Affirmed and Opinion filed September 30, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00219-CR
ODELL BURGESS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1376308
OPINION
Appellant, Odell Burgess, appeals his conviction for evading arrest with a
motor vehicle, contending (1) the evidence is legally insufficient to support the
conviction, (2) the trial court improperly commented on appellant’s failure to
testify, (3) the trial court erred by admitting evidence of an extraneous offense
during the guilt-innocence phase, and (4) appellant received ineffective assistance
of counsel. We affirm.
I. BACKGROUND
According to the State’s evidence, at approximately 6:30 p.m. on September
7, 2012, Houston police officer Marc Stallworth was seated in his police car at a
business on the westbound feeder of the South Loop freeway. He heard a “rush of
air” from the freeway, which he associated with a speeding vehicle. He noticed a
black pickup truck, which was travelling westbound on the freeway, exit at Stella
Link Road. Officer Stallworth estimated the vehicle was travelling over 100 miles
per hour. Appellant was later identified as the driver, and there were two male
passengers. Officer Stallworth entered his police car and followed the truck.
Appellant then used the Stella Link u-turn to begin travelling eastbound on
the feeder. After Officer Stallworth completed the u-turn, he activated his lights
and siren. At that point, he was four car lengths behind the truck, with no other
vehicles in between. Appellant immediately “floor[ed] it”—from about 45 miles
per hour (his speed when making the u-turn) to about 65 miles per hour. The
occupants also threw items out of the truck onto the side of the feeder. Appellant’s
speed then varied between 50 to 65 miles per hour as he wove through traffic, with
Officer Stallworth in pursuit, for approximately half a mile. There were several
side streets and businesses along the feeder where appellant could have safely
stopped, but he failed to do so. He continued toward the next intersection—the
feeder and South Main Street—where traffic was backed up at the light.
Appellant turned into the parking lot of a service station located on the
corner of that intersection. He wove through vehicles in the lot and attempted to
turn right onto South Main. A constable who had observed the activity used his
car to cut off the truck and forced it back into the parking lot. Appellant then
attempted to exit back onto the feeder but stopped when he was cut off by another
2
police car that had joined the pursuit. The officers ordered the occupants to exit
the truck, and appellant was arrested, without further incident.
The State also presented evidence that, within twenty minutes before Officer
Stallworth’s pursuit, the occupants of the truck committed a robbery, less than five
miles from where they were eventually detained. Claudine James was seated in
her vehicle in the parking lot of a post office when she saw another woman park
her “two-seat” Mercedes and enter the post office. Then, a black pickup truck
drove up and blocked the woman’s car. A passenger (not appellant) exited the
truck, looked around, and entered the woman’s car. A “child, a young girl” then
“jumped” out of the car, screaming, with eyes as “big” as “plates.” The man took a
purse and cell phone from the car and re-entered the truck, and the driver left.
James followed the truck as it traveled at an extreme speed on the South
Loop but eventually lost sight of it near the Stella Link exit. When James took that
exit, she intended to alert Officer Stallworth whom she saw on the feeder, but he
then activated his lights and u-turned. James did not observe Officer Stallworth’s
chase and next saw the truck when it had been stopped at the service station.
James informed the officers about the robbery and identified appellant’s truck as
the one involved and one of his passengers as the man who entered the woman’s
car at the post office.
In the area where Officer Stallworth had observed the occupants throw items
from the truck, officers found a purse and business cards belonging to the robbery
victim. The officers’ testimony indicated that a $100 bill found in one of the truck
passenger’s shoes was stolen in the robbery. The officers also found three new
$100 bills in appellant’s pocket.
A jury found appellant guilty of the third-degree felony offense of evading
arrest or detention with a motor vehicle. Appellant pleaded “true” to two
3
enhancement paragraphs. The jury assessed punishment at fifty-three years’
confinement.
II. SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant contends the evidence is insufficient to support
his conviction.
