«f*1'«5 No.

IN THE

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

ORIGINAL

FRANCISCO DURAN, JR.

PETITIONER

CI court of amrnimis

APR 17 2015

vs

Abel Acosta, Clerk

RESPONDENT

THE STATE OF TEXAS

ON APPEAL FROM

THIRTEENTH DISTRICT COURT OF APPEALS

CORPUS CHRISTI, EDINBURG, TEXAS

2013 TEX. APP. LEXIS 8111

NO. 13-12-00344-CR

PETITION FOR DISCRETIONARY REVIEW

PRO SE

Francisco Duram Jr.

Robertson Unit # 1793551

12071 FM 3522

Abilene, TX. 79601

FILED IN

•CURT OF CRIMINAL APPEALS

APR 17 2015-

Auel Acosta, Clerk
TABLE OF CONTENTS

SUBJECT MATTER PAGE NUMBER

Index of Authorities iii

Statement Regarding Oral Argument iv

Statement of the Case V

Statement of Procedural History vi

GROUNDS FOR REVIEW:

1. The Court of Appeals Erred in affirming and modify

ing the judgement of conviction and in particular:

a. by modifying the jury's conviction from a second

degree felony of burglary to a first degree felony

burglary by retaining an indictment count of ag

gravated assault with a deadly weapon that was abandoned by the prosecution 1

b. by modifying the judgement to delte the words

"Special Issue" in,the deadly weapon finding so

that the State's abandonment of Count II became

a legal shoe that fit their modification(s) 1

c. by failing to vacate the double jeopardy barred

conviction(s) as requested and agreed between de

fense counsel and the State Appellate Counsel/

to wit/ the aggravated assault with a deadly

weapon * 1

d. by failing to recognize the plain error of pe

titioner being deprived of a fair trial in vio

lation of the Fifth Amendment's double jeopardy

clause ; 1

2. The Court of Appeals Erred in affirming the judge

ment of conviction(s) regarding petitioner's five i

i

points of error raised, to wit:

FIRST:

SECOND:

THIRD:

FOURTH:

The evidence was legally insufficient to

support the Burglary conviction ,

Ineffective assistance of counsel at trial.

The trial court committed error in includ

ing the aggravated assault conviction in the

judgement after the State abandoned the

allegation; and by not allowing defense witnesses

-l-
[con't. ]

TABLE OF CONTENTS

SUBJECT MATTER PAGE NUMBER

FOURTH: to testify at the punishment trial; as

FIFTH: well as committing error in making a

finding that a deadly weapon was used

or exhibited 2

Argument and Authorities 2

Prayer for Relief END

Appendix containing the appellate opinion A

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INDEX OF AUTHORITIES

THE LAW: PAGE NUMBER

Apprendi-v-New Jersey, U.S. ( )..... 12

Berman-v-United States, 302 U.S. 211, 212 (1937) 2,12

Bigley-v-State, 865 SW.2d 26, 27-28 (Tex.Crim.App.1993) 2

Butler-v-State, 769 SW.2d 234, n.2 (Tex.Crim.App. 1989) 7

Clark-v-Procunier, 755 F.2d 394 (5th Cir. 1985) 7

David-v-State, 91 SW.3d 824 (Tex.Crim.App.1994) 9

Delapaz-v-State, 229SW.3d 795, 802 (Tx.App.Eastland 2007) rev'd.

on other grounds 273 Sw.3d 671, 681 (Tex.Crim.App.2008) 9

Garcia-v-State, 571 Sw.2d 896, 899 (Tex.Crim.App.1978) 2,10

Landers-v-State, 957 Sw.2d 559-560 (Tex.Crim.App.1992) 2

Langs-v-State, 183 SW.3d 680, 686 (Tex.Crim.App.2006) 2,10

Littrell-v-State, 271 Sw.3d 273 (Tex.Crim.App.2008) 2,10

Minor-v-State, 91 SW.3d 824 (Tx.App.Fort Worth 2002, pet. ref'd). 9

Nash-v-State, 175 SW.3d 487 (Tx.App.Texarkana 2005,pet. ref'd)... 12

Nelson-v-State, 149 Sw.3d 206, 213 (Tx.App.Fort Worth 2004, no pet.) 2

Strickland-v-Washington, 466 U.S. 668 (1984) 8

Thomas-v-State, 821 Sw.2d 616 (Tex.Crim.App. 1991) 12

Urbano-v-State, 837 SW.2d 114 (Tex.Crim.App. 1992) 7

United States-v-Lopez, 74 F.3d 575, 577 (5th Cir. 1996) 7

United States-v-Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999). 7

United States-v-Reveles, 190 F.-3d 678 (5th Cir. 1999) 7

Webb-v-State, 766 SW.2d 236 (Tex.Crim.App. 1984).... 9

Williams-v-State, 692 SW.2d 671, 676 (Tex.Crim.App. 1989) 7

U.S.C.A

5th Amendment' s double jeopardy clause 5

TEX. PEN. CODE

§ 22.02(a)(2) 3

§ 30.02(a)(3) 3

T.R.A.P.

66.3(c)

-hi
STATEMENT REGARDING ORAL ARGUMENT

Petitioner-appellant is a prisoner acting in his own behalf

and thus is not available nor qualified to present oral arguments,

though he would urge that the issues are of sufficient magnitude

and complexity to merit oral argument. Therefore, if the Court

recognizes merit in holding oral argument, then petitioner makes

request for the Court to appoint counsel to represent. Thank you.

-IV-
STATEMENT OF THE CASE

Petitioner-appellant was initially indicted with a single

offense of Burglary of a Habitation, but after he rejected the

State's 2 -to- 5 year plea offer the prosecutor re-indicted him

with a dual count indictment. Each count allegedf a separate penal

code offense, to wit, Count I was Burglary of a Habitation [§ 30.02

(a)(3), Tex. Pen. Code], and, Count II, Aggravated Assault with a

Deadly Weapon [§ 22.02 (a)(2)].

Each penal code offense alleged the same dat and the evidence

at trial showed that each offense arose out of the same incident.

At the close of the State's evidence and the defense of

alibi the trial court submitted each offense to the jury in its

instructions within the jury charge, along with separate verdict

forms per penal code offense. The jury found petitioner guilty of

each count as demonstrated within their separate verdict forms.

After the jury found guilt on each count as charged in the

indictment, the prosecution abandoned the Aggravated Assault with

a Deadly Weapon, Count II.

At the punishment phase the jury sentenced petitioner to 25-

years on Count I, the Burglary charged. The trial court it its

Judgement of Conviction listed both guilty verdicts as two judge

ments of conviction.

Likewise, at the punishment phase the trial court would not

allow petitioner to present witnesses in mitigation. The court held

that to allow these defense witnesses would be a violation of the

Rule.

-v-
Finally, the Appellee chose to "no£ include its own Statement of

the Case", but instead was "satisfied with Appellant's Statement

of the Case". See State's Appeal Brief under their "Statement of

the Case" at page 6.

Lastly, the "State conceded that it may be appropriate to

modify the trial court's judgement by removing the Aggravated As

sault conviction", in light of the State abandoning the offense,

aswell as, its double jeopardy ramifications. See State's Appeal

Brief at page 31.

STATEMENT OF THE PROCEDURAL HISTORY

1- Petitioner-appellant was initially indicted for a single penal

code offense of Burglary of a Habitation;

2. A plea offer of five-years was rejected and the State reindicted

with a dual count indictment involving two separate penal code of

fenses, to wit, Burglary of a Habitation, and Aggravated Assault

with a Deadly Weapon. The deadly weapon alleged a DVD Player in

the manner of its use;

3. At trial the evidence proved that both penal code ffenses derived

from the same incident. Yet, both penal code offenses were submitted

to the jury with separate instructions along with separate verdict

forms;

4. After the jury found guilt on both indictment counts the State

chose to abandon the aggravated assault with a deadly weapon of

fense, and proceeded to punishment on Count I only: the Burglary;

5- A motion for He<w Trial was filed claiming the evidence was insuf

ficient to convict due to a misidentification, and that petitioner

chould not have been convicted of the deadly weapon since no dead-

-vi-
ly weapon finding was submitted to the jury;

6. An appeal was perfected to the Thirteenth District Court of Ap

peals of Texas and was eventually affirmed and modified;

7. No petition for discretionary review was sought because defense

counsel on appeal failed to give petitioner notice;

8. A 11.07 application for the writ of habeas corpus requesting an

out-of-time [PDR] petition for discretionary review was filed and

granted;

9. This petition for discretionary review followed in a timely man

ner.

