Affirmed and Memorandum Opinion filed November 1, 2012.

In The

Fourteenth Court of Appeals

NO. 14-11-00820-CR

DERRICK DESHAWN BRYANT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 10CR0762

M E M O R A N D U M O P I N I O N

Appellant Derrick Deshawn Bryant was convicted of aggravated robbery. In two 

issues, he contends that the prosecutor engaged in improper argument, and that he was 

denied the effective assistance of trial counsel. We overrule both issues and affirm the 

judgment of the trial court.

BACKGROUND

In November 2009, the complainant, Kenneth Townsend, was attacked at an 

empty car wash in La Marque, Texas, by two men demanding his wallet. Townsend, a 

retired army pilot, attempted to fight off both of his attackers. The struggle lasted until 
2

the shorter of the two robbers struck Townsend over the head with a handgun, knocking 

him to his knees. Townsend was then forced to the pavement, where both attackers went 

through his pockets, pulled out a billfold, and ran away. Townsend tried to pursue them 

in his vehicle, but he lost sight of the men after they ran through a fence. Townsend 

eventually abandoned the chase and dialed 911.

When police arrived at the scene, Townsend described his attackers as young 

African-American males. The shorter male was light-skinned, standing at five feet eight 

inches tall, and weighing between 155 and 160 pounds. The taller male had a darker 

complexion and traces of facial hair. Without specifying the attacker, Townsend also said 

that one man had a shirt with horizontal red and orange stripes.

Less than an hour after the robbery, Townsend’s stolen credit card was used at a 

nearby convenience store. Authorities rushed to the store and obtained surveillance 

footage of two African-American males using the card. Neither male matched the 

descriptions provided by Townsend. When shown still photographs of the suspects, 

Townsend said that he did not recognize them as his attackers.

Two weeks after the robbery, while patrolling the area near the car wash, an 

investigating detective spotted an individual who matched the description of the shorter 

robber. The individual made eye contact with the detective and displayed obvious signs 

of tension in his movements. The detective followed the man as he walked to a nearby 

apartment complex, losing sight of him only after the man entered one of the buildings. 

Authorities spoke with the manager of the apartment complex, who identified appellant 

as a tenant of that particular building. The detective confirmed at trial that appellant was 

the man he had been tracking into the complex.

With appellant named as a possible suspect, the investigating detective used a 

database containing appellant’s picture to compile two photo spreads, each depicting six

similarly featured males. Appellant’s picture appeared in only a single photo spread. 

When both photo spreads were given to him, Townsend instantly identified appellant’s 

picture as the shorter man who had robbed him.
3

The detective tried to question appellant after Townsend’s positive identification, 

but all attempts to contact him proved unsuccessful. At one point, the detective received 

an anonymous voice message naming another person, Terry McClain, as the shorter man 

involved in the robbery. The anonymous informant also stated that McClain lived in the 

same building as appellant, but in a different apartment. The detective investigated the 

lead, but could not find any photo or information regarding McClain. Believing he had 

already identified the more aggressive robber involved in the incident, the detective 

decided to refer the case to the district attorney’s office and proceed with other 

investigative priorities.

At trial, appellant tried to direct responsibility for the robbery onto one of his 

neighbors. Appellant called to the stand the property manager for his apartment complex, 

who testified that a family of known troublemakers lived in the apartment next door to 

him. The family’s rental application showed members of two households, the McClains 

and the Campbells, but Terry McClain was not listed among them individually.

Appellant’s private investigator also testified as a witness. Based on his 

independent investigation, the investigator said that he could identify three males, 

including Terry McClain, who may have had some connection to appellant or the 

robbery. However, the investigator said that McClain could not be implicated in the 

crime because he was incarcerated on the date of the robbery.

