PD

– 1652- 14
IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

GARY PARKER PETITIONER
V. THE STATE OF TEXAS RESPONDENT

AMENDED PETITION FOR DISCRETIONARY REVIEW

OF DECISION BY THE THIRTEENTH COURT OF APPEALS IN APPEAL NUMBER 13- 13 -00128- CR

148TH DISTRICT COURT NUECES COUNTY, TEXAS TRIAL COURT NUMBER 12- CR

- 2371

- E(S1) HONORABLE JUDGE GUY WILLIAMS, PRESIDING

VIRGINIA KOBLIZEK BURT Attorney at Law P.O. Box 717 Sinton, Texas 78387 (361) 877- 2048 virginiak.burt@gmail.com State Bar No. 00784411 Attorney for GARY PARKER

ORAL ARGUMENT NOT REQUESTED PD-1652-14 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 1/26/2015 12:06:38 PM Accepted 1/29/2015 1:58:42 PM

ABEL ACOSTA CLERK2 CERTIFICATE OF PARTIES AND COUNSEL A complete list of the names and addresses of all parties to the trial court’s final judgment and their counsel is as follows:
Appellant Gary Parker Last Known Address from Texas Department of Criminal Justice

Counsel for the State of Texas MS. COURTNEY HANSEN SBOT NO. 2406819900 ASSISTANT DISTRICT ATTORNEY 901 Leopard, Rm. 206 Corpus Christi, Texas 78401 Phone: (361) 888

- 0410
Trial counsel for Appellant MR. JAMES L . STORY SBOT NO. 2400068 McLemore, Reddell, Ardoin & Story, P.L.L.C. 8128 Leopard Street Corpus Christi, Texas 78409 Phone: (361) 883

- 5200 Appeal counsel for Appellant Mrs. Virginia Koblizek Burt Attorney at Law SBN: 0784411 P.O. Box 717 Sinton, Texas 783 87 virginiak.burt@gmail.com Telephone: 361

- 877

- 20483 TABLE OF CONTENTS

CERTIFICATE OF PARTIES AND COUNSEL

----------------------------- 2 INDEX OF AUTHORITIES

------------------------------------------------------ 5 STATEMENT REGARDING ORAL ARGUMENT

------- ------------------ 6 STATEMENT OF CASE

---------------------------------------- --- --------------- 6 STATEMENT OF PROCEDURAL HISTORY

- ----------------------------- 6 GROUNDS FOR REV IEW

----------------------- ------------------------------ 7 GROUND ONE PRESENTE D FOR REVIEW

------------------------------ 8 THE THIRD PRONG OF THE KEETER TEST FOR NEWLY DISCOVERED EVIDENCE DOES NOT STRICTLY AND NARROWLY DENY ALL IMPEACHABLE EVIDENCE WITHOUT CONSIDERATION THAT THE NEW EVIDENCE EXONERATES THE APPELLANT

. (RR v. 3, p. 24

- 35; RR v. 5, p. 12

- 32) REASONS FOR REVIEW A. The Court of Appeals decision was in direct conflict with decisions of the Court of Criminal Appeals on the same issue under TEX.R.APP.P. 66.3(c)

---------------- ------ --- 8 B. The court of appeals has so f ar departed from the accepted and usual course of judicial proceedings as to call for an exercise in supervision by this Court

--------- --- 1 5 GROUND TWO PRESENTED FOR REVIEW

-------------------- -- - -- -- 16 ALTHOUGH A PROSECUTOR MAY VOUCH FOR THE CREDIBILITY O F A WITNESS IN A DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, THE EXCEPTION DOES NOT INVITE THE BOLSTERING OF THE ENTIRE CAST OF STATE’S CASE - IN - CHIEF , ALLOWING THE PROSECUTOR TO IMPOSE HER PERSONAL BELIEFS THAT ALL OF HER WITNESSES WERE CREDIBILE AND TR UTHFUL. (RR v. 3, p. 73

- 82)4

REASON FOR REVIEW A. The Court of Appeals decision was in direct conflict with decisions of the Court of Criminal Appeals on the same issue under TEX.R.APP.P. 66.3(c)

--- - ------------- ------- 1 6 PRAYER

---------------------- --------------------------------- ------------------- 2 3 CERTIFICATE OF SERVICE

--------------------- ------------------------- -- 24 CERTIFICATE OF COMPLIANCE

------------------------------------------ 24 APPENDIX Opinion from Thirteenth Court of Appeals iss ued November 13, 20145 INDEX OF AUTHORITIES Strickland v. Washington . 466 U.S. 668, 687 (1984)

------------------- 22 STATE CASES COURT OF CRIMINAL APPEALS Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014)

--------- - ------- 11 Chapman v. State , 503 S.W.2d 237 (Tex. Crim. App. 1974)

--------- 1 9 Hammond v. State , 799 S.W.2d 741 (Tex. Crim. App. 1990) cert. denied 111 S.Ct 2912 (1991)

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

--- - ------ 2 2 K eeter v. State , 74 S.W.3d 31 (Tex. Crim. App. 2002)

----------- -- ---- 11

COURT OF APPEALS Flores v. State , 778 S.W.2d 526 (Tex. App. Corpus Christi, 1989)

-- 20 Sepulveda v. State, 751 S.W.2d 667 (Tex. App.

- Corpus Christi, 1988, pet. ref’d)

-------------- ---------------------------------------------- 20 Thomas v. State , No. 01

- 11

- 00631

- CR, 2013 WL 652719 (Tex. App.

— Houston [1st Dist.] Feb. 21, 2013, pet. ref’d)

------ 1 9

STATUTES Tex. Code Crim. Proc. Ann. Art. 40.001.

------------------------------- 10 , 16
T exas Penal Code, Section 22.01

----------------------------------------- -- - 5 Tex. R. App. P. 68.2(a)

--------------------------------------------------------- - - 5 TEX.R.APP.P. 66.3(c)

---------------------------------------------------------- -- 6 Tex.R.App.P.6 6.3(f).

---------------------------- ------------------------------- - - 1 66 STATEMENT REGARDING ORAL ARGUMENT Oral argument is not necessary for the disposition of the issues and is thereby waived.

