PD – 1652-14

IN THE 

COURT OF CRIMINAL APPEALS 

OF TEXAS 

GARY PARKER 

PETITIONER 

V.

THE STATE OF TEXAS 

RESPONDENT 

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 1/16/2015 4:13:55 PM

Accepted 1/16/2015 4:20:36 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

INDEX OF AUTHORITIES------------------------------------------------------ 5

CERTIFICATE OF PARTIES AND COUNSEL-----------------------------2

STATEMENT REGARDING ORAL ARGUMENT------------------------- 6

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

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

GROUNDS FOR REVIEW ----------------------------------------------------- 7

GROUND ONE PRESENTED FOR REVIEW------------------------------8

FOR THE ADMISSIBILITY OF NEWLY DISCOVERED EVIDENCE, 

IS THE THIRD PRONG OF THE KEETER TEST MEANT TO 

STRICTLY AND NARROWLY DENY ANY IMPEACHABLE 

EVIDENCE, EVEN IF THE NEW EVIDENCE EXONERATES THE 

APPELLANT AND IS MATERIAL AND FAVORABLE TO THE 

ACCUSED UNDER THE STATUTE? (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)-------------------------7

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------------14

GROUND TWO PRESENTED FOR REVIEW-------------------------15
4

AS AN EXCEPTION TO THE RULE, A PROSECUTOR MAY 

VOUCH FOR THE CREDIBILITY OF A WITNESS ONLY IN A 

DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, AND 

THE RULE DOES NOT INVITE THE IMPROPER BOLSTERING OF 

THE ENTIRE CAST OF THE STATE’S CASE-IN-CHIEF, WITH THE 

PROSECUTOR IMPOSING 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)------------------------15

PRAYER --------------------------------------------------------------------------21

CERTIFICATE OF SERVICE ------------------------------------------------22

CERTIFICATE OF COMPLIANCE------------------------------------------22

APPENDIX 

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

INDEX OF AUTHORITIES

Strickland v. Washington. 466 U.S. 668, 687 (1984)-------------------21

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)---------18

Hammond v. State, 799 S.W.2d 741 (Tex. Crim. App. 1990) 

cert. denied 111 S.Ct 2912 (1991)----------------------------------20

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

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)--19

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)------18

STATUTES

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

Texas Penal Code, Section 22.01 -------------------------------------------5

Tex. R. App. P. 68.2(a)----------------------------------------------------------5
6

TEX.R.APP.P. 66.3(c)-----------------------------------------------------------6

Tex.R.App.P.66.3(f).------------------------------------------------------------15

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is 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. 
7

An extension of time to file this Petition for Discretionary 

Review was granted and this petition will be timely filed if done on or 

before January 14, 2014. See Tex. R. App. P. 68.2(a).

GROUNDS FOR REVIEW

GROUND ONE FOR REVIEW

FOR THE ADMISSIBILITY OF NEWLY DISCOVERED EVIDENCE, 

IS THE THIRD PRONG OF THE KEETER TEST MEANT TO 

STRICTLY AND NARROWLY DENY ANY IMPEACHABLE 

EVIDENCE, EVEN IF THE NEW EVIDENCE EXONERATES THE 

APPELLANT AND IS MATERIAL AND FAVORABLE TO THE 

ACCUSED UNDER THE STATUTE? 

(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

AS AN EXCEPTION TO THE RULE, A PROSECUTOR MAY 

VOUCH FOR THE CREDIBILITY OF A WITNESS ONLY IN A 
8

DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, AND 

THE RULE DOES NOT INVITE THE IMPROPER BOLSTERING OF 

THE ENTIRE CAST OF THE STATE’S CASE-IN-CHIEF, WITH THE 

PROSECUTOR IMPOSING 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. TRAP 66.3

ARGUMENT

GROUND ONE FOR REVIEW

FOR THE ADMISSIBILITY OF NEWLY DISCOVERED EVIDENCE, 

IS THE THIRD PRONG OF THE KEETER TEST MEANT TO 

STRICTLY AND NARROWLY DENY ANY IMPEACHABLE 

EVIDENCE, EVEN IF THE NEW EVIDENCE EXONERATES THE 

APPELLANT AND IS MATERIAL AND FAVORABLE TO THE 

ACCUSED UNDER THE STATUTE?

(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 conclusion 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. 

Evidence Presented at the Motion for New Trial Hearing
9

The complainant and Appellant Parker have been in a 

relationship on and off for the past 27 years and were legally married 

at one time. They are heavy drinkers and have both had a volatile 

past together. Appellant’s verdict was based solely on the testimony 

of the complainant who testified at trial that she was assaulted by 

Parker and her injuries were so bad 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 

send her home because of her injuries. RR v. 5, p. 16. He directly 
10

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. 
11

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 crucial elements of the case, 

enough to doubt the integrity of the jury’s verdict, and a new trial 

should have been granted.

