NUMBER 13-11-225-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
BENNIE LEE WALKER, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 226th District Court of Bexar County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Vela, and Perkes Memorandum Opinion by Justice Vela
A jury found appellant, Bennie Lee Walker, guilty of the third-degree felony of
attempted burglary of a habitation. See TEX. PENAL CODE ANN. §§ 15.01(a) (West 2003); 30.02(a)(1). After finding he had one prior felony conviction, the jury assessed
punishment at ten years' imprisonment. In four issues, appellant argues: (1) the
evidence is legally insufficient to support his conviction; (2) he received ineffective
assistance of counsel; (3) the State made improper remarks during closing argument;
and (4) the trial court failed to give a reasonable-doubt instruction in the punishment
charge. We affirm.1
I. FACTUAL BACKGROUND
A. State's Evidence
About March 7, 2010, Barbara Kirk lived next door to Donald Gray, who was on a
trip to Louisiana. At 3:38 a.m. that day, Kirk saw a cream or white-colored, four-door
Cadillac in Gray's driveway. It backed up and then accelerated forward, hitting Gray's
garage door. After the Cadillac did this four times, its driver exited the car. Kirk testified
that at that point, "I was able to get a good look at his face. . . ." The Cadillac's driver
went to an opening, which was at the right side of the garage door and "leaned around . .
. to try and get in, but it [the opening] wasn't large enough, so he got back in the car and
left."
After the incident, Detective Lawrence Saiz showed Kirk a photo lineup, and she
selected appellant as the man who she saw driving the Cadillac into Gray's garage door.
In addition, during the State's case-in-chief at guilt-innocence, Kirk identified appellant,
who was seated in the courtroom, as the man she saw driving the Cadillac into Gray's
garage door.
1 This appeal was transferred from the Fourth Court of Appeals pursuant to a docket-equalization order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). 2 On cross-examination, when defense counsel asked Kirk, "When he [appellant]
went in front of that garage, did he just look in and determine well, there's not enough
room?", she said, "No, sir. He didn't just look in. He tried to manipulate himself in."
She said he "[t]ried to squeeze in."
When Donald Gray returned from Louisiana, he saw that his home's garage door
"had been caved in." He testified that "whenever the car hit the garage door, it [the
garage door] kind of mushroomed and just knocked it off its rollers, rollers off of the
hinges. And, of course, it couldn't be opened or closed." When the prosecutor asked
him, "Can you tell the jury whether or not the garage door would have still kept someone
outside of the home?," he replied, "Yeah, I think so, . . . ." He said "there wasn't enough
room between the garage door and the side of the house to get through. It was too
narrow, so no one could get into the garage. You could see into the garage, but you
couldn't get in there because it was too narrow." When asked, "[C]an you describe to the
jury about how much space there was between the home and the garage door as a result
of the damage?," he said, "There was only probably six to twelve inches. It was just
enough that you could see into the garage, but . . . no one could crawl in past it." When
asked, "Could you reach an arm into it", he said, "I think so." Gray testified that he did
not give appellant permission to enter his house, and he never gave appellant permission
"to drive his car into" his garage door.
Detective Saiz testified that when he showed the photo lineup to Kirk, she "went
right to the photograph of the suspect and circled it and said, "'That's the guy.'" When the
prosecutor asked Detective Saiz, "The photograph that she identified is the photograph of
3 who?", he said, "Bennie Lee Walker." Detective Saiz testified appellant's car had "some
damage, some scratch marks on the bumper, the driver's side front bumper."
B. Appellant's Evidence
Matthew Wolak and appellant were roommates at the time of this offense. They
shared a one-bedroom apartment; Wolak slept on the sofa, and appellant slept in the
bedroom. Wolak, who claimed to have a "photographic memory," testified that on the
day of the offense, he arrived at the apartment between 12:30 a.m. and 1:00 a.m. At that
time, appellant and a girlfriend, Nicole Garibay, were at the apartment. Appellant and
Garibay went into the bedroom between 1:30 a.m. and 2:00 a.m., and Wolak fell asleep
on the sofa no later than 2:15 a.m. Wolak testified he would have heard appellant leave
the apartment. He explained that "[t]hey [appellant and Garibay] would have to get past
me and shut the door." Wolak heard appellant and Garibay leave the apartment
between 8:00 a.m. and 9:00 a.m. He said there were no scratches or damage to the
front end of appellant's car.
