NO. 01- 15 -00342- CR

_____________________________________________________________

IN THE

COURT OF APPEALS

FOR THE

FIRST SUPREME JUDICIAL DISTRICT OF TEXAS

HOUSTON, TEXAS

_____________________________________________________________

JAMES JESSE HUBBARD, Appellant

V.

THE STATE OF TEXAS, Appellee

_____________________________________________________________

On Appeal from the District Court

of Galveston County, Texas

405 th Judicial District

Cause No. 14CR0848

_____________________________________________________________

BRIEF FOR APPELLANT

_____________________________________________________________

Greg Russell

711 59th Street

Galveston, Texas 77551

(409) 497-4743

(409) 497-4721

SBN: 17411550

ATTORNEY FOR APPELLANT ACCEPTED

01-15-00342-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/7/2015 12:00:00 AM

CHRISTOPHER PRINE

CLERKNO. 01

- 15

- 00342

- CR

____________________________________ _________________________

IN THE

COURT OF APPEALS

FOR THE

FIRST SUPREME JUDICIAL DISTRICT OF TEXAS

HOUSTON, TEXAS

______________________________________________________ _______

JAMES JESSE HUBBARD , Appellant

V.

THE STATE OF TEXAS, Appellee

____________________________________ _________________________

On Appeal from the District Court

of Galveston County, Texas

405 th Judicial District

Cause No. 14CR0848

____________________________________ _________________________

BRIEF FOR APPELLANT

____________________________________ _________________________

Greg Russell

711 59th Street

Galveston, Texas 77551

(409) 497

- 4743

(409) 497

- 4721

SBN: 17411550

ATTORNEY FOR APPELLANTIDENTITY OF PARTIES AND COUNSEL

Parties and counsel in this case are as follows:

1. James Jesse Hubbard , A ppellant, repr esented at trial by Adam Brown,

300 Main Street

, Suite 200, Houston, Tx. 77573; represented on appeal by

Greg Russell, 711 59 th Street, Galveston, Tx. 77551.

2. The State of Texas, A ppellee, represented at trial by Chris Henderson

and Matt Shawhan

, Assistant District Attorneys and on appeal by Jack Roady,

Criminal District Attorney for Galveston County, 600 59 th Street, Galveston, Tx.

77551.CITATION TO THE RECORD

Clerk’s Record

.......................................... CR (page)

Clerk’s Supplemental Record .......................... CR Supp. (page)

Reporter’s Record .......................................

. RR (volume & page )i TABLE OF CONTENTS

Page

Index of Authorities .............................................................

.... i

- ii

Statement of the Case .......................................................... 1

Issue Presented .................................................................

... 1

Summary of Facts ...............................................................

.. 2

- 5

Summary of Argument ..............................

..................... 5

- 6

Argu ment in Support of Appellant’s Issue...

.......................... 6

- 19

Conclusion and Prayer .......................

.................................... 20

Certificate of Service ................................

................................. 21

Certificate o f Compliance................................................ 21ii INDEX OF AUTHORITIES

CASES PAGE

Alejandro v. State

, 49 3 S.W.2d 230 (Tex.Crim.App. 1973 )

.............. 17

Brown v. State , 475 S.W.2d 761 (Tex.Crim.App. 1972)

.................. 17

Brown v. State , 866 S.W.2d 675, 678 (Tex. App.

- Houston [1 st Dist.]

1993, pet. ref’d) ....................................................

........................ 7

Almanza v. State , 686 S.W.2d 157 (Tex.Crim.App.1984)................... 10

Campbell v. State , 610 S.W.2d 754, 756 (Tex.Crim.App. 1980)

......... 12

Cuyler v. Sullivan , 446 U.S. 335, 100 S.C t. 1708, 64 L.Ed. 333 (1980)... 6

Ex Parte Cruz , 739 S.W.2d at 58 (Tex.Crim.App. 1987).................. 7

Ex Parte Duffy , 607 S.W.2d 507 (Te x.Crim.App. 1980)...................... 6

Ex Parte Walker , 777 S.W.2d 4 27 (Tex.Crim.App. 1989)................... 7

Ex Parte Walker , 794 S.W.2d 36 (Tex.Crim.App. 1990)................... 7

Ex Parte Welborn , 785 S.W.2d 391, 395 (Tex.Crim.App. 1990)........... 11

Garrett v. State , 632 S. W.2d 350, 353

- 54 (Tex.Crim.App.

