                             NUMBER 13-14-00403-CR

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

NOEL CAMPBELL,                                                              Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                     On appeal from the 117th District Court
                           of Nueces County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Benavides and Perkes
             Memorandum Opinion by Justice Benavides

         A Nueces County jury convicted appellant, Noel Campbell, of burglary of a

habitation. See TEX. PEN. CODE ANN. § 30.02(a)(3) (West, Westlaw through Ch. 46 2015

R.S.).    The trial court sentenced appellant to thirty years’ imprisonment in the Texas

Department of Criminal Justice–Institutional Division.   Appellant raises three issues on
appeal:   (1) the evidence was legally insufficient for a jury to find appellant guilty of

burglary; (2) the trial court improperly admitted character evidence; and (3) his trial

counsel was ineffective. We affirm.

                                     I. BACKGROUND

       On January 5, 2014, Police Officer Ernesto Coronado, with the Corpus Christi

Police Department, was dispatched to Herbert Campbell’s (“Herbert”) residence in

regards to a burglary of a habitation.   Herbert’s son is Noel Campbell, appellant.

       At the scene, Officer Coronado noticed a broken window pane.              During his

testimony, Officer Coronado described Herbert as being frightened and hesitant to open

the door, but he did not observe any visible injuries to Herbert’s body.   Herbert stated he

was awoken by a noise he heard inside the house and found appellant standing next to

Herbert’s bed. Officer Coronado testified that Herbert further stated that appellant did

not have permission to be in the residence, and Herbert hadn’t slept in several days

because he was afraid of appellant.      Herbert was afraid of appellant because appellant

had previously broken into Herbert’s home three days prior to this incident.        Further,

Officer Coronado testified that Herbert stated appellant would “beat Herbert’s ass” if

Herbert did not give him money to replace a lost phone.          Under cross-examination,

Officer Coronado stated that Herbert indicated that he had not been assaulted.        In fact,

Herbert indicated he was able to get appellant to calm down and leave without further

incidents or threats.

       The following day, Herbert followed up with his report at the Corpus Christi Police

Station with Detective Robert McFarland.          According to Detective McFarland, at the

station, Herbert stated that at the time of the burglary, appellant threatened to “beat

                                              2
Herbert’s ass” if Herbert didn’t give appellant money for a cell phone.          Additionally,

Detective McFarland testified that Herbert also stated appellant had pushed him with both

hands from the back while Herbert was in bed.        According to Herbert, this caused him

some pain and soreness to his ribs and legs.

        Last, Herbert testified that he woke up to a noise in his home and found appellant

standing by his bed asking for money.        According to Herbert, appellant started using

profanity and threatened to tear his “face off prison style”. As appellant was attempting

to secure valuables, a struggle ensued in which appellant threw Herbert to the floor,

causing him to hit the bedstead.    During cross-examination, Herbert admitted that he did

not remember whether or not he told Officer Coronado he had been assaulted on the

night of the incident. Later, he indicated he did not initially report the assault on the night

in question because he did not feel the effects of the assault until the day after. Also,

Herbert testified he was confused regarding whether he was in bed, or by the bedstead

when appellant pushed him from behind. During cross-examination, defense counsel

asked Herbert whether this confusion was the result of dementia. On re-direct, Herbert

clarified his confusion by testifying that he had problems with appellant regarding similar

incidents within the same time period, which is why he was having problems remembering

specific details.   Due to the previous incidents, Herbert had set up cans and different

devices to make noise if a door was opened to alert Herbert when someone was in the

home.     Officer Coronado had previously testified that upon entering the home, he

noticed a rope tied around the doorknob, attached somewhere in the house.             Herbert

explained that this rope was one of his devices.



                                              3
          The jury found appellant guilty of burglary of a habitation.    See TEX. PEN. CODE

ANN. § 30.02(a)(3). The trial court sentenced appellant to thirty years’ imprisonment in

the Texas Department of Criminal Justice–Institutional Division.         This appeal followed.

                                II. SUFFICIENCY OF THE EVIDENCE

          By his first issue, appellant argues there was insufficient evidence for a jury to find

that appellant entered Herbert’s home and attempted to commit or committed an assault

against Herbert.

    A. Standard of Review and Applicable Law

          We apply the standard articulated in Jackson v. Virginia to determine whether the

evidence is sufficient to support a criminal conviction.       See 443 U.S. 307, 319 (1979);

see also Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.)

(holding that the Jackson standard of review is the "only standard" that should be applied

in a sufficiency review).      Under Jackson, we examine the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. 443 U.S. at 319.

