TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00463-CR
Javiele Jason Frias, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-DC-11-205934, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted Javiele Jason Frias of burglary of a habitation under the law of
parties. See Tex. Penal Code §§ 7.01 (parties to offenses); 30.02 (burglary). The jury found the
enhancement paragraphs alleging two previous felony convictions to be true and, pursuant to the
habitual-felony-offender provision of the Penal Code, assessed punishment at 75 years’ confinement
in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. See
id. § 12.42(d). In two issues, appellant contends the evidence was legally insufficient to support the
verdict and that he received ineffective assistance of counsel during the punishment phase. We will
affirm the judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
A Travis County Grand Jury returned an indictment against appellant for burglary of
a habitation. The indictment also included enhancement paragraphs alleging appellant had prior
convictions for robbery, burglary of a vehicle, burglary of a habitation, and theft.
At trial the jury heard evidence that on the morning of November 3, 2010, someone
broke down the front door of Reynaldo Guerrero’s Austin residence, went upstairs, and stole a laptop
computer. Guerrero testified that when the burglar entered his house, he left the house through the
garage and, when he got outside the house, saw a person standing on the sidewalk by his front door.
Guerrero described the person as approximately 5’7”, heavy set with short hair, and wearing a dark
gray hoodie. When shown a photo array by the police, Guerrero picked appellant out as the person
who had been standing outside his door. Although Guerrero apparently told police at the scene that
he thought appellant was the person who had kicked in his door, at trial Guerrero testified that the
man who entered his house was Ricky Charlez, a relative of his former girlfriend’s, and that Charlez
had been in Guerrero’s house before. Guerrero testified that when he came out of his house during
the burglary, he observed appellant standing on the sidewalk. Later, from a neighbor’s home,
Guerrero saw appellant walking quickly down the street with Charlez, who was running.
Officer Robert Escamilla, an officer with the Austin Police Department (APD) who
was dispatched to Guerrero’s house, testified that while he was headed to the house the dispatch
provided an update that one or two suspects had fled the scene. Escamilla drove to try to intercept
the suspects and observed a person he believed was a possible suspect. When Escamilla passed the
person, he looked up briefly and then averted his eyes in a manner that Escamilla described as
2
“extremely suspicious.” Escamilla continued on in his car, then made a u-turn and decided to make
contact with the suspect as soon as another officer was in sight. When the suspect turned as if to go
into a house, Escamilla testified that he jumped out of his patrol car with his service weapon
unholstered and told the suspect to stop. Rather than stop, the suspect ran through a front yard and
between two houses, then climbed over a fence, ignoring Escamilla’s second and third orders to stop.
According to Escamilla, it is unusual for a person who has done nothing wrong to run from the
police. Escamilla testified that he saw the suspect’s face at that time and identified him in court as
appellant. Escamilla chased appellant but soon lost sight of him when appellant climbed a fence.
Escamilla then radioed a description of appellant—Hispanic male, unshaven, wearing a dark hoodie,
blue jeans and a ball cap—to the other officers. Escamilla testified that the burglary suspects had
earlier been described on the police radio as one wearing a dark hoodie and one wearing a gray
hoodie. Escamilla testified that appellant was wearing a ball cap and stated that he could not recall
whether the radio-transmitted description of the suspects made any mention of either suspect wearing
a ball cap.
APD Officer Danny Doyle testified that he was called to the area of the burglary at
9:58 a.m. Doyle heard Escamilla say over the radio that he had seen someone matching the
description of the suspects. Doyle watched Escamilla chase appellant and when the suspect evaded
Escamilla, Doyle drove to the back side of the houses that appellant had run behind. Doyle testified
that appellant “stutter stepped not knowing which way to go.” Doyle yelled for appellant to stop,
but he ran. Doyle pursued appellant, who jumped over two gates. Doyle then began setting up a
perimeter. He testified that the man he chased was wearing an orange sweater and described him
3
as having shaved hair, being short and stocky, and “most likely Hispanic, light-skinned black male.”
Doyle also testified that after being apprehended, appellant admitted that he was in fact the person
who had run from Doyle.
APD Officer John Papp participated in setting up the perimeter to apprehend
appellant. Papp was located at a Genie Car Wash, which was a few blocks from Guerrero’s house.
