                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-14-00115-CR

KENNETH BELL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                            From the County Court
                             Navarro County, Texas
                           Trial Court No. C34388-CR


                         MEMORANDUM OPINION


      Kenneth Wayne Bell was convicted of burglary of a habitation and sentenced to

43 years in prison. See TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). Because the

evidence is sufficient to support Bell’s conviction, Bell did not prove ineffective

assistance of counsel, and his sentence was not illegal, the trial court’s judgment is

affirmed.

SUFFICIENCY OF THE EVIDENCE

      Bell contends in his first issue that the evidence in insufficient to support his
conviction because the State did not introduce evidence of Bell’s intent to commit theft.

         The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

                In determining whether the evidence is legally sufficient to support
         a conviction, a reviewing court must consider all of the evidence in the
         light most favorable to the verdict and determine whether, based on that
         evidence and reasonable inferences therefrom, a rational fact finder could
         have found the essential elements of the crime beyond a reasonable doubt.
         Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
         13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
         responsibility of the trier of fact fairly to resolve conflicts in the testimony,
         to weigh the evidence, and to draw reasonable inferences from basic facts
         to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
         directly and independently to the guilt of the appellant, as long as the
         cumulative force of all the incriminating circumstances is sufficient to
         support the conviction." Hooper, 214 S.W.3d at 13.

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

         The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "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." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and


Bell v. State                                                                                Page 2
can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

         Burglary of a habitation requires proof that the person, without the consent of

the owner, entered a habitation with the intent to commit a felony, theft, or an assault.

TEX. PENAL CODE ANN. § 30.02(a)(1) (West 2011). A jury may infer intent to commit

theft from a forcible entry into a home. Gear v. State, 340 S.W.3d 743, 748 n. 9 (Tex.

Crim. App. 2011). The nonconsensual entry of a habitation at night creates a rebuttable

appellate presumption that the actor intended to commit theft. LaPoint v. State, 750

S.W.2d 180, 182 (Tex. Crim. App. 1986).        Further, evidence of flight upon being

interrupted during the burglary can be evidence of intent to commit theft. Gear, 340

S.W.3d at 748.

         During the early morning hours of September 16, 2011, Bell and his co-

defendant, Tony Harris, approached a house and removed an air conditioner unit from

a window. Harris testified that it was their intent to steal the air conditioner. After the

unit was removed, Bell was seen by a neighbor entering the house through the window

where the unit had been. Bell then ran when police arrived at the scene moments later.

Thus, the jury could infer from this evidence that Bell had the intent to commit theft

when he entered the home. Bell argues on appeal that because the home was vacant, he

could not have had the intent to commit theft. However, there was testimony that the

owner of the house had recently died and the jury could readily infer that because Bell

and Harris had already removed the air conditioning unit, Bell entered the house to see


Bell v. State                                                                        Page 3
what else he could take.

         After considering the evidence in the light most favorable to the verdict, we find

a rational jury could have found the essential element of intent to commit theft beyond

a reasonable doubt. Bell’s first issue is overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

         Bell next asserts that his trial counsel rendered ineffective assistance because

counsel failed to investigate evidence that could have been used to mitigate

punishment. Bell claims that his mental health records were not investigated by his

attorney.

         In order to prevail on a claim of ineffective assistance of counsel, Bell must meet

the two-pronged test established by the United States Supreme Court in Strickland that

(1) counsel's representation fell below an objective standard of reasonableness, and (2)

the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.

Crim. App. 2011). Unless a defendant can prove both prongs, an appellate court must

not find counsel's representation to be ineffective. Lopez, 343 S.W.3d at 142. In order to

satisfy the first prong, Bell must prove by a preponderance of the evidence that trial

counsel's performance fell below an objective standard of reasonableness under the

prevailing professional norms. Id. To prove prejudice, Bell must show that there is a

reasonable probability, or a probability sufficient to undermine confidence in the

outcome, that the result of the proceeding would have been different. Id.


Bell v. State                                                                         Page 4
         An appellate court must make a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Id. (quoting Robertson

v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006)). Claims of ineffective assistance of

counsel are generally not successful on direct appeal and are more appropriately urged

in a hearing on an application for a writ of habeas corpus. Id. at 143 (citing Bone v. State,

77 S.W.3d 828, 833 n. 13 (Tex. Crim. App. 2002)). On direct appeal, the record is usually

inadequately developed and "cannot adequately reflect the failings of trial counsel" for

an appellate court "to fairly evaluate the merits of such a serious allegation."          Id.

(quoting Bone, 77 S.W.3d at 833).

         Bell did not file a motion for new trial on the basis of ineffective assistance of

counsel and the record is silent as to any potential strategy by his trial counsel as to why

he did not investigate the alleged mental health records.         Although there is some

suggestion in the record that Bell had seen a psychiatrist, the record is also silent as to

whether those records existed, or if they did, what part of those records could be used

as mitigation for punishment. We will not speculate as to trial counsel's strategy for

allegedly not investigating these records further. Because Bell has not met his burden to

establish the first prong in Strickland, we overrule his second issue.

ILLEGAL SENTENCE

         In his third issue, Bell contends his sentence is illegal because the State did not

file a notice of enhancement of punishment. A notice was filed in a previously indicted

case and unofficially transferred to the case Bell appeals. Bell contends the transferred


Bell v. State                                                                          Page 5
notice is not adequate.

         The Court of Criminal Appeals has held that "prior convictions used as

enhancements must be pled in some form, but they need not be pled in the indictment."

Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997). The notice requirement

dictated by Brooks is of constitutional origin, and the ultimate question is whether

constitutionally adequate notice was given. Villescas v. State, 189 S.W.3d 290, 294 (Tex.

Crim. App. 2006). Due process does not require that the notice be given before the guilt

phase begins, much less that it be given a number days before trial. Id.

         We abated this appeal at Bell’s request to the trial court to hold a hearing to

determine the proper contents of the clerk’s record in this appeal. According to the trial

court’s findings of fact and conclusions of law in response to the abatement hearing,

Bell was indicted for the offence of burglary of a habitation in October of 2011 and

counsel was appointed.       Four months later, the State filed its Notice of Intent to

Enhance Punishment. In May of 2012, Bell was indicted for the same offense under the

same facts as the previous indictment. The only difference in the indictments was the

name of the owner of the home. Bell’s appointed attorney remained the same. At some

point after the new indictment, and without a motion and a ruling by the trial court, the

trial court clerk moved most of the documents, including the notice of enhancement

into the newly indicted case. The previously indicted case was dismissed.

         After the jury’s verdict and although the trial court did not ask Bell to plead to

two enhancements, the trial court proceeded directly to the punishment phase, asking


Bell v. State                                                                        Page 6
the State to call its first witness to prove up the enhancements. Bell did not object to the

enhancement evidence. Further, during the punishment phase, the State asked the trial

court to take judicial notice of the previously filed Notice of Intent to Enhance

Punishment. Again, Bell said nothing.

         Because the ultimate question is whether constitutionally adequate notice was

given, we find that, based on the evidence before us, the previously filed and

transferred notice was constitutionally adequate. Thus, Bell’s sentence was not illegal,

and Bell’s third issue is overruled.

         Having overruled each issue presented on appeal, we affirm the trial court’s

judgment.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 20, 2015
Do not publish
[CRPM]




Bell v. State                                                                         Page 7
