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 

405th 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/6/2015 11:54:31 AM CHRISTOPHER A. PRINE Clerk ------------------------ VOID K ------------------------ FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/7/2015 10:15:00 AM CHRISTOPHER A. PRINE Clerk
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

405th 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
IDENTITY OF PARTIES AND COUNSEL

Parties and counsel in this case are as follows:

1. James Jesse Hubbard, Appellant, represented at trial by Adam Brown, 

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

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

2. The State of Texas, Appellee, 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 59th 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

Argument in Support of Appellant’s Issue... .......................... 6 - 19

Conclusion and Prayer ........................................................... 20

Certificate of Service ................................................................. 21

Certificate of Compliance................................................ 21
ii

INDEX OF AUTHORITIES

CASES PAGE

Alejandro v. State, 493 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 [1st 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.Ct. 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 (Tex.Crim.App. 1980)...................... 6

Ex Parte Walker, 777 S.W.2d 427 (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 [1st Dist.] 1984),

aff’d 686 S.W.2d 184 (Tex.Crim.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)................. 7
iii

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 [1st 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 Crim.Proc. §36.19................................................... 10

Tex. Rule App. Proc. 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....................................... 6
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

405th 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 405th District Court of Galveston County, Texas, the Honorable 

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

The jury found appellant guilty and appellant pled true to the two 

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

the Institutional 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 appellant 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 cigarettes. (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 purchased the beers. (RR 3, 

30) They left the bar and began walking along the Strand and appellant 

borrows Mr. Robinson’s cell phone to call his girlfriend. (RR 3, 30 – 31) 

Approximately forty-five minutes to an hour after they left Crow’s bar, they then

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

two packs of cigarettes. (RR 3, 31 - 32) Mr. Robinson testified that after 

leaving Bob’s Grocery they proceed to walk down the street and about a block 
3

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 starting 

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 Robinson testified that his son 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 he 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 McNeil of the Galveston Police Department testified 

that he was dispatched to University of Texas Medical Branch Emergency 

Room and met 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 a 
4

description of the person who robbed him. (RR 4, 36). Detective 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 to the jury. (RR 4, 69) During the 

state’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, the jury found appellant guilty of Robbery. (RR 

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

PREJUDICIAL 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 it 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 this 
6

testimony by Detective 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 despite 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, Texas 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). Counsel 

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 [1st 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 [1st 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 defendant. (RR 4, 37)

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

prejudicial and improper 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 the 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 with?

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 jury 
10

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 court 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) Other 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 impartial 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).

Appellant’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 Closing 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) reasonable deductions from the evidence; (3) answer to the 

argument of opposing counsel; and (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 areas 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 the punishment phase of the trial. Garrett v. State, 632 

S.W.2d at 353-54
13

The prosecutor, in his 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, the prosecutor, further stated in his 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)

Again, 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 case 
14

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 the 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, the 

prosecutor apparently 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 what 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 this bar, does he pay for 
16

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 paid. 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 person 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 want 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.Crim.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 balancing 
18

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 cautionary 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 objecting 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 failing 

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

and was “on drugs.”

The prosecutor's argument was extreme and injected new facts into 

the case that were harmful to appellant.

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

only evidence that was produced 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 the prosecutor, and was not based upon 
19

the evidence in the case.

Allowing the prosecutor to state that 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 appellant.

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 record)

Appellant received ineffective assistance of counsel by trial counsel not 

objecting to the prosecutor’s closing argument that 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 which 
20

appellant may be justly entitled.

RESPECTFULLY SUBMITTED,

/s/ Greg Russell

Greg Russell

Attorney for Appellant

711 59th 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 County at the offices of the District Attorney of Galveston 

County, Texas, 600 59th Street, Galveston, Tx. 77551, on the 4th day of 
21

December 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 

its relevant portions contain 4573 words.

/s/ Greg Russell

 Attorney for Appellant