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Orchard v. State9/6/2001
to the admission of these exhibits, we simply cannot presume that it was not trial counsel's strategy to minimize the prejudicial effect of these exhibits by failing to object to them. He did not have the benefit of Tamez to forcefully argue the inadmissibility of the exhibits.
In summary, on this point, the record does not adequately reflect the failings of trial counsel. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998). There exists a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, 693 (1984). To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996). Indeed, in a case such as this, where the alleged ineffectiveness is in the form of omissions, rather than commissions, collateral attack may be the only vehicle by which a thorough and detailed examination of the alleged ineffectiveness may be developed. Appellant failed to adequately develop his evidence as to this claim of ineffective assistance. We will not presume that, based on the state of the law at the time this case was tried, appellant's trial counsel's performance fell below an objective standard of reasonableness in failing to object to these exhibits. For the foregoing reasons, we overrule appellant's first point of error.
II. Jury Argument
In his second point of error, appellant contends that the trial court erred in overruling his objection to the State's jury argument that the jury does not have to wait until someone is killed or injured before convicting a person of DWI.
Proper jury argument must fall within one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to opposing counsel's arguments; or (4) a plea for law enforcement. Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985). Improper closing arguments include references to facts not in evidence or incorrect statements of law. Parks v. State, 843 S.W.2d 693, 695 (Tex. App.--Corpus Christi 1992, pet. ref'd). An argument must be considered in light of the record as a whole, and, to constitute reversible error, the argument must be extreme or manifestly improper, violate a mandatory statute, or inject new facts, harmful to the accused, into the trial proceedings. Brandley, 691 S.W.2d at 712-13.
The argument appellant complains of occurred as follows:
THE STATE: We talked about sympathy, and we talked - and I hope you listened to Defense Counsel's argument because a majority of his argument was not based on the facts of this case. The majority of his argument was based on extraneous, tug-at-the-heart-string kind of arguments based on freedom, based on liberty, based on things like that that don't prove or disprove whether Mr. Orchard was driving while intoxicated that night or not. That's not what you're here to decide.
You heard evidence that he was out of work. You heard him say repeatedly that there was no accident in this case. Well, thank God. You know, do we have to - here's another thing I want you to think about when you're considering this evidence, when you're listening to me argue, when you're deciding what to do with this case. Do we have to wait before somebody is killed? Do we have to wait before somebody is seriously injured?
DEFENSE: Object to this type of argument, your Honor. It is prejudicial and outside the record.
THE COURT: I'll overrule
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