Ibarra, Jamie Alberto

PD-0206-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 4/1/2015 6:04:53 PM
Accepted 4/2/2015 1:12:30 PM
PD-0206-15 ABEL ACOSTA
CLERK

COURT OF CRIMINAL APPEALS OF TEXAS
_______________________________________

JAMIE ALBERTO IBARRA,
Appellant,

VS.

THE STATE OF TEXAS,
Appellee.
__________________________________________________________________

On Petition for Discretionary Review from the Fourteenth Court of Appeals in
Cause No. 14-13-00337-CR, affirming the conviction in Cause No. 1287084,
In the 174th District Court of Harris County, Texas
__________________________________________________________________

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
__________________________________________________________________

ALEXANDER BUNIN
Chief Public Defender
Harris County, Texas

BOB WICOFF
Assistant Public Defender
Harris County, Texas
TBN 21422700
April 2, 2015 1201 Franklin, 13th floor
Houston, Texas 77002
Phone: (713) 368-0016
Fax: (713) 368-9278
bwicoff@pdo.hctx.net

Counsel for Appellant
 IDENTITY OF JUDGE, PARTIES AND COUNSEL

Trial Court Judge: Hon. Ruben Guerrero
174th District Court
Harris County, Texas
1201 Franklin Street, 19th floor
Houston, Texas 77002

Parties to the Judgment: Jamie Alberto Ibarra 1
The State of Texas

Names and addresses of trial counsel (State): Gretchen Flader
Claire Morneau
Assistant District Attorneys
Harris County, Texas
1201 Franklin Street, 6th floor
Houston, Texas 77002

Name and address of trial counsel (Defense): Michael Slider
Attorney at Law
1314 Texas Avenue, Suite 1200
Houston, Texas 77002

Counsel on appeal for the State of Texas: Carly Dessauer
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, 6th floor
Houston, Texas 77002

Counsel on appeal for the Appellant: Bob Wicoff
Assistant Public Defender
Harris County, Texas
1201 Franklin Street, 13th floor
Houston, Texas 77002

1
Although the Appellant’s name is listed as “Jamie” on the indictment and in the judgment, his pro se
motions reveal that his name is “Jaime.”
i
 TABLE OF CONTENTS

PAGE

Identity of Judge, Parties and Counsel: i

Table of Contents: ii

Index of Authorities: iv

Statement Regarding Oral Argument: v

Statement of the Case: v

Statement of Procedural History: v

Grounds for Review: 1

Ground for Review One
Eight months before trial, the Appellant requested through two written pro
se motions that his retained attorney be dismissed and that the trial court
“appoint the defendant a public defender.” In light of such actions by the
Appellant, did the Fourteenth Court of Appeals err in holding that the
Appellant failed to request a determination of his indigency?

Ground for Review Two
Under what circumstances, if any, is a trial court required to make an inquiry
into a defendant’s indigency?

Ground for Review Three
Did the Fourteenth Court of Appeals err in holding that the trial court’s
refusal to inquire into the Appellant’s indigency did not deprive the
Appellant his counsel of choice under the Texas and federal constitutions?

Argument Under Grounds for Review: 2

Prayer for Relief: 13

Certificate of Service: 13
ii
 TABLE OF CONTENTS

PAGE

Certificate of Compliance: 14

Appendix (Ibarra v. State): appendix

iii
 INDEX OF AUTHORITIES

PAGE
Cases

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005) .................................................. 11

Ibarra v. State, No. 14-13-00337-CR, 2015 WL 293115 .............................................. passim
(Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.)

Robinson v. State, 240 S.W.3d 919 (Tex. Crim. App. 2007)................................................. 10

U.S. v. Mason, 2012 WL 2680748 (5th Cir. 2012)(unpublished, per curiam)..................... 9

Wheat v. U.S., 486 U.S. 153 (1988) ...................................................................................... 12

Statutes and Rules

Tex. Penal Code Ann., sec. 12.42(d)………………………………………………… v

Tex. Penal Code Ann., sec. 22.02(a)(2) ..…….……………………………………… v

Tex. Penal Code Ann., sec. 22.02(b)(2)(B)…………………………………………… v

Tex. Code Crim. Proc. Ann., art. 1.051….…………………………………………… v

Tex. Code Crim. Proc. Ann., art. 26.04……………………………………………. 8

Tex. Code Crim. Proc. Ann., art. 46B.004( c ) ….…………………………………… 7

Tex. R. App. P. 44.2(b)…………………………………………………………… 14

Other Authority

George E. Dix & John M. Schmolesky, 42 Texas Practice and Procedure ........................... 8
Sec. 29.40 (3rd ed. 2011)

iv
 STATEMENT REGARDING ORAL ARGUMENT

The Appellant requests oral argument, because the issue of when a trial court is

required to inquire into a defendant’s indigency is an important issue of state law that

has not been, but should be, decided by this Court. See Tex. R. App. P. 66.3(b).

STATEMENT OF THE CASE

The Appellant was indicted in cause number 1287084 for Aggravated Assault

on a Public Servant, alleged to have occurred on or about November 30, 2010. The

indictment contained two enhancement paragraphs, thereby subjecting the Appellant

to a punishment range of 25-99 years (C.R. at 8); See Tex. Penal Code, §§ 22.02(a)(2),

22.02(b)(2)(B), 12.42(d). The jury found the Appellant guilty and assessed his

punishment at fifty (50) years confinement (C.R. at 149). A motion for new trial was

filed (C.R. at 164), but was overruled by operation of law.

STATEMENT OF PROCEDURAL HISTORY
On January 22, 2015, in a published opinion, the Fourteenth Court of Appeals

affirmed the Appellant’s conviction. Ibarra v. State, No. 14-13-00337-CR, 2015 WL

293115 (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.). This Court has

extended the time to file the Appellant’s Petition for Discretionary Review until April

1, 2015, which is the date that this document is being e-filed.

v
 GROUNDS FOR REVIEW
GROUND FOR REVIEW ONE
Eight months before trial, the Appellant requested through two written
pro se motions that his retained attorney be dismissed and that the trial
court “appoint the defendant a public defender.” In light of such actions
by the Appellant, did the Fourteenth Court of Appeals err in holding
that the Appellant failed to request a determination of his indigency?

GROUND FOR REVIEW TWO
Under what circumstances, if any, is a trial court required to make an
inquiry into a defendant’s indigency?

GROUND FOR REVIEW THREE
Did the Fourteenth Court of Appeals err in holding that the trial court’s
refusal to inquire into the Appellant’s indigency did not deprive the
Appellant his counsel of choice under the Texas and federal
constitutions?