-vii-
IN THE

COURT OF CRIMINAL APPEALS

AUSTIN/ TEXAS

FRANCISCO DURAN, JR.

PETITIONER

VS

RESPONDENT

THE STATE OF TEXAS

PETITION FOR DISCRETIONARY REVIEW

TO THE HONORABLE JUDGES:

COMES NOW, the above named petitioner-appellant, acting in

his own behalf, respectfully requesting the Court to grant this

petition for discretionary review- IN iPHAT,

GROUNDS FOR REVIEW (restated):

THE COURT OF APPEA&I SUltlS IN AffiaMlNf

AND MODIFYING THE JUDGEMENT OF CONVICTION:

a. by modifying the jury's conviction of second degree burglary

to that of a first degree felony burglary by retaing the indictment

count of aggravated assault with a deadly weapon that was abandon

ed by the prosecution;

b. by modifying the judgement to delete the words "special issue"

in the abandoned deadly weapon finding of Count II to produce a

-1-
legal shoe that fit the State's request for a modification;

c. by failing to vacate the double jeopardy barred conviction as re

quested and agreed to by the State, to wit, the aggravated assault

with a deadly weapon;

d. by failing to recognize the plain error of petitioner being de

prived of a (flair trial in violation of the Fifth Amendment's double

jeopardy clause.

THE COURT OF APPEALS ERRED IN

AFFIRMING THE JUDGEMENTS OF

CONVICTION(S) REGARDING PETITIONER'

FIVE POINTS OF ERROR.

ARGUMENT AND AUTHORITIES

Petitioner-appellant presents his first ground for review re

garding the court of appeals absuing its authority in affirming and

modifying the judgements of conviction$s). Texas Rule of Appellate

procedure 43.2(b), does allow for modification pertaining to form

and procedural techincalities, as well as, some procedural errors

or to reflect the truth as reflected in the recorded pronouncements,

but does not allow a modification involving substantive alterations

in the judgement(s) of convict ion(s). Langs-v-State, 183 SW.3d 680,

686 (tex. Crim. App. 2006); Bigley-v-State, 865 Sw.2d 26, 27-28

(Tex. Crim. App. 1993); nelson-v-State, 149 Sw.3d 206, 213 (Tex.

App. - Fort Worth 2004, no pet.) [An appellate court may correct

and reform a trial court judgement regarding procedural matters to

make the judgement congruent with the record; cf. Littrell-v-State,

271 SW.3d 273 (Tex. Crim. App. 2008); Landers-v-State, 957 Sw.2d

559-560 (Tex. Crim. App. 1997); and Garcia-v-State, 571 SW.2d 896,

899 (Tex. Crim. App. 1978).

•2-
The above referenced law stands for the proposition that a

Court of Appeals may modify and/or reform a conviction involving

procedural matters such as clerical errors in the judgement of con

viction or judge recitals at sentencing or when there are procedur

al errors inconcsistent with decisional law or rules of procedure,

but not substantive errors in the jury verdicts stemning from the

indictment and jury charge instructions at guilt/innocence and/or

at punishment. As in the case at bar.

The petitioner-appellant was indicted for the criminal offenses

of Burglary of a Habitation, Texas Penal Code § 30.02(a)(3), and,

Aggravated Assault with a deadly weapon, Texas Penal Code § 22.02

(a)(2). The indicted offenses were not manner and means allegations.

Instead the indictment consisted of a proeprty offense and a person

offense. Each stemning from the same criminal incident.

The trial court's jury charge at guilt/innocence separately

charged on each penal code offense. Instructing the jury consider

the law instructions from a parties theory. The jury returned guilt

on both crimes, butthe State abandoned the aggravated assault with

a deadly weapon offense. Thus, there was no final conviction. See

Berman-v-United States, 302 U.S. 211, 212 (1937) ["Final judgement

in a criminal case means sentence. The sentence is the judgement."].

Absent a final judgement thre trial court had no authority to modify

the judgement.

Likewsie, absent a final judgement the court of appeals had

no authority to modify the judgement to reflect a final judgement

that was not made by the jury. By the State abandoning Count II of

the indictment there was no deadly weapon judgement or conviction.

Thus, it was a substantive error for the court(s) to transfer the

-3-
essential element and aggravating factor of the abandoned offense

over to that of the Burglary conviction.

In fact, the Jury Charghe instructions at guilt/lnnocencve

did not instruct deadly weapon in Count I the Burglary of a Hab

itation offense. Likewise, the jury's verdict forms only applied

the- deadly weapon element to the aggravated assault offense, i.e.

"We, the Jury, find the defendant, Francisco Duran,

Jr., "GUILTY" of Burglary of a Habitation in Count

I, as charged in the indictment."

"We, the Jury, find the defendant, Fransicso Duran,

Jr., "GUILTY" of Aggravated Assault with a Deadly

Weapon in Count II, as charged in the indictment."

Finally, the trial court's sentencing of petitioner-appel

lant was only on Count I since the Stateabandoned Count II the ag

gravated assault with a deadly weapon. The trial court thus ordered:

"IT IS ORDERED by the Court that the Defendant, who

has been adjudged guilty of the offense of BURGLARY

OF A HABITATION, as found by the Jury, and is here

by sentenced to TWENTY-FIVE (25) YEARS ...".

He pronounced this final judgement because the jury determ

ined petitioner-appellant to be punished at TWENTY-FIVE YEARS. Tho^ held

at punishment paaae that:

"And we assess his punishment at confinement in the

Texas Departjment of Criminal Justice for 25 years

(being "Life" OR not less than fifteen (15) years

not more than ninety-nine (99) years), and assess

a fine of $None» (Answer in dollare and cents, not

exceeding $10,000.00 or "None")".

In short, though the State abandopned the offense of Count

II, and the jury charge at guilt/innocence did not instruct any

deadly weapon in relation to the Burglary offense and at punishment

the jury only sentenced petitioner on the Burglary offense without

-4-
affirmative finding of a deadly weapon, the trial court still took

it upon itself to switch over the essential element of the abandon

ed deadly weapon element of the aggravated assault offense to that

of the Burglary. Simply not right to do so. Therefore this issue

before the Court/ in light of the Court of appeals upoholding the

switch over.

CONCLUSION

In view of the above, petitioner urges the Court that the

trial court and court of appeals errored in modifying the judgement

of conviction by retaining the deadly weapon element of the aggrav

ated assault offense, as well as, modifying the jurgement to delete

the words "special issue" in the abandoned deadly weapon finding

of Count II so that it became a legal shoe that fit the State's re

quest for such a modification.

Likewise., the Court of appeals errored in failing to vacate

the double jeopardy barred conviction as requested by appellate

counsel and agreed to by the State, to wit, the aggravated assault

with a deadly weapon; and finally, the Court of Appeals failed to

recognize the plain error of petitioner being deprived of a fair

trial in violation of the Fifth Amendment's double jeopardy clause.

For these reasons petitioner ought to be granted petition

for discretionary review.

SECOND GROUND FOR REVIEW (restated):

THE COURT OF APPEALS ERRED IN AFFIRMING

THE JUDGEMENT OF CONVICTION (S ) REGARDING

PETITIONER'S FIVE POINTS OF ERROR:

-5-
ARGUMENT AND AUTHORITIES

i

FIRST APPELLATE POINT (restated):

The evidence was legally insufficient to support the Burgl

ary conviction.

REASONS FOR REVIEW: Rule 66.3(c), T.R.A.P.

