IN THE
TENTH COURT OF APPEALS
No. 10-12-00092-CR
PAUL KEVIN MCGOWN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 40th District Court
Ellis County, Texas
Trial Court No. 35540CR
MEMORANDUM OPINION
In six issues, appellant, Paul Kevin McGown, challenges his conviction for
assault (family violence) by occlusion, a third-degree felony that was enhanced under
the habitual-felony-offender statute. See TEX. PENAL CODE ANN. § 12.42 (West Supp.
2012); see also id. § 22.01(a)(1), (b)(2)(B) (West 2011). We affirm.
I. BACKGROUND
This appeal pertains to an altercation that transpired between appellant and his
wife at the time, Candace Sellers. According to her testimony, Sellers recalled that, on
December 14, 2010, she received a telephone call from a neighbor while she was at work
in Dallas, Texas. The neighbor informed Sellers that appellant had broken into Sellers’s
house in Palmer, Texas. Apparently, appellant has just been released on parole that
morning. Sellers testified that she and appellant were estranged, though technically
married. She indicated that she had sent appellant a letter stating that she wanted a
divorce. Nevertheless, after receiving the neighbor’s telephone call, Sellers called the
Palmer police. Police told Sellers that they could not remove appellant from the house
because appellant and Sellers were still married. Police did say, however, that they
would assist Sellers in removing appellant if Sellers asked appellant to leave and he
refused to do so. Sellers headed to the house in Palmer. On her way, she called
appellant’s mother and requested that she come get appellant.
What happened once Sellers arrived at the house is hotly contested. Sellers
testified that when she arrived at the house, the back screen door was locked from the
inside. Because the back screen door was locked, Sellers knocked and asked appellant
to come outside. Sellers recounted that appellant opened the door and subsequently
“grabbed [her] arm and yanked [her] inside the house and slammed the door.” Next,
appellant allegedly pushed Sellers against the refrigerator and grabbed her cell phone.
According to Sellers, appellant broke the cell phone in two and “threw it down the
length of the kitchen.” Appellant then yanked Sellers’s hair, causing her to fall. While
she was on the ground, appellant kicked her. After kicking Sellers, appellant cursed at
McGown v. State Page 2
Sellers and told her that he was eating dog food while she was “out doing [her] thing.”1
Sellers got up and tried to get outside, but appellant grabbed her arms and shoved her
into an end table near the back door. He then turned Sellers around and proceeded to
stick two fingers in her mouth, grab her lower teeth, and pull her towards him. Sellers
recounted that appellant “then shoved me back with his fingers into the stove and I hit
my head.” Subsequently, appellant put his hands around Sellers’s neck and started to
apply pressure. Sellers tried to grab appellant’s hand, but she started to feel dizzy; her
eyes started to water; and she thought she was going to die. Sellers asserted that she
could not breathe at this time, though she recalled hearing appellant state that she “was
never going to see the light of day again.” Due to the pressure applied by appellant,
Sellers slumped to the ground, and appellant stepped over her and walked away.
Eventually, Sellers was able to exit out the back door and run away. However, in
doing so, Sellers “rolled off the porch and fell on [her] knees.” Thereafter, Sellers
flagged down a car that was passing by. The driver of the vehicle took Sellers to the
police station, and one of the passengers of the car assisted Sellers with walking into the
police station.
Jayne Gallagher, a secretary at the Palmer Police Department, stated that she was
present when Sellers entered the police station. According to Gallagher, Sellers “was in
a very frantic, terrified mode.” Sellers kept saying that appellant was trying to kill her.
1 In his testimony, appellant admitted that he was upset because Sellers allegedly neglected him
while he was in jail.
McGown v. State Page 3
Sellers was coughing, out of breath, and felt like she was going to faint. Gallagher sat
with Sellers until an emergency medical technician arrived a few minutes later.
Neil Moore, a first responder and volunteer fire fighter, evaluated Sellers. Moore
noticed that Sellers was “very anxious,” “breathing very rapidly,” crying, and very
upset. Sellers indicated to Moore than her neck was hurting. Moore observed redness
to the front of Sellers’s throat and around her cheeks. Moore also observed “a small
laceration to the back of her throat, probably two to three millimeters in length.” Moore
testified that the laceration was fresh; that it had just stopped bleeding; and that
Sellers’s throat was swollen. When Moore asked about her neck, Sellers noted that “the
back of her throat was real scratchy and she felt like she had been swallowing blood.”
