      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00463-CR



                                  Javiele Jason Frias, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
      NO. D-1-DC-11-205934, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Javiele Jason Frias of burglary of a habitation under the law of

parties. See Tex. Penal Code §§ 7.01 (parties to offenses); 30.02 (burglary). The jury found the

enhancement paragraphs alleging two previous felony convictions to be true and, pursuant to the

habitual-felony-offender provision of the Penal Code, assessed punishment at 75 years’ confinement

in the Institutional Division of the Texas Department of Criminal Justice and a fine of $10,000. See

id. § 12.42(d). In two issues, appellant contends the evidence was legally insufficient to support the

verdict and that he received ineffective assistance of counsel during the punishment phase. We will

affirm the judgment of conviction.
                      FACTUAL AND PROCEDURAL BACKGROUND

               A Travis County Grand Jury returned an indictment against appellant for burglary of

a habitation. The indictment also included enhancement paragraphs alleging appellant had prior

convictions for robbery, burglary of a vehicle, burglary of a habitation, and theft.

               At trial the jury heard evidence that on the morning of November 3, 2010, someone

broke down the front door of Reynaldo Guerrero’s Austin residence, went upstairs, and stole a laptop

computer. Guerrero testified that when the burglar entered his house, he left the house through the

garage and, when he got outside the house, saw a person standing on the sidewalk by his front door.

Guerrero described the person as approximately 5’7”, heavy set with short hair, and wearing a dark

gray hoodie. When shown a photo array by the police, Guerrero picked appellant out as the person

who had been standing outside his door. Although Guerrero apparently told police at the scene that

he thought appellant was the person who had kicked in his door, at trial Guerrero testified that the

man who entered his house was Ricky Charlez, a relative of his former girlfriend’s, and that Charlez

had been in Guerrero’s house before. Guerrero testified that when he came out of his house during

the burglary, he observed appellant standing on the sidewalk. Later, from a neighbor’s home,

Guerrero saw appellant walking quickly down the street with Charlez, who was running.

               Officer Robert Escamilla, an officer with the Austin Police Department (APD) who

was dispatched to Guerrero’s house, testified that while he was headed to the house the dispatch

provided an update that one or two suspects had fled the scene. Escamilla drove to try to intercept

the suspects and observed a person he believed was a possible suspect. When Escamilla passed the

person, he looked up briefly and then averted his eyes in a manner that Escamilla described as



                                                  2
“extremely suspicious.” Escamilla continued on in his car, then made a u-turn and decided to make

contact with the suspect as soon as another officer was in sight. When the suspect turned as if to go

into a house, Escamilla testified that he jumped out of his patrol car with his service weapon

unholstered and told the suspect to stop. Rather than stop, the suspect ran through a front yard and

between two houses, then climbed over a fence, ignoring Escamilla’s second and third orders to stop.

According to Escamilla, it is unusual for a person who has done nothing wrong to run from the

police. Escamilla testified that he saw the suspect’s face at that time and identified him in court as

appellant. Escamilla chased appellant but soon lost sight of him when appellant climbed a fence.

Escamilla then radioed a description of appellant—Hispanic male, unshaven, wearing a dark hoodie,

blue jeans and a ball cap—to the other officers. Escamilla testified that the burglary suspects had

earlier been described on the police radio as one wearing a dark hoodie and one wearing a gray

hoodie. Escamilla testified that appellant was wearing a ball cap and stated that he could not recall

whether the radio-transmitted description of the suspects made any mention of either suspect wearing

a ball cap.

               APD Officer Danny Doyle testified that he was called to the area of the burglary at

9:58 a.m. Doyle heard Escamilla say over the radio that he had seen someone matching the

description of the suspects. Doyle watched Escamilla chase appellant and when the suspect evaded

Escamilla, Doyle drove to the back side of the houses that appellant had run behind. Doyle testified

that appellant “stutter stepped not knowing which way to go.” Doyle yelled for appellant to stop,

but he ran. Doyle pursued appellant, who jumped over two gates. Doyle then began setting up a

perimeter. He testified that the man he chased was wearing an orange sweater and described him



                                                  3
as having shaved hair, being short and stocky, and “most likely Hispanic, light-skinned black male.”

Doyle also testified that after being apprehended, appellant admitted that he was in fact the person

who had run from Doyle.