The Court of Appeals ruled that the evidence was sufficient

regarding the identity element of the offense of Burglary of a Hab

itation when the onlt evidence that showed petitioner to have been

in the residence of the complainant was the aggravated assault with

a deadly weapon offense which the State abandoned. Nonetheless, The

alleged deadly weapon was an electronic DVD Player that in the man

ner of its use was capable of causing or did cause serious bodily

injury. The evidence clearly showed and was not contested that there

was no serious bodily injury. Thus, was the DVD Player capable in

(

the manner of its use to cause serious bodily injury?

The evidence by the complainant demonstrated that someone

threw the DVD Player at him and it hit him causing brusie. His test

imony was equivocal. At one point in his testimony he indicated it

was petitioner who threw the DVD Player and then, again he indicat

ed it might have been someone else.See RR.Vol.3, p.35, 34-36 [He'

could not tell who threw the DVD Player. It was possibly petition

er].

The state's counter position to the DVD Player being a dead

ly weapon in the manner of its use is predicated on a claim that

from evidence "the jury could reasonable infer that the manner of

the DVD player's us against Gonzalo transformed it into a deadly

weapon." See State's Brief at 17-18.

-6-
This inference evidence was off-set by the defense evidence

of mistaken identification via the defense witnese Chevon Muniz,who

testified that petitioner never went to the complainant's house on

December 10, 2010 [RR.Vol.3, pp.136-139]. Thus, the state's one

witness who gave a probable testimony that it was petitioner and

the defense one witness of alibi.

On the (flederal level when the evidence is equal or near equal

to a theory of guilt or innocence a reversal is mandated. See United

States-v-Lopez, 74 F.3d 575, 577 (5th Cir. 1996) ["We reverse if

the evidence 'gives equal or nearly equal circumstantial support

to a theory of guilt and a theory of innocence'".]; United States

-v-Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999) ["If the evidence

'gives equal or near equal circumstantial support to a theory of

guilt or innocence', the Court should reverse because 'under these

circumstances a reasonable jury must necessarily entertain a reason

able doubt'".]; United States-v-Reveles, 190 F.3d 678 (5th Cir.

1999) [same]; Clark-v-Procunier, 755 F.2d 394 (5th Cir. 1985) [sane].

Accord Williams-v-State, 692 SW.2d 571, 676 (Tex.Crim.App. 1989)

[A guilty verdict should not stand because the defendant was found

to be the most likely perpetrator]; Urbano-v-State, 837 Sw.2d 114

(Tex.Crim.App. 1992) [proof beyond a reasonable doubt means proof

that amounts to "a high degree of certainty".]; and it means "a

degree of more substantial evidence than a mere modicum" or a single

piece of evidence. Butler-v-State, 769 Sw.2d 234, n.2 (Tex.Crim.

App. 1989).

For these reasons petitioner urges the Court that the Court

of Appeals errored in finding the evdienee sufficient to burglary

of a habitation while using a deadly weapon. Especially in the light

-7-
of the State abandoning the aggravated assault with a deadly weapon.

Thus, this Court ought to grant this petition on this issue.

SECOND APPELLATE POINT (restated):

COUNSEL FOR THE DEFENSE WAS INEFFECTIVE.

It is true the record is equivocal regarding defense counsel's

effectiveness but silent as to his trial strategies. Thus, petit

ioner is left the option of beseiging this Court to review the al

leged counsel errors and determine for itslef whether the Court of

Appeals was correct in their finding that defense counsel was not

ineffective. Doing so from the landmark decision of Strickland-vWashington, 466 U.S.668 (1984).

Thus, petitioner stands upon appellate counsel's brief re

garding thisissue and beseeches the Court to rule accordingly. Id.

THIRD APPELLATE POINT (restated):

THE TRIAL COURT COMMITTED ERROR IN NOT ALOWING

DEFENSE WITNESSES TO TESTIFY AT THE PUNISHMENT

Petitioner urges the Court that it was error to not allow

him to present two defense' witnesses in mitigation of punishment.

Both of these witnesses, Dolores Trevino & Crystal Garcia, were not

called to testify regarding the crime or their views as to whether

petitioner was innocent of the Burglary conviction but rather in

mitigation of punishment by testifying to their personal knowledge

petitioner's background and family relationship^). RR.Vol.4, pp.

113-116, 119; and p.126.

The Court of Appeals errored holding that the sequestration

rule takes precedence over the Sixth Amendment. Claiming that:

-8-
"Assuming without deciding that appellant

made a sufficient proof offer at trial

court level, he does not explain on appeal

how the testimony of the excluded witnesses

would have differed from that offered by

Ashley Gasca, whom the trial court permitted

to testify for appellant during the punish

ment stage . . . Appellant does not explain

how their testimony would have differed from

Ashley's or how it would have been crucial

to his case."

See Appellate Opinion in Appendix at p.11-12.

The Court relied on the sequestration rule inconjunction with

Delapaz-v-State, 229 SW.3d 795, 802 (Tex.App. - Eastland 2007), rev'd.

on other grounds, 273 Sw.3d 671, 681 (Tex.Crim.App. 2008).

Petitioner would urge the Court that a rule does not over

ride the Sixth Amendment and the Delapaz decision affirmatively

held the "witness' testimony would have been cumulative of other

tetsimony that had already been received" while the appellate court

surmised or speculated it would have been cumulative to Ashley SX

Gasca's testincny.

For these reasons the Court should grant this petition and

allowing briefing on the issue. Accord, David-v-State, 872 SW.2d

743 (Tex.Crim.App. 1994) with Minor-v-State, 91 Sw.3d 824 (Tex.

App. Ft. Worth 2002, pet. ref'd.) and Webb-v-State, 766 Sw.2d 236

(Tex.Crim.App. 1984).

FOURTH APPELLATE POINT (restated):

THS TRIAL COURT COMMITTED ERROR IN INCLUDING

THE AGGRAVATED ASSAULT WITH A DEADLY WEAPON

CONVICTION IN THE JUDGEMENT.

The Court of appeals agreed with the trial court that an af

firmative finding of a deadly weaponincluded within the aggravated

-9-
assault offense-conviction should be in the judgement. Even though

it had been abandoned by the State and no deadly weapon element

was included within the Burglary of a Habitation offense charged

to the jury at guilt/innocenec or at punishment. See CR.pp, 15, 71-

78, 84-86 and 159-161; with RR.Vol. 5, pp. 8, 57, 81X88.36-43.

Thus, it was error for the Court of Appeals to agree with

the trisl court that despite the Aggravated Assault count being

abandoned by the State, and the jury sentencing petitioner only on

the Burglary of a Habitation conviction, the trial court was cor

rect in including the Aggravated Assault with a deadly weapon into

the jury's judgement [as modified by the trial court]. CR. pp. •

84-85, 159-161. See Langs-v-State, 183 SW.3d 680, 686 (Tex. Crim.

App. 2006); Littrell-v-State, 271 Sw.3d 273 (Tex. Crim. App. 2008);

Garcia-v-State, 571 Sw.2d 896, 899 (Tex. Crim. App. 1978).

For these reasons petitoner requests the Court to grant this

petition for discretionary review and allow for briefing.

FIFTH APPELLATE POINT (restated):

THE TRIAL COURT COMMITTED ERROR IN MAKING A FIND_

ING THAT A DEADLY WEAPON WAS USED OR EXHIBITED.

Petitioner urges the Court that the Court of Appeals agreing with the trial court's error in finding that a deadly weapon

was used or exhibits was contrary to the facts and law of this case.

In that, the indictment contained two felony counts, to wit, the

Aggravated Assault with a deadly Weapon element, and a Burglary of

a Habitation. The Burglary cpount did not contain any deadly weapon

-10-
element. CR. p.15. Likewise, the trial Court's Jury Charge instruct

ions did not contain any deadly weapon element within the Burglary

of a Habitation count of the indictment, at eiyher the guiltinnocence stage or the punishment phase. CR. pp.71-78; and RR. Vol.

