Opinion
NO. 14-17-00087-CR
03-13-2018
HARRES T. EXEZIDIS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Fort Bend County, Texas
Trial Court Cause No. 15-CCR-179389A
MEMORANDUM OPINION
Appellant Harres T. Exezidis appeals his conviction for assault involving family violence. In two issues, he argues that (1) the trial court reversibly erred when it overruled appellant's objection to the prosecutor's statement during closing argument that a witness "believed" the complainant, and (2) appellant was denied effective assistance of counsel at trial. We overrule appellant's first issue because we conclude that the trial court's error in overruling the objection was harmless. We overrule appellant's second issue because the trial court did not abuse its discretion in denying appellant's motion for new trial on the ineffective-assistance grounds asserted. Accordingly, we affirm the trial court's judgment.
Background
Appellant was charged by information for the offense of assault involving family violence. The State alleged that appellant assaulted his then-wife, Heather, by striking her with his hand or hands or by kicking her with his foot or feet. Appellant pleaded not guilty to the charged offense, and the case proceeded to trial.
Heather and appellant are now divorced.
Appellant and Heather both testified, offering differing accounts of the encounter.
Heather testified that she and appellant attended a party, at which Heather became intoxicated. Once home, Heather began to vomit, which irritated appellant. Appellant went to bed, but Heather subsequently woke him up, asking for help. Appellant entered the bathroom, where Heather was kneeling by the toilet. Heather told appellant that she was vomiting because she was really sick, not because she was drunk. At that point, appellant hit Heather several times on the side of her head and face. Heather fell back from the blows, and appellant kicked her in the head and her left eye. Heather fled the bathroom and tried to run upstairs. Appellant chased her and tackled her on the stairs. He punched her in the legs, back, and abdomen. Heather then tried to run outside but appellant pinned her to the door to prevent her from leaving.
Appellant's version varied markedly from Heather's version. Appellant testified that, upon the couple's return home, Heather passed out on her back in the bathroom. He was concerned she would choke if she began vomiting, so he wanted to turn her over on her stomach. As he stepped forward to do so, Heather turned toward him, and as appellant lowered his foot, his toe struck her eye. Heather screamed, stood up, and fled the bathroom. She stumbled on the stairs and fell "straight on her face." Heather headed for the front door, but appellant pinned her against the door to prevent her from leaving, as she was naked and intoxicated. Appellant was worried that she would run into the street where a car might hit her.
Photos of Heather's injuries were admitted into evidence, showing significant bruising and swelling around her left eye, as well as bruising along her upper thigh. The State also introduced text messages between Heather and appellant, showing that Heather sent appellant a picture of her facial injuries and appellant responded, "I will leave[.] Sorry and I love you[.]"
Dr. Neha Patel, who treated Heather's injuries, testified that the injuries were consistent with Heather's description of the assault. During closing argument, the prosecutor said that Heather accurately described the assault to Dr. Patel, who "believed her story, too." Appellant's counsel objected that the prosecutor's argument misstated the record. The trial court overruled appellant's objection.
The jury found appellant guilty as charged in the information. The trial court sentenced appellant to one year's confinement, which was probated. The trial court also imposed a $1,500 fine.
Appellant filed a motion for new trial, arguing that he received ineffective assistance of counsel and the prosecutor made an improper jury argument. The trial court held a hearing, at which appellant's lead trial counsel testified. The trial court denied the motion without stating reasons. Appellant requested findings of fact and conclusions of law, but the trial court did not sign findings or conclusions.
Appellant appeals his conviction.
Analysis
A. Objection to Prosecutor's Closing Argument
In his first issue, appellant argues that the prosecutor's statement—that Dr. Patel "believed [Heather's] story"—was outside the record and thus not proper jury argument.
1. Standard of review and governing law
The law provides for, and presumes, a fair trial, free from improper argument by the State. Borjan v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990) (per curiam). In general, the four proper areas of jury argument are: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel's argument; and (4) pleas for law enforcement. Freeman v. State, 340 S.W.3d 717, 727 (Tex. Crim. App. 2011).