Papp testified that he found a ball cap near a fence in the area near the car wash. Papp found the cap
after one of the car wash employees told him that he saw someone run by and jump the fence. APD
Officer Pete Dennis, who was also part of the perimeter, drove his patrol car to the far side of the
Genie Car Wash and stayed there. Dennis testified that a witness flagged him down and indicated
to him that he had seen a person go over a fence. Dennis looked over the fence and saw someone
running through a backyard. Dennis climbed over the fence and pursued the person while yelling
at him to stop. The suspect eventually ran to the front porch area of a house south of the car wash,
where Dennis and another officer cornered him and took him into custody. At trial Dennis identified
appellant as the person he apprehended. Dennis testified that appellant was placed in the back of a
patrol car and driven back to Guerrero’s house, where Guerrero identified him as the person that
kicked his door down.
A Genie Car Wash employee testified that he saw someone jump over a fence near
the car wash. He had earlier noticed that there was a lot of police activity in the area and he believed
the person that jumped the fence was probably the person the police were looking for. The employee
flagged down a police officer and told him about the person jumping the fence. A customer at the
car wash testified that he saw someone jump the fence, pursued him, and saw him lying on the
4
ground by a storage shed. According to this witness, the person was wearing a gray sweatshirt. The
customer told the police officers where the person was hiding and watched them go and take the
person into custody.
After presenting testimony from the officers and witnesses who were in the area on
the day of the burglary, the State played for the jury a tape recording of a telephone conversation
between appellant and Jessica Fierro recorded in the Travis County jail while he was being detained
after his arrest. During the call, appellant states that he did not go in Guerrero’s house, but only
“took them over there.” In the call appellant tells Fierro that he did not know the friends he was with
were going to break into the house. Appellant and Fierro also discussed whether his friends had been
arrested. Appellant told Fierro that his van was parked near the Genie Car Wash and that there was
a gun in the van. Fierro testified that appellant normally drove a van.
An APD crime scene specialist collected a black ski mask and two black gloves that
were found by a fence at a house down the street from Guerrero’s. DNA analysis done on the gloves
indicated that appellant could not be excluded as a contributor. The ski mask had DNA for which
neither appellant nor Ricky Charlez could be excluded as contributors.1
The jury found appellant guilty as charged. During the punishment phase, appellant
pleaded not true to the enhancement paragraphs alleging prior convictions. An investigator from the
Travis County District Attorney’s office compared appellant’s fingerprints to those taken upon
1
The odds of selecting at random a person who could be a contributor to the DNA profile
found on the ski mask was found to be one in 2.598 million for Hispanics. The odds of selecting at
random a person who could be the source of a major component of the DNA found on one of the
gloves was found to be one in 3.675 trillion for Hispanics and for the other glove one in 3.818 billion
for Hispanics.
5
conviction of the prior offenses alleged and identified appellant as the person previously convicted
of those offenses. Also during punishment, the State introduced evidence of a home invasion
robbery that had occurred less than a week before Guerrero’s house was burglarized. This evidence
was admitted without objection as evidence of a prior unadjudicated extraneous offense. The jury
found the prior convictions alleged in the enhancement paragraphs to be true and assessed
punishment at 75 years’ imprisonment and a fine of $10,000. The district court sentenced appellant
accordingly, and this appeal followed.
DISCUSSION
Sufficiency of the Evidence Supporting Conviction for Burglary of a Habitation
In his first issue, appellant challenges the sufficiency of the evidence supporting
his conviction for burglary of a habitation under the law of parties. See Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (legal sufficiency standard set forth in Jackson
v. Virginia, 443 U.S. 307 (1979) is only standard to evaluate sufficiency of evidence in criminal
case). When reviewing the sufficiency of the evidence, we view all the evidence in the light most
favorable to the verdict and determine, based on that evidence and any reasonable inferences from
it, whether any rational fact finder could have found the elements of the offense beyond a reasonable
doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011); see also Jackson, 443 U.S. at
319. The jury is the exclusive judge of the credibility of witnesses and the weight to be given the
evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to
the jury’s responsibility to fairly resolve or reconcile conflicts in the evidence. Id. This standard
applies to both circumstantial and direct evidence.