                APD Officer John Papp participated in setting up the perimeter to apprehend

appellant. Papp was located at a Genie Car Wash, which was a few blocks from Guerrero’s house.

Papp testified that he found a ball cap near a fence in the area near the car wash. Papp found the cap

after one of the car wash employees told him that he saw someone run by and jump the fence. APD

Officer Pete Dennis, who was also part of the perimeter, drove his patrol car to the far side of the

Genie Car Wash and stayed there. Dennis testified that a witness flagged him down and indicated

to him that he had seen a person go over a fence. Dennis looked over the fence and saw someone

running through a backyard. Dennis climbed over the fence and pursued the person while yelling

at him to stop. The suspect eventually ran to the front porch area of a house south of the car wash,

where Dennis and another officer cornered him and took him into custody. At trial Dennis identified

appellant as the person he apprehended. Dennis testified that appellant was placed in the back of a

patrol car and driven back to Guerrero’s house, where Guerrero identified him as the person that

kicked his door down.

                A Genie Car Wash employee testified that he saw someone jump over a fence near

the car wash. He had earlier noticed that there was a lot of police activity in the area and he believed

the person that jumped the fence was probably the person the police were looking for. The employee

flagged down a police officer and told him about the person jumping the fence. A customer at the

car wash testified that he saw someone jump the fence, pursued him, and saw him lying on the



                                                   4
ground by a storage shed. According to this witness, the person was wearing a gray sweatshirt. The

customer told the police officers where the person was hiding and watched them go and take the

person into custody.

               After presenting testimony from the officers and witnesses who were in the area on

the day of the burglary, the State played for the jury a tape recording of a telephone conversation

between appellant and Jessica Fierro recorded in the Travis County jail while he was being detained

after his arrest. During the call, appellant states that he did not go in Guerrero’s house, but only

“took them over there.” In the call appellant tells Fierro that he did not know the friends he was with

were going to break into the house. Appellant and Fierro also discussed whether his friends had been

arrested. Appellant told Fierro that his van was parked near the Genie Car Wash and that there was

a gun in the van. Fierro testified that appellant normally drove a van.

               An APD crime scene specialist collected a black ski mask and two black gloves that

were found by a fence at a house down the street from Guerrero’s. DNA analysis done on the gloves

indicated that appellant could not be excluded as a contributor. The ski mask had DNA for which

neither appellant nor Ricky Charlez could be excluded as contributors.1

               The jury found appellant guilty as charged. During the punishment phase, appellant

pleaded not true to the enhancement paragraphs alleging prior convictions. An investigator from the

Travis County District Attorney’s office compared appellant’s fingerprints to those taken upon


       1
         The odds of selecting at random a person who could be a contributor to the DNA profile
found on the ski mask was found to be one in 2.598 million for Hispanics. The odds of selecting at
random a person who could be the source of a major component of the DNA found on one of the
gloves was found to be one in 3.675 trillion for Hispanics and for the other glove one in 3.818 billion
for Hispanics.

                                                  5
conviction of the prior offenses alleged and identified appellant as the person previously convicted

of those offenses. Also during punishment, the State introduced evidence of a home invasion

robbery that had occurred less than a week before Guerrero’s house was burglarized. This evidence

was admitted without objection as evidence of a prior unadjudicated extraneous offense. The jury

found the prior convictions alleged in the enhancement paragraphs to be true and assessed

punishment at 75 years’ imprisonment and a fine of $10,000. The district court sentenced appellant

accordingly, and this appeal followed.


                                          DISCUSSION

Sufficiency of the Evidence Supporting Conviction for Burglary of a Habitation

               In his first issue, appellant challenges the sufficiency of the evidence supporting

his conviction for burglary of a habitation under the law of parties. See Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (legal sufficiency standard set forth in Jackson

v. Virginia, 443 U.S. 307 (1979) is only standard to evaluate sufficiency of evidence in criminal

case). When reviewing the sufficiency of the evidence, we view all the evidence in the light most

favorable to the verdict and determine, based on that evidence and any reasonable inferences from

it, 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); see also Jackson, 443 U.S. at

319. The jury is the exclusive judge of the credibility of witnesses and the weight to be given the

evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Further, we defer to

the jury’s responsibility to fairly resolve or reconcile conflicts in the evidence. Id. This standard

applies to both circumstantial and direct evidence.

