Sunday Agbogwe v. State

Opinion issued August 29, 2013

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00207-CR
NO. 01-12-00208-CR
———————————
SUNDAY AGBOGWE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 12
Harris County, Texas
Trial Court Case Nos. 1767858 & 1767859

OPINION

A jury convicted appellant, Sunday Agbogwe, of two counts of the

misdemeanor offense of assault. 1 The trial court assessed punishment at one year’s

1
See TEX. PENAL CODE ANN. § 22.01(a)(1) (Vernon 2011). The assault against
Eucharia Ozoh was tried in cause number 1767858 and resulted in appellate cause
confinement, suspended for one year, and a $500 fine in cause number 1767858

and twenty days’ confinement in cause number 1767859, to run concurrently. The

trial court also made an affirmative finding of family violence in both cause

numbers. In ten issues, appellant contends that (1) the trial court erred in admitting

evidence about his ethnicity; (2)–(9) his trial counsel rendered ineffective

assistance of counsel under both the United States and Texas constitutions; and

(10) the trial court erroneously included an affirmative finding of family violence

in the judgment for cause number 1767859. The State raises a cross-point and

contends, in cause number 1767858, that the trial court orally pronounced a fine of

$1,000 but assessed a $500 fine in its written judgment.

We modify the judgments of the trial court and affirm as modified.

Background

Appellant was in a dating relationship and lived with one of the

complainants, Eucharia Ozoh, and they operated a bar together. On June 18, 2011,

appellant, who is Nigerian, hosted a traditional Nigerian event called a “wake

keeping” at the bar. A wake keeping is a party honoring a member of the

community who has had a death in the family. In preparation for the event, Ozoh

bought several bottles of liquor. She testified that the drinks served at this party

needed to be purchased and that the bottles were not to be given away to the

number 01-12-00207-CR. The assault against Brenetha Caldwell was tried in
cause number 1767859 and resulted in appellate cause number 01-12-00208-CR.
2
guests. She asked her friend Brenetha Caldwell, the other complainant, to assist

her in serving guests at the party. It is undisputed that Caldwell is not related to

appellant and that she was not a member of appellant’s household. Ozoh also

testified that Majerum McCarthy, whom she knew but was not friends with, was

also present and helping serve.

During the course of the evening, Ozoh observed appellant handing out

bottles of liquor to guests without requiring payment. Ozoh saw appellant give a

guest the last bottle of cognac, worth $100, and Ozoh approached the guest and

asked him if he needed the entire bottle because that was the last bottle and the

party was still ongoing. The guest replied that he did not need the entire bottle,

and he gave the bottle back to Ozoh. As Ozoh placed the bottle back on the shelf,

appellant “swung at [her]” with his fist. Appellant hit her twice and continued to

hit her as she fell to the floor, at which point appellant kicked her on her back.

Caldwell tried to intervene, and appellant started hitting her as well. When the

police arrived, after Caldwell called 9-1-1, Ozoh was hesitant to talk to them. She

acknowledged that she had asked the State to drop the charges against appellant

because she was scared. She testified that appellant, as well as friends of his, had

asked her to drop the charges. Defense counsel did not object to this testimony.

The State asked, “Even though you wanted to drop charges, does that mean—are

you saying that it didn’t happen?” Ozoh responded, “It happened.”

3
 During Ozoh’s testimony, the State asked her about the circumstances under

which she and appellant decided to go into business together. She stated that

appellant had previously owned a medical supply business and that he was having

difficulties with one of his employees. When Ozoh and appellant were discussing

these problems, appellant told her that he and the employee “had a big altercation

in the office and police came and that he almost hit her.” Defense counsel

objected, and the trial court sustained the objection. Defense counsel did not

request a limiting instruction or an instruction to disregard this testimony.

Caldwell testified that Ozoh showed her that appellant was charging guests

for drinks and then pocketing the money instead of putting it in the cash register.

Neither Ozoh nor Caldwell confronted appellant about this. Later, Caldwell saw

Ozoh walk up to a guest after appellant had given him the last bottle of cognac and

ask if he would mind letting her have the bottle so she could continue to serve the

guests. The guest gave the bottle back. Ozoh was standing next to Caldwell as she

put the bottle back on the shelf, and Caldwell testified that “everything was quiet-

like and all [of a] sudden, I just looked and [appellant] was beating [Ozoh].”

Caldwell saw appellant beating Ozoh on the top of her head with his fist and

kicking her in her side. Caldwell tried to shield Ozoh from appellant’s blows, but

appellant then pulled Caldwell over Ozoh and hit her on the left side of her face

with a closed fist. Caldwell ran outside and called 9-1-1. The responding police

4
officer noticed redness in the area where appellant had hit Caldwell, and she had a

bruise several days later.

Caldwell testified that, while the case was pending, Ozoh and friends of

appellant asked her to drop the charges against appellant. She also testified that

appellant’s friends asked her not to comply with the subpoena issued to her in the

case and not to show up in court. These individuals offered to pay any fines that

Caldwell incurred for her noncompliance. Defense counsel did not object to this

testimony.

Houston Police Department Officer J. Morant testified that she responded to

a 9-1-1 call concerning two assaults at the bar. Caldwell, who was standing

outside when Officer Morant arrived, looked “a little upset” and was “a little

shaky,” but she was able to tell Morant about what had happened. Ozoh did not

want to speak with Officer Morant initially, but she did eventually speak with her.

Officer Morant described Ozoh’s demeanor as “really nervous.” Officer Morant

observed “some redness” on the area near Caldwell’s ear.

McCarthy testified that she was bartending at the bar on June 18, 2011. At

one point during the evening, Ozoh showed McCarthy that appellant was giving

away liquor. McCarthy saw Ozoh ask the guest who received the liquor if he

wanted to buy it. After that, Ozoh and appellant “started back and forth with one

another, I guess, about the situation; and then [appellant] hit [Ozoh]” with his fist,

5
and Ozoh fell to the floor. McCarthy only saw appellant hit Ozoh once. After

Ozoh fell to the floor, Caldwell came over, crouched down on the floor with Ozoh,

and asked appellant what he was doing. In response, appellant hit Caldwell with a

closed fist.

On re-direct examination of McCarthy, the prosecutor approached the bench

and informed the trial court that she “would like to ask this witness about the

extraneous criminal mischief when the defendant came back [to the bar] the next

day and damaged property . . . .” The trial court refused to allow the State to

explore this line of questioning.