On cross-examination, Wolak testified that if appellant would have left the
apartment, "I would have known." When the prosecutor asked Wolak, "[W]hy do you say
that with such certainty?", he said, "Because . . . when I sleep on somebody's couch, I'm
not a sound sleeper. . . . And that's how I would know if I heard the door unlock with both
latches, if he [appellant] would have closed the door, if he would have came back in,
you're going to hear it. . . ." Wolak testified appellant drove a white Cadillac. After this
offense occurred, Wolak did not see any scratches on the Cadillac's front bumper.
4 Appellant did not testify during the guilt-innocence phase of his trial.
II. DISCUSSION
A. Sufficiency of the Evidence
In issue one, appellant challenges the legal sufficiency of the evidence to support
his conviction.
1. Standard of Review
"When reviewing a case for legal sufficiency, we view all of the evidence in the light
most favorable to the verdict and determine whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." Winfrey v. State,
323 S.W.3d 875, 878–79 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). "Consequently, we 'determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.'" Id. at 879 (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9,
16–17 (Tex. Crim. App. 2007)). "It has been said, quite appropriately, that '[t]he
appellate scales are supposed to be weighted in favor of upholding a trial court's
judgment of conviction, and this weighting includes, for example, the highly deferential
standard of review for legal-sufficiency claims.'" Id. (quoting Haynes v. State, 273
S.W.3d 183, 195 (Tex. Crim. App. 2008) (Keller J., dissenting) (citing Jackson, 443 U.S.
at 319)). "We must therefore determine whether the evidence presented to the jury,
viewed in the light most favorable to the verdict, proves beyond a reasonable doubt that
appellant" committed the crime for which the jury found him guilty. See id. "It is the
5 obligation and responsibility of appellate courts 'to ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime that was charged.'"
Id. at 882 (quoting Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
"Furthermore, '[i]f the evidence at trial raises only a suspicion of guilt, even a strong one,
then that evidence is insufficient [to convict].'" Id. (quoting Urbano v. State, 837 S.W.2d
114, 116 (Tex. Crim. App. 1992)), superseded in part on other grounds, Herrin v. State,
125 S.W.3d 436, 443 (Tex. Crim. App. 2002).
Section 30.02 of the penal code provides, in relevant part, that "(a) A person
commits an offense [of burglary of a habitation] if, without the effective consent of the
owner, the person: (1) enters a habitation, . . . with intent to commit a felony, theft, or an
assault[.]" TEX. PENAL CODE ANN. § 30.02(a)(1). "A person commits an offense of
[criminal attempt] if, with specific intent to commit an offense, he does an act amounting to
more than mere preparation that tends but fails to effect the commission of the offense
intended." Id. § 15.01(a).
2. Analysis
The evidence showed that Gray did not consent to an entry or attempted entry by
appellant into his home. Kirk identified appellant as the man whom she saw repeatedly
driving the Cadillac into the garage door to Gray's house. Appellant's attempted entry
into Gray's habitation at night is a circumstance indicating guilt, from which the jury may
infer an intent to commit theft. See Browning v. State, 720 S.W.2d 504, 506 (Tex. Crim.
App. 1986); Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). The evidence
showing appellant attempted to enter Gray's house is as follows: Kirk saw appellant
6 driving a Cadillac, which was in Gray's driveway. Appellant backed up the Cadillac and
then accelerated forward, hitting Gray's garage door. After doing this four times,
appellant got out of the Cadillac and went to an opening, which was at the right side of the
garage door. He tried to "squeeze" into the garage, but the opening was too small.
Gray testified that the damage caused to his garage door created a six to twelve inch
opening, which was enough room for a person to reach into the garage. Detective Saiz
testified appellant's car had a damaged bumper. Appellant drove a white Cadillac.
The contrary evidence showed that: (1) the Cadillac that appellant owned had no
scratches on the front end the morning after the incident; (2) appellant's Cadillac did not
have any damage to its front bumper; (3) no physical evidence connected appellant to the
offense: and (4) Wolak testified that he would have heard appellant leave the apartment
and that appellant did not leave the apartment until well after the offense occurred. The
court of criminal appeals has stated that "a jury is permitted to believe or disbelieve any
part of a witness' testimony, including a defendant." Jones v. State, 984 S.W.2d 254,
258 (Tex. Crim. App. 1998). Thus, the jury could have decided to disbelieve Wolak's
testimony and to believe Kirk's testimony that she saw appellant driving the Cadillac into
Gray's garage door.
After viewing all of the evidence in the light most favorable to the verdict, we hold a
rational trier of fact could have found beyond a reasonable doubt that appellant
committed the offense of attempted burglary of a habitation with intent to commit theft.
