a conviction on the basis of an incomplete record must show: (1) that a significant portion of the record was lost or destroyed, (2) through no fault of her own, (3) that the missing portion of the record is necessary to her appeal, and (4) the parties cannot agree on the record. Routier v. State, 112 S.W.3d 554, 571 (Tex. Crim. App. 2003); see Tex. R. App. P. 34.6(f). As a threshold matter, the trial court in its fact-finding capacity found that the "current appellate record contains all proceedings which had occurred on the record . . . ." Appellant's trial counsel testified she thought her motion to withdraw was presented in open court. She stated the basis of the motion was that she could not communicate with her client. "We were not on the same level as far as the presentation of the case." In response to a leading question, she indicated the motion was heard on the record. Yet, in answer to the next question, defense counsel stated: "It was on the record, I'd assume." Defense counsel also had no recollection of the State's motion to amend the indictment. The court reporter testified there was no record taken. Although defense counsel said she assumed there was a record made, she could not recall other factors now asserted by appellant concerning the motion to amend the indictment.

In Amezquita, the court of criminal appeals reiterated the observation that "[v]irtually every fact finding involves a credibility determination" and that it has repeatedly recognized that the fact finder is the exclusive judge of the credibility of the witnesses. Ex parte Amezquita, 223 S.W.3d 363, 367 (Tex. Crim. App. 2006) (citing Ex parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996)). In this case, the appellate record clearly supports and confirms the trial court's findings of fact. Because the trial court's findings are supported by the record, we accept them as correct. Ex parte Kimes, 872 S.W.2d 700, 701 (Tex. Crim. App. 1993). Accepting the findings as true, we can only conclude that a significant portion of the record was not lost or destroyed. We overrule this issue.

Juror Lopez

In his fourteenth issue, appellant argues his trial counsel was ineffective because she did not challenge juror Lopez for cause. During general voir dire, the venire was asked if they would expect or want to hear from Mata, as for instance, a parent might want to hear from his or her children when one child says that the other child hit him first. In other words, in order to make a fair decision, do you need to hear from that person? Several jurors, including Lopez, responded in the affirmative. At the later bench conference, Lopez was informed that the law says if appellant did not testify, "that you can [not] hold that against him." Lopez replied she could follow the instruction of the court. This was reconfirmed that Mata did not have to testify and the juror would not hold it against him. Lopez said:

Yes, I think so. Only reason I said that was that how one witness or friend, say friends are there time, place and they would-one way would say it one way and one would say it the other one. And if I was to prove something that I didn't do I think I would want people to hear. That's what I meant, hear from me. Not that getting the stories mixed up.


When asked if the appellant should take the stand and testify if he did not do anything wrong, Lopez responded "No."

Appellant argues that when a prospective juror is shown to be biased as a matter of law, she must be excused when challenged, citing Anderson v. State, 633 S.W.2d 851, 854 (Tex. Crim. App. 1982) ( when a prospective juror is shown to be biased as a matter of law, he must be excused when challenged, even if he states that he can set his bias aside and provide a fair trial). Anderson also informs us that bias exists as a matter of law when a prospective juror admits that he is biased for or against a defendant. Id. The State argues, and we agree, that Lopez was not shown to be biased and therefore could not have properly been successfully challenged for cause.

Lopez initially indicated in response to a vague and rambling hypothetical, that she would like to hear from the defendant. She explained that if friends were in a disagreement, she would like them to hear from her. She also stated she could follow the court's instruction and would not require the defendant to testify. The State cites a similar case of initial confusion by a juror, Barefoot v. State, 596 S.W.2d 875, 883 (Tex. Crim. App. 1980). In that case, it was obvious that the juror was initially confused as to the relationship between appellant's right to remain silent and his right to effective assistance of counsel. Id. Subsequent questioning by both the prosecuting attorney and defense counsel made it clear that the juror did not expect appellant to testify or present other evidence, but only that his attorneys would do their best on his behalf. Id. In Barefoot, the trial court did not err by overruling the challenge for cause. Id. Similarly, a hypothetical objection by defense counsel would not have produced error had the trial court overruled a challenge for cause. See id.

Because appellant does not demonstrate that trial defense counsel's performance fell outside the boundaries of reasonable professional assistance, he fails to meet the first prong of Strickland. See Strickland, 466 U.S. at 687-88; Hernandez, 988 S.W.2d at 770. Furthermore, because the record is silent as to why counsel did not object, appellant fails to overcome the presumption that trial counsel's decision was reasonable. Rylander, 101 S.W.3d at 110. We overrule this issue.

The judgment of the trial court is affirmed.

DON WITTIG,

Justice


Do not publish.

Tex.R.App.P. 47.2(b)

Opinion on remand delivered and

filed this the 22nd day of May, 2008.

1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).

* Preservation of error is an inter-court systemic requirement, it is not an intra-court requirement. Both trial and appellate courts have the authority to exercise discretion and consider claims and arguments that were not timely made in that particular court as long as they are made while the parties are still in that particular court and the court otherwise has jurisdiction to hear them. State v Herndon (February 28, 2007, PD-1954-03)

* A trial judge may, but need not, grant a motion for new trial on the basis of unpreserved trial error if that error is sufficiently serious that it has affected the defendant's substantial rights. State v Herndon (February 28, 2007, PD-1954-03)

* Nothing in the Rules of Appellate Procedure or any Texas statute requires, as a predicate to the trial court's authority to exercise its discretion to grant a motion for new trial, a defendant to have preserved the error during trial that he asserts in his post-trial motion for new trial. State v Herndon (February 28, 2007, PD-1954-03)

* Def failed to take steps required to preserve error where his motion for mistrial following admission of evid in violation of motion in limine was too late. In instant case, grounds for def's motion for mistrial first became apparent during testimony of witness, yet def failed to move for a mistrial until after both that witness and following witness had concluded their testimony. Griggs v State (January 31, 2007, PD-0727-05)

* Errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court. Sanchez v State (December 13, 2006, PD-1754-05)

* Def's motion for new trial was sufficient under Rule 33.1 to preserve for review his "unconstitutionally vague as applied" challenge to sec. 42.07(a)(4) PC. Def filed pretrial motion to quash information, citing due process and due course of law clauses of US and Texas constitutions and arguing that terms of the statute were unconstitutionally vague; at start of trial, before any evidence had been adduced, def urged his motion to quash and argued that "the vagueness" of the statute was "readily apparent"; during guilt stage (once during c/w's testimony and once after both sides had rested) def objected again that the language of the statute was "unconstitutionally vague." Each time def objected, the trial court overruled his objection. Def filed a timely motion for new trial and presented it to the trial court for a ruling. In his motion, def, again citing the due process and due course of law clauses of US and Texas constitutions, argued the statute was "unconstitutional as applied to him in his case." Although def did not use the word "vague" or "vagueness" in his motion for new trial, he did argue that "[n]ow that the evidence has been adduced," the trial court could "more readily discern the unconstitutionality of the statute" as it had been applied against him. Motion for new trial was later overruled by operation of law. Motion for new trial was adequately specific on the vagueness-as-applied claim: Although the word "vague" or "vagueness" appeared nowhere in the motion, any reasonable trial judge probably would have understood the motion, in context, to be asserting an "unconstitutionally vague as applied" challenge to the statute, since def's consistent complaint throughout trial had been that the statute was too vague to be enforceable. On the other hand, no reasonable trial judge would have understood the motion for new trial, even in context, to be asserting an "unconstitutionally overbroad as applied" challenge to the statute. Neither the word "overbroad" nor the word "overbreadth" appeared in the motion for new trial, and at no point during the trial did def make an overbreadth challenge to the statute. The motion for new trial was timely within the meaning of Rule 33.1: (1) It provided trial court with opportunity to take corrective action - granting the motion for new trial - without burdening the parties and the judicial system with a costly appeal and retrial. (2) It gave the state a fair opportunity to respond. Although def could have filed a motion to dismiss after the close of all the evidence, his delay until the motion for new trial did not prejudice the state in any way. (3) Def's delay until his motion for new trial did not impair the orderly and effective presentation of the case to the jury. Cause remand to court of appeals so that it may reconsider def's point of error. Gillenwaters v State (September 27, 2006, PD-1443-05)

