Guzman, Edward

59«H5
NO. PD-0594-15
">D!

IN THE
RIGINAL
COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

EDWARD GUZMAN,
APPEALS RfcCbii
COUBT PETITIONER, COURT OF CRIMINAL
2^5
f>BG U V.
AUG H 2015
C\erK THE STATE OF TEXAS,
Ak>cA Acosta.
RESPONDENT. Abe! Acosta, Cler

PETITION IN CAUSE NO. CR-12-0006, FROM THE
22ND JUDICIAL DISTRICT COURT OF HAYS COUNTY, TEXAS,
AND APPEAL NO. 03-13-00131-CR,
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS

EDWARD GUZMAN'S

PETITION FOR DISCRETIONARY REVIEW

Edward Guzman # 1845822
Petitioner, Pro Se
French M. Robertson Unit
12071 F.M. 3522
Abilene, Texas 79601
(325) 548-9035
 TABLE OF CONTENTS;

INDEX OF AUTHORITIES ii
STATEMENT REGARDING ORAL ARGUMENT iv
STATEMENT REGARDING LIBERAL SCRUTINY iv
STATEMENT OF THE CASE iv
PROCEDURAL HISTORY iv
QUESTIONS PRESENTED FOR REVIEW 1
STATEMENT OF FACTS 1
ARGUMENT:
QUESTION NO. 1 - Did the Court of Appeals err in finding that Petitioner's
claims of Ineffective Assistance of Counsel were merely
speculative and did not constitute a demonstration, founded
in the record, that no reasonable trial strategy existed? ... 2
QUESTION NO. 2 - Did the Court of Appeals err in finding that the trial
court did not abuse its discretion in allowing irrelevant
and unfairly prejudicial extraneous offense evidence to be
admitted during trial? 6
OJJESTION NO. 3 - Did the Court of Appeals err in finding that the erroneous
self-defense jury instruction did not harm Petitioner? 7
QUESTION NO. 4 - Did the Court of Appeals err in finding that Petitioner
did not properly preserve his complaint of the State's
improper jury arguments, thereby precluding it from being
raised on appeal? 9

PRAYER FOR RELIEF 11
UNSWORN DECLARATION 11
CERTIFICATE OF SERVICE 12
APPENDIX - Memorandum Opinion of Third Court of Appeals END

l.
 INDEX OF AUTHORITIES;

Cases;

Federal;

• Brown v. Allen, 344 U.S. 445 (1953) iv
• Bushv. U.S., 823 F.2d 909 (5th Cir. 1987) iv
• Griffin v. California, 380 U.S. 609 (1965) 10
• Haines v. Kerner, 404 U.S. 519-520 (1972). iv
• Hinton v. Alabama, 134 S.Ct. 1081 (2014) 5
• Kiamelman v. Morrison, 477 U.S. 365 (1986) 5
• Kotteakos v. United States, 328 U.S. 750 (1946). 7,11
• Strickland v. Washington, 466 U.S. 668 (1984) 2,3,5
• Williams v. Taylor, 529 U.S. 362 (2000) 5

State;

• Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985) 8,9
• Barrios v. State, 283 S.W.3d 348 (Tex.Crim.App. 2009) 8,9
• Bone v. State, 77 S.W.3d 828 (Tex.Crim.App. 2002) 2
• Brown v. State, 814 S.W.2d 477 (Tex.App. - Dallas 1991) 10
) De La Paz v. State, 279 S.W.3d 336 (Tex.Crim.App. 2009) 6,7
• Jackson v. State, 973 S.W.2d 954 (Tex.Crim.App. 1998) 2
• King v. State, 953 S.W.2d 266 (Tex.Crim.App. 1997) 7,11
• Lopez v. State, 793 S.W.2d 738 (Tex.App. - Austin 1990) 10
• Mansfield v. State, 306 S.W.3d 773 (Tex.Crim.App. 2010 4,5
• Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990) 6
• Montoya v. State, 744 S.W.2d 15 (Tex.Crim.App. 1987) 10,11
• Morales v. State, 375 S.W.3d 1 (Tex.Crim.App. 2011) 8,9
• Palasota v. State, 460 S.W.2d 137 (Tex.Crim.App. 1970) 4
• Rankin v. State, 974 S.W.2d 707 (Tex.Crim.App. 1996) 6
• Scott v. State, 222 S.W.3d 820 (Tex.App. - Houston [14th Dist.] 2007) 3
• Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App. 1999) 2
• Trevino v. State, 577 S.W.2d 242 (Tex.Crim.App. 1979) 4
• Walker v. State, 440 S.W.2d 653 (Tex.Crim.App. 1969) 3,4
• Wesbrookv. State, 29 S.W.3d 103 (Tex.Crim.App. 2000) ..10,11

li.
Statutes and Rules;

TEX. CODE CRIM. PROC. 36.19 8
37.07 § 4 10,11
TEX. PENAL CODE § 20.02 iv
§ 20.04 iv
§ 22.02 iv
§ 9.31(a) 8
TEX.R.APP.PROC. 44.2(b) 7
68.5 1
TEX.R.EVID. 401 6,7
402 6,7
403 6,7
404(b) 6,7
608 3

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in
 STATEMENT REGARDING ORAL ARGUMENT;

The Petitioner is an inmate in the Texas Department of Criminal Justice and
thus is not eligible to present any oral argument before the Court; if the Court
grants Discretionary Review and recognizes any issue as needing oral argument,
Petitioner requests the Court appoint counsel to represent him in such proceedings.

STATEMENT REGARDING LIBERAL SCRUTINY:

Petitioner is a layman of the law, unskilled and without experience in the
drafting of legal papers; therefore, he is entitled to a review that comes under a
less stringent standard than those formal proceedings submitted by artful and
skilled practitioners of the law; and thus, his litigations should be construed
liberally under Haines v. Kerner, 404 U.S. 519-520 (1972); Brown v. Allen, 344 U.S.
445, 502 (1953); Bushy. U.S., 823 F.2d 909, 910 (5th Cir. 1987).

STATEMENT OF THE CASE;

This is an appeal from the conviction of four felony offenses - Aggravated
Kidnapping, Aggravated Assault with a Deadly Weapon, Aggravated Assault Causing
Serious Bodily Injury, and Unlawful Restraint - all arising from the same criminal
episode, under Texas Penal Code §§ 20.04, 22.02, 20.02. Petitioner was acquitted
of an additional charge of Attempted Murder. The jury assessed punishment of conf-
inemtne in the Texas Department of Crimnal Justice for 60 years for the kidnapping,
20 years and 60 years for the assaults, and 10 years for the unlawful restraint.

PROCEDURAL HISTORY:

On January 18, 2012, Petitioner was indicted for the felony offenses of
Aggravated Kidnapping, Attempted Murder, Aggravated Assault with a Deadly Weapon,
Aggravated Assault Causing Serious Bodily Injury, Unlawful Restratint, Theft of a
Firearm, and Credit Card Abuse. Prior to trial, the State abandoned its allegation
of theft of a firearm and credit card abuse. On February 11, 2013, a jury found
Petitioner guilty of the offenses of Aggravated Kidnapping, Aggravated Assault
with a Deadly Weapon, Aggravated Assault Causing Serious Bodily Injury, and Unlaw
ful Restraint. The jury appropriately acquitted Petitioner of the offense of Atte
mpted Murder. The above mentioned cause was tried under Cause No. CR-12-0006, in
the 22nd Judicial District Court of Hays County, Texas. Petitioner timely filed
Notice of Appeal on February 21, 2013, and a Motion For New Trial on March 4, 2013
iv.
which was overruled by operation of law. Appeal was timely perfected in the Third
Court of Appeals, at Austin, Texas, in Appeal No. 03-13-00131-CR. On May 13, 2015,
said appeal was affirmed in an unpublished opinion (Guzman v. State, No. 03-13-
00131-CR, May 13, 2015)(not designed for publication). No Motion For Rehearing was
filed. Petitioner filed a motion for extension of time in which to file Petition
for Discretionary Review, which was granted on May 19, 2015, and the current dead
line for such filing was extended to August 11, 2015. This petition is therefore
timely filed.

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v.
 QUESTIONS PRESENTED FOR REVIEW:

1. Did the Court of Appeals err in finding that Petitioner's claims of Ineffective
Assistance of Counsel were merely speculative and did not constitute a demonstr
ation, founded in the record, that no reasonable trial strategy existed ?

2. Did the Court of Appeals err in finding that the Trial Court did not abuse its
discretion in allowing irrelevant and unfairly prejudicial extraneous offense
evidence to be admitted during trial ?

3. Did the Court of Appeals err in finding that the erroneous self-defense jury
instruction did not harm Petitioner ?

4. Did the Court of Appeals err in finding that Petitioner did not properly preser
ve his complaint of the State's improper jury arguments, thereby precluding it
from being raised on appeal ?

STATEMENT OF FACTS:

Due to the elaborate nature of the facts of this case, the facts relevant to
the issues raised will be discussed in the argument section with the respective
question presented for review. A statement of facts in both places would require
Petitioner to exceed the page limit mandated by Rule 68.5 of the Texas Rules of
Appellate Procedure.

[This space intentionally left blank]

1.
QUESTION ONE: [restated]:

Did the Court of Appeals err in finding that Petitioner's claims of Ineffective
Assistance of Counsel were merely speculative and did not constitute a demonstrat
ion, founded in the record, that no reasonable trial strategy existed?
Petitioner's trial attorney rendered ineffective assistance of counsel, in
at least two ways: (1) When he failed to object to the testimony of the responding
officer in this case, when he testified that victim was being truthful, Petitioner
was untruthful in his statements to police, and Petitioner's girlfriend's testimo
ny was rehearsed; and (2) When he failed to prove up Petitioner's eligibility for
probation at trial.
To prevail on a claim of ineffective assistance of counsel, Petitioner must
show that (1) trial counsel's representation was deficient in that it fell below
an objective standard of reasonableness; and (2) counsel's deficient performance
prejudiced Petitioner so that there is a reasonable probability that the result of
the proceeding would have been different, but for the deficient performance of
counsel. Strickland v. Washington, 466 U.S. 668 (1984); Thompson v. State, 9 S.W.
3d 808, 812 (Tex.Crim.App. 1999). Petitioner must support his claims by a prepond
erance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998).
Often times, the record on direct appeal is insufficient to determine if a
defendant received ineffective assistance of counsel; however, where there can be
no reasoned trial strategy for counsel's choices, an Appellate Court may decide
the issue on the record before it. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.
2002); Thompson, 9 S.W.3d at 813, 816. Petitioner contends that there can be no
"reasoned trial strategy" for his trial counsel's ineffectiveness, therefore the
Court of Appeals should have found counsel ineffective on the record before it.