-1-
 ARGUMENT UNDER GROUNDS FOR REVIEW

A. Statement of Facts Relative to Grounds for Review

1. “Motion to Dismiss Defendant’s Attorney of Record Michael K.
Slider and Appoint Defendant a Public Defender”

On August 1, 2012, after nineteen (19) months in continuous custody2 and

more than eight (8) months before trial would take place, Appellant filed (by certified

mail to the clerk of the 174th District Court) a pro se “Motion to Dismiss Defendant’s

Attorney of Record Michael K. Slider and Appoint Defendant a Public Defender”

(Supp. C.R. at 5-7). According to the motion, Attorney Slider was hired twenty (20)

months earlier (which would have been around the time of the Appellant’s arrest in

late 2010). In his pro se motion, Appellant alleged the following:

1) Slider had not had any contact with the Appellant in the seven (7)

months preceding the filing of the motion;

2) As of the date that the motion was filed (August of 2012), the only

action taken by Slider in the year-and-a-half since he began representing the

Appellant was to file a discovery motion;

3) Slider told the Appellant’s family that he could not be fired unless the

family hired another attorney;

2
See Judgment, which lists time credit as “12/28/2010 to 4/11/2013.”

-2-
 4) Slider “told the Defendant that we do not have O.J. Simpson money to

pay for experts on forensics and ballistics.”

Appellant then concluded the motion by stating that he could not work with

Michael Slider, that he believed that he would not receive effective assistance of

counsel from Mr. Slider, and that he wanted a “Public Defender” to be appointed.

This motion was ignored by the trial court.

2. “Motion for Judge to Disqualify or Recuse Himself”

On August 23, 2012, Appellant filed another pro se motion from jail, this one

entitled “Motion for Judge to Disqualify or Recuse Himself” (Supp. C.R. at 3-8).

Appellant averred in this motion that the trial court must have a bias against him

because the court was refusing to address his previous request to fire Michael Slider

and appoint a public defender to represent him. In this motion, the Appellant alleged

that when he was on the docket on August 20, 2012, he had requested of attorney

Slider that he be allowed to appear in front of the judge to present his motion to

dismiss Slider to have a public defender appointed instead. The motion also alleges

that the Appellant asked the bailiff of the 174th District Court, J.J. Turner, to ask the

judge if the Appellant could approach the bench to discuss the previous motion

(requesting appointment of a public defender). According to the later motion, Turner

did so, but the judge refused to allow the Appellant to be heard on the matter. Finally,

-3-
the motion specifies 6 inmate witnesses who could attest to the Appellant’s attempts

to bring his motion in front of the trial court on August 20, 2012. 3

This second pro se motion was denied by the trial court on October 30, 2012,

over two months after it was filed (Supp. C.R. at 7). This motion provided the second

complaint in a month that served to indicate to the trial court that the Appellant

wished to fire attorney Michael Slider and was asking the Court to appoint a public

defender to represent him.

3. Pretrial hearing of April 3, 2014

On April 3, 2014, the Appellant was allowed to address the trial court for the

first time. The following exchange took place between the Appellant and Judge Jay

Burnett, a visiting judge:

IBARRA: Sir, I would like to make a record. I’ve been for…since
last July of last year, I’ve been trying to get Mr. Slider off my case. My
family hired him. I’ve been trying to fire him by certified mail with a
Motion to Dismiss to Judge Ruben Guerrero and that’s been ignored.
And Mr. Slider has repeatedly showed up as my attorney. I believe I have
a right of choice of counsel and I haven’t had it. I’ve been asking for Mr.
Slider to remove himself from my case for different reasons. He’s been
defective and ineffective in filing proper motions. And, you know, I’ve
been here 24 - two years and four months already. And I’ve been asking
for a speedy trial the whole time and I’ve been denied my right to a
speedy trial.
THE COURT: Okay. And I do, however, regardless strongly
suggest that you somehow work with your attorney on this, but that’s up
to you.
IBARRA: No. I’ve been trying to work with my attorney for too
long already. And on the record, he’s fired. My family has called him and

3
The court of appeals opinion makes no mention of this motion in its analysis.
-4-
 fired him. Like I said, I sent him certified mail. I have certified receipt
numbers where I sent the letters (II R.R. at 6-8).

At this point, attorney Slider began questioning Ibarra:

SLIDER: Okay, when I’ve made those trips, I actually talked to
you about preparing the case for trial and going over the offense report
and you always shouted. Get away, you’re fired. Correct.
IBARRA: Since July, yes, sir.
SLIDER: When we’re in court and I tried to speak to you in the
holdover, you say the same thing: Get away, you’re fired. Correct?
IBARRA: Yes, sir. (II R.R. at 8)

The visiting judge took no action after the above testimony.

4. Pretrial hearing of April 4, 2014

The next day, attorney Michael Slider filed a “Motion to Withdraw as Counsel”

(Supp. C.R. at 14-15). In the motion, attorney Slider informed the Court that:

1. Appellant failed to pay him his fee;

2. He had a conflict with Appellant;

3. He was not Appellant’s attorney of choice;

4. Appellant had refused to talk with him since July of 2012;

5. He conceded that: “The attorney cannot give this defendant effective

representation under these circumstances and be effective at trial.”

This motion was denied (Supp. C.R. at 16). The next day, attorney Slider filed a

motion stating that Appellant needed to be examined by a psychiatrist or medical

doctor because “He is refusing to speak to defense counsel, is talking about suicidal

-5-
thoughts, cries and mumbles.” This motion was denied the day it was filed. (Supp.

C.R. at 17).

B. Appellant’s argument at the court of appeals, and that court’s opinion

The Appellant complained that his right to appointed counsel under the United

States and Texas Constitutions, as well as under article 1.051 of the Texas Code of

Criminal Procedure, was violated by the trial court’s refusal to inquire of his

indigency, and in not then appointing counsel to replace his retained attorney.

In responding to this complaint, the court of appeals replied:

To the extent appellant complains that the trial court violated his rights
under the United States Constitution and the Texas Constitution by
failing to appoint counsel to represent him, that complaint lacks merit
because a trial court does not have a duty to appoint counsel until the
defendant shows he is indigent. See Gray v. Robinson, 744 S.W.2d 604, 607
(Tex.Crim.App.1988). A trial court has no duty to appoint counsel when
a defendant has “managed to retain counsel” or “has made no showing
of indigency.” Id.; Easily v. State, 248 S.W.3d 272, 281 (Tex.App.–
Houston [1st Dist.] 2007, pet. ref'd). Neither in his motion, nor in his
pre-trial exchange with the trial court, did appellant claim to be indigent,
and he made no showing that he was indigent. See Gray, 744 S.W.2d at
607.

