Affirmed and Memorandum Opinion filed February 5, 2019.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00377-CR

                       TERRY DANELL WARD, Appellant
                                           V.
                         THE STATE OF TEXAS, Appellee

                     On Appeal from the 155th District Court
                              Austin County, Texas
                       Trial Court Cause No. 2017R-0011

                   MEMORANDUM                       OPINION

      Appellant Terry Ward appeals his first-degree felony conviction for failing to
comply with sex offender registration requirements. He contends that (1) the evidence
is insufficient to support his conviction; (2) the trial court erroneously instructed the
jury in the punishment charge regarding the use of enhancements in assessing
appellant’s punishment; and (3) he was denied effective assistance of counsel. We
affirm.
                                    BACKGROUND

      Appellant was charged with failure to comply with sex offender registration
requirements. See Tex. Code Crim. Proc. Ann. arts. 62.102(a), 62.055(a) (Vernon
2018). A four-day jury trial was held on May 1, 2017. Appellant stipulated that he
had been convicted of indecency with a child and was therefore required to register as
a sex offender.

      At trial, Officer Damon Hagen of the Austin County Sheriff’s Department
testified that he was in charge of sex offender registrations in Austin County. He
testified that appellant registered with him as a sex offender because appellant resided
in Austin County. Appellant reported his address to be a trailer home located at 1078
North Granville Street in Austin County, Texas (the “Granville address”) on February
4, 2014.

      Officer Hagen testified that appellant was required to comply with several
registration requirements, including notifying the correct registration authority— i.e.,
Officer Hagen at the Austin County Sheriff’s Department—of his home address, phone
number, and job location. Officer Hagen provided appellant with a sex offender
registration form on April 2, 2014 which outlined the specific registration
requirements. Officer Hagen also discussed the registration form with appellant.
Appellant filled out the form and initialed each requirement at the time, including the
provision requiring him to notify the registration authority seven days before moving
from his registered home address. On July 16, 2014, appellant again confirmed his
address was 1078 North Granville Street in Austin County, Texas.

      Officer Hagen stated he became concerned appellant no longer lived at the
Granville address after receiving “an anonymous call saying that [appellant] was not
living at [the Granville] address and was living in San Felipe” in December 2014.
Shortly thereafter, Officer Hagen went to the Granville address in unsuccessful
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attempts to locate appellant at the trailer home at 11:15 a.m. on January 5, 2015; at 5:50
a.m. on January 6, 2015; and at 11:40 a.m. on January 9, 2015. Officer Hagen also
asked Police Officer Rubin Leal, who worked the night shift, to check appellant’s
registered Granville address during his shift. Officer Leal visited the Granville address
several times in the middle of the night.

      Officer Hagen testified that he neither saw appellant at the Granville address nor
saw “any sign that anybody was living at that property.” According to Officer Hagen,
there was “a lot of trash laying around” inside the trailer home and it looked like, “Junk.
Like a dump. Abandoned. Unlivable.” Some windows were boarded up, some
windows were left open, there was a “[b]roken out window,” one door was kicked in
and could not be closed, and another door was “not even on the hinges.”

      Officer Hagen concluded that appellant did not live at the Granville address and
obtained a warrant for appellant’s arrest. Due to the anonymous tip that appellant lived
in San Felipe and his previous knowledge that appellant’s children went to school in
Sealy, Officer Hagen contacted the Sealy Independent School District and obtained the
home address of appellant’s children in San Felipe. Officer Hagen then travelled to the
children’s home in San Felipe, accompanied by U.S. Marshals Kozielski and Mattuse.
When the officers arrived at the home, appellant answered the door. Officer Hagen
took appellant into custody and testified appellant never informed him that appellant
moved (or intended to move) from the Granville address.

