                                                                         ACCEPTED
                                                                    13-14-00403-CR
                                                      THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                              3/27/2015 11:48:31 AM
                                                                   DORIAN RAMIREZ
                                                                             CLERK


             No. 13-14-403-CR

       IN THE COURT OF APPEALS       FILED IN
                              13th COURT OF APPEALS
 FOR THE THIRTEENTH DISTRICT OF TEXAS
                           CORPUS  CHRISTI/EDINBURG, TEXAS
           AT CORPUS CHRISTI 3/27/2015 11:48:31 AM
                                        DORIAN E. RAMIREZ
                                             Clerk

           NOEL CAMPBELL,
             APPELLANT,

                     v.

        THE STATE OF TEXAS,
             APPELLEE.


ON APPEAL FROM THE 117TH DISTRICT COURT
        NUECES COUNTY, TEXAS

        BRIEF FOR THE STATE


                Douglas K. Norman
                State Bar No. 15078900
                Assistant District Attorney
                105th Judicial District of Texas
                901 Leopard, Room 206
                Corpus Christi, Texas 78401
                (361) 888-0410
                (361) 888-0399 (fax)
                douglas.norman@co.nueces.tx.us

                Attorney for Appellee


    ORAL ARGUMENT IS REQUESTED
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii
SUMMARY OF THE ARGUMENT ..............................................................1
ARGUMENT ...................................................................................................2
Reply Point No. 1
The evidence was legally sufficient to prove that Campbell assaulted his
father at the time he entered his home without consent. ...........................2
         I. Statement of Facts. ...........................................................................2
         II. Standard of Review. .......................................................................3
         III. Burglary by Assault. .....................................................................4
Reply Point No. 2
The trial court properly admitted evidence that Campbell had
committed a previous burglary of the victim’s house a few days prior to
the charged offense, in order to show why the victim was confused
about some of the details he related to the police. ......................................5
Reply Point No. 3
Campbell fails to show that his trial attorney rendered ineffective
assistance of counsel.......................................................................................8
         I. Failing to object under 404(b) and 403 to testimony concerning
         a restraining order and that Campbell had previously broken two
         glass panels on the kitchen door, and failure to object under 403
         to the prior burglary. ....................................................................... 10
         II. Failing to request a limiting instruction concerning the prior
         burglary. ............................................................................................ 13
         III. Failing to challenge the victim’s competence as a witness. .... 14
         IV. Failing to call the owner of the house to testify concerning
         Campbell’s permission to enter the residence. .............................. 17
PRAYER ....................................................................................................... 18
RULE 9.4 (i) CERTIFICATION .................................................................. 18
CERTIFICATE OF SERVICE ..................................................................... 19
                                    INDEX OF AUTHORITIES

                                                       Cases

In re A.W., 147 S.W.3d 632 (Tex.App.-San Antonio 2004, no pet.)............ 16

Adams v. State, 222 S.W.3d 37 (Tex. App.—Austin 2005, pet. ref'd). ...........5

Agbogwe v. State, 414 S.W.3d 820 (Tex. App.-Houston [1st Dist.] 2013, no
pet.). .............................................................................................................. 14

Alberts v. State, 302 S.W.3d 495 (Tex. App.-Texarkana 2009, no pet.). ..... 12

Barnett v. State, 344 S.W.3d 6 (Tex. App.—Texarkana 2011,
pet. ref'd). ................................................................................................ 11, 12

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .............................3

Ex parte Bryant, 448 S.W.3d 29 (Tex. Crim. App. 2014)............................ 12

Burke v. State, 371 S.W.3d 252 (Tex. App.—Houston [1st Dist.] 2011, pet.
ref'd, untimely filed). .................................................................................... 11

Davis v. State, 268 S.W.3d 683 (Tex.App.-Fort Worth 2008, pet. ref'd). .... 15

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009). .......................6

Delgado v. State, 235 S.W.3d 244 (Tex. Crim. App. 2007)......................... 14