A. Standard of Review and Applicable Law
When reviewing sufficiency of the evidence, we view all evidence in the
light most favorable to the verdict and determine, based on that evidence and any
reasonable inferences therefrom, whether any rational fact finder could have found
the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d
743, 746 (Tex. Crim. App. 2011). We do not sit as the thirteenth juror and may not
substitute our judgment for that of the fact finder by re-evaluating weight and
credibility of evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). We defer to the jury’s responsibility to fairly resolve conflicts in testimony,
weigh the evidence, and draw all reasonable inferences from basic facts to ultimate
facts. Id. Our duty as reviewing court is to ensure the evidence presented actually
supports a conclusion that the defendant committed the crime. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
As charged in the present case, a person commits the offense of evading
arrest or detention “if he intentionally flees from a person he knows is a peace
officer . . . attempting lawfully to . . . detain him.” Tex. Penal Code Ann. §
38.04(a) (West Supp. 2014). The offense is a third degree felony “if the actor uses
a vehicle while the actor is in flight.” Id. § 38.04(b)(2)(A) (West Supp. 2014).
4
B. Analysis
Appellant asserts there is no evidence he intentionally fled from a person he
knew was a peace officer. Appellant characterizes his actions as needing time to
recognize Officer Stallworth as a police officer, move to the right lane of the
feeder, and voluntarily stop at the service station. However, the jury could have
rationally inferred that appellant immediately recognized Officer Stallworth as a
police officer because the officer activated his lights and siren while only a few car
lengths behind appellant, with no vehicles in between. The jury was free to reject
that appellant was merely attempting to pull over because he accelerated when the
officer activated his lights and siren, led the officer on a high-speed chase while
weaving through feeder traffic, attempted to flee onto another street through the
service station, and stopped only when forced to do so by another police car.
Moreover, the jury could have rationally inferred that appellant fled from Officer
Stallworth because appellant and his passengers had just committed a robbery and
thought the officer intended to detain them for that offense. The fact that the
occupants of the truck threw out items stolen in the robbery as soon as the officer
activated his lights and siren supported such inference.
Additionally, appellant contends the evidence is insufficient to support a
finding that Officer Stallworth was lawfully attempting to detain appellant. Officer
Stallworth’s testimony demonstrated he was attempting to detain appellant for
speeding within the officer’s view. See Tex. Code Crim. Proc. Art. 14.01(b) (West
2005) (“A peace officer may arrest an offender without a warrant for any offense
committed in his presence or within his view.”). Appellant challenges that the
evidence was sufficient to establish he was speeding.
Appellant suggests Officer Stallworth could not have heard a “rush of air”
while seated in his car. However, the jury could have concluded that either the
5
door was open or Officer Stallworth heard the “rush of air” even with the door
closed. Further, Officer Stallworth then observed appellant traveling at least 100
miles per hour. Appellant argues Officer Stallworth could not have known
appellant’s speed because the officer “did not have a radar detector, did not pace
Appellant’s vehicle, and has never been trained on how to do a visual estimation of
speed.” However, the jury was free to believe Officer Stallworth’s testimony that
he estimated the speed based on twenty years’ experience as a police officer.
James’s testimony also supported Officer Stallworth’s estimation because James
had to travel about 104 miles per hour to keep up with appellant on the freeway.
Finally, appellant argues he could not have been traveling 100 miles per
hour because Officer Stallworth agreed that traffic was heavy that time of day.
However, the officer explained that traffic was not at a “standstill” and indicated
there was no traffic as appellant exited the freeway at that speed. The jury could
have concluded that appellant found a path in which to travel 100 miles per hour.
In summary, the evidence is sufficient to support the jury’s verdict. We
overrule appellant’s first issue.
III. ALLEGED COMMENT ON APPELLANT’S FAILURE TO TESTIFY
In his second issue, appellant contends that language in the jury charge
constituted an improper comment on appellant’s failure to testify.
A. Standard of Review and Applicable Law
A trial court’s comment on a defendant’s failure to testify violates his
constitutional and statutory privileges against self-incrimination. See U.S. Const.
amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08 (West 2005);
Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). The allegedly
offending language must be viewed from the jury’s standpoint, and the implication
6
that the comment referred to the defendant’s failure to testify must be clear.
