Parker, Gary

PD-1652-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/26/2015 12:06:38 PM
Accepted 1/29/2015 1:58:42 PM
ABEL ACOSTA
PD – 1652-14 CLERK

IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS

GARY PARKER
PETITIONER

V.

THE STATE OF TEXAS
RESPONDENT

AMENDED PETITION FOR DISCRETIONARY REVIEW
OF DECISION BY THE
THIRTEENTH COURT OF APPEALS
IN APPEAL NUMBER 13-13-00128-CR

148TH DISTRICT COURT
NUECES COUNTY, TEXAS
TRIAL COURT NUMBER 12-CR-2371-E(S1)
HONORABLE JUDGE GUY WILLIAMS, PRESIDING

VIRGINIA KOBLIZEK BURT
Attorney at Law
P.O. Box 717
January 29, 2015 Sinton, Texas 78387
(361) 877-2048
virginiak.burt@gmail.com
State Bar No. 00784411
Attorney for GARY PARKER

ORAL ARGUMENT NOT REQUESTED
 CERTIFICATE OF PARTIES AND COUNSEL

A complete list of the names and addresses of all parties to the
trial court’s final judgment and their counsel is as follows:

Appellant
Gary Parker
Last Known Address from
Texas Department of Criminal Justice

Counsel for the State of Texas
MS. COURTNEY HANSEN
SBOT NO. 2406819900
ASSISTANT DISTRICT ATTORNEY
901 Leopard, Rm. 206
Corpus Christi, Texas 78401
Phone: (361) 888-0410

Trial counsel for Appellant
MR. JAMES L. STORY
SBOT NO. 2400068
McLemore, Reddell, Ardoin & Story, P.L.L.C.
8128 Leopard Street
Corpus Christi, Texas 78409
Phone: (361) 883-5200

Appeal counsel for Appellant

Mrs. Virginia Koblizek Burt
Attorney at Law
SBN: 0784411
P.O. Box 717
Sinton, Texas 78387
virginiak.burt@gmail.com
Telephone: 361-877-2048

2
 TABLE OF CONTENTS

CERTIFICATE OF PARTIES AND COUNSEL-----------------------------2

INDEX OF AUTHORITIES------------------------------------------------------ 5

STATEMENT REGARDING ORAL ARGUMENT------------------------- 6

STATEMENT OF CASE----------------------------------------------------------6

STATEMENT OF PROCEDURAL HISTORY------------------------------ 6

GROUNDS FOR REVIEW ----------------------------------------------------- 7

GROUND ONE PRESENTED FOR REVIEW------------------------------8
THE THIRD PRONG OF THE KEETER TEST FOR NEWLY
DISCOVERED EVIDENCE DOES NOT STRICTLY AND
NARROWLY DENY ALL IMPEACHABLE EVIDENCE WITHOUT
CONSIDERATION THAT THE NEW EVIDENCE EXONERATES
THE APPELLANT. (RR v. 3, p. 24-35; RR v. 5, p. 12-32)

REASONS FOR REVIEW

A. The Court of Appeals decision was in direct conflict
with decisions of the Court of Criminal Appeals on the
same issue under TEX.R.APP.P. 66.3(c)-------------------------8

B. The court of appeals has so far departed from the
accepted and usual course of judicial proceedings as to
call for an exercise in supervision by this Court------------15

GROUND TWO PRESENTED FOR REVIEW---------------------------16
ALTHOUGH A PROSECUTOR MAY VOUCH FOR THE
CREDIBILITY OF A WITNESS IN A DIRECT RESPONSE TO AN
ARGUMENT BY THE DEFENSE, THE EXCEPTION DOES NOT
INVITE THE BOLSTERING OF THE ENTIRE CAST OF STATE’S
CASE-IN-CHIEF, ALLOWING THE PROSECUTOR TO IMPOSE
HER PERSONAL BELIEFS THAT ALL OF HER WITNESSES
WERE CREDIBILE AND TRUTHFUL. (RR v. 3, p. 73-82)

3
REASON FOR REVIEW

A. The Court of Appeals decision was in direct conflict
with decisions of the Court of Criminal Appeals on the
same issue under TEX.R.APP.P. 66.3(c)------------------------16