A. Counsel's failure to object to testimony of the responding officer when he
testified that the victim in this case was being truthful, Petitioner was not
truthful in his statements to police, and Petitioner's girlfriend's testimony
was rehearsed.

Counsel allowed the responding officer, Officer Cumberland, to testify
without objection, that the victim's (Danielle Gay) statements to law enforcement
were truthful. (RR3:112). In fact, Cumberland testified that she had "been in the

Note: "RR" denotes the Reporter's Record in this case, and will be cited with the
volume number ":" page number.

2.
business for twelve years and everything that [Gay] said, I felt she was being
honest and truthful." Next, Cumberland testified that she felt Petitioner's state
ments to law enforcement were untruthful and Ofelia's (Petitioner's girlfriend)
initial statement to police, in which she did not inculpate herself or Petitioner,
seemed "rehearsed" as if she had just spoken to Petitioner. (RR3:73, 183).
While Texas Rules of Evidence 608 permits a witness to testify to the gene
ral reputation of a witness for truthfulness, if that witness has personal knowle
dge of the witness's reputation for such, it does not allow one witness to testify
that another witness is telling the truth or lying. TEX.R.EVID. 608; Scott v.
State, 222 S.W.3d 820, 825-826 (Tex.App. - Houston [14th Dist.] 2007).
There can be absolutely no trial strategy in allowing a patrol officer to
testify that the victim is telling the truth and your client is lying in violation
of the Texas Rules of Evidence; especially when the evidence against your client
is largely the testimony of the alleged victim. Counsel's performance was undenia
bly harmed by counsel's deficient performance because what more damaging evidence
could there be in a case in which there are two sides to a story but the testimony
of a law enforcement officer that one side is telling the truth and the other is
not? In that situation, a jury could not help but be swayed by testimony of this
nature. That is why testimony of this kind is inadmissible under the Rules of Evi
dence, to prevent an unfair outcome of a defendant's trial. See TEX.R.EVID. 608;
Scott, 222 S.W.3d at 825-826.
Petitioner has established that his counsel's performance was deficient in
this respect, and the outcome of his trial was affected by counsel's deficient
performance. Strickland, 466 U.S. at 684. A reasonable probability exists that but
for counsel's errors, the outcome of Petitioner's trial would have been different,
and no possible trial strategy can excuse such a tremendous error. That being the
case, the Court of Appeals erred in not reversing Petitioner's convictions on his
substantial claim of ineffective assistance of counsel.

B. Counsel's failure to prove up Petitioner's eligibility for probation at trial.
Counsel provided ineffective assistance of counsel in failing to prove up
Petitioner's eligibility for probation at trial. It has long been held that a jury
may not recommend probation unless the sworn motion for probation is timely filed
and the evidence shows that the defendant has never been convicted of a felony in
this state or anyother state. Walker v. State, 440 S.W.2d 653, 659 (Tex.Crim.App.
1969). The mere filing of application for probation is insufficient to establish
probation eligibility, and the trial court is not authorized to include a probati-
3.
on instruction without supporting evidence. Palasota v. State, 460 S.W.2d 137,
140-141 (Tex.Crim.App. 1970). To prove probation eligibility, the defendant need
not personally take the witness stand and testify that he has never been convicted
of a felony offense. Trevino v. State, 577 S.W.2d 242, 243 (Tex.Crim.App. 1979).
Instead, he may obtain such evidence from others who sufficiently know him. Id.
For example, a family member, employer, or close friend can testify as to a defen
dant's probation eligibility and this is sufficient to show probation eligibility.
Mansfield v. State, 306 S.W.3d 773 (Tex.Crim.App. 2010).
At the punishment phase of trial, Defense Counsel announced that he was
resting Petitioner's case without calling any witnesses. (RR7:60). The State poin
ted out to the Court that without calling any witnesses, Petitioner would be waiv
ing his right to have the jury consider probation as his punishment because he had
not called a witness to testify that he was eligible for probation. (RR7:60-63).
Defense Counsel incorrectly argued that a live witness was not necessary
because he had filed sworn application for probation, and that the application
alone was enough for the jury to consider probation as a punishment option. (RR7:
60-63). The Court explained to Defense Counsel that the law requires that he prod
uce evidence of Petitioner's probation eligibility and that simply filing an appl
ication was not sufficient. (RR7:60-63). Noting a potential "Sixth Amendment prob
lem," the Court suggested re-opening the evidence so that Counsel could call a
witness to testify to Petitioner's probation eligibility. (RR7:60-63). Defense
Counsel asked if he could call Petitioner to testify only to his probation eligib
ility, and not subject him to cross-examination on any other issues. (RR7:60-63).
The Court explained that if Petitioner testified he would be subject to "wide-open"
cross-examination. (RR7:60-63). Counsel then made the decision to close the evide
nce without calling a witness to testify about Petitioner's probation eligibility.
(RR7:64). In defendaning his decision, Defense Counsel stated, "I was under the
impression his sworn affidavit was sufficient to take the issue to the jury. They
still have to determine whether or not they believe, based on the information,
that he's eligible." (RR7:65). Defense Counsel then attempted to limit his exposu
re to a claim of ineffective assistance of counsel by calling Petitioner to testi
fy outside the presence of the jury that he did not want to testify. (RR7:65-67).
Quite simply, Defense Counsel was not prepared to present evidence of Peti
tioner's probation eligibility because he did not know he was required to do so
despite the fact that that has been the law since at least 1969. See Walker v.
State, 440 S.W.2d 653, 659 (Tex.Crim.App. 1969). Counsel then tried to remedy his
4.
ignorance of the law by having his client unknowingly waive counsel's Constitutio
nal ineffectiveness. However, Petitioner was not the only witness who could have
testified to Petitioner's probation eligibility. As discussed above, a family mem
ber, employer, or close friend can testify to a defendant's probation eligibility
and this is sufficient to show that the defendant is, in fact, eligible for proba
tion. Mansfield v. State, 306 S.W.3d 773 (Tex.Crim.App. 2010). There can be no
trial strategy in depriving your client of the possibility of probation. In fact,
the record in this case shows that counsel's conduct was not based on trial strat
egy, but rather, on his ignorance of the law. Because Defense Counsel was not pre
pared to prove up Petitioner's eligibility for probation, counsel's performance
was deficient. Strickland, 466 U.S. at 684.
The U.S. Supreme Court has recently upheld that Counsel's ignorance of the
law does not excuse his errors. See Hinton v. Alabama, 134 S.Ct. 1081 (2014). An
attorney's ignorance of a point of law that is fundamental to his case combined
with his failure to perform basic research on that point is quintessential example
of unreasonableness under Strickland. See, e.g., Williams v. Taylor, 529 U.S. 362
(2000); and Kinrnekian v. Morrison, 477 U.S. 365 (1986).
Petitioner was harmed by counsel's deficient performance because he waived
any chance Petitioner had of receiving probation for punishment. While the State
may continue to argue, and the Court of Appeals relied on, the sentence Petitioner
received indicates that the jury would not have considered probation, one must
remember that the State improperly argued that "60 doesn't mean 60," and that Pet
itioner would receive good time, parole, and "credit after credit." (RR7:90-91).
The State unfairly influenced the jury to assess a harsher punishment after Petit
ioner's own attorney prevented the possibility of probation. Further, counsel rai
sed the floor of what the jury could consider on the range of punishment from pro
bation to five years in prison on at least two of Petitioner's sentences, indicat
ing that Petitioner's sentence should be harsher than what he was originally expo
sed to. Therefore, Petitioner was harmed by his counsel's deficient performance.
Strickland, 466 U.S. at 684.
Petitioner has met both prongs of the Strickland test in showing by a prep
onderance of the evidence that his counsel's deficient performance affected the
outcome of his trial. Strickland, 466 U.S. at 684. This claim of ineffective assi
stance of counsel is blatant in the record, therefore the Court of Appeals erred
in finding that Petitioner's claims were merely speculative and did not constitute
a demonstration, founded in the record, that no reasonable trial strategy existed.
5. •
QUESTION TWO: [restated]:

Did the Court of Appeals err in finding that the Trial Court did not abuse its
discretion in allowing irrelevant and unfairly prejudicial extraneous offense evi
dence to be admitted during trial?
Petitioner contends that the trial court abused its discretion in admitting
evidence of alleged prior extraneous offenses. Specifically, the Court improperly
allowed Gay (the alleged victim) to testify to Petitioner's alleged bad character
in violation of Texas Rules of Evidence 404(b). The complained-of testimony was
also irrelevant and unfairly prejudicial.
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. TEX.R.EVID.
404(b). However, it may be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident. TEX.R.EVID. 404(b). The rule excludes evidence that is offered for
purpose of proving bad character and hence conduct in conformity with that bad
character. De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009), citing
Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). A trial court's ruling
on the admissibility of extraneous offense evidence is reviewed under an abuse of
discretion standard. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App. 1990).
Evidence is relevant if it has "any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence." TEX.R.EVID. 401; Montgomery,
810 S.W.2d at 386. "Evidence which is not relevant is inadmissible." TEX.R.EVID.
402.

Texas Rule of Evidence 403 states:

Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, conf
usion of the issues, or misleading the jury, or by considerations of
undue delay, or needless presentation of cumulative evidence.

TEX.R.EVID. 403.

