Opinion issued February 21, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00631-CR

———————————

JOHN PAUL THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 1

Harris County, Texas

Trial Court Case No. 1711637

O P I N I O N

A jury convicted appellant John Paul Thomas of the Class A misdemeanor 

offense of driving while intoxicated. See TEX. PENAL CODE ANN. § 49.04 (West 

Supp. 2012). After finding an enhancement allegation true, the trial court assessed 
2

his punishment of a fine of $750 and one year in county jail, probated for two years 

of community supervision. On appeal, Thomas argues that he was denied effective 

assistance of counsel during the guilt-innocence phase of the trial. He also 

contends that the court erred by not filing findings of fact and conclusions of law 

setting forth the basis for denying his motion for new trial, which also was 

premised on ineffective assistance of counsel.

We affirm.

Background

Thomas worked as a manager at an automobile dealership. After leaving 

work at approximately 10:30 p.m., Thomas went home, and, because he suffers 

from a sleep disorder, took a prescription-strength sleeping pill (Ambien) around

11:30 p.m. After dozing at home, he awoke craving a cigarette. At approximately 

1:00 a.m., he left his house and began driving to a convenience store to purchase 

cigarettes. After driving several miles, Thomas stopped at a stoplight. He closed 

his eyes to rest and fell asleep.

Around the same time, Houston Police Department Officer E. DeLeon was 

on patrol. She spotted Thomas’s car stopped at the light. She watched as the light 

went through two cycles, and the car did not move. She pulled beside the car, and 

she saw that Thomas’s “head was completely down” and he “appeared to be 

asleep.” She knocked on the window, but Thomas did not respond. Looking 
3

through the window with a flashlight, DeLeon noticed that Thomas’s foot was on 

the brake, but the car was in drive. She entered the car through the unlocked 

passenger-side door, put the gear into park, and removed the keys from the 

ignition.

When DeLeon entered the car, she immediately noticed the smell of alcohol, 

and she “assumed [Thomas] was intoxicated at that time.” She also noticed the 

smell of alcohol “coming from him.” DeLeon helped Thomas out of the car. She 

testified that he was “unsteady on his feet,” that his “speech was very slurred,” and 

that he had “glassy eyes, very red eyes.” Considering these factors along with the 

odor of alcohol, DeLeon believed that Thomas was intoxicated. Although Thomas 

became more steady as he awoke in the back of the patrol car while awaiting the 

arrival of the DWI unit, DeLeon believed that he was not in control of his mental 

and physical faculties that night.

On cross-examination, DeLeon was questioned about the possibility that 

Thomas had dozed off out of exhaustion rather than intoxication. DeLeon 

testified, “He was passed out because of the intoxication.” On redirect 

examination, she testified that fatigue or “taking something” would not make a 

person smell strongly of alcohol. She noted that, although she has been trained to 

conduct field sobriety tests, she did not conduct the field sobriety testing in this 

case, instead calling for other officers to do so.
4

Houston Police Department Officer J.R. Roberts, a member of the police 

department’s DWI Task Force, responded to DeLeon’s call for assistance. When 

Roberts encountered Thomas, who had been waiting in DeLeon’s patrol car, he 

noticed that Thomas had “a strong odor of alcoholic beverage on his breath.” He 

also noticed that Thomas’s speech was “slightly slurred.”

A patrol-car videorecording showing the administration of field sobriety 

tests was played for the jury. After testifying about his credentials, Roberts 

testified that there are three “standardized and validated” field sobriety tests: the 

horizontal gaze nystagmus, the one-leg stand, and the walk-and-turn. He testified 

that the National Highway Traffic Safety Administration specifies that the 

presence of two clues on a single test indicates that a person is impaired. Thomas 

refused to take the horizontal gaze nystagmus test, but he took the other two tests. 

Roberts testified that Thomas displayed three of four “clues” tending to show 

intoxication on the one-leg-stand test, including the fact that he dropped his foot. 

Roberts testified that Thomas displayed four of eight “clues” on the walk-and-turn 

test, including his failure to maintain heel-to-toe contact. Based on these tests, 

Roberts made a determination as to Thomas’s intoxication, however he 

administered an additional test, which he said was standardized but not validated, 

“meaning there really is no pass or fail of the test.” He testified:

It’s called the Rhomberg balance test. Basically a person is asked to 

stand with their feet together and tilt their head back and close their 
5

eyes. They are asked to estimate a passage of 30 seconds. And when 

they believe 30 seconds has gone by, bring their head forward and 

open their eyes and told to stop.

Roberts testified that Thomas estimated the passage of time at 28 seconds, but he 

had a “distinct 1-to-2-inch circular sway.” Roberts explained why that was 

significant:

Everybody when they stand with their feet together and their head 

tilted back is going to have some sway. The average person falls at 

about half of an inch. Anything considerably more than an inch, you 

consider it to be a little outside of the normal range. And a circular 

sway is almost always abnormal. 

