Mendoza, Jose Luis v. The State of Texas--Appeal from 337th District Court of Harris County

Affirmed and Memorandum Opinion filed February 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01065-CR

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JOSE LUIS MENDOZA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 916,841

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

Appellant Jose Luis Mendoza was convicted of aggravated sexual assault of a child. In three issues, appellant argues that the State made an improper closing argument during the punishment phase of trial and that he received ineffective assistance of counsel. We affirm.

Seven-year-old R.G. attended church with his mother every Saturday. At some point during the day, R.G. would go to a children s room while his mother went to a worship service. Appellant sometimes watched the children. R.G. testified that on several occasions, appellant took R.G. out to appellant s van and sexually abused him, including anally penetrating R.G. Eventually, R.G. told his mother about the incidents, leading to appellant s arrest. Following a jury trial, appellant was convicted of aggravated sexual assault and sentenced to sixty years imprisonment.

In his first issue, appellant argues that the trial court erred by not granting a mistrial after the prosecutor referred to appellant as a monster during the prosecutor s closing argument of the sentencing phase. Appellant s counsel objected; the trial court sustained the objection and instructed the jury to disregard the statement. Appellant s counsel then moved for a mistrial, which the trial court denied.

In Tompkins v. State, the Court of Criminal Appeals addressed a similar situation as the one presented here. 774 S.W.2d 195, 217 18 (Tex. Crim. App. 1987), aff d per curiam by an equally divided Court, 490 U.S. 754 (1989). The prosecutor in Tompkins referred to the defendant as an animal during closing arguments of the sentencing phase. Id. at 217. There was an objection, an instruction to disregard, and a motion for mistrial, which was denied. Id. The Tompkins court disapproved of the prosecutor s remark, but acknowledged there were past Court of Criminal Appeals cases that found similar remarks a proper deduction from the evidence and also cases that reversed convictions for such remarks. See id. at 217 18. Accordingly, the court stated that [w]hether such an argument will constitute reversible error, however, must be decided on an ad hoc basis. Id. at 217.

Assuming the State s reference to appellant as a monster was not proper, improper jury argument will not warrant reversal unless the argument, when considered in light of the entire record, is extreme or manifestly improper, violative of a mandatory statute, or inject[s] new facts into the case that are harmful to the defendant. Id. at 218. Further, an instruction to disregard will generally cure any improper argument. Id. Here, there was a prompt instruction by the trial court to the jury to disregard the prosecutor s statement. Considering the egregious facts of this case along with the instruction to disregard, we find that the prosecutor s remark does not warrant a new trial. Id.; see also Gilcrease v. State, 32 S.W.3d 277, 279 (Tex. App. San Antonio 2000, pet. ref d) (finding that prosecutor s calling defendant a bastard did not necessitate new trial even when objection was overruled and no instruction to disregard was given); Resendez v. State, No. 14-99-01374-CR, 2001 WL 777861, at *1 *2 (Tex. App. Houston [14th Dist.] July 12, 2001, pet. ref d) (not designated for publication) (finding that references to defendant as animal and monster were not reversible error even when objection was overruled and no instruction to disregard given). Accordingly, we overrule appellant s first issue.

In his second and third issues, appellant argues that he received ineffective assistance of counsel. Appellant contends that trial counsel was ineffective for failing to object to questions the State asked prospective jurors during voir dire and for failing to object to the State s cross-examination of a defense witness.

The standard by which ineffective assistance claims are governed is found in the U.S. Supreme Court s pronouncement in Strickland v. Washington, 466 U.S. 668 (1984). The Court of Criminal Appeals adopted the two-part Strickland test in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prove ineffective assistance, appellant must show that (1) trial counsel s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and (2) the result of the proceeding would have been different but for trial counsel s deficient performance. Strickland, 466 U.S. at 687 96; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813. To defeat this presumption, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814 (quoting McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). However, without specific explanations for counsel s decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. See Bone v. State, 77 S.W.3d 828, 830, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813 14 (noting that when the record contains no explanation for counsel s decisions, an appellate court should be hesitant in deciding whether the motivation behind counsel s actions was of strategic design or the result of negligent conduct ).

Here, appellant has not defeated the presumption that trial counsel provided effective assistance. The argument in both issues is that appellant s trial counsel failed to object in two situations and thus was ineffective. However, the record is silent as to why appellant s counsel did not object in the two situations. Because the record does not affirmatively demonstrate that counsel s performance was deficient, we must presume that counsel s decision not to object was reasonable trial strategy. See Thompson, 9 S.W.3d at 813 14. Accordingly, we overrule appellant s second and third issues.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed February 8, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

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