Several pictures of Sellers were admitted into evidence. These pictures showed dark
bruises on numerous parts of Sellers’s body, especially her neck, arms, and torso.
Thereafter, officers arrested appellant at the house. Sellers later returned to the
house accompanied by another police officer—Corporal Isidro Lopez. Corporal Lopez
recalled that Sellers was shaking, scared, and upset that day. He also recalled that
Sellers had red markings around her neck. After arriving at the house, Corporal Lopez
escorted Sellers inside and observed Sellers’s cell phone ripped apart and submerged in
water in the bathroom sink.2
Appellant testified in his own defense. Appellant recounted that he had been in
jail from early 2010 until December 14, 2010. Upon release, he walked to the house in
2 Appellant admitted submerging Sellers’s cell phone in the bathroom sink once she left.
McGown v. State Page 4
Palmer, fixed himself something to eat, and went to sleep. Appellant claimed that he
had packed up all of his property and that he was at the house to ask Sellers for the
keys to his car. According to appellant, when Sellers arrived at the house, she showed
him his keys, threw her cell phone at him, and ran out the door. Appellant denied
threatening Sellers or touching her in any way. In fact, he denied causing any of
Sellers’s injuries depicted in the pictures admitted into evidence. He also explained that
Sellers has muscular dystrophy and that she takes medication, methotrexate, to treat the
disease.3 Finally, appellant discussed his numerous prior convictions but emphasized
that he has no convictions for assaulting anyone.
At the conclusion of the evidence, the jury found appellant guilty of assault
(family violence) by occlusion. See id. § 22.01(a)(1), (b)(2)(B). During the punishment
phase, appellant pleaded true to the two enhancement paragraphs contained in the
indictment, which referenced appellant’s prior convictions for felony possession of a
controlled substance and felony burglary of a vehicle. Subsequently, the jury assessed
punishment at thirty-five years’ incarceration in the Institutional Division of the Texas
Department of Criminal Justice. The trial court ordered that this imposed sentence
begin when the judgment and sentence associated with appellant’s 1992 burglary-of-a-
vehicle case in Dallas County, Texas, ceases to operate.4 The trial court also certified
appellant’s right of appeal, and this appeal followed.
3 Sellers testified that she is 5’7” and weighs 120 pounds, whereas appellant is 6’1” and weighs
about 170 to 180 pounds.
4 Specifically, the trial court’s judgment states that:
McGown v. State Page 5
II. EXTRANEOUS-OFFENSE EVIDENCE
In his third issue, appellant complains about testimony adduced regarding
appellant’s involvement in a purported insurance scam. Appellant contends that
evidence of this incident constituted improper extraneous-offense evidence that affected
his substantial rights and had a substantial and injurious influence on the jury’s verdict.
During cross-examination of Sellers, appellant’s counsel asked whether Sellers
had gone to appellant’s mother’s house while appellant was in jail. Sellers responded
that she had been to appellant’s mother’s house a couple of times while appellant was
in jail. In the following exchange, appellant’s counsel asked about a specific time in
which Sellers went to appellant’s mother’s house accompanied by a police investigator:
Q [Appellant’s counsel]: Who did you go with?
A [Sellers]: One time with my sister, and the other time
with Investigator Jiminez.
Q: And what were you doing over there with
Investigator Jiminez?
A: Recovering a stolen car.
Q: And you didn’t ever go over there with
Robert?
A: Who is Robert?
IT IS FURTHER ORDERED BY THE COURT THAT THE PUNISHMENT UNDER
THE SENTENCE HERE IMPOSED SHALL BEGIN WHEN THE JUDGMENT AND
SENTENCE AGAINST THIS DEFENDANT IN CAUSE NO. 9204927-N, IN THE 195
TH DISTRICT COURT OF DALLAS COUNTY, TEXAS, WHEREIN THE
DEFENDANT WAS ON THE 31ST DAY OF DECEMBER, 1992, DULY AND
LEGALLY SENTENCED TO A TERM OF 35 YEARS FOR THE OFFENSE OF
BURGLARY OF [A] VEHICLE SHALL HAVE CEASED TO OPERATE.
(Emphasis in original).
McGown v. State Page 6
Q: Robert is the gentleman that mows your yard.
A: No. I don’t have anyone who mows my yard
by the name of Robert.