Appellant also called Stephen Smith, an expert witness and psychology professor 

specializing in the subject of memory and eyewitness identifications. Smith testified that 

several factors may have compromised Townsend’s eyewitness identification of 

appellant. Relying on past studies, Smith opined that Townsend may have mistakenly 

identified appellant because the two men are of different races, and cross-racial 

identifications tend to be less reliable. Smith also noted that the time delay may have 

made Townsend’s identification less accurate; in this case, photo spreads were not 

presented to Townsend until sixteen days after the robbery. Finally, Smith testified that 

Townsend’s memory may have been compromised by his advanced age of seventy-one 
4

and by the level of anxiety he experienced during the attack. Despite all of these factors, 

Smith agreed that the photo spreads compiled by police were not biased or tainted. If 

anything, he said, the photo spreads suggested another individual whom Townsend did 

not select.

Appellant testified in his own defense, denying any sort of involvement in the 

robbery. He also claimed that one person captured in the surveillance photos at the 

convenience store resembled a separate neighbor in the next door apartment, a member of 

the Campbell family. The jury rejected appellant’s testimony and sentenced him to fifteen 

years’ imprisonment. Appellant did not file a motion for new trial. This appeal followed.

CLOSING ARGUMENT

In his first issue, appellant contends that the prosecutor engaged in improper jury 

argument. His complaint focuses on a passage from closing arguments in which the 

prosecutor attempted to dissuade the jury from accepting the testimony of appellant’s 

expert witness. The particular discussion focused on the subject of photo spreads. At trial, 

appellant’s expert had testified that, according to some studies, in-person line ups could 

be more suggestive, and therefore less reliable, than photo spreads presented on paper.

The expert was unconvinced that all studies supported this finding, and he testified that 

guidelines had been prepared by the U.S. Department of Justice to minimize the 

suggestiveness of the entire investigative process. In her closing argument, the prosecutor 

recounted this testimony in a different way, stating that the Department of Justice had 

recommended the use of photo spreads over in-person line ups. The prosecutor’s 

argument, and the objection it triggered, proceeded as follows:

STATE: [The expert] testified about the photo line ups and even noted 

that the Department of Justice prefers you doing photo line 

ups instead of a live line up instead of bringing a person in 

front of the -- the Department of Justice says --

DEFENSE: Objection, Your Honor, there’s no evidence of that in the 

record. I object to the prosecutor arguing outside the record.
5

COURT: All right. The lawyers are going to disagree about what you 

saw and heard but you remember what you saw and heard, so 

go by that.

The prosecutor’s argument continued with other aspects of the expert’s testimony, none 

of which revisited the issue of preferences from the Department of Justice.

Jury argument is permissible if it constitutes a summation of the evidence, a 

reasonable deduction from the evidence, an answer to argument of opposing counsel, or a 

plea for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).

Appellant contends that he was harmed because the prosecutor’s mischaracterization of 

evidence falls into none of these categories.

Appellant failed to preserve error. To complain of improper jury argument, a 

defendant must generally object to the argument and pursue his objection to an adverse 

ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996); Nadal v. State, 348 

S.W.3d 304, 319 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). If the trial court 

sustains the objection, the defendant must also request an instruction to disregard and 

move for a mistrial. Cook v. State, 858 S.W.2d 467, 473 (Tex. Crim. App. 1993); Campos 

v. State, 946 S.W.2d 414, 417 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Here, 

appellant objected to the prosecutor’s argument, but the trial court did not make a ruling 

on the objection, issuing a cautionary instruction instead. Cf. Washington v. State, 127 

S.W.3d 111, 116 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (holding that trial 

court’s instruction to prosecutor to “stay within the record” following objection to 

improper argument was not an adverse ruling). Because appellant did not pursue his 

objection to an adverse ruling, his complaint is forfeited.