PRAYER --------------------------------------------------------------------------23

CERTIFICATE OF SERVICE ------------------------------------------------24

CERTIFICATE OF COMPLIANCE------------------------------------------24

APPENDIX
Opinion from Thirteenth Court of Appeals issued November 13, 2014

4
 INDEX OF AUTHORITIES

Strickland v. Washington. 466 U.S. 668, 687 (1984)-------------------22

STATE CASES
COURT OF CRIMINAL APPEALS

Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014)-----------------11

Chapman v. State, 503 S.W.2d 237 (Tex. Crim. App. 1974)---------19

Hammond v. State, 799 S.W.2d 741 (Tex. Crim. App. 1990)
cert. denied 111 S.Ct 2912 (1991)-----------------------------------21

Hernandez v. State, 726 S.W.2d 53(Tex. Crim. App. 1986)----------22

Keeter v. State, 74 S.W.3d 31 (Tex. Crim. App. 2002)-----------------11

COURT OF APPEALS

Flores v. State, 778 S.W.2d 526 (Tex. App. Corpus Christi, 1989)--20

Sepulveda v. State, 751 S.W.2d 667 (Tex. App. - Corpus Christi,
1988, pet. ref’d)------------------------------------------------------------20

Thomas v. State, No. 01-11-00631-CR, 2013 WL 652719
(Tex. App.—Houston [1st Dist.] Feb. 21, 2013, pet. ref’d)------19

STATUTES
Tex. Code Crim. Proc. Ann. Art. 40.001.-------------------------------10, 16

Texas Penal Code, Section 22.01 --------------------------------------------5

Tex. R. App. P. 68.2(a)-----------------------------------------------------------5

TEX.R.APP.P. 66.3(c)------------------------------------------------------------6

Tex.R.App.P.66.3(f).-------------------------------------------------------------16

5
 STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary for the disposition of the issues

and is thereby waived.

STATEMENT OF THE CASE

A jury convicted the appellant Gary Parker of the felony offense

of Assault (Family Violence by impeding breath or circulation) under

Section 22.01 of the Texas Penal Code, and further found beyond a

reasonable doubt that the Defendant has been previously convicted

of two felonies as alleged in the indictment and assessed the

Defendant's punishment at thirty-five (35) years in the Institutional

Division of the Texas Department of Criminal Justice. (CR p. 3)

STATEMENT OF PROCEDURAL HISTORY

The Thirteenth Court of Appeals affirmed this conviction in an

unpublished Memorandum Opinion delivered on November 13, 2014.

No Motion for Rehearing was filed.

An extension of time to file this Petition for Discretionary

Review was granted. See Tex. R. App. P. 68.2(a).

6
 GROUNDS FOR REVIEW

GROUND ONE FOR REVIEW

THE THIRD PRONG OF THE KEETER TEST FOR NEWLY
DISCOVERED EVIDENCE DOES NOT STRICTLY AND
NARROWLY DENY ALL IMPEACHABLE EVIDENCE WITHOUT
CONSIDERATION THAT THE NEW EVIDENCE EXONERATES
THE APPELLANT. (RR v. 3, p. 24-35; RR v. 5, p. 12-32)

REASONS FOR REVIEW

A. The Court of Appeals decision was in direct conflict with
decisions of the Court of Criminal Appeals on the same
issue. TRAP 66.3

B. The court of appeals has so far departed from the
accepted and usual course of judicial proceedings as to
call for an exercise in supervision by this Court under
Tex.R.App.P.66.3(f).

GROUND TWO FOR REVIEW

ALTHOUGH A PROSECUTOR MAY VOUCH FOR THE
CREDIBILITY OF A WITNESS IN A DIRECT RESPONSE TO AN
ARGUMENT BY THE DEFENSE, THE EXCEPTION DOES NOT
INVITE THE BOLSTERING OF THE ENTIRE CAST OF STATE’S
CASE-IN-CHIEF, ALLOWING THE PROSECUTOR TO IMPOSE
HER PERSONAL BELIEFS THAT ALL OF HER WITNESSES
WERE CREDIBILE AND TRUTHFUL. (RR v. 3, p. 73-82)

7
REASON FOR REVIEW

A. The Court of Appeals decision was in direct conflict with
decisions of the Court of Criminal Appeals on the same
issue. TRAP 66.3

ARGUMENT

GROUND ONE FOR REVIEW

THE THIRD PRONG OF THE KEETER TEST FOR NEWLY
DISCOVERED EVIDENCE DOES NOT STRICTLY AND
NARROWLY DENY ALL IMPEACHABLE EVIDENCE WITHOUT
CONSIDERATION THAT THE NEW EVIDENCE EXONERATES
THE APPELLANT. (RR v. 3, p. 24-35; RR v. 5, p. 12-32)

REASONS FOR REVIEW

A. The Court of Appeals decision was in direct conflict with
decisions of the Court of Criminal Appeals on the same issue
under TEX.R.APP.P. 66.3(c).