6
A person commits the offense of burglary of a habitation if he “without the effective
consent of the owner . . . enters a building or habitation and commits or attempts to commit a felony,
theft, or an assault.” See Tex. Penal Code § 30.02(a)(3). A person is criminally responsible as a
party to an offense if the offense is committed by his own conduct, by the conduct of another for
which he is criminally responsible, or both. Id. § 7.01. A person is criminally responsible for an
offense committed by the conduct of another if, acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person
to commit the offense. Id. § 7.02.
Because appellant was not the principal actor here, the State was required to prove
conduct constituting an offense plus an act committed by appellant with intent to promote or assist
such conduct. See Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). In determining whether
the accused participated as a party, the court may look to events occurring before, during, and after
the commission of the offense and may rely on actions of the defendant that show an understanding
and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim.
App. 1994) (op. on reh’g); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).
Evidence is sufficient to sustain a conviction under the law of parties if it shows that the accused was
physically present at the commission of the offense and encouraged commission of the offense by
either words or other agreement. See Ransom, 920 S.W.2d at 302; Tarpley v. State, 565 S.W.2d 525,
529 (Tex. Crim. App. 1978). Because an agreement between the parties to act together in a common
design can seldom be proven by words, the State often must rely on the actions of the
parties showing an understanding and common design to commit the offense. Brooks v. State,
7
580 S.W.2d 825, 832 (Tex. Crim. App. 1979). Circumstantial evidence may be used to prove the
defendant is a party to an offense. Cordova, 698 S.W.2d at 111; Wygal v. State, 555 S.W.2d 465,
469 (Tex. Crim. App. 1977). Any agreement to accomplish a common purpose must have been
made before or contemporaneously with the criminal conduct. Cordova, 698 S.W.2d at 111; Beier,
687 S.W.2d at 3-4; Urtado v. State, 605 S.W.2d 907, 911 (Tex. Crim. App. 1980).
Mere presence at the scene of the offense does not establish guilt as a party to the
offense. Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985) (“[M]ere presence of a
person at the scene of the crime, either before, during, or after the commission of the offense, or even
flight from the scene, without more, is insufficient to sustain a conviction of one as a party to the
offense.”); Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. 1982). But presence at the scene
is a circumstance tending to prove guilt that, when combined with other facts, may suffice to show
that the accused was a participant. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App.
1987); Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979). In this case appellant was not
only present at the scene of the burglary,2 the jury heard evidence that he had driven the person who
committed the burglary to the Genie Car Wash in his van, the van was parked near the Genie Car
Wash, and appellant was standing outside Guerrero’s house while the burglary took place. Later,
appellant walked quickly away from the scene in the same direction as the person who had kicked
down Guerrero’s door. When confronted by police farther down the street, appellant ran from an
officer who had an unholstered service weapon and was telling him to stop, and thereafter ran from
2
Appellant does not challenge the sufficiency of the evidence supporting the elements of the
offense of burglary of a habitation by another person.
8
at least two other police officers. The evidence showed that appellant was running in the direction
of the van he had left parked near the Genie Car Wash, and that he continued to try to evade police
officers until he was cornered in a yard. While the jury heard appellant state in the recorded
telephone conversation that he did not know his friend was planning to burglarize a house when he
gave him a ride, the jury was not required to believe that this self-serving statement by appellant was
truthful. Viewing the evidence in the light most favorable to the judgment, as we are required to,
it is sufficient to allow a rational jury to find beyond a reasonable doubt that appellant was a party
to the offense and sufficient to support the conviction. See Alexander v. State, 607 S.W.2d 551, 553
(Tex. Crim. App. 1980) (evidence that defendant drove acquaintances to house and waited while
they committed burglary and left with them was sufficient to support conviction of burglary under
law of parties). We overrule appellant’s first issue.
Ineffective Assistance of Counsel
In his second issue, appellant contends that he received ineffective assistance of
counsel when his trial counsel failed to request notice of the State’s intent to introduce, during the
punishment phase, evidence of an unadjudicated extraneous offense allegedly committed by
appellant and by his counsel’s failure to object to the admission of evidence about the offense.
