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

CLERK
2

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 78387

virginiak.burt@gmail.com

Telephone: 361-877-2048
3

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 REVIEW ----------------------------------------------------- 7

GROUND ONE PRESENTED 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 far departed from the 

accepted and usual course of judicial proceedings as to 

call for an exercise in supervision by this Court------------15

GROUND TWO PRESENTED FOR REVIEW---------------------------16

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)
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)------------------------16

PRAYER --------------------------------------------------------------------------23

CERTIFICATE OF SERVICE ------------------------------------------------24

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

APPENDIX 

Opinion from Thirteenth Court of Appeals issued November 13, 2014
5

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)---------19

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)----------22

Keeter 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)------19

STATUTES

Tex. Code Crim. Proc. Ann. Art. 40.001.-------------------------------10, 16

Texas 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.66.3(f).-------------------------------------------------------------16
6

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 Parker 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 conviction 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 FOR 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 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

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 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)
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 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).

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 trial, is 

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

test. 

Evidence Presented at the Motion for New Trial Hearing
9

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 her 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 side 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 trial 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 to 
10

send her home because of her injuries. RR v. 5, p. 16. He directly 

contradicted her 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 brought 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, enough to doubt 

the integrity of the jury’s verdict, and a new trial should have been 

granted. Appellant 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 

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 courts will grant a new trial based on newly discovered evidence 
11

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) the 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.Crim.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, the court of appeals relied on Carsner1to deny Appellant’s 

relief, holding that since “ [the] newly discovered evidence is based 

 

1

“The new evidence must be admissible 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 trial. Keeter v. State, 74 S.W.3d

at 37. In Carsner, the case was merely sent back to the court of 

appeals for failing 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 impeachable. By 

its’ very 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 refutes the assault 

charge and questions the integrity of the jury’s verdict. The new 

evidence tended to exonerate Appellant and fortify his defense 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 evidence 
13

should not negate its’ significance. Appellant’s Brief, 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 false. 

The court of appeals is deciding this case through the key hole 

of a door and not grasping the larger legal significance of the new 

evidence. The newly discovered evidence established the appellant’s 

innocence and cooberated his defense, which he held 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 against 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 was shown. 

Appellant 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 had 
14

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 evidence 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.); see also Keeter v. State, 74 

S.W.3d at 37; see also Opinion p. 2. The new evidence provided by 

Appellant tending to prove his innocence should be adequate for a 

new trial, highlighting the fact that the complainant had made false 
15

allegations against him in the past. The legal ramifications from the 

new 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 judicial 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 proving Appellant’s innocence is not 

enough for a new trial under the statute is a daunting display of 

unsound 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 Tex.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). Opinion, 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 review 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 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).
17

The prosecutor’s imposition of her personal beliefs regarding 

the credibility of all of the witnesses in the state’s case-in-chief was 

not invited by Parker’s counsel, as the exception dictates. The 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 

bolstering 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 veracity 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. 

The State only called three witnesses in the case-in-chief: the 

arresting officer, the investigating detective and the victim. During 

closing argument, the prosecutor improperly commented on the 

veracity of every witness, including the complainant. The prosecutor 

improperly attached 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 today. 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 counsel’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 they warranted a 

reversal without a showing of harm. 
19

In this case, the court 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 an 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 distinguished from these cases, in that 

the prosecutor in both Thomas and Chapman did not impose their

personal beliefs 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 credibility in response to a direct negative attack on their 

truthfulness. However, there is no legal justification for the 

prosecutor to bolster every witness in her case-in-chief with her 

personal opinions and beliefs regarding all of the witnesses

credibility. This distinction can be made from the cases relied on by 
20

the state, wherein the prosecutor was able to vouch for the credibility 

of a particular witness without imposing their personal opinions and 

beliefs on the jurors. 

In Appellant’s case the prosecutor 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 imposing her personal beliefs. The prosecutor’s 

improper bolstering was especially harmful to Appellant 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 case 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 was the only evidence against the defendant. ); see also 

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

1988, pet. ref’d) The prosecutor made improper comments that 

bolstered the testimony of the complainant, which was especially 

egregious in this case, since the complainant’s testimony was the 
21

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 case-in-chief, which was not a proper reply to any 

arguments made by the defense. 

