Opinion filed April 16, 2020

In The

Eleventh Court of Appeals __________

No. 11-17-00214-CR

__________

HECTOR RODRIGUEZ, Appellant

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the 29th District Court

Palo Pinto County, Texas

Trial Court Cause No. 15627

M E M O R A N D U M O P I N I O N

The jury convicted Hector Rodriguez of possession of a controlled substance 

(cocaine) with intent to deliver and assessed his punishment at confinement for a 

term of life in the Institutional Division of the Texas Department of Criminal Justice. 

Appellant challenges his conviction in five issues. We affirm. 

Background Facts

Texas Department of Public Safety Trooper Phillip McKenzie stopped a 

brown Toyota pickup on January 9, 2015. He testified that the pickup committed a 
2

traffic violation by pulling out in front of him at an intersection when the pickup had 

a stop sign. The pickup had an expired temporary license tag. Appellant’s wife, 

Diana Borrego, was the driver, and Appellant was a passenger in the front seat. The 

couple told Trooper McKenzie that Appellant worked in the oilfield in West Texas 

and that West Texas was their destination. Trooper McKenzie believed that their 

story was suspicious because he did not see a hard hat or boots in the pickup. 

Additionally, Trooper McKenzie determined that both occupants had prior 

convictions for drug offenses. 

Because the pickup was registered to Appellant, Trooper McKenzie asked him

for consent to search it. Appellant gave his consent to Trooper McKenzie to search 

the pickup. Trooper McKenzie first found a “water pipe” or “small bong.” He found 

this pipe on the passenger’s side floorboard. Borrego claimed that the pipe belonged 

to her son. A search of a jacket that belonged to Appellant revealed another pipe 

that appeared to have methamphetamine residue. Trooper McKenzie also found a 

small dietary supplement bottle in that jacket. A subsequent search of this bottle 

revealed the presence of 7.53 grams of cocaine. 

After searching Appellant’s jacket, Trooper McKenzie searched the console 

between the driver and passenger seats. There were two “Styrofoam” cups located 

in the console. Trooper McKenzie pulled the lid off one of the cups, and he observed 

a “small sandwich bag containing a white powdery substance.” It was later 

determined that this bag contained 12.02 grams of cocaine. Trooper McKenzie 

arrested Appellant and Borrego after finding the cocaine in the cup. Borrego claimed 

ownership of the cocaine inside of the pickup. However, she was unable to tell 

Trooper McKenzie that the cocaine was located inside the cup or how it was 

packaged when he asked her these questions. 

Trooper McKenzie also found a digital scale in the driver’s side door, unused 

Ziploc bags, a grinder with cocaine residue, prescription medications for which 
3

neither Appellant nor Borrego had a prescription, a bag of what appeared to 

be marihuana, and other pipes for using methamphetamine or crack cocaine. 

Trooper McKenzie testified that the amount of almost twenty grams of cocaine was 

beyond a “personal use amount.” Trooper McKenzie testified that the amount of 

cocaine that he found would be an amount possessed by someone involved in drug 

trafficking. He also testified that baggies and digital scales like those found in 

Appellant’s pickup are used in the distribution of drugs.

The State also offered the testimony of Texas Department of Public Safety 

Special Agent Steve Tuggle. He also confirmed that the amount of cocaine found 

in the pickup was “more than just a personal use amount.” Special Agent Tuggle 

testified that a grinder and sifter like the one found in the pickup is used for “cutting” 

drugs for distribution and that baggies and digital scales are also used to package 

drugs for distribution. 

Sufficiency of the Evidence

In his third issue, Appellant challenges the sufficiency of the evidence 

supporting his conviction. He contends that the evidence failed to show that he 

knowingly possessed cocaine or that he had an intent to distribute it. We review a 

challenge to the sufficiency of the evidence, regardless of whether it is denominated 

as a legal or factual sufficiency challenge, under the standard of review set forth in 

Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 

(Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—

Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the evidence 

in the light most favorable to the verdict and determine whether any rational trier of 

fact could have found the essential elements of the offense beyond a reasonable 

doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. 

App. 2010). 
4

When conducting a sufficiency review, we consider all of the evidence 

admitted at trial, including pieces of evidence that may have been improperly 

admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. 

State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s 

role as the sole judge of the witnesses’ credibility and the weight their testimony is 

to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the 

factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 

319; Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, 

we presume that the factfinder resolved the conflicts in favor of the verdict, and we 

defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

A person commits the offense of possession with intent to deliver a controlled 

substance if he knowingly possesses a drug with the intent to deliver it. TEX.

HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2017). Possession is defined as 

“actual care, custody, control, or management.” TEX. PENAL CODE ANN. 

