Affirmed and Memorandum Opinion filed July 12, 2012.

In The

Fourteenth Court of Appeals 

___________________

NO. 14-11-00292-CR

___________________

DUNG QUOC NGUYEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 1226450

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

In this murder case, appellant Dung Quoc Nguyen raises three issues, each relating 

to his claim that he received ineffective assistance of counsel. We overrule appellant’s 

issues and affirm the judgment of the trial court.
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BACKGROUND

A. The Offense

In July 2009, appellant killed his friend and coworker, Ngan Dang, a man otherwise

known as Phi. On the night of the offense, appellant and Phi were drinking with mutual

friends at a karaoke bar in southwest Houston. At one point during the evening, appellant 

asked Phi for money, and Phi refused his request. As the bar was about to close, appellant 

took Phi outside and stabbed him two times in the chest. According to one witness, Phi did 

nothing to defend himself against the attack. Phi fell to the ground and eventually 

succumbed to the loss of blood. Appellant fled the scene. No weapons were ever recovered.

A few hours after the stabbing, appellant went to a Vietnamese restaurant a short 

distance away from the karaoke bar. The restaurant was closed, but two waitresses were 

still inside cleaning. When appellant knocked on the window, the waitresses recognized

him as a regular customer and unlocked the door. Appellant asked for twenty dollars to buy 

gas, which they gave him. Appellant also told the waitresses that he had just stabbed Phi, 

whom they also knew. The waitresses thought that appellant was joking because he seemed 

so normal.

Appellant evaded arrest until October 2009, when he was finally detained in 

Phoenix, Arizona. Detectives with the Phoenix Police Department interrogated him before 

his return to Houston. Early in their interrogation, it was discovered that appellant spoke 

both English and Vietnamese. Appellant initially requested that his statement be given in 

English, but because his interviewing detective suspected that appellant was not fully 

understanding her questions, the interrogation was suspended until an interpreter could 

arrive. With the interpreter, the detective advised appellant to ensure that he understood 

each question before he answered. Appellant often reverted to English, however, using the 

interpreter only to help him along. Sometimes, appellant answered in English before the 

interpreter could finish translating.
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By the end of the interrogation, appellant had confessed to Phi’s stabbing. He said 

that when they were at the bar, the two of them went into a restroom alone, where Phi 

chastised appellant for asking about money in public. When they returned to the bar, 

appellant stated that Phi made fun of him and encouraged their friends to do the same. 

Appellant was upset because he had recently broken up with his girlfriend, and he felt that 

Phi should have realized what kind of stress he was under. Appellant said that he stabbed 

Phi outside because he was angry and because he had drunk too much. After describing the 

stabbing, appellant disclosed that he had also witnessed Phi with a gun earlier that evening 

when they both were in the restroom.

B. The Trial

Appellant took the stand in his own defense. As an introductory matter, he stated

that he was born in Vietnam, and that he came to this country in 1992 when he was only 

seventeen or eighteen years old. Appellant testified that he could speak English, but he said 

that his English was not very good and not very clear. He also indicated that he had spoken 

with his trial counsel both in English and through an interpreter. At trial, he testified

through the use of an interpreter.

Turning to the night of the offense, appellant testified that Phi cursed at him in 

front of their friends just after he asked Phi for money. When appellant went to the 

restroom later that night, he claimed that Phi was inside using cocaine. Appellant also 

claimed that Phi flashed a handgun that was tucked on the inside of his front waistband. 

Appellant had never seen Phi with a weapon before, so he left the restroom, went to his car, 

and grabbed a knife. Rather than go home, appellant returned to the bar, sat down, and 

continued drinking.

According to appellant, Phi began telling his friends that appellant had been crying 

like a baby. Angered, appellant asked Phi to step outside so that they could talk privately. 

Once outside the bar, appellant wanted to know why Phi was humiliating him. Phi 

responded in an aggressive tone, ―[Expletive], what do you want?‖ Then both men stepped 
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towards each other. According to appellant, Phi reached for something behind his back. 

Afraid that Phi was moving for his gun, appellant grabbed his knife and stabbed Phi in the 

chest. Appellant explained that he did not run away because he was convinced that he 

would have been shot. He also claimed that he intended only to injure Phi, not kill him.

