Darren Hester v. The State of Texas--Appeal from 183rd District Court of Harris County

Opinion issued November 16, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00228-CR

DARREN HESTER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1040508

MEMORANDUM OPINIONA jury found appellant, Darren Hester, guilty of evading arrest with a motor vehicle // and assessed punishment at six years in prison. In two points of error, appellant contends that (1) the State improperly commented on his failure to testify and (2) he received ineffective assistance of trial counsel.

We affirm.

Background

Houston police officers Steven Frank and David Carter were dispatched to investigate a narcotics complaint at a gas station. When they arrived at the location, they saw three men standing near the open driver-side door of a vehicle. As Officer Carter detained the men, Officer Frank approached the vehicle and asked appellant, who was sitting in the driver s seat, to step out of the vehicle. Appellant ignored the officer s request and drove off.

The officers pursued appellant in their patrol car. Officer Carter ran the license plate number and determined that it belonged to appellant. By speeding and running several stop signs, appellant was ultimately able to elude the officers. The next day the officers went to appellant s home and arrested him.

Comment on Failure to Testify

In his first point of error, appellant contends that the State unconstitutionally commented on his failure to testify. During the State s closing statement, the prosecutor made the following remarks of which appellant now complains: You also get to consider motive. Now, the Defendant didn t take the stand, and you can t hold that against him. But you can think about why did he run and there s a couple of things that came out in the testimony that you can consider.

Despite his contention on appeal that the prosecutor s remarks were improper comments on his failure to testify at trial, appellant did not raise this objection in the trial court. To complain on appeal about an erroneous jury argument, a party must object and pursue the objection to an adverse ruling. Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Trial counsel must timely object and point out the specific grounds for the objection to preserve error, even if the claimed error is constitutional or incurable. See id.; see also McDonald v. State, 186 S.W.3d 86, 91 (Tex. App. Houston [1st Dist.] 2005, no pet.) (recognizing that Cockrell overruled prior case law holding that counsel need not object to blatant and inflammatory argument). Because he did not timely object to the State s argument in the trial court, appellant has waived his right to complain about the prosecutor s remarks on appeal. See Tex. R. App. P. 33.1(a); Cockrell, 933 S.W.2d at 89.

We overrule appellant s first point of error.

Ineffective Assistance of Counsel

In his second point of error, appellant contends that he received ineffective assistance of counsel because his trial attorney did not object to the prosecutor s comment on appellant s failure to testify.

The constitutional right to counsel does not mean the right to errorless counsel, whose competency of representation is judged by hindsight. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). To prove ineffective assistance of counsel, an appellant must show that (1) defense counsel s representation fell below an objective standard of reasonableness and (2) the deficient performance prejudiced the appellant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In determining whether counsel was ineffective, we consider the totality of the circumstances of the particular case. Thompson, 9 S.W.3d at 813.

It is the defendant s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Id. A defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App. Houston [1st Dist.] 1996, no pet.). Assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Gamble, 916 S.W.2d at 93. However, in the rare case in which the record suffices to prove that counsel s performance was deficient, despite the record s silence concerning counsel s strategy, an appellate court should obviously address the [ineffective-assistance] claim . . . . Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000).

Here, the record does not reflect counsel s reasons for the lack of objection. Appellant did not file a motion for a new trial in which counsel s reasons could have been developed on the record. As a result, appellant has not overcome the presumption that counsel could have acted pursuant to sound strategy. See Gibbs v. State, 7 S.W.3d 175, 179 (Tex. App. Houston [1st Dist.] 1999, pet. ref d).

Appellant contends that this is one of those rare cases in which a record silent as to counsel s reasoning nonetheless reveals counsel s deficiency. See Robinson, 16 S.W.3d at 813 n.7; see also Andrews v. State, 159 S.W.3d 98, 102 03 (Tex. Crim. App. 2005) (holding that defense counsel rendered ineffective assistance because [t]here can be no reasonable trial strategy in failing to correct a misstatement of law that is detrimental to the client ). We disagree with appellant s contention. In this case, counsel s actions are such that reasonable trial strategy could explain them. Appellant s trial counsel may have refrained from objecting to the prosecutor s remarks to avoid further emphasizing appellant s choice not to testify.

We conclude that appellant has not shown that defense counsel s representation fell below an objective standard of reasonableness. We hold that appellant did not receive ineffective assistance of counsel at trial, as claimed.

We overrule appellant s second point of error.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Nuchia, Higley, and Wilson. //

Do not publish. Tex. R. App. P. 47.2(b).