We review a trial court's ruling on an objection to jury argument for abuse of discretion. Smith v. State, 483 S.W.3d 648, 657 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Counsel's remarks during final argument must be considered in the context in which they appear. Denison v. State, 651 S.W.2d 754, 761 (Tex. Crim. App. 1983). Even when a statement exceeds the bounds of proper jury argument, it will not constitute reversible error unless, in light of the record as a whole, the argument 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); Smith, 483 S.W.3d at 657. The remarks must have been a willful and calculated effort on the part of the State to deprive the defendant of a fair and impartial trial. Wesbrook, 29 S.W.3d at 115.
2. Was the trial court's ruling erroneous?
We first consider whether the prosecutor's comment was in fact improper, and thus whether the trial court's ruling on appellant's objection was erroneous. See Nadal v. State, 348 S.W.3d 304, 319 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd); Crocker v. State, 248 S.W.3d 299, 304 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd).
Appellant contends, and the record reflects, that Dr. Patel testified only as to whether Heather's injuries were "consistent with" her account of the assault, and not as to whether Dr. Patel believed Heather. Therefore, appellant argues, the prosecutor's statement during closing argument was outside the record. The State responds that the prosecutor's closing argument was a logical deduction from the evidence and a legitimate response to the defense efforts to impeach Heather's testimony.
We agree with appellant that the prosecutor's statement was outside the record and, therefore, improper. Dr. Patel did not state that she believed Heather's account of the alleged assault; the doctor confirmed only that that the injuries she observed were consistent with Heather's description of what happened. In fact, had the State asked Dr. Patel during examination whether she "believed" Heather, her answer would have been inadmissible. See, e.g., Flores v. State, 513 S.W.3d 146, 162 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) ("[A]n expert witness may not give an opinion that the complainant . . . is truthful."); Martin v. State, 819 S.W.2d 552, 555 (Tex. App.—San Antonio 1991, no pet.) (trial court erred in permitting State to bolster complainant's testimony); Miller v. State, 757 S.W.2d 880, 883 (Tex. App.—Dallas 1988, pet. ref'd) (witness may not give opinion concerning truth or falsity of another witness's testimony). Therefore, in stating that Dr. Patel "believed Heather's story," the prosecutor impermissibly went outside the record to bolster Heather's credibility. See Jones v. State, 38 S.W.3d 793, 796 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd); Grant v. State, 858 S.W.2d 29, 32 (Tex. App.—Houston [14th Dist.] 1993, no pet.). The trial court erred in overruling appellant's objection.
3. Was the trial court's ruling harmful?
The trial court's ruling is non-constitutional error. See Ortiz v. State, 999 S.W.2d 600, 605-06 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Tex. R. App. P. 44.2(b). When the error is non-constitutional, we must determine if the appellant's substantial rights were affected. Freeman, 340 S.W.3d at 728. To determine if the appellant's substantial rights were affected, we balance the severity of the misconduct, any curative measures, and the certainty of conviction absent the misconduct. Id.
Here, the severity of the misconduct is low, which weighs against a finding of harm. Accord, e.g., Ramirez v. State, No. 08-15-00090-CR, 2017 WL 769881, at *6 (Tex. App.—El Paso Feb. 28, 2017, no pet.) (not designated for publication) (single comment bolstering complainant's believability, while inappropriate, was not serious misconduct). There were no curative measures, which weighs in favor of a finding of harm. See Weekley v. State, No. 07-00-0028-CR, 2001 WL 735741, at *5 (Tex. App.—Amarillo June 29, 2001, pet. ref'd) (not designated for publication). Finally, the evidence supporting the conviction was strong, which weighs against a finding of harm. Heather testified in detail as to the assault; there were also photographs of her injuries, as well as the "apology" text message from appellant, from which jurors could infer a degree of culpability. See, e.g., Evans v. State, No. 01-13-00593-CR, 2015 WL 1501808, at *10 (Tex. App.—Houston [1st Dist.] Sept. 16, 2015, pet. ref'd) (mem. op., not designated for publication) (evidence supporting the conviction was strong, where complainant testified to essential elements of crime and photographs showed that he suffered serious bodily injury); Kromah v. State, 283 S.W.3d 47, 50 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd) ("The testimony of a single eyewitness can be factually sufficient to support a felony conviction."); accord also White v. State, Nos. 07-08-0003-CR, 07-08-0004-CR, 07-08-0005-CR, 2009 WL 196107, at *2 (Tex. App.—Amarillo Jan. 22, 2009, pet. ref'd) (mem. op., not designated for publication) (per curiam) (appellant's apology to complainant was one of several facts from which jury could have inferred appellant acted knowingly). While the parties offered conflicting accounts of how Heather was injured, the jury is the sole judge of the credibility of the witnesses based on their trial testimony, Payne v. State, 502 S.W.3d 829, 832 (Tex. App.—Houston [14th Dist.] 2016, no pet.), and could consider the photographic evidence of Heather's injuries "in light of the alternative explanations that were offered." Evans, 2015 WL 1501808, at *10.
