Duran, Francisco Jr.

«f*1'«5
No.
ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

CI

FRANCISCO DURAN, JR.
court of amrnimis
PETITIONER
APR 17 2015
vs
Abel Acosta, Clerk
RESPONDENT
THE STATE OF TEXAS

FILED IN
•CURT OF CRIMINAL APPEALS
ON APPEAL FROM
THIRTEENTH DISTRICT COURT OF APPEALS
APR 17 2015-
CORPUS CHRISTI, EDINBURG, TEXAS
2013 TEX. APP. LEXIS 8111 Auel Acosta, Clerk
NO. 13-12-00344-CR

PETITION FOR DISCRETIONARY REVIEW

PRO SE

Francisco Duram Jr.
Robertson Unit # 1793551
12071 FM 3522
Abilene, TX. 79601
 TABLE OF CONTENTS

SUBJECT MATTER PAGE NUMBER

Index of Authorities iii

Statement Regarding Oral Argument iv

Statement of the Case V

Statement of Procedural History vi

GROUNDS FOR REVIEW:

1. The Court of Appeals Erred in affirming and modify

ing the judgement of conviction and in particular:

a. by modifying the jury's conviction from a second
degree felony of burglary to a first degree felony
burglary by retaining an indictment count of ag
gravated assault with a deadly weapon that was a-
bandoned by the prosecution 1

b. by modifying the judgement to delte the words
"Special Issue" in,the deadly weapon finding so
that the State's abandonment of Count II became
a legal shoe that fit their modification(s) 1

c. by failing to vacate the double jeopardy barred
conviction(s) as requested and agreed between de
fense counsel and the State Appellate Counsel/
to wit/ the aggravated assault with a deadly
weapon * 1

d. by failing to recognize the plain error of pe
titioner being deprived of a fair trial in vio
lation of the Fifth Amendment's double jeopardy
clause ; 1

2. The Court of Appeals Erred in affirming the judge

ment of conviction(s) regarding petitioner's five
i
i

points of error raised, to wit:

FIRST: The evidence was legally insufficient to
support the Burglary conviction ,

SECOND: Ineffective assistance of counsel at trial.

THIRD: The trial court committed error in includ
FOURTH: ing the aggravated assault conviction in the
judgement after the State abandoned the
allegation; and by not allowing defense witnesses

-l-
 [con't. ]

TABLE OF CONTENTS

SUBJECT MATTER PAGE NUMBER

FOURTH: to testify at the punishment trial; as
FIFTH: well as committing error in making a
finding that a deadly weapon was used
or exhibited 2

Argument and Authorities 2

Prayer for Relief END

Appendix containing the appellate opinion A

-11-
 INDEX OF AUTHORITIES

THE LAW: PAGE NUMBER

Apprendi-v-New Jersey, U.S. ( )..... 12
Berman-v-United States, 302 U.S. 211, 212 (1937) 2,12
Bigley-v-State, 865 SW.2d 26, 27-28 (Tex.Crim.App.1993) 2
Butler-v-State, 769 SW.2d 234, n.2 (Tex.Crim.App. 1989) 7
Clark-v-Procunier, 755 F.2d 394 (5th Cir. 1985) 7
David-v-State, 91 SW.3d 824 (Tex.Crim.App. 1994) 9
Delapaz-v-State, 229SW.3d 795, 802 (Tx.App.Eastland 2007) rev'd.
on other grounds 273 Sw.3d 671, 681 (Tex.Crim.App.2008) 9
Garcia-v-State, 571 Sw.2d 896, 899 (Tex.Crim.App.1978) 2,10
Landers-v-State, 957 Sw.2d 559-560 (Tex.Crim.App. 1992) 2
Langs-v-State, 183 SW.3d 680, 686 (Tex.Crim.App.2006) 2,10
Littrell-v-State, 271 Sw.3d 273 (Tex.Crim.App.2008) 2,10
Minor-v-State, 91 SW.3d 824 (Tx.App.Fort Worth 2002, pet. ref'd). 9
Nash-v-State, 175 SW.3d 487 (Tx.App.Texarkana 2005,pet. ref'd)... 12
Nelson-v-State, 149 Sw.3d 206, 213 (Tx.App.Fort Worth 2004, no pet.) 2
Strickland-v-Washington, 466 U.S. 668 (1984) 8
Thomas-v-State, 821 Sw.2d 616 (Tex.Crim.App. 1991) 12
Urbano-v-State, 837 SW.2d 114 (Tex.Crim.App. 1992) 7
United States-v-Lopez, 74 F.3d 575, 577 (5th Cir. 1996) 7
United States-v-Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999). 7
United States-v-Reveles, 190 F.-3d 678 (5th Cir. 1999) 7
Webb-v-State, 766 SW.2d 236 (Tex.Crim.App. 1984).... 9
Williams-v-State, 692 SW.2d 671, 676 (Tex.Crim.App. 1989) 7

U.S.C.A

5th Amendment' s double jeopardy clause 5

TEX. PEN. CODE

§ 22.02(a)(2) 3
§ 30.02(a)(3) 3

T.R.A.P.

66.3(c)

-hi
 STATEMENT REGARDING ORAL ARGUMENT

Petitioner-appellant is a prisoner acting in his own behalf

and thus is not available nor qualified to present oral arguments,

though he would urge that the issues are of sufficient magnitude

and complexity to merit oral argument. Therefore, if the Court

recognizes merit in holding oral argument, then petitioner makes

request for the Court to appoint counsel to represent. Thank you.