Issue one is overruled.
7 B. Reasonable-Doubt Instruction
In issue four, appellant argues he suffered egregious harm because during
sentencing, the trial court failed to give the jury a reasonable-doubt instruction in the
punishment charge regarding the Mayfield burglary.
1. Standard of Review for Charge Error
"[A]n appellate court's first duty in evaluating a jury charge issue is to determine
whether error exists. Then, if error is found, the appellate court should analyze that error
for harm." Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). If, as in the
case before us, "no proper objection was made at trial and the accused must claim that
the error was 'fundamental,' he will obtain a reversal only if the error is so egregious and
created such harm that he 'has not had a fair and impartial trial'—in short 'egregious
harm.'" Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
2. Extraneous Offense Burden of Proof Charge is Required
The code of criminal procedure provides that:
Evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including . . . 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 been charged with or finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2010). Whether or not the
defendant requests the instruction, the trial court must instruct the jury in the punishment
phase that extraneous offenses must be proven beyond a reasonable doubt. Huizar v.
State, 12 S.W.3d 479, 484 (Tex. Crim. App. 2000). The trial court is required to give the
instruction to the jury as the law of the case. Id. Therefore, defense counsel's failure to
8 object to the jury charge at the punishment phase does not waive error; rather, the trial
court's failure to give the instruction is subject to the egregious-harm analysis. Id.;
Graves v. State, 176 S.W.3d 422, 435 (Tex. App.—Houston [1st Dist.] 2004, pet. dism'd).
3. Error Analysis
During the punishment phase, the State introduced evidence regarding appellant's
prior convictions, as well as testimony about an unadjudicated extraneous offense. With
regard to the unadjudicated extraneous offense, Charles Mayfield testified that in the
early morning of December 15, 2009, he saw a man get out of a car "and walk toward my
neighbor's vehicles." When Mayfield got into his own car, he saw that his car's "back
window had been broken out. . . ." Mayfield drove behind the man's car and wrote down
the license number. He described the car as a pale yellow or light-colored, four-door
Cadillac. Mayfield chased the Cadillac for some distance but eventually gave up the
chase. Thereafter, the police recovered a briefcase from appellant's apartment.
Mayfield identified the briefcase as the one stolen from him in an auto burglary that
occurred at least six months prior to the incident of December 15, 2009. When the police
showed Mayfield a photo lineup, he was seventy percent sure that one of the photos
depicted the man he saw on the night of December 15, 2009.
Sergeant Steven Markgraf testified that the Cadillac's license number belonged to
appellant and that appellant drove a white, older model, four-door Cadillac. He stated
that in March 2010, the police searched appellant's apartment and recovered "a laptop
briefcase with a luggage tag with the complainant's name on it." Mayfield identified the
briefcase as his.
9 Appellant testified he did not commit the Mayfield burglary. He stated his car had
a missing license plate and that "[j]ust because someone saw my plate, doesn't make it
my car." He denied having Mayfield's briefcase.
The trial court erred in failing to include a burden-of-proof instruction concerning
the unadjudicated offense, i.e., the Mayfield burglary. Appellant was entitled to an
instruction that the unadjudicated extraneous offense must be proven beyond a
reasonable doubt before the jury can consider it. Huizar, 12 S.W.3d at 484. Therefore,
we hold the punishment charge was erroneous by failing to include the burden-of-proof
instructions for an unadjudicated extraneous offense admitted in the punishment phase.
Id.
4. Harm Analysis
Having determined the trial court erred by failing to charge the jury as required, we
examine the record to determine whether appellant was egregiously harmed. Almanza,
686 S.W.2d at 171. Any harm that is inflicted by the erroneous charge must be "assayed
in light of the entire jury charge, the state of the evidence, including the contested issues
and weight of the probative evidence, the argument of counsel, and any other relevant
information revealed by the record of the trial as a whole." Id.; see Ngo v. State, 175
S.W.3d 738, 750 n.48 (Tex. Crim. App. 2005). "Jury-charge error is egregiously harmful
if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally
affects a defensive theory." Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App.
2007) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). We engage
in this assessment to illuminate the actual, not just theoretical, harm to the accused.
10 Almanza, 686 S.W.2d at 174. In addition, egregious harm is a difficult standard to meet
and must be determined on a case-by-case basis. See Hutch, 922 S.W.2d at 171.
a. The Entirety of the Charge
In its punishment charge, the trial court failed to instruct the jury to not consider
extraneous unadjudicated offenses unless they were proven beyond a reasonable doubt.