Q: Robert Green?
A: No, sir.
Q: And you don’t have a dating relationship with
Robert Green?
A: I don’t know who that is.
On re-direct, the State questioned Sellers about the purported insurance scam.
Apparently, appellant had stolen a friend’s car so that the friend could file an insurance
claim. Sellers explained that she eventually found out about the insurance scam and
informed appellant about her knowledge of the event. She further testified that the
scam was one of the reasons why she told appellant that the marriage was over.
In any event, the record does not indicate that appellant objected to any of the
testimony provided by Sellers regarding the stolen car and insurance scam. To preserve
error, Texas Rule of Appellate Procedure 33.1(a) requires the complaining party to make
a specific objection or complaint and obtain a ruling thereon before the trial court. See
TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
This requirement ensures that trial courts are provided an opportunity to correct any
error “at the most convenient and appropriate time—when the mistakes are alleged to
have been made.” Hull v. State, 67 S.W.3d 215, 216 (Tex. Crim. App. 2002). Because
appellant did not object to Sellers’s testimony about the stolen car and insurance scam,
we cannot say that this error has been preserved. See TEX. R. APP. P. 33.1(a); see also
McGown v. State Page 7
Wilson, 71 S.W.3d at 349. And even if we were to conclude otherwise, we note that the
Texas Court of Criminal Appeals has stated that appellant “cannot complain of
testimony he first elicited on cross-examination.” See Ingham v. State, 679 S.W.2d 503,
507 (Tex. Crim. App. 1984); see also Christ v. State, 480 S.W.2d 394, 397 (Tex. Crim. App.
1972). Accordingly, we overrule appellant’s third issue.
III. THE STATE’S CLOSING ARGUMENT
In his first issue, appellant argues that the State injected new and unsupported
facts during its closing argument for the guilt-innocence phase. In particular, appellant
complains about the State’s mentioning that Sellers has “no convictions” when
discussing with the jury the judging of the credibility of witnesses. For context, we
recite the following statements made by the State in its closing argument, which
includes the complained-of statement:
[The State]: And as he’s choking her he says, you’re not going to see the
light of day again. You know, Candace Sellers, you’ve seen
her, five seven, 118 pounds. This defendant, six one, 180
pounds. She is no match for him. She’s no match. He knew
about her muscular dystrophy. He knew about that.
He knew that she couldn’t fight him. She couldn’t
stand a chance against him. And yet, what he wants today is
to not be accountable for anything. And [defense counsel]
wants you to believe that he is not violent. What do you
think a robbery is? Robbery. That’s violent.
You know, you get to judge his testimony the same as
everybody else. Who has a criminal history? He does.
Who’s on parole, who was sentenced to 35 years in 1992?
Got out in seven years. Still on parole, and yet still
committing crimes? He is. You have Candace Sellers, no
convictions. She’s working hard, taking care of herself and
McGown v. State Page 8
her two dogs. Who do you believe? Whose story makes
more sense?
At the outset of our analysis of this issue, we note that appellant did not object to
the State’s closing argument. As stated earlier, to preserve error, Texas Rule of
Appellate Procedure 33.1(a) requires the complaining party to make a specific objection
or complaint and obtain a ruling thereon before the trial court. See TEX. R. APP. P.
33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Because
appellant did not object to the State’s closing argument, we conclude that appellant has
failed to preserve this issue for review. See TEX. R. APP. P. 33.1(a); see also Wilson, 71
S.W.3d at 349.
However, even if appellant had preserved this issue, we believe that the State’s
comment about Sellers’s lack of convictions constituted proper jury argument as a
reasonable deduction from the evidence or as an answer to opposing counsel’s
argument. See Brown v. State, 207 S.W.3d 564, 570 (Tex. Crim. App. 2008) (stating that
proper jury argument must encompass one of the following: (1) a summation of the
evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an
answer to the opposing counsel’s argument; or (4) a plea for law enforcement); Lagrone
v. State, 942 S.W.2d 602, 619 (Tex. Crim. App. 1997) (same). The record reflects that
appellant testified about his criminal history to highlight the fact that his offenses were
non-violent. Essentially, to bolster his credibility, appellant put his criminal history at
issue. Sellers also testified. Appellant did not impeach her with any convictions.