[Panel Op.] 1982)...............................................................

..... 12

- 13

Guidry v. State , 9 S.W.3d 133, 154 (Tex.Crim.App. 1999)

................ 12

Hernandez v. State , 726 S.W.2d 53 (Tex.Crim.App. 1986)................. 7

Hill v. State , 666 S.W.2d 663, 668 (Tex. App.

- Houston [1 st Dist.] 1984),

aff’d 686 S.W.2d 184 (Tex.Cri m.App. 1985).................................... 7

Hodge v. State , 488 S.W.2d 779 (Tex.Crim.App. 1972)

................... 17

Martinez v. State , 17 S.W.3d 677, 692 (Tex.Crim.App. 2000)

........... 18

Mathews v. State

, 635 S.W.2d 532, 539 (Tex.Crim.App [Panel Op.]

1982)

.................................................................................... 12

Mercado v. State , 615 S.W.2d 225 (Tex.Crim.App. 1981)

................. 7iii

Mosley v. State , 983 S.W. 2d 249, 259 (Tex.Crim.App. 1998)

........... 18

Myer v. State , 416 S.W.2d 415 (Tex.Crim.App. 1967)

..................... 17

- 18

Porter v. State , 623 S.W.2d 374, 385 (Tex.Crim.App. 1981)............... 11

Simms v. State , 848 S.W.2d 754, 757 (Tex. App.

- Houston [1 st Dist.]

1993, pet. ref’d)........................................................................ 7

Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674(1984).........................................................

... ... ..... 7

STATUTES PAGE

Tex. Code Cr im.Proc. §36.19................................................... 10

Tex. R ule App. P roc. 44.2.......

.......................................... ...... . 10

Tex.R.App.P. 81(b)(2)

................................................... ...... ... 13

CONSTITUTIONS PAGE

United States Constitution, Sixth and Fourteenth Amendments...

... .. 6

Texas Constitution, Article I, Section 10....................................... 6NO. 01

- 15

- 00342

- CR

______________________________________________ _______________

IN THE

COURT OF APPEALS

FOR THE

FIRST SUPREME JUDICIAL DISTRICT OF TEXAS

HOUSTON, TEXAS

______________________________________________ _______________

JAMES JESSE HUBBARD , Appellant

V.

THE STATE OF TEXAS, Appellee

______________________________________________ _______________

On Appeal from the District Court

of Galveston County, Texas

405 th Judicial District

Cause No. 14CR0848

BRIEF FOR APPELLANT

______________________________________________ _______________

TO THE HONORABLE COURT OF APPEALS:

Now Comes JAMES JESSE HUBBARD and files this Brief for Appellant.1 STATEMENT OF THE CASE

Appellant was charged by indictment with Robbery . (CR, 6 ) The case

was tried in the 405 th District Court of Galveston County, Texas, the Honorable

C.G. Dibrell, III , presiding. (RR, 1, 1 )

The jury fou nd appellant guilty and appellant pled true to the two

enhancements and the trial court a ssessed punishment at forty (40 ) years in

the Instituti onal Division of the Texas Department of Criminal Justice

. (RR 5,

24 ) Appellant timely filed Notice of Appeal. (CR Supp. , 7 )

ISSUE PRESENTED

Appellant received ineffective assistance of counsel at the guilt

- innocence

phase of trial in two ways:

1) by trial attorney not objecting to prejudicial statement by the

detective that she “knew ” appellant and was “familiar” with

appellant

.

2) by trial attorney not objecting to prosecutor’s prejudicial statements

that appell ant had a “drug habit ” and was “on drugs” despite

nothing in the record to support such statements.2 SUMMARY OF FACTS

On February 27, 2015, the complainant

, Robert Robinson, attended

Mardi

- Gras in Galveston, Texas. (RR 3, 21) Mr. Robinson went to the Crow’s

Bar on the Strand where he met appellant who was sitting at the bar eating.

