                                  NO. 12-16-00042-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JERMEL LEWIS,                                     §      APPEAL FROM THE
APPELLANT

V.                                                §      COUNTY CRIMINAL COURT NO. 9

THE STATE OF TEXAS,
APPELLEE                                          §      DALLAS COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Jermel Lewis appeals his conviction for “false report to peace officer.” In two issues,
Appellant contends the evidence is legally insufficient to support his conviction and he received
ineffective assistance of counsel at trial. We affirm.


                                          BACKGROUND
       Appellant called the police the morning of January 17, 2014, to report that his vehicle had
been burglarized at a Denny’s restaurant. He also reported that he was a city marshal and his
service weapon had been taken. Officers Walter Sambola and Heidi Dragija of the Dallas Police
Department responded to the call. After speaking with Appellant and the restaurant manager and
reviewing the surveillance video, the officers determined that Appellant’s vehicle may have been
burglarized somewhere other than the Denny’s. The following day, Appellant gave a written
statement to Detective Craig Kier, who was assigned to investigate the alleged burglary.
Appellant said in his written statement that the vehicle was burglarized at the Denny’s. The case
was then assigned to the Public Integrity Unit to determine whether Appellant’s report was false.
The Public Integrity Unit determined that Appellant had made a false report regarding the
burglary of his vehicle.
       Appellant was charged by information with “false report to peace officer” and waived his
right to a jury trial. The trial court found him guilty, sentenced him to 120 days confinement,
suspended for 12 months, imposed a $1,000 fine, and ordered him to pay court costs. This
appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant contends the evidence is legally insufficient to support his
conviction. Specifically, he contends that the evidence does not support that he knowingly made
a false statement.
Standard of Review
       In Texas, the Jackson v. Virginia legal sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support each
element of a criminal offense that the state is required to prove beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).              Legal sufficiency is the
constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to
sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 316-17, 99 S. Ct. 2781, 2786-
87, 61 L. Ed. 2d 560 (1979). The standard for reviewing a legal sufficiency challenge is whether
any rational trier of fact would have found the essential elements of the offense beyond a
reasonable doubt. See id. 443 U.S. at 320, 99 S. Ct. at 2789. The evidence is examined in the
light most favorable to the verdict. Id. A successful legal sufficiency challenge will result in
rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41-42, 102 S.
Ct. 2211, 2217-18, 72 L. Ed. 2d 652 (1982). This familiar standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from the basic facts to ultimate facts. See Jackson, 443 U.S. at
319, 99 S. Ct. at 2789.
       Under this standard, we may not sit as a thirteenth juror and substitute our judgment for
that of the fact finder by reevaluating the weight and credibility of the evidence. See Dewberry
v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Brooks, 323 S.W.3d at 899.
Instead, we defer to the fact finder’s resolution of conflicting evidence unless the resolution is
not rational. See Brooks, 323 S.W.3d at 899-900. The duty of a reviewing court is to ensure that




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the evidence presented actually supports a conclusion that the defendant committed the crime
charged. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include 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 is tried.” Id.
Applicable Law
       A person commits the offense of “false report to peace officer” if, with intent to deceive,
he knowingly makes a false statement that is material to a criminal investigation to a peace
officer conducting the investigation or any employee of a law enforcement agency authorized to
conduct the investigation and that the actor knows is conducting the investigation. TEX. PENAL
CODE ANN. § 37.08(a) (West Supp. 2015). A person acts knowingly with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware of the nature of his
conduct or that the circumstances exist. Id. § 6.03(b) (West 2011). A person acts knowingly
with respect to a result of his conduct when he is aware that his conduct is reasonably certain to
cause the result. Id.
       To prove that the defendant knew the offense or incident did not occur, it is normally
sufficient to show that the defendant was aware that the circumstances surrounding his conduct
existed. McGee v. State, 671 S.W.2d 892, 895 (Tex. Crim. App. 1984). The culpable mental
state can be shown by an inference arising from the proof of the actual state of the facts coupled
with the defendant’s opportunity to perceive them. Id. A defendant’s mental state can be
inferred from circumstantial evidence. See Sandler v. State, 728 S.W.2d 829, 831 (Tex. App.—
Dallas 1987, no pet.).
       Voluntary intoxication is not a defense to the commission of a crime. TEX. PENAL CODE
ANN. 8.04(a) (West 2011). Evidence of a defendant’s voluntary intoxication does not negate the
mens rea elements of intent or knowledge. Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim.
App. 1980).