On this record, we cannot say that the prosecutor's comment negatively affected appellant's substantial rights.
We overrule appellant's first issue.
B. Ineffective Assistance of Counsel
In appellant's second issue, he argues that his trial counsel was ineffective in the following respects: (1) counsel failed to file a motion in limine and object to testimony that appellant limited Heather's access to funds during their marriage; (2) counsel failed to request a jury instruction on involuntary conduct with regard to the physical contact that occurred in the bathroom; (3) counsel failed to request a jury instruction on necessity with regard to the physical contact that occurred outside the bathroom; (4) counsel conceded during summation that appellant and Heather were arguing before the physical contact and that he "kicked" her in the eye, which contradicted appellant's testimony; and (5) counsel failed to object to a prosecutor's argument suggesting that the defense expert was paid to testify to whatever defense counsel wanted her to say.
1. Standard of review and governing law
We examine claims of ineffective assistance of counsel under the familiar two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). Under Strickland, the defendant 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. Strickland, 466 U.S. at 687. Counsel's representation is deficient if it falls below an objective standard of reasonableness. Id. at 688. A deficient performance will only deprive the defendant of a fair trial if it prejudices the defense. Id. at 691-92. To demonstrate prejudice, the defendant 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 sufficient prejudice defeats the claim of ineffectiveness. Id. at 697.
When, as here, a defendant raises the issue of ineffective assistance in a motion for new trial, we review the trial court's denial of the motion for abuse of discretion. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012); Straight v. State, 515 S.W.3d 553, 564 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). Under this standard, we view the evidence in the light most favorable to the ruling and reverse only if no reasonable view of the record could support the ruling. Straight, 515 S.W.3d at 564. In the absence of express findings, as here, we presume that the trial court made all findings in favor of the prevailing party. Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013); Riley, 378 S.W.3d at 459. The trial court, as factfinder, is the sole judge of witness credibility at a hearing on a motion for new trial with respect to both live testimony and affidavits. Okonkwo, 398 S.W.3d at 694. Accordingly, the appellate court must afford almost total deference to a trial court's findings of historical facts as well as mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Riley, 378 S.W.3d at 458. We review de novo the trial court's decision on the Strickland prejudice prong while giving deference to the trial court's implied resolution of the underlying factual determinations supporting denial of the motion. See Straight, 515 S.W.3d at 564.
Appellant urges this court to apply a de novo standard of review in evaluating an ineffective assistance of counsel claim raised in a motion for new trial. Doing so, appellant urges, would align the standard applicable on direct appeal with the standard applicable in a habeas corpus proceeding. We decline to adopt a standard of review for ineffective-assistance claims that varies from the abuse of discretion standard currently required by the Court of Criminal Appeals. See Conner v. State, No. 07-11-0165-CR, 2012 WL 263658, at *1 (Tex. App.—Amarillo Jan. 30, 2012, pet. ref'd) (mem. op., not designated for publication) ("To [apply a new standard] would be to ignore holdings of the Texas Court of Criminal Appeals . . . . We may not do that. Instead, we invite appellant to propose his request for a new standard of review to the Court of Criminal Appeals.").
