NO. 07-03-0348-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D DECEMBER 13, 2004

______________________________ DELBERT

LEE BUR KETT, Appellant
v. THE STA

TE OF TEX

AS, Appellee

_________________________________ FROM THE 284 TH DISTRICT COURT OF MONTGOMERY COUNTY; NO. 03-05-03402-CR; HON. JOANN OTTIS, PRESIDING

_______________________________ Before QUINN, REAVIS, and CAMPBELL, JJ. Appellant

Delbert Lee Burkett challenges h is conviction for indecency with a child bycontending that 1) the evidence was legal ly and factually i nsu fficient to support his convic tion, 2) the trial court erred in failing to rule on his objection to the State’s closing argumentin which the prosecutor injected himself as a witness and correct the prejudici al2

effect of that and other argument, and 3) he received in effectiveassistan ce of cou nsel. We affirm thejudgment of the tri al court. Background O n August 6, 2002, at approximately 6:30 p.m., 12-year-old A.P. was riding h e r bicycle to her fri end’s ho use. A C adillac came around the corner towards her and stopped. A man got out of the car but left the engin e on. He stepped to the middle of the road,
u nbuckled his belt, dropped his pants, and pulled d own his underwear. Appellant then began masturbat ing. As A.P. rode by, he reached out his arm to her and touched her on the arm. She swerved, dropped her bicycle in a ditch ne ar her friend’s house, ran to the house, an d beat on the door

. A.P. told her friend’s mother, Sandy Steede, about

the incident. Sandy called 911 and also cal led her h usband D usty, a former police officer, who was driving home. Sandy gave him a de scriptio n of the m a n and ve hicle as she had learned it from A.P. Sh ortly thereafte r, Dusty observed a Cadillac with a d rive r matc hing thedescript ion give n him, followed it to a s tore, and recorded its lice nse plate number. So too did he see ap pellant, who appeared to him to be “very ne rv ous.” Appellant apparently spied Dusty because when he left the store in the Cadillac, he was “[s]pinni ng his tires an d watchi ng [Dusty ], turning around a nd looki ng.” Dusty pursued him and witnessed appellant reach speeds of 80 to 90 miles an hour and run a sto p sign b efore end ing the p ursuit. The licenseplate nu mber was used by p olice to trace the vehicleto Rober t Vincen t. However, Vincent

had giv en the ve hicle to appella nt.1 The dif fer ences consi sted of A.P. t esti fyi ng at t ri al t hat she did not tel l any one ori ginal ly t hat appel lant had a m usta che , a tattoo on h is arm , that his pen is wa s ou t, or th a t t he man was masturbat ing. As to t he omissi on reg ard ing ap pe llan t’s m as turb atio n, sh e sa id th at sh e d id no t orig ina lly tell p olice be ca us e sh e d id not k now how to de scrib e it and bec aus e sh e w as e mb arras sed by it. 3 Issue One - Legal and Factual Sufficiency In his first two issues, appellant attacks the legal and factual sufficiency of the evidence supporting his conviction. He intimatesit was not enough to establish that he was the individual standing in the street that day. We overrule the issue. Standard of Review The applicable standards of review are well settled and fully discussed in Jackson
v. Virgini a, 443 U.S. 307, 99 S .Ct. 2781 , 61 L.Ed .2d 560 ( 1979), Sims v. State, 99 S.W.3d 600 (Tex . Crim. Ap p. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex . Crim. Ap p. 2003), and King v. State, 29 S.W.3d 556 (Tex. Crim. App. 200 0). We re fer the parties to those opinion s rather th an discu ss the sta ndards he re. Application of Standards As to the claim of legal sufficiency, A.P. (a 12-year-old gi rl) testified at trial tha t appellant

was the person who dropped his pants, exposed his genitalia, masturbated, and reached for her. That

is some evidence upon which a rationale factfinder could conclude, beyond re asonabl e doubt, that appe llant wa s the onewho comm itted thecriminal act. As to the claim of factual insufficiency, appellant suggests that there was no physical evidence linking him to the offense, but only the testi mony of A .P. Furthermore, because there were dif

ferences between A.P.’s or iginal statement to police a nd her testimony at trial, the evidence does not support his conviction. 1 Yet, contradictio ns o r conflicts in testimonydo not destroy its sufficiency or otherwise render it non-probative; instead, they4

may simply affect its weight or the witness ’ credib ility. Jimenez v. State, 67 S.W.3d 493, 505 (Tex. App.–Corpu s Christi 200 2, pet. ref’d). And, the extent to which the factfinder creditseither the evidence or the witness is a matter lying solely within the discretion of the factfinde r. Heiselb etz v. Sta te , 906 S.W. 2d 500, 5 04 (Tex. Crim. Ap p. 1995). Given A.P.’s te stimony i dentifyi ng appel lant as t he culpr i t, Dusty’s testimony identifying appellant as the individual who drove the Cadi llac, and the testimony describing appellant’s attemptto evade Dusty, we cannot say that the verdict is so against the great weightof all the evidence as to render it unj ust. Nor can we say that the sum of all the evidence makes weak that evidence supporting conviction. A jury could well have d ecided thata 12-year-old girl alone on astreet when accosted by an adult ma y not takethe time to memorize all physical characteristics of her assailant or may o mit to in form others of certain characteristics in the heat of the moment. Again, it lay within the jury’sprovince to decide w hat weig ht, if any , to accor d the evi dence pre sented by the State

. In sum, the e vidence supporti ng the ver dict is b oth lega lly and fa ctual ly suffic ient. Additio nally, we reject a ppellan t’s argum ent to thecontrary.