          The elements of the offense are measured as defined by a hypothetically correct

jury charge.     Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.1997)).            Such a charge "[is] one that

accurately sets out the law, is authorized by the indictment, does not unnecessarily

increase the State's burden of proof or unnecessarily restrict the State's theories of

liability, and adequately describes the particular offense for which the defendant was

tried."    Villarreal, 286 S.W.3d at 327.    Under a hypothetical burglary charge, appellant

would be guilty of burglary of a habitation if he entered Herbert’s habitation without his

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consent and committed or attempted to commit an assault.           See TEX. PEN. CODE ANN. §

30.02(a)(3).   A person commits the offense of assault if he intentionally, knowingly, or

recklessly causes bodily injury to another, or intentionally or knowingly threatens another

with imminent bodily injury.    Id. at § 22.01(a)(1), (2).     “Bodily injury” means physical

pain, illness, or any impairment of physical condition.      Id. at § 1.07(a).

       We defer to the jury's determinations of credibility and weight to be given to the

evidence because jurors are the sole fact-finders.     See Brooks, 323 S.W.3d at 899; see

also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West, Westlaw through Ch. 46 2015 R.S.)

("The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be

given to the testimony ...."). Each fact need not point directly and independently to a

defendant’s guilt, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction.   See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007).

       Therefore, in analyzing legal sufficiency, we determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the

evidence when viewed in the light most favorable to the verdict.          Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). Our review of "all of the evidence" includes

evidence that was properly and improperly admitted.           Id. When the record supports

conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Id.           Direct and circumstantial

evidence are treated equally in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt.   Id.



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   B. Discussion

       The jury was presented with three different theories upon which to assess the

credibility and demeanor of the witnesses who testified at trial. The jury heard testimony

that Herbert described different versions of what transpired the night of the burglary.

Initially, Herbert claimed he was not assaulted by appellant. Then, he said appellant

pushed him from behind while he was lying in bed. Last, he said appellant pushed him

while he was standing near the bedstead. However, Herbert stated he was somewhat

confused about specific details of the events because of a previous incident that took

place around the same time period. The jury was free to believe Herbert’s claim that his

confusion was a result of a similar incident that took place.   In the same manner, the jury

was free to discredit the defensive theory that Herbert was unable to recall specific details

of the night of the alleged burglary due to dementia. By its verdict, the jury accepted

Herbert’s statements that an assault took place and rejected Noel’s theory.

       Moreover, the jury heard evidence from Officer Coronado as well as Detective

McFarland. We must defer to the jury’s interpretation of this evidence.        See Brooks,

323 S.W.3d at 899. After considering the evidence in the light most favorable to the

verdict, we conclude that a rational juror could have found that appellant entered Herbert’s

home without his consent and attempted to or committed an assault against Herbert.

Additionally, a rational juror could have found that appellant intentionally, knowingly, or

recklessly caused Herbert bodily injury or threatened to cause Herbert bodily injury.

Because the evidence is legally sufficient to support a burglary of a habitation conviction,

we overrule Noel’s first issue.



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                               III. ADMISSION OF EVIDENCE

       By his second issue, appellant argues that the trial court abused its discretion by

improperly admitting evidence in violation of Rule 404(b) of the Texas Rules of Evidence

that appellant had committed a burglary at Herbert’s house a few days prior to the charged

offense.   See TEX. R. EVID. 404(b) (West, Westlaw through Ch. 46 2015 R.S.).

   A. Standard of Review

       We review a trial court's ruling on the admissibility of evidence under an abuse of

discretion standard. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011); Prible

v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).           The trial court has broad

discretion in determining the admissibility of evidence, and its ruling should not be set

aside absent a clear abuse of that discretion.   Butterfield v. State, 992 S.W.2d 448, 458

(Tex. Crim. App. 1999); Allridge v. State, 850 S.W.2d 471, 492 (Tex. Crim. App. 1991)

(en banc).     As long as the trial court's ruling is within the "zone of reasonable

disagreement," there is no abuse of discretion, and the trial court's ruling will be upheld.

Prible, 175 S.W.3d at 731.