Appellant testified that he fled the scene because he was afraid of what Phi’s friends 

might do to him. He admitted to being very intoxicated at the time. Appellant also testified 

that he left Houston because he was very sad about what had happened to Phi. He wanted to 

reunite with friends in Philadelphia, but he purchased the wrong ticket and settled in 

Phoenix instead.

The jury rejected appellant’s claim of self defense and convicted him of one count 

of first degree murder. During the punishment stage of trial, the State introduced copies of 

appellant’s two prior convictions. The evidence showed that in 1999, appellant had been 

convicted of aggravated assault with a deadly weapon, and in 2007, he had been convicted 

of possession of a controlled substance. Appellant did not testify or present any witnesses

during this stage of the proceedings. Defense counsel rested, having only reoffered the 

evidence that had been introduced during the guilt-innocence phase of trial. The jury 

assessed punishment at forty-two years’ imprisonment.

C. The Motion for New Trial

Appellant filed a motion for new trial alleging ineffective assistance of counsel. In 

his motion, appellant complained that counsel was ineffective because he did not 

adequately communicate with appellant in Vietnamese. Appellant also complained that the 

failure to obtain an investigator fluent in Vietnamese prevented counsel’s preparation for 

the case. Finally, appellant complained that counsel was ineffective because counsel failed 

to contact, interview, and subpoena witnesses to testify on appellant’s behalf.

The trial court conducted an evidentiary hearing to consider appellant’s allegations. 

The following paragraphs detail the witnesses and their testimony at that hearing.
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1. Defense Counsel

When counsel first met with appellant in November 2009, their initial conversation 

was conducted in English. Although appellant ―spoke quite a bit of English,‖ counsel 

realized that he ―didn’t understand English a hundred percent,‖ so counsel filed a motion 

seeking the appointment of an interpreter. The trial court granted the motion, and according 

to counsel, an interpreter was requested ―every time we came to court.‖

Counsel met with appellant twice in the jail, but only one of those meetings included 

the interpreter. His visits lasted between an hour and one and one-half hours each. 

According to counsel, appellant never conveyed to him that he was afraid for his life on the 

night of the offense. During their first meeting, appellant also neglected to mention his 

claim that Phi was carrying a gun. Counsel stated that he was surprised when appellant 

subsequently made this assertion. No weapon was ever found on Phi’s person, and when 

counsel asked why appellant had not mentioned this claim earlier, appellant responded, 

―Well, I forgot.‖ Appellant also relayed some other information that Phi may have harmed 

a person in another state, but appellant did not provide any specific details regarding this 

allegation.

Counsel filed a separate pretrial motion seeking the appointment of an investigator, 

which the trial court also granted. Although the investigator did not speak Vietnamese, 

counsel was confident in his ability because the investigator was a former homicide 

detective with whom counsel had worked in the past. Counsel also indicated that he was 

unaware of any Vietnamese investigators available, given the scarcity of English-speaking 

investigators willing to work on court-appointed cases.

The investigator contacted several of the State’s witnesses. He spoke with the owner 

of the karaoke bar, as well as her brother, who was drinking with appellant and Phi on the 

night of the offense. Both witnesses are Vietnamese speakers who happen to have a very 

good command of the English language. The investigator made efforts to interview other 

witnesses, including the bar owner’s husband, another witness who was homeless, and the 
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two waitresses whom appellant had encountered later that night. Counsel stated that the 

investigator was unable to contact these witnesses, not because of a language barrier, but 

because the witnesses never responded to the investigator’s inquiry. Counsel emphasized 

that if contact had been made and there were still difficulties in communication, additional 

measures would have been taken to facilitate the interview.

On one occasion, the investigator went to the jail for a meeting with appellant. The 

interpreter did not attend this meeting, but appellant was able to provide the investigator 

with information that was later included in the investigator’s report. Counsel stated that the 

investigator conducted a background check on Phi, but he discovered only a conviction for 

DWI. There was no mention of a conviction for harming somebody in another state.

Counsel asked the investigator to determine if appellant had any witnesses who 

could testify on appellant’s behalf. Appellant never provided him with any names. Counsel 

also asked appellant personally if appellant wanted his parents or family to testify. 

