                     «f*1'«5
           No.
                                                              ORIGINAL
                     IN    THE
     COURT    OF    CRIMINAL          APPEALS
              AUSTIN,          TEXAS




                                                                      CI

        FRANCISCO          DURAN,          JR.
                                                         court of amrnimis
                  PETITIONER
                                                              APR 17 2015
                          vs
                                                          Abel Acosta, Clerk
                  RESPONDENT
           THE    STATE        OF   TEXAS




                                                                    FILED IN
                                                            •CURT OF CRIMINAL APPEALS
             ON    APPEAL           FROM
THIRTEENTH   DISTRICT           COURT       OF   APPEALS
                                                                   APR 17 2015-
  CORPUS    CHRISTI,       EDINBURG,             TEXAS
     2013    TEX.    APP.       LEXIS       8111                Auel Acosta, Clerk
           NO.    13-12-00344-CR




 PETITION    FOR    DISCRETIONARY                REVIEW




                     PRO       SE




          Francisco Duram Jr.
        Robertson Unit # 1793551
             12071         FM        3522
             Abilene, TX. 79601
                                  TABLE   OF   CONTENTS


SUBJECT   MATTER                                                                PAGE   NUMBER



Index of Authorities                                                                    iii

Statement Regarding Oral Argument                                                        iv

Statement    of    the   Case                                                             V


Statement of Procedural History                                                         vi

GROUNDS   FOR     REVIEW:


1. The Court of Appeals Erred in affirming and modify

ing the judgement of conviction and in particular:

   a. by modifying the jury's conviction from a second
      degree felony of burglary to a first degree felony
      burglary by retaining an indictment count of ag
      gravated assault with a deadly weapon that was a-
      bandoned by the prosecution                                                         1

   b. by modifying the judgement to delte the words
      "Special Issue" in,the deadly weapon finding                        so
      that      the State's abandonment           of Count   II    became
      a legal shoe that fit their modification(s)                                         1

   c. by failing to vacate the double jeopardy barred
      conviction(s) as requested and agreed between de
      fense counsel and the State Appellate Counsel/
      to wit/ the aggravated assault with a deadly
      weapon                      *                                                       1

   d. by failing to recognize the plain error of pe
      titioner being deprived of a fair trial in vio
      lation of the Fifth Amendment's double jeopardy
      clause             ;                                                               1

2. The Court of Appeals Erred in affirming the judge

ment of conviction(s) regarding petitioner's                       five
                                  i
                                  i

points of error raised,           to wit:

   FIRST:         The evidence was legally insufficient to
                  support the Burglary conviction          ,

   SECOND:        Ineffective assistance of counsel               at   trial.

   THIRD:         The    trial   court committed     error in      includ
  FOURTH:         ing the aggravated assault conviction in the
                  judgement after the State abandoned the
                  allegation; and by not allowing defense witnesses

                                            -l-
                               [con't. ]


                           TABLE   OF   CONTENTS


SUBJECT MATTER                                        PAGE NUMBER



    FOURTH: to testify at the punishment trial; as
    FIFTH:  well as committing error in making    a
            finding that a deadly weapon was used
            or exhibited                                      2


Argument and Authorities                                      2

Prayer for Relief                                           END

Appendix containing the appellate opinion                     A




                                   -11-
                           INDEX   OF       AUTHORITIES

THE LAW:                                                          PAGE NUMBER

Apprendi-v-New Jersey,     U.S.         (       ).....                    12
Berman-v-United States, 302 U.S. 211, 212 (1937)                        2,12
Bigley-v-State, 865 SW.2d 26, 27-28 (Tex.Crim.App.1993)                    2
Butler-v-State, 769 SW.2d 234, n.2 (Tex.Crim.App. 1989)                    7
Clark-v-Procunier, 755 F.2d 394 (5th Cir. 1985)                            7
David-v-State, 91 SW.3d 824 (Tex.Crim.App. 1994)                           9
Delapaz-v-State, 229SW.3d 795, 802 (Tx.App.Eastland 2007) rev'd.
on other grounds 273 Sw.3d 671, 681 (Tex.Crim.App.2008)                    9
Garcia-v-State, 571 Sw.2d 896, 899 (Tex.Crim.App.1978)                  2,10
Landers-v-State, 957 Sw.2d 559-560 (Tex.Crim.App. 1992)                    2
Langs-v-State, 183 SW.3d 680, 686 (Tex.Crim.App.2006)                   2,10
Littrell-v-State, 271 Sw.3d 273 (Tex.Crim.App.2008)                     2,10
Minor-v-State, 91 SW.3d 824 (Tx.App.Fort Worth 2002, pet. ref'd).          9
Nash-v-State, 175 SW.3d 487 (Tx.App.Texarkana 2005,pet. ref'd)...         12
Nelson-v-State, 149 Sw.3d 206, 213 (Tx.App.Fort Worth 2004, no pet.)       2
Strickland-v-Washington, 466 U.S. 668 (1984)                               8
Thomas-v-State, 821 Sw.2d 616 (Tex.Crim.App. 1991)                        12
Urbano-v-State, 837 SW.2d 114 (Tex.Crim.App. 1992)                         7
United States-v-Lopez, 74 F.3d 575, 577 (5th Cir. 1996)                    7
United States-v-Ramos-Garcia, 184 F.3d 463, 465 (5th Cir. 1999).           7
United States-v-Reveles, 190 F.-3d 678 (5th Cir. 1999)                     7
Webb-v-State, 766 SW.2d 236 (Tex.Crim.App. 1984)....                       9
Williams-v-State, 692 SW.2d 671, 676 (Tex.Crim.App. 1989)                  7

U.S.C.A


5th Amendment' s double jeopardy clause                                    5


TEX.   PEN.   CODE


§ 22.02(a)(2)                                                             3
§ 30.02(a)(3)                                                             3


T.R.A.P.



66.3(c)




                                    -hi
                STATEMENT   REGARDING   ORAL   ARGUMENT



       Petitioner-appellant is a prisoner acting in his own behalf

and thus is not available nor qualified to present oral arguments,

though he would urge that the issues are of sufficient magnitude

and complexity to merit oral argument. Therefore, if the Court

recognizes merit in holding oral argument, then petitioner makes

request for the Court to appoint counsel to represent. Thank you.




                                -IV-
                           STATEMENT   OF   THE   CASE



          Petitioner-appellant was initially indicted with a single

offense of Burglary of a Habitation, but after he rejected the

State's 2 -to- 5 year plea offer the prosecutor re-indicted him

with a dual count indictment. Each count allegedf a separate penal
code offense, to wit, Count I was Burglary of a Habitation [§ 30.02

(a)(3), Tex. Pen. Code], and, Count II, Aggravated Assault with a

Deadly Weapon [§ 22.02 (a)(2)].

        Each penal code offense alleged the same dat and the evidence

at trial showed that each offense arose out of the same incident.

         At the close of the State's evidence and the defense of

alibi the trial court submitted each offense to the jury in its

instructions within the jury charge, along with separate verdict

forms per penal code offense. The jury found petitioner guilty of

each count as demonstrated within their separate verdict forms.

         After the jury found guilt on each count as charged in the

indictment, the prosecution abandoned the Aggravated Assault with
a Deadly Weapon,     Count II.

         At the punishment phase the jury sentenced petitioner to 25-

years on Count I, the Burglary charged. The trial court it its

Judgement of Conviction listed both guilty verdicts as two judge
ments   of   conviction.


         Likewise, at the punishment phase the trial court would not

allow petitioner to present witnesses in mitigation. The court held

that to allow these defense witnesses would be a violation of the

Rule.


                                   -v-
Finally, the Appellee chose to "no£ include its own Statement of

the Case", but instead was "satisfied with Appellant's Statement

of the Case". See State's Appeal Brief under their "Statement of

the Case" at   page 6.

         Lastly, the "State conceded that it may be appropriate to

modify the trial court's judgement by removing the Aggravated As
sault conviction", in light of the State abandoning the offense,

aswell as, its double jeopardy ramifications. See State's Appeal
Brief at page 31.


