IN THE
TENTH COURT OF APPEALS
No. 10-14-00115-CR
KENNETH BELL,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Navarro County, Texas
Trial Court No. C34388-CR
MEMORANDUM OPINION
Kenneth Wayne Bell was convicted of burglary of a habitation and sentenced to
43 years in prison. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). Because the
evidence is sufficient to support Bell’s conviction, Bell did not prove ineffective
assistance of counsel, and his sentence was not illegal, the trial court’s judgment is
affirmed.
SUFFICIENCY OF THE EVIDENCE
Bell contends in his first issue that the evidence in insufficient to support his
conviction because the State did not introduce evidence of Bell’s intent to commit theft.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,
326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence
are treated equally: "Circumstantial evidence is as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is
well established that the factfinder is entitled to judge the credibility of witnesses and
Bell v. State Page 2
can choose to believe all, some, or none of the testimony presented by the parties.
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Burglary of a habitation requires proof that the person, without the consent of
the owner, entered a habitation with the intent to commit a felony, theft, or an assault.
TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). A jury may infer intent to commit
theft from a forcible entry into a home. Gear v. State, 340 S.W.3d 743, 748 n. 9 (Tex.
Crim. App. 2011). The nonconsensual entry of a habitation at night creates a rebuttable
appellate presumption that the actor intended to commit theft. LaPoint v. State, 750
S.W.2d 180, 182 (Tex. Crim. App. 1986). Further, evidence of flight upon being
interrupted during the burglary can be evidence of intent to commit theft. Gear, 340
S.W.3d at 748.
During the early morning hours of September 16, 2011, Bell and his co-
defendant, Tony Harris, approached a house and removed an air conditioner unit from
a window. Harris testified that it was their intent to steal the air conditioner. After the
unit was removed, Bell was seen by a neighbor entering the house through the window
where the unit had been. Bell then ran when police arrived at the scene moments later.
Thus, the jury could infer from this evidence that Bell had the intent to commit theft
when he entered the home. Bell argues on appeal that because the home was vacant, he
could not have had the intent to commit theft. However, there was testimony that the
owner of the house had recently died and the jury could readily infer that because Bell
and Harris had already removed the air conditioning unit, Bell entered the house to see
Bell v. State Page 3
what else he could take.
After considering the evidence in the light most favorable to the verdict, we find
a rational jury could have found the essential element of intent to commit theft beyond
a reasonable doubt. Bell’s first issue is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Bell next asserts that his trial counsel rendered ineffective assistance because
counsel failed to investigate evidence that could have been used to mitigate
punishment. Bell claims that his mental health records were not investigated by his
attorney.
In order to prevail on a claim of ineffective assistance of counsel, Bell must meet
the two-pronged test established by the United States Supreme Court in Strickland that
(1) counsel's representation fell below an objective standard of reasonableness, and (2)
the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011). Unless a defendant can prove both prongs, an appellate court must
not find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142. In order to
satisfy the first prong, Bell must prove by a preponderance of the evidence that trial
counsel's performance fell below an objective standard of reasonableness under the
prevailing professional norms. Id. To prove prejudice, Bell must show that there is a
reasonable probability, or a probability sufficient to undermine confidence in the
outcome, that the result of the proceeding would have been different. Id.
Bell v. State Page 4
An appellate court must make a "strong presumption that counsel's performance
fell within the wide range of reasonably professional assistance." Id. (quoting Robertson
v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of
counsel are generally not successful on direct appeal and are more appropriately urged
in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,
77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually
inadequately developed and "cannot adequately reflect the failings of trial counsel" for
an appellate court "to fairly evaluate the merits of such a serious allegation." Id.
(quoting Bone, 77 S.W.3d at 833).
Bell did not file a motion for new trial on the basis of ineffective assistance of
counsel and the record is silent as to any potential strategy by his trial counsel as to why
he did not investigate the alleged mental health records. Although there is some
suggestion in the record that Bell had seen a psychiatrist, the record is also silent as to
whether those records existed, or if they did, what part of those records could be used
as mitigation for punishment. We will not speculate as to trial counsel's strategy for
allegedly not investigating these records further. Because Bell has not met his burden to
establish the first prong in Strickland, we overrule his second issue.
ILLEGAL SENTENCE
In his third issue, Bell contends his sentence is illegal because the State did not
file a notice of enhancement of punishment. A notice was filed in a previously indicted
case and unofficially transferred to the case Bell appeals. Bell contends the transferred
Bell v. State Page 5
notice is not adequate.
The Court of Criminal Appeals has held that "prior convictions used as
enhancements must be pled in some form, but they need not be pled in the indictment."
Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). The notice requirement
dictated by Brooks is of constitutional origin, and the ultimate question is whether
constitutionally adequate notice was given. Villescas v. State, 189 S.W.3d 290, 294 (Tex.
Crim. App. 2006). Due process does not require that the notice be given before the guilt
phase begins, much less that it be given a number days before trial. Id.
We abated this appeal at Bell’s request to the trial court to hold a hearing to
determine the proper contents of the clerk’s record in this appeal. According to the trial
court’s findings of fact and conclusions of law in response to the abatement hearing,
Bell was indicted for the offence of burglary of a habitation in October of 2011 and
counsel was appointed. Four months later, the State filed its Notice of Intent to
Enhance Punishment. In May of 2012, Bell was indicted for the same offense under the
same facts as the previous indictment. The only difference in the indictments was the
name of the owner of the home. Bell’s appointed attorney remained the same. At some
point after the new indictment, and without a motion and a ruling by the trial court, the
trial court clerk moved most of the documents, including the notice of enhancement
into the newly indicted case. The previously indicted case was dismissed.
After the jury’s verdict and although the trial court did not ask Bell to plead to
two enhancements, the trial court proceeded directly to the punishment phase, asking
Bell v. State Page 6
the State to call its first witness to prove up the enhancements. Bell did not object to the
enhancement evidence. Further, during the punishment phase, the State asked the trial
court to take judicial notice of the previously filed Notice of Intent to Enhance
Punishment. Again, Bell said nothing.
Because the ultimate question is whether constitutionally adequate notice was
given, we find that, based on the evidence before us, the previously filed and
transferred notice was constitutionally adequate. Thus, Bell’s sentence was not illegal,
and Bell’s third issue is overruled.
Having overruled each issue presented on appeal, we affirm the trial court’s
judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 20, 2015
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[CRPM]
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