NO. 12-09-00294-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

GEORGE ANN ANDERSON,

APPELLANT ' APPEAL FROM THE 7TH

V. ' JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS, ' SMITH COUNTY, TEXAS

APPELLEE

MEMORANDUM OPINION

George Ann Anderson appeals from her conviction for driving while intoxicated. 

In one issue, Appellant argues that she received ineffective assistance of counsel. We 

affirm.

BACKGROUND

A Smith County grand jury indicted Appellant for the felony offense of driving 

while intoxicated. The grand jury alleged that she had two prior convictions for driving 

while intoxicated and an unrelated prior felony conviction. Appellant pleaded not guilty 

to the charge of driving while intoxicated, but admitted that she had two prior convictions 

for driving while intoxicated. 

There had been a fire at Appellant’s home about four months prior to the traffic 

stop that preceded Appellant’s arrest in this case. At the time she was stopped, 

Appellant’s truck was full of various items she had removed from her home. During 

closing argument, Appellant’s attorney asked the jury to consider the “normal mental and 

physical faculties of someone whose house burned down about four months before [the] 

stop and is riding around with all of her belongings in the car.” At the end of his 

argument, her attorney returned briefly to the same theme, noting that “people find 

themselves in different circumstances, in different states of mind throughout their life.” 

He argued that “there are many other reasons in this case, other than the consumption of 

alcohol, for [Appellant] to behave in a way that at least [the officer] saw for her erratic 

driving, for everything that happened that day.” 
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In rebuttal, the prosecutor said, “[A]nd then to come back and say this – – this 

actually does bother me a little bit. Well, see she – – her house burned down - – which, 

let me tell you this real quick. The officer said he was aware of that. Did you hear any 

evidence or anything about how it affected her? Not a lick. Nothing. So don’t buy that.” 

Appellant’s counsel did not object to the State’s argument.

The jury found Appellant guilty as charged. A sentencing hearing was held. The 

jury found that she had a prior felony conviction and assessed a sentence of imprisonment 

for sixteen years and a fine of ten thousand dollars. This appeal followed. 

INEFFECTIVE ASSISTANCE OF COUNSEL

In a single issue, Appellant argues that her attorney did not provide effective 

assistance of counsel because he did not object to the State’s argument about the lack of 

evidence as to how the fire affected Appellant.

Applicable Law

Claims of ineffective assistance of counsel are evaluated under the two step 

analysis articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. 

Ed. 674 (1984). The first step requires an appellant to demonstrate that trial counsel’s 

representation fell below an objective standard of reasonableness under prevailing 

professional norms. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. 

State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Counsel’s representation is not 

reviewed for isolated or incidental deviations from professional norms, but on the basis of 

the totality of the representation. See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.

The second step requires the appellant to show prejudice from the deficient 

performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. 

App. 1999). To establish prejudice, an appellant must show that there is a reasonable 

probability that the result of the proceeding would have been different but for counsel’s 

deficient performance. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. 

We begin with the strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance. See Jackson v. State, 877 S.W.2d 768, 771 

(Tex. Crim. App. 1994). As part of this presumption, we presume counsel’s actions and 

decisions were reasonable and were motivated by sound trial strategy. See id. Appellant 

has the burden of proving ineffective assistance of counsel. See id. 
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To show ineffective assistance of counsel for the failure to object during trial, the 

applicant must show that the trial court would have committed error in overruling the 

objection. See Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. App. 2004). A 

prosecutor’s comment that refers to a defendant’s failure to testify violates the accused’s 

Fifth Amendment right against compelled self-incrimination. See Canales v. State, 98 

S.W.3d 690, 695 (Tex. Crim. App. 2003) (citing Griffin v. California, 380 U.S. 609, 85 

S. Ct. 1229, 1232–33, 14 L. Ed. 2d 106 (1965)); Bustamante v. State, 48 S.W.3d 761, 

765 (Tex. Crim. App. 2001)). To be a violation of the defendant’s right not to testify, a 

comment must clearly refer to the defendant’s failure to testify. Canales, 98 S.W.3d at 

695. It is not a violation if the comment “might be construed as an implied or indirect 

allusion” to the defendant’s failure to testify. Id. The test is whether the language used 

was manifestly intended or was of such a character that the jury would necessarily and 

naturally take it as a comment on the defendant's failure to testify. Id. 

