                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-11-00103-CR


BRUCE W. MURRAY                                                        APPELLANT

                                           V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION1

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                                    I. INTRODUCTION

      Appellant Bruce W. Murray appeals his conviction for burglary of a

habitation.2   In two points, Murray contends that the evidence is legally

insufficient to support his conviction and that he received ineffective assistance of

counsel at trial. We will affirm.

      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 30.02(a), (c)(2) (West 2011).
                                II. BACKGROUND

      Brian Call was in his backyard one afternoon when he noticed some

unusual movement across his back fence in his neighbor’s yard.          On closer

examination, Call could see someone trying to enter the backyard of his

neighbor, Leonard George Tippens, who was not home at the time. Call moved

closer, looked through the slats of the privacy fence, and saw a bald African-

American male, wearing what appeared to be light blue jeans and a darker blue

shirt that was “either short sleeve or long sleeve with the sleeves bunched up.”

      Call contacted 9-1-1 as he stepped up to get a clearer view over the top of

the fence and looked through Tippens’s window to see the man inside the house

loading items into a grocery cart. Suspecting that the intruder was about to leave

through Tippens’s driveway, Call moved around to another section of his fence

and watched the man, who was now outside, leave the property with the grocery

cart, heading north toward Magnolia through a vacant parking lot across the

street.   Call later testified that he had a good, clear view of the man for

approximately five to ten minutes from the time he first saw movement until he

saw the man walking away.

      Police Officers Chris Gray and Amelia Johnson were together on special

detail when they responded to the 9-1-1 dispatch. Dispatch informed them that

the suspect had been seen wearing blue jeans and a gray shirt, but dispatch later

updated the shirt’s description to blue. Within minutes of being dispatched, while

driving southbound on Hemphill, Gray and Johnson saw two black males moving


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eastbound on West Oleander a few blocks away from Tippens’s home. One of

the men, Murray, matched dispatch’s description and was pushing a shopping

cart with a cardboard box covering its contents. After stopping the men, the

officers inspected the shopping cart and found that it contained a miter saw with

wooden stands attached to it, a gas can, and a halogen lamp. When asked who

owned the items, Murray stated that a gentleman around the corner owned them,

but Murray could not identify the specific owner and continued to be evasive after

further inquiry. This encounter took place about a block and a half or two blocks

away from Magnolia and a few blocks away from Tippens’s home.

      Next, Officer Laura Walter arrived where the two men were stopped.

Shortly thereafter, Call arrived and unequivocally identified Murray as the man he

saw inside Tippens’s home and who left pushing a grocery cart.           Call also

recognized Murray’s clothing as the same clothing that the intruder had been

wearing inside Tippens’s home. According to Walter, Murray was wearing blue

jeans and a blue shirt at the time of his arrest. After the officers photographed

the items from the grocery cart, Walter showed them to Tippens at Tippens’s

house. Tippens identified the miter saw and halogen lamp as his, which he

normally kept inside his home near the back entry. The officers then returned the

items to Tippens and transported Murray to jail.

      At trial, Walter identified Murray as being the man she arrested and Call

identified as the intruder. When Call testified, however, he was unable to identify

Murray as the man he saw inside Tippens’s home and he could not identify the


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clothes in the exhibits—a gray shirt and blue jeans—as the clothes worn by the

intruder he had seen inside Tippens’s home.

      In his defense, Murray sought to introduce in evidence the clothing he was

wearing when he was booked into the jail after he was arrested. After taking

Murray’s witness on voir dire, the State mounted a chain-of-title objection. The

trial court sustained the State’s objection to the clothing on grounds that Murray’s

witness was not the booking agent who actually bagged the clothes and checked

them in after Murray’s arrest. After the State had rested and closed, Murray

closed “subject to being given the opportunity to get the [person who did check in

the clothing] over here to substantiate the clothing.” When proceedings began

the next morning, however, Murray rested and closed without calling any witness

or attempting to put on any more evidence. The jury found Murray guilty, and the

trial court sentenced him to twenty-eight years’ confinement.       The trial court

entered judgment accordingly. This appeal followed.

                                  III. DISCUSSION

      A.    Sufficiency of the Evidence

      In his first point, Murray contends that the evidence is insufficient to

support his conviction. Specifically, he contends that the evidence is insufficient

to support the jury’s finding that he was the person who committed the burglary.

We disagree.

            1.     Standard of Review




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      In reviewing the sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine 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, 2789 (1979); Runningwolf v. State, 360 S.W.3d 490,

494 (Tex. Crim. App. 2012).

      This 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 basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), cert.

denied, 132 S. Ct. 2712 (2012). The trier of fact is the sole judge of the weight

and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert.

denied, 129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency

review, we may not re-evaluate the weight and credibility of the evidence and

substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). Instead, 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. Hooper v.

State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). The standard of review is

the same for direct and circumstantial evidence cases; circumstantial evidence is




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as probative as direct evidence in establishing the guilt of an actor. Isassi v.

State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Hooper, 214 S.W.3d at 13.

             2.      Burglary and Identification

      A person commits burglary of a habitation if, without the effective consent

of the owner, he enters a habitation with intent to commit a theft. Tex. Penal

Code Ann. § 30.02(a)(1) (West 2011).           At issue in this case is whether the

evidence before the jury was sufficient to prove that Murray was the person who

committed the burglary in light of conflicting evidence as to Call’s ability to clearly

see into Tippens’s home when he was watching the intruder. When the record

supports conflicting 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. See Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010).

Also, even if a witness fails to make a positive in-court identification, the verdict is

not rendered improper if other evidence shows that the defendant was the

perpetrator. Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth

1999, pet. ref’d).