Garcia v. State, 201 S.W.3d 695 (Tex. Crim. App. 2006). .............................7

Garcia v. State, 367 S.W.3d 683 (Tex. Crim. App. 2012). .............................4

Garcia v. State, 57 S.W.3d 436 (Tex. Crim. App. 2001). ...............................9

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005). ......................9

Huerta v. State, 359 S.W.3d 887 (Tex. App.-Houston [14th Dist.] 2012, no
pet.). .............................................................................................................. 12


                                                           ii
Ingham v. State, 679 S.W.2d 503 (Tex. Crim. App. 1984). ......................... 11

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). ......................... 3, 4

Ketchum v. State, 199 S.W.3d 581 (Tex. App.—Corpus Christi 2006, pet.
ref'd). ............................................................................................................. 11

King v. State, 649 S.W.2d 42 (Tex. Crim. App. 1983)................................. 17

Kuhn v. State, 393 S.W.3d 519 (Tex. App.—Austin 2013, pet. ref’d). ....... 12

Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007). ................................9

Mobil Oil Corp. v. Floyd, 810 S.W.2d 321 (Tex.App.-Beaumont 1991, orig.
proceeding). .................................................................................................. 16

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991). ............. 7, 12

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999). .............................7

Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002). ................................. 14

Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)......................... 3, 4

Perez v. State, 310 S.W.3d 890 (Tex. Crim. App. 2010). ...............................8

Prible v. State, 175 S.W.3d 724 (Tex. Crim. App. 2005). ..............................6

In re R.M.T., 352 S.W.3d 12 (Tex. App.—Texarkana 2011, no pet.). ......... 16

Ex parte Ramirez, 280 S.W.3d 848 (Tex. Crim. App. 2007). ...................... 17

Robinson v. State, 368 S.W.3d 588 (Tex. App.-Austin 2012, pet. ref'd). .... 16

Shah v. State, 403 S.W.3d 29 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref'd). ................................................................................................................4

Smith v. State, 5 S.W.3d 673 (Tex. Crim. App. 1999). ...................................7

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). .............. 8, 9

                                                           iii
Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999).............................9

Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000). ..................................9

Torres v. State, 754 S.W.2d 397 (Tex. App.—Corpus Christi 1988, pet.
ref'd). ............................................................................................................. 14

Vasquez v. State, 417 S.W.3d 728 (Tex. App.—Houston [14th Dist.] 2013,
pet. ref’d)................................................................................................. 11, 12

Ex parte Varelas, 45 S.W.3d 627 (Tex. Crim. App. 2001). ......................... 14

Watson v. State, 596 S.W.2d 867 (Tex. Crim. App. 1980). ................... 15, 16

Ex parte White, 160 S.W.3d 46 (Tex. Crim. App. 2004). ........................ 9, 11

                                              Statutes & Rules
Tex. Penal Code § 1.07. ...................................................................................4

Tex. Penal Code § 22.01. .................................................................................4

Tex. Penal Code § 30.02. .................................................................................4

Tex. R. Evid. 403. ......................................................................................... 13

Tex. R. Evid. 404. ............................................................................................7

Tex. R. Evid. 601. ......................................................................................... 15




                                                          iv
                             NO. 13-14-403-CR

NOEL CAMPBELL,                         §    COURT OF APPEALS
        Appellant,                     §
                                       §
V.                                     §     FOR THE THIRTEENTH
                                       §
THE STATE OF TEXAS,                    §
         Appellee.                     §     DISTRICT OF TEXAS

                         BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                   SUMMARY OF THE ARGUMENT

      Issue no. 1 – The victim’s own statements and testimony prove an

assault both by threat and by causing bodily injury.

      Issue no. 2 – The previous burglary was relevant to show the state of

mind of the victim and why he was confused about some of the details of the

present burglary, as an exception to Rule 404(b).

