Affirmed and Opinion filed September 30, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00219-CR

ODELL BURGESS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 1376308

O P I N I O N

Appellant, Odell Burgess, appeals his conviction for evading arrest with a 

motor vehicle, contending (1) the evidence is legally insufficient to support the 

conviction, (2) the trial court improperly commented on appellant’s failure to 

testify, (3) the trial court erred by admitting evidence of an extraneous offense 

during the guilt-innocence phase, and (4) appellant received ineffective assistance 

of counsel. We affirm.
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I. BACKGROUND

According to the State’s evidence, at approximately 6:30 p.m. on September 

7, 2012, Houston police officer Marc Stallworth was seated in his police car at a 

business on the westbound feeder of the South Loop freeway. He heard a “rush of 

air” from the freeway, which he associated with a speeding vehicle. He noticed a 

black pickup truck, which was travelling westbound on the freeway, exit at Stella 

Link Road. Officer Stallworth estimated the vehicle was travelling over 100 miles 

per hour. Appellant was later identified as the driver, and there were two male 

passengers. Officer Stallworth entered his police car and followed the truck. 

Appellant then used the Stella Link u-turn to begin travelling eastbound on 

the feeder. After Officer Stallworth completed the u-turn, he activated his lights 

and siren. At that point, he was four car lengths behind the truck, with no other 

vehicles in between. Appellant immediately “floor[ed] it”—from about 45 miles 

per hour (his speed when making the u-turn) to about 65 miles per hour. The 

occupants also threw items out of the truck onto the side of the feeder. Appellant’s 

speed then varied between 50 to 65 miles per hour as he wove through traffic, with

Officer Stallworth in pursuit, for approximately half a mile. There were several 

side streets and businesses along the feeder where appellant could have safely 

stopped, but he failed to do so. He continued toward the next intersection—the 

feeder and South Main Street—where traffic was backed up at the light.

Appellant turned into the parking lot of a service station located on the 

corner of that intersection. He wove through vehicles in the lot and attempted to 

turn right onto South Main. A constable who had observed the activity used his 

car to cut off the truck and forced it back into the parking lot. Appellant then 

attempted to exit back onto the feeder but stopped when he was cut off by another 
3

police car that had joined the pursuit. The officers ordered the occupants to exit 

the truck, and appellant was arrested, without further incident.

The State also presented evidence that, within twenty minutes before Officer 

Stallworth’s pursuit, the occupants of the truck committed a robbery, less than five 

miles from where they were eventually detained. Claudine James was seated in 

her vehicle in the parking lot of a post office when she saw another woman park 

her “two-seat” Mercedes and enter the post office. Then, a black pickup truck 

drove up and blocked the woman’s car. A passenger (not appellant) exited the 

truck, looked around, and entered the woman’s car. A “child, a young girl” then 

“jumped” out of the car, screaming, with eyes as “big” as “plates.” The man took a 

purse and cell phone from the car and re-entered the truck, and the driver left. 

James followed the truck as it traveled at an extreme speed on the South 

Loop but eventually lost sight of it near the Stella Link exit. When James took that 

exit, she intended to alert Officer Stallworth whom she saw on the feeder, but he 

then activated his lights and u-turned. James did not observe Officer Stallworth’s 

chase and next saw the truck when it had been stopped at the service station. 

James informed the officers about the robbery and identified appellant’s truck as 

the one involved and one of his passengers as the man who entered the woman’s 

car at the post office. 

In the area where Officer Stallworth had observed the occupants throw items 

from the truck, officers found a purse and business cards belonging to the robbery 

victim. The officers’ testimony indicated that a $100 bill found in one of the truck 

passenger’s shoes was stolen in the robbery. The officers also found three new 

$100 bills in appellant’s pocket.

A jury found appellant guilty of the third-degree felony offense of evading 

arrest or detention with a motor vehicle. Appellant pleaded “true” to two 
4

enhancement paragraphs. The jury assessed punishment at fifty-three years’ 

confinement.

II. SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends the evidence is insufficient to support 

his conviction. 