However, the guilt-innocence charge also told the jury that the "burden of proof in all
criminal cases rests upon the State throughout the trial, and never shifts to the defendant"
and that "no person may be convicted of an offense unless each element of the offense is
proved beyond a reasonable doubt." We conclude that the guilt-innocence charge
instructing the jury that the State has the burden of proof throughout the trial is a
circumstance that weighs neither for nor against a finding of egregious harm. See
Martinez v. State, 313 S.W.3d 358, 367 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).2
b. The Evidence
"In examining whether egregious harm occurred from the failure to include the
burden-of-proof instruction for unadjudicated extraneous offenses admitted in the
punishment phase of trial," we may "compare the evidence related to the unadjudicated
extraneous offenses with the other guilt and punishment evidence in the case." Id. at
368; see Escovedo v. State, 902 S.W.2d 109, 115 (Tex. App.—Houston [1st Dist.] 1995,
pet. ref'd) (finding no indication that jury would have "disregarded or discounted the
extraneous offense[s] and assessed a lighter sentence with a burden of proof 2 In Martinez, the trial court failed to instruct the jury to not consider the extraneous evidence unless it was proven beyond a reasonable doubt. Martinez v. State, 313 S.W.3d 358, 367 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd). However, the trial court's charge to the jury stated, "The burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant." Id. The court concluded "that the general charge instructing the jury that the State has the burden of proof throughout the trial is a circumstance that weighs neither for or against a finding of egregious harm." Id. 11 instruction").
The State's evidence at guilt-innocence was strong. Kirk identified appellant as
the person whom she saw driving the Cadillac into Gray's garage door. However,
appellant did not leave the State's evidence uncontested. His roommate, Matthew
Wolak, testified that even though he was asleep at the time the offense allegedly
occurred, he would have woke up if appellant had tried to leave the apartment.
Nevertheless, during the punishment phase, the State introduced into evidence: (1)
State's exhibit 8, appellant's conviction for aggravated assault with a deadly weapon; (2)
State's exhibit 9, appellant's conviction for unauthorized use of a motor vehicle; (3) State's
exhibit 10, appellant's conviction for misdemeanor possession of marihuana; (4) State's
exhibit 11, appellant's conviction for unlawful carrying of a weapon; (5) State's exhibit 12,
appellant's conviction for burglary of a vehicle; (6) State's exhibit 13, appellant's
conviction for burglary of a vehicle; and (7) State's exhibit 14, appellant's conviction for
evading arrest.
In light of the evidence of appellant's guilt for the offense of attempted burglary of a
habitation along with his criminal history, there is no indication that the jury would have
disregarded or discounted the Mayfield burglary and assessed a lighter sentence had the
trial court included a burden-of-proof instruction in the jury charge. We conclude the
evidence presented by the State regarding the Mayfield burglary, in light of appellant's
entire criminal history and the jury's acceptance of the State's version of events in its
finding appellant guilty of attempted burglary of a habitation, weighs against a finding of
egregious harm.
12 c. Arguments of Counsel
During the punishment-phase closing argument, defense counsel reminded the
jury that Mayfield was only seventy percent sure that a person depicted in the photo
lineup was the person Mayfield saw on December 15, 2009. Defense counsel also
reminded the jury that during the punishment phase, Mayfield could not identify appellant
in the courtroom. With respect to the Mayfield burglary, the prosecutor argued: "In
2008, he's [appellant] released [from prison] . . . . And then we learn that by December
15th of 2009, he commits the burglary of a vehicle . . . on Mr. Mayfield's car." Later, the
prosecutor argued:
[A]s Mr. Mayfield pointed out his car was broken into several times. The . . . time that he was able to testify to, December '09 case was the time that he was actually able to get a look at the defendant and specifically get his license plate number. . . . [A]nd you heard from Sergeant Markgraf, that one of the items that was stolen in the previous burglaries of Mr. Mayfield's vehicle was found in the defendant's apartment. . . .
Even though the prosecutor made references to the Mayfield burglary, the offense
was included as part of a general theme of appellant's character in the State's argument
that appellant had a lengthy criminal history, which preceded the attempted burglary of
Gray's house. The State did not rely solely on the Mayfield burglary in its request for a
sentence of between fifteen to twenty years. We conclude that the arguments of
counsel, in light of appellant's entire criminal history, and the jury's acceptance of the
State's version of events in its finding appellant guilty of attempted burglary of a
habitation, weighs against a finding of egregious harm.