-IV-
 STATEMENT OF THE CASE

Petitioner-appellant was initially indicted with a single

offense of Burglary of a Habitation, but after he rejected the

State's 2 -to- 5 year plea offer the prosecutor re-indicted him

with a dual count indictment. Each count allegedf a separate penal
code offense, to wit, Count I was Burglary of a Habitation [§ 30.02

(a)(3), Tex. Pen. Code], and, Count II, Aggravated Assault with a

Deadly Weapon [§ 22.02 (a)(2)].

Each penal code offense alleged the same dat and the evidence

at trial showed that each offense arose out of the same incident.

At the close of the State's evidence and the defense of

alibi the trial court submitted each offense to the jury in its

instructions within the jury charge, along with separate verdict

forms per penal code offense. The jury found petitioner guilty of

each count as demonstrated within their separate verdict forms.

After the jury found guilt on each count as charged in the

indictment, the prosecution abandoned the Aggravated Assault with
a Deadly Weapon, Count II.

At the punishment phase the jury sentenced petitioner to 25-

years on Count I, the Burglary charged. The trial court it its

Judgement of Conviction listed both guilty verdicts as two judge
ments of conviction.

Likewise, at the punishment phase the trial court would not

allow petitioner to present witnesses in mitigation. The court held

that to allow these defense witnesses would be a violation of the

Rule.

-v-
Finally, the Appellee chose to "no£ include its own Statement of

the Case", but instead was "satisfied with Appellant's Statement

of the Case". See State's Appeal Brief under their "Statement of

the Case" at page 6.

Lastly, the "State conceded that it may be appropriate to

modify the trial court's judgement by removing the Aggravated As
sault conviction", in light of the State abandoning the offense,

aswell as, its double jeopardy ramifications. See State's Appeal
Brief at page 31.

STATEMENT OF THE PROCEDURAL HISTORY

1- Petitioner-appellant was initially indicted for a single penal
code offense of Burglary of a Habitation;

2. A plea offer of five-years was rejected and the State reindicted

with a dual count indictment involving two separate penal code of
fenses, to wit, Burglary of a Habitation, and Aggravated Assault

with a Deadly Weapon. The deadly weapon alleged a DVD Player in
the manner of its use;

3. At trial the evidence proved that both penal code ffenses derived

from the same incident. Yet, both penal code offenses were submitted

to the jury with separate instructions along with separate verdict
forms;

4. After the jury found guilt on both indictment counts the State

chose to abandon the aggravated assault with a deadly weapon of

fense, and proceeded to punishment on Count I only: the Burglary;

5- A motion for He**J( _/ J) /( _J~S VZ* tXX?
FRANCISCO DURAN JR., AFFIANT

-12-
 CERTIFICATE OF SERVICE

I, Francisco Duran Jr., do hereby certify that true copies of the

foregoing petition for discretionary review was placed in the Rob

ertson Unit's mail box on the 8th DAY OF APRIL 2016, addressed to

the Clerk of the Court of Criminal Appeals at Capitol Station,

Austin, Texas. I attest to this by affixing my signature below:

brands c a -y^A^a^ Ofc
FRANCISCO DURAN, JR.: PETITIONER
ROBERTSON UNIT # 1793551
12071 FM 3522
12071 FM 3522
ABILENE, TX. 79601

cc

-13-
 FRANCISCO DURAN, JR., Appellant, v. THE STATE OF TEXAS, Appellee.
COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG
2013 Tex. App. LEXIS 8111
NUMBER 13-12-00344-CR
July 3, 2013, Delivered
July 3, 2013, Filed

Notice:

PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF
UNPUBLISHED OPINIONS.

Editorial Information: Prior History

On appeal from the 445th District Court of Cameron County, Texas.
Counsel FOR APPELLANT: Edmund K. Cyganiewicz, Attorney At Law,
Brownsville, TX.
FOR APPELLEE: Luis V. Saenz, District Attorney, Brownsville,
TX; Rene B. Gonzalez, Assistant District Attorney, Brownsville, TX; Christopher G. Gonzalez,
Assistant District Attorney, Brownsville, TX.
Judges: Before Justices Rodriguez, Benavides and Longoria. Memorandum Opinion by Justice Longoria.
CASE SUMMARY

PROCEDURAL POSTURE: Defendant sought review of the decision of the 445th District Court of
Cameron County (Texas), which convicted him of burglary of a habitation, a first-degree felony, in violation
of Tex. Penal Code Ann. § 30.02(a)(3) (2011).Defendant's conviction for burglary of a habitation under
Tex. Penal Code Ann. § 30.02(a)(3) was proper because a rational jury could have concluded that by
throwing the DVD player at the victim, defendant used the DVD player in a manner in which it was capable
of causing serious injury or death.

OVERVIEW: Defendant challenged his conviction for burglary of a habitation and the appellate court
affirmed, as modified. A rational jury could have concluded that by throwing the DVD player at the victim,
defendant used the DVD player in a manner in which it was capable of causing serious injury or death, the
indictment's allegation that appellant committed aggravated assault gave appellant adequate notice that
the State may have sought an affirmative deadly weapon finding. Furthermore, the jury's verdict that
defendant was guilty as charged of burglary of a habitation with the underlying offense of aggravated
assault affirmatively supported the trial court's judgment that a deadly weapon was used. Therefore, the
trial court did not err by including the finding in its judgment.

OUTCOME: The appellate court modified the judgment to delete the words "Special Issue" in the deadly
weapon finding, to reflect that the State abandoned Count II before the punishment phase and to reflect
that punishment was assessed only on Count I, and to reflect that defendant was convicted of a

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first-degree felony. The judgment was affirmed as modified!

