Opinion filed March 12, 2009




                                                  In The


   Eleventh Court of Appeals
                                               ___________

                                         No. 11-07-00253-CR
                                             __________

                              JAMES TAMON BATIE, Appellant

                                                     V.

                                  STATE OF TEXAS, Appellee


                               On Appeal from the 244th District Court

                                          Ector County, Texas

                                    Trial Court Cause No. C-33,074


                                MEMORANDUM OPINION
          The jury convicted James Tamon Batie of the second degree felony offense of burglary of
a habitation. TEX . PENAL CODE ANN . § 30.02(a)(1), (c)(2) (Vernon 2003). Appellant pleaded true
to two enhancement allegations, and the jury assessed punishment at sixty years confinement. We
affirm.
                                             Issues Presented
          Appellant presents three issues for review. In his first issue, appellant asserts that he received
ineffective assistance of counsel at trial. In his second issue, appellant contends that the evidence
was legally and factually insufficient to support his conviction. In his third issue, appellant contends
that his sixty-year sentence constituted cruel and unusual punishment.
                                                    Background
       The indictment alleged that appellant, on or about March 16, 2006, “intentionally and
knowingly, without the effective consent of Jeremy Mireles, the owner, enter[ed] a habitation owned
by Jeremy Mireles, with intent to commit the offense of theft.” The State sought to enhance
appellant’s sentence with two prior felony convictions under Section 12.42 of the Texas Penal Code.1
In two enhancement paragraphs, the State alleged that appellant had prior felony convictions for
possession of cocaine and attempted sexual assault.
       The trial court appointed an attorney to represent appellant. Later, the trial court entered an
order permitting the attorney to withdraw as appellant’s counsel. Appellant wrote a letter to the trial
court in which he stated that he had been diagnosed with schizophrenia and that he had been unable
“to consider fully, these proceedings.” After appointing a second attorney to represent appellant and
allowing the attorney to withdraw based on a conflict of interest, the trial court appointed a third
attorney to represent appellant. Because appellant’s ineffective assistance of counsel claims are
based on the conduct of his third attorney, we refer to appellant’s third attorney as appellant’s
counsel in the remainder of this opinion.
       Appellant’s letter to the trial court had raised an issue as to his competency to stand trial.
Appellant’s counsel filed a motion requesting the trial court to order an independent psychiatric
examination of appellant for the purpose of determining appellant’s mental condition. The trial court
entered an order appointing Dr. Ravi Medi, a psychiatrist, to examine appellant to determine whether
he was incompetent to stand trial. Dr. Medi examined appellant and concluded that he was
competent to stand trial.
       The trial court held a jury trial to determine whether appellant was incompetent to stand trial.
Dr. Medi testified at the incompetency trial. He said that appellant had chronic schizophrenia and
that appellant took medication for his condition.                Dr. Medi identified many symptoms of
schizophrenia. He said that appellant did not exhibit any of the symptoms of schizophrenia during



        1
            TEX. PENAL CODE ANN. § 12.42 (Vernon Supp. 2008).

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his examination of appellant. Dr. Medi identified a number of facts supporting his conclusion that
appellant was competent to stand trial. Appellant’s counsel presented appellant’s mother, Glenda
Batie, as a witness at the incompetency trial. She testified about how schizophrenia had affected
appellant’s life and behavior in the past. The jury concluded that appellant was competent to stand
trial.
         The jury found appellant guilty of the offense of burglary of a habitation. Appellant pleaded
true to the enhancement paragraphs during the punishment phase of the trial. The jury assessed
appellant’s punishment at sixty years confinement, and the trial court sentenced appellant in
accordance with the jury verdict. After the final judgment was entered, the trial court entered an
order releasing appellant’s counsel from representing him and substituting new counsel of record for
appellant. Appellant filed a motion for new trial. Appellant did not raise an ineffective assistance
of counsel claim in the motion. No hearing was conducted on the motion, and it was apparently
overruled by operation of law.
                                     Sufficiency of the Evidence
         To determine if the evidence is legally sufficient, we must review all of the evidence in the
light most favorable to the verdict and determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307
(1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence
is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v.
State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d
477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v.
State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict
is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against
the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15;
Johnson, 23 S.W.3d at 10-11. The jury, as the finder of fact, is the sole judge of the weight and
credibility of the witnesses’ testimony. TEX . CODE CRIM . PROC. ANN . art. 36.13 (Vernon 2007),
art. 38.04 (Vernon 1979).




