      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00427-CR



                                 John Anthony Kerr, Appellant

                                                  v.

                                  The State of Texas, Appellee




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
       NO. 3021911, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted John Anthony Kerr of four counts of credit card fraud. The district

court assessed sentence at twelve years in prison. On appeal, Kerr complains that the court erred by

excluding witnesses sua sponte and by admitting evidence of an offense rendered extraneous when

the State abandoned a count of the indictment. He contends that the verdict was not supported by

legally and factually sufficient evidence. He also complains that his trial counsel rendered

ineffective assistance. We affirm the judgment.


                                        BACKGROUND

               Appellant worked as a front-desk clerk at a motel in Austin. His supervisor testified

that the duties of a front-desk clerk included taking credit card numbers from guests making

reservations and paying for visits. Appellant’s brother’s girlfriend or common-law wife, Heather
Huckaby Kerr, worked as a front-desk clerk at a motel across the street from the motel where

appellant worked.

               Alex Damalas and his family stayed at appellant’s motel March 14-16, 2002.

According to the motel’s records, appellant took the reservation the day before the stay began;

computer records show that, for no apparent reason, he reexamined the entry shortly after making

it. Damalas used a credit card to pay for his family’s stay. On March 20, 2002, Damalas’s credit

card company contacted him about purchases being made in Austin using his credit card account;

he lives in San Antonio and was in Houston at the time. The charges included $6,741.30 from Roger

Beasley Mazda and $1,623.75 from Furniture Warehouse. There later was another unauthorized

charge on March 22, 2002 for $647.34 at Quality Appliance.

               Ed Collie, Roger Beasley Mazda’s parts manager, testified that a man ordered a motor

and transmission (“the motor”) over the telephone. The caller tried more than one credit card before

what turned out to be Damalas’s card went through. Because the store had to order the motor, the

buyer could not take possession that day. By the time the motor came in, police suspected credit card

fraud and arranged to be present when the motor was picked up. Police arrested Julian Herbeck, a

mechanic, when he tried to pick up the motor in a truck owned by appellant’s brother, Milton Kerr;

Herbeck testified that he needed the motor for his own car. Milton Kerr had introduced him to a

man, later revealed to be Lejean Rogers, who ordered the motor through some connections for a

good deal. Herbeck was to pay Rogers $500-$600 for the motor.

               Sandra Johnson of Furniture Warehouse testified regarding the two transactions at

her store. On March 20, 2002, she took a telephone order for a sofa, recliner and love seat.

Although the caller identified himself as Robert Johnson, he used Damalas’s credit card. Damalas’s

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card was the second card the caller attempted to use; the first was declined. When the man

identifying himself as Robert Johnson called two days later and ordered more furniture (ostensibly

for his college-age child), Sandra Johnson became suspicious because the caller hesitated when

asked about his address, then gave a different address than before. She charged the sale, but then

called the credit card company, which reported that Damalas’s card was being used without

authorization. She voided the transaction. When some men arrived to pick up the furniture, she told

them she needed a signature from the cardholder.

               Abigail Jones from Quality Appliance testified that a man identifying himself as

Stephen Smith ordered a washer and dryer over the telephone. He paid for it with Damalas’s credit

card. She identified appellant as one of two men who came to pick up the appliances.

               Law enforcement officials also linked appellant to the purchases. In March 2002,

Secret Service Agent Blaine Burrell went to what he described as appellant’s residence in Austin and

found appliance boxes matching the type of appliances that had been purchased using Damalas’s

credit card. The residents appeared to be moving, and Burrell learned that the lease expired March

31, 2002; he also learned that appellant and his housemates were moving to Bastrop County. On

July 25, 2002, Austin detective Andrew Perkel executed a search warrant at the Bastrop County

home where appellant was found along with some of the merchandise from these unauthorized

purchases. Perkel testified that appellant admitted knowing of the unauthorized purchases.

               There was testimony regarding other unauthorized charges made with credit cards of

other former guests at the motel where appellant worked and the motel where Heather Kerr worked.

Appliances matching the description of those purchased through these unauthorized transactions

were found at appellant’s home, which he shared with Milton Kerr and Heather Kerr. Appellant also

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admitted to police that he knew Rogers, the man who ordered the motor for Herbeck. Police

determined that Rogers was one of the men who picked up the appliances.