LexisNexis Head notes
i : • :--
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > General Overview
Evidence > Procedural Considerations > Burdens of Proof > Proof Beyond Reasonable Doubt
Evidence > Procedural Considerations > Circumstantial & Direct Evidence
Evidence > Procedural Considerations > Weight & Sufficiency

In evaluating the sufficiency of the evidence supporting a conviction, appellate courts view all the evidence
in a light most favorable to the verdict and ask whether any rational trier of fact could have found the
essential elements of the,crime beyond a reasonable doubt.: The trier of fact is the sole judge of the
credibility of witnesses and the weight, if any, to be given to their testimony. The reviewing court must give
deferenceito the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. The State may prove the
elements of an offense by either direct or circumstantial evidence. In a sufficiency review, 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. If the record supports conflicting inferences, the
appellate court presumes that the fact finder resolved the conflict in favor of the prosecution and defer to
that resolution. i>

Criminal Law & Procedure >Appeals > Standards of Review > General Overview
Evidence i> Procedural Considerations > Weight &Sufficiency
Appellate courts measure the sufficiency of the evidence supporting a conviction by the elements of the
offense as defined by the hypothetically correct jury charge for the case applied to the particular facts of
the case.

Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery >
Aggravated Offenses > Elements
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery >
Simple Offenses > Elements
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview

A person commits the crime of assault if he (1) intentionally, knowingly, or recklessly; (2) causes bodily
injury to another, Tex. Penal Code Ann. § 22.01(a)(1). The penal code defines "bodily injury" as physical
pain, illness or any impairment of physical condition, Tex. Penal Code Ann. § 1.07(a)(8) (Supp. 2011).
Bodily injury is proven by evidence that the victim suffered some pain. A person commits the felony
offense of aggravated assault if he commits assault and (1) causes serious bodily injury to another; or (2)
uses or exhibits a deadly weapon during the commission of the assault, Tex. Penal Code Ann. §
22.02(a)(2). A deadly weapon is anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury, Tex. Penal Code Ann. § 1.07(a)(17)(B). This language has been
interpreted to mean that it is not necessary for the State to show that a defendant intended to cause death
or serious bodily injury, only that appellant intended to use the object in a way that it could cause death or
serious bodily injury. In determining whether an object is a deadly weapon, the jury may consider all the
surrounding facts.

Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview
Criminal Law & Procedure > Appeals > Deferential Review > General Overview

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It is the role of the jury to resolve conflicts in the evidence, and the appellate courts must defer to that
resolution.

Criminal Law & Procedure > Appeals > Records on Appeal

An appellate court has the authority to modify the record to make it speak the truth when it has the
necessary information to do so, Tex. R. App. P. 43.2(b).

Criminal Law &Procedure > Criminal Offenses > Crimes Against Persons > Assault &Battery >
Aggravated Offenses > Penalties
Criminal Law & Procedure > Postconviction Proceedings > Parole

Eligibility for parole is affected by the inclusion in the convicting court's judgment of an affirmative finding
that the defendant used a deadly weapon, Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Supp. 2011).
A defendant is generally entitled to notice in some form that the use of a deadly weapon will be a fact
issue at the time of prosecution. This notice need only be provided to the defendant in some form. A
completely separate indictmentarising out the same facts provides adequate notice. Aggravated assault
may be committed in only two ways, each involving the use of a deadly weapon. Therefore, an allegation
that the defendant committed or attempted to commit aggravated assault is adequate notice that there
would be an issue of the defendant's exhibition or use of a deadly weapon since each manner of
committing aggravated assault involves the use of a deadly weapon. Furthermore, the State may seek an
affirmative deadly weapon finding when, as in this case, an indictment alleges a burglary of a habitation in
which, after entering, the appellant committed or attempted to commit a felony of aggravated assault. In
such a case, the jury's verdict is an adequate basis for the trial court's entry of the affirmative finding in the
judgment under the statutes which require such findings.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of
Counsel
Criminal Law & Procedure > Counsel > Effective Assistance > Tests

In order to prevail on a claim of ineffective assistance of counsel, an appellant must meet the heavy
burden of Strickland, under which the defendant must show by preponderance of evidence that: (1)
counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable
probability that the result of the proceeding would have been different but for the attorney's deficient
performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome. If
an appellant fails to prove one prong of the test, an appellate court need not reach the other prong.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of
Counsel
Criminal Law & Procedure > Counsel > Effective Assistance > General Overview
Criminal Law & Procedure > Appeals > Records on Appeal
Evidence > Inferences & Presumptions > Presumptions
Courts look to the totality of the representation and the particular circumstances of each case in evaluating
the effectiveness of counsel. Although a single egregious error of omission or commission can constitute
ineffective assistance, the court of criminal appeals has been hesitant to designate a particular error as
per se ineffective assistance. There is a strong presumption that counsel's conduct fell within the wide
range of reasonable professional assistance. Allegations of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness. Direct appeal is
therefore usually inadequate to make an ineffectiveness claim because the record is often undeveloped.

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This is especially true where counsel's reasons for failing to do something do not appear in the record.
Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective. Unless counsel had an opportunity to explain his trial strategy, Texas appellate courts will
not find deficient performance unless the challenged conduct was 'so outrageous that no competent
attorney would have'engaged in it.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of
Counsel
Criminal Law & Procedure > Counsel > Effective Assistance > Pretrial
Criminal Law & Procedure > Appeals > Records on Appeal
When the record is silent as to trial counsel's strategy, an appellate court may not speculate as to his
intentions. Complete failure to file pretrial motions does not constitute ineffective assistance of counsel
unless the defendant identifies prejudice that he suffered as a result.