                STATEMENT OF THE PROCEDURAL HISTORY


1- Petitioner-appellant was initially indicted for a single penal
code offense of Burglary of a Habitation;

2. A plea offer of five-years was rejected and the State reindicted

with a dual count indictment involving two separate penal code of
fenses, to wit, Burglary of a Habitation, and Aggravated Assault

with a Deadly Weapon. The deadly weapon alleged a DVD Player in
the manner of its use;

3. At trial the evidence proved that both penal code ffenses derived

from the same incident. Yet, both penal code offenses were submitted

to the jury with separate instructions along with separate verdict
forms;


4. After the jury found guilt on both indictment counts the State

chose to abandon the aggravated assault with a deadly weapon of

fense, and proceeded to punishment on Count I only: the Burglary;

5- A motion for He<w Trial was filed claiming the evidence was insuf
ficient to convict due to a misidentification, and that petitioner
chould not have been convicted of the deadly weapon since no dead-

                                -vi-
ly weapon finding was submitted to the jury;
6. An appeal was perfected to the Thirteenth District Court of Ap
peals of Texas and was eventually affirmed and modified;

7. No petition for discretionary review was sought because defense
counsel on appeal failed to give petitioner notice;

8. A 11.07 application for the writ of habeas corpus requesting an
out-of-time [PDR] petition for discretionary review was filed and
granted;


9. This petition for discretionary review followed in a timely man
ner.




                             -vii-
                                         IN   THE
                           COURT    OF   CRIMINAL     APPEALS
                                   AUSTIN/       TEXAS




                             FRANCISCO        DURAN,     JR.
                                     PETITIONER




                                           VS




                                     RESPONDENT
                              THE    STATE      OF   TEXAS




                       PETITION    FOR   DISCRETIONARY         REVIEW




TO   THE   HONORABLE    JUDGES:



           COMES NOW,    the above named petitioner-appellant, acting in

his own behalf, respectfully requesting the Court to grant              this

petition for discretionary review- IN iPHAT,

GROUNDS FOR REVIEW (restated):

                 THE COURT OF APPEA&I SUltlS IN AffiaMlNf
                 AND MODIFYING       THE   JUDGEMENT OF CONVICTION:


a. by modifying the jury's conviction of second degree burglary

to that of a first degree felony burglary by retaing the indictment

count of aggravated assault with a deadly weapon that was abandon

ed by the prosecution;

b. by modifying the judgement to delete the words "special issue"

in the abandoned deadly weapon finding of Count II to produce a


                                           -1-
legal shoe that fit the State's request for a modification;

c. by failing to vacate the double jeopardy barred conviction as re

quested and agreed to by the State, to wit, the aggravated assault

with a deadly weapon;

d. by failing to recognize the plain error of petitioner being de

prived of a (flair trial in violation of the Fifth Amendment's double

jeopardy clause.

                   THE    COURT   OF    APPEALS       ERRED    IN
                   AFFIRMING      THE       JUDGEMENTS    OF
                   CONVICTION(S) REGARDING PETITIONER'
                   FIVE   POINTS       OF    ERROR.



                     ARGUMENT AND             AUTHORITIES



       Petitioner-appellant presents his first ground for review re

garding the court of appeals absuing its authority in affirming and
modifying the judgements of        conviction$s). Texas Rule of Appellate
procedure 43.2(b), does allow for modification pertaining to form

and procedural techincalities, as well as, some procedural errors

or to reflect the truth as reflected in the recorded pronouncements,

but does not allow a modification involving substantive alterations

in the judgement(s) of convict ion(s). Langs-v-State, 183 SW.3d 680,

686 (tex. Crim. App. 2006); Bigley-v-State, 865 Sw.2d 26, 27-28

(Tex. Crim. App. 1993); nelson-v-State, 149 Sw.3d 206, 213 (Tex.

App. - Fort Worth 2004, no pet.) [An appellate court may correct

and reform a trial court judgement regarding procedural matters to

make the judgement congruent with the record;                  cf.   Littrell-v-State,

271 SW.3d 273 (Tex. Crim. App. 2008); Landers-v-State, 957 Sw.2d

559-560 (Tex. Crim. App. 1997);             and Garcia-v-State, 571 SW.2d 896,

899 (Tex. Crim. App. 1978).


                                        •2-
       The above referenced law stands for the proposition that a

Court of Appeals may modify and/or reform a conviction involving
procedural matters such as clerical errors in the judgement of con
viction or judge recitals at sentencing or when there are procedur
al errors inconcsistent with decisional law or rules of procedure,
but not substantive errors in the jury verdicts stemning from the
indictment and jury charge instructions at guilt/innocence and/or
at punishment.   As   in the case at bar.

       The petitioner-appellant was indicted for the criminal offenses

of Burglary of a Habitation, Texas Penal Code § 30.02(a)(3), and,
Aggravated Assault with a deadly weapon, Texas Penal Code § 22.02
(a)(2). The indicted offenses were not manner and means allegations.
Instead the indictment consisted of a proeprty offense and a person
offense. Each stemning from the same criminal incident.

       The trial court's jury charge at guilt/innocence separately
charged on each penal     code offense. Instructing the jury consider
the law instructions from a parties theory. The jury returned guilt
on both crimes, butthe State abandoned the aggravated assault with
a deadly weapon offense. Thus, there was no final conviction. See

Berman-v-United States, 302 U.S. 211, 212 (1937) ["Final judgement
in a criminal case means sentence. The sentence is the judgement."].
Absent a final judgement thre trial court had no authority to modify
the judgement.

       Likewsie, absent a final judgement the court of appeals had
no authority to modify the judgement to reflect a final judgement
that was not made by the jury. By the State abandoning Count II of
the indictment   there was no deadly weapon judgement or conviction.
Thus, it was a substantive error for the court(s) to transfer the

                                  -3-
essential element and aggravating factor of the abandoned offense

over to that of the Burglary conviction.

       In fact, the Jury Charghe instructions at guilt/lnnocencve

did not instruct deadly weapon in Count I the Burglary of a Hab
itation offense. Likewise, the jury's verdict forms only applied
the- deadly weapon element to the aggravated assault offense,       i.e.

        "We, the Jury, find the defendant, Francisco Duran,
         Jr., "GUILTY" of Burglary of a Habitation in Count
         I, as charged in the indictment."

        "We,   the Jury,   find the defendant,   Fransicso Duran,
         Jr., "GUILTY" of Aggravated Assault with a Deadly
         Weapon in Count II, as charged in the indictment."


       Finally, the trial court's sentencing of petitioner-appel
lant was only on Count I since the Stateabandoned Count II the ag
gravated assault with a deadly weapon. The trial court thus ordered:

        "IT IS ORDERED by the Court that the Defendant, who
         has been adjudged guilty of the offense of BURGLARY
         OF A HABITATION, as found by the Jury, and is here
         by sentenced to TWENTY-FIVE (25) YEARS ...".


       He pronounced this final judgement because the jury determ

ined petitioner-appellant to be punished at TWENTY-FIVE YEARS. Tho^ held
at punishment paaae that:

        "And we assess his punishment at confinement in the
         Texas Departjment of Criminal Justice for 25 years
         (being "Life" OR not less than fifteen (15) years
         not more than ninety-nine (99) years), and assess
         a fine of $None» (Answer in dollare and cents, not
         exceeding $10,000.00 or "None")".


       In short, though the State abandopned the offense of Count

II, and the jury charge at guilt/innocence did not instruct any

deadly weapon in relation to the Burglary offense and at punishment

the jury only sentenced petitioner on the Burglary offense without
                                  -4-
affirmative finding of a deadly weapon, the trial court still took
it upon itself to switch over the essential element of the abandon
ed deadly weapon element of the aggravated assault offense to that
of the Burglary. Simply not right to do so. Therefore this issue
before the Court/ in light of the Court of appeals upoholding the
switch over.


                               CONCLUSION



       In view of the above, petitioner urges the Court that the
trial court and court of appeals errored in modifying the judgement
of conviction by retaining the deadly weapon element of the aggrav
ated assault offense, as well as, modifying the jurgement to delete
the words "special issue" in the abandoned deadly weapon finding
of Count II so that it became a legal shoe that fit the State's re
quest for such a modification.

       Likewise., the Court of appeals errored in failing to vacate
the double jeopardy barred conviction as requested by appellate
counsel and agreed to by the State, to wit, the aggravated assault
with a deadly weapon; and finally, the Court of Appeals failed to
recognize the plain error of petitioner being deprived of a fair
trial in violation of the Fifth Amendment's double jeopardy clause.
       For these reasons petitioner ought to be granted petition
for discretionary review.