Appellant answered, ―I don’t think they can help. I don’t want you to get them involved. I 

don’t want to go down that road, basically.‖

Counsel successfully filed a Theus motion, which allowed appellant to testify 

without being impeached with evidence of his prior conviction for aggravated assault. See 

Theus v. State, 845 S.W.2d 874 (Tex. Crim. App. 1992). Counsel stated that if appellant 

had called his relatives to testify about his non-assaultive character, their testimony would 

have opened the door to this extraneous offense.

2. The Interpreter

The interpreter present during appellant’s jury trial identified several witnesses who

had testified in Vietnamese. Some of these witnesses were capable of speaking English, but 

for the purposes of trial, they felt more comfortable testifying in Vietnamese with an 

English translator.
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There were some moments during the trial when appellant disagreed with a 

witness’s testimony. When these moments occurred, the interpreter conveyed appellant’s 

disagreements to appellant’s trial counsel. The interpreter clarified that appellant never 

expressed any confusion about the proceeding itself.

On the second or third day of trial, appellant told the interpreter about a man named 

Hieu Nguyen whom appellant had met in jail. Appellant claimed that Hieu was in the 

karaoke bar on the night of Phi’s murder. The interpreter related this new information to 

appellant’s trial counsel. The interpreter also denied an allegation that appellant had given 

him a piece of paper containing Hieu’s name and prison identification number.

The interpreter finally testified that he remembered hearing counsel ask appellant at 

the conclusion of the guilt-innocence phase of trial if appellant knew of any witnesses who 

should be called on his behalf. Appellant’s answer was, ―No, I don’t have anyone.‖

3. Witnesses Not Called

Hieu Nguyen testified that he had been friends with Phi for seven or eight years. 

According to Hieu, Phi used cocaine, and he could become hostile if he needed drugs but 

could not obtain them. Phi also had a bad reputation for being assaultive and for causing 

physical altercations with others.

Hieu said that he met appellant in a holdover cell behind the courtroom at a time 

when both men were awaiting separate trials. While in that cell, appellant mentioned to 

Hieu that he had stabbed Phi because he believed Phi had a gun. Hieu responded that when 

he was at the karaoke bar, he saw what appeared to be a gun in the back of Phi’s pants. Hieu 

believed he had seen a gun because he had given Phi weapons to keep in the past. This 

explanation contradicted an earlier statement from Hieu, in which Hieu asserted that he had 

never seen Phi with a gun before that night.

Hieu testified that he gave his name and prison identification number to appellant. 

He denied ever meeting with appellant’s attorney.
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Appellant called other character witnesses during the hearing. Appellant’s brother 

and boss testified that appellant was truthful, gentle, and non-assaultive. Similar testimony 

was offered from appellant’s adopted father, who further testified that appellant was a 

friendly man. Appellant’s father stated that he was not contacted by either counsel or the 

investigator in regards to testifying about this case. Although appellant wrote his father 

many times from jail, appellant never asked him to come to court.

4. Appellant

Appellant also testified at the hearing on the motion for new trial. At one point, his 

appellate attorney instructed the court’s interpreter not to assist in translation. Without the 

benefit of the interpreter, appellant claimed not to understand the initial questions that were 

posed to him. In subsequent questioning, however, appellant responded in English, and 

even mentioned that he was able to speak to his trial counsel in English. Appellant testified 

without translation that he had asked his trial counsel for an interpreter because he did not 

speak English very well. Appellant also complained that an interpreter was not present 

during four of his court settings.

With the court interpreter back in use, appellant described additional struggles in 

communication. He complained, for instance, that the interpreter who assisted counsel in 

jail spoke in a regional dialect of Vietnamese different from his own. Appellant also 

testified that counsel had asked him about bringing witnesses to testify in court, but that no 

one had explained the importance of witnesses. Appellant stated that had he known how 

important witnesses could be, he would have asked his relatives to testify.

5. The Prosecutor

The prosecutor testified that she was familiar with the names of the individuals 

discussed at the hearing, including those who did not testify at trial. According to the 

prosecutor, all of the known fact witnesses testified at trial, and many of the other witnesses 

discussed at the hearing were not eligible to testify because they could provide only 
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hearsay evidence. The prosecutor further indicated that of those witnesses who did testify, 

many spoke an appreciable amount of English. The inability to speak Vietnamese did not 

interfere with the pretrial investigation.