A. Standard of Review and Applicable Law

When reviewing sufficiency of the evidence, we view all evidence in the 

light most favorable to the verdict and determine, based on that evidence and any 

reasonable inferences therefrom, whether any rational fact finder could have found 

the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 

743, 746 (Tex. Crim. App. 2011). We do not sit as the thirteenth juror and may not 

substitute our judgment for that of the fact finder by re-evaluating weight and 

credibility of evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

2010). We defer to the jury’s responsibility to fairly resolve conflicts in testimony, 

weigh the evidence, and draw all reasonable inferences from basic facts to ultimate 

facts. Id. Our duty as reviewing court is to ensure the evidence presented actually 

supports a conclusion that the defendant committed the crime. Williams v. State, 

235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

As charged in the present case, a person commits the offense of evading 

arrest or detention “if he intentionally flees from a person he knows is a peace 

officer . . . attempting lawfully to . . . detain him.” Tex. Penal Code Ann. § 

38.04(a) (West Supp. 2014). The offense is a third degree felony “if the actor uses 

a vehicle while the actor is in flight.” Id. § 38.04(b)(2)(A) (West Supp. 2014).
5

B. Analysis

Appellant asserts there is no evidence he intentionally fled from a person he

knew was a peace officer. Appellant characterizes his actions as needing time to 

recognize Officer Stallworth as a police officer, move to the right lane of the 

feeder, and voluntarily stop at the service station. However, the jury could have 

rationally inferred that appellant immediately recognized Officer Stallworth as a 

police officer because the officer activated his lights and siren while only a few car 

lengths behind appellant, with no vehicles in between. The jury was free to reject 

that appellant was merely attempting to pull over because he accelerated when the 

officer activated his lights and siren, led the officer on a high-speed chase while

weaving through feeder traffic, attempted to flee onto another street through the 

service station, and stopped only when forced to do so by another police car. 

Moreover, the jury could have rationally inferred that appellant fled from Officer 

Stallworth because appellant and his passengers had just committed a robbery and 

thought the officer intended to detain them for that offense. The fact that the 

occupants of the truck threw out items stolen in the robbery as soon as the officer 

activated his lights and siren supported such inference. 

Additionally, appellant contends the evidence is insufficient to support a 

finding that Officer Stallworth was lawfully attempting to detain appellant. Officer 

Stallworth’s testimony demonstrated he was attempting to detain appellant for 

speeding within the officer’s view. See Tex. Code Crim. Proc. Art. 14.01(b) (West 

2005) (“A peace officer may arrest an offender without a warrant for any offense 

committed in his presence or within his view.”). Appellant challenges that the 

evidence was sufficient to establish he was speeding. 

Appellant suggests Officer Stallworth could not have heard a “rush of air” 

while seated in his car. However, the jury could have concluded that either the
6

door was open or Officer Stallworth heard the “rush of air” even with the door 

closed. Further, Officer Stallworth then observed appellant traveling at least 100 

miles per hour. Appellant argues Officer Stallworth could not have known 

appellant’s speed because the officer “did not have a radar detector, did not pace 

Appellant’s vehicle, and has never been trained on how to do a visual estimation of 

speed.” However, the jury was free to believe Officer Stallworth’s testimony that 

he estimated the speed based on twenty years’ experience as a police officer.

James’s testimony also supported Officer Stallworth’s estimation because James

had to travel about 104 miles per hour to keep up with appellant on the freeway. 

Finally, appellant argues he could not have been traveling 100 miles per 

hour because Officer Stallworth agreed that traffic was heavy that time of day. 

However, the officer explained that traffic was not at a “standstill” and indicated

there was no traffic as appellant exited the freeway at that speed. The jury could 

have concluded that appellant found a path in which to travel 100 miles per hour. 

In summary, the evidence is sufficient to support the jury’s verdict. We 

overrule appellant’s first issue.

III. ALLEGED COMMENT ON APPELLANT’S FAILURE TO TESTIFY

In his second issue, appellant contends that language in the jury charge 

constituted an improper comment on appellant’s failure to testify. 

A. Standard of Review and Applicable Law

A trial court’s comment on a defendant’s failure to testify violates his 

constitutional and statutory privileges against self-incrimination. See U.S. Const. 

amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08 (West 2005); 

Bustamante v. State, 48 S.W.3d 761, 764 (Tex. Crim. App. 2001). The allegedly 

offending language must be viewed from the jury’s standpoint, and the implication 
7

that the comment referred to the defendant’s failure to testify must be clear. 