On cross-examination of Ozoh, which occurred the day after McCarthy

testified, defense counsel asked whether she changed the locks on the doors to the

bar after this incident. Ozoh responded that she did. The following exchange then

occurred:

[Defense counsel]: And did that then eliminate [appellant’s]
entry into the bar?
[Ozoh]: It did not.
[Defense counsel]: And now, did [appellant] rekey the locks?
[Ozoh]: He did.
[Defense counsel]: Did you complain about that?
[Ozoh]: He did and vandalized the place. He did
rekey it, went there, vandalized, and took
every single thing in that bar.

6
On re-direct examination, the State questioned Ozoh about this vandalism, and the

trial court admitted ten photographs which depicted missing television sets, a

broken mirror, and paint splashed on a wall of the bar.

Pat Otalor testified on appellant’s behalf and stated that she was present at

the bar on the night of the incident. She stated that guests at a wake keeping are

not expected to pay for their drinks. Otalor was able to see appellant and Ozoh

having an argument, but she did not see either Ozoh or Caldwell fall to the floor.

Daniel Nwatune, another guest at the party, testified that he told appellant

that he needed some cognac. Right after appellant gave him the drink, Ozoh

“snatched” the drink away in an aggressive and impolite manner and asked him if

he had paid for the drink. As they were talking, appellant came back over and

Nwatune explained the situation. Appellant and Ozoh then started arguing, and

Ozoh shouted at appellant. Nwatune testified that appellant and Ozoh argued, but

appellant did not hit Ozoh or Caldwell.

Gladys Uwagboi testified that she heard Ozoh say, “I will show him, I will

tell him that he’s a little rat.” She did not see appellant hit Ozoh. Festus Irabor

testified that he also heard Ozoh call appellant a “little rat” and that, although he

saw appellant and Ozoh arguing, he did not see anyone get hit during the party.

Appellant testified on his own behalf. He stated that he was surprised when

Ozoh and Caldwell arrived at the party because they were not invited. He did not

7
remember seeing McCarthy at the party at all. He stated Nwatune requested a

bottle of cognac, and, after he gave him the bottle, Nwatune told him that Ozoh

had snatched the bottle away from him. When appellant questioned Ozoh about

this, Ozoh “just went off on [him].” Some of the guests took appellant outside to

defuse the situation.

Appellant testified that he did not intend to vandalize the bar when he went

to it the next day. He called a locksmith to let him in the building, and, once

inside, he decided to remove all of the things in the bar that he had purchased

himself, including the television sets. He used a ladder to remove one of the

televisions, and, at one point, the ladder fell and smashed a mirror. He also

testified that paint got on a wall and the floor when he picked up a paint can that he

did not know was partially opened.

During the State’s cross-examination of appellant, the following exchange

occurred:

[State]: You’re from Nigeria, correct?
[Appellant]: Yes, ma’am.
[State]: And in the Nigerian culture, women
typically take a subservient role to the man,
correct?
[Appellant]: What do you mean?
[Defense counsel]: Objection, Judge.
The Court: Overruled.

8
 [Appellant]: What do you mean? I don’t understand
what you mean by that.
[State]: The man is usually, for lack of a better
word, the boss of the family?
[Appellant]: I don’t know about that.
[Defense counsel]: Objection, Judge. It is speculation.
The Court: Overruled. He says no. I overrule the
objection.
[State]: So, you don’t know?
[Appellant]: No, I don’t know about that.

The State then asked appellant if it bothered him that Ozoh had a more dominant

role in their relationship. Appellant responded that it did not. Defense counsel did

not object to this question.

The State also had the following exchange with appellant later in cross-

examination:

[State]: Do you remember threatening Ms. Ozoh by
emulating a gun and telling her that if
anything happens to you—
[Defense counsel]: Objection.
[Appellant]: That’s not true.
[Defense counsel]: It’s out of character and—
The Court: That’s not a legal objection. Overruled.
[State]: Do you remember emulating a gun and
telling her if anything happened to you,
you’re going to kill her and you’re going to
kill Ms. Caldwell?
[Appellant]: It’s all allegation. That is not true.
9
 The State then recalled Ozoh in rebuttal. The following occurred:

[State]: And Nigerian culture, would they prefer to
take care of something like this assault
within the community or are they okay with
us including—

[Defense counsel]: Objection. Relevance.

The Court: Overruled.

[Ozoh]: It’s very common.

[State]: I’m sorry?

[Ozoh]: It happens. And it’s not looked at as
anything wrong. A husband can beat up a
wife, a man can beat up a woman and
nothing happens to them.

Defense counsel did not object to Ozoh’s answer.

The State referenced appellant’s and Ozoh’s testimony during closing

argument:

We also talked about how the Nigerian community would like to keep
this incident within that community. And that is reflected within the
9-1-1 call. They don’t want anybody calling 9-1-1. They don’t want
the police in their business. So, what do they do? They get up here
and tell you nothing happened. That way, he gets to walk away and
it’s kept in the community. But if you come back with a not guilty
verdict, that tells him what he’s done is absolutely right. He is free in
this country to beat any woman that he wants, that is absolutely
inappropriate. The correct verdict in this case is a guilty verdict.

The State also, during closing argument, reminded the jury that the case was about

whether appellant assaulted Ozoh and Caldwell, and, to that end, the testimony
10
about the vandalism of the bar was not relevant. The State urged the jury not to

“worry about these side issues, they really aren’t relevant.”

The jury found appellant guilty of both counts of assault. When the trial

court orally pronounced appellant’s sentence for cause number 1767858, the

assault on Ozoh, it sentenced appellant to one year’s confinement, suspended the

sentence, and placed him on community supervision for two years. It also imposed

a $1,000 fine. For cause number 1767859, the assault on Caldwell, it sentenced

appellant to twenty days’ confinement.

The written judgments for both convictions included an affirmative family

violence finding pursuant to Code of Criminal Procedure article 42.013. The

judgment for cause number 1767858 also stated that appellant was to be placed on

community supervision for one year, and it imposed a $500 fine.

Appellant did not move for a new trial. This appeal followed.

Admission of Evidence of Ethnicity

In his first issue, appellant contends that the trial court erred in allowing

testimony concerning his ethnicity, specifically, appellant’s testimony concerning

whether, in Nigerian culture, women usually take a subservient role to men and

Ozoh’s testimony that the Nigerian community tends to keep matters such as

assaults within the community and that men can beat women with impunity in the

community. Appellant contends that this testimony violates his due process rights.