Bustamante, 48 S.W.3d at 765. It is insufficient that the language might be
construed as an implied or indirect allusion. Id. “The test is whether the language
used was manifestly intended or was of such a character that the jury would
necessarily and naturally take it as a comment on the defendant’s failure to testify.”
Id. In applying this standard, the comment must be analyzed in context. See id.
Appellant did not object at trial to the charge. Unobjected-to charge error
requires reversal only if it was “fundamental”—error that was so egregious and
created such harm that the defendant “has not had a fair and impartial trial.”
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Egregiously
harmful errors “are those that affect the very basis of the case, deprive the
defendant of a valuable right, vitally affect the defensive theory, or make a case for
conviction clearly and significantly more persuasive.” Taylor v. State, 332 S.W.3d
483, 490 (Tex. Crim. App. 2011). Egregious harm is determined on a case-by-case
basis and is a difficult standard to prove. Id. at 489. In analyzing harm, we must
consider (1) the charge itself, (2) the state of the evidence, including contested
issues and the weight of the probative evidence, (3) arguments of counsel, and (4)
any other relevant information revealed by the trial record as a whole. Id.
B. Analysis
Appellant maintains that the following language in the charge constituted a
comment on his failure to testify:
You are instructed that certain evidence was admitted before
you in regard to the defendant’s having been charged and convicted of
an offense or offenses other than the one for which he is now on trial.
Such evidence cannot be considered by you against the defendant as
any evidence of guilt in this case. Said evidence was admitted before
you for the purpose of aiding you, if it does aid you, in passing upon
7
the weight you will give his testimony, and you will not consider the
same for any other purpose.
According to appellant, the reference to “weight you will give his testimony” is a
comment that the trial court expected appellant to testify but he failed to do so.
We agree that the paragraph was erroneous because it incorrectly suggested
that appellant testified. We note that the instruction also refers to evidence of prior
convictions though it is undisputed that no such evidence was offered or admitted.
However, we disagree the paragraph amounted to a comment on appellant’s failure
to testify or caused egregious harm. When considered in context, the paragraph
did not imply that the trial court expected appellant to testify, much less raise any
implications from the fact he did not testify.
As the State acknowledges, the charge was “over inclusive” by setting forth
various alternative instructions that were not all applicable to this case. However,
the trial court also gave the jury instructions that were applicable to the case,
including instructions regarding appellant’s right not to testify. Specifically,
during voir dire, the trial court informed the jury:
If the Defendant does not choose to testify, the jury may not consider
that fact as evidence of guilty [sic], nor may the jury or any juror in
the deliberations comment or in any way allude to that fact.
Then, in the jury charge, immediately before the paragraph at issue, was the
following language:
Our law provides that a defendant may testify in his own behalf
if he elects to do so. This, however, is a right accorded a defendant,
and in the event he elects not to testify, that fact cannot be taken as a
circumstance against him.
In this case, the defendant has elected not to testify and you are
instructed that you cannot and must not refer to or allude to that fact
throughout your deliberations or take it into consideration for any
purpose whatsoever as a circumstance against him.
8
In light of these applicable instructions, we cannot say that the jury
“necessarily and naturally” took the erroneous instruction as a comment on
appellant’s failure to testify rather than merely an alternative, but inapplicable,
instruction for a case in which a defendant does testify. See Bustamante, 48
S.W.3d at 765. We conclude the instruction was not “manifestly intended or . . . of
such a character that the jury would necessarily and naturally take it as a comment
on the defendant’s failure to testify.” See id.; Roland v. State, No. 14–11–00584–
CR, 2012 WL 2784404, at *7 (Tex. App.—Houston [14th Dist.] July 10, 2012, no
pet.) (mem. op., not designated for publication) (holding identical paragraph was
not comment on appellant’s failure to testify). Further, we presume the jury
heeded the trial court’s other instructions and did not consider appellant’s failure to
testify. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)
(explaining appellate court generally presumes jury followed trial court’s
instructions in the manner presented).