The Thirteenth Court of Appeal’s reliance on this Court’s

conclusion in Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014),

that Appellant’s newly discovered evidence was merely impeachable

and thus failed the third prong of the Keeter test for a new trial, is

error and is in direct conflict with the prevailing law under the Keeter

test.

Evidence Presented at the Motion for New Trial Hearing

8
 Appellant Parker’s verdict was based solely on the testimony of

the complainant who testified at trial that she was assaulted by

Parker. The complainant and Parker have been in a relationship on

and off for the past 27 years and were legally married at one time,

and have both had a volatile past together. The complainant testified

at trial that her injuries were so bad after the assault that the whole

side of her face turned black, and she was unable to work the next

day. RR v. 3, p. 24. She told the jury, “[t]hey were – they 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.” RR

v. 3, p. 24. She claimed that she went to work the next day, but had

“to stay in the classroom because my supervisor said that I had too

many facial injuries and my face was out to here”. RR v. 3, p. 25.

She testified that she was not allowed to perform her work duties

because of her injuries and was sent home. RR v. 3, p. 26, 29, 31,

35.

However, Mr. Dane Smith, the complainant’s work supervisor,

testified at the motion for new trial hearing that he did not see any

injuries on the complainant on that day. RR v. 5, p. 12. He testified

that he never saw bruises on her face and at no time did he have to

9
send her home because of her injuries. RR v. 5, p. 16. He directly

contradicted her testimony at trial. RR v. 5, 14-16. He testified that

all of the events that the complainant had claimed in the trial were

false. RR v. 5, p. 16.

Parker also offered the testimony of a former attorney who

represented him on a felony theft charge brought by the same

complainant. RR v. 5, p. 36. 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.

Argument and Authority

Appellant argues that the newly discovered evidence proves

the complainant lied on the stand about the assault, enough to doubt

the integrity of the jury’s verdict, and a new trial should have been

granted. Appellant also provided evidence that the complainant had

made false accusations about him in a past.

The law in Texas allows for a new trial 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.).

The courts will grant a new trial based on newly discovered evidence

10
if all four prongs of the test set out in Keeter are met. A party seeking

a new trial on the ground of newly discovered evidence must show

(1) the newly discovered evidence was unknown or unavailable to the

movant at the time of his trial; (2) the movant’s failure to discover or

obtain the evidence was not due to a lack of diligence, (3) the new

evidence is admissible and is not merely cumulative, corrobative,

collateral, or impeaching; and (4) the new evidence is probably true

and will probably bring about a different result on another trial.

Keeter v. State, 74 S.W.3d 31,37 (Tex. Crim. App. 2002); see also

Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014).

Under Keeter, the new evidence must not be merely

cumulative, corrobative, collateral, or impeaching. Id. at 37. This

ruling does not automatically exclude impeaching evidence as a hard

and fast rule, but only if it is merely impeachment evidence that would

not have a direct impact on the verdict. Id.

However, in direct conflict with the meaning of the rule in

Keeter, the court of appeals relied on Carsner1 to deny Appellant’s

relief, holding that since “ [the] newly discovered evidence is based

1
“The new evidence must be admissible and must not merely be impeaching,
among other things.” Carsner, 2014 WL 4722762.

11
on using this evidence solely to impeach the complainant, it fails the

third prong of the Carsner test.” Carsner v. State, 444 S.W.3d 1

(Tex.Crim.App. 2014). This Court has provided the Keeter test that

dictates the requirements for a new trial. Keeter v. State, 74 S.W.3d

at 37. In Carsner, the case was merely sent back to the court of

appeals for failing to address every issue necessary to the disposition

of the appeal, namely all of the four prongs set out in Keeter.