Bustamante, 48 S.W.3d at 765. It is insufficient that the language might be 

construed as an implied or indirect allusion. Id. “The test is whether the language 

used was manifestly intended or was of such a character that the jury would 

necessarily and naturally take it as a comment on the defendant’s failure to testify.”

Id. In applying this standard, the comment must be analyzed in context. See id.

Appellant did not object at trial to the charge. Unobjected-to charge error 

requires reversal only if it was “fundamental”—error that was so egregious and 

created such harm that the defendant “has not had a fair and impartial trial.” 

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Egregiously 

harmful errors “are those that affect the very basis of the case, deprive the 

defendant of a valuable right, vitally affect the defensive theory, or make a case for 

conviction clearly and significantly more persuasive.” Taylor v. State, 332 S.W.3d 

483, 490 (Tex. Crim. App. 2011). Egregious harm is determined on a case-by-case 

basis and is a difficult standard to prove. Id. at 489. In analyzing harm, we must 

consider (1) the charge itself, (2) the state of the evidence, including contested 

issues and the weight of the probative evidence, (3) arguments of counsel, and (4) 

any other relevant information revealed by the trial record as a whole. Id.

B. Analysis

Appellant maintains that the following language in the charge constituted a 

comment on his failure to testify:

You are instructed that certain evidence was admitted before 

you in regard to the defendant’s having been charged and convicted of 

an offense or offenses other than the one for which he is now on trial. 

Such evidence cannot be considered by you against the defendant as 

any evidence of guilt in this case. Said evidence was admitted before 

you for the purpose of aiding you, if it does aid you, in passing upon 
8

the weight you will give his testimony, and you will not consider the 

same for any other purpose.

According to appellant, the reference to “weight you will give his testimony” is a 

comment that the trial court expected appellant to testify but he failed to do so. 

We agree that the paragraph was erroneous because it incorrectly suggested 

that appellant testified. We note that the instruction also refers to evidence of prior 

convictions though it is undisputed that no such evidence was offered or admitted. 

However, we disagree the paragraph amounted to a comment on appellant’s failure 

to testify or caused egregious harm. When considered in context, the paragraph 

did not imply that the trial court expected appellant to testify, much less raise any 

implications from the fact he did not testify. 

As the State acknowledges, the charge was “over inclusive” by setting forth 

various alternative instructions that were not all applicable to this case. However, 

the trial court also gave the jury instructions that were applicable to the case, 

including instructions regarding appellant’s right not to testify. Specifically, 

during voir dire, the trial court informed the jury:

If the Defendant does not choose to testify, the jury may not consider 

that fact as evidence of guilty [sic], nor may the jury or any juror in 

the deliberations comment or in any way allude to that fact.

Then, in the jury charge, immediately before the paragraph at issue, was the 

following language:

Our law provides that a defendant may testify in his own behalf 

if he elects to do so. This, however, is a right accorded a defendant, 

and in the event he elects not to testify, that fact cannot be taken as a 

circumstance against him. 

In this case, the defendant has elected not to testify and you are 

instructed that you cannot and must not refer to or allude to that fact 

throughout your deliberations or take it into consideration for any 

purpose whatsoever as a circumstance against him.
9

In light of these applicable instructions, we cannot say that the jury 

“necessarily and naturally” took the erroneous instruction as a comment on 

appellant’s failure to testify rather than merely an alternative, but inapplicable, 

instruction for a case in which a defendant does testify. See Bustamante, 48 

S.W.3d at 765. We conclude the instruction was not “manifestly intended or . . . of 

such a character that the jury would necessarily and naturally take it as a comment 

on the defendant’s failure to testify.” See id.; Roland v. State, No. 14–11–00584–

CR, 2012 WL 2784404, at *7 (Tex. App.—Houston [14th Dist.] July 10, 2012, no 

pet.) (mem. op., not designated for publication) (holding identical paragraph was 

not comment on appellant’s failure to testify). Further, we presume the jury 

heeded the trial court’s other instructions and did not consider appellant’s failure to 

testify. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998)

(explaining appellate court generally presumes jury followed trial court’s 

instructions in the manner presented). 

