Opinion filed October 8, 2015

In The

Eleventh Court of Appeals 

__________

No. 11-13-00360-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 guilty of felony driving while 

intoxicated and assessed his 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 of 
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two lanes of traffic. Officer Barnes turned on his overhead lights and stopped

Appellant. After Appellant stopped his vehicle, he got out. When Officer Barnes 

approached Appellant, he smelled alcohol on Appellant’s breath. Officer Barnes 

testified that Appellant used the vehicle 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.

Appellant 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 drawn and analyzed to determine 

Appellant’s blood alcohol 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 

was 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 blood alcohol content was 0.205.

Appellant elected to have a bench trial. At trial, the State called three 

witnesses: Officer Barnes, Coates, and Silva. After the State rested, the defense also 

rested. The defense neither gave an opening statement nor presented any evidence.

The trial court found Appellant guilty. During the punishment phase of the 

trial, the State presented evidence of three prior 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 sexualassault enhancement was true because there was an inconsistency between the date 
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of conviction shown in the judgment and the date alleged in the enhancement 

paragraph in the State’s notice 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.” TEX. R. APP. P. 38.1(i). 

The State argues that Appellant merely offered conclusory statements and failed to 

cite 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 rendered ineffective assistance at trial, 

we must first determine whether Appellant 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 would 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 reasonable professional assistance, 

and Appellant must overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy. Stafford v. State, 813 

S.W.2d 503, 506–09 (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. 
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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 analysis of Appellant’s ineffective-assistance-of-counsel claim 

with his argument that his attorney’s failure to give a closing argument at the 

guilt/innocence stage of Appellant’s trial constituted 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 Jan. 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 each of these cases, the courts analyzed whether counsel’s failure to make 

an 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 these 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 of 
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this case, we cannot say that his counsel provided ineffective assistance. We 

overrule Appellant’s first point of error. 

In Appellant’s second point of error, 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 references “certain documents” that 

prejudiced his case. Appellant 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 TEX. R. APP. P. 38.1(i). And, even if he did not waive the 

issue, we hold that the notice provided by the State as to enhancement 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 deductions from the evidence 

admitted, (3) response to arguments 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 present a fundamental error argument to this 
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court. Because Appellant did not object to the statements made by the State at trial, 

he has waived this argument for appellate review. See TEX. R. APP. 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 TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.