Gary Parker v. State ( 2014 )

NUMBER 13-13-00128-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GARY PARKER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Rodriguez
Appellant Gary Parker challenges his conviction for family violence assault by
impeding breath or circulation, a third-degree felony. 1 See TEX. PENAL CODE ANN. §
1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
22.01(b)(2)(B) (West, Westlaw through 2013 3d C.S.). The jury returned a guilty verdict.
For enhancement purposes, the jury found that Parker was a habitual felony offender,
see id. § 12.42 (West, Westlaw through 2013 3d C.S.), and sentenced him to thirty-five
years in the Institutional Division of the Texas Department of Criminal Justice. By four
issues, Parker contends: (1) the trial court abused its discretion in denying his motion
for new trial based on newly discovered evidence; (2) the State’s witness Jacqueline
Luckey was not qualified as a fingerprint expert; (3) the prosecutor’s closing argument
constituted reversible error; and (4) trial counsel provided ineffective assistance. We
affirm.
I. MOTION FOR NEW TRIAL
By his first issue, Parker contends that the trial court abused its discretion when it
denied his motion for new trial because newly discovered evidence proved that the
complainant gave false testimony at trial about her injuries.
A. Applicable Law and Standard of Review
“A new trial shall be granted an accused where material evidence favorable to the
accused has been discovered since trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001
(West, Westlaw through 2013 3d C.S.). In order to be entitled to a new trial on the basis
of newly discovered evidence, the defendant must satisfy the following four-pronged test:
(1) the newly discovered evidence was unknown or unavailable to the
defendant at the time of trial;
(2) the defendant's failure to discover or obtain the new evidence was
not due to the defendant's lack of due diligence;
(3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and,
2
(4) the new evidence is probably true and will probably bring about a
different result in a new trial.
Carsner v. State, PD-0153-14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept. 24, 2014).
“Motions for new trials on grounds of newly discovered evidence are not favored by the
courts and are viewed with great caution.” Drew v. State, 743 S.W.2d 207, 225 (Tex.
Crim. App. 1987) (en banc); see Moreno v. State, 1 S.W.3d 846, 852–53 (Tex. App.—
Corpus Christi 1999, pet. ref’d).
An appellate court reviews a trial court's denial of a motion for new trial for
an abuse of discretion, reversing only if the trial judge's opinion was clearly
erroneous and arbitrary. A trial court abuses its discretion if no reasonable
view of the record could support the trial court's ruling. This deferential
review requires the appellate court to view the evidence in the light most
favorable to the trial court's ruling. The appellate court must not substitute
its own judgment for that of the trial court and must uphold the trial court's
ruling if it is within the zone of reasonable disagreement.
Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); see Celis v. State, 354
S.W.3d 7, 21 (Tex. App.—Corpus Christi 2011), aff’d, 416 S.W.3d 419 (Tex. Crim. App.
2013).
B. Discussion
1. Evidence Presented at the New-Trial Hearing
Dane Smith, the complainant’s work supervisor, testified at the new-trial hearing
that he did not see any significant injuries on the complainant when she came to work the
day after the alleged assault. Parker asserts that this testimony directly contradicts the
following trial testimony of the complainant: “[My face] was a lot darker the next day, and
then down my jaw line it was all dark and on this side of my jaw. I couldn’t even—they
wouldn’t let me work.” Parker argues that this newly discovered evidence proved the
complainant lied on the stand, specifically about not going to work the day following the
3
incident and about the seriousness of her injuries.
Parker also offered the testimony of a former attorney who represented him on a
felony theft charge brought by the same complainant. The attorney testified that during
his investigation he found evidence showing that the complainant lied about the theft
charges against Parker. The case was dismissed when the complainant failed to appear
at the trial.2
2. Carsner’s Third Prong3
“The rule is well settled that a new trial will not be granted for newly[ ]discovered
evidence to impeach a witness.” Grate v. State, 23 Tex. App. 458, 5 S.W. 245, 245–46
(Tex. App. 1887, no pet.). The court of criminal appeals recently repeated this
proposition in the third prong of its test for admitting newly discovered evidence—the new
evidence must be admissible and must not merely be impeaching, among other things.