11
 A. Appellant’s Constitutional Argument

We agree with appellant that “[r]acially prejudicial remarks and appeals to

racial prejudice have no place in a courtroom.” Bryant v. State, 25 S.W.3d 924,

926 (Tex. App.—Austin 2000, pet. ref’d) (citing Allison v. State, 248 S.W.2d 147,

148 (Tex. Crim. App. 1952)). We do not believe, however, that the trial court’s

allowance of the complained-of questions and testimony rises to the level of

fundamental error, such that appellant was not required to comply with the general

rules of error preservation before presenting, for the first time on appeal, his

complaint that the questions violated his due process rights.

The Fourteenth Court of Appeals’ opinion in Moreno v. State is instructive.

See 195 S.W.3d 321 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Moreno

involved the question of whether the defendant’s due process rights were violated

when the State referred to his status as an illegal immigrant during closing

argument and argued that this status warranted a more severe punishment than

community supervision. Id. at 328–29. The prosecutor in Moreno made the

following argument:

You heard him testify that he walked over here, he walked across the
border illegally. You know what he’s going to do if you put him on
probation? He’s going to walk right back. That is no punishment at
all. Even if he is put on probation, he can’t meet the terms of his
probation. He’s here illegally, he’s automatically in violation of the
law. Automatically in violation of federal law by his mere presence
because he is here illegally. He has to work faithfully at employment.

12
 He can’t work if he is here illegally. He has to remain within a
specified place. He’s not going to do that . . . .

He comes over here illegally and poisons our society with all these
drugs. If he wants to deal heroin, why doesn’t he go back to Mexico
and do it in his own country instead [of] coming here and poisoning
our citizens of Harris County and selling these drugs in our
community?

Id. at 328. Moreno did not object to this argument. Id.

On appeal, Moreno argued that an objection to the State’s argument was not

necessary because the argument violated his fundamental rights. Id. at 329. The

Fourteenth Court of Appeals disagreed, relying on the Court of Criminal Appeals’

decision in Cockrell v. State, which had held that the defendant’s failure to object

to an allegedly improper jury argument forfeited his right to complain about the

argument on appeal. Id. (citing Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim.

App. 1996)). The Moreno court noted that the Court of Criminal Appeals had

applied Cockrell even in cases in which the closing argument allegedly violated the

defendant’s due process rights. Id. (citing Ladd v. State, 3 S.W.3d 547, 569–70

(Tex. Crim. App. 1999)). The court ultimately held that “even if the complained-

of argument violated appellant’s due process rights and even if it could not have

been cured by an instruction to disregard, appellant failed to preserve error by his

failure to voice an objection in the trial court.” Id.

Although Moreno involved allegedly improper jury argument and this case

involves allegedly improper questioning, we follow Moreno in holding that the
13
trial court’s allowance of the State’s questions in this case does not constitute

fundamental error. See id.; see also Clark v. State, 365 S.W.3d 333, 340 (Tex.

Crim. App. 2012) (noting that fundamental error occurs when certain constitutional

rights are violated but holding that defendant “forfeited his denial-of-due-process

claim by not properly preserving error at trial”). As such, to preserve his

complaint that the State’s questions violated his due process rights, appellant was

required to object on this basis to the trial court.

Generally, to preserve error, the complaining party must make a timely

request, objection, or motion that states the grounds for the ruling sought with

sufficient specificity to make the trial court aware of the complaint, unless the

specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a)(1)(A).

To avoid forfeiting a complaint on appeal, the complaining party must “let the trial

judge know what he wants, why he thinks he is entitled to it, and to do so clearly

enough for the judge to understand him at a time when the judge is in the proper

position to do something about it.” Pena v. State, 285 S.W.3d 459, 464 (Tex.

Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim.

App. 1992)). This gives both the trial court and the opposing party a chance to

correct the error. Id. (citing Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App.

2005)). The trial court needs to be presented with and have the chance to rule upon

the defendant’s specific constitutional objection “because it can have such heavy

14
implications on appeal.” Clark, 365 S.W.3d at 340 (holding that trial court “should

know when it is being asked to make a constitutional ruling because constitutional

error is subject to a much stricter harm analysis on appeal”). “Whether a party’s

particular complaint is preserved depends on whether the complaint on appeal

comports with the complaint made at trial.” Pena, 285 S.W.3d at 464 (citing

Reyna, 168 S.W.3d at 177). We consider both the context in which the

complainant was made and the parties’ shared understanding at that time. Id.

Here, during cross-examination of appellant, the following exchange

occurred:

[State]: And in the Nigerian culture, women
typically take a subservient role to the man,
correct?
[Appellant]: What do you mean?
[Defense counsel]: Objection, Judge.
The Court: Overruled.
[Appellant]: What do you mean? I don’t understand
what you mean by that.
[State]: The man is usually, for lack of a better
word, the boss of the family?
[Appellant]: I don’t know about that.
[Defense counsel]: Objection, Judge. It is speculation.
The Court: Overruled. He says no. I overrule the
objection.
[State]: So you don’t know?
[Appellant]: No, I don’t know about that.

15
Defense counsel did not object on due process or other constitutional grounds, and

there is no indication that either the trial court or the State understood defense

counsel to be making a constitutional objection. Then, when the State called Ozoh

as a rebuttal witness, the following occurred:

[State]: And Nigerian culture, would they prefer to
take care of something like this assault
within the community or are they okay with
us including—

[Defense counsel]: Objection. Relevance.

The Court: Overruled.

[Ozoh]: It’s very common.

[State]: I’m sorry?

[Ozoh]: It happens. And it’s not looked at as
anything wrong. A husband can beat up a
wife, a man can beat up a woman and
nothing happens to them.

Again, defense counsel objected solely on relevance grounds, and he did not raise a

due process or other constitutional objection to this questioning. We conclude that

appellant failed to preserve for appellate review his complaint that the State’s

questioning of him and Ozoh violated his due process or other constitutional rights.

See Clark, 365 S.W.3d at 340 (holding that defense counsel’s “badgering, sidebar,

argumentative, invading the province of the jury, and mischaracterization”

objections did not preserve due process complaint for appellate review).
16
 B. Appellant’s Evidentiary Objections

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002) (citing

Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001)); see also Gallo v.

State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007) (“The admissibility of a

photograph is within the sound discretion of the trial judge.”). We will not reverse

the trial court’s ruling unless the ruling falls outside the zone of reasonable

disagreement. Torres, 71 S.W.3d at 760; see also Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008) (holding that trial court abuses its discretion only if its

decision is “so clearly wrong as to lie outside the zone within which reasonable

people might disagree”). In applying the abuse of discretion standard, we may not

reverse a trial court’s admissibility decision solely because we disagree with it.

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will not disturb a

trial court’s evidentiary ruling if it is correct on any theory of law applicable to that

ruling. De La Paz v. State, 279 S.W.3d 335, 344 (Tex. Crim. App. 2009).