The court of appeals is misguided trying to use the holding in

Carsner as a catch-all to deny an appellant’s relief for any evidence

that is newly discovered, that may also tend to be impeachable. By

its’ very nature, any new evidence which tends to refute the charges

against an accused, is inherently impeachable evidence as well. In

this case, the newly discovered evidence directly refutes the assault

charge and questions the integrity of the jury’s verdict. The new

evidence tended to exonerate Appellant and fortify his defense that

he was innocent and the complainant was making another false claim

against him.

Since the complainant’s false testimony was the sole basis for

the conviction, the fact that it may also be impeachable evidence

12
should not negate its’ significance. Appellant’s Brief, p. 27. The

new evidence is more than “merely impeachable” because it

substantiated, in a way no other evidence offered at trial did, the

appellant’s defense that the assault never occurred and the

complaintant’s accusations were false.

The court of appeals is deciding this case through the key hole

of a door and not grasping the larger legal significance of the new

evidence. The newly discovered evidence established the appellant’s

innocence and cooberated his defense, which he held throughout the

trial, that no assault had ever taken place. In addition, the

complainant had a history of making false claims against him. The

additional evidence showing that the complainant had made false

allegations about a felony theft charge against the appellant in a

previous case dismissed the year before, was also coorabarating

evidence that the charges against the appellant were false. The trial

court’s ruling denied the appellant of evidence of a motive to fabricate

the charges against him and harm was shown.

Appellant has been wrongly convicted of a false accusation

brought against him. The newly discovered evidence tended to prove

his innocence and also established proof that the complainant had

13
lied before in a previous case against him, that was rightly dismissed.

It would be illogical for Carsner to stand for the premise that newly

discovered evidence tending to prove an accused’s innocence cannot

withstand the third prong of the Keeter test if it also serves as

impeachment evidence as well.

Newly discovered evidence that tends to prove an accused’s

innocence cannot be systemically dismissed by Carson, just because

it may also serve to impeach the complaining witness’s testimony.

When the newly discovered evidence establishes the appellant’s

innocence, and directly contradicts the essential element of the crime,

it is a far cry from being “merely impeachment evidence”. See

Opinion, p. 4-5.

A proper analysis of the new evidence should be conducted in

the spirit of the statute, “that 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.); see also Keeter v. State, 74

S.W.3d at 37; see also Opinion p. 2. The new evidence provided by

Appellant tending to prove his innocence should be adequate for a

new trial, highlighting the fact that the complainant had made false

14
allegations against him in the past. The legal ramifications from the

new evidence make it more than likely that a different outcome could

have resulted in another trial, thus meeting the third and fourth prong

of the Keeter test. 2

B. The court of appeals has so far departed from the
accepted and usual course of judicial proceedings as to call for
an exercise in supervision by this Court under
Tex.R.App.P.66.3(f).

Under the specific circumstances of this case, the impossibility

that newly discovered evidence proving Appellant’s innocence is not

enough for a new trial under the statute is a daunting display of

unsound legal reasoning and lack of judicial fair-mindedness.

Many cases have demonstrated the notion that newly

discovered evidence favorable to the accused should warrant a new

trial. See Appellant’s Brief, p. 19-26. The court of appeal’s denial of

any meaningful appellate review of Appellant’s legally preserved error

is so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise in supervision by this Court

under Tex.R.App.P.66.3(f).

2
The court of appeals assumed that Parker established the first two prongs under
Carsner v. State, PD-0153-14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept.
24, 2014). Opinion, p. 4.

15
 Texas statute dictates that 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.). The facts of this case

illustrate that the new evidence was more than “merely impeachable”,

but had a direct impact on the jury’s verdict. The actions of the court

of appeals is so far departed from the usual judicial proceedings that

the issue warrants a review by this Court under TEX.R.APP.P. 66.3(f)

and provides a compelling reason for granting appellants petition for

discretionary review.

GROUND TWO FOR REVIEW

ALTHOUGH A PROSECUTOR MAY VOUCH FOR THE
CREDIBILITY OF A WITNESS IN A DIRECT RESPONSE TO AN
ARGUMENT BY THE DEFENSE, THE EXCEPTION DOES NOT
INVITE THE BOLSTERING OF THE ENTIRE CAST OF STATE’S
CASE-IN-CHIEF, ALLOWING THE PROSECUTOR TO IMPOSE
HER PERSONAL BELIEFS THAT ALL OF HER WITNESSES
WERE CREDIBILE AND TRUTHFUL. (RR v. 3, p. 73-82)

REASON FOR REVIEW

A. The Court of Appeals decision was in direct conflict with
decisions of the Court of Criminal Appeals on the same issue
under TEX.R.APP.P. 66.3(c).