Carsner, 2014 WL 4722762, at *2; see Strong v. State, 138 S.W.3d 546, 556 (Tex. App.—
Corpus Christi 2004, no pet.) (“His only arguments for the admission of the evidence were
based on using it to impeach or corroborate. This fails the third prong of the [Carsner]
test . . . .”); see also Willingham v. State, 897 S.W.2d 351, 358 (Tex. Crim. App. 1995)
(en banc) (“Impeachment of a witness means adducing proof that such witness is
unworthy of belief or credit.”). So to the extent Parker’s argument for the admission of
2 Parker also asserts that Robin Cassel, a detective with the Corpus Christi Police Department
Family Violence Unit, provided testimony establishing that the complainant lied about her injuries.
However, the State offered this referenced testimony during the trial of this case. It was not evidence that
Parker discovered since trial. See TEX. CRIM. PROC. CODE ANN. art. 40.001 (West, Westlaw through 2013
3d C.S.). So we will not consider it in our review.
3 Because our discussion of the third and fourth prongs of the Carsner test are dispositive of this
issue, we will assume without deciding that Parker established the first two prongs. See Carsner v. State,
PD-0153-14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept. 24, 2014).
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the newly discovered evidence is based on using this evidence solely to impeach the
complainant, it fails the third prong of the Carsner test. See Carsner, 2014 WL 4722762,
at *2.
3. Carsner’s Fourth Prong
“[W]hen the newly discovered testimony, although tending to discredit or impeach
a witness, is material and competent independent of its impeaching tendency . . . , the
fact that the testimony also impeaches a witness does not deprive the accused in a proper
case of the right to a new trial.” Hale v. State, 51 S.W.2d 611, 613 (Tex. Crim. App.
1932); see Lawson v. State, 206 S.W.2d 608, 609 (Tex. Crim. App. 1947) (op. on reh’g)
(per curiam); see also TEX. CRIM. PROC. CODE ANN. art. 40.001. So if the fourth prong of
the Carsner test is established—that the new evidence is probably true and will probably
bring about a different result in a new trial, independent of impeachment—then the
evidence is more than merely impeaching. See Carsner, 2014 WL 4722762, at *2; see
also TEX. CRIM. PROC. CODE ANN. art. 40.001.
Addressing this fourth prong, Parker contends that the new evidence has been
shown probably to be true; that there is nothing in the record to give reason to doubt the
credibility of the supervisor whose testimony constituted the majority of the new evidence.
And Parker asserts that the circumstances in this case make it very likely that the new
evidence would have resulted in a different outcome. Being mindful that a new trial will
be granted when the newly discovered evidence is material and competent, independent
of its impeaching tendency, see Hale, 121 Tex. Crim. at 368, 51 S.W.2d at 613; see also
TEX. CRIM. PROC. CODE ANN. art. 40.001, we still cannot conclude that this new evidence,
even if true, would probably bring about a different result in a new trial. See Carsner,
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2014 WL 4722762, at *2.
The complainant testified at trial that after Parker hit her “in the head, the eyes,
[and] mouth” with “[h]is fist,” and was choking her, she blacked out. The complainant
then answered the following questions asked by the State:
Q. What's the first thing you remember when you woke up?
A. Coming to and Mr. Parker had his hands around my throat and telling
me to get up and calling me vicious names, and he just kept punching
and choking me and kicking me and—maybe after he did that I was
like just sitting there trying to get my breath and stuff because I was
shortness [sic] of breath and real dizzy.
....
Q. Now, what—he used his hand and put it around your throat; is that
right?
A. Yes. Uh-huh.
Q. And how many—did he use both hands or one?
A. Yes, both hands, because he was like just shaking me like a rag doll
on the couch with both his hands.
Q. So, did he put pressure on your throat?
A. Yes. Uh-huh.
Q. Did that hurt?
A. Yes.
Q. Now, did that impede your normal breathing whenever that
occurred?
A. Yes, it did.
Q. And can you tell the jury a little bit about how that felt?
A. Well, I had to like gasp for air, and when I finally got away from him—
and then I just—like I started like hiccupping, but not—it wasn't
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hiccupping. It was just like probably gaping (sic) for air but really
bad.