13 d. Other Relevant Information
"In addressing other relevant information, we may consider the severity of the
punishment assessed, which may indicate egregious harm in some situations."
Martinez, 313 S.W.3d at 369; see Bolden v. State, 73 S.W.3d 428, 432 (Tex.
App.—Houston [1st Dist.] 2002, pet. ref'd). Here, appellant was found guilty of
attempted burglary of a habitation, a third-degree felony. See TEX. PENAL CODE ANN. §
30.02(c)(2) (stating that "an offense under this section ["Burglary"] is a: felony of the
second degree if committed in a habitation."); § 15.01(d) (stating that "[a]n offense under
this section ["Criminal Attempt'] is one category lower than the offense attempted, . . . .").
During the punishment phase, appellant pleaded true to the indictment's enhancement
paragraph, which alleged a prior conviction for aggravated assault with a deadly weapon.
This elevated his punishment range to that of a second-degree felony. See id. §§
12.42(a)(3) (West Supp. 2011) (enhancing third-degree felony, with one prior
enhancement offense, to a second-degree felony punishment range), 12.33(a)
(incarceration range for second-degree felony, two years to twenty years). Appellant
received a ten-year sentence, which is in the middle of the punishment range for a
second-degree felony. However, even if appellant received the maximum sentence, that
alone does not indicate egregious harm. Martinez, 313 S.W.3d at 369; see Huizar, 12
S.W.3d at 484. Egregious harm does not exist if the jury would still have assessed a
mid-range sentence, even if properly instructed to consider only extraneous offenses if
they first found that appellant had committed the extraneous offense beyond a
reasonable doubt. See Martinez, 313 S.W.3d at 369 (stating that "[t]here is no egregious
14 harm if the jury would still have assessed a life sentence, even if properly instructed to
consider only extraneous offenses if they first found that appellant had committed those
offenses beyond a reasonable doubt.").
The record, exclusive of the Mayfield burglary, presented at the punishment phase
suggests the jury would have assessed the same sentence, especially in light of his prior
criminal history. Thus, even if the jury had been properly instructed, it would likely have
reached the same result. We conclude that the ten-year sentence given by the jury, in
light of appellant's prior criminal record and the facts surrounding the offense of attempted
burglary of a habitation, weighs against a finding of egregious harm.
5. No Finding of Egregious Harm
In determining whether appellant was egregiously harmed, the harm we consider
is the impact of the omission of a reasonable-doubt instruction concerning the
unadjudicated offense, i.e., the Mayfield burglary. See Martinez, 313 S.W.3d at 369–70;
Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). Based on our review of the
record and the Almanza factors, we cannot conclude appellant was denied a fair and
impartial trial in the jury's determination assessing a ten-year sentence because the State
presented uncontested evidence of appellant's prior convictions, spanning several years
of appellant's life. We hold that the omission of the required jury instruction did not
egregiously harm appellant. Issue four is overruled.
15 C. Ineffective Assistance of Counsel
In issue two, appellant complains he received ineffective assistance of counsel.
The Sixth Amendment to the United States Constitution and section ten of article 1
of the Texas Constitution guarantee people the right to assistance of counsel in a criminal
prosecution. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing U.S.
CONST. amend. VI; TEX. CONST. art. 1, § 10). The right to counsel requires more than a
lawyer's presence; it necessarily requires the right to effective assistance. Id. (citing
McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970); Powell v. Alabama, 287 U.S. 45,
57 (1932)). However, the right does not provide a right to error-free counsel,3 but rather
to objectively reasonable representation. Id. (citing Strickland v. Washington, 466 U.S.
668, 686 (1984)).
"To prevail on a claim of ineffective assistance of counsel, an appellant must meet
the two-pronged test established by the U.S. Supreme Court in Strickland."4 Id. (citing
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986)). "Appellant must show
that (1) counsel's representation fell below an objective standard of reasonableness, and
(2) the deficient performance prejudiced the defense." Id. (citing Strickland, 466 U.S. at
689). "Unless appellant can prove both prongs, an appellate court must not find
counsel's representation to be ineffective." Id. (citing Strickland, 466 U.S. at 687). "In
order to satisfy the first prong, appellant must prove, by a preponderance of the evidence,
that trial counsel's performance fell below an objective standard of reasonableness under
3 Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). 4 Strickland v. Washington, 466 U.S. 668, 687 (1984). 16 the prevailing professional norms." Id. "To prove prejudice, appellant 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. (citing
Strickland, 466 U.S. at 687).