      Police Officer Rubin Leal of the Austin County Sheriff’s Department also
testified at trial. He stated that he visited appellant’s Granville address as requested by
Officer Hagen at 2:00 a.m. on January 7, 2015; at 1:50 a.m. on January 10, 2015; and
at 2:15 a.m. on January 12, 2015. Officer Leal never saw appellant at the Granville
address. Officer Leal observed that “most of the windows on the trailer were broken
and the door seemed to barely be standing up on the front door.” It did not appear to

                                            3
Officer Leal that “anybody had lived there for quite some time.”

      U.S. Marshal Matthew Kozielski testified that he travelled with Officer Hagen
to appellant’s children’s home in San Felipe to assist with appellant’s arrest. At the
time, only appellant and his teenage daughter [“D.W.”] were at home. While Officer
Hagen handcuffed appellant, U.S. Marshal Kozielski together with U.S. Marshal
Mattuse questioned D.W. U.S. Marshal Kozielski testified, “We basically asked her
how long Mr. Ward had been living at the residence and how long she had been living
at the residence and she said she had been staying there for approximately a month and
a half and that Mr. Ward had been there the entire time that she had been living there.”

      D.W. also testified at trial. She stated that she lived at the San Felipe home with
her mother, sister, younger brother, and twin brother. She stated that officers arrested
appellant at her San Felipe home in January 2015 and questioned her “if Terry Ward
lived there and [she] told them yes.” She testified that the officers “didn’t specify
which Terry Ward they were talking about, so [she] thought they were talking about
[her] brother.” D.W. also testified she did not remember telling the officers that her
“dad, Terry, had been staying there for a month and a half.” D.W. stated that appellant
often visited and stayed late at the home in San Felipe but never stayed later than “11:30
or 12:00.”

      The jury also heard testimony from appellant’s cousin, Jamie Davis, who lived
across from appellant’s registered trailer home. Davis testified that he did not see
appellant at the Granville address in December 2014 and January 2015, although he
also stated that he “stayed in the house all the time” to take care of his mother and
grandmother.

      After the State rested, the defense called several witnesses. Appellant’s aunt and
next-door neighbor, Angela Wolfe, testified that appellant lived at the Granville
address in January 2015. Appellant got water from Wolfe by running a water hose
                                            4
through the window to flush his toilet. He used an extension cord from Wolfe’s home
for electricity to run electric heaters in the trailer, and he had “some” pre-paid
electricity service through San Bernard Electric Co-op.

      Appellant’s mother testified that in January 2015 appellant came to her house to
eat and bathe, but he never stayed overnight. She testified that appellant stayed at her
house until 1:00 a.m. or 2:00 a.m. and then either walked to his Granville address or
she drove him there. She stated that she was “not aware of him ever expressing an
intent . . . to move elsewhere, to live elsewhere.”

      The jury also heard testimony from appellant’s cousin, Johnny Harris. He
testified appellant worked for him from 2014 to 2017. Harris claimed he often picked
appellant up from the Granville address between 5:40 a.m. and 6:00 a.m., and
sometimes as early as 5:30 a.m. Harris claimed appellant never lived anywhere else
but in the trailer home at the Granville address. Harris stated the trailer looked “all
right” inside and “wasn’t trashed out.”

      Finally, appellant’s neighbor, Ronnie Harris, testified he lived across the street
from appellant. He testified appellant lived in the trailer home at the Granville address
in January 2015. He claimed seeing appellant in the mornings when Johnny Harris
picked appellant up for work and in the evenings when Johnny Harris dropped
appellant off.

      After hearing the evidence, the jury found appellant guilty and assessed his
punishment at 99 years’ confinement. Appellant filed a timely notice of appeal.

                                       ANALYSIS

I.    Sufficiency of the Evidence

      Appellant argues in his first issue that the evidence is legally and factually
insufficient to support his conviction for failing to comply with sex offender

                                            5
registration requirements because appellant lived at the address he registered with the
registration authority in January 2015 and never moved.

      The legal sufficiency standard of review is the only standard applied to
determine whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt. Temple v. State,
390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (“[T]his Court now applies only one
standard ‘to evaluate whether the evidence is sufficient to support a criminal conviction
beyond a reasonable doubt: legal sufficiency.’”). For this review, we consider the
combined and cumulative force of all admitted evidence and any reasonable inferences
therefrom in the light most favorable to the verdict to determine whether the jury was
rationally justified in its decision. Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim.
App. 2017). Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015).

