Affirmed and Memorandum Opinion filed May 19, 2016.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00309-CR

                        ROBERT DOWNING, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 356th District Court
                            Hardin County, Texas
                         Trial Court Cause No. 21382

                  MEMORANDUM OPINION


      Appellant Robert Downing appeals from his conviction for evading arrest
with a motor vehicle. After a jury found appellant guilty, the trial court assessed
his punishment at five years in prison, probated for five years. In two issues,
appellant contends that he received ineffective assistance of counsel and that the
trial court erred in charging the jury on the offense of evading arrest with a motor
vehicle. We affirm.1

                                    I.     Background

      Texas Department of Public Safety Trooper Grant Belvin testified that
around 10 p.m. on October 8, 2011, he observed appellant riding a motorcycle well
in excess of posted speeds on a United States highway, measured at 101 miles per
hour. Belvin activated the overhead lights on his patrol vehicle and pursued
appellant. When appellant exited the highway, Belvin activated his siren and
continued pursuit. Appellant made a right turn and then increased his speed.
When appellant turned again, Belvin was able to “pull up alongside of him.”
Appellant then stopped in a residential yard, and Belvin exited his vehicle with his
gun drawn and instructed appellant to “get on the ground.” Belvin stated that
based on the circumstances, he believed appellant was attempting to evade arrest.
As Belvin was placing appellant under arrest, appellant’s wife came out of a
nearby house. Belvin acknowledged placing his knee on appellant’s back while
handcuffing him but denied intentionally kicking appellant.

      Belvin’s vehicle is equipped with a video camera, and a recording of the
events in question was played for the jury. The video shows the pursuit as well as
the stop in a residential yard. At some point after Belvin orders appellant to the
ground, appellant’s wife tells Belvin that appellant cannot hear what Belvin is
saying because he has earplugs in his ears. Belvin responds that he pulled one out,
but appellant says that Belvin just pulled out the string attached to the earplug and
not the earplug itself. Appellant additionally tells Belvin, “You kicked me in the
ass. You kicked me in the back, and my back hurts.” Belvin replies, “I sure did,”


      1
         The Texas Supreme Court transferred this case to our court from the Ninth Court of
Appeals. See Tex. Gov’t Code § 73.001. Accordingly, we must decide the case in accordance
with the precedent of the Ninth Court of Appeals. See Tex. R. App. P. 41.3.

                                            2
to which appellant adds, “I know you did.” When Belvin asks appellant why he
ran from Belvin, appellant indicates that he could not hear Belvin’s siren because
of the earplugs.

      In his testimony, appellant admitted he was probably speeding at the time in
question but denied reaching 101 miles per hour. Appellant explained that he did
not hear any sirens because of the earplugs and he did not see the lights from
Belvin’s vehicle until he was about to stop anyway. Appellant further asserted that
Belvin had placed his knee in appellant’s back and had kicked appellant several
times in the buttocks while he was on the ground. Appellant’s wife testified that
appellant was wearing earplugs that night. She did not see Belvin kick appellant,
but she said that Belvin admitted kicking appellant.

      During deliberations, the jury asked to see and was shown the videotape a
second time. As will be discussed in more detail below, the jury charge contained
some incorrect language in the definitional section referencing “[t]he offense of
resisting arrest, search, or transportation,” which was not a charged offense in this
case. The jury found appellant guilty of evading arrest with a motor vehicle.

                            II.    Assistance of Counsel

      A. Standards of Review

      In his first issue, appellant contends he received ineffective assistance from
his trial counsel. An appellate court reviews the effectiveness of counsel according
to the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 689
(1984). Under this standard, a defendant must (1) demonstrate that trial counsel’s
performance was deficient and fell below an objective standard of reasonableness,
and (2) “affirmatively prove prejudice by showing a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have


                                         3
been different.” Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      Review of a trial counsel’s performance is highly deferential, as there is a
“strong presumption that counsel’s conduct [fell] within the wide range of
reasonable professional assistance; that is, [appellant] must overcome the
presumption that, under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland, 466 U.S. at 689. Ordinarily, trial
counsel should be afforded an opportunity to explain his or her actions, and in the
absence of such opportunity, an appellate court should 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). The appellant bears the burden of proving by a preponderance
of the evidence that counsel was ineffective, and any allegations of ineffectiveness
must be firmly founded in the record. Thompson, 9 S.W.3d at 813. Rarely will the
trial record on direct appeal contain sufficient information to permit a reviewing
court to fairly evaluate the merits of a claim of ineffective assistance of counsel.
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). In the majority of
cases, the appellant is unable to meet the first prong of the Strickland test because
the record on direct appeal is undeveloped. Mata v. State, 226 S.W.3d 425, 430
(Tex. Crim. App. 2007).