With this framework in mind, we address each of appellant's specific allegations of ineffectiveness and determine whether, in light of each, the trial court abused its discretion in denying appellant's motion for new trial.
2. Grounds for appellant's ineffective-assistance claim
a. Heather's testimony about finances
Appellant argues that his counsel was ineffective for failing to prevent the admission of Heather's testimony purportedly characterizing appellant as "a controlling cheapskate."
During the trial, Heather testified that appellant was the primary income earner, that she was a stay-at-home mom, and that appellant gave her a monthly allowance because he "didn't trust [her] with money." Appellant similarly testified that he gave Heather a set amount of money to spend every month. Neither side objected to the other's testimony on this point.
At the hearing on appellant's motion for new trial, appellant's counsel admitted that the couple's finances were irrelevant to the incident, that the State probably elicited this testimony to make appellant "look like a bad guy," and that the testimony was prejudicial. Counsel explained, however, that he did not object to Heather's testimony because his trial strategy was to suggest that Heather was using the criminal prosecution to try to obtain a more favorable divorce settlement, and he believed the prosecutor would elicit the financial testimony once appellant's counsel opened the door.
On appeal, appellant complains that counsel should have (1) filed a motion in limine and (2) objected to Heather's testimony during direct examination. As to the first part of appellant's argument, we conclude that counsel did not perform deficiently in failing to file a motion in limine, seeking to restrict testimony or evidence regarding the couple's finances. Failure to file pretrial motions is not categorically deemed ineffective assistance of counsel. See, e.g., Ryan v. State, 937 S.W.2d 93, 104 (Tex. App.—Beaumont 1996, pet. ref'd). Here, appellant's counsel testified that he did not anticipate, prior to trial, that the State would delve into the couple's finances. Thus, there was no cause for him to file a motion in limine. See Wert v. State, 383 S.W.3d 747, 757 n.5 (Tex. App.—Houston [14th Dist.] 2012, no pet.) ("[A]ppellant has not shown that his counsel could have anticipated and included [arguments] in a pretrial motion in limine.").
To establish ineffective assistance of counsel based on a failure to object, which is the second part of appellant's argument, appellant must demonstrate that the trial court would have committed harmful error in overruling the objection had trial counsel objected. DeLeon v. State, 322 S.W.3d 375, 381 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd). Here, appellant argues that the testimony was irrelevant, unduly prejudicial, and a violation of Texas Rule of Evidence 608(b). Though he cites only Rule 608(b), we construe appellant's brief to also invoke Rules 401 and 403. See Tex. R. Evid. 401 (providing test for relevant evidence), 403 (providing for potential exclusion of relevant, but unfairly prejudicial, evidence), 608(b) (barring admission of evidence in order to attack or support a witness's character for truthfulness). None of appellant's contentions is meritorious.
Article 38.371 of the Texas Code of Criminal Procedure allows, among other things, "testimony or evidence regarding the nature of the relationship between the actor and the alleged victim" in certain offenses involving family or dating violence, including the charged offense at issue. Tex. Code Crim. Proc. art. 38.371. Had counsel objected on relevance grounds, the trial court may have determined that Heather's testimony was relevant to the nature of the couple's relationship and, therefore, admissible. See id. Further, appellant has failed to explain how any prejudice from Heather's testimony substantially outweighed its probative value. Appellant's brief offers only a conclusory assertion that the testimony was "unduly prejudicial," premised on speculation that the State "clearly elicited this testimony to portray [appellant] as a controlling cheapskate." Appellant has not shown that the trial court would have erred in overruling a Rule 403 objection. Finally, Rule 608(b) does not bar the testimony because evidence of the couple's finances has no bearing on any "witness's character for truthfulness." Tex. R. Evid. 608(b).
In sum, due to the testimony's admissibility, defense counsel's failure to object does not rise to the level of deficient performance. See West v. State, 474 S.W.3d 785, 792 (Tex. App.—Houston [14th Dist.] 2014, no pet.); DeLeon, 322 S.W.3d at 381.
b. Failure to request jury instructions
Next, appellant argues that he received ineffective assistance because his counsel failed to request jury instructions on involuntariness and necessity.