      Issue no. 3 – Campbell has failed to disprove the presumption that his

trial attorney was exercising sound trial strategy in all of the decisions that

he made during trial or that the objections he supposedly should have made

had merit.
                                ARGUMENT

                            Reply Point No. 1
The evidence was legally sufficient to prove that Campbell assaulted his
        father at the time he entered his home without consent.

                            I. Statement of Facts.

      Campbell was indicted for burglary of a habitation by means of the

fact that he “attempted to commit or committed an assault against

HERBERT CAMPBELL.” (CR p. 5)

      At trial, Police Officer Ernesto Coronado testified, without objection,

that Herbert related to him that Campbell claimed at the time of the burglary

that Herbert owed him money for a cell phone and stated that “he was going

to beat Herbert’s ass if he didn’t get the money.” (RR vol. 3, pp. 33-34)

      Police Officer Robert McFarland testified, without objection, that

Herbert said that he had been pushed on his back and that it caused him

some pain, and that he also had soreness to his legs and ribs from the

incident. (RR vol. 3, p. 42) Officer McFarland testified that Herbert also

said that Campbell asked for money to buy a phone, and that when Herbert

refused, Campbell then started calling him names, pushed him, and caused

pain to his back and soreness to his ribs and legs. (RR vol. 3, p. 49)

      Herbert Campbell testified that Noel Campbell had said that Herbert

owned him $20 to buy a cell phone, and that when Herbert refused,


                                       2
Campbell then called him a couple derogatory names and threatened to “tear

my face off prison style.” (RR vol. 3, pp. 58-60) Herbert also related that

Campbell struggled with him and threw him to the floor, such that Herbert

hit the bedstead and the floor. (RR vol. 3, p. 60) Specifically, Herbert

testified that Campbell pushed him from behind. (RR vol. 3, pp. 63-64)

                          II. Standard of Review.

      In order to determine if the evidence is legally sufficient, the appellate

court reviews all of the evidence in the light most favorable to the verdict

and determines whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). In Brooks v. State, 323

S.W.3d 893 (Tex. Crim. App. 2010), the Court of Criminal Appeals

abandoned factual sufficiency review and determined that the Jackson v.

Virginia legal-sufficiency standard is the only standard that a reviewing

court should apply in determining whether the evidence is sufficient. This

“familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Padilla v.

State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443

U.S. at 319). Faced with a record of historical facts that support conflicting


                                       3
inferences, the reviewing court “must presume ... that the trier of fact

resolved any such conflicts in favor of the prosecution, and must defer to

that resolution.” Padilla, 326 S.W.3d at 200 (quoting Jackson, 443 U.S. at

326).

                          III. Burglary by Assault.

        Burglary of a habitation may be committed, among other ways, by

unauthorized entry and the commission of an assault. Tex. Penal Code §

30.02 (a)(3).     In turn, the predicate assault may be committed by

“intentionally, knowingly, or recklessly caus[ing] bodily injury to another,”

or by “intentionally or knowingly threaten[ing] another with imminent

bodily injury.”    Tex. Penal Code § 22.01 (a)(1) & (2). “Bodily injury” is

defined broadly as “physical pain, illness, or any impairment of physical

condition.” Tex. Pen. Code Ann. § 1.07 (a)(8). Under this broad definition,

“[a]ny physical pain, however minor, will suffice to establish bodily injury.”

Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012); Shah v. State,

403 S.W.3d 29, 34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref'd).

        In the present case, the fact finder was entitled to believe Herbert’s

testimony that Campbell pushed and threw him, causing him to suffer

physical pain sufficient to show an assault under Subsection (a)(1).




                                       4
      In addition to the actual bodily injury inflicted on Herbert, Campbell

also committed an assault by threatening him with imminent bodily injury

under Subsection (a)(2) when he threatened to “beat Herbert’s ass” or tear

his face off if he did not get the money he wanted. See Adams v. State, 222

S.W.3d 37, 51 (Tex. App.—Austin 2005, pet. ref'd) (present threat to “kick

your butt” was sufficient to show an assault by threat).

