Affirmed and Memorandum Opinion filed October 26, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00295-CR

BRITTANY CNAE MCCUTCHEON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 18-CR-0917

MEMORANDUM OPINION

Appellant Brittany Cnae McCutcheon appeals her conviction for engaging in 

organized criminal activity by committing the underlying offense of fraudulent 

possession of fifty or more items of identifying information, in combination with 

others. Appellant asserts that she received ineffective assistance of counsel. We 

affirm. 
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I. FACTUAL AND PROCEDURAL BACKGROUND

Some retail stores like Kohl’s permit a person to make purchases using a

store credit card even when the customer leaves the card behind. It’s an oldfashioned convenience that pre-dates Apple Pay. With a customer’s social security 

number and driver’s license as proof, the store will look up and verify a customer’s 

store credit card account and charge the customer as if they had the card with them. 

This is how appellant purchased a Bulova watch at the League City Kohl’s. 

And while appellant was permitted to make the transaction, she was “redflagged” because, in the course of the process, she presented an out of state license. 

The cost of the item, the out-of-state license, and the fact that appellant had to 

consult her phone to recite her own social security number prompted the jewelry 

department supervisor, Lacy Brychta, to question the transaction and alert loss 

prevention. 

After the store was alerted of possible suspicious activity, appellant was 

monitored and observed to then go purchase a $500 gift card from another register. 

When David Ruiz, Kohl’s asset protection manager, was alerted to observe 

appellant from the monitors in the loss prevention office, he recognized appellant 

as a person identified in a BOLO (be on the lookout) notice he had received a week 

earlier. He noticed two other individuals with appellant, but they disappeared as

she went to the back of the store. Ruiz noticed the group talked amongst

themselves before the other two left. Ruiz called the police. 

Officer Michael Guzman of the League City Police Department responded 

to the call of a potential fraud in progress. He met with Ruiz and another store 

employee at the front entrance and was advised appellant was still in the store. 

When Guzman approached appellant and asked for her ID, she retrieved a 
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small purse and thumbed through the purse, revealing several different IDs from 

different states, before providing her Texas ID. Guzman ran the Texas ID through 

dispatch and confirmed several active warrants on appellant. Appellant identified 

herself as Brittany McCutcheon. 

Guzman placed appellant in handcuffs and led her to the loss prevention 

office. Guzman arrested appellant, and believes that he read appellant her Miranda

rights, but could not be sure. He said generally, when he handcuffs someone, he 

reads them Miranda rights immediately, but he could not remember this particular 

occasion. Guzman said appellant made no statement. Ruiz confirmed that 

appellant remained silent while in the office. Ruiz testified that he thought the 

officer read the appellant her Miranda rights when they were in the office, but 

agreed that appellant already had handcuffs on when Guzman brought her back to 

the office. The Police Department did not retain the body cam footage and Kohl’s 

did not retain its surveillance footage from the day of the incident. 

Guzman said he searched her purse incident to arrest and found two 

fictitious state IDs that contained appellant’s face and someone else’s name and 

date of birth. Additionally, Guzman found a $200 Kohl’s gift card and a blank 

VISA card in the name of “William Law”. Believing that more information was 

contained on appellant’s cell phone, Guzman seized the cell phone and placed it 

into evidence, pending a search warrant. 

On March 22, 2018, appellant was indicted for the offense of engaging in 

organized criminal activity, namely fraudulent possession of identifying 

information.

When cross examined by appellant’s counsel at trial, Guzman agreed that he

obtained appellant’s phone passcode subsequent to her arrest, but only at 

appellant’s request so she could get some telephone numbers. Guzman stated he 
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never searched the phone until after obtaining a warrant. Guzman said the date of 

the search warrant was eleven days after her arrest. Guzman explained that he 

performed the entire task of retrieving those numbers for appellant in her presence 

before shutting off the phone and placing it back in the loss prevention bag and that 

this was his only contact with the phone prior to the execution of the warrant. 

The evidence and forensic manager with the League City Police Department

testified that after a search warrant was issued for the phone’s data, he used a 

forensic tool to extract call records, text messages, chat messages, images, websites 

visited on the phone, as well as contact names and numbers. 

Through the officers’ testimony, significant information was obtained from 

the phone and offered into evidence in support of the State’s case. As conveyed 

through Guzman, the phone informed that

• Appellant would purchase and receive personal identifying

information from the dark web. 

• Through various people like Latasha Krauth, appellant would 

send the identifying information to others and get physical IDs 

made with appellant’s picture and someone else’s name, date of 

birth and social security number. 