He said the Rhomberg test is “just a gauge of something to look at. But, again, this 

isn’t a pass/fail test.”

Roberts testified that Thomas told him that he had taken Ambien. Based on 

his training and experience, Roberts testified as to the effect of Ambien alone and 

in combination with alcohol:

Q. Now, does Ambien have any type of effects on the body?

. . . .

A. Yes, sir, it does.

Q. What type of effect is that?

A. Almost the same as any other central nervous system 

depressant, and it can slow the body down which is what helps 

people go to sleep.

. . . .
6

Q. So, tell us, what are the effects of Ambien if combined with 

alcohol?

A. It intensifies the effect of the original drug and it causes 

drowsiness and—the worst part, of course is it intensifies both 

drugs. Any time you use two drugs in the same category, it 

makes each drug stronger.

The State sought to introduce into evidence an image of the label from a 

prescription pill bottle allegedly found in Thomas’s car. The State intended to 

show the jury that the sleeping pills carried a warning about the effect of 

combining them with alcohol. Thomas’s counsel objected based on the lack of 

foundation, specifically that Roberts did not recall with certainty whether he had 

created the image. Defense counsel believed that it was created by Thomas’s prior 

attorney. The trial court did not admit the image.

However, Roberts did testify that the “drug-label warnings associated with 

Ambien” state that the drug can impair a person’s ability to drive and that 

combining Ambien with alcohol “intensifies the effect.” Roberts also testified that 

he could tell the difference between a person who was intoxicated and a person 

who was fatigued, because a fatigued person would not smell like alcohol, would 

not have slurred speech, and would not perform poorly on field sobriety tests.

Based on all of his observations, experience, and training, Roberts concluded 

that Thomas had lost the normal use of his mental and physical faculties “through 

the introduction of alcohol into his system.” He said “there could have been” other 
7

factors contributing to Thomas’s loss of the use of his mental and physical 

faculties, but he said he would have to “base it just off the standardized field 

sobriety tests and then, obviously, alcohol being something that I can smell. . . . I 

can take his statement and add that to it, but that’s the only way I would be able to 

know for sure about that.” He also testified, “I can tell the difference between 

somebody who is really tired and somebody who has been drinking.” On crossexamination, Roberts testified that he did not administer a breath test, and based on 

departmental policy he did not pursue a search warrant for a blood test.

Officer R. Montelongo, also a member of HPD’s DWI Task Force, testified 

that Roberts asked him to administer a breath test to Thomas at the police station. 

After giving the proper warnings, including information about license revocation 

for failing to provide a sample, Thomas refused the breath test and refused to sign 

associated paperwork. Montelongo also testified that Thomas “had a strong odor 

of an alcoholic beverage emitting from his breath and person.” On crossexamination, both Roberts and Montelongo testified that alcohol itself is odorless.

Thomas testified, and he denied consuming alcoholic beverages before he 

left work at approximately 10:30 p.m. or any time after that. On that night, he 

returned home, took an Ambien, dozed briefly, and when he awoke he left his 

house to buy cigarettes. He admitted that he stopped at a light, closed his eyes, and 
8

dozed off again. But he denied that he had lost the normal use of his mental or 

physical faculties at that time. 

Thomas said that the passenger’s side door was not unlocked as DeLeon had 

testified, and that it was he, not DeLeon, who put the car in park. He said that 

when DeLeon roused him, “[s]he was yelling, cursing for me to get out of the car.” 

He testified that he was “scared”:

I was—there was an officer yelling at me to get the “f” out of 

the car. I wasn’t quite sure what was going on.

. . . .

I got out of the car and tried to have a conversation with the 

officer, and she kept pushing me up against the car. And I tried to 

turn around once to talk with her; and she said, If you resist, I will 

f-ing tase you.

Thomas testified that DeLeon pushed him up against his car and handcuffed him. 

He later testified that DeLeon did not “violently” push him against his car, and he 

said, “She was asserting her voice, I guess, to make up for the lack in her size.”

Thomas testified that he was exhausted at the time the field sobriety tests 

were conducted. He claimed to have told an officer that he had taken an Ambien. 

Thomas denied being intoxicated or having lost the normal use of his mental and 

physical faculties. He then addressed his performance on the field-sobriety tests. 

As to his refusal of the horizontal gaze nystagmus test, he said, “I didn’t have a 

problem doing the test but the video couldn’t see it . . . the video couldn’t 
9

determine the results of that test.” As to the one-leg-stand test, he explained that 

he put his foot down when Roberts gestured downward because he assumed “that 

the test was over and he was telling me to put my foot down.” As to the walk-andturn test, Thomas said, “My perception of heel to toe was instead of walking two 

feet side by side, it was one foot in front of the other.” Finally, as to the officers’ 

testimony that they smelled a strong odor of alcohol on him, he said, “I don’t think 

they were lying. I think that’s just standard operating procedure. I think that’s just 

what they are instructed to put down on their report.”