                                         DISCUSSION

               Appellant raises four points of error on appeal. He complains that the district court

erred by excluding witnesses sua sponte and by admitting evidence of an offense rendered

extraneous when the State abandoned a count of the indictment. He contends that the verdict was

not supported by legally and factually sufficient evidence. He also asserts that his trial counsel

rendered ineffective assistance.

               By his first point of error, appellant complains that the district court sua sponte

excluded witnesses Heather Kerr and Milton Kerr because they were expected to invoke their right

not to incriminate themselves. Both witnesses were subpoenaed and present, but did not testify.

After placing Heather Kerr under oath, the following exchange occurred among appellant’s trial

attorney Thomas Prichard, assistant district attorney Duke Hildreth, and the court:


       THE COURT:          Now, what’s your request regarding Heather Kerr?

       MR PRICHARD: . . . she tells me that her attorney is Kyle Collins—

       THE COURT:          Yes.

       MR. PRICHARD: —and I’ve asked her—she said that she had two numbers for
                     him and I asked her to give him a call so . . .

       THE COURT:          Well, as a practical matter, is she even going to be reached until
                           the morning?

       MR. PRICHARD: I’m not sure.



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       THE COURT:           I can’t imagine with all the people in the call. But, anyhow, we
                            need—we need—she needs to call her attorney before she
                            testifies if she has one.

       MR. PRICHARD: She does.

                                               ***

       MR. HILDRETH: Judge, and I’m sure the Court is aware on the information on her
                     stating her name, if she has charges pending and it is very
                     important that she be advised of her rights because I don’t want
                     to go through this hoop if she’s going to invoke the 5th.

       THE COURT:           Well, I don’t have a comment on that. She has a lawyer, and she
                            ought to use her lawyer. But, in any event, you’re here by
                            subpoena, and you need to advise him you’ve been subpoenaed.
                            And that Mr. Prichard—if your lawyer wants to talk to Mr.
                            Prichard—do you have a number he can [c]all you on or
                            something, Mr. Prichard?

       MR. PRICHARD: Well, I want to make it clear to the Court and to Mr. Hildreth
                     that I know that she has charges pending, I know that she has an
                     attorney. I have not attempted to talk to her.


The court then advised Heather Kerr to contact her attorney and to return the next morning. A

similar, but much briefer, exchange occurred later that same day regarding appellant’s intent to call

Milton Kerr. Appellant’s attorney advised the court that he intended to call Milton Kerr the next

morning and said, “I’m assuming we need to get his lawyer.”

               The next morning, the court remarked to Prichard that two lawyers were looking for

him. Prichard stated that several witnesses had been subpoenaed and were present, that attorney

Collins was present, and that Prichard had spoken with appellant. After the jury entered the

courtroom, the defense rested without calling any witnesses.




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               In order to preserve error concerning the exclusion of evidence, a party must offer the

evidence, have the court exclude it, and inform the court of the nature of the evidence to be excluded.

See Tex. R. Evid. 103(a); Tex. R. App. P. 33.1(a); Love v. State, 861 S.W.2d 899, 900-01 (Tex.

Crim. App. 1993); see also Hitt v. State, 53 S.W.3d 697, 708 (Tex. App.—Austin 2001, pet. ref’d).

The record contains none of these events. At most, the record shows that the court strongly

encouraged appellant’s attorney not to call the witnesses without their attorneys present. When the

attorneys apparently were present, appellant chose not to call the witnesses. Appellant did not call

the witnesses, the court did not exclude them, and appellant did not make an offer of proof of what

their testimony might have been. He did not preserve error. We overrule point of error one.

               By his third point of error, appellant complains that the court abused its discretion by

admitting evidence of an offense that had formed the basis of an abandoned count of the indictment.

He complains that the court should not have admitted evidence of the unauthorized use of a credit

card other than Damalas’s card, even for the limited purpose of showing a common plan or scheme.

To preserve error regarding the admission of evidence, a defendant must lodge a timely and specific

objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). Appellant did not object

until some time after the admission of evidence of a purchase order and testimony relating to an

abandoned count in the indictment. This untimely objection did not preserve error. See Norris v.

State, 902 S.W.2d 428, 439, 442 (Tex. Crim. App. 1995); see also Hitt, 53 S.W.3d at 707-08. We

overrule point of error three.