(RR 3, 24) Mr. Robinson testified that he bought appellant a beer and they

talked for about an hour. (RR 3, 25

– 26) Mr. Robinson testified that he had

about two beers with appellant at the bar. (RR 3, 26) After spending about

one to two hours with appellant inside the bar, they both go outside to the patio

and smoke cigarette s . (RR 3, 28) Mr. Robinson further testified that he and

appellant both drank some more beer on the patio and at this point had

consumed approximately five beers. (RR 3, 28) Mr. Robinson testified that he

opened his wallet in front of appellant when he purchase d the beers. (RR 3,

30) T hey left the bar and began walking along the Strand and appellant

borrows Mr. Robinson’s cell phone to call hi s girlfrien d. (RR 3, 30

– 31)

Approximately forty

- five minutes to an hour after they left Crow’s bar, t hey then

go into a convenience store called Bob’s Grocery where Mr. Robinson buys

two pa cks of cigarettes. (RR 3, 31

- 32 ) Mr. Robin son testified that after

leaving Bob’s Grocery they proceed to walk down the street and about a block3

later appellant “coldcocks” him. (RR 3, 32) Mr. Robinson further testified that

he ran away, tripped over a curb and appellant came up to him and starti ng

beating on him. (RR 3, 34) Mr. Robinson testified that appellant grabbed his

wallet and made a “beeline for it” and ran behind a church. (RR 3, 34) Mr.

Robinson then crawled across the street and hid behind a wall where he called

his dad to pick him up and went to the hospital the next morning. (RR 3, 35

-

36)

Mr. Robinson’s father, Fred Robin son testified that his so n called to pick

him up and the next day they called the police. (RR 3, 100

– 101)

Appellant’s wife, Lisa Gutierrez, testified that appellant called her on

February 27, 2014 and said that h e was helping someone find his truck. (RR

3, 107

– 108) Ms. Gutierrez testified that appellant arrived home at

approximately 4:00 a.m. (RR 3, 110)

Officer Christopher M cNeil of the Galveston Police Department testified

that he was dispatched to University of Texas Medical Branch Emergency

Room and me t with Mr. Robinson who gave a description of his attacker. (RR

4, 16) Officer McNeil then went to the Crow’s Bar to talk with the employees

who said the description that was given by Mr. Robinson matched the

description of appellant. (RR 4, 16)

Detective Michelle Sollenberger met with Mr. Robinson who gave her a4

description of the person who robbed him. (RR 4, 36). Dete ctive Sollenberger

testified that she “ knew ” and was “familiar” appellant. (RR 4, 37 , 39 ) Mr.

Robinson then showed the detective a phone number that was dialed from his

phone by appellant. (RR 4, 38

– 39; State’s Exhibit # 7) Detective

Sollenberger researched the phone number in State’s Exhibit # 7 and it came

back belonging to Lisa Gutierrez who was appellant’s girlfriend. (RR 4, 39)

Detective Sollenberger created a photo array that contained appellant’s photo.

(RR 4, 45

– 46 ; State’s Exhibit # 9 ) Detective Sollenberger testified that Mr.

Robinson picked appellant out of the photo array and that he was “absolutely

confident” in his selection. (RR 4, 45; State’s Exhibit # 9)

The Charge of the Court was read t o the jury. (RR 4, 69) During the

s ta te’s closing argument, the prosecutor referred to appellant as having a “drug

habit” and was on “drugs. ” (RR 4, 78, 90 & 94)

On February 24 , 2015, t he jury found appellant guilty of Robbery. (RR

4, 95) Appellant elected for the trial court to assess and requested that a Pre

Sentence Investi gation be prepared. (RR 4, 96)

On March 27, 2015, the punishment trial was had before the court where

appellant pled true to the two enhancement paragraphs. (RR 5, 6) At

punishment, the State introduced into evi dence four prior felony judgments and

two prior misdemeanor judgments. (State’s Exhibits 1

– 4; 6

– 7)5

The trial court assessed punishment at forty (40) years, Institutional

Division of the Texas Department of Corrections. (RR 5, 24)

SUMMARY OF ARGUMENT

APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AT

THE GUILT

- INNOCENCE PHASE OF TRIAL IN TWO WAYS:

1) BY TRIAL ATTORNEY NOT OBJECTING TO PREJUDICIAL

STATEMENTS BY THE DETECTIVE THAT SHE “KNEW” APPELLANT

AND WAS “FAMILIAR” WITH APPELLANT.

