COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-420-CR
ERNEST BENTON CORDELL APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION 1
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A jury convicted Appellant Ernest Benton Cordell of theft of property
under $1,500, enhanced by two prior theft offenses. Upon his plea of true to
the enhancement paragraphs, which enhanced the offense to a second-degree
felony, the jury assessed Appellant’s punishment at twenty years’ confinement
and a fine of $10,000. The trial court sentenced him accordingly.
1
… See Tex. R. App. P. 47.4.
In two points, Appellant contends that he had ineffective assistance at
trial and that the evidence is factually insufficient to support his conviction.
Because the evidence is factually sufficient to support Appellant’s conviction
and because he failed to sustain his burden regarding his claim of ineffective
assistance of counsel, we affirm the trial court’s judgment.
In his first point, Appellant argues that trial counsel failed to provide
effective assistance of counsel when he argued to the jury that he did not
believe that Appellant was innocent and argued that Appellant was a two-bit
criminal. To prove ineffective assistance of counsel, an appellant must satisfy
both prongs of Strickland.2 That is, he must demonstrate that his counsel’s
representation fell below an objective standard of reasonableness based on
prevailing professional norm s, and that, but for counsel’s errors, there is a
reasonable probability he would not have been convicted.3
Rarely will a claim of ineffective assistance of counsel succeed without
a showing in the record—during the trial, during a hearing on a motion for new
trial, or in a habeas proceeding—allowing counsel to explain whether his actions
or the absence of action is part of his trial strategy. There is a strong
2
… Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984).
3
… Id. at 694, 104 S. Ct. at 2068.
2
presumption that trial counsel’s actions were part of a sound trial strategy. 4 A
record that is silent as to trial counsel’s actions does not rebut the
presumption.5 Unless trial counsel’s actions constitute, on their face,
ineffective assistance, if there is no evidence in the record rebutting the
presumption of effectiveness, a reviewing court must consider how a trial
counsel’s actions fit within the bounds of professional norms.6
As we read the record, it is clear that trial counsel was arguing that the
jurors could find Appellant an unlikeable person, and not an innocent person in
matters of daily life, but that the fact that they did not like Appellant and did
not think he was possessed of childlike innocence was not sufficient to find him
guilty of theft beyond a reasonable doubt. Counsel was explaining the
difference between “pure-driven-snow” innocence and the legal concept of not
guilty.
Appellant argues that trial counsel’s use of the phrases “two-bit criminal”
and “not innocent” undermined the presumption of innocence, but the record
reveals trial counsel’s apparent trial strategy. He explained that by “two-bit
criminal” he meant that authorities knew of Appellant’s two previous theft
4
… Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007).
5
… Id.
6
… Id.
3
convictions and rushed to prosecute him. That is, trial counsel argued that
because they were aware of Appellant’s criminal record, which the jury was
also aware of, the authorities assumed his guilt from the beginning and did not
afford him the normal protections a citizen less well known to them would have
received. Based on the record before us, we cannot say that trial counsel’s
strategy fell below the norm of professional competence. The fact that a trial
strategy does not work does not mean that trial counsel was ineffective. 7
Because Appellant has failed to sustain his burden of proving ineffective
assistance of counsel by a preponderance of the evidence, 8 we overrule his first
point.
In his second point, Appellant argues that the evidence is factually
insufficient to sustain a verdict of guilt because there is insufficient evidence
that he exercised control over the property without the owner's consent and
because no value of the property alleged to have been stolen was established.
To prove theft, the State must prove that a person actually exercised control
over the stolen property.9
7
… State v. Balderas, 915 S.W.2d 913, 919 (Tex. App.— Houston [1st
Dist.] 1996, pet. ref’d).
8
… See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
9
… Tex. Penal Code Ann. §§ 31.01(4)(B), 31.03 (Vernon 2003).
4
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party. 10
We then ask whether the evidence supporting the conviction, although legally
sufficient, is nevertheless so weak that the factfinder’s determination is clearly
wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. 11 To reverse under the second ground, we
must determine, with some objective basis in the record, that the great weight
and preponderance of all the evidence, though legally sufficient, contradicts the
verdict.12
The evidence showed that Appellant purchased two Dyson vacuum
cleaners at the Granbury Wal-Mart pharmacy counter, left the store through the
automotive department, re-entered the store through the general merchandise
doors with an empty shopping cart, and exited the grocery doors with two
additional Dyson vacuum cleaners that he had not paid for. One vacuum was
identical to the two vacuum cleaners he had purchased. The other was similar,
10
… Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008), cert.
denied, 129 S. Ct. 1037 (2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.
Crim. App. 2006).
11
… Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);
Watson, 204 S.W.3d at 414–15, 417.
12
… Watson, 204 S.W.3d at 417.
5
the cost slightly more. Appellant placed all the vacuum cleaners in his car and
left the parking lot. Later, Appellant returned the two vacuum cleaners he had
purchased to another Wal-Mart store and exchanged the two stolen vacuum
cleaners at the Granbury store for a television and a DVD recorder. The store
representative testified that one of the stolen vacuum cleaners cost $378.42.
Although he did not testify to the exact value of the second stolen vacuum
cleaner, he did testify that it cost more than the $378.42 vacuum cleaner.
Appellant stipulated to his two prior theft convictions. Therefore, with
regard to the value element, the State was required to prove only that the value
of the merchandise stolen was less than $1,500.13 In Price v. State, 14 the
Texas Court of Criminal Appeals faced a similar set of facts. Price was charged
with stealing property from a jewelry store with an aggregate value of over
$50.15 The owner did not testify to the precise value of two of the pieces of
property Price stole, although he stated their approximate value. 16 The court
held that the evidence proved the items were stolen and that the value of each
13
… Tex. Penal Code Ann. § 31.03(e)(4)(D).
14
… 493 S.W.2d 528, 530 (Tex. Crim. App. 1973).
15
… Id. at 529.
16
… Id. at 529–30.
6
of the items was more than $50.17 The Price court concluded that the evidence
was “certainly sufficient to sustain the allegation of an aggregate value of over
$50.” 18
Similarly, here the State was required to prove that the stolen property
had only some value under $1500, not its exact value. 19 As in Price, the
evidence here shows that Appellant exercised control over two Dyson vacuum
cleaners that he did not pay for but that he took out of the store, and it also
shows that the aggregate value of the vacuum cleaners was some value under
$1500 but more than $756.84, based on the testimony that one of the stolen
vacuum cleaners cost $378.42 and that the other vacuum cleaner cost more.
We hold that the evidence is factually sufficient to support Appellant’s
conviction. We overrule his second point.
Having overruled both of Appellant’s points, we affirm the trial court’s
judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 1, 2009
17
… Id. at 530.
18
… Id.
19
… See Tex. Penal Code Ann. § 31.03(e)(4)(D).
7