Although appellant’s primary complaint concerns the portion of the
paragraph suggesting appellant testified, we also conclude there was no egregious
harm resulting from the portion incorrectly stating that evidence of a previous
conviction was admitted. When considered in context, the trial court instructed
that such conviction could not be considered as evidence of appellant’s guilt and
could only be considered in deciding what weight to assign his testimony. Again,
no such conviction was admitted, and appellant did not testify. Thus, we cannot
say that the jury “necessarily and naturally” took the erroneous instruction as a
comment on appellant’s failure to testify rather than an alternative, but
inapplicable, instruction for when such a conviction is admitted and the defendant
does testify. Moreover, in another part of the charge, the trial court instructed,
“During your deliberations in this case, you must not consider, discuss, nor relate
9
any matters not in evidence before you.” We presume the jury followed this
instruction and did not speculate appellant might have a previous conviction when
there was no evidence of any such conviction. Accordingly, we overrule
appellant’s second issue.
IV. EXTRANEOUS-OFFENSE EVIDENCE
In his third issue, appellant contends the trial court erred by admitting during
the guilt-innocence phase the evidence that appellant had committed a robbery
shortly before Officer Stallworth’s pursuit of the truck.
A. Alleged Violation of Limine Ruling
Under this issue, appellant first asserts the State violated the ruling on
appellant’s motion in limine by mentioning the robbery during its opening
statement and eliciting testimony regarding that offense without first approaching
the bench. Appellant’s motion in limine included an item that apparently
referenced the robbery. However, the record does not demonstrate the trial court
granted that limine request. On the motion, there is the handwritten notation
“Granted” next to some of the requested limine items—but not the one at issue.
There is no separate order on the motion in limine and no record of any oral
rulings. Accordingly, we reject the complaint that the State violated such a ruling
and turn to appellant’s challenge to admission of the evidence.
B. Admission of Evidence
1. Applicable Law and Standard of Review
Texas Rule of Evidence 404(b) provides that “Evidence of other crimes,
wrongs or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
10
or absence of mistake or accident . . . ,” provided the State gives the requisite
notice. Tex. R. Evid. 404(b). When a defendant makes a timely objection that
such evidence is inadmissible under Rule 404(b), the State must satisfy the trial
court that the evidence has relevance apart from its tendency “to prove character . .
. to show action in conformity therewith.” See id.; Montgomery v. State, 810
S.W.2d 372, 387 (Tex. Crim. App. 1991).
Even if the State meets that burden, to admit such evidence, the trial court
must also determine that the jury could find beyond a reasonable doubt that the
defendant committed the extraneous offense. See Fischer v. State, 268 S.W.3d
552, 558 (Tex. Crim. App. 2008); Harrell v. State, 884 S.W.2d 154, 160 (Tex.
Crim. App. 1994). When reviewing that determination, we are not limited to
considering the State’s proffer as of the ruling and may consider all of the
evidence, including evidence admitted after the ruling. See Fischer, 268 S.W.3d at
553–58. We review the trial court’s decision to admit the evidence for abuse of
discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We
will not disturb the decision if it falls within the bounds of reasonable
disagreement. Id.
2. Analysis
The State contends, and the trial court agreed, that evidence of appellant’s
participation in the robbery established motive to subsequently evade Officer
Stallworth. Appellant does not challenge whether the evidence was admissible for
that purpose. Rather, his sole contention is the trial court did not properly
determine that the jury could find beyond a reasonable doubt that appellant
committed the robbery.1
1
In the charge on guilt or innocence, the trial court instructed that the jury could not
consider evidence that appellant committed an extraneous offense unless it found beyond a
11
The challenged evidence was admitted via the testimony of police officers
James Crowson and Marcus Ryans, who arrived at the service station after
appellant’s truck had been stopped, and the testimony of Claudine James. First,
the officers collectively testified about the following facts supporting that the
occupants of the truck committed a robbery: James’s report of the robbery and
identification of appellant’s truck; the time and location of the robbery relative to
Officer Stallworth’s pursuit of the truck; and the discovery of the robbery victim’s
purse and business cards on the side of the road (Officer Stallworth having seen the
truck’s occupants throw items out) and her $100 bill in one of the passenger’s
shoes. Then, James provided the details of the incident at the post office described
above. Based on all of this testimony, the trial court did not abuse its discretion by
determining the jury could find beyond a reasonable doubt that appellant
committed robbery, assuming, without deciding, he preserved error on his
complaint.2
reasonable doubt that he committed the offense. Thus, appellant challenges only the trial court’s
initial determination that a jury could make such finding, as a threshold to admitting the
evidence. That instruction also informed the jury it could consider the extraneous offense only
“in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident of [appellant]” relative to the charged offense.
