## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00216

- CR

___________________________

On Appeal from the 211th District Court Denton County, Texas Trial Court No. F19

- 1144

- 158

Before Sudder th, C.J.; Kerr and Walker, JJ.

M emorandum Opinion by Justice Kerr 

### A LVIN 

### H OLT 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION Appella nt Alvin Hol t appeals his conviction of ind ece ncy with a child and aggravated sexual assault

. On appeal , Holt argues in two points that he received
in effective as s istance of counsel

. Specifically, Holt as s e rts that his two trial lawyers

were defi ci ent for fai ling to ob ject (1) when the prosecutor repeatedly referred to Holt

as a “ monster ” and (2) when the prosecutor purportedly shifted the burden of proof d uring clo sing arguments. We affirm.
I. Background Holt was charged with t wo count s of indecenc y with a c hild and four counts of aggravate d s exual ass ault

. He pleaded not guilty. The victim K.H. , 1 who was ten years old at th e time of trial , lived w ith her father D .H. , Holt, and Hol t ’ s wi fe J.H

. In October 2018, K.H. made an outcry of sexual abuse to her school guidance counselor Br enda Schwartz. K.H. told Sch wartz that sh e was tire d of Holt putting his fingers in sid e h er. Due to this ou tcry, K.H. parti cipated in t hree forensic interviews and a sexual assault nurse examiner (SANE) exam . During these interviews and the SANE exam , K.H. provided specifi c de tail s of the abuse, revea ling t hat Ho lt had

to uched her breasts, vagina, and anus; had penetrated her vagina a n d a nus with both

1 We refer to th e victim and her family me mbers

— o ther than the Appellant

— by their initials

. See Tex. R. App. P. 9.10(a)(3).3 his p enis and his finger; and had forced K.H. to put his penis in her mouth. K.H. testif ied about th e abuse at trial.

In ad dition to Holt ’ s abuse of K.H., the prosecution presented evi dence detailing Holt ’ s history o f sexual ly abusing othe r children. 2 Holt ’ s niece recounted an inci dent in which Holt pressed his er ect pe nis onto her backside when she was a young child and d escribed how Holt made her feel uncomfortable at other time s. Hol t ’ s daughter A.H. chronicled in detail how Holt had c onti nually sexually abused her as a c h ild and stated th at this pattern o f abus e had ultimately c aused Child
Protecti ve Services ( CPS ) to remove her from her home. Cami T hompson, the investigator from A

. H. ’ s case , testified tha t duri ng an inter view Ho lt had tol d her t hat he had to uched his daughter ’ s vagina to confirm whether she was on her period and admit ted tha t “ [h e] [had] play[ed] with her ever y night while she [ was] sl eeping. ” Thompson ’ s impression was that Holt did n ot belie ve h e had done anything wro ng b y sexuall y assaulting A.H. The jury convicted Holt on all counts and assessed his punishment at 20 y ears ’ confin em ent on the indecency

- with

- a
- child cou nts and confinement for li fe on the

2 Art i cle 38.37 of the Texas Code of Criminal Procedure “ provides f or the admission of evidence of other sex crimes committed by the de fendant agains t children other than t he victim of the alleged offense ‘ for any bearing the evidence has on relevant matters, i ncluding the character of the defendant and acts performed in conformity with the character of defendant. ’ ” Belcher v. State , 474 S.W.3d 840, 84 6 (Tex. App.

— Tyl er 2015 , no pet.) (quot ing T ex . C ode C rim . P roc . A nn . art. 38.37 § 2(b) ).4 aggravated

- sexual

- assault co u nts
. The trial court sentenced Holt acc ordingly and set
the sentences to run consecutively

. This appeal follow ed

. I I. Discussion Holt a sserts tha t he was de prived of his ri ght to the effective assistance of

co unsel when his tri al counsel failed to object (1) to the prosecutor ’ s rep eated refere nces to Holt as a “ monster ” an d (2) to th e prosecutor ’ s supposed shifting o f the burden of proof during cl osing argum e nts. To establish ineffective assistance, an appellant must prove by a preponderance

o f the evidence both that his counsel ’ s representati on was defici ent and th at the deficiency prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687, 104 S. C t. 2052, 2064 (1984); Prine v. State , 537 S.W.3d 113, 116 (Tex. Crim. App. 2017); see H ernandez v. State , 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). W e ne ed not address both parts of the S trickland test if the appellant makes an insufficient showing of on e component. 466 U.S. at 697, 104 S. Ct. at 2069. An a ppellant claiming ineffective ass istance of counsel at trial must identify counsel ’ s allegedly er rone ous acts and omissions. Strickland , 466 U.S. at 690, 104 S. Ct. at 2066; Cooper v. State , 333 S.W.3d 859, 867 (Tex. App.