Gay first testified to an attack which allegedly occurred on January 1,
2010, in which Petitioner pushed her down in their home, grabbed her ponytail, and
punched her in the face. (RR4:242-243). Petitioner objected to this testimony when
it was offered. Gay claimed that she suffered two black eyes and a bloody nose.
(RR4:243-244). Gay acknowledged that she never reported this alleged assault to
law enforcement. (RR4:245).
6.
 Gay next testified to an assault which allegedly occurred on January 3,
2011, in which Petitioner came home after a night out and began screaming at Gay.
(RR4:246). Gay claimed that Petitioner woke her up and told her to leave. (RR4:
247). Gay continued that Petitioner pushed her out of the house. (RR4:249). Gay
testified that she was forced to leave with the clothes on her back and was not
allowed home for at least a month. (RR4:254). Finally, Gay testified to an incid
ent which allegedly occurred in February or March of 2011, in which Petitioner
pulled a gun on her when she went to his home to retrieve her belongings. (RR4:
257-258). Gay claimed that Petitioner told her to leave and that she called the
police. (Rr4:259). Gay was allowed to testify further that she obtained a protec
tive order against Petitioner. (RR4:259).
None of this "evidence" showed knowledge, intent, preparation, plan, moti
ve, etc., and is, therefore, specifically excluded from Texas Rule of Evidence
404(b). All of this "evidence" was inadmissible because it did nothing more than-''
attempt to prove bad character and conduct in conformity with that bad character.
De La Paz, 279 S.W.3d at 343. In addition, this "evidence" was irrelevant^ahd
unfairly prejudicial because it did not tend to prove or disprove an element of
the offense and only served to inflame the jury. TEX.R.EVID. 401, 402, 403.
Petitioner was harmed by the erroneous admission of this^f'evidence" becau-
se his substantial rights, including his right to a fair trial, were affected by
the trial court's ruling. TEX.R.APP. 44.2(b). "A substantial right is affected
when the error had a substantial and injurious effect or influence in determining
the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997),
citing Kotteakos v. United States, 328 U.S. 750, 776 (1946). Clearly, the admiss
ion of Gay's testimony regarding extraneous offenses affected the jury's verdict
because it unfairly painted Petitioner as a violent, vengeful person in violation
of the Rules of Evidence. See King, 953 S.W.2d at 271.
The trial court clearly abused its discretion in allowing the above menti- :
oned irrelevant and unfairly prejudicial extraneous offense evidence to be admit
ted during Petitioner's trial. The Court of Appeals finding otherwise was err,
and Petitioner's conviction should have been reversed on thjr.S: point of error.

QUESTION THREE: [restated]:
Did the Court of Appeals err in finding that the erroneous self-defense jury inst
ruction did not harm Petitioner?
In the Court of Appeals* analysis of Petitioner's claim of an improper self
7.
defense jury instruction, the Court found that the instruction was error. However,
the Court went on to erroneously find that said instruction did not harm Petition
er. Petitioner asserts that he was harmed by such an instruction, and said error
should have elicited a reversal of his conviction from the Court of Appeals.
The trial court improperly instructed the jury that Petitioner had a duty
to retreat in order for the law of self-defense to apply. This instruction was
clearly erroneous and Petitioner was harmed by the instruction.
A claim of jury-charge error is reviewed under the procedure set out by the
Honorable Court of Criminal Appeals in Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim.App. 1985); Barrios v. State, 283 S.W.3d 348 (Tex.Crim.App. 2009). Pursuant
to the Court's analysis of Article 36.19 of the Texas Code of Criminal Procedure,
if there is error in the jury charge and appellant objected to the error at trial,
reversal is required if the error "is calculated to injure the rights .of the defe
ndant," which has been defined to mean that there is "some harm." Id., citing
Almanza, 686 S.W.2d at 171. If the error was not objected to, it must be "fundame
ntal" and requires reversal only if the defendant has suffered egregious harm such
that the defendant "has not had a fair and impartial trial." Id., citing Almanza,
686 S.W.2d at 171.
During the charge conference, Petitioner requested the following instructi
on, which is verbatim from the Texas Self-Defense statute:

Upon the law of self-defense, you are instructed that a person is
justified in using force against another when and to the degree he
reasonably believes the force is immediately necessary to protect
himself against the other's use or attempted use of unlawful force.

(RR5:120-121); See TEX.PENAL CODE § 9.31(a).
In charging the jury on the law of Self-Defense, the Court instructed the
jury that Self-Defense applied if Petitionee's conduct was "immediately necessary
to protect the Defendant from Danielle Gay's use or attempted use of unlawful for
ce; and that at such time a reasonable person in the Defendant's situation would
not have retreated." (CR:40-42). Petitioner clearly objected as follows: "Judge,
this talks about the duty of a defendant to retreat. That's no where in the statu
te." (RR5:121). The trial court overruled Petitioner's objection. (RR5:121-122).
In Morales v. State, this Honorable Court instructed that:

Before 2007, the deadly-force self-defense statute contained a prov
ision imposing a general duty to retreat. At that time, a jury inst
ruction regarding a general duty to retreat was appropriate. But the
statute no longer contains the language regarding a general duty to
8.
 retreat. In situations where the Legislature has not specifically
negated a duty to retreat, the prosecutor can argue the failure to
retreat as a relevant factor in determining the defendant's mental
state and the reasonableness of his conduct, but the jury cannot be
instructed regarding retreat because such an instruction would be a
comment on the weight of the evidence.

Morales v. State, 375 S.W.3d 1, 6 (Tex.Crim.App. 2011).

In Morales, the Court found that the trial court erred in including an ins
truction which required the jury to determine "whether a reasonable person would
not have retreated." Id. at 6. The Court determined that the trial court's instru
ction was an impermissible comment on the weight of the evidence and reversed the
Court of Appeals' opinion finding otherwise. Id.
The exact erroneous charge used in Morales was used in this case. Id. (CR:
40-42). Therefore, the trial court impermissibly comnented on the weight of the
evidence and that error is reversible. Id.
The Court of Appeals properly found that the improper jury charge was in
fact error, but they somehow determined that it was harmless to Petitioner.
Because Petitioner properly objected to this erroneous charge, he is only
required to show "some harm." Almanza, 686 S.W.2d at 171; Barrios, 283 S.W.3d at
348. Petitioner suffered some harm because the trial court's instruction required
him to show he should not have retreated when he had no duty to do so. This added
requirement prevented the jury from properly considering Petitioner's defense of
Self-Defense. In fact, it prevented the jury from considering self-defense at all
based on the facts of the present case. Accordingly, Petitioner's conviction shou
ld have been reversed on this point of error. The Court of Appeals blatantly erred
in finding this to be harmless error, to the Petitioner.

QUESTION FOUR: [restated]:

Did the Court of Appeals err in finding that Petitioner: did not properly preserve
his complaint of the State's improper jury arguments, thereby precluding it from
being raised on appeal?
During closing arguments at the punishment phase of trial, the prosecutor
engaged in improper jury argument. Specifically, the prosecutor agrued that Petit
ioner had not presented a case or any mitigating evidence and incorrectly advised
the jury that Petitioner would earn sentence credits, would earn good conduct time,
and would be paroled.
There are four proper areas of jury argument: (1) summation of the evidence,
9.
(2) reasonable deductions drawn from the evidence, (3) answer to opposing counsel's
argument, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115
(Tex.Crim.App. 2000), cert, denied, 532 U.S. 944 (2001).
During the punishment phase of trial, the State argued that Petitioner had
not presented a case and had not presented any evidence to mitigate his punishment.
(RR7:91). Defense counsel properly objected to the State's argument. (RR7:90-91).
It is well-settled, basic, and fundamental law that the failure of an accu
sed to testify may not be the subject of comment by the prosecution. Montoya v.
State, 744 S.W.2d 15, 34 (Tex.Crim.App. 1987), cert, denied, 487 U.S. 1227 (1988).
Comment of this nature is a violation of the privilege against sef1-incrimination
contained in Article I, § 10, of the Texas Constitution and the Fifth Amendment of
the United States Constitution made applicable to the states by the Fourteenth
Amendment. Id. at 34; Griffin v. California, 380 U.S. 609, 611 (1965); Lopez v.
State, 793 S.W.2d 738, 741 (Tex.App. - Austin 1990). A violation of this kind res
ults in fundamental error. See Brown v. State, 814 S.W.2d 477, 479-480 (Tex.App. -
Dallas 1991). Fundamental error requires reversal when the defendant's punishment
is affected by the State's jury argument. Montoya, 744 S.W.2d at 38.
In this case, Petitioner's punishment was necessarily affected by the
State's argument because the jury was told that because Petitioner did not present
a case or any mitigation evidence, there was no reason not to assess a high sente
nce. Petitioner found himself in the exact position the Constitution prohibits:
that of a defendant who is unable to respond to the State's argument and preserve
his Fifth Amendment rights. Having suffered fundamental error, which negatively
affected his punishment, Petitioner is entitled to a new punishment hearing.
Montoya, 744 S.W.2d at 38.
Next, the State argued the following:

So life doesn't mean life. 60 doesn't mean 60. You heard he got -
he'll get credit for his;:back time. He'll get good conduct time.
He'll get parole. He*11 get credit after credit from everyone. He
doesn't need anymore credit from you guys.

(RR7:90-91).

Whether a defendant receives good conduct time or parole is entirely specu
lative. TEX.CODE CRIM.PR0C. Art. 37.07 § 4. It cannot be determined whether or not
a defendant will, in fact, receive good conduct or be paroled because that determ
ination is left entirely to the discretion of the parole authorities. By arguing
to the jury that Petitioner would receive good conduct time and would be paroled,
10.
the State unfairly influenced the jury into assessing a harsher punishment than it
otherwise would have assessed.
Petitioner was harmed by the State's jury argument because his substantial
rights, including his right to a fair trial, were affected by the trial court's
ruling. TEX.R.APP.P. 44.2(b). "A substantial right is affected vfaen the error had
a substantial and injurious effect or influence in determining the jury's verdict."
King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997), citing Kotteakos v.
United States, 328 U.S. 750, 776 (1946). Undoubtedly, the State's argument affect
ed the jury's verdict because the State led the jury to believe that it needed to
assess a harsher punishment to insure Petitioner would serve a substantial portion
of the punishment assessed. See TEX.CODE CRIM.PROC. Art. 37.07 § 4; King, 953
S.W.2d at 271.
The State's jury argument was improper and harmful. See Wesbrook, 29 S.W.3d
at 115; Montoya, 744 S.W.2d at 38; TEX.CODE CRIM.PROC. Art. 37.07 § 4; King, 953
S.W.2d at 271. Therefore, Petitioner's convictions should have been reversed on
this point of error. For the Court of Appeals to find otherwise was err.