Even if error had been preserved, we would still conclude that the error was not 

reversible. When argument is improper, it will not result in reversal unless, in light of the 

record as a whole, it is extreme or manifestly improper, violative of a mandatory statute, 

or injects new facts harmful to the accused into the trial proceeding. Wesbrook v. State, 

29 S.W.3d 103, 115 (Tex. Crim. App. 2000); Todd v. State, 598 S.W.2d 286, 297 (Tex. 

Crim. App. [Panel Op.] 1980).
6

Appellant does not contend that the prosecutor’s argument was extreme or in 

violation of a statute, but he does argue that he was harmed by the injection of new facts. 

For his harm analysis, appellant cites heavily to Denton v. State, 946 S.W.2d 607 (Tex. 

App.—Fort Worth 1997, pet. ref’d), a case involving another instance of improper jury 

argument. Denton is distinguishable though, because it relied on former Rule 81(b)(2), 

which instructed that error should be reviewed under the same standard for constitutional 

error, even though an error may not be constitutional in magnitude. See id. at 610; see 

also VanNortrick v. State, 227 S.W.3d 706, 709–10 (Tex. Crim. App. 2007) (discussing 

Rule 81(b)(2) before the adoption of Rule 44.2 of the Texas Rules of Appellate 

Procedure). The Denton Court also conducted its harm analysis using factors that the 

court of criminal appeals has recently disavowed. See Denton, 946 S.W.2d at 610–12 

(applying factors announced in Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989), 

overruled in part by Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011)). For 

these reasons, we do not believe Denton is applicable here.

Appellant also cites to Rule 44.2(a), the current standard for reviewing harm in 

cases of constitutional error. But appellant does not explain what constitutional error, if 

any, was committed when the trial court failed to sustain his objection. Under the facts of 

this case, we perceive that any error would have been nonconstitutional in nature. Cf. 

Brown, 270 S.W.3d at 572 (discerning nonconstitutional error where trial court overruled 

objection to prosecutor arguing facts outside the record). Nonconstitutional error that 

does not affect a defendant’s substantial rights must be disregarded. Tex. R. App. P. 

44.2(b). To determine whether appellant’s substantial rights were affected, we balance 

the severity of the misconduct, the measures adopted to cure the misconduct, and the 

certainty of conviction absent the misconduct. Threadgill v. State, 146 S.W.3d 654, 666–

67 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 

1998); Watts v. State, 371 S.W.3d 448, 459 (Tex. App.—Houston [14th Dist.] 2012, no 

pet.).
7

When considering the severity of the prosecutor’s misconduct, we examine the 

prejudicial effect of her remarks, assessing whether there was a willful and calculated 

effort to deprive appellant of a fair and impartial trial. Mosley, 983 S.W.2d at 259; Cantu 

v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997). Viewing the record as a whole, 

we cannot ascertain any such prejudice. The prosecutor’s misstatement pertained to a 

minor issue in the case. The contested fact at trial was the complainant’s eyewitness 

identification, not the merits of using photo spreads over in-person line ups, and certainly 

not the preferences of the Department of Justice as they relate to such identification 

techniques. Moreover, the prosecutor’s misstatement was an isolated comment in her 

closing argument, one that was never once revisited. We cannot say that the argument 

was so prejudicial as to create an undue risk that the jury might have reached its verdict 

on an improper basis.

Under the next factor, we consider the efficacy of any cautionary instruction from 

the trial judge. Mosley, 983 S.W.2d at 259. In this case, the trial judge stated that the 

advocates had disagreed on the state of the evidence. In the face of this disagreement, the 

judge advised the jury to base its decision on what was seen and heard at trial. Although 

no instruction to disregard was given, the record does demonstrate that some measure 

was adopted to cure any misconduct on the part of the prosecutor. 

Finally, under the third factor, we consider the strength of the evidence supporting 

the conviction. Id. Appellant’s conviction depended largely on the reliability of 

Townsend’s identification. Appellant’s expert witness doubted his identification for 

several reasons. As mentioned above, the expert testified that cross-racial identifications 

can be unreliable, there was a prolonged delay before Townsend was first shown the 

photo spreads, and Townsend’s memory may have been compromised by his age and 

anxiety.