Although appellant’s primary complaint concerns the portion of the 

paragraph suggesting appellant testified, we also conclude there was no egregious 

harm resulting from the portion incorrectly stating that evidence of a previous 

conviction was admitted. When considered in context, the trial court instructed 

that such conviction could not be considered as evidence of appellant’s guilt and 

could only be considered in deciding what weight to assign his testimony. Again, 

no such conviction was admitted, and appellant did not testify. Thus, we cannot 

say that the jury “necessarily and naturally” took the erroneous instruction as a 

comment on appellant’s failure to testify rather than an alternative, but 

inapplicable, instruction for when such a conviction is admitted and the defendant 

does testify. Moreover, in another part of the charge, the trial court instructed, 

“During your deliberations in this case, you must not consider, discuss, nor relate 
10

any matters not in evidence before you.” We presume the jury followed this 

instruction and did not speculate appellant might have a previous conviction when 

there was no evidence of any such conviction. Accordingly, we overrule 

appellant’s second issue.

IV. EXTRANEOUS-OFFENSE EVIDENCE

In his third issue, appellant contends the trial court erred by admitting during 

the guilt-innocence phase the evidence that appellant had committed a robbery 

shortly before Officer Stallworth’s pursuit of the truck.

A. Alleged Violation of Limine Ruling

Under this issue, appellant first asserts the State violated the ruling on 

appellant’s motion in limine by mentioning the robbery during its opening 

statement and eliciting testimony regarding that offense without first approaching 

the bench. Appellant’s motion in limine included an item that apparently 

referenced the robbery. However, the record does not demonstrate the trial court 

granted that limine request. On the motion, there is the handwritten notation 

“Granted” next to some of the requested limine items—but not the one at issue. 

There is no separate order on the motion in limine and no record of any oral 

rulings. Accordingly, we reject the complaint that the State violated such a ruling

and turn to appellant’s challenge to admission of the evidence. 

B. Admission of Evidence

1. Applicable Law and Standard of Review

Texas Rule of Evidence 404(b) provides that “Evidence of other crimes, 

wrongs or acts is not admissible to prove the character of a person in order to show 

action in conformity therewith. It may, however, be admissible for other purposes, 

such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, 
11

or absence of mistake or accident . . . ,” provided the State gives the requisite 

notice. Tex. R. Evid. 404(b). When a defendant makes a timely objection that 

such evidence is inadmissible under Rule 404(b), the State must satisfy the trial 

court that the evidence has relevance apart from its tendency “to prove character . . 

. to show action in conformity therewith.” See id.; Montgomery v. State, 810 

S.W.2d 372, 387 (Tex. Crim. App. 1991). 

Even if the State meets that burden, to admit such evidence, the trial court 

must also determine that the jury could find beyond a reasonable doubt that the 

defendant committed the extraneous offense. See Fischer v. State, 268 S.W.3d 

552, 558 (Tex. Crim. App. 2008); Harrell v. State, 884 S.W.2d 154, 160 (Tex.

Crim. App. 1994). When reviewing that determination, we are not limited to 

considering the State’s proffer as of the ruling and may consider all of the 

evidence, including evidence admitted after the ruling. See Fischer, 268 S.W.3d at 

553–58. We review the trial court’s decision to admit the evidence for abuse of 

discretion. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). We 

will not disturb the decision if it falls within the bounds of reasonable 

disagreement. Id. 

2. Analysis

The State contends, and the trial court agreed, that evidence of appellant’s 

participation in the robbery established motive to subsequently evade Officer 

Stallworth. Appellant does not challenge whether the evidence was admissible for 

that purpose. Rather, his sole contention is the trial court did not properly 

determine that the jury could find beyond a reasonable doubt that appellant 

committed the robbery.1 

 

1

In the charge on guilt or innocence, the trial court instructed that the jury could not 

consider evidence that appellant committed an extraneous offense unless it found beyond a 
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The challenged evidence was admitted via the testimony of police officers

James Crowson and Marcus Ryans, who arrived at the service station after 

appellant’s truck had been stopped, and the testimony of Claudine James. First, 

the officers collectively testified about the following facts supporting that the 

occupants of the truck committed a robbery: James’s report of the robbery and 

identification of appellant’s truck; the time and location of the robbery relative to 

Officer Stallworth’s pursuit of the truck; and the discovery of the robbery victim’s 

purse and business cards on the side of the road (Officer Stallworth having seen the 

truck’s occupants throw items out) and her $100 bill in one of the passenger’s 

shoes. Then, James provided the details of the incident at the post office described 

above. Based on all of this testimony, the trial court did not abuse its discretion by 

determining the jury could find beyond a reasonable doubt that appellant 

committed robbery, assuming, without deciding, he preserved error on his 

complaint.