• Appellant and others would purchase merchandise and sell it at 

a discount. Appellant was involved with other participants 

which included Latasha Krauth, a male named Eric, a woman 

named Ma, a woman named Puney, and a man named Shake.

• Latasha was acting as a look-out for appellant at Kohls. 

Appellant and Latasha texted each other throughout the 

transaction at Kohls and those text messages were recovered. 

• Latasha and appellant passed texts, sharing different names, 

dates of birth, addresses, credit card numbers, expiration dates, 

security codes, phone numbers and social security numbers.

• Eric, appellant’s brother, made fraudulent purchases and 

provided appellant the merchandise to off load and sell at a
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discounted price. Eric procured physical IDs and provided

them to appellant and Latasha. Eric also received proceeds and 

money from the illicit activities.

• Shake was a facilitator for the gift cards and some merchandise,

converting it into cash. Shake employed others that returned 

merchandise to retailers and received cash back. Guzman

referred to these people as “returners,” according to the text 

messages.

• The money flowed from appellant to Latasha, Shake to 

appellant, Eric to appellant, and appellant to her mother.

The State’s investigator testified that she was provided information on all the 

names, dates of birth, social security numbers, driver’s license, and addresses 

extracted from appellant’s phone in this case. She said that she ran each name and 

verified that the names and addresses matched; that they were real people and had 

real social security numbers. Three of these people testified at trial. Each testified 

that their names, dates of birth, social security numbers, and driver’s licenses

matched the information contained on appellant’s phone. Each testified that they 

did not know appellant or grant her permission to use their respective identifying 

information. 

The first issue in this appeal concerns the State’s trial counsel’s closing 

argument. While explaining the legal standard for finding a “Combination” which 

the charge states means “three or more person who collaborate carrying on 

criminal activities” he made the following comment:

That’s why this is an engaging case. She’s working with Tasha, Ma 

and Eric and Puney and Shake and the way the offense is worded it 

has to be the defendant working with two or more other people. But 

you as a jury you don’t all have to agree on who the three people 

were. You have to agree there were at least three people involved in 

this criminal organization. So jurors #1 and #2 may believe this 

operation was primarily the defendant, Tasha and Eric. And juror #12 
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may believe the operation was mainly the defendant, Shake and Ma. 

That’s fine. Many of you believe like I do, that all six of these

people were involved. They were absolutely involved. As the charge 

will instruct you, the law doesn’t require that all members of the 

organization know each other or work directly with each other.... 

Appellant’s trial counsel did not object to the bolded comment.

The second issue in the case concerns appellant’s trial counsel’s own 

comments in closing argument:

One, there is an issue of Miranda which is always questionable for us 

as attorneys as far as if you read Miranda rights versus not reading it. 

If he took her purse and took her phone before she was actually placed 

in custody. Of course, all we have is his word. We don’t have any 

video which would be helpful. All we have is his word. So you know 

it’s our contention there may be some issues within a reasonable 

search and seizure. 

In the State’s concluding arguments it glossed appellant’s trial counsel’s 

Miranda-related arguments as a non-issue merely raised to confuse the jury. He 

explained, “You heard from Officer Guzman multiple times; [appellant] did not 

make a statement.”

The jury found appellant guilty of the offense of engaging in organized 

criminal activity as charged in the indictment. 

During punishment, the State presented evidence of ten prior convictions, 

including one that enhanced the punishment. Appellant pled true to the 

enhancement. The remainder of appellant’s prior convictions included five 

misdemeanors and four state jail felonies. The State also provided evidence that 

appellant had been out on parole for only three months before she committed the 

current offense and that she was attempting to fraudulently obtain a firearm

through a third party so she could work as an armed security guard. 

Through cross-examination, appellant’s trial counsel elicited information 
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that appellant was not violent or disruptive when she was arrested, that she had 

four children and she had made efforts to find a job other than the security guard

job. The State rested its case. Appellant’s trial counsel rested and explained she

had attempted reach appellant’s brother, and that he had not responded to her. In 

closing, the State asked for life in prison. Appellant’s trial counsel asked for 

leniency of fifteen years, based on her being a mother of four children, the nonviolent nature of her crime, and the fact that no one was physically harmed by her 

conduct. 

The jury sentenced appellant to 30 years confinement with the TDCJ and a 

$1000.00 fine. A motion for new trial was not filed. This appeal followed.

II.ISSUES AND ANALYSIS

In her first and second issues, appellant claims she received ineffective 

assistance of counsel during the guilt-innocence phase of trial because (1) her 

attorney failed to object to a prosecutor’s comment in closing argument and, (2) 

her attorney alluded to a Miranda violation in closing argument, without first 

moving to suppress or requesting an appropriate instruction. In her third issue, she 

claims that she received ineffective assistance of counsel during the punishment

phase of trial because her trial counsel did not present any mitigating evidence. 