§ 1.07(a)(39) (West Supp. 2019). To prove unlawful possession of a controlled 

substance, the State must show (1) that the accused exercised control, management,

or care over the substance and (2) that the accused knew the matter possessed was 

contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005), 

overruled in part on other grounds by Robinson v. State, 466 S.W.3d 166, 173 & 

n.32 (Tex. Crim. App. 2015); Hughitt v. State, 539 S.W.3d 531, 538 (Tex. App.—

Eastland 2018), aff’d, 583 S.W.3d 623 (Tex. Crim. App. 2019). The evidence must 

establish that the accused’s connection with the drugs is more than just his fortuitous 

proximity to someone else’s drugs. Poindexter, 153 S.W.3d at 405–06; Hughitt, 539 

S.W.3d at 538. 

A person need not have exclusive possession of a controlled substance in order 

to be guilty of possession—joint possession will suffice. Hughitt, 539 S.W.3d at 
5

538; see McGoldrick v. State, 682 S.W.2d 573, 578 (Tex. Crim. App. 1985).

Appellant asserts that the evidence failed to demonstrate that he jointly possessed 

the cocaine with Borrego. He relies on Borrego’s claim during the traffic stop that 

the cocaine solely belonged to her. Appellant also asserts that Borrego later pleaded 

guilty to possession of the cocaine. We disagree with Appellant’s analysis. 

Borrego’s guilty plea was not admitted as evidence at trial. Accordingly, we 

do not consider her guilty plea in our sufficiency analysis because it was not admitted 

as evidence at trial. See Winfrey, 393 S.W.3d at 767 (when conducting a review of 

the sufficiency of the evidence, we consider all of the evidence offered at trial). 

Borrego did not testify at trial. The evidence concerning Borrego’s claim of the 

cocaine was presented in two forms: Trooper McKenzie’s testimony about 

Borrego’s statements and a recording of the traffic stop that was played for the jury. 

As noted previously, Borrego initially claimed ownership of the cocaine that 

Trooper McKenzie said he found in the pickup. In this regard, Trooper McKenzie 

arrested Appellant and Borrego after he found the cocaine in the cup. However, 

Borrego was unable to tell Trooper McKenzie that there was cocaine in a cup or how 

it was packaged. Instead, it appears that she told Trooper McKenzie about the 

cocaine that was subsequently found in Appellant’s jacket, stating that she placed it 

in his jacket. 

To the extent that Borrego claimed sole ownership of the cocaine found inside 

the pickup, the jury was free to reject her claim, and we defer to the jury’s decision 

to do so. See Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 899; Clayton, 235 

S.W.3d at 778. Borrego was unable to describe the cocaine in the cup or how it was 

packaged, which is inconsistent with her claim of sole ownership. Accordingly, 

there was evidence that supported the jury’s rejection of her claim.

Appellant also asserts that the evidence was insufficient to show joint 

possession of the cocaine. Texas courts have formulated the “affirmative links rule,” 
6

which provides that, “[w]hen the accused is not in exclusive possession of the place 

where the substance is found, it cannot be concluded that the accused had knowledge 

of and control over the contraband unless there are additional independent facts and 

circumstances which affirmatively link the accused to the contraband.” Poindexter, 

153 S.W.3d at 406 (alteration in original) (quoting Deshong v. State, 625 S.W.2d 

327, 329 (Tex. Crim. App. 1981)); see Evans v. State, 202 S.W.3d 158, 162 n.12 

(Tex. Crim. App. 2006) (listing affirmative links recognized by courts).1

 The 

affirmative links rule is routinely employed to establish joint possession when the 

accused is not in exclusive possession of the place where the drugs are found.

Poindexter, 153 S.W.3d at 406. “This rule simply restates the common-sense notion 

that a person—such as a father, son, spouse, roommate, or friend—may jointly 

possess property like a house but not necessarily jointly possess the contraband 

found in that house.” Id.

Appellant contends that the facts in this case are analogous to those in Hughitt. 

In Hughitt, we determined that the evidence was insufficient to establish that one 

person jointly possessed a controlled substance found in another person’s pocket

when the other person was located in a different room of a house. 539 S.W.3d at 

539. Hughitt is distinguishable because Trooper McKenzie found the cocaine in an 

area that was, at a minimum, jointly possessed by Appellant and Borrego—the 

1

Courts have identified the following factors as affirmative links that may establish an accused’s 

knowing possession of a controlled substance: (1) the accused’s presence when a search is conducted; 

(2) whether the contraband was in plain view; (3) the accused’s proximity to, and the accessibility of, the 

contraband; (4) whether the accused was under the influence of narcotics when arrested; (5) whether the 

accused possessed narcotics or other contraband when arrested; (6) whether the accused made incriminating 

statements when arrested; (7) whether the accused attempted to flee; (8) whether the accused made furtive 

gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia 

were present; (11) whether the accused owned or had the right to possess the place where the contraband 

was found; (12) whether the place where the contraband was found was enclosed; (13) whether the accused 

was found with a large amount of cash; and (14) whether the conduct of the accused indicated a 

consciousness of guilt. Evans, 202 S.W.3d at 162 n.12. Many of these same factors have been used by 

courts to determine if a person possessed a controlled substance with the intent to deliver. See Hughitt, 539 