2

 

reasonable doubt that he committed the offense. Thus, appellant challenges only the trial court’s 

initial determination that a jury could make such finding, as a threshold to admitting the 

evidence. That instruction also informed the jury it could consider the extraneous offense only 

“in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident of [appellant]” relative to the charged offense.

2

The State acknowledges there was a discussion off the record before the officers’

testimony concerning the State’s proffer and appellant made some objection. However, our 

record contains no indication regarding the substance of that discussion and thus whether 

appellant objected under Rule 404(b). During the officers’ testimony, appellant made some 

intermittent objections on “speculation” and “hearsay” grounds, but not under Rule 404(b). The 

State then informed the trial court, outside the jury’s presence, of its intent to call James. Again 

there is no record of any previous discussion, but the trial court’s comments indicate it was 

aware of the nature of the evidence. Appellant’s counsel made a statement which the trial court 

apparently understood as a Rule 404(b) objection because the court replied James’s testimony

was relevant to “the motive of fleeing.” However, the record does not reflect this objection was 

lodged before, or when, evidence about the robbery was first proffered—through the officers’ 

testimony. Nevertheless, we need not decide whether appellant sufficiently and timely invoked 

the right to a “reasonable doubt” determination, as a threshold to admissibility, because the trial 

court did not abuse its discretion by making that determination.
13

A person commits robbery “if, in the course of committing theft . . . and 

with intent to obtain or maintain control of the property, he: (1) intentionally, 

knowingly, or recklessly causes bodily injury to another; or (2) intentionally or 

knowingly threatens or places another in fear of imminent bodily injury or death.”

Tex. Penal Code Ann § 29.02(a) (West 2011). A person commits theft “if he 

unlawfully appropriates property with intent to deprive the owner of property.” Id.

§ 31.03(a) (West Supp. 2014). Appropriation of property is unlawful if, inter alia,

“it is without the owner’s effective consent.” Id. § 31.03(b)(1) (West Supp. 2014).

According to James’s testimony, appellant was not the person who entered 

the woman’s car while she was in the post office and physically appropriated her 

property. However, a person is criminally responsible for an offense committed by 

the conduct of another if “acting with intent to promote or assist the commission of

the offense, he solicits, encourages, directs, aids, or attempts to aid the other person 

to commit the offense . . . .” Tex. Penal Code Ann. § 7.02(a)(2) (West 2011). In 

determining whether an accused is a party to an offense, events before, during, and 

after the commission of the offense may be considered. Beardsley v. State, 738 

S.W.2d 681, 684 (Tex. Crim. App. 1987). The jury could reasonably conclude 

appellant was criminally responsible if his passenger’s actions constituted a 

robbery because appellant (1) used his truck to block the woman’s car while the 

passenger took her property, and (2) drove the getaway vehicle. Accordingly, we 

will focus on the passenger’s actions. 

Appellant suggests there was insufficient evidence that the passenger

appropriated the owner’s property without her consent. However, the following 

facts supported the theft element of robbery: (1) once the woman went in the post 

office, the perpetrator looked around, quickly entered her car, took a purse and cell 

phone, and re-entered appellant’s truck, which sped away, (2) the purse and 
14

business cards thrown out of the truck when Officer Stallworth began his pursuit

belonged to that woman, and (3) the $100 bill found on a passenger was taken 

from that woman. Appellant emphasizes there was no evidence the three $100

bills found on appellant were taken in a robbery.3 Nonetheless, the fact that a 

purse, cellphone, and $100 were taken from the victim would establish the theft 

element. 

Appellant also suggests there was no evidence “anyone suffered bodily 

injury.” Such a finding is not necessary to establish robbery because the offense 

may also be committed if “with intent to obtain or maintain control of the 

property,” the actor “intentionally or knowingly threatens or places another in fear 

of imminent bodily injury or death.” See Tex. Penal Code Ann § 29.02(a). 

Appellant advances no argument on appeal regarding this alternative means of 

committing robbery. 

Regardless, James’s testimony demonstrated a “child, a young girl” was 

alone in the front seat of the woman’s car when the perpetrator entered. The 

record is silent on whether the perpetrator made any affirmative threats to the child 

because the child did not testify and there was no other direct evidence regarding 

what transpired inside the car.4 However, the statute encompasses “not just 

explicit threats, but whatever implicit threats may lead to the victim being placed 

in fear.” Howard v. State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011); see Tex. 