A. Appellate Review of Ineffective Assistance Complaints on Direct Appeal

Both the United States Constitution and the Texas Constitution guarantee an 

accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. 

I, § 10; see also Tex. Code Crim. Proc. Ann. art. 1.051 (Supp.). This right

necessarily includes the right to reasonably effective assistance of counsel. 

Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 

S.W.2d 830, 835 (Tex. Crim. App. 1997). To prevail on her ineffective-assistance-
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of-counsel claims, appellant must prove (1) counsel’s representation fell below the 

objective standard of reasonableness, and (2) a reasonable probability that but for 

counsel’s alleged deficiency the result of the proceeding would have been 

different. See Strickland, 466 U.S. at 687–88; see also Hernandez v. State, 726 

S.W.2d 53, 55 (Tex. Crim. App. 1986) (applying Strickland standard to 

ineffective-assistance claims under the Texas Constitution). In considering an 

ineffective-assistance claim, we indulge a strong presumption that counsel’s 

actions fell within the wide range of reasonable professional behavior and were 

motivated by sound trial strategy. Strickland, 466 U.S. at 689; Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 

(Tex. Crim. App. 1994). To defeat this presumption, any allegation of 

ineffectiveness must be firmly grounded in the record so that the record 

affirmatively shows the alleged ineffectiveness. Prine v. State, 537 S.W.3d 113,

117 (Tex. Crim. App. 2017). 

Trial counsel generally should be given an opportunity to explain counsel’s 

actions before the court finds counsel ineffective. Id. In most cases, a direct appeal 

proves an inadequate vehicle for raising an ineffective-assistance claim because the 

record generally stands undeveloped and cannot adequately reflect the motives 

behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11 (Tex. 

Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. In the face of a silent record, 

we cannot know trial counsel’s strategy, so we will not find deficient performance 

unless the challenged conduct is “so outrageous that no competent attorney would 

have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005). 

A sound trial strategy may be executed imperfectly, but the right to effective 

assistance of counsel does not entitle a defendant to errorless or perfect counsel. 
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Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Instead, we 

“review the totality of the representation and the circumstances of each case 

without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. 

App. 2011). Though counsel’s conscious decision not to object to evidence is not 

insulated from review, unless the defendant overcomes the presumption that 

counsel’s actions were based in sound trial strategy, counsel generally will not be 

found ineffective. Ex parte Flores, 387 S.W.3d 626, 633 (Tex. Crim. App. 2012).

B. Did appellant’s trial counsel render ineffective assistance for failing to 

object to the prosecutor’s expression of personal opinions during closing 

arguments?

In her first issue, appellant asserts that her trial counsel rendered ineffective 

assistance because she did not object to the prosecutor’s statement — “[m]any of 

you believe like I do, that all six of these people were involved.” — as an improper 

opinion injected over the issue. The prosecutor made the statement in the context 

of explaining the charge to the jury--that each juror only had to believe the 

appellant conspired with two or more of the co-conspirators. Proper jury argument 

generally falls within one of the following four areas: (1) summation of the 

evidence; (2) reasonable deduction from the evidence; (3) answer to argument of 

opposing counsel; and (4) plea for law enforcement. Freeman v. State, 340 

S.W.3d 717, 727 (Tex. Crim. App. 2011). 

The prosecutor’s comment “many of you believe like I do” is a personal 

opinion, and as such is improper. See Beltran v. State, 99 S.W.3d 807, 811 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d) (holding that prosecutor’s statement 

that “[i]f I believed the man was not guilty I wouldn’t be here” was improper). 

One rationale courts have stated for this rule is that the opinion improperly conveys 

the idea that the prosecutor has a basis for such an opinion outside the evidence 
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presented at trial. Williams v. State, 417 S.W.3d 162, 172 (Tex. App.—Houston 

[1st Dist.] 2013, pet. ref’d). We are doubtful that, in a context such as here where 

the prosecutor’s expressed personal opinion directly followed his reference to trial

exhibits implicating all six co-conspirators’ participation, the jury believed the 

prosecution’s ‘belief’ was based on something other than the evidence to which he

had just referred them. In short, in a case such as this, where the rationale for the 

rule is not served, the trial court may have properly exercised its discretion in 

overruling an objection to the prosecutor’s statement. 