Issues Two and Three - Improper Closing Argument In issues two and three, appellant complains about two aspects of theState’s jury argument. The fi rst involves the prosecutor’s supposed attempt to inject himself as a witness into the c ase w hile the second concerns his purported effort to mislead the jury. We overrule both issues. As for the first complaint, the prosecutor indicated during hisclosing statement that A.P. was being truthful because he had personal ly spoken with her. Appellan t obj ected, and the trial court di rected the State to “avoid th is area.” Rather than comply, the5

prosecutor

returned to his a rgument b y again informing the jury that h e had spo ken with the girl. So too was he about to reveal what she told him when appellant again complained. In response, the trial court told t he prosec utor he could “state what [he] heard from the witness stand.” At that point, the prosecutor began to reiterate what the victim said while testifyin g at trial

. We note tha t a ppell ant initially contends that the trial court failed to rul e on his objections. In makin g this ar gume nt, h owever, appellant says nothing about why the directives to “avoid this are a” and to limit his comments to what the child sai d from the witness stand do not constitute rulings. This omission is of import because authority clearly recognizes that a judge may implied ly ru le upon an object ion. Rey v. St ate , 897 S.W.2d 333, 336 (Tex. Crim. App. 1995). Moreover, such occurs when the court’s actions or statement unquestionably indicate a ruling. Id. Here, telling the prosecutor to “avoid this area” and to restrict his comment to what the ch ild said fr om the witness stand unquestionably

indicates that the prosec utor was to stop doing that which he attempted. Moreover, these directives came in response to appellant’s objections. Thu s, we conclude thatwhile the trial judge m ay not have used the words “sustained” or “overruled,” he, nonetheless, impliedly sustained the objections. Next, to the extent appellant sugges t s that the trial court erred in ameliorating the prejudicial effect of these an d other co mme nts made by the prosecutor, we note that he asked the court

to neith er instru ct the jury to disre gard them nor grant a mistrial. Authori ty hold s that to preserveerror involving p rosecutor ial misconduct, s uch as im proper jur y argument, the complainant must not only object but also request a n instruc

tion to d isregard and move for amistrial

. Penry v. State , 903 S.W. 2d 715, 7 64 (T ex. Cri m. App.), cert.6

denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (199 5). Sinc e a ppellant sought neither an instr uction to

disrega rd or a mi strial, a ny error a rising fr om th e prosecutor’s attempt to become a witness and reiterate what the child told him was not preserved. The same is true with the complaint regarding the prosecutor’s alleged attemptt o mislead the jury. The trial court sustained the objection, and appel lant solicited no further relief. B y neglec

ting to d o so, he d id not pr eserve hi s complai nt. Id. Issue Four - Ineffective Assistance of Counsel Through his final issue, appellant contends that he received ineffective assistance of counsel with respect to the preparation of the j ury charg e. The ineffectiveness purportedlyconcerned the lesser-included offense of indecent exposure. While the lesser offense was included in the jury c harge, co unsel al legedly failed to object to 1) the lack of
a definiti on for “re ckless,” 2) the cha racteriza tion of th e offenseas a cla ss B misd emeanor, and 3) the omission of an instruction requiring the jury to gi ve appellant “the ‘benefit of the doubt’ if [it] cannot decide which offense” he committed. This alleged ly evi nced ineffectiveness on the part of counsel. We overrule the issu e. Standard of Review The standard of review require s appell ant to prove by a p reponder ance of t h e
ev idence not only that counsel’s representation fell below the objective standard o f professional norms but also that it p rejudiced his defe nse. Bone v. S tate, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). To satisfy the latter prong, it must be shown that

there existed
a reasonable probability that but for the misconduct, the result would have bee n differe nt. Id. And, this occurs whe n the circumstances undermine our confidence in the outcome. Id.2 Indeed, thi s same defi ciencyencompasses eac h it em of mis conduct about whi ch appel lant

com plains in issu e 4. T hus , all are s ubje ct to reje ction o n this b asis. 7 Applica tion of S tandard Appellant

neither cited authority nor proffered explanation illustrating why it was error for his counsel to withhold objection about 1) the characterization of the offense as a class B misdemeanor or

2) the missing “benefit of the doubt” instruction. This may be b ecause 1) indecent

exposu re is a C lass B mi sdemeano r, T EX
. P EN
. C ODE A NN
. §21.08 (b) (Vernon 2003), and 2 ) a trial court need not give a “benefit of the doubt” instruction when the charge, as here, instructsthe jury that, if it is not convinced beyond a reason able doubt that appellant

is guil tyof the grea ter offense, it should acquit him of that offense and then consider his guilt for the lesser

one. Benavides

v. State, 763 S.W.2 d 587, 58 9 (Tex. A pp.– Corpus Christi 1988, pe t. ref’d). Given this, we cannot say that these complaints establish deficien t performa nce on th e part of trial cou nsel. As to thedefiniti on of “rec kless,” a ppellan t makes no effort to explain how or if

the verdi ct wou ld have differed had the definition been g iven. 2 He simply concludes that the omission was harmful, denied him a fair trial, and undermined the confide nce in th e verdict

. Again, his burden was to establish how the supposed error hurt him, not simply conclude thatit did. This neglect coupled with the rather overwhelming evidence of appell ant’s guilt for indecen cy with a child requires us to reject his cla im of ine ffective a ssistance. See Ladd
v. State , 3 S.W.3d 547, 570 (Tex . Crim. Ap p. 1999), cert. deni ed, 529 U.S. 1070, 12 0 S.Ct. 1680, 146 L.Ed.2d 487 (2000) (holding that becauseappellant made “no effort to prove the prejudice prong” h e was no t entitle d to reli ef). Having overruled each of a ppellan t’s argum ents, we affirm thejudgment.8 Brian Quinn Justice
Do not pu blish.