Penal Code Ann § 29.02(a). “So long as the [perpetrator’s] actions are of such 

nature as in reason and common experience is likely to induce a person to part with 

his property against his will, any actual or perceived threat of imminent bodily 

 

3

The trial court sustained appellant’s objection to testimony of the officers on whether 

the $300 was connected to the robbery. 

4

The child testified at the punishment phase, but not at the guilt-innocence phase.
15

injury will satisfy this element of the offense.” Howard, 333 S.W.3d at 138 

(internal quotations omitted). Of the two alternative mental states sufficient to 

prove an implicit threat, the lesser culpable state of “knowingly” requires that the 

actor “is aware that his conduct is reasonably certain to place someone in fear, and 

that someone actually is placed in fear.” Id. at 139–40.

The jury could reasonably conclude this requirement was satisfied under the 

circumstances of this case based on the following rationale inferences: (1) even if 

the perpetrator did not know a child was in the car as he approached, he knew of 

her presence as he entered the “two-seat” car; (2) he realized the mere action of an 

unfamiliar man suddenly entering the front seat of a small car with a child who was 

alone (while her mother was inside an establishment) would place the child in fear 

of imminent bodily injury; (3) the child was actually placed in such fear because 

she jumped out of the car, screaming with eyes large with fright; and (4) the 

perpetrator capitalized on the child’s fear and the fact that it caused her to exit the 

car to complete the theft—to “obtain or maintain control of the property;” see Tex. 

Penal Code Ann § 29.02(a). See Williams v. State, 827 S.W.2d 614, 615–17 (Tex. 

App.—Houston [1st Dist.] 1992, pet. ref’d) (holding evidence was sufficient to 

establish robbery where defendant, although he made no verbal threat, had eyes as 

“red as fire” and seemed to be “under the influence of something” when he placed 

his face close to shopkeeper’s face and demanded money, and shopkeeper’s fear 

was evident from fact he reached for a weapon; the conduct was “intensely and 

immediately focused on inducing [the shopkeeper] to part with the money”).

In summary, because the trial court did not abuse its discretion by admitting 

evidence of the robbery, we overrule appellant’s third issue.
16

V. INEFFECTIVE-ASSISTANCE CLAIM

In his fourth through seventh issues, appellant argues he was denied 

effective assistance of counsel. 

A. Applicable Law and Standard of Review 

To prevail on an ineffective-assistance claim, a defendant must prove (1) 

counsel’s representation fell below the objective standard of reasonableness, and 

(2) there is a reasonable probability that, but for counsel’s deficiency, the result of 

the proceeding would have been different. Strickland v. Washington, 466 U.S. 

668, 687, 694 (1984); see Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.

1986) (applying Strickland standard to ineffective-assistance claims under the 

Texas Constitution). In considering an ineffective-assistance claim, we indulge a 

strong presumption that counsel’s actions fell within the wide range of reasonable 

professional behavior and were motivated by sound trial strategy. Strickland, 466 

U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); 

Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this 

presumption, a claim of ineffective assistance must be firmly demonstrated in the 

record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate 

vehicle for raising such a claim because the record is generally undeveloped and 

cannot adequately reflect the motives behind trial counsel’s actions. Rylander v. 

State, 101 S.W.3d 107, 110–11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 

813–14. When the record is silent regarding trial counsel’s strategy, we will not 

find deficient performance unless the challenged conduct was “so outrageous that 

no competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 

390, 392 (Tex. Crim. App. 2005).
17

B. Analysis

Appellant contends his trial counsel was deficient in four respects:

1. Statement during voir dire

First, appellant complains that counsel informed the jury during voir dire

that appellant would face an enhanced punishment. Before asking the panel 

members whether they would consider the full range of punishment, counsel 

stated,

I want to talk about range of punishment. As you know, [the 

prosecutor] told you that in this particular case, if there is a 

conviction, the range of punishment is between 25 and 99 years . . .

As appellant asserts, the prosecutor did not state the range was necessarily 

25 to 99 years. Instead, the prosecutor stated that would be the range in “special” 

or “certain” circumstances. Appellant’s counsel represented the range was 25 to 

99 years, without qualification, although that range would be applicable only if the 

jury found the two enhancement paragraphs were true. See Tex. Penal Code Ann. 