But even presuming that the prosecutor’s statement was improper as to result

in the reasonable expectation that the trial court would sustain the objection, if 

appellant’s trial counsel made a deliberate decision not to object, we cannot 

conclude that such a decision was categorically unreasonable. Appellant cites no 

authority for the proposition that a failure by trial counsel to object to purported 

improper jury argument, standing alone, would be “so outrageous that no 

competent attorney would have engaged in it.” See Goodspeed, 187 S.W.3d at 392. 

In fact, we have recognized that the failure to object to improper jury argument 

may be based on a reasonable trial strategy: to avoid drawing attention to the 

prosecutor’s statement. Lopez v. State, 565 S.W.3d 879, 887 (Tex. App.—Houston 

[14th Dist.] 2018, pet. ref’d); See Orellana v. State, 489 S.W.3d 537, 550 (Tex. 

App.—Houston [14th Dist.] 2016, pet. ref’d).

Appellant has not met her burden to rebut the presumption that counsel’s 

actions were motivated by sound trial strategy by not objecting when appellant 

claims that counsel should have. See Perez v. State, 56 S.W.3d 727, 731 (Tex. 

App.—Houston [14th Dist.] 2001, pet. ref’d) (explaining that the appellant has the 

burden to rebut presumption of sound trial strategy with evidence). 

We overrule appellant’s first issue. 
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C. Did appellant’s trial counsel render ineffective assistance by commenting

about a Miranda violation, or alternatively for not taking steps earlier?

Appellant’s second complaint is layered with subordinate parts that are 

distinguishable enough to demand separate attention. Her primary contention is 

that her trial counsel rendered ineffective assistance because of a statement she 

made in closing argument about “a lack of Miranda warning in connection with the 

defendant’s statement.” She points out that one officer testified that appellant was 

read her Miranda warning. Under this complaint, she argues her counsel was 

ineffective in the earlier phases of trial because she neither moved to suppress any

statement obtained in violation of Miranda, nor did she request an instruction 

under article 38.23 of the Texas Code of Criminal Procedure. Whichever the 

complaint, our conclusion is the same. 

Appellant does not attempt to identify the statement (or any other evidence)

to which she refers. As the State points out, the trial record reveals that the only 

“statement” appellant made to the police in connection with her apprehension and 

arrest was her approval to unlock her already seized phone so that the police could 

relay to her phone numbers stored in her phone so she could call her family 

members while in custody. This statement was elicited from the testifying officer 

in cross-examination; he stated that appellant initiated the discussion by requesting 

to have her cell phone. The State did not offer this statement or any other 

statement from appellant into evidence. From our record, it would appear that no

statement was made by appellant concerning the facts of the offense. It also was 

established that password that she provided was not used by the police to access 

any other information on her phone at any other time. Appellant’s phone, which 

was the source of significant evidence, was not searched until ten days after her 

arrest pursuant to a warrant. 
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Two officers testified that they believed that appellant was read her Miranda

rights. Neither officer had a record to refer to support their assertion and expressed 

that their belief was connected to routine. No evidence was offered to contradict 

their statements. 

Motion to Suppress

To the extent that appellant argues that her counsel was ineffective for 

failing to file a motion to suppress a statement, her argument lacks support in the 

record. A person who is questioned by a police officer after she is taken into 

custody or otherwise deprived of her freedom of action in any significant way must 

first be warned that she has a right to remain silent, that any statement she does 

make may be used as evidence against her, and that she has a right to the presence 

of an attorney, either retained or appointed. Miranda v. Arizona., 384 U.S. at 436, 

444, 86 S.Ct. 1602 (1966). “Statements elicited in noncompliance with this rule 

may not be admitted for certain purposes in a criminal trial.” Stansbury v. 

California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528 (1994). To prevail on this 

complaint, the record on direct appeal must affirmatively prove appellant’s motion 

to suppress would have been granted. Jackson v. State, 973 S.W.2d 954, 957 (Tex.

Crim. App. 1998). To meet her burden, appellant was required to produce 

evidence that would defeat the presumption of proper police conduct. Id. at 957;

Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no 

pet.).

In the absence of a statement or evidence to suppress, the appellant has not 

affirmatively shown by a preponderance of the evidence that any motion to 

suppress would have been granted. See id. 
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Failure to request article 38.23 Instruction

Likewise, to the extent that appellant complains that her counsel was

ineffective for failing to request an instruction under article 38.23 of the Texas 

Code of Criminal Procedure, we conclude such complaint unavailing. A trial court 

is required to include an Article 38.23 instruction only if the trial evidence raised a 

factual issue concerning whether the evidence was obtained in violation of the 

federal constitution or the Texas Constitution or any of its laws. Ramirez v. State, 

76 S.W.3d 121, 128 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); Tex. Code 

Crim. Pro. Ann. art. 38.23. Because appellant has not shown she was entitled to an 

instruction under article 38.23, her trial counsel’s failure to request such an 

instruction is not ineffective assistance. Cummings v. State, 401 S.W.3d 127, 132 

(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). 