STATEMENT OF THE CASE A jury convicted the appellant Gary Par ker of the felony offense of Assault (Family Violence by impeding breath or circulation) under Section 22.01 of the Texas Penal Code, and further found beyond a reasonable doubt that the Defendant has been previously convicted of two felonies as alleged in the indictment and assessed the Defendant's punishment at thirty

- five (35) years in the Institutional Division of the Texas Department of Criminal Justice. (CR p. 3)

STATEMENT OF PROCEDURAL HISTORY
The Thirteenth Court of Appeals affirmed this convicti on in an unpublished Memorandum Opinion delivered on November 13, 2014. No Motion for Rehearing was filed. An extension of time to file this Petition for Discretionary Review was granted. See Tex. R. App. P. 68.2(a).7 GROUNDS FOR REVIEW

GROUND ONE F OR REVIEW
THE THIRD PRONG OF THE KEETER TEST FOR NEWLY DISCOVERED EVIDENCE DOES NOT STRICTLY AND NARROWLY DENY ALL IMPEACHABLE EVIDENCE WITHOUT CONSIDERATION THAT THE NEW EVIDENCE EXONERATES THE APPELLANT

. (RR v. 3, p. 24

- 35; RR v. 5, p. 12

- 32)

REASONS F OR REVIEW
A. T he Court of Appeals decision was in direct conflict with decisions of the Court of Criminal Appeals on the same issue. TRAP 66.3
B. The court of appeals has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise in supervision by this Court under Tex.R.App.P.66.3(f).

GROUND TWO FOR REVIEW
ALTHOUGH A PROSECUTOR MAY VOUCH FOR THE CREDIBILITY OF A WITNESS IN A DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, THE EXCEPTION DOES NOT INVITE THE BOLSTERI NG OF THE ENTIRE CAST OF STATE’S CASE - IN - CHIEF , ALLOWING THE PROSECUTOR TO IMPOSE HER PERSONAL BELIEFS THAT ALL OF HER WITNESSES WERE CREDIBILE AND TRUTHFUL. (RR v. 3, p. 73

- 82)8

REASON FOR REVIEW
A. The Court of Appeals decision was in direct conflict with decisions of the Court of Criminal Appeals on the same issue. TRAP 66.3 ARGUMENT

GROUND ONE FOR REVIEW

THE THIRD PRONG OF THE KEETER TEST FOR NEWLY DISCOVERED EVIDENCE DOES NOT STRICTLY AND NARROWLY DENY ALL IMPEACHABLE EVIDENCE WITHOUT CONSIDERATION T HAT THE NEW EVIDENCE EXONERATES THE APPELLANT

. (RR v. 3, p. 24

- 35; RR v. 5, p. 12

- 32)

REASONS FOR REVIEW A. The Court of Appeals decision was in direct conflict with decisions of the Court of Criminal Appeals on the same issue under TEX.R.APP.P. 66.3(c)

. The Thirteenth Court of Appeal’s reliance on this Court’s conclusion in Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014) , that Appellant’s newly discovered evidence was merely impeachable and thus failed the third prong of the Keeter test for a new t rial, is

error and is in direct conflict with the prevailing law under the Keeter
test

. Evidence P resented at the Motion for New Trial Hearing9

Appellant Parker ’s verdict was based solely on the testimony of the complainant who testified at trial that she was assaulted by Parker

. The complainant and Parker have been in a relationship on and off for the past 27 years and were legally married at one time , and have both had a volatile past together

. The complainant testified at trial that h er injuries were so bad after the assault that the whole side of her face turned black, and she was unable to work the next day. RR v. 3, p. 24. She told the jury, “[t]hey were

– they was a lot darker the next day, and then down my jaw line it was all dark and on this si de of my jaw. I couldn’t even

– they wouldn’t let me work.” RR v. 3, p. 24. She claimed that she went to work the next day, but had “to stay in the classroom because my supervisor said that I had too many facial injuries and my face was out to here”. RR v. 3, p. 25. She testified that she was not allowed to perform her work duties because of her injuries and was sent home. RR v. 3, p. 26, 29, 31,
35. However, Mr. Dane Smith, the complainant’s work supervisor, testified at the motion for new tria l hearing that he did not see any injuries on the complainant on that day. RR v. 5, p. 12. He testified that he never saw bruises on her face and at no time did he have to10

send her home because of her injuries. RR v. 5, p. 16. He directly contradicted h er testimony at trial. RR v. 5, 14

- 16. He testified that all of the events that the complainant had claimed in the trial were false. RR v. 5, p. 16. Parker also offered the testimony of a former attorney who represented him on a felony theft charge br ought by the same complainant. RR v. 5, p. 36. The attorney testified that during his investigation he found evidence showing that the complainant lied about the theft charges against Parker. The case was dismissed when the complainant failed to appear at the trial

. Argument and Authority Appellant argues that the newly discovered evidence proves the complainant lied on the stand about the assault, enoug h to doubt the integrity of the jury’s verdict, and a new trial should have been granted. Appellan t also provided evidence that the complainant had made false accusations about him in a past. The law in Texas allows for a new trial where material evidence favora ble to the accused has been discovered since trial.” Tex. Code Crim. Proc. Ann. Art. 40.001

. (West, Westlaw through 2013 3d C.S.). The court s will grant a new trial based on newly discovered evidence11

if all four prongs of the test set out in Keeter are met. A party seeking a new trial on the ground of newly discovered evidence must show (1) th e newly discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant’s failure to discover or obtain the evidence was not due to a lack of diligence, (3) the new evidence is admissible and is not merely cumulative, corrobative, collateral, or impeaching ; and (4) the new evidence is probably true and will probably bring about a different result on another trial

. Keeter v. State , 74 S.W.3d 31,37 (Tex. Crim. App. 2002) ; see also Carsner v. State, 444 S.W.3d 1 (Tex.Cri m.App. 2014). Under Keeter

, the new evidence must not be merely cumulative, corrobative, collateral, or impeaching. Id . at 37. This ruling does not automatically exclude impeaching evidence as a hard and fast rule, but only if it is merely impeachment evidence that would not have a direct impact on the verdict. Id.
However, in direct conflict with the meaning of the rule in Keeter , t he court of appeals relied on Carsner 1 to deny Appellant’s relief, holding that since “ [the] newly discovered evidenc e is based

1 “The new evidence must be a dmissible and must not merely be impeaching, among other things.” Carsner, 2014 WL 4722762.12

on using this evidence solely to impeach the complainant, it fails the third prong of the Carsner test. ” Carsner v. State, 444 S.W.3d 1 (Tex.Crim.App. 2014). This Court has provided the Keeter test that dictates the requirements for a new tria l

. Keeter v. State , 74 S.W.3d
at 37

. I n Carsner

, th e case was merely sent back to the court of appeals for f ailing to address every issue necessary to the disposition of the appeal, namely all of the four prongs set out in Keeter.
The court of appeals is misguided trying to use the holding in Carsner as a catch