2
The State acknowledges there was a discussion off the record before the officers’
testimony concerning the State’s proffer and appellant made some objection. However, our
record contains no indication regarding the substance of that discussion and thus whether
appellant objected under Rule 404(b). During the officers’ testimony, appellant made some
intermittent objections on “speculation” and “hearsay” grounds, but not under Rule 404(b). The
State then informed the trial court, outside the jury’s presence, of its intent to call James. Again
there is no record of any previous discussion, but the trial court’s comments indicate it was
aware of the nature of the evidence. Appellant’s counsel made a statement which the trial court
apparently understood as a Rule 404(b) objection because the court replied James’s testimony
was relevant to “the motive of fleeing.” However, the record does not reflect this objection was
lodged before, or when, evidence about the robbery was first proffered—through the officers’
testimony. Nevertheless, we need not decide whether appellant sufficiently and timely invoked
the right to a “reasonable doubt” determination, as a threshold to admissibility, because the trial
court did not abuse its discretion by making that determination.
12
A person commits robbery “if, in the course of committing theft . . . and
with intent to obtain or maintain control of the property, he: (1) intentionally,
knowingly, or recklessly causes bodily injury to another; or (2) intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death.”
Tex. Penal Code Ann § 29.02(a) (West 2011). A person commits theft “if he
unlawfully appropriates property with intent to deprive the owner of property.” Id.
§ 31.03(a) (West Supp. 2014). Appropriation of property is unlawful if, inter alia,
“it is without the owner’s effective consent.” Id. § 31.03(b)(1) (West Supp. 2014).
According to James’s testimony, appellant was not the person who entered
the woman’s car while she was in the post office and physically appropriated her
property. However, a person is criminally responsible for an offense committed by
the conduct of another if “acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense . . . .” Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). In
determining whether an accused is a party to an offense, events before, during, and
after the commission of the offense may be considered. Beardsley v. State, 738
S.W.2d 681, 684 (Tex. Crim. App. 1987). The jury could reasonably conclude
appellant was criminally responsible if his passenger’s actions constituted a
robbery because appellant (1) used his truck to block the woman’s car while the
passenger took her property, and (2) drove the getaway vehicle. Accordingly, we
will focus on the passenger’s actions.
Appellant suggests there was insufficient evidence that the passenger
appropriated the owner’s property without her consent. However, the following
facts supported the theft element of robbery: (1) once the woman went in the post
office, the perpetrator looked around, quickly entered her car, took a purse and cell
phone, and re-entered appellant’s truck, which sped away, (2) the purse and
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business cards thrown out of the truck when Officer Stallworth began his pursuit
belonged to that woman, and (3) the $100 bill found on a passenger was taken
from that woman. Appellant emphasizes there was no evidence the three $100
bills found on appellant were taken in a robbery.3 Nonetheless, the fact that a
purse, cellphone, and $100 were taken from the victim would establish the theft
element.
Appellant also suggests there was no evidence “anyone suffered bodily
injury.” Such a finding is not necessary to establish robbery because the offense
may also be committed if “with intent to obtain or maintain control of the
property,” the actor “intentionally or knowingly threatens or places another in fear
of imminent bodily injury or death.” See Tex. Penal Code Ann § 29.02(a).
Appellant advances no argument on appeal regarding this alternative means of
committing robbery.
Regardless, James’s testimony demonstrated a “child, a young girl” was
alone in the front seat of the woman’s car when the perpetrator entered. The
record is silent on whether the perpetrator made any affirmative threats to the child
because the child did not testify and there was no other direct evidence regarding
what transpired inside the car.4 However, the statute encompasses “not just
explicit threats, but whatever implicit threats may lead to the victim being placed
in fear.” Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011); see Tex.