— Fort Worth 2010, pet. ref ’ d).
The appellate court then determines w hether, in light of all the circumstances, these id entified acts or omissions were outside the wide ra nge of what constitutes competent assistance. Strickland , 466 U.S. at 690, 104 S. Ct. at 2066; Cooper , 333 S.W.3d at 867. An attorney’s isolated acts or o missions generally do not constitute5 deficient perf ormance . See , e.g . , Ingham v. State , 679 S.W.2d 503 , 509 (Tex. Crim. App. 1984). However , an egregious error may satis f y both parts of the Strickland test on its

own. Lopez v. State , 343 S.W.3d 137 , 143 (T ex. Crim. App . 2011)

. Furthermore, the record must affirmatively dem onstrate that the ineffective

assi stance claim has merit. Thompso n v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An appellate court may not infer ineffective assistance simply from a n unclear record or a record that does not show why counsel fail ed t o do something. Menefield v.
State , 363 S.W.3d 591, 593 (Tex. Cri m. App. 2012); Mata v. State , 226 S. W.3d 425,
432 (Tex. Crim. App. 2007). Trial counsel “should ordinarily be afforded an

o pportunity to explain his actions before being deno unced as inef fect ive.” Menefield , 363 S.W.3d at 593 . If, as here, 3 trial counsel d id not have that opportunity, we sho uld not conclude that counsel performed deficiently unless the challenged conduct was

“ so outrageous that no competent attorney would have engaged in i t.” Nava v. State , 415 S.W.3d 289, 308 (Tex. Crim. App. 2013). Direct appeal is usually inadequate for

ra ising an ineffective

- assistance

- of

- counsel claim because the record generally does

not show counsel ’ s reasons for any alleged deficient pe rformance. Se e Me nefield , 363 S.W.3d at 592

– 93; Tho mpson , 9 S.W.3d at 813

– 14. “Trial management is the lawyer’s provin ce: Counsel provides his or her assistance by making decisions such as ‘what arguments to pursue, what evidentiary

3 Holt did not file a m otio n for new tria l.6 objections to raise, an d what agreem ents to conclude regarding the admissi on of evidence.’” McCoy v . Louisiana , 138 S. Ct. 1500, 1508 (2018) (quoting Gonzalez v. United
States , 553 U.S. 242, 248, 128 S. Ct. 1765 , 1769 (2008) )

. G enerally , a record devoid of counsel’s reasoning be hind a partic ular decision

–– including failure to ob ject to or proffer evidence

–– will not show deficient performance. S ee Prine , 537 S.W.3d at 117 ; Lopez , 343 S.W.3d at 143

– 44

. A. Point One: Failure to Objec t to Pro secuto r ’ s “ Monster ” Referen ces I n his fir st point, Holt arg ues that his trial lawyers were deficient for not objecting when th e pro secutor repeatedly referred t o Hol t as a “ monster ” during her closing argument
. 4 According t o Hol t, these comments were inappropriate and prejudicial because they ap pe al ed to the jury ’ s fears , emotion s , and bias es and therefo re made it likely that the jury would base its verdict on something other than the evidence. Thus, Holt argues, his trial counsel ’ s failure to object was an egregious

error that deprived him of the ef fec tive assistance of counsel.
W hen an appel lant alleges deficient per formance based on his trial coun se l ’ s fai lure to o bject , he must show that the trial court would have erred by overruli ng that

4 The prosecutor called Holt a “ monste r ” in her closing arguments during both the guilt/innocence and puni shment phase s o f t rial , but Holt ’ s argument on app eal focuses exclusively on the comments made duri ng t he guilt /innocence phase. Acc ordingly , we consider any issues related to the punish men t

- phase comments to have been waived

. See Tex. R. App. P. 38.1(i) ; Jackson v. Vaug hn , 546 S.W.3 d 913, 922 (Tex. App.

