Th e dis tr ic t court ’s jud g me nt sho ws a pp e lla nt’ s nam e a s “D e he rr a .” Al l othe r doc ume nts in 1 the cler k’s re cord, the repor

ter’s rec ord, and both br iefs state that appellant’ s name is “Dehe rre ra.” W e w i l l m o d i f

y t h e j u d g m e n ta c c o r d i n g l y. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 048 -CR

Cha r lie De he r r e r a I II , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF LLANO COUNTY , 33RD JUDICIAL DISTRICT NO. CR5696 , HO NORAB LE GUILF ORD L. JO NES, III , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ur y fo un d a pp e lla nt C ha rl ie De he rr e ra , I I I , guil ty

of burg lary of

a ha bit a tio n w ith int e nt t o c omm it s e xua l a ssa ult and a sse sse d h is p un ish me nt at e le ve n y e ars ’ imp ri so nm e nt. See 1 Tex. P enal Code A nn. § 30.02 (W es t 2 003). Appe llant asserts that the e vidence is leg ally and fac tually insufficient to sustain the jury ’s verdic t of guilt. He also contends that the tr ial court e rre d by ov e rr uli nghis mot ion to s up pr e ss e vid e nc e , th e pr os e c uto r e ng a g e d in imp ro pe r j ur

y argume nt, and his trial counsel render ed ineffec tive assistance

. We will overr ule these c ontentions and aff irm the conviction.2 BACK GR OUND The c omplainant was e mploy ed as a waitre ss at a K i n gs l an d restaur ant owned by appellant’ s sister and whe re a ppellant worke d as cook. Th e co m p lainant testified that on the afte rnoon of Ma

rch 4, 2005, she was sitting outside the r ear door of the res t au ra n t , taking a bre ak afte r the lunch r

ush, when she w as joined by appellant. As the y chatted, appellant aske d the complainant what she did f or fun. The complainant told him that she had a f ive-y ear -old daug hter who kept her

busy . She also mentioned that she r elaxed by sitti ng in her hot tub. Nothing more of interest wa s said, and the c omplainant soon returne d to work.

That af ternoon , as t h e compl ainant wa s leaving work at the end of he r shift, she encounte red a

ppellant and se vera l other employ ees w ho we re s t an d ing outside the restaur ant. As she wa lked past this gr oup on the way to her car , appellant c alled out, “[W] hat time is the hot tub party ? ” T h e c o mp la in an t r e p li e d th a t s h e w a s g o in g to s it in h e r h o t t u b “ r ig h t n o w ” an d

k e pt wal k i n g. Ap p el l an t caug ht up with her and a sked, “[C] an we rea lly come ove r and sit in the hot tub? ” The complainant told appellant that she rea lly did not know her plans, but she g ave him her telephone numbe r and told him to call her later.

The c omplainant said that she boug ht a six pack of beer on the way

home. At about 7:30 p.m., after c onfirming that her da ug hter wa s spending the nig ht with a schoo l m at e and after

a c o n v e r s a ti o n w it

h Jo e Pa r k e r , a c lo s e f

r ie n d w h o li v e d in th e g ar a g e a p artm e n t b e h in d

the complainant’s house , she put o n h er bathing suit, got in the hot tub, and beg an drinking a bee r. Soon, her phone r ang . The c aller w as appe llant, who asked he r, “[C] an we come o ver? ” The complainant, who wa s cer tain that appellant used the plural “we ,” replied, “[Y]eah, y ou know, for3

a little while.” The n she g ave a ppellant direc tions to her house. Appe llant arrive d a short time later with an ice c hest full of bee r. The c omplainant testified that she wa s surprised t o s ee t h at h e was alone. Appe llant, who was wearing swimming t runks, s oon joined the complainant in the hot tub. The c omplainant testified that for the next few hours, she a nd appellant sat on opposite sides of the hot tub, drinking be er a

nd conver sing. Parker testified that he lef

t the gar ag e apartment at about 7: 00 that evening . When he lef t, the complainant wa s alone in the hot tub. When he returned at about 9: 30, the complainant

and a pp e lla nt w e re sittin g in t

he tub tog e the r, on

op po sit e sid e s. Th e c omp la ina nt i nv ite d Pa

rk e r t o j o i n them in the tub. Parker de clined the of fer , but sat down beside the tub a nd chatted w ith the complainant and appellant for about thirty minutes. Parker then went to his apar tment, but he later returne d to the complainant’s residence to take a shower and do laundry . Parker , who ac knowledg ed that he is a re covering alcoholic, testified that he “wa s a little conce rned a bout the amount of consumption over ther e” a nd “kept a

n ey e on the situation” ove r the c ourse of the eve ning. Par

ker, wh o c ou ld s e e the ho t tu b f ro m hi s a pa rtme nt, said th at he did

no t no tic e any

ro manti c a c tiv ity be tw e e n th e c omp la ina

nt a nd a pp e lla nt. Park e r t e sti fi e d th a t be fo re g oin g to b e d at a pp ro xima te ly midnight, he notice d that appellant’ s vehicle w as g one.