The trial court denied appellant’s motion for new trial. Based on the observations 

from trial and the evidence produced during the hearing, the court determined that 

counsel’s performance was competent, thorough, vigorous, and diligent. The court took 

notice that appellant had a ―workable understanding . . . of the English language‖ and that 

he had ―demonstrated a communication skill level in English.‖ The court also found 

credible the testimony that appellant had told his attorney that he did not want his parents 

involved in the case. Furthermore, the court found that a piece of paper containing Hieu’s 

name and prison identification number was never passed to counsel.

ISSUES PRESENTED

Appellant’s case has not been briefed very clearly. In his first issue, appellant argues 

that counsel was ineffective because he failed to conduct a complete and independent 

investigation of the case. Also within this first issue, appellant complains that counsel 

failed to object to the prosecutor’s improper closing statement. In his second issue, 

appellant argues that he was denied due process under the law because he was unable to 

communicate with counsel. In his third issue, appellant argues that the trial court erred by 

denying his motion for new trial, a complaint that essentially recasts his first two issues in 

another form. We begin with appellant’s second issue, which addresses a concern central to

this entire appeal.

ANALYSIS

A. Appellant was not denied an interpreter.

Appellant contends that he was denied due process because he was unable to 

communicate effectively with counsel and his investigator. In his brief, appellant insists 

that there were ―serious communication issues‖ when counsel first met with him, more 
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than a year before the start of trial. An interpreter did not accompany counsel for this initial 

meeting, and because of their apparent language barrier, appellant claims that the details of 

his self-defense were developed in ―piecemeal‖ fashion.

It is difficult to perceive how appellant was prejudiced by the absence of an 

interpreter during this first meeting with counsel. When counsel realized that appellant did 

not have a complete grasp of the English language, he moved for the appointment of an 

interpreter. The trial court granted the appointment, and an interpreter accompanied 

counsel in his second visit to the jail. It is clear from the record that counsel was able to 

present a claim of self-defense to the jury. Appellant has not argued or shown how his 

defense would have been more successful but for the absence of an interpreter in the 

earliest stages of counsel’s representation.

Appellant argues next that he was unable to communicate effectively with the 

investigator. His complaint focuses, in part, on the investigator’s failure to ask appellant 

about his defense. We fail to see how appellant was prejudiced by this omission. Appellant 

testified that he told the investigator about his accidental stabbing of Phi, and at some point 

during the representation, appellant was able to apprise counsel of the same defense

through the use of an interpreter.

Appellant also complains about an instance when the investigator discussed some 

papers from the district attorney’s office. During his hearing on the motion for new trial, 

appellant testified that he recalled the investigator mentioning the case number and the 

complainant’s name. Appellant claims he did not understand anything more from their 

meeting, and in his briefing, he writes, ―It would appear that the Appellant failed to grasp 

any more from the contents of the papers read to him.‖ Again, appellant has provided no 

argument or authority that he was prejudiced by this claimed moment of incomprehension.

Moreover, because the objectionable papers were never admitted into evidence and 

because no further testimony was elicited on this subject, we have no means of assessing 

the value of the papers’ contents.
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Appellant finally complains that an interpreter was absent during some of his 

pretrial court settings. Appellant does not identify any of these settings by date. From the 

trial court’s docket sheet, we can determine that eight settings were conducted between 

counsel’s appointment in November 2009 and counsel’s motion for the appointment of an 

interpreter in November 2010. Appellant argues that although he was present for these 

settings, ―[p]resence requires not only physical attendance, but comprehension of the 

proceedings.‖ See Garcia v. State, 149 S.W.3d 135, 141 (Tex. Crim. App. 2004) 

(discussing how the right to confrontation requires some appreciable understanding of the 

proceedings). Appellant’s complaint seems to be that, without the benefit of an interpreter, 

his right to be present in court was violated because he had no means of understanding 

these pretrial settings.

