                                    NO. 07-03-0348-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                   DECEMBER 13, 2004

                           ______________________________


                                DELBERT LEE BURKETT,

                                                                 Appellant

                                              v.

                                 THE STATE OF TEXAS,

                                                                 Appellee


                         _________________________________

         FROM THE 284TH DISTRICT COURT OF MONTGOMERY COUNTY;

                NO. 03-05-03402-CR; HON. JOANN OTTIS, PRESIDING

                          _______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.

       Appellant Delbert Lee Burkett challenges his conviction for indecency with a child

by contending that 1) the evidence was legally and factually insufficient to support his

conviction, 2) the trial court erred in failing to rule on his objection to the State’s closing

argument in which the prosecutor injected himself as a witness and correct the prejudicial
effect of that and other argument, and 3) he received ineffective assistance of counsel. We

affirm the judgment of the trial court.

                                          Background

       On August 6, 2002, at approximately 6:30 p.m., 12-year-old A.P. was riding her

bicycle to her friend’s house. A Cadillac came around the corner towards her and stopped.

A man got out of the car but left the engine on. He stepped to the middle of the road,

unbuckled his belt, dropped his pants, and pulled down his underwear. Appellant then

began masturbating. As A.P. rode by, he reached out his arm to her and touched her on

the arm. She swerved, dropped her bicycle in a ditch near her friend’s house, ran to the

house, and beat on the door.

       A.P. told her friend’s mother, Sandy Steede, about the incident. Sandy called 911

and also called her husband Dusty, a former police officer, who was driving home. Sandy

gave him a description of the man and vehicle as she had learned it from A.P. Shortly

thereafter, Dusty observed a Cadillac with a driver matching the description given him,

followed it to a store, and recorded its license plate number. So too did he see appellant,

who appeared to him to be “very nervous.” Appellant apparently spied Dusty because

when he left the store in the Cadillac, he was “[s]pinning his tires and watching [Dusty],

turning around and looking.” Dusty pursued him and witnessed appellant reach speeds of

80 to 90 miles an hour and run a stop sign before ending the pursuit.

       The license plate number was used by police to trace the vehicle to Robert Vincent.

However, Vincent had given the vehicle to appellant.




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                            Issue One - Legal and Factual Sufficiency

         In his first two issues, appellant attacks the legal and factual sufficiency of the

evidence supporting his conviction. He intimates it was not enough to establish that he was

the individual standing in the street that day. We overrule the issue.

         Standard of Review

         The applicable standards of review are well settled and fully discussed in Jackson

v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Sims v. State, 99 S.W.3d

600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000). We refer the parties to those

opinions rather than discuss the standards here.

         Application of Standards

         As to the claim of legal sufficiency, A.P. (a 12-year-old girl) testified at trial that

appellant was the person who dropped his pants, exposed his genitalia, masturbated, and

reached for her. That is some evidence upon which a rationale factfinder could conclude,

beyond reasonable doubt, that appellant was the one who committed the criminal act.

         As to the claim of factual insufficiency, appellant suggests that there was no physical

evidence linking him to the offense, but only the testimony of A.P. Furthermore, because

there were differences between A.P.’s original statement to police and her testimony at

trial, the evidence does not support his conviction.1 Yet, contradictions or conflicts in

testimony do not destroy its sufficiency or otherwise render it non-probative; instead, they


         1
         The differences consisted of A.P. testifying at trial that she did not tell anyone originally that appellant
had a m ustache , a tattoo on his arm , that his pen is wa s out, or that the man was masturbating. As to the
omission regarding appellant’s m asturbation, sh e sa id that sh e did no t originally tell police because sh e did
not know how to describe it and becaus e she was emb arras sed by it.

                                                         3
may simply affect its weight or the witness’ credibility. Jimenez v. State, 67 S.W.3d 493,

505 (Tex. App.–Corpus Christi 2002, pet. ref’d). And, the extent to which the factfinder

credits either the evidence or the witness is a matter lying solely within the discretion of the

factfinder. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).

       Given A.P.’s testimony identifying appellant as the culprit, Dusty’s testimony

identifying appellant as the individual who drove the Cadillac, and the testimony describing

appellant’s attempt to evade Dusty, we cannot say that the verdict is so against the great

weight of all the evidence as to render it unjust. Nor can we say that the sum of all the

evidence makes weak that evidence supporting conviction. A jury could well have decided

that a 12-year-old girl alone on a street when accosted by an adult may not take the time

to memorize all physical characteristics of her assailant or may omit to inform others of

certain characteristics in the heat of the moment. Again, it lay within the jury’s province to

decide what weight, if any, to accord the evidence presented by the State.

       In sum, the evidence supporting the verdict is both legally and factually sufficient.

Additionally, we reject appellant’s argument to the contrary.

                 Issues Two and Three - Improper Closing Argument

       In issues two and three, appellant complains about two aspects of the State’s jury

argument. The first involves the prosecutor’s supposed attempt to inject himself as a

witness into the case while the second concerns his purported effort to mislead the jury.