                                                 6
                A person commits the offense of burglary of a habitation if he “without the effective

consent of the owner . . . enters a building or habitation and commits or attempts to commit a felony,

theft, or an assault.” See Tex. Penal Code § 30.02(a)(3). A person is criminally responsible as a

party to an offense if the offense is committed by his own conduct, by the conduct of another for

which he is criminally responsible, or both. Id. § 7.01. 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. Id. § 7.02.

                Because appellant was not the principal actor here, the State was required to prove

conduct constituting an offense plus an act committed by appellant with intent to promote or assist

such conduct. See Beier v. State, 687 S.W.2d 2, 3 (Tex. Crim. App. 1985). In determining whether

the accused participated as a party, the court may look to events occurring before, during, and after

the commission of the offense and may rely on actions of the defendant that show an understanding

and common design to do the prohibited act. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim.

App. 1994) (op. on reh’g); Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).

Evidence is sufficient to sustain a conviction under the law of parties if it shows that the accused was

physically present at the commission of the offense and encouraged commission of the offense by

either words or other agreement. See Ransom, 920 S.W.2d at 302; Tarpley v. State, 565 S.W.2d 525,

529 (Tex. Crim. App. 1978). Because an agreement between the parties to act together in a common

design can seldom be proven by words, the State often must rely on the actions of the

parties showing an understanding and common design to commit the offense. Brooks v. State,



                                                   7
580 S.W.2d 825, 832 (Tex. Crim. App. 1979). Circumstantial evidence may be used to prove the

defendant is a party to an offense. Cordova, 698 S.W.2d at 111; Wygal v. State, 555 S.W.2d 465,

469 (Tex. Crim. App. 1977). Any agreement to accomplish a common purpose must have been

made before or contemporaneously with the criminal conduct. Cordova, 698 S.W.2d at 111; Beier,

687 S.W.2d at 3-4; Urtado v. State, 605 S.W.2d 907, 911 (Tex. Crim. App. 1980).

                Mere presence at the scene of the offense does not establish guilt as a party to the

offense. Thompson v. State, 697 S.W.2d 413, 417 (Tex. Crim. App. 1985) (“[M]ere presence of a

person at the scene of the crime, either before, during, or after the commission of the offense, or even

flight from the scene, without more, is insufficient to sustain a conviction of one as a party to the

offense.”); Porter v. State, 634 S.W.2d 846, 849 (Tex. Crim. App. 1982). But presence at the scene

is a circumstance tending to prove guilt that, when combined with other facts, may suffice to show

that the accused was a participant. See Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App.

1987); Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. 1979). In this case appellant was not

only present at the scene of the burglary,2 the jury heard evidence that he had driven the person who

committed the burglary to the Genie Car Wash in his van, the van was parked near the Genie Car

Wash, and appellant was standing outside Guerrero’s house while the burglary took place. Later,

appellant walked quickly away from the scene in the same direction as the person who had kicked

down Guerrero’s door. When confronted by police farther down the street, appellant ran from an

officer who had an unholstered service weapon and was telling him to stop, and thereafter ran from




       2
         Appellant does not challenge the sufficiency of the evidence supporting the elements of the
offense of burglary of a habitation by another person.

                                                   8
at least two other police officers. The evidence showed that appellant was running in the direction

of the van he had left parked near the Genie Car Wash, and that he continued to try to evade police

officers until he was cornered in a yard. While the jury heard appellant state in the recorded

telephone conversation that he did not know his friend was planning to burglarize a house when he

gave him a ride, the jury was not required to believe that this self-serving statement by appellant was

truthful. Viewing the evidence in the light most favorable to the judgment, as we are required to,

it is sufficient to allow a rational jury to find beyond a reasonable doubt that appellant was a party

to the offense and sufficient to support the conviction. See Alexander v. State, 607 S.W.2d 551, 553

(Tex. Crim. App. 1980) (evidence that defendant drove acquaintances to house and waited while

they committed burglary and left with them was sufficient to support conviction of burglary under

law of parties). We overrule appellant’s first issue.


Ineffective Assistance of Counsel

               In his second issue, appellant contends that he received ineffective assistance of

counsel when his trial counsel failed to request notice of the State’s intent to introduce, during the

punishment phase, evidence of an unadjudicated extraneous offense allegedly committed by

appellant and by his counsel’s failure to object to the admission of evidence about the offense.