Assuming for the sake of argument that appellant was entitled to an interpreter at the 

pretrial settings, appellant has not shown that he suffered any harm from the interpreter’s

absence. See Sanchez v. State, 122 S.W.3d 347, 352 (Tex. App.—Texarkana 2003, pet. 

ref’d) (noting that a violation of the right to be present is reviewed for harmless error). 

Because no transcript was prepared during any of the pretrial settings, we are unable to 

determine if the settings were adversarial in nature. Moreover, appellant has not argued, 

and there is no indication from the record, that the settings ended with a written order being 

entered, that they included evidence or argument, or that they resulted in a conclusion by 

the trial court. See id. (describing situations in which a defendant’s right to be present 

would be implicated).

Appellant was found to possess a ―workable understanding‖ of the English 

language. An interpreter was still provided to aid in any struggles he may have had with 

trial counsel. The trial court ensured that an interpreter was present throughout the entire 

trial on the merits. We cannot say that appellant was denied the due process of law simply 

because an interpreter was absent on some occasions before the trial commenced. See 

Linton v. State, 275 S.W.3d 493, 500 (Tex. Crim. App. 2009) (when the adequacy of 
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interpretive services is challenged on appeal, the question is not whether the ―best‖ 

services were employed, but whether the services that were actually employed were 

constitutionally adequate such that the defendant could understand and participate in the 

proceedings).

B. Appellant was not denied the effective assistance of counsel.

In his remaining issues, appellant contends that trial counsel was ineffective 

because he failed to conduct a complete investigation of the facts and he failed to object to 

improper jury argument. We examine these claims under the standard set forth in 

Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, appellant must prove that his trial counsel’s representation was 

deficient, and that the deficient performance was so serious that it deprived him of a fair 

trial. Id. at 687. Counsel’s representation is deficient if it falls below an objective standard 

of reasonableness. Id. at 688. This deficiency will deprive appellant of a fair trial only 

when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To demonstrate 

prejudice, appellant must show a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. Id. at 694. 

Failure to make the required showing of either deficient performance or sufficient 

prejudice defeats the claim of ineffectiveness. Id. at 697. This test is applied to claims 

arising under both the United States and Texas Constitutions. See Hernandez v. State, 726 

S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

As a reviewing court, we look to the totality of the representation and to the 

circumstances of the case, not to isolated instances in the record reflecting errors of 

omission or commission. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). 

Moreover, we consider the adequacy of assistance as viewed at the time of trial, rather than 

through hindsight. Id. at 482. Our review of defense counsel’s performance is highly 

deferential, beginning with the strong presumption that the attorney’s actions were 

reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 
13

S.W.2d 768, 771 (Tex. Crim. App. 1994). Accordingly, we do not speculate as to the 

reasons supporting counsel’s behavior. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. 

App. 2002). Any allegation of ineffectiveness must be firmly founded in the record, and the 

record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to trial counsel’s 

strategy, we will not conclude that appellant received ineffective assistance unless the 

challenged conduct was ―so outrageous that no competent attorney would have engaged in 

it.‖ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

1. Investigation of the Case

Defense attorneys have a duty to make an independent investigation of the facts of a 

case, including seeking out and interviewing potential witnesses. See Perez v. State, 310 

S.W.3d 890, 894 (Tex. Crim. App. 2010); Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. 

Crim. App. 1990). Appellant argues that counsel’s performance was constitutionally 

deficient because counsel neglected this duty in two ways. First, counsel relied on an

investigator who spoke only English, and the investigator failed to interview all of the 

pertinent fact witnesses. Second, counsel failed to obtain witnesses who could testify on 

appellant’s behalf.

An attorney is not ineffective simply because he relies on a private investigator to 

investigate the facts of a case; indeed, it is both permissible and common for an attorney to 

engage an investigator to interview witnesses before trial. See Ex parte White, 160 S.W.3d 

46, 52–53 (Tex. Crim. App. 2004); Starz v. State, 309 S.W.3d 110, 119 (Tex. 