Because this case centered on the credibility of appellant and Sellers, and because
McGown v. State Page 9
appellant put his criminal history at issue to bolster his credibility and did not impeach
Sellers with any convictions, the State’s comment on Seller’s lack of convictions is a
reasonable inference from the evidence and an answer to opposing counsel’s argument
that Sellers’s account is unbelievable. See Brown, 207 S.W.3d at 570; see also Lagrone, 942
S.W.2d at 619. Accordingly, even if appellant had preserved this issue, we do not
believe that the State’s closing argument was extreme or manifestly improper or
injected new and harmful facts into evidence so as to constitute reversible error. See
Shannon v. State, 942 S.W.2d 591, 597 (Tex. Crim. App. 1996); see also Brown, 270 S.W.3d
at 570 (“Consequently, error exists when facts not supported by the record are injected
in the argument, but such error is not reversible unless, in light of the record, the
argument is extreme or manifestly improper.”). We therefore overrule appellant’s first
issue.
IV. THE JURY CHARGE
In his second issue, appellant contends that assault by occlusion is a result-
oriented offense and that the jury charge improperly includes full statutory definitions
of intent. Though he did not object to the charge in the trial court, appellant asserts that
the inclusion of the full statutory definitions of intent caused him egregious harm.
A. Applicable Law
In reviewing a jury-charge issue, an appellate court's first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
McGown v. State Page 10
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial. Id.
To obtain a reversal for jury-charge error, appellant must have suffered actual harm and
not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App.
2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Appellant admits that he did not object to the jury charge, nor did he request
alternative definitions for the culpable mental states in this case; thus, he must show
egregious harm. See Almanza, 686 S.W.2d at 171. In examining the record for egregious
harm, we consider the entire jury charge, the state of the evidence, the final arguments
of the parties, and any other relevant information revealed by the record of the trial as a
whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is
egregiously harmful if it affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719
(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
B. Discussion
At the outset, we note that article 36.14 of the Texas Code of Criminal Procedure
provides that the trial court must provide the jury with “a written charge distinctly
setting forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14
(West 2007). In doing so, the abstract portion of the charge included the definitions of
“intentionally,” “knowingly,” and “recklessly,” as defined in section 6.03 of the Texas
McGown v. State Page 11
Penal Code.5 See TEX. PENAL CODE ANN. § 6.03(a)-(c) (West 2011). Appellant argues that
the inclusion of these definitions in their entirety was erroneous because assault by
occlusion is a result-oriented offense and the inclusion of “nature of conduct” language
was clearly erroneous and caused him egregious harm.
In an assault-by-occlusion case, this Court has stated that assault with bodily
injury is a “result-of-conduct” offense. See, e.g., Morgan v. State, Nos. 10-10-00367-CR &
10-10-00371-CR, 2011 Tex. App. LEXIS 8133, at **10-11 (Tex. App.—Waco Oct. 12, 2011,
no pet.) (mem. op., not designated for publication) (citing Landrian v. State, 268 S.W.3d
532, 540 (Tex. Crim. App. 2008)). Therefore, it would appear that the jury charge
erroneously included both “nature-of-conduct” and “result-of-conduct” language with
regard to the culpable mental states.
However, based on our review of the record, we cannot say that appellant was
egregiously harmed by this error. As mentioned earlier, because he did not object,
5 In fact, the charge provided the following definitions for “intentionally,” “knowingly,” and
“recklessly,” all of which mirror those prescribed in section 6.03 of the Texas Penal Code:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to
a result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or
to circumstances surrounding his conduct when he is aware of the nature of his conduct
or that the circumstances exist. A person acts knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his conduct is reasonably certain
to cause the result.
A person acts recklessly, or is reckless, with respect to the result of his conduct when he
is aware of but consciously disregards a substantial and unjustifiable risk that the result
will occur. The risk must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person would exercise under
all the circumstances, as viewed from the actor’s standpoint.
TEX. PENAL CODE ANN. § 6.03(a)-(c) (West 2011).
McGown v. State Page 12
appellant is not entitled to a reversal unless he was egregiously harmed by those
definitions. See Almanza, 686 S.W.2d at 171. And among the aforementioned items that
factor into an egregious-harm analysis, we may also consider the degree, if any, to
which the culpable mental states were limited by the application portion of the jury
charge. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Hughes v. State,
897 S.W.2d 285, 296 (Tex. Crim. App. 1994); Cook v. State, 884 S.W.2d 485, 492 (Tex.
Crim. App. 1994); see also Olivas, 202 S.W.3d at 144.