5, p.57, 84-88.Finally, the jury did not make a specific finding

of any deadly weapon in the original judgement signed on April 23,

2012. CR. pp.84-88.

Furthermore, the evidence from.the victim showed that it

was only possible that petitioner was theone who struck him with

the DVD Player during the commission of an aggravated assault with

a deadly weapon which was abandoned by the State. See RR. Vol.3,

pp. 35-36; with RR.Vol.5, p.8

Thus, it is apparent from the record that (1) the original

indictment did not contain any deadly weapon element within the

first count [the Burqlary offensel- ni ^ y y lfaej! [2] the jury charge instruct

ions at both guilt/innocence and piunishment did not contain any

deadly weapon element within the Burglay of a Habitation count;

[3] the State abandoned the indictment count II that contained the

deadly weapon element; [4* and the evidence at trial showed an

equal or near equal legal snifl fsctual predicate for petitioner be

ing the person who used the alleged deadly weapon, to witK, the

DVD Player. Petitioner's defense was that the complainant was mis

taken as to him being the perpetrator.

Yet, the trial court inserted an unfounded deadly weapon

finding in the judgement, even though originally the Court chose

not to make an affirmative finding. CR. pp.159-164.

Forthese reasons there is not sufficient support to include

-11-
a deadly weapon element [finding] within the Burglary's judgement

of conviction. Especially, since the jury did not sentence petition

er with any deadly weapon element or finsinaffaomas-v-State, 821

Sw.2d 616 (Tex.Crim.App.1991); Nash-v-State, 175 Sw.3d 487 (Tex.

App. - Texarkana 2005, pet. ref'd.); Berman-v-United States, 302

U.S. 211, 212 (1937) ["Final judgement in a criminal case means

sentence. The sentence is the Judgement."]; and the trial judge

cannot increase the punishment on his own when the jury is the

sentencer. See Apprendi-v-New Jersey, supra.

PRAYER FOR RELIEF

WHEREFORE PETITION CONSIDERED, petitioner-appellant prays

this Honorable Court will highly consider this prose petition for

discretionary review and thereafter GRANT accordingly and ORDER

briefing. It is so prayed. Thank you.

RESPECTFULLY REQUESTED,

/•>**J( _/ J)</s«<~ Jn • FRANCISCO DURAN, JR.: PETITIONER

VERIFICATION

I, FRANCISCO DURAN JR., DO HEREBY VERIFY UNDER PENALTY OF PERJURY THAT THE FORE_

GOING FACTS CONTAINED IN THIS PETITION FOR DISCRETIONARY REVIEW ARE TRUE. I

ATTEST TO THIS SIGNING MY SIGNATURE BELOW:

/•/-*.> /( _J~S VZ* tXX?

FRANCISCO DURAN JR., AFFIANT

-12-
CERTIFICATE OF SERVICE

I, Francisco Duran Jr., do hereby certify that true copies of the

foregoing petition for discretionary review was placed in the Rob

ertson Unit's mail box on the 8th DAY OF APRIL 2016, addressed to

the Clerk of the Court of Criminal Appeals at Capitol Station,

Austin, Texas. I attest to this by affixing my signature below:

cc

brands c a -y^A^a^ Ofc

FRANCISCO DURAN, JR.: PETITIONER

ROBERTSON UNIT # 1793551

12071 FM 3522

12071 FM 3522

ABILENE, TX. 79601

-13-
FRANCISCO DURAN, JR., Appellant, v. THE STATE OF TEXAS, Appellee.

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

2013 Tex. App. LEXIS 8111

NUMBER 13-12-00344-CR

July 3, 2013, Delivered

July 3, 2013, Filed

Notice:

PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF

UNPUBLISHED OPINIONS.

Editorial Information: Prior History

On appeal from the 445th District Court of Cameron County, Texas.

Counsel FOR APPELLANT: Edmund K. Cyganiewicz, Attorney At Law,

Brownsville, TX.

FOR APPELLEE: Luis V. Saenz, District Attorney, Brownsville,

TX; Rene B. Gonzalez, Assistant District Attorney, Brownsville, TX; Christopher G. Gonzalez,

Assistant District Attorney, Brownsville, TX.

Judges: Before Justices Rodriguez, Benavides and Longoria. Memorandum Opinion by Justice Longoria.

CASE SUMMARY

PROCEDURAL POSTURE: Defendant sought review of the decision of the 445th District Court of

Cameron County (Texas), which convicted him of burglary of a habitation, a first-degree felony, in violation

of Tex. Penal Code Ann. § 30.02(a)(3) (2011).Defendant's conviction for burglary of a habitation under

Tex. Penal Code Ann. § 30.02(a)(3) was proper because a rational jury could have concluded that by

throwing the DVD player at the victim, defendant used the DVD player in a manner in which it was capable

of causing serious injury or death.

OVERVIEW: Defendant challenged his conviction for burglary of a habitation and the appellate court

affirmed, as modified. A rational jury could have concluded that by throwing the DVD player at the victim,

defendant used the DVD player in a manner in which itwas capable of causing serious injury or death, the

indictment's allegation that appellant committed aggravated assault gave appellant adequate notice that

the State may have sought an affirmative deadly weapon finding. Furthermore, the jury's verdict that

defendant was guilty as charged of burglary of a habitation with the underlying offense of aggravated

assault affirmatively supported the trial court's judgment that a deadly weapon was used. Therefore, the

trial court did not err by including the finding in its judgment.

OUTCOME: The appellate court modified the judgment to delete the words "Special Issue" in the deadly

weapon finding, to reflect that the State abandoned Count II before the punishment phase and to reflect

that punishment was assessed only on Count I, and to reflect that defendant was convicted of a

ltxcases 1

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first-degree felony. The judgment was affirmed as modified!

LexisNexis Head notes

i : • :--

Criminal Law &Procedure > Juries &Jurors > Province ofCourt &Jury > General Overview

Criminal Law & Procedure > Appeals > Standards of Review > General Overview

Evidence > Procedural Considerations > Burdens of Proof > Proof Beyond Reasonable Doubt

Evidence > Procedural Considerations > Circumstantial & Direct Evidence

Evidence > Procedural Considerations > Weight & Sufficiency

In evaluating the sufficiency of the evidence supporting a conviction, appellate courts view all the evidence

in a light most favorable to the verdict and ask whether any rational trier of fact could have found the

essential elements of the,crime beyond a reasonable doubt.: The trier of fact is the sole judge of the

credibility of witnesses and the weight, ifany, to be given to their testimony. The reviewing court must give

deferenceito the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts. The State may prove the

elements of an offense by either direct or circumstantial evidence. In a sufficiency review, circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt. Ifthe record supports conflicting inferences, the

appellate court presumes that the fact finder resolved the conflict in favor of the prosecution and defer to

that resolution. i>

Criminal Law &Procedure >Appeals > Standards of Review > General Overview

Evidence i> Procedural Considerations >Weight &Sufficiency

Appellate courts measure the sufficiency of the evidence supporting a conviction by the elements of the

offense as defined by the hypothetically correct jury charge for the case applied to the particular facts of

the case.

Criminal Law & Procedure > Criminal Offenses >Crimes Against Persons > Assault & Battery >

Aggravated Offenses > Elements

Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery >

Simple Offenses > Elements

Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview

A person commits the crime of assault if he (1) intentionally, knowingly, or recklessly; (2) causes bodily

injury to another, Tex. Penal Code Ann. § 22.01(a)(1). The penal code defines "bodily injury" as physical

pain, illness or any impairment of physical condition, Tex. Penal Code Ann. § 1.07(a)(8) (Supp. 2011).

Bodily injury is proven by evidence that the victim suffered some pain. A person commits the felony

offense of aggravated assault ifhe commits assault and (1) causes serious bodily injury to another; or (2)

uses or exhibits a deadly weapon during the commission of the assault, Tex. Penal Code Ann. §

22.02(a)(2). A deadly weapon is anything that in the manner of its use or intended use is capable of

causing death or serious bodily injury, Tex. Penal Code Ann. § 1.07(a)(17)(B). This language has been

interpreted to mean that it is not necessary for the State to show that a defendant intended to cause death

or serious bodily injury, only that appellant intended to use the object in a way that it could cause death or

serious bodily injury. In determining whether an object is a deadly weapon, the jury may consider all the

surrounding facts.