....
Q. Okay. Now, in this [911] recording were you crying?
A. Yes, but I could hardly talk. It was—it was very difficult to talk, and
I couldn't even remember my address, that's how shook up—and my
head was hurting so bad . . . and my throat.
....
Q. I'd like to go back over—to go back to whenever the Defendant was
choking you. Can you demonstrate to the jury with your hands how
his hands were on your neck?
A. He just had ahold of me like this, and I was like laying down on the
couch, and he was just choking me and banging my head around
like that.
Q. So you're indicating that he had both hands around your neck?
A. Yes.
Q. Do you know how long you couldn't breathe?
A. I don't know, three to five minutes, something like that. That's about
how long he was—started choking on me and choking on me. And
this side of my neck, right here, it—it hurt the worst on this side over
here because—I don't—I don't know why, but it was just—had a big
knot and stuff right here on this side of my neck right in there.
Q. Okay. Now I'd like to talk about some of the injuries that you
sustained from the attack. . . . Do you see any injuries on that picture
[State’s Exhibit 4]?
A. Yes. Right here in my neck area, right there, and then my eye, and
then there was a lump right there on my head. . . . See, there's the
knot on my neck, right there, from him choking me. I don't know if
you can see that right in there, and then like—he had my—he had
handprints right there on the side, right there by my hair.
Q. I'm holding up State's Exhibit 2, do you want to indicate on here for
the jury where?
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A. Okay. That's the knot on my neck, right here, and then there was
hand marks right in through here where my hair is right there.
In addition, when the trial court admitted a photograph of the complainant’s face
and neck as a trial exhibit, Officer Mario Olivares, a police officer with the Corpus Christi
Police Department who responded to the domestic disturbance call, testified that it
depicted “some of the redness to the [complainant’s] neck area.” When asked to
describe what he saw when he looked at the victim’s neck, Officer Olivares replied, “We
noticed some redness around her neck area and what would look to be some purplish
markings also.”
Parker was convicted of family violence when he intentionally, knowingly, or
recklessly caused bodily injury to his former wife by impeding her normal breathing or
circulation of the blood by applying pressure to her throat or neck or by blocking her nose
or mouth. See TEX. PEN. CODE ANN. § 22.01(b)(2)(B). In light of the evidence that
Parker caused bodily injury to the complainant by impeding her normal breathing by
applying pressure to her throat or neck, we cannot conclude that the evidence regarding
the complainant’s facial bruising or the timing of her return to work would likely have
produced a different outcome, independent of its impeaching tendency. See Carsner,
2014 WL 4722762, at *2. Neither the absence of additional bruising on the complainant’s
face nor a different date when she returned to work would change any aspect of the trial
testimony regarding the bruising on the complainant’s neck.
4. Summary
Because a motion for new trial on grounds of newly discovered evidence is not
favored by the courts and is viewed with great caution, see Drew, 743 S.W.2d at 225;
8
Moreno, 1 S.W.3d at 852–53, and because we must view the evidence in the light most
favorable to the trial court's ruling and not substitute our own judgment for that of the trial
court, see Riley, 378 S.W.3d at 457; Celis, 354 S.W.3d at 21, we conclude that Parker
has not shown that the trial court abused its discretion in denying his new-trial motion.
Its ruling was well within the zone of reasonable disagreement. See Riley, 378 S.W.3d
at 457; Celis, 354 S.W.3d at 21. We overrule Parker’s first issue.
II. QUALIFIED FINGERPRINT EXPERT AT THE PUNISHMENT PHASE
By his second issue, Parker argues that the evidence was insufficient to prove that
he was the same person who had been convicted in the prior convictions relied upon by
the State for enhancement purposes without a qualified expert to properly match his
fingerprints. Based on Parker’s arguments, we construe this issue as a challenge to the
qualifications of Luckey, an identification clerk with the Identification Section of the
Nueces County Sheriff’s Office, whom the State presented as its fingerprint expert.