      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). “[I]solated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for
examination.” McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992),

                                         4
overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App.
1994). Finally, “[i]t is not sufficient that the appellant show, with the benefit of
hindsight, that his counsel’s actions or omissions during trial were merely of
questionable competence.” Mata, 226 S.W.3d at 430. Rather, to establish that the
attorney’s acts or omissions were outside the range of professionally competent
assistance, appellant must show that counsel’s errors were so serious that he was
not functioning as counsel. Patrick v. State, 906 S.W.2d 481, 495 (Tex. Crim.
App. 1995).

      B. Pretrial Motions and Requests

      Appellant raises a plethora of complaints against his trial counsel. He begins
by pointing out that trial counsel did not file certain pretrial documents, including a
request for the State to reveal any extraneous offenses it intended to present at trial,
an election for the trial judge to assess punishment, and a pre-trial motion for
community supervision. However, he does not suggest what the filing of any of
these documents would have accomplished. He does not identify any extraneous
offenses the state attempted to introduce at trial, and since the trial judge assessed
punishment and gave appellant community supervision, it is of no moment that
such requests or motions were not made before trial began. Appellant has failed to
meet either prong of Strickland in regards to these pretrial documents.             See
Thompson, 9 S.W.3d at 812; see also Martin v. State, 265 S.W.3d 435, 442 (Tex.
App.—Houston [1st Dist.] 2007, no pet.) (“The mere failure to file pretrial motions
does not categorically constitute ineffective assistance.”); Ryan v. State, 937
S.W.2d 93, 104 (Tex. App.—Beaumont 1996, pet. ref’d) (stating same).

      Appellant next complains that counsel failed to file a motion in limine to
keep the prosecutor from mentioning a recent case of some notoriety in the same
county, a case involving vehicular manslaughter. The prosecutor indeed asked

                                           5
Belvin during his testimony, “You weren’t part of the Crystal Boyett deal here in
Lumberton, were you, where she came flying through from Jasper and killed those
people?” Belvin replied that he was not involved in the case.                  Although, in
hindsight, a motion in limine preventing the State’s mentioning of the unrelated
case may have been a good idea, it is difficult to say that failure to anticipate the
prosecutor’s question fell below the range of professionally competent assistance,
see Patrick, 906 S.W.2d at 495, particularly since the cases were wholly unrelated.
Given the “strong presumption that counsel’s conduct [fell] within the wide range
of reasonable professional assistance,” we conclude that failure to file a motion in
limine regarding the Boyett case did not demonstrate deficient performance by
counsel. Strickland, 466 U.S. at 689; see also Wert v. State, 383 S.W.3d 747, 757
(Tex. App.—Houston [14th Dist.] 2012, no pet.) (“Absent a record regarding
counsel’s trial strategy, we may not speculate as to why counsel did not file
discovery motions, interview State witnesses, or file a motion in limine.”).

       C. Proving up Venue of Offense

       Next, appellant contends that his counsel failed to realize that the State had
failed to establish on direct examination of its first witness that the offense
occurred within Hardin County. Appellant asserts that had counsel so realized, he
could have passed the first witness without cross-examination questions, which
would have prevented the State from proving up venue on redirect examination of
that witness, and moved for a directed verdict on that basis when the State rested
following the testimony of the State’s other witness.2 The State need only prove
that venue is appropriate in the county in which the prosecution occurs by a
preponderance of the evidence. Tex. Code Crim. Proc. Art. 13.17; Meraz v. State,

       2
          Appellant refers to Belvin as the State’s “one and only witness.” However, the State
also called appellant’s wife to testify in its case in chief.