Criminal Law &Procedure > Juries &Jurors > Province of Court & Jury > General Overview

Criminal Law & Procedure > Appeals > Deferential Review > General Overview

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It is the role of the jury to resolve conflicts in the evidence, and the appellate courts must defer to that

resolution.

Criminal Law & Procedure > Appeals > Records on Appeal

An appellate court has the authority to modify the record to make itspeak the truth when it has the

necessary information to do so, Tex. R. App. P. 43.2(b).

Criminal Law &Procedure > Criminal Offenses > Crimes Against Persons >Assault &Battery >

Aggravated Offenses > Penalties

Criminal Law & Procedure > Postconviction Proceedings > Parole

Eligibility for parole is affected bythe inclusion in the convicting court's judgment of an affirmative finding

that the defendant used a deadlyweapon, Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Supp. 2011).

A defendant is generally entitled to notice in some form that the use of a deadly weapon will be a fact

issue at the time of prosecution. This notice need only be provided to the defendant in some form. A

completely separate indictmentarising out the same facts provides adequate notice. Aggravated assault

may be committed in only two ways, each involving the use of a deadly weapon. Therefore, an allegation

that the defendant committed or attempted to commit aggravated assault is adequate notice that there

would be an issue of the defendant's exhibition or use of a deadly weapon since each manner of

committing aggravated assault involves the use of a deadly weapon. Furthermore, the State may seek an

affirmative deadly weapon finding when, as in this case, an indictment alleges a burglary of a habitation in

which, after entering, the appellant committed or attempted to commit a felony of aggravated assault. In

such a case, the jury's verdict is an adequate basis for the trial court's entry of the affirmative finding in the

judgment under the statutes which require such findings.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of

Counsel

Criminal Law & Procedure > Counsel > Effective Assistance > Tests

In order to prevail on a claim of ineffective assistance of counsel, an appellant must meet the heavy

burden of Strickland, under which the defendant must show by preponderance of evidence that: (1)

counsel'srepresentation fell below an objective standard of reasonableness; and (2) there is a reasonable

probability that the result of the proceeding would have been different but for the attorney's deficient

performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome. If

an appellant fails to prove one prong of the test, an appellate court need not reach the other prong.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of

Counsel

Criminal Law & Procedure > Counsel > Effective Assistance > General Overview

Criminal Law & Procedure > Appeals > Records on Appeal

Evidence > Inferences & Presumptions > Presumptions

Courts look to the totality of the representation and the particular circumstances of each case in evaluating

the effectiveness of counsel. Although a single egregious error of omission or commission can constitute

ineffective assistance, the court of criminal appeals has been hesitant to designate a particular error as

per se ineffective assistance. There is a strong presumption that counsel's conduct fell within the wide

range of reasonable professional assistance. Allegations of ineffectiveness must be firmly founded in the

record, and the record must affirmatively demonstrate the alleged ineffectiveness. Direct appeal is

therefore usually inadequate to make an ineffectiveness claim because the record is often undeveloped.

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This is especially true where counsel's reasons for failing to do something do not appear in the record.

Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced

as ineffective. Unless counsel had an opportunity to explain his trial strategy, Texas appellate courts will

not find deficient performance unless the challenged conduct was 'so outrageous that no competent

attorney would have'engaged in it.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of

Counsel

Criminal Law & Procedure > Counsel > Effective Assistance > Pretrial

Criminal Law &Procedure > Appeals > Records on Appeal

When the record is silent as to trial counsel's strategy, an appellate court may not speculate as to his

intentions. Complete failure to file pretrial motions does not constitute ineffective assistance of counsel

unless the defendant identifies prejudice that he suffered as a result.

Criminal Law & Procedure > Witnesses > Presentation

See Tex. Code Crim. Proc. Ann. art. 38.075(a) (Supp. 2011).

Evidence > Testimony > Sequestration

When invoked by either party or the court, Tex. R. Evid. 614 requires, with some exceptions, that

witnesses be excluded from the courtroom during trial so that they are unable to hear the testimony of

other witnesses. In excluding a defense witness from testifying for violation of Rule 614, a trial court

should take into account the defendant's constitutional right to call witnesses on his behalf and have them

testify. Generally, witnesses should not be excluded from testifying solely for violation of the rule. The

following is a two-part inquiry for determining whether a trial court abused its discretion in excluding a

defense witness for violation of Rule 614: (1) were there particular circumstances, other than the mere fact

of the violation, which would tend to show the defendant or his counsel consented, procured or otherwise

had knowledge of the witness's presence in the courtroom, together with knowledge of the content of that

witness's testimony; and (2) if no particular circumstances existed to justify disqualification, was the

excluded testimony crucial to the defense:

Evidence > Procedural Considerations > Objections & Offers of Proof > Offers of Proof

It is an appellant's burden to make a record, through a bill of exceptions, of the evidence he or she desires

admitted.

Criminal Law &Procedure > Criminal Offenses >Property Crimes >Burglary & Criminal Trespass

> Burglary > Elements

Burglary of a habitation is a first-degree felony ifthe premises entered is a habitation and the defendant

commits or attempts to commit an offense other than felony theft while there, Tex. Penal Code Ann. §

30.02(d)(1)-(2). .

Opinion

Opinion by: NORA L. LONGORIA

Opinion

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MEMORANDUM OPINION

Memorandum Opinion by Justice Longoria

In five issues, which we have reordered, appellant, Francisco Duran, challenges his conviction for

burglary of a habitation, a first-degree felony. See Tex. Penal Code Ann. § 30.02(a)(3) (West 2011).

We affirm as modified.

I. Background

The State indicted appellant for burglary of a habitation with the underlying felony of aggravated

assault (Count I) and a separate charge of aggravated assault with a deadly weapon (Count II). See

id. §§ 30.02(a)(3), 22.02(a)(2) (West 2011). The aggravated assault charge contained in Count II was

identical to the underlying felony alleged in the burglary charge.

Gonzalo Gonzalez testified that he was watching movies in his apartment with Juan Luna when he

heard a group of individuals coming down the alleyway, talking loudly. Gonzalez and Luna both exited

Gonzalez's apartment to investigate. Gonzalez testified that there were six individuals in the group:

three juvenile males, two adult males, and one adult female. Gonzalez identified appellant as one of

the adults in the group.

One of the other adults accused Luna of having thrown somethingl through the window of the house

where the group had been barbecuing and then fleeing back intoGonzalez's apartment. The group

began to crowd around Luna, and Gonzalez intervened to protect him.2The group responded by

accusing Gonzalez of being the one who broke the window. Gonzalez testified that he instructed the

group to leave his property but appellant "ran into [his] house ... to search for whoever had broken

the window." Gonzalez testified that he followed appellant into his house. The other adults followed

Gonzalez, but the juveniles remained outside. Gonzalez testified that he grabbed appellant by the arm

and attempted to pull him out of the house, at which time the other adult male in the group punched

Gonzalez on the side of the head. Gonzalez testified that he fell to the floor as a result of the punch,

and both appellant and the other adult male hit him. Gonzalez further testified that after he fell to the

floor, appellant and the other adult male threw Gonzalez's Xbox game console, a "Wii Player," and a

DVD player at him.3 The Wii and the DVD player struck Gonzalez's back. Because Gonzalez was on

the floor facing downward he could not tell which of the two actually threw the DVD player. Gonzalez

testified that at that point he got up, ran out of his apartment, and encountered police that were

arriving to investigate the broken window. Appellant and the rest of the group returned through the

alley to their house, where they had been barbecuing. Gonzalez testified that he suffered a laceration

on his back and pain from his injuries.