      The jury is the sole judge of credibility and the weight to be attached to
witnesses’ testimony. Temple, 390 S.W.3d at 360. The jury may accept one version
of the facts and reject another, and it may reject any part of a witness’s testimony.
Kelley v. State, 429 S.W.3d 865, 872 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d). We may not substitute our judgment for that of the jury and must defer to the
jury’s responsibility to fairly resolve or reconcile conflicts in the evidence. Isassi v.
State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      A person commits the offense of failure to comply with sex offender registration
requirements if he is “required to register and fails to comply with any requirement of”
chapter 62 of the Code of Criminal Procedure, entitled Sex Offender Registration
Program. See Tex. Code Crim. Proc. art. 62.102(a); Young v. State, 341 S.W.3d 417,

                                           6
425 (Tex. Crim. App. 2011) (“Article 62.102 is a generalized ‘umbrella’ statute that
criminalizes the failure to comply with any of the registration requirements set out in
Chapter 62.”).

      Article 62.051(a) requires a person with a “reportable conviction” to register “in
any county where the person resides or intends to reside for more than seven days.”
Tex. Code Crim. Proc. art. 62.051(a) (Vernon 2018). A “reportable conviction”
includes a conviction for indecency with a child. Id. art. 62.001(5)(A) (Vernon 2018).
If a person required to register under this chapter intends to change his address, he
shall, not later than the seventh day before the intended change, report in person to the
local law enforcement authority designated as the person’s primary registration
authority and provide the authority and the officer with his anticipated move date and
new address. See id. art. 62.055(a).

      There is no dispute appellant was required to register as a sex offender under
chapter 62 of the Code of Criminal Procedure in January 2015 because he was
convicted of indecency with a child. Appellant’s complaint on appeal is that the
evidence is insufficient to establish he did not comply with sex offender registration
requirements in January 2015 because “the State failed to prove the element that
Appellant moved without advising the registration authority.” In that regard, appellant
contends he presented evidence at trial that, in January 2015, he lived at the Granville
address he had registered with Officer Hagen.

      Appellant is correct that his mother, aunt, cousin, and one neighbor testified that
he lived at the Granville address in January 2015. However, the State presented
evidence that appellant did not reside at the registered Granville address, but instead
moved to San Felipe and lived with his ex-wife and children there.

      Officer Hagen testified he unsuccessfully attempted to locate appellant at his
registered Granville address on three different days in January 2015. Officer Leal also
                                           7
attempted to locate appellant on three different occasions during the night shift, but
appellant was never there. Officer Hagen testified that the trailer home looked
abandoned, unlivable, and like a dump; it had broken or boarded up windows and
broken doors. Officer Leal confirmed that the trailer home was in very poor condition
and that it did not appear “anybody had lived there for quite some time.” Officer Hagen
also testified that appellant’s cousin and neighbor, Davis, stated he had not seen anyone
live at the Granville address since the previous resident had gone to jail in October
2014.

        Further, Officer Hagen went to the home of appellant’s children in San Felipe
where he found appellant and his daughter D.W. Appellant never informed Officer
Hagen that he had moved or intended to move from the Granville address. U.S.
Marshal Kozielski confirmed that appellant answered the door at his children’s San
Felipe home and was there with D.W. U.S. Marshal Kozielski testified that he
questioned D.W., “basically ask[ing] her how long Mr. Ward had been living at the
residence and how long she had been living at the residence and she said she had been
staying there for approximately a month and a half and that Mr. Ward had been there
the entire time that she had been living there.” Additionally, appellant’s cousin, Davis,
who lived across from appellant’s registered trailer home, testified he did not see
appellant at the Granville address in December 2014 and January 2015.

        Considering all the evidence and any reasonable inferences therefrom, including
the cumulative force of incriminating circumstances, we conclude that the jury as the
sole judge of credibility and weight to be attached to testimony reasonably could have
determined that appellant intended to change his registered Granville address, moved
from that address, and failed to report and provide to his primary registration authority
his new address. See Johnson, 509 S.W.3d at 322; Ramsey, 473 S.W.3d at 809; Temple,
390 S.W.3d at 360. Viewing the evidence in the light most favorable to the verdict, we

                                           8
conclude the evidence is legally sufficient to support the jury’s verdict. Accordingly,
we overrule appellant’s first issue.