Appellant received ineffective assistance of counsel where 

counsel failed to object to the prosecutor’s expressing his opinion of 

each witness’s credibility. The prosecutor’s argument, at the very 

least, would have required an instruction to disregard. Hammond v. 

State, 799 S.W.2d 741 (Tex. Crim. App. 1990) cert. denied 111 S.Ct 

2912 (1991)(Error was harmless, and the conviction was affirmed 

where there was prompt instruction 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’s 
22

testimony was the sole basis for his conviction, and there was 

evidence that she had made false claims against him in the past. 

The prosecutor’s imposition of her personal beliefs regarding 

the credibility 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 first 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 reveals that Appellant’s conviction 

was based on false testimony that the state capitalized on during final 

argument. Since the complainant’s testimony was the only evidence 

against the appellant, and her credibility was crucial to the case, the 

error was not harmless. The improper jury argument requires a 
23

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 review of the decision 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 SUBMITTED,

/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 PARKER
24

CERTIFICATE OF SERVICE

I, Virginia K. Burt, do hereby certify that the Petition for 

Discretionary Review was e-filed on this the 26th day of January

2015, along with 10 copies mailed regular mail, to the clerk of the 

Texas Court of Criminal Appeals and a copy delivered 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 comes 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 this 

petition, excluding those matters listed in Rule 9.4(k)(1) is 2, 989.

/s/ Virginia K. Burt

VIRGINIA K. BURT 
25

NUMBER 13-13-00128-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GARY PARKER, Appellant,

v.

THE STATE 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 family 

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 through 
26

2013 3d C.S.). The jury returned a guilty verdict. For enhancement 

purposes, the jury found that Parker was a habitual felony offender, 

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 denying 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 ineffective 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 through 2013 

3d C.S.). In order to be entitled to a new trial on the basis of newly 
27

discovered evidence, the defendant must satisfy the following fourpronged test: 

(1) the newly discovered evidence was unknown or unavailable to the 

defendant at the time of trial; 

(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 the 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 trial 
28

court's ruling. This deferential 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 within 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 newtrial 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 testimony 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 

this 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 him 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 referenced 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 the 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. Carsner’s Third Prong3 
30

“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 evidence 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 its 
31

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 about 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 case 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; see 
32

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 complainant 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 remember 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, because 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 bad . . . 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 laying 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, something 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 this 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 you 
35

can see that right in there, and then like—he had my—he had 

handprints right there on the side, right there by my hair. 

Q. I'm holding up State's Exhibit 2, do you want to indicate on 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 

“some 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.” 

Parker 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 her 
36

normal breathing by applying pressure to her throat or neck, we 

cannot conclude that the evidence regarding the complainant’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 face 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 courts 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 457; 

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 the 

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 clerk 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 

intoxicated. 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 she 

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 Parker'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, skill, 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 witness 

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-finder 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). “Qualification 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 possesses sufficient qualifications to assist the jury as an 
39

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. 2-02-339-

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 testify 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 Nueces 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 identification, 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 received training every day at work; and 
41

• 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 same 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 of 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 the middle of [the print]” and “[a] delta is 
42

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 matched 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, 23 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 conceding 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 the morning of 
43

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 

following 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 context 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 implicitly, 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 that 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 Luckey’s testimony and to the exhibits admitted 
45

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, 

either 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 bolster 
46

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. Cockrell 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.—Corpus 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 credibility of the State’s witnesses. 

The State responds that defense counsel was not ineffective because 

the prosecutor’s argument was responsive to the argument presented 
47

by Parker’s trial counsel and therefore permissible. We agree with the 

State. 

A. Applicable 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.—Houston [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 thereto, 

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 assistance of counsel claims under the twopronged 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 Constitution). 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 

trial. 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 (Tex. 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 

guilt/innocence phase by emphasizing the elements of the offense 
49

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 officers 

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 exaggerate, 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 complainant] went in to see 

Detective Cassel four days later, okay, that’s time enough for those 
50

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 because 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 injuries] 

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 wanted 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 today, 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 line. 

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. Additionally, 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 remembered 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 Cassel: 

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 

that. 
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 and 

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, 

each 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 counsel, 

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 failure 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.] 1992, 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. 47.1. 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.