— Amarillo 2018, no pet.) (finding issue waiv ed due t o inade quate bri efing)

.7 objection. See Pri ne , 537 S. W. 3 d at 117

– 18 ( f irst ci ting E x parte Martinez , 330 S.W.3d 891, 901 (Tex. Crim . App. 2011); and then citing O rtiz v. State , 93 S.W.3d 79, 93 (Tex. Crim. App. 2002) )

. On the record before us, Holt cannot make this showing. Proper jury argument ge nerally falls within one or more of the f ollowing areas: (1) summation of evidence; (2) reasonable deduction from the e vidence; (3) a nswer to argument of opposing counsel; and (4) plea for law enforcement. Freeman v. State , 340 S.W.3d 717, 727 (Tex. Crim. App. 2011) (ci ting Brown v. State , 270 S. W.3d 564, 570 (Tex. Crim. App. 2008) )

. Thus, w hen reasonably deduced from the e vidence , d erogatory chara cterizat ions of a defendant are permissi ble

. See Barnard v. State , 730 S.W.2d 703, 718 (Tex. Crim. App. 1987) ( holding that p rosecutor’s characterizatio n of defendant as a “mean person” was a reasona ble deduction from the evidence ); Burns v. State , 556 S.W .2d 270, 285 (Tex. Crim. App. 1977) ( concluding that the evidence supported prosecut or ’ s reference to defendant as an “animal ”); Belton v. State , 900 S. W.2d 886, 898 (Tex. App.

— El Paso 1995, pet. ref ’ d) ( noti ng that
pro secutor ’ s r eference to defendant as a n “ani mal” was a reasonable deduction ) ; see also Ponce v. State , 89 S. W.3d 110, 1 21 (Tex. App.

— Corpus Chris ti

– Edinburg 2002, no pet.) (“Dramatic epithet s may be used against a defendant during closing arguments as proper deduction s based upon the evidence and nature of the crime.”)

. In fact , several of our sister courts have specifical ly found the St ate ’ s refere nces to a defenda nt as a

“ monster ” to be per missible as a re a sonable deduction from the evi dence. See Cedillos
v. State , N o. 08

- 14

- 00180

- CR, 2018 WL 4113169 , at *7 (Tex. App.

— El Paso Aug. 29,8 2018, pet. ref ’ d) ( not designated for publicat ion) ; Resende z v. State , No. 14

- 99

- 01374

- CR , 2001 WL 777861 , a t *2 (Tex. App.

— Houston [1 4th Dist.] July 12, 2001, pet. ref ’ d) (per curiam) ( not d esi gnated for publication) ; Davis v. State , No. 05

- 96

- 01949

- CR, 1998 WL 324724 , *2 (Tex. App

. — Dallas J une 22, 1998, no pet.) ( not designated
f

or p ublicat ion).
Here , the tria l evidence showed that Holt had sexually abuse d multiple female rel atives over a p rolonged period , including

— by hi s own admission

— sexually

ass aulting his daughter every night

. Further , Holt showed no remorse f or assaulting his daughter and did not even app ear to bel ieve that this behavior was wrong. T hus, the facts in this case justified the prosecutor ’ s “ monster ” characterization , as this was

a reas onable deduction from the evidence. 5 Cf. Ced illos , 2018 WL 4113169 , at *7 ; Resende z , 2001 WL 777861 , at *2 ; D avis , 1998 WL 32 4724 , at *2

. Because the prose cutor did not improperly characterize Holt as a “ monster , ”
Ho lt cannot show that the t rial co urt would have erred by overruling an objection to

t hat label

. Accordingly, Holt cannot show that his counsel ’ s per fo rmance was def icient based on a failure to o bject to these st atemen ts. See Prine , 537 S. W. 3 d at 117