   B. Procedural History

       Outside of the presence of the jury, the State sought permission from the trial court

to admit evidence of other burglaries that occurred three days before and three days after

the present burglary to show why there was some confusion in Herbert’s version of

events. Appellant objected to the admissibility of this evidence under Rule of Evidence

404(b).    See TEX. R. EVID. 404(b). The trial court admitted the evidence on the ground

that it was contextual in nature and would, in effect, rebut the assumption that Herbert’s

confusion of events is the result of dementia:

                                             7
       [State]:         I intend to question the witness regarding why he cannot
                        remember certain details.        Included in his response, I
                        believe, will be that there were multiple incidents that occurred
                        within a short period of time that make it where it is more
                        difficult for him to remember some of those details.

       [Defense]:       Your Honor, officer’s [sic] already testified as to the more
                        immediate recount of what happened and what was told to
                        them by this witness, which would surely be more credible and
                        closer in time.
       ....

       [Court]:         This is just to clarify. He didn’t remember whether this
                        happened in this incident versus this incident versus this
                        incident. . . it’s just contextual in nature. . . that would, in effect,
                        rebut perhaps the assumption that’s being made before this
                        jury is that he had dementia and that he can’t remember, and
                        there may be a reason why he can’t segregate the events if
                        they were so close in time, okay? I’m going to allow it.

   C. Discussion

       Appellant claims evidence of a similar burglary committed by appellant before and

after this incident was proof of an extraneous offense that is inadmissible under 404(b).

       Under rules 401 and 402, relevant evidence is admissible. See TEX. R. EVID. 401,

402.   When determining whether evidence is relevant, we “examine the purpose for

which the evidence is being introduced.”           Layton v. State, 280 S.W.3d 235, 240 (Tex.

Crim. App. 2009).        Although Rule 404(b) prohibits the admission of other crimes “to

prove the character of a person in order to show action in conformity therewith,”

extraneous-offense evidence may be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake

or accident.      Id. 404(b).   Rebuttal of a defensive theory is also a permissible purpose

under rule 404(b). See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003).

Accordingly, the State may introduce extraneous offense evidence to rebut a defensive

                                                   8
theory that was raised in the defendant's opening statement.      Powell v. State, 63 S.W.3d

435, 439 (Tex. Crim. App. 2001); Lopez v. State, 288 S.W.3d 148, 171 (Tex. App.—

Corpus Christi 2009, pet. ref'd).

       The trial court admitted evidence that indicated appellant had committed similar

offenses within the same time period the incident took place.           Such evidence was

admissible to rebut the defensive theory that Herbert’s lack of specific details regarding

the incident was due to dementia.       See Moses, 105 S.W.3d at 626 (holding that the

rebuttal of a defensive theory is a permissible purpose under 404(b)). The jury may find

that evidence of similar offenses within the same time period may be a logical reason for

some of Herbert’s confusion.     Because this evidence was admissible, we overrule Noel’s

second issue.

                                IV. INEFFECTIVENESS OF COUNSEL

       By his final issue, appellant contends he was denied effective assistance of

counsel at trial.   Appellant raises multiple arguments to support his claim of ineffective

assistance of counsel, including that his trial counsel failed to: (1) object to the admittance

of extraneous evidence under 403; (2) request a limiting instruction on the extraneous

evidence in the jury charge; (3) challenge Herbert’s competency as a witness; and (4)

challenge whether appellant had permission to be in the home.

   A. Standard of Review

       To prevail on a claim of ineffective assistance of counsel, the defendant must meet

the heavy burden of Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland,

the defendant must show by preponderance of the evidence that: (1) counsel’s

representation fell below an objective standard of reasonableness, and (2) there is a

                                              9
reasonable probability that the result of the proceeding would have been different but for

the attorney’s deficient performance.       Hernandez v. State, 726 S.W.2d 53, 55 (Tex.

Crim. App. 1986) (en banc) (citing Strickland, 466 U.S. at 694); Jaynes v. State, 216

S.W.3d 839, 851 (Tex. App.—Corpus Christi 2006, no pet).                     Allegations of

ineffectiveness must be “firmly founded in the record.”     Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). A “convicted defendant making a claim of ineffective

assistance must identify the acts or omissions of counsel that are alleged not to have

been the result of reasonable professional judgment.”     Strickland, 466 U.S. at 690. We

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

evaluating the effectiveness of counsel.”    Thompson, 9 S.W.3d at 813.      If the appellant

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

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

       In evaluating the first prong of Strickland, counsel’s competence is presumed and

the defendant must rebut this presumption by proving that his attorney’s representation

was unreasonable under prevailing professional norms and that the challenged action

was not sound strategy.    Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).        “A vague

inarticulate sense that counsel could have provided a better defense is not a legal basis

for finding counsel constitutionally incompetent.”    Bone v. State, 77 S.W.3d 828, 836

(Tex. Crim. App. 2002).       The reasonableness of counsel’s performance is to be

evaluated from counsel’s perspective at the time of the alleged error and in light of all the

circumstances.    Id.