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 

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 
12

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. Keeter v. State, 

The ruling does not automatically excluded impeaching evidence as a 

hard and fast rule, but only if it is merely impeachment evidence that 

serves as material evidence favorable to the accused. 

The court of appeals relied on Carsner1to deny Appellant’s 

relief, holding that the since “newly discovered evidence is based 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). It is not the Carsner test, but the Keeter test 

that dictates the requirements for a new trial. Keeter v. State, 74 

S.W.3d at 37. In Carsner, this Court merely sent the case back to the 

court of appeals for failing to address every issue necessary to the 

 

1

“The new evidence must be admissible and must not merely be impeaching, 

among other things.” Carsner, 2014 WL 4722762. 
13

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, it is inherently impeachable evidence as well. In 

this case, the newly discovered evidence directly refutes a critical 

element in the case and questions the integrity of verdict. The new 

evidence tended to exonerate the 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 

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. 
14

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, and 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 is shown. 

The 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 

lied before in a previous case against the appellant 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 
15

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 an 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”, and the appellant’s newly discovered evidence 

tending to prove his innocence should be adequate for a new 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. In addition, the legal ramifications from the newly discovered 

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 

 

 

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

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 tending to prove the 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 fairmindedness. 

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).

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 
17

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

AS AN EXCEPTION TO THE RULE, A PROSECUTOR MAY

VOUCH FOR THE CREDIBILITY OF A WITNESS ONLY IN A 

DIRECT RESPONSE TO AN ARGUMENT BY THE DEFENSE, AND 

THE RULE DOES NOT INVITE THE IMPROPER BOLSTERING OF 

THE ENTIRE CAST OF THE STATE’S CASE-IN-CHIEF, WITH THE

PROSECUTOR IMPOSING 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).

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 
18

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. 

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 
19

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. 

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 
20

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 

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 
21

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

1988, pet. ref’d)

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 a free-for-all bolstering 

of the state’s entire cast of witnesses in its case-in-chief. In this case, 

the prosecutor did more than just vouch for the credibility of a witness 

in her argument. The prosecutor bolstered the testimony of every 

witness in the state’s case-in-chief with her personal beliefs, 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 
22

“fairly compelling”. In fact, in Appellant’s case, the complainant’s 

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 her 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 reveals that Appellant’s conviction was based on 

false testimony that the state capitalized on during final argument. 

Since the victim’s credibility was crucial to the case, the error was not 
23

harmless, and the improper jury argument requires a 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 14th day of January

2015, along with 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 

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. 2 
26

22.01(b)(2)(B) (West, Westlaw through 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 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, 3 
27
28

(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 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 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 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 
29

evidence proved the complainant lied on the stand, specifically about not going to 

work the day following the 4 
30

incident and about the seriousness of her injuries. 

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.2 

2 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 

“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 
31

proof that such witness is unworthy of belief or credit.”). So to the extent Parker’s 

argument for the admission of 5 
32

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 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 also TEX. CRIM. PROC. CODE ANN. art. 40.001, we still cannot 
33

conclude that this new evidence, even if true, would probably bring about a different 

result in a new trial. See Carsner, 6 
34

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? 

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 7 
35
36

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. 

. . . . 

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 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. 
37

Q. I'm holding up State's Exhibit 2, do you want to indicate on here for the jury where? 

8 
38

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 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; 

9 
39
40

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. 

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.

A. Applicable Law and Standard of Review 

“If scientific, technical, or other specialized knowledge will assist the trier of fact to 10 
41
42

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 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. 11 
43

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 

• 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 12 
44

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 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 
45

appears to argue that Luckey's fingerprint testimony was neither reliable nor relevant. 

See Vela, 13 
46

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 trial to the “known print” and not to the fingerprints in each of 

judgments from the pen packs.4 

4 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: 
47

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 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 14 
48

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 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 
49

By his fourth issue, Parker contends that his trial counsel provided ineffective 15 
50

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 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 two-pronged test 

articulated in 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 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 16 
51
52

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 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 17 
53
54

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 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, 

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. 
55

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] 18 
56

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.) 

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.[5] 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." 

5 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. 

Q. We can't get into anything that she specifically told you. 

A. I don't remember seeing any injuries on her. 

Q. Okay. 
57

(Emphasis added.) 

C. Discussion 

Now on appeal, Parker alleges that counsel’s representation was ineffective 19 
58

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, 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. 20 
59

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.