SECOND GROUND FOR REVIEW (restated):

               THE COURT OF APPEALS ERRED IN AFFIRMING
               THE JUDGEMENT OF CONVICTION (S ) REGARDING
               PETITIONER'S FIVE POINTS OF ERROR:

                                  -5-
                      ARGUMENT   AND   AUTHORITIES
                                                         i




FIRST APPELLATE POINT (restated):

        The evidence was legally insufficient to support the Burgl
ary conviction.


REASONS FOR REVIEW:   Rule 66.3(c),    T.R.A.P.


        The Court of Appeals ruled that the evidence was sufficient

regarding the identity element of the offense of Burglary of a Hab
itation when the onlt evidence that showed petitioner to have been
in the residence of the complainant was the aggravated assault with
a deadly weapon offense which the State abandoned. Nonetheless, The

alleged deadly weapon was an electronic DVD Player that in the man
ner of its use was capable of causing or did cause serious bodily
injury. The evidence clearly showed and was not contested that there

was no serious bodily injury. Thus, was the DVD Player capable in
                                                     (

the manner of its use to cause serious bodily injury?
        The evidence by the complainant demonstrated that someone

threw the DVD Player at him and it hit him causing brusie. His test
imony was equivocal. At one point in his testimony he indicated it
was petitioner who threw the DVD Player and then, again he indicat
ed it might have been someone else.See RR.Vol.3, p.35, 34-36 [He'
could not tell who threw the DVD Player. It was possibly petition
er].

       The state's counter position to the DVD Player being a dead
ly weapon in the manner of its use is predicated on a claim that
from evidence "the jury could reasonable infer that the manner of

the DVD player's us against Gonzalo transformed it into a deadly
weapon." See State's Brief at 17-18.

                                 -6-
          This inference evidence was off-set by the defense evidence

of mistaken      identification via the defense witnese             Chevon Muniz,who

testified that petitioner never went to the complainant's house on

December 10, 2010 [RR.Vol.3, pp.136-139]. Thus, the state's one

witness who gave a probable testimony that it was petitioner and

the    defense   one   witness   of   alibi.


          On the (flederal level when the evidence is equal or near equal

to a theory of guilt or innocence a reversal is mandated.                  See United

States-v-Lopez,        74 F.3d 575, 577 (5th Cir. 1996) ["We reverse if

the evidence 'gives equal or nearly equal circumstantial support

to a theory of guilt and a theory of innocence'".]; United States

-v-Ramos-Garcia,       184 F.3d 463, 465 (5th Cir.         1999)    ["If the evidence

'gives equal or near equal circumstantial support to a theory of

guilt or innocence', the Court should reverse because 'under these

circumstances a reasonable jury must necessarily entertain a reason

able doubt'".]; United States-v-Reveles,               190 F.3d 678 (5th Cir.

1999) [same]; Clark-v-Procunier,               755 F.2d 394 (5th Cir.    1985) [sane].

Accord Williams-v-State,          692 SW.2d 571, 676 (Tex.Crim.App. 1989)

[A guilty verdict should not stand because the defendant was found

to be the most likely perpetrator]; Urbano-v-State,                  837 Sw.2d 114

(Tex.Crim.App. 1992) [proof beyond a reasonable doubt means proof

that amounts to "a high degree of certainty".]; and it means "a

degree of more substantial evidence than a mere modicum" or a single

piece of evidence. Butler-v-State,               769 Sw.2d 234,    n.2 (Tex.Crim.

App.    1989).

          For these reasons petitioner urges the Court that the Court

of Appeals errored in finding the evdienee sufficient to burglary

of a habitation while using a deadly weapon. Especially in the light


                                          -7-
of the State abandoning the aggravated assault with a deadly weapon.
Thus,   this Court ought to grant this petition on this issue.


SECOND APPELLATE POINT (restated):


              COUNSEL FOR THE DEFENSE WAS   INEFFECTIVE.


        It is true the record is equivocal regarding defense counsel's

effectiveness but silent as to his trial strategies. Thus, petit
ioner is left the option of beseiging this Court to review the al

leged counsel errors and determine for itslef whether the Court of

Appeals was correct in their finding that defense counsel was not

ineffective. Doing so from the landmark decision of Strickland-v-

Washington, 466 U.S.668 (1984).

        Thus, petitioner stands upon appellate counsel's brief re

garding thisissue and beseeches the Court to rule accordingly. Id.

THIRD APPELLATE POINT (restated):


           THE TRIAL COURT COMMITTED ERROR IN NOT ALOWING
           DEFENSE WITNESSES TO TESTIFY AT THE PUNISHMENT


        Petitioner urges the Court that it was error to not allow

him to present two defense' witnesses in mitigation of punishment.
Both of these witnesses, Dolores Trevino & Crystal Garcia, were not
called to testify regarding the crime or their views as to whether

petitioner was innocent of the Burglary conviction but rather in

mitigation of punishment by testifying to their personal knowledge
petitioner's background and family relationship^). RR.Vol.4, pp.
113-116, 119; and p.126.

        The Court of Appeals errored holding that the sequestration
rule takes precedence over the Sixth Amendment. Claiming that:

                                  -8-
                     "Assuming without deciding that appellant
                     made a sufficient proof offer at trial
                     court level, he does not explain on appeal
                     how the testimony of the excluded witnesses
                     would have differed from that offered by
                     Ashley Gasca, whom the trial court permitted
                     to testify for appellant during the punish
                     ment stage . . . Appellant does not explain
                     how their testimony would have differed from
                     Ashley's or how it would have been crucial
                     to his case."

See Appellate Opinion in Appendix at p.11-12.

          The Court relied on the sequestration rule inconjunction with
Delapaz-v-State, 229 SW.3d 795, 802 (Tex.App. - Eastland 2007), rev'd.
on other grounds, 273 Sw.3d 671, 681 (Tex.Crim.App. 2008).
          Petitioner would urge the Court that a rule does not over

ride the Sixth Amendment and the Delapaz decision affirmatively
held the "witness' testimony would have been cumulative of other

tetsimony that had already been received" while the appellate court
surmised or speculated it would have been cumulative to Ashley SX
Gasca's testincny.

          For these reasons the Court should grant this petition and

allowing briefing on the issue. Accord, David-v-State, 872 SW.2d
743 (Tex.Crim.App. 1994) with Minor-v-State, 91 Sw.3d 824 (Tex.
App. Ft. Worth 2002, pet.        ref'd.) and Webb-v-State,   766 Sw.2d 236

(Tex.Crim.App. 1984).


FOURTH APPELLATE POINT (restated):


                     THS TRIAL COURT COMMITTED ERROR IN INCLUDING
                     THE AGGRAVATED ASSAULT WITH A DEADLY WEAPON
                     CONVICTION IN THE JUDGEMENT.


          The Court of appeals agreed with the trial court that an af

firmative finding         of a deadly weaponincluded within the aggravated

                                      -9-
assault offense-conviction should be in the judgement. Even though

it had been abandoned by the State and no deadly weapon element

was included within the Burglary of a Habitation offense charged
to the jury at guilt/innocenec or at punishment. See CR.pp, 15, 71-
78, 84-86 and 159-161; with RR.Vol. 5, pp. 8, 57, 81X88.36-43.

       Thus, it was error for the Court of Appeals to agree with

the trisl court that despite the Aggravated Assault count being
abandoned by the State, and the jury sentencing petitioner only on
the Burglary of a Habitation conviction, the trial court was cor

rect in including the Aggravated Assault with a deadly weapon into
the jury's judgement [as modified by the trial court]. CR. pp. •
84-85, 159-161. See Langs-v-State,   183 SW.3d 680, 686 (Tex. Crim.

App. 2006); Littrell-v-State, 271 Sw.3d 273 (Tex. Crim. App. 2008);
Garcia-v-State, 571 Sw.2d 896, 899 (Tex. Crim. App. 1978).

       For these reasons petitoner requests the Court to grant this

petition for discretionary review and allow for briefing.


FIFTH APPELLATE POINT (restated):


           THE TRIAL COURT COMMITTED ERROR IN MAKING A FIND_
           ING THAT A DEADLY WEAPON WAS USED OR EXHIBITED.



       Petitioner urges the Court that the Court of Appeals agre-
ing with the trial court's error in finding that a deadly weapon
was used or exhibits was contrary to the facts and law of this case.