Appellant contends that no rational fact finder could have concluded, beyond a reasonable doubt, that

he committed the extraneous offense as the State alleged and, consequently, had the evidence been

objected to, the trial court would have excluded it. Appellant asserts that if the evidence had been

excluded, there is a reasonable probability that the jury would have assessed a less severe

punishment than 75 years’ imprisonment and a $10,000 fine.

                                                  9
               To prevail on an ineffective-assistance-of-counsel claim, appellant must prove by a

preponderance of the evidence that counsel was ineffective. Perez v. State, 310 S.W.3d 890, 892

(Tex. Crim. App. 2010) (citing Strickland v. Washington, 466 U.S. 668 (1984)). There are two

required components of an ineffectiveness claim: performance and prejudice. Id. First, appellant

must prove that counsel’s performance was deficient. Strickland, 466 U.S. at 687; Perez,

310 S.W.3d at 892. To satisfy this prong of the analysis, appellant “must show that counsel’s

representation fell below an objective standard of reasonableness” based on “prevailing professional

norms.” Strickland, 466 U.S. at 688; Perez, 310 S.W.3d at 893. For this performance inquiry we

consider all of the circumstances, with “a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.”       Strickland, 466 U.S. at 688-89; Perez,

310 S.W.3d at 893.

               “Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. To succeed under the

prejudice component, appellant “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

A reasonable probability is “a probability sufficient to undermine confidence in the outcome of the

proceeding.” Id. “[A] verdict or conclusion only weakly supported by the record is more likely to

have been affected by errors than one with overwhelming record support.” Id. at 696.

               A Strickland claim must be “firmly founded in the record” and the “record must

affirmatively demonstrate” the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808,



                                                 10
813 (Tex. Crim. App. 1999). For this reason, direct appeal is usually an inadequate vehicle for

raising ineffective-assistance claims. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.

2005). “This is true with regard to the question of deficient performance—in which counsel’s

conduct is reviewed with great deference, without the distorting effects of hindsight—where

counsel’s reasons for failing to do something do not appear in the record.” Id. Trial counsel should

ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.

Id. “Absent such an 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.’” Id.

(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

               Appellant argues that counsel was ineffective by failing to request notice of the

State’s intent to introduce evidence of unadjudicated extraneous offenses during the punishment

phase, failing to request that the trial court hear, outside the presence of the jury, the evidence the

State intended to present in order to make a determination of whether a rational factfinder could find

beyond a reasonable doubt that appellant had committed the extraneous offense, and failing to object

to the evidence when it was introduced by the State.

               Article 37.07 of the Texas Code of Criminal Procedure provides:


       [E]vidence may be offered by the state and the defendant as to any matter the court
       deems relevant to sentencing, including but not limited to the prior criminal record
       of the defendant, his general reputation, his character, an opinion regarding his
       character, the circumstances of the offenses for which he is being tried, and,
       notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of
       an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence
       to have been committed by the defendant or for which he could be held criminally
       responsible, regardless of whether he has previously been charged with or finally
       convicted of the crime or act.

                                                  11
Tex. Code Crim. Proc. art. 37.07, § 3(a)(1) (emphasis added). Appellant and the State agree that,

had appellant’s counsel timely requested notice of the prosecution’s intent to introduce an extraneous

offense during punishment, he would have been entitled to such notice. See id. art. 37.07, § 3(g).

While counsel for appellant did file a “Motion for Discovery” in which he requested that the court

order “[n]otice by the State of its intent to introduce evidence of any other crimes, wrongs, or acts

allegedly committed by Defendant, other than those arising in the same transaction for which

Defendant is charged in this case,” there is nothing in the record to indicate that he obtained a ruling

from the trial court on this motion. The motion, addressed to the court, was not sufficient by itself to

require notice from the State under article 37.07, section 3(g).                  See Rea v. State,

No. 03-11-00186-CR, 2012 WL 3601126, at *2 (Tex. App.—Austin Aug. 12, 2012, no pet.) (mem.

op., not designated for publication) (motion for trial court to order State to give notice does not

trigger 37.07 duty unless trial court orders State to give such notice); Ford v. State, 106 S.W.3d 765,