* * *

Appellant also asserts that the trial court should have followed the
dictates of Article 1.051(b), (c) and was required to appoint counsel to
represent him. That statute provides in pertinent part as follows:

(b) ... “indigent” means a person who is not financially
able to employ counsel. (c) An indigent defendant is
entitled to have an attorney appointed to represent him....

-6-
 Tex. Code Crim. Proc. Ann. art. 1.051. In the trial court, although
appellant requested appointment of counsel, he did not assert he was
indigent, make any showing that he was indigent, or request a
determination of indigency. A trial court does not have a duty to appoint
counsel until the defendant shows he is indigent. See Gray, 744 S.W.2d at
607; Easily, 248 S.W.3d at 281. Because appellant did not show he was
indigent, the trial court was not required by Article 1.051 to appoint
counsel to represent him, and thus the trial court did not err in failing to
appoint counsel. See Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at 281.

Appellant also contends that, after the trial court was made aware
counsel was not his attorney of choice and had been fired and that
appellant wanted the trial court to appoint counsel, it was the trial court's
duty to inquire into whether appellant was indigent, that is, not
financially able to employ counsel. The parties have not cited, and
research has not revealed, any statute or legal authority addressing this
issue. We conclude that appellant has not shown that the trial court
erred in failing to inquire as to whether he was indigent. The trial court
was not required to conduct an inquiry on its own motion as to whether
appellant was indigent. See Whitehead v. State, 130 S.W.3d 866, 874
(Tex.Crim.App.2004); Gray, 744 S.W.2d at 607; Easily, 248 S.W.3d at
281. Ibarra v. State, No. 14-13-00337-CR, 2013 WL 177456, at *3-4 (Tex.
App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.).

C. Argument Under Grounds for Review

When is a trial court under an obligation to inquire into whether a defendant is

indigent? Is raising the issue of indigency analogous to raising the issue of

competency, where a trial court is required to “determine by informal inquiry”

whether there is some evidence “from any source” that would suggest incompetency?

See Tex. Code Crim. Proc. Ann., art. 46B.004(c)? Or must a criminal defendant meet

specific, more stringent requirements to get the court’s attention when he is

requesting appointed counsel?

-7-
 The court of appeals states in its opinion that it can find no statute or legal

authority that suggests that a trial court has such a duty when a defendant has fired his

counsel and wants a new lawyer. Opinion, at *4. With respect to the precise fact

situation presented here, the court may be correct, but Tex. Code Crim Proc. Ann.,

art. 26.04 (“Procedures for Appointing Counsel”) clearly anticipates scenarios where a

defendant can no longer afford retained counsel:

(p) A defendant who is determined by the court to be indigent is
presumed to remain indigent for the remainder of the proceedings in the
case unless a material change in the defendant’s financial circumstances
occurs. If there is a material change in financial circumstances after a
determination of indigency or nonindigency is made, the defendant, the
defendant's counsel, or the attorney representing the state may move for
reconsideration of the determination.

One authority has suggested that while the Code of Criminal Procedure does

not clearly provide for a hearing on indigency, such was likely the intent of the

Legislature:

The Code of Criminal Procedure does not explicitly provide for a
hearing on a defendant’s assertion of a right to appointed counsel.
Undoubtedly, however, the legislature contemplated that defendants
seeking representation would have a full opportunity to make their case
for eligibility for appointed counsel and—if the matter was discretionary
with the court—for a favorable exercise of that discretion.

Whether the “hearing” must be one in which the defendant is entitled to
introduce live testimony is less clear. Given the importance of the right
to counsel, a trial judge certainly acts at considerable risk in denying
counsel without such a full opportunity for the defendant to be heard.
George E. Dix & John M. Schmolesky, 42 Texas Practice: Criminal
Practice and Procedure sec. 29.40 (3rd ed. 2011).

-8-
 In federal court, a situation such as presents itself in this case would require a

trial court to inquire into a defendant’s indigency. See U.S. v. Mason, 2012 WL 2680748

(5th Cir. 2012)(unpublished, per curiam)(District court was required by the Criminal

Justice Act (CJA) to inquire into defendant’s financial eligibility for appointment of

counsel after guilty plea and prior to sentencing, once defendant requested court-

appointed counsel and expressed concern that retained counsel did not want to spend

too much time with defendant because of defendant’s inability to pay promptly; case

would be remanded for district court to conduct inquiry and potentially appoint

counsel for new sentencing hearing).

The Fourteenth Court of Appeals seems to rest its conclusion that the

Appellant’s indigency was not sufficiently raised in this case on the fact that he did not

specifically assert that he was indigent (“Neither in his motion, nor in his pre-trial

exchange with the trial court, did appellant claim to be indigent, and he made no

showing that he was indigent.” Ibarra, at *3).

This conclusion overlooks the following:

1) In terms of alerting the trial court to what he was requesting in his pro se

motion of August 1, 2012, it must be remembered that the motion was entitled

“Motion to Dismiss Defendant’s Attorney of Record Michael K. Slider, and

Appoint Defendant a Public Defender” (emphasis added). When the court

of appeals writes “appellant did not assert that he was indigent or submit proof

-9-
that he was indigent,” the obvious question which arises is this: what else could

it mean when a defendant asks a court to “Appoint a Public Defender?”

2) In terms of what it takes to bring the matter of indigency to the attention of

the trial judge, when the court of appeals observes that “the appellant asked the

trial court to appoint a lawyer to represent him, but appellant did not assert that

he was indigent or submit proof that he was indigent,” such comment blithely

ignores the reality of pro se motions in criminal courts and especially pro se

motions challenging the effectiveness of one’s lawyer. The reality, of course, is

that the Appellant, confined to a wheelchair due to having been shot four times

by police officers (IX R.R. at 8-9), had by August of 2012 been in continuous

custody for nineteen (19) months and was confined in the holdover cell

whenever he went to court. As with any other pro se motion, getting oneself

heard by the trial court, especially regarding a matter like discharging your

lawyer, depends on either being very vocal with the guards (who may or may

not oblige you), or prevailing upon the lawyer you are complaining about to get

you brought out of the holdover and in front of the bench so that you can air

your grievances about him in front of everyone. Under any scenario, the

defendant is entirely subject to the whims of others as to whether he will have

any opportunity to “submit proof that he was indigent.”

3) When the court of appeals cites Robinson v. State, 240 S.W.3d 919 (Tex.

Crim. App. 2007) for the proposition that a trial court is free to disregard any
- 10 -
 pro se motions presented by a defendant who is represented by counsel, it is

squarely placing the Appellant in a Catch-22 situation: In order for the court to

consider your motion to discharge your retained lawyer and have a public

defender appointed to your case heard by the court, you need to submit proof

of your indigency. However, good luck with that, because the trial court is not

required to consider any pro se motion raising these issues.