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       To establish that appellant committed burglary of a habitation, the State had to prove that he
(1) entered a habitation, (2) without the effective consent of the owner, and (3) with intent to commit
a felony or theft. See Section 30.02(a)(1). Appellant contends that there was no evidence that he
entered Mireles’s home. Appellant also contends that “[the State] failed to provide proof of several
elements of the offense beyond a reasonable doubt.”
       The record shows that in March 2006, Mireles lived in the house located at 802 Foster Street
in Odessa. Mireles’s wife, Debbie, and nine-year-old son, Damian, lived at the house with him.
Debbie’s grandfather, Jesus Cabrerra, owned the house, and Mireles and Debbie rented the house
from him. Appellant lived across the street from Mireles.
       Mireles and his family took a trip to Dallas on March 15, 2006. While they were gone,
Cabrerra watched the house for them. Cabrerra testified that everything was okay when he checked
the house the evening of March 16. However, when he checked the house again the morning of
March 17, he noticed that a screen had been taken off one of the windows of the house. Cabrerra
went inside the house and discovered that someone had broken into it. He said that the house “was
a mess” and that “everything was on the floor.” Cabrerra called 911 for help, and he called Debbie
to tell her to come back to Odessa. Cabrerra also called Debbie’s father, Abel Quintella, and
Quintella came to the house.
       Odessa Police Department Officer Jerry Jones testified that, on March 17, 2006, he responded
to a burglary of a habitation call at 802 Foster Street. Officer Jones saw a screen on the ground
outside the house. He described the house as being “totally ransacked.” Officer Jones talked with
Quintella at the scene. He said that Quintella did not have any direct knowledge of things that might
be missing. Officer Jones also said that Quintella had spoken with Mireles on the phone and that
Mireles had asked Quintella to check for “obvious things that would be taken in a burglary,” such
as a Nintendo system or a TV. Officer Jones testified that Quintella determined that a Play Station
and some video games were missing from the house. Officer Jones left a loss form at the house for
Mireles to complete if he discovered that any additional property had been taken in the robbery.
Officer Jones did not have any further involvement in the case after he left the house on March 17.
The case was assigned to Odessa Police Department Detective W.J. Carlisle.




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       Mireles and his family returned to Odessa on March 17 after receiving the call from Cabrerra.
Mireles testified that, at that time, the house looked like it had been hit by a tornado. He also
testified that a number of items had been taken from the house, including a Play Station, video
games, and a BB gun that belonged to his son. Mireles also said that a pellet gun rifle and some
bullets were missing from the house. Mireles listed the missing property in an “additional loss
report.” The “additional loss report” was introduced into evidence as State’s Exhibit No. 6.
       John Urias testified that he had known Mireles for about eight or nine years, that he and
Mireles were friends, and that he lived about two blocks away from Mireles. Urias also testified that
he knew appellant and that appellant lived across the street from Mireles. Appellant was known to
Urias by the name “Tamon.” Urias identified appellant in court. On March 17, 2006, Urias was
outside by his house. Urias testified that, at that time, he saw appellant and that appellant asked him
if he wanted to buy a Play Station. Urias said that appellant would not tell him where he had gotten
the Play Station. At that time, appellant did not have the Play Station with him. Urias testified that
appellant later returned with the Play Station. Urias said that appellant had the Play Station in a
black bag and that there were also Play Station games, Play Station controllers, and bullets in the
bag. Urias said that he bought the bag and its contents from appellant for “[a]round $40.”
       Mireles testified that he told Urias about the robbery at his house and that a Play Station,
some games, and controllers were missing from the house. Mireles said that Urias brought the items
that he had purchased from appellant to him. At that time, the items were in a black bag. Mireles
testified that he owned the black bag and that it had been in his house before the burglary. He said
that, when Urias gave him the bag, it contained the Play Station and some video games that had been
taken from his house. Mireles testified that he gave Urias his money back for purchasing the items.
The evidence showed that the Play Station that was taken from Mireles’s house was a Play Station II.
Mireles identified the black bag and the Play Station II during his testimony, and they were
introduced into evidence as State’s Exhibit Nos. 4 and 5. Mireles testified that he did not give
appellant permission to enter his house or to take the Play Station and video games.
       Detective Carlisle testified that he met with Mireles and Urias on March 20, 2006. Detective
Carlisle said that Mireles and Urias brought the items that had been stolen from Mireles’s house to