Parker’s indictment contains two enhancement paragraphs pleading two prior
felony convictions—both in Texas for driving while intoxicated. See TEX. PENAL CODE
ANN. § 12.42(d). During the punishment phase of the trial, the State offered into
evidence penitentiary (pen) packets related to these prior offenses. Luckey testified that
the fingerprints in the packets matched fingerprints she took from Parker. Defense
counsel objected to the admission of one of the pen packets and asked to take Luckey
on voir dire. After the voir dire examination, Parker objected that Luckey had not been
qualified as an expert. The trial court overruled Parker's objection.
A. Applicable Law and Standard of Review
“If scientific, technical, or other specialized knowledge will assist the trier of fact to
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understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify thereto in the form of
an opinion or otherwise.” TEX. R. EVID. 702.
Thus, before admitting expert testimony under [r]ule 702, the trial court must
be satisfied that three conditions are met: (1) the witness qualifies as an
expert by reason of his knowledge, skill, experience, training, or education;
(2) the subject matter of the testimony is an appropriate one for expert
testimony; and (3) admitting the expert testimony will actually assist the fact-
finder in deciding the case.
Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). “These conditions are
commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Vela v. State,
209 S.W.3d 128, 131 (Tex. Crim. App. 2006). “Qualification is distinct from reliability and
relevance and, therefore, should be evaluated independently.” Id.
“Because the possible spectrum of education, skill, and training is so wide, a trial
court has great discretion in determining whether a witness possesses sufficient
qualifications to assist the jury as an expert on a specific topic in a particular case.”
Rodgers, 205 S.W.3d at 527–28; see Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App.
2000); see also TEX. R. EVID. 702; Harrison v. State, No. 2-02-339-CR, 2003 WL
21513618, at *3 (Tex. App.—Fort Worth July 3, 2003, no pet.) (mem. op., not designated
for publication). “For this reason, appellate courts rarely disturb the trial court’s
determination that a specific witness is or is not qualified to testify as an expert.”
Rodgers, 205 S.W.3d at 528 n.9; Wyatt, 23 S.W.3d at 27. “In any event, the appellate
court must review the trial court’s ruling in light of what was before that court at the time
the ruling was made.” Rodgers, 205 S.W.3d at 528–29.
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B. Qualification
At the time the trial court ruled that Luckey was an expert in the field of
fingerprinting, the State had established the following:
• Luckey had been comparing fingerprints as an identification clerk in the
Identification Section of the Nueces County Sheriff’s Office since 1991;
• Luckey’s daily duties included comparing inked fingerprints;
• Over the past nineteen years, she was trained by Lieutenant Fred Flores who had
both national and state experience regarding fingerprint identification, working in
fingerprinting for over thirty-five years, and receiving FBI and DPS training in that
area;
• In 1993, Luckey took a forty-hour “Basic Fingerprints” course taught by Charles
Parker, the supervisor of the fingerprint section of the Corpus Christi Police
Department;
• Luckey is a member of the International Association for Identification;
• Prior to this trial, Luckey had testified twenty to twenty-five times as an expert in
the area of fingerprint identification;
• Since 1991, Luckey received training every day at work; and
• Luckey compared thousands of fingerprints over the course of her identification
job.
Luckey also testified that “[a] fingerprint is identification of a person,” and that she
had never found two people to have the same fingerprint. Luckey specialized in the area
of inked prints, which she described as an ink impression taken off an ink pad and rolled
onto the paper. When asked to explain the science of identifying or comparing
11
fingerprints, Luckey responded,
First of all you’ve got to find [a pattern—find] out if it’s a loop, a whirl, or a
tentative arch or just an arch. . . . Then you start looking at the
similarities. . . . And then once you find that, then you go from there to see
what—you know, the ending ridge, the bifurcations, and the loops and the
patterns of it. . . . Then after that, you start looking at the —you know, the
same points at the same time on the print. . . . You can go up as high as
15 or 20 [points on a fingerprint] if you want.
Luckey agreed that this method of fingerprint comparison is generally accepted within the
scientific community.
On cross-examination, when asked if she had been trained by the FBI or the State
of Texas DPS, Luckey responded, “No.” Luckey explained that “[t]he core is the middle
of [the print]” and “[a] delta is where you start counting your ridges to the core of your
print.” She did not know the definition of a “Galton point.” Luckey explained that she
compared the patterns of the prints to determine whether one print matched another.