The c omplainant testified t hat at some point in the evening, appellant told her that she “looked sex y .” S he told him that she was not intere sted in any thing but fr iendship. A few minutes later, a ppellant “moved his foot or som ething and it touched mine and so I turned sidewa y s and he was like, y ou ’r e jum py .” The complainant said that a ppellant told her, “ [I ]f y ’all just try it [ with] a y oung man, y ou might l i k e i t , ” and, “[W] e don’t have to have a re lationship, we ca n just have4

sex.” Finally , afte r appe llant c ontinued to “come on” to her de spite her r ebuff s, the complainant g ot
ou t of the ho t tu

b a nd or de re d a pp e lla nt t o le a ve . App e lla

nt d id s o, takin g his ice chest wi th h im. The c omplainant estimated that it was about midnig ht when appe llant left. After calling to chec k
on he r d a ug hte r a nd smo kin g a

la st c ig are tte , th e c omp la ina nt w e nt t o b e d at a

bo ut 1 :00 a .m. The c omplainant testified that she awoke to f ind a ppellant in bed with her. H e had
re mov e d h e r p a

jama bo tto ms a

nd un de rw e ar a

nd pe netrate d h e r w ithhis pe nis be fo re sh e be c a me fu lly awa ke and awa re of his pr e se nc e . Sh e de sc ri be d a pp e lla nt a s sm e lli ng of a lc oh ol a nd c ig are tte s. She beg an to strug g le and demand that he stop, and he did so. The c omplainant testified, “He put his—something on, clothes. It was ver y quick. He sa id, I ’m sorry . And I just said, ge t out of here

. I ’m ca lling the police , g et out of her e and he was g one.”

The complainant immediately called Parker and told him what had happe ned. Parke r testified that the ca ll came at about 5: 00 a.m. He sa id that the complainant wa s “cr y ing a nd try ing to s p eak at the same time,” a nd was ha

rd to understa

nd. Finally , the complainant told him, “He rape d me.” Parker went to the complainant’s house, wher e she told him that appellant ha d returne d to her house dur ing the night a nd g otten in be d with he r. Parker urg ed the complainant to go to the hospital. The complainant a g ree d and af ter dre ssing, the two drove to the hospital in L lano without calling the pol ice. The complainant estimated t hat t hey arr ived at the hospital at 5:30 a.m. When she told hospital staff that she had be en sexually assaulted, they

contac ted the loca l crisis cente r and the sherif f’s off ice. The crisis ce nter, in turn, ar rang ed for

the co m p l ai n ant to be examined by Sheri Nevins, a se x ual assault nurse examiner.5 Ne vin s te sti fi e d th a t th e c omp la ina nt w a s te a r f u l a n d u n a ble to r e la x dur ingthe c ours e of her examination. The complainant tol d Nevins, “I woke up with him rapingme, Chuck. I woke up to him ins ide of me on top of me , his penis inside of my vag ina.” L lano County

Sheriff’ s Deputy Aimee Over street was in cha rg e of the investigation of thi s o ff e ns e . A ft e r i nte rv ie wi ngthe c omp la ina nt at th e ho sp ita l, O ve rs tr e e t ob ta ine d w arr a nts to
arr e st a pp e lla nt a nd to s e ize bio log ic a l sa

mpl e s. Ov e rs tr e e t te sti fi e d th a t sh e wa s anxiou s to ob ta in the sampl e s befo re app e lla nt c ou ld t a ke a

sh ow e r, so sh e and

oth e r o ff ic e rs imm e diate ly

we nt t o appellant’ s King sland residenc e to e x ecute the war rants. Over street descr ibed appellant as “ver y upset” following his arr est. As he sat in the back seat of Overstre et’s patr ol car on the way

to L lano, appellant “ scre am[ed], y ell[ed] , cur s [ ed ] ” and “ denied having done any thing with the victim.” Over street testified that appellant also made a number of volunteere d statements: that he had g one to the complainant’s house to sit in the hot tub; that the complainant rubbed his leg s, sat in his lap, and tried to kiss him; that after le aving the hot tub, he and the c omplainant sat on the couch in her living room; that he le ft the complaina nt’s house to g o to a nig htclub; a nd that “he should have had sex wit h [t he complaina

nt] and then may

be she w ould have not filed se x ual assault cha rg es on him.” Over street testified that she attempted to re cord a ppellant as he made these statements, but her in-c ar videotape r ecor der ma lfunctioned.