In this case, although the trial court gave the full statutory definitions of the
culpable mental states in the abstract portion of the charge, the trial court limited the
scope of the definitions in the application paragraph pertaining to the alleged conduct:
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 14th day of December, 2010, in Ellis County, Texas, the
defendant, PAUL KEVIN MCGOWN, did then and there intentionally or
knowingly or recklessly cause bodily injury to Candace Sellers, a member
of the defendant’s family, as described by Section 71.003, Family Code, by
intentionally or knowingly or recklessly impeding the normal breathing
or circulation of the blood of the said Candace Sellers by applying
pressure to the throat or neck of the said Candace Sellers, then you will
find the defendant guilty as charged in the indictment.
(Emphasis added). Thus, the jury was instructed that it could convict appellant of
assault by occlusion only if it found that he had intentionally, knowingly, or recklessly
caused bodily injury to Sellers by applying pressure to Sellers’s throat or neck, thereby
impeding her normal breathing or circulation of blood. This is consistent with the
statutorily-prohibited conduct. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)(B). When
the application paragraph correctly instructs the jury on the law applicable to the case,
this mitigates against a finding of egregious harm. See Patrick, 906 S.W.2d at 493;
McGown v. State Page 13
Hughes, 897 S.W.2d at 296-97; Pitre v. State, 44 S.W.3d 616, 621 (Tex. App.—Eastland
2001, pet. ref’d).
Furthermore, intent was not a contested issue at trial. Appellant’s defense was
not that he had accidentally choked Sellers or that he lacked the requisite mens rea to
commit the charged offense. Instead, appellant denied that the incident even occurred,
and his theory during the trial was that Sellers fabricated the story. Consequently,
throughout trial and during closing arguments, the parties focused on the credibility of
appellant and Sellers, not on whether appellant possessed the culpable mental state
required to commit the offense.
Accordingly, on this record, we cannot conclude that the alleged charge error
affected the very basis of the case, deprived appellant of a valuable right, vitally
affected appellant’s defensive theory, or made a case for conviction clearly and
significantly more persuasive. See Saldivar v. State, 783 S.W.2d 265, 268 (Tex. App.—
Corpus Christi 1989, no pet.) (“Where no defense is presented which would directly
affect an assessment of mental culpability, there is no harm in submitting erroneous
definitions of ‘intentionally’ and ‘knowingly.’”). Because we cannot say that the alleged
error in the jury charge egregiously harmed appellant, we overrule appellant’s second
issue. See Patrick, 906 S.W.2d at 493; Hughes, 897 S.W.2d at 296-97; see also Pitre, 44
S.W.3d at 621.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
In his fourth issue, appellant asserts that his trial counsel was ineffective. We
disagree.
McGown v. State Page 14
A. Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must
satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064,
80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
First, appellant must show that counsel was so deficient as to deprive appellant of his
Sixth Amendment right to counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Second, appellant must show that the deficient presentation was prejudicial and
resulted in an unfair trial. Id. To satisfy the first prong, appellant must show that his
counsel’s representation was objectively unreasonable. Id.; Lopez v. State, 343 S.W.3d
137, 142 (Tex. Crim. App. 2011). To satisfy the second prong, appellant must show that
there is “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Thompson, 9 S.W.3d at 812. A reasonable
probability exists if it is enough to undermine the adversarial process and thus the
outcome of the trial. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Mallett v. State, 65
S.W.3d 59, 62-63 (Tex. Crim. App. 2001).
Our review is highly deferential and presumes that counsel’s actions fell within a
wide range of reasonable professional assistance. Mallett, 65 S.W.3d at 63; Thompson, 9
S.W.3d at 813. The right to “reasonably effective assistance of counsel” does not
guarantee errorless counsel or counsel whose competency is judged by perfect
hindsight. Saylor v. State, 660 S.W.2d 822, 824 (Tex. Crim. App. 1983). Appellant bears
the burden of proving by a preponderance of the evidence that counsel was ineffective,
and an allegation of ineffectiveness must be firmly founded in the record. Thompson, 9
McGown v. State Page 15
S.W.3d at 813. Trial court counsel should ordinarily be afforded an opportunity to
explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d
107, 111 (Tex. Crim. App. 2003). In the absence of a record of trial counsel’s reasons for
the challenged conduct, a court will not conclude that counsel was ineffective unless
“the conduct was so outrageous that no competent attorney would have engaged in it.”