2) BY TRIAL ATTORNEY NOT OBJECTING TO PROSECUTOR’S

PREJUDICI AL STATEMENTS THAT APPELLANT HAD A “DRUG

HABIT ” AND WAS “ON DRUGS” DESPITE NOTHING IN THE

RECORD TO SUPPORT SUCH STATEMENTS.

Appellant was found guilty of Robbery. On direct

- examination, Detective

Michelle Sollenberger, testified that she “knew” appellant and was “familiar”

with appellant. (RR 4, 37, 39) This testimony was prejudicial and irrelevant to

any issue at trial. This testimony was prejudicial because i t implied that

appellant was a criminal and that Detective Sollenberger was familiar with

appellant due to his criminal activity. Appellant’s trial counsel did not object to

this prejudicial testimony. (entire record) By trial counsel not objecting to t his6

testimony by D etective Sollenberger, appellant received ineffective assistance.

Additionally, during closing arguments in the guilt

- innocence phase of

trial, the prosecutor, stated, without objection, that appellant had a drug habit

and was on drugs d espite there not being any evidence in the record to support

such statements.

ARGUMENT IN SUPPORT OF APPELLANT'S ISSUE

Under the Sixth Amendment to the United States Constitution as made

applicable to the states by the Fourteenth Amendment, Cuyler v. Sullivan , 446

U.S. 335, 100 S.Ct. 1708, 64 L.Ed. 333 (1980), and by the “Right to be heard”

provision of Article I, Section 10 of the Bill of Rights of the Texas Constitution,

Ex Parte Duffy

, 607 S.W.2d 507 (Tex.Crim.App. 1980), defendants are entitled

to effective assistance of counsel in criminal cases whether counsel is retained

or appointed.

With regard to whether the defendant received effective assistance of

counsel at the guilt

- innocence phase of trial and at the punishment phase of

capital cases, T exas follows the two prong test set out by the United States

Supreme Court in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); Hernandez v. State , 726 S.W.2d 53 (Tex.Crim.App.7

1986).; Ex Parte Walker , 777 S.W.2d 427 (Tex.Crim. App. 1989). That test is

(1) whether counsel’s performance fell below an objective standard of

reasonableness under prevailing professional norms; and, (2) whether there is

a reasonable probability that but for counsel’s deficient performance, the result

of the proceeding would have been different.

In reviewing an attorney’s assistance, a court must examine the totality

of the representation. Ex Parte Walker , 794 S.W.2d 36 (Tex.Crim.App.

1990); Ex Parte Cruz , 739 S.W.2d at 58 (Tex.Crim.App. 1987). Couns el

need not be errorless and should not be judged by hindsight but must be

reasonably likely to render effective assistance. Mercado v. State , 615

S.W.2d 225 (Tex.Crim.App. 1981).

“Matters of trial strategy will be reviewed only if an attorney’s actions are

without any plausible basis.” Brown v. State , 866 S.W.2d at 678, citing Hill v.

State , 666 S.W.2d 663, 668 (Tex. App.

- Houston [1 st Dist.] 1984), aff’d 686

S.W.2d 184 (Tex.Crim.App. 1985) and Simms v. State , 848 S.W.2d 754, 757

(Tex. App.

- Houston [1 st Dist.] 1993, pet. ref’d).

1. Detective Sollenberger’s statements that she knew and was familiar

with appellant :8

On direct

- examination, the prosecutor elicited the following testimony

from Detective Michelle Sollenberger:

Q. And who did you believe the suspect to be?

A. James Hubbard.

Q. Do you see that person in the courtroom today?

A. I do.

Q. Can you point to him and identify an article of clothing?

A. He's the gentleman sitting at the defense table with a beard and a white

shirt.

MR. HENDERSON: Your Honor, will the record reflect that the witness

has identified the defendant.

THE COURT: All right.

Q. (By Mr. Henderson) And so at that point why did you think the defendant

was the person who robbed Mr. Robinson?

A. I knew the d efendant. (RR 4, 37)

Appellant’s attorney failed to make an objection to the prosecutor’s

prejudicial and i mproper questioning of Detective Michelle Sollenberger

regarding the detective knowing appellant. Consequently, trial counsel failed

to move for a mistrial. (entire record)9

Additionally, on direct

- examination t he prosecutor elicited the following

the testimony from Detective Sollenberger:

Q

. And was that phone number associated with anyone in particular?