766-67 (Tex. App.—Texarkana 2003, no pet.) (same). Even reviewing trial counsel’s failure to

secure the notice to which appellant was entitled with the required deference, we do not believe that

any competent attorney adequately representing his client would fail to take the steps required to

obligate the State to provide notice regarding the State’s intent to introduce evidence of

unadjudicated extraneous offenses. See Autry v. State, 27 S.W.3d 177, 182 (Tex. App.—San

Antonio 2000, pet. ref’d) (purposefully deciding not to request disclosure by State of intent to

introduce evidence of extraneous offense may amount to “questionable trial strategy”); cf. Ex parte

Menchaca, 854 S.W.2d 128, 129 (Tex. Crim. App. 1993) (no strategic basis for failing to file motion

in limine to prohibit introduction of evidence of prior conviction for different offense). “The



                                                  12
purpose of article 37.07, section 3(g) is to avoid unfair surprise, that is, trial by ambush.” Nance

v. State, 946 S.W.2d 490 (Tex. App.—Fort Worth 1997, pet. ref’d). Thus, the purpose of the notice

requirement is to allow the defendant adequate time to prepare for the State’s introduction of the

evidence at trial. See Chimney v. State, 6 S.W.3d 681, 693-94 (Tex. App.—Waco 1999, pet. ref’d).

The statute provides a mechanism for a defendant to discover what evidence the State is aware of

and whether it intends to offer it to affect his punishment. A defendant is not required to disclose

anything to the State when making the request; rather, the request triggers a one-way flow of

information from the State to the defendant. We can think of no strategic basis for not requesting

notice under article 37.07, section 3(g). We conclude that trial counsel’s failure was unreasonable

and not justified by any conceivable “trial strategy.” Strickland, 466 U.S. at 689. Thus, appellant

has demonstrated that his trial counsel’s representation fell below an objective standard of

reasonableness. Id.

               Appellant also asserts that trial counsel was ineffective when he failed to object to

the evidence of the unadjudicated extraneous offense when it was offered by the State. Appellant

contends that because the evidence connecting him to the unadjudicated extraneous offense was so

weak, his trial counsel should have objected to its admission and, if he had, the trial court would

have been obligated to exclude it. See Mitchell v. State, 931 S.W.2d 950, 953-54 (Tex. Crim. App.

1996) (trial judge has responsibility of determining threshold admissibility of extraneous offenses

in punishment phase). While it is the factfinder’s role to determine whether the evidence

demonstrates beyond a reasonable doubt that defendant committed the unadjudicated extraneous

offense, the trial judge is not permitted to allow the jury to hear evidence of such offenses if the



                                                13
evidence connecting the defendant to the offense is so weak that a rational juror could not make that

finding. See Fischer v. State, 268 S.W.3d 552, 556-57 (Tex. Crim. App. 2008) (trial court can admit

extraneous offense evidence in circumstances where jury could reasonably find beyond reasonable

doubt that defendant committed offense); Harrell v. State, 884 S.W.2d 154, 160 (Tex. Crim. App.

1994) (proof of culpable connection between accused and extraneous offense is essential

precondition to establishing relevance of extraneous offense and conditional fact trial court is

required to determine is whether jury could reasonably find beyond reasonable doubt that defendant

committed offense). If the evidence is such that a rational trier of fact could find beyond a

reasonable doubt that the defendant committed the unadjudicated extraneous offense, evidence of

the offense is admissible. Otherwise, it is not. See Mann v. State, 13 S.W.3d 89, 94 (Tex.

App.—Austin 2000) (trial court must make initial determination at proffer of evidence that jury

could reasonably find beyond reasonable doubt that defendant committed extraneous offense), aff’d

58 S.W.3d 132 (Tex. Crim. App. 2001). Consequently, in order for trial counsel’s failure to object

to the admissibility of the evidence to be deficient, we must conclude that the evidence was, in fact,

inadmissible. See Ortiz v. State, 93 S.W.3d 79, 83 (Tex. Crim. App. 2002) (“When an ineffective

assistance claim alleges that counsel was deficient in failing to object to the admission of evidence,

the defendant must show, as part of his claim, that the evidence was inadmissible.”).