                                              6
415 S.W.3d 502, 506 (Tex. App.—San Antonio 2013, pet. ref’d). “Venue . . . may
be proved by circumstantial as well as direct evidence. It is sufficient if from the
evidence the jury may reasonably conclude that the offense was committed in the
county alleged.” Rippee v. State, 384 S.W.2d 717, 718 (Tex. Crim. App. 1964);
see also Sudds v. State, 140 S.W.3d 813, 816-17 (Tex. App.—Houston [14th Dist.]
2004, no pet.). A directed verdict is proper when, viewing all of the evidence in
the light most favorable to the State after it rests, no rational trier of fact could find
the disputed element of the crime beyond a reasonable doubt. See Canales v. State,
98 S.W.3d 690, 693 (Tex. Crim. App. 2003); see also Berg v. State, No. 01-03-
01140-CR, 2005 WL 375346, at *9 (Tex. App.—Houston [1st Dist.] Feb. 17,
2005, pet. ref’d) (mem. op., not designated for publication).

      Here, Belvin expressly testified that on the day of the offense, he was
assigned to Hardin County. He further stated that at the time of the offense, he was
conducting stationary radar on the south side of the city of Lumberton.
Accordingly, in his direct examination, there was at least some evidence on which
the jury could have concluded that the offense occurred in Hardin County. See
Garcia v. State, No. 13-05-480-CR, 2006 WL 2089592, at *1 (Tex. App.—Corpus
Christi July 27, 2006, no pet.) (mem. op., not designated for publication) (holding
trial court did not err in denying motion for directed verdict where officer testified
he was employed by Aransas County Sheriff’s office and was dispatched at time in
question to an address within the county). In addition, even if the State had not
asked Belvin venue questions on redirect examination, it would have had the
opportunity during the direct testimony of appellant’s wife to prove Hardin County
venue.

      Moreover, a trial judge has discretion to reopen a case to permit additional
evidence on venue. See Ahmad v. State, 295 S.W.3d 731, 746-47 (Tex. App.—

                                            7
Fort Worth 2009, pet. ref’d) (citing Cox v. State, 494 S.W.2d 574, 575 (Tex. Crim.
App. 1973), and Martin v. State, 160 Tex. Crim. 364, 366–67, 271 S.W.2d 279,
280 (1954)). Indeed, a trial judge is required to reopen a case when proffered
evidence is “necessary to a due administration of justice.” Tex. Code. Crim. Proc.
36.02; see also Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003) (“[W]e
conclude that a ‘due administration of justice’ means a judge should reopen the
case if the evidence would materially change the case in the proponent’s favor.”).
Trial counsel may have reasonably determined, based on his knowledge of where
appellant was arrested, that even if the State had not already produced sufficient
evidence to establish venue, it would have been allowed to reopen after counsel
moved for a directed verdict. Counsel may therefore have reasonably decided not
to make such a motion and risk confusing or distracting the jury. Appellant’s
venue argument does not meet the first prong of Strickland. See Thompson, 9
S.W.3d at 812.

       D. Evidence, Argument, and the Jury Charge

       Appellant additionally contends that his counsel was deficient in failing to
replay the video to rebut Belvin’s assertion that he did not intentionally kick
appellant in the back during the arrest. Appellant argues that this would have
impeached Belvin’s credibility. As set forth above, appellant can be heard on the
videotape telling Belvin, “You kicked me in the ass. You kicked me in the back,
and my back hurts,” to which Belvin replies, “I sure did.” The video, however,
was played shortly before Belvin denied kicking appellant; it therefore would have
been fresh in the minds of the jurors, and replaying the video immediately would
have been of questionable value and possibly not permitted by the judge.3

       3
          Page 21 of volume 3 of the reporter’s record reflects that the video was then played for
the jury. Belvin’s denial appears on page 31.

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Furthermore, this same portion of the video has Blevin asking appellant, “why did
you run from me . . . . I had my lights and siren on since [highway] 69, you were
going 101 miles per hour.” Additionally, it should be noted that both appellant and
his wife referenced Belvin’s “I sure did” comment in their testimony, and counsel
mentioned it during closing argument and encouraged the jury to watch the video
again. During deliberations, the jury then requested and was permitted to view the
videotape a second time. We finally note that apart from questioning Belvin’s
credibility, the issue of whether Belvin kicked appellant during his arrest is
irrelevant to the question of appellant’s guilt for the offense charged.