Over street took appe llant to the L lano hospital, where the biologic al s am ples wer e taken by Nevins. Ne vins testified t hat when she first encounte red appellant at the hospital, he was

“ sc re a min g , a

nd ho lle ri ng , a

nd c us sin g ,” and

that he c ru de ly

de nie d a ssa

ult ingthe c omp la ina

nt. Pursuant to the sear ch wa rra nt, Nevins swabbe d appellant’ s penis and took samples of his blood, saliva, and ha ir for D NA testing

. I n addition, appellant voluntarily g ave the police the6

pierc ing r ing in his penis. A mixt ure of the complainant’ s DNA a nd appellant’ s DNA was found on the swab and ring

. A simil ar mix ture of DNA wa s found on a wr ist watch that wa s ly ing on the floor of the c omplainant ’s b ed room; there w as no dispute at trial that the w atch wa s appellant’s. N o
semen wa s found on the complaina nt’s u n d erw ear

or on vag inal swabs take n during her phy sical examination, and no DNA testing was pe rfor med on these items. DNA tests were also not pe rf or me d o n s ta ins ob se rv e d o n th e c omp la ina nt’ s b e d s he e ts. Ap pe lla nt t e sti fi e d th a t on

the a ft e rn oo n in

qu e sti on , th e c o m

p l a i n a nt a pp ro a c he d h im outside the resta

urant a nd invited him to a hot tub party at her house. She t old him that others had been invited a

nd sug g ested that he bring some beer . When he ar rived at the complainant’s house , she wa s al ready

sitti ng in the hot tub. Appellant said that he took off his shirt and wrist watch, leavingthem beside the hot tub, and joined the complainant. Appe llant testified that as he sat in the tub, the co m p l ai n an t “starte d rubbing her f eet on my leg s underne ath the water, a nd so Istarted
ru bb ingmy fe e t on

he r l e g s and

sh e e ve ntu a lly

kin d o f f loate d a nd tur ne d a ro un d a nd sat ne xt to m e
an d s t ar t ed h o lding my

hand.” T hey

beg an to kiss, and their ha nds “we re pr etty

much wande ring around.” Appellant said that the complainant quickly moved awa y from him when she hear d Parker appr o a c h in g , b u t s h e mo v e d b a c k b e s id e h im w h e n Pa r k e r le f t. T h e y r e s u me d k is s in g and touching eac h other.

Acc ording to appellant, he a nd the complainant eventua lly g ot out of the hot tub and
we nt i ns ide he r h ou se . T he y sa t on the liv ingro om c ou c h a

nd be g an to kis s. Th e y

c on tin ue d to fo nd le e a c h o the r, and

the y so on be g an to ru

b e a c h o the r’ s g e nit a ls b e ne a th t he ir sw imm ingsu its

. When the complainant beg an to remove appe llant’s swimming trunks, he stopped he r and told her that he “didn’ t have a

ny protec tion, that we couldn’t g o any further .” He said that she told him not7

to w or ry , th a t sh e wa s no lon g e r a ble to h a ve c hil dr e n. He tol d h e r t hat he wa s mo re c on c e rn e d w ith safe sex. Appellant said that the complainant bec ame a ng ry , and he le ft her house a short time later to join som e fr ien d s at a l o ca l nightclub. Appe llant insist ed that the only rooms he ente red in the
c omp la ina

nt’ s h ou se we re the liv ingro om a nd the bathr oo m and

that he ne ve r e nte re d h e r b e dr oo m. Ap pe lla nt t e sti fi e d th a t he re ma ine d at th e nig htcl ub un ti l shor tly be fo re 2:0 0 a .m. After leavingthe club, he and a friend went next door to a barbe que stand. At 2:30 a.m., appe llant made a cal l t o t h e co m plainant’s re sidence and lef t a messag e on her

answe ring machine. T he complainant testified that she slept throug h the ca ll and discovere d the messag e af ter she r eturne d home from the hospital. In the messag e, appe llant apolog ized to the complainant and said that he
re sp e c te d h e r. Ap pe lla

nt t e sti fi ed th at th e pu rpose of the c a ll w a s to te ll the c omp la ina nt t hat hi s reluc tance to have unpr otected se x that night wa s not based on any fea r that she mig ht have a sexually tr an s mi tt e d

d is e a s e . A p p e ll an t d e n ie d th a t h e w a s a

p o lo g iz in g to th e c o mp la in a n t f or having “come on” to her

.