There is no reason whatsoever to believe that if the Appellant had filed a

motion with a sworn affidavit of indigency it would have garnered any more attention

than the one he filed, and there is every reason to believe that if the trial court had

only given the Appellant a brief hearing on his August 2012 motions, he would have

explained exactly what he meant by wanting the court to “appoint a public defender”

to his case. Perhaps he would have pursued one issue that was explicitly mentioned in

in his August 1, 2012 motion, and which clearly did relate to his financial ability to

defend himself, namely, counsel’s assertion that there was not enough money to hire

experts (“we do not have O.J. Simpson money to pay for expert witnesses.”). If

counsel told the Appellant that experts could not be afforded, then obviously, counsel

was under a misimpression regarding what steps were available if the Appellant could

not afford necessary experts. See Ex parte Briggs, 187 S.W.3d 458, 468 (Tex. Crim. App.

2005).

The Appellant’s pro se motion, by its very caption and by the Ake issue raised

within the motion, was adequate to put the trial court on notice that the Appellant’s
- 11 -
indigency had become an issue. Indeed, the fact that the Appellant had, by the time he

filed his motion on August 1, 2012, been in custody for nineteen (19) months and was

confined to a wheelchair, should have lent some credence to the notion that he was

indigent, as his motion suggested.

Finally, by denying the Appellant the option of firing the attorney that had been

chosen for him by his family, and determining whether he was eligible for a court-

appointed attorney, the trial court effectively denied the Appellant his counsel of

choice, in violation of the Sixth Amendment to the United States Constitution and

art. I, sec. 10 of the Texas Constitution. The essential aim of the Sixth Amendment is

“to guarantee an effective advocate for each criminal defendant rather than to ensure

that a defendant will inexorably be represented by the lawyer whom he prefers.”

Wheat v. U.S., 486 U.S. 153, 158-59 (1988). However, the Appellant was not

requesting a specific attorney over another. He was asking to discharge his attorney,

and then, due to his indigency, to be given any public defender that the trial court

decided to appoint.

In conclusion, the court of appeals erred in holding that the trial court had no

obligation to investigate the Appellant’s indigency under these facts, which resulted in

the Appellant proceeding to trial with counsel who was not of his choosing, in

violation of the federal and state constitutions.

- 12 -
 PRAYER FOR RELIEF

For the reasons stated above, the Appellant moves that this Court grant his

petition and reverse the judgment of conviction in this case, and remand the case for a

new trial.

Respectfully submitted,

Alexander Bunin
Chief Public Defender
Harris County Texas

/s/ Bob Wicoff
Bob Wicoff
Assistant Public Defender
Harris County Texas
1201 Franklin, 13th floor
Houston Texas 77002
(713) 274-6781
TBA No. 21422700

Counsel for Appellant

CERTIFICATE OF SERVICE

I hereby certify that on April 1, 2015, a copy of the foregoing petition has been

served electronically on Alan Curry, who is the chief of the appellate division of the

Harris County District Attorney’s Office, through the efile system, and on the State

Prosecuting Attorney.

/s/ Bob Wicoff

- 13 -
 CERTIFICATE OF COMPLIANCE

This petition complies with the type-volume limitations of Tex. R. App. Proc.

9.4(e) and 9.4(i). It contains 3,045 words printed in a proportionally spaced typeface

using Garamond 14 point font.

/s/ Bob Wicoff

- 14 -
Ibarra v. State, --- S.W.3d ---- (2015)

A P P E N D I X
Opinion in Ibarra v. State, No. 14-13-00337-CR,
2015 WL 293115 (Tex. App.-Houston [14th Dist.] Jan. 22, 2015, no pet. h.)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 15
Ibarra v. State, --- S.W.3d ---- (2015)

[7]
prosecutor’s comments during closing argument of
2015 WL 293115 punishment phase regarding information related to
Only the Westlaw citation is currently available. defendant’s prior juvenile adjudications of delinquency
OPINION noted in JOT report were not outside scope of permissible
Court of Appeals of Texas, argument.
Houston (14th Dist.

Jamie Alberto Ibarra, Appellant Affirmed.
v.
The State of Texas, Appellee

NO. 14–13–00337–CR | Opinion filed January 22,
2015 West Headnotes (18)

Synopsis [1]
Criminal Law
Background: Defendant was convicted in the 174th Withdrawal by Counsel
District Court, Harris County, of aggravated assault on
public servant. Defendant appealed. Defendant was not denied his federal and state
constitutional rights to counsel of his choice
when trial court denied defense counsel’s
Holdings: The Court of Appeals, John Donovan, J., held motion to withdraw and refused to appoint
that: counsel from public defender’s office, in trial
for aggravated assault on public servant, despite
[1]
defendant was not denied his federal and state multiple expressions of dissatisfaction with
constitutional rights to counsel of his choice; counsel and refusal to communicate with
counsel; there was no indication that defendant
[2]
trial court did not abuse its discretion in denying or his family took any steps to retain another
motion by defense counsel to withdraw; attorney to represent defendant, despite
opportunity to do so, defendant never informed
[3]
trial court was not obligated under criminal procedure trial court that he could no longer afford to
article to appoint counsel for defendant who made no retain lawyer, he did not express desire to
showing that he was indigent nor requested determination represent himself, and he was not entitled to
of indigency; have counsel appointed absent showing that he
was indigent. U.S. Const. Amend. 6; Tex. Const.
[4]
trial court had no obligation under criminal procedure art. 1, § 10.
article, upon learning of defendant’s dissatisfaction with
Cases that cite this headnote
and alleged termination of his retained counsel, to sua
sponte inquire into defendant’s indigency;
[5]
defendant was not prejudiced by defense counsel’s
failure to object to testimony of juvenile probation officer [2]
Criminal Law
about her interview with defendant when he was juvenile Choice of Counsel
and information contained in Juvenile Offense Tracking
(JOT) report; An element of the constitutional right to
[6] assistance of counsel is the right of a defendant
defendant’s statements, as juvenile, to juvenile who does not require appointed counsel to
probation officer during interview were not made in choose who will represent him; however, this
course of interrogation, within meaning of Family Code right is not absolute. U.S. Const. Amend. 6; Tex.
governing statements made during interrogation; and Const. art. 1, § 10.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 16
Ibarra v. State, --- S.W.3d ---- (2015)

