Opinion issued October 14, 2014.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-01010-CR

———————————

JOSE HUMBERTO ALVARADO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Case No. 1308503

MEMORANDUM OPINION

A jury found Jose Humberto Alvarado guilty of the offense of burglary of a 

habitation with intent to commit theft. Alvarado agreed to a punishment of thirteen 

years’ confinement. On appeal, Alvarado contends that (1) legally insufficient 
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evidence supports his conviction, because the State failed to prove the element of 

entry; and (2) he was deprived of constitutionally effective assistance of counsel. 

We conclude that sufficient evidence supports Alvarado’s conviction and that 

Alvarado has failed to show ineffective representation; we therefore affirm.

Background

In June 2011, Fredda Cliburn left her home in Pasadena to go to a store. 

When she returned home about forty–five minutes later, she discovered that her 

lawnmower was missing from her garage. Cliburn reported the burglary to the 

police. 

Less than a quarter of a mile from Cliburn’s home, Officer J. Shirley 

observed the driver of a maroon Lincoln Town Car drive through a stop sign 

without stopping. Officer Shirley noticed that a lawnmower was protruding from 

the Lincoln’s trunk. He followed the Lincoln and saw the driver fail to stop at four 

more stop signs. He called for back up. When it arrived, they detained Alvarado

and his two passengers, Alvarado’s son and his son’s friend. During the stop, 

Officer Shirley learned of the burglary at Cliburn’s house. Cliburn identified the 

lawnmower as her stolen property. In a videotaped interview, Alvarado later 

confessed to Officer Shirley that he had entered the garage and stolen the 

lawnmower. 
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Course of proceedings

Alvarado moved to redact the videotaped interview. The State agreed to 

redact portions of the interview. Over Alvarado’s objection, the trial court 

admitted a redacted version of the interview. Alvarado also raised an objection 

under the Sixth Amendment’s Confrontation Clause to a statement made by 

Officer Shirley during the interview. The trial court admitted the statement. 

I. Sufficiency of the evidence

Standard of review

In reviewing a challenge to the sufficiency of the evidence, we consider all 

of the record evidence in a light most favorable to the verdict, and determine 

whether a rational fact–finder could have found that each essential element of the 

charged offense was proven beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); In re Winship, 397 U.S. 358, 361, 

90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. 

App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We 

consider the combined force of all the evidence, and determine whether any 

necessary inferences have a reasonable basis. 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)). Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence can establish guilt. 
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Hooper, 214 S.W.3d at 13. We presume that the fact–finder resolved any 

conflicting inferences in favor of the verdict, and we defer to that resolution. See 

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at 778. 

Analysis

Alvarado contends that the State failed to prove that he entered Cliburn’s 

garage. A person commits burglary if, without the effective consent of the owner, 

the person “enters a building or habitation and commits or attempts to commit a 

felony, theft, or an assault.” TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2011).

“Enter” means to intrude any part of the body or any physical object connected 

with the body. Id. § 30.02(b)(1), (2). The State may prove entry by circumstantial 

evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex. Crim. App. 1976); Phillips v. 

State, 178 S.W.3d 78, 81 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).

Officer Shirley recovered a lawnmower from the trunk of Alvarado’s car. 

Cliburn identified the lawnmower as her stolen property, property that she housed 

inside her garage. Alvarado confessed that he had entered the garage and stolen 

the lawnmower. We hold that legally sufficient evidence supports Alvarado’s 

conviction.

Alvarado’s reliance on Hohlt v. State, No. 14-93-00601-CR, 1996 WL 

65439, at *2 (Tex. App.—Houston [14th Dist.] Feb. 15, 1996, pet. ref’d) (mem. 

op., not designated for publication), is misplaced. In Hohlt, our sister court held 
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that the State had not proven that the defendant entered a garage to steal a bicycle. 