Af te r l e a vin g the ba

rb e qu e sta

nd , a pp e lla nt and his fr ie nd we nt on

to a pr ivate pa

rt y wher e appellant drank he avily . Acc ording to appellant, he be came so intox icated that he re members lit tle of wh a t ha

pp e ne d a ft e r arr ivi ng a t the pa rt y . Th e fr ie nd te sti fi e d that so me on e at th e party drove a ppellant home in his vehicle at about 4:30 that mor ning. Appellant said that his nex t memory
wa s b e ingawa

ke ne d b y the of fi c e rs wh o c a me to h is h ou se to se rv e the arr e st an d sea rc h w arr a nts
. Ap pe lla nt ins ist e d tha t he did no t re tur n to th e c omp la ina

nt’ s h ou se a ft e r l e a vin g it to go to the nig htclub. He sa id that h e n ever enter ed the c omplainant’s bedr oom, and he de nied having sexual int erc ourse with her

.8 SUF F ICIENCY OF EVIDENCE Ap pe lla nt c on te nd s th a t th e e vid e nc e is l e g a lly and fa c tua lly ins uf fi c ien t to su sta in the ver dict of g uilt. The question prese nted i s whether a rational trier of f

act c ould have f

ound the essential elements of t he offense bey ond a reasonable doubt. J ac k so n v . V irg ini a , 443 U.S. 307, 324 (1 97 9) (l e g a l suf

fi cie ncy ); Cla

y ton v . S tat e , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007) (leg al
su ff ic ie nc y ); J oh ns on v . S

tat e , 23 S.W .3d 1, 11 (Tex. Crim. App. 2000) (fa ctual suff iciency ). I n a le g a l- su ff ic ie nc y re vie w, a ll the e vid e nc e is re vie we d in the lig ht mos t fa vo ra ble to t he ve rd ic t; i t is assumed that the trie r of f act r esolved c onflicts in the tes timony , weig hed the e vidence , and dre w
rea sonabl e i nfer ence s in a manner that supports the verdic t. Clayton , 234 S.W .3d at 778. I n a fa c tua l- su ff

ic ie nc y re vie w, a ll the e vid e nc e is c on sid e re d e qu a lly , in c lud ingthe te sti mony of de fe ns e witnesses and the exis tence of alt er n ati ve hy potheses. Cle wis v . S

tat e , 922 S.W .2d 126, 129 (T e x. Cr im. Ap p. 19 96 ); Or on a v. Sta te , 836 S.W .2d 319, 321 (Tex. App.—Austin 1992, no pet.). The evidence will be deeme d fac tually insufficient if the e vidence supporting the verdic t is so weak as to make the finding of g uilt clearly wrongor manifestly

unjust, or if the verdic t is ag ainst the g reat weig ht and pre pondera

nce of the ava ilable evidenc e. W atson v. Stat e , 204 S.W .3d 404, 414-15 (T e x. Cr im. Ap p. 20 06 ); Johnson , 23 S.W .3d at 11.

I n support of his contention that the evide nce is leg ally insufficient, a

ppellant urg es that the ph y sic a l e vid e nc e and oth e r u nd isp ute d f

a c ts a re a s c on sis te nt w ithhis inn oc e nc e a s w ithhis g uilt. He asserts t hat t he jury “had to make unwarra nted l eaps in logic” to find him guilty . To the
c on tr ary , h ow e ve r, the jur y ha d to we ig h the dis pu te d e vid e nc e and de te rm ine the re la tiv e c re dib ili ty of the c omplainant and appe llant. We must ass u m e t h at the jury believed the complainant’s testimony , which is sufficie nt to support a finding bey ond a re asonable doubt that appellant ente red9

th e c o mp la in an t’ s r e s id e n c e w it h o u t h e r c o n s e n t an d w it

h th e in te n t to c o mm it s e xu a l a s s a u lt

. We find the evide nce le g ally

sufficie nt to support the verdict a nd overr ule issue two. Ap pe lla nt m a ke s a

sim ila r a rgume nt i n urg in g t hat th e e vid e nc e is f a c tua lly insufficient. He urg es t hat t he DNA evidenc e does not establish his g uilt and attributes the pr esenc e of the c omplainant’s DNA on his pe nis to their sex play on the couc h. He testified that he took off his wrist watch be fore g etting into the hot tub and arg ues t hat the complaina nt later moved it into the bedroom in order t o incriminate him

. Citi ng the t estimony that he was too drunk to drive whe n he le ft the pa rt y , a pp e lla nt u rg e s th a t he c ou ld n ot h a ve mana g e d to dr ive to t he c omp la ina

nt’ s h ou se la te r that mor

nin g . He c ha lle ng e s the c re dib ili ty of the c omp la ina nt’ s st or y , p art ic ula

rl y he r c la im that appellant r emoved he r clothing and pene trated he r bef ore she awoke