Cases that cite this headnote
Trial court did not abuse its discretion in
denying motion by defense counsel to withdraw,
in trial for aggravated assault of public servant,
given counsel having filed motion to withdraw
[3]
Criminal Law less than one week prior to trial, length of time
Choice of Counsel that case had been pending, and defendant’s
failure to take steps to retain another lawyer.
A defendant has no right to be represented by an
advocate who is not a member of the bar, an Cases that cite this headnote
attorney whom he cannot afford or whom
declines to represent him, or an attorney who
has a previous or ongoing relationship with an
opposing party. U.S. Const. Amend. 6; Tex.
[7]
Const. art. 1, § 10. Criminal Law
Withdrawal by Counsel
Cases that cite this headnote
The trial court has discretion to determine
whether counsel’s withdrawal should be
granted, balancing the matters asserted with the
potential for obstruction to the judicial process
[4]
Criminal Law or interference with the administration of justice.
Choice of Counsel
Cases that cite this headnote
While there is a strong presumption in favor of a
defendant’s right to retain counsel of choice, this
presumption may be overridden by other
important considerations relating to the integrity
[8]
of the judicial process and the fair and orderly Criminal Law
administration of justice; nonetheless, when a Indigence
trial court unreasonably or arbitrarily interferes
with the defendant’s right to choose retained Trial court was not obligated under criminal
counsel, its actions rise to the level of a procedure article to appoint counsel for
constitutional violation. U.S. Const. Amend. 6; defendant who made no showing that he was
Tex. Const. art. 1, § 10. indigent, nor requested determination of
indigency. Tex. Crim. Proc. Code Ann. art.
Cases that cite this headnote 1.051(b, c).

Cases that cite this headnote

[5]
Criminal Law
Indigence
[9]
Criminal Law
A trial court does not have a duty to appoint Indigence
counsel until the defendant shows he is indigent.
U.S. Const. Amend. 6; Tex. Const. art. 1, § 10. Trial court had no obligation under criminal
procedure article, upon learning of defendant’s
Cases that cite this headnote dissatisfaction with and alleged termination of
his retained counsel, to sua sponte inquire into
defendant’s indigency, for purposes of
defendant’s request for appointed counsel. Tex.
Crim. Proc. Code Ann. art. 1.051.
[6]
Criminal Law
Withdrawal by Counsel Cases that cite this headnote

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Ibarra v. State, --- S.W.3d ---- (2015)

foreclosed because of an appellant’s inaction at
trial. U.S. Const. Amend. 6; Tex. Const. art. 1, §
10.
[10]
Criminal Law Cases that cite this headnote
Conduct of Trial in General

On a claim of ineffective assistance of counsel
where there is no record explaining the
[14]
underlying reasons for counsel’s conduct, the Criminal Law
reviewing court will not speculate about them. Presentation of evidence regarding sentencing
U.S. Const. Amend. 6; Tex. Const. art. 1, § 10.
Defendant was not prejudiced by defense
Cases that cite this headnote counsel’s failure to object to testimony of
juvenile probation officer about her interview
with defendant when he was juvenile,
specifically about information contained in
Juvenile Offense Tracking (JOT) report that she
[11]
Criminal Law had reviewed prior to interview regarding his
Presumptions and burden of proof in general involvement in robbery during which he had
pointed gun at victim, and officer’s testimony
The presumption that counsel’s actions were that it appeared to her that defendant had not
reasonably professional and motivated by sound taken robbery charge very seriously because gun
trial strategy is not rebutted where the record is had not been loaded, in alleged violation of
silent as to counsel’s rationale for his trial hearsay rules, as required to support claim of
strategy. U.S. Const. Amend. 6; Tex. Const. art. ineffective assistance of counsel, in punishment
1, § 10. phase of trial for aggravated assault of public
servant, given admission of defendant’s prior
Cases that cite this headnote convictions and admission of evidence from
guilt phase of trial. U.S. Const. Amend. 6; Tex.
Const. art. 1, § 10.

[12]
Cases that cite this headnote
Criminal Law
Conduct of Trial in General

An appellate court will not find ineffective
assistance of counsel when the record is silent as [15]
Infants
to counsel’s rationale for trial strategy unless Interrogation and Investigatory Questioning
counsel’s conduct was so outrageous that no
competent attorney would have engaged in it. Defendant’s statements, as juvenile, to juvenile
U.S. Const. Amend. 6; Tex. Const. art. 1, § 10. probation officer during interview after officer
reviewed Juvenile Offense Tracking (JOT)
Cases that cite this headnote report about robbery that he had been involved
in were not made in course of interrogation,
within meaning of Family Code statute
providing that statements of child were not
[13] inadmissible if statement did not stem from
Criminal Law interrogation. Tex. Fam. Code Ann. §
Counsel for accused 51.095(b)(1), (2).
While the general rule is an alleged error must Cases that cite this headnote
be first brought to the attention of the trial court
before it can be heard on appeal, an ineffective-
assistance-of-counsel claim will generally not be

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Ibarra v. State, --- S.W.3d ---- (2015)

On Appeal from the 174th District Court, Harris
[16]
Criminal Law County, Texas, Trial Court Cause No. 1287084
In particular prosecutions
Attorneys and Law Firms
Prosecutor’s comments during closing argument
of punishment phase regarding information Bob Wicoff, Houston, TX, for Appellant.
related to defendant’s prior juvenile
adjudications of delinquency noted in Juvenile Carly Dessauer, Houston, TX, for Appellee.
Offense Tracking (JOT) reports were not outside
Panel consists of Chief Justice Frost and Justices
scope of permissible argument, in sentencing for
Donovan and Brown.
aggravated assault of public servant, where
evidence of prior juvenile history was admitted
and jury was asked to consider defendant’s
criminal history in assessing punishment.

Cases that cite this headnote OPINION

John Donovan, Justice

*1 Appellant, Jamie Alberto Ibarra, appeals his conviction
[17]
Criminal Law for aggravated assault on a public servant, contending he
Scope of and Effect of Summing up was denied his right to counsel of his choice, and he
received ineffective assistance of counsel. We affirm.
Closing arguments are made to assist the jury in
its analysis of the evidence presented at trial in
order to reach a just determination.