PRAYER:

For the reasons stated above, Petitioner asserts that the Court of Appeals
erred in not reversing his convictions. Petitioner prays this Honorable Court will
GRANT discretionary review and find that the Court of Appeals erred. Petitioner
further prays that the judgment of conviction in this case be reversed and remand
ed for a new trial. In the alternative, Petitioner prays that the Court grant him
a new punishment phase, in which he will not be subjected to a jury biased by the
State.

Petitioner prays for any other relief he may be entitled to.
I, Edward Guzman, TDCJ # 1845822, being presently incarcerated in the Fren
ch M. Robertson Unit of the Texas Department of Criminal Justice, in Jones County,
Texas; do hereby verify and declare under penalty of perjury that ALL statements
and other references made within this PETITION are both true and correct, as well
affered in good faith.
[Tex.Civ.Prac.& Rem.Code §132.0(^1-003 et seq./Title 28 U.S.C. § 1746]
(A signed/dated copy of this PETHICM shall hswe the sane validity as its original)
SIGNED AND EXECUTED on this the 8th day of August, 2015.
RESPECTFULLY SUBMITTED,

/a/
Petitioner, Pro Se
Edward Guzman # 1845822
11.
 CERTIFICATE OF SERVICE:

The above signer hereby certifies that a true and correct copy of the foreg
oing PETITION FOR DISCRETIONARY REVIEW has been forwarded to ALL parties, via 1st
Class U.S. Mail, Postage Pre-Paid, placed in the outgoing prison mailbox on this
the 8th day of August, 2015; addressed to:

• Abel Acosta, Clerk
Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711

• Sherri tibbe
Hays County District Attorney
712 South Stagecoach Trail
San Marcos, Texas 78666

• State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711

EG/awr-File

12.
 APPENDIX:

Memorandum Opinion of Third Court of Appeals
Issued May 13, 2015
No. 03-13-00131-CR
(30 Pages)
 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-13-00131-CR

Edward Guzman, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
NO. CR-12-0006, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Edward Guzman of four felony offenses—aggravated

kidnapping, aggravated assault with a deadly weapon, aggravated assault causing serious bodily

injury, and unlawful restraint—all arising out of an encounter between appellant and his former

girlfriend.1 See Tex. Penal Code §§ 20.04, 22.02, 20.02. The jury assessed his punishment at

confinement in the Texas Department of Criminal Justice for 60 years for the kidnapping, 20 years

and 60 years for the assaults, and 10 years for the unlawful restraint. See id. §§ 12.32-34. On

appeal, appellant complains about ineffective assistance of counsel, the admission of extraneous

conduct evidence, error in the jury charge, and improperjury argument. Finding no reversible error,

we affirm the trial court's judgments of conviction.

1 The jury acquitted appellant of an additional attempted murder charge. See Tex. Penal
Code §§15.01, 19.02.!
 BACKGROUND

Appellant andDanielle Gaydatedfor eight years andhavea daughter together. One

evening in October of 2011, about nine months after they had broken up, appellant went to Gay's

home topick uptheir six-year-old daughter for his visitation. He spoke briefly with Gay atthe front

door, then took their daughter out to his car. Pursuant to a prearranged plan, he gave his daughter

to his current girlfriend, Ofelia Cisneros, who drove her to their home. Appellant then returned to

Gay's door andasked for theirdaughter's cellphone. When Gaywentinside herhome to retrieve

it, appellant entered her home and followed her upstairs to the bedroom. Standing in the doorway

of the room, he told Gay toputherhands behind herback. She laughed and told him to get out of

her house. He then told her that if she screamed, he would hurt her. Gay turned to run away, and

appellant tackled her to the floor. He taped and tied her hands behind herback, picked her up off

the floor, and putheronthebed. He then paced around the bedandtold Gay thatshe hadruined his

life and taken things from him that hewanted. After several minutes, appellant bentherlegs andtied

her feet to her hands bound behind her back. Gaycomplained thathe was hurting her, cutting off

the circulation in her hands. Appellant responded thathe did not careandcontinued tightening the

bindings. He then put something in Gay's mouth and gagged her by tying a scarf (or scarf-like

fabric) around her head covering her face.

Appellant then leftthe bedroom, leaving Gaybound face down on the bed. Gayheard

him downstairs rummaging through things in her house. Eventually, appellant returned to the

bedroom. He removed the scarffrom Gay's head, untiedher feet from her hands, sat her up on the

bed, and then retied her feet together. He sat downnext to her and continuedtelling her that she had
ruined his life. Gay apologized and told appellant that he could have back whatever hewanted. He

said it was too late for that. He untiedher hands from behind her back and retied them in front of

her. He then tried to give her something to drink but she refused, not knowing what itwas. After
several unsuccessful attempts to force her to drink the liquid, appellant set the cup aside and told her
that they had to go to his house to get his car because all ofthe things he wanted to take would not

fit in her car. He loosened the bindings on her feet to give her leeway to walk and escorted her
downstairs. At the bottom ofthe stairs, appellant pulled up his shirt to show her agun he had stuffed
in his pants "in case [she tried] anything." Gay recognized the gun as her gun that she kept in the
top cabinet ofher kitchen. Appellant pulled her through the house and then took her to her car,
holding her arm. He put her in the passenger seat and then went around to the driver's seat. He got
in the car, looped the rope that bound Gay's hands around the base of his seatbelt, and buckled
his seatbelt.

Appellant drove them to his house. At his house, he woke up Ofelia and had her

bring his daughter to his car, telling her that Gay was going to put gas in both oftheir cars. Gay
remained bound in the passenger seat of her car and saw Ofelia carry her sleeping daughter to
appellant's car. She also saw appellant get a gas can offthe porch and put itinher car. With Ofelia

driving appellant's car and appellant driving Gay's car, they drove to the gas station where appellant

removed Gay's debitcardfrom her purse, asked her for the PIN number, andusedher debitcardto

put gas in both cars and the gas can. After filling up, appellant started driving back to her house.

Atone point, hepulled over and went to talk toOfelia, who had pulled over inhis car. He instructed

Ofelia to go to a particular location and wait for him.
 Appellant thendrove toward Gay's house, but stopped at a church about two blocks

from her house. After a few minutes, he left the church and drove to Gay's house. He took her

inside, telling her that they were waiting for Ofelia to come pick him up. After awhile, appellant
took Gay back out to the car, explaining that they could drive around to look for Ofelia. After

driving for afew minutes, appellant pulled over onthe side ofthe road. He got out ofthe car, looked

around, then got back into the car and drove further down the road, pulled over again, and got out
to look around again. Appellant repeated this pulling overprocess four times. He then drove back

to Gay's house and then around town several times, all the while pretending to be looking for Ofelia.
Eventually, appellant parked at the end ofGay's street. He turned offthe car and told Gay that he

wanted her to get in the driver's seat because itwas hurting his back. He removed the bindings from
her hands, pulled her over the console to the driver's seat, and told her to put her hands on the

steering wheel. Appellant then got out and came around to sitin the passenger seat. After a few

minutes, Gay told appellant that she had to use the bathroom. He agreed to allow her to go to her

house to use the bathroom. Tightly holding her arm, they walked to her house. He stood inthe open

doorway ofthe bathroom while Gay went to the bathroom. He then took her back to her car, putting
her back in the driver's seat.

Asthey satinthe car, purportedly looking for Ofelia's car, appellant became agitated.

Hesat on the edge of his seat shaking his legand herepeatedly checked his phone. Gay continued

looking for Ofelia's car. At one point, as she turned from looking down the road, appellant started

hitting her inthe head. As herepeatedly struck her in the face with what felt like fists, Gay managed

to open the driver's door. Appellant grabbed her, and they struggled as she tried toget out ofthe car.
At that point, Gay noticed her gun in appellant's hands and she attempted to grab it. As they
struggled over the gun, they both fell out of the car. After they landed on the ground, appellant

started kicking Gay in addition tohitting her with either his fists orthe gun. Gay testified that she

could feel blows all over her body. She began screaming, and he kicked her in the face with his

boot; Gay then felt herselfbegin to lose consciousness. At that point, as they once again struggled
over the gun, she heard the gun going off. Gay fell backward onto the pavement and tried to pull

herself away from appellant. Appellant grabbed her, dragging her back toward him. He sat on her

back straddling her and started pulling her hair, yelling at her to stop screaming. Gay managed to
stand up and fall back onto appellant causing him to release her. She again tried to crawl away.

Appellant grabbed her by the throat and dragged her back toward the car. At one point, appellant

pushed Gay back onto the hood ofthe car and choked her with his hands around her neck. Gay then

recalls her body suddenly hitting the ground, and appellant was gone. She pushed herselfup and ran

screaming toward her complex. She ran into her neighbor's carport and banged onhis door. She

madecontact with her neighbors, who calledthe paramedics.

Gaywas transported by a life flight helicopter to a hospital in Austin where shewas

treated for severe facial and head injuries, including soft tissue trauma toherface ofsuch complexity

it required a plastic surgery consultation(a lacerationfrom her forehead down acrossher nose went

through the muscle and exposed the bone), a nasal bone fracture, a chin laceration, and two large

scalp lacerations that required multiple staple sutures.
 DISCUSSION

In five points of error, appellant asserts that his trial counsel rendered ineffective

assistance, the trial court erred in admitting extraneous conduct evidence during the guilt-innocence

phase, the trial court submitted an erroneous self-defense instruction in thejury charge, and the

prosecutorengagedin improperjury argument in the punishment phase.

Ineffective Assistance of Counsel

In his first and last points of error, appellant contends that his trial counselrendered

ineffective assistance at trial because counsel failed to object to certain testimony from the

investigating detective and failed to prove up appellant's eligibility for community supervision.

