Opinion issued April 14, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00496-CR

———————————

JESUS ESCOBAR, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 7

Harris County, Texas

Trial Court Case No. 1853071

MEMORANDUM OPINION

A jury convicted Jesus Escobar of delivery of less than one-fourth of an

ounce of marijuana.

1 On appeal, he argues that unobjected-to comments by a 

prosecutor during voir dire constitute fundamental error warranting a new trial. 

 1 TEX. HEALTH & SAFETY CODE ANN. § 481.120 (West 2010).
2

Alternatively, he contends that his trial counsel’s failure to object constitutes

ineffective assistance of counsel. We affirm.

Background

During voir dire, the prosecutor said:

And the criminal code actually says, “It shall be the primary duty of 

all prosecuting attorneys, including any special prosecutors, not to 

convict, but to see that justice is done.” And I’m excited about that 

because it means that my job is to do the right thing. So when we see 

that someone that we believe to be not guilty, we can dismiss that 

case. When we believe them to be guilty, then we proceed. I also have 

had the opportunity to view our assistant district attorney, Mike 

Anderson, in a training session. He said, you know, “I’m so thankful 

for this job and this position because I never have to try a case that I 

don’t believe in.” And, so, I’m glad to be here today.

Escobar did not object.

The prosecutor subsequently told the venire that the State had the burden to 

prove all elements of the offense, that the State’s burden was beyond a reasonable 

doubt, and that Escobar was entitled to a fair trial and a presumption of innocence 

until proven guilty.

The jury convicted Escobar. He timely appealed.

Improper Comments by the Prosecutor

A. The prosecutor improperly stated his personal belief in Escobar’s guilt.

Escobar contends that the prosecutor’s statement was improper because he

effectively told the venire that he personally believed Escobar to be guilty. We 

agree.
3

The prosecutor indicated that he tries defendants if and only if he believes 

that they are guilty. He decided to try Escobar. The unavoidable conclusion is that 

the prosecutor personally believed that Escobar was guilty. See, e.g., Clayton v. 

State, 502 S.W.2d 755, 756 (Tex. Crim. App. 1973) (“The prosecutor’s argument 

that he would not prosecute a man he did not know in his heart to be guilty is 

improper.”); Williams v. State, 417 S.W.3d 162, 171–72 (Tex. App.—Houston [1st 

Dist.] 2013, pet. ref’d) (concluding that prosecutor’s statement that he dismisses

cases when “I don’t think that the defendant’s guilty” was improper); Beltran v. 

State, 99 S.W.3d 807, 811 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

(holding that prosecutor’s statement that “[i]f I believed the man was not guilty I 

wouldn’t be here” was improper).

“A prosecutor may not inject personal opinion in statements to the jury. 

Such a statement improperly conveys the idea that the prosecutor has a basis for 

such an opinion outside the evidence presented at trial.” Williams, 417 S.W.3d at 

172. Further, such a statement encourages jurors to conclude that a defendant is 

“necessarily guilty because he was being tried.” See Mendoza v. State, 552 S.W.2d 

444, 447 (Tex. Crim. App. 1977). Therefore, the prosecutor’s comment, which 

conveyed his personal belief in Escobar’s guilt, was improper.
4

B. Escobar waived review by failing to object

However, Escobar did not object to the prosecutor’s statements. “Rule 33.1 

of the Texas Rules of Appellate Procedure requires that, in general, for a 

complaining party to preserve an alleged error for appellate review, the record 

must show that the party raised the issue with the trial court in a timely and 

specific request, objection, or motion.” McLean v. State, 312 S.W.3d 912, 915 

(Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing TEX. R. APP. P. 33.1(a) and

Griggs v. State, 213 S.W.3d 923, 927 (Tex. Crim. App. 2007)). “However, Texas 

Rule of Evidence 103(d) provides that, ‘In a criminal case, nothing in these rules 

precludes taking notice of fundamental errors affecting substantial rights although 

they were not brought to the attention of the court.’” Id. (quoting TEX. R. EVID.