. I n a fa ctual-su fficie ncy

revie w, the re viewing court must g ive due de fer ence to the fac t finder’ s determinations, particularly those conce rning the weig ht and cr edibility of the e vidence , and it may

disag ree with the result only to preve nt a manife st injust ice. Johnson , 23 S.W .3d at 9; Cai n v . S tat e , 9 5 8 S
. W
. 2 d

4 0 4 , 4 0 7 ( T e x . C r i m . A p p . 1 9 9 7 )

. V i e w i n g a l l t h e e v i d e n c e n e u t r a l l y, including the conflicting acc ounts give n by the complainant and appellant and the testim ony of the various other

witnesses who confirmed one or t he other, we c onclude that the e vidence supporting the ver dict is not so weak as to make the finding of guilt clea rly wrong or manife stly

unjust, and that the ver dict is not ag ainst the g reat w eig ht a nd preponde ranc e of the available evidenc e. F inding no manifest injustice in the finding of g uilt, we overr ule issue three

.
M OTI ON TO SU P P RE SS Appellant moved to suppre ss all evidenc e seiz ed pursuant to the sea rch w arr ant on the g ro un ds tha

t th e su pp or tin g a ff ida vit did no t sta te pr ob a

ble c a us e , th e wa

rr ant d id n ot a de qu a te ly10

descr ibe the plac e to be se arc hed, and the war rant was not signe d by

a prope r mag istrate. Appe llant

a lso mov e d to su

pp re ss h is st ate men ts to th e po lic e on the g ro un d th a t th e y

we re no t take n in
c o mp li an c e w it

h th e c o d e o f c r im in a l p r o c edure

. See Tex. Code Crim. P roc. A nn. art. 38.22 (West 2005). The motions were hear d and overr uled by the trial cour

t prior to trial. Appellant now contends that the motions should ha ve been g rante d beca

use of the unlaw ful conduc t of the police duri ngthe e xec uti on

of the se arc h a

nd arr e st w arr ants
. Ov e rs tr e e t w a s th e on ly

wi tne ss at th e su

pp re ssi on he a ri ng . A s is pe rt ine nt t o appellant’ s claim, she testified that whe n she and thre e other office rs arrived at a ppellant’s re sidence to e xec ute the wa

rr ants , ap pe lla

nt’ s van wa s par

ke d in the dr ive wa

y and the y c ou ld h e ar l ou d mu sic comin g f r o m in s id e th e h o u s e . T h e o f f ic e r s kn o c k e d o n th e d o o r an d w in d o w s b u t th e r e w a s no response . Over street testified that another office r opene d the g ara g e door ( Over street did not know how) a nd the offic ers e ntere d appellant’ s house throug h a door f rom the g ara g e. The y

found appellant on his bed.

Era Ma r io n , o n e o f

th e o f f ic e r s w it h O v e r s tr e e t w h e nth e w ar r an ts w e r e e xe c u te d, testified at appe llant’s trial. She said that afte r t he officer s wer e unable to rouse appellant, she used a “slim jim” tool to unl ock the door of appe llant’s van. Sh e then re ache d inside and pre ssed the b u t t o no nt h e g ar a g e d o o r o p e n e r t o g a i n a c c e s s t o t h e g ar a g e . F o l l o w i n g M ar i o n ’ s t e s t i m o n y, appella n t o b

jected to the a dmission of the DNA test re sults on the gr ound that the samples take n from him wer e “illega lly

obtained by

rea son of the bre aking into [ appellant’ s] vehicle without any proper leg al authority

to do so to enter his home illeg ally .” Ap pe lla nt n owc on te nd s th a t th e tr ia l c ourt sh ou ld h a ve g ra

nt e d h is m oti on s to suppress bec ause the office rs unlawf ully enter ed his locked c ar. A ppellant asserts that this unl awf ul11

act tainted all of the e vidence seized from his person a nd his house as we ll as the statements he ma de to the police following his arre st. He re lies on the statutory exclusionary

rule that prohibits the admission of evidenc e obtained by an off icer in violation of the law. Se e id . art. 38.23(a ). Th e c on te nti on

a pp e lla nt r a ise s in

thi s is su e wa s n ot a sse rt e d in his mot ion s to suppress or argued by

appellant at the suppression hea ring . The e vidence on which he r elies wa s not adduce d at that hea

ring , but at the trial itself. The only objection made by appellant on the g round he no w a sse rt s w a s th e tr ia l ob je c tio n to the DN A t e st r e su lts