II.   Punishment Charge Error

      Appellant contends in his second issue that he was egregiously harmed because
the trial court erroneously submitted a punishment jury charge that allowed appellant’s
conviction for indecency with a child to be used as one of two previous felony
convictions to enhance appellant’s punishment to the habitual felony offender range of
25 to 99 years imprisonment. Appellant contends that, without the enhancement based
on the indecency with a child conviction, he would have been subject to a five-year
minimum punishment instead of the 25-year minimum for habitual felony offenders;
and if the jury had known the “true minimum sentence was only five (5) years, they
[sic] would have looked more favorably on Appellant and assessed a lower sentence.”

      In reviewing a jury charge, the court first determines whether error occurred.
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Johnson v. State, 416
S.W.3d 602, 609-10 (Tex. App.—Houston [14th Dist.] 2013, no pet.). If the court finds
error, it then evaluates whether sufficient harm resulted from the error to require
reversal. Johnson, 416 S.W.3d at 610; see Ngo, 175 S.W.3d at 743.

      Here, the jury charge set out the allegations for indictment enhancement
paragraphs A1, A2, A3, B, and C, and instructed the jury as follows:

      Enhancement Paragraph B of the indictment alleges that prior to the
      commission of the instant offense and Enhancement Paragraphs A1, A2,
      and A3, on September 14, 1999, in Cause Number 98R-016, in the 155th
      District Court of Austin County, Texas the Defendant was convicted of
      the felony offense of Indecency with a Child Sexual Contact and that said
      conviction and sentence was final. To this allegation in Enhancement
      Paragraph B of the indictment the Defendant has pleaded “Not True.”
      Enhancement Paragraph C of the indictment alleges that, prior to the
      commission of the instant offense and Enhancement Paragraphs Al, A2,

                                          9
A3, and Paragraph B, on November 26, 1990, in Cause Number 90R-391,
in the 155th District Court of Austin County, Texas the Defendant was
convicted of the felony offense of Unauthorized Use of a Motor Vehicle
and that said conviction and sentence was final. To this allegation in
Enhancement Paragraph C of the indictment the Defendant has pleaded
“Not True.”
If you find from the evidence, beyond a reasonable doubt, that the
allegations set out in Enhancement Paragraph B and Enhancement
Paragraph C are true as alleged in the indictment, finding that the
defendant was previously finally convicted of two felony offenses, and
the second previous felony conviction was for an offense that occurred
subsequent to the first previous conviction having become final, then you
will assess the punishment of the defendant at confinement in the Texas
Department of Criminal Justice-Institutional Division for not less than
twenty-five years or more than ninety-nine years, or life.
If you do not so find, you will proceed to consider if Enhancement
Paragraph Al, A2, A3, B or C are true.
                *                  *                   *
Enhancement Paragraph Al of the indictment alleges that, prior to the
commission of the offense in this case, on May 23, 2006, in Cause Number
14593, in the 21st Judicial District Court of Texas, the Defendant was
convicted of the felony offense of Manufacture/Delivery of a Controlled
Substance, Penalty Group 1, <1G. To this allegation in Enhancement
Paragraph Al of the indictment the Defendant has pleaded “Not True.”
Enhancement Paragraph A2 of the indictment alleges that, prior to the
commission of the offense in this case, on May 23, 2006, in Cause Number
14594, in the 21st District Court of Texas the Defendant was convicted of
the felony offense of Manufacture/Delivery of a Controlled Substance,
Penalty Group 1, <1G. To this allegation in Enhancement Paragraph A2
of the indictment the Defendant has pleaded “Not True.”
Enhancement Paragraph A3 of the indictment alleges that, prior to the
commission of the offense in this case, on January 6, 2005, in Cause
Number 14208, in the 21st District Court of Texas the Defendant was
convicted of the felony offense of Sex Offender’s Duty to Register
Life/Annually. To this allegation in Enhancement Paragraph A3 of the
indictment the Defendant has pleaded “Not True.”
The charge also instructed the jury to (1) find the allegations set out in

                                   10
enhancement paragraphs A1, A2, A3, B, or C of the indictment “true,” if it believed
beyond a reasonable doubt that the allegations set out in those enhancement paragraphs
are true; and (2) assess appellant’s punishment at confinement for no less than two
years or more than 20 years.