–

5 We note that among Webster ’ s def initions for “ monster ” are “ one who deviates from normal or acceptable behavior or charac ter ” and “ something mons tro us , ” espec ially “ a person of unnatural or extreme ugliness, deformity, wickedness, or cruelty

. ” Monster , Merriam

- Webster.com Dictionary, https://www.merriam

- webs ter.com/dic tionary/monster (last visited Oct. 2 8 , 2022 )

.9 18 ; se e also Ex parte Chandler , 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (recognizin g tha t reasonably competent counsel ne ed not perform a useless or futi le act).
M oreo ver, even assuming Holt co uld show that the trial court would have erred by overrulin g an objection to that characterization , because the record does not reveal Ho lt ’ s trial cou nsel ’ s stra tegy in decidi ng not to object, we cannot sa y that his

counse l ’ s performance fe ll below an obj ective standard of reasonableness

. See Garcia v. State , 57 S.W.3d 436 , 440 (Tex. Crim . App. 2001)

. “ In the absence of direct evidence of counsel ’ s reas ons for the challenged co nduct, an app ellate court will assume a strategic motivation if a ny can be imagi ned. ” Sab atini v. State , No . 14

- 20

- 00066

- CR , 2020 WL 7 866724 , at *7 (Tex. App.

— Houston [1 4th D ist.] Dec. 31, 2020, no p et.) (mem. op ., not d esignated f or publicat ion) (citing G arcia , 57 S.W.3d at 441 )

. Here, counsel might have believed t hat any objection w ould be futi le because characteriz ing Holt as a “ monster ” was a reasonable deduction f rom the evid ence and several courts have spe cifi cally found such a description to be permissible

. See Cedillos , 2018 WL 4113169 , a t *7 ; Resende z , 2001 WL 777861 , at *2 ; D avis , 1998 WL 324724 , *2

. Alternatively, Hol t ’ s co unsel co uld have chosen not to object to av oid

unneces s arily empha sizing the term. C f. Sab atini , 2020 WL 7 866724 , at *7 ( “ Counsel could have believed that an objectio n would have been overruled, or even if sustained, may have unnecess arily emphasized the derogatory term. ” )

. Because the record lacks
any evi dence reg ar ding c ounsel ’ s reasoning fo r not object ing, we cannot conclude that10 counsel ’ s perfo rmance was deficient. See Prine , 537 S.W.3d at 117 ; Lopez , 34 3 S.W.3d

at 143

– 44

. We overrule Holt ’ s first point.
B. Point Two: Failure to O bject to Prosecutor ’ s Supposed Shi fting of th e Burden of Proof I n his s eco n d point , Holt asserts that his trial lawyer s ’ perfo r mance was defi ci ent because they failed to object to the following prosecution statement made during closing argument : “ The D efense has the exact same subpoena power that we do. You didn ’ t hear from [D.H .]. You didn ’ t hear from [J.H.]. ” According to Holt, this statement improperly s hi fted the burden of proof, and, therefore, his counsel ’ s failure to object deprived H ol t of the effec tive assistance of counsel.
But t he prosecutor ’ s comment did not shift the burden of proof : “ It is well

settled law that the S tate is e ntitle d to comment on an accused ’ s failure to produce

t estimony fro m sour ces other than himself when it is relevant to a disputed issue. ”
Harris v. State , 12 2 S.W.3d 871, 884 (Tex. App.

— Fort Worth 2003 , pet
. ref ’ d) ( first citing Patric k v. State , 906 S.W.2d 481, 490 (Tex. Crim . App. 1995) ; and then citing Carrillo v. State , 566 S.W.2d 902, 912 (Tex. Crim. App. 1978) )

. In Harris , the prosecutor made a statement very similar to the one a bout which Holt complains: “ The defense has subpoena power, the power to call a ny witness to come testify. Anyone to say
any thing on how it might be possible for these girls to have some sort of motive to

come in here an d lie. ” Id

. Noting that “ a prosecutor ’ s comment about the subpoena11 power of a defendant is proper if it refers to t he defendant ’ s failure to produce evidence from other sources ” besi des h imself , we held that the prosecutor ’ s comment was not improper

. Id. (c iting Liv ingston v. State , 739 S.W.2d 3 11, 338 (Tex. Crim. App. 1987) )