S.W.3d at 538–39. 
7

interior of Appellant’s pickup. This was an enclosed place that was relatively small 

in size. Appellant was present at the time of the search, and the pickup belonged to 

Appellant. Furthermore, he was in close proximity to the cocaine, and a portion of 

it was found in Appellant’s jacket—the same jacket that Appellant removed his 

wallet from in order to give Trooper McKenzie his identification. Drug 

paraphernalia was also found in the pickup, some of which was in plain view, 

including a glass pipe on the passenger’s side floorboard. Additionally, Appellant 

claimed ownership of a drug pipe that was found in the same pocket as the cocaine 

found in his jacket. Viewing the evidence in the light most favorable to the jury’s 

guilty verdict, a rational factfinder could have concluded from these affirmative links 

that Appellant had knowledge of and control over the cocaine. See Poindexter, 153 

S.W.3d at 406.

Appellant also asserts that there was insufficient evidence of his intent to 

distribute or deliver. However, Appellant has not provided any argument in his brief 

concerning how the evidence was insufficient to show his intent to deliver. 

Appellant makes a general claim that, if the evidence was sufficient to support his 

conviction, it was attributable to trial counsel’s alleged ineffective assistance of 

counsel. However, the applicable standard of review for sufficiency of the evidence 

requires us to review all evidence admitted at trial, even evidence that may have 

been improperly admitted. Winfrey, 393 S.W.3d at 767; Clayton, 235 S.W.3d at 

778. Accordingly, Appellant’s claim of ineffective assistance of counsel has no 

bearing on the analysis of the sufficiency of the evidence to support his conviction.

“‘Deliver’ means to transfer, actually or constructively, to another a controlled 

substance . . . .” HEALTH & SAFETY § 481.002(8) (West Supp. 2019). Intent to 

deliver may be proved with circumstantial evidence, including evidence that the 

defendant possessed the contraband. Hughitt, 539 S.W.3d at 542 (citing Moreno v. 

State, 195 S.W.3d 321, 325 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)). 
8

“Intent can be inferred from the acts, words, and conduct of the accused.” Moreno, 

195 S.W.3d at 326 (quoting Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 

1995)). The expert testimony of an experienced law enforcement officer may be 

used to establish an accused’s intent to deliver. Id.; see Hughitt, 539 S.W.3d at 542. 

The factors to be considered in determining whether a defendant possessed 

contraband with an intent to deliver include the nature of the location where the 

defendant was arrested, the quantity of drugs the defendant possessed, the manner 

of packaging the drugs, the presence or absence of drug paraphernalia, whether the 

defendant possessed a large amount of cash, and the defendant’s status as a drug 

user. Hughitt, 539 S.W.3d at 542; Kibble v. State, 340 S.W.3d 14, 18–19 (Tex. 

App.—Houston [1st Dist.] 2010, pet. ref’d); Moreno, 195 S.W.3d at 325. This list 

of factors is not exclusive, nor must they all be present to establish a defendant’s 

intent to deliver. Kibble, 340 S.W.3d at 19.

We find that the evidence permitted a rational jury to determine 

that Appellant had the intent to deliver the cocaine found inside the pickup. 

Trooper McKenzie and Special Agent Tuggle both testified that Appellant possessed 

more than a personal-use amount of cocaine and had items in his pickup that are 

commonly used to distribute cocaine to others. We overrule Appellant’s third issue.

Ineffective Assistance of Counsel

In his first issue, Appellant alleges ineffective assistance of trial counsel. He 

devotes approximately one-half of his brief to this issue. He identifies six areas 

wherein he claims that trial counsel was ineffective. To establish that trial counsel 

rendered ineffective assistance at trial, Appellant must show that counsel’s 

representation fell below an objective standard of reasonableness and that there is a 

reasonable probability that the result would have been different but for counsel’s 

errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999) (citing 

Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). A reasonable probability 
9

is a probability sufficient to undermine confidence in the outcome of the trial.

Strickland, 466 U.S. at 694. There is a strong presumption that counsel’s conduct 

fell within the wide range of reasonable professional assistance, and the defendant 

must overcome the presumption that the challenged action could be considered 

sound trial strategy. Id. at 689.

A claim of ineffective assistance of counsel “must be firmly founded in the 

record, and the record must affirmatively demonstrate the alleged ineffectiveness.”

Thompson, 9 S.W.3d at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. 