Appellant's acquaintance Martin Perez testified that he picked up appellant from the house with the

broken window. Perez testified that appellant was laughing and joking about the incident with the other

people there. According to Perez, appellant stated that he and a group of other males went down the

alley to another residence, entered the residence, and "got into an altercation" with someone in the

residence. Police later arrested both Perez and appellant. The State originally indicted Perez for

playing a role in the assault, but later dismissed the charges. Perez did not testify pursuantJo an

agreement with the State.4 [

Chevon Muniz, who was present at the barbeque at the time the window was broken, testified for the

defense. She agreed that a group of men left to pursue the person who broke the window, but testified

that appellant was not one of them. Munizconfirmed that appellant remained at the barbeque with her.

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The jury returned a verdict of guilty on both counts. The State voluntarily vacated Count II, aggravated

assault:with!a deadly weapon, before the sentencing phase out of concern that imposing punishment

for itwould violate appellant's double jeopardy protection against receiving two punishments for the

same offense. See Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). The jury found the

enhancement paragraph of a prior felony to be true, and assessed twenty-five years' imprisonment in

the Texas Department of Criminal Justice-Institutional Division. The State later filed a motion to

modify the judgment to enter an affirmative deadly weapon finding. The trial court granted the motion

oyer' appellant's objection and rendered a modified judgment that reflected an affirmative deadly

weapon finding, this appeal followed.

II. Discussion

A. Sufficiency of the Evidence

In his first issue,lappellant challenges the sufficiency of the evidence supporting his conviction for

burglary of a habitation with the underlying offense of aggravated assault. See Tex. Penal Code Ann.

§ 30.02(a)(3). ;•: i

1. Standard of Review

In evaluating the sufficiency of the evidence supporting a conviction, we view all the evidence in a light

most favorable to the verdict and ask "whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt." Garcia v. State, 367 S.W.3d 683, 686-87 (Tex.

Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)). The trier of fact, in this case the jury, is the sole judge of the credibility of witnesses and the

weight, if any, to'be given to their testimony. Id.; Brooks v. State, 323S.W.3d 893, 899 (Tex. Crim.

App. .2010) (plurality op). "The reviewing court must give deference to the responsibility of the trier of

fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing

Jackson, 443 U.S. at 318-19 (1979)). The State may prove the elements of an offense by either direct

or circumstantial evidence. Id. In a sufficiency review, "circumstantial evidence is as probative as

direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt." Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). If

the record supports conflicting inferences, we presume that the fact finder resolved the conflict in

favor of the prosecution and defer to that resolution. Garcia, 367 S.W.3d at 687; see Brooks, 323

S.W.3dat899n.13.

2. Applicable Law

We measure the sufficiency of the evidence supporting a conviction "by the elements of the offense

as defined by the hypothetical^ correct jury charge for the case" applied to the particular facts of the

case. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997)). In this case, the State had to prove that appellant: (1) intentionally

or knowingly; (2) entered a habitation; (3) without the owner's effective consent; (4) and while there

committed or attempted to commit aggravated assault. See Tex. Penal Code Ann. § 30.02(a)(3).

A person commits the crime of assault ifhe (1) intentionally, knowingly, or recklessly, (2) causes

bodily injury to another. Id. § 22.01(a)(1). The penal code defines "bodily injury" as "physical pain,

illness or any impairment of physical condition." Id. § 1.07(a)(8) (West Supp. 2011). Bodily injury is

"proven by evidence that the victim suffered 'some' pain." In re. I.L., 389 S.W.3d 445, 455 n.7 (Tex.

App.-EI Paso 2012, no pet.). "Aperson commits the felony offense of aggravated assault if he

commits assault and (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly

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weapon during the commission of the assault." Mitchell v. State, 137 S.W.3d 842, 845 (Tex.

App.-Houston [1st Dist.] 2004, pet. refd); see Tex. Penal Code Ann. § 22.02(a)(2). A deadly weapon

is "anything that in the manner of its use or intended use is capable of causing death or serious bodily

injury." Tex. Penal Code Ann. § 1.07(a)(17)(B). The court of criminal appeals has interpreted this

language to mean that it is not necessary for the State to show that a defendant intended to cause

death or serious bodily injury, onlythat appellant intended to use the object in a way that itcould cause

death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); see also

Bailey v. State, 46 S.W.3d 487, 490-91 (Tex. App.-Corpus Christi 2001, no pet.) (op. on remand). "In

determining whether an object is a deadlyweapon, the jurymay consider all the surroundingfacts."

Quincy v. State, 304 S.W.3d 489, 500 (Tex. App.-Amarillo 2009, no pet.).

In brief, the State was required to prove that appellant entered Gonzalez's apartment without his

permission and, while there, committed assault, which became aggravated by appellant using the

DVD player in a way that it could cause death or serious bodily injury.

3. Analysis

Appellant argues that "the evidence does not show the commission, or even the attempt to commit

aggravated assault with a deadly weapon." Specifically, appellant argues that the DVD player was

"was merely thrown and not used to hitthe victim." We interpret appellant as arguing that the evidence

does not show that appellant used the DVD player as a deadly weapon.5 Gonzalez testified that

appellant and the other adult male in the group threw an Xbox game console, a "Wii player," and a

DVD player at appellant's back and that he suffered lacerations there as a result. Gonzalez further

testified that he was still suffering pain from the impact of the DVD player at the time of the trial, which

was held sixteen months after the incident. We conclude from this that the State produced sufficient

evidence to demonstrate that appellant suffered bodily injury as a result of appellant's conduct.

As discussed above, the State produced testimony that appellant and the other male in the group

threw several objects at Gonzalez, including the DVD player, and that the DVD player struck

Gonzalez's back. The DVD player itself was also admitted into evidence for the jury's inspection.

Raynel Salinas, a Gang Investigator for the City of Harlingen Police Department, testified that he

thought the DVD player was a deadly weapon because it could cause serious injury ifitwas thrown at

a person, asit was in this case. Other courts of appeals have concluded thatobjects thrown at a

person can qualify as a deadly weapon. See, e.g., Landrian v. State, 263 S.W.3d 332, 336 (Tex.

App.-Houston [1st Dist.] 2007), rev'd on other grounds, 268 S.W.3d 532, 540-42 (Tex Crim. App.

2008) (a broken bottle); see also Marin v. State, No. 08-00-344-CR, 2002 WL 1874815, at *3 (Tex.

App.-EI Paso Aug. 15, 2002, no pet.) (mem. op.) (not designated for publication) (a "water meter

cover" and glass bottle); Narcisee v. State, No. 14-96-97-CR, 1998 Tex. App. LEXIS 6918, 1998 WL

767662, at *4 (Tex. App.-Houston [1st Dist.] Nov. 5, 1998, no pet.) (mem. op., not designated for

publication) (a basketball).

Although appellant argues that the DVD player was not used to hit the victim, the jury heard testimony

that appellant threw the DVD player at Gonzalez and struck Gonzalez with it. It is the role of the jury to

resolve conflicts in the evidence, and we must defer to that resolution. Garcia, 367 S.W.3d at 687; see

Brooks, 323 S.W.3d at 899 n.13. In sum, we hold that a rational jury could have concluded that by

throwing the DVD player at Gonzalez, appellant used the DVD player in a mannerin which it was

capable of causing serious injury or death.6 See Landrian, 263 S.W.3d at 336.

Accordingly, appellant's first issue is overruled.

B. Modification

In his second issue, appellant complains that the trial court erred in rendering a judgment that

ltxcases 7

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included Count II, the aggravated assault charge. The record reflects that at the beginning of the

punishment phase, the State's attorney rose and announced: "at this time the State is abandoning the

second charge of aggravated assault with a deadly weapon due to the fact that the Defendant cannot

be punished on both charges. It is double jeopardy, so we are going forward solely on the burglary of

a habitation;[charge]." In its brief, the State does not oppose appellant's request, but instead responds

that it "may be appropriate to modify the trial court's judgment by removing the Aggravated Assault

conviction" but asks that we preserve the deadly weapon finding, an issue we address below.