Criminal Law & Procedure > Witnesses > Presentation

See Tex. Code Crim. Proc. Ann. art. 38.075(a) (Supp. 2011).

Evidence > Testimony > Sequestration

When invoked by either party or the court, Tex. R. Evid. 614 requires, with some exceptions, that
witnesses be excluded from the courtroom during trial so that they are unable to hear the testimony of
other witnesses. In excluding a defense witness from testifying for violation of Rule 614, a trial court
should take into account the defendant's constitutional right to call witnesses on his behalf and have them
testify. Generally, witnesses should not be excluded from testifying solely for violation of the rule. The
following is a two-part inquiry for determining whether a trial court abused its discretion in excluding a
defense witness for violation of Rule 614: (1) were there particular circumstances, other than the mere fact
of the violation, which would tend to show the defendant or his counsel consented, procured or otherwise
had knowledge of the witness's presence in the courtroom, together with knowledge of the content of that
witness's testimony; and (2) if no particular circumstances existed to justify disqualification, was the
excluded testimony crucial to the defense:

Evidence > Procedural Considerations > Objections & Offers of Proof > Offers of Proof

It is an appellant's burden to make a record, through a bill of exceptions, of the evidence he or she desires
admitted.

Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass
> Burglary > Elements

Burglary of a habitation is a first-degree felony if the premises entered is a habitation and the defendant
commits or attempts to commit an offense other than felony theft while there, Tex. Penal Code Ann. §
30.02(d)(1)-(2). .

Opinion

Opinion by: NORA L. LONGORIA

Opinion

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 MEMORANDUM OPINION

Memorandum Opinion by Justice Longoria
In five issues, which we have reordered, appellant, Francisco Duran, challenges his conviction for
burglary of a habitation, a first-degree felony. See Tex. Penal Code Ann. § 30.02(a)(3) (West 2011).
We affirm as modified.

I. Background
The State indicted appellant for burglary of a habitation with the underlying felony of aggravated
assault (Count I) and a separate charge of aggravated assault with a deadly weapon (Count II). See
id. §§ 30.02(a)(3), 22.02(a)(2) (West 2011). The aggravated assault charge contained in Count II was
identical to the underlying felony alleged in the burglary charge.
Gonzalo Gonzalez testified that he was watching movies in his apartment with Juan Luna when he
heard a group of individuals coming down the alleyway, talking loudly. Gonzalez and Luna both exited
Gonzalez's apartment to investigate. Gonzalez testified that there were six individuals in the group:
three juvenile males, two adult males, and one adult female. Gonzalez identified appellant as one of
the adults in the group.
One of the other adults accused Luna of having thrown somethingl through the window of the house
where the group had been barbecuing and then fleeing back into Gonzalez's apartment. The group
began to crowd around Luna, and Gonzalez intervened to protect him.2 The group responded by
accusing Gonzalez of being the one who broke the window. Gonzalez testified that he instructed the
group to leave his property but appellant "ran into [his] house ... to search for whoever had broken
the window." Gonzalez testified that he followed appellant into his house. The other adults followed
Gonzalez, but the juveniles remained outside. Gonzalez testified that he grabbed appellant by the arm
and attempted to pull him out of the house, at which time the other adult male in the group punched
Gonzalez on the side of the head. Gonzalez testified that he fell to the floor as a result of the punch,
and both appellant and the other adult male hit him. Gonzalez further testified that after he fell to the
floor, appellant and the other adult male threw Gonzalez's Xbox game console, a "Wii Player," and a
DVD player at him.3 The Wii and the DVD player struck Gonzalez's back. Because Gonzalez was on
the floor facing downward he could not tell which of the two actually threw the DVD player. Gonzalez
testified that at that point he got up, ran out of his apartment, and encountered police that were
arriving to investigate the broken window. Appellant and the rest of the group returned through the
alley to their house, where they had been barbecuing. Gonzalez testified that he suffered a laceration
on his back and pain from his injuries.
Appellant's acquaintance Martin Perez testified that he picked up appellant from the house with the
broken window. Perez testified that appellant was laughing and joking about the incident with the other
people there. According to Perez, appellant stated that he and a group of other males went down the
alley to another residence, entered the residence, and "got into an altercation" with someone in the
residence. Police later arrested both Perez and appellant. The State originally indicted Perez for
playing a role in the assault, but later dismissed the charges. Perez did not testify pursuant Jo an
agreement with the State.4 [
Chevon Muniz, who was present at the barbeque at the time the window was broken, testified for the
defense. She agreed that a group of men left to pursue the person who broke the window, but testified
that appellant was not one of them. Muniz confirmed that appellant remained at the barbeque with her.

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 The jury returned a verdict of guilty on both counts. The State voluntarily vacated Count II, aggravated
assault:with!a deadly weapon, before the sentencing phase out of concern that imposing punishment
for it would violate appellant's double jeopardy protection against receiving two punishments for the
same offense. See Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). The jury found the
enhancement paragraph of a prior felony to be true, and assessed twenty-five years' imprisonment in
the Texas Department of Criminal Justice-Institutional Division. The State later filed a motion to
modify the judgment to enter an affirmative deadly weapon finding. The trial court granted the motion
oyer' appellant's objection and rendered a modified judgment that reflected an affirmative deadly
weapon finding, this appeal followed.
II. Discussion

A. Sufficiency of the Evidence
In his first issue,lappellant challenges the sufficiency of the evidence supporting his conviction for
burglary of a habitation with the underlying offense of aggravated assault. See Tex. Penal Code Ann.
§ 30.02(a)(3). ;•: i
1. Standard of Review

In evaluating the sufficiency of the evidence supporting a conviction, we view all the evidence in a light
most favorable to the verdict and ask "whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Garcia v. State, 367 S.W.3d 683, 686-87 (Tex.
Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979)). The trier of fact, in this case the jury, is the sole judge of the credibility of witnesses and the
weight, if any, to'be given to their testimony. Id.; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
App. .2010) (plurality op). "The reviewing court must give deference to the responsibility of the trier of
fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
Jackson, 443 U.S. at 318-19 (1979)). The State may prove the elements of an offense by either direct
or circumstantial evidence. Id. In a sufficiency review, "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." Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). If
the record supports conflicting inferences, we presume that the fact finder resolved the conflict in
favor of the prosecution and defer to that resolution. Garcia, 367 S.W.3d at 687; see Brooks, 323
S.W.3dat899n.13.