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Analysis
       The restaurant manager and the investigating officers with the Dallas Police Department
testified at trial. The restaurant’s surveillance video and Appellant’s written statement were
admitted into evidence.
       Jean Jackson, the Denny’s restaurant manager, testified that a van entered the Denny’s
parking lot on the morning of January 17, 2014. She stated that Appellant exited the vehicle and
walked around it. Jackson further testified that Appellant entered the restaurant approximately
five minutes later and informed her that he had called the police because someone had broken
into his vehicle and stolen his gun. Jackson stated that she could observe the parking lot from
inside the restaurant and did not see anyone break into Appellant’s vehicle.
       Officer Walter Sambola testified that he and his partner, Heidi Dragija, responded to a
report of a burglary by an off-duty officer at the Denny’s. He stated that Appellant approached
them when they arrived and told them his vehicle had been burglarized and his service firearm
stolen. Officer Sambola recounted that Appellant initially stated that he went into the restaurant
to use the restroom and came back to find his vehicle burglarized.             He also related that
Appellant’s story changed many times. Appellant’s stories included that (1) he went inside to
tell the management that he had several people coming to meet him; (2) he went inside to use the
restroom and realized he had forgotten his wallet in his vehicle; and (3) he went inside, spoke
with the manager, ordered a meal, and realized he had left his wallet. In each of Appellant’s
stories, he returned to his vehicle to find it burglarized. Officer Sambola testified that he
watched the surveillance video, which did not corroborate any of Appellant’s stories. He also
testified that Appellant appeared to be intoxicated. Officer Dragija testified to the same events.
       Lieutenant Christopher Jaquez with the Dallas Police Department testified that he spoke
with Appellant at the scene and that he believes Appellant still had his mental faculties. He
stated that he watched the surveillance video and informed Appellant of the differences between
the video and Appellant’s statements. Lieutenant Jaquez testified that he asked Appellant if he
was sure he wanted to “make the offense” because of the contradictions. He further stated that it
appeared Appellant, despite his intoxication, was aware of what was happening and made his
statements knowingly.
       Sean Kearney, a crime scene analyst with the Dallas Police Department, testified that he
spoke with both Appellant and the officers. He stated that Appellant told him that his vehicle



                                                 4
had been burglarized and items taken from the center console. Kearney further testified that the
center console was full of CDs and DVDs, which would make it difficult for a firearm to fit
inside the console.
       Detective Craig Kier testified that he spoke with Appellant the day after the incident. He
stated that he called Appellant to come to the police station for an interview and that Appellant
came freely and voluntarily. According to Detective Kier, Appellant gave a written statement
during the meeting, in which he again stated that the vehicle was burglarized at Denny’s. The
detective also testified that the case was assigned to the Public Integrity Unit because the
investigating officers believed Appellant’s had falsely reported that his vehicle was burglarized
at Denny’s.
       Detective Catherine Thornton with the Public Integrity Unit testified that she found
evidence that Appellant gave false information to the patrol officers and the detective. She
further stated that this information was material because Appellant stated his vehicle was
burglarized at Denny’s when it was not burglarized there. According to Detective Thornton, she
believes Appellant gave this information knowingly.
       The surveillance video from the Denny’s parking lot shows Appellant pulling into the
parking lot. He then exits his vehicle and walks around it. Appellant next opens the passenger
doors and gets something out of the back seat. He places the item on the ground and appears to
make a phone call.
       Appellant asserts that he was intoxicated when he reported the burglary and therefore
could not have knowingly made a false statement. However, voluntary intoxication is not a
defense to the commission of a crime. TEX. PENAL CODE ANN. § 8.04(a) (West 2011). And
voluntary intoxication does not negate the elements of either intent or knowledge. Hawkins v.
State, 605 S.W.2d 586, 589 (Tex. Crim. App. 1980).         Appellant has not claimed that his
intoxication was involuntary. Therefore, he cannot rely on his intoxication as a defense. See
TEX. PENAL CODE ANN. § 8.04(a).
       It was within the province of the factfinder to determine which of the evidence to credit
and which to reject. See Hooper v. State¸ 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The court
chose to accept the restaurant manager’s testimony and the testimony of the officers over
Appellant’s statements. Further, there is testimony that Appellant appeared to understand what
was happening and knew what he was saying to the officers. The statements he made to the



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officers were memorialized in Appellant’s written statement the next day. In addition, according
to the manager and the surveillance video, Appellant called the police before he went into the
restaurant. This is further evidence that he knew his vehicle was not burglarized at Denny’s.
Therefore, after reviewing the evidence in the light most favorable to the verdict, we conclude
that a rational factfinder could have found the essential elements of “false report to peace
officer” beyond a reasonable doubt. See TEX. PENAL CODE ANN. § 37.08(a).
       The evidence is legally sufficient to support the trial court’s finding of guilt.
Accordingly, Appellant’s first issue is overruled.