To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of theevidence bothdeficient performance by counsel andprejudice suffered bythe

defendant. Strickland v. Washington, 466U.S. 668,687 (1984); Nava v. State, 415 S.W.3d289,307

(Tex. Crim. App.2013). Theappellant mustfirstdemonstrate thatcounsel'sperformance fellbelow

an objective standardof reasonableness under prevailing professional norms. Strickland, 466 U.S.

at 687-88; Nava, 415 S.W.3d at 307. The appellant must then show the existence of a reasonable

probability—one sufficient to undermine confidence in the outcome—that the result of the

proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S.

at 694; Nava, 415 S.W.3d at 308. Failure to make the required showing of either deficient

performance or sufficientprejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700;

see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
 Appellate reviewof counsel'srepresentation is highly deferential; wemust"indulge

in a strongpresumption that counsel's conductwas not deficient." Nava, 415 S.W.3d at 307-08;

see Strickland, 466 U.S. at 686. To rebut that presumption, a claim of ineffective assistance must

be "firmly founded in therecord," and "the record must affirmatively demonstrate" the meritorious

nature of the claim. See Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012);

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Rarely will the trial record by

itselfbe sufficient to demonstrate an ineffective-assistance claim. Nava, 415 S.W.3dat 308. If trial

counselhas not been affordedthe opportunityto explain thereasons for his conduct,we will not find

him to be deficient unless the challenged conduct was "so outrageous that no competent attorney

wouldhave engaged in it." Id. (quotingMenefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d

at 392.

In this case, appellant filed a motion for new trial. However, he did not raise a claim

of ineffective assistance of counsel in themotion.2 Thus, therecord is silent as to why trial counsel

failed to actin themannerthatappellant now complains about on appeal. Consequently, the record

before this Court is not sufficiently developed to allow us to evaluate those failures to act because

"[njeither [his] counsel nor the State have been given an opportunity to respond to" the claims of

ineffectiveness. See Menefield, 363 S.W.3d at 593. The record is silent as to whether there was a

strategic reason for counsel's conduct or what the particular strategy was. Appellant's assertions that

2 In appellant's affidavit attached to the motion and a subsequently filed affidavit from
appellant's father, appellant appears to complain about trial counsel's failure to call a particular
witness on his behalf. However, the failure to call this witness is not a ground for ineffectiveness
that appellant raises on appeal.
"there can be absolutely no trial strategy" for not objecting to the detective's testimony and that
"there can be no trial strategy in depriving [appellant] of the possibility of probation" are mere

speculation. Such speculation does not constitute a demonstration, founded in the record, that no

reasonable trial strategy existed. See Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013)

("[Counsel's alleged deficiency must be affirmatively demonstrated in the trial record.");

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) ("[Counsel's deficiency

must be affirmatively demonstrated in the trial record; the court must not engage in
retrospective speculation.").

Appellant's trial attorney was not afforded an opportunity to explain hisreasons for

the complained-of conduct. Absent record evidence regarding counsel's strategy orreasoning, we

will presume heexercised reasonable professionaljudgment. SeeHillv. State, 303 S.W.3d863,879

(Tex. App.—Fort Worth 2009, pet. ref d); Poole v. State, 91A S.W.2d 892,902 (Tex. App.—Austin

1998, pet. ref d); see also Lopez, 343 S.W.3d at 143. Appellant has failed to rebut the strong

presumption of reasonable assistance because withoutexplanation fortrial counsel's decisions, the

complained-ofconductdoesnot compela conclusionthat his performancewas deficient. We cannot

say that "no reasonable trial strategy could justify" his decision to engage in the complained-of

conduct.3 SeeLopez,343 S.W.3dat 143. Nor can we conclude that his conduct was "so outrageous

3 For example, appellant criticizes his attorney for failing to object to testimony from the
detective regarding her beliefthat Gay's statements to the police were truthful, that appellant lied
in his statements to police, and that Ofelia's statements to police were rehearsed. Ordinarily,
witnesses are not permitted.to testify as to their opinion about the truthfulness of other witnesses,
Lopezv. State, 343 S.W.3d 137,140 (Tex. Crim. App. 2011), the credibility of a complainant or the
truthfulness of a complainant's allegations, Schutz v. State, 957 S.W.2d 52, 59 (Tex. Crim. App.
1997); Yount v. State, 872 S.W.2d 706, 711 (Tex. Crim. App. 1993), or the guilt or innocence of a

8
 that no competent attorney would have engaged in it." See Menefield, 363 S.W.3d at 592; see also
Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) ("The mere fact that another
attorney might have pursued adifferent tactic at trial does not suffice to prove aclaim ofineffective
assistance ofcounsel"). Accordingly, we conclude that appellant has failed to demonstrate deficient
performance on the part ofhis trial counsel. SeeFrangias v. State, 450 S.W.3d 125,136 (Tex. Crim.
App. 2013) ("[UTjnless there is arecord sufficient to demonstrate that counsel's conduct was not the
product of an informed strategic or tactical decision, areviewing court should presume that trial
counsel's performance was constitutionally adequate 'unless the challenged conduct was so

defendant, Boyde v. State, 513 S.W.2d 588, 590 (Tex. Crim. App. 1974); Sandoval v. State,
409 S.W.3d 259,292 (Tex. App.—Austin 2013, no pet.). An argument can be made, however, that
counsel allowed the complained-of testimony here in order to demonstrate the bias ofthe State's
witnesses. Subsequent questions propounded to the law enforcement official during cross
examination arguably attempted to highlight the detective's immediate assumption that appellantwas
guilty after hearing only Gay's version of events, which led to afailure to conduct athorough or
complete investigation.
Further, as to counsel's failure to prove up appellant's eligibilityfor communitysupervision,
appellant-correctlynotes that the record reflects that trial counsel was initially mistaken in his belief
that filing the sworn affidavit ofappellant was sufficient to prove up his eligibility for community
supervision. However, the record also reflects that after the court advised counsel that the sworn
affidavit was insufficient and that witness testimony was required to put the issue before the jury,
trial counsel conferred with appellant. Subsequently, he opted not to reopen to put on any evidence.'
Appellant testified about this issue (outside the jury's presence), indicating that even with the
requirement that evidence of his eligibility be presented—and the fact that he was "the primary
witness" as to that matter— appellant decided it was not in his best interest to testify. Appellant and
his counsel could very well have determined that the benefit ofappellant testifying to prove up his
community supervision eligibility was outweighed by the exposure to cross examination, balancing
the remote possibility that the jury would recommend community supervision against possible
damaging or incriminating testimony that could be elicited by the State to appellant's detriment. In
his brief, appellant attempts to dismiss trial counsel's strategic decision not to have appellant testify
by arguing that counsel was unprepared to present evidence regarding appellant's community
supervision eligibility because he did not have awitness other than appellant ready to testify as to
appellant's eligibility. This contention speculates that some witness other than appellant was
available to provide such testimony, something not demonstrated by the record.
outrageous that no competent attorney would have engaged in it.'") (quoting Goodspeed, 187 S.W.3d
at 392).

Because appellant failed to meet his burden on the first prong ofStrickland, we need
not consider the requirements ofthe second prong—prejudice. Lopez, 343 S.W.3d at 144; see
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ("An appellant's failure to satisfy
one prong ofthe Strickland test negates acourt's need to consider the other prong."). Nevertheless,
we also find that appellant failed to demonstrate that he suffered prejudice.
Even ifan appellant shows that particular errors ofcounsel were unreasonable, he
must further show that they actually had an adverse effect on the defense. Strickland, 466 U.S. at
693-95; Cochran v. State, 78 S.W.3d 20,24 (Tex. App.—Tyler 2002, no pet.). It is not sufficient
that adefendant show, with the benefit ofhindsight, that his counsel's actions or omissions during
trial were ofquestionable competence. Lopez, 343 S.W.3d at 142-43. Further, merely showing that
the errors had some conceivable effect on the proceedings will not suffice. Strickland, 466 U.S. at
693; Exparte Martinez, 330 S.W.3d 891,901 (Tex. Crim. App. 2011). Instead, he must prove that
counsel's errors, judged by the totality ofthe representation, not by isolated instances oferror or by
a portion of the trial, denied hima fair trial. Strickland, 466 U.S. at 695.

In his argument regarding prejudice, appellant argues that he was "undoubtedly
harmed" by the detective's testimony (regarding her beliefthat Gay's statements to the police were
truthful, that appellant lied in his statements to police, and that Ofelia's statements to police were
rehearsed) because this was a situation where there were two sides to the story and the officer
endorsed one side. He asserts that "ajury could not help but be swayed by testimony ofthis nature."

10
However, thisassertion is a speculative claim withoutsupport in therecord. Moreover, we observe

thatthedetective'sopinions werenotparticularly powerful. Giventhefact that she secured an arrest

warrant for appellant and forwarded this case to the district attorney's office for prosecution after her

investigation, one could logically assume that the detective found Gay credible and her allegations

truthful, and that she believed appellant was not truthful in his version of the events.

Appellant also maintains that he was harmed by counsel's failure to prove his

eligibility for community supervision because he "waived any chance appellant had at receiving

[community supervision] for punishment." However, in order to be eligible for community

supervision, the jury would have had to return sentences often years orless. See Tex. Code Crim.

Proc. art. 42.12, § 4(a), (d)(1). The juryonly did soin theunlawful restraint case, and in that case

the ten-year sentence was the maximum. The other sentences returned bythe jury—60 years for the

first degree aggravated kidnapping, 60 years for the first degree aggravated assault causing serious

bodily injury, and 20 years for the second degree aggravated assault with adeadly weapon (also the
maximum for that offense)—indicate that the jury was seeking to impose harsh sentences for

appellant's conduct.4 Nothing in the record suggests that the jury was inclined to return the more
lenient punishment ofcommunity supervision evenhad such an option been available.5 Appellant's

4 We also note that the jury assessed the maximum fine of $10,000 for each of the
four offenses.

5We observe that inhis punishment closing argument, appellant's trial counsel did not even
ask for the minimum prison sentences in these cases. Rather—perhaps recognizing the severity of
the offenses for which the jury found appellant guilty and accurately reading the jury's perception
of the serious nature of the offenses—he asked for a ten-yearsentence for all four cases.