Because the special knowledge that qualifies a witness to give an expert opinion
may be derived from specialized education, practical experience, a study of technical
works, or a combination of these things, see TEX. R. EVID. 702; Wyatt, 23 S.W.3d at 27,
based on this evidence, we cannot conclude that the trial court abused its discretion when
it permitted Luckey to testify as a fingerprint expert. We overrule this portion of Parker's
second issue.
C. Reliability and Relevance
While conceding that “since the use of fingerprint comparisons is a recognized
method of proving the defendant is the person who committed the previous crimes, [he]
is contesting [only] . . . the qualifications of the expert,” Parker nonetheless appears to
argue that Luckey's fingerprint testimony was neither reliable nor relevant. See Vela,
12
209 S.W.3d at 131. Specifically, Parker complains that Luckey failed to follow proper
procedure for identifying Parker when she only matched Parker’s fingerprints that she
took the morning of trial to the “known print” and not to the fingerprints in each of
judgments from the pen packs.4
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion stating the specific grounds for the desired
ruling if they are not apparent from the context of the request, objection, or motion. TEX.
R. APP. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op.
on reh'g) (en banc). And the trial court must have ruled on the request, objection, or
motion, either expressly or implicitly, or the complaining party must have objected to the
trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Taylor v. State, 939 S.W.2d 148,
155 (Tex. Crim. App. 1996) (en banc). “The legal basis of a complaint raised on appeal
cannot vary from that raised at trial.” Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.
Crim. App. 2004).
Parker did not object at trial on the ground that Luckey's fingerprint testimony was
unreliable. He did not object that it was not relevant. His only objection to Luckey’s
testimony and to the exhibits admitted in support of that testimony was that she was not
qualified as an expert in the field of fingerprinting. See id. And even had he objected
on the basis of reliability or relevance, we find no trial court ruling, either express or
4Luckey testified that she did not compare the prints on the judgments with the one she took the
morning of trial, but that she did make the following comparison:
All those judgments that he has, right, the known print, I checked them to that, all of them,
at 9:00 o’clock when I got here. And then, when I—I mean, I fingerprinted him, I just went
and compared them to my known prints that I had, since I had already compared them with
those.
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implied, on such an objection. See Taylor, 939 S.W.2d at 155. Parker did not preserve
in the trial court any reliability or relevancy complaints for our review. See TEX. R. APP.
P. 33.1(a)(1); Heidelberg, 144 S.W.3d at 537; Mosley, 983 S.W.2d at 265. We overrule
the remaining portion of Parker's second issue.
III. IMPROPER BOLSTERING DURING THE PROSECUTOR’S CLOSING ARGUMENT
AT THE GUILT/INNOCENCE PHASE
In his third issue, Parker complains that the prosecutor improperly bolstered the
State’s witnesses during closing argument. In sum, Parker asserts the following:
In this case, the State called three witnesses in its’ [sic] case-in-chief:
the arresting officer, the investigating detective and the victim. In final
argument, the prosecutor was allowed to improperly comment on the
veracity of every witness who testified in the [S]tate’s case, including the
[complainant]. The prosecutor was allowed to attach her personal belief to
the credibility of each witness, and the effect was to bolster the credibility of
the witnesses with unsworn testimony, which is improper.
In order to preserve error relating to improper jury argument, a defendant must
object to the jury argument about which he complains and pursue his objection to an
adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc)
(holding that a “defendant's failure to object to a jury argument . . . forfeits his right to
complain about the argument on appeal”); Martinez v. State, 951 S.W.2d 55, 59 (Tex.
App.—Corpus Christi 1997, no pet.); see TEX. R. APP. P. 33.1(a). Parker acknowledges
that he did not object to these arguments at trial.
Because Parker failed to object to these statements made by the prosecutor during
closing argument, he preserved nothing for our review. We overrule Parker’s third issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
By his fourth issue, Parker contends that his trial counsel provided ineffective
14
assistance when he failed to object to the prosecutor’s closing argument regarding the
credibility of the State’s witnesses. The State responds that defense counsel was not
ineffective because the prosecutor’s argument was responsive to the argument presented
by Parker’s trial counsel and therefore permissible. We agree with the State.