"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) (citing Strickland, 466 U.S. at 689).
"In order for an appellate court to find that counsel was ineffective, counsel's deficiency
must be affirmatively demonstrated in the trial record; the court must not engage in
retrospective speculation." Id. (citing Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999)). "'It is not sufficient that appellant show, with the benefit of hindsight, that his
counsel's actions or omissions during trial were merely of questionable competence.'"
Id. at 142–43 (quoting Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)).
"When such direct evidence is not available, we will assume that counsel had a strategy if
any reasonably sound strategic motivation can be imagined." Id. at 143 (citing Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). "In making an assessment of
effective assistance of counsel, an appellate court must review the totality of the
representation and the circumstances of each case without the benefit of hindsight." Id.
(citing Robertson, 187 S.W.3d at 483). "While a single error will not typically result in a
finding of ineffective assistance of counsel, an egregious error may satisfy the Strickland
prongs on its own." Id. (citing Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App.
1992) (stating counsel's failure to request jury instruction on issue of necessity when
17 appropriate was both deficient and prejudicial)); see Thompson, 9 S.W.3d at 813 (stating
that "while this Court has been hesitant to 'designate any error as per se ineffective
assistance of counsel as a matter of law,' it is possible that a single egregious error of
omission or commission by appellant's counsel constitutes ineffective assistance.").
"In the rare case in which trial counsel's ineffectiveness is apparent from the
record, an appellate court may address and dispose of the claim on direct appeal." Id.
(citing Massaro v. United States, 538 U.S. 500, 508 (2003); Robinson v. State, 16 S.W.3d
808, 813 (Tex. Crim. App. 2000)). "However, this is a difficult hurdle to overcome; the
record must demonstrate that counsel's performance fell below an objective standard of
reasonableness as a matter of law, and that no reasonable trial strategy could justify trial
counsel's acts or omissions, regardless of his or her subjective reasoning." Id. (citing
Strickland, 466 U.S. at 690; Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App.
2005)).
The Court of Criminal Appeals "has repeatedly stated that 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. (citing
Bone v. State, 77 S.W.3d 828, 833 n.13 (Tex. Crim. App. 2002); Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002)); see Ex parte Nailor, 149 S.W.3d 125, 131 (Tex.
Crim. App. 2004). "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).
"Unlike other claims rejected on direct appeal, claims of ineffective assistance of counsel
18 rejected due to lack of adequate information may be reconsidered on an application for a
writ of habeas corpus." Id.
First, appellant argues defense counsel was ineffective because he did not
challenge the pretrial photo lineup5 presented to Barbara Kirk. In considering the scope
of due-process rights afforded an accused with regard to the admission of identification
evidence, the United States Supreme Court "has held that a pretrial identification
procedure may be so suggestive and conducive to mistaken identification that
subsequent use of that identification at trial would deny the accused due process of law."
Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001) (citing Stovall v. Denno, 388
U.S. 293 (1967); Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995)). When
reviewing an accused's challenge to the admissibility of a pretrial identification procedure,
we employ a two-step analysis: (1) whether the pretrial identification procedure was
impermissibly suggestive; and (2) whether that suggestive procedure gave rise to a very
substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d at 33 (citing
Simmons v. United States, 390 U.S. 377 (1968)). "An analysis under these steps
requires an examination of the 'totality of the circumstances' surrounding the particular
case and a determination of the reliability of the identification." Id.
"Suggestiveness may be created by the manner in which the pre-trial identification
procedure is conducted, for example by police pointing out the suspect or suggesting that
a suspect is included in the line-up or photo array." Id. (citing Herrera v. State, 682
S.W.2d 313 (Tex. Crim. App. 1984)). Or suggestiveness "may also be created by the 5 The trial court admitted the photo lineup into evidence as State's exhibit 2. 19 content of the line-up or photo array itself if the suspect is the only individual closely
resembling the pre-procedure description." Id.; see Williams v. State, 675 S.W.2d 754
(Tex. Crim. App. 1984). "Furthermore, an individual procedure may be suggestive or the
cumulative effect of the procedure may be suggestive." Barley, 906 S.W.2d at 33.
If it is determined that the pretrial identification procedure was impermissibly
suggestive, we then determine whether the procedure created a substantial likelihood of
irreparable misidentification. Id. at 34. "The test is whether, considering the totality of
the circumstances, 'the photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"
Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1997) (quoting Simmons, 390 U.S.
at 384). However, "if the totality of the circumstances reveals no substantial likelihood of
misidentification despite a suggestive pretrial procedure, subsequent identification
testimony will be deemed 'reliable.'" Webb v. State, 760 S.W.2d 263, 269 (Tex. Crim.