Defense counsel objected to the State’s questioning of appellant solely on

speculation grounds, and the trial court overruled this objection. On appeal,

appellant presents no argument or authorities that the question called for

speculation or that appellant lacked the personal knowledge necessary to answer

the questions. See Higgins v. State, 924 S.W.2d 739, 745 (Tex. App.—Texarkana

17
1996, pet. ref’d) (analyzing complaint that trial court allowed speculative

testimony under Rule of Evidence 602, which requires witness to have personal

knowledge of matter to which he is testifying); see also TEX. R. EVID. 602. As a

general rule, the failure to present any argument on appeal with respect to a

particular issue waives that issue. See Bridgewater v. State, 905 S.W.2d 349, 354

n.5 (Tex. App.—Fort Worth 1995, no pet.).

Defense counsel objected to the relevance of the State’s question posed to

Ozoh of whether the Nigerian community prefers to handle matters such as

assaults within the community itself. Relevant evidence is evidence that has “any

tendency to make the existence of any fact that is of consequence of the

determination of the action more probable or less probable than it would be

without the evidence.” TEX. R. EVID. 401. Defense witnesses may be impeached

with evidence of bias or interest. Moreno v. State, 22 S.W.3d 482, 486 (Tex. Crim.

App. 1999); London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987) (“The

general rule is that either party is entitled, subject to reasonable restrictions placed

by the trial judge, to show any relevant fact which would or might tend to establish

ill feeling, bias, motive, interest or animus on the part of any witness testifying

against him.”); see also Sparks v. State, 943 S.W.2d 513, 515 (Tex. App.—Fort

Worth 1997, pet. ref’d) (“The credibility of a witness may be attacked by evidence

that the witness is slanting his testimony against or in favor of a party as a result of

18
personal interest or bias in the cause.”). “A successful showing of bias on the part

of a witness would have a tendency to make the facts to which he testified less

probable in the eyes of the jury than it would be without such testimony.”

McKnight v. State, 874 S.W.2d 745, 746 (Tex. App.—Fort Worth 1994, no pet.).

As the State points out, appellant called several witnesses to testify on his

behalf, all of whom are members of the Nigerian community and all of whom

testified that, although they saw appellant and Ozoh arguing, they did not see this

argument escalate into an argument involving physical violence. Testimony that

members of the Nigerian community generally prefer to handle themselves matters

that are otherwise appropriate for law enforcement is relevant to the question of

whether appellant’s witnesses are biased against the State, which ultimately affects

their credibility. 2 See London, 739 S.W.2d at 846 (“[T]he general rule is that the

State is clearly entitled to show any bias a defense witness might have against the

State or the prosecutor.”). We conclude that the trial court did not abuse its

discretion in overruling defense counsel’s relevance objection to the question

posed to Ozoh.

We overrule appellant’s first issue.

2
We note that the State also questioned Daniel Nwatune concerning the Nigerian
community’s preference for keeping criminal matters within the community.
During this line of questioning, defense counsel objected twice, on speculation and
argumentative grounds. Defense counsel did not object on the basis of relevance.
19
 Ineffective Assistance of Counsel

In his second through ninth issues, appellant contends that he received

ineffective assistance of counsel under the United States and Texas constitutions3

when his trial counsel (1) elicited testimony concerning alleged extraneous bad

acts; (2) failed to object to evidence that appellant had requested that both

complainants drop the charges against him; (3) failed to request a limiting

instruction after the trial court sustained his objection to Ozoh’s testimony

regarding appellant’s altercation with a prior business partner; and (4) failed to

request a limiting instruction after the trial court sustained his objection to

testimony concerning an alleged threat appellant made to Ozoh.

A. Standard of Review

To establish a showing of ineffective assistance of counsel, an appellant

must demonstrate, by a preponderance of the evidence, that (1) his counsel’s

performance was deficient and (2) there is a reasonable probability that the result

of the proceeding would have been different but for his counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064

3
Because appellant presents no argument or authority that the Texas Constitution
provides different protection than the United States Constitution in the ineffective
assistance of counsel context, we make no distinction between his state and federal
claims. See Garcia v. State, 308 S.W.3d 62, 65 n.1 (Tex. App.—San Antonio
2009, no pet.) (citing Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993)
and Sturchio v. State, 136 S.W.3d 21, 23 (Tex. App.—San Antonio 2002, no
pet.)).
20
(1984); Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010); Cannon v.

State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008). The appellant’s failure to

make either of the required showings of deficient performance and sufficient

prejudice defeats the claim of ineffective assistance. Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003); see also Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of

the Strickland test negates a court’s need to consider the other prong.”).

The appellant must first show that his counsel’s performance fell below an

objective standard of reasonableness. Robertson v. State, 187 S.W.3d 475, 483

(Tex. Crim. App. 2006); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.

1999). The second prong of Strickland requires the appellant to demonstrate

prejudice—“a reasonable probability that, but for his counsel’s unprofessional

errors, the result of the proceeding would have been different.” Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

We indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance, and, therefore, the appellant must

overcome the presumption that the challenged action constituted “sound trial

strategy.” Id. at 689, 104 S. Ct. at 2065; Williams, 301 S.W.3d at 687. Our review

21
is highly deferential to counsel, and we do not speculate regarding counsel’s trial

strategy. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To

prevail on an ineffective assistance claim, the appellant must provide an appellate

record that affirmatively demonstrates that counsel’s performance was not based

on sound strategy. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001); see

Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate

alleged ineffectiveness).

In the majority of cases, the record on direct appeal is undeveloped and

cannot adequately reflect the motives behind trial counsel’s actions. Mallett, 65

S.W.3d at 63; see also Massaro v. United States, 538 U.S. 500, 504–05, 123 S. Ct.

1690, 1694 (2003) (“If the alleged error is one of commission, the record may

reflect the action taken by counsel but not the reasons for it. The appellate court

may have no way of knowing whether a seemingly unusual or misguided action by

counsel had a sound strategic motive or was taken because the counsel’s

alternatives were even worse. The trial record may contain no evidence of alleged

errors of omission, much less the reason underlying them.”). Because the

reasonableness of trial counsel’s choices often involves facts that do not appear in

the appellate record, the Court of Criminal Appeals has stated that trial counsel

should ordinarily be given an opportunity to explain his actions before a court

reviews that record and concludes that counsel was ineffective. See Rylander, 101

22
S.W.3d at 111; Bone, 77 S.W.3d at 836; Mitchell v. State, 68 S.W.3d 640, 642

(Tex. Crim. App. 2002).