103(d)); accord Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).

We have already concluded that the prosecutor’s remarks were improper.

See Williams, 417 S.W.3d at 172. We must therefore determine if the error was 

fundamental. See McLean, 312 S.W.3d at 915. “Fundamental error must be so 

egregious it prevents a fair and impartial trial.” Beltran, 99 S.W.3d at 811 (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)).

Escobar cites no case, nor have we found any, holding that a prosecutor’s 

statement of personal belief in a defendant’s guilt before a venire was a 

fundamental error not requiring an objection. See id. at 811–12. But numerous 
5

Texas cases suggest that a trial judge’s improper statement to a venire might 

constitute fundamental error if it rises to “such a level as to bear on the 

presumption of innocence or vitiate the impartiality of the jury.” McLean, 312 

S.W.3d at 917; see Blue, 41 S.W.3d at 132. But it is unclear if this rule should also 

apply to prosecutors’ voir dire statements. Notably, once voir dire is over and the 

jury is impanelled, The Court of Criminal Appeals has held that “a defendant's 

failure to object to a jury argument or a defendant's failure to pursue to an adverse 

ruling his objection to a jury argument forfeits his right to complain about the 

argument on appeal.” Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 

1996); accord Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004).

In Blue v. State, a trial judge disclosed to the venire that, to the judge’s 

chagrin, the defendant turned down a plea bargain. 41 S.W.3d at 130. A plurality 

of the Court of Criminal Appeals reasoned: “A juror who knows at the outset that 

the defendant seriously considered entering into a plea agreement no longer begins 

with a presumption that the defendant is innocent.” Id. at 132. Further, “[a] juror 

who hears the judge say that he would have preferred that the defendant plead 

guilty might assume that the judge knows something about the guilt of the 

defendant that the juror does not.” Id. Accordingly, the plurality concluded that 

“[t]he comments of the trial judge, which tainted appellant’s presumption of 
6

innocence in front of the venire, were fundamental error of constitutional 

dimension and required no objection.”2 Id.

Escobar argues that (1) Blue, which examined a trial judge’s voir dire 

statements, also applies to a prosecutor’s voir dire statements and (2) the 

prosecutor’s remarks in this case tainted the presumption of innocence and thus 

constitute fundamental error under Blue. He asserts that “an exuberant 

prosecutor . . . brought the full force of moral righteousness down on the side of 

guilt. . . . [H]e told the jury that it was his . . . duty to see Mr. Escobar found guilty 

because he believed in it.” Escobar urges us to conclude that these comments

“irreparably violated the presumption of innocence and tainted the jury with an 

inflammatory emotional demonstration.”

The State urges us to consider the entire record. See Mendoza, 552 S.W.2d at 

446–47 (considering prosecutor’s voir dire comments in light of entire record). It

notes that “the prosecutor went on to clarify the appellant’s rights and the State’s 

burden of proof.” Accordingly, “the prosecutor’s comments in voir dire did not 

violate the appellant’s presumption of innocence.” We agree with the State.

 2 “Although the lead [plurality] opinion described the fundamental right at issue in 

Blue as a defendant’s presumption of innocence, a concurring opinion described 

the fundamental right at issue as the right to an impartial trial judge.” Jaenicke v. 

State, 109 S.W.3d 793, 796 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). 

Accordingly, the various opinions in Blue are persuasive, but not precedential. 

Unkart v. State, 400 S.W.3d 94, 101 (Tex. Crim. App. 2013).
7

The presumption of innocence is not impinged when, in the context of the 

entire proceeding, “it is unlikely that potential jurors would have been led to 

believe that the district attorney had a basis for his opinion unknown to the venire, 

or that appellant was necessarily guilty because he was being tried.” Id. at 447. In 

Mendoza, a prosecutor remarked to the venire that he “has the responsibility of 

seeing that the individuals who are guilty of criminal offenses are brought to trial, 

and hopefully brought to justice.” Id. at 446. “Immediately after these remarks 

were made, defense counsel moved that the entire panel be quashed. The motion 

was overruled; however, the court did admonish the district attorney to ‘be very 

careful what you say.’” Id. at 446–47. Moreover, “the district attorney went on to 

clarify the presumption of innocence and the State’s burden of proof.” Id. at 447.