This Court has the authority to modify the record to make itspeak the truth when it has the necessary

information to do so. See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992), It is unnecessary tocompletely delete Count II from the judgment because appellant was,

in fact, convicted ofit! We conclude thatthejudgment should be modified to reflect thatthe State

abandoned Count II before the punishment phase and to affirmatively state that punishment was

assessed only on Count I. See Gibson v. State, No. 06-07-200-CR, 2008 Tex. App. LEXIS 4915, 2008

WL 2596221, at *5 (Tex. App.-Texarkana July 2, 2008, pet. refd) (mem. op./not designated for

publication) ("Accordingly, the trial court was correct in accepting the jury's verdict for burglary and

ignoring or dismissing its conviction for aggravated assault.")

Appellant's second issue is otherwise overruled.

C. Deadly Weapon Finding

In his third issue, appellant complains that the trial court erred in modifying the judgment to include a

deadly weapon finding because: (1) the State failed to provide adequate notice that it would seek an

affirmative deadly weapon finding; (2) the jury's verdict does not support the trial court's entry of an

affirmative deadly weapon finding; and (3) the modified judgment incorrectly states that the deadly

weapon finding was made by the jury pursuant to a special issue.

1. Applicable Law

"[Eligibilityfor parole [is] affected by the inclusion in the convicting court's judgment of an affirmative

finding that [the defendant] used a deadly weapon." Blountv. State, 257 S.W.3d 712, 713 (Tex. Crim.

App. 2008); see Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (West. Supp. 2011). A defendant is

generally "entitled to notice in some form that the use of a.deadly weapon will be a fact issue at the

time of prosecution." Grettenberg v. State, 790 S.W.2d 613, 614-15 (Tex. Crim. App. 1990) (citing Ex

parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989)). This notice need only be provided to the

defendant in some form. Id.; see Brooks v. State, 847 S.W.2d 247, 248-49 (Tex. Crim. App. 1990) (a

completely separate indictment arising out the same facts provides adequate notice). "Aggravated

assault may be committed in only two ways[,]... each involving] the use of a deadly weapon." Blount,

257 S.W.3d at 714. Therefore, "an allegation that the defendant committed or attempted to commit

aggravated assault [is] adequate notice that there would be an issue of [the defendant's] exhibition or

use of a deadly weapon since each manner of committing aggravated assault involves the use of a

deadly weapon." Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009). Furthermore, the

State may seek an affirmative deadly weapon finding when, as in this case, an "indictmentallege[s] a

burglary of a habitation in which, after entering, the appellant committed [or] attempted to commit a

felony of aggravated assault." Blount, 257 S.W.3d at 714. In such a case, "the jury's verdict [is] an

adequate basis for the trial court's entry of the affirmative finding in the judgment under the statutes

which require such findings." Crumpton, 301 S.W.3d at 665.

2. Analysis

In this case, the indictment's allegation that appellant committed aggravated assault gave appellant

adequate notice that the State may have sought an affirmativedeadly weapon finding. See id. at 664.

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Furthermore, we conclude that the jury's verdict that appellant was guilty as charged of burglary of a

habitation with the underlying offense of aggravated assault "affirmatively supports the trial court's

judgmentthat a deadlyweapon was used." Id. at 665. Therefore, the trial court did not err byincluding

the finding in its judgment. See id. ("[If] the juryfinds the defendant guilty as charged in the indictment,

the verdict is necessarily a finding that a deadly weapon was used.").

Finally, although we agree with appellantthat the courtdid not submita special issue to the jury, "[t]he

State may be able to obtain a deadly-weapon finding from the juryat the guilt phase of trial either

through the wording of the offense submission in the jurycharge or through a special issue." See In re

State ex rel. Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012). We conclude that the judgment

should be modified to delete the words "Special Issue" and to reflect that the deadly weapon finding

was entered because of the jury's verdict that appellant was guiltyas charged in the indictment.

Appellant's third issue is overruled in all other respects.7

D. Ineffective Assistance of Counsel

In his fourth issue, appellant argues that he received ineffective assistance of counsel at trial as a

result of a series of errors.

1. Applicable Law

In order to prevail on a claim of ineffective assistance of counsel, an appellant must meet the heavy

burden of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Jaynes

v. State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.). Under Strickland, the

defendant must show by preponderance of evidence that: (1) counsel's representation fell below an

objective standard of reasonableness; and (2) there is a reasonable probability that the result of the

proceeding would have been different but for the attorney's deficient performance. Strickland, 466

U.S. at 687; Jaynes, 216 S.W.3d at 851. "A reasonable probability is a probability sufficient to

undermine confidence in the outcome." ExparteEllis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). If

an appellant fails to prove one prong of the test, we need not reach the other prong. See Strickland,

466 U.S.'at 697; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

We look to "the totality of the representation and the particular circumstances of each case in

evaluating the effectiveness of counsel." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Although "a single egregious error of omission or commission" can constitute ineffective

assistance, the court of criminal appeals has been hesitant to designate a particular error as per se

ineffective assistance. Id. "There is a strong presumption that counsel's conduct fell within the wide

range of reasonable professional assistance." Id. Allegations of ineffectiveness must be "firmly

founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id.

Direct appeal: is therefore usually inadequate to make an ineffectiveness claim because the record is

often undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This is

especially true "where counsel's reasons for failing to do something do not appear in the record." Id.

The court of criminal appeals has explained that "trial counsel should ordinarily be afforded an

opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101

S.W.3d 107, 111 (Tex. Crim. App. 2003). Unless counsel had an opportunity to explain his trial

strategy, Texas appellate courts will "not find deficient performance unless the challenged conduct

was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d

at 392 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).' .

2. Analysis :

Appellant argues that a number of single errors constitute ineffective assistari.ee of counsel, and even

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ifany of these errors do not suffice, counsel's performance as a whole compels a finding of ineffective

assistance. Appellant complains of the following alleged errors by his trial counsel: (1) that counsel did

not appear when ordered to by the court and had a writ of attachment issued for him; (2) once trial

counsel appeared at jury selection, he performed "a very limited voir dire"! and did not discuss

important matters such as the defendant's possible election not to testify, the indictment; and the

elements of the charged offense; (3) counsel's cross-examination of the State's witnesses was

"rambling and not coherent," resulting in multiple admonishments from the trial judge; (4) counsel did

not conduct an independent investigation and only moved for discovery the Friday before the Monday

omwhich trial was scheduled to start; (5) counsel did not request a jury instruction on lesser-included

offenses; and (6) he did not request a jury instruction on testimony of a jailhouse informant pursuant to

article 38.075(a) of trie';code of criminal procedure. See Tex. Code Crim. Proc. AnnJart. 38.075(a)

(WestSupp. 201 i). l

The record is silent as to trial counsel's strategy, and we may not speculate as to his intentions. His

decision not to request a jury instruction on the lesser-included offenses could have been part of an

"all-or-nothing trial strategy." Ex parte.White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004). There is no

evidence indicating whether or not counsel conducted an independent investigation.. Appellant faults

trial c^ms^ljornot filing a motion for disgoveiy until the trial had almoststarted, but.appejlant has not

indentJfjed^jn^prejudjce that he"suffered~See slncT<1and~^lj.S. at697; Garcia, 57 S.W.3d at440;

see also HammondlTStaie, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.)

(concluding that complete failure to file pretrial motions does not constitute ineffective assistance of

counsel unless the defendant identifies prejudice that he suffered as a result). In any case, without a

fuller record detailing trial counsel's strategy, appellant's claim of ineffective assistance fails as to

these issues. See Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d'at 111.

Appellant also argues that trial counsel was ineffective for conducting a brief voir dire, but "a brief

voire dire need riot be equated with ineffectiveness of counsel." Hollis v. State, 219;S.W.3d 446, 463

(Tex. App.-Austin 2007, no pet.). The record reflects that trial counsel actually used all of the time he

was given by the trial court for voir dire. During that time, he questioned the panel members regarding

whether they understood the State's burden to prove his client's guilt beyond a reasonable doubt

despite their own personal feelings, and questioned specific members with personal ties to law

enforcement whether they could impartiallyconsider police testimony. We hold that appellant's

ineffective assistance of counsel issue fails as to this claim.

