Opinion filed October 8, 2015



### In The 

# Eleventh Court of Appeals

__________ No
. 11
- 1 3
- 00 360
- CR

___ _ _______ 

### RUDY ALVARADO GARCIA , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 441st District Court Midland County, Texas Trial Court Cause No
. CR41780

M E M O R A N D U M O P I N I O N The trial court found Rudy Alvarado Garcia g uilty of felony driving while intoxicated and assessed hi s punishment at confinement for forty years

. Appellant raises three points of error for review. We affirm. At approximately 1:00 a.m. on the date of the offense, City of Midland Police Officer Bradley Barnes saw Appellant as he drove his vehicle on the center stripe of2

two lanes of traffic

. Officer Barnes turned on his overhead lights and stop ped Appellant. After Appellant stopped his vehicle, he got out

. When Officer Barnes approached Appe llant, he smelled alcohol on Appellant’s breath . Officer Barnes testified that Appellant used the v ehicle for balance and that Appellant had “a bit of a slur” when he spoke. Appellant admitted that he had consumed alcohol that night , and he refused to perform any field sobriety tests

. Officer Barnes arrested Appellant for driving while intoxicated. Ap pellant repeatedly asked Officer Barnes to charge him with public intoxication rather than driving while intoxicated

. Officer Barnes took Appellant to Midland Memorial Hospital so that blood could be draw n and analyzed to determine Appe llant’s blood alcoh ol content. Misty Coates, a nurse at Midland Memorial Hospital , drew Appellant’s blood and returned the sealed vials of Appellant’s blood to Officer Barnes. Officer Barnes took the blood samples to the police department evidence room , where the evidence

w as stored in a climate

- controlled container. Marissa Silva, a chemist with the Texas Department of Public Safety Laboratories in Midland, analyzed Appellant’s blood and found that Appellant’s b lood alcohol content was 0.205. Appellant elected to have a bench trial. At trial, the State called thr ee witnesses: Officer Barnes, Coates, and Silva. After the State rested, t he d efense also rested . The defense neither gave an opening statement nor presented any evidence

. T he trial court found Appellant guilty . D uring th e punishment phase of the trial , t he State presented evidence of three pr ior convictions for enhancement purposes : two previous DWI convictions and a sexual

- assault

- of

- a
- child conviction. Appellant’s counsel did not object to the admissibility of the prior DWI convictions

. However, Appellant’s counsel argued that the State did not prove that the sexual

assault enhancement was true because there was an inconsistency between the date3

of conviction shown in the judgment and the date alleged in the enhanc ement paragraph in the State’s n otice of enhancement. In three points of error , Appellant argues that his counsel provided ineffective assistance, that his due process rights were violated, and that the State made improper remarks in its closing arguments. In Appellant’s first point of error , he argues that his trial counsel provided ineffective assistance. The State points out that , under Texas Rule of Appellate Procedure 38.1, Appellant has waived this issue on appeal . Rule 38 .1 provides,

“ [t] he brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” T EX

. R

. A PP . P. 38.1 (i)

. The State argues that Appellant merely offered conclusory statements and failed to ci te authority for his argument. We agree. However, even if Appellant did not waive this argument under Rule 38.1, we still do not find that his trial counsel provided ineffective assistance

. In order to determine whether Appellant’s trial counsel rendere d ineffective assistance at trial,

w e must first determine whether A ppellant has shown that counsel’s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result wou ld have been different but for counsel ’ s errors. Strickland v. Washington , 466 U.S. 668 , 681 (1984); Hernandez v. State , 988 S.W.2d 770 , 770

– 71 (Tex. Crim. App. 1999); Hernandez v. State , 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). We must indulge a strong presumption that counsel’s conduct fell within the wide range of reasonabl e professional assistance, and A ppellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. St ate , 813 S.W.2d 503, 50 6

– 09 (Tex. Crim. App. 1991). Appellant is not entitled to perfect or

error
- free counsel. McFarland v. State , 845 S.W.2d 824, 843 (Tex. Crim. App.4

1992)