             3.      Analysis

      Murray argues that the evidence is insufficient to support his conviction

because Call viewed the person in his neighbor’s home through windows the

homeowner and a police officer described as “foggy” or “cloudy” and because

Call was later unable to identify Murray in court.




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      But Call testified that he had an unobstructed view of the intruder, both

inside and outside the house, for five to ten minutes. Therefore, the trier of fact

was free to conclude that the windows were at least clear enough for Call to see

that the individual inside Tippens’s home was the same individual that he had

seen enter through the backyard and leave with the grocery cart.

      Further, although Call did not identify Murray in court, he unequivocally

identified him as the perpetrator at the scene of the arrest, and Officer Walter

identified Murray in court as both the individual she arrested the day of the

burglary and as the individual Call identified as the perpetrator at the scene of the

arrest.

      Viewing the evidence in the light most favorable to the verdict, the record

demonstrates that Call watched a man matching Murray’s description enter

Tippens’s backyard, be inside the home, load items into a grocery cart, and then

push the cart down Tippens’s driveway and through a vacant lot across the

street.   Within minutes of the 9-1-1 dispatch, and only a few blocks from

Tippens’s home, Officers Gray and Johnson saw Murray, who matched

dispatch’s description of the suspect, pushing a grocery cart covered by a piece

of cardboard and containing a miter saw, gas can, and halogen lamp. When

Gray asked Murray two or three times who owned the items, Murray could not

identify the owner and seemed evasive. Tippens later identified the miter saw

and halogen lamp as his, and said that those items had been just inside the




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sliding glass door leading directly to his backyard where Call first saw the

intruder.

      Thus, a rational trier of fact could have found beyond a reasonable doubt

that Murray was the person who committed the burglary based on Call’s

identification of Murray as the burglar at the time of the arrest and Murray’s

unexplained possession of the items stolen from Tippens’s home at a nearby

location, shortly after the burglary occurred. See Poncio v. State, 185 S.W.3d

904, 905 (Tex. Crim. App. 2006) (“[A] defendant’s unexplained possession of

property recently stolen in a burglary permits an inference that the defendant is

the one who committed the burglary.”); see also Lemons v. State, No. 02-10-

00301-CR, 2011 WL 3795266, at *5–6 (Tex. App.—Fort Worth Aug. 25, 2011, no

pet.) (mem. op., not designated for publication) (holding burglary of habitation

evidence legally sufficient when someone roughly matching defendant’s

description was seen exiting the home and within minutes was found with stolen

items from the home in his pockets). Accordingly, we hold that the evidence is

sufficient to support Murray’s conviction for burglary of a habitation, and we

overrule Murray’s first point.

      B.     Effective Assistance of Counsel

      In his second point, Murray contends that he received ineffective

assistance of counsel because his trial counsel did not call the actual person

from the jail’s booking office who checked in Murray’s clothing at the time of




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Murray’s arrest to prove the chain of custody even though counsel had stated on

the record that he intended to.

      To establish ineffective assistance of counsel, a defendant must show by a

preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005);

Mallett v. State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v.

State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range of

reasonable representation. Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at

63.

      A reviewing court will rarely be in a position on direct appeal to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

740; Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on


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direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.” Salinas, 163 S.W.3d at 740 (quoting Mallett, 65 S.W.3d

at 63). To overcome the presumption of reasonable professional assistance,

“any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness.” Id. (quoting

Thompson, 9 S.W.3d at 813).        It is not appropriate for an appellate court to

simply infer ineffective assistance based upon unclear portions of the record.

Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

the appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must

be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      As a general rule, we do not speculate about trial counsel’s strategy, and

we will not second guess through hindsight the strategy of counsel at trial. Hill v.

State, 303 S.W.3d 863, 878–79 (Tex. App.—Fort Worth 2009, pet. ref’d). Trial

counsel should ordinarily be afforded an opportunity to explain his actions before

being denounced as ineffective. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.


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Crim. App. 2005). In the absence of direct evidence in the record of counsel’s

reasons for the challenged conduct, an appellate court will assume a strategic

motivation if any can be imagined and will not conclude that the conduct was

deficient unless the conduct was so outrageous that no competent attorney

would have engaged in it. Sanders v. State, 346 S.W.3d 26, 34 (Tex. App.—Fort

Worth 2011, pet ref’d). Generally, performance of counsel cannot adequately be

examined based on a trial court record. Id.

      Here, because Murray’s motion for new trial did not assert ineffective

assistance of counsel, the trial court did not have a chance to hold a hearing to

inquire into the reasons for trial counsel’s decision not to call the witness. See

Hill, 303 S.W.3d at 879. Thus, the record is not sufficiently developed to allow us

to do more than speculate as to the strategies of trial counsel, and therefore we

cannot determine that Murray was denied effective assistance of counsel. See

Pollock v. State, No. 02-10-00514-CR, 2011 WL 4345295, at *2–3 (Tex. App.—

Fort Worth Sept. 15, 2011, pet. ref’d) (mem. op., not designated for publication)

(declining to hold that appellant received ineffective assistance of counsel when

appellant did not complain of ineffective assistance in motion for new trial and no

hearing was held on the motion; thus, there was no record demonstrating that

counsel’s acts or omissions were ineffective). Murray has a more appropriate

remedy in seeking a writ of habeas corpus to allow him the opportunity to

develop evidence to support his claims. See Rylander v. State, 101 S.W.3d 107,

110 (Tex. Crim. App. 2003). Thus, we overrule Murray’s second point.


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                              IV. CONCLUSION

      Having overruled both of Murray’s points, we affirm the trial court’s

judgment.




                                               BILL MEIER
                                               JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 26, 2012




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