On cross-examination, the State asked if he had previously provided the 

information he testified about on his direct examination:

Q. Mr. Thomas, we’ve never met before, have we?

A. No.

Q. Never talked before?

A. No.

Q. And you’ve never told me or any other prosecutor in my office 

this story that you came out with today on the stand about 

officer—

Thomas’s counsel objected on the grounds of relevance, saying, “He has no duty to 

tell anyone.” The trial court sustained the objection. The State again inquired 

about Thomas’s testimony regarding DeLeon’s treatment of him:

Q. This is the first time you are saying this?
10

A. First time I’ve been asked.

Thomas’s counsel spoke first at closing argument. He argued that 

deficiencies in the State’s proof warranted a conclusion that there was a reasonable 

doubt that Thomas was intoxicated as opposed to just fatigued. For example, as to 

DeLeon’s testimony, he argued:

[I]f my client drove along [the road] that far and if he had 

passed out and had not dozed off, if he had passed out, he would be 

significantly impaired and significantly intoxicated. And yet the 

position of his car at the time he comes to the light is as the officer 

said, where he should have been, in the correct lane, at the correct 

distance from the light. So, is that more consistent with him being 

passed out, or is it more consistent with dozing off? Clearly, with 

dozing off. Okay?

. . . .

[M]y client indicated that, yes, I did have a sleeping disorder 

and, yes, I was taking Ambien. Yes, I was. Clearly, could that cause 

him to be sleeping and to doze off because he has a sleeping disorder? 

Absolutely. 

He then anticipated what the State would argue in its closing: “I anticipate that the 

State is going to say that John Paul Thomas is a liar; he’s lying, ladies and 

gentlemen, to get out of this. We know that he was drinking that night. We know 

he was because the officer said it.”

The State, in fact, argued that Thomas was lying:

Please, please, please use your common sense. . . . You judge 

the credibility of the officers. Use your common sense. Because you 

know what? Your common sense leads to one thing. Fatigue, that 

don’t fly.
11

[Defense counsel] is right, he knows exactly what I’m going to 

say. It is just another lie. He came up here and gave you guys a great 

closing, tell you guys what I was going to bring you forward with 

regards to the State. Common sense tells you, why does he intend to 

think what I am going to say?

. . . .

I gave you testimony from a credible witness, Officer DeLeon. 

Apparently that same person who came up here, raised her hand, took 

an oath and sat down was some raven lunatic that night, trying to use 

her voice to make up for her small stature. Just another lie, another lie 

in a trail of lies, a trail of lies that started at [Thomas’s home] and 

ended [where he stopped his car]. . . . It’s a trail of lies. Someone has 

been lying to you. That person sits right there before you.

What did I give you? Not just one credible witness, not just 

two, I gave you three credible witnesses, people who have no vested 

interest to lie, to put their reputation and their jobs on the line, to come 

here and make up . . . lies and perjure themselves just for one person. 

Come on, common sense tells you the lie starts here and it ends here. 

The lie is, I was just asleep. The truth is he was intoxicated. The 

truth is he did take an Ambien at 11:30.

. . . .

I’m sorry, but I don’t care how late you stay up. Your body and 

your breath does not emit an odor [of] an alcoholic beverage. It’s a 

lie. 

The jury found Thomas guilty, and the trial court sentenced him to a fine of 

$750 and one year in county jail, probated for two years of community supervision. 

Thomas filed a motion for new trial on the grounds that he was denied effective 

assistance of counsel during the guilt-or-innocence stage of his trial and that the 

interest of justice required a new trial. Specifically, he made the following 

allegations of deficient performance:
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1. Counsel failed to ask for an instruction to disregard testimony, 

and to move for a mistrial, after the prosecutor improperly 

cross-examined Thomas with his post-arrest silence;

2. Counsel failed to object after the prosecutor improperly crossexamined Thomas with his post-arrest silence a second time;

3. Counsel failed to object after the prosecutor struck at Thomas 

over his counsel’s shoulders during final argument;

4. Counsel failed to object after the prosecutor improperly injected 

his personal opinion by vouching for the credibility of one of 

his witnesses during final argument;

5. Counsel failed to make the correct objection after the 

prosecutor improperly injected his personal opinion by once 

again vouching for the credibility of his witnesses during final 

argument; and

6. Counsel objected to evidence that was beneficial to Thomas’s 

defensive theory and failed to re-offer it in the face of a State’s 

objection to a similar exhibit.

