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 COU RT 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 CLERK2 CERTIFICATE OF PARTIES AND COUNSEL A complete list of the names and addresses of all parties to the trial court’s final judgment and their counsel is as follows:
Appellant Gary Parker Last Known Address from Texas De partment 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 virgi niak.burt@gmail.com Telephone: 361

- 877

- 20483 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 REV IEW

----------------------- ------------------------------ 7 GROUND ONE PRESENTED FOR R EVIEW

------------------------------ 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 A ND 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

-------------------- -- - -- 154

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, WI TH 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 t he 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, 20145 INDEX OF AUTHORITIES Strickland v. Washington . 466 U.S. 668, 687 (1984)

------------------- 21 STATE CASES COURT OF CRIM INAL 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 Sepulved

a 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)

--------------------------------------------------------- - 56

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 t he 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 f elonies 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 a ffirmed 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 d one 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 EVIDEN CE, 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. T he Court of Appeals decision was in direct conflict with decisions of the Cou rt 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 A8

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, WI TH THE PROSECUTOR IMPOSING HER PERSONAL BELIEFS THAT ALL OF HER WITNESSE S 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 MEAN T 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 P resented at the Motion for New Trial Hearing9

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. A ppellant’s verdict was based solely on t he 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 be cause 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. Howe ver, 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 directly10

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 al so 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 th e 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 favora ble to the accused has been discovered since trial.” Tex. Code Crim. Proc. Ann. Art. 40.001. (West, Westlaw through 2013 3d C.S.). The court s will grant a new trial based on newly discovered 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 new12

evidence is admissible and is not merely cumu lative, 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 Carsner 1 to deny Appellant’s relief, holding that the since “newly discovered evidence is based on using this evidence solely to impeach the c omplainant, 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

. I n Carsner , this Court merely sent the case back to the court of appeals for f ailing 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 impeach able . By its’ v ery 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 refute s a critical element in the case and question s 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 B rief, p. 27. Th e 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 dec iding this case through the key hole of a door and not grasping th e larger legal significance of the new evidence. The newly discovered evidence established the appellant’s innocence and cooberated his defense, which he 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 dismis sed 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 bee n 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 discovered15

evi dence 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 direc tly 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 a ppellant’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, W estlaw through 2013 3d C.S.); s ee also Keeter v. State , 74 S.W.3d at 37; see also Opinion p. 2. In addition, t he 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). Opin ion, 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 un sound legal reasoning and lack of judi cial 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 Appell ant’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

acc used 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 impeachabl e”, but had a direct impact on the jury’s verdict. The actions of the court17

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 gr anting 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 I MPROPER BOLSTERING OF THE ENTIRE CAST OF T HE STATE’S CASE - IN - CHIEF , WITH THE PROSECUTOR IMPOSING HER PERSONAL BELIEF S THAT ALL OF HER WITNESS ES WERE CREDIBILE AND TRUTHFUL. (RR v. 3, p. 73

- 82) REASON FOR REVIEW
A. The Court of Appeals decision was in di rect 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 revers ible error, and trial counsel failed to make an objection each time the state improperly bolstered the witnesses.
T he State only called three witnesses in the case

- in

- chief: the arresting officer, the investigati ng detective and the victim. During closing argument, the prosecutor improperly comment ed on the18

veracity of every witness, including the complainant. The prosecutor improperly attach ed her personal belief to the truthfulness of each witness, and the effect was to unlawfully bolster the credibilit y 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 h is 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 sh e 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 imprope rly injected19

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

. Thomas v. S tate , 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 wit ness 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 belief s on the jury regarding the veracity of every witness in the state’s case. It is one thing to allow a prosecutor to vouch for a witness’s credibility in response to a direct negative attack on th eir20

truthfulness. However, there is no legal justifi cation for the prosecutor to bolster every witness in her case

- in

- chief with her personal opinion s and beliefs regarding all of the witness es credibility. This distinction can be made from the cases rel ied on by the state, wherein the prosecutor was able to vouch for the credibility of a particular witness without imposing t he i r personal opinions and beliefs on the jurors.
In Appellant’s case the 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 impr oper bolstering was especially harmful to A ppellant because his conviction was based solely on the testimony of the complainant. See Flores v. State , 778 S.W.2d 526 (Tex. App. Corpus Christi, 1989)( The case was reversed for improper argument by the
prose cutor 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 also21

Sepulveda v. State, 751 S.W.2d 667 ( T ex. 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 n ot allow for a free

- for

- all bolstering of the state’s entire cast of witnesses in its case

- in

- chief

. I n 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

w itness in the state’s case

- in

- chief with her personal beliefs, which was not a proper re ply to any arguments made by the defense.
A ppellant received ineffective assistance of counsel where counsel failed to object to the prosecutor’s expressing his op inion of each witness’s credibility. The prosecutor’s argument , at the very least, would have require d an instruction to disregard. Hammond v. State , 799 S.W.2d 741 (Tex. Crim. App. 1990) cert. denied 111 S.Ct 2912 (1991)(E rror was harmless, and the conv iction 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 means22