- all to deny an appellant’s relief for any evidence that is newly discovered, that may also tend to be impeach able . By its’ v ery nature, any new evidence which tends to refute the charges against an accused, is inherently impeachable evidence as well. In this case, the newly discovered evidence directly refute s the assault charge and question s the integrity of the jury’s verdict . The new evidence tended to exonerate A ppellant and fortify his def ense that he was innocent and the complainant was making another false claim against him.
Since the complainant’s false testimony was the sole basis for the conviction, the fact that it may also be impeachable evidence13

should not negate its’ significance

. Appellant’s B rief, p. 27. The new evidence is more than “ merely impeachable ” because it substantiated, in a way no other evidence offered at trial did, the appellant’s defense that the assault never occurred and the complaintant’s accusations were fa lse.
The court of appeals is deciding this case through the key hole of a door and not grasping th e larger legal significance of the new evidence. The newly discovered evidence established the appellant’s innocence and cooberated his defense, which he h eld throughout the trial, that no assault had ever taken place . In addition, the complainant had a history of making false claims against him. The additional evidence showing that the complainant had made false allegations about a felony theft charge aga inst the appellant in a previous case dismissed the year before, was also coorabarating evidence that the charges against the appellant were false. The trial court’s ruling denied the appellant of evidence of a motive to fabricate the charges against him and harm wa s shown.
A ppellant has been wrongly convicted of a false accusation brought against him. The newly discovered evidence tended to prove his innocence and also established proof that the complainant had14

lied before in a previous case against him, that was rightly dismissed. It would be illogical for Carsner to stand for the premise that newly discovered evidence tending to prove an accused’s innocence cannot withstand the third prong of the Keeter test if it also serves as impeachment evidenc e as well. Newly discovered evidence that tends to prove an accused’s innocence cannot be systemically dismissed by Carson , just because it may also serve to impeach the complaining witness’s testimony. When the newly discovered evidence establishes the appellant’s innocence, and directly contradicts the essential element of the crime, it is a far cry from being “merely impeachment evidence”. See Opinion, p. 4

- 5. A proper analysis of the new evidence should be conducted in the spirit of the statute, “that a new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial”

. Tex. Code Crim. Proc. Ann. Art. 40.001 (West, Westlaw through 2013 3d C.S.); s ee also Keeter v. State , 74 S.W.3d at 37; see a lso Opinion p. 2. The new evidence provided by
A ppellant tending to prove his innocence sho uld be adequate for a new trial, highlighting the fact that the complainant had made false15

allegations against him in the past. T he legal ramifications from the

n ew evidence make it more than likely that a different outcome could have resulted in another trial, thus meeting the third and fourth prong of the Keeter test. 2 B. The court of appeals has so far departed from the accepted and usual course of judi cial proceedings as to call for an exercise in supervision by this Court under Tex.R.App.P.66.3(f)

.
Under the specific circumstances of this case, the impossibility that newly discovered evidence prov ing A ppellant’s innocence is not enough for a new trial under the statute is a daunting display of

un sound legal reasoning and lack of judicial fair

- mindedness. Many cases have demonstrated the notion that newly discovered evidence favorable to the accused should warrant a new trial. See Appellant’s Brief, p. 19

- 26. The court of appeal’s denial of any meaningful appellate review of Appellant’s legally preserved error is so far departed from the accepted and usual course of judicial proceedings as to call for an exercise in supervision by this Court under Te x.R.App.P.66.3(f).

2 The court of appeals assumed that Parker established the first two prongs under Carsner v. State , PD

- 0153

- 14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept. 24 , 2014). Opin ion, p. 4.16

Texas statute dictates that a new trial shall be granted an accused where “ material evidence favorable to the accused has been discovered since trial.” Tex. Code Crim. Proc. Ann. Art. 40.001. (West, Westlaw through 2013 3d C.S.). The facts of this case illustrate that the new evidence was more than “merely impeachable”, but had a direct impact on the jury’s verdict. The actions of the court of appeals is so far departed from the usual judicial proceedings that the issue warrants a re view by this Court under TEX.R.APP.P. 66.3( f ) and provides a compelling reason for granting appellants petition for discretionary review.

GROUND TWO FOR REVIEW
ALTHOUGH A PROSECUTOR MAY VOUCH FOR THE CREDIBILITY OF A WITNESS IN A DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, THE EXCEPTION DOES NOT INVITE THE BOLSTERING OF THE ENTIRE CAST OF STATE’S CASE - IN - CHIEF , ALLOWING THE PROSECUTOR TO IMPOSE HER PERSONAL BELIEFS THAT ALL OF HER WITNESSES WERE CREDIBILE AND TRUTHFUL. (RR v. 3, p. 73

- 82) REASON FO R REVIEW
A. The Court of Appeals decision was in direct conflict with decisions of the Court of Criminal Appeals on the same issue under TEX.R.APP.P. 66.3(c).17

T he prosecutor’s imposition of her personal beliefs regarding the credibility of all of the w itnesses in the state’s case - in

- chief was

n ot invited by Parker’s counsel, as the exception dictates. T he court of appeals decision was in direct conflict with the prevailing cases of this Court of Criminal Appeals which do not allow for the improper bols tering of a witness’s credibility . The court of appeals erred in holding that counsel’s failure to object to the admission of the testimony was not deficient. During final argument, the prosecutor made several improper remarks to the jury about the veraci ty of the state’s witnesses that constituted reversible error, and trial counsel failed to make an objection each time the state improperly bolstered the witnesses.
T he State only called three witnesses in the case

- in

- chief: the arresting officer, the inv estigati ng detective and the victim. During closing argument, the prosecutor improperly comment ed on the veracity of every witness, including the complainant. The prosecutor improperly attach ed her personal belief to the truthfulness of each witness, and the effect was to unlawfully bolster the credibility of the witnesses with unsworn testimony.18

The prosecutor’s remarks went unchecked as she argued to the jury that the police officer had “ no reason to tell you a lie ” and “ [h]e has absolutely nothing to gain from coming in here and saying that, because his job is on the line. There's no reason for him to lie about that”. The prosecutor also commented, without objection, on the veracity of the detective in the case, arguing “ [a]nd she didn't lie to you t oday. She didn't say that she remembered it when she didn't. She just was honest with you and straightforward”. More significantly, the prosecutor gave her opinion before the jury that the complainant “ was honest with you about [her testimony] ”.
RR v. 3, p. 76, line 12

- 16. [emphasis added] Appellant alleged ineffectiveness based on his counsel’s failure to object to the prosecutor’s comments in closing argument bolstering the credibility of the State’s witnesses. Appellant was prejudiced by his couns el’s failure to object after the prosecutor improperly injected her personal opinion by vouching for the credibility and truthfulness of every witness in the state’s case

- in

- chief during final argument. The prosecutor’s comments were so prejudicial that t hey warranted a reversal without a showing of harm.19

In this case, the c ourt of appeals denied Appellant’s relief and relied on Thomas to conclude that the the improper comments were made in direct response to allegations by the defendant , and therefore a n exception could be made to the rule

. Thomas v. State , No. 01

- 11

- 00631

- CR, 2013 WL 652719, at *8 (Tex. App.