Hohlt, 1996 WL 65439, at *2. There, the complainant was uncertain whether she 

had housed the bicycle in the garage. Id. Two witnesses testified that they saw the 

defendant riding a bicycle from the complainant’s driveway, but they did not 

describe the bicycle. Id. The arresting officer found the defendant walking 

without a bicycle; he was uncertain whether the police ever recovered a bicycle. 

Id. In contrast, Cliburn testified without reservation that the lawnmower was 

located in her garage. 

II. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, the defendant

must show that (1) his counsel’s performance was deficient; and (2) a reasonable 

probability exists that the result of the proceeding would have been different. 

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Lopez 

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The first prong of this test 

requires the defendant to show that counsel’s performance fell below an objective 

standard of reasonableness, in that counsel made such serious errors that he was 

not functioning effectively as counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 

2064; Lopez, 343 S.W.3d at 142. Thus, the defendant must prove objectively, by a

preponderance of the evidence, that his counsel’s representation fell below 
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professional standards. Lopez, 343 S.W.3d at 142; Mitchell v. State, 68 S.W.3d 

640, 642 (Tex. Crim. App. 2002). 

The second prong requires the defendant to show a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Lopez, 343 

S.W.3d at 142. In reviewing counsel’s performance, we look to the totality of the 

representation to determine the effectiveness of counsel, indulging a strong 

presumption that the attorney’s performance falls within the wide range of 

reasonable professional assistance or trial strategy. Lopez, 343 S.W.3d at 142–43. 

The record must affirmatively demonstrate counsel’s deficiency; we may not 

engage in retrospective speculation. Id. at 142 (citing Thompson v. State, 9 S.W.3d 

808, 813 (Tex. Crim. App. 1999)). 

Alvarado contends that his trial counsel was ineffective because he elicited 

harmful testimony in his cross–examination of Cliburn and failed to object to some 

of Officer Shirley’s statements.

Eliciting harmful testimony

Alvarado’s counsel cross-examined Cliburn as to her level of certainty of the 

lawnmower’s location. Cliburn responded that she was certain that the lawnmower 

was in her garage. But earlier, on the State’s direct examination, Cliburn had 

testified that the lawnmower was in her garage. Alvarado has failed to rebut the 
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presumption that trial counsel’s performance fell within the wide range of 

reasonable trial strategy. See Lopez, 343 S.W.3d at 142–43. Trial counsel 

intended to sow doubt as to the element of entry by attacking Cliburn’s certainty of 

the lawnmower’s location:

Alvarado’s trial counsel: My question is, do you know if the grass had been 

cut that day?

Cliburn: No, it had not been cut that day.

Alvarado’s trial counsel: And do you know if the lawnmower was removed 

from the garage—

Cliburn: No, sir.

Alvarado’s trial counsel: —and pulled outside?

Cliburn: No, sir, it wasn’t.

Alvarado’s trial counsel: When this lawnmower was taken, you were not 

present; is that correct?

Cliburn: That’s correct.

Alvarado’s trial counsel: And there were other people at the house; is that 

right?

Cliburn: That’s correct.

Alvarado’s trial counsel: And you would agree with me those other persons 

would have been capable of moving the lawnmower; is that correct?

Trial counsel’s attempt to sow doubt as to the element of entry was a 

reasonable trial strategy. Accordingly, trial counsel’s representation did not fall 
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below an objective standard of reasonableness. See Strickland, 466 U.S. at 687, 

104 S. Ct. at 2064. 

Rule 403

Alvarado’s trial counsel objected under the Confrontation Clause to Officer 

Shirley’s statement in the videotaped interview that Alvarado’s son and his son’s 

friend reported that Alvarado had asked them to look for open garages and 

lawnmowers. The State responded that Officer Shirley’s statement was relevant 

because it shows Officer Shirley’s investigative tactics. The trial court admitted 

the statement. Alvarado argues that his counsel should have objected to the 

relevance of the statement, rather than objecting based on the Confrontation 

Clause; he does not challenge the trial court’s ruling on the objection that was 

made.