               With this standard in mind, we consider the unadjudicated extraneous-offense

evidence introduced by the State. The State called three witnesses who had been the victims of a

single-home invasion the week before Guerrero’s house was burglarized. Each of the three witnesses

testified regarding the events of that evening. In essence, the three witnesses were at home sleeping



                                                 14
when three men broke into their house by breaking the door down. Two of the witnesses testified

that one of the invaders knocked on their bedroom door stating they were police and demanding

entry. Once inside the bedroom, the invader ordered the witnesses to lie down on the floor. The

invader was wearing a black ski mask and gloves and began demanding that the occupants of the

home tell him where the safe was and where the drugs and money were. The female witness testified

that the invader hit her with the gun several times and that one of the two men that entered the

bedroom was touching her and making sexual remarks to her. She testified that one of the men

seemed to her to be Hispanic and the other was Caucasian. After awhile the Caucasian male took

her to a different room, put her in the closet, and began sexually assaulting her until the Hispanic

male told him to stop. The invaders stole some laptops, an iPad, and some bottles of wine. The

witness was told by the police that the items that were stolen were later found in an apartment where

Richard Charlez lived. After the three witnesses described the home invasion, APD detective

Cliff Jaeger testified that he worked the investigations of both the Guerrero burglary and the earlier

home invasion. Jaeger testified that Richard Charlez was taken into custody at his apartment, where

officers found some iPads, ski masks, gloves, some articles of clothing, and cameras. Another

officer testified that Charlez lived at the apartment with a man whose last name is Mendoza.

               The State contends that this evidence could justify a finding by the trial court that the

jury could reasonably find beyond a reasonable doubt that appellant committed the home invasion

such that it was admissible during the punishment phase as evidence of an unadjudicated extraneous

offense. The State relies on the following facts: (1) the offenses took place within a week of each

other, and both occurred in South Austin; (2) in both instances, the front door was broken down;



                                                  15
(3) both offenses involved a gun; (4) the suspects in the earlier home invasion wore black ski masks

and gloves that looked similar to the ones found near Guerrero’s home; (5) laptop computers were

stolen in both instances; (6) stolen items were found in Charlez’s apartment; and (7) Charlez’s and

appellant’s DNA were found on a ski mask and gloves recovered from the Guerrero burglary.

               We conclude that, based on the evidence presented by the State, no rational juror

could reasonably have found beyond a reasonable doubt that appellant participated in the earlier

home invasion. The evidence connecting appellant to that event is simply too thin to support a

conviction for that offense. The State’s reliance on evidence so general (the crimes involved

breaking down a door in a South Austin home, carrying a gun, and stealing a laptop computer) does

not lead to a strong enough inference to permit a reasonable jury to conclude that appellant was

involved in the earlier home invasion. While a jury could reasonably conclude beyond a reasonable

doubt that Charlez was involved in both burglaries, the same cannot be said about appellant. Had

trial counsel objected to the State’s introduction of this evidence at trial, the trial court would have

been required to find it inadmissible and exclude it.

               Accordingly, we must consider whether counsel’s failure to ensure that this evidence

was excluded meets the second prong of the Strickland test—that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Here, both errors that have been identified led to the same result: admission of the extraneous

offense evidence. In the present case, this second prong would be met if we could conclude that, had

the extraneous offense evidence not been admitted, the jury would have assessed a less severe

punishment than it did.



                                                  16
               The court’s charge to the jury on punishment included the following instruction:


       You are instructed that if there is testimony before you in this case regarding the
       defendant having committed other acts or participated in other transactions other than
       the offense alleged against him in the indictment in this case, that you cannot
       consider such other acts or transactions, if any, unless you first find and believe
       beyond a reasonable doubt that the defendant committed such acts or participated in
       such transactions, if any, but if you do not so believe, or if you have a reasonable
       doubt thereof, you will not consider such testimony for any purpose.


As we have explained, the extraneous offense should not have been admitted because, based on the

evidence presented by the State, no rational juror could have reasonably concluded beyond a

reasonable doubt that appellant was connected with the proffered extraneous offense. Thus, if the

jurors did in fact consider that offense, they would had been disregarding the court’s instruction not

to consider other acts or transactions that they did not believe, beyond a reasonable doubt, appellant

had committed. On appeal, we generally presume the jury followed the trial court’s instructions in

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

(jury presumed to disregard parole during deliberation when so instructed); Waldo v. State,

746 S.W.2d 750, 755 (Tex. Crim. App. 1988) (jury presumed to follow instruction to disregard

evidence). The presumption is rebuttable, but the appellant must rebut the presumption by pointing

to evidence that the jury failed to follow the court’s instruction. See Colburn, 966 S.W.2d at 520.