B. Counsel’s Alleged Errors

1. Eliciting Extraneous Bad Acts Testimony

In his second and third issues, appellant contends that defense counsel

rendered ineffective assistance when he elicited testimony from Ozoh concerning

appellant’s alleged subsequent vandalism of the bar after the trial court had already

refused to allow the State to question McCarthy about this topic.

Courts have held that allowing the jury to hear “prejudicial and clearly

inadmissible evidence” during the guilt phase of the trial—such as evidence

concerning the defendant’s prior convictions—“could serve no strategic value” in

cases in which the defendant’s defense “rested almost entirely on his credibility.”

Robertson v. State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006); Garcia v. State,

308 S.W.3d 62, 68 (Tex. App.—San Antonio 2009, no pet.). But see Williams, 301

S.W.3d at 687 (holding, when defense counsel informed trial court that he had

spoken with defendant about opening door to extraneous offenses and defendant

had agreed to that decision, that appellate court “will not second-guess legitimate

strategic or tactical decisions made by counsel in the midst of trial”). “Opening the

door to otherwise inadmissible extraneous offense evidence that undermines the

23
defendant’s character and credibility serves no purpose other than to prejudice the

defendant’s ability to present his defense.” Garcia, 308 S.W.3d at 69.

Here, during McCarthy’s testimony, the State approached the bench and

stated, “Your Honor, at this time I would like to ask this witness about the

extraneous criminal mischief when the defendant came back the next day and

damages property . . . .” The trial court refused to allow this line of questioning.

Then, on cross-examination of Ozoh, defense counsel asked her about the actions

that she took “in terms of the locks on the doors of the bar” after the incident.

Ozoh responded that she changed the locks. The following exchange occurred:

[Defense counsel]: And did that then eliminate [appellant’s]
entry into the bar?
[Ozoh]: It did not.
[Defense counsel]: And now, did [appellant] rekey the locks?
[Ozoh]: He did.
[Defense counsel]: Did you complain about that?
[Ozoh]: He did and vandalized the place. He did
rekey it, went there, vandalized, and took
every single thing in that bar.

Defense counsel questioned Ozoh further about appellant’s alleged vandalism of

the bar, and the State also questioned Ozoh about the vandalism on redirect. The

trial court then admitted ten pictures depicting the bar after the alleged vandalism

had occurred. These pictures reflected missing television sets, a broken mirror,

and paint on a wall. Appellant admitted that he removed the television sets that he
24
had purchased from the bar, but he denied vandalizing the bar. He stated that he

had been using a ladder to remove a television, and the ladder fell and hit the

mirror, smashing it. He also stated that he moved a paint can, but he did not

realize that the can was partially open, which is how paint ended up on a wall and

the floor. During closing argument, the prosecutor reminded the jury on three

separate occasions that the question before it was whether appellant had assaulted

Caldwell and Ozoh and that the vandalism that had occurred at the bar was not

relevant to that determination.

Even if defense counsel’s actions fell below an objective standard of

reasonableness, to establish his claim of ineffective assistance, appellant must also

demonstrate prejudice—a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812; see

also Williams, 301 S.W.3d at 687 (“An appellant’s failure to satisfy one prong of

the Strickland test negates a court’s need to consider the other prong.”). Appellant

cites the San Antonio Court of Appeals’ decision in Garcia for the proposition that

opening the door to inadmissible extraneous bad acts evidence “undermines the

defendant’s character and credibility” and is particularly prejudicial when the

defensive strategy is based “almost entirely on the defendant’s credibility versus

the complainant’s credibility.” 308 S.W.3d at 68–69.

25
 Unlike in Garcia, an aggravated sexual assault case in which the primary

witnesses testifying concerning the offense itself were the defendant and the

complainant, both Caldwell and Ozoh, as well as McCarthy, a disinterested

witness, testified that appellant assaulted both complainants. Both Caldwell and

Ozoh testified that appellant or his friends later attempted to pressure them into

dropping the charges against appellant. When Ozoh was asked by the prosecutor,

“Even though you wanted to drop charges, does that mean—are you saying that it

didn’t happen?” she replied, “It happened.” Officer Morant testified that, when she

arrived at the scene, she observed redness near Caldwell’s ear, which is where

Caldwell alleged that appellant had hit her. Furthermore, during closing argument,

the prosecutor stated on three occasions that the case was not “about the vandalism

that occurred,” that the vandalism “really doesn’t have anything to do with whether

this defendant assaulted the complainants on that night,” and that the jury should

“just look at the elements that have to be proven, don’t worry about these side

issues, they really aren’t relevant.”

In light of the evidence presented, we conclude that appellant has not

established, by a preponderance of the evidence, a reasonable probability that, but

for defense counsel’s actions in eliciting testimony concerning appellant’s alleged

vandalism of the bar, the jury would have found appellant not guilty. See

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068 (holding that reasonable probability

26
that result would have been different is probability sufficient to undermine

confidence in outcome). Because appellant has not demonstrated prejudice as a

result of these actions, his ineffective assistance claims relating to these actions

fails.

We overrule appellant’s second and third issues.

2. Failure to Object to Testimony that Appellant Had Requested
that the Complainants Drop the Charges

In issues four and five, appellant contends that his trial counsel rendered

ineffective assistance when he failed to object to testimony concerning requests

made to Caldwell and Ozoh by appellant and his friends in an attempt to persuade

the complainants to drop the charges against him.

Caldwell testified on direct examination that appellant’s friends had

contacted her and asked her to drop the charges against appellant. These

individuals asked Caldwell not to comply with the subpoena that had been issued,

and they assured her that, if she did not comply with the subpoena, they would pay

the fines associated with her noncompliance. Ozoh also testified that appellant and

his friends had asked her to drop the charges. Defense counsel did not object to

any of this testimony.

Appellant argues that this failure to object constituted ineffective assistance

because the evidence was not relevant. As the State points out, this Court has

previously held that “[a]n attempt to tamper with a witness is evidence of
27
‘consciousness of guilt.’” Johnson v. State, — S.W.3d —, No. 01-10-00314-CR,

2011 WL 1753209, at *2 (Tex. App.—Houston [1st Dist.] May 5, 2011, pet. ref’d)

(holding that “affidavit of non-prosecution” prepared by defendant and presented

to complainant to sign was evidence of attempt to induce complainant not to testify

and did not constitute hearsay); see also Wilson v. State, 7 S.W.3d 136, 141 (Tex.

Crim. App. 1999) (holding that defendant’s references to witness’s father and new

baby “reasonably could have been interpreted as a veiled attempt to influence [the

witness’s] testimony” and that “[s]uch an attempt to tamper with a witness is

evidence of ‘consciousness of guilt’”).