Appellant contends that no rational fact finder could have concluded, beyond a reasonable doubt, that
he committed the extraneous offense as the State alleged and, consequently, had the evidence been
objected to, the trial court would have excluded it. Appellant asserts that if the evidence had been
excluded, there is a reasonable probability that the jury would have assessed a less severe
punishment than 75 years’ imprisonment and a $10,000 fine.
9
To prevail on an ineffective-assistance-of-counsel claim, appellant must prove by a
preponderance of the evidence that counsel was ineffective. Perez v. State, 310 S.W.3d 890, 892
(Tex. Crim. App. 2010) (citing Strickland v. Washington, 466 U.S. 668 (1984)). There are two
required components of an ineffectiveness claim: performance and prejudice. Id. First, appellant
must prove that counsel’s performance was deficient. Strickland, 466 U.S. at 687; Perez,
310 S.W.3d at 892. To satisfy this prong of the analysis, appellant “must show that counsel’s
representation fell below an objective standard of reasonableness” based on “prevailing professional
norms.” Strickland, 466 U.S. at 688; Perez, 310 S.W.3d at 893. For this performance inquiry we
consider all of the circumstances, with “a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 688-89; Perez,
310 S.W.3d at 893.
“Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. To succeed under the
prejudice component, appellant “must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
A reasonable probability is “a probability sufficient to undermine confidence in the outcome of the
proceeding.” Id. “[A] verdict or conclusion only weakly supported by the record is more likely to
have been affected by errors than one with overwhelming record support.” Id. at 696.
A Strickland claim must be “firmly founded in the record” and the “record must
affirmatively demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808,
10
813 (Tex. Crim. App. 1999). For this reason, direct appeal is usually an inadequate vehicle for
raising ineffective-assistance claims. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). “This is true with regard to the question of deficient performance—in which counsel’s
conduct is reviewed with great deference, without the distorting effects of hindsight—where
counsel’s reasons for failing to do something do not appear in the record.” Id. Trial counsel should
ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.
Id. “Absent such an opportunity, an appellate court should not find deficient performance unless the
challenged conduct was ‘so outrageous that no competent attorney would have engaged in it.’” Id.
(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).
Appellant argues that counsel was ineffective by failing to request notice of the
State’s intent to introduce evidence of unadjudicated extraneous offenses during the punishment
phase, failing to request that the trial court hear, outside the presence of the jury, the evidence the
State intended to present in order to make a determination of whether a rational factfinder could find
beyond a reasonable doubt that appellant had committed the extraneous offense, and failing to object
to the evidence when it was introduced by the State.
Article 37.07 of the Texas Code of Criminal Procedure provides:
[E]vidence may be offered by the state and the defendant as to any matter the court
deems relevant to sentencing, including but not limited to the prior criminal record
of the defendant, his general reputation, his character, an opinion regarding his
character, the circumstances of the offenses for which he is being tried, and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of
an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence
to have been committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or finally
convicted of the crime or act.
11
Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) (emphasis added). Appellant and the State agree that,
had appellant’s counsel timely requested notice of the prosecution’s intent to introduce an extraneous
offense during punishment, he would have been entitled to such notice. See id. art. 37.07, § 3(g).
While counsel for appellant did file a “Motion for Discovery” in which he requested that the court
order “[n]otice by the State of its intent to introduce evidence of any other crimes, wrongs, or acts
allegedly committed by Defendant, other than those arising in the same transaction for which
Defendant is charged in this case,” there is nothing in the record to indicate that he obtained a ruling
from the trial court on this motion. The motion, addressed to the court, was not sufficient by itself to
require notice from the State under article 37.07, section 3(g). See Rea v. State,
No. 03-11-00186-CR, 2012 WL 3601126, at *2 (Tex. App.—Austin Aug. 12, 2012, no pet.) (mem.