                                                  5
him. He also said that Mireles and Urias prepared statements. The statements were introduced into
evidence as State’s Exhibit Nos. 7 and 8.
       Glenda testified on behalf of appellant. She said that appellant – James Tamon Batie – was
her son. She testified that Mireles had threatened to kill appellant and had sprayed him with pepper
spray. Glenda also testified that appellant had been treated for paranoid schizophrenia since 1996
and that, if he failed to take his medication, his behavior changed.
       After reviewing all of the evidence, we hold that the evidence is both legally and factually
sufficient to support the jury’s verdict. There was evidence from which the jury could have
determined that appellant (1) entered Mireles’s habitation, (2) without the effective consent of
Mireles, and (3) with intent to commit a felony or theft. Mireles identified the items that had been
stolen from his house. Urias testified that he bought a number of items from appellant. The items
that Urias purchased from appellant were among the items that had been taken from Mireles’s house.
Based on this evidence, the jury could have reasonably concluded that appellant stole the items from
Mireles’s house. See Havard v. State, 972 S.W.2d 200, 203 (Tex. App.—Beaumont 1998, no pet.)
(The fact that appellant possessed stolen property on the same day that it was taken and sold it to
another party allowed the jury to infer that appellant had entered the victim’s house and taken the
property.). We overrule appellant’s second issue.
                                       Assistance of Counsel
       Appellant contends that he received ineffective assistance of counsel at the competency trial
and during the guilt/innocence and punishment phases of the trial. Specifically, appellant complains
that his counsel failed to seek the assistance of an expert in connection with presenting his case at
the competency trial, that his counsel failed to object to inadmissible testimony and documents
during the guilt/innocence phase, and that his counsel failed to present defense witnesses on the issue
of mitigation of punishment during the punishment phase.
       To determine whether appellant’s counsel rendered ineffective assistance at trial, we must
first determine whether appellant has shown that counsel’s representation fell below an objective
standard of reasonableness and, if so, then determine whether there is a reasonable probability that
the result of the proceeding would have been different but for counsel’s errors. Wiggins v. Smith,
539 U.S. 510 (2003); Strickland v. Washington, 466 U.S. 668 (1984); Andrews v. State, 159 S.W.3d


                                                  6
98 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). This
standard applies to claims of ineffective assistance of counsel in both the guilt/innocence phase and
the punishment phase of noncapital trials. Hernandez v. State, 988 S.W.2d 770, 773 (Tex. Crim.
App. 1999). We must indulge a strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance, and an appellant must overcome the presumption that, under
the circumstances, the challenged action might be considered sound trial strategy. Strickland, 466
U.S. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). “[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690. An allegation of ineffective
assistance must be firmly founded in the record, and the record must affirmatively demonstrate the
alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Under normal circumstances, the record on
direct appeal will not be sufficient to show that counsel’s representation was so deficient and so
lacking as to overcome the presumption that counsel’s conduct was reasonable and professional.
Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Rarely will the record on direct appeal
contain sufficient information to permit a reviewing court to fairly evaluate the merits of such a
serious allegation. Id. In a majority of cases, the record on direct appeal is simply undeveloped and
cannot adequately reflect the failings of trial counsel. Id.
       In this cause, appellant did not raise his ineffective assistance of counsel claims in a motion
for new trial; therefore, he did not present any evidence to the trial court in support of his claims.
The record is silent as to why appellant’s counsel did not seek to obtain the assistance of an expert
during the competency proceedings, did not object to the complained-of evidence during the
guilt/innocence phase, and did not present witnesses on the issue of mitigation of punishment during
the punishment phase.
       Appellant’s counsel’s decisions may have been based on sound trial strategy. Because the
record contains no evidence of the reasoning behind trial counsel’s actions, we cannot conclude that
counsel’s performance was deficient. Appellant has failed to overcome the presumption that his trial
counsel’s conduct was reasonable and professional. Bone, 77 S.W.3d at 833; Green v. State, 191
S.W.3d 888, 894-95 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (Because the appellant failed
to present evidence rebutting the presumption that trial counsel have plausible reasons for their
actions, the court could not conclude that trial counsel’s performance in failing to object to testimony
was deficient.). Additionally, the record does not demonstrate a reasonable probability that the result