Evidence that appellant and his friends requested that Caldwell and Ozoh

drop the charges against appellant, asked Caldwell to ignore her subpoena, and

offered to pay any fines assessed against Caldwell for her noncompliance with the

subpoena is substantively admissible as evidence of consciousness of guilt.

Defense counsel’s failure to object to admissible evidence does not constitute

ineffective assistance of counsel. Lee v. State, 29 S.W.3d 570, 579–80 (Tex.

App.—Dallas 2000, no pet.); see also Ex parte Jimenez, 364 S.W.3d 866, 887

(Tex. Crim. App. 2012) (“The failure to object to proper questions and admissible

testimony . . . is not ineffective assistance.”).

Appellant also contends that defense counsel’s failure to object constituted

ineffective assistance because the State did not provide pre-trial notice of its intent

28
to use this extraneous bad acts evidence, and, therefore, evidence of these acts was

inadmissible, but defense counsel did not object to the State’s failure to provide

notice of these acts as required by Rule 404(b).

Rule of Evidence 404(b) provides that, generally, evidence of other bad acts

is not admissible to prove the character of the defendant in order to show action in

conformity with that character, but this evidence may be admissible for other

purposes “provided that upon timely request by the accused in a criminal case,

reasonable notice is given in advance of trial of intent to introduce in the State’s

case-in-chief such evidence other than that arising in the same transaction.” TEX.

R. EVID. 404(b). Absent a request for notice under Rule 404(b), the State is not

required to give such notice. Webb v. State, 995 S.W.2d 295, 298 (Tex. App.—

Houston [14th Dist.] 1999, no pet.). If the State provides notice voluntarily, it has

a duty to provide information that is complete. Blackmon v. State, 80 S.W.3d 103,

108 (Tex. App.—Texarkana 2002, pet. ref’d). Rule 404(b) does not expressly

require the State to provide written notice of its intent to introduce evidence of

extraneous misconduct. See id.; Chimney v. State, 6 S.W.3d 681, 697 (Tex.

App.—Waco 1999, pet. ref’d).

In Blackmon, a sexual assault of a child case, the State voluntarily gave

notice of its intent to use extraneous offense evidence, but it did not give notice of

its intent to offer the testimony of the complainant’s brother because it mistakenly

29
believed that the brother’s testimony related to the same event as the complainant’s

testimony. See 80 S.W.3d at 107–08. In evaluating Blackmon’s ineffective

assistance claim, the Texarkana Court of Appeals acknowledged that Rule 404(b)

does not require the State to give its extraneous offense notice in writing and noted

that “[i]t is not clear from the record whether Blackmon’s attorney had notice of

the State’s intent to introduce the extraneous offenses contained in [the brother’s]

testimony.” Id. at 108. The court concluded that “[w]ithout a clear indication in

the record that Blackmon’s counsel did not receive notice of the State’s intent to

introduce the extraneous offenses contained in [the brother’s] testimony, we cannot

say counsel’s performance was deficient.” Id.

Here, the record does not indicate that defense counsel requested notice

pursuant to Rule 404(b). The State, however, voluntarily provided notice that it

intended to introduce evidence of a prior conviction and three other extraneous bad

acts by appellant. This notice did not include the State’s intent to introduce

evidence that appellant, or his friends at appellant’s direction, contacted Caldwell

and Ozoh and requested that they drop the charges against him. When Caldwell

and Ozoh testified at trial concerning the requests by appellant and his friends,

defense counsel did not object on the basis that he never received notice of these

acts. As previously stated, appellant did not move for a new trial or otherwise

assert his ineffective assistance of counsel claims in a post-judgment motion.

30
Thus, the only indication that defense counsel did not actually receive notice of the

State’s intent to use these acts is appellant’s assertion in his appellate brief.

Although the written Rule 404(b) notice provided in this case does not

include these extraneous acts, Rule 404(b) does not require that this notice be in

writing, and the record does not affirmatively indicate that the State never gave

notice of its intent to introduce these acts to defense counsel. It is purely

speculative to assume that, because these extraneous acts were not included in the

written Rule 404(b) notice, the State never gave notice of its intent to introduce this

evidence. Because the record does not clearly establish that defense counsel did

not receive notice of the State’s intent to introduce Caldwell’s and Ozoh’s

testimony concerning appellant’s attempts to persuade them to drop the charges,

we cannot conclude that defense counsel’s failure to object to this testimony on the

grounds that he lacked notice pursuant to Rule 404(b) constituted deficient

performance. See Thompson, 9 S.W.3d at 813 (holding that record must

affirmatively demonstrate alleged ineffectiveness); Blackmon, 80 S.W.3d at 108.

We overrule appellant’s fourth and fifth issues.

3. Failure to Request Limiting Instructions

In his sixth and seventh issues, appellant contends that defense counsel

rendered ineffective assistance when he failed to request a limiting instruction after

the trial court sustained his objection to Ozoh’s testimony concerning an

31
altercation between appellant and his previous business partner. In his eighth and

ninth issues, appellant contends that defense counsel rendered ineffective

assistance when he failed to request a limiting instruction after the trial court

sustained his objection to testimony concerning threats made by appellant to Ozoh.

Rule of Evidence 105 provides, “When evidence which is admissible as to

one party or for one purpose but not admissible as to another party or for another

purpose is admitted, the court, upon request, shall restrict the evidence to its proper

scope and instruct the jury accordingly . . . .” TEX. R. EVID. 105(a); Bryant v.

State, 282 S.W.3d 156, 170–71 (Tex. App.—Texarkana 2009, pet. ref’d) (“When

evidence is properly admitted for one purpose, but can have meanings and uses

beyond that proper purpose, the trial court may—and should—immediately define

and limit the jury’s ability to consider such evidence to only those areas which are

permitted under our Rules of Evidence.”). Rule 105(a) does not require an

objection to the admission of evidence before requesting a limiting instruction on

that evidence. Hammock v. State, 46 S.W.3d 889, 893 (Tex. Crim. App. 2001).

The failure of defense counsel to request a limiting instruction is not, by

itself, ineffective assistance. Ali v. State, 26 S.W.3d 82, 88 (Tex. App.—Waco

2000, no pet.) (finding no basis for conclusion that defense counsel did not

exercise reasonable professional assistance when record did not contain counsel’s

reason for not requesting instruction). Although “hindsight speculation may

32
suggest a limiting instruction of some nature” should have been given, a reasonable

explanation for counsel’s actions can be that, “as a trial tactic, counsel did not wish

to remind the jury of those matters.” Webb, 995 S.W.2d at 300–01; see also Cueva

v. State, 339 S.W.3d 839, 875 (Tex. App.—Corpus Christi 2011, pet. ref’d)

(“[C]ounsel may have had a legitimate belief that requesting further relief would

have only highlighted the objectionable testimony.”).