App.—Houston [1st Dist.] 2009, pet. ref’d). The private investigator in this case was able 

to contact some, but not all, of the State’s witnesses. Appellant has suggested that the 

investigator’s failure to interview all of the witnesses was a product of his being able to 

speak only in English. This position was challenged, however, at the hearing on the motion 

for new trial. The evidence there showed that many of the State’s witnesses were able to 

speak English. Appellant’s trial counsel also indicated that if the investigator was unable to 
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contact a potential witness, his difficulty was a product of the witness’s unwillingness to 

get involved, rather than some pervasive language barrier.

Also, we cannot conclude that counsel was ineffective because he failed to call Hieu 

as a witness. Hieu’s name was first mentioned during the middle of trial, and there appears 

to have been some dispute about the efforts taken to alert counsel of Hieu’s potential 

testimony. Having considered the credibility of the witnesses, the trial court determined 

that a note was never passed to counsel with Hieu’s name and prison identification number.

Accordingly, there are doubts as to whether counsel was provided sufficient information to 

locate and interview Hieu before the end of trial.

Even if we were to assume that counsel was deficient by failing to call Hieu as a 

witness, appellant has not shown that he suffered any prejudice. A claim of ineffective 

assistance of counsel based on counsel’s failure to call witnesses fails in the absence of a 

showing that such witnesses were available to testify and that the defendant would have 

benefitted from their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); 

Wade v. State, 164 S.W.3d 788, 796 (Tex. App.—Houston [14th Dist.] 2005, no pet.). 

Appellant argues that Hieu would have corroborated his claim that Phi was carrying a gun 

on the night of the offense. But Hieu’s testimony at the hearing on the motion for new trial 

was inconsistent with other testimony developed at trial. Hieu said that he witnessed Phi’s 

gun in the back of his pants, whereas appellant claimed the gun was in the front. Hieu also 

testified that he left the karaoke bar just after eight o’clock, whereas the other witnesses 

testified that Phi did not arrive until between ten or eleven o’clock that night. Hieu also 

suffered from various credibility problems. He had been convicted of a number of felonies, 

and during the course of the same hearing, Hieu testified both that he had never seen Phi 

with a gun before and that he had often given Phi weapons to keep. Appellant has not 

shown by a preponderance of the evidence that there was a reasonable probability that the 

proceedings would have been different but for counsel’s failure to call Hieu to the stand.
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The same can be said of the other witnesses not called. As indicated by the 

prosecutor, all of the fact witnesses known to be available had testified at trial. Appellant 

still insists that there were other witnesses who could have testified about his character for 

being truthful and non-assaultive. But appellant instructed his attorney not to involve these 

witnesses in his case. Counsel cannot be deficient for abandoning efforts to investigate 

potential witnesses when the defendant tells him not to pursue a particular line of 

investigation. See Ex parte Martinez, 195 S.W.3d 713, 729 (Tex. Crim. App. 2006). 

Moreover, even if these character witnesses were available to testify, counsel could have 

decided, within reason, that they should not be called because having them testify would

have opened the door to appellant’s being impeached with evidence of his previous 

convictions.

2. Improper Jury Argument

Appellant also complains that counsel was ineffective because he failed to object to 

the prosecutor’s improper closing statement. The prosecutor stated the following at the end 

of the punishment stage of trial:

We heard some testimony that a community here in Houston, a 

community in Harris County with people who came here as immigrants who 

live and work together and that sometimes they don’t come and talk to the 

police as much, but don’t you know the community is in that map that’s up 

there on the board that’s admitted into evidence.

And they’re watching what you do and they want to know what 

you’re going to do to protect them and their community because he’s a 

person that committed murder in their community, and he’s a person who 

will continue to be a threat to their community.

And I want you to think about them in that community as you assess 

your punishment because at the end of the day, you’re the 12 people that can 

keep them out of their neighborhood and keep them off the street and keep 

them safe.
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The witnesses . . . who are so scared to come down here, they are 

going to watch what you do and they want to make sure they can be safe from 

the defendant.

We don’t know a lot to tell you about Phi. He’s an immigrant here just 

[like] a lot of people who came here as immigrants and they work and they 

keep their head down, they don’t get in trouble. They have friends and they 

don’t have family. But today you can speak for Phi and you will be the last 

people whoever—whoever think of or speak of Phi to ask justice for him.

And you can talk about parole law. There’s a part that talks about the 

parole and you can’t—you can’t know. You guys can’t go back there and 

say, well, if we give him this amount of years I bet he will serve this because 

we don’t know what the parole board will do. That is not out purpose.