* Actions and statements of trial judge unquestionably indicated judge overruled def's motion to suppress, and issue was preserved for review, where record showed that at end of hearing on def's motion to suppress trial judge stated, "I would assume that I can probably review the tape this afternoon. But I may wait till tomorrow to have it - - to have the opportunity to read whatever the State's brief before I - - where I can see where both of you are coming from and then view the tape, and I'll rule." The last line on trial court's docket sheet stated, "appeal preserved as to issues presented." Def's amended notice of appeal stated, "This is notice of the defendant's right to appeal to the court of appeals from the judgment or other appealable order in this case." Included on the document containing def's amended notice was trial judge's certification of def's right to appeal. Trial judge certified that def's appeal "is in a plea-bargain case, and is on matters that were raised by written motion filed and ruled on before trial." Montanez v State (April 26, 2006, PD-0894-04)

* Timely objection requirement did not prevent def from raising complaint on appeal (that conditions of probation imposing two consecutive 180-day periods of confinement in jail violated requirement under 3.03(a) PC that sentences be served concurrently), where grounds for complaint were not apparent at time trial judge announced sentence and conditions of probation in open court, and grounds for complaint were first apparent on the next day, when def signed "Conditions of Community Supervision" in each case. There was no reporter's record of this proceeding; it was not noted on the court's docket sheets; the record did not show whether either the state or def was represented by counsel; no counsel signed the conditions; the trial judge did not participate (the conditions were signed by another judge "for" the trial judge); and def and a "court liaison officer" also signed the conditions. Appeals court concluded the document was signed in def's meeting with a community supervision officer, rather than during a hearing before the trial judge. Thus, def had no meaningful opportunity to object to these specific conditions of his probations. Therefore def did not "waive," or fail to preserve, his complaint for appellate review. Kesaria v State (April 5, 2006, PD-1802-04)

* Where def claimed juror was asleep during trial, court of appeals erred in concluding nothing was preserved for review on the ground that counsel's statement in the trial record that a juror was sleeping was no evid of the matter; counsel's trial record statement was some evid; cause remanded for further proceedings. Thieleman v State (December 14, 2005, No. PD-1743-04)

* A trial counsel's undisputed statements may be accepted as both true and sufficient to preserve an issue for appellate review. Such a statement, when made in open court without being contradicted or disputed by either opposing counsel or the trial court, provides some evidence of the fact of occurrence that is being asserted. At the very least, the assertion alerts the trial court that there may be a controversy over whether such an event occurred. The assertion does not, however, conclusively prove that the event occurred. The weight of the assertion is increased if the assertion about the alleged event is made contemporaneously to the event, thus giving opposing counsel and the trial court the opportunity to observe the event. If the asserted event is not the focus of attention at the time it occurs, it is all the more incumbent upon the objecting party to make a contemporaneous objection. The weight of the contemporaneous assertion may similarly increase if a description of a non-oral event is entered into the record without objection. If the circumstances warrant, the assertion may be supported by a bystander's bill. An uncontroverted assertion by counsel about an event, particularly a non-contemporaneous assertion, may be taken as true only if: (1) the event could not have happened without being noticed; and (2) the assertion is of the sort that would provoke a denial by opposing counsel if it were not true. If these two conditions are met, the opposing party may be held to have adoptively admitted the assertion, and the assertion will be accepted as both true and sufficient to preserve an issue for appellate review. Thieleman v State (December 14, 2005, No. PD-1743-04)

* Ordinarily, after court of criminal appeals concludes that the court of appeals erred in holding that a defendant did not preserve his complaint for appellate review, it would remand to that court to determine whether the trial court abused its discretion. In instant case, because the court of appeals had already performed a thorough review of the substance of the def's motion for continuance, court of criminal appeals did not remand, but instead addressed def's complaint that the court of appeals' opinion did not accurately reflect the record. Harrison v State (December 14, 2005, No. PD-1511-04)

* Although the Rule of Evidence 103(a) makes clear that to preserve error in the exclusion of evidence, the proponent is required to make an offer of proof and obtain a ruling, that is not always suff. Appellate Rule 33.1 provides that as a prerequisite to presenting a complaint for appellate review, the record must show that the party "stated the grounds for the ruling that [he] sought from the trial court with sufficient specificity to make the trial court aware of the complaint." So it is not enough to tell the judge that evidence is admissible. The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible. Reyna v State (June 29, 2005, No. PD-0255-04)

* It was error for court of appeals to reverse conviction and order case dismissed, on theory of prosecutorial vindictiveness that was never pleaded, proved, or ruled upon in trial court. Def's prosecutorial "retaliation" argument, mentioned for the first time in the punishment hearing, was neither timely nor specific. Furthermore, def never asked for dismissal of the indictment nor did he offer evidence to support a due-process claim. The state was never afforded an opportunity to offer rebuttal evidence, and the trial court was never asked to rule upon a legal claim of prosecutorial vindictiveness. Neal v State (November 17, 2004, No. 1559-03)

* Waiver requires "an intentional relinquishment or abandonment of a known right or privilege" by actual renunciation or intentional conduct inconsistent with claiming that known right. Wappler v State (June 30, 2004, No. 772-03)

* The concept of "systemic requirement" has to do with preservation of error, while the concept of "structural error" has to do with harmfulness of error. A "structural error" is not subject to a harmless-error test. Mendez v State (June 30, 2004, No. 817-01)

* A "systemic requirement" (also known as an "absolute requirement or prohibition") is a law that a trial court has a duty to follow even if the parties wish otherwise. Any party that is entitled to appeal may complain on appeal that such a requirement was violated, even if the party failed to complain about the failure or waived the application of the law. A party may be estopped from complaining about an error that it invited, however. Mendez v State (June 30, 2004, No. 817-01)

* The general requirement for preservation of complaints for appeal is Rule of Appellate Procedure 33.1(a). It could be summarized as requiring a timely, specific objection and a ruling by the trial court. Rule 33.1(a) was meant to reaffirm the basic principles of adversary litigation, not to amend or repeal them. It applies only to actions of the trial court concerning which a party forfeits the benefit of a right belonging to him if he does not complain about it at trial. The rule does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal. That is, there are two types of complaints to which Rule 33.1(a) does not apply. Mendez v State (June 30, 2004, No. 817-01)

* Court of criminal appeals listed several ways that statement in Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Cr. App. 1999), about Rule 33.1(a) ["Except for complaints involving fundamental constitutional systemic requirements which are not applicable here, all other complaints based on a violation of both constitutional and statutory rights are waived by failure to comply with Rule 33.1."] was incorrect: (1) It omitted one of the types of complaints to which the rule does not apply: complaints about rights that are waivable only. (2) It incorrectly described complaints about systemic requirements as "complaints involving fundamental constitutional systemic requirements." Systemic requirements are not necessarily constitutional. Ibarra used the word "fundamental" to describe the systemic requirements, which could be misleading. "Fundamental" has been used to identify complaints that may be raised for the first time on appeal. Questions of "fundamental error" now are considered in the framework of Marin v. State, 851 S.W.2d 275 (Tex. Cr. App. 1993). (3) It was a mistake in Ibarra to say that noncompliance with Rule 33.1(a) results in complaints being "waived." Marin carefully distinguished waiver, which requires the intentional relinquishment or abandonment of a known right or privilege, from the forfeiture that is the consequence of not complying with Rule 33.1(a). A statement that is correct, and perhaps less susceptible of being misread, would be, "Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a)." Mendez v State (June 30, 2004, No. 817-01)

* A law that puts a duty on the trial court to act sua sponte creates a right that is waivable only. It cannot be a law that is forfeitable by a party's inaction. Mendez v State (June 30, 2004, No. 817-01)