16
 The prosecutor’s imposition of her personal beliefs regarding

the credibility of all of the witnesses in the state’s case-in-chief was

not invited by Parker’s counsel, as the exception dictates. The court

of appeals decision was in direct conflict with the prevailing cases of

this Court of Criminal Appeals which do not allow for the improper

bolstering of a witness’s credibility. The court of appeals erred in

holding that counsel’s failure to object to the admission of the

testimony was not deficient.

During final argument, the prosecutor made several improper

remarks to the jury about the veracity of the state’s witnesses that

constituted reversible error, and trial counsel failed to make an

objection each time the state improperly bolstered the witnesses.

The State only called three witnesses in the case-in-chief: the

arresting officer, the investigating detective and the victim. During

closing argument, the prosecutor improperly commented on the

veracity of every witness, including the complainant. The prosecutor

improperly attached her personal belief to the truthfulness of each

witness, and the effect was to unlawfully bolster the credibility of the

witnesses with unsworn testimony.

17
 The prosecutor’s remarks went unchecked as she argued to the

jury that the police officer had “no reason to tell you a lie” and “[h]e

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”.

The prosecutor also commented, without objection, on the

veracity of the detective in the case, arguing “[a]nd 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”.

More significantly, the prosecutor gave her opinion before the

jury that the complainant “was honest with you about [her testimony]”.

RR v. 3, p. 76, line 12-16. [emphasis added]

Appellant alleged ineffectiveness based on his counsel’s failure

to object to the prosecutor’s comments in closing argument bolstering

the credibility of the State’s witnesses. Appellant was prejudiced by

his counsel’s failure to object after the prosecutor improperly injected

her personal opinion by vouching for the credibility and truthfulness of

every witness in the state’s case-in-chief during final argument. The

prosecutor’s comments were so prejudicial that they warranted a

reversal without a showing of harm.

18
 In this case, the court of appeals denied Appellant’s relief and

relied on Thomas to conclude that the the improper comments were

made in direct response to allegations by the defendant, and

therefore an exception could be made to the rule. Thomas v. State,

No. 01-11-00631-CR, 2013 WL 652719, at *8 (Tex. App.—Houston

[1st Dist.] Feb. 21, 2013, pet. ref’d); Chapman v. State, 503 S.W.2d

237, 238 (Tex. Crim. App. 1974) (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”).

Appellant’s case can be distinguished from these cases, in that

the prosecutor in both Thomas and Chapman did not impose their

personal beliefs on the jury regarding the veracity of every witness in

the state’s case. It is one thing to allow a prosecutor to vouch for a

witness’s credibility in response to a direct negative attack on their

truthfulness. However, there is no legal justification for the

prosecutor to bolster every witness in her case-in-chief with her

personal opinions and beliefs regarding all of the witnesses

credibility. This distinction can be made from the cases relied on by

19
the state, wherein the prosecutor was able to vouch for the credibility

of a particular witness without imposing their personal opinions and

beliefs on the jurors.

In Appellant’s case the prosecutor did more than just vouch for

the credibility of a witness. The prosecutor imposed her personal

beliefs before the jury, bolstering the credibility of every witness for

the state, even though she could have denounced the appellant’s

claims without imposing her personal beliefs. The prosecutor’s

improper bolstering was especially harmful to Appellant because his

conviction was based solely on the testimony of the complainant.

See Flores v. State, 778 S.W.2d 526 (Tex. App. Corpus Christi,

1989)( The case was reversed for improper argument by the

prosecutor where the prosecutor argued that the state would not have

brought the case if the victim‘s testimony was not true. The error was

not harmless beyond a reasonable doubt where the victim’s

testimony was the only evidence against the defendant. ); see also

Sepulveda v. State, 751 S.W.2d 667 (Tex. App. - Corpus Christi,

1988, pet. ref’d) The prosecutor made improper comments that

bolstered the testimony of the complainant, which was especially

egregious in this case, since the complainant’s testimony was the

20
sole basis of the conviction and she had made false accusations

against Appellant in the past. See supra. The error was not harmless

beyond a reasonable doubt where the complainant’s testimony was

the sole basis for the conviction.