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see Roberts v. State, 220 S.W.3d
521, 533 (Tex. Crim. App. 2007). For this reason, “[a] substantial risk of failure
accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.”
Thompson, 9 S.W.3d at 813.
B. Discussion
Here, appellant complains that his trial counsel was ineffective because he failed
to object to the State’s closing argument and the jury charge, he introduced appellant’s
criminal history into evidence, and because he failed to obtain a medical expert to
explain Sellers’s injuries. In analyzing this complaint, we first note that the record is
silent as to trial counsel’s reasons for not taking the actions proposed by appellant on
appeal. To conclude that trial counsel was ineffective based on a silent record would
call for speculation, which we will not do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994); see also Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st
Dist.] 1996, no pet.). Further, the Texas Court of Criminal Appeals has stated that for a
defendant to prevail on an ineffective assistance of counsel claim based on the failure to
object, the defendant must first show that the trial court would have committed error to
overrule the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).
McGown v. State Page 16
Because we have overruled appellant’s issue pertaining to the State’s closing argument,
we cannot say that appellant has met his burden in demonstrating that the trial court
would have committed error to overrule the objection. See id. Moreover, the record is
silent regarding trial counsel’s decision to not object to the jury charge or call a medical
expert to testify about Sellers’s injuries. And finally, we cannot say that trial counsel’s
decision to introduce appellant’s criminal history into evidence was so outrageous that
no competent attorney would have engaged in it. See Roberts, 220 S.W.3d at 533; see also
Garcia, 57 S.W.3d at 440. As was clear from his closing argument, appellant’s counsel
introduced appellant’s criminal history to bolster appellant’s credibility by showing
that his prior convictions were non-violent and to show that appellant did not commit
this violent act against Sellers.
Based on the foregoing, we cannot conclude that appellant has overcome the
presumption that trial counsel’s representation was reasonably professional and
motivated by sound trial strategy. See Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.
App. 2005); Mallett, 65 S.W.3d at 63; Thompson, 9 S.W.3d at 813; see also Gamble, 916
S.W.2d at 93. Accordingly, we overrule appellant’s fourth issue.
VI. “THE RULE”
In his fifth issue, appellant contends that the trial court erred in accepting the
testimony of a witness, Alan Purcell, who violated Texas Rule of Evidence 614 by being
present in the courtroom during the cross-examination of Sellers. See TEX. R. EVID. 614.
At the beginning of trial, defense counsel invoked the Rule. See id. In response
to this request, the trial court swore in a witness who was in the courtroom, Karen
McGown v. State Page 17
Cannon, and instructed her regarding the Rule. However, appellant’s complaint in this
issue pertains to the testimony of Purcell, Sellers’s brother, during the punishment
phase of trial.
At the punishment phase, appellant testified in his own behalf, and the State
called Sellers in rebuttal. During the cross-examination of Sellers, defense counsel
asked Sellers to introduce her family members that were present in the courtroom.
Sellers introduced Purcell and her sister-in-law. Defense counsel then asked Sellers
about the relationship between appellant and her family.
The State called Purcell to testify. In response to questions from the State, Purcell
admitted that he was in the courtroom while Sellers testified during the punishment
phase and that Sellers answered the questions truthfully. At no point did appellant
object to Purcell’s testimony in the trial court.
As stated several times in this memorandum opinion, to preserve error, Texas
Rule of Appellate Procedure 33.1(a) requires the complaining party to make a specific
objection or complaint and obtain a ruling thereon before the trial court. See TEX. R.
APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
Because appellant did not object to the State’s closing argument, we conclude that
appellant has failed to preserve this issue for review. See TEX. R. APP. P. 33.1(a); see also
Wilson, 71 S.W.3d at 349. And even if he had preserved this issue, we do not believe
that the trial court abused its discretion in admitting Purcell’s testimony. See Phillips v.
State, 64 S.W.3d 458, 460 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“When, as here,
the witness was one who had no connection with either the State’s or the defendant’s
McGown v. State Page 18
case in chief and was not likely to be called as a witness because of a lack of personal
knowledge regarding the offense, the trial court does not abuse its discretion in
allowing the testimony.” (citing Guerra v. State, 771 S.W.2d 453, 476 (Tex. Crim. App.