Cases that cite this headnote I. BACKGROUND

According to the record evidence, in November 2010,
appellant arrived at the home of Martha Maldonado to see
her daughter, Michell Mares, with whom appellant
[18]
Criminal Law previously had a relationship. When Maldonado told
Comments on Evidence or Witnesses appellant that Mares was not home, appellant continued
Criminal Law knocking on the door, insisting on seeing Mares. Because
Inferences from and Effect of Evidence appellant had exhibited harassing behavior in the past,
Criminal Law Maldonado called the police.
Comments on frequency of offenses, and
appeals for law enforcement When two police officers arrived at Maldonado’s home,
Criminal Law they observed appellant on the porch, using a cell phone.
Rebuttal Argument; Responsive Statements Appellant stood, removed a handgun from his pocket, and
and Remarks pointed it at his head. Both officers drew their weapons
and, while attempting to calm appellant, they moved near
Jury argument may encompass a summation of their patrol car to seek cover. Appellant refused to put
the evidence, reasonable deductions which can down his gun, and he ran away from the house, hiding
be drawn from the evidence, answers to behind a truck in a nearby parking lot. Backup officers
opposing counsel’s argument, and a plea for law arrived. Appellant stated he would not put the gun down
enforcement. unless he went down with it, and he fired the gun at an
officer who was moving to a secure location in the
Cases that cite this headnote parking lot. The shot did not hit the officer. A police
SWAT team arrived, following appellant as he jumped
the fence of the parking lot and ran to another location,
breaking into a truck. Appellant was shot and injured after
pointing his gun at one of the SWAT team officers.

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Ibarra v. State, --- S.W.3d ---- (2015)

A jury found appellant guilty of the first-degree felony four days prior to trial, which was heard by the trial court
offense of aggravated assault against a public servant,1 the same day. The trial court noted the case had been
and found two enhancement paragraphs to be true. The pending for a very long time and was preferentially set,
jury assessed punishment at fifty years’ confinement. made a finding that appellant refused to cooperate with
counsel, and denied the motion.

Appellant asserts here he was deprived of his
constitutional “right to counsel of his choice” because the
II. COMPLAINTS REGARDING COUNSEL OF counsel his family hired was not of his choice, and the
APPELLANT’S CHOICE trial court should have appointed different counsel.
[1]
In his first issue and second issues, appellant contends
he was denied the right to counsel of his choice under the
United States Constitution and the Texas Constitution. A. Complaint under the United States and Texas
Constitutions
About eight months before the case proceeded to trial in [2] [3]
The Sixth Amendment to the United States
April 2013, appellant filed a handwritten “Motion to Constitution and the Texas Constitution guarantee a
Dismiss Defendant’s Attorney of Record, ... and Appoint criminal defendant the right to have assistance of counsel.
Defendant a Public Defender,” alleging he “employed See U.S. Const., amend. VI (providing, “In all criminal
[counsel] some 20 months previous to the date of the prosecutions, the accused shall enjoy the right to a speedy
filing of this motion.” Appellant further asserted counsel and public trial ... and to have the assistance of counsel
had failed to provide “reasonably effective assistance” for his defense”); Tex. Const. art. I, § 10 (providing, “In
because appellant had no contact with counsel in the past all criminal prosecutions the accused shall have a speedy
seven months, and that counsel had “taken no affirmative public trial ... and shall have the right of being heard by
action to preserve and to protect the valuble (sic) rights of himself or counsel or both....”); Tex. Code Crim. Proc.
the Defendant.” Appellant’s motion alleged counsel told Ann. art. 1.05 (West, Westlaw through 2013 3d C.S.);
him, “we do not have O.J. Simpson money to pay for Gonzalez v. State, 117 S.W.3d 831, 836–37
expert witnesses on forensic’s (sic) and ballistics.” (Tex.Crim.App.2003). An element of this constitutional
Appellant did not notify the trial court he was indigent or right to assistance of counsel is the right of a defendant
without the financial ability to obtain counsel. Appellant who does not require appointed counsel to choose who
requested the trial court dismiss retained counsel and will represent him. See United States v. Gonzalez–Lopez,
“appoint a new counsel/Public Defender to act in (sic) 548 U.S. 140, 144, 126 S.Ct. 2557, 2561, 165 L.Ed.2d
behalf of Defendant.” The record does not contain an 409 (2006); Gonzalez, 117 S.W.3d at 836–37. But, this
order in which the trial court disposed of this motion. 2 right is not absolute. See Gonzalez–Lopez, 548 U.S. at
144, 126 S.Ct. at 2561; Gonzalez, 117 S.W.3d at 837; see
*2 The week prior to trial, appellant asked to make a also Wheat v. U.S., 486 U.S. 153, 158–59, 108 S.Ct.
record to renew his complaints regarding counsel, 1692, 1697–98, 100 L.Ed.2d 140 (1988) (“[W]hile the
asserting (1) appellant had been asking for counsel to right to select and be represented by one’s preferred
remove himself from the case, (2) appellant’s counsel had attorney is comprehended by the Sixth Amendment, the
been “defective and ineffective in filing proper motions,” essential aim of the Amendment is to guarantee an
and (3) appellant had been requesting but had been denied effective advocate for each criminal defendant rather than
a right to a speedy trial, and he had not “been treated to ensure that a defendant will inexorably be represented
fair.” Appellant complained he had been working with by the lawyer whom he prefers.”). For example, a
retained counsel “for too long already” and “on the defendant has no right to be represented by an advocate
record, he’s fired. My family has called him and fired who is not a member of the bar, an attorney whom he
him.” Counsel questioned appellant who admitted there cannot afford or whom declines to represent him, or an
had been numerous trial dates (over a dozen resets), he attorney who has a previous or ongoing relationship with
had refused to speak with counsel for almost a year, he an opposing party. See Gonzalez, 117 S.W.3d at 837.
had refused to sign trial reset forms, and he had
continually ordered counsel to “Get away, you’re fired.” [4]
While there is a strong presumption in favor of a
The trial court advised appellant to work with counsel and defendant’s right to retain counsel of choice, this
confirmed retained counsel would continue to represent presumption may be overridden by other important
appellant for purposes of trial. considerations relating to the integrity of the judicial
process and the fair and orderly administration of justice.
Counsel for appellant filed a written motion to withdraw Id.; see also Gonzalez–Lopez, 548 U.S. at 152, 126 S.Ct.
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Ibarra v. State, --- S.W.3d ---- (2015)