      The evidence was legally sufficient and Campbell’s first issue on

appeal should be overruled.

                           Reply Point No. 2
    The trial court properly admitted evidence that Campbell had
committed a previous burglary of the victim’s house a few days prior to
  the charged offense, in order to show why the victim was confused
           about some of the details he related to the police.

      In his opening statements, Campbell’s trial attorney argued that there

were inconsistencies in Herbert’s two versions of what happened at the time

of the burglary. (RR vol. 3, pp. 17-18) He played this theme out during the

remainder of the trial, as a reason to disbelieve Herbert’s statements and

testimony.   Specifically, on cross-examination of Herbert, the defense

attempted to show that his statements concerning the assault were

inconsistent and that he had been diagnosed with dementia. (RR vol. 3, pp.

68-69)




                                       5
      The prosecutor then announced her intention to question Herbert

concerning other burglaries that occurred three days before, and three days

after, the present burglary, in order to show “why things are blending

together” in Herbert’s memory and “why he’s having a problem

distinguishing these incidences,” and thus to explain the apparent

inconsistencies.   (RR vol. 3, pp. 69-71)       Specifically, the prosecutor

announced her intention:

      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.

(RR vol. 3, pp. 71-72)     The trial court ruled that it would allow this

testimony. (RR vol. 3, pp. 72-73) The prosecutor then elicited testimony

from Herbert that he was having problems remembering the specific details

of the present burglary because Campbell had committed similar offenses

within the prior week. (RR vol. 3, pp. 73-74)

      The trial court’s decision to admit extraneous-offense evidence is

reviewed for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336,

343 (Tex. Crim. App. 2009); Prible v. State, 175 S.W.3d 724, 731 (Tex.

Crim. App. 2005). A trial court does not abuse its discretion if the decision

to admit or exclude the evidence is within the “zone of reasonable


                                      6
disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1991) (opin. on reh'g).

      Texas Rule of Evidence 404(b) provides, in pertinent part, “[e]vidence

of other crimes, wrongs or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

Tex. R. Evid. 404(b).

      Concerning “other purposes,” the Court of Criminal Appeals has

noted that “evidence will be relevant to a material issue if the purpose for

which the party seeks to have it submitted tends to make the existence of any

fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence. What issues are

material will depend on the theories of the prosecution and the defense.”

Garcia v. State, 201 S.W.3d 695, 703 (Tex. Crim. App. 2006) (quoting

Smith v. State, 5 S.W.3d 673, 679 n.13 (Tex. Crim. App. 1999)).

      One such “other purpose” is state-of-mind evidence, when state of

mind is relevant to some issue in the case. See Mozon v. State, 991 S.W.2d

841, 846 (Tex. Crim. App. 1999) (victim's extraneous acts of violence

admissible to show the defendant's state of mind).


                                      7
      In the present case, the victim’s state of mind, and specifically the

reason he was confused about some of the details of the charged burglary,

was clearly relevant, and the fact of several related and recent burglaries

logically tended to show a reason for such confusion. Accordingly, the trial

court acted within its discretion in admitting this evidence as an exception to

Rule 404(b).

      Campbell’s second issue on appeal should be overruled.

                           Reply Point No. 3
   Campbell fails to show that his trial attorney rendered ineffective
                         assistance of counsel.

      To prevail on an ineffective assistance claim, an appellant must show

that (1) counsel's performance was deficient by falling below an objective

standard of reasonableness; and (2) counsel's deficiency caused the appellant

prejudice—there is a probability sufficient to undermine confidence in the

outcome that but for counsel's errors, the result of the proceeding would

have been different. Strickland v. Washington, 466 U.S. 668, 687–88, 694,

104 S.Ct. 2052 (1984); Perez v. State, 310 S.W.3d 890, 892–93 (Tex. Crim.

App. 2010). An appellant must satisfy both prongs by a preponderance of

the evidence; failure to demonstrate either deficient performance or

prejudice will defeat a claim of ineffectiveness. Perez, 310 S.W.3d at 893.