A. Applicable Law and Standard of Review
Proper jury argument generally falls within one of the following areas: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to
argument of opposing counsel; and (4) plea for law enforcement. Brown v. State, 270
S.W.3d 564, 750 (Tex. Crim. App. 2008). When examining challenges to a jury
argument, a reviewing court must consider the complained-of argument in the context in
which it appears. Gonzalez v. State, 337 S.W.3d 473, 483 (Tex. App.—Houston [1st
Dist.] 2011, pet. ref’d). And while “it is ordinarily improper for a prosecutor to vouch for
the credibility of a witness during [her] argument, . . . if the argument in question was
invited by argument of appellant's attorney, and was in reply thereto, no reversible error
is shown.” Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim. App. 1974); see Thomas
v. State, No. 01-11-00631-CR, 2013 WL 652719, at *8 (Tex. App.—Houston [1st Dist.]
Feb. 21, 2013, pet. ref’d) (same).
We review ineffective assistance of counsel claims under the two-pronged test
articulated in Strickland v. Washington. 466 U.S. 668, 687 (1984); see Hernandez v.
State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc) (adopting Strickland as
applicable standard under the Texas Constitution). The first prong of the Strickland test
requires a showing that counsel's performance was deficient, which requires a showing
that counsel made errors so serious that counsel was not functioning as the counsel
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guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. The second prong
of the Strickland test requires a showing that counsel's deficient performance prejudiced
the defense, which requires a showing that counsel's errors were so serious as to deprive
the defendant of a fair trial. Id. “To successfully assert that trial counsel's failure to
object amounted to ineffective assistance, the [appellant] must show that the trial judge
would have committed error in overruling such an objection.” Ex parte Martinez, 330
S.W.3d 891, 901 (Tex. Crim. App. 2011); Thomas, 2013 WL 652719, at *9 (“The failure
to object to argument that is not improper does not constitute ineffective assistance of
counsel.”).
B. Closing Argument
The prosecutor for the State opened the closing arguments at the guilt/innocence
phase by emphasizing the elements of the offense and the evidence that established
those elements. Parker's trial counsel spoke next. In his closing argument, Parker's
counsel questioned the credibility of the complainant and of the police officers who
testified at trial. He began his argument by stating that “[the complainant’s] testimony is
not supported by the physical evidence.” He referred to this case as one in which
“someone is going to take the stand and either exaggerate, grossly exaggerate, or
lie . . . .” After arguing that the photographs neither represented nor supported the
complainant’s testimony and that Detective Robin Cassel, a detective with the Corpus
Christi Police Department Family Violence Unit, testified that she saw the complainant
four days after the incident for reporting purposes and “didn’t notice . . . anything about
her,” trial counsel explained that he wanted the jury “to see that [the complainant] is
shading her testimony. She’s . . . making things up.” He argued that “hammering on
16
this” was “the only way that [he would be] able to show [the jury] that [the complainant] is
incredible. Her testimony is not to be believed. She is grossly exaggerating and/or
making it up.”
Trial counsel also argued that “when [the complainant] went in to see Detective
Cassel four days later, okay, that’s time enough for those bruise[s] to come up, . . . but
Cassel, she testified she didn’t notice anything, you know, anything about her. Cassel
didn’t think to take any pictures of her because there was nothing there.” In closing, trial
counsel also urged that Officer Olivares, while trying to do the right thing, appeared to
have “bolstered his testimony a little bit” when he testified about the photographs by
saying, “Oh, yeah, [the injuries] looked worse in person.”
In response, the prosecutor argued, in relevant part:
When you-all go back and make the difficult decision to determine
what happened that day, I'm asking you to keep three things in mind: First,
the victim is not on trial today. The Defendant over there is on trial for what
happened that day. Secondly, the police work is not on trial. Although the
police work is what brings you the evidence here today, just because we
don't have every single piece of what we might have wanted does not mean
that a crime did not occur, and we shouldn't penalize that victim for what a
police officer may or may not have done. Additionally, the victim doesn't
choose when and where they're [sic] assaulted. This victim didn't know
she was going to be assaulted that night and had been drinking in her home,
which she is allowed to do. If she had known that she was going to be
assaulted, she might not have been drinking. However, those are the facts
of this case and that's what happened that night, and she was honest with
you about that. So, I want you to keep all those things in mind when you're
trying to figure out what really happened that night.