But I can tell you that every minute, every day, every month, every 

year, every decade that you assess punishment for him will be that same 

month and year and decade that that community and us as citizens of Harris 

County are safe from this person. And so when we ask you to sentence him to 

life you can be proud of your decision because you’ve gotten him off the 

streets.

Appellant argues that this argument injected new and harmful facts into the 

sentencing hearing. Specifically, he complains that the prosecutor made a suggestion that 

she had ―special knowledge‖ of a ―special community‖ in Houston and that appellant ―is a 

person who will continue to be a threat to the special community.‖

We are not persuaded by appellant’s suggestions that the prosecutor’s argument was 

improper. Proper jury argument may consist of (1) a summation of the evidence,

(2) reasonable deductions from the evidence, (3) an answer to argument of opposing 

counsel, and (4) a plea for law enforcement. Allridge v. State, 762 S.W.2d 146, 155 (Tex. 

Crim. App. 1988). Even aggressive argument is permissible if it falls within one of these 

four categories. See Berry v. State, 233 S.W.3d 847, 860 (Tex. Crim. App. 2007). We 

construe the prosecutor’s argument here as a plea for law enforcement, rather than the 

injection of facts outside the record. See Harris v. State, 122 S.W.3d 871, 888 (Tex. 

App.—Fort Worth 2003, pet. ref’d) (―An argument constitutes a proper plea for law 
17

enforcement if it urges the jury to be the voice of the community . . . .‖); e.g., Goocher v. 

State, 633 S.W.2d 860, 864 (Tex. Crim. App. [Panel Op.] 1982) (finding permissible 

argument that proceeded, ―I am asking you to enforce it. I’m asking you to do what needs 

to be done to send these type of people a message to tell them we’re not tolerating this type 

of behavior in our county.‖); Waters v. State, 330 S.W.3d 368, 376 (Tex. App.—Dallas 

2010, pet. ref’d) (―I ask that you give him 60 years. That’s my recommendation, because 

by doing that, you’re putting him away for as long as you can, but you’re not telling him 

he’s a bad person, you’re keeping our community safe, and you’re sending a message with 

him that we will not tolerate this type of behavior, we will not tolerate this type of 

behavior.‖). Because the argument was proper, counsel cannot be ineffective for failing to 

object to it. Richards v. State, 912 S.W.2d 374, 379 (Tex. App.—Houston [14th Dist.] 

1995, pet. ref’d).

Finally, we note that even if the argument were improper, appellant has not

overcome the presumption that counsel’s failure to object was motivated by sound trial 

strategy. Appellant did not complain about the prosecutor’s closing statement in his motion 

for new trial, and the prosecutor’s argument was not discussed at all during his hearing on 

the motion for new trial. Accordingly, the record is silent regarding counsel’s reasons for 

not objecting. In these circumstances, we will not conclude that counsel’s performance was 

constitutionally deficient if any strategic motivations can be imagined for the challenged 

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

As we have said before, ―[n]ot objecting can be a trial strategy.‖ Henderson v. State, 

704 S.W.2d 536, 538 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d); see also Huerta 

v. State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Counsel 

may have decided to withhold an objection so as to avoid emphasizing or drawing attention 

to the prosecutor’s closing statement. Cf. Brennan v. State, 334 S.W.3d 64, 76–77 (Tex. 

App.—Dallas 2009, no pet.) (observing that counsel’s failure to request relief following 

impermissible comment may have been motivated by recognition that ―requesting further 
18

relief would have only highlighted the prosecutor’s statement‖). Because a reasonable 

strategy can be imagined for counsel’s actions, we conclude that appellant failed to carry 

his burden of showing that counsel was ineffective by not objecting to the prosecutor’s 

closing statement.

CONCLUSION

Appellant was not denied the due process of law, counsel’s performance was not 

constitutionally deficient, and the trial court did not abuse its discretion by finding that 

appellant received effective assistance of counsel. Appellant’s three issues are overruled 

and the judgment of the trial court is affirmed.

/s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Seymore and Brown.

Do Not Publish — Tex. R. App. P. 47.2(b).