Daryl Glenn Gardiner v. the State of Texas

Affirmed and Memorandum Opinion filed January 9, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00700-CR

DARYL GLENN GARDINER, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 21-CR-0253

MEMORANDUM OPINION

Appellant argues in two issues that he is entitled to a new punishment hearing
because his counsel was ineffective for failing to object to the prosecutor’s closing
statements. For the reasons explained below, we overrule both of appellant’s issues
and affirm the trial court’s judgment.
BACKGROUND

Appellant was in a polyamorous relationship with his girlfriend and with a
man whom we identify as the complainant. All three individuals lived in a house,
along with appellant’s special needs son, mother, and grandmother.

There was a disturbance one night when the complainant woke up the
girlfriend and demanded that they leave. A physical altercation ensued between
appellant and the complainant, and it ended with appellant shooting the complainant
three times.

Appellant claimed that the shooting was an act of self-defense, but the
prosecution argued that the shooting was not justifiable because, among other
reasons, the shooting occurred after the two men had already separated. The jury
agreed with the prosecution and convicted appellant of murder. But during the
punishment phase of trial, the jury found that appellant had acted under the
immediate influence of sudden passion, and assessed his punishment at fourteen
years’ imprisonment.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

Both of appellant’s issues on appeal focus on the prosecutor’s closing
statements during the punishment phase of trial.

In his first issue, appellant contends that the prosecutor improperly stated that
appellant had been “cut breaks.” That phrase does not actually appear anywhere in
the prosecutor’s closing statements. However, the prosecutor did remark that
appellant had received “breaks” more generally, which the prosecutor described as
a type of favorable treatment in past criminal prosecutions. For greater context, we
reproduce the following passage:

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Now, when we’re looking at trying to hold somebody
accountable, one of the things we do look at is their history. There is
some history in this case that’s been introduced to you in punishment.
We’ve got three exhibits here that are in punishment. The first
two punishment exhibits are State’s Exhibit 67 and State’s Exhibit 68.
What you’ll see when you look at this is some criminal history from
back in 2006.
We have the offense of attempted burglary of a building. That
was reduced down from the charge of burglary of a building. And this
defendant was allowed to serve time in county jail instead of having to
go to prison.
We have these two felony charges that were reduced down to a
lower level charge; and he was allowed to serve time in county so he
didn’t become a convicted felon.
These two charges here represent an opportunity where he could
have really turned his life around. He could have done the right thing,
not had any future problems.
The way these were set up and him not becoming a convicted
felon, this was a break. This was an opportunity.
Then you also have State’s Exhibit 69. This is a 2011 case where
he was placed on deferred adjudication for a period of four years for the
offense of possession of marijuana in a drug-free zone.
You actually heard quite a bit about marijuana in this case, and
the defendant played up all the way through guilt-innocence how bad
marijuana is and how—the horrible effects it can have on a person.
That’s the same thing that in 2011 this defendant was found in
possession of, a felony amount in a school zone—or a drug-free zone.
I’m sorry.
But even with that, you’ll see it’s an order of deferred
adjudication. So, he was given another break and was not made a
convicted felon. He was allowed to be on a deferred adjudication where
he won’t have that conviction following him and can still turn things
around and make something of his life.
You have a pattern of felony conduct every few years leading up
to what happened on January 21st of 2021 [the date of the murder]. I’m

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not saying that’s the whole basis of your verdict, but it is something that
has to be taken into consideration.
In his second issue, appellant focuses on a different portion of the prosecutor’s
closing statement, where the prosecutor made two references to “ripple effects.” We
reproduce that portion too:

Ladies and gentlemen, there are no winners here. There is no joy
in the task that you’re going to be asked to do. Anytime something like
this happens, there is a huge ripple effect and there are lots of victims.
Obviously, we have [the complainant] as a victim. When you
think about that, [the complainant] was in his early 30s. [The
complainant] is not going to be able to grow up and fall in love. He’ll
never be able to marry, never be able to father or raise children. All of
that has come to an end.
He didn’t get to be there for [appellant’s grandmother] as she
finished out her life. He won’t be able to be there for his own father as
he finishes out his life. [The complainant’s] days have ended and they
ended prematurely. It was not necessary.
Beyond [the complainant], you have other victims that were in
that room that night. [The girlfriend]. I don’t know what [the girlfriend]
was like before all of this. Y’all didn’t know her. None of us knew her.
I think it was pretty clear from her testimony that this impacted
her, and this didn’t have to. If the defendant hadn’t fired his weapon,
this would have been one argument that got way out of hand; and they
would have moved on with their life.
But there was nothing so traumatic that she couldn’t move on,
until that gun was fired.
[Appellant’s mother] is a victim, too. You’ve heard about the
burden that she’s had to take on since this happened, and I certainly
respect and applaud her for doing that.
That should have never been necessary. If the defendant hadn’t
fired his weapon, things would have cooled down; and it would not
have been necessary.
She’s in an incredibly difficult position; but ultimately, she’s in
that position because of this defendant’s decision.