* A defendant may preserve error for appeal by moving for a mistrial without first making an objection and requesting an instruction to disregard, and in such case it is error to overrule such a motion for mistrial when an instruction to disregard could not have cured the harm of the objectionable event. Because the objection, the request for an instruction to the jury, and the motion for mistrial seek judicial remedies of decreasing desirability for events of decreasing frequency, the traditional and preferred procedure for a party to voice its complaint has been to seek them in sequence - that is, (1) to object when it is possible, (2) to request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a mistrial if a party thinks an instruction to disregard was not sufficient. However, this sequence is not essential to preserve complaints for appellate review. The essential requirement is a timely, specific request that the trial court refuses. In most instances, an objection will prevent the occurrence of the prejudicial event, and the failure to make a timely, specific objection prevents appellate review. If an objectionable event occurs before a party could reasonably have foreseen it, the omission of objection will not prevent appellate review, because it is not possible to make a timely objection to an unforeseeable occurrence, and an objection after an event occurs cannot fulfill the purpose of the objection, which is to prevent the occurrence of the event. Similarly, the request for an instruction to disregard an objectionable occurrence is essential only when the such an instruction could have had the desired effect, which is to enable the continuation of the trial by a impartial jury. The party who fails to request an instruction to disregard will have forfeited appellate review of that class of events that could have been "cured" by such an instruction. But if an instruction could not have had such an effect, the only suitable remedy is a mistrial, and a motion for a mistrial is the only essential prerequisite to presenting the complaint on appeal. Faced with incurable harm, a defendant is entitled to a mistrial and if denied one, will prevail on appeal. Accordingly, when a party's first action is to move for mistrial, the scope of appellate review is limited to the question whether the trial court erred in not taking the most serious action of ending the trial; in other words, an event that could have been prevented by timely objection or cured by instruction to the jury will not lead to reversal on an appeal by the party who did not request these lesser remedies in the trial court. Limited as this scope of appellate review may be, such an appellate review is available to such a party. Young v State (June 9, 2004, No. 904-02)

* Court of Appeals erred in addressing the merits of def's claim regarding one of his challenges for cause, where def stood mute in the face of the court stating erroneous facts as the basis for the denial and requesting correction if necessary before denying def's request for an additional peremptory strike. Although court of appeals was correct that def fulfilled the steps for preservation of error regarding denial of a challenge for cause, in limiting its preservation analysis to the those procedures it ignored a fundamental principle of error preservation: that the trial court must be made aware of a complaint at a time and in a manner so that it can be corrected. The trial court's ruling was based not on the record but on the judge's erroneous recollection, which was stated on the record explicitly for the parties to correct, if necessary. Defense counsel said nothing to cast doubt on the trial court's recollection of events. The trial court had no obligation to grant def's request for additional peremptory strikes unless def first showed his challenge for cause should have been granted. Loredo v State (April 7, 2004, No. 1075-03)

* When a trial judge is aware that def has a problem understanding the English language, def's right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right [Marin v S, 851 S.W.2d 275 (Tex. Crim. App. 1993)]. In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by def. The judge may become aware of def's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte. Garcia v State (March 24, 2004, No. 0489-03)

* On claim by def that was error for trial court to rule that simply asking witness a question for impeachment purposes would render entire videotaped interview of extraneous offenses admissible under rule 107, no merit to state's contention that def failed to preserve error for review because he never actually called witness to testify and tape was never played for jury. Requirements of rule 33.1 were satisfied; court distinguised cases relied on by state, which held that def must actually testify in order to preserve error on ruling allowing state to impeach def with prior convs. Sauceda v State (March 10, 2004, No. 0612-02)

* Where hearing on the motion to suppress and the jury trial were conducted in a unitary proceeding, def preserved error by re-urging his motion to suppress at the introduction of the physical evidence seized. Cause remanded to court of appeals to address merits of admissibility of evid. Garza v State (January 28, 2004, No. 1691-02)

* Def preserved complaint on admission of evid where def filed motion to suppress and trial judge told def that he would hear the evidence as it was presented before the jury, commenting that, "[i]f I grant your motion, [the jury is] not going to have any evidence, so they would be subject to an instructed verdict ... and if I deny your motion [to suppress], it doesn't make any difference, the jury gets to hear it all anyway." The judge further stated, "any other ruling that either side wishes to make, then you will be instructed to approach the bench outside the presence of the jury and then we'll make a determination as to that." Though the general rule would require def to object and obtain a ruling at the earliest opportunity, the specific pre-trial comments made by the judge in this case essentially directed def to wait until all the evidence was presented before he obtained any ruling from the judge. From these comments, it is clear that any additional attempt by def to object or obtain a ruling during the testimony of the officers would have been futile, because the judge had already told def that he would not rule on the motion until the jury had heard the evidence. Def was reasonable to interpret those comments as an instruction to seek a ruling at the conclusion of the state's presentation of evidence, and not sooner. Cause remanded to court of appeals to address merits of issue. Garza v State (January 28, 2004, No. 1691-02)

* Def was estopped on appeal from complaining of trial court denying mistrial, and trial court instead excusing juror, after was learned during trial that juror knew person who was father of victim in extraneous offense and who might testify, where at trial def made alternative requests for mistrial and for excusal of juror. Def could not complain where trial court granted one of options requested by def. Jones v State (November 5, 2003, No. 74,060)

* Rule 33 governs the preservation of appellate complaints. To preserve error for appellate review under Rule 33.1(a) the record must show (1) the complaining party made a timely and specific request, objection, or motion; and (2) the trial judge either ruled on the request, objection, or motion (expressly or implicitly), or he refused to rule and the complaining party objected to that refusal. Geuder v State (September 10, 2003, No. 1005-02)

* Court of criminal appeals has authority to consider and address threshold issues, that is, issues which were not directly raised by the parties but which must be considered and decided in the course of reviewing the grounds presented. Once an appellate court has jurisdiction over a case, the limits of the issues that the court may address are set only by that court's discretion and any valid restrictive statute. Such discretionary consideration of threshold issues is especially appropriate when the issue implicates the authority of the trial court to act. Castaneda v State (July 2, 2003, No. 2012-01 through 2016-01)

* No harm shown on claim was error to refuse to rule on def's formal bill of exception under rule 33.2, where much of info included in her formal bill of exception was already in record on appeal, and remaining info did not relate to her claims on appeal. Routier v State (May 21, 2003, No. 72,795)

* It was error for court of appeals to rule that def had preserved error by proper objection to gang-related evid, where counsel did not object to all the gang-related evid, failed to request a running objection, and failed to request a hearing outside presence of jury on admissibility of gang-related evid. Martinez v State (February 12, 2003, No. 0185-02)

* It was error for court of appeals to reverse conviction on a theory not presented at trial or on appeal. At trial and on appeal def claimed that trial court erred in denying him an article 38.23 instruction regarding whether def had failed to maintain a single lane of traffic, but court of appeals held that def was entitled to an article 38.23 jury instruction concerning whether a police officer could stop def outside of his geographical jurisdiction and reversed and remanded the case to the trial court. Gerron v State (February 5, 2003, No. 1963-01)

* No merit to contention that state's tactics for introducing document prejudiced def by requiring def to repeatedly object in front of jury, where record did not support def's assertions. Canales v State (January 15, 2003, No. 73,988)

* Nothing presented for review on claim was error to overrule objection to permitting prosecutor to read letter to jury with prejudicial inflection, where def made objection before letter was read, trial court ruled state could read letter and def could object to manner of reading letter during reading of letter, and def made no objection during reading of letter. Canales v State (January 15, 2003, No. 73,988)

* Both Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are "judge-protecting" rules of error preservation. The basic principle of both rules is that of "party responsibility." Thus, the party complaining on appeal (whether it be the State or the defendant) about a trial court's admission, exclusion, or suppression of evidence must, at the earliest opportunity, have done everything necessary to bring to the judge's attention the evidence rule or statute in question and its precise and proper application to the evidence in question. And so it is that appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. This "raise it or waive it" forfeiture rule applies equally to the state and defendant. Martinez v State (December 11, 2002, No. 344-02)

* No merit to state's contention that under rule 33.1 def failed to preserve error because he did not obtain a ruling on his objection to trial court granting challenge for cause. An objection after a challenge for cause is sustained is by itself sufficient to preserve error. So long as the objection is made immediately after the challenge is granted, the discharge of the prospective juror from service is tantamount to an adverse ruling on the objection. Ortiz v State (September 25, 2002, No. 73,692)

* Where def's motion to suppress asserted that traffic stop and search were done without a warrant, under 28.01 sec. 1(6) the motion to suppress was itself an allegation of a Fourth Amendment violation, so was error for court of appeals to rule that failure to allege absence of warrant in def's affidavit submitted to trial court in support of motion authorized trial court to deny motion; court of appeals should have considered both the motion to suppress and the affidavits in addressing def's complaint about the trial court's ruling on that motion. Bishop v State (September 25, 2002, No. 1887-01)

* It was error for court of appeals to reverse trial court's decision on a theory not presented to the trial court and upon which the trial court had no opportunity to rule. This also denied the prosecution an opportunity to develop a complete record on the issue on which conv was reversed. Hailey v State (September 25, 2002, No. 1437-01)