. Appellant’s a

rg ument fails on the mer its in any case . Appellant asse rts that Marion, by opening the locked door of hi s vehicle, was g uilty of burg lary

of a ve hicle. See Tex. P enal Code Ann. § 3 0. 04 (We st Su

pp . 2 00 7) . T o b e g uil ty

of thi s o ff e ns e , h ow e ve r, a

pe rs on mus t br e a k in to or enter a vehicle with the i ntent to commit a felony or t heft. Id . § 30.04(a) . There is no evidence that Ma ri on ha d s uc h a

n in te nt. Ap pe lla

nt a lso su g g e sts that Ma

ri on wa s g uil ty

of c ri min a l tr e sp a ss. Id . § 30.05. To be g uilty of this off ense, a person must intrude her entire body

into the vehicle. Id

. § 30.05(a) , (b)( 1). Marion testified that she re ache d into appellant’s van to push the r emote contr ol button, but there is no evidenc e that her entire body

enter ed the ve hicle. Appe llant’s contention that M ar i o nco m m i t t ed

a b u rgl ary

o r a cr i m i n al t re s p as s wh en s h e u n l o ck ed h i s v an t o o p en t h e ga ra ge door is without merit.

Under this same issue, appellant ur g es that the trial c ourt should have instructe d the jurors to disreg ard the evidenc e in question if they believed it wa s obtained in violation of the law. See Tex. Code Crim. P roc. A nn. art. 3 8
. 2 3 (a ). An ar ticle 38.23 instruction is require d only when there is a fac tual dispute. Ma dd e n v . S tat e , 242 S.W .3d 504, 509-10 (Tex. Crim. App. 2007). The pertinent fa ct, that Marion unlocke d appellant’ s van, was not disputed. No instruction was re quired.I t was for this reason that Ove rstree t had the watch tested for DNA. 2 12

I ssue one is over

ruled.
P ROSECUTORIAL ARGUM ENT This issue revolves around a ppellant’s wr ist watch, which w as found by the police on the floor of the complainant’s be droom. The c omplainant testified that she saw the watc h on her nig ht s tand

fo llo wi ngthe a ssa

ult . Sh e sa id t

hat sh e pic ke d u

p the watc h a

nd thr e w i t to the fl oo r i n ang er. L ater , at the hospital, the complaina nt t o l d Ov er s t ree t that appellant’s watch was on he r bedroom floor . The watch was r ecove red by the police a

nd submitt ed for

testing. Amix ture of appellant’ s DNA a

nd the complainant’ s DNA wa s found on the watch. During her ow n testimony , Ov er s tree t was aske d by the prosec utor if she e ver questioned appe llant about how his watch ca m e t o be in the bedr oom. Appellant objecte d to the question and a he aringwas held outside the jury ’s pre sence . At this hearing , Over street sa id that she asked a ppellant about the watch at the police station following his arre st and that he re sponded by saying th at h e d id not have a w atch. Th e tr ia l c ourt ru le d th a t th is s ta te me nt w a s in a dmi ssi ble 2 beca use it was the pr oduct of c ustodial interrog ation and had not be en re corde d or re duced to wr iting
as re quired by

statute. See Tex. Code Crim. Proc. Ann. art. 38.22. The prosec utor ac knowledg ed that th is r uli ngwa s c or

re c t and a po log ize d to the c ourt

fo r h a vin g ra ise d th e su

bje c t. Th e pr os e c uto r tur

ne d to the su

bje c t of the watc h w hil e c ro ss- e xami nin g a pp e lla nt: Q. I n f a c t, you tol d A ime e Ov e rs tr e e t y ou ne ve r h a d a

watc h, ri g ht? A. No , ma ’a

m, I ne ve r s a id t

hat.13

Q. When sh e s ai d o n the stand that y ou talk about y ou didn’t have a watch, she wa s n ’t t el l i n g—
Def ense c ounsel objected, arguing at the benc h that the prosec utor was g oing outside the rec ord. The trial court a g ree d with counsel that Overstree t never testified (be fore the jury

) that appe llant denied having a watch. The prosec utor disag ree d and asser ted, inacc urate ly , that “Aimee t es t i fi ed about what he sa id about the watc h.” The court made no ruling on counsel’s objection and the prosecutor continued her

questioning w ithout further objec tion: Q. Tell us about y our watch. That ne ver c ame up with any of the lawenfor ceme nt of fi c e rs ? A. Did it ever

come up? Q. Um-hum, about whe ther or not you had a w atch? A. Ibe lie ve it c a me up a ft e r I wa s a lr e a dy

in j a il. Q. Tell us about that. What came up about y our watch? A. Th e y a sk e d me if

Iwa s w e ari ngmy

watc h w he n I

we nt t o ja il. Q. And we re you? A. No , ma ’a

m.