App. 1988). "Reliability is the linchpin in determining the admissibility of identification
testimony." Luna v. State, 268 S.W.3d 594, 605 (Tex. Crim. App. 2008). "[A] finding
that a challenged pretrial identification procedure was not in fact impermissibly
suggestive will obviate the need to assay whether under the circumstances it created a
substantial likelihood of misidentification." Webb, 760 S.W.2d at 269.
In this case, even though the offense in question occurred at 3:38 a.m., Kirk
testified that "[w]e actually have really good lighting because of the streetlighting on the
corner." She stated that when appellant "got out of the car . . . I was able to get a good
look at his face, as well as when he backed [the car] up." After the incident, she gave
20 appellant's description to the police. She described appellant as about six feet tall and
"fair skinned with kind of a darker hair." She said that when Detective Saiz showed her
the photo lineup, "he handed me that [photo lineup] and a pen, and he said look at this
and circle the one that you believe to be him." When the prosecutor asked her, "[D]id he
do anything to indicate who you should pick?", she said, "Absolutely not." She picked
photo number two, which is appellant's photo.
On cross-examination, Kirk testified that when Detective Saiz showed her the
photo lineup, he told her, "[H]ere are some photographs of several--can you identify."
When defense counsel asked her, "And he said it was one of these individuals; is that
correct?", she said, "No." She explained that Detective Saiz, "just handed . . . it [the
photo lineup] to me and . . . he said, 'Can you pick out from this lineup?' And that's what
I did."
Detective Saiz testified that when preparing a photo lineup, "we put together a
lineup of six individual photographs. We try to use similar characteristics or features . . .
for all the individuals." In this particular photo lineup, he used "all Anglo males" of
"similar size" and "[b]uild" with "similar hair color." He stated that when he presented the
photo lineup to Kirk, he told her that she is "going to be looking at this photo lineup. It
contains six photographs and that the suspect may or may not be included." He stated
Kirk selected appellant's photo from the photo lineup. Detective Saiz showed Kirk the
photo lineup on March 23, 2010, which was a little more than two weeks after the offense.
21 Thus, there was no suggestiveness created by the manner in which Detective Saiz
conducted the pretrial identification procedure. In preparing the photo-lineup, he
exercised care to prevent any hint or suggestion regarding which photo might be
selected. Furthermore, the six photos that he used for the lineup consisted of Anglo
males of similar size and build with similar hair color. When he showed the photo lineup
to Kirk, he did not point out appellant or suggest that appellant's photo was included in the
lineup. The appellate record includes a copy of the lineup, and we note that appellant's
photo is similar to the men shown in the other five photos in that they all have
similar-looking noses, full eyebrows, and big foreheads.
Appellant points out that according to Detective Saiz's testimony, Kirk told
Detective Saiz the suspect had "spiky" or "spiked" hair. He argues the photo lineup is
impermissibly suggestive because his lineup photo is the only one that shows a person:
(1) who has spiked hair; (2) who has a square jaw and a long neck; (3) who is not wearing
a solid-colored shirt; and (4) who is wearing a necklace. However, the court of criminal
appeals has stated that "lineup participants need not be identical to satisfy due process
requirements." Luna, 268 S.W.3d at 607–08.
Appellant's photo was selected from the lineup by Kirk, who witnessed the crime at
close hand under satisfactory viewing conditions. Our review of the facts of this case
and the totality of surrounding circumstances demonstrates the photo-lineup procedure
was not impermissibly suggestive and did not give rise to a very substantial likelihood of
irreparable misidentification. Consequently, any objection to the introduction of the
photo lineup into evidence would have lacked merit. We conclude appellant has failed to
22 meet the first prong of the Strickland test because he has not shown defense counsel's
failure to object to the introduction of the photo lineup amounted to representation that fell
below an objective standard of reasonableness. See Strickland, 466 U.S. at 689.
Second, appellant argues defense counsel was ineffective by failing to object to
Kirk's in-court identification of him, which appellant claims was tainted by the
impermissibly suggestive photo lineup. "An in-court identification is inadmissible when it
has been tainted by an impermissibly-suggestive pretrial photographic identification."
Ibarra, 11 S.W.3d at 195. "The test is whether, considering the totality of the
circumstances, 'the photographic identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'"
Id. (quoting Simmons, 390 U.S. at 384). "Reliability is the critical question:
[I]f the totality of the circumstances reveals no substantial likelihood of misidentification despite a suggestive pretrial procedure, subsequent identification testimony will be deemed "reliable," "reliability [being] the linchpin in determining the admissibility of identification testimony."