11
suggestion that the purported waiver ofcommunity supervision subjected him to harsher sentences
than he was originally exposed to is a speculative claim not supported by the record.
An accused is not entitled to entirely errorless representation, and we look to the

totality of the representation in gauging the adequacy of counsel's performance. Frangias,
450 S.W.3d at 136. The record in this case reveals that trial counsel ably and adequately presented
the defense strategy, which involved attacking the credibility of Gay's version of events,
emphasizing the biased and incomplete nature ofthe police investigation, and raising self-defense.
During guilt-innocence, counsel focused on the bias ofthe State's witnesses, the inconsistencies in
the testimony, the inadequate and one-sided police investigation, and the lack of corroborating
evidence. Also, through the State's evidence, he asserted a claim of self-defense. During
punishment, counsel focused on the mitigating factor of appellant's age and asked for aminimal
sentence often years in all four cases. The fact that these strategies ultimately proved unsuccessful
does not render counsel's assistance ineffective.

On the record before us, appellant has failed to demonstrate deficient performance
on the part ofhis trial counsel or that he suffered prejudice because ofthe alleged errors ofcounsel.
Thus, he has not shown himself entitled to reversal based on ineffective assistance of counsel. We
overrule appellant's first and fifth points of error.

Extraneous Conduct Evidence

In its case-in-chief in the guilt-innocence phase oftrial, the State offered evidence
during Gay's testimony of appellant's extraneous abusive conduct toward her during their
relationship. She detailed three instances ofappellant's abusive conduct: aphysical altercation on
12
New Year's Eve of 2010, an incident on appellant's birthday on January 3, 2011, and an occasion

in February or March of2011 where appellant pointed agun at her.6 In his second point oferror,
appellant asserts that the trial court erred in permitting this testimony because it was inadmissible
character-conformity evidence.

We review a trial court's decision to admit or exclude evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). Atrial court abuses its discretion only if
its determination "lies outside the zone ofreasonable disagreement." Martinez, 327 S.W.3d at736;

Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Atrial court's decision to admit
evidence ofan extraneous offense is generally within this zone if the evidence shows that (1) an

6More specifically, Gay testified that during an altercation in their home on New Year'sEve
appellant threatened her (by making aslashing motion across his neck), pushed her, punched her in
the face at least three times, grabbed her by the back ofher neck and ponytail, and threw her down
on the floor. She stated that as a result ofthis incident, she had two black eyes and a bloody and
swollen nose.
Regarding the birthday incident, Gay testified that when appellant returned from celebrating
his birthdaywith friends, he came home angry and began screaming ather, demanding that she leave.
When she went to the bedroom to collect her things, he kicked open the bedroom door and hit her
in the middle ofher body, knocking her backwards. Then, when she tried to get her daughter to
leave, appellant took the child from her and took the child into the bedroom. He then forcibly
removed Gay from their home by grabbing her at theback of her neck and around the waist and
dragging her out of the house. Gay was without any of her things and ended up moving in with
appellant's aunt next door.
According to Gay's testimony, amonth or two later, appellantindicated in amessage through
his aunt that Gay could return to their home to collect her belongings. When she was inside the
house, appellant became agitated when she began asking about the location ofcertainpersonal items
(such as her driver's license and social security card) and told her to get out. When she reminded
appellant that he had told her she could come get her things, he stomped off to the bedroom and
returned with a gun. He pointed the gun directly at her and repeated his demand that she leave
their home.

13
extraneous transaction is relevant to a material, non-propensity issue, and (2) the probative valueof

that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading ofthe jury. DeLa Pazv. State, 279 S.W.3d 336,344 (Tex. Crim. App. 2009).
Ifthe trial court's evidentiary ruling iscorrect on any theory oflaw applicable to that ruling, we will

uphold that decision. Id.; Sandoval, 409 S.W.3d at 297.

Texas Rule ofEvidence 404(b) prohibits the admission ofextraneous conduct (other

crimes, wrongs, or acts) to prove aperson's character or to show that the person acted in conformity
with that character. See Tex. R. Evid. 404(b). However, extraneous conduct evidence may be

admissible when ithas relevance apart from character conformity. Devoe v. State, 354 S.W.3d 457,

469 (Tex. Crim. App. 2011). Extraneous conduct may be admissible for some other purpose, such
as to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence ofmistake
oraccident. See Tex. R. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim.

App. 1991) (op. on reh'g). This list is illustrative—the exceptions are neither mutually exclusive
nor collectively exhaustive. See De La Paz, 279 S.W.3d at 343. Extraneous conduct evidence may
also be admissible to rebut defensive theories raised bythe defense. See Williams, 301 S.W.3d at

687 (rebuttal of defensive theory is "one of the permissible purposes for which [relevant] evidence
may be admitted under Rule 404(b)"). Further, "'Rule 404(b) is arule of inclusion rather than
exclusion.'" DeLa Paz, 279 S.W.3d at 343 (quoting United States v. Bowie, 232 F.3d 923, 929
(D.C. Cir. 2000)). "The rule excludes only that evidence that is offered (or will be used) solely for
the purpose ofproving bad character and hence conduct in conformity with that bad character." Id.
(emphasis added) (citing Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996)).

14
• >

Throughout the course of trial, appellant advanced several defensive theories—he

denied causing Gay's injuries, he challenged Gay's version of the events, he attacked the police

investigation, and he asserted self-defense—all premised on his claim that he acted that night to

protect himselffrom Gay when she fired shots athim. He first made this claim during his phone call

to the detective the morning afterthe incident whenGaywas in the hospital (a recording of which

was admitted into evidence andpublished to thejury). He thenmade similar comments during his

interview withthe detective laterthatday(arecording ofwhichwasalso admitted into evidence and

published to the jury). Appellant's counsel alluded to it during jury selection when questioning the

venire panel about contradictory testimony and theuse ofself-defense in any setting, even within a

close personal relationship. He developed it through cross-examination of the State's witnesses,

particularly the police detective, when he highlighted the fact that she took no actions to investigate

appellant's claims regarding Gay's alleged threats toward him and Ofelia and when he sought the

detective's confirmation thatappellant's comments to herreflected that he acted in self-defense.

TheStateoffered theevidence ofappellant'sextraneous abusive conduct toward Gay,

in part, to rebut appellant's theory that she was the first aggressor and that he acted in self-defense
as well as to rebut appellant's explanation that Gay's injuries were self-inflicted during their struggle
over the gun. Based on the evidence before it,the trial court could have concluded that the evidence

of appellant's extraneous prior abusive conduct toward Gay rebutted the defensive theories
presented to the jury. Consequently, we cannot say that the trial court's admission of the
complained-oftestimony was an abuse ofdiscretion. We overrule appellant's second point oferror.

15
 Jury Charge Error

In this case, on appellant's request, the trial court included an instruction on

self-defense in the court's jury charge. In the abstractportion of the court's charge, the trial court

instructed the jury as follows:

Upon the law ofselfdefense [sic] you are instructed that a person isjustified
in using force against another when and to the degree he reasonably believes the
force isimmediately necessary toprotect himselfagainst the other'suseorattempted
use of unlawful force.
A person is justified in using force against another: (1) if he would be
justified in using force against the other; and (2) if a reasonable person in the
defendant's situation would not have retreated; and (3) when and to the degree he
reasonably believes the force is immediately necessary toprotect himselfagainst the
other's use or attempted use of unlawful force.
"Reasonable belief' means a belief that would be held by an ordinary and
prudent personin the same circumstances as the defendant.

During the charge conference, appellant requested an additional instruction to explain self-defense.7
The State objected, maintaining that the instruction was already reflected inthe charge. Appellant

next complained that the self-defense jury instruction "talk[ed] about the duty of a defendant to

retreat. That's nowhere in thestatute." Both theprosecutor andthe trial court maintained thatthe

duty to retreat "[is] in the law." The court overruled appellant's request for his submission and

7 Specifically, appellant asked that the following paragraph beadded:

When aperson isattacked, oran attempt is made to attack such person, with
unlawful force, and there is created in the mind of such person a reasonable
expectation or fear ofsome bodily injury, then the law excuses or justifies such
person in resorting to force to the degree that he reasonably believes is immediately
necessary, viewed from his standpoint at the time, to protect himself from attack or
attempted attack.

16
retained the language relating to the duty to retreat in the charge. In his third point oferror, appellant

argues that the trial court erroneously instructed the jury that appellant had a duty to retreat in order

for the law of self-defense to apply. He further maintains that the incorrect instruction on

self-defense caused him harm.

We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Kirschv. State,357 S.W.3d645,649 (Tex. Crim. App. 2012);Ngo v. State, 175 S.W.3d738,743-44

(Tex. Crim. App. 2005). The trial court must charge the jury on the "law applicable to the case,"

which requires that the jury be instructed on each element of the offense charged. See Tex. Code

Crim. Proc. art. 36.14; see alsoDinkins v. State, 894 S.W.2d 330,339 (Tex. Crim. App. 1995). The

trial court is also required to instruct the jury on statutory defenses, affirmative defenses, and

justifications when they are raised by the evidence and requested by the defendant. Walters v. State,

247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007).

Under the Texas self-defense statute, a person may use deadly force ifhe reasonably

believes such force is immediately necessary to protect himself from another person's use or

attempted use of deadly force. See Tex. Penal Code § 9.32. Before 2007, the deadly-force

self-defense statute contained a provision imposing a general duty to retreat, providing that the use

of deadly force was justified only "if a reasonable person in the actor's situation would not have

retreated." See Act of May 16, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141,

2141-42 (amended 2007) (current version at Tex. Penal Code § 9.32); Morales v. State,

357 S.W.3d 1, 6 (Tex. Crim. App. 2011). However, effective September 1, 2007, the Legislature

17
' >

amended the statute to delete the language regarding a general duty to retreat. Morales, 357 S.W.3d

at 4-5; McBride v. State, 359 S.W.3d 683, 694 (Tex. App.—Houston [14th Dist.] 2011, pet. refd).