               By point of error two, appellant contends that the evidence was legally and factually

insufficient to support the verdict. He complains that he had nothing to do with the purchase of the



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motor and that no evidence identifies him as the person who ordered or picked up the furniture or

appliances. He contends that no evidence directly links him to the charges for which he was

convicted. He asserts that he is linked to the use of Damalas’s credit card only by virtue of his

employment at the motel when the number was appropriated, and linked to the purchased goods only

by being present at the home when police executed the search warrant. He argues that the evidence

is too weak and that there are reasonable alternative hypotheses for commission of the offenses that

do not involve him.

               When both the legal and factual sufficiency of the evidence are challenged, we must

first determine whether the evidence is legally sufficient to support the judgment. See Clewis v.

State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In a legal sufficiency review, we view all of

the evidence in the light most favorable to the verdict and then determine whether a rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson

v. Virginia, 443 U.S. 307, 319 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App.

2004). In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set

the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly

unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt

could not have been met. See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).

               A person commits the offense of credit card abuse if “with intent to obtain a benefit

fraudulently, he presents or uses a credit card or debit card with knowledge that: (A) the card,

whether or not expired, has not been issued to him and is not used with the effective consent of the

cardholder . . . .” Tex. Pen. Code Ann. § 32.31(a)(1) (West Supp. 2004-05). The jury charge



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included an instruction on the law of parties, which holds a defendant criminally responsible for acts

in which he is not the primary actor. See id. §§ 7.01-.02 (West 2003); Goff v. State, 931 S.W.2d 537,

544 (Tex. Crim. App. 1996); Rivera v. State, 990 S.W.2d 882, 887 (Tex. App.—Austin 1999, pet.

ref’d). To establish liability as a party, the State must show that the defendant had the intent to

promote or assist the commission of the offense. Rivera, 990 S.W.2d at 887. The evidence must

reflect that at the time of the offense the parties acted together each doing some part to execute the

common design, a design which can be shown by direct or circumstantial evidence. Id. at 887-88.

Although the court of criminal appeals has rejected the reasonable alternative hypothesis test in legal

sufficiency claims, the test can be used in factual sufficiency claims. Richardson v. State, 973

S.W.2d 384, 387 (Tex. App.—Dallas 1998, no pet.); Harris v. State, 133 S.W.3d 760, 763-65 (Tex.

App.—Texarkana 2004, pet. ref’d); see also Orona v. State, 836 S.W.2d 319, 322 n.2 (Tex.

App.—Austin 1992, no pet.). Circumstantial evidence, however, need not exclude all reasonable

alternative hypotheses. Roberts v. State, 9 S.W.3d 460, 464 (Tex. App.—Austin 1999, no pet.).

               Viewed in the light most favorable to the verdict, the evidence shows that appellant

had access to Damalas’s credit card by taking the motel reservation; he also had continued access

to the computer system. Appellant was identified as one of the men who picked up appliances

purchased with the credit card without Damalas’s consent. He knew Rogers, who ordered the motor

for Herbeck. Appellant was living at the house where the items matching the description of the

unauthorized purchases were discovered pursuant to a search warrant. The common thread through

all of the offenses for which he was convicted is the credit card number he was in position to supply.

He was charged as a party to the offense. Legally sufficient evidence supports his convictions.



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               Viewed without the prism of the light most favorable to the verdict, the evidence is

also factually sufficient to support his convictions for these offenses. The absence of evidence that

appellant personally ordered the items does not preclude a finding of guilt based on his role in

obtaining Damalas’s credit card number. In taking the Damalases’ motel reservation, appellant

recorded the credit card number used in the unauthorized transactions. Although Heather Kerr

worked across the street and occasionally came across the street to visit, there is no evidence that she

obtained the credit card number. When police executed the search warrant at the Bastrop County

house, appellant told them he knew about the unauthorized purchases. Appellant is the only person

who worked in the motel where the Damalases stayed who also lived in the house where many of

the items were found. Although Jones was somewhat equivocal in her identification of appellant as

one of the persons who picked up furniture, the jury could assess her certainty. Even the purchase

of the motor—which was not intended for the Kerr household and never left Roger Beasley

Mazda—was made possible by use of the credit card number that circumstantial evidence showed

that appellant obtained; the absence of evidence that appellant was more involved in the transaction

does not prevent the jury from inferring that appellant participated as a party by providing the credit

card used in this unauthorized transaction in order to reap a benefit. We overrule point two.