Thomas attached to his motion for new trial an affidavit from trial counsel in 

which counsel conceded that his actions constituted deficient performance. Trial 

counsel also averred that these actions were “not the result of any trial strategy.” 

At the hearing on the motion for new trial and after the trial court announced its 

ruling denying the motion, Thomas’s appellate counsel requested that the court file 

findings of fact and conclusions of law and offered to “prepare some but only to 

assist the Court of Appeals in determining, for instance, whether or not you found 

the affidavit credible or whether or not you found deficient conduct and no 
13

prejudice or anything like that.” The trial court noted his request, and said, “If I do 

them, I will do my own.”

The court did not file findings of fact and conclusions of law. On appeal, 

Thomas challenges the court’s refusal to do so, and he argues that he was denied 

effective assistance of counsel at trial.

Analysis

I. Ineffective assistance of counsel

In his first issue, Thomas argues that he was denied effective assistance of 

counsel at trial. The standard of review for ineffective assistance of counsel is set 

forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and Bone 

v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). To prevail, Thomas must first 

show that his counsel’s performance was deficient. Strickland, 466 U.S. at 687, 

104 S. Ct. at 2064; Bone, 77 S.W.3d at 833. “Specifically, [an] appellant must 

prove, by a preponderance of the evidence, that his counsel’s representation fell 

below the objective standard of professional norms.” Bone, 77 S.W.3d at 833. 

“Second, [an] appellant must show that this deficient performance prejudiced his 

defense,” meaning that Thomas “must show a reasonable probability that, but for 

his counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Id. (quoting Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App.

2002)). A “reasonable probability” is one “sufficient to undermine confidence in 
14

the outcome.” Id. “It is not sufficient for [an appellant] to show ‘that the errors 

had some conceivable effect on the outcome of the proceeding.’” Ex parte 

Martinez, 330 S.W.3d 891, 901 (Tex. Crim. App. 2011) (quoting Strickland, 466 

U.S. at 693, 104 S. Ct. 2052), cert. denied, 131 S. Ct. 3073 (2011). Rather, [an 

appellant] must show that ‘there is a reasonable probability that, absent the errors, 

the factfinder would have had a reasonable doubt respecting guilt.’” Id. (quoting 

Strickland, 466 U.S. at 695, 104 S. Ct. 2052). Thus, the “benchmark for judging 

any claim of ineffectiveness must be whether counsel’s conduct so undermined the 

proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland, 466 U.S. at 686, 104 S. Ct. at 2064. 

There is a strong presumption that counsel’s conduct fell within the wide 

range of reasonable professional assistance, and the defendant must overcome the 

presumption that the challenged action might be considered sound trial strategy. 

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. To overcome the presumption of 

reasonable professional assistance, “any allegation of ineffectiveness must be 

firmly founded in the record, and the record must affirmatively demonstrate the 

alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App.

1999). “Direct appeal is usually an inadequate vehicle for raising such a claim 

because the record is generally undeveloped.” Goodspeed v. State, 187 S.W.3d 

390, 392 (Tex. Crim. App. 2005). When determining the validity of an ineffective-
15

assistance-of-counsel claim, judicial review must be highly deferential to trial 

counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 

S.W.2d 503, 509 (Tex. Crim. App. 1984). 

A. Post-arrest silence

Thomas’s first two allegations of ineffectiveness pertain to the State’s 

inquiry about his post-arrest silence. He contends that his counsel failed to ask for 

an instruction to disregard, and counsel also failed to move for a mistrial after the 

prosecutor improperly cross-examined Thomas with his post-arrest silence. 

Thomas also argues that his counsel failed to object after the prosecutor improperly 

cross-examined him with his post-arrest silence a second time.

Both of these complaints on appeal involve the prosecutor’s inquiry about 

whether Thomas had told anyone about Officer DeLeon’s alleged mistreatment of 

him on the night he was arrested. The first time, the trial court sustained Thomas’s 

objection when the prosecutor began a question, “And you’ve never told me or any 

other prosecutor in my office this story that you came out with today on the stand 

about officer—.” In the second instance, the prosecutor asked, “This is the first 

time you are saying this?” Defense counsel did not object, and Thomas testified, 

“First time I’ve been asked.”

Thomas argues that both his counsel’s failure to move for a mistrial when 

his first objection was sustained and his failure to object to the second question are 
16

errors amounting to ineffective assistance of counsel. As to the second question, 

even if an objection had been made and sustained, trial counsel would have had to 

move for a mistrial to preserve error. Thus, we consider both of his arguments 

together. “The failure of appellant’s counsel to request a mistrial could only be 

termed an act of ineffective assistance of counsel if a mistrial should have been 

granted.” Weinn v. State, 281 S.W.3d 633, 641 (Tex. App.—Amarillo 2009), aff’d 

on other grounds, 326 S.W.3d 189 (Tex. Crim. App. 2010). A trial court’s ruling 

on a motion for mistrial is reviewed for abuse of discretion and is upheld if it is 

within the zone of reasonable disagreement. Ocon v. State, 284 S.W.3d 880, 884 

(Tex. Crim. App. 2009). “A mistrial is an appropriate remedy in ‘extreme 

circumstances’ for a narrow class of highly prejudicial and incurable errors.” Id. 