In that, the indictment contained two felony counts, to wit,     the

Aggravated Assault with a deadly Weapon element, and a Burglary of
a Habitation. The Burglary cpount did not contain any deadly weapon

                              -10-
 element. CR. p.15. Likewise, the trial Court's Jury Charge instruct
 ions did not contain any deadly weapon element within the Burglary
 of a Habitation count of the indictment, at eiyher the guilt-
 innocence stage or the punishment phase. CR. pp.71-78; and RR. Vol.
 5, p.57, 84-88.Finally, the jury did not make a specific finding
 of any deadly weapon in the original judgement signed on April 23,
 2012. CR. pp.84-88.


        Furthermore, the evidence from.the victim showed that it
was only possible that petitioner was theone who struck him with
the DVD Player during the commission of an aggravated assault with
a deadly weapon which was abandoned by the State. See RR. Vol.3,
pp. 35-36; with RR.Vol.5, p.8

       Thus, it is apparent from the record that (1) the original
indictment did not contain any deadly weapon element within the
first count [the Burqlary offensel-    ni ^
                       y   y    lfaej! [2] the jury charge instruct
ions at both guilt/innocence and piunishment did not contain any
deadly weapon element within the Burglay of a Habitation count;
[3] the State abandoned the indictment count II that contained the
deadly weapon element; [4* and the evidence at trial showed an
equal or near equal legal snifl fsctual predicate for petitioner be
ing the person who used the alleged deadly weapon, to witK, the
DVD Player. Petitioner's defense was that the complainant was mis
taken as to him being the perpetrator.

       Yet, the trial court inserted an unfounded deadly weapon
finding in the judgement, even though originally the Court chose
not to make an affirmative finding. CR. pp.159-164.
       Forthese reasons there is not sufficient support to include
                                -11-
a deadly weapon element [finding] within the Burglary's judgement

of conviction. Especially, since the jury did not sentence petition

er with any deadly weapon element or finsinaffaomas-v-State, 821

Sw.2d 616 (Tex.Crim.App.1991); Nash-v-State,                     175 Sw.3d 487 (Tex.

App. - Texarkana 2005,           pet. ref'd.);        Berman-v-United States,    302

U.S.   211, 212 (1937) ["Final judgement in a criminal case means

sentence. The sentence is the Judgement."]; and the trial judge

cannot increase the punishment on his own when the jury is the

sentencer. See Apprendi-v-New Jersey,                   supra.


                                 PRAYER   FOR    RELIEF




        WHEREFORE PETITION CONSIDERED, petitioner-appellant prays

this Honorable Court will highly consider this prose petition for

discretionary review and thereafter GRANT accordingly and ORDER

briefing. It is so prayed. Thank you.



                          RESPECTFULLY REQUESTED,



                   /•>**J( _/ J)</s«<~ Jn •
                   FRANCISCO        DURAN,     JR.:     PETITIONER




                                     VERIFICATION



I, FRANCISCO DURAN JR., DO HEREBY VERIFY UNDER PENALTY OF PERJURY THAT THE FORE_
GOING FACTS CONTAINED IN THIS PETITION FOR DISCRETIONARY REVIEW ARE TRUE. I
ATTEST TO THIS SIGNING MY SIGNATURE BELOW:



                       /•/-*.>   /( _J~S VZ*     tXX?
                         FRANCISCO DURAN JR., AFFIANT




                                          -12-
                      CERTIFICATE     OF       SERVICE



I, Francisco Duran Jr., do hereby certify that true copies of the

foregoing petition for discretionary review was placed in the Rob

ertson Unit's mail box on the 8th DAY OF APRIL 2016,          addressed to

the Clerk of the Court of Criminal Appeals at Capitol Station,

Austin, Texas. I attest to this by affixing my signature below:



                  brands c a -y^A^a^ Ofc
                FRANCISCO   DURAN,    JR.:       PETITIONER
                    ROBERTSON UNIT         #    1793551
                       12071    FM              3522
                        12071        FM         3522
                        ABILENE,     TX.       79601




cc




                                -13-
            FRANCISCO DURAN, JR., Appellant, v. THE STATE OF TEXAS, Appellee.
      COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG
                              2013 Tex. App. LEXIS 8111
                                             NUMBER 13-12-00344-CR
                                               July 3, 2013, Delivered
                                                 July 3, 2013, Filed


Notice:

PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF
UNPUBLISHED OPINIONS.

Editorial Information: Prior History


On appeal from the 445th District Court of Cameron County, Texas.
Counsel                               FOR APPELLANT:            Edmund K.        Cyganiewicz,      Attorney At Law,
              Brownsville, TX.
                                        FOR APPELLEE: Luis V. Saenz, District Attorney, Brownsville,
              TX; Rene B. Gonzalez, Assistant District Attorney, Brownsville, TX; Christopher G. Gonzalez,
              Assistant District Attorney, Brownsville, TX.
Judges: Before Justices Rodriguez, Benavides and Longoria. Memorandum Opinion by Justice Longoria.
CASE SUMMARY


PROCEDURAL POSTURE: Defendant sought review of the decision of the 445th District Court of
Cameron County (Texas), which convicted him of burglary of a habitation, a first-degree felony, in violation
of Tex. Penal Code Ann. § 30.02(a)(3) (2011).Defendant's conviction for burglary of a habitation under
Tex. Penal Code Ann. § 30.02(a)(3) was proper because a rational jury could have concluded that by
throwing the DVD player at the victim, defendant used the DVD player in a manner in which it was capable
of causing serious injury or death.


OVERVIEW: Defendant challenged his conviction for burglary of a habitation and the appellate court
affirmed, as modified. A rational jury could have concluded that by throwing the DVD player at the victim,
defendant used the DVD player in a manner in which it was capable of causing serious injury or death, the
indictment's allegation that appellant committed aggravated assault gave appellant adequate notice that
the State may have sought an affirmative deadly weapon finding. Furthermore, the jury's verdict that
defendant was guilty as charged of burglary of a habitation with the underlying offense of aggravated
assault affirmatively supported the trial court's judgment that a deadly weapon was used. Therefore, the
trial court did not err by including the finding in its judgment.


OUTCOME: The appellate court modified the judgment to delete the words "Special Issue" in the deadly
weapon finding, to reflect that the State abandoned Count II before the punishment phase and to reflect
that punishment was assessed only on Count I, and to reflect that defendant was convicted of a

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first-degree felony. The judgment was affirmed as modified!

LexisNexis Head notes
 i   : • :--
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > General Overview
Evidence > Procedural Considerations > Burdens of Proof > Proof Beyond Reasonable Doubt
Evidence > Procedural Considerations > Circumstantial & Direct Evidence
Evidence > Procedural Considerations > Weight & Sufficiency

In evaluating the sufficiency of the evidence supporting a conviction, appellate courts view all the evidence
in a light most favorable to the verdict and ask whether any rational trier of fact could have found the
essential elements of the,crime beyond a reasonable doubt.: The trier of fact is the sole judge of the
credibility of witnesses and the weight, if any, to be given to their testimony. The reviewing court must give
deferenceito the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. The State may prove the
elements of an offense by either direct or circumstantial evidence. In a sufficiency review, circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. If the record supports conflicting inferences, the
appellate court presumes that the fact finder resolved the conflict in favor of the prosecution and defer to
that resolution.          i>

Criminal Law & Procedure >Appeals > Standards of Review > General Overview
Evidence i> Procedural Considerations > Weight &Sufficiency
Appellate courts measure the sufficiency of the evidence supporting a conviction by the elements of the
offense as defined by the hypothetically correct jury charge for the case applied to the particular facts of
the case.

Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery >
Aggravated Offenses > Elements
Criminal Law & Procedure > Criminal Offenses > Crimes Against Persons > Assault & Battery >
Simple Offenses > Elements
Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview

A person commits the crime of assault if he (1) intentionally, knowingly, or recklessly; (2) causes bodily
injury to another, Tex. Penal Code Ann. § 22.01(a)(1). The penal code defines "bodily injury" as physical
pain, illness or any impairment of physical condition, Tex. Penal Code Ann. § 1.07(a)(8) (Supp. 2011).
Bodily injury is proven by evidence that the victim suffered some pain. A person commits the felony
offense of aggravated assault if he commits assault and (1) causes serious bodily injury to another; or (2)
uses or exhibits a deadly weapon during the commission of the assault, Tex. Penal Code Ann. §
22.02(a)(2). A deadly weapon is anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury, Tex. Penal Code Ann. § 1.07(a)(17)(B). This language has been
interpreted to mean that it is not necessary for the State to show that a defendant intended to cause death
or serious bodily injury, only that appellant intended to use the object in a way that it could cause death or
serious bodily injury. In determining whether an object is a deadly weapon, the jury may consider all the
surrounding facts.