Although this Court allows some leeway for the prosecution to

vouch for the credibility of a witness in a direct response invited by

the appellant’s argument, it does not allow for the bolstering of the

state’s entire case-in-chief, which was not a proper reply to any

arguments made by the defense.

Appellant received ineffective assistance of counsel where

counsel failed to object to the prosecutor’s expressing his opinion of

each witness’s credibility. The prosecutor’s argument, at the very

least, would have required an instruction to disregard. Hammond v.

State, 799 S.W.2d 741 (Tex. Crim. App. 1990) cert. denied 111 S.Ct

2912 (1991)(Error was harmless, and the conviction was affirmed

where there was prompt instruction to disregard and the evidence

against the defendant was “fairly compelling”). Under the Hammond

analysis, in this case there was no prompt instruction to the jury to

disregard and the evidence against the appellant was by no means

“fairly compelling”. In fact, in Appellant’s case, the complainant’s

21
testimony was the sole basis for his conviction, and there was

evidence that she had made false claims against him in the past.

The prosecutor’s imposition of her personal beliefs regarding

the credibility of all of the witnesses in the state’s case-in-chief was

not invited by Parker’s counsel, the remarks were improper, and the

court of appeals erred in holding that counsel’s failure to object to the

admission of the testimony was deficient. Thus, the first prong of

Strickland has been satisfied that defense counsel’s performance

was deficient and Appellant showed that his counsel made errors so

serious that counsel was not functioning at an objective standard for

adequate legal representation guaranteed by the Sixth Amendment.

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 end result in this case reveals that Appellant’s conviction

was based on false testimony that the state capitalized on during final

argument. Since the complainant’s testimony was the only evidence

against the appellant, and her credibility was crucial to the case, the

error was not harmless. The improper jury argument requires a

22
reversal of Appellant’s conviction, for which he is entitled to a new

trial.

PRAYER

WHEREFORE PREMISES CONSIDERED, the Petitioner prays

that this Honorable Court grant discretionary review of the decision of

the Court of Appeals herein and that the Judgment of the Court of

Appeals and Trial Court be reversed and the indictment and

prosecution against Petitioner herein be dismissed or this cause be

remanded for a new trial.

RESPECTFULLY SUBMITTED,

/s/Virginia Koblizek Burt
VIRGINIA KOBLIZEK BURT
Attorney at Law
P.O. Box 717
Sinton, Texas 78387
361-877-2048
virginiak.burt@gmail.com
SBN: 00784411
ATTORNEY FOR GARY PARKER

23
 CERTIFICATE OF SERVICE

I, Virginia K. Burt, do hereby certify that the Petition for

Discretionary Review was e-filed on this the 26th day of January

2015, along with 10 copies mailed regular mail, to the clerk of the

Texas Court of Criminal Appeals and a copy delivered to the Nueces

County District Attorney’s office, Appellate Section, and a copy

mailed to the current TDCJ address of the Petitioner, Gary Parker.

/s/Virginia Koblizek Burt
VIRGINIA KOBLIZEK BURT

CERTIFICATION OF COMPLIANCE

Now comes counsel of record, Virginia K. Burt, for the Appellant,
GARY PARKER, in the above styled and numbered cause, and hereby
certifies that counsel is in compliance with Texas Rules of Appellate
Procedure 9.4(i)(3), and I certify that the number of words in this
petition, excluding those matters listed in Rule 9.4(k)(1) is 2, 989.

/s/ Virginia K. Burt
VIRGINIA K. BURT

24
 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

25
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

26
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, (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

27
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

incident and about the seriousness of her injuries.

28
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.

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).

2. Carsner’s Third Prong3

29
“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 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

30
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

31
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, 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?

32
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

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.

....

33
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

34
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?

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

35
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; 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.

36
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.

37
A. Applicable Law and Standard of Review

“If scientific, technical, or other specialized knowledge will assist the

trier of fact to 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

38
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.

39
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

40
• 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

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

41
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, 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

42
trial to the “known print” and not to the fingerprints in each of

judgments from the pen packs.

Luckey 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:

43
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.

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

44
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 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

45
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 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

46
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,

47
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 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

48
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 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

49
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,

50
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] 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.)

51
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. 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."

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.

52
Q. We can't get into anything that she specifically told you.

A. I don't remember seeing any injuries on her.

Q. Okay.

(Emphasis added.)

C. Discussion

Now on appeal, Parker alleges that counsel’s representation was

ineffective 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,

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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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