A. It was.

Q. Who was it associated wi th?

A. Lisa Gutierrez.

Q. And did you know Lisa Gutierrez?

A. I did.

Q. And were you familiar with anyone who Lisa Gutierrez was dating or with?

A. I was.

Q. And who was that person?

A. James Hubbard. (RR 4, 39)

This testimony from Detective Sollenberger was prejudicial and

irrelevant to any issue at trial. This testimony was prejudicial because it implied

that appellant was a criminal and that Detective Sollenberger was familiar with

appellant due to his criminal activity

To not object to these prejudicial statements was ineffective assistance

of counsel, which was harmful to appellant and it surely cannot be construed

as any trial strategy. What possible strategy could be involved in the jury10

hearing, during guilt

- innocence, that the detective investigating this robbery

knew appellant.

TRAP, Article 44.2, states in relevant part:

(a) Constitutional Error: If the appellate record in a criminal case

reveals constitutional error that is subject to harmless error review, the c ourt of

appeals must reverse a judgment of conviction or punishment unless the court

determines beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.

(b) Oth er Errors: Any other error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.

In order for an appellant to win a reversal without an objection being

made at the trial level, the appellant must show egregious harm. Almanza v.

State , 686 S.W.2d 157 (Tex.Crim.App .1984)

. Even if this Court determines

that this error should be analyzed and controlled by Tex. Code. Crim. Proc.,

Art. 36.19 and Almanza

, supra 171

, this error was so egregious to appellant

and created such harm as to deny the appellant a fair and impa rtial trial.

It is well settled in Texas that an accused shall not be tried for some

collateral crime or for being a criminal generally. Porter v. State , 623 S.W.2d

374, 385 (Tex.Crim.App. 1981), cert. denied , 456 U.S. 965, 102 S.Ct. 2046,11

72 L.Ed.2d 491 (1982). Because our concern that an accused not be tried for

some collateral crime or for being a criminal generally, testimony concerning

an extraneous offense is admissible only in limited circumstances. Ex Parte

Welborn , 785 S.W.2d 391, 395 (Tex.Crim .App. 1990).

Appella nt’s trial counsel did not object or even try to keep out these two

statements by Detective Sollenberger. Appellant’s attorney failing to object to

these statements during the guilt/innocence phase of the trial was ineffective

assistance that did contribute to his conviction.

2. Prosecutor’s Clo sing Argument that appellant had a drug habit and was on drugs :

During closing arguments in guilt

- innocence, the prosecutor argued

outside the record and evidence without any objection from trial counsel. This

argument established a motive for appellant to commit this crime of robbery.

The purpose of closing argument is to facilitate the jury in properly

analyzing the evidence presented at trial so that it may arrive at a just and

reasonable conclusion based on the evidence alone and not on any fact not

admitted into evidence. Campbell v. State , 610 S.W. 2d 754, 756

(Tex.Crim.App. 1980)12

The four permissible areas of jury argument are (1) summation of the

evidence; (2) reas onable deductions from the evidence; (3) answer to the

argument of opposing counsel; a nd (4) plea for law enforcement. Guidry v.

State , 9 S.W. 3d 133, 154 (Tex.Crim.App. 1999)

. Appellant contends the

prosecutor's argument fell outside the permissible area s of jury argument.

When an argument exceeds the permissible bounds of the above

areas, such will not constitute reversible error unless, in light of the record

as a whole, the argument is extreme or manifestly improper, is violative of a

mandatory statute , or injects new facts harmful to the accused into the trial

proceedings. Mathews v. State , 635 S.W.2d 532, 539 (Tex.Crim.App [Panel

Op.] 1982).

The test to determine whether improper jury argument is harmless

error is not whether a conviction could have been had without the improper

argument, but whether there is a reasonable possibility that the argument

complained of might have contributed to the conviction or the punishment

assessed

. Garrett v. State , 632 S.W.2d 350, 353

- 54 (Tex.Crim.App. [Panel

Op.] 1982); Tex.R.App .P. 81(b)(2). In making this determination, the

appellate court must review the evidence at the guilt

- innocence stage as well

as that adduced at th e punishment phase of the trial. Garrett v. State , 632

S.W.2d at 353

- 5413

The prosecutor, i n h is closing statement stated:

“ Now, defense counsel wants to make this case about alcohol, but

ladies and gentlemen of the jury, this case not about alcohol. It's about

drugs. It's about the defendant's habit. It's about his wife's habit and it's

about the need to feed that habit and it's really about easy targets.” (RR 4,

77)