. . . Q. I t w a s at [th e c omp la ina nt’ s] ho us e , w a sn ’t

it? A. Ibe lie ve that’ s w he re Ile ft it o n h e r h ot t

ub , y e s. Q. I n truth y ou left it on her be d stand, didn’t y ou? A. No , ma ’a

m. Q. Now, do you reme mber at any time telling them that wa sn’t y our watch?14

A. Excuse me. Q. Do y ou reme mber at any time telling them that wa sn’t y our watch? A. No , ma ’a

m. Q. Di d y ou

he ar A ime e Ov ers tr e e t ta lk a bo ut t he fa c t th a t late r, no t w he n s he fi rs t sent samples to be tested at the DNA to see if y our DNAwas whe reve r and [the complainant’s] DNA wa s wher ever , did y ou reme mber that the w atch wa sn’t tested at that time? A. Ye s, ma ’a

m. Q. An d y ou

kn ow , in fa c t, t hat late r i t w a s te ste d, c or re c t? A. Ye s, Ihe ard

a bo ut t hat. Q. An d y ou

kn owthat y ou

ha d to ld t

he m y ou did n’ t ha ve a watc h th e re , c or

re c t? A. No , ma ’a

m. I ne ve r t old

the m th a t. Q. An d o nc e y our D NAwa s o n it, of c ours e , we a ll kn e w it w a s y our w a tc h, c or re c t? A. Ikn ew i twa s m y

wa t ch fr o m t h e b egi n n i n g. The prose cutor a lso raised the sub j ec t o f appellant’s watc h and his denial of
ow ne rs hip duri nghe r j ur

y argume nt:
And I wan t y ’a l l t o reme mber something that’s so important. Do y ou reme mber wh e n I wa s a sk inghim

a bo ut t he watc h? And he sa id, oh —o r I ’l l a sk

y ou to reme mber. Basica lly I think he was trying to say he didn’t really reme mber if he had on e or no t the n a t the tim e , bu t he sure did n’ t me nti on

it [to ] the of

fi c e rs . We ll h e did and then he said, Idon’t have a watch, that wasn’ t my watch, Iwasn’t e ven in the be dr oo m. S o late r t

hat w a tc h w a s se nt—
Def ense c ounsel objected that the prosec utor was outside the r ecor d. The c ourt replied that “[t] he jury will reca ll the evidence .” The prosec utor continued:15

Thank y ou. Remember the DNA, obviously , [t he lab technicia n], she talked about how she looked at all the evidenc e. That was his penile swa b, his penis ring , all of that evidenc e and the n l at er , ab out six months later, Aimee a nd she talk and she looked at the watch and she did D NA. Why else would we do DNA? Be cause we had to prove it was his watch. The prose cutor we nt on to other subjects, but retur ned to t h e watch near

the conc lusion of her

argume nt:
The victim knew a

bout the watch. The defe ndant knew a bout the watch. N ow we all know about it be cause we had to send [it] off to be a ble to say , oh, y eah, it is y our watch. Appellant’s issue on appea l c omplains solely of the prose cutor’s jury argument, and in particular

of the prose cutor’s state ment to the jury that appellant initially denied having a

watch. This fac t was not in evidenc e bef ore the jury , and the p ro s ec utor’s statement wa s improper. Appellant did not, howeve r, pursue his objection t o an adverse r uling, a nd he thus forf

eited his rig ht to complain about the ar g ument on appea l. Se e Coc k re ll v . S tat e , 9 33 S .W .2 d 7 3, 89 (T e x. Cr im. App. 1996). I ssue four is ove rruled.
INEF F ECTIVE ASS ISTANCE I n his la st issue on appea l, a ppellant urg es that his trial counsel re ndere d ineffe ctive assistance . To preva il on this claim, appe llant must show that his attorney made suc h serious er

rors that he wa s n ot f

un c tio nin g e ff

e c tiv e ly a s c ouns e l and

that th e se e rr or s pr e

jud ic e d a pp e lla nt’ s d e fe ns e to such a de g ree that he wa s depr i v ed of a fair tr ial. Strickland v. W ashington , 466 U.S. 668, 687 (1984); He rn an de

z v . S tat e , 988 S.W. 2d

77 0, 77 1- 72 (T e x. Cr im. Ap p. 19 99 ); He rn an de z v . S tat e ,16

726 S.W .2d 53, 57 (Tex. Crim. App. 1986). We must i ndulge a strongpresumption that counsel’s conduct f ell within the wide ra

ng e of r easo n ab l e p ro fessional assistance. J ac k so n v . S tat e , 87 7 S
. W
. 2 d 7 6 8 , 771 (Tex. Crim. App. 1994). To overc ome this presumption, any alleg ation of ine ff e c tiv e ne ss m

us t be fi rm ly

fo un de d in

the re c or d an d the re c or d mu st a ff ir ma tiv e ly de mon str a te the alleg ed inef

fec tiveness. Ma lle tt v . S

tat e , 65 S.W .3d 59, 63 (Tex. Crim. App. 2001). Appellant complains that a fter a dducing testimony that the pol ice unlawfully opened his ve hic le whil e ex ecut ing the se arc h a nd arr e st w arr ants , h is atto rn e y fa ile d to purs ue thi s a s a g round for

suppression at the pretrial suppression hea ring . I n fac t, the evidenc e to which a ppellant
re fe rs (M ari on ’s te sti mony ) w a s a dd uc e d at tr ia l, n ot at t he su pp re ssi on he ari ng , a

nd c ouns e l di d there afte r make an objec tion.