"When a person claims the involuntary-act defense[,] he is conceding that his own body made the motion but denies responsibility for it." Rogers v. State, 105 S.W.3d 630, 639 n.30 (Tex. Crim. App. 2003) (internal quotation omitted omitted). A defendant seeking to invoke the defensive issue of involuntary conduct at trial must offer some evidence proving that "he was the passive instrument of another's act." Id. at 640.
One element of a necessity defense is that the accused reasonably believes that his otherwise illegal conduct is "immediately necessary to avoid imminent harm." Tex. Penal Code § 9.22(1). To be entitled to a necessity instruction, a defendant must admit he committed the offense and then offer necessity as a justification; if, instead, he argues he did not commit the offense because he did not have the requisite intent and he did not perform the actions the State alleged, then he is not entitled to a jury instruction on the defense of necessity. See Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999).
A defendant is entitled to an instruction on a defensive issue if it is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless whether the trial court considers the defense credible. Kenny v. State, 292 S.W.3d 89, 100 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). Here, appellant argues that his testimony about accidentally touching his toe to Heather's eye raised an involuntariness defense, and that his testimony that he pinned Heather against the door to keep her from running outside because he was afraid that she would run into the street and be hit by a car raised the defense of necessity. Counsel explained at the hearing on appellant's motion for new trial that he did not think, under the facts of the case, that the defenses of involuntariness or necessity were applicable; rather, his strategy was to convince the jury that appellant did not act with the requisite culpable mental state.
Even if appellant were entitled to an instruction on involuntariness or necessity, the failure to request one of those instructions does not mean counsel was ineffective. Defensive issues frequently depend upon trial strategy and tactics, and a competent defense attorney may decide that it would be inappropriate or ineffective to pursue a particular defense in a given case. See Esquivel v. State, No. 01-16-00301-CR, 2017 WL 3910793, at *7 (Tex. App.—Houston [1st Dist.] Sept. 7, 2017, no pet. h.) (mem. op., not designated for publication); see also Tolbert v. State, 306 S.W.3d 776, 779-82 (Tex. Crim. App. 2010); Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992) (per curiam) ("[J]ust because a competent defense attorney recognizes that a particular defense might be available to a particular offense, he or she could also decide it would be inappropriate to propound such a defense in a given case."). When a defendant's testimony centers on a lack of intent, i.e., "it was an accident," courts have held that trial counsel is not deficient for failing to request instructions on affirmative defenses, such as self-defense, involuntariness, or mistake of fact. Compare, e.g., Ex parte Nailor, 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) (self-defense), Dannhaus v. State, 928 S.W.2d 81, 85-87 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd) (self-defense, involuntariness, mistake of fact), with Vasquez, 830 S.W.2d at 949, 951 (no strategically plausible basis for trial counsel's failure to request an instruction on "only defense raised by the evidence") (emphasis added).
We conclude that it was not objectively unreasonable for counsel not to request inclusion of jury instructions on involuntariness or necessity. Dannhaus, 928 S.W.2d at 85; see also id. at 87 (counsel's choice to focus on lack of culpable mental state rather than defensive theories "cannot be said to fall below an unreasonable standard").
c. Counsel's closing argument
During appellant's closing argument, his counsel asserted that Heather knew that appellant "was the person standing there in the midst of an argument" and that she was "kicked in the eye". Appellant contends that counsel's comments amounted to ineffective assistance because they were "concessions" that contradicted appellant's testimony. This argument is unpersuasive for two reasons.
First, the trial record does not support appellant's contention that either of counsel's comments amount to a contradiction. Counsel's reference to the couple's "argument" did not contradict appellant's testimony because appellant never testified as to whether or not they were arguing. And appellant agreed on cross-examination that he "[a]ccident[al]ly kicked" Heather:
[Prosecutor]: Again, this injury [was] caused by a toe, right? Accidently [sic] kicked her, right?
[Appellant]: Yes, sir.