1988)); see also Minor v. State, 91 S.W.3d 824, 829 (Tex. App.—Fort Worth 2002, pet.
ref’d). We therefore overrule appellant’s fifth issue.
VII. STACKING OF APPELLANT’S SENTENCES
In his sixth and final issue, appellant argues that the trial court erred in stacking
his sentence in this case with his prior sentence for burglary of a vehicle.
A. Applicable Law
By statute, the trial court has the discretion to order sentences for a defendant
who has been convicted in two or more cases to: (1) run concurrently, or (2) cumulate,
or “stack,” the second and subsequent sentences—that is, being when the judgment and
the sentence imposed or suspended in the preceding conviction has ceased to operate.
TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West Supp. 2012); see Smith v. State, 575
S.W.2d 41, 41 (Tex. Crim. App. 1979) (“Normally, the trial judge has absolute discretion
to cumulate sentences.”); see also Guillory v. State, No. 03-10-00184-CR, 2010 Tex. App.
LEXIS 8154, at *3 (Tex. App.—Austin Oct. 6, 2010, no pet.) (mem. op., not designated for
publication). We review a trial court’s decision under article 42.08(a) for an abuse of
discretion. See Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex. App.—Houston [14th Dist.]
pet. ref’d). A trial court abuses its discretion when it imposes a sentence that is not in
compliance with the law. See id. In other words, so long as the law authorizes
cumulative sentences, the trial court acts within its discretion when it stacks sentences.
McGown v. State Page 19
B. Discussion
Here, the indictment charged that appellant had been convicted of two prior
felonies, including burglary of a vehicle that occurred on December 31, 1992. During
the punishment phase, appellant explained that he received a thirty-five-year prison
sentence for his 1992 conviction for burglary of a vehicle. However, he also noted that
he was released on parole for that offense in 1999. After the jury assessed punishment
and was excused, the State moved to cumulate the sentence imposed in this case with
the sentence imposed in the 1992 burglary-of-a-vehicle case. Appellant objected, but the
trial court ultimately ordered that the sentence imposed in this case would “run
consecutive” to the sentence imposed in the 1992 burglary-of-a-vehicle case.
On appeal, appellant argues that the trial court could not add a cumulation order
to an already-imposed sentence for which appellant has suffered a portion of his
punishment. While comparing his parole to community supervision, appellant likened
the cumulation order in this case to a Double-Jeopardy violation.
First, we do not believe that appellant’s parole is akin to being on community
supervision. Therefore, to the extent that appellant’s authority relies on such a
comparison, we do not find that case to be persuasive. See Worthington v. State, 38
S.W.3d 815, 816 (Tex. App.—Houston [14th Dist.] 2001), rev’d on other grounds, 67 S.W.3d
191 (Tex. Crim. App. 2001). Furthermore, Texas courts have held that a trial court has
authority to stack a new sentence onto a prior sentence for which the defendant is then
on parole, which is the case here. See Hill v. State, 213 S.W.3d 533, 538 (Tex. App.—
Texarkana 2007, no pet.) (“A trial court has the authority to stack a new sentence onto a
McGown v. State Page 20
prior sentence for which the defendant is then on parole.”); Wilson v. State, 854 S.W.2d
270, 273 (Tex. App.—Amarillo 1993, pet. ref’d); Jimenez v. State, 634 S.W.2d 879, 881
(Tex. App.—San Antonio 1982, pet. ref’d) (holding that article 42.08 authorizes stacked
sentences for defendants on parole and that parole is “essentially a constructive
confinement” and not a release from the operation of the judgment); see also Sanchez v.
State, No. 02-11-00018-CR, 2012 Tex. App. LEXIS 478, at *6 (Tex. App.—Fort Worth Jan.
19, 2012, no pet.) (mem. op., no designated for publication). Because the trial court had
authority to stack the sentence imposed in this case onto the sentence imposed in the
1992 burglary-of-a-vehicle case, we cannot say that the trial court abused its discretion.
See Nicholas, 56 S.W.3d at 764-65. As such, we overrule appellant’s sixth issue.
VIII. CONCLUSION
Having overruled all of appellant’s issues, we affirm the judgment of the trial
court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed September 26, 2013
Do not publish
[CRPM]
McGown v. State Page 21
Paul Kevin McGown v. State
Combined Opinion