Crim. App. 1996)). Direct appeal is usually an inadequate vehicle to raise such a 

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

390, 392 (Tex. Crim. App. 2005). Direct appeal is especially inadequate when 

counsel’s strategy does not appear in the record. Id. Trial counsel should ordinarily 

have an opportunity to explain his actions before an appellate court denounces 

counsel’s actions as ineffective. Id. Without this opportunity, an appellate court 

should not find deficient performance unless the challenged conduct was “so 

outrageous that no competent attorney would have engaged in it.” Id. (quoting 

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

In this case, Appellant did not file a motion for new trial. Accordingly, trial 

counsel has not had an opportunity to explain his trial strategy in response to the 

matters that Appellant contends were deficient. We additionally note that the 

evidence in this case was overwhelming. Appellant was convicted of possessing a

large quantity of cocaine. Some of the cocaine was found in a cup located in the 

console of Appellant’s pickup, and the other portion of the cocaine was found inside 

Appellant’s jacket. Furthermore, Appellant consented to a search of the pickup. 

Appellant’s trial counsel offered a glimpse of his trial strategy during his opening 

statement when he argued, “Ask yourself this question: Why would someone who 

knows that there’s something bad in a vehicle give consent to search that vehicle?” 
10

Given the state of the evidence against Appellant, it is difficult to fault trial counsel 

for this strategy. 

Batson Challenge

Appellant first contends that trial counsel should have made a Batson

challenge to the State’s exercise of peremptory strikes. See Batson v. Kentucky, 476 

U.S. 79, 89 (1986); Guzman v. State, 85 S.W.3d 242, 244 (Tex. Crim. App. 2002). 

He contends that “all jurors were white, and Appellant was a ‘native-born’ 

Hispanic.” Appellant supports this contention with a pro se response that he filed to 

an Anders brief filed by his prior appellate counsel.2

 See Anders v. California, 386 

U.S. 738 (1967). This response is not a part of the appellate record and cannot be 

considered in support of Appellant’s contention.3

 See Ramirez v. State, 104 S.W.3d 

549, 550–51 nn.8, 9 (Tex. Crim. App. 2003) (In its consideration of an issue on 

appeal, an appellate court cannot consider information that was not presented to the 

trial court for consideration.); see also TEX. R. APP. P. 34.1 (“The appellate record 

consists of the clerk’s record and, if necessary to the appeal, the reporter’s record.”). 

Nothing in the record suggests that the State struck members of the jury panel 

for discriminatory purposes. See Jackson v. State, 772 S.W.2d 459, 465 (Tex.

App.—Beaumont 1989, no pet.). From the record, it is not possible to draw a 

reasonable inference of purposeful discrimination, the threshold for making a Batson

challenge. See id. Furthermore, the record contains no evidence as to why trial 

counsel did not make a Batson challenge to the State’s use of peremptory strikes. 

Therefore, we presume that trial counsel’s action was reasonably professional and 

motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.

2

Upon receipt of prior counsel’s Anders brief, we abated the appeal and instructed the trial court to 

appoint new appellate counsel. 

3

Of the four veniremen referenced in Appellant’s response, two of them were successfully 

challenged for cause, and one appears to have been excused by the trial court. Accordingly, a Batson

challenge could not have been made concerning these three veniremen. See Guzman, 85 S.W.3d at 244.
11

Crim. App. 1994). Moreover, Appellant has failed to show that he was prejudiced 

by trial counsel’s failure to make a Batson challenge. See Batiste v. State, 888 

S.W.2d 9, 14–16 (Tex. Crim. App. 2000) (holding prejudice prong of Strickland test 

applies even when ineffective-assistance claim is premised on failure to make a 

Batson challenge).

Trial Preparation

Appellant next contends that trial counsel provided ineffective assistance “by 

inadequately investigating evidence, which allowed prejudicial, incriminating, and 

inadmissible hearsay in evidence.” He supports this allegation with a citation to a 

portion of the reporter’s record concerning a discussion about the admission of the 

recording of the traffic stop. However, Appellant has not provided any timestamps 

from the two-hour-long recording where allegedly prejudicial, incriminating, or 

inadmissible hearsay evidence was admitted at trial. Accordingly, Appellant has not 

adequately briefed this complaint for appellate review. See TEX. R. APP. P. 38.1(g), 

(i) (the brief must be supported by record references). Furthermore, trial counsel 

informed the trial court that Appellant wanted the entire recording of the traffic stop 

played at trial. During closing argument, trial counsel relied on the recording—

specifically, Borrego’s claims of sole ownership of the cocaine—to argue for 

acquittal. 

Appellant also asserts that he requested trial counsel to subpoena his bank 

records “to substantiate that his income was legitimate and use tracing to establish a 

defense to the State’s charge that he was a drug dealer.” He also asserts that trial 

counsel failed to investigate alibi witnesses. However, the appellate record does not 

show that Appellant’s bank records contained evidence favorable to Appellant, and 

it does not show that alibi witnesses were available to testify at trial or what their 

testimony might have been. The failure to present favorable evidence or call 

witnesses does not constitute ineffective assistance without a showing that the 
12

evidence would have benefited Appellant. See Rodriguez v. State, 459 S.W.3d 184, 

199 (Tex. App.—Amarillo 2015, pet. ref’d).