“In light of this clarification and the court’s prompt admonishment, it is unlikely 

that potential jurors would have been led to believe that the district attorney had a 

basis for his opinion unknown to the venire, or that appellant was necessarily 

guilty because he was being tried.” Id. “Since the remarks were general in nature 

and made at a stage of the proceedings before the jury was impaneled and evidence 

was adduced, dismissal of the venire was not warranted.” Id.

The Fourteenth Court of Appeals has held that there is no fundamental error 

when a prosecutor improperly states his personal opinion regarding the guilt of the 

defendant, the defendant does not object, and other circumstances negate the harm 
8

to the defendant. Beltran, 99 S.W.3d at 811–12. In Beltran, the following exchange 

occurred between the attorneys and a venireperson:

VENIREPERSON: I have a follow up question. If the investigation 

over the last thirteen years has shown that the man was not

guilty would the indictment be eliminated? Would the 

indictment be dropped?

STATE: If I believed the man was not guilty I wouldn’t be here. My 

job is to see that justice is done and I wouldn’t be sitting here.

DEFENSE COUNSEL: And I can tell you that if I believed he did this 

and the State could prove it beyond a reasonable doubt I 

wouldn’t be here, either.

Id. at 811. The defendant did not object. On appeal, the Fourteenth Court of 

Appeals found no fundamental error. “We agree the prosecutor improperly stated 

her personal opinion. Nonetheless, appellant cites no cases in which similar voir 

dire statements were held to be fundamental error. Moreover, defense counsel’s 

immediate response stating his own opinion negated any harm to appellant.” Id. at 

811–12. Accordingly, our sister court upheld the conviction. Id. at 812.

Generally, when a prosecutor improperly tells the venire that he personally 

believes the defendant to be guilty, an instruction from the trial court will cure the 

harm to the defendant. Williams, 417 S.W.3d at 171–72. In Williams, the following 

exchange occurred between a prosecutor and a venireperson:

STATE: My duty is to prove my case. What should I—if I don’t 

believe this case—look, I’ll tell you right now. If I don’t believe 

this case and I don’t think that the defendant’s guilty, what 

should I have already done?
9

VENIREPERSON: Not charged him.

STATE: We dismiss cases—

Id. at 171. The defendant objected, then unsuccessfully moved for a mistrial. We 

concluded that “the prosecutor’s statement to the venire that he would have 

dismissed the case against Williams if he believed he was innocent constituted an 

improper expression of his personal opinion that Williams was guilty.” Id. at 172. 

However, we also held that the trial court did not abuse its discretion in denying a 

mistrial because it “made a prompt instruction to disregard the comment and 

specifically noted that the comment only constituted the prosecutor’s opinion. 

Under similar circumstances, Texas courts have held that a prompt instruction to 

disregard cures any resulting harm.” Id.

Here, other actions by the prosecutor cured any harm to the presumption of 

innocence. The prosecutor explained to the venire, “This whole process is to 

ensure that the defendant gets a fair trial today. And, so, that’s what we’re doing.” 

He acknowledged his burden of proof: “And I have some things to prove to you 

today. And these are all elements that I have to prove. And if I do not prove all of 

them, if there’s even one missing, you have to find the defendant not guilty. I have 

to prove that . . . .” He clarified, “Again, I have to prove each and every element 

beyond a reasonable doubt. . . . [Y]ou get to decide what reasonable doubt is.”
10

The record demonstrates that the prosecutor promptly and thoroughly 

explained the presumption of innocence and burden of proof to the venire. Thus, 

this case is similar to Mendoza, Beltran, and Williams because these additional 

circumstances mitigated any harm from the prosecutor’s error.3 In light of the 

entire record, the prosecutor’s improper statements did not bear on the presumption 

of innocence or vitiate the impartiality of the jury. Thus, the statements did not 

constitute fundamental error and, accordingly, Escobar forfeited appellate review 

of them by failing to timely object.

Ineffective Assistance of Counsel

Escobar contends that, in the alternative, his trial counsel’s failure to object 

constitutes ineffective assistance of counsel.

A. Standard of review

“To prove ineffective assistance, a defendant must show, by a 

preponderance of the evidence, that (1) counsel’s performance was so deficient 

that he was not functioning as acceptable counsel under the Sixth Amendment and 

(2) there is a reasonable probability that, but for counsel’s error or omission, the 

result of the proceedings would have been different.” Apolinar v. State, 106 

S.W.3d 407, 416 (Tex. App.—Houston [1st Dist.] 2003), aff’d, 155 S.W.3d 184 

 3 Notably, Escobar cites no additional irregularities that could have aggravated the 

prosecutor’s error or limited the effectiveness of his mitigating statements. For 

example, the jury charge included, as is common practice, instructions on the 

presumption of innocence and burden of proof.
11

(Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687–96, 

104 S. Ct. 2052, 2064–69 (1984) and Thompson v. State, 9 S.W.3d 808, 812 (Tex.

Crim. App. 1999)). “Appellant bears the burden of proving by a preponderance of 

the evidence that counsel was ineffective.” Thompson, 9 S.W.3d at 813. “When 

handed the task of determining the validity of a defendant’s claim of ineffective 

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

counsel and avoid the deleterious effects of hindsight.” Id. (citing Ingham v. State,

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

B. Demonstrating ineffective assistance

The State contends that Escobar cannot succeed on the second prong—

prejudice—because, as discussed above, the other circumstances of this case 

negate any potential harm. It also contends that Escobar cannot succeed on the first 

prong—performance—because the record does not rebut the presumption that trial 

counsel acted strategically. We agree on both points.

Escobar provides no argument on prejudicial effect other than the arguments 

he relied upon to show an impingement of the presumption of innocence. Because

we have rejected those arguments, we do not find a reasonable probability that, but 

for counsel’s error or omission, the result of the proceedings would have been 

different.
12

Additionally, Escobar cannot show deficient performance. “Any allegation 

of ineffectiveness must be firmly founded in the record, and the record must 

affirmatively demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 

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

range of reasonable professional assistance.” Id. “An appellate court should be 

especially hesitant to declare counsel ineffective based upon a single alleged 

miscalculation during what amounts to otherwise satisfactory representation, 

especially when the record provides no discernible explanation of the motivation 

behind counsel’s actions—whether those actions were of strategic design or the 

result of negligent conduct.” Id. at 814.

Here, the record contains no indication why Escobar’s trial counsel chose 

not to object. “We will normally not speculate to find trial counsel ineffective 

when the record is silent as to counsel’s reasoning or strategy.” Apolinar, 106 

S.W.3d at 416. Further, the rationale, if any, for that decision was not explored at 

trial, and the issue was not raised in a motion for new trial. “Trial counsel ‘should 

ordinarily be afforded an opportunity to explain his actions before being 

denounced as ineffective.’” Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. 

App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 

2005)). “If trial counsel is not given that opportunity, then the appellate court 

should not find deficient performance unless the challenged conduct was ‘so 
13

outrageous that no competent attorney would have engaged in it.’” Menefield, 363 

S.W.3d at 593 (quoting Goodspeed, 187 S.W.3d at 392).

The record is silent on the attorney’s reason for not objecting, and his failure 

to object to the prosecutor’s single remark is not so outrageous as to warrant 

speculation into the matter. Accordingly, Escobar’s ineffective-assistance-ofcounsel claim fails.

Conclusion

We affirm the judgment of the trial court.

Harvey Brown

Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).