Here, on direct examination, the State asked Ozoh how her business

relationship with appellant started. Ozoh testified that appellant owned a medical

supply company and that he had been having difficulties with one of his

employees. She stated that appellant told her that he and the employee “had a big

altercation in the office and police came and that he almost hit her and—.” At this

point, defense counsel objected, and the trial court sustained the objection.

Defense counsel did not request a limiting instruction, and the State moved on and

asked Ozoh whether appellant told her what kind of business he would like to

open. The State and Ozoh did not engage in any further discussion about the

“altercation” with the prior employee.

Appellant did not move for a new trial, and, thus, the record is silent on

defense counsel’s reasons for not requesting a limiting instruction after this

exchange. It is reasonable to conclude, however, that, after the trial court sustained

the objection, defense counsel decided that seeking an instruction to disregard

33
Ozoh’s testimony would only bring further attention to it. See Webb, 995 S.W.2d

at 301 (“[A]ppellant’s trial counsel may have purposely decided not to request a

limiting instruction to prevent further attention being drawn to the extraneous

offenses.”); see also Bryant, 282 S.W.3d at 168 (“[I]f the appellate court can

imagine a strategic motive to explain the ineffective assistance claim, then the

reviewing court may not sustain the appellant’s point of error.”). On this record,

we cannot conclude that defense counsel’s failure to request a limiting instruction

concerning this evidence fell below an objective standard of reasonableness. See

Thompson, 9 S.W.3d at 813 (holding that record must affirmatively demonstrate

alleged ineffectiveness).

On cross-examination of appellant, the following exchange occurred:

[State]: Do you remember threatening Ms. Ozoh by
emulating a gun and telling her that if
anything happens to you—
[Defense counsel]: Objection.
Appellant: That’s not true.
[Defense counsel]: It’s out of character and—
The Court: That’s not a legal objection. Overruled.
[State]: Do you remember emulating a gun and
telling her that if anything happened to you,
you’re going to kill her and you’re going to
kill Ms. Caldwell?
Appellant: It’s all allegation. That is not true.

34
Contrary to appellant’s representation on appeal, the trial court did not sustain an

objection to evidence concerning alleged threats that appellant made to Ozoh. 4

On appeal, appellant states only that defense counsel “failed to request an

instruction for the jury to disregard this evidence,” but he does not acknowledge

that the trial court overruled his objection to this evidence, and he did not seek a

limiting instruction. He also makes no argument that a limiting instruction would

have even been proper with respect to this testimony. He does not demonstrate

how the evidence was admissible for one purpose but not another, thus justifying

the use of a limiting instruction. We therefore conclude that appellant has not met

his burden of demonstrating, by a preponderance of the evidence, that defense

counsel rendered ineffective assistance when he failed to request a limiting

4
In the “factual basis” section for his ineffective assistance claims, appellant cites
this testimony, but he does not indicate that the trial court overruled his objection.
In the section containing his argument for why counsel was deficient, he states that
defense counsel “properly objected to . . . prior threats directed toward Eucharia
Ozoh, yet defense counsel failed to request an instruction for the jury to disregard
this evidence.” He cites to the record, but these citations refer to two different
portions of testimony in which the trial court sustained defense counsel’s
objections—one during Caldwell’s testimony concerning a conversation she had
with one of appellant’s friends about dropping the charges and the other during
Ozoh’s testimony about a conversation she had with appellant’s attorney.
Appellant references these two objections again in his reply brief, stating, “Nor did
the prosecution [in its appellate brief] discuss the failure to request a limiting
instruction related to two other objections which were sustained,” but he never
provides the context for those other objections, nor does he provide any argument
for why, with respect to those two objections, defense counsel rendered ineffective
assistance when he did not request a limiting instruction. He also does not provide
any argument for how he was prejudiced by this failure. See TEX. R. APP. P.
38.1(i) (“The brief must contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record.”).
35
instruction concerning these threats. See Perez, 310 S.W.3d at 893 (“The

defendant bears the burden of proving ineffectiveness by a preponderance of the

evidence.”).

We overrule appellant’s sixth, seventh, eighth, and ninth issues.

Modification of Judgment

In his tenth issue, appellant contends that the trial court erroneously included

an affirmative finding of family violence in the judgment for cause number

1767859, relating to the assault on Caldwell. He requests that we modify the

judgment to delete this finding. In its sole cross-point, the State contends that the

written judgment for cause number 1767858, the assault on Ozoh, reflects a fine of

$500, but the trial court orally pronounced a fine of $1,000. The State requests that

we modify the judgment to reflect the $1,000 fine.

Rule of Appellate Procedure 43.2(b) allows an appellate court to “modify

the trial court’s judgment and affirm it as modified.” TEX. R. APP. P. 43.2(b). An

appellate court has the power to reform a trial court judgment to “make the record

speak the truth when the matter has been called to its attention by any source.”

French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (citing Asberry v.

State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d)).

36
 A. Removal of Family Violence Finding

Code of Criminal Procedure article 42.013 provides that if the trial court

“determines that the offense involved family violence, as defined by Section

71.004, Family Code, the court shall make an affirmative finding of that fact and

enter the affirmative finding in the judgment of the case.” TEX. CODE CRIM. PROC.

ANN. art. 42.013 (Vernon 2006); Butler v. State, 189 S.W.3d 299, 302 (Tex. Crim.

App. 2006) (“[T]he trial court is statutorily obligated to enter an affirmative

finding of family violence in its judgment, if during the guilt phase of trial, the

court determines that the offense involved family violence as defined by Tex. Fam.

Code § 71.004(1).”); Thomas v. State, 150 S.W.3d 887, 889 (Tex. App.—Dallas

2004, pet. ref’d) (“[T]he trial court had no discretion in entering a family violence

finding once it determined the offense involved family violence.”). Family Code

section 71.004 defines “family violence” as including “an act by a member of a

family or household against another member of the family or household that is

intended to result in physical harm, bodily injury, assault, or sexual assault . . . but

does not include defensive measures to protect oneself.” TEX. FAM. CODE ANN.

§ 71.004(1) (Vernon 2008). The Family Code further defines “household” as a

“unit composed of persons living together in the same dwelling, without regard to

whether they are related to each other.” Id. § 71.005 (Vernon 2008).