“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 ag ainst him in the past.
T he prosecutor’s imposit ion 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 o f 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 fo r 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 Co nstitution). The end result reveal s that A ppellant’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 not23

harmless, and the improper jury ar gument 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 r eview of the decision of the Court of Appeals herei n 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 PARKER24 CERTIFICATE OF SERVICE I, Virginia K. Burt, d o hereby certify that the Petition for Discretionary Review was e - filed on this the 14th day of J anuary 201 5 , along wit h copies mailed regular mail, to the clerk of the Texas Court of Criminal Appeals and a copy delivered to the Nueces County District Atto rney’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 A ppellant, 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, 98 9

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

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

v. THE 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 circ ulation, a third

- degree felony. 1 See T EX . P ENAL C ODE A NN . §

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

re asons for it. See T EX . R. A PP . P. 47.4. 226

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. M OTION FOR N EW T RIAL 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.” T EX . C ODE C RIM . P ROC . A NN . 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 four

pronged 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, 32728

(4) the new evidence is probably true and will probably brin g 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 cauti on.” 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 di scretion, 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, th e 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 followi ng 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 discovered29

evidence proved the complainant lied on the stand, specifically about not going to work the day following the 430

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 b y 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 a lso 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 o f this case. It was not evidence that Parker discovered since trial. See T EX . C RIM . P ROC . C ODE A NN . 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 Prong 3 “The rule is we ll 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 t hird 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 20 04, 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 b anc) (“Impeachment of a witness means adducing31

proof that such witness is unworthy of belief or credit.”). So to the extent Parker’s argument for the admission of 532

the newly discovered evidence is based on using this evidence solely to impeach the compl ainant, 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 T EX . C RIM . P ROC . C ODE A NN . 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 T EX . C RIM . P ROC . C ODE A NN . art. 40.001. Addressing this fourth prong, Parker contends that the new evidence has been shown pr obably 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 t he 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 6 13; see also T EX . C RIM . P ROC . C ODE A NN . art. 40.001, we still cannot33

conclude that this new evidence, even if true, would probably bring about a different result in a new trial. See Carsner , 634

2014 WL 4722762, at *2. The complainant testified at trial t hat 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. C oming 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 stuf

f 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 sh aking 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 73536

hiccupping. It was just like probably gaping (sic) for air but real ly 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, a nd 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 a bout 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 ri ght 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? 838

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 ad mitted 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 o f 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 T EX . P EN . C ODE A NN . § 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 d ate 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 wi th great caution, see Drew , 743 S.W.2d at 225; 93940

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. Q UALIFIED F INGERPRINT E XPERT AT THE P UNISHMENT P HASE 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 convic tions 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 Iden tification 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 T E X . P ENAL C ODE A NN

. § 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 Pa rker. 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 104142

understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, exper ience, training, or education may testify thereto in the form of an opinion or otherwise.” T EX . R. E VID . 702. Thus, before admitting expert testimony under [r]ule 702, the trial court must be satisfied that three conditions are met: (1) the witness qualif ies 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 decid ing 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 suff icient 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 T EX . R. E VID . 702; Harrison v. State , No. 2

- 02

- 339

- CR, 200 3 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. 1143

B. Qualifi cation 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 Co unty 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, wo rking 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 tr aining 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 fing erprint. 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 1244

fingerprints, Luckey responded, First of a ll 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 tha t 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 matc hed 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 T EX . R. E VID . 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 concedin g 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 nonetheless45

appears to argue that Lu ckey's fingerprint testimony was neither reliable nor relevant. See Vela , 1346

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 f ollowing 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 t he context of the request, objection, or motion.
T EX . R. A PP . 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. T EX . R. A PP . 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 f rom 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 rulin g, either express or 1448

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
T EX . R. A PP . 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. I MPROPER B OLSTERING D URING THE P ROSECUTOR ’ S C LOSING A RGUMENT

AT THE G UILT

/I NNOCENCE P HASE 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 pro secutor 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 T EX . R. A PP . 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 noth ing for our review. We overrule Parker’s third issue. IV. I NEFFECTIVE A SSISTANCE OF C OUNSEL49

By his fourth issue, Parker contends that his trial counsel provided ineffective 1550

assistance when he failed to object to the prosecutor’s closing argument reg arding 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 S tate. 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, 48 3 (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, an d 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 u nder 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 165152

guaranteed b y 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 def endant 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 , 33 0 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 exag gerate, 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, testif ied 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 t hings up.” He argued that “hammering on 175354

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 sa ying, “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, t he 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 did n'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 wha t 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 Defendan t 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 ] 1856

has absolutely nothing to gain from coming in here and saying tha t, 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 wa nt 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:
N ow, 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 C assel 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 occurre d 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 1958

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
t he 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) “[Dete ctive 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 c omments 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 responsi ve 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. Cri m. App. 2000); see also T EX . R. A PP . P. 47.1. We overrule Parker’s fourth issue. 2059

V. C ONCLUSION We affirm the judgment of the trial court. NELDA V. RODRIGUEZ Justice Do not publish.
T EX . R. A PP . P. 47.2(b). Delivered and filed the 13th day of No vember, 2014.