Second, assuming counsel's comments contradicted appellant's testimony, appellant does not cite any authority for the proposition that an attorney's isolated misstatement, exaggeration, or outright contradiction gives rise to a colorable ineffective-assistance claim. He cites only Craig v. State, 847 S.W.2d 434 (Tex. App.—El Paso 1993, no pet.) (op. on remand) ("Craig II"), in which the court held that counsel was ineffective in, among many other instances of deficient conduct, framing questions on cross-examination so as to "accept[] a State-oriented interpretation of the circumstantial evidence," thus effectively conceding that the defendant had committed the charged offense. Id. at 435; see also Craig v. State, 783 S.W.2d 620, 626 (Tex. App.—El Paso 1989) (op. on orig. sub.) ("Craig I"), rev'd and remanded, 825 S.W.2d 128 (Tex. Crim. App. 1992). Here, neither characterizing the couple's interaction as an "argument," nor stating that appellant "kicked" Heather rises to the level of a concession of culpable criminal activity, as in Craig II.
Appellant's counsel was not deficient in making either complained-of statement during closing argument.
d. Prosecutor's closing argument
Finally, appellant argues that his counsel performed deficiently in failing to object to the prosecutor's "blatant attack on [appellant's counsel's] ethics and integrity" during closing argument.
One of appellant's witnesses was Amanda Culbertson, a toxicologist who testified that, "hypothetical[ly]," a woman Heather's size who drank a similar amount of alcohol would have had an alcohol concentration of 0.20-0.30 during the alleged assault. Culbertson formed this opinion based solely on information provided by appellant of Heather's purported weight and alcohol consumption on the night in question. Culbertson undisputedly did not test a blood, breath, or urine sample. On cross-examination, Culbertson admitted that she was not aware of any other expert who had ever testified to a person's alcohol concentration in this manner (i.e., without a blood, breath, or urine sample).
For reference, a person is considered intoxicated if he or she has an alcohol concentration of 0.08 or more. Tex. Penal Code § 49.01(2)(B).
During closing argument, the prosecutor said:
Ladies and gentlemen, and it's not because Amanda Culbertson is way smarter than every other expert in Texas, it's because every other expert in Texas knows that what Amanda Culbertson did was absolute junk science. That's why they won't testify to it. But I guess it's true, everyone has a price, right. Amanda Culbertson, I don't know how much they paid her; but if you write her a big enough check, she'll come to a courtroom near you and tell you anything you want but that's on her, okay. (Emphasis added).
On appeal, appellant argues that these comments amounted to a personal attack against appellant's counsel. A prosecutor may not strike at a defendant over the shoulders of his counsel. See Phillips v. State, 130 S.W.3d 343, 355 (Tex. App.—Houston [14th Dist.] 2004), aff'd, 193 S.W.3d 904 (Tex. Crim. App. 2006). Examples of impermissible accusations of improper conduct are when the prosecutor argues that defense counsel has manufactured evidence, suborned perjury, accepted stolen money, or represented criminals. Id. These are personal attacks against defense counsel that explicitly impugn defense counsel's character.
We disagree that the prosecutor's comments here were an attempt to prejudice the jury against appellant by making uninvited and unsubstantiated accusations against his counsel. As made clear by the statement "but that's on her," the comments were instead an attempt to discredit Culbertson's testimony, which is permissible jury argument. Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App. 1993) (per curiam) (a prosecutor may argue that the witnesses for the defense are not worthy of belief). Because the prosecutor was not striking over the shoulders of counsel, appellant's counsel was not deficient in failing to object. Accord, e.g., Herrin v. State, 125 S.W.3d 436, 445 (Tex. Crim. App. 2002) (prosecutor's argument that witnesses were not credible did not support appellant's objection that the State was striking at defendant over counsel's shoulder).
* * *
As we have rejected each of appellant's arguments that his counsel's performance was deficient, we need not address Strickland's prejudice prong. Strickland, 466 U.S. at 697.
For the foregoing reasons, we conclude that the trial court did not abuse its discretion in denying appellant's motion for new trial, and we overrule appellant's second issue.
Conclusion
We affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Christopher, Donovan, and Jewell.
Do Not Publish — Tex. R. App. P. 47.2(b).