       A. Discussion

          1. Rule 403

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        First, appellant asserts that his trial counsel failed to object to the admission of

evidence that appellant committed a similar burglary at Herbert’s residence around the

same time period under rule 403.1 See TEX. R. EVID. 403.                        Under rule 403, relevant

evidence should be excluded “if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury or by

considerations of undue delay, or needless presentation of cumulative evidence.”                         Saxer

v. State, 115 S.W.3d 765, 766 (Tex. Crim. App. 2003) (citing rule 403). The Court of

Criminal Appeals has held that a proper rule 403 analysis includes the following factors:

        (1) the inherent probative force of the proffered item of evidence along with
        (2) the proponent's need for that evidence against (3) any tendency of the
        evidence to suggest decision on an improper basis, (4) any tendency of the
        evidence to confuse or distract the jury from the main issues, (5) any
        tendency of the evidence to be given undue weight by a jury that has not
        been equipped to evaluate the probative force of the evidence, and (6) the
        likelihood that presentation of the evidence will consume an inordinate
        amount of time or merely repeat evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006).

        In this case, the evidence of a prior similar act was probative to dispute the

defensive theory that his lack of specific details was due to dementia.                     Rule 403 favors

the admission of relevant evidence and carries a presumption that relevant evidence will

be more probative than prejudicial.           Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App.

2002). Evidence that appellant committed a similar burglary at the same location and

near the same time period of the night in question was necessary for the jury to consider



        1  Although appellant complains that Herbert testified to a “first” restraining order that had been filed
against appellant, the record reflects that minimal evidence came in during trial regarding the restraining
order, and the witness was instructed to not refer to the order. Similarly, appellant complains that Herbert
testified appellant had previously broken two window panes on the kitchen door; however, the record does
not reflect this testimony. Consequently, we do not need to address these complaints under rule 403.

                                                      11
an alternative for Herbert’s confusion.

       Furthermore, evidence of a previous burglary act did not have a tendency to

suggest a decision based on an improper basis.       See Gigliobianco, 210 S.W.3d at 641–

42.   Most of the evidence presented by the state did not involve the previous burglary,

including testimony and observations from Officer Coronado, Detective McFarland, and

Herbert’s testimony recollecting the night in question.    Hence, we cannot conclude that

the evidence of the previous burglary would have diverted the jury’s attention from the

central issue of whether or not appellant committed a burglary on the night in question.

       We further find that evidence of the previous burglary did not tend to confuse or

distract the jury. See TEX. R. EVID. 403.      The evidence was fairly limited.     It merely

established why Herbert might have been confused as to specific details of the night in

question; there was no evidence that because of the previous burglary, the burglary in

question took place. Thus, the risk did not substantially outweigh the probative value of

the evidence when the evidence merely pertained to Herbert’s state of mind.        Id.

       Finally, the evidence did not consume an inordinate amount of trial time.         See

Gigliobianco, 210 S.W.3d at 641–42.       It was not repetitive in nature, and the time needed

to develop the evidence was not significant.

       As a result, we conclude that appellant failed to meet his initial burden to show that

his counsel’s conduct fell below the objective standard of reasonableness.

          2. Jury Charge

       Next, appellant argues that trial counsel was ineffective by failing to request a




                                              12
limiting instruction in the jury charge.2

        He relies on Ex parte Varelas to support his argument that he was deprived of his

right to a limiting instruction because his trial counsel failed to request it.           45 S.W.3d 627,

631 (Tex. Crim. App. 2001). In Varelas, the Court of Criminal Appeals addressed the

argument that trial counsel was ineffective for failing to obtain a limiting instruction on the

jury charge:

        In light of the number of ways and the degree to which a defendant can
        suffer harm from the admission of extraneous offense evidence, we have
        trouble understanding why trial counsel did not request a burden of proof or
        limiting instruction regarding these offenses. However, the bare record does
        not reveal the nuances of trial strategy. Further, to hold trial counsel's
        actions (or inaction) ineffective in the instant case would call for speculation
        and such speculation is beyond the purview of this Court. Rather, because
        of the strong presumptions that trial counsel's conduct falls within the wide
        range of reasonable professional assistance and that such conduct might
        be sound trial strategy, we must conclude, in light of an otherwise silent
        record, that appellant failed to meet his burden of showing that his trial
        counsel's assistance was ineffective.