Silent Record

Because no motion for new trial was filed, there is no record of appellant’s 

trial counsel’s explanation for her comment in closing or her decisions not to 

suppress or seek an instruction with respect to any statement. Even if we assume 

appellant’s attorney concluded that appellant’s exchange permitting the officer to 

open her phone was subject to Miranda, that Miranda warnings were not given, 

and that such statements could have been suppressed or that a court would have

suppressed, we cannot conclude that appellant’s trial counsel’s failure to act on 

such and seek the exclusion or an instruction with respect to the evidence in 

question — with no discernable bearing on her offense or the seizure of her cell 

phone data — was “so outrageous that no competent attorney would have engaged 

in it.” Goodspeed, 187 S.W.3d at 392. Even if she lacked a statement to suppress 

or seek a 38.23 instruction, her counsel may have strategically sought to engulf the 

jury in suspicion of police misconduct to distract them from weaknesses in her 
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client’s case. 

Therefore, we overrule appellant’s second issue. 

D. Did appellant’s trial counsel render ineffective assistance for failing to 

present mitigating evidence during the punishment phase?

In her third issue, appellant complains that her trial counsel was ineffective 

in failing to present any mitigating evidence at the punishment phase. Other than 

her general complaint, appellant has not added significant detail in support; she has 

neither identified any particular evidence or category of mitigating evidence 

available to her counsel that she omitted, nor has she addressed her counsel’s 

reasoning behind this decision not to offer any evidence. A hearing on a motion for 

new trial would have given the parties and opportunity to present evidence to shed 

light on these subjects. However, as set out in previous parts of this opinion, 

when the record is silent as to trial counsel’s strategy, we will not conclude the 

defendant received ineffective assistance unless the challenged conduct was “so 

outrageous that no competent attorney would have engaged in it.” Goodspeed, 187 

S.W.3d at 392; see Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). 

We cannot reach such a conclusion in this case. 

Appellant even notes in her brief that “this issue may be more appropriately 

developed through a state writ of habeas corpus” and concedes that under a silent 

record “her trial counsel reasonably could have determined that the potential 

benefit of additional witnesses was outweighed by the risk of unfavorable countertestimony.” This latter point bears particular application to this case because in 

addition to the State’s evidence of 10 prior convictions, text messages from 

appellant’s phone showed appellant’s criminal ideas and thinking in the three 

months since she was last released. These communications illustrated that she

spoke in a derogatory manner to others about the parole system and she actively 
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sought out other criminals to establish her criminal enterprise.

When the Court asked appellant’s attorney if she had any witnesses, she 

responded, “We attempted to gather a witness, which is actually her brother. We 

haven’t heard back from him. So at this time we rest.” Prior to resting, her counsel

demonstrated a willingness elicit mitigating testimony. She elicited testimony that 

appellant was non-violent, that she had attempted to get work by means other than 

stealing and defrauding others, and she attempted to elicit testimony that appellant

was a mother of four children. On this record, without and further explanation 

about her trial counsel’s decision-making, it is not clear what other witnesses and

evidence were available to her trial counsel and her decision-making process with 

respect any available evidence, and what other external limitations beyond her 

control may have been placed on appellant’s counsel. Jones v. State, 572 S.W.3d 

841, 850–51 (Tex. App.—Houston [14th Dist.] 2019, no pet.)(concluding that 

shortcomings of a silent record prevented meaningful consideration of first

Strickland prong in failure-to-present-mitigating evidence ineffective assistance

complaint on direct appeal); see also Narvaiz v. State, 840 S.W.2d 415, 434 (Tex.

Crim. App. 1992) (trial counsel not ineffective for not presenting more mitigating 

evidence in capital murder trial when on appeal defendant did not specify what 

evidence should have been presented). 

For the foregoing reasons, we overrule the third issue.

III. CONCLUSION

Appellant’s three ineffective-assistance-of-counsel arguments provide no 

basis for appellate relief. Accordingly, we overrule appellant’s complaints and 

affirm the trial court’s judgment.
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/s/ Randy Wilson

Justice

Panel consists of Justices Jewell, Spain, and Wilson (Spain, J., concurs without 

opinion).

Do Not Publish — Tex. R. App. P. 47.2(b).