2. Applicable Law

We measure the sufficiency of the evidence supporting a conviction "by the elements of the offense
as defined by the hypothetical^ correct jury charge for the case" applied to the particular facts of the
case. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d
234, 240 (Tex. Crim. App. 1997)). In this case, the State had to prove that appellant: (1) intentionally
or knowingly; (2) entered a habitation; (3) without the owner's effective consent; (4) and while there
committed or attempted to commit aggravated assault. See Tex. Penal Code Ann. § 30.02(a)(3).
A person commits the crime of assault ifhe (1) intentionally, knowingly, or recklessly, (2) causes
bodily injury to another. Id. § 22.01(a)(1). The penal code defines "bodily injury" as "physical pain,
illness or any impairment of physical condition." Id. § 1.07(a)(8) (West Supp. 2011). Bodily injury is
"proven by evidence that the victim suffered 'some' pain." In re. I.L., 389 S.W.3d 445, 455 n.7 (Tex.
App.-EI Paso 2012, no pet.). "A person commits the felony offense of aggravated assault if he
commits assault and (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly

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 weapon during the commission of the assault." Mitchell v. State, 137 S.W.3d 842, 845 (Tex.
App.-Houston [1st Dist.] 2004, pet. refd); see Tex. Penal Code Ann. § 22.02(a)(2). A deadly weapon
is "anything that in the manner of its use or intended use is capable of causing death or serious bodily
injury." Tex. Penal Code Ann. § 1.07(a)(17)(B). The court of criminal appeals has interpreted this
language to mean that it is not necessary for the State to show that a defendant intended to cause
death or serious bodily injury, onlythat appellant intended to use the object in a way that it could cause
death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); see also
Bailey v. State, 46 S.W.3d 487, 490-91 (Tex. App.-Corpus Christi 2001, no pet.) (op. on remand). "In
determining whether an object is a deadly weapon, the jury may consider all the surrounding facts."
Quincy v. State, 304 S.W.3d 489, 500 (Tex. App.-Amarillo 2009, no pet.).
In brief, the State was required to prove that appellant entered Gonzalez's apartment without his
permission and, while there, committed assault, which became aggravated by appellant using the
DVD player in a way that it could cause death or serious bodily injury.
3. Analysis
Appellant argues that "the evidence does not show the commission, or even the attempt to commit
aggravated assault with a deadly weapon." Specifically, appellant argues that the DVD player was
"was merely thrown and not used to hitthe victim." We interpret appellant as arguing that the evidence
does not show that appellant used the DVD player as a deadly weapon.5 Gonzalez testified that
appellant and the other adult male in the group threw an Xbox game console, a "Wii player," and a
DVD player at appellant's back and that he suffered lacerations there as a result. Gonzalez further
testified that he was still suffering pain from the impact of the DVD player at the time of the trial, which
was held sixteen months after the incident. We conclude from this that the State produced sufficient
evidence to demonstrate that appellant suffered bodily injury as a result of appellant's conduct.
As discussed above, the State produced testimony that appellant and the other male in the group
threw several objects at Gonzalez, including the DVD player, and that the DVD player struck
Gonzalez's back. The DVD player itself was also admitted into evidence for the jury's inspection.
Raynel Salinas, a Gang Investigator for the City of Harlingen Police Department, testified that he
thought the DVD player was a deadly weapon because it could cause serious injury if it was thrown at
a person, asit was in this case. Other courts of appeals have concluded thatobjects thrown at a
person can qualify as a deadly weapon. See, e.g., Landrian v. State, 263 S.W.3d 332, 336 (Tex.
App.-Houston [1st Dist.] 2007), rev'd on other grounds, 268 S.W.3d 532, 540-42 (Tex Crim. App.
2008) (a broken bottle); see also Marin v. State, No. 08-00-344-CR, 2002 WL 1874815, at *3 (Tex.
App.-EI Paso Aug. 15, 2002, no pet.) (mem. op.) (not designated for publication) (a "water meter
cover" and glass bottle); Narcisee v. State, No. 14-96-97-CR, 1998 Tex. App. LEXIS 6918, 1998 WL
767662, at *4 (Tex. App.-Houston [1st Dist.] Nov. 5, 1998, no pet.) (mem. op., not designated for
publication) (a basketball).
Although appellant argues that the DVD player was not used to hit the victim, the jury heard testimony
that appellant threw the DVD player at Gonzalez and struck Gonzalez with it. It is the role of the jury to
resolve conflicts in the evidence, and we must defer to that resolution. Garcia, 367 S.W.3d at 687; see
Brooks, 323 S.W.3d at 899 n.13. In sum, we hold that a rational jury could have concluded that by
throwing the DVD player at Gonzalez, appellant used the DVD player in a mannerin which it was
capable of causing serious injury or death.6 See Landrian, 263 S.W.3d at 336.
Accordingly, appellant's first issue is overruled.
B. Modification