Criminal Law & Procedure > Juries & Jurors > Province of Court & Jury > General Overview
Criminal Law & Procedure > Appeals > Deferential Review > General Overview

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It is the role of the jury to resolve conflicts in the evidence, and the appellate courts must defer to that
resolution.

Criminal Law & Procedure > Appeals > Records on Appeal

An appellate court has the authority to modify the record to make it speak the truth when it has the
necessary information to do so, Tex. R. App. P. 43.2(b).

Criminal Law &Procedure > Criminal Offenses > Crimes Against Persons > Assault &Battery >
Aggravated Offenses > Penalties
Criminal Law & Procedure > Postconviction Proceedings > Parole

Eligibility for parole is affected by the inclusion in the convicting court's judgment of an affirmative finding
that the defendant used a deadly weapon, Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (Supp. 2011).
A defendant is generally entitled to notice in some form that the use of a deadly weapon will be a fact
issue at the time of prosecution. This notice need only be provided to the defendant in some form. A
completely separate indictmentarising out the same facts provides adequate notice. Aggravated assault
may be committed in only two ways, each involving the use of a deadly weapon. Therefore, an allegation
that the defendant committed or attempted to commit aggravated assault is adequate notice that there
would be an issue of the defendant's exhibition or use of a deadly weapon since each manner of
committing aggravated assault involves the use of a deadly weapon. Furthermore, the State may seek an
affirmative deadly weapon finding when, as in this case, an indictment alleges a burglary of a habitation in
which, after entering, the appellant committed or attempted to commit a felony of aggravated assault. In
such a case, the jury's verdict is an adequate basis for the trial court's entry of the affirmative finding in the
judgment under the statutes which require such findings.

Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of
Counsel
Criminal Law & Procedure > Counsel > Effective Assistance > Tests

In order to prevail on a claim of ineffective assistance of counsel, an appellant must meet the heavy
burden of Strickland, under which the defendant must show by preponderance of evidence that: (1)
counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable
probability that the result of the proceeding would have been different but for the attorney's deficient
performance. A reasonable probability is a probability sufficient to undermine confidence in the outcome. If
an appellant fails to prove one prong of the test, an appellate court need not reach the other prong.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of
Counsel
Criminal Law & Procedure > Counsel > Effective Assistance > General Overview
Criminal Law & Procedure > Appeals > Records on Appeal
Evidence > Inferences & Presumptions > Presumptions
Courts look to the totality of the representation and the particular circumstances of each case in evaluating
the effectiveness of counsel. Although a single egregious error of omission or commission can constitute
ineffective assistance, the court of criminal appeals has been hesitant to designate a particular error as
per se ineffective assistance. There is a strong presumption that counsel's conduct fell within the wide
range of reasonable professional assistance. Allegations of ineffectiveness must be firmly founded in the
record, and the record must affirmatively demonstrate the alleged ineffectiveness. Direct appeal is
therefore usually inadequate to make an ineffectiveness claim because the record is often undeveloped.

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This is especially true where counsel's reasons for failing to do something do not appear in the record.
Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced
as ineffective. Unless counsel had an opportunity to explain his trial strategy, Texas appellate courts will
not find deficient performance unless the challenged conduct was 'so outrageous that no competent
attorney would have'engaged in it.
Constitutional Law > Bill of Rights > Fundamental Rights > Criminal Process > Assistance of
Counsel
Criminal Law & Procedure > Counsel > Effective Assistance > Pretrial
Criminal Law & Procedure > Appeals > Records on Appeal
When the record is silent as to trial counsel's strategy, an appellate court may not speculate as to his
intentions. Complete failure to file pretrial motions does not constitute ineffective assistance of counsel
unless the defendant identifies prejudice that he suffered as a result.

Criminal Law & Procedure > Witnesses > Presentation

See Tex. Code Crim. Proc. Ann. art. 38.075(a) (Supp. 2011).

Evidence > Testimony > Sequestration

When invoked by either party or the court, Tex. R. Evid. 614 requires, with some exceptions, that
witnesses be excluded from the courtroom during trial so that they are unable to hear the testimony of
other witnesses. In excluding a defense witness from testifying for violation of Rule 614, a trial court
should take into account the defendant's constitutional right to call witnesses on his behalf and have them
testify. Generally, witnesses should not be excluded from testifying solely for violation of the rule. The
following is a two-part inquiry for determining whether a trial court abused its discretion in excluding a
defense witness for violation of Rule 614: (1) were there particular circumstances, other than the mere fact
of the violation, which would tend to show the defendant or his counsel consented, procured or otherwise
had knowledge of the witness's presence in the courtroom, together with knowledge of the content of that
witness's testimony; and (2) if no particular circumstances existed to justify disqualification, was the
excluded testimony crucial to the defense:

Evidence > Procedural Considerations > Objections & Offers of Proof > Offers of Proof

It is an appellant's burden to make a record, through a bill of exceptions, of the evidence he or she desires
admitted.


Criminal Law & Procedure > Criminal Offenses > Property Crimes > Burglary & Criminal Trespass
> Burglary > Elements

Burglary of a habitation is a first-degree felony if the premises entered is a habitation and the defendant
commits or attempts to commit an offense other than felony theft while there, Tex. Penal Code Ann. §
30.02(d)(1)-(2).                                                                                    .


                                                          Opinion

Opinion by:                  NORA L. LONGORIA

                                                          Opinion



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     MEMORANDUM OPINION

     Memorandum Opinion by Justice Longoria
     In five issues, which we have reordered, appellant, Francisco Duran, challenges his conviction for
     burglary of a habitation, a first-degree felony. See Tex. Penal Code Ann. § 30.02(a)(3) (West 2011).
     We affirm as modified.

     I. Background
     The State indicted appellant for burglary of a habitation with the underlying felony of aggravated
     assault (Count I) and a separate charge of aggravated assault with a deadly weapon (Count II). See
     id. §§ 30.02(a)(3), 22.02(a)(2) (West 2011). The aggravated assault charge contained in Count II was
     identical to the underlying felony alleged in the burglary charge.
     Gonzalo Gonzalez testified that he was watching movies in his apartment with Juan Luna when he
     heard a group of individuals coming down the alleyway, talking loudly. Gonzalez and Luna both exited
     Gonzalez's apartment to investigate. Gonzalez testified that there were six individuals in the group:
     three juvenile males, two adult males, and one adult female. Gonzalez identified appellant as one of
     the adults in the group.
     One of the other adults accused Luna of having thrown somethingl through the window of the house
     where the group had been barbecuing and then fleeing back into Gonzalez's apartment. The group
     began to crowd around Luna, and Gonzalez intervened to protect him.2 The group responded by
     accusing Gonzalez of being the one who broke the window. Gonzalez testified that he instructed the
     group to leave his property but appellant "ran into [his] house ... to search for whoever had broken
     the window." Gonzalez testified that he followed appellant into his house. The other adults followed
     Gonzalez, but the juveniles remained outside. Gonzalez testified that he grabbed appellant by the arm
     and attempted to pull him out of the house, at which time the other adult male in the group punched
     Gonzalez on the side of the head. Gonzalez testified that he fell to the floor as a result of the punch,
     and both appellant and the other adult male hit him. Gonzalez further testified that after he fell to the
     floor, appellant and the other adult male threw Gonzalez's Xbox game console, a "Wii Player," and a
     DVD player at him.3 The Wii and the DVD player struck Gonzalez's back. Because Gonzalez was on
     the floor facing downward he could not tell which of the two actually threw the DVD player. Gonzalez
     testified that at that point he got up, ran out of his apartment, and encountered police that were
     arriving to investigate the broken window. Appellant and the rest of the group returned through the
     alley to their house, where they had been barbecuing. Gonzalez testified that he suffered a laceration
     on his back and pain from his injuries.
     Appellant's acquaintance Martin Perez testified that he picked up appellant from the house with the
     broken window. Perez testified that appellant was laughing and joking about the incident with the other
     people there. According to Perez, appellant stated that he and a group of other males went down the
     alley to another residence, entered the residence, and "got into an altercation" with someone in the
     residence. Police later arrested both Perez and appellant. The State originally indicted Perez for
     playing a role in the assault, but later dismissed the charges. Perez did not testify pursuant Jo an
     agreement with the State.4                                                                     [
     Chevon Muniz, who was present at the barbeque at the time the window was broken, testified for the
     defense. She agreed that a group of men left to pursue the person who broke the window, but testified
     that appellant was not one of them. Muniz confirmed that appellant remained at the barbeque with her.