— Houston [1st Dist.] Feb. 21, 2013, pet. ref’d); Chapman v. State , 503 S.W.2d 237, 238 (Tex. Crim. App. 1974) (While “it is ordinarily improper for a prosecutor to vouch for the credibility of a witness during [her] argument, . . . if the argument in question was invited by argument of appellant's attorney, and was in reply thereto, no reversible error is shown”)

. Appellant’s case can be disting uished from these cases, in that the prosecutor in both Thomas and Chapman did not impose their personal belief s on the jury regarding the veracity of every witness in the state’s case. It is one thing to allow a prosecutor to vouch for a witness’s credib ility in response to a direct negative attack on their truthfulness. However, there is no legal justifi cation for the prosecutor to bolster every witness in her case

- in

- chief with her personal opinion s and beliefs regarding all of the witness es credibilit y. This distinction can be made from the cases relied on by20

the state, wherein the prosecutor was able to vouch for the credibility of a particular witness without imposing t he i r personal opinions and beliefs on the jurors.
In Appellant’s case the prose cutor did more than just vouch for the credibility of a witness. The prosecutor imposed her personal beliefs before the jury , bolstering the credibility of every witness for the state, even though she could have denounced the appellant’s claims without im posing her personal beliefs . The prosecutor’s improper bolstering was especially harmful to A ppellant because his conviction was based solely on the testimony of the complainant. See Flores v. State , 778 S.W.2d 526 (Tex. App. Corpus Christi, 1989)( The c ase was reversed for improper argument by the prosecutor where the prosecutor argued that the state would not have brought the case if the victim‘s testimony was not true. The error was not harmless beyond a reasonable doubt where the victim’s testimony w as the only evidence against the defendant. ); see also Sepulveda v. State, 751 S.W.2d 667 ( T ex. App.

- Corpus Christi, 1988, pet. ref’d) The prosecutor made improper comments that bolstered the testimony of the complainant, which was especially egregiou s in this case, since the complainant’s testimony was the21

sole basis of the conviction and she had made false accusations against Appellant in the past. See supra. The error was not harmless beyond a reasonable doubt where the complainant’s testimony was the sole basis for the conviction. Although this Court allows some leeway for the prosecution to vouch for the credibility of a witness in a direct response invited by the appellant’s argument, it does not allow for the bolstering of the state’s entire ca se - in

- chief , which was not a proper re ply to any arguments made by the defense.
A ppellant received ineffective assistance of counsel where counsel failed to object to the prosecutor’s expressing his opinion of each witness’s credibility. The prosecut or’s argument , at the very least, would have require d an instruction to disregard. Hammond v. State , 799 S.W.2d 741 (Tex. Crim. App. 1990) cert. denied 111 S.Ct 2912 (1991)(E rror was harmless, and the conviction was affirmed where there was prompt instruc tion to disregard and the evidence against the defendant was “fairly compelling” ). Under the Hammond analysis, in this case there was no prompt instruction to the jury to disregard and the evidence against the appellant was by no means “fairly compelling” . In fact, in Appellant’s case, the complainant’s22

testimony was the sole basis for his conviction, and there was evidence that she had made false claims ag ainst him in the past.
T he prosecutor’s imposition of her personal beliefs regarding the credibil ity of all of the witnesses in the state’s case - in

- chief was
not invited by Parker’s counsel, the remarks were improper, and the court of appeals erred in holding that counsel’s failure to object to the admission of the testimony was deficient

. Thus, the f irst prong of Strickland has been satisfied that defense counsel’s performance was deficient and Appellant showed that his counsel made errors so serious that counsel was not functioning at an objective standard for adequate legal representation guaranteed by the Sixth Amendment. Strickland v. Washington . 466 U.S. 668, 687 (1984); see Hernandez v. State , 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc) (adopting Strickland as applicable standard under the Texas Constitution). The end result in this case reveal s that A ppellant’s conviction was based on false testimony that the state capitalized on d uring final argument. Since the complainant’s testimony was the only evidence against the appellant, and her credibility was crucial to the case, the

error wa s not harmless . The improper jury argument requires a23

reversal of Appellant’s conviction , for which he is entitled to a new trial.

PRAYER WHEREFORE PREMISES CONSIDERED, the Petitioner prays that this Honorable Court grant discretionary r eview of the d ecision of the Court of Appeals herein and that the Judgment of the Court of Appeals and Trial Court be reversed and the indictment and prosecution against Petitioner herein be dismissed or this cause be remanded for a new trial. RESPECTFULLY SUBMIT TED, /s/ Virginia Koblizek Burt VIRGINIA KOBLIZEK BURT Attorney at Law P.O. Box 717 Sinton, Texas 78387 361

- 877

- 2048 virginiak.burt@gmail.com SBN: 00784411 ATTORNEY FOR GARY PARKER24 CERTIFICAT E OF SERVICE I, Virginia K. Burt, do hereby certify that the Petition for Discretionary Review was e - filed on this the 26 th day of J anuary 201 5 , along wit h 10 copies mailed regular mail, to the clerk of the Texas Court of Criminal Appeals and a copy deli vered to the Nueces County District Attorney’s office, Appellate Section, and a copy mailed to the current TDCJ address of the Petitioner, Gary Parker

. /s/ Virginia Koblizek Burt VIRGINIA KOBLIZEK BURT

CERTIFICATION OF COMPLIANCE

Now come s counsel of record, Virginia K. Burt, for the Appellant, GARY PARKER, in the above styled and numbered cause, and hereby certifies that counsel is in compliance with Texas Rules of Appellate Procedure 9.4(i)(3), and I certify that the number of words in t his petition , excluding those matters listed in Rule 9.4(k)(1) is 2, 98 9

. /s/ Virginia K. Burt VIRGINIA K. BURT25 

### NUMBER 13 - 13 - 00128 - CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG GARY PARKER, Appellant,

v. THE ST ATE OF TEXAS, Appellee. On appeal from the 148th District Court of Nueces County, Texas.