“A mistrial halts trial proceedings when error is so prejudicial that expenditure of 

further time and expense would be wasteful and futile.” Id. A mistrial should be 

granted only when less drastic alternatives fail to cure the prejudice. Id. at 884–85.

The two prongs of Strickland need not be analyzed in a particular order, see 

Ex parte Martinez, 330 S.W.3d at 901, and we turn first to the prejudice prong. 

The Court of Criminal Appeals has noted that the standard for showing prejudice 

on a claim of ineffective assistance of counsel is more demanding than the showing 

needed to prove harm under the Rules of Appellate Procedure. Id. at 903. To 

prevail, Thomas must show a reasonable probability that but for his counsel’s 
17

deficient performance, the result of the proceeding would have been different. 

Bone, 77 S.W.3d at 833.

Thomas has not met this burden with respect to the questions about the 

timing of his allegations of mistreatment at the hands of Officer DeLeon. The 

defensive theory at trial was that Thomas was not intoxicated, but instead he was 

exhausted from working long hours, suffering from a sleep disorder, and, possibly,

the use of a prescription sleep aid. His testimony that DeLeon yelled at him and 

threatened to “tase” him if he failed to cooperate was not directly inculpatory or 

exculpatory in the context of this defense. In some circumstances, the use of a 

defendant’s post-arrest silence can be “akin to a comment on his failure to testify at 

trial because it attempts to raise an inference of guilt arising from the invocation of 

a constitutional right.” Wyborny v. State, 209 S.W.3d 285, 291 (Tex. App.—

Houston [1st Dist.] 2006, pet. ref’d) (citing Dinkins v. State, 894 S.W.2d 330, 356 

(Tex. Crim. App. 1995)). But in this context, the prosecutor’s questions about 

Thomas’s failure to complain previously about DeLeon’s treatment of him did not 

raise an inference of guilt on the DWI charge. Thomas has not shown that these 

questions resulted in incurable prejudice such as would have justified a mistrial. 

See Ocon, 284 S.W.3d at 884–85. He therefore has not shown a reasonable 

probability that but for his counsel’s allegedly deficient performance, the result of 

his trial would have been different. See Bone, 77 S.W.3d at 833. 
18

B. Vouching for the credibility of the witnesses

Thomas brings two allegations of ineffectiveness based on his counsel’s 

failure to object to the prosecutor’s comments in closing argument about the 

credibility of the State’s witnesses. He contends that he was prejudiced by his 

counsel’s failure to object, or counsel’s failure to make the correct objection, after 

the prosecutor improperly injected his personal opinion by vouching for the 

credibility of a witness during final argument. Thomas argues that these comments 

are so prejudicial that they warrant reversal without a showing of harm. 

As we have explained, an appellant must satisfy both the deficient 

performance and prejudice prongs of the Strickland standard to prevail on an 

ineffective assistance of counsel claim on appeal. Rylander v. State, 101 S.W.3d 

107, 110 (Tex. Crim. App. 2003). The approved areas of jury argument are 

(1) summation of the evidence, (2) reasonable deduction from the evidence, 

(3) answer to the argument of opposing counsel, and (4) plea for law enforcement.

Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000). Ordinarily it is 

improper for a prosecutor to vouch for the credibility of a witness during his 

argument. See Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981); 

Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim. App. 1974). But a prosecutor 

may argue his opinion concerning a witness’s credibility or the truth of witness’s 

testimony if the opinion is based on reasonable deductions from the evidence and 
19

does not constitute unsworn testimony. McKay v. State, 707 S.W.2d 23, 37 (Tex.

Crim. App. 1985); Gonzalez v. State, 337 S.W.3d 473, 483 (Tex. App.—Houston 

[1st Dist.] 2011, pet. ref’d). In addition, a prosecutor may argue about the 

credibility of a witness if such argument was invited by and is responsive to 

appellant’s arguments. Chapman, 503 S.W.2d at 238; McDuffie v. State, 854 

S.W.2d 195, 216–17 (Tex. App.—Beaumont 1993, pet. ref’d). Wide latitude is 

allowed without limitation in drawing inferences from the evidence, so long as the 

inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis 

v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

The State waived its right to speak first at closing argument, reserving its 

right to close. Thus, Thomas’s counsel spoke first. In his closing argument, 

Thomas’s counsel questioned the credibility of the police officers who testified at 

trial and anticipated that the State would accuse Thomas of lying. He argued:

I anticipate that the State is going to say that John Paul Thomas 

is a liar; he’s lying, ladies and gentlemen, to get out of this. We know 

that he was drinking that night. We know he was because the officer 

said it. Well, they don’t remember what the beverage was, but they 

are going to say that.