Additionally, t he prosecutor, further stated in h is closing argument :

“ He forgot about the cell phone. He forgot about Laura and Frank, and

when you're on drugs, you tend to do these things. You tend to not think

about the consequence of your actions. You don't think about, oh, I'm scared

of getting caught from this criminal episode. You're thinking about your next

score. ” (RR 4, 93)

Ag ain, the prosecutor re

- emphasized in his closing argument:

“ Members of jury, he wasn't getting paid money for a drug habit. He

was getting paid in food; and the little money that he did pick up here and

there, he used for drugs for not only Lisa but himself.” (RR 4, 94 )

The trial court , in the Courts Charge, instructed the jury regarding

extraneous offenses as follows:

“ You are instructed that if there is any testimony before you in this case14

regarding the defendant's having committed offenses other than the offense

alleged against him in the indictment in this case, you cannot consider said

testimony for any other purpose unless you find and believe beyond a

reasonable doubt that the defendant committed such other offenses, if any

were committed; and even then, you may only consider th e same in

determining his intent or plan in connection with the offense, if any, alleged

against him in the indictment in this case and for no other purpose. ” (RR 4,

72)

Despite there being no evidence regarding appellant using drugs, t he

prosecutor appa rently wanted the jury to believe that appellant was a drug

addict , to attempt to show a motive, intent or plan.

Lisa Gutierrez testified on direct

- examination for the state:

A. I was very strung out on drugs, sir.

Q. When James came home that day, did he ask you for anything?

A. No, he just asked me to use my phone.

Q. So he asked you for your cell phone. Why did he want your cell phone?

A. Well, I suppose to take care of my habit.

Q. To take care of your habit?

A. Yes, sir, he took care of me very well.

Q. So you said, "your habit." How was he going to take care of your habit?

A. He had a job.

Q. How was he going to take care of your habit that night?15

A. I don't know, sir. I don't take care of him. I don't ask him any questions. I

just know he gets me wha t I need.

Q. What were you needing that night?

A. I was sick that night, sir, very sick. I told you I had been sick all day so he

brought me food.

Q. Well, let's talk about

-- what did you mean when you said, "to take care of

your habit"?

A. Well, I mean, if I needed drugs, he would make sure that he worked to get

it for me.

Q. What kind of drugs are you referring to?

A. I was very strung out on crack cocaine.

Q. Did James use crack cocaine during that time?

A. No, sir, not that I know of. (RR 3, 109

– 110)

Lisa Gutierrez further testified on direct examination as follows:

Q. And you stated that James worked at Crow's bar?

A. Yes, sir.

Q. About how long did he work there, not exact dates but about how long?

A. Well, I would say about three weeks to a month prior, I guess.

Q. So a very short period of time?

A. Yes, sir.

Q. And when we say, "work there," James doesn't clock in and clock out like

a normal employee that has a W

- 2, correct?

A. I don't know, sir.

Q. And when James brings you food home from t his bar, does he pay for16

that food, to your knowledge?

A. I don't know, sir.

Q. You just know that he brings food home when he comes home from work?

A. Whenever I say, "Daddy, I'm hungry," he gets me food.

Q. And you know that James 09:40:06 gets that food free from Crow's bar,

correct?

A. I don't know if it's free. I don't know how he pays for it. I figured that since

he worked there that, yeah, he probably got a percentage off or something.

I don't know, sir.

Q. In fact, you know that's how James gets pai d. He gets paid with food and

drinks, correct?

A. No, sir. You're not allowed to drink at the club for one thing if you're

working. I would imagine that. And no, no, he wouldn't work for food and

drinks.

Q. Well, did you guys pay rent any place?

A. No, sir.

Q. So can you explain to the jury what your expenses were during that time?

A. I was a dope addict, sir.

Q. Were you doing these drugs by yourself?

A. Yes, sir.

Q. You want this jury to believe that you were

-- you had a habit and you

were the only pe rson doing drugs around you?

A. Sir, I can just tell you what I know is true, that I do the dope. James

–

MR. HENDERSON: I'll pass the witness, your Honor.