Appellant asse rts that his attorney “bec ame visibly

upset” whe n t h e complainant “cha ng [ed] her story

at the last minute when a sked how the w atch wa s found.” This is a re fer ence to t he c omp la ina

nt’ s te sti mony

that sh e fo un d a

pp e lla nt’ s w a tc h o n he r nig ht s tand and thr e w i t to the floor. When the co m p l ainant said thi s during questioning by the prosec utor, defe nse counse l interrupted to sa

y , “Wait a mi nute. Do I understand your testimony —.” He immediately

apolog ized to the c ourt fo r spe a kin g ou t of tur n, bu t late r he vig or ou sly c ro ss- e xami ne d the c omp la ina nt o n th is point. During this cross-e x amination, the complainant acknow ledg ed that she had ne ver me ntioned thi s p art ic ula

r f a c t in any of he r state me nts to the po lic e . Couns e l als o ch a lle ng e d the tr uth of thi s statement, urg ing that in f act the complainant had found the watch by the hot tub, where appellant
sa id h e le ft

it, and that sh e ha d mo ve d it

to t he be dr oo m to inc ri min a te him

.I n his brief, appellant also states t hat trial counse l “fa iled to obtain an evidentiar y hear ing on 3 [his ] m oti on

fo r n e w tri a l.” Th e re c or d r e fl e c ts t hat th e tr ia l c ourt

ov e rr ule d th e mot ion

wi tho ut a hear ing, a nd appellant doe s not now assert that this ac tion was err or. 17 Finally , appellant ur g es that his attorney did not preser

ve er ror with re spect to the pr os e c uto r’ s r e pe a te d attem pt s to pla c e be fo re the jur y a pp e lla nt’ s in a dmi ssi ble state me nt t o Over street deny ing ownership of the watch. As noted above , defe nse counse l succe ssfully objected to th is te s ti mo n y

an d o b ta in e d a r u li n g th a t a

p p e ll an t’ s s tate me n t t o th e o f f ic e r w a s in a d mi s s ib le

. Whe n th e pr os e c uto r r e fe rr e d to the ina dmi ssi ble state me nt t o O vers tr eet duri nghe r c ro sse xami na tio n o f a pp e lla nt, c ouns e l ob

je c te d th a t sh e wa s o uts ide the re c or d a nd ob ta ine d a

fa vo ra ble ruling from the c ourt. But whe n the prosec utor ag ain re fer red to this inadmissible statement during her jury argument, defe nse counse l did not ask for an instruc tion to dis reg ard or o t herw ise pursue h i s o b j ec t i o nt o an ad v er s e r

u l i n g. Th is tri a l took fi ve da

y s, on e to se le c t the jur

y and fo ur fo r the te sti mony , a rgume nt,
and jur y ve rd ic ts. De fe ns e co un se l th or ou g hly c ro ss- e xami ne d th e State ’s wi tne sse s a nd c le a rl y prese nted a viable d ef

en s i v e t heory , which counse l was ca ref ul to show was consistent with the phy sical evide nce. Although c ounsel did not ask that the jury be instructed to disre g ard the prosec utor’s improper

jury argument, we do not believe that this err or warra nts a finding that counsel did not function eff

ectively during the t rial. Moreove r, t he jurors knew that the watch was tested f or DN A, and

the y we re lik e ly

to h a ve in fer

re d f ro m th is that th e re ha d b e e n s ome qu e sti on a s to
owner ship prior to trial. Under the circ umstances, the a

bsence of an instruc tion to dis reg ard did not pr e jud ic e the de fe ns e to su c h a de g re e that a pp e lla nt wa s de nie d a

fa ir tr ia l. I ssue five is overrule d. 318 Th e dis tr ic t c ourt ’s jud g me nt i s modi fi e d to st a te that th e de fe nd ant’ s n a me is C ha rl ie Dehe rre ra, I I I . As modified, the judg ment is affirme d.

_________________________________ _ _ _ _ _ _ _ ___ Diane M. H enson, Jus tice Be fore Chief J ustice L aw, Justi ces Waldrop a nd Henson Modified and, a s Modified, Aff irmed Filed: August 1, 2008 Do No t Pu

bli sh