### MEMORANDUM OPINION Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Rodriguez Appellant Gary Parker challenges his conviction for fa mily violence assault by impeding breath or circulation, a third

- degree felony.1 See TEX. PENAL CODE ANN. § 1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 22.01(b)(2)(B) (West, Westlaw through26

2013 3d C.S.). The jury returned a guilty verdict. For enhancement purposes, the jury found that Parker was a habitual felony offe nder, see id. § 12.42 (West, Westlaw through 2013 3d C.S.), and sentenced him to thirty

- five years in the Institutional Division of the Texas Department of Criminal Justice. By four issues, Parker contends: (1) the trial court abused its discretion in deny ing his motion for new trial based on newly discovered evidence; (2) the State’s witness Jacqueline Luckey was not qualified as a fingerprint expert; (3) the prosecutor’s closing argument constituted reversible error; and (4) trial counsel provided ineffec tive assistance. We affirm. I. MOTION FOR NEW TRIAL By his first issue, Parker contends that the trial court abused its discretion when it denied his motion for new trial because newly discovered evidence proved that the complainant gave false testimony at trial about her injuries. A. Applicable Law and Standard of Review “A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” TEX. CODE CRIM. PROC. ANN. art. 40.001 (West, Westlaw throug h 2013 3d C.S.). In order to be entitled to a new trial on the basis of newly27

discovered evidence, the defendant must satisfy the following four

pronged test: (1) the newly discovered evidence was unknown or unavailable to the defendant at the time of tri al; (2) the defendant's failure to discover or obtain the new evidence was not due to the defendant's lack of due diligence; (3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and, (4) the new evidence is probably true and will probably bring about a different result in a new trial. Carsner v. State , PD

- 0153

- 14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept. 24, 2014). “Motions for new trials on grounds of newly discovered evidence are not favored by th e courts and are viewed with great caution.” Drew v. State , 743 S.W.2d 207, 225 (Tex. Crim. App. 1987) (en banc); see Moreno v. State , 1 S.W.3d 846, 852

– 53 (Tex. App.

— Corpus Christi 1999, pet. ref’d). An appellate court reviews a trial court's denial of a motion for new trial for an abuse of discretion, reversing only if the trial judge's opinion was clearly erroneous and arbitrary. A trial court abuses its discretion if no reasonable view of the record could support the trial28

court's ruling. This deferent ial review requires the appellate court to view the evidence in the light most favorable to the trial court's ruling. The appellate court must not substitute its own judgment for that of the trial court and must uphold the trial court's ruling if it is wit hin the zone of reasonable disagreement. Riley v. State , 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); see Celis v. State , 354 S.W.3d 7, 21 (Tex. App.

— Corpus Christi 2011), aff’d , 416 S.W.3d 419 (Tex. Crim. App. 2013). B. Discussion 1. Evidence Presented at the New - Trial Hearing Dane Smith, the complainant’s work supervisor, testified at the new

trial hearing that he did not see any significant injuries on the complainant when she came to work the day after the alleged assault. Parker asserts that this te stimony directly contradicts the following trial testimony of the complainant: “[My face] was a lot darker the next day, and then down my jaw line it was all dark and on this side of my jaw. I couldn’t even

— they wouldn’t let me work.” Parker argues that
th is newly discovered evidence proved the complainant lied on the stand, specifically about not going to work the day following the incident and about the seriousness of her injuries.29

Parker also offered the testimony of a former attorney who represented hi m on a felony theft charge brought by the same complainant. The attorney testified that during his investigation he found evidence showing that the complainant lied about the theft charges against Parker. The case was dismissed when the complainant failed to appear at the trial. Parker also asserts that Robin Cassel, a detective with the Corpus Christi Police Department Family Violence Unit, provided testimony establishing that the complainant lied about her injuries. However, the State offered this refer enced testimony during the trial of this case. It was not evidence that Parker discovered since trial. See TEX. CRIM. PROC. CODE ANN. art. 40.001 (West, Westlaw through 2013 3d C.S.). So we will not consider it in our review. 3 Because our discussion of t he third and fourth prongs of the Carsner test are dispositive of this issue, we will assume without deciding that Parker established the first two prongs. See Carsner v. State , PD

- 0153

- 14, 2014 WL 4722762, at *2 (Tex. Crim. App. Sept. 24, 2014).
2. Carsn er

’s Third Prong 330

“The rule is well settled that a new trial will not be granted for newly[ ]discovered evidence to impeach a witness.” Grate v. State , 23 Tex. App. 458, 5 S.W. 245, 245

– 46 (Tex. App. 1887, no pet.). The court of criminal appeals recently repeated this proposition in the third prong of its test for admitting newly discovered evidence

— the new evidence must be admissible and must not merely be impeaching, among other things. Carsner , 2014 WL 4722762, at *2; see Strong v. State, 138 S.W.3d 546 , 556 (Tex. App.

— Corpus Christi 2004, no pet.) (“His only arguments for the admission of the evidence were based on using it to impeach or corroborate. This fails the third prong of the [ Carsner ] test . . . .”); see also Willingham v. State , 897 S.W.2d 351 , 358 (Tex. Crim. App. 1995) (en banc) (“Impeachment of a witness means adducing proof that such witness is unworthy of belief or credit.”). So to the extent Parker’s argument for the admission of the newly discovered evidence is based on using this eviden ce solely to impeach the complainant, it fails the third prong of the Carsner test. See Carsner

, 2014 WL 4722762, at *2. 3. Carsner

’s Fourth Prong “[W]hen the newly discovered testimony, although tending to discredit or impeach a witness, is material and competent independent of its31

impeaching tendency . . . , the fact that the testimony also impeaches a witness does not deprive the accused in a proper case of the right to a new trial.” Hale v. State , 51 S.W.2d 611, 613 (Tex. Crim. App. 1932); see Lawson v. State , 206 S.W.2d 608, 609 (Tex. Crim. App. 1947) (op. on reh’g) (per curiam); see also TEX. CRIM. PROC. CODE ANN. art. 40.001. So if the fourth prong of the Carsner test is established

— that the new evidence is probably true and will probably bring abou t a different result in a new trial, independent of impeachment

— then the evidence is more than merely impeaching. See Carsner, 2014 WL 4722762, at *2; see also TEX. CRIM. PROC. CODE ANN. art. 40.001. Addressing this fourth prong, Parker contends that the new evidence has been shown probably to be true; that there is nothing in the record to give reason to doubt the credibility of the supervisor whose testimony constituted the majority of the new evidence. And Parker asserts that the circumstances in this c ase make it very likely that the new evidence would have resulted in a different outcome. Being mindful that a new trial will be granted when the newly discovered evidence is material and competent, independent of its impeaching tendency, see Hale , 121 Tex . Crim. at 368, 51 S.W.2d at 613; see32

also TEX. CRIM. PROC. CODE ANN. art. 40.001, we still cannot conclude that this new evidence, even if true, would probably bring about a different result in a new trial. See Carsner , 2014 WL 4722762, at *2. The compla inant testified at trial that after Parker hit her “in the head, the eyes, [and] mouth” with “[h]is fist,” and was choking her, she blacked out. The complainant then answered the following questions asked by the State: Q. What's the first thing you rememb er when you woke up? A. Coming to and Mr. Parker had his hands around my throat and telling me to get up and calling me vicious names, and he just kept punching and choking me and kicking me and

— maybe after he did that I was like just sitting there trying to get my breath and stuff because I was shortness [sic] of breath and real dizzy.