In his second issue, appellant complains that the trial court erred in rendering a judgment that

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 included Count II, the aggravated assault charge. The record reflects that at the beginning of the
punishment phase, the State's attorney rose and announced: "at this time the State is abandoning the
second charge of aggravated assault with a deadly weapon due to the fact that the Defendant cannot
be punished on both charges. It is double jeopardy, so we are going forward solely on the burglary of
a habitation;[charge]." In its brief, the State does not oppose appellant's request, but instead responds
that it "may be appropriate to modify the trial court's judgment by removing the Aggravated Assault
conviction" but asks that we preserve the deadly weapon finding, an issue we address below.
This Court has the authority to modify the record to make it speak the truth when it has the necessary
information to do so. See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.
App. 1992), It is unnecessary to completely delete Count II from the judgment because appellant was,
in fact, convicted of it! We conclude thatthejudgment should be modified to reflect thatthe State
abandoned Count II before the punishment phase and to affirmatively state that punishment was
assessed only on Count I. See Gibson v. State, No. 06-07-200-CR, 2008 Tex. App. LEXIS 4915, 2008
WL 2596221, at *5 (Tex. App.-Texarkana July 2, 2008, pet. refd) (mem. op./not designated for
publication) ("Accordingly, the trial court was correct in accepting the jury's verdict for burglary and
ignoring or dismissing its conviction for aggravated assault.")
Appellant's second issue is otherwise overruled.
C. Deadly Weapon Finding
In his third issue, appellant complains that the trial court erred in modifying the judgment to include a
deadly weapon finding because: (1) the State failed to provide adequate notice that it would seek an
affirmative deadly weapon finding; (2) the jury's verdict does not support the trial court's entry of an
affirmative deadly weapon finding; and (3) the modified judgment incorrectly states that the deadly
weapon finding was made by the jury pursuant to a special issue.
1. Applicable Law
"[Eligibility for parole [is] affected by the inclusion in the convicting court's judgment of an affirmative
finding that [the defendant] used a deadly weapon." Blountv. State, 257 S.W.3d 712, 713 (Tex. Crim.
App. 2008); see Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (West. Supp. 2011). A defendant is
generally "entitled to notice in some form that the use of a.deadly weapon will be a fact issue at the
time of prosecution." Grettenberg v. State, 790 S.W.2d 613, 614-15 (Tex. Crim. App. 1990) (citing Ex
parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989)). This notice need only be provided to the
defendant in some form. Id.; see Brooks v. State, 847 S.W.2d 247, 248-49 (Tex. Crim. App. 1990) (a
completely separate indictment arising out the same facts provides adequate notice). "Aggravated
assault may be committed in only two ways[,]... each involving] the use of a deadly weapon." Blount,
257 S.W.3d at 714. Therefore, "an allegation that the defendant committed or attempted to commit
aggravated assault [is] adequate notice that there would be an issue of [the defendant's] exhibition or
use of a deadly weapon since each manner of committing aggravated assault involves the use of a
deadly weapon." Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009). Furthermore, the
State may seek an affirmative deadly weapon finding when, as in this case, an "indictmentallege[s] a
burglary of a habitation in which, after entering, the appellant committed [or] attempted to commit a
felony of aggravated assault." Blount, 257 S.W.3d at 714. In such a case, "the jury's verdict [is] an
adequate basis for the trial court's entry of the affirmative finding in the judgment under the statutes
which require such findings." Crumpton, 301 S.W.3d at 665.
2. Analysis
In this case, the indictment's allegation that appellant committed aggravated assault gave appellant
adequate notice that the State may have sought an affirmative deadly weapon finding. See id. at 664.

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 Furthermore, we conclude that the jury's verdict that appellant was guilty as charged of burglary of a
habitation with the underlying offense of aggravated assault "affirmatively supports the trial court's
judgmentthat a deadlyweapon was used." Id. at 665. Therefore, the trial court did not err by including
the finding in its judgment. See id. ("[If] the jury finds the defendant guilty as charged in the indictment,
the verdict is necessarily a finding that a deadly weapon was used.").
Finally, although we agree with appellantthat the court did not submita special issue to the jury, "[t]he
State may be able to obtain a deadly-weapon finding from the juryat the guilt phase of trial either
through the wording of the offense submission in the jury charge or through a special issue." See In re
State ex rel. Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012). We conclude that the judgment
should be modified to delete the words "Special Issue" and to reflect that the deadly weapon finding
was entered because of the jury's verdict that appellant was guiltyas charged in the indictment.
Appellant's third issue is overruled in all other respects.7
D. Ineffective Assistance of Counsel

In his fourth issue, appellant argues that he received ineffective assistance of counsel at trial as a
result of a series of errors.

1. Applicable Law

In order to prevail on a claim of ineffective assistance of counsel, an appellant must meet the heavy
burden of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Jaynes
v. State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.). Under Strickland, the
defendant must show by preponderance of evidence that: (1) counsel's representation fell below an
objective standard of reasonableness; and (2) there is a reasonable probability that the result of the
proceeding would have been different but for the attorney's deficient performance. Strickland, 466
U.S. at 687; Jaynes, 216 S.W.3d at 851. "A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Exparte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). If
an appellant fails to prove one prong of the test, we need not reach the other prong. See Strickland,
466 U.S.'at 697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
We look to "the totality of the representation and the particular circumstances of each case in
evaluating the effectiveness of counsel." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). Although "a single egregious error of omission or commission" can constitute ineffective
assistance, the court of criminal appeals has been hesitant to designate a particular error as per se
ineffective assistance. Id. "There is a strong presumption that counsel's conduct fell within the wide
range of reasonable professional assistance." Id. Allegations of ineffectiveness must be "firmly
founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id.
Direct appeal: is therefore usually inadequate to make an ineffectiveness claim because the record is
often undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This is
especially true "where counsel's reasons for failing to do something do not appear in the record." Id.
The court of criminal appeals has explained that "trial counsel should ordinarily be afforded an
opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101
S.W.3d 107, 111 (Tex. Crim. App. 2003). Unless counsel had an opportunity to explain his trial
strategy, Texas appellate courts will "not find deficient performance unless the challenged conduct
was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d
at 392 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).' .
2. Analysis :