Id. (quoting Webb, 760 S.W.2d at 269) (quoting Manson v. Brathwaite, 432 U.S. 98
(1977)).
Here, because the pretrial photo lineup was not impermissibly suggestive,
appellant has failed to meet the first prong of the Strickland test. Appellant has not
shown defense counsel's failure to object to Kirk's in-court identification amounted to
representation that fell below an objective standard of reasonableness. See Strickland,
466 U.S. at 689.
23 Third, appellant argues defense counsel rendered ineffective assistance by failing
to object during the punishment phase to the omission of a reasonable-doubt instruction
concerning an extraneous offense, i.e., the Mayfield burglary. At punishment, a
defendant is entitled, without request, to have the jury receive a reasonable-doubt
instruction regarding extraneous offenses. Huizar, 12 S.W.3d at 484. Therefore, the
trial court errs by failing to instruct the jury sua sponte. Id.
The record contains no evidence regarding the reasons defense counsel chose
not to request a reasonable-doubt instruction in the punishment charge. Normally, a
silent record cannot defeat the strong presumption of effective assistance of counsel.
See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). Even if counsel's
performance was deficient under the first prong of Strickland, appellant has failed to show
there was a reasonable probability the result of the proceeding would have been different
if the jury had received a reasonable-doubt instruction. There is no evidence in the
record that the jury reached its sentencing decision by relying on evidence of an
extraneous offense. The jury could have reached the same result by relying solely on
the evidence presented during the guilt-innocence phase as well as appellant's criminal
history. Based on the totality of the evidence, the jury could have appropriately decided
appellant's offense justified the sentence. On the record before us, we hold appellant
has failed to establish defense counsel rendered ineffective assistance of counsel.
Issue two is overruled.
24 D. Jury Argument
In issue three, appellant argues the trial court abused its discretion by overruling
defense counsel's objection to the prosecutor's closing argument regarding appellant's
"failure to call Nicole Garibay as a witness . . . since there was no evidence that she was
available to testify." During the State's closing argument at the guilt-innocence phase,
the prosecutor stated:
And so, let's think about the more important question: How many people, if we are assuming that he's [Mr. Wolak] are telling the truth, how many people were in that apartment that night? Him [Mr. Wolak], the defendant and Nicole Garibay, right?
And she is the one, through his [Mr. Wolak's] testimony, that was in the bedroom with Bennie Lee Walker. But where is she today? They have the ability to call witnesses. They can subpoena witnesses. They can bring them in here. If she's going to come in and testify that he [appellant] was with her all night, I think she would have been here but she wasn't. Think about that.
At that point, defense counsel objected, "Your Honor, I am going to object that the
State is trying to shift the burden of proof to the defense." The trial court overruled the
objection, and the prosecutor remarked, "It goes to the credibility of Mr. Wolak. . . ."
Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of
error, and states, in part:
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context;
25 TEX. R. APP. P. 33.1.
This rule encompasses the concept of "party responsibility." Reyna v. State, 168
S.W.3d 173, 176 (Tex. Crim. App. 2005). In other words, "[t]he complaining party bears
the responsibility of clearly conveying to the trial judge the particular complaint, including
the precise and proper application of the law as well as the underlying rationale." Id. at
177. "To avoid forfeiting a complaint on appeal, the party must 'let the trial judge know
what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge
to understand him at a time when the judge is in the proper position to do something about
it.'" Pena v State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v.
State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). This method gives the trial court
and the opposing party a chance to correct the error. Id. "Whether a party's particular
complaint is preserved depends on whether the complaint on appeal comports with the
complaint made at trial. In making this determination, we consider the context in which
the complaint was made and the parties' shared understanding at that time." Id.
(footnote omitted).
In this case, the objection was that "the State is trying to shift the burden of proof to
the defense." However, the complaint on appeal is that the prosecutor's "comment on
the defense's failure to call Garibay as a witness was improper, since there was no
evidence that she was available to testify." In considering the context in which the
complaint was made and the parties' shared understanding at that time, there is nothing
to indicate there was no evidence that Garibay was available to testify. We hold that
because the objection at trial does not comport with the complaint on appeal, appellant
26 has failed to preserve this issue for appellate review. See id. Issue three is overruled.
III. CONCLUSION
We affirm the trial court's judgment.
ROSE VELA Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 29th day of December, 2011.