Id. at 632.      Further, the Court in Varelas concluded that it was unable to determine trial

counsel’s failure to request a limiting instruction was ineffective assistance of counsel.

Id.   Appellant makes a similar argument: trial counsel was ineffective for failing to request

a limiting instruction. Our review of the record confirms that appellant did not request to

limit the jury’s consideration of Herbert’s testimony at the time it was admitted.

Subsequently, when the court’s charge was prepared, there was no request from

appellant to limit the consideration of this evidence.                  Because the record does not

reflect trial counsel’s reason for not requesting a limiting instruction, we cannot conclude

that he did not exercise reasonable professional judgment.                   See Jackson, 877 S.W.2d


        2   Noel does not elaborate as to which limiting instruction trial counsel should have requested.

                                                      13
at 771; Ali v. State, 26 S.W.3d 82, 88 (Tex. App.—Waco 2000). Moreover, the Court of

Criminal Appeals has held that it is reasonable to conclude that “the decision of whether

to request a limiting instruction concerning the proper use of certain evidence, including

extraneous offenses, may be a matter of trial strategy.”        Delgado, 235 S.W.3d at 250;

see also Agbogwe v. State, 414 S.W.3d 820, 838 (Tex. App.—Houston [1st Dist.] 2013,

no pet.) (“It is reasonable to conclude ... defense counsel decided that seeking an

instruction to disregard [defendant’s] testimony would only bring further attention to it”).

Thus, we may conclude that failure to request a limiting instruction was a result of strategic

or tactical considerations of trial counsel in defending appellant.     Even if we assume that

the first prong of Strickland was met, appellant has still "failed to demonstrate with

reasonable probability, a different outcome would have resulted but for the trial counsel's

failure to seek a limiting instruction."   Ali v. State, 26 S.W.3d 82, 88 (Tex. App.—Waco

200, no pet.). As a result, appellant’s claim of ineffectiveness of counsel for failure to

request a limiting instruction fails.

           3. Challenging a Witness

       Appellant also alleges that trial counsel was ineffective by failing to challenge

Herbert’s competency as a witness.         However, trial counsel specifically did just that:

               [Defense]:     Mr. Campbell, you stated earlier that you have a mental
                              condition, correct?

               [Herbert]:     I’m diagnosed bipolar, but it’s not anything to stop me
                              from being functional. I was working as a petroleum
                              landman when this took place which –

               [Defense]:     Do you also suffer from dementia?

               [Herbert]:     No. I had one doctor say that I may be in the early
                              stages of dementia, but my personal physician doesn’t

                                                14
                                 think so.

                [Defense]:       Would you be surprised to find out the police reports
                                 say that you told them you had dementia?

The record reflects that trial counsel challenged Herbert’s competency as a witness.

Therefore, appellant does not meet the first prong of Strickland to establish ineffective

assistance of counsel.

            4. Permission to be in the home

        Last, appellant argues that trial counsel was ineffective because he failed to

subpoena the legal owner of the house, appellant’s mother, to testify whether appellant

was permitted to be in the home.          As part of the burglary offense, the State was required

to prove that appellant entered the residence without permission of the owner.                          The

Texas Penal Code defines “owner” as a person who: “has title to the property, possession

of the property, whether lawful or not, or a greater right to possession to the property than

the actor.” See TEX. PEN. CODE ANN. § 1.07(a). This definition is reflected in the jury

charge, also. Because Herbert has been living in the home for the past fifteen years,

pursuant to the definition in the penal code, Herbert has possession of the property, and

therefore, is considered the owner of the home. See id.                    In this regard, trial counsel

was not ineffective for failing to subpoena appellant’s mother as a witness.3 Therefore,

appellant fails to meet the first prong of Strickland. See Strickland, 466 U.S. at 694.

        Because appellant does not meet his burden under Strickland to establish



        3 When challenging trial counsel’s failure to call a particular witness, the appellant must show that
the witness had been available to testify and that his testimony would have been of some benefit to the
defense. See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007). During the time of trial,
appellant’s mother was unavailable as a witness as she was undergoing chemotherapy in Austin under
hospice care.

                                                    15
ineffective assistance of counsel on any ground that he asserted, we overrule his last

issue.    Id.

                                        V. CONCLUSION

         We affirm the trial court’s judgment.




                                                        GINA M. BENAVIDES,
                                                        Justice


Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed the
31st day of August, 2015.




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