
NO. 07-03-0348-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 13, 2004

______________________________


DELBERT LEE BURKETT, 

									Appellant

v.

THE STATE OF TEXAS, 

									Appellee


_________________________________

FROM THE 284TH DISTRICT COURT OF MONTGOMERY COUNTY;

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

_______________________________

Before QUINN, REAVIS, and CAMPBELL, JJ.
	Appellant Delbert Lee Burkett challenges his conviction for indecency with a child
by contending that 1) the evidence was legally and factually insufficient to support his
conviction, 2) the trial court erred in failing to rule on his objection to the State's closing
argument in which the prosecutor injected himself as a witness and correct the prejudicial
effect of that and other argument, and 3) he received ineffective assistance of counsel.  We
affirm the judgment of the trial court.
Background
	On August 6, 2002, at approximately 6:30 p.m., 12-year-old A.P. was riding her
bicycle to her friend's house.  A Cadillac came around the corner towards her and stopped. 
A man got out of the car but left the engine on.  He stepped to the middle of the road,
unbuckled his belt, dropped his pants, and pulled down his underwear.  Appellant then
began masturbating.  As A.P. rode by, he reached out his arm to her and touched her on
the arm.  She swerved, dropped her bicycle in a ditch near her friend's house, ran to the
house, and beat on the door.  
	A.P. told her friend's mother, Sandy Steede, about the incident.  Sandy called 911
and also called her husband Dusty, a former police officer, who was driving home.  Sandy
gave him a description of the man and vehicle as she had learned it from A.P.  Shortly
thereafter, Dusty observed a Cadillac with a driver matching the description given him,
followed it to a store, and recorded its license plate number.  So too did he see appellant,
who appeared to him to be "very nervous."  Appellant apparently spied Dusty because
when he left the store in the Cadillac, he was "[s]pinning his tires and watching [Dusty],
turning around and looking."  Dusty pursued him and witnessed appellant reach speeds of
80 to 90 miles an hour and run a stop sign before ending the pursuit.  
	The license plate number was used by police to trace the vehicle to Robert Vincent. 
However, Vincent had given the vehicle to appellant.  
 

Issue One - Legal and Factual Sufficiency
 In his first two issues, appellant attacks the legal and factual sufficiency of the
evidence supporting his conviction.  He intimates it was not enough to establish that he was
the individual standing in the street that day.  We overrule the issue.
 Standard of Review
	The applicable standards of review are well settled and fully discussed in Jackson
v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Sims v. State, 99 S.W.3d
600 (Tex. Crim. App. 2003), Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), and
King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000).  We refer the parties to those
opinions rather than discuss the standards here.  
 Application of Standards
	As to the claim of legal sufficiency, A.P. (a 12-year-old girl) testified at trial that
appellant was the person who dropped his pants, exposed his genitalia, masturbated, and
reached for her.  That is some evidence upon which a rationale factfinder could conclude,
beyond reasonable doubt, that appellant was the one who committed the criminal act.
	As to the claim of factual insufficiency, appellant suggests that there was no physical
evidence linking him to the offense, but only the testimony of A.P.  Furthermore, because
there were differences between A.P.'s original statement to police and her testimony at
trial, the evidence does not support his conviction. (1)  Yet, contradictions or conflicts in
testimony do not destroy its sufficiency or otherwise render it non-probative; instead, they
may simply affect its weight or the witness' credibility.  Jimenez v. State, 67 S.W.3d 493,
505 (Tex. App.-Corpus Christi 2002, pet. ref'd).  And, the extent to which the factfinder
credits either the evidence or the witness is a matter lying solely within the discretion of the
factfinder.  Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). 
 Given A.P.'s testimony identifying appellant as the culprit, Dusty's testimony
identifying appellant as the individual who drove the Cadillac, and the testimony describing
appellant's attempt to evade Dusty, we cannot say that the verdict is so against the great
weight of all the evidence as to render it unjust.  Nor can we say that the sum of all the
evidence makes weak that evidence supporting conviction.  A jury could well have decided
that a 12-year-old girl alone on a street when accosted by an adult may not take the time
to memorize all physical characteristics of her assailant or may omit to inform others of
certain characteristics in the heat of the moment.  Again, it lay within the jury's province to
decide what weight, if any, to accord the evidence presented by the State.  
	In sum, the evidence supporting the verdict is both legally and factually sufficient. 
Additionally, we reject appellant's argument to the contrary.    
Issues Two and Three - Improper Closing Argument