Appellant argues that a number of single errors constitute ineffective assistari.ee of counsel, and even

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 ifany of these errors do not suffice, counsel's performance as a whole compels a finding of ineffective
assistance. Appellant complains of the following alleged errors by his trial counsel: (1) that counsel did
not appear when ordered to by the court and had a writ of attachment issued for him; (2) once trial
counsel appeared at jury selection, he performed "a very limited voir dire"! and did not discuss
important matters such as the defendant's possible election not to testify, the indictment; and the
elements of the charged offense; (3) counsel's cross-examination of the State's witnesses was
"rambling and not coherent," resulting in multiple admonishments from the trial judge; (4) counsel did
not conduct an independent investigation and only moved for discovery the Friday before the Monday
omwhich trial was scheduled to start; (5) counsel did not request a jury instruction on lesser-included
offenses; and (6) he did not request a jury instruction on testimony of a jailhouse informant pursuant to
article 38.075(a) of trie';code of criminal procedure. See Tex. Code Crim. Proc. AnnJart. 38.075(a)
(WestSupp. 201 i). l
The record is silent as to trial counsel's strategy, and we may not speculate as to his intentions. His
decision not to request a jury instruction on the lesser-included offenses could have been part of an
"all-or-nothing trial strategy." Ex parte.White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004). There is no
evidence indicating whether or not counsel conducted an independent investigation.. Appellant faults
trial c^ms^ljornot filing a motion for disgoveiy until the trial had almoststarted, but.appejlant has not
indentJfjed^jn^prejudjce that he"suffered~See slncT<1and~^lj.S. at697; Garcia, 57 S.W.3d at440;
see also HammondlTStaie, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.)
(concluding that complete failure to file pretrial motions does not constitute ineffective assistance of
counsel unless the defendant identifies prejudice that he suffered as a result). In any case, without a
fuller record detailing trial counsel's strategy, appellant's claim of ineffective assistance fails as to
these issues. See Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d'at 111.
Appellant also argues that trial counsel was ineffective for conducting a brief voir dire, but "a brief
voire dire need riot be equated with ineffectiveness of counsel." Hollis v. State, 219;S.W.3d 446, 463
(Tex. App.-Austin 2007, no pet.). The record reflects that trial counsel actually used all of the time he
was given by the trial court for voir dire. During that time, he questioned the panel members regarding
whether they understood the State's burden to prove his client's guilt beyond a reasonable doubt
despite their own personal feelings, and questioned specific members with personal ties to law
enforcement whether they could impartiallyconsider police testimony. We hold that appellant's
ineffective assistance of counsel issue fails as to this claim.

Appellant next argues that trial counsel erred by failing to request a jury instruction under article
38.075(a) of the code of criminal procedure regarding Perez's testimony. See Tex. Code Crim. Proc.
Ann. art. 38.075(a). Article 38.075(a) provides that:

A defendant may not be convicted of an offense on the testimony of a person to whom the
defendant made a statement against the defendant's interest during a time when the person was
imprisoned or confined in the same correctional facility as the defendant unless the testimony is
corroborated by other evidence tending to connect the defendant with the offense committed./d.
However, Perez testified to incriminating statements appellant made before they were even arrested.
Therefore, article 38.075(a) was inapplicable. Accordingly, we hold that appellant's ineffective
assistance of counsel issue fails as to this claim.

Appellant next argues that trial counsel's representation was deficient because he had not seen a
video that the State showed to the jury during the punishment phase before the State moved to admit
it. The video apparently consisted of a compilation of recordings of numerous incidents of jailhouse
misconduct by appellant during the trial. Although trial counsel stated that he had not seen the video,
he made several proper objections before the court admitted it. Therefore, even assuming that not

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 viewing the video was error, appellant has not established how he suffered prejudice as a result of it.
We hold that appellant's ineffective assistance claim fails as to this issue.
Finally, appellant argues that his counsel was ineffective because his cross-examination of the State's
witnesses was "rambling and not coherent." Counsel's questions specifically challenged Gonzalez's
identification of appellant, the extent of Gonzalez's bodily injury because he refused transportation to a
hospital at the time of the offense, and whether the DVD player and other electronic equipment used
in the assault qualified as deadly weapons. Counsel also asked questions of Perez that highlighted the
possibility that he was being less than truthful because the State previously indicted him in connection
with this burglary. Admittedly, counsel refused to move on once the trial judge ruled that counsel's
questions had been asked and answered at several points during the trial. The record nevertheless
shows that counsel's cross-examination effectively challenged the testimony of the State's witnesses
and was far from "rambling and incoherent." Accordingly, we hold that appellant's ineffective
assistance claims fails as to this issue.8

We overrule appellant's fourth issue.
E. Exclusion of Defense Witnesses

In his fifth issue, appellant argues that the trial court committed error by excluding twowitnesses
appellant wished to call to testify during the punishment phase of the trial for violation of the witness
sequestration rule.