                                       8
      Review of counsel's performance is highly deferential, and there is a

strong presumption that counsel's conduct fell within the wide range of

reasonable professional assistance and that the challenged action could be

considered sound trial strategy. Strickland, 466 U.S. at 689; Ex parte White,

160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707,

712 (Tex. Crim. App. 2000).

      Any allegation of ineffectiveness must be firmly founded in the

record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005);

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Where the

record is silent as to why counsel failed to make an objection or take certain

actions, the reviewing court should assume it was due to any strategic

motivation that can be imagined, and the appellant will have failed to rebut

the presumption that trial counsel's actions were in some way reasonable.

Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State,

57 S.W.3d 436, 441 (Tex. Crim. App. 2001). Specifically, when a claim of

ineffective assistance of counsel is raised on direct appeal, without the

benefit of a record to show counsel’s strategy and reasoning, the reviewing

court should not find deficient performance unless counsel's conduct was so

outrageous that no competent attorney would have engaged in it.

Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813.


                                      9
I. Failing to object under 404(b) and 403 to testimony concerning a
restraining order and that Campbell had previously broken two glass
panels on the kitchen door, and failure to object under 403 to the prior
burglary.

      Herbert Campbell mentioned the restraining order, without objection,

in the following exchange:

      Q. Does he have permission to come into your home?
      A. No.
      Q. And how long has he not had permission to enter your
      home?
      A. I think we filed our first restraining order --
      Q. And without getting into details.
      A. Okay.
      Q. Just about how long?
      A. It's been a couple of years.

(RR vol. 3, p. 57)

      In addition, Herbert offered the following explanation as to how

Campbell could have gotten into his house at the time of the burglary:

      A. Okay.
      Q. Was -- how would the Defendant have gotten into your
      home? Were there any specific ways that the Defendant could
      have gotten into your home?
      A. There were two ways. Well, actually, there were
      three ways. He had broken the glass out on two panes on the
      kitchen door, and there are panes that are broken out in the
      den. He would use the living room -- there was -- we were
      having difficulty with the living room -- one of the living
      room windows and he knew how to jimmy that window and get it
      open, so he would come into the house more than once through
      that window, and then, I had had to jerry rig the kitchen
      window just to keep the cold out. It was -- this was in
      January and I had -- this is silly, but I had set up cans and

                                     10
      different devices to make noise if the door was opened.

(RR vol. 3, p. 61)

      To show ineffective assistance of counsel for the failure to object

during trial, the defendant must initially show that the trial judge would have

committed error in overruling the objection. Ex parte White, 160 S.W.3d 46,

53 (Tex. Crim. App. 2004); Burke v. State, 371 S.W.3d 252, 258 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref'd, untimely filed).

      Mention of the broken glass panels was clearly relevant to Campbell’s

ability to gain unlawful entry to the premises, and thus clearly relevant to the

present burglary charge. Accordingly, Campbell had no valid Rule 404(b)

objection.

      With regard to Herbert’s brief mention of a restraining order, an

isolated failure to object to improper evidence generally does not constitute

ineffective assistance of counsel. See Ingham v. State, 679 S.W.2d 503, 509

(Tex. Crim. App. 1984); Vasquez v. State, 417 S.W.3d 728, 733 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d); Barnett v. State, 344 S.W.3d

6, 19-20 (Tex. App.—Texarkana 2011, pet. ref'd); Ketchum v. State, 199

S.W.3d 581, 595 (Tex. App.—Corpus Christi 2006, pet. ref'd).

