






Chris Haliburton v. The State of Texas















IN THE
TENTH COURT OF APPEALS
 

No. 10-99-007-CR

     CHRIS HALIBURTON,
                                                                         Appellant
     v.

     THE STATE OF TEXAS,
                                                                         Appellee
 

From the 54th District Court
McLennan County, Texas
Trial Court # 98-207-C
                                                                                                                
                                                                                                            
O P I N I O N
                                                                                                                
   
      Chris Haliburton was charged with two counts of burglary of a habitation.  Tex. Pen.
Code Ann. § 30.02 (Vernon Supp. 2000).  The jury found him not guilty of count one, but
guilty of count two.  Punishment was assessed at twelve years imprisonment.  He appeals,
asserting three issues for review.  Finding no error in the court below, we will affirm the
judgment.
 
Facts
      On January 28, 1998, Haliburton entered Joy Miles’ home a little after 9:00 in the
evening.  Miles had gone to bed, but had not fallen asleep.  She heard Haliburton in the house,
but assumed it was her husband returning from work.  She looked into the living room and saw
that it was not her husband.  Miles got a good look at the man in her living room, but stayed
where she was until she heard the door slam.  Hoping he was gone, but afraid that he was still
in the house, Miles called her best friend, Sarah Anderegg, who told her to call the police
immediately.  Once the police arrived, Miles determined that her purse had been taken.  Miles
identified Haliburton from a photographic lineup as the man she saw in her house that evening.
Improper Sentence
      In his first issue, Haliburton argues that the trial court erred in cumulating his sentence in
this burglary case with the sentence in another case, cause number 94-81-C, an unauthorized
use of a motor vehicle (UUMV) charge, not before us in this appeal.  In its written judgment,
the trial court specifically provided:
The sentence imposed herein shall begin when the judgment and sentence
imposed or suspended in the following matter has ceased to operate, to-wit: 94-81-C
in the 54th District Court of McLennan County, Texas.

Haliburton complains that this cumulation order is invalid because he had already served time
on the UUMV.  
      What happened on the UUMV charge is irrelevant to our decision regarding the
cumulation order.  The cases relied on by Haliburton to support his claim of error hold a
cumulation order is invalid where the defendant has served any part of the sentence on which
the cumulation order is attached.  See Ex parte Barley, 842 S.W.2d 694 (Tex. Crim. App.
1992); Ex parte Reynolds, 462 S.W.2d 605 (Tex. Crim. App. 1970).  In this case, the
cumulation order is attached to the burglary offense, not the UUMV.  Haliburton had never
served any part of the sentence in the burglary offense prior to the entry of the cumulation
order.  Thus, whether or not Haliburton served any of his sentence for an offense other than
the burglary is not dispositive.
      It is noted that Haliburton was credited with some time served while awaiting his trial and
sentence.  We have found no case law to support a holding that any time-served credit on a
sentence is the equivalent of serving a portion of the sentence prior to the cumulation order. 
We decline to adopt this proposition as well.  Haliburton’s first issue is overruled.
Alibi Instruction
      In two issues, Haliburton complains that he was wrongfully denied a jury instruction on
the issue of alibi.  He initially complains that the court should have instructed the jury even
though no request was made for inclusion of such an instruction.  
      In Giesberg v. State, the Court of Criminal Appeals held:
When the new Penal Code was adopted, the Legislature chose not to designate alibi as a
statutory defense.  In the Texas Penal Code, alibi is not enumerated either as a defense or
as an affirmative defense.  In the revised Penal Code, the statutory defense distinction is
reserved for defensive theories involving a defendant's admission that he or she committed
the crime, but with explanations to justify a defendant's actions or absolve a defendant of
culpability.  It also includes defensive theories which do not involve admission of
complicity in the commission of the alleged crime, but which nonetheless attempt to
explain why a defendant is not criminally culpable.
 
. . . If a defendant wishes to rely upon alibi as his defense, he bears the duty of going
forward with evidence raising an alibi in order to create a reasonable doubt of the
defendant's presence at the time and place where the crime was committed.  If the
defendant's actual presence at the time and place where the crime was committed is an
essential part of the prosecution's case, the State must prove the defendant's actual
presence at the scene of the crime beyond a reasonable doubt.  From this, it can be seen
that an alibi can only create a doubt about whether the State has met its burden of proving
that a defendant committed the offense where the defendant's actual presence at the time
and place of the commission of the offense is an issue in the State's case.

Giesberg v. State, 984 S.W.2d 245, 248 (Tex. Crim. App. 1998) (citations omitted).  Thus,
alibi is a defensive issue which negates an element of the State's burden of proof, but does not
warrant special jury instructions.  Id. at 249.  The defensive issue of alibi involves nothing
more than the presentation of evidence and argument that a defendant was not present at the
scene of the crime to commit it.  Id.  This is simply the negation of the State's allegation that a
defendant did then and there upon a certain date and in a certain location commit a certain
crime.  Id. at 250 (citing Miller v. State, 660 S.W.2d 95, 96 (Tex. Crim. App. 1983)). 
Furthermore, because such an instruction is unnecessary, the Court held, it would constitute an
unwarranted comment on the weight of the evidence by the trial court.  Id.  Thus, it cannot be
said that the court erred in failing to give the instruction.  Issue two is overruled. 
      Haliburton also urges us to find that trial counsel was ineffective in failing to request an
instruction on alibi.  Because we have determined that he was not entitled to such an
instruction, it cannot be said that counsel was deficient in failing to request it.  See Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (setting forth the
standard for reviewing the effectiveness of counsel); Hernandez v. State, 726 S.W.2d 53 (Tex.
Crim. App. 1986) (adopting the standard set forth in Strickland).  Issue three is overruled.
 

Conclusion
      Having overruled each issue presented, we affirm the judgment.
 
                                                                       TOM GRAY
                                                                       Justice

Before Chief Justice Davis,
          Justice Vance, and
          Justice Gray
Affirmed 
Opinion delivered and filed June 28, 2000
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