1. Standard of Review and Applicable Law
When invoked by either party or the court, Texas Rule of Evidence 614 ("the Rule") requires, with
some exceptions, that witnesses be excluded from the courtroom during trial so that they are unable
to hear the testimony of other witnesses. Tex. R. Evid, 614; see Longoria v. State, 148 S.W.3d 657,
660 (Tex. App.-Houston [14th Dist.] pet. refd). In excluding a defense witness from testifying for
violation of Rule 614, a trial court should take into account the defendant's constitutional right to call
witnesses on his behalf and have them testify. Longoria, 148 S.W.3d at 660. "[Generally, witnesses
should not be excluded, [from testifying] solely for violation of the rule."/d. The court of criminal
appeals has announced a two-part inquiryfor determining whether a trial court abused its discretion in
excluding a defense witness for violation of Rule 614:
(1) were there particular circumstances, other than the mere fact of the violation, which would
tend to show the defendant or his counsel consented, procured or otherwise had knowledge of the
witness's: presence in the courtroom, together with knowledge of the content of that witness's
testimony; and (2) if no particular circumstances existed to justify disqualification, was the
excludeditestimony crucial to the defense. Webb v. State, 766 S.W.2d 236, 245 (Tex. Crim. App.
1989); see Longoria, 148 S.W.3d at 660.
2. Analysis

Appellantadrpits that both excluded witnesses were present during the guilt-innocence stage of the
trial, but he argues that neither of them were going to testify regarding the facts of case. At trial,
appellant's counsel also argued that the two witnesses were only going to testify as to "background
and family issues." Appellant did not explain the content of the testimony further, and it is unclear if he
made a sufficient offer of proof to preserve this issue for review. "It is appellant's burden to make a
record, through a bill, of exceptions, of the evidence he or she desires admitted." Montgomery v. State,
383 S.W.3d. 722, 726 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Assuming without deciding that
appellant made a sufficient offer of proof at the trial court level, he does not explain on appeal how the
testimony ofthe excluded witnesses Would have differed from that offered by Ashley Gasca, whom

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 the trial court permitted to testify for appellant during the punishment stage. Gasca testified that
appellant was a positive role model for her and greatly assisted Gasca and her mother and sister once
appellant came to live with them after his parents died. Appellant's two excluded witnesses were
Gasca's mother, Dolores Trevino, and Crystal Gasca, whom we infer from the record to be Ashley
Gasca's sister. Appellant does not explain howtheir testimony would have differed from Ashley's or
how it would have been crucial to his case. Because appellant has not demonstrated that he meets
the second prong: of the Webb test, and is therefore unable to show he suffered prejudice from the
exclusion, we conclude that the trial court did not abuse its discretion in refusing to permit Trevino and
Crystal Gasca to testify. See Delapaz v. State, 229 S.W.3d 795, 802 (Tex. App.-Eastland 2007), rev'd
on other grounds, 273 S.W.3d 671, 681 (Tex. Crim. App. 2008)) (testimony of excluded defense
witness was not crucial when the witness' testimony would have been cumulative of other testimony
that had already been received). Appellant's final issue is overruled.
F. State's Requested Modification
The State also requests that we modify the judgment to reflect that appellant was convicted of a
first-degree felony. The judgment states that appellant was convicted of a second-degree felony.
Burglary of a habitation is a first-degree felony if the premises entered is a habitation and the
defendant commits or attempts to commit an offense other than felony theft while there. Tex. Penal
Code Ann. § 30.02(d)(1)-(2). The facts of this case fulfill both of these requirements. Accordingly, we
grant the State's request and modify the judgment to reflect that appellant was convicted of a
first-degree felony. See Tex. R. App. P. 43.2(b); French, 830 S.W.2d at 609. ,;
III. Conclusion

We modify the judgment to delete the words "Special Issue" in the deadly weapon finding, to reflect
that the State abandoned Count II before the punishment phase and to reflect that punishment was
assessed only on Count I, and to reflect that appellant was convicted of a first-degree felony. We
affirm the judgment as modified.
/s/ Nora L. Longoria
NORA L. LONGORIA .

Justice

Do not publish.
Tex. R. App. P. 47.2(b).
Delivered and filed the

3rd day of July, 2013.

Footnotes

1

There was conflicting testimony about whether a brick or a rock was used to break the window.
2

Luna is hearing impaired and was unable to understand what the group was saying.
3

Gonzalez also testified that appellant and the other male also tried to throw Gonzalez's TV but did not

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 remove the cord from the,wall first.
4

On cross-examination, Perez testified that he was unsure of whether the indictment was still pending
against him, although it appears from the nature of the questions of appellant's attorney that it had
already been dismissed.
5

The "Wii Player" was also used to hit the victim, but the State argued at trial that the DVD player
constituted the deadly weapon, and the judgment of conviction so reflects.
6

Appellant argues, correctly, that Gonzalez was facing downward when the DVD player hit him and
testified that he was unable to see who threw it. Our analysis still applies because the jury charge in
this case allowed the jury to convict appellant for aggravated assault either as the primary actor or as
a party to it. See Tex. Penal Code Ann. § 7.02(a)(2) (West 2011).
7

Appellant also includes language in his brief that reargues the sufficiency of the evidence supporting
the deadly weapon finding. We have already considered-that argument above in appellant's first issue
and need not repeat our reasoning here. See Tex. R. App. P. 47.1, 47.4.
8

Appellant also complains that when trial counsel did not appear on the morning of jury selection, the
trial court issued a writ of attachment for him. Although this behavior certainly qualifies as a mistake,
appellant does not allege how he suffered prejudice from it. Furthermore, no prejudice is apparent
from the record, especially because trial counsel appeared later that day, the court recalled the writ,
and jury selection proceeded.

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