Penal Code Ann § 29.02(a). “So long as the [perpetrator’s] actions are of such
nature as in reason and common experience is likely to induce a person to part with
his property against his will, any actual or perceived threat of imminent bodily
3
The trial court sustained appellant’s objection to testimony of the officers on whether
the $300 was connected to the robbery.
4
The child testified at the punishment phase, but not at the guilt-innocence phase.
14
injury will satisfy this element of the offense.” Howard, 333 S.W.3d at 138
(internal quotations omitted). Of the two alternative mental states sufficient to
prove an implicit threat, the lesser culpable state of “knowingly” requires that the
actor “is aware that his conduct is reasonably certain to place someone in fear, and
that someone actually is placed in fear.” Id. at 139–40.
The jury could reasonably conclude this requirement was satisfied under the
circumstances of this case based on the following rationale inferences: (1) even if
the perpetrator did not know a child was in the car as he approached, he knew of
her presence as he entered the “two-seat” car; (2) he realized the mere action of an
unfamiliar man suddenly entering the front seat of a small car with a child who was
alone (while her mother was inside an establishment) would place the child in fear
of imminent bodily injury; (3) the child was actually placed in such fear because
she jumped out of the car, screaming with eyes large with fright; and (4) the
perpetrator capitalized on the child’s fear and the fact that it caused her to exit the
car to complete the theft—to “obtain or maintain control of the property;” see Tex.
Penal Code Ann § 29.02(a). See Williams v. State, 827 S.W.2d 614, 615–17 (Tex.
App.—Houston [1st Dist.] 1992, pet. ref’d) (holding evidence was sufficient to
establish robbery where defendant, although he made no verbal threat, had eyes as
“red as fire” and seemed to be “under the influence of something” when he placed
his face close to shopkeeper’s face and demanded money, and shopkeeper’s fear
was evident from fact he reached for a weapon; the conduct was “intensely and
immediately focused on inducing [the shopkeeper] to part with the money”).
In summary, because the trial court did not abuse its discretion by admitting
evidence of the robbery, we overrule appellant’s third issue.
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V. INEFFECTIVE-ASSISTANCE CLAIM
In his fourth through seventh issues, appellant argues he was denied
effective assistance of counsel.
A. Applicable Law and Standard of Review
To prevail on an ineffective-assistance claim, a defendant must prove (1)
counsel’s representation fell below the objective standard of reasonableness, and
(2) there is a reasonable probability that, but for counsel’s deficiency, the result of
the proceeding would have been different. Strickland v. Washington, 466 U.S.
668, 687, 694 (1984); see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.
1986) (applying Strickland standard to ineffective-assistance claims under the
Texas Constitution). In considering an ineffective-assistance claim, we indulge a
strong presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and were motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999);
Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this
presumption, a claim of ineffective assistance must be firmly demonstrated in the
record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate
vehicle for raising such a claim because the record is generally undeveloped and
cannot adequately reflect the motives behind trial counsel’s actions. Rylander v.
State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at
813–14. When the record is silent regarding trial counsel’s strategy, we will not
find deficient performance unless the challenged conduct was “so outrageous that
no competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d
390, 392 (Tex. Crim. App. 2005).
16
B. Analysis
Appellant contends his trial counsel was deficient in four respects:
1. Statement during voir dire
First, appellant complains that counsel informed the jury during voir dire
that appellant would face an enhanced punishment. Before asking the panel
members whether they would consider the full range of punishment, counsel
stated,
I want to talk about range of punishment. As you know, [the
prosecutor] told you that in this particular case, if there is a
conviction, the range of punishment is between 25 and 99 years . . .
As appellant asserts, the prosecutor did not state the range was necessarily
25 to 99 years. Instead, the prosecutor stated that would be the range in “special”
or “certain” circumstances. Appellant’s counsel represented the range was 25 to
99 years, without qualification, although that range would be applicable only if the
jury found the two enhancement paragraphs were true. See Tex. Penal Code Ann.