      Appellant argues there is error in the jury charge because it allowed the State to
use appellant’s prior indecency with a child conviction to enhance the present offense
of failure to comply with registration requirements after the State used the conviction
to allege an essential element of the offense. Appellant argues that “the use of a prior
conviction to prove an essential element of an offense bars the subsequent use of that
prior conviction in the same indictment for enhancement purposes.” See Wisdom v.
State, 708 S.W.2d 840, 845 (Tex. Crim. App. 1986); Musgrove v. State, 425 S.W.3d
601, 614 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).

      The State concedes in its brief that it “erroneously used an Indecency with a
Child conviction to enhance [appellant] as a habitual offender.” However, the State
contends that, even without that conviction and enhancement B, it “still proved
[appellant] was punishable in the habitual offender range” because appellant’s other
prior convictions alleged in enhancement paragraphs A1, A2, and A3 placed him in
that range.

      Assuming, arguendo, there was error in the jury charge as appellant alleges, we
must next determine whether the alleged charge error caused appellant actual harm.
See Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015); Johnson, 416
S.W.3d at 610.

      Because appellant failed to object to the jury charge, he can obtain reversal only
if the error caused him egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984); Orellana v. State, 489 S.W.3d 537, 543 (Tex. App.—Houston [14th
Dist.] 2016, pet. ref’d). Under this high standard, a judgment may be reversed only if
                                          11
the error is so egregious and creates such harm that it deprives the accused of a fair and
impartial trial. See Almanza, 686 S.W.2d at 172; Orellana, 489 S.W.3d at 543.

        Appellant is denied a fair and impartial trial when the error (1) went to the very
basis of the case; (2) denied the accused a valuable right; or (3) vitally affected the
accused’s defensive theory. Orellana, 489 S.W.3d at 543. The degree of harm is
reviewed in light of the entire jury charge, the state of the evidence, argument by
counsel, and any other relevant information revealed by the trial record as a whole.
Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011); Orellana, 489 S.W.3d at
543-44. Egregious harm is determined on a case-by-case basis. Hutch v. State, 922
S.W.2d 166, 171 (Tex. Crim. App. 1996); Johnson, 416 S.W.3d at 611.

        The State argues that appellant was not harmed in this case because, “[e]ven if
the court were to remove the Indecency with a Child Enhancement completely,
[appellant]’s prior convictions still placed him in the habitual offender punishment
range” under Texas Penal Code Section 12.42(d) (Vernon Supp. 2018), which provides
that:

        if it is shown on the trial of a felony offense other than a state jail felony
        punishable under Section 12.35(a) that the defendant has previously been
        finally convicted of two felony offenses, and the second previous felony
        conviction is for an offense that occurred subsequent to the first previous
        conviction having become final, on conviction the defendant shall be
        punished by imprisonment in the Texas Department of Criminal Justice
        for life, or for any term of not more than 99 years or less than 25 years.
        Tex. Penal Code Ann. § 12.42(d). The chronological sequence of events to be
proved is as follows: (1) the first conviction becomes final; (2) the offense leading to a
later conviction is committed; (3) the later conviction becomes final; and (4) the offense
for which defendant presently stands accused is committed. Jordan v. State, 256
S.W.3d 286, 290-91 (Tex. Crim. App. 2008).              The State must prove beyond a
reasonable doubt that a defendant’s second previous felony conviction was committed

                                             12
after the defendant’s first previous felony conviction became final. Id. at 291. If the
State provides prima facie evidence of an enhancement conviction, there is a
presumption the conviction was final even if the record was silent on the issue of
finality. Wood v. State, 486 S.W.3d 583, 588 (Tex. Crim. App. 2016); Fletcher v. State,
214 S.W.3d 5, 8 (Tex. Crim. App. 2007); and Henry v. State, 331 S.W.3d 552, 555
(Tex. App.—Houston [14th Dist.] 2011, no pet.).