. Isolated instances of errors do not render counsel’s performance ineffective; ineffective assistance of counsel cannot be established by isolating one portion of trial counsel ’ s performance for examination. Id. We begin our anal ysis of Appellant’s ineffective

- assistance

- of

- counsel claim with his argument that his attorney’s failu re to give a closing argument at the guilt /innocence stage of Appellant’s trial constitute d ineffective assistance of counsel. Appellant’s counsel used his closing argument time to briefly state that the court heard the evidence and that he relied on the court’s judgment. Appellant argues that this amounted to no closing argument at all

. Several courts have analyzed the necessity that trial counsel give an opening statement and make a closing argument

. See , e.g. , Perkins v. State , No. 11

- 05

- 00088

- CR, 2007 WL 178234, at *2 (Tex. App.

–– Eastland J an. 25, 2007, no pet.) ( not designated for publication); Mayfield v. State , No. 04

- 02

- 00635

- CR, 2003 WL 22047148, at *4 (Tex. App.

–– San Antonio Sept. 3, 2003, pet. ref’d) ( mem. op., not designated for publication ); Thomas v. State , No. 06

- 01

- 00021

- CR, 2002 WL 171598, at *16 (Tex. App.

–– Texarkana Feb. 5, 2002, no pet.) ( not designated for publication). In e ach of these cases , the courts analyze d whether counsel’s failure to make

a n opening statement or to give a closing argument had a negative effect

. Perkins , 2007 WL 178234, at *2; Mayfield , 2003 WL 22047148, at *4; Thomas , 2002 WL 171598, at *16. It is clear from the reading of t hese cases that the record must “affirmatively” show that the outcome of the case would have been different if counsel had made an opening statement or closing argument. Perkins , 2007 WL 178234, at *2; Mayfield , 2003 WL 22047148, at *4; Thomas , 2002 WL 171598, at *16. Because Appellant failed to affirmatively show , and the record does not reflect, how his trial counsel’s failure to give a closing argument affected the outcome of5

t his case, we cannot say that his counsel provide d ineffective assistance. We overrule Appellant’s first point of error. In Appellant’s second point of erro r , he argues that the trial court violated his right to due process when it admitted evidence of a previous conviction for sexual assault of a child. A defendant is entitled to notice of a prior conviction that the State intends to use for enhancement. Brooks v. State , 957 S.W.2d 30, 33 (Tex. Crim. App. 1997)

. Although proper notice must be timely, it is not necessary to plead it in the indictment so long as the State gives notice “in some form” prior to trial. Id. at 34. It is unnecessary to allege prior convictions for enhancement of punishment with the same particularity that is required in charging the primary offense. See Freda v. State , 704 S.W.2d 41, 42 (Tex. Crim. App. 1986)

. As the State argues, Appellant’s argument is vague and referenc es “certain docume nts” that prejudiced his case. Appel lant did not provide any specific arguments or authority for his contention. Consequently, we agree with the State that Appellant has waived the issue on appeal. See T EX

. R. A PP . P. 38.1(i)

. And, even if he did not waive the issue, we hold that the notice provided by the State as to enhanc ement allegations was sufficient and that the trial court did not violate Appellant’s due process rights when it admitted evidence of the prior conviction

. We overrule Appellant’s second point of error. Finally, Appellant argues that the State made improper remarks in its closing argument. Closing arguments should be limited to four categories of information : (1) a summary of the evidence, (2) reasonable deduct ions from the evidence admitted, (3) response to arg uments made by opposing counsel, and (4) a plea for law enforcement. Cantu v. State , 842 S.W.2d 667, 690 (Tex. Crim. App. 1992). Appellant’s counsel did not object to any remarks made by the State throughout the State’s closing arguments and does not pre sent a fundamental error argument to this6

court

. Because Appellant did not object to the statements made by the State at trial, he has waived this argument for appellate review. See T EX

. R. A PP . P. 33.1. We overrule Appellant’s third point of error. We affirm the judgment of the trial court.

JIM R

. WRIGHT CHIEF JUSTICE

October 8 , 2015 Do not publish. See T EX

. R. A PP

. P . 47.2(b). Panel consists of: Wright, C.J., W ill son , J ., and Bailey, J

.