§ 12.34 (West 2011) (prescribing range of punishment for third degree felony as
two to ten years); Id. § 12.42(d) (West Supp. 2014) (prescribing range of
punishment for third degree felony as 25 to 99 years if defendant has two prior
felony convictions).
However, as appellant did not file a motion for new trial, the record contains
no evidence of counsel’s strategy. As such, on a silent record, appellant has not
overcome the presumption that counsel performed reasonably because there may
have been tactical reasons for his actions. For instance, appellant subsequently
pleaded “true” to the two enhancement paragraphs. Appellant may have already
decided to make those pleas, and, thus, counsel decided to inform the panel of the
enhanced range to focus on assessing whether potential jurors would consider the
17
lower end. Or, counsel may have been trying to ascertain whether certain panel
members might be less likely to convict because they thought the minimum of 25
years was too severe for this offense, as some members subsequently expressed.
Consequently, we cannot conclude counsel’s statement was “so outrageous that no
competent attorney would have” made it. See Goodspeed, 187 S.W.3d at 392.
Additionally, we disagree with appellant’s suggestion that reference to the
enhanced punishment range “prejudiced the jury before the trial could even begin”
and contributed to the guilty verdict. The jury was not informed during voir dire
that any enhanced range was due to previous felony convictions. Further, we
presume the jury followed the trial court’s instructions and considered only the
admitted evidence when deciding guilt or innocence, which did not include
previous convictions. See Ex parte Bratcher, No. AP–76,994, 2013 WL 3282972,
at *12 (Tex. Crim. App. June 26, 2013) (rejecting claim that defense counsel was
ineffective by allowing State to inform panel during voir dire about enhanced
range of punishment, although jury did not assess punishment, because jury was
not informed of prior convictions and court would presume jury followed trial
court’s instruction to consider only admitted evidence in assessing guilt).
2. Failure to object to all extraneous-offense evidence
Appellant also complains that his counsel failed to object to every instance
during the guilt-innocence phase in which the State offered evidence regarding the
extraneous robbery. Appellant posits that, if counsel had properly objected,
appellant would not have been convicted or his direct challenge to admission of the
evidence “would have been better preserved.” We need not decide whether
counsel failed to properly object because failure to object to admissible evidence is
not ineffective assistance and we have concluded the trial court acted within its
discretion by admitting the evidence. See McFarland v. State, 845 S.W.2d 824,
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846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915
S.W.2d 9 (Tex. Crim. App. 1994); Webb v. State, 991 S.W.2d 408, 419 (Tex.
App.—Houston [14th Dist.] 1999, pet. ref’d).
3. Failure to object to jury charge
Next, appellant contends his counsel was ineffective by failing to object to
the erroneous instruction in the charge discussed above—the paragraph incorrectly
suggesting evidence was admitted that appellant had a previous conviction and that
he testified. We conclude that even if counsel’s performance were deficient,
appellant has not satisfied the prejudice prong of Strickland.
Appellant argues he was prejudiced because, if his counsel had objected, the
incorrect instruction could have been removed; or, alternatively, if the trial court
had refused to remove the instruction, appellant would not have been required to
establish egregious harm on appeal. See Barrios, 283 S.W.3d at 350 (stating that if
a defendant objects at trial to error in the charge, reversal is required if the error
“‘is calculated to injure the rights of the defendant,” which means that there is
“some harm”).
We disagree the result of the proceeding would have been different if
counsel had objected because (1) the incorrect instruction did not contribute to the
guilty verdict, and (2) similarly, appellant would not prevail on appeal even if he
were only required to show “some harm.” We recognize that, relative to
appellant’s second issue directly challenging the instruction, we concluded there
was no “egregious harm.” However, we apply the same reasoning to conclude
there was no harm: (1) the instruction did not constitute a comment on appellant’s
failure to testify; (2) we cannot say the jury “necessarily and naturally” took the
erroneous instruction as a comment on appellant’s failure to testify rather than an
alternative, but inapplicable, instruction for when a previous conviction is admitted
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and the defendant does testify; and (3) we presume the jury followed the trial
court’s instructions and did not factor appellant’s failure to testify into its
deliberations or speculate he had previous convictions when no such evidence was
admitted in the guilt-innocence phase.