      In addition, counsel may refrain from objecting to prejudicial

evidence in an effort to make appellant appear more honest, to minimize the


                                       11
seriousness of the earlier offense, or to avoid drawing unwanted attention to

a particular issue. Vasquez, 417 S.W.3d at 733 (citing Huerta v. State, 359

S.W.3d 887, 894 (Tex. App.-Houston [14th Dist.] 2012, no pet.)).

Specifically, it may be a sound trial strategy to refrain from objecting in

order to avoid drawing additional attention to objectionable testimony or

argument. See Kuhn v. State, 393 S.W.3d 519, 539 (Tex. App.—Austin

2013, pet. ref’d); Barnett, 344 S.W.3d at 19; Alberts v. State, 302 S.W.3d

495, 506 n. 7 (Tex. App.-Texarkana 2009, no pet.). The Court of Criminal

Appeals has recently approved the strategy of failing to object in order to

avoid drawing attention to certain evidence as “particularly useful when, for

example, only a passing, but possibly objectionable, reference is made and

the defense attorney believes that the reference would largely go unnoticed.”

Ex parte Bryant, 448 S.W.3d 29, 41 (Tex. Crim. App. 2014). This rationale

clearly applies to the present passing comment regarding a restraining order.

      Finally, with regard to the lack of a Rule 403 objection to evidence of

the prior burglary, whether evidence is admissible under Rule 403 is within

the sound discretion of the trial court. Montgomery v. State, 810 S.W.2d

372, 386, 389 (Tex. Crim. App. 1990). However, there is a presumption

under Rule 403 that the probative value of the evidence outweighs any

prejudicial effect. Id. at 391.


                                     12
      For the reasons explained in the State’s second reply point, the prior

burglary was clearly relevant to show why Herbert appeared confused about

some of the details of the present burglary, and Campbell has failed to make

any credible argument that the probative value was substantially outweighed

by the danger of unfair prejudice. See Tex. R. Evid. 403. This is not a case

where Campbell’s identity as the intruder or his unlawful entry on the

premises was affirmatively controverted.        The primary strategy of the

defense was to dispute the assaultive conduct. Accordingly, there is little

danger that mention of a prior unlawful entry would have swayed the jury in

this case or that it would have had any substantial prejudicial impact.

Certainly there was not a sufficient showing of prejudicial impact to have

required the trial judge to sustain a Rule 403 objection or to have rendered

Campbell’s trial attorney ineffective for failing to make a Rule 403

objection.

II. Failing to request a limiting instruction concerning the prior
burglary.

      The Court of Criminal Appeals has explained 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,”

and that “a party might well intentionally forego a limiting instruction as

part of its deliberate trial strategy to minimize the jury's recollection of the

                                       13
unfavorable evidence.” Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim.

App. 2007) (citations omitted); see also Ex parte Varelas, 45 S.W.3d 627,

632 (Tex. Crim. App. 2001) (noting the difference between the bare record

on appeal that did not disprove trial strategy in failing to seek a limiting

instruction, and the showing on habeas review that this decision was not the

product of trial strategy); Agbogwe v. State, 414 S.W.3d 820, 838 (Tex.

App.-Houston [1st Dist.] 2013, no pet.) (finding it reasonable for defense

counsel to conclude that seeking an instruction to disregard would only bring

further attention to the objectionable evidence); Torres v. State, 754 S.W.2d

397, 401 (Tex. App.—Corpus Christi 1988, pet. ref'd) (failure to seek a

limiting instruction may have been a tactical decision not to call that

evidence to the jury's attention).

      Likewise, in the present case, Campbell has pointed to nothing that

would disprove his trial attorney’s potential strategy to avoid drawing

further attention to the extraneous burglary.

III. Failing to challenge the victim’s competence as a witness.

      When it is alleged in an ineffective assistance claim 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. Ortiz v.

State, 93 S.W.3d 79, 93 (Tex. Crim. App. 2002). Accordingly, in the present


                                      14
case, Campbell must show that the trial court would have committed error in

overruling an objection to Herbert testifying at trial.