. . . .

Third, what else are they going to say? . . . The officers would 

have no reason to lie. They are just doing their job, right? They are 

just following their policy. Correct? Officer Roberts said he found—

initially he said he found that bottle in the car. Then on crossexamination, said, Well, I don’t remember. I don’t know. Either he 

forgot and made it up. I don’t know. Officer DeLeon said, He was so 
20

intoxicated that he had to lean against me. And yet ten minutes later 

he can do those field—he can stand on one leg and do those field 

sobriety tests ten minutes later. Is it possible everybody is trying to 

fib a little bit? It’s possible. But that’s not what you have to decide. 

What you have to decide is whether or not they’ve proved their case.

In closing argument, the State made the following statements, as to which 

Thomas contends his counsel should have objected. 

State: I gave you testimony from a credible witness. 

. . . .

What did I give you? Not just one credible 

witness, not just two, I gave you three credible 

witnesses, people who have no vested interest to 

lie, to put their reputation and their jobs on the 

line, to come here and make up—

Defense Counsel: Objection, Your Honor. There is no evidence that 

their job was on the line.

Trial Court: Overruled.

Defense Counsel: Thank you.

State: —to come here and make up lies and perjure 

themselves just for one person. Come on, common 

sense tells you the lie starts here and it ends here.

The State’s argument that the witnesses were credible responded to 

Thomas’s counsel’s argument that it was possible that everybody was trying to “fib 

a little bit.” The argument that the officers lacked a motivation to lie responded to 

defense counsel’s arguments anticipating the State would say the officers were just 

doing their jobs and questioning the validity of that premise (“Either he lied and 
21

made it up. I don’t know.”). The State’s arguments were reasonable deductions 

from the evidence and answers to the argument of opposing counsel. See 

Wesbrook, 29 S.W.3d at 115. Because the State’s argument about the credibility of 

the officers was invited by and is responsive to Thomas’s arguments, it was not 

improper. See Chapman, 503 S.W.2d at 238; McDuffie, 854 S.W.2d at 216–17. 

“[T]he failure to object to argument that is not improper does not constitute 

ineffective assistance of counsel.” Davis v. State, 830 S.W.2d 762, 766 (Tex. 

App.—Houston [1st Dist.] 1992, pet. ref’d). 

C. Improper argument

Thomas makes another allegation of ineffectiveness based on his counsel’s 

failure to object to the State’s closing argument. In particular, Thomas alleges that 

his counsel was ineffective for failing to object when the prosecutor “struck at 

[him] over his counsel’s shoulders during final argument.” The statement to which 

Thomas argues his counsel should have objected in this regard was: “[Defense 

counsel] is right, he knows exactly what I’m going to say. It is just another lie. He 

came up here and gave you guys a great closing, tell you what I was going to bring 

you forward with regards to the State.” Thomas argues that the prosecutor’s 

statement was an effort to characterize his counsel’s closing argument as just 

another lie.
22

To determine whether a party’s jury argument properly falls within one of 

the four proper areas of jury argument, we must consider the argument in light of 

the record. Magana v. State, 177 S.W.3d 670, 674 (Tex. App.—Houston [1st 

Dist.] 2005, no pet.); see Wesbrook, 29 S.W.3d at 115. The State may not use 

closing argument to “strike” at a defendant over the shoulders of his counsel or 

accuse counsel of bad faith. Magana, 177 S.W.3d at 674; see also Mosley v. State, 

983 S.W.2d 249, 258–59 (Tex. Crim. App. 1998). A prosecutor runs the risk of 

improperly “striking” at a defendant over the shoulders of counsel when the 

argument is made in terms of defense counsel personally and when the argument 

explicitly impugns defense counsel’s character. Mosley, 983 S.W.2d at 259; 

Magana, 177 S.W.3d at 674–75. It is, however, permissible for a prosecutor to 

attack the defense’s argument. See Brown v. State, 270 S.W.3d 564, 572 (Tex.

Crim. App. 2008); Magana, 177 S.W.3d at 675. If defense counsel invites 

argument, it is appropriate for the State to respond. See Swarb v. State, 125 

S.W.3d 672, 686 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).

We have already noted that defense counsel presented an argument that 

expressly anticipated that the State would accuse Thomas of lying. Considering 

the prosecutor’s argument in light of the record, we conclude that the argument 

Thomas now finds objectionable was responsive to the argument of defense 

counsel. As such, these statements were not improper jury argument. “[T]he 
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failure to object to argument that is not improper does not constitute ineffective 

assistance of counsel.” Davis, 830 S.W.2d at 766. 