               By point of error four, appellant contends that his counsel provided ineffective

assistance. Appellant contends that counsel was ineffective during the guilt-innocence phase by

failing to call witnesses other than Herbeck, the mechanic who tried to pick up the motor from Roger

Beasley Mazda. He particularly complains of the failure to call Heather Kerr and Milton Kerr. He

also asserts that the failure to call any witnesses at the punishment phase constituted deficient



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performance. He argues that mitigation evidence might have reduced his twelve-year prison

sentence toward the lower end of the two-to-twenty-year range. See Wiggins v. Smith, 539 U.S. 510,

534-38 (2003) (effective counsel would have investigated and introduced evidence of murderer’s bad

childhood that might have persuaded jury to opt against death penalty).

               To show ineffective assistance, an appellant must satisfy a two-part test. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App.

1986). The appellant must show that counsel’s performance was deficient—i.e., that counsel made

errors so serious that counsel’s performance fell below an objective standard of reasonableness.

Strickland, 466 U.S. at 687-88; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The

appellant also must show that counsel’s deficient performance prejudiced the defendant. Strickland,

466 U.S. at 694; Thompson, 9 S.W.3d at 812. This prejudice is demonstrated when the appellant

shows “a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812.

The same standard of review applies to both the guilt-innocence and the punishment phases of trial.

Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999).

               There is a strong presumption that trial counsel’s conduct fell within the range of

reasonable professional assistance. Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.—Austin 2000,

no pet.); see Thompson, 9 S.W.3d at 813. When the record is silent as to possible trial strategies, the

appellate court will not speculate as to why counsel acted in a particular way. Jackson v. State, 877

S.W.2d 768, 771 (Tex. Crim. App. 1994); Mayhue v. State, 969 S.W.2d 503, 511 (Tex.

App.—Austin 1998, no pet.). Review of a trial counsel’s performance must be highly deferential.



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Thompson, 9 S.W.3d at 813. The appellant bears the burden of overcoming the presumption of

reasonable performance and of presenting a record demonstrating that counsel’s performance was

not based on sound trial strategy. See Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813.

Although a single error or omission by counsel could constitute ineffective assistance, an appellate

court looks to the “totality of the representation” in assessing counsel’s effectiveness. Thompson,

9 S.W.3d at 813. Counsel’s effectiveness is assessed from the perspective at trial, not in hindsight.

Strickland, 466 U.S. at 689; Mayhue, 969 S.W.2d at 510. The burden of showing ineffectiveness

is difficult if there is no evidentiary hearing on the issue of counsel’s effectiveness. Bone v. State,

77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

               The record does not show that appellant’s trial counsel’s performance was deficient.

The record shows that trial counsel capably presented pretrial motions, subpoenaed witnesses, cross-

examined witnesses, and objected to the admission of evidence. We have only the trial record before

us. As set out above in the discussion of point of error one, appellant’s counsel subpoenaed Heather

Kerr and Milton Kerr, but contacted their counsel because of the expectation that they would invoke

their right not to incriminate themselves. Apparently after a discussion with appellant, counsel

announced that the defense rested at guilt-innocence without calling either witness. There is nothing

in the record to show what the Kerrs’ testimony might have been. Likewise, the record is silent

regarding what evidence appellant thinks would have mitigated his punishment.

               Even if the failures to call witnesses at both phases were so deficient as to render

counsel’s assistance ineffective, appellant has failed to show that the deficiency harmed him.

Without knowing what testimony was not provided at the guilt-innocence phase, we cannot assess



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whether it would have changed the jury’s verdict. Without knowing what mitigation evidence might

exist, we cannot speculate on its potential effect at punishment on the district court, which assessed

sentence. This case stands in stark contrast to Wiggins, in which the record on the petition for the

writ of habeas corpus relief was replete with evidence of the murderer’s diminished mental capacity

and his childhood of privation, abuse, rape, and homelessness that was not fully investigated or

introduced by his trial counsel. See Wiggins, 539 U.S. at 524-26, 534-38. The record here does not

similarly show a reasonable probability that, but for counsel’s alleged errors, the results at guilt-

innocence or punishment would have been different. We overrule point four.


                                          CONCLUSION

               Having overruled appellant’s complaints about the admission of evidence, the

sufficiency of the evidence, and the effectiveness of trial counsel, we affirm the judgment.




                                               Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: March 10, 2005

Do Not Publish




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