37
 The State contends that the family violence finding is proper, despite the

undisputed evidence that Caldwell was not a member of appellant’s family or

household, because this offense “only occurred in an attempt to further appellant’s

family violence assault on Ms. Ozoh” and “the offense as a whole was committed

with the intent to cause physical harm or threaten physical harm to his household

member, Ms. Ozoh.” We disagree.

The Texas Legislature began enacting harsher penalties for defendants

convicted of multiple domestic assaults in 1989, when it added language to Penal

Code section 22.01 similar to the language currently found in section 22.01(b)(2),

which enhances the offense of assault from a Class A misdemeanor to a third-

degree felony if the assault is committed against a family or household member

and the defendant has previously been convicted of an offense against someone

with whom the defendant has a specified relationship, as defined by the Family

Code. See TEX. PENAL CODE ANN. § 22.01(b)(2) (Vernon 2011); State v. Eakins,

71 S.W.3d 443, 444 (Tex. App.—Austin 2002, no pet.). The Legislature then

adopted article 42.013, requiring the affirmative finding in the written judgment,

several years later. Eakins, 77 S.W.3d at 444. In Eakins, the Austin Court of

Appeals reasoned,

Article 42.013 was obviously intended to simplify the prosecution of
subsequent family assault cases by making it unnecessary to relitigate
the details of the previous assault. Instead, the State may rely on the

38
 affirmative finding in the prior judgment to prove that the victim of the
defendant’s previous assault was a family member.

Id. (emphasis added). The focus of the family-violence finding is thus on the

relationship between the defendant and the specific victim of the offense. If the

victim of the specific offense is a member of the defendant’s family or household,

then the affirmative finding is justified. See TEX. CODE CRIM. PROC. ANN. art.

42.013; TEX. FAM. CODE ANN. § 71.004(1) (defining “family violence” as “an act

by a member of a family or household against another member of the family or

household”) (emphasis added); Butler, 189 S.W.3d at 302. The statute is silent on

whether a family violence finding is justified when the victim of the specific

offense at issue is not a member of the defendant’s family or household, but the

criminal episode as a whole does involve a member of the defendant’s household.

The assault on Caldwell and the assault on Ozoh are separate and distinct

offenses, subjecting appellant to separate punishments. 5 The State cites no

authority for the proposition that the term “offense” in article 42.013 should be

5
The respective informations for the two offenses illustrate this point. The
information in cause number 1767858, the assault on Ozoh, alleges that appellant
“did then and there unlawfully intentionally and knowingly cause bodily injury to
EUCHARIA OZOH, a member of the Defendant’s household, hereafter styled the
Complainant . . . .” (Emphasis added.) The information in cause number
1767859, the assault on Caldwell, alleges that appellant “did then and there
unlawfully intentionally and knowingly cause bodily injury to BRENETHA
CALDWELL, hereinafter called the Complainant . . . .”
39
read as “criminal episode” instead of as a discrete violation of the Penal Code. We

decline to read this meaning into the statute here.

The State also contends that the family violence finding was proper based on

the doctrine of transferred intent, arguing that “[w]hile [appellant] was directing an

assault on his household member, Ms. Ozoh, he attacked Ms. Caldwell when she

intervened. His intent had been to commit family violence, and in the process, he

also assaulted Ms. Caldwell because she attempted to protect Ms. Ozoh.” We are

not persuaded by this argument. The doctrine of transferred intent, as codified by

the Legislature in Penal Code section 6.04, allows “a transfer of intent in

circumstances where the difference between what was intended, contemplated, and

risked and what occurred is either a different victim, or where there is a

discrepancy between the degree of harm intended and that actually produced . . . .”

George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice

and Procedure § 43.17 (3d ed.); see also TEX. PENAL CODE ANN. § 6.04 (Vernon

2011) (codifying doctrine of transferred intent). The situation in this case is not a

situation in which there is a difference between appellant’s intended victim and his

actual victim. He intended to assault Ozoh, a member of his household, and he so

assaulted her by hitting her, knocking her down, and kicking her. When Caldwell

attempted to intervene and protect Ozoh, he intended to assault Caldwell to prevent

40
her interference, and he so assaulted her by hitting her with his fist. The

transferred intent doctrine is thus inapplicable under these circumstances.

We agree with appellant that the record does not support the affirmative

family violence finding in cause number 1767859, the assault on Caldwell, and we

therefore modify the judgment of the trial court to delete that finding.

We sustain appellant’s tenth issue.

B. Correction of Fine Amount

A defendant’s sentence must be pronounced orally in his presence. Taylor v.

State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (citing TEX. CODE CRIM.

PROC. ANN. art. 42.03, § 1(a) (Vernon Supp. 2012) and Ex parte Madding, 70

S.W.3d 131, 135 (Tex. Crim. App. 2002)). The judgment, including the assessed

sentence, is “just the written declaration and embodiment of that oral

pronouncement.” Id. When there is a conflict between the oral pronouncement of

sentence and the sentence in the written judgment, the oral pronouncement

controls. Id. “The solution in those cases in which the oral pronouncement and the

written judgment conflict is to reform the written judgment to conform to the

sentence that was orally pronounced.” Thompson v. State, 108 S.W.3d 287, 290

(Tex. Crim. App. 2003); Davis v. State, 323 S.W.3d 190, 198–99 (Tex. App.—

Dallas 2008, pet. ref’d) (modifying written judgment to include $1,500 fine orally

41
pronounced and noting that appellate court has authority to modify incorrect

judgment when it has “necessary data and information to do so”).

Here, with respect to cause number 1767858, the trial court assessed

appellant’s punishment as one year confinement in the Harris County Jail,

suspended that sentence, and placed him on community supervision for two years.

The trial court also assessed a $1,000 fine. The written judgment, however, placed

appellant on community supervision for one year and assessed a $500 fine. The

oral pronouncement and the written judgment thus conflict, and we therefore

reform the judgment in cause number 1767858 to reflect the appropriate length of

community supervision—two years—and the appropriate fine—$1,000. See

Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.) (“Our

authority to reform incorrect judgments is not dependent on the request of any

party, nor does it turn on a question of whether a party has or has not objected in

[the] trial court; we may act sua sponte and may have a duty to do so.”).

We sustain the State’s sole cross-point.

Conclusion

We modify the judgment in trial court cause number 1767858, appellate

cause number 01-12-00207-CR, to reflect that appellant’s term of community

supervision is two years and that a $1,000 fine was imposed against him. We

modify the judgment in trial court cause number 1767859, appellate cause number

42
01-12-00208-CR, to delete the affirmative family violence finding. We affirm the

judgments as modified.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

43