. . . . Q. Now, what

— he used his hand and put it around your throat; is that right? A. Yes. Uh

- huh. Q. And how many

— did he use both hands or one?33

A. Yes, both hands, b ecause he was like just shaking me like a rag doll on the couch with both his hands. Q. So, did he put pressure on your throat? A. Yes. Uh

- huh. Q. Did that hurt? A. Yes. Q. Now, did that impede your normal breathing whenever that occurred? A. Yes, it did. Q. And can you tell the jury a little bit about how that felt? A. Well, I had to like gasp for air, and when I finally got away from
him

— and then I just

— like I started like hiccupping, but not

— it wasn't hiccupping. It was just like probably gaping (sic) for air but really bad.

. . . . Q. Okay. Now, in this [911] recording were you crying? A. Yes, but I could hardly talk. It was

— it was very difficult to talk, and I couldn't even remember my address, that's how shook up

— and my head was hurting so b ad . . . and my throat.

. . . .34

Q. I'd like to go back over

— to go back to whenever the Defendant was choking you. Can you demonstrate to the jury with your hands how his hands were on your neck? A. He just had ahold of me like this, and I was like layin g down on the couch, and he was just choking me and banging my head around like that. Q. So you're indicating that he had both hands around your neck? A. Yes. Q. Do you know how long you couldn't breathe? A. I don't know, three to five minutes, somethi ng like that. That's about how long he was

— started choking on me and choking on me. And this side of my neck, right here, it

— it hurt the worst on this side over here because

— I don't

— I don't know why, but it was just

— had a big knot and stuff right here on t his side of my neck right in there. Q. Okay. Now I'd like to talk about some of the injuries that you sustained from the attack. . . . Do you see any injuries on that picture [State’s Exhibit 4]? A. Yes. Right here in my neck area, right there, and then my eye, and then there was a lump right there on my head. . . . See, there's the knot on my neck, right there, from him choking me. I don't know if you35

can see that right in there, and then like

— he had my

— he had handprints right there on the side, right th ere by my hair. Q. I'm holding up State's Exhibit 2, do you want to indicate o n here for the jury where? A. Okay. That's the knot on my neck, right here, and then there was hand marks right in through here where my hair is right there. In addition, when the trial court admitted a photograph of the complainant’s face and neck as a trial exhibit, Officer Mario Olivares, a police officer with the Corpus Christi Police Department who responded to the domestic disturbance call, testified that it depicted “som e of the redness to the [complainant’s] neck area.” When asked to describe what he saw when he looked at the victim’s neck, Officer Olivares replied, “We noticed some redness around her neck area and what would look to be some purplish markings also.” Par ker was convicted of family violence when he intentionally, knowingly, or recklessly caused bodily injury to his former wife by impeding her normal breathing or circulation of the blood by applying pressure to her throat or neck or by blocking her nose or mouth. See TEX. PEN. CODE ANN. § 22.01(b)(2)(B). In light of the evidence that Parker caused bodily injury to the complainant by impeding her36

normal breathing by applying pressure to her throat or neck, we cannot conclude that the evidence regarding the co mplainant’s facial bruising or the timing of her return to work would likely have produced a different outcome, independent of its impeaching tendency. See Carsner , 2014 WL 4722762, at *2. Neither the absence of additional bruising on the complainant’s fac e nor a different date when she returned to work would change any aspect of the trial testimony regarding the bruising on the complainant’s neck. 4. Summary Because a motion for new trial on grounds of newly discovered evidence is not favored by the cour ts and is viewed with great caution, see Drew

, 743 S.W.2d at 225; Moreno , 1 S.W.3d at 852

– 53, and because we must view the evidence in the light most favorable to the trial court's ruling and not substitute our own judgment for that of the trial court, see Riley

, 378 S.W.3d at 457; Celis , 354 S.W.3d at 21, we conclude that Parker has not shown that the trial court abused its discretion in denying his new

- trial motion. Its ruling was well within the zone of reasonable disagreement. See Riley , 378 S.W.3d at 4 57; Celis , 354 S.W.3d at 21. We overrule Parker’s first issue.37

II. QUALIFIED FINGERPRINT EXPERT AT THE PUNISHMENT PHASE By his second issue, Parker argues that the evidence was insufficient to prove that he was the same person who had been convicted in t he prior convictions relied upon by the State for enhancement purposes without a qualified expert to properly match his fingerprints. Based on Parker’s arguments, we construe this issue as a challenge to the qualifications of Luckey, an identification cler k with the Identification Section of the Nueces County Sheriff’s Office, whom the State presented as its fingerprint expert. Parker’s indictment contains two enhancement paragraphs pleading two prior felony convictions

— both in Texas for driving while into xicated. See TEX. PENAL CODE ANN. § 12.42(d). During the punishment phase of the trial, the State offered into evidence penitentiary (pen) packets related to these prior offenses. Luckey testified that the fingerprints in the packets matched fingerprints s he took from Parker. Defense counsel objected to the admission of one of the pen packets and asked to take Luckey on voir dire. After the voir dire examination, Parker objected that Luckey had not been qualified as an expert. The trial court overruled Park er's objection.38

A. Applicable Law and Standard of Review “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, sk ill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” TEX. R. EVID. 702. Thus, before admitting expert testimony under [r]ule 702, the trial court must be satisfied that three conditions are met: (1) the witn ess qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact

- finde r in deciding the case. Rodgers v. State , 205 S.W.3d 525, 527 (Tex. Crim. App. 2006). “These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Vela v. State , 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). “Qualifi cation is distinct from reliability and relevance and, therefore, should be evaluated independently.” Id. “Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness poss esses sufficient qualifications to assist the jury as an39

expert on a specific topic in a particular case.” Rodgers , 205 S.W.3d
at 527

– 28; see Wyatt v. State , 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); see also TEX. R. EVID. 702; Harrison v. State , No. 2

- 02

- 3 39

- CR, 2003 WL 21513618, at *3 (Tex. App.

— Fort Worth July 3, 2003, no pet.) (mem. op., not designated for publication). “For this reason, appellate courts rarely disturb the trial court’s determination that a specific witness is or is not qualified to test ify as an expert.” Rodgers , 205 S.W.3d at 528 n.9; Wyatt , 23 S.W.3d at 27. “In any event, the appellate court must review the trial court’s ruling in light of what was before that court at the time the ruling was made.” Rodgers , 205 S.W.3d at 528

– 29.40

B. Qualification At the time the trial court ruled that Luckey was an expert in the field of fingerprinting, the State had established the following: • Luckey had been comparing fingerprints as an identification clerk in the Identification Section of the N ueces County Sheriff’s Office since 1991; • Luckey’s daily duties included comparing inked fingerprints; • Over the past nineteen years, she was trained by Lieutenant Fred Flores who had both national and state experience regarding fingerprint identifica tion, working in fingerprinting for over thirty

- five years, and receiving FBI and DPS training in that area; • In 1993, Luckey took a forty

- hour “Basic Fingerprints” course taught by Charles Parker, the supervisor of the fingerprint section of the Corpus Christi Police Department; • Luckey is a member of the International Association for Identification; • Prior to this trial, Luckey had testified twenty to twenty