op., not designated for publication) (motion for trial court to order State to give notice does not
trigger 37.07 duty unless trial court orders State to give such notice); Ford v. State, 106 S.W.3d 765,
766-67 (Tex. App.—Texarkana 2003, no pet.) (same). Even reviewing trial counsel’s failure to
secure the notice to which appellant was entitled with the required deference, we do not believe that
any competent attorney adequately representing his client would fail to take the steps required to
obligate the State to provide notice regarding the State’s intent to introduce evidence of
unadjudicated extraneous offenses. See Autry v. State, 27 S.W.3d 177, 182 (Tex. App.—San
Antonio 2000, pet. ref’d) (purposefully deciding not to request disclosure by State of intent to
introduce evidence of extraneous offense may amount to “questionable trial strategy”); cf. Ex parte
Menchaca, 854 S.W.2d 128, 129 (Tex. Crim. App. 1993) (no strategic basis for failing to file motion
in limine to prohibit introduction of evidence of prior conviction for different offense). “The
12
purpose of article 37.07, section 3(g) is to avoid unfair surprise, that is, trial by ambush.” Nance
v. State, 946 S.W.2d 490 (Tex. App.—Fort Worth 1997, pet. ref’d). Thus, the purpose of the notice
requirement is to allow the defendant adequate time to prepare for the State’s introduction of the
evidence at trial. See Chimney v. State, 6 S.W.3d 681, 693-94 (Tex. App.—Waco 1999, pet. ref’d).
The statute provides a mechanism for a defendant to discover what evidence the State is aware of
and whether it intends to offer it to affect his punishment. A defendant is not required to disclose
anything to the State when making the request; rather, the request triggers a one-way flow of
information from the State to the defendant. We can think of no strategic basis for not requesting
notice under article 37.07, section 3(g). We conclude that trial counsel’s failure was unreasonable
and not justified by any conceivable “trial strategy.” Strickland, 466 U.S. at 689. Thus, appellant
has demonstrated that his trial counsel’s representation fell below an objective standard of
reasonableness. Id.
Appellant also asserts that trial counsel was ineffective when he failed to object to
the evidence of the unadjudicated extraneous offense when it was offered by the State. Appellant
contends that because the evidence connecting him to the unadjudicated extraneous offense was so
weak, his trial counsel should have objected to its admission and, if he had, the trial court would
have been obligated to exclude it. See Mitchell v. State, 931 S.W.2d 950, 953-54 (Tex. Crim. App.
1996) (trial judge has responsibility of determining threshold admissibility of extraneous offenses
in punishment phase). While it is the factfinder’s role to determine whether the evidence
demonstrates beyond a reasonable doubt that defendant committed the unadjudicated extraneous
offense, the trial judge is not permitted to allow the jury to hear evidence of such offenses if the
13
evidence connecting the defendant to the offense is so weak that a rational juror could not make that
finding. See Fischer v. State, 268 S.W.3d 552, 556-57 (Tex. Crim. App. 2008) (trial court can admit
extraneous offense evidence in circumstances where jury could reasonably find beyond reasonable
doubt that defendant committed offense); Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App.
1994) (proof of culpable connection between accused and extraneous offense is essential
precondition to establishing relevance of extraneous offense and conditional fact trial court is
required to determine is whether jury could reasonably find beyond reasonable doubt that defendant
committed offense). If the evidence is such that a rational trier of fact could find beyond a
reasonable doubt that the defendant committed the unadjudicated extraneous offense, evidence of
the offense is admissible. Otherwise, it is not. See Mann v. State, 13 S.W.3d 89, 94 (Tex.
App.—Austin 2000) (trial court must make initial determination at proffer of evidence that jury
could reasonably find beyond reasonable doubt that defendant committed extraneous offense), aff’d
58 S.W.3d 132 (Tex. Crim. App. 2001). Consequently, in order for trial counsel’s failure to object
to the admissibility of the evidence to be deficient, we must conclude that the evidence was, in fact,
inadmissible. See Ortiz v. State, 93 S.W.3d 79, 83 (Tex. Crim. App. 2002) (“When an ineffective
assistance claim alleges that counsel was deficient in failing to object to the admission of evidence,
the defendant must show, as part of his claim, that the evidence was inadmissible.”).