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of the proceeding would have been different but for appellant’s counsel’s alleged errors. We
overrule appellant’s first issue.
                                            The Sentence
        In his third issue, appellant contends that his sixty-year sentence was grossly disproportionate
to the offense committed and that, therefore, the sentence constituted cruel and unusual punishment
in violation of the Eighth Amendment. U.S. CONST . amend. VIII. Appellant did not complain about
the sentence either at the time it was imposed or in a motion for new trial. Appellant’s failure to
raise the issue in the trial court waived any error. Wynn v. State, 219 S.W.3d 54, 61 (Tex.
App.—Houston [1st Dist.] 2006, no pet.); Castaneda v. State, 135 S.W.3d 719, 723 (Tex.
App.—Dallas 2003, no pet.).
        However, even if appellant had preserved his complaint, he could not succeed on his claim.
The legislature is vested with the power to define crimes and prescribe penalties. See State ex rel.
Smith v. Blackwell, 500 S.W.2d 97, 104 (Tex. Crim. App. 1973); Simmons v. State, 944 S.W.2d 11,
15 (Tex. App.—Tyler 1996, pet. ref’d); Davis v. State, 905 S.W.2d 655, 664 (Tex. App.—Texarkana
1995, pet. ref’d). As a general rule, punishment is not cruel and unusual if it falls within the range
of punishment established by the legislature. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984); Dale v. State, 170 S.W.3d 797, 799 (Tex. App.—Fort Worth 2005, no pet.);
Rodriguez v. State, 71 S.W.3d 778, 779 (Tex. App.—Texarkana 2002, no pet.). A narrow exception
to this rule is recognized where the sentence is grossly disproportionate to the offense. Harmelin v.
Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277, 290-91 (1983); Dale, 170 S.W.3d at
799. “[O]utside the context of capital punishment, successful challenges to the proportionality of
particular sentences [will be] exceedingly rare.” Solem, 463 U.S. at 289-90 (quoting Rummel v.
Estelle, 445 U.S. 263, 272 (1980)).
        Solem had suggested that, in determining the proportionality of a sentence, appellate courts
could consider three factors: (1) the gravity of the offense compared with the harshness of the
penalty, (2) the sentences imposed for similar crimes in the same jurisdiction, and (3) the sentences
imposed for commission of the crime in other jurisdictions. Solem, 463 U.S. at 292. In light of
Harmelin, the test in Solem appears to have been reformulated as an initial threshold comparison of
the gravity of the offense with the severity of the sentence. Then, if that initial comparison created
an inference that the sentence was grossly disproportionate to the offense, the court should consider


                                                   8
the other two Solem factors: (1) sentences for similar crimes in the same jurisdiction and
(2) sentences for the same crime in other jurisdictions. See McGruder v. Puckett, 954 F.2d 313, 316
(5th Cir. 1992); Mullins v. State, 208 S.W.3d 469, 470 (Tex. App.—Texarkana 2006, no pet.);
Lackey v. State, 881 S.W.2d 418, 420-21 (Tex. App.—Dallas 1994, pet. ref’d).
       In this cause, appellant committed a second degree felony offense of burglary of a habitation.
He pleaded true to two enhancement allegations, and he was sentenced as a repeat and habitual
felony offender under Section 12.42(d) of the Penal Code. Appellant was subject to a punishment
range of twenty-five to ninety-nine years, or life. Appellant’s sixty-year sentence fell within the
statutory range of punishment.
       Under Section 12.42(d), a sentence is imposed to reflect the seriousness of appellant’s most
recent offense, not as it stands alone, but in light of his prior offenses. Rummel, 445 U.S. at 276;
McGruder, 954 F.2d at 316; Winchester v. State, 246 S.W.3d 386, 390 (Tex. App.—Amarillo 2008,
pet. ref’d). A repeat offender’s sentence is “based not merely on that person’s most recent offense
but also on the propensities he has demonstrated over a period of time during which he has been
convicted of and sentenced for other crimes.” Rummel, 445 U.S. at 284; Hicks v. State, 15 S.W.3d
626, 632 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). Thus, in determining whether
appellant’s sentence is grossly disproportionate, we consider not only the present offense but also
his criminal history. Winchester, 246 S.W.3d at 390.
       Appellant broke into Mireles’s house, “totally ransacked” it, and stole a number of items
from the house. Appellant’s prior felony convictions were for possession of cocaine in 2000 and
attempted sexual assault in 2003. Considering the serious nature of appellant’s offense in this cause
and of his prior offenses, we conclude that his sentence is not grossly disproportionate in violation
of the Eighth Amendment. We overrule appellant’s third issue.
                                        This Court’s Ruling
       We affirm the judgment of the trial court.




                                