§ 12.34 (West 2011) (prescribing range of punishment for third degree felony as 

two to ten years); Id. § 12.42(d) (West Supp. 2014) (prescribing range of 

punishment for third degree felony as 25 to 99 years if defendant has two prior 

felony convictions). 

However, as appellant did not file a motion for new trial, the record contains 

no evidence of counsel’s strategy. As such, on a silent record, appellant has not

overcome the presumption that counsel performed reasonably because there may 

have been tactical reasons for his actions. For instance, appellant subsequently 

pleaded “true” to the two enhancement paragraphs. Appellant may have already 

decided to make those pleas, and, thus, counsel decided to inform the panel of the 

enhanced range to focus on assessing whether potential jurors would consider the 
18

lower end. Or, counsel may have been trying to ascertain whether certain panel 

members might be less likely to convict because they thought the minimum of 25 

years was too severe for this offense, as some members subsequently expressed. 

Consequently, we cannot conclude counsel’s statement was “so outrageous that no 

competent attorney would have” made it. See Goodspeed, 187 S.W.3d at 392.

Additionally, we disagree with appellant’s suggestion that reference to the

enhanced punishment range “prejudiced the jury before the trial could even begin” 

and contributed to the guilty verdict. The jury was not informed during voir dire 

that any enhanced range was due to previous felony convictions. Further, we 

presume the jury followed the trial court’s instructions and considered only the 

admitted evidence when deciding guilt or innocence, which did not include 

previous convictions. See Ex parte Bratcher, No. AP–76,994, 2013 WL 3282972, 

at *12 (Tex. Crim. App. June 26, 2013) (rejecting claim that defense counsel was 

ineffective by allowing State to inform panel during voir dire about enhanced 

range of punishment, although jury did not assess punishment, because jury was 

not informed of prior convictions and court would presume jury followed trial 

court’s instruction to consider only admitted evidence in assessing guilt).

2. Failure to object to all extraneous-offense evidence

Appellant also complains that his counsel failed to object to every instance 

during the guilt-innocence phase in which the State offered evidence regarding the 

extraneous robbery. Appellant posits that, if counsel had properly objected, 

appellant would not have been convicted or his direct challenge to admission of the 

evidence “would have been better preserved.” We need not decide whether 

counsel failed to properly object because failure to object to admissible evidence is 

not ineffective assistance and we have concluded the trial court acted within its 

discretion by admitting the evidence. See McFarland v. State, 845 S.W.2d 824, 
19

846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 

S.W.2d 9 (Tex. Crim. App. 1994); Webb v. State, 991 S.W.2d 408, 419 (Tex.

App.—Houston [14th Dist.] 1999, pet. ref’d). 

3. Failure to object to jury charge

Next, appellant contends his counsel was ineffective by failing to object to 

the erroneous instruction in the charge discussed above—the paragraph incorrectly 

suggesting evidence was admitted that appellant had a previous conviction and that 

he testified. We conclude that even if counsel’s performance were deficient, 

appellant has not satisfied the prejudice prong of Strickland. 

Appellant argues he was prejudiced because, if his counsel had objected, the 

incorrect instruction could have been removed; or, alternatively, if the trial court 

had refused to remove the instruction, appellant would not have been required to 

establish egregious harm on appeal. See Barrios, 283 S.W.3d at 350 (stating that if 

a defendant objects at trial to error in the charge, reversal is required if the error 

“‘is calculated to injure the rights of the defendant,” which means that there is 

“some harm”). 

We disagree the result of the proceeding would have been different if 

counsel had objected because (1) the incorrect instruction did not contribute to the 

guilty verdict, and (2) similarly, appellant would not prevail on appeal even if he 

were only required to show “some harm.” We recognize that, relative to 

appellant’s second issue directly challenging the instruction, we concluded there 

was no “egregious harm.” However, we apply the same reasoning to conclude 

there was no harm: (1) the instruction did not constitute a comment on appellant’s 

failure to testify; (2) we cannot say the jury “necessarily and naturally” took the 

erroneous instruction as a comment on appellant’s failure to testify rather than an 

alternative, but inapplicable, instruction for when a previous conviction is admitted
20

and the defendant does testify; and (3) we presume the jury followed the trial 

court’s instructions and did not factor appellant’s failure to testify into its 

deliberations or speculate he had previous convictions when no such evidence was 

admitted in the guilt-innocence phase.