at 2566–67 (stating “[w]e have recognized a trial court’s court, did appellant claim to be indigent, and he made no
wide latitude in balancing the right to counsel of choice showing that he was indigent. See Gray, 744 S.W.2d at
against the needs of fairness and against the demands of 607.
its calendar.”) (citations omitted); Ex parte Windham, 634
S.W.2d 718, 720 (Tex.Crim.App.1982) (listing factors to
be weighed in balancing defendant’s right to retained
counsel of choice against trial court’s need for prompt and B. Complaint under the Texas Code of Criminal
efficient administration of justice). Nonetheless, when a Procedure
[6]
trial court unreasonably or arbitrarily interferes with the Under his second issue, appellant also complains the
defendant’s right to choose retained counsel, its actions trial court erred in refusing to allow his counsel to
rise to the level of a constitutional violation. See withdraw, not inquiring of his indigency, and not
Gonzalez, 117 S.W.3d at 837. appointing counsel under Texas Code of Criminal
Procedure Article 1.051. See Tex. Code Crim. Proc. Ann.
*3 In the case under review, appellant’s family apparently art. 1.051 (West 2014).
retained a lawyer on his behalf to represent him. In his
[7]
motion to dismiss, and at several hearings, appellant We apply an abuse of discretion standard to determine
expressed dissatisfaction with this lawyer and a desire to whether the trial court erred in denying appellant’s
terminate this lawyer’s representation of appellant. The counsel motion to withdraw. King v. State, 29 S.W.3d
record also reflects that appellant refused on various 556, 566 (Tex.Crim.App.2000). If the ruling falls within
occasions to communicate with his lawyer about his case. the “zone of reasonable disagreement,” we must affirm
Nonetheless, the record does not reflect that appellant or the trial court. See Gonzalez, 117 S.W.3d at 836–37;
any other person on his behalf took any steps to retain Hobbs v. State, 359 S.W.3d 919, 926 (Tex.App.–Houston
another lawyer to represent appellant. Appellant did not [14th Dist.] 2012, no pet.). The trial court has discretion
request additional time to attempt to retain another to determine whether withdrawal should be granted,
lawyer, nor did appellant state that he no longer could balancing the matters asserted with the potential for
afford retained counsel. Appellant did not express any obstruction to the judicial process or interference with the
desire to represent himself. Instead, appellant asked the administration of justice. King, 29 S.W.3d at 566; see also
trial court to appoint a lawyer to represent him, but Coleman v. State, 246 S.W.3d 76, 86
appellant did not assert that he was indigent or submit (Tex.Crim.App.2008) (approving of denial of change in
proof that he was indigent. Appellant had an opportunity counsel where delay in the administration of justice would
to retain a different lawyer, and appellant had no right to have resulted). Appellant’s counsel filed a motion to
be represented by a court-appointed lawyer of his withdraw less than a week before trial. Given the
choosing. See Gonzalez–Lopez, 548 U.S. at 151, 126 S.Ct. proximity of the trial setting, the length of time the case
at 2565; Dunn v. State, 819 S.W.2d 510, 520 had been pending, and appellant’s failure to take steps to
(Tex.Crim.App.1991); see also Robinson v. State, 240 retain another lawyer or submit proof of indigency, the
S.W.3d 919, 922 (Tex.Crim.App.2007) (holding a trial trial court did not abuse its discretion in denying
court is free to disregard any pro se motions presented by counsel’s motion to withdraw. See King, 29 S.W.3d at
a defendant who is represented by counsel). We conclude 566; Hobbs, 359 S.W.3d at 926–27.
that the trial court did not unreasonably or arbitrarily
[8]
interfere with appellant’s right to choose retained counsel. Appellant also asserts that the trial court should have
See Gonzalez, 117 S.W.3d at 837–46. followed the dictates of Article 1.051(b), (c) and was
required to appoint counsel to represent him. That statute
[5] provides in pertinent part as follows:
To the extent appellant complains that the trial court
violated his rights under the United States Constitution
and the Texas Constitution by failing to appoint counsel (b) ... “indigent” means a person
to represent him, that complaint lacks merit because a trial who is not financially able to
court does not have a duty to appoint counsel until the employ counsel.” (c) An indigent
defendant shows he is indigent. See Gray v. Robinson, defendant is entitled to have an
744 S.W.2d 604, 607 (Tex.Crim.App.1988). A trial court attorney appointed to represent
has no duty to appoint counsel when a defendant has him....
“managed to retain counsel” or “has made no showing of
indigency.” Id.; Easily v. State, 248 S.W.3d 272, 281 Tex. Code Crim. Proc. Ann. art. 1.051. In the trial court,
(Tex.App.–Houston [1st Dist.] 2007, pet. ref’d). Neither although appellant requested appointment of counsel, he
in his motion, nor in his pre-trial exchange with the trial did not assert he was indigent, make any showing that he
was indigent, or request a determination of indigency. A
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Ibarra v. State, --- S.W.3d ---- (2015)

trial court does not have a duty to appoint counsel until behavior and were motivated by sound trial strategy.
the defendant shows he is indigent. See Gray, 744 S.W.2d Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Thompson v.
at 607; Easily, 248 S.W.3d at 281. Because appellant did State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Thus
not show he was indigent, the trial court was not required “the defendant must overcome the presumption that,
by Article 1.051 to appoint counsel to represent him, and under the circumstances, the challenged action ‘might be
thus the trial court did not err in failing to appoint considered sound trial strategy.’ ” Thompson, 9 S.W.3d at
counsel. See Gray, 744 S.W.2d at 607; Easily, 248 812. The presumption is overcome only when evidence of
S.W.3d at 281. ineffective assistance is “firmly founded and affirmatively
demonstrated in the record.” Melancon v. State, 66
*4 [9]Appellant also contends that, after the trial court was S.W.3d 375, 378 (Tex.App.–Houston [14th Dist.] 2001,
made aware counsel was not his attorney of choice and pet. ref’d) (citing McFarland v. State, 928 S.W.2d 482,
had been fired and that appellant wanted the trial court to 500 (Tex.Crim.App.1996)). The totality of the
appoint counsel, it was the trial court’s duty to inquire representation is the appropriate context; counsel is not to
into whether appellant was indigent, that is, not be judged on isolated portions of his representation.
financially able to employ counsel. The parties have not Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Our review
cited, and research has not revealed, any statute or legal of counsel’s performance is highly deferential, beginning
authority addressing this issue. We conclude that with the strong presumption counsel’s actions were
appellant has not shown that the trial court erred in failing reasonably professional and motivated by sound trial
to inquire as to whether he was indigent. The trial court strategy. See Jackson v. State, 877 S.W.2d 768, 771
was not required to conduct an inquiry on its own motion (Tex.Crim.App.1994).
as to whether appellant was indigent. See Whitehead v.
[10] [11] [12] [13]
State, 130 S.W.3d 866, 874 (Tex.Crim.App.2004); Gray, Where there is no record explaining the
744 S.W.2d at 607; Easily, 248 S.W.3d at 281. underlying reasons for counsel’s conduct, we will not
speculate about them. Perez v. State, 56 S.W.3d 727, 731
Having rejected the arguments under appellant’s first and (Tex.App.–Houston [14th Dist.] 2001, pet. ref’d) (citing
second issues, we overrule these issues. Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.–Houston
[1st Dist.] 1996, no pet.)); see also Ex parte Varelas, 45
S.W.3d 627, 632 (Tex.Crim.App.2001).3 The presumption
is not rebutted where the record is silent as to counsel’s
rationale for his trial strategy. Perez, 56 S.W.3d at 732.
II. CLAIM REGARDING INEFFECTIVE We will not find ineffective assistance unless counsel’s
ASSISTANCE OF COUNSEL conduct was “so outrageous that no competent attorney
would have engaged in it.” Goodspeed v. State, 187
In his third issue, appellant contends he was denied S.W.3d 390, 392 (Tex.Crim.App.2005).
effective assistance of counsel at the punishment phase of
the trial.