Proper jury argument will generally fall within one of four categories: (1) 

summary of the evidence, (2) reasonable deduction from the evidence, (3) response to 

argument of opposing counsel, and (4) plea for law enforcement. See Ex parte Lane, 303 

S.W.3d 702, 711 (Tex. Crim. App. 2009).

Analysis

Appellant asserts that her trial counsel’s conduct was below professional norms 

because he did not object to the prosecutor’s argument that there was no evidence as to

how the fire at Appellant’s house affected her.

There was no evidence as to how the fire affected Appellant. Appellant argues 

that the prosecutor’s comment unfairly burdened her right not to testify because only she 

could have provided this evidence. See Griggin v. California, 380 U.S. 609, 614, 85 S. 

Ct. 1229, 1232–33, 14 L. Ed. 2d 106 (1965) (A comment on the defendant’s failure to 

testify is a “remnant of the inquisitorial system of criminal justice” and is forbidden by 

the Fifth Amendment because it “cuts down on the privilege [against self incrimination] 

by making its assertion costly.”). We disagree with Appellant’s analysis. 

A prosecutor must be cautious when making arguments about a lack of evidence 

when that evidence could have been supplied by the defendant. The right to remain silent 

is a constitutional right. Id. Further, Texas law specifically protects a defendant from 

comments on or allusions to her failure to testify. TEX. CODE CRIM. PROC. ANN. art. 
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38.08 (Vernon 2005). Direct comments are impermissible, but an argument is also 

improper if it directs the jury’s attention to an absence of testimony only the defendant 

could supply. See Angel v. State, 627 S.W.2d 424, 426 (Tex. Crim. App. 1982).

In this case, however, it is likely that another witness could have explained 

Appellant’s condition if the fire at her home damaged her emotional health to the point 

that it would explain her actions the day she was arrested. As such, the jury would not 

necessarily take the prosecutor’s argument to be a comment on Appellant’s decision not 

to testify, and it can be fairly understood to be a comment on a lack of evidence that 

could have come from a source other than Appellant. See Nowlin v. State, 507 S.W.2d 

534, 536 (Tex. Crim. App. 1974).

We also agree with the State that the prosecutor’s brief statement can be 

understood to be a response to Appellant’s counsel’s argument. Appellant’s counsel 

argued that the “normal mental and physical faculties of someone whose house burned 

down about four months before [the] stop and is riding around with all of her belongings

in the car” might be different from that of another person. The prosecutor responded that 

there was no evidence to support the implied assertion that Appellant’s mental state was 

unusual. 

The test is whether the comment was intended or was of such a character that the 

jury would necessarily and naturally take it as a comment on the defendant’s failure to 

testify. See Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). The State 

did not specifically point out that Appellant had not testified. A jury could reasonably 

understand the comment to be a response to counsel’s rhetorical question about the 

mental state of a person whose home had recently burned and not a comment on 

Appellant’s decision not to testify. Because it was a response to argument by Appellant’s 

counsel, and because there could have been evidence from a source other than 

Appellant’s testimony addressing her mental health, a jury would not necessarily or 

naturally take the prosecutor’s statement as a comment on Appellant’s failure to testify. 

For these reasons, it would not have been error for the trial court to overrule an objection 

to this argument. Accordingly, counsel’s performance was not deficient. See Ex parte 

White, 160 S.W.3d at 53. We overrule Appellant’s sole issue.
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DISPOSITION

Having overruled Appellant’s sole issue, we affirm the judgment of the trial 

court.

SAM GRIFFITH 

Justice

Opinion delivered August 25, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)