Because this general duty to retreat was removed from the self-defense statute in 2007, the

self-defenseinstruction given here—indicating that appellant had a duty to retreat—was erroneous.

See Morales, 357 S.W.3d at 6.

Ifthe trialjudge charges on a defensive issue but fails to do so correctly, this is charge

errorsubjectto reviewunderAlmanza. Vegav. State, 394 S.W.3d514,519 (Tex.Crim.App. 2013);

see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth

analysis for determining whetherjury charge error requires reversal). UnderAlmanza, if the jury

charge error has been properlypreservedby an objection or request for instruction, as in this case,

reversal is required if the appellant has suffered "some harm" from the error. Vega, 394 S.W.3d at

519;Almanza, 686 S.W.2d at 171. We assess whether the appellant has suffered actualharm "in light

of the entire jury charge, the state of the evidence, including the contested issues and weight of

probative evidence, the argument of counsel and any other relevant information revealed by the

record of the trial as a whole." Vega, 394 S.W.3d at 521 (quoting Almanza, 686 S.W.2d at 171).

We engage in this assessment to illuminate the actual, not just theoretical, harm to the accused.

Almanza, 686 S.W.2d at 174; see Cornet v. State, All S.W.3d 446, 449 (Tex. Crim. App. 2013)

("This means that the trial record must demonstrate that there is some actual harm and not just a

theoretical complaint.").

Beginning with the jury charge itself, we observe that in addition to erroneously

instructing the jury in the abstract portion of the charge that a person was justified in using force

18
against another only ifareasonable person in the defendant's situation would not have retreated, the
trial court included the duty to retreat in each ofthe self-defense application paragraphs.8 Thus, the
jury charge, in four different places—the abstract portion of the charge and three self-defense
application paragraphs—impermissibly instructed thejury to determine whether there was ageneral
duty to retreat. See Morales, 357 S.W.3d at 5-6 (jury instruction on general duty to retreat
constituted comment on weight ofevidence). Nothing in the remainder ofthe charge instructed the
jury that it should not determine, as ageneral matter, whether aduty to retreat existed. See id. at 6.
Accordingly, the remainder of the jury charge did not alleviate the harm caused by the incorrect
self-defense instruction. Thus, consideration ofthe entirety ofthe jury charge weighs in favor ofa

finding of harm.

Next, we must consider the state ofthe evidence and determine whether the jury
charge error related to acontested issue. Appellant did not testify at trial. The defensive theories
spresented through the State's evidence—primarily the recording ofappellant's interview with
werei

8After the application paragraph for the attempted murder, the courtprovided the following
application paragraph for self-defense:
Selfdefense [sic]
Now, if you find and believe from the evidence that on the occasion in
question the Defendant reasonably believed thathis conductofgrabbing and twisting
Danielle Gay's head at the neck was immediately necessary to protect the Defendant
from Danielle Gay's use or attempted use ofunlawful force; and that at such time a
reasonable person in the Defendant's situation would not have retreated, you will
acquit the defendant and say by your verdict not guilty as to Count II.
Similar application paragraphs applying self-defense were given following the application
paragraphs for aggravated assault with adeadly weapon and aggravated assault causing senous
bodily injury.

19
the detective—and the cross examination of the State's witnesses. During his interview with the

detective, appellant gave his version ofthe events. He indicated that when he and Ofelia picked up

his daughter that evening for his visitation, Gay askedhim to staybut he declined and went home

with Ofelia and his daughter. According to appellant, Gay then showedup at his house in Kyle at

about4:00 in the morning. She knocked on his window and said that if he wantedto gethis stuff,

he needed to come and get it now. When he told Gay that he did not have anygas in his car, she

offered to buythe gas to fill his car. Appellant saidthat they thenwent to the gas station andfilled

up the cars with gas—he and Gay inhercar, Ofelia and his daughter inhis car.9 After filling up, they

went to Gay's house. When he realized it was going to take time to sort outwhat things he could

take, he sentOfelia home, telling herthatGaywould just drop himoff. Appellant toldthedetective

that eventually he gottired of waiting for Gay to decide what he could take, so he told Gay tojust

take him home. He said that when they were in her car, she pulled her gun out of her pocket and

threatened to kill him and Ofelia. According to appellant, theystruggled over the gunand fell out

ofhercarduring the struggle. Hesaid that hehad his arms wrapped around Gay from behind when

she fired the gun multiple times. Appellant told the detective that hegot away from Gay and called

Ofelia to come pick him up. He showed the detective aninjury he had onhis thumb where either

the hammer of the gun pinched him or the flash from the gunshot burnedhim.

While giving his version of the events, appellant said that he was "fighting for his

life" and was "just trying to get away from [Gay]." However, he adamantly maintained that he did

9 Appellant also explained that he filled up the gas can because Gay was having problems
with her car.

20
not cause her injuries. He repeatedly denied ever hitting or kicking Gay. In fact, even as he

conceded that Gay "might have" been hurt during the struggle over the gun, he still insisted he

"never hit her."10 Further, when the detective showed appellant photographs of Gay's injuries and

asked if he could explain them, he said that they were probably self-inflicted. When the detective

directly asked appellant if he "did this" (caused the injuries depicted in the photographs), he

responded, "No." When the detective admonished appellant that he needed to be honest and

expressed her opinion thatmorehappened thanhe was telling her, appellant insisted thathe "didn't

do anything" to Gay.

There was but the barest scintilla of evidence that during his encounter with Gay,

appellant was "fighting for [his] life" and thus may have unintentionally injured Gay during his

attempts to protect himself from her. However, appellant's primary defense was that he did not

causeGay's injuries at all,thattheywereself-inflicted, andthat theevents hadnot transpired as Gay

claimed. The secondary defense was that if she was injured duringthe struggle, it was not his fault

because he was acting in self-defense. The self-defense theory applied only to three of the five

charges, and it was a marginal theory at best. A comparison of the photographs ofGay'sextensive

injuries and appellant's minimal injuries demonstrates the unlikelihood that Gay's injuries were

self-inflicted andrefutes appellant's repeated claim thathe "didn't doanything" to Gay. Under the

circumstances, we cannot conclude that, given the weak evidence of self-defense combined with

appellant's adamant denial that he caused Gay's injuries, the state ofthe evidence demonstrates that

10 Appellant indicated that he and Gay fell over some mailboxes at some point when they
struggled over the gun, suggesting this might have caused herinjuries.

21
t •*• K

the trial court's erroneous instructions on the general duty to retreat caused appellant harm. Thus,

afterreviewingthe evidence in the record,we concludethat the state of the evidence weighsagainst

a finding of harm.

Concerning jury argument, boththe State andappellant's counsel brieflymentioned

self-defense inclosing arguments. However, neither side emphasized theerroneous juryinstruction

orappellant's purported duty toretreat butinstead only referred generally to the concept ofwhether

appellant's conduct wasjustified because hewasacting in self-defense. The prosecutor argued that

as the aggressor, appellant did notact in self-defense." Appellant's trial counsel reminded the jury

that appellant told the detective in the interview that he "had to fight for his life." Also during his

argument, appellant's counsel referred the juryto the court's self-defense instruction inthe charge.12
However, he did not emphasize the erroneous portion regarding the general duty to retreat but

11 At one point, the prosecutor argued:

He's trying to saythatwhen he did that, he was doing it to defend himself. And any
time you seethatself-defense in thejurycharge, I would ~ short ofjust tearing it up,
it's preposterous, because he's trying to say hewas justified in doing that, and that
he couldn't —he wasn't in a situation where he could run away, and that he had to
do it because if he didn't, she was about to kill him.

Arguably, this could be construed as a vague allusion to the fact that appellant did not retreat.
However, the prosecutor's argument is somewhat confusing and unclear and does not affirmatively
argue that appellant was required to retreat.

12 Appellant's counsel referred the jury to the self-defense instruction inthe abstract portion
of thejurycharge, although his disagreement and displeasure with the instruction was apparent:

There is a self-defense charge in the ~ in the jury'scharge on page three, paragraph
four. You can read it for what it's worth. It indicates our theory of the case, that
there was a need for him to react to what was going on, and it was immediately
necessary to protect himself.

22
C ««. » j.

referred to the fact that it was "immediately necessary" for appellant to react as he did to protect

himself from Gay. Overall, in the context of the entire jury argument, neither side focused on

self-defense andneither side argued that appellant had a dutyto retreat. Thus,we conclude that the

arguments of counsel do not weigh in favor of a finding of harm.

Finally, with regard to the final factor, we consider the fact that appellant was not

actually entitled to a jury instruction on self-defense in this case to be relevant information in

evaluating harm. A defendant is entitled to a self-defense instruction if the issue is raised by the

evidence, regardless ofwhether that evidence is weak orstrong, unimpeached orcontradicted, and

regardless of what the trial court may think about the credibility of the witnesses or the viability

of the defense. Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim. App. 2008); Ferrel v. State,

55 S.W.3d 586, 591 (Tex. Crim. App. 2001). However, because self-defense is justification for

one's actions, the assertion of thedefense necessarily requires anadmission thatthealleged conduct

occurred. Anderson v. State, 11 S.W.3d 369,372 (Tex. App.—Houston [IstDist.] 2000, pet.refd);

seeShaw v. State, 243 S.W.3d 647,659 (Tex. Crim. App. 2007) ("[A] defensive instruction is only

appropriate when the defendant's defensive evidence essentially admits to every element of the
offense including the culpable mental state, but interposes the justification to excuse the otherwise

criminal conduct."). Assertion of self-defense is inconsistent with a denial of the conduct. Ford

v. State, 112 S.W.3d 788,794 (Tex. App.—Houston [14th Dist.] 2003, nopet.). Thus, a defendant

is not entitled to an instruction on self-defense if "he claims that he did not perform the assaultive

acts alleged, or that he did not have the requisite culpable mental state, or both." VanBrackle

23
v. State, 179 S.W.3d 708, 715 (Tex. App.—Austin 2005, no pet.) (citing Ex parte Nailor,

149 S.W.3d 125, 134 (Tex. Crim. App. 2004)).

In this case, although appellant admitted that he struggled with Gay for the gun, he

didnot admitthathe committed the assaultive conductalleged.13 Appellantrepeatedly deniedever

hitting or kicking Gay, adamantly maintained that he did not cause her injuries, asserted that the

injuries were self-inflicted by Gay, and suggestedthat the injuries were caused by other objects (such

as the mailboxes) during their struggle over the gun. Thus, because appellant did not admit to

committing the alleged conduct, he was not entitled to an instruction on self-defense. See Maxwell

v. State,No. 03-06-00473-CR, 2007 WL 2274883, at *2 (Tex. App.—Austin Aug. 6,2007, no pet.)