D. Evidentiary errors

Finally, Thomas argues that his counsel was ineffective for objecting to the 

evidence that was beneficial to his defensive theory and failing to re-offer it later in 

the trial when the State objected to the introduction of a similar exhibit. During its 

case-in-chief, the State sought to introduce a copy of the label from the bottle of 

prescription sleeping pills found in Thomas’s car. Thomas objected based on a 

lack of foundation for the evidence, and the trial court excluded it. Officer Roberts 

then testified that he was familiar with warning labels used on Ambien, and he 

testified, without objection, that the warnings state that combining Ambien with 

alcohol intensifies its effect. 

Though both parties on appeal argue that Thomas’s defensive theory was 

that he was exhausted because he took Ambien, the record shows that Thomas 

attempted to show that Ambien did not work for him and that if he was fatigued it 

was due to his long hours and sleep disorder. To that end, his counsel attempted to 

introduce copies of a label from a pill bottle for a different prescription sleep aid, 

dated March 31, 2011, approximately five months after the date of the offense. In 

a hearing outside the presence of the jury, defense counsel argued that his 

proffered exhibits were relevant to the date of the offense: “Basically that would 
24

indicate that the medication was changed. He was on medication and that’s clear. 

So, now we are just indicating that the medication that he was on changed because 

of the medication that he was receiving was [i]nsufficient.” The trial court 

excluded the exhibits.

On appeal, Thomas argues that his counsel’s performance in not seeking 

admission of the label from the pill bottle found in his car when he was arrested 

was deficient because the evidence was consistent with his defensive theory. In his 

brief, he argues:

The importance of jurors knowing that Appellant had a 

legitimate prescription from a physician for Ambien on the night he 

was arrested cannot be overstated. But this record reveals that jurors 

never heard an iota of testimony on this critical fact, aside from 

Appellant’s unsubstantiated assertion, because counsel’s inexplicable 

objection to [the State’s exhibit] kept it out. Counsel’s failure to 

recognize that the admission of this exhibit advanced his defensive 

theory was objectively deficient.

. . . .

Absent any corroborating evidence that Appellant had a lawful 

prescription for Ambien, jurors could only have opined that his 

defensive theory lacked credibility. 

Thomas’s use of Ambien was not contested at trial. In its closing argument, 

the State said, “The truth is he did take an Ambien at 11:30.” The question for the 

jury was whether his use of his car that night was lawful, not whether his use of the 

Ambien was lawful. There was no evidence introduced at trial that Thomas’s 

possession and use of the Ambien was anything other than lawful. Thomas has not 
25

demonstrated a reasonable probability that but for his counsel’s allegedly deficient 

performance, the result of the proceeding would have been different. See Bone, 77 

S.W.3d at 833.

E. Cumulative effect of all alleged errors

In his brief, Thomas argues that he was prejudiced by “his trial counsel’s 

multiplicity of deficient conduct” and “myriad errors.” First, we have explained 

why defense counsel’s failure to object to the prosecutor’s closing argument was 

not deficient. Second, we have explained that defense counsel’s failure to object 

and seek a mistrial when the State asked Thomas about his post-arrest silence was 

not prejudicial because his post-arrest silence about contextual facts was neither 

incriminatory nor exculpatory. Third, we have explained that defense counsel’s 

failure to pursue introduction of cumulative evidence on a question of fact that was 

undisputed at trial likewise was not prejudicial. Finally, having considered the 

appellate record, we conclude that defense counsel’s conduct as a whole did not 

undermine the proper functioning of the adversarial process such that the trial 

cannot be relied upon as having produced a just result. See Strickland, 466 U.S. at 

686, 104 S. Ct. at 2064. We overrule this issue.

II. Effect of failure to issue requested fact findings

In his second issue, Thomas argues that the trial court erred by not filing 

findings of fact and conclusions of law explaining the basis for its denial of his 
26

motion for new trial. Although Thomas points to no circumstances to suggest the 

trial judge acted in bad faith or deliberately violated some rule of procedure, he 

nevertheless contends that “the only conceivable reason” for the trial court’s failure 

to issue written findings and conclusions was a “conscious desire to irreparably 

hamstring the losing party’s ability to seek meaningful review of its adverse 

ruling.”

Thomas relies on Texas Rule of Appellate Procedure 21.8(b), which applies 

to motions for new trial in criminal cases and states, in relevant part: “In ruling on 

a motion for new trial, the court may make oral or written findings of fact.” TEX.