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     The jury returned a verdict of guilty on both counts. The State voluntarily vacated Count II, aggravated
     assault:with!a deadly weapon, before the sentencing phase out of concern that imposing punishment
     for it would violate appellant's double jeopardy protection against receiving two punishments for the
     same offense. See Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006). The jury found the
     enhancement paragraph of a prior felony to be true, and assessed twenty-five years' imprisonment in
     the Texas Department of Criminal Justice-Institutional Division. The State later filed a motion to
     modify the judgment to enter an affirmative deadly weapon finding. The trial court granted the motion
     oyer' appellant's objection and rendered a modified judgment that reflected an affirmative deadly
     weapon finding, this appeal followed.
     II. Discussion

     A. Sufficiency of the Evidence
     In his first issue,lappellant challenges the sufficiency of the evidence supporting his conviction for
     burglary of a habitation with the underlying offense of aggravated assault. See Tex. Penal Code Ann.
     § 30.02(a)(3). ;•:        i
     1. Standard of Review

     In evaluating the sufficiency of the evidence supporting a conviction, we view all the evidence in a light
     most favorable to the verdict and ask "whether any rational trier of fact could have found the essential
     elements of the crime beyond a reasonable doubt." Garcia v. State, 367 S.W.3d 683, 686-87 (Tex.
     Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560
     (1979)). The trier of fact, in this case the jury, is the sole judge of the credibility of witnesses and the
     weight, if any, to'be given to their testimony. Id.; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim.
     App. .2010) (plurality op). "The reviewing court must give deference to the responsibility of the trier of
     fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences
     from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing
     Jackson, 443 U.S. at 318-19 (1979)). The State may prove the elements of an offense by either direct
     or circumstantial evidence. Id. In a sufficiency review, "circumstantial evidence is as probative as
     direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be
     sufficient to establish guilt." Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). If
     the record supports conflicting inferences, we presume that the fact finder resolved the conflict in
     favor of the prosecution and defer to that resolution. Garcia, 367 S.W.3d at 687; see Brooks, 323
     S.W.3dat899n.13.

     2. Applicable Law

    We measure the sufficiency of the evidence supporting a conviction "by the elements of the offense
    as defined by the hypothetical^ correct jury charge for the case" applied to the particular facts of the
    case. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing Malik v. State, 953 S.W.2d
    234, 240 (Tex. Crim. App. 1997)). In this case, the State had to prove that appellant: (1) intentionally
    or knowingly; (2) entered a habitation; (3) without the owner's effective consent; (4) and while there
    committed or attempted to commit aggravated assault. See Tex. Penal Code Ann. § 30.02(a)(3).
    A person commits the crime of assault ifhe (1) intentionally, knowingly, or recklessly, (2) causes
    bodily injury to another. Id. § 22.01(a)(1). The penal code defines "bodily injury" as "physical pain,
    illness or any impairment of physical condition." Id. § 1.07(a)(8) (West Supp. 2011). Bodily injury is
    "proven by evidence that the victim suffered 'some' pain." In re. I.L., 389 S.W.3d 445, 455 n.7 (Tex.
    App.-EI Paso 2012, no pet.). "A person commits the felony offense of aggravated assault if he
    commits assault and (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly


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     weapon during the commission of the assault." Mitchell v. State, 137 S.W.3d 842, 845 (Tex.
     App.-Houston [1st Dist.] 2004, pet. refd); see Tex. Penal Code Ann. § 22.02(a)(2). A deadly weapon
     is "anything that in the manner of its use or intended use is capable of causing death or serious bodily
     injury." Tex. Penal Code Ann. § 1.07(a)(17)(B). The court of criminal appeals has interpreted this
     language to mean that it is not necessary for the State to show that a defendant intended to cause
     death or serious bodily injury, onlythat appellant intended to use the object in a way that it could cause
     death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); see also
     Bailey v. State, 46 S.W.3d 487, 490-91 (Tex. App.-Corpus Christi 2001, no pet.) (op. on remand). "In
     determining whether an object is a deadly weapon, the jury may consider all the surrounding facts."
     Quincy v. State, 304 S.W.3d 489, 500 (Tex. App.-Amarillo 2009, no pet.).
     In brief, the State was required to prove that appellant entered Gonzalez's apartment without his
     permission and, while there, committed assault, which became aggravated by appellant using the
     DVD player in a way that it could cause death or serious bodily injury.
     3. Analysis
     Appellant argues that "the evidence does not show the commission, or even the attempt to commit
     aggravated assault with a deadly weapon." Specifically, appellant argues that the DVD player was
     "was merely thrown and not used to hitthe victim." We interpret appellant as arguing that the evidence
     does not show that appellant used the DVD player as a deadly weapon.5 Gonzalez testified that
     appellant and the other adult male in the group threw an Xbox game console, a "Wii player," and a
     DVD player at appellant's back and that he suffered lacerations there as a result. Gonzalez further
     testified that he was still suffering pain from the impact of the DVD player at the time of the trial, which
     was held sixteen months after the incident. We conclude from this that the State produced sufficient
     evidence to demonstrate that appellant suffered bodily injury as a result of appellant's conduct.
     As discussed above, the State produced testimony that appellant and the other male in the group
     threw several objects at Gonzalez, including the DVD player, and that the DVD player struck
     Gonzalez's back. The DVD player itself was also admitted into evidence for the jury's inspection.
     Raynel Salinas, a Gang Investigator for the City of Harlingen Police Department, testified that he
     thought the DVD player was a deadly weapon because it could cause serious injury if it was thrown at
     a person, asit was in this case. Other courts of appeals have concluded thatobjects thrown at a
     person can qualify as a deadly weapon. See, e.g., Landrian v. State, 263 S.W.3d 332, 336 (Tex.
     App.-Houston [1st Dist.] 2007), rev'd on other grounds, 268 S.W.3d 532, 540-42 (Tex Crim. App.
     2008) (a broken bottle); see also Marin v. State, No. 08-00-344-CR, 2002 WL 1874815, at *3 (Tex.
     App.-EI Paso Aug. 15, 2002, no pet.) (mem. op.) (not designated for publication) (a "water meter
     cover" and glass bottle); Narcisee v. State, No. 14-96-97-CR, 1998 Tex. App. LEXIS 6918, 1998 WL
     767662, at *4 (Tex. App.-Houston [1st Dist.] Nov. 5, 1998, no pet.) (mem. op., not designated for
     publication) (a basketball).
     Although appellant argues that the DVD player was not used to hit the victim, the jury heard testimony
     that appellant threw the DVD player at Gonzalez and struck Gonzalez with it. It is the role of the jury to
     resolve conflicts in the evidence, and we must defer to that resolution. Garcia, 367 S.W.3d at 687; see
     Brooks, 323 S.W.3d at 899 n.13. In sum, we hold that a rational jury could have concluded that by
     throwing the DVD player at Gonzalez, appellant used the DVD player in a mannerin which it was
     capable of causing serious injury or death.6 See Landrian, 263 S.W.3d at 336.
     Accordingly, appellant's first issue is overruled.
     B. Modification

     In his second issue, appellant complains that the trial court erred in rendering a judgment that