The State disputed each basis for the expert’s opinions. The evidence showed that 

the robbery was committed on a bright and sunny day, when visibility was ideal. Officers 

testified that Townsend was able to provide many details relating to the crime shortly 
8

after its occurrence. Based on those details, police were able to compile a photo spread 

containing a picture of appellant, who fully matched the description provided for one of 

the robbers. Townsend instantly identified appellant as his attacker when he was shown 

the photo spreads. Townsend also testified that he was raised among racial minorities, 

which might support the reliability of his cross-racial identification. Townsend also 

testified that his military training sharpened his ability to notice details, which might 

diminish any suggestion that his anxiety levels compromised his memory. All of this 

testimony goes to the weight of the evidence, which we, as an appellate court, are illequipped to review. We would note, however, that appellant’s own expert also added that 

the photo spreads used in this case were not biased against appellant.

After considering all three factors and the record as a whole, we conclude that any 

error relating to the prosecutor’s improper argument was not so harmful as to affect 

appellant’s substantial rights. Appellant’s first issue is overruled.

ASSISTANCE OF COUNSEL

In his second issue, appellant argues that he was denied the effective assistance of 

counsel because counsel made an untimely Batson challenge and because counsel elicited 

damning testimony from one of his own witnesses. See Batson v. Kentucky, 476 U.S. 79 

(1986) (holding that Equal Protection Clause forbids prosecutor from challenging 

potential jurors solely on account of their race). We examine such claims under the 

standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, appellant must prove that his trial counsel’s representation was 

deficient, and that the deficient performance was so serious that it deprived him of a fair 

trial. Id. at 687. Counsel’s representation is deficient if it falls below an objective 

standard of reasonableness. Id. at 688. This deficiency will deprive appellant of a fair trial 

only when counsel’s performance prejudices appellant’s defense. Id. at 691–92. To 

demonstrate prejudice, appellant must show a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. 

Id. at 694. Failure to make the required showing of either deficient performance or 
9

sufficient prejudice defeats the claim of ineffectiveness. Id. at 697. This test is applied to 

claims arising under both the United States and Texas Constitutions. See Hernandez v. 

State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).

As a reviewing court, we look to the totality of the representation and to the 

circumstances of the case, not to isolated instances in the record reflecting errors of 

omission or commission. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 

2006). Moreover, we consider the adequacy of assistance as viewed at the time of trial, 

rather than through hindsight. Id. at 482. Our review of defense counsel’s performance is 

highly deferential, beginning with the strong presumption that the attorney’s actions were 

reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 

S.W.2d 768, 771 (Tex. Crim. App. 1994). Accordingly, we do not speculate as to the 

reasons supporting counsel’s behavior. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. 

App. 2002). Any allegation of ineffectiveness must be firmly founded in the record, and 

the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 

9 S.W.3d 808, 813 (Tex. Crim. App. 1999). When the record is silent as to trial counsel’s 

strategy, we will not conclude that appellant received ineffective assistance unless the 

challenged conduct was “so outrageous that no competent attorney would have engaged 

in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

A. Batson Challenge

Appellant argues that counsel’s performance was constitutionally deficient 

because counsel failed to timely lodge his Batson challenge. For a Batson challenge to be 

timely, it must be raised after the parties deliver their lists of strikes and before the court 

impanels the jury. Tex. Code Crim. Proc. art. 35.261; Cooper v. State, 791 S.W.2d 80, 81 

(Tex. Crim. App. 1990). A jury is considered impaneled when the members of the jury 

have been both selected and sworn. Hill v. State, 827 S.W.2d 860, 864 (Tex. Crim. App. 

1992). In this case, trial counsel first raised the notion of a Batson challenge after the jury 

had been sworn. Assuming counsel’s belatedness amounts to constitutionally deficient 

performance, appellant still must demonstrate by a preponderance of the evidence that a 
10

different result would have occurred but for his counsel’s ineffective assistance. This he 

has not done.