      Because appellant pleaded “not true” to the five enhancement allegations, the
State presented “pen packets” containing the judgment and sentence for appellant’s
five prior convictions to prove each enhancement allegation. The evidence presented
by the State showed as follows:

          appellant committed the offense of unauthorized use of a motor vehicle, a
            third-degree felony; he was granted six years’ probation; probation was
            revoked after he violated several conditions of probation, including
            unlawfully carrying a weapon; he was sentenced to four years’
            confinement and completed his sentence on or before October 7, 1997;

          appellant committed the second-degree felony offense of indecency with
            a child on November 23, 1997; he was granted five years’ probation;
            probation was revoked after appellant violated numerous conditions of
            probation (including failure to attend sex offender counseling and
            treatment); he was sentenced to five years’ confinement and completed
            his sentence before September 14, 2004;

          appellant committed the third-degree felony offense of failure to register
            as a sex offender on June 15, 2004; he was granted ten years’ probation;
            probation was revoked for violation of probation conditions; appellant
            was sentenced to eight years’ confinement and completed his sentence on
            or before May 23, 2014;
                                          13
           appellant committed the third-degree felony offense of delivery of a
             controlled substance on May 10, 2005; he pleaded guilty and was
             sentenced to eight years’ confinement and completed his sentence on or
             before May 23, 2014;

           appellant committed the third-degree felony offense of delivery of a
             controlled substance on May 24, 2005; he pleaded guilty and was
             sentenced to eight years’ confinement and completed his sentence on or
             before May 23, 2014.

      Further, the judgments for the prior convictions for failure to register as a sex
offender and delivery of a controlled substance stated that appellant did not file a notice
of appeal. The judgment for the prior unauthorized use of a motor vehicle conviction
was silent regarding appeal. Thus, all prior convictions are properly treated as final.
See Wood, 486 S.W.3d at 588; Fletcher, 214 S.W.3d at 8. Additionally, as required by
section 12.42(d): (1) the unauthorized use of a motor vehicle conviction became final;
(2) the failure to register as a sex offender and delivery of a controlled substance
offenses were committed and led to convictions; and (3) the conviction for failure to
register as a sex offender and conviction for delivery of a controlled substance became
final before appellant committed the present offense in January 2015. See Tex. Penal
Code Ann. § 12.42(d); see also Jordan, 256 S.W.3d at 290-91.

      Additionally, the jury found that the allegations in all five enhancement
paragraphs were “true.” Here, even without the indecency with a child conviction in
Enhancement B, there were three other final felony convictions the jury found “true”
— delivery of a controlled substance in Enhancements A1 and A2 and failure to register
as a sex offender in Enhancement A3 — in addition to the unauthorized use of a motor
vehicle conviction in Enhancement C that placed appellant within the habitual felony
offender punishment range under Texas Penal Code Section 12.42(d).

                                            14
       Considering the record before us, we conclude that any alleged error in
instructing the jury that appellant’s conviction for indecency with a child could be used
as one of two required prior convictions to enhance appellant’s punishment to the
habitual felony offender range was not harmful. Because appellant was not egregiously
harmed by any alleged error, we overrule appellant’s second issue.

III.   Ineffective Assistance of Counsel

       Appellant argues in his third issue that his “trial counsel’s performance was
deficient so that it prejudiced appellant’s defense in failing to object to the punishment
charge instructions regarding use of enhancements.”

       To prevail on a claim of ineffective assistance of counsel, an appellant must
show that (1) counsel’s performance was deficient because it fell below an objective
standard of reasonableness; and (2) the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 689 (1984); Lopez v. State, 343 S.W.3d 137,
142 (Tex. Crim. App. 2011).

       In order to satisfy the first prong, appellant 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. Lopez, 343 S.W.3d at 142. A
defendant must overcome a strong presumption that trial counsel’s actions fell within
the wide range of reasonable and professional assistance. See id.; Garza v. State, 213
S.W.3d 338, 348 (Tex. Crim. App. 2007). “Before granting relief on a claim that
defense counsel failed to do something, we ordinarily require that counsel be afforded
the opportunity to outline the reasons for the omission.” Roberts v. State, 220 S.W.3d
521, 533-34 (Tex. Crim. App. 2007).