                             INEFFECTIVE ASSISTANCE OF COUNSEL
       In his second issue, Appellant contends he received ineffective assistance of counsel
when his trial counsel failed to accept a continuance and failed to call a particular witness during
the guilt-innocence phase of trial.
Governing Law
       In reviewing an ineffective assistance of counsel claim, we apply the United States
Supreme Court's two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App.
1986). To prevail on an ineffective assistance of counsel claim, an appellant must show that (1)
trial counsel's representation was deficient and that (2) the deficient performance prejudiced the
defense to the extent that there is a reasonable probability that the result of the proceeding would
have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064. An appellant must prove both prongs of Strickland by a preponderance of
the evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2002). Failure to make the
required showing of either deficient performance or sufficient prejudice defeats an appellant's
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
       To establish deficient performance, an appellant must show that trial counsel's
representation fell below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65. “This requires showing that
[trial] counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id., 466 U.S. at 687, 104 S. Ct. at 2064. To
establish prejudice, an appellant must show that there is a reasonable probability that, but for



                                                 6
counsel's deficient performance, the result of the proceeding would have been different. Id., 466
U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. When it is easier for a reviewing court to dispose of an
ineffective assistance of counsel on the ground of lack of sufficient prejudice without
determining whether counsel's performance was deficient, the court should follow that course.
Id., 466 U.S. at 697, 104 S. Ct. at 2056.
       Review of trial counsel's representation is highly deferential. See id., 466 U.S. at 689,
104 S. Ct. at 2065. In our review, we indulge a strong presumption that trial counsel's actions
fell within a wide range of reasonable and professional assistance. Id. It is the appellant's
burden to overcome the presumption that, under the circumstances, the challenged action might
be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, “[a]ny allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” See Thompson, 9 S.W.3d at 813 (citation omitted).
When, as here, no record specifically focusing on trial counsel's conduct was developed at a
hearing on a motion for new trial, it is extremely difficult to show that counsel's performance
was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9
S.W.3d at 814. Absent an opportunity for trial counsel to explain the conduct in question, we
will not find deficient performance unless the challenged conduct was “so outrageous that no
competent attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005) (citation omitted).
Evaluation of Trial Counsel’s Representation
       Appellant argues that his counsel’s performance was defective in two respects. He first
points out that at the pretrial hearing, trial counsel was given photographs that he believed he had
not received previously. Appellant’s counsel stated that the photographs may have made a
difference in his preparation because they clarified matters. The trial court offered trial counsel a
continuance, but counsel elected instead to object when the photographs were offered during the
trial. The trial court overruled his objection and offered him a continuance for a second time.
Trial counsel again declined.
       Next, Appellant states that after the investigating officers arrived at Denny’s, they
concluded that Appellant was intoxicated. As a result, they allowed a friend of Appellant to
drive him home. Trial counsel did not call the friend to testify at trial.



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         Appellant argues that trial counsel’s failure to accept the offered continuance and to call
Appellant’s friend as a witness at trial constituted ineffective assistance. However, we need not
address whether trial counsel’s performance was defective because Appellant has not shown
prejudice. See Strickland, 466 U.S. at 697, 104 S. Ct. at 2056 (advising that, when easier,
reviewing court should dispose of ineffective assistance claim on lack of sufficient prejudice).
         Appellant does not explain how he was prejudiced by his trial counsel’s alleged deficient
performance. Rather, he states only that “the actions of trial counsel fell below an objective
standard of reasonableness which prejudiced Appellant.” It is not enough for an appellant to
simply assert that the errors had some conceivable effect on the outcome of the proceedings. See
Burress v. State, 20 S.W.3d 179, 186 (Tex. App.–Texarkana 2000, pet. ref’d).
         The burden to show prejudice rests on Appellant. Id. He has failed to meet that burden
and, as a result, has failed to satisfy the second prong of Strickland. See Strickland, 466 U.S. at
694, 104 S. Ct. at 2068. Therefore, his ineffective assistance claim fails. Accordingly, we
overrule Appellant’s second issue.


                                                  DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.
                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 20, 2016


                                         NO. 12-16-00042-CR


                                        JERMEL LEWIS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                           Appeal from the County Criminal Court No 9
                        of Dallas County, Texas (Tr.Ct.No. MB14-75049-K)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