When an out–of–court statement is relevant, not for its truth, but because it 

provides background detail, we examine how likely a jury would improperly 

consider the statement for the truth of the matter asserted. See Langham v. State, 

305 S.W.3d 568, 580 (Tex. Crim. App. 2010); Humphrey v. State, No. 01-08-

00820-CR, 2012 WL 4739925, at *2 (Tex. App.—Houston [1st Dist.] Oct. 4, 2012, 

no pet.) (mem. op., not designated for publication). Because the relevance of 

background evidence is marginal, the introduction of too much incriminating detail 

may prove far more prejudicial than probative. Langham, 305 S.W.3d at 580 
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(“[T]he greater and more damning the detail contained in [an] out–of–court 

statement, the greater the likelihood that the jury will gravitate toward the improper 

use.”).

In the interview, Officer Shirley told Alvarado that he would not lie to him 

to elicit information. At trial, however, Officer Shirley testified that he was not 

always truthful when interrogating suspects. The State never asserted that Officer 

Shirley’s statement was true; rather, the State focused on Alvarado’s responses. In 

the interview, Alvarado confessed to entering the garage to steal the lawnmower. 

Given that the State did not assert that Officer Shirley’s statement was true and 

added little incriminating detail, we hold that the absence of a Rule 403 objection 

by Alvarado’s trial counsel did not fall below an objective standard of 

reasonableness. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. 

Improper comment on another’s truthfulness

A witness generally may not offer a direct opinion as to the truthfulness of 

another witness; such an opinion is generally inadmissible. Blackwell v. State, 193 

S.W.3d 1, 21 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (citing Schutz v. 

State, 957 S.W.2d 52, 59 (Tex. Crim. App. 1997)). An opinion about another

witness’s truthfulness does more than “‘assist the trier of fact to understand the 

evidence or to determine a fact in issue’; it decides an issue for the jury.” Yount v. 

State, 872 S.W.2d 706, 709 (Tex. Crim. App. 1993); Blackwell, 193 S.W.3d at 21. 
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The jury alone is to decide whether a particular witness’s testimony is credible. 

See Yount, 872 S.W.2d at 710–11. 

In the interview, Officer Shirley warns Alvarado not to lie, and, at one point, 

states, “[T]hat’s a lie.” Officer Shirley’s statement that Alvarado is lying is an 

improper comment on the truthfulness of another witness and thus is inadmissible. 

See Yount, 872 S.W.2d at 709; Blackwell, 193 S.W.3d at 21. 

However, we indulge a strong presumption that the attorney’s performance 

falls within a wide range of reasonable professional assistance or trial strategy. 

Lopez, 343 S.W.3d at 142–43. Alvarado’s trial counsel may have chosen not to 

object to Officer Shirley’s statement in the hope that the jury would perceive 

Officer Shirley’s interrogative tactics as overbearing and question the voluntariness 

of Alvarado’s confession; counsel successfully objected to other portions of the 

interview. We hold that the record does not affirmatively demonstrate counsel’s 

deficiency. See id. at 142.

Even if the record affirmatively demonstrated counsel’s deficiency, 

Alvarado has failed to show that, but for counsel’s errors, the result of the 

proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. 

at 2068; Lopez, 343 S.W.3d at 142. The State proffered abundant evidence of 

Alvarado’s guilt, including that Officer Shirley recovered the stolen lawnmower 

from Alvarado’s trunk; the lawnmower was stolen from within the complainant’s 
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garage, and Alvarado confessed to the crime. Accordingly, we hold that Alvarado 

has failed to satisfy both prongs of an ineffective assistance claim.

Conclusion

We hold that sufficient evidence supports Alvarado’s conviction. We 

further hold that Alvarado has not borne his burden to rebut the presumption that 

trial counsel made all significant decisions in the exercise of reasonable 

professional judgment. We therefore affirm the judgment of the trial court.

Jane Bland

Justice 

Panel consists of Justices Higley, Bland, and Sharp.

Do not publish. See TEX. R. APP. P. 47.2(b).