	In issues two and three, appellant complains about two aspects of the State's jury
argument.  The first involves the prosecutor's supposed attempt to inject himself as a
witness into the case while the second concerns his purported effort to mislead the jury. 
We overrule both issues.
	As for the first complaint, the prosecutor indicated during his closing statement that 
A.P. was being truthful because he had personally spoken with her.  Appellant objected,
and the trial court directed the State to "avoid this area."  Rather than comply, the
prosecutor returned to his argument by again informing the jury that he had spoken with
the girl.  So too was he about to reveal what she told him when appellant again complained. 
In response, the trial court told the prosecutor he could "state what [he] heard from the
witness stand."  At that point, the prosecutor began to reiterate what the victim said while
testifying at trial.  
	We note that appellant initially contends that the trial court failed to rule on his
objections.  In making this argument, however, appellant says nothing about why the
directives to "avoid this area" and to limit his comments to what the child said from the
witness stand do not constitute rulings.  This omission is of import because authority clearly
recognizes that a judge may impliedly rule upon an objection.  Rey v. State, 897 S.W.2d
333, 336 (Tex. Crim. App. 1995).  Moreover, such occurs when the court's actions or
statement unquestionably indicate a ruling.  Id.  Here, telling the prosecutor to "avoid this
area" and to restrict his comment to what the child said from the witness stand
unquestionably indicates that the prosecutor was to stop doing that which he attempted. 
Moreover, these directives came in response to appellant's objections.  Thus, we conclude
that while the trial judge may not have used the words "sustained" or "overruled," he,
nonetheless, impliedly sustained the objections.
	Next, to the extent appellant suggests that the trial court erred in ameliorating the
prejudicial effect of these and other comments made by the prosecutor, we note that he
asked the court to neither instruct the jury to disregard them nor grant a mistrial.  Authority
holds that to preserve error involving prosecutorial misconduct, such as improper jury
argument, the complainant must not only object but also request an instruction to disregard
and move for a mistrial.  Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App.), cert.
denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995).  Since appellant sought
neither an instruction to disregard or a mistrial, any error arising from the prosecutor's
attempt to become a witness and reiterate what the child told him was not preserved.
	The same is true with the complaint regarding the prosecutor's alleged attempt to
mislead the jury.  The trial court sustained the objection, and appellant solicited no further
relief.  By neglecting to do so, he did not preserve his complaint.  Id.
Issue Four - Ineffective Assistance of Counsel

 Through his final issue, appellant contends that he received ineffective assistance
of counsel with respect to the preparation of the jury charge.  The ineffectiveness
purportedly concerned the lesser-included offense of indecent exposure.  While the lesser
offense was included in the jury charge, counsel allegedly failed to object to 1) the lack of
a definition for "reckless," 2) the characterization of the offense as a class B misdemeanor,
and 3) the omission of an instruction requiring the jury to give appellant "the 'benefit of the
doubt' if [it] cannot decide which offense" he committed.  This allegedly evinced
ineffectiveness on the part of counsel.  We overrule the issue.
 Standard of Review
	The standard of review requires appellant to prove by a preponderance of the
evidence not only that counsel's representation fell below the objective standard of
professional norms but also that it prejudiced his defense.  Bone v. State, 77 S.W.3d 828,
833 (Tex. Crim. App. 2002).  To satisfy the latter prong, it must be shown that there existed
a reasonable probability that but for the misconduct, the result would have been different. 
Id.  And, this occurs when the circumstances undermine our confidence in the outcome. 
Id. 
 Application of Standard
	Appellant neither cited authority nor proffered explanation illustrating why it was error
for his counsel to withhold objection about 1) the characterization of the offense as a class
B misdemeanor or 2) the missing "benefit of the doubt" instruction.  This may be because
1) indecent exposure is a Class B misdemeanor, Tex. Pen. Code Ann. §21.08 (b) (Vernon
2003), and 2) a trial court need not give a "benefit of the doubt" instruction when the
charge, as here, instructs the jury that, if it is not convinced beyond a reasonable doubt that
appellant is guilty of the greater offense, it should acquit him of that offense and then
consider his guilt for the lesser one.  Benavides v. State, 763 S.W.2d 587, 589 (Tex. App.-
Corpus Christi 1988, pet. ref'd).  Given this, we cannot say that these complaints establish
deficient performance on the part of trial counsel. 
	As to the definition of "reckless," appellant makes no effort to explain how or if the
verdict would have differed had the definition been given. (2)  He simply concludes that the
omission was harmful, denied him a fair trial, and undermined the confidence in the verdict. 
Again, his burden was to establish how the supposed error hurt him, not simply conclude
that it did.  This neglect coupled with the rather overwhelming evidence of appellant's guilt
for indecency with a child requires us to reject his claim of ineffective assistance.  See Ladd
v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1070, 120 S.Ct.
1680, 146 L.Ed.2d 487 (2000) (holding that because appellant made "no effort to prove the
prejudice prong" he was not entitled to relief).
	Having overruled each of appellant's arguments, we affirm the judgment.

							Brian Quinn 
						              Justice

Do not publish.   			
1. The differences consisted of A.P. testifying at trial that she did not tell anyone originally that appellant
had a mustache, a tattoo on his arm, that his penis was out, or that the man was masturbating.  As to the
omission regarding appellant's masturbation, she said that she did not originally tell police because she did
not know how to describe it and because she was embarrassed by it.   
2.  Indeed, this same deficiency encompasses each item of misconduct about which appellant
complains in issue 4.  Thus, all are subject to rejection on this basis.  