Now, let's talk about some of these injuries. The only thing that the
Defendant is on trial here for today, but you've got to hear about everything,
because everything happened that day, is choking. You heard from the
officers [sic], who has absolutely nothing—no reason to tell you a lie, that
he saw bruising in those pictures, but he also told you it's hard to see in
those pictures, because when it's red and when you first have a bruise, they
don't always photograph very well. He told you that. [Officer Olivares]
17
has absolutely nothing to gain from coming in here and saying that, because
his job is on the line. There's no reason for him to lie about that. So,
defense counsel's insinuation that he's bolstering is honestly just ludicrous.
He's here saying what he saw what happened that day because that's his
job, and he doesn't want to lose his job. Additionally, you also heard
testimony that you don't even often have these marks on choking victims.
This is something that is good.
(Emphasis added.)
Later, in response, the State made the following reference to Detective Cassel:
Now, Detective Cassel said that [s]he did not recall if there were any
injuries.[5] That doesn't mean there weren't any, that means [s]he has no
recollection whether or not there were or there weren't, so I just wanted to
be clear on that point. Detective Cassel didn't remember. Her job is more,
as she told you, to take the case, put it together, and present it to the District
Attorney's office. That's not her main focus. Her main focus is making sure
all that evidence is collected. And she didn't lie to you today. She didn't
say that she remembered it when she didn't. She just was honest with you
and straightforward and said, "You know what, I don't remember one way
or the other."
(Emphasis added.)
C. Discussion
Now on appeal, Parker alleges that counsel’s representation was ineffective
5 During direct examination at trial, the following relevant exchange occurred between the State
and Detective Cassel:
Q. Did—when the victim, or when [the complainant] came in and talked with you on
the 17th, I believe—
A. 18th.
Q. —18th, were you able to observe any injuries at that time?
A. I don't recall seeing any injuries, but I remember she did tell me that.
Q. We can't get into anything that she specifically told you.
A. I don't remember seeing any injuries on her.
Q. Okay.
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because he failed to object to portions of the prosecutor's comments in her responsive
closing argument, which concerned the credibility of the State’s witnesses. The italicized
statements above, about which Parker complains, include the following: (1) “[the
complainant] was honest with you about that.”; (2) “[Officer Olivares] has absolutely
nothing to gain from coming in here and saying that, because his job is on the line.
There's no reason for him to lie about that.”; and (3) “[Detective Cassel] just was honest
with you and straightforward.” Parker contends that these inappropriate remarks
improperly bolstered witness testimony. He asserts that “their cumulative effect was
outrageous and especially harmful.”
When the complained-of comments are read in context, however, each of the
State's arguments that a witness was credible responded to a credibility argument made
by Parker's counsel. See Chapman, 503 S.W.2d at 238; Gonzalez v. State, 337 S.W.3d
at 483. Because the State's responsive arguments were invited by Parker’s counsel,
they were not improper, and the trial court would not have committed error in overruling
such an objection. See Chapman, 503 S.W.2d at 238; McDuffie, 854 S.W.2d at 216–17;
see also Martinez, 330 S.W.3d at 900. Based on this analysis, counsel’s failure to object
to the admission of this testimony was not deficient, and the first prong of Strickland has
not been satisfied. See Strickland, 466 U.S. at 687; Thomas, 2013 WL 652719, at *9;
Davis v. State, 830 S.W.2d 762, 766 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd).
And because Parker must prove both prongs of Strickland by a preponderance of the
evidence in order to prevail, we need not address the second prong. See Tong v. State,
25 S.W.3d 707, 712 (Tex. Crim. App. 2000); see also TEX. R. APP. P. 47.1. We overrule
Parker’s fourth issue.
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V. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the 13th
day of November, 2014.
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