B. Analysis
*5 Appellant contends his counsel performed deficiently
A. Standard of review and applicable law in two respects: (1) by failing to object to the testimony of
To prevail on an ineffective-assistance claim, appellant Cynthia Glenn, a juvenile probation officer for Harris
must establish (1) trial counsel’s representation fell below County, and (2) failing to object to purportedly improper
the objective standard of reasonableness, based on jury argument.
prevailing professional norms, and (2) there is a
reasonable probability that the result of the proceeding
would have been different but for counsel’s deficient
performance. Strickland v. Washington, 466 U.S. 668, 1. Failure to object to Glenn’s testimony
688–92, 104 S.Ct. 2052, 2065–2067, 80 L.Ed.2d 674 [14]
Glenn testified that, in her role as a juvenile probation
(1984); see Hernandez v. State, 726 S.W.2d 53, 55–57 officer, she interviews juveniles to obtain a sense of their
(Tex.Crim.App.1986) (holding Strickland standard family and school dynamic. She reviews the juvenile
applies to ineffective-assistance claims under Texas offense tracing (“JOT”) reports to understand what
Constitution). occurred with the juveniles and what they understood.
She does not interview them about guilt or innocence. The
We indulge a strong presumption that counsel’s actions interviews help determine if the juvenile should be
fell within the wide range of reasonable professional certified as an adult relative to the charges.
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Ibarra v. State, --- S.W.3d ---- (2015)

context of an interview. There was no suggestion of
In 1997, Glenn reviewed appellant’s JOT concerning a custodial interrogation. See Payne v. State, 579 S.W.2d
robbery in which he was involved. At that interview, 932, 933 (Tex.Crim.App. [Panel Op.] 1979) (holding
Glenn learned appellant pointed a gun at someone to statements made when not in custody are admissible).
commit a robbery of a bicycle and other property.
Appellant stated on the day of the 1997 arrest he was
“high on marijuana” and had “drunk some alcohol.” Prior
to this arrest, appellant had been arrested for marijuana 2. Failure to object to jury argument
possession. Appellant admitted he associated with the *6 [16]Lastly, appellant complains counsel failed to object
Barrio Denver Harbor Click gang. Glenn recalled during closing argument when the State mentioned
appellant did not appear to be taking the robbery charge information related to prior convictions in the juvenile
seriously; he stated the gun used in the robbery was not offense reports.
loaded, so it did not appear to Glenn that his actions were
[17] [18]
serious or important to him. Closing arguments are made to assist the jury in its
analysis of the evidence presented at trial in order to reach
First, appellant urges it was “elementary” that Glenn a just determination. See Temple v. State, 342 S.W.3d
could not “admissibly read” from a juvenile offense 572, 602–603 (Tex.App.–Houston [14th Dist.] 2010),
report, and it was improper to allow testimony from her aff’d 390 S.W.3d 341 (Tex.Crim.App.2013). Jury
about her conversations with appellant. See Tex. R. Crim. argument may encompass a summation of the evidence,
App. Evid. 801, 802. Even if this testimony were reasonable deductions which can be drawn from the
improper and would have been excluded upon the evidence, answers to opposing counsel’s argument, and a
objection of appellant’s counsel, in light of evidence of plea for law enforcement. Id. (citing Brown v. State, 270
appellant’s prior convictions4 and the evidence offered in S.W.3d 564, 570 (Tex.Crim.App.2008)). The record
the guilt-innocence phase, which was also admitted in the reveals the prosecutor properly summarized the evidence
punishment phase,5 we conclude that appellant has not adduced at trial, asked the jury to consider appellant’s
shown that there is a reasonable probability that the result criminal background in assessing punishment, and
of the punishment phase would have been different if this responded to opposing counsel’s argument. An attorney’s
testimony had not been admitted. failure to object to proper argument cannot be ineffective
assistance. See Richards v. State, 912 S.W.2d 374, 379
[15]
Next, appellant contends counsel should have asked for (Tex.App.–Houston [14th Dist.] 1995, pet. ref’d).
a hearing to test the admissibility under Texas Family
Code Section 51.095 of appellant’s statements to Glenn. In summary, having rejected all of appellant’s ineffective-
See Tex. Fam. Code § 51.095(b)(1), (2) (West 2011). assistance claims, we overrule his third issue.
Statements of a child are not considered inadmissible if
the statement does not stem from an interrogation or, if We affirm the trial court’s judgment.
voluntary and they have a bearing on the credibility of the
child as a witness, or if recorded. See id. Appellant has
not shown these statements were inadmissible. Glenn’s
testimony suggests the statements were made in the

Footnotes
1 See Tex. Penal Code Ann. §§ 22.01(a)(2), (b)(1); 22.02(a)(2), (b)(2)(B) (West 2011) (providing that person commits aggravated
assault, as a first-degree felony, if he intentionally and knowingly threatens with imminent bodily injury a person the actor knows
is a public servant, while the public servant is lawfully discharging an official duty, and the actor uses or exhibits a deadly
weapon).
2 Appellant attempted to appeal the orders denying motions to recuse in Cause Nos. 14–12–01152–CR and 14–12–00152–CR, which
we dismissed because they were interlocutory. In his appellate brief, appellant makes no complaint about them.
3 Appellant did not raise in his motion for new trial the ineffective-assistance claim. While the general rule is an alleged error must
be first brought to the attention of the trial court before it can be heard on appeal, an ineffective-assistance claim will generally not
be foreclosed because of an appellant’s inaction at trial. See Robinson v. State, 16 S.W.3d 808, 809 (Tex.Crim.App.2000).
4 1997 robbery (sentence of two years in TDC), 1999 misdemeanor possession of marijuana, and criminal trespass, 2000
misdemeanor possession of marijuana, 2004 felony possession of over 400 grams of cocaine (sentence of 15 years in TDC), and

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Ibarra v. State, --- S.W.3d ---- (2015)

2011 misdemeanor trespass.
5 Evidence included appellant’s harassment of Maldonado, pointing his gun at and running away from police officers, disobeying
their orders, firing his gun, and his inability or refusal to take advantage of numerous offers of second chances.

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