* State's confession of error in U.S. Supreme Court was contrary to state's procedural law for presenting a claim on appeal, as well as U.S. Supreme Court's enforcement of such procedural law when it is presented with equal-protection claims. After independent examination of the claim, court of criminal appeals held that no complaint was presented for appellate review because def did not make a trial objection to testimony on future dangerousness issue at punishment stage in capital case, that there is a correlation between ethnicity and recidivism. Saldano v State (March 13, 2002, No. 72,556)

* Rule 33.1 provides in part that "as a prerequisite to presenting a complaint for appellate review," a timely request, objection or motion must be made and ruled upon by the trial court. This rule ensures that trial courts are provided an opportunity to correct their own mistakes at the most convenient and appropriate time - when the mistakes are alleged to have been made. Hull v State (January 30, 2002, No. 1812-00)

* Def waived complaint regarding trial court's "zero tolerance" probation where he raised his complaint for the first time on appeal. Fact that "zero tolerance" was not a listed condition in trial judge's probation order did not result in situation where there was nothing to object to at the time of sentencing. Fact that written probation conditions stated that a violation "may result" in revocation, did not entitle def to rely upon that representation rather than the court's stated "zero tolerance" policy. Def was not without grounds on which to move to recuse the judge until after the judge actually applied the zero tolerance policy and revoked appellant's probation. Record showed that def understood the "zero tolerance" policy and was not confused by the court's admonishment in light of the written conditions, and that def understood the "zero tolerance" policy to be overriding and controlling. At the very least def could have objected to a discrepancy between the written conditions and the court's stated policy. Hull v State (January 30, 2002, No. 1812-00)

* Appeals court accepts as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel. Hayden v State (November 14, 2001, No. 610-00)

* No merit to state's contention that def did not preserve error because his written motion to suppress did not attempt to suppress expert's testimony, but only attempted to suppress the results of the breath test, where at the suppression hearing def argued for the suppression of expert's testimony on the grounds that it was not reliable, and trial court denied the motion to suppress after hearing def's argument. Def timely informed the trial court of his grounds with sufficient specificity and, therefore, he preserved error. Mata v State (June 6, 2001, No. 133-00)

* One of the obvious linguistic differences between Rule 33.1(a) and prior Rule 52(a) is that Rule 33.1(a) allows for a ruling by the trial court "either expressly or impliedly" while Rule 52(a) simply required that the party obtain "a ruling." Gutierrez v State (January 31, 2001, No. 693-00)

* While the general rule is that counsel must object to the trial judge's comments during trial in order to preserve error (TRAP 33.1), pursuant to Texas Rule of Evidence 103(d), appeals court is authorized to "tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court." Some rights are widely considered so fundamental to the proper functioning of adjudicatory process as to enjoy special protection in the system. A principle characteristic of these rights is that they cannot be forfeited. That is to say, they are not extinguished by inaction alone. Instead, if a defendant wants to relinquish one or more of them, he must do so expressly. Blue v State (December 13, 2000, No. 1254-99)

* Comments* of trial judge in instant case could not be viewed as fair and impartial. While the judge himself might have been able to maintain impartiality in presiding over the trial, despite his apparent hostility toward the defendant for causing delay, his comments "vitiated the presumption of innocence" before the venire, adversely affecting his right to a fair trial. The comments of the trial judge, which tainted def's presumption of innocence in front of the venire, were fundamental error of constitutional dimension and required no objection. Def's failure to object to the trial judge's comments did not waive error. Blue v State (December 13, 2000, No. 1254-99)

* Helms Rule (that a knowing and voluntary guilty plea waives all nonjurisdictional errors "that occurred prior to the entry of the guilty plea.") did not apply to def's challenge to constitutionality of sex registration law imposed as condition of probation. Regardless of when the trial court ruled that there would be a condition that required def to register as a sex offender, the plea of guilty did not "waive" the issue. If the ruling was made before the plea, it was not waived under the Helms Rule because of recent decision in Young v. State, 8 S.W.3d 656 (Tex. Cr. App. 2000), that Helms Rule no longer applies, and a valid plea of guilty or nolo contendere does not "waive" or forfeit the right to appeal a claim of error, when the judgment of guilt is not rendered independent of, and is supported by, the error. If the trial court's ruling was made after the plea of guilty, when the condition of probation was imposed, the Helms Rule never came into play, and the plea of guilty that was entered before the ruling did not "waive" this issue. Cause remanded for consideration of def's points of error. Brasfield v State, 18 S.W.3d 232 (May 24, 2000)

* Def did not preserve for appeal, claim that his mother lacked authority to consent to search of def's room, where the focus of def's motion to suppress and the pretrial hearing was on whether consent actually occurred, not on whether someone had the authority to consent. From the record, court could not conclude that the trial court was made aware that def was contesting his mother's authority to consent to a search. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

* Nothing preserved for review on claim of exclusion of evid, where trial court never ruled on the admissibility of X's testimony. Although def objected to the trial court's refusal to rule at the time it was first offered, after the state rested the trial court gave def the opportunity to introduce X's testimony and def made no subsequent attempt to introduce it. Martinez v State, 17 S.W.3d 677 (May 17, 2000)

* Reasons previously given by court of criminal appeals for not enforcing a procedural bar under Rule 33.1(a) to raising ineffective assistance of counsel claim, include: (1) A defendant could not, by inaction at trial, waive the right to make an ineffective assistance of counsel claim on appeal. (2) There is not generally a realistic opportunity to adequately develop the record for appeal in post-trial motions. In this regard, a post-conviction writ proceeding, rather than a motion for new trial, is the preferred method for gathering the facts necessary to substantiate such a Sixth Amendment challenge. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)

* Court of Appeals erred in concluding that def forfeited his right to complain that his attorney rendered ineffective assistance of counsel by failing to comply with Rule 33.1(a). There was no evidence in the record that def waived his right to the effective assistance of counsel. There was also no meaningful or realistic opportunity for def to present his ineffective assistance of counsel claim to the trial court either at trial or in a motion for new trial. In instant case, the time requirements for filing and presenting a motion for new trial would have made it virtually impossible for appellate counsel to adequately present an ineffective assistance claim to the trial court. Moreover, it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal. Robinson v State, 16 S.W.3d 808 (Apr. 12, 2000)

* To be timely, a complaint must be made as soon as the grounds for complaint is apparent or should be apparent. That subsequent events may cause a ground for complaint to become more apparent does not render timely an otherwise untimely complaint. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

* Under Rule 33.1, where issue was first raised at hearing on motion for new trial, nothing was preserved for review on claim case should be reversed because def (a Mexican national) was not informed of his rights, upon arrest, as guaranteed by the Vienna Convention on Consular Relations (which grants a foreign national who has been arrested, imprisoned, or taken into custody a right to contact his consulate and requires the arresting authorities to inform the individual of this right ôwithout delayö). Ibarra v State, 11 S.W.3d 189 (Oct. 20, 1999)

* Where def objected at trial to the failure to record bench conferences, and after the objection all conferences were recorded, the objection was untimely as to the earlier conferences. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* When bench conferences are not recorded, an objection and request for a mistrial without some attempt to supplement the trial record with the substance of the unrecorded bench conferences is an inadequate basis for alleging that anything pertinent for the purpose of appeal transpired. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* It was not error to refuse to instruct jury to disregard unresponsive answer by defense witness during direct examination (emotional outburst by def's mother berating the court with obscenities), where def did not object to the outburst at earliest opportunity, but waited until end of testimony. Moore v State, 999 S.W.2d 385 (April 21, 1999)

* Where def, after state rested, said ôAt this time the defense would like to make an opening statement,ö and court ruled ôThat will be denied,ö and defense counsel said, ôOkay. In that case we will call [our first witness],ö def preserved the right to raise issue on appeal that the ruling was in error. In context, the word ôOkayö did not waive issue. Def did all that is generally required to preserve this complaint for review of appeal. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* The general prerequisite to presenting a complaint for appellate review is a showing in the record that (1) the complaint was made to the trial court by a request, objection, or motion that was timely and sufficiently specific to make the trial court aware of the grounds of complaint, and (2) the trial court ruled adversely (or refused to rule, despite objection). Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* When the trial court rules against a defÆs request, objection, or motion, further action is generally not required to preserve a complaint for appellate review. Tucker v State, 990 S.W.2d 261 (Mar. 24, 1999)

* Rule 33.1 ensures that trial courts are provided the opportunity to correct their own errors before a case need be appealed. If a defendant fails to inform the trial judge of the potential error through a timely request, objection, or motion, there is no such opportunity for correction at the trial level. It is for this reason that defendants must object to alleged errors on the record before those errors may be appealed. Vidaurri v State (June 20, 2001, No. 515-99)

rules (TRAP Rule 33. Preservation of Appellate Complaints.)