R. APP. P. 21.8(b). By use of the word “may,” the rule authorizes—but does not 

require—a trial court “in ruling on a motion for new trial” of a criminal action to 

“make oral or written findings of fact.” Id. Contrary to Thomas’s argument that 

written findings and conclusions are or should be required, the rule anticipates 

precisely the opposite, as a motion for new trial is deemed denied if not ruled upon 

in writing within 75 days. See TEX. R. APP. P. 21.8(c). As a matter of interpreting 

the rule as it is presently written, it would not make sense to allow a motion to be 

implicitly denied for lack of a timely written ruling, yet simultaneously require that 

any denial be accompanied by written findings of fact and conclusions of law.

Thomas argues for an extension of State v. Cullen, 195 S.W.3d 696 (Tex. 

Crim. App. 2006), to cover the circumstances of this case. In Cullen, the Court of 
27

Criminal Appeals held that when the losing party on a motion to suppress evidence 

requests findings of fact and conclusions of law, the trial court is required to file 

them. The defendant in that case had moved to suppress evidence, and the trial 

court held a hearing at which the only evidence was the live testimony of the 

investigating law enforcement officers. Cullen, 195 S.W.3d at 696. The trial court 

granted the motion to suppress and declined the State’s request for findings of fact. 

Id. On appeal, the State argued that the trial court’s failure to file findings of fact 

and conclusions of law deprived it of its statutorily granted right of appeal because 

“without such findings, appellate courts are unable to review the decision for an 

abuse of discretion.” Id. at 697. The Court of Criminal Appeals reasoned that the 

trial court’s failure to file findings of fact and conclusions of law prevented the 

proper presentation of the case to the court of appeals, see TEX. R. APP. P. 44.4, 

and caused the appellate courts to rely on “assumptions that may be entirely 

fictitious.” Cullen, 195 S.W.3d at 698. The Court further held:

Effective from the date of this opinion, the requirement is: upon the 

request of the losing party on a motion to suppress evidence, the trial 

court shall state its essential findings. By “essential findings,” we 

mean that the trial court must make findings of fact and conclusions of 

law adequate to provide an appellate court with a basis upon which to 

review the trial court’s application of the law to the facts.

Id. at 699.

Thomas urges us to extend the holding of Cullen, imposing a bright-line rule 

that findings of fact and conclusions of law must be filed by the trial court upon 
28

request after the denial of a motion for new trial. The promulgation of new rules of 

appellate procedure is outside the purview of the authority of a court of appeals. In 

any case, while Cullen did prospectively announce a new rule requiring the 

issuance of fact findings in certain circumstances, the basis of the judgment 

reversing the court of appeals in that case was appellate rule 44.4 and its 

requirement that a trial court be given the opportunity to correct its “erroneous 

action or failure or refusal to act” which “prevents the proper presentation of a case 

to the court of appeals.” TEX. R. APP. P. 44.4(a)(1).

The issues presented in this appeal do not warrant an abatement pursuant to 

Rule 44.4. Thomas’s motion for new trial was premised on ineffective assistance 

of counsel, and it raised the allegations of ineffectiveness discussed above. No live 

testimony was taken at the hearing on the motion for new trial. All of Thomas’s 

allegations of deficient performance pertain to actions or omissions which occurred

during trial, all of which are apparent from the face of the record. There is no 

factual dispute about the actions and omissions at issue. Thus, unlike the 

circumstance presented in Cullen, we need not rely—and indeed have not relied—

on any assumptions or implied findings of fact in addressing the merits of 

Thomas’s claims. The motion for new trial was supported by an affidavit from 

Thomas’s trial counsel, providing evidence that his actions and omissions were not 

part of a trial strategy. But a determination of ineffectiveness is a mixed question 
29

of law and fact, and in this case the trial court’s ruling on the motion for new trial 

depended upon its application of law to the facts that appear in the appellate record 

and form the basis for Thomas’s allegations of ineffectiveness. See Strickland, 466 

U.S. at 698, 104 S. Ct. at 2070 (explaining that “both the performance and 

prejudice components of the ineffectiveness inquiry are mixed questions of law 

and fact”); Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012) (same). 

Our analysis does not assume that the trial court discounted the veracity of trial 

counsel, nor would it change depending on any particular fact finding the trial 

court may have made in that regard.

Because there is no rule requiring a trial court to file findings of fact and 

conclusions of law after denying a motion for new trial, and because the factual 

basis for the allegations of ineffectiveness is apparent on the face of the appellate 

record in this case without any assumptions about factual findings the trial court 

may or may not have made, we decline to abate this case pursuant to Rule 44.4. 

We overrule Thomas’s second issue.
30

Conclusion

We affirm the judgment of the trial court. 

Michael Massengale

Justice 

Panel consists of Justices Keyes, Massengale, and Brown.

Publish. TEX. R. APP. P. 47.2(b).