In his brief, appellant urges a position advanced in the dissenting opinion of 

Batiste v. State, which argued that “prejudice is certain” with Batson violations. 888 

S.W.2d 9, 20 (Tex. Crim. App. 1994) (Baird, J., dissenting). But in the majority opinion, 

the court of criminal appeals determined that prejudice could not be presumed under a 

Strickland analysis where a defendant has claimed that counsel was ineffective for 

untimely making a Batson challenge. See id. at 17 (majority opinion) (concluding that 

court of appeals did not err by subjecting appellant’s claim to second prong of 

Strickland). Appellant has not provided any authority to suggest that Batiste is no longer 

controlling. As an intermediate appellate court, we must adhere to it out of principles of 

vertical stare decisis.

Appellant has not met his burden under Batiste of showing how he was prejudiced 

by counsel’s errors, if any. Appellant has not provided this Court with a record showing 

the racial composition of the venire panel. Our record includes a strike list, but appellant 

has not identified which venire members were improperly struck on the basis of race. 

There is also no record as to whether the prosecutor lacked a reason other than race for 

exercising her peremptory strikes. Finally, with a record so underdeveloped, there is no 

indication that the trial court would have granted appellant’s Batson challenge, or that a 

properly constructed jury would have reached a different result had the challenge been 

timely. Cf. Williams v. State, 313 S.W.3d 393, 402 (Tex. App.—Houston [1st Dist.] 2009, 

pet. ref’d) (concluding that appellant had not shown prejudice in case where counsel 

failed to object to the inclusion on the jury of five venire members whom counsel had 

peremptorily challenged).

B. Damning Testimony

Appellant also argues that counsel was ineffective because he elicited damning 

testimony from the property manager of appellant’s apartment complex. Counsel called 

the property manager for her testimony that appellant’s neighbors may have been 
11

involved in the robbery. When she was on the stand, counsel also elicited testimony that 

appellant was a troublemaker, that he used drugs, and that he slightly resembled one of 

the figures in the convenience store pictures. Appellant contends that allowing this 

witness to testify about such subjects was objectively unreasonable.

Appellant has failed to rebut the presumption that counsel’s actions were the result 

of sound trial strategy. Before being condemned as unprofessional or incompetent, 

counsel is normally afforded an opportunity to explain his actions, such as with a hearing 

on a motion for new trial or with the filing of an affidavit. See Bone, 77 S.W.3d at 836; 

Huerta v. State, 359 S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.). 

But appellant did not file a motion for new trial, and the record is likewise devoid of any 

explanation regarding counsel’s actions. The record does not affirmatively show that 

counsel knew or should have known that the property manager would have testified about 

appellant in such a negative light.

Any allegation of ineffectiveness must be firmly founded in the record, and the 

record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 

S.W.3d 808, 813 (Tex. Crim. App. 1999). Because the record here is underdeveloped, we 

must presume that counsel’s choice of questions was motivated by sound trial strategy. 

See Strickland, 466 U.S. at 689 (observing that a fair assessment of attorney performance 

must be made without the distorting effects of hindsight).

Even if we were to assume that counsel was ineffective because of the testimony 

he elicited, appellant has not demonstrated by a preponderance of the evidence that he 

was prejudiced by counsel’s actions. Appellant testified that he did not use drugs. The 

prosecutor did not cross-examine the property manager, nor did she emphasize the 

manager’s testimony in closing argument. Moreover, the prosecutor tended to suggest in 

her closing argument that appellant was not one of the individuals captured in the store 

surveillance camera.

Appellant has not shown a reasonable probability that the outcome of trial would 

have been different but for counsel’s errors, if any. His second issue is overruled.
12

CONCLUSION

The judgment of the trial court is affirmed.

/s/ Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby.

Do Not Publish — Tex. R. App. P. 47.2(b).