. As we further explained , “ a prosecutor ’ s c omment is improper only if it points to the absenc e of evidence that could be supplied only by the defendant ’ s testimony. ”
I

d. (cit ing Fuentes v. State , 991 S.W.2d 267, 275 (Tex. Crim. App. 1999 ) ) ; see also Jackson v. State , 17 S.W.3d 664, 674 (Tex. Crim. App. 2000) ( “ [T] he prosecutor may comment on the defendant ’ s failure to produce witnesses and evidence so long as the remark does not fault the defenda nt for exercising his right not to t estify. ” ( first cit ing Patrick , 906 S.W.2d at 491 ; and then citing Li vingston , 739 S.W.2d at 338 ) )

. B ecause “ [ t ] he comment was merely a summa tion of the evidence presented at trial, coupled with an argument that the jury should not be concerned with evidence not presented at trial , ” we rejected Harris ’ s argument that it imp roperly shifted the burden of proof

. Harris , 122 S.W.3d at 884. Here, the prosecutor ’ s comment was proper because i t referred to Hol t ’ s failure to produce evidence from sour ces besides himself. See i d. (citing L ivin gston , 739 S.W.2d at 338)

. Indeed, the pr osecutor specifically named other wi tnes ses
— D .H. and J.H

. — who did not tes tify. B ecause this statement did not point to evidence t hat only Holt ’ s

tes timo ny could su pply, it did not imp roperly comment on Holt ’ s failure to testify

. See Jackson , 17 S.W.3d at 6 74 ; Harris , 122 S.W.3d at 884

. L ike the prosecutor ’ s comment in Harris , it “ was merely a summation of the evidence presented at trial ” and therefore12 did not impro p erly shift the burden of proof. Harris , 122 S.W.3d at 884 ; see also Benn v. State , 110 S.W.3d 645, 650

– 5 1 (Tex. App.

— Corpus Christi 2003, no pet.) (holding that the State ’ s comment, “You ought to consider not only who you h eard, but who you didn ’ t hear,” w as a summation of the evidence); Doty v. State , 820 S.W.2d 918,
923

– 24 (Tex. App.

— Fort Worth 1991, pet. r ef ’ d) (holding that the State ’ s comment that if there was any evidence to support the defense ’ s theory, “don ’ t you thin k that they might have brought i t to you,” was a summation of the evidence). Because the prosec utor ’ s comment was not imprope r, Ho lt can n ot show that the t rial co urt would have erred by overruling an objection to it

. Accordingly, Holt ’ s argumen t that his lawyers ’ performance was deficien t because they did not object to these statements must fail

. See Pri ne , 537 S. W.3d at 117

– 18; see a lso Ch andler , 182 S.W.3d at 356

. Further, even assuming Holt could show that the trial court would have erred by overruling an objection to the pro sec ution ’ s comment about Holt ’ s subpoena
power, because the record lacks any e v idence r e gar ding Ho lt ’ s trial counse l ’ s stra tegy in deciding not to object, we cannot sa y that his counse l ’ s performance fell below an objective standard of reasonableness

. See Garcia , 57 S.W.3d at 440

. H olt ’ s at t orneys might have strategic ally decided no t to object to av oid emph asizing the i r decision not to pr esent D.H. and J.H. as witne sses , or they might have believed any objection would be futi le given our opinion in Harris

. Without an y evi dence of c ounsel ’ s reasoning for not objecting, w e cannot concl ude that counsel ’ s perfo r mance was13 de ficient. See Prine , 537 S.W.3d at 117 ; Lopez , 343 S.W.3d at 143

– 44 ; see also Sab atini , 2020 WL 7 866724 , at *7 ( noting that in the absence of direct evi dence of co unsel ’ s

reason ing , “ an app ellate court will assume a stra tegic motivation if any c an be imagin ed ” )

. We overrule Hol t ’ s second point.
III. Conclus ion Having o verruled both of Holt ’ s points , we a ff irm the trial court ’ s judgme nt.

/s/ Elizabeth Kerr Elizabeth Ker r Justice Do Not Publis h T ex. R. App. P. 47.2(b)
Del ivered : December 1, 2022