Appellant also contends that trial counsel did not adequately prepare for trial 

based upon trial counsel’s fee voucher. However, the fee voucher is not in the 

appellate record. Instead, Appellant attached it as an exhibit to his brief. An 

appellate court cannot consider documents attached to a brief as an exhibit or 

appendix that are not a part of the appellate record. Viscaino v. State, 513 S.W.3d 

802, 814 (Tex. App.—El Paso 2017, no pet.); see Whitehead v. State, 130 S.W.3d 

866, 874 (Tex. Crim. App. 2004) (affidavits not before the trial court at the time of 

its ruling cannot be reviewed on appeal). Appellant also references his “client file,” 

but it is not in the appellate record and, therefore, is not available to support his claim 

of ineffective assistance of trial counsel. Finally, Appellant relies upon a federal 

case that is over twenty years old wherein trial counsel was found to be ineffective 

for failing to adequately investigate a matter prior to trial. Appellant has not cited 

any authority, and we have found none, that permits a finding of ineffective 

assistance based on an attorney’s previous representation of another client, 

particularly a representation that occurred over twenty years earlier.

Trial Conduct

Appellant asserts that trial counsel should have filed motions to limit the 

admission of the drug paraphernalia found inside the pickup. However, he does not 

identify what motions should have been filed, and he does not show that these 

motions would have been successful had trial counsel filed them. Trial counsel’s 

failure to file a motion to suppress is not per se ineffective assistance of counsel. 

Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.) 

(citing Kimmelman v. Morrison, 477 U.S. 365, 384 (1986)). To the extent that 

Appellant is asserting that trial counsel should have filed a motion to suppress, he is 

required to show that the motion to suppress would have been granted. Jackson v. 
13

State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). Given the fact that Appellant 

consented to the search of the pickup, a motion to suppress likely would have been 

futile. See State v. Ruiz, 581 S.W.3d 782, 785–86 (Tex. Crim. App. 2019) (“A 

warrantless search may be reasonable ‘if the police obtain consent.’” (quoting 

Beeman v. State, 86 S.W.3d 613, 615 (Tex. Crim. App. 2002))). Counsel is not 

required to perform a useless or futile act. Ex parte Chandler, 182 S.W.3d 350, 356 

(Tex. Crim. App. 2005) (“But a reasonably competent counsel need not perform a 

useless or futile act.”); Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 

1991) (“Counsel is not required to engage in the filing of futile motions.”). 

Additionally, a motion in limine would have been little benefit. See Wert, 383 

S.W.3d at 753. Furthermore, the drug paraphernalia in the pickup likely would have 

been admissible as same transaction contextual evidence that was indivisibly 

connected to the offense. See Lockhart v. State, 847 S.W.2d 568, 571 (Tex. Crim.

App. 1992); Mayes v. State, 816 S.W.2d 79, 86–87 n.4 (Tex. Crim. App. 1991). 

Appellant also contends that trial counsel did not attempt to mitigate 

prejudicial evidence from the recording of the traffic stop, including Appellant’s 

prior criminal record. But as noted previously, Appellant has not sufficiently 

presented this complaint for appellate review because he has not provided any 

timestamps from the recording. Furthermore, trial counsel has not had an 

opportunity to respond to Appellant’s allegations. 

Appellant also summarily alleges that trial counsel did not object to leading 

questions, failed to object to compound questions and questions calling for a 

narrative, failed to object to duplicative evidence or prejudicial evidence, and failed 

to object to expert testimony. Appellant makes these complaints on a single page of 

his brief without any supporting authority or any argument that these objections 

would have been sustained. To show ineffective assistance of counsel for a failure 

to object at trial, an appellant must show that the trial court would have committed 
14

error in overruling the objection. Ex parte White, 160 S.W.3d 46, 53 (Tex. Crim. 

App. 2004). Appellant has not made this showing. Furthermore, the record is silent 

as to why trial counsel did not make these objections, and we may not speculate as 

to why he did not object. See Wert, 383 S.W.3d at 757.

Expert Witness Testimony

Appellant contends that trial counsel was ineffective for failing to object to 

expert witness testimony from Special Agent Tuggle. Appellant bases this argument 

on the contention that the State failed to designate Special Agent Tuggle in 

compliance with the trial court’s “Standing Order in All Criminal Cases.” However, 

Appellant’s trial counsel objected to Special Agent Tuggle’s testimony on the basis 

that he had not been disclosed by the State. Accordingly, we disagree with 

Appellant’s contention that trial counsel failed to object to Special Agent Tuggle’s 

testimony on the basis that he was not disclosed under the standing order. 