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With regard to his children, all of them are in that same situation
as [appellant’s mother], they have lost their father figure through no
fault of their own but through a decision he made that night.
You heard the defendant testify that wherever he’s at, whatever
he’s doing, he’s going to do his best and stay in their life and be a
positive influence.
Even in prison, I’m sure he’s going to do all he can to still be a
positive influence in their lives.
That is something that is not afforded to [the complainant], and
he’ll never be able to do because of the sentence that [the complainant]
received for his actions that early morning. They were final and
definitive.
[Appellant’s grandmother] was a victim. She was extremely
close with [the complainant]. She died about 14 months later, and [the
complainant] wasn’t there to be by her side as she passed.
Mr. Price, who raised the victim, Mr. Price—
DEFENSE COUNSEL: Objection. There’s no testimony
of Mr. Price’s relationship with
the decedent.
THE COURT: I agree.
You’re getting close on time,
[prosecutor]. Wrap it up.
PROSECUTOR: This offense had a huge ripple effect on a lot
of people. That’s something you have to take into consideration when
assessing punishment.
Defense counsel did not object to the statements concerning “breaks” or to the
statements concerning “ripple effects.” Appellant now argues that counsel was
ineffective by not lodging such objections.

We review claims of ineffectiveness under the standard set forth in Strickland
v. Washington, 466 U.S. 668 (1984). Under that standard, appellant must prove by a
preponderance of the evidence that his counsel’s performance was deficient, and that

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the deficient performance was so prejudicial that it deprived him of a fair trial. Id. at
687.

When assessing counsel’s performance, our review is highly deferential and
begins with the strong presumption that counsel’s decisions were reasonably
professional and were motivated by sound trial strategy. See Jackson v. State, 877
S.W.2d 768, 771 (Tex. Crim. App. 1994). The effect of this presumption is that we
cannot ordinarily conclude that counsel’s performance was deficient on a silent
record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Counsel
must usually be given an opportunity to explain his actions and omissions before he
is condemned by a court for being unprofessional or incompetent. See Bone v. State,
77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

In this case, appellant did not file a motion for new trial complaining of
counsel’s performance, nor did counsel otherwise testify or file an affidavit
explaining his strategic decisions. When the record is silent, as it is here, we cannot
conclude that counsel’s performance was deficient unless the challenged conduct
was “so outrageous that no competent attorney would have engaged in it.” See
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This is a difficult
standard, and we cannot say that counsel’s failure to object rises to that level here
because the prosecutor’s closing statements were not actually objectionable.

Closing statements are proper if they (1) summarize the evidence, (2) make
reasonable deductions from the evidence, (3) respond to arguments of opposing
counsel, or (4) plead for law enforcement. See Wesbrook v. State, 29 S.W.3d 103,
115 (Tex. Crim. App. 2000). And here, the prosecutor’s closing statements easily
fall within the first two categories.

As for the first statement, the prosecutor used the word “break” to argue that
appellant had received favorable treatments in the past. For instance, the prosecutor
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remarked that appellant had twice been charged with burglary of a building—which
is a felony—but in each case, the charge was later reduced to attempted burglary of
a building—which is a misdemeanor. See Tex. Penal Code § 30.02 (providing that
burglary of a building is a state jail felony); Tex. Penal Code § 15.01(d) (providing
that an attempt of a state jail felony is a misdemeanor). The prosecutor also remarked
that appellant had once been charged with felony possession of a controlled
substance, but he was allowed to be released on deferred adjudication. All of the
prosecutor’s arguments were fully supported by the evidence, and were appropriate
uses of the word “break.”

As for the second statement, the prosecutor used the phrase “ripple effect” to
indicate that many people have been impacted by the murder. That statement was
likewise supported by the evidence. The complainant was most directly impacted by
the murder, given that his life was immediately brought to an end. But others were
indirectly impacted as well. The prosecutor referenced appellant’s grandmother,
with whom the complainant had a close relationship as her former caregiver. Though
the grandmother was not alive at the time of the trial, there was testimony from other
witnesses that she had taken the complainant’s murder “pretty hard.” The prosecutor
also referenced the girlfriend, who had testified that she was traumatized by the
murder, and that she has “thought about it every night since this happened.”
Appellant’s mother was likewise impacted in that she has become the primary
caregiver of appellant’s special needs son, which is a responsibility that she has also
described as “hard.” All of these consequences of the murder could fairly be
described as “ripple effects.”

Appellant has not cited any authorities in support of his argument that the
prosecutor’s use of the words “breaks” and “ripple effects” was somehow improper
or prejudicial. Because we perceive nothing inappropriate in their usage, we

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conclude that any objection to those statements would have been futile. Thus,
counsel’s performance could not have been deficient by his failure to make any such
objection. See Straight v. State, 515 S.W.3d 553, 575 (Tex. App.—Houston [14th
Dist.] 2017, pet. ref’d) (“An attorney’s failure to object to proper argument is not
ineffective assistance.”).

Having concluded that appellant has not shown that counsel’s performance
was deficient, we need not consider whether counsel’s failure to object resulted in
any prejudice. See Strickland, 466 U.S. at 700 (“Failure to make the required
showing of either deficient performance or sufficient prejudice defeats the
ineffectiveness claim.”).

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher
Chief Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).

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