* When def requests a procedure that varies from proper procedure, and his request is followed, he can obtain relief only if the proper procedure is an ôabsolute requirement or prohibitionö to be implemented regardless of the partiesÆ wishes. Busby v State, 990 S.W.2d 263 (March 31, 1999)

issue not preserved (TRAP Rule 33. Preservation of Appellate Complaints.)

* Nothing presented for review on claim trial court erred in admitting certain testimony during the punishment phase of trial where was no trial objection. Brooks v State, 990 S.W.2d 278 (March 31, 1999)

* Where def made no request to proceed ex parte concerning his request for a jury consultant, he failed to preserve error on issue of denial of ex parte hearing. Busby v State, 990 S.W.2d 263 (March 31, 1999)

Labels: Leavenworth, Political Prosecution. Kangaroo Court, What is behind the White House?

posted by dannoynted1 | 2:01 AM | 0 comments
Friday, January 18, 2008
Good ole EB reminds me of old times .....................

DEFENZOR: A NEWSPAPER FROM THE HEART & SOUL OF AZTLAN 608 Indiana Street, Robstown, Texas 78380 (361) 387-6216 email: staff@defenzor.net ... Note: The posting here do not reflect the position of El Defenzor newspaper nor its staff. This board was created to encourage a mutual dialogue on improving matters in our community.
Keep sound wisdom and discretion, and they will be life for your soul and adornment for your neck…………….. Then you will walk on your way securely, and your foot will not stumble…………... If you lie down, you will not be afraid; when you lie down, your sleep will be sweet…………Do not be afraid of sudden terror or of the ruin of the wicked, when it comes,for the Lord will be your confidence and will keep your foot from being caught. Do not withhold good from those to whom it is due, when it is in your power to do it……..Do not say to your neighbor, “Go, and come again, tomorrow I will give it”—when you have it with you………..Do not plan evil against your neighbor, who dwells trustingly beside you……..Do not contend with a man for no reason, when he has done you no harm.
[ Defenzor's Message Board | Search | Edit Post | DEFENZOR MAGAZINE ]

Re(3): any documentation on any occasion where Jim Kaelin was MOCKING AFRICAN AMERICANS ...
Posted on January 5, 2008 at 01:17:56 PM by Elwood Blues

"Repost your manifesto accepting the WWW Award for the "Worst of the Worst"..Or shall I?"

Ok..being a fairly good poker player,I'll call your bluff..go ahead..repost this alleged "manifesto" I supposedly wrote.

"Or maybe you have learned how to speak Jaimese?"

Hardly..being able to speak Jaimese requires I eat lead based paint chips,swill codiene laced cough syrup and wash it down with a bottle of MD 20-20..no thanks.

"Thinking for myself is my life's work"

You'd play hell proving that based on what you post here.

"...did Kane and Nancy Vera try to Brain wash you EB?"

I don't have the money it takes to run in Kane's circles,and my last name doesn't end in a "z" or a vowel,so Vera wouldn't give me the time of day.

"Don't tell me you were one of the "lucky" few who got to wait in line to see K.C. Rove and the Sunshine Band?"

I believe he calls himself "MC Rove" not "K.C. Rove",and no,I didn't attend that debacle.I withdrew from BACALA after they brought mAnn Coulter here last year.I'll be ####ed if I'll let my membership dollars be spent bringing scumbags like Coulter or Rove here.

Gotta ask,though..are you two officially working for Zamora's campaign now?..or are you just glomming on in the hopes he'll hire you like you did with Juan Garcia? Either way,it's inevitable you'll turn on him later when he doesn't pay you,or give you the jobs you think he promised you,and accuse him of all sorts of things in your chisme blogs like you did Garcia.

Robert Zamora and Los Kanabeansos..it's a toss up as to who deserves each other more.




Replies:

* Guess you were unaware.................. - By dannoynted1 January 6, 2008 at 04:46:30 AM
* redacted documentation - By d1 January 6, 2008 at 03:54:05 AM
* We work towards..... - By Jaime Kenedeno January 6, 2008 at 02:41:43 AM
o Re(1): We work towards..... - By d1 January 6, 2008 at 04:48:08 AM
* Re(4): any documentation on any occasion where Jim Kaelin was MOCKING AFRICAN AMERICANS ... - By d1 January 5, 2008 at 01:43:29 PM
o Re(5): any documentation on any occasion where Jim Kaelin was MOCKING AFRICAN AMERICANS ... - By Elwood Blues January 5, 2008 at 07:50:44 PM
+ Re(6): any documentation on any occasion where Jim Kaelin was MOCKING AFRICAN AMERICANS ... - By d1 January 6, 2008 at 04:57:10 AM
+ I will Acqiuesce... - By Jaime Kenedeno January 6, 2008 at 02:49:22 AM
+ That is because you are ..... - By Jaime Kenedeno January 5, 2008 at 09:30:36 PM

# I dont think you are being truthful EB - By Jaime Kenedeno January 4, 2008 at 05:50:04 PM

* In other politics............ - By D1~ January 6, 2008 at 06:22:57 AM
o NOTICE: City of Corpus Christi is Selling Land for $12 an Acre - By Jaime Kenedeno January 6, 2008 at 06:32:52 AM
* Re(1): I dont think you are being truthful EB - By Elwood Blues January 4, 2008 at 08:07:51 PM
o Re(2): I dont think you are being truthful EB - By d1 January 6, 2008 at 06:57:12 AM
o EB, the Republican Party did nothing to support Jim Kaelin - By Jaime Kenedeno January 6, 2008 at 04:09:37 AM
o EB, You always talk back yada yada yada - By Jaime Kenedeno January 4, 2008 at 09:25:21 PM
+ Re(1): EB, You always talk back yada yada yada - By Elwood Blues January 5, 2008 at 12:49:50 PM
# You obviously ..... - By Jaime Kenedeno January 5, 2008 at 09:33:28 PM
* Your Honor, I will ask that ... - By Jaime Kenedeno January 6, 2008 at 02:57:26 AM

Labels: barone, Courtney Al, Fugate, Hubert, Kearney, military, Phil Esquivel, ray, TAMUK

posted by dannoynted1 | 1:10 AM | 0 comments
Thursday, August 02, 2007
Al Benitez shot august 2003.....Por que? Nano...Nano? this bitch Liz WALZ graduated at the same time as moi 8/1998.......sicko

5/4/2004


Officials Make Arrest in Del Mar Instructor

Officials have made an arrest in the shooting of a Del Mar College instructor.



CBS 10 News has confirmed the Kleberg County Sheriff's Department is questioning a man in connection with the shooting of Del Mar instructor Alberto Benitez.



Benitez was shot several times back on August 9 of 2003 by an intruder to his home.

Benitez survived his attack. But for months officials have had very few leads to follow.

Labels: Butch, Fugate, Hubert, Kearney, military, Phil Esquivel, TAMUK

posted by dannoynted1 | 1:01 AM | 0 comments
V'da and Ray Barone .... fall 97 till spring 99????4sure 3/1/1999.

Return to the "POINTER VIEW"
August 1, 2003

JROTC students keep busy at Camp Buffalo Soldier

Story and photo by Lt. Col. (Ret.) Mike Beckstrom
Senior Army ROTC Instructor O'Neill H.S.

Twenty cadets in the JROTC program at James I. O’Neill High School had a very busy week as they conducted Camp Buffalo Soldier July 7-11.

This JROTC unit calls itself the Buffalo Soldier Squadron to honor the 9th and 10th Cavalry troopers who served at West Point.

Tierney Scott wields a rubber knife while Steven Nelson defends himself during contact self-defense class at Arvin Gym.

The camp focused on physical fitness, leadership, history, awareness of military units in the area, science and perhaps most importantly having a great week of positive experiences with the group.

Since this was the first year for JROTC at O’Neill, some of the cadets did not know what to expect from camp. What they got was a week packed with activities, challenges and loads of fun.