      Appellant next faults his trial counsel for failing to get a photograph entered
into evidence purportedly showing bruises appellant sustained during his arrest.
Appellant attempted to get the photograph admitted through the testimony of
appellant’s wife, but as she did not appear to have a good memory of the
circumstances under which the photograph was taken and had no direct knowledge
of how appellant incurred the bruising depicted, the trial court denied admission.
Appellant insists, however, that counsel should have tried to get the photograph
admitted during appellant’s testimony.           Regardless of the photograph’s
admissibility and whether counsel should have made additional efforts to have it
admitted, the impact of the photograph would have been minimal, even assuming it
showed bruising as the result of intentional kicking by Belvin. The jury saw the
video from which it could have concluded that Belvin indeed had kicked appellant
during the arrest, appellant and his wife also testified to Belvin’s admission, and
the jury saw the video a second time during deliberations. Also, as noted above,
whether Belvin kicked appellant might go to Belvin’s credibility but it had little
else to do with appellant’s guilt. Thus, even if failure to obtain admission of the
photograph could be considered deficient performance, we cannot agree that but


                                           9
for the failure, the result of the proceeding would have been different.          See
Thompson, 9 S.W.3d at 812.

      Appellant next contends that counsel failed to properly prepare him to
testify, interview and prepare his wife to testify, and interview his neighbor, who
can be seen briefly in the video. Appellant, however, does not cite to anything in
the record supporting these assertions. Allegations of ineffectiveness must be
firmly founded in the record. Id. at 813.

      Appellant further argues his counsel was deficient in failing to point out a
number of things related to the video and appellant’s failure to pull over during the
pursuit, including that Belvin was not particularly close to appellant for much of
the pursuit and thus appellant would not have seen Belvin’s flashing lights or heard
his siren, the roads on which they travelled were curvy, and a motorcyclist has a
heightened need to concentrate on the road in front of him and not on sights and
sounds from behind. Appellant’s assertions are debatable. Moreover, the jurors
saw the video twice and were fully capable of coming to their own conclusions
regarding what they observed, the distances involved in the pursuit, the extent to
which appellant should have been able to notice Belvin’s lights, and the curviness
of the road. It must also be noted that both during his examination of witnesses
and his closing argument, counsel in fact did concentrate on such matters as
appellant’s lack of awareness of Belvin until Belvin pulled alongside, appellant’s
use of earplugs and goggles, and his concentration on things other than what was
behind him. Moreover, because this is a direct appeal and there was no record
developed below regarding counsel’s reasons for the decisions he made, we
presume that his actions were part of a valid trial strategy. See id. at 814; see also
Martinez v. State, 313 S.W.3d 358, 364 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d) (presuming on silent record that counsel’s failure to question prospective

                                            10
jurors on particular issue was strategic decision).

      Appellant next points out that his counsel failed to elicit the precise
distances travelled during Belvin’s pursuit. The videotape, however, was clearly
the best evidence of what happened that night, and it is unlikely specific distances
would have had much of an impact on the jury. Appellant asserts his counsel
failed to effectively argue that appellant possessed no intent to evade, but to the
contrary, counsel repeatedly presented evidence and argument indicating
appellant’s lack of awareness of Belvin until Belvin pulled alongside of appellant
near appellant’s home. These arguments do not meet the first prong of Strickland
by demonstrating deficient performance. See Thompson, 9 S.W.3d at 812. Lastly,
appellant complains that his counsel failed to object to the jury charge because it
contained incorrect language in the definitional section. As explained in the next
section of this opinion, the problem with the charge was inconsequential to
appellant’s conviction. Accordingly, even if counsel should have objected, the
failure to object did not result in a different outcome of the trial. See id.

                                   III.   Jury Charge

      In his second issue, appellant contends that the trial court erred in its
submission of the jury charge because the abstract, or definitional, portion of the
charge included language appropriate for a different offense. The charge begins by
stating appellant has been charged with evading arrest with a motor vehicle and
alleges the date and place of the alleged offense. The abstract portion continues,
stating, “A person commits an offense if he intentionally flees from a person he
knows is a peace officer attempting lawfully to arrest or detain him.”          This
language is derived directly from Penal Code section 38.04. Tex. Penal Code §
38.04(a). However, while that Penal Code section further provides that evading
arrest is a third-degree felony if “the actor uses a vehicle while the actor is in

                                           11
flight,” Texas Penal Code section 38.04(b)(2)(A), the charge in this case provided
that: “The offense of resisting arrest, search, or transportation is a felony if the
person uses a vehicle while in flight.” (Emphasis added.)