With this standard in mind, we consider the unadjudicated extraneous-offense
evidence introduced by the State. The State called three witnesses who had been the victims of a
single-home invasion the week before Guerrero’s house was burglarized. Each of the three witnesses
testified regarding the events of that evening. In essence, the three witnesses were at home sleeping
14
when three men broke into their house by breaking the door down. Two of the witnesses testified
that one of the invaders knocked on their bedroom door stating they were police and demanding
entry. Once inside the bedroom, the invader ordered the witnesses to lie down on the floor. The
invader was wearing a black ski mask and gloves and began demanding that the occupants of the
home tell him where the safe was and where the drugs and money were. The female witness testified
that the invader hit her with the gun several times and that one of the two men that entered the
bedroom was touching her and making sexual remarks to her. She testified that one of the men
seemed to her to be Hispanic and the other was Caucasian. After awhile the Caucasian male took
her to a different room, put her in the closet, and began sexually assaulting her until the Hispanic
male told him to stop. The invaders stole some laptops, an iPad, and some bottles of wine. The
witness was told by the police that the items that were stolen were later found in an apartment where
Richard Charlez lived. After the three witnesses described the home invasion, APD detective
Cliff Jaeger testified that he worked the investigations of both the Guerrero burglary and the earlier
home invasion. Jaeger testified that Richard Charlez was taken into custody at his apartment, where
officers found some iPads, ski masks, gloves, some articles of clothing, and cameras. Another
officer testified that Charlez lived at the apartment with a man whose last name is Mendoza.
The State contends that this evidence could justify a finding by the trial court that the
jury could reasonably find beyond a reasonable doubt that appellant committed the home invasion
such that it was admissible during the punishment phase as evidence of an unadjudicated extraneous
offense. The State relies on the following facts: (1) the offenses took place within a week of each
other, and both occurred in South Austin; (2) in both instances, the front door was broken down;
15
(3) both offenses involved a gun; (4) the suspects in the earlier home invasion wore black ski masks
and gloves that looked similar to the ones found near Guerrero’s home; (5) laptop computers were
stolen in both instances; (6) stolen items were found in Charlez’s apartment; and (7) Charlez’s and
appellant’s DNA were found on a ski mask and gloves recovered from the Guerrero burglary.
We conclude that, based on the evidence presented by the State, no rational juror
could reasonably have found beyond a reasonable doubt that appellant participated in the earlier
home invasion. The evidence connecting appellant to that event is simply too thin to support a
conviction for that offense. The State’s reliance on evidence so general (the crimes involved
breaking down a door in a South Austin home, carrying a gun, and stealing a laptop computer) does
not lead to a strong enough inference to permit a reasonable jury to conclude that appellant was
involved in the earlier home invasion. While a jury could reasonably conclude beyond a reasonable
doubt that Charlez was involved in both burglaries, the same cannot be said about appellant. Had
trial counsel objected to the State’s introduction of this evidence at trial, the trial court would have
been required to find it inadmissible and exclude it.
Accordingly, we must consider whether counsel’s failure to ensure that this evidence
was excluded meets the second prong of the Strickland test—that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Here, both errors that have been identified led to the same result: admission of the extraneous
offense evidence. In the present case, this second prong would be met if we could conclude that, had
the extraneous offense evidence not been admitted, the jury would have assessed a less severe
punishment than it did.
16
The court’s charge to the jury on punishment included the following instruction:
You are instructed that if there is testimony before you in this case regarding the
defendant having committed other acts or participated in other transactions other than
the offense alleged against him in the indictment in this case, that you cannot
consider such other acts or transactions, if any, unless you first find and believe
beyond a reasonable doubt that the defendant committed such acts or participated in
such transactions, if any, but if you do not so believe, or if you have a reasonable
doubt thereof, you will not consider such testimony for any purpose.
As we have explained, the extraneous offense should not have been admitted because, based on the
evidence presented by the State, no rational juror could have reasonably concluded beyond a
reasonable doubt that appellant was connected with the proffered extraneous offense. Thus, if the
jurors did in fact consider that offense, they would had been disregarding the court’s instruction not
to consider other acts or transactions that they did not believe, beyond a reasonable doubt, appellant
had committed. On appeal, we generally presume the jury followed the trial court’s instructions in
the manner presented. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)
(jury presumed to disregard parole during deliberation when so instructed); Waldo v. State,
746 S.W.2d 750, 755 (Tex. Crim. App. 1988) (jury presumed to follow instruction to disregard
evidence). The presumption is rebuttable, but the appellant must rebut the presumption by pointing
to evidence that the jury failed to follow the court’s instruction. See Colburn, 966 S.W.2d at 520.