The first day of camp the cadets spent at St. Basil’s Academy, where they were challenged with the JROTC physical fitness test. The rest of the day they competed in volleyball, kickball, basketball dodge ball and soccer. This was a day of teambuilding and chances for cadets to lead activities, with fun mixed in from beginning to end.

Day two found the cadets at Arvin Gym Annex where they spent the morning learning non-contact self-defense skills from West Point boxing coach Ray Barone.

Over lunch at Trophy Point the group learned about the Great Chain and the key role West Point played in the Revolutionary War.

That afternoon West Point Department of Physical Education’s Larry Butler put the cadets through their paces on the indoor obstacle course.

Both of these events challenged the cadets physically and helped them develop self confidence.

The third day saw the Buffalo Soldier Squadron travel to Round Pond Recreation Center for a day of outdoor challenges.

First, while divided into teams, they competed to find points in the rugged terrain using map reading skills, teamwork and common sense.

After a vigorous round of volleyball, the cadets raced each other on paddle boats across Round Pond. More volleyball games and horseshoe matches followed, then the whole crew went swimming to learn drown proofing and to have some fun splashing around in the water. The day ended with a final showdown on the volleyball court.

Day four found the Buffalo Soldiers at the New York Military Academy firing .22 caliber rifles at the indoor range. Many cadets fired rifles for the first time. Under the guidance of Staff Sgt. (Ret.) Warren Fountain, a former Army drill instructor, most of the cadets shot very well.

After lunch they traveled to Stewart Airfield where the U.S. Marines played host for the afternoon.

A number of Marine aviators gave guided tours of the facilities and showed the cadets the inside of a C-130 just back from Iraq.

Most of the Marines served in Iraq in the past few months and some also flew in Afghanistan. The cadets found both the aircraft and the men who flew them impressive.

July 11 the campers spent a fascinating two hours as guests of the West Point Physics Department. Half a dozen instructors gave a dazzling tour of the photonics lab, the nuclear reactor and a room filled with more experimental gadgets than any of the cadets had ever seen.

From lasers to holographs to a beach ball floating in the air, the morning was a fun-filled survey of the mysteries of physics.

Later, at Buffalo Soldier Field, the cadets got a history lesson about the role of cavalry troops who rode on that field in the past.

Joanne Brown, whose family boasts three generations of Buffalo Soldiers, talked to the group at the Vet Clinic: the building is named in honor of her father.

The camp would not have been possible without the generous contributions from the West Point Women’s Club.

Labels: barone, Butch, Courtney Al, E., Fugate, Hubert, Kearney, military, Phil Esquivel, ray, TAMUK

posted by dannoynted1 | 12:21 AM | 0 comments
Sunday, February 05, 2006

It all started on WACO street Corpus Christi, Texas

posted by dannoynted1 | 1:35 AM | 0 comments

the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misuse

The 10 WORST U.S. Prosecutors Named: Texas Leads List with Four

United States Attorney General, Alberto Gonzales, was selected as the worst prosecutor out of 10 in the nation in 2007 for his involvement in the firings of nine U.S. Attorneys and the politicization of the Justice Department. At a close second, Texas ex-prosecutor Terry D. McEachern, who is best known for seeking unlawful cocaine possession charges against the African-American community of Tulia, Texas, and withholding exculpatory evidence. Next selected, former North Carolina D.A. Michael Nifong, for the widely-publicized debacle in the rape prosecution of Duke Lacrosse players causing his disbarment for having engaged in dishonesty, fraud, and withholding exculpatory information.

While a prosecutor’s job is to seek justice, there have been numerous instances in U.S history where federal and state prosecutors have engaged in unethical conduct simply to secure a conviction where otherwise not possible if they had played “by the rules.” The “Ten Worst Prosecutors” list carefully researched and produced by the Bennett Law Firm (BLF) in Houston, Texas, features a handful of recent occurrences where federal and state prosecutors did not play “by the rules” with respect to evidence in criminal trials and ruined the lives of innocent people to further their own professional careers.

The BLF and the “Bad Prosecutor Blog” website (visit: http://bennettlawfirm. typepad.com/badprosecutors) chose to recognize the ten worst prosecutors in the United States in 2007 to bring about an open discussion of prevalent prosecutorial misconduct, and most importantly, to stress the importance of holding bad prosecutors accountable for their unlawful indiscretions. For over thirty years, the BLF has been involved in criminal, civil, and administrative investigation. BLF Attorney Robert S. “Bob” Bennett, a former federal prosecutor, has been qualified as an expert on prosecutorial abuse and prosecutorial recusal. Mr. Bennett has also published numerous articles and has given countless speeches on these topics.

Prosecutorial misconduct ranges from hiding, destroying, or tampering with evidence, case files or court records; failing to disclose exculpatory evidence; using false or misleading evidence during trial; to improper behavior during grand jury proceedings. The BLF’s “Ten Worst” list exposes the harsh reality that bad prosecutors are not always disciplined for such misconduct and, in most cases, continue practicing law without missing a beat. The BLF and the website strongly believe that the list will heighten public awareness and, in turn, help curb unjust prosecutions and deter future prosecutorial misconduct.

Other bad prosecutors selected for the BLF “Ten Worst” list include the likes of Louisiana Attorney General Charles Foti, Jr., Massachusetts Assistant U.S. Attorney Jeffrey Auerhahn, Georgia Prosecutor David McDade, Oklahoma D.A. Bill Peterson, L.A. City Attorney Rocky Delgadillo, and Texas licensed attorneys: Charles Sebesta and Randall W. Reynolds.

Foti’s persistence in attempting to prosecute a doctor and two nurses after hurricane Katrina and making extrajudicial statements surrounding their guilt have secured him a spot on the BLF’s “Ten Worst” list. Auerhahn’s blatant disregard for the constitutional rights of an innocent man which resulted in a 22 year sentence and 13 years behind bars before it was ever discovered has earned him a listing as well. McDade was selected for overzealously prosecuting a 17-year-old over oral sex with a consenting 15-year-old girl under an archaic loophole in Georgia law (which has now been abolished) and for distributing a video of the sexual encounter in violation of federal child pornography laws.

Texas prosecutor, Charles Sebesta, makes an appearance on the list for presenting false, misleading evidence and not disclosing an exculpatory confession during the murder prosecution of Anthony Graves which resulted in his conviction and being sent to death row for capital murder in 1994. Ward County D.A, Randall W. Reynolds, was selected for dragging his feet in response to reliable allegations of sexual abuse of inmates at the West Texas State School in Pyote, Texas, and delaying the prosecution of two accused prison guards for more than 2 years.

Also selected was prosecutor Bill Peterson for inspiring John Grisham to write a novel about his vigorous yet erroneous prosecution and conviction of Ron Williamson for capital murder in 1988 on weak physical evidence and jailhouse informants. Last, but certainly not least, the list includes the Harvard-educated L.A. City Attorney, Rocky Delgadillo, who is best known for prosecuting famed Paris Hilton and publicly admitting that he misused public resources by negligently allowing his accident-prone wife to use a city vehicle for personal errands resulting $1,200 of damage and then letting taxpayers foot the bill, all the while complaining about a two-tiered judicial system that gives “special treatment” to the privileged.

If you would like to obtain a copy of the BLF’s “Ten Worst Prosecutors” Article, please visit http://bennettlawfirm.typepad.com/badprosecutors or contact Scott Chauveaux at 713-225-6000; e-mail Schauveaux@bennettlawfirm.com. To contact BLF Attorney Bob Bennett, visit: www.bennettlawfirm.com or email Bbennett@bennettlawfirm.com.

failure to object was “so outrageous that no competent attorney would have engaged in it.” but that would require "working harder"

NUMBER 13-02-218-CR

COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG



ALEJANDRO RODRIGUEZ MATA, Appellant,

v.

THE STATE OF TEXAS, Appellee.



On appeal from the 257th District Court of Hidalgo County, Texas.



O P I N I O N

Before Justices Yañez, Rodriguez and Baird Footnote

Opinion by Justice Baird

Appellant was charged by indictment with the offense of murder. The indictment also alleged a prior felony conviction for the purpose of enhancing the range of punishment. A jury convicted appellant of the charged offense. Following appellant’s plea of not true, the jury found the enhancement allegation true and assessed punishment at ninety-nine years confinement in the Texas Department of Criminal Justice–Institutional Division, and a fine of $10,000. We affirm the conviction, but reverse and remand for a new trial on punishment. Footnote

I. Self Defense and Defense of Third Person.

Points of error one, two, and three contend: (a) the trial judge erred in denying appellant’s requested jury instruction on the defense of a third person; (b) the trial judge erred in failing to sua sponte instruct the jury on self defense; and (c) defense counsel was ineffective for failing to request a charge on self defense.