MR. BROWN: Was she finished answering the question?17

RECROSS

- EXAMINATION BY MR. BROWN:

Q. You wa nt to finish answering that question?

A. I just want to say, sir, that I never seen James smoke crack or meth or

anything like that. I am the dope addict in our family.

MR. BROWN: I don't have any further questions, Judge.

(RR 3, 122

– 123)

It is the duty of counsel to confine their arguments to the record;

reference to facts that are neither in evidence nor inferable from the evidence

is therefore improper. Alejandro v. State

, 493 S.W.2d 230 ( Tex.Cr im.App.

1973)

One of the most important factors in determining whether the argument

creates reversible error is in the effect it has on the jury. Hodge v. State , 488

S.W.2d 779 (Tex.Crim.App. 1972); Brown v. State , 475 S.W.2d 761

(Tex.Crim.App. 1972); Myer v. State , 416 S.W.2d 415 (Tex.Crim.App . 1967).

Moreover, even if we were to assume that the argument constituted

error , such error would be harmless. The alleged error here does not rise to

the level of constitutional error. Martinez v. State

, 17 S.W.3d 677, 692

(Tex.Crim.App. 2000) . In such cases, determining harm requires a balancing18

of the following factors: (1) severity of the misconduct (the magnitude of the

prejudicial effect caused by the State's improper jury argument), (2) curative

measures (the effectiveness of any cautiona ry instruction given by the trial

court), and (3) certainty of conviction absent the misconduct (the strength of

the evidence supporting the conviction). Mosley v. State , 983 S.W. 2d 249,

259 (Tex.Crim.App. 1998).

Trial counsel was ineffective for not objec ting to the prosecutor’s closing

argument and this, surely, could not be construed as trial strategy. It is difficult

to imagine what possible “plausible basis” trial counsel would have for fa iling

to object to the prosecutor’s clo sing argument that appellant had a “ drug habit ”

and was “on drugs.”

Th e prosecutor's argument was extreme and injected new facts into

the case that were harmful to appellant.

T here was absolutely no evidence that appellant used drugs. In fact, the

only evidence that was p roduced regarding drug use was the exact opposite:

that he didn ’ t use drugs.

The prosecutor committed reversible error in arguing to the jury that it

should rely upon his expertise in setting the punishment in this case, as said

argument injected harmful, unsworn testimony before the jury and the

personal opinion and knowledge of t he prosecutor, and was not based upon19

the evidence in the case.

Allowing the prosecutor to state t hat appellant had a “ drug habit ” and

was “ on drugs ” provided the prosecutor with a clear motive to commit this

robbery and was extremely prejudicial to appel lant.

In the case at bar, the appellant’s attorney failed to even make an

objection to the prosecutor’s prejudicial and improper questioning of

witnesses regarding extraneous offenses. Consequently, trial counsel failed

to move for a mistrial. (entire rec ord)

Appellant received ineffective assistance of counsel b y trial counsel not

objecting to the prosecutor ’ s closing argument th at appellant had a drug habit

and by not objecting to the statements made by Detective Sollenberger that

she was “ familiar ” with appellant

.

CONCLUSION AND PRAYER

WHEREFORE PREMISES CONSIDERED, appellant prays that the

judgment of the trial court be reversed and judgment of acquittal be entered or

in the alternative that appellant will be granted a new trial or that appellant’s

sentence will be set aside and for such other and further relief to which20

appellant may be justly entitled.

RESPECTFULLY SUBMITTED,

/s/ Greg Russell

Greg Russell

Attorney for Appellant

711 59 th Street

Galveston, Texas 77551

(409) 497

- 4743

(409) 497

- 4721 Fax

SBN: 17411550

CERTIFICATE OF SERVICE

As Attorney of Record for Appellant, I do hereby Certify that a true and

correct copy of the above and foregoing document was this date provided to

the Attorney for Appellee, by email/e

- file service to Mr. Jack Roady, District

Attorney of Galveston Co unty at the offices of the District Attorney of Galveston

County, Texas, 600 59 th Street, Galveston, Tx . 775 51, on the 4th day of21

Dec em ber 2015.

/s/ Greg Russell

Attorney for Appellant

CERTIFICATE OF COMPLIANCE

I do hereby certify that this brief is in compliance with rule 9.4(i) of the

Texas Rules of Appellate Procedure because it is computer generated, and

i t s relevant portions contain 4573 words.

/s/ Greg Russell

Attorney for Appellant