Appellant has identified no evidence to rebut that presumption other than the length of the sentence
imposed by the jury. The punishment range in this case was 25 to 99 years’ imprisonment. The jury
assessed punishment at 75 years’ imprisonment, a time period appreciably shorter than the maximum
available. We conclude that the length of the sentence imposed does not, by itself, rebut
17
the presumption that the jury followed the trial court’s instruction and disregarded the
extraneous-offense evidence.
Moreover, even in the absence of the instruction, appellant has not, on this record,
demonstrated that there is a reasonable probability that, but for the attorney’s errors, his sentence
would have been less than the 75 years’ imprisonment assessed by the jury. Strickland, 466 U.S. at
694. Appellant had four previous felony convictions—for robbery, burglary of a vehicle, burglary
of a habitation, and felony theft, two of which were sequential convictions. He was therefore
sentenced under the habitual-felony-offender provision of the Penal Code. The jury imposed a
sentence significantly shorter than the maximum sentence available. We hold that appellant has not
met his burden to show that his sentence would have been different if his attorney had objected to
admission of the extraneous offense evidence. Consequently, appellant has not satisfied the second
prong of the Strickland test requiring a showing that counsel’s errors were so serious that they
undermine our confidence in the outcome of the proceeding. Id. Thus, we hold that the failure to
request notice under article 37.07 and the failure to object to the evidence when offered were not
errors sufficient to require reversal. We overrule appellant’s second appellate issue.
Imposition of Fine
In this case, the jury found both enhancement paragraphs of the indictment to be
“true.” Thus, appellant’s punishment, enhanced by two prior sequential felony convictions, was
assessed pursuant to section 12.42(d) of the Penal Code, the habitual offender punishment provision.
See Tex. Penal Code § 12.42(d). This subsection does not provide for the imposition of a fine. Id.
18
Consequently, the portion of the trial court’s judgment in which appellant was assessed a fine was
not authorized by law. See Ex parte Johnson, 697 S.W.2d 605, 607–08 (Tex. Crim. App. 1985).
Article 37.10 of the Code of Criminal Procedure mandates appellate courts to reform
a verdict and judgment containing unauthorized punishment.3 Tex. Code Crim. Proc. art. 37.10(b);
see Johnson, 697 S.W.2d at 608 (court of criminal appeals specifically utilized article 37.10(b) to
delete fine improperly assessed under enhancement statute). Accordingly, we reform the verdict and
modify the judgment of conviction to delete the unauthorized fine assessed in this case. See Mizell
v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A trial or appellate court which otherwise
has jurisdiction over a criminal conviction may always notice and correct an illegal sentence.”); see
also Tex. R. App. P. 43.2(b).
Clerical Error in Judgment
Further, we note that the judgment of conviction in this case contains a clerical error. The
appellant’s middle name, “Jason,” has been omitted from the judgment. This Court has authority
to modify incorrect judgments when the necessary information is available to do so. See Tex. R.
3
Specifically, subsection (b) provides:
If the jury assesses punishment in a case and in the verdict assesses both punishment
that is authorized by law for the offense and punishment that is not authorized by law
for the offense, the court shall reform the verdict to show the punishment authorized
by law and to omit the punishment not authorized by law. If the trial court is required
to reform a verdict under this subsection and fails to do so, the appellate court shall
reform the verdict as provided by this subsection.
Tex. Code Crim. Proc. art. 37.10(b).
19
App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Since the necessary
information is available here, we modify the judgment of conviction to correctly reflect appellant’s
name as “Javiele Jason Frias.”
CONCLUSION
Having found the evidence sufficient to support the conviction and having rejected
appellant’s claim of ineffective assistance of counsel, we modify the trial court’s judgment of
conviction to delete the unauthorized fine assessed and to correctly reflect appellant’s name. We
affirm the judgment as so modified.
_____________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Goodwin and Field
Modified and, as Modified, Affirmed
Filed: July 10, 2014
Do Not Publish
20
Javiele Jason Frias v. State
Combined Opinion