(mem. op., not designated for publication) ("A defendant must sufficiently admit to the commission

of the offense for which the defensive instruction is requested."). We conclude that the fact that

appellant was not entitled to a self-defensejury instruction under these circumstances weighs against

a finding of harm.

In sum, except for the jury charge itself, the factors discussed above militate against

a finding ofharm. Accordingly, after reviewing the record and considering the relevant factors, we

13 In the attempted murder charge, the alleged conduct was that appellant "engaged in
conduct that amounted to more than mere preparation that tended but failed to effect the commission
of [murder]" by "grabbing and twisting Danielle Gay's head at the neck." In the aggravated assault
with a deadlyweapon, the allegedconductwas that appellant "intentionally, knowingly, or recklessly
cause[d] bodily injury to Danielle Gay by kicking her" and using or exhibiting a firearm during the
offense. In the aggravated assault causing serious bodily injury, the alleged conduct was that
appellant "intentionally, knowingly, or recklessly cause[d] seriousbodilyinjuryto Danielle Gayby
striking [her] about the head with his hand or a firearm."

24
A. va; K _>

hold that the erroneous self-defense instruction did not harm appellant. We overrule appellant's third
point of error.

Jury Argument

In his fourth point of error, appellant complains about the State's jury argument
during the punishment phase of trial.

We review a trial court's ruling on an objection to improper jury argument for an
abuse ofdiscretion. Nzewi v. State, 359 S.W.3d 829, 841 (Tex. App.—Houston [14th Dist] 2012,
pet. refd); see Davis v. State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010). Atrial court abuses
its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules and
principles. Montgomery v. State, 810 S.W.2d 372,380 (Tex. Crim. App. 1990); see also McDonald
v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005) ("A trial court abuses its discretion when its

decision is so clearly wrong as to lie outside that zone within which reasonable persons
might disagree.").

Appellant first complains about the prosecutor's comments regarding the absence of

mitigating evidence. During closing argument ofthe punishment phase, after explaining the State's
reasons forrequesting a life sentence, theprosecutor argued:

So weexpect life. And there have been plenty ofjuries that can agree onlife.
That happens all the time.
But ifyou can't, then we're hoping that when you're looking tocompromise,
you're doing it between 60 and life because that's really where he is. There is
nothing mitigating. There isnothing to put him inthe midrange. There is nothing
to put him towards the minimum.

25
..(*. M

You heard from Ofelia's mom all sorts ofreasons why she deserved lenience.
The defense couldhaveput on a case. You heardnothing, no evidence to mitigate,
to make it a less horrible —

Appellant objected, complaining, "That places the burden back on the defense. And we have no

obligation to testify." The trial court responded, "That's accurate. You don't. And the law that

applies to his testimony is contained in the charge." On appeal, appellant contends that the above

comments constituted an impermissible comment on his failure to testify.

Initially, we observe that appellant has arguably failed to properly preserve his

complaint about this jury argument for appellant review. For a partyto preserve a complaint for

appellate review, the complaining party must make a specific objection and obtain a ruling on the

objection. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014), cert denied,

135 S.Ct. 1158 (U.S. 2015); Tex. R. App. P. 33.1. In addition, the point of error on appeal

must comport with the objection made at trial. Yazdchi, 428 S.W.3d at 844; Clark v. State,

365 S.W.3d 333, 339 (Tex. Crim. App. 2012). Here, appellant complained that the prosecutor's

argument shifted the burden of production to the defense. In doing so, counsel noted that

"we"—presumablyreferringto appellant—hadno obligationto testify. Appellantdidnot, however,

explicitly complain that the prosecutor's argument was an improper comment on his right not to

testify. Moreover, the trial court failed to make a formal ruling either sustaining or overruling

appellant's objection. See Tex. R. App. P. 33.1(a)(2)(A). Assuming, however, that the trial court's

comment regarding the jury charge containing "the law that applies to [appellant's] testimony" was

an implied ruling on an objection complaining about an improper comment on appellant's failure

26
-> -

to testify, we find no abuse of discretion in the trial court's implied overruling of appellant's
objection to the State's argument.

The law provides for, and presumes, afair trial free from improper argument by the
State. Ex parte Lane, 303 S.W.3d 702, 712 (Tex. Crim. App. 2009) (citing Long v. State,
823 S.W.2d259,267(Tex. Crim. App. 1991)). Properjury argument must generally fall within one
offour categories: (1) summation ofthe evidence; (2) reasonable deductions from the evidence;
(3) responses to argument ofopposing counsel; and (4) pleas for law enforcement. Freeman v. State,
340 S.W.3d 717, 727 (Tex. Crim. App. 2011); Jimenez v. State, 240 S.W.3d 384, 407 (Tex.
App.—Austin 2007, pet. refd). The fact that a defendant did not testify does not fall into any of
these categories and may not be the subject of comment by the prosecution. Cruz v. State,

225 S.W.3d 546,548 (Tex. Crim. App. 2007); Bustamante v. State, 48 S.W.3d 761,765 (Tex. Crim.
App. 2001).

A comment on a defendant's failure to testify violates both the state and federal

constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim.

App. 2011); seeU.S. Const, amend. V; Tex. Const, art. I, § 10; Tex. Code Crim. Proc. art. 38.08;

seealso Griffin v. California, 380 U.S. 609, 615 (1965). However, the implication that the State's

comment referred to the defendant's failure to testify must bea clear and necessary one. Randolph,

353 S.W.3d at 891; Bustamante, 48 S.W.3d at767. If the language might reasonably be construed

asmerely animplied orindirect allusion, there isno violation. Randolph, 353 S.W.3d at891; Busby

v. State, 253 S.W.3d 661, 666 (Tex. Crim. App. 2008). The test is whether the language used was

manifestly intended orwas ofsuch a character that the jurywould necessarily and naturally take it

27
•*v. «4 >

as acomment on the defendant's failure to testify. Randolph, 353 S.W.3d at 891; Cruz, 225 S.W.3d
at548; see Bustamante, 48 S.W.3d at 765 (collecting cases). In applying this standard, the context
in which the comment was made must be analyzed to determine whether the language used was of
such character. Randolph, 353 S.W.3d at 891; Cruz, 225 S.W.3d at 548; Bustamante, 48 S.W.3d
at765. Courts are not to find that the prosecutor manifestly intended to comment on the defendant's

failure to testify if some other explanation for the remark is equally plausible. Randolph,
353 S.W.3d at 891. In assessing whether the defendant's rights have been violated, courts must view
the State's argument from the jury's standpoint and resolve any ambiguities in the language in favor
of its being a permissible argument. Id.

Viewed from thejury's perspective, the prosecutor's comments in this case regarding
the lack ofmitigation would not necessarily ornaturally betaken as a comment on the defendant's

failure to testify. Rather, when placed in context, the prosecutor's statement can reasonably be
construed as referring to the absence of mitigating evidence from the testimony of character
witnesses testifying on appellant's behalf, and as an argument that the lack ofmitigating evidence
warrants harsher, not more lenient, sentences. Thus, there isan equally plausible explanation for the

prosecutor's comment. Accordingly, there is no violation. See id. We conclude that the trial court

did not abuse its discretion by overruling appellant's objection to the prosecutor's argument
regarding the absence of mitigating evidence.

Also inthis point oferror, appellant argues that the prosecutor improperly "advised

the jurythat appellant would earn sentence credits, would earn good conduct time, and would be

paroled." During final argument during the punishment phase, the prosecutor argued:

28
»*l «*

So life doesn't mean life. 60 doesn't mean 60. You heard he got - he'll get credit
for his back time. He'll get good conduct time. He'll get parole. He'll get credit
after credit from everyone. He doesn't need anymore [sic] credit from you guys.

However, appellant did not object to this argument at trial. Preservation of error is a systemic
requirement on appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012). A
reviewing court should not address the merits of an issue that has not been preserved for appeal.
Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010). To preserve error regarding
improperjury argument for appellate review, adefendant must object and pursue his objection to an
adverse ruling. See Estrada v. State, 313 S.W.3d 274, 303 (Tex. Crim. App. 2010); Tex. R. App.
P. 33.1(a). Adefendant must contemporaneously object to the statement, request an instruction that
the jury disregard the statement ifthe objection issustained, and move for amistrial ifan instruction
to disregard is given. Cook v. State, 858 S.W.2d 467,473 (Tex. Crim. App. 1993). Adefendant's
failure to object to ajury argument, or failure to pursue an adverse ruling to his objection to the jury
argument, forfeits his right to complain about the jury argument on appeal. Cockrell v. State,
933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Because appellant did not object to the prosecutor's
argument concerning credit for time served, good conduct time, or parole, he failed to preserve this
complaint for appellate review.

For the above reasons, we overrule appellant's fourth point of error.

29
**»•<•.»

CONCLUSION

Having concluded that appellant failed to demonstrate that he suffered ineffective

assistance ofcounsel, that the trial court did not abuse its discretion by admitting the complained-of
extraneous conduct evidence, that the erroneous self-defense instruction in the jury charge did not
cause appellant harm, and that the trial court did not abuse its discretion by overruling appellant's
objection to the State's jury argument, we affirm the trial court's judgements ofconviction.

Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Affirmed

Filed: May 13, 2015

Do Not Publish

30
 EDWARD GUZMAN # 1845822
FRENCH M. ROBERTSON UNITES
12071, F.M. 3522
ABILENE, TEXA
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2015 'AUG 11
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ABEL ACOSTA, CLERK
TEXAS COURT OF CRIMINAL APPEALS
P.O. BOX 12308
CAPITOL STATION
AUSTIN, TEXAS
78711