4. Failure to strike a prospective juror

Finally, appellant complains that counsel failed to strike a prospective 

juror—venire person number 25. During voir dire, counsel questioned the panel

members regarding their views on the credibility of police officers. The following 

exchange occurred:

[COUNSEL]: And you’re Juror No. 25, when did you work with a 

police officer?

VENIREPERSON: I’ve worked with police officers approximately 

25 years as a volunteer running part of juvenile probation and working 

with battered women and that sort of thing, running some of their 

programs, being involved with that; and two members in my family 

are law enforcement.

[COUNSEL]: You feel a police officer will not arrest someone if he 

did not have good reason to?

VENIREPERSON: Yes.

Counsel did not move to strike this venire person for cause or use a peremptory 

strike, and she served on the jury. 

The reason that appellant regards this venire person as biased is not exactly 

clear; i.e., whether the person was predisposed to (1) believe Officer Stallworth 

was lawfully attempting to detain appellant—an element of the offense of evading 

arrest, (2) believe appellant was guilty of evading arrest based on the fact that he 

was arrested for that offense, or (3) generally assign more weight to a police 

officer’s testimony. Whether the venire person held one or more of these pre-
21

conceived notions, appellant has not established counsel performed deficiently by 

failing to ensure the person did not serve on the jury. 

The Texas Court of Criminal Appeals has refused, on a cold record, to hold 

counsel was ineffective by failing to challenge a venire person who indicated more 

of a bias than the venire person in the present case and served on the defendant’s 

jury. See Delrio v. State, 840 S.W.2d 443, 444–47 (Tex. Crim. App. 1992). 

During voir dire at the defendant’s trial for cocaine possession, the Delrio venire 

person admitted he was a former narcotics officer, knew the defendant by virtue of 

this employment, and could not be fair and impartial. See id. at 444–45. The 

Court of Criminal Appeals could conceive of some tactical reasons for preferring 

the venire person serve on the jury: “Although we would certainly expect the 

occasion to be rare, we cannot say . . . that under no circumstances could defense 

counsel justifiably fail to exercise a challenge for cause or peremptory strike 

against a venireman who deemed himself incapable of serving on the jury in a fair 

and impartial manner.” Id. at 446–47. Thus, the court held there was insufficient 

basis to overcome the presumption that counsel was better positioned than an 

appellate court to judge the pragmatism of the case and made all significant 

decisions in the exercise of reasonable professional judgment. See id. at 447.

Likewise, on our cold record, we cannot foreclose the possibility that 

appellant’s counsel had tactical reasons for failing to challenge the venire person at 

issue for cause or use a peremptory strike. For example, counsel may have 

believed the venire person, despite her expressed views, was preferable to others 

who were subsequent in the panel order or those against whom counsel used 

peremptory strikes. Without an explanation for counsel’s actions, we will not 

second guess his decision or conclude his conduct was “so outrageous that no 

competent attorney would have engaged in it.” See id.; Thibodeaux v. State, No.
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14–07–00647–CR, 2009 WL 1748747, at *14–15 (Tex. App.—Houston [14th 

Dist.] June 23, 2009, pet. ref’d) (mem. op., not designated for publication) (relying 

on Delrio and recognizing, on cold record, counsel may have had strategy for 

failing to further question and strike nine panel members who indicated they could 

not completely afford defendant the presumption of innocence and one panel 

member who indicated he believed defendant was guilty, such as preferring those 

panel members to others); see also State v. Morales, 253 S.W.3d 686, 696–98 

(Tex. Crim. App. 2008) (citing Delrio when holding Morales counsel was not 

ineffective for failing to exercise peremptory challenge, after challenge for cause 

denied, against panel member who was district attorney in office prosecuting 

defendant although she may have been impliedly biased; there was some evidence 

counsel made a tactical, albeit difficult, decision because he preferred this panel 

member serve on jury than those against whom he exercised peremptory strikes). 

In summary, having rejected all of appellant’s ineffective-assistance 

contentions, we overrule his fourth through seventh issues.

We affirm the trial court’s judgment.

/s/ John Donovan

Justice

Panel consists of Justices McCally, Busby, and Donovan.

Publish — Tex. R. App. P. 47.2(b).