We overrule both issues.

       As for the first complaint, the prosecutor indicated during his closing statement that

A.P. was being truthful because he had personally spoken with her. Appellant objected,

and the trial court directed the State to “avoid this area.” Rather than comply, the

                                               4
prosecutor returned to his argument by again informing the jury that he had spoken with

the girl. So too was he about to reveal what she told him when appellant again complained.

In response, the trial court told the prosecutor he could “state what [he] heard from the

witness stand.” At that point, the prosecutor began to reiterate what the victim said while

testifying at trial.

        We note that appellant initially contends that the trial court failed to rule on his

objections. In making this argument, however, appellant says nothing about why the

directives to “avoid this area” and to limit his comments to what the child said from the

witness stand do not constitute rulings. This omission is of import because authority clearly

recognizes that a judge may impliedly rule upon an objection. Rey v. State, 897 S.W.2d

333, 336 (Tex. Crim. App. 1995). Moreover, such occurs when the court’s actions or

statement unquestionably indicate a ruling. Id. Here, telling the prosecutor to “avoid this

area” and to restrict his comment to what the child said from the witness stand

unquestionably indicates that the prosecutor was to stop doing that which he attempted.

Moreover, these directives came in response to appellant’s objections. Thus, we conclude

that while the trial judge may not have used the words “sustained” or “overruled,” he,

nonetheless, impliedly sustained the objections.

        Next, to the extent appellant suggests that the trial court erred in ameliorating the

prejudicial effect of these and other comments made by the prosecutor, we note that he

asked the court to neither instruct the jury to disregard them nor grant a mistrial. Authority

holds that to preserve error involving prosecutorial misconduct, such as improper jury

argument, the complainant must not only object but also request an instruction to disregard

and move for a mistrial. Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App.), cert.

                                              5
denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995). Since appellant sought

neither an instruction to disregard or a mistrial, any error arising from the prosecutor’s

attempt to become a witness and reiterate what the child told him was not preserved.

       The same is true with the complaint regarding the prosecutor’s alleged attempt to

mislead the jury. The trial court sustained the objection, and appellant solicited no further

relief. By neglecting to do so, he did not preserve his complaint. Id.

                    Issue Four - Ineffective Assistance of Counsel

       Through his final issue, appellant contends that he received ineffective assistance

of counsel with respect to the preparation of the jury charge.           The ineffectiveness

purportedly concerned the lesser-included offense of indecent exposure. While the lesser

offense was included in the jury charge, counsel allegedly failed to object to 1) the lack of

a definition for “reckless,” 2) the characterization of the offense as a class B misdemeanor,

and 3) the omission of an instruction requiring the jury to give appellant “the ‘benefit of the

doubt’ if [it] cannot decide which offense” he committed.            This allegedly evinced

ineffectiveness on the part of counsel. We overrule the issue.

       Standard of Review

       The standard of review requires appellant to prove by a preponderance of the

evidence not only that counsel’s representation fell below the objective standard of

professional norms but also that it prejudiced his defense. Bone v. State, 77 S.W.3d 828,

833 (Tex. Crim. App. 2002). To satisfy the latter prong, it must be shown that there existed

a reasonable probability that but for the misconduct, the result would have been different.

Id. And, this occurs when the circumstances undermine our confidence in the outcome.

Id.

                                              6
       Application of Standard

       Appellant neither cited authority nor proffered explanation illustrating why it was error

for his counsel to withhold objection about 1) the characterization of the offense as a class

B misdemeanor or 2) the missing “benefit of the doubt” instruction. This may be because

1) indecent exposure is a Class B misdemeanor, TEX . PEN . CODE ANN . §21.08 (b) (Vernon

2003), and 2) a trial court need not give a “benefit of the doubt” instruction when the

charge, as here, instructs the jury that, if it is not convinced beyond a reasonable doubt that

appellant is guilty of the greater offense, it should acquit him of that offense and then

consider his guilt for the lesser one. Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.–

Corpus Christi 1988, pet. ref’d). Given this, we cannot say that these complaints establish

deficient performance on the part of trial counsel.

       As to the definition of “reckless,” appellant makes no effort to explain how or if the

verdict would have differed had the definition been given.2 He simply concludes that the

omission was harmful, denied him a fair trial, and undermined the confidence in the verdict.

Again, his burden was to establish how the supposed error hurt him, not simply conclude

that it did. This neglect coupled with the rather overwhelming evidence of appellant’s guilt

for indecency with a child requires us to reject his claim of ineffective assistance. See Ladd

v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070, 120 S.Ct.

1680, 146 L.Ed.2d 487 (2000) (holding that because appellant made “no effort to prove the

prejudice prong” he was not entitled to relief).

       Having overruled each of appellant’s arguments, we affirm the judgment.


       2
          Indeed, this same deficiency encompasses each item of misconduct about which appellant
com plains in issue 4. Thus , all are subject to rejection o n this b asis.

                                               7
                      Brian Quinn
                        Justice



Do not publish.




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