Appellant next argues that trial counsel erred by failing to request a jury instruction under article

38.075(a) of the code of criminal procedure regarding Perez's testimony. See Tex. Code Crim. Proc.

Ann. art. 38.075(a). Article 38.075(a) provides that:

A defendant may not be convicted of an offense on the testimony of a person to whom the

defendant made a statement against the defendant's interest during a time when the person was

imprisoned or confined in the same correctional facility as the defendant unless the testimony is

corroborated by other evidence tending to connect the defendant with the offense committed./d.

However, Perez testified to incriminating statements appellant made before they were even arrested.

Therefore, article 38.075(a) was inapplicable. Accordingly, we hold that appellant's ineffective

assistance of counsel issue fails as to this claim.

Appellant next argues that trial counsel's representation was deficient because he had not seen a

video that the State showed to the jury during the punishment phase before the State moved to admit

it. The video apparently consisted of a compilation of recordings of numerous incidents of jailhouse

misconduct by appellant during the trial. Although trial counsel stated that he had not seen the video,

he made several proper objections before the court admitted it. Therefore, even assuming that not

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viewing the video was error, appellant has not established how he suffered prejudice as a result of it.

We hold that appellant's ineffective assistance claim fails as to this issue.

Finally, appellant argues that his counsel was ineffective because his cross-examination of the State's

witnesses was "rambling and not coherent." Counsel's questions specifically challenged Gonzalez's

identification of appellant, the extent of Gonzalez's bodily injury because he refused transportation to a

hospital at the time of the offense, and whether the DVD player and other electronic equipment used

in the assault qualified as deadlyweapons. Counsel also asked questions of Perez that highlighted the

possibility that he was being less than truthful because the State previously indicted him in connection

with this burglary. Admittedly, counsel refused to move on once the trialjudge ruled that counsel's

questions had been asked and answered at several points during the trial. The record nevertheless

shows that counsel's cross-examination effectively challenged the testimony of the State's witnesses

and was far from "rambling and incoherent." Accordingly, we hold that appellant's ineffective

assistance claims fails as to this issue.8

We overrule appellant's fourth issue.

E. Exclusion of Defense Witnesses

In hisfifth issue, appellant argues that the trial court committed error byexcluding twowitnesses

appellant wished to call to testify during the punishment phase of the trial for violation of the witness

sequestration rule.

1. Standard of Review and Applicable Law

When invoked by either party or the court, Texas Rule of Evidence 614 ("the Rule") requires, with

some exceptions, that witnesses be excluded from the courtroom during trial so that they are unable

to hear the testimony of other witnesses. Tex. R. Evid, 614; see Longoria v. State, 148 S.W.3d 657,

660 (Tex. App.-Houston [14th Dist.] pet. refd). In excluding a defense witness from testifying for

violation of Rule 614, a trial court should take intoaccount the defendant's constitutional right to call

witnesses on his behalf and have them testify. Longoria, 148 S.W.3d at 660. "[Generally, witnesses

should not be excluded, [from testifying] solely for violation of the rule."/d. The court of criminal

appeals has announced a two-part inquiryfor determining whether a trial court abused its discretion in

excluding a defense witness for violation of Rule 614:

(1) were there particular circumstances, other than the mere fact of the violation, which would

tend to show the defendant or his counsel consented, procured or otherwise had knowledge of the

witness's: presence in the courtroom, together with knowledge of the content of that witness's

testimony; and (2) if no particular circumstances existed to justify disqualification, was the

excludeditestimony crucial to the defense. Webb v. State, 766 S.W.2d 236, 245 (Tex. Crim. App.

1989); see Longoria, 148 S.W.3d at 660.

2. Analysis

Appellantadrpits that both excluded witnesses were present during the guilt-innocence stage of the

trial, but he argues that neither of them were going to testify regarding the facts of case. At trial,

appellant's counsel also argued that the two witnesses were only going to testify as to "background

and family issues." Appellant did not explain the content of the testimony further, and it is unclear if he

made a sufficient offer of proof to preserve this issue for review. "It is appellant's burden to make a

record, through a bill, of exceptions, of the evidence he or she desires admitted." Montgomery v. State,

383 S.W.3d. 722, 726 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Assuming without deciding that

appellant made a sufficient offer of proof at the trial court level, he does not explain on appeal how the

testimony ofthe excluded witnesses Would have differed from that offered by Ashley Gasca, whom

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the trial court permitted to testifyfor appellant during the punishment stage. Gasca testified that

appellant was a positive role model for her and greatly assisted Gasca and her mother and sister once

appellant came to livewith them after his parents died. Appellant's two excluded witnesses were

Gasca's mother, Dolores Trevino, and Crystal Gasca, whom we infer from the record to be Ashley

Gasca's sister. Appellant does not explain howtheirtestimony would have differed from Ashley's or

how itwould have been crucial to his case. Because appellant has not demonstrated that he meets

the second prong: of the Webb test, and is therefore unable to show he suffered prejudice from the

exclusion, we conclude that the trial court did not abuse its discretion in refusing to permit Trevino and

Crystal Gasca to testify. See Delapaz v. State, 229 S.W.3d 795, 802 (Tex. App.-Eastland 2007), rev'd

on other grounds, 273 S.W.3d 671, 681 (Tex. Crim. App. 2008)) (testimony of excluded defense

witness was not crucial when the witness' testimony would have been cumulative of other testimony

that had already been received). Appellant's final issue is overruled.

F. State's Requested Modification

The State also requests that we modify the judgment to reflect that appellant was convicted of a

first-degree felony. The judgment states that appellant was convicted of a second-degree felony.

Burglary of a habitation is a first-degree felony ifthe premises entered is a habitation and the

defendant commits or attempts to commit an offense other than felony theft while there. Tex. Penal

Code Ann. § 30.02(d)(1)-(2). The facts of this case fulfill both of these requirements. Accordingly, we

grant the State's request and modify the judgment to reflect that appellant was convicted of a

first-degree felony. See Tex. R. App. P. 43.2(b); French, 830 S.W.2d at 609. ,;

III. Conclusion

We modify the judgment to delete the words "Special Issue" in the deadly weapon finding, to reflect

that the State abandoned Count II before the punishment phase and to reflect that punishment was

assessed only on Count I, and to reflect that appellant was convicted of a first-degree felony. We

affirm the judgment as modified.

/s/ Nora L. Longoria

NORA L. LONGORIA .

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Delivered and filed the

3rd day of July, 2013.

Footnotes

1

There was conflicting testimony about whether a brick or a rock was used to break the window.

2

Luna is hearing impaired and was unable to understand what the group was saying.

3

Gonzalez also testified that appellant and the other male also tried to throw Gonzalez's TV but did not

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remove the cord from the,wall first.

4

On cross-examination, Perez testified that he was unsure of whether the indictment was still pending

against him, although it appears from the nature of the questions of appellant's attorney that it had

already been dismissed.

5

The "Wii Player" was also used to hit the victim, but the State argued at trial that the DVD player

constituted the deadly weapon, and the judgment of conviction so reflects.

6

Appellant argues, correctly, that Gonzalez was facing downward when the DVD player hit him and

testified that he was unable to see who threw it. Our analysis still applies because the jury charge in

this case allowed the jury to convict appellant for aggravated assault either as the primary actor or as

a party to it. See Tex. Penal Code Ann. § 7.02(a)(2) (West 2011).

7

Appellant also includes language in his brief that reargues the sufficiency of the evidence supporting

the deadly weapon finding. We have already considered-that argument above in appellant's first issue

and need not repeat our reasoning here. See Tex. R. App. P. 47.1, 47.4.

8

Appellant also complains that when trial counsel did not appear on the morning of jury selection, the

trial court issued a writ of attachment for him. Although this behavior certainly qualifies as a mistake,

appellant does not allege how he suffered prejudice from it. Furthermore, no prejudice is apparent

from the record, especially because trial counsel appeared later that day, the court recalled the writ,

and jury selection proceeded.

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