       If counsel’s reasons for his conduct do not appear in the record and there is at
least the possibility that the conduct could have been grounded in legitimate trial


                                           15
strategy, we will typically defer to counsel’s decisions and deny relief on an ineffective
assistance claim. Garza, 213 S.W.3d at 348. “‘It is not sufficient that appellant show,
with the benefit of hindsight, that his counsel’s actions or omissions during trial were
merely of questionable competence.’” Lopez, 343 S.W.3d at 142-43 (quoting Mata v.
State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007)). To warrant reversal when trial
counsel has not been afforded an opportunity to explain his reasons, the challenged
conduct must be “‘so outrageous that no competent attorney would have engaged in
it.’” Roberts, 220 S.W.3d at 533-34 (quoting Goodspeed v. State, 187 S.W.3d 390,
392 (Tex. Crim. App. 2005)).

      To satisfy the second prong, appellant 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 but for counsel’s
unprofessional errors. Lopez, 343 S.W.3d at 142.

      In determining whether counsel was ineffective, we consider the totality of the
circumstances of the particular case. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.
App. 1999). Any allegation of ineffectiveness must be firmly founded in the record,
and the record must affirmatively demonstrate the alleged ineffectiveness. Id.; see also
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (“Direct appeal is
usually an inadequate vehicle for raising [an ineffective assistance] claim because the
record is generally undeveloped.”). Failure to satisfy either prong of the Strickland test
defeats an ineffective assistance claim. Strickland, 466 U.S. at 697.

      Appellant contends his trial counsel’s performance was deficient because he
“failed to object to the erroneous language used in the jury charge instructing the jury
as to the application of the law regarding enhancements.” Appellant seems to argue
that his counsel did not object to the punishment charge instructing the jury that
appellant’s conviction for indecency with a child in Enhancement B could be used to

                                           16
enhance his punishment to the habitual felony offender range. However, appellant does
not explain how he was prejudiced by his counsel’s allegedly deficient performance or
that he would have received a different sentence but for his counsel’s action. And we
conclude that, based on the record before us, appellant cannot establish prejudice as
required by Strickland. See Strickland, 466 U.S. at 689, 697.

      Here, even if appellant’s counsel had objected and Enhancement B had been
removed from the charge, there were, as we explained above, several additional prior
felony convictions to place appellant within the habitual felony offender punishment
range. Additionally, the State presented damaging evidence which easily could have
convinced the jury to assess appellant’s punishment at 99 years. The State presented
evidence that appellant’s prior second-degree felony conviction for indecency with a
child involved a seven-year old girl. The State also presented evidence that appellant
had five prior third-degree felonies: unauthorized use of a motor vehicle, failure to
register as a sex offender, possession of a controlled substance, and two instances of
delivery of a controlled substance.

      Further, the evidence showed appellant was granted probation for his
convictions for unauthorized use of a motor vehicle, indecency with a child, and failure
to register as a sex offender. Yet, he violated probation for each of these offenses by,
among others, unlawfully carrying a weapon, failing to pay fees, failing to secure
employment, failing to perform community service, failing to report to his probation
officer, failing to attend sex offender counseling and treatment, smoking marihuana,
committing assault, and consuming alcohol.        The jury also heard that appellant
committed indecency with a child very shortly after completing his sentence for the
unauthorized use of a motor vehicle conviction. Only shortly after completing his
sentence for the indecency with a child conviction, appellant committed the offense of
failure to register as a sex offender. Thereafter, and only a few months apart, appellant

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committed the offense of possession of a controlled substance and two instances of the
offense of delivery of a controlled substance.

      Considering the record in this case, we conclude appellant did not satisfy his
burden to prove the second Strickland prong: that there is a reasonable probability that
the result of the proceeding would have been different, i.e., appellant would have
received a lower sentence but for his counsel’s allegedly unprofessional error. Lopez,
343 S.W.3d at 142. Accordingly, we overrule appellant’s third issue.

                                     CONCLUSION

      Having overruled appellant’s three issues, we affirm the trial court’s judgment.




                                               /s/   Meagan Hassan
                                                     Justice




Do Not Publish — Tex. R. App. P. 47.2(b).
Panel consist of Justices Wise, Hassan, and Poissant.




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