Appellant also contends that trial counsel should have objected to 

Trooper McKenzie’s testimony identifying two of the prescription medications that 

he found in the pickup. He contends that Trooper McKenzie was not qualified to 

offer this testimony. However, Appellant does not cite any authority for this 

proposition. Even if we assume that Trooper McKenzie was not qualified to give 

this testimony, the record does not demonstrate that the outcome of the proceeding 

would have been different. Appellant was not convicted of possessing these 

medications. Additionally, trial counsel established on cross-examination that 

Trooper McKenzie did not have personal knowledge of these medications but,

rather, obtained the information by doing research about them later. 

Closing Argument

Appellant contends that trial counsel was ineffective for failing to object to 

the following matters that the prosecutor referenced during closing arguments at the 

guilt/innocence phase: (1) a reference to Appellant’s prior drug conviction and (2) a 
15

reference that Appellant was “just a user who had an addiction.”4 In order to 

establish ineffective assistance of counsel in this manner, the record must show that 

the trial court would have committed harmful error in overruling objections to these 

arguments. Thus, Appellant’s complaint requires an inquiry as to whether the 

prosecutor made improper jury arguments.

Permissible jury argument falls into one of four areas: (1) summation of the 

evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument 

of opposing counsel; or (4) a plea for law enforcement. Brown v. State, 270 S.W.3d 

564, 570 (Tex. Crim. App. 2008); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. 

App. 2000). The prosecutor’s argument about Appellant’s prior drug conviction 

constituted a summation of the evidence because the prior conviction was referenced 

in the recording of the traffic stop. With respect to the argument that Appellant was 

more than just a drug user, the prosecutor’s argument constituted a reasonable 

deduction from the evidence. In addition to the presence of cocaine in Appellant’s 

pickup, there were also pipes that showed evidence of drug usage. Also, there were 

items in the pickup that showed evidence of distribution. See Adair v. State, 336 

S.W.3d 680, 695 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d); Akin v. State, 

981 S.W.2d 297, 300 (Tex. App.—Texarkana 1998, no pet.); Davis v. State, 830 

S.W.2d 762, 766 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). Accordingly, 

we conclude that trial counsel was not ineffective for not objecting to the matters 

that Appellant cites.

Posttrial Guidance

Finally, Appellant contends that trial counsel was ineffective for not advising 

him of his posttrial rights. He argues that trial counsel did not inform him of “all 

4

The prosecutor actually argued that Appellant and Borrego were more than “just users who have

an addiction.”
16

aspects of an appeal, or any alternative, such as a motion for new trial.” The 

appellate record does not demonstrate that trial counsel did not advise Appellant 

about his posttrial rights. Appellant attempts to overcome this deficiency by 

asserting that Appellant was confused about the effect of pleading “true” to the prior 

criminal offenses alleged for enhancement purposes. However, this confusion is not 

necessarily attributable to trial counsel’s representation, and it has nothing to do with 

Appellant’s posttrial rights to file a motion for new trial. 

The trial court imposed the sentence on August 9, 2017. Appellant filed his 

notice of appeal on August 15, 2017, and the trial court appointed appellate counsel 

for him two days later. Appellate counsel filed a document accepting the 

appointment on August 21, 2017. Appellant contends that appellate counsel did not 

have sufficient time to review the record before the thirty-day deadline for filing a 

motion for new trial. See TEX. R. APP. P. 21.4(a). We disagree. 

There is a rebuttable presumption that, when the defendant is represented by 

counsel during trial, this counsel continued to adequately represent the defendant

after trial. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007) (citing 

Oldham v. State, 977 S.W.2d 354, 360–63 (Tex. Crim. App. 1998)). Furthermore, 

there is a rebuttable presumption that the defendant was adequately represented by 

appellate counsel during the period of time that a motion for new trial could have 

been filed. Id. There is nothing in the appellate record that rebuts these 

presumptions. Appellant was represented by counsel for at least twenty-six of the 

thirty days following the date sentence was imposed. Furthermore, this court notes 

that the reporter’s record is often not available for review prior to the deadline for 

filing a motion for new trial.5

5

The reporter’s record was filed in this cause approximately two months after the date sentence was 

imposed.
17

The appellate record does not establish ineffective assistance of counsel under 

Strickland. We overrule Appellant’s first issue alleging ineffective assistance of trial 

counsel.

State’s Disclosure of Expert Witnesses

In his second issue, Appellant asserts that “the State of Texas violated 

Appellant’s rights” under various statutory and constitutional provisions. We note 

at the outset that, “[o]rdinarily, a conviction is not overturned unless the trial court 

makes a mistake.” Johnson v. State, 169 S.W.3d 223, 228–29 (Tex. Crim. App.