- five times as an expert in the area of fingerprint identification; • Since 1991, Luckey rec eived training every day at work; and41

• Luckey compared thousands of fingerprints over the course of her identification job. Luckey also testified that “[a] fingerprint is identification of a person,” and that she had never found two people to have the s ame fingerprint. Luckey specialized in the area of inked prints, which she described as an ink impression taken off an ink pad and rolled onto the paper. When asked to explain the science of identifying or comparing fingerprints, Luckey responded, First o f all you’ve got to find [a pattern

— find] out if it’s a loop, a whirl, or a tentative arch or just an arch. . . . Then you start looking at the similarities. . . . And then once you find that, then you go from there to see what

— you know, the ending ridge, the bifurcations, and the loops and the patterns of it. . . . Then after that, you start looking at the

— you know, the same points at the same time on the print. . . . You can go up as high as 15 or 20 [points on a fingerprint] if you want. Luckey agreed that this method of fingerprint comparison is generally accepted within the scientific community. On cross

- examination, when asked if she had been trained by the FBI or the State of Texas DPS, Luckey responded, “No.” Luckey explained that “[t]he core is t he middle of [the print]” and “[a] delta is42

where you start counting your ridges to the core of your print.” She did not know the definition of a “Galton point.” Luckey explained that she compared the patterns of the prints to determine whether one print m atched another. Because the special knowledge that qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a combination of these things, see TEX. R. EVID. 702; Wyatt , 2 3 S.W.3d at 27, based on this evidence, we cannot conclude that the trial court abused its discretion when it permitted Luckey to testify as a fingerprint expert. We overrule this portion of Parker's second issue. C. Reliability and Relevance While conce ding that “since the use of fingerprint comparisons is a recognized method of proving the defendant is the person who committed the previous crimes, [he] is contesting [only] . . . the qualifications of the expert,” Parker nonetheless appears to argue that Luckey's fingerprint testimony was neither reliable nor relevant. See Vela , 209 S.W.3d at 131. Specifically, Parker complains that Luckey failed to follow proper procedure for identifying Parker when she only matched Parker’s fingerprints that she took th e morning of43

trial to the “known print” and not to the fingerprints in each of judgments from the pen packs. Luckey testified that she did not compare the prints on the judgments with the one she took the morning of trial, but that she did make the follow ing comparison:44

All those judgments that he has, right, the known print, I checked them to that, all of them, at 9:00 o’clock when I got here. And then, when I

— I mean, I fingerprinted him, I just went and compared them to my known prints that I had, since I had already compared them with those. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the desired ruling if they are not apparent from the co ntext of the request, objection, or motion. TEX. R. APP. P. 33.1(a)(1); Mosley v. State , 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on reh'g) (en banc). And the trial court must have ruled on the request, objection, or motion, either expressly or impl icitly, or the complaining party must have objected to the trial court's refusal to rule. TEX. R. APP. P. 33.1(a)(2); Taylor v. State , 939 S.W.2d 148, 155 (Tex. Crim. App. 1996) (en banc). “The legal basis of a complaint raised on appeal cannot vary from t hat raised at trial.” Heidelberg v. State , 144 S.W.3d 535, 537 (Tex. Crim. App. 2004). Parker did not object at trial on the ground that Luckey's fingerprint testimony was unreliable. He did not object that it was not relevant. His only objection to Lucke y’s testimony and to the exhibits admitted45

in support of that testimony was that she was not qualified as an expert in the field of fingerprinting. See id . And even had he objected on the basis of reliability or relevance, we find no trial court ruling, ei ther express or implied, on such an objection. See Taylor , 939 S.W.2d at 155. Parker did not preserve in the trial court any reliability or relevancy complaints for our review. See TEX. R. APP. P. 33.1(a)(1); Heidelberg , 144 S.W.3d at 537; Mosley , 983 S.W. 2d at 265. We overrule the remaining portion of Parker's second issue. III. IMPROPER BOLSTERING DURING THE PROSECUTOR’S CLOSING ARGUMENT AT THE GUILT/INNOCENCE PHASE In his third issue, Parker complains that the prosecutor improperly bolstered the State’ s witnesses during closing argument. In sum, Parker asserts the following: In this case, the State called three witnesses in its’ [sic] case

- in

- chief: the arresting officer, the investigating detective and the victim. In final argument, the prosecutor was allowed to improperly comment on the veracity of every witness who testified in the [S]tate’s case, including the [complainant]. The prosecutor was allowed to attach her personal belief to the credibility of each witness, and the effect was to bolster46

the credibility of the witnesses with unsworn testimony, which is improper. In order to preserve error relating to improper jury argument, a defendant must object to the jury argument about which he complains and pursue his objection to an adverse ruling. Co ckrell v. State , 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (en banc) (holding that a “defendant's failure to object to a jury argument . . . forfeits his right to complain about the argument on appeal”); Martinez v. State , 951 S.W.2d 55, 59 (Tex. App.

— Corpu s Christi 1997, no pet.); see TEX. R. APP. P. 33.1(a). Parker acknowledges that he did not object to these arguments at trial. Because Parker failed to object to these statements made by the prosecutor during closing argument, he preserved nothing for our review. We overrule Parker’s third issue. IV. INEFFECTIVE ASSISTANCE OF COUNSEL By his fourth issue, Parker contends that his trial counsel provided ineffective assistance when he failed to object to the prosecutor’s closing argument regarding the credi bility of the State’s witnesses. The State responds that defense counsel was not ineffective because the prosecutor’s argument was responsive to the argument presented47

by Parker’s trial counsel and therefore permissible. We agree with the State. A. Applic able Law and Standard of Review Proper jury argument generally falls within one of the following areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement

. Brown v. State , 270 S.W.3d 564, 750 (Tex. Crim. App. 2008). When examining challenges to a jury argument, a reviewing court must consider the complained

- of argument in the context in which it appears. Gonzalez v. State , 337 S.W.3d 473, 483 (Tex. App.

— Hou ston [1st Dist.] 2011, pet. ref’d). And while “it is ordinarily improper for a prosecutor to vouch for the credibility of a witness during [her] argument, . . . if the argument in question was invited by argument of appellant's attorney, and was in reply t hereto, no reversible error is shown.” Chapman v. State , 503 S.W.2d 237, 238 (Tex. Crim. App. 1974); see Thomas v. State , No. 01

- 11

- 00631

- CR, 2013 WL 652719, at *8 (Tex. App.