A person is justified in using non-deadly force against another where he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Pen. Code Ann. §§ 9.31 (Vernon Supp. 2004). A person is justified in using deadly force against another if: (1) he would be justified in using non-deadly force; (2) a reasonable person in the actor's situation would not have retreated; and, (3) he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Section 9.33 of the penal code “provides, essentially, that a person is justified in using deadly force to protect a third person when that third person is threatened by circumstances that would entitle the actor to protect himself, and the actor reasonably believes his intervention is immediately necessary.” Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Since appellant used deadly force in the instant case, the issue is whether either appellant or a third person would have been justified in using such force against the decedent.

The only fact witness cited in appellant’s brief to support these points of error is Raymond Dean Sanchez. We need only consider his testimony because a defendant is entitled to an instruction on any properly requested defensive issue that is raised by the evidence, even if the evidence is weak, impeached, and not credible. Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999). Conversely, if the evidence, viewed in a favorable light, does not establish the defensive issue, an instruction is not required. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984).

Sanchez testified the decedent wanted to purchase some cocaine. Sanchez drove the decedent to the apartment complex where appellant lived, and asked where cocaine could be located. Appellant’s brother, Leo, got into the vehicle with Sanchez and the decedent, and drove to a location where cocaine was subsequently purchased. On the return trip, Leo and the decedent began snorting the cocaine. Upon their arrival, the two began arguing over whether Leo consumed too much of the decedent’s cocaine. After exiting the vehicle, the decedent shoved Leo, and a fight ensued. Sanchez attempted to break up the fight; when his efforts failed, Sanchez went to appellant’s apartment and sought help separating the fighters. Sanchez testified appellant approached the fighters and stabbed the decedent with a screwdriver.

According to Sanchez, after the initial push by the decedent, Leo got the better of the decedent and was on top of him during the fight. Leo was still on top of the decedent when appellant arrived, and Leo never asked appellant for help. Moreover, Sanchez was steadfast in his testimony that the decedent was unarmed at all times, and that the decedent did not threaten to kill anyone.

For the purpose of our analysis we will assume the initial shove by the decedent constituted unlawful force, and that Leo was entitled to defend himself against that force. However, Sanchez’s testimony is clear that Leo quickly gained the advantage during the fight, and was on top of the unarmed decedent. Footnote Consequently, there is no testimony from Sanchez that a reasonable person in Leo's situation would not have retreated, or that Leo reasonably believed the deadly force was immediately necessary to protect himself against the decedent's use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004). Therefore, we hold Leo was not justified in using deadly force to protect himself against the decedent. Consequently, we further hold the evidence did not raise the issue of defense of a third person because there is no testimony from which appellant could have reasonably believed his intervention into the fight between Leo and the decedent was immediately necessary to protect Leo against the decedent's use or attempted use of unlawful deadly force. Hamel, 916 S.W.2d at 493. Additionally, we hold appellant was not entitled to an instruction on self defense because there was no evidence that appellant reasonably believed the force was immediately necessary to protect himself against the decedent’s use or attempted use of unlawful deadly force, or that a reasonable person in appellant's situation would not have retreated. Tex. Pen. Code Ann. § 9.32(a) (Vernon Supp. 2004).

Consequently, we hold the trial judge did not err in denying appellant’s requested instruction on the defense of a third person, or in failing to instruct the jury on self defense. Furthermore, we hold defense counsel was not ineffective for failing to request a charge on self defense because counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. Rodriguez v. State, 899 S.W.2d 658, 668 (Tex. Crim. App. 1995). Accordingly, the first, second, and third points of error are overruled.

II. Ineffective Assistance of Counsel.

Points of error four through eleven contend defense counsel was ineffective at the trial of the instant case. The right to the effective assistance of counsel is guaranteed to criminal defendants by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, section 10 of the Texas Constitution. The well-known two-prong standard of Strickland v. Washington, 466 U.S. 668, 684 (1984), is utilized when reviewing ineffective assistance of counsel claims. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).

The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). When determining the validity of an ineffective assistance of counsel claim, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984). This deferential review begins with the strong presumption that counsel's actions and decisions were reasonably professional, and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden of rebutting this presumption, and generally the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999) (trial record generally not sufficient to establish an ineffective assistance of counsel claim). There is, however, a recognized exception to this general rule which will be discussed in relation to the tenth point of error.A. The Guilt Phase.

1.

The fourth point of error contends defense counsel was ineffective for failing to secure an adverse ruling following his objection to the State’s argument that Sanchez had seen appellant with a knife stabbing the decedent as he lay on the ground. Defense counsel objected, stating the argument was “a mischaracterization of the testimony.” The trial judge responded by stating: “Use your own recollection, ladies and gentlemen, as to what the witness has testified to.”

We agree with defense counsel that the argument constituted a misstatement of Sanchez’s testimony. Sanchez categorically stated that he did not see anyone with a knife. The State cites Kinnamon v. State, 791 S.W.2d 84, 90 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994), for the proposition that defense counsel may have decided the instruction adequately admonished the jury. While we do not read Kinnamon as necessarily standing for that proposition, the State’s argument does prove that we do not know why defense counsel did not continue objecting until he obtained an adverse ruling. It could well be that counsel thought the instruction from the trial judge was adequate. Because the record is silent on this issue, we are left to speculate about counsel’s actions. This we will not do. The fourth point of error is overruled.





2.

The fifth point of error contends defense counsel was ineffective for failing to object to the State calling a witness for the sole purpose of impeaching her. Our law is clear that the State may not call a witness solely for the purpose of impeaching that witness with otherwise inadmissible evidence. Hughes v. State, 4 S.W.3d 1, 7 (Tex. Crim. App. 1999).

The witness at issue, Adriana Mata, appellant’s sister, was a fact witness who had previously provided a written statement that she saw appellant stab the decedent. She had previously testified for the State at Leo’s trial for this same alleged offense. However, when called as a witness in the instant case, Adriana repeatedly stated that she did not remember making a statement or seeing the alleged murder. There is no showing the State called Mata solely for the purpose of impeaching her. Moreover, the information contained in Adriana’s statement which was subsequently introduced to impeach her was substantially testified to by other witnesses. Consequently, we hold there was no violation of the holding in Hughes, supra. Accordingly, the fifth point of error is overruled.

3.

The sixth point of error contends defense counsel was ineffective for not objecting to an extraneous offense. Specifically, there was no objection to the testimony of Officer Adrian Medrano, who testified that he checked the criminal histories of Leo and appellant when attempting to find an address to locate them. Defense counsel’s failure to object does not constitute ineffective assistance because the mere suggestion of the possibility of an extraneous offense is not sufficient to constitute error. Roach v. State, 586 S.W.2d 866, 868 (Tex. Crim. App. 1979), overruled on other grounds, Parker v. State, 985 S.W.2d 460 (Tex. Crim. App. 1999). The fifth point of error is overruled.

4.

The seventh point of error contends defense counsel was ineffective for “not objecting to irrelevant/overly prejudicial matters.” This point of error relates to the testimony of Sonia Garcia, the decedent’s sister, who identified a photograph of the decedent, and provided some background information. Although not specifically mentioned in appellant’s brief, we interpret this point of error as arguing that Garcia’s testimony constituted improper victim impact evidence.

Clearly, the State is permitted to provide evidence identifying the decedent in a murder case. This type of testimony constitutes error when presented in an inflammatory and prejudicial manner. See Stahl v. State, 749 S.W.2d 826, 829-30 (Tex. Crim. App. 1988). However, the instant case is easily distinguishable from Stahl where the prosecutor deliberately violated an express court order that would have prevented the witness from testifying, and the court found that the prosecutor's conduct was blatant in that he had foreknowledge of the witness's likely emotional outburst. Id. at 831.

In this case, appellant does not allege, nor does the record suggest, the existence of prosecutorial misconduct. Further, there was no emotional outburst as in Stahl, but rather a brief identification of the decedent with some general background information. Accordingly, we hold Garcia’s testimony was not prejudicial to appellant. Assuming arguendo the testimony was prejudicial, the testimony of Garcia pales in comparison to that in Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002), where the erroneous admission of such evidence was held to be harmless. See id. at 355. Accordingly, the seventh point of error is overruled.