      Clearly, the italicized language was erroneous as it referenced a different
offense not charged or otherwise raised by evidence or argument in this case.
When error is found in submission of a jury charge, the degree of harm necessary
for reversal depends upon whether the appellant preserved the error by raising a
proper objection in the trial court. Olivas v. State, 202 S.W.3d 137, 144 (Tex.
Crim. App. 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)
(op. on reh’g). If the defendant properly objected, reversal is required if “some
harm” resulted to the defendant’s rights. Olivas, 202 S.W.3d at 144 n.21. If no
objection was raised, reversal is required only if the error was so egregious and
created such harm that the defendant has not had “a fair and impartial trial.”
Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). Regardless of
which standard is to be applied, “the actual degree of harm must be assayed in light
of the entire jury charge, the state of the evidence, including the contested issues
and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d
at 171; see also Elizondo v. State, No. PD-1039-14, 2016 WL 1359341, at *12-16
(Tex. Crim. App. Apr. 6, 2016) (applying factors to determine whether “some
harm” occurred).

      Here, although appellant did not object to the charge, on appeal he contends
his trial counsel provided ineffective assistance of counsel in failing to so object.
Accordingly, we will consider whether the charge error resulted in some harm. See
Green v. State, 891 S.W.3d 289, 299 (Tex. App.—Houston [1st Dist.] 1994, pet.
ref’d) (assessing ineffective assistance claim based on failure to object to erroneous

                                         12
charge under “some harm” standard of review); see also Sammy v. State, No. 01–
11–00774–CR, 2013 WL 6198317, at *7 (Tex. App.—Houston [1st Dist.] Nov. 26,
2013, pet. ref’d) (mem. op., not designated for publication) (following Green).
Because we determine that the erroneous charge language resulted in no harm to
appellant, we likewise conclude that there was no egregious harm.

        The purpose of a jury charge is to instruct jurors on the law applicable to the
case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). A charge
must contain an accurate statement of the law and set out all the essential elements
of the offense. Id. The Court of Criminal Appeals further explained in Vasquez
that:

        The application paragraph is that portion of the jury charge that
        applies the pertinent penal law, abstract definitions, and general legal
        principles to the particular facts and the indictment allegations.
        Because that paragraph specifies the factual circumstances under
        which the jury should convict or acquit, it is the “heart and soul” of
        the jury charge.

Id. at 366-67.

        Here, the language appellant complains about consists of five clearly
incorrect words in the abstract portion of the charge and pertains only to the level
of offense. The remainder of the abstract portion, as well as the pivotal application
section, properly set forth the elements of the offense charged. See Green, 891
S.W.2d at 299 (holding that although mental state definitions were erroneous, no
harm resulted where application portion of charge properly focused on the result of
defendant’s conduct and not the nature of the conduct). Thus, looking at the
charge as a whole, it appears the erroneous language had little or no impact on the
jury and appellant suffered no harm as a result. Moreover, it was clear from the
evidence and argument of counsel at trial that appellant was being prosecuted for


                                          13
evading arrest with a motor vehicle, not “resisting arrest, search, or transportation.”
See Almanza, 686 S.W.2d at 171 (instructing that harm must be assayed in light of
the entire jury charge, the state of the evidence, and argument of counsel). The
record additionally does not reveal any indication that the jury was confused or
otherwise mislead by the charge. See Gelinas v. State, 398 S.W.3d 703, 709 (Tex.
Crim. App. 2013) (plurality op.) (noting the absence of a note from jurors
expressing confusion regarding contradictory language in charge). Furthermore,
“the very clarity of the error may have mitigated any resulting harm.” Id. at 707.
The erroneous language indeed appears so out of place in the charge that the jury
would have been alerted to the fact that it resulted from a typographical error. See
id. For these reasons, we conclude that the erroneous language in the charge
caused no harm to appellant.

      Finding no merit in any of appellant’s arguments, we overrule his two issues
and affirm the trial court’s judgment.




                                         /s/    Martha Hill Jamison
                                                Justice



Panel consists of Justices Jamison, Donovan, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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