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     included Count II, the aggravated assault charge. The record reflects that at the beginning of the
     punishment phase, the State's attorney rose and announced: "at this time the State is abandoning the
     second charge of aggravated assault with a deadly weapon due to the fact that the Defendant cannot
     be punished on both charges. It is double jeopardy, so we are going forward solely on the burglary of
     a habitation;[charge]." In its brief, the State does not oppose appellant's request, but instead responds
     that it "may be appropriate to modify the trial court's judgment by removing the Aggravated Assault
     conviction" but asks that we preserve the deadly weapon finding, an issue we address below.
     This Court has the authority to modify the record to make it speak the truth when it has the necessary
     information to do so. See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.
     App. 1992), It is unnecessary to completely delete Count II from the judgment because appellant was,
     in fact, convicted of it! We conclude thatthejudgment should be modified to reflect thatthe State
     abandoned Count II before the punishment phase and to affirmatively state that punishment was
     assessed only on Count I. See Gibson v. State, No. 06-07-200-CR, 2008 Tex. App. LEXIS 4915, 2008
     WL 2596221, at *5 (Tex. App.-Texarkana July 2, 2008, pet. refd) (mem. op./not designated for
     publication) ("Accordingly, the trial court was correct in accepting the jury's verdict for burglary and
     ignoring or dismissing its conviction for aggravated assault.")
     Appellant's second issue is otherwise overruled.
     C. Deadly Weapon Finding
     In his third issue, appellant complains that the trial court erred in modifying the judgment to include a
     deadly weapon finding because: (1) the State failed to provide adequate notice that it would seek an
     affirmative deadly weapon finding; (2) the jury's verdict does not support the trial court's entry of an
     affirmative deadly weapon finding; and (3) the modified judgment incorrectly states that the deadly
     weapon finding was made by the jury pursuant to a special issue.
     1. Applicable Law
    "[Eligibility for parole [is] affected by the inclusion in the convicting court's judgment of an affirmative
    finding that [the defendant] used a deadly weapon." Blountv. State, 257 S.W.3d 712, 713 (Tex. Crim.
    App. 2008); see Tex. Code Crim. Proc. Ann. art. 42.12 § 3g(a)(2) (West. Supp. 2011). A defendant is
    generally "entitled to notice in some form that the use of a.deadly weapon will be a fact issue at the
    time of prosecution." Grettenberg v. State, 790 S.W.2d 613, 614-15 (Tex. Crim. App. 1990) (citing Ex
    parte Beck, 769 S.W.2d 525, 526 (Tex. Crim. App. 1989)). This notice need only be provided to the
    defendant in some form. Id.; see Brooks v. State, 847 S.W.2d 247, 248-49 (Tex. Crim. App. 1990) (a
    completely separate indictment arising out the same facts provides adequate notice). "Aggravated
    assault may be committed in only two ways[,]... each involving] the use of a deadly weapon." Blount,
    257 S.W.3d at 714. Therefore, "an allegation that the defendant committed or attempted to commit
    aggravated assault [is] adequate notice that there would be an issue of [the defendant's] exhibition or
    use of a deadly weapon since each manner of committing aggravated assault involves the use of a
    deadly weapon." Crumpton v. State, 301 S.W.3d 663, 664 (Tex. Crim. App. 2009). Furthermore, the
    State may seek an affirmative deadly weapon finding when, as in this case, an "indictmentallege[s] a
    burglary of a habitation in which, after entering, the appellant committed [or] attempted to commit a
    felony of aggravated assault." Blount, 257 S.W.3d at 714. In such a case, "the jury's verdict [is] an
    adequate basis for the trial court's entry of the affirmative finding in the judgment under the statutes
    which require such findings." Crumpton, 301 S.W.3d at 665.
    2. Analysis
    In this case, the indictment's allegation that appellant committed aggravated assault gave appellant
    adequate notice that the State may have sought an affirmative deadly weapon finding. See id. at 664.

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     Furthermore, we conclude that the jury's verdict that appellant was guilty as charged of burglary of a
     habitation with the underlying offense of aggravated assault "affirmatively supports the trial court's
     judgmentthat a deadlyweapon was used." Id. at 665. Therefore, the trial court did not err by including
     the finding in its judgment. See id. ("[If] the jury finds the defendant guilty as charged in the indictment,
     the verdict is necessarily a finding that a deadly weapon was used.").
     Finally, although we agree with appellantthat the court did not submita special issue to the jury, "[t]he
     State may be able to obtain a deadly-weapon finding from the juryat the guilt phase of trial either
     through the wording of the offense submission in the jury charge or through a special issue." See In re
     State ex rel. Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012). We conclude that the judgment
     should be modified to delete the words "Special Issue" and to reflect that the deadly weapon finding
     was entered because of the jury's verdict that appellant was guiltyas charged in the indictment.
     Appellant's third issue is overruled in all other respects.7
     D. Ineffective Assistance of Counsel

     In his fourth issue, appellant argues that he received ineffective assistance of counsel at trial as a
     result of a series of errors.

     1. Applicable Law

     In order to prevail on a claim of ineffective assistance of counsel, an appellant must meet the heavy
     burden of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Jaynes
     v. State, 216 S.W.3d 839, 851 (Tex. App.-Corpus Christi 2006, no pet.). Under Strickland, the
     defendant must show by preponderance of evidence that: (1) counsel's representation fell below an
     objective standard of reasonableness; and (2) there is a reasonable probability that the result of the
     proceeding would have been different but for the attorney's deficient performance. Strickland, 466
     U.S. at 687; Jaynes, 216 S.W.3d at 851. "A reasonable probability is a probability sufficient to
     undermine confidence in the outcome." Exparte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007). If
     an 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).
     We look to "the totality of the representation and the particular circumstances of each case in
     evaluating the effectiveness of counsel." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
     1999). Although "a single egregious error of omission or commission" can constitute ineffective
     assistance, the court of criminal appeals has been hesitant to designate a particular error as per se
     ineffective assistance. Id. "There is a strong presumption that counsel's conduct fell within the wide
     range of reasonable professional assistance." Id. Allegations of ineffectiveness must be "firmly
     founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id.
     Direct appeal: is therefore usually inadequate to make an ineffectiveness claim because the record is
     often undeveloped. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This is
     especially true "where counsel's reasons for failing to do something do not appear in the record." Id.
     The court of criminal appeals has explained that "trial counsel should ordinarily be afforded an
     opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101
     S.W.3d 107, 111 (Tex. Crim. App. 2003). Unless counsel had an opportunity to explain his trial
     strategy, Texas appellate courts will "not find deficient performance unless the challenged conduct
     was 'so outrageous that no competent attorney would have engaged in it.'" Goodspeed, 187 S.W.3d
     at 392 (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).' .
     2. Analysis :

     Appellant argues that a number of single errors constitute ineffective assistari.ee of counsel, and even

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     ifany of these errors do not suffice, counsel's performance as a whole compels a finding of ineffective
     assistance. Appellant complains of the following alleged errors by his trial counsel: (1) that counsel did
     not appear when ordered to by the court and had a writ of attachment issued for him; (2) once trial
     counsel appeared at jury selection, he performed "a very limited voir dire"! and did not discuss
     important matters such as the defendant's possible election not to testify, the indictment; and the
     elements of the charged offense; (3) counsel's cross-examination of the State's witnesses was
     "rambling and not coherent," resulting in multiple admonishments from the trial judge; (4) counsel did
     not conduct an independent investigation and only moved for discovery the Friday before the Monday
     omwhich trial was scheduled to start; (5) counsel did not request a jury instruction on lesser-included
     offenses; and (6) he did not request a jury instruction on testimony of a jailhouse informant pursuant to
     article 38.075(a) of trie';code of criminal procedure. See Tex. Code Crim. Proc. AnnJart. 38.075(a)
     (WestSupp. 201 i).                                                                            l
     The record is silent as to trial counsel's strategy, and we may not speculate as to his intentions. His
     decision not to request a jury instruction on the lesser-included offenses could have been part of an
     "all-or-nothing trial strategy." Ex parte.White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004). There is no
     evidence indicating whether or not counsel conducted an independent investigation.. Appellant faults
     trial c^ms^ljornot filing a motion for disgoveiy until the trial had almoststarted, but.appejlant has not
     indentJfjed^jn^prejudjce that he"suffered~See slncT<1and~^lj.S. at697; Garcia, 57 S.W.3d at440;
     see also HammondlTStaie, 942 S.W.2d 703, 710 (Tex. App.-Houston [14th Dist.] 1997, no pet.)
     (concluding that complete failure to file pretrial motions does not constitute ineffective assistance of
     counsel unless the defendant identifies prejudice that he suffered as a result). In any case, without a
     fuller record detailing trial counsel's strategy, appellant's claim of ineffective assistance fails as to
     these issues. See Goodspeed, 187 S.W.3d at 392; Rylander, 101 S.W.3d'at 111.
     Appellant also argues that trial counsel was ineffective for conducting a brief voir dire, but "a brief
     voire dire need riot be equated with ineffectiveness of counsel." Hollis v. State, 219;S.W.3d 446, 463
     (Tex. App.-Austin 2007, no pet.). The record reflects that trial counsel actually used all of the time he
     was given by the trial court for voir dire. During that time, he questioned the panel members regarding
     whether they understood the State's burden to prove his client's guilt beyond a reasonable doubt
     despite their own personal feelings, and questioned specific members with personal ties to law
     enforcement whether they could impartiallyconsider police testimony. We hold that appellant's
     ineffective assistance of counsel issue fails as to this claim.