      The Rules of Evidence provide as follows concerning the competence

of witnesses:

      (a) General Rule. Every person is competent to be a witness except
      as otherwise provided in these rules. The following witnesses shall be
      incompetent to testify in any proceeding subject to these rules:
            (1) Insane persons. Insane persons who, in the opinion of the
            court, are in an insane condition of mind at the time when they
            are offered as a witness, or who, in the opinion of the court,
            were in that condition when the events happened of which they
            are called to testify.
            (2) Children. Children or other persons who, after being
            examined by the court, appear not to possess sufficient intellect
            to relate transactions with respect to which they are
            interrogated.

Tex. R. Evid. 601.

      The issue of a witness's competency is generally a question for the

trial court and its ruling in that regard will not be disturbed on appeal unless

an abuse of discretion can be shown. Watson v. State, 596 S.W.2d 867, 871

(Tex. Crim. App. 1980).

      As the Rule suggests, there is a presumption that every witness is

competent to testify. See Davis v. State, 268 S.W.3d 683, 699 (Tex.App.-

Fort Worth 2008, pet. ref'd). A witness is competent to testify if (1) he can

intelligently observe events at the time of their occurrence, (2) he has the

capacity to recollect those events, and (3) he has the capacity to narrate those

                                       15
events to the jury. See Robinson v. State, 368 S.W.3d 588, 604 (Tex. App.-

Austin 2012, pet. ref'd). Conversely, in order to demonstrate incompetency

under Rule 601, it must be shown that the witness lacked the ability to

perceive the relevant events, recall and narrate those events at the time of

trial, or that the witness lacked the capacity to understand the obligation of

the oath. In re R.M.T., 352 S.W.3d 12, 25 (Tex. App.—Texarkana 2011, no

pet.); Mobil Oil Corp. v. Floyd, 810 S.W.2d 321, 323 (Tex.App.-Beaumont

1991, orig. proceeding). The “capacity to narrate” encompasses both “an

ability to understand the questions asked and to frame intelligent answers,”

as well as a “moral responsibility to tell the truth.” Watson, 596 S.W.2d at

870.

       Moreover, merely inconsistent and confusing responses from a

witness do not necessarily mean he is incompetent to testify, but speak

instead to the credibility of his testimony. See In re A.W., 147 S.W.3d 632,

635 (Tex.App.-San Antonio 2004, no pet.).

       In the present case, Officer Coronado testified that he had no

problems conversing with Herbert or understanding what he said, and that

Herbert seemed to be clear about what had happened to him that night. (RR

vol. 3, p. 24) Similarly, Officer McFarland testified that he had no problems




                                      16
communicating with Herbert, who seemed coherent and to understand what

was going on and what had happened to him. (RR vol. 3, pp. 49-50)

       Throughout his own testimony, Herbert Campbell appeared coherent,

focused, and able to answer the questions asked of him. (RR vol. 3, pp. 55

et seq.)

       Accordingly, Campbell has failed to show that Herbert was

incompetent to testify or that his trial attorney was ineffective for failing to

challenge competency.

IV. Failing to call the owner of the house to testify concerning
Campbell’s permission to enter the residence.

       When challenging an attorney'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); King v. State, 649

S.W.2d 42, 44 (Tex. Crim. App. 1983). Campbell makes no such showing

on the present record.

       Accordingly, Campbell has failed to prove that his trial attorney

rendered ineffective assistance of counsel.

       Campbell’s third issue on appeal should be overruled.




                                       17
                                  PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                Respectfully submitted,
                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman
                                State Bar No. 15078900
                                Assistant District Attorney
                                105th Judicial District of Texas
                                901 Leopard, Room 206
                                Corpus Christi, Texas 78401
                                (361) 888-0410
                                (361) 888-0399 (fax)
                                douglas.norman@co.nueces.tx.us



                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 3,724.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      18
                     CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on March 27,

2015, to Appellant’s attorney, Ms. Celina Lopez Leon.



                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      19