Appellant has identified no evidence to rebut that presumption other than the length of the sentence

imposed by the jury. The punishment range in this case was 25 to 99 years’ imprisonment. The jury

assessed punishment at 75 years’ imprisonment, a time period appreciably shorter than the maximum

available. We conclude that the length of the sentence imposed does not, by itself, rebut



                                                 17
the presumption that the jury followed the trial court’s instruction and disregarded the

extraneous-offense evidence.

               Moreover, even in the absence of the instruction, appellant has not, on this record,

demonstrated that there is a reasonable probability that, but for the attorney’s errors, his sentence

would have been less than the 75 years’ imprisonment assessed by the jury. Strickland, 466 U.S. at

694. Appellant had four previous felony convictions—for robbery, burglary of a vehicle, burglary

of a habitation, and felony theft, two of which were sequential convictions. He was therefore

sentenced under the habitual-felony-offender provision of the Penal Code. The jury imposed a

sentence significantly shorter than the maximum sentence available. We hold that appellant has not

met his burden to show that his sentence would have been different if his attorney had objected to

admission of the extraneous offense evidence. Consequently, appellant has not satisfied the second

prong of the Strickland test requiring a showing that counsel’s errors were so serious that they

undermine our confidence in the outcome of the proceeding. Id. Thus, we hold that the failure to

request notice under article 37.07 and the failure to object to the evidence when offered were not

errors sufficient to require reversal. We overrule appellant’s second appellate issue.


Imposition of Fine

               In this case, the jury found both enhancement paragraphs of the indictment to be

“true.” Thus, appellant’s punishment, enhanced by two prior sequential felony convictions, was

assessed pursuant to section 12.42(d) of the Penal Code, the habitual offender punishment provision.

See Tex. Penal Code § 12.42(d). This subsection does not provide for the imposition of a fine. Id.




                                                 18
Consequently, the portion of the trial court’s judgment in which appellant was assessed a fine was

not authorized by law. See Ex parte Johnson, 697 S.W.2d 605, 607–08 (Tex. Crim. App. 1985).

                Article 37.10 of the Code of Criminal Procedure mandates appellate courts to reform

a verdict and judgment containing unauthorized punishment.3 Tex. Code Crim. Proc. art. 37.10(b);

see Johnson, 697 S.W.2d at 608 (court of criminal appeals specifically utilized article 37.10(b) to

delete fine improperly assessed under enhancement statute). Accordingly, we reform the verdict and

modify the judgment of conviction to delete the unauthorized fine assessed in this case. See Mizell

v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003) (“A trial or appellate court which otherwise

has jurisdiction over a criminal conviction may always notice and correct an illegal sentence.”); see

also Tex. R. App. P. 43.2(b).


Clerical Error in Judgment

       Further, we note that the judgment of conviction in this case contains a clerical error. The

appellant’s middle name, “Jason,” has been omitted from the judgment. This Court has authority

to modify incorrect judgments when the necessary information is available to do so. See Tex. R.




       3
           Specifically, subsection (b) provides:

       If the jury assesses punishment in a case and in the verdict assesses both punishment
       that is authorized by law for the offense and punishment that is not authorized by law
       for the offense, the court shall reform the verdict to show the punishment authorized
       by law and to omit the punishment not authorized by law. If the trial court is required
       to reform a verdict under this subsection and fails to do so, the appellate court shall
       reform the verdict as provided by this subsection.

Tex. Code Crim. Proc. art. 37.10(b).


                                                    19
App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Since the necessary

information is available here, we modify the judgment of conviction to correctly reflect appellant’s

name as “Javiele Jason Frias.”


                                         CONCLUSION

       Having found the evidence sufficient to support the conviction and having rejected

appellant’s claim of ineffective assistance of counsel, we modify the trial court’s judgment of

conviction to delete the unauthorized fine assessed and to correctly reflect appellant’s name. We

affirm the judgment as so modified.



                                      _____________________________________________

                                      J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Goodwin and Field

Modified and, as Modified, Affirmed

Filed: July 10, 2014

Do Not Publish




                                                20