    Appellant next argues that trial counsel erred by failing to request a jury instruction under article
    38.075(a) of the code of criminal procedure regarding Perez's testimony. See Tex. Code Crim. Proc.
    Ann. art. 38.075(a). Article 38.075(a) provides that:

         A defendant may not be convicted of an offense on the testimony of a person to whom the
         defendant made a statement against the defendant's interest during a time when the person was
         imprisoned or confined in the same correctional facility as the defendant unless the testimony is
         corroborated by other evidence tending to connect the defendant with the offense committed./d.
    However, Perez testified to incriminating statements appellant made before they were even arrested.
    Therefore, article 38.075(a) was inapplicable. Accordingly, we hold that appellant's ineffective
     assistance of counsel issue fails as to this claim.

    Appellant next argues that trial counsel's representation was deficient because he had not seen a
    video that the State showed to the jury during the punishment phase before the State moved to admit
     it. The video apparently consisted of a compilation of recordings of numerous incidents of jailhouse
     misconduct by appellant during the trial. Although trial counsel stated that he had not seen the video,
     he made several proper objections before the court admitted it. Therefore, even assuming that not

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     viewing the video was error, appellant has not established how he suffered prejudice as a result of it.
     We hold that appellant's ineffective assistance claim fails as to this issue.
     Finally, appellant argues that his counsel was ineffective because his cross-examination of the State's
     witnesses was "rambling and not coherent." Counsel's questions specifically challenged Gonzalez's
     identification of appellant, the extent of Gonzalez's bodily injury because he refused transportation to a
     hospital at the time of the offense, and whether the DVD player and other electronic equipment used
     in the assault qualified as deadly weapons. Counsel also asked questions of Perez that highlighted the
     possibility that he was being less than truthful because the State previously indicted him in connection
     with this burglary. Admittedly, counsel refused to move on once the trial judge ruled that counsel's
     questions had been asked and answered at several points during the trial. The record nevertheless
     shows that counsel's cross-examination effectively challenged the testimony of the State's witnesses
     and was far from "rambling and incoherent." Accordingly, we hold that appellant's ineffective
     assistance claims fails as to this issue.8

     We overrule appellant's fourth issue.
     E. Exclusion of Defense Witnesses

     In his fifth issue, appellant argues that the trial court committed error by excluding twowitnesses
     appellant wished to call to testify during the punishment phase of the trial for violation of the witness
     sequestration rule.

     1. Standard of Review and Applicable Law
     When invoked by either party or the court, Texas Rule of Evidence 614 ("the Rule") requires, with
     some exceptions, that witnesses be excluded from the courtroom during trial so that they are unable
     to hear the testimony of other witnesses. Tex. R. Evid, 614; see Longoria v. State, 148 S.W.3d 657,
     660 (Tex. App.-Houston [14th Dist.] pet. refd). In excluding a defense witness from testifying for
     violation of Rule 614, a trial court should take into account the defendant's constitutional right to call
     witnesses on his behalf and have them testify. Longoria, 148 S.W.3d at 660. "[Generally, witnesses
     should not be excluded, [from testifying] solely for violation of the rule."/d. The court of criminal
     appeals has announced a two-part inquiryfor determining whether a trial court abused its discretion in
     excluding a defense witness for violation of Rule 614:
          (1) were there particular circumstances, other than the mere fact of the violation, which would
          tend to show the defendant or his counsel consented, procured or otherwise had knowledge of the
          witness's: presence in the courtroom, together with knowledge of the content of that witness's
          testimony; and (2) if no particular circumstances existed to justify disqualification, was the
          excludeditestimony crucial to the defense. Webb v. State, 766 S.W.2d 236, 245 (Tex. Crim. App.
          1989); see Longoria, 148 S.W.3d at 660.
     2. Analysis

     Appellantadrpits that both excluded witnesses were present during the guilt-innocence stage of the
     trial, but he argues that neither of them were going to testify regarding the facts of case. At trial,
     appellant's counsel also argued that the two witnesses were only going to testify as to "background
     and family issues." Appellant did not explain the content of the testimony further, and it is unclear if he
     made a sufficient offer of proof to preserve this issue for review. "It is appellant's burden to make a
     record, through a bill, of exceptions, of the evidence he or she desires admitted." Montgomery v. State,
     383 S.W.3d. 722, 726 (Tex. App.-Houston [14th Dist.] 2012, no pet.). Assuming without deciding that
     appellant made a sufficient offer of proof at the trial court level, he does not explain on appeal how the
     testimony ofthe excluded witnesses Would have differed from that offered by Ashley Gasca, whom

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     the trial court permitted to testify for appellant during the punishment stage. Gasca testified that
     appellant was a positive role model for her and greatly assisted Gasca and her mother and sister once
     appellant came to live with them after his parents died. Appellant's two excluded witnesses were
     Gasca's mother, Dolores Trevino, and Crystal Gasca, whom we infer from the record to be Ashley
     Gasca's sister. Appellant does not explain howtheir testimony would have differed from Ashley's or
     how it would have been crucial to his case. Because appellant has not demonstrated that he meets
     the second prong: of the Webb test, and is therefore unable to show he suffered prejudice from the
     exclusion, we conclude that the trial court did not abuse its discretion in refusing to permit Trevino and
     Crystal Gasca to testify. See Delapaz v. State, 229 S.W.3d 795, 802 (Tex. App.-Eastland 2007), rev'd
     on other grounds, 273 S.W.3d 671, 681 (Tex. Crim. App. 2008)) (testimony of excluded defense
     witness was not crucial when the witness' testimony would have been cumulative of other testimony
     that had already been received). Appellant's final issue is overruled.
     F. State's Requested Modification
     The State also requests that we modify the judgment to reflect that appellant was convicted of a
     first-degree felony. The judgment states that appellant was convicted of a second-degree felony.
     Burglary of a habitation is a first-degree felony if the premises entered is a habitation and the
     defendant commits or attempts to commit an offense other than felony theft while there. Tex. Penal
     Code Ann. § 30.02(d)(1)-(2). The facts of this case fulfill both of these requirements. Accordingly, we
     grant the State's request and modify the judgment to reflect that appellant was convicted of a
     first-degree felony. See Tex. R. App. P. 43.2(b); French, 830 S.W.2d at 609.                 ,;
     III. Conclusion

     We modify the judgment to delete the words "Special Issue" in the deadly weapon finding, to reflect
     that the State abandoned Count II before the punishment phase and to reflect that punishment was
     assessed only on Count I, and to reflect that appellant was convicted of a first-degree felony. We
     affirm the judgment as modified.
     /s/ Nora L. Longoria
     NORA L. LONGORIA .

     Justice

     Do not publish.
     Tex. R. App. P. 47.2(b).
     Delivered and filed the

     3rd day of July, 2013.

                                                         Footnotes



     1

    There was conflicting testimony about whether a brick or a rock was used to break the window.
    2

     Luna is hearing impaired and was unable to understand what the group was saying.
    3

    Gonzalez also testified that appellant and the other male also tried to throw Gonzalez's TV but did not

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     remove the cord from the,wall first.
     4

     On cross-examination, Perez testified that he was unsure of whether the indictment was still pending
     against him, although it appears from the nature of the questions of appellant's attorney that it had
     already been dismissed.
     5

     The "Wii Player" was also used to hit the victim, but the State argued at trial that the DVD player
     constituted the deadly weapon, and the judgment of conviction so reflects.
     6

    Appellant argues, correctly, that Gonzalez was facing downward when the DVD player hit him and
    testified that he was unable to see who threw it. Our analysis still applies because the jury charge in
    this case allowed the jury to convict appellant for aggravated assault either as the primary actor or as
    a party to it. See Tex. Penal Code Ann. § 7.02(a)(2) (West 2011).
     7

     Appellant also includes language in his brief that reargues the sufficiency of the evidence supporting
     the deadly weapon finding. We have already considered-that argument above in appellant's first issue
     and need not repeat our reasoning here. See Tex. R. App. P. 47.1, 47.4.
     8

     Appellant also complains that when trial counsel did not appear on the morning of jury selection, the
     trial court issued a writ of attachment for him. Although this behavior certainly qualifies as a mistake,
     appellant does not allege how he suffered prejudice from it. Furthermore, no prejudice is apparent
     from the record, especially because trial counsel appeared later that day, the court recalled the writ,
     and jury selection proceeded.




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