B. The Punishment Phase.

The eighth, ninth, tenth, and eleventh points of error concern the good conduct time and parole instruction included in the punishment charge, and the State’s arguments on those subjects.

1. The Erroneous Instruction.

Appellant was convicted of murder, a first degree felony, for which he is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis v. State, 72 S.W.3d 355, 359 (Tex. Crim. App. 2002). Following such a conviction, the trial judge is required to instruct the jury as prescribed by the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004). In its entirety, that instruction reads:

Under the law applicable in this case, the defendant, if sentenced to a term of imprisonment, may earn time off the period of incarceration imposed through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts at rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

It is also possible that the length of time for which the defendant will be imprisoned might be reduced by the award of parole.

Under the law applicable in this case, if the defendant is sentenced to a term of imprisonment, he will not become eligible for parole until the actual time served equals one-half of the sentence imposed or 30 years, whichever is less, without consideration of any good conduct time he may earn. If the defendant is sentenced to a term of less than four years, he must serve at least two years before he is eligible for parole. Eligibility for parole does not guarantee that parole will be granted.

It cannot accurately be predicted how the parole law and good conduct time might be applied to this defendant if he is sentenced to a term of imprisonment, because the application of these laws will depend on decisions made by prison and parole authorities.

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

See id. (emphasis added).

However, the trial judge instructed the jury that appellant would not become eligible for parole “until the actual time served plus any good conduct time earned equals one-half of the sentence imposed or 30 years, which ever is less, without consideration of any good conduct time he may earn.” (emphasis added). Because the italicized portion of the instruction was erroneous, we hold defense counsel was ineffective for failing to object. Accordingly, the first prong of Strickland has been established as it relates to the eighth point of error.

2. The Improper Argument.

After the reading of the court’s charge, the State elected to make an opening argument prior to defense counsel. The State began by referring to appellant’s pen packet, and how a final conviction would affect the range of punishment. The State then argued:

The other thing that’s important here there is a lot of language regarding your, you know, that he can get good time credit, that there is such a thing as parole. That’s to let you know there is parole in Texas. What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today. They can change those laws in two years from now, but it is to let you know that they do exist and you may consider the existence of them, the fact that he may at some point be eligible for parole in considering the amount of time you think is appropriate in this case.



For example, when you look at the pen packet you can see that he was sentenced and the date he was sentenced. And the date you’ll see it was a sentence for five years for burglary of a habitation, and possession of a prohibited weapon, and date of that sentence . . . And after that he was sent to prison for a period of five years on . . . January of 1998. And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later.

So you know parole does exist in reality.

And so that will help you understand those issues.

(Emphasis added). Defense counsel then presented her argument which did not mention good conduct time or parole.

The State’s argument was improper in several respects. First, the prosecutor stated a person convicted of murder “can get good time credit.” As discussed in the preceding section, this argument is a misstatement of the law; a person convicted of murder is required to serve one-half of his actual sentence (or thirty years) without regard for any good conduct time. Luquis, 72 S.W.3d at 359. Even if the trial judge had accurately instructed the jury, this argument would have been improper because the statutory instruction specifically prohibits the consideration of good conduct time in a particular case: “[Y]ou are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant.” Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a).

Second, the State specifically asked the jury to apply the law of parole to appellant by stating: “What it is for the, okay, for you to do is go back and say, Let’s do him. Give him this because he will get out in this amount of time because you don’t know how the parole law will be applied today,” and asking the jury to consider parole “in considering the amount of time you think is appropriate in this case.” This argument violates the express language of the statutory instruction: “You are not to consider the manner in which the parole law may be applied to this particular defendant.” Id.

Third, subsection (d) of article 37.07, section 4 provides: “This section does not permit the introduction of evidence on the operation of parole and good conduct time laws.” Id., § 4(d). The State circumvented this mandatory statute by specifically referring the jury to the pen packet and arguing “And so you know he was sentenced to a period of five years in 1998, and this offense was committed on January 1st of the year 2001, less than five years later. So you know parole does exist in reality.” This argument was clearly improper. Hawkins v. State, 99 S.W.3d 890, 902 (Tex. App.–Corpus Christi 2003, pet. ref’d).

Having determined the State’s argument was improper, the question under Strickland's first prong is whether counsel's failure to object to the improper argument was deficient conduct. Even where an objection would have been meritorious, the failure to object may be attributed to sound trial strategy. Strickland, 466 U.S. at 690. A substantial risk of failure accompanies a claim of ineffective assistance of counsel on direct appeal because the record is simply underdeveloped and cannot adequately reflect the failings of trial counsel. Footnote Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). As a general rule, claims of ineffective assistance of counsel not developed in the appellate record will be resolved against the defendant when the appellate court employs Strickland's presumption that the challenged action of trial counsel was the result of "sound trial strategy." Strickland, 466 U.S. at 689. However, an exception to the "sound trial strategy" presumption exists when the record clearly confirms that no reasonable trial counsel would have engaged in the complained of conduct or omission. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Chavez v. State, 6 S.W.3d 66, 71 (Tex. App.--San Antonio 1999, pet. ref'd); Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.--Dallas 1994, no pet.). Holding counsel ineffective in light of such a record is not speculation because the deficient performance is confirmed by the appellate record. Vasquez, 830 S.W.2d at 951; Stone v. State, 17 S.W.3d 348, 350 (Tex. App.–Corpus Christi 2000, pet. ref'd); Weeks, 894 S.W.2d at 392. When the record establishes that ”the challenged conduct was so outrageous that no competent attorney would have engaged in it,” the presumption that counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy is rebutted. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In other words, Strickland does not require deference when there is no conceivable strategic purpose that would explain counsel's conduct. Lyons v. McCotter, 770 F.2d 529, 534-35 (5th Cir. 1985).

Obviously, the goal of every defense counsel at the punishment phase of trial is to have the jury assess the least amount of punishment possible. This was the goal of defense counsel in the instant case. To achieve this goal, counsel emphasized: (a) appellant’s relative youth -- twenty-three years of age; (b) the decedent’s lifestyle, which involved drinking and illicit drug use; and (c) that the decedent’s death was the result of a fight involving drugs, and not a planned killing. Footnote Defense counsel asked the jury to consider the lower end of the range of punishment.

In light of this obvious strategy, we hold there could have been no basis for defense counsel's failure to object to the improper argument of the State. Because the improper argument could only serve to increase appellant’s sentence, defense counsel’s failure to object was “so outrageous that no competent attorney would have engaged in it.” Garcia, 57 S.W.3d at 440. For these reasons, we hold the first prong of Strickland has been established.

Under the second prong, appellant must demonstrate that he was prejudiced by the deficient performance. Stated another way, the second prong is met if defense counsel's deficient performance creates a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. In the instant case, the jury assessed the maximum punishment -- 99 years confinement and a fine of $10,000.00. While the decedent’s death was tragic and senseless, as are all murders, we do not find that the circumstances of the instant offense, in light of the decedent’s illicit drug use and unlawful attack on Leo, to be especially heinous. The jury certainly could have believed the crime warranted the maximum sentence. On the other hand, we must accept the probability that the jury accepted the State’s improper invitation to “go back and say, Let’s do him.” Consequently, our confidence in the punishment verdict is undermined by defense counsel's deficient performance. Therefore, we hold the second prong of Strickland has been met. Accordingly, the tenth point of error is sustained.

Additionally, we further hold the cumulative effect of the tenth point of error and the deficient conduct in the eighth point of error – failing to object to the erroneous good conduct time instruction – amounted to a denial of effective assistance of counsel at the punishment phase of appellant’s trial. Wright v. State, 28 S.W.3d 526, 537 (Tex. Crim. App. 2000); Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999). For this additional reason, we sustain the tenth point of error.

In light of this conclusion, we need not more fully address the eighth, ninth, and eleventh points of error. See Tex. R. App. P. 47.1. Further, we need not address the remaining points of error: numbers twelve, thirteen and fourteen. See id.

The trial court’s judgment of conviction is affirmed. However, because we sustain the tenth point of error, the judgment of the trial court is reversed as it relates to the sentence. This case is remanded to the trial court for a new trial on the issue of punishment. Tex. Code Crim. Proc. Ann. art. 44.29(b) (Vernon Supp. 2004).



_________________________

CHARLES BAIRD,

Justice

Publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed

this 12th day of August, 2004.