— Houston [1st Dist.] Feb. 21, 2013, pet. ref’d) (same). We review ineffective ass istance of counsel claims under the two

pronged test articulated in Strickland v. Washington . 466 U.S. 668,48

687 (1984); see Hernandez v. State , 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (en banc) (adopting Strickland as applicable standard under the Texas C onstitution). The first prong of the Strickland test requires a showing that counsel's performance was deficient, which requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment

. Strickland , 466 U.S. at 687. The second prong of the Strickland test requires a showing that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the defendant of a fair tria l. Id . “To successfully assert that trial counsel's failure to object amounted to ineffective assistance, the [appellant] must show that the trial judge would have committed error in overruling such an objection.” Ex parte Martinez , 330 S.W.3d 891, 901 (Te x. Crim. App. 2011); Thomas , 2013 WL 652719, at *9 (“The failure to object to argument that is not improper does not constitute ineffective assistance of counsel.”). B. Closing Argument The prosecutor for the State opened the closing arguments at the gui lt/innocence phase by emphasizing the elements of the offense49

and the evidence that established those elements. Parker's trial counsel spoke next. In his closing argument, Parker's counsel questioned the credibility of the complainant and of the police off icers who testified at trial. He began his argument by stating that “[the complainant’s] testimony is not supported by the physical evidence.” He referred to this case as one in which “someone is going to take the stand and either exaggerate, grossly exagg erate, or lie . . . .” After arguing that the photographs neither represented nor supported the complainant’s testimony and that Detective Robin Cassel, a detective with the Corpus Christi Police Department Family Violence Unit, testified that she saw the complainant four days after the incident for reporting purposes and “didn’t notice . . . anything about her,” trial counsel explained that he wanted the jury “to see that [the complainant] is shading her testimony. She’s . . . making things up.” He argued that “hammering on this” was “the only way that [he would be] able to show [the jury] that [the complainant] is incredible. Her testimony is not to be believed. She is grossly exaggerating and/or making it up.” Trial counsel also argued that “when [the co mplainant] went in to see Detective Cassel four days later, okay, that’s time enough for those50

bruise[s] to come up, . . . but Cassel, she testified she didn’t notice anything, you know, anything about her. Cassel didn’t think to take any pictures of her b ecause there was nothing there.” In closing, trial counsel also urged that Officer Olivares, while trying to do the right thing, appeared to have “bolstered his testimony a little bit” when he testified about the photographs by saying, “Oh, yeah, [the inju ries] looked worse in person.” In response, the prosecutor argued, in relevant part: When you

- all go back and make the difficult decision to determine what happened that day, I'm asking you to keep three things in mind: First, the victim is not on trial today. The Defendant over there is on trial for what happened that day. Secondly, the police work is not on trial. Although the police work is what brings you the evidence here today, just because we don't have every single piece of what we might have want ed does not mean that a crime did not occur, and we shouldn't penalize that victim for what a police officer may or may not have done. Additionally, the victim doesn't choose when and where they're [sic] assaulted. This victim didn't know she was going to be assaulted that night and had been drinking in her home, which she is allowed to do. If she had known that she was going to be assaulted,51

she might not have been drinking. However, those are the facts of this case and that's what happened that night, and she was honest with you about that . So, I want you to keep all those things in mind when you're trying to figure out what really happened that night. Now, let's talk about some of these injuries. The only thing that the Defendant is on trial here for tod ay, but you've got to hear about everything, because everything happened that day, is choking. You heard from the officers [sic], who has absolutely nothing

— no reason to tell you a lie, that he saw bruising in those pictures, but he also told you it's hard to see in those pictures, because when it's red and when you first have a bruise, they don't always photograph very well. He told you that. [ Officer Olivares ] has absolutely nothing to gain from coming in here and saying that, because his job is on the li ne. There's no reason for him to lie about that. So, defense counsel's insinuation that he's bolstering is honestly just ludicrous. He's here saying what he saw what happened that day because that's his job, and he doesn't want to lose his job. Additionall y, you also heard testimony that you don't even often have these marks on choking victims. This is something that is good. (Emphasis added.)52

Later, in response, the State made the following reference to Detective Cassel: Now, Detective Cassel said that [s]he did not recall if there were any injuries. That doesn't mean there weren't any, that means [s]he has no recollection whether or not there were or there weren't, so I just wanted to be clear on that point. Detective Cassel didn't remember. Her job is more, as she told you, to take the case, put it together, and present it to the District Attorney's office. That's not her main focus. Her main focus is making sure all that evidence is collected. And she didn't lie to you today. She didn't say that she re membered it when she didn't. She just was honest with you and straightforward and said, "You know what, I don't remember one way or the other." During direct examination at trial, the following relevant exchange occurred between the State and Detective Ca ssel: Q. Did

— when the victim, or when [the complainant] came in and talked with you on the 17th, I believe

— A. 18th. Q.

— 18th, were you able to observe any injuries at that time? A. I don't recall seeing any injuries, but I remember she did tell me tha t.53

Q. We can't get into anything that she specifically told you. A. I don't remember seeing any injuries on her. Q. Okay. (Emphasis added.) C. Discussion Now on appeal, Parker alleges that counsel’s representation was ineffective because he failed to object to portions of the prosecutor's comments in her responsive closing argument, which concerned the credibility of the State’s witnesses. The italicized statements above, about which Parker complains, include the following: (1) “[the complainant] was honest with you about that.”; (2) “[Officer Olivares] has absolutely nothing to gain from coming in here and saying that, because his job is on the line. There's no reason for him to lie about that.”; and (3) “[Detective Cassel] just was honest with you an d straightforward .” Parker contends that these inappropriate remarks improperly bolstered witness testimony. He asserts that “their cumulative effect was outrageous and especially harmful.” When the complained

- of comments are read in context, however,

eac h of the State's arguments that a witness was credible responded to a credibility argument made by Parker's counsel. See Chapman ,54

503 S.W.2d at 238; Gonzalez v. State , 337 S.W.3d at 483. Because the State's responsive arguments were invited by Parker’s cou nsel, they were not improper, and the trial court would not have committed error in overruling such an objection. See Chapman , 503 S.W.2d at 238; McDuffie , 854 S.W.2d at 216

– 17; see also Martinez , 330 S.W.3d at 900. Based on this analysis, counsel’s failur e to object to the admission of this testimony was not deficient, and the first prong of Strickland has not been satisfied. See Strickland , 466 U.S. at 687; Thomas , 2013 WL 652719, at *9; Davis v. State , 830 S.W.2d 762, 766 (Tex. App.

— Houston [1st Dist.] 1 992, pet. ref'd). And because Parker must prove both prongs of Strickland by a preponderance of the evidence in order to prevail, we need not address the second
prong. See Tong v. State , 25 S.W.3d 707, 712 (Tex. Crim. App. 2000); see also TEX. R. APP. P. 4 7.1. We overrule Parker’s fourth issue.55

V. CONCLUSION We affirm the judgment of the trial court. NELDA V. RODRIGUEZ Justice Do not publish. TEX. R. APP. P. 47.2(b). Delivered and filed the 13th day of November, 2014.