2005). Thus, most appellate issues are directed at the conduct of the trial court rather 

than opposing counsel. In some limited situations, misconduct by the prosecutor can 

be grounds for overturning a conviction even though the trial court has done nothing 

wrong. Id. at 229 (listing the following examples: if perjured testimony is knowingly 

used, exculpatory evidence is suppressed, or the prosecutor has a conflict of interest 

requiring recusal). 

Appellant cites various statutory and constitutional provisions that he alleges 

the prosecutor violated. For example, he contends that the prosecutor violated the 

requirement of Article 2.01 “to see that justice is done.” See TEX.CODECRIM. PROC.

ANN. art. 2.01 (West 2005). He also cites Article 39.14 and provisions of the Texas 

Disciplinary Rules of Professional Conduct concerning a prosecutor’s duty to turn

over evidence favorable to the defendant. See CRIM. PROC. art. 39.14 (West Supp. 

2019); see also Brady v. Maryland, 373 U.S. 83, 87 (1963). However, Appellant 

does not assert that the prosecutor failed to provide exculpatory information to the 

defense. Instead, he contends that the prosecutor “lied” when responding to trial 

counsel’s objection that Special Agent Tuggle had not been disclosed prior to trial. 

The alleged “lie” was that the State was not required to provide notice of its 

witnesses. 
18

We will construe Appellant’s second issue as a challenge to the trial court’s 

ruling based upon the State’s argument. We review a trial court’s decision to allow 

an undesignated expert to testify for an abuse of discretion. See Nobles v. State, 843 

S.W.2d 503, 514–15 (Tex. Crim. App. 1992); Branum v. State, 535 S.W.3d 217, 226 

(Tex. App.—Fort Worth 2017, no pet.). In determining whether an abuse of 

discretion occurred, we consider whether there is any showing of bad faith on the 

part of the prosecutor in failing to provide the name of the witness and whether the 

defendant could have reasonably anticipated that an expert of the type called by the 

State would testify. See Branum, 535 S.W.3d at 226; Gowin v. State, 760 S.W.2d 

672, 674 (Tex. App.—Tyler 1988, no pet.). In determining whether the defense 

could have reasonably anticipated that the State would call the witness, we examine 

the degree of surprise to the defense, the degree of disadvantage inherent in that 

surprise, and the degree to which the trial court was able to remedy that surprise. 

Hamann v. State, 428 S.W.3d 221, 228 (Tex. App.—Houston [1st Dist.] 2014, pet. 

ref’d). 

Appellant bases his second issue on the contention that the State failed to 

designate Special Agent Tuggle in compliance with the trial court’s “Standing Order 

in All Criminal Cases.” The standing order contained the following provision:

In all criminal cases now or hereafter pending in this Court, each 

party, State and Defendant, by and through its attorney is hereby 

ordered to produce and make available to the other party, without the 

necessity of the filing of a motion, the disclosure notice required by 

article 39.14(b) of the Texas Code of Criminal Procedure by disclosing 

in writing the name(s) and address(es) of each person the party may use 

to present evidence under Rules 702, 703 and 705 of the Texas Rules

of Evidence upon the trial of this cause and such notice shall be 

provided no later than twenty (20) days before the date the trial begins 

herein unless waived by the other party.

When Appellant’s trial counsel objected to Special Agent Tuggle’s expert testimony 

on the basis that he had not been disclosed, the prosecutor responded: “[Trial 
19

counsel] filed no motions, so we didn’t have to produce a witness list.” Appellant is 

essentially asserting that the prosecutor misinterpreted the provisions of the standing 

order. He partially bases this argument on the fact that the prosecutor’s predecessor 

filed a witness designation for another expert witness, the chemist. 

To the extent that the trial court’s ruling required a construction of its own 

discovery order, we defer to the trial court’s construction. The trial court focused 

on the lack of surprise to the defense that the State would call an expert to testify 

that the amount of drugs found, along with the drug paraphernalia present in the 

pickup, evidenced an intent to deliver. Specifically, the trial court noted that expert 

testimony of this type from a law enforcement officer is “pretty commonplace” and 

“happens all the time.” The trial court also noted that Special Agent Tuggle’s 

testimony was going to be consistent with Trooper McKenzie’s prior testimony. 

Whether the defense could have reasonably anticipated the expert testimony 

of the type elicited by the State is an element in determining if the trial court abused 

its discretion by permitting the expert to testify. See Branum, 535 S.W.3d at 226. 

We conclude that the trial court did not abuse its discretion by permitting

Special Agent Tuggle to testify. Additionally, Appellant did not request a 

continuance based on the lack of designation, thereby rendering any error harmless. 

See Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994); Branum, 535 

S.W.3d at 226. We overrule Appellant’s second issue.

In his fourth issue, Appellant makes a similar challenge to the one set out in 

his second issue concerning the prosecutor’s lack of designation of expert witnesses. 