4. Failure to strike a prospective juror
Finally, appellant complains that counsel failed to strike a prospective
juror—venire person number 25. During voir dire, counsel questioned the panel
members regarding their views on the credibility of police officers. The following
exchange occurred:
[COUNSEL]: And you’re Juror No. 25, when did you work with a
police officer?
VENIREPERSON: I’ve worked with police officers approximately
25 years as a volunteer running part of juvenile probation and working
with battered women and that sort of thing, running some of their
programs, being involved with that; and two members in my family
are law enforcement.
[COUNSEL]: You feel a police officer will not arrest someone if he
did not have good reason to?
VENIREPERSON: Yes.
Counsel did not move to strike this venire person for cause or use a peremptory
strike, and she served on the jury.
The reason that appellant regards this venire person as biased is not exactly
clear; i.e., whether the person was predisposed to (1) believe Officer Stallworth
was lawfully attempting to detain appellant—an element of the offense of evading
arrest, (2) believe appellant was guilty of evading arrest based on the fact that he
was arrested for that offense, or (3) generally assign more weight to a police
officer’s testimony. Whether the venire person held one or more of these pre-
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conceived notions, appellant has not established counsel performed deficiently by
failing to ensure the person did not serve on the jury.
The Texas Court of Criminal Appeals has refused, on a cold record, to hold
counsel was ineffective by failing to challenge a venire person who indicated more
of a bias than the venire person in the present case and served on the defendant’s
jury. See Delrio v. State, 840 S.W.2d 443, 444–47 (Tex. Crim. App. 1992).
During voir dire at the defendant’s trial for cocaine possession, the Delrio venire
person admitted he was a former narcotics officer, knew the defendant by virtue of
this employment, and could not be fair and impartial. See id. at 444–45. The
Court of Criminal Appeals could conceive of some tactical reasons for preferring
the venire person serve on the jury: “Although we would certainly expect the
occasion to be rare, we cannot say . . . that under no circumstances could defense
counsel justifiably fail to exercise a challenge for cause or peremptory strike
against a venireman who deemed himself incapable of serving on the jury in a fair
and impartial manner.” Id. at 446–47. Thus, the court held there was insufficient
basis to overcome the presumption that counsel was better positioned than an
appellate court to judge the pragmatism of the case and made all significant
decisions in the exercise of reasonable professional judgment. See id. at 447.
Likewise, on our cold record, we cannot foreclose the possibility that
appellant’s counsel had tactical reasons for failing to challenge the venire person at
issue for cause or use a peremptory strike. For example, counsel may have
believed the venire person, despite her expressed views, was preferable to others
who were subsequent in the panel order or those against whom counsel used
peremptory strikes. Without an explanation for counsel’s actions, we will not
second guess his decision or conclude his conduct was “so outrageous that no
competent attorney would have engaged in it.” See id.; Thibodeaux v. State, No.
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14–07–00647–CR, 2009 WL 1748747, at *14–15 (Tex. App.—Houston [14th
Dist.] June 23, 2009, pet. ref’d) (mem. op., not designated for publication) (relying
on Delrio and recognizing, on cold record, counsel may have had strategy for
failing to further question and strike nine panel members who indicated they could
not completely afford defendant the presumption of innocence and one panel
member who indicated he believed defendant was guilty, such as preferring those
panel members to others); see also State v. Morales, 253 S.W.3d 686, 696–98
(Tex. Crim. App. 2008) (citing Delrio when holding Morales counsel was not
ineffective for failing to exercise peremptory challenge, after challenge for cause
denied, against panel member who was district attorney in office prosecuting
defendant although she may have been impliedly biased; there was some evidence
counsel made a tactical, albeit difficult, decision because he preferred this panel
member serve on jury than those against whom he exercised peremptory strikes).
In summary, having rejected all of appellant’s ineffective-assistance
contentions, we overrule his fourth through seventh issues.
We affirm the trial court’s judgment.
/s/ John Donovan
Justice
Panel consists of Justices McCally, Busby, and Donovan.
Publish — Tex. R. App. P. 47.2(b).
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