Appellant expands his fourth issue to also include the expert testimony of 

Trooper McKenzie and the testimony of Investigator Randy Johnson of the 

Palo Pinto County Sheriff’s Office, a fingerprint expert that the prosecutor used 

during the punishment phase to prove up Appellant’s prior convictions. Appellant 

only objected to the expert testimony of Special Agent Tuggle. Accordingly, any 
20

complaint concerning expert testimony from Trooper McKenzie and Investigator 

Johnson was not preserved for appellate review. See TEX. R. APP. P. 33.1. We have 

previously determined that the trial court did not abuse its discretion in overruling 

Appellant’s objection that Special Agent Tuggle was not designated as an expert 

witness.6

 We overrule Appellant’s fourth issue.

Closing Argument

Appellant states his fifth issue as follows: “The State violated Appellant’s 

rights by introducing evidence, not on the record, and without notice.” However, 

Appellant is not complaining about any evidence offered at trial. Instead, Appellant 

is asserting that the prosecutor made improper jury arguments. He contends that the 

prosecutor “painted Appellant to be a liar, a drug dealer, and encouraged the jury to 

impermissibly evaluate Appellant’s honesty even though Appellant never testified.” 

Appellant also asserts that the prosecutor impermissibly encouraged the jury to 

evaluate Borrego’s credibility. 

We first note that Appellant did not preserve these complaints for appellate 

review. Generally, to preserve error for an improper jury argument, a defendant 

should (1) contemporaneously object to the statement, (2) request an instruction that 

the jury disregard the statement if the objection is sustained, and (3) move for a 

mistrial if the request for an instruction is granted. Cooks v. State, 844 S.W.2d 697, 

727–28 (Tex. Crim. App. 1992). Thus, Appellant was required to object and proceed 

to an adverse ruling to preserve these issues for review on appeal. Id.; see also 

Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding that the right 

6

As noted above, the trial court determined that the defense should have reasonably anticipated that 

the State would call an expert to establish that Appellant engaged in possession with an intent to deliver. 

The same rationale would extend to Trooper McKenzie’s expert testimony on the same matter. Also, after 

Appellant pleaded “not true” to the two prior felony convictions alleged for enhancement purposes, it would 

appear that the defense would have reasonably anticipated that the State would call a fingerprint expert to 

prove up the prior convictions.
21

to be free from incurable jury arguments may be waived by a “failure to insist upon 

it”). Appellant’s trial counsel did not object to the allegedly improper remarks that 

his counsel on appeal is now challenging. Because Appellant did not object at trial 

to any of the arguments that he claims were improper, he has not preserved his fifth 

issue for appellate review. See TEX. R. APP. P. 33.1(a); Cockrell, 933 S.W.2d at 89; 

Cooks, 844 S.W.2d at 727–28.

Moreover, we do not find that the prosecutor presented improper closing 

arguments. We have previously set out the areas of permissible jury argument. See 

Brown, 270 S.W.3d at 570; Cannady, 11 S.W.3d at 213. Even when an argument 

exceeds the permissible bounds of these approved areas, it is not reversible unless 

the argument is extreme or manifestly improper, violates a mandatory statute, or 

injects into the trial new facts harmful to the accused. Wesbrook v. State, 29 S.W.3d 

103, 115 (Tex. Crim. App. 2000). “The remarks must have been a willful and 

calculated effort on the part of the State to deprive appellant of a fair and impartial 

trial.” Id. (citing Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997)). We 

must “review the argument in the context of the entire argument and not in isolation.”

Sennett v. State, 406 S.W.3d 661, 670 (Tex. App.—Eastland 2013, no pet.).

We have determined that the prosecutor’s argument that Appellant was more 

than just a drug user was a reasonable deduction from the evidence. The argument 

challenging Appellant’s and Borrego’s credibility was also a reasonable deduction 

from the evidence. While neither Appellant nor Borrego testified as actual trial 

witnesses, their statements at the time of the traffic stop were admitted at trial 

because the two-hour recording of the traffic stop was admitted into evidence and 

published to the jury. In his closing argument, Appellant’s trial counsel relied on 

both Borrego’s claim of sole ownership of the cocaine and Appellant’s denial of 

ownership. Thus, the prosecutor’s subsequent argument challenging the credibility 

of Appellant and Borrego was also an answer to the argument of opposing counsel. 
22

See Brown, 270 S.W.3d at 570; Cannady, 11 S.W.3d at 213. Finally, the jury is the 

sole judge of the witnesses’ credibility. Brooks, 323 S.W.3d at 899. Accordingly, 

an argument that asks the jury to evaluate the witnesses’ credibility is not improper. 

We overrule Appellant’s fifth issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

JOHN M. BAILEY 

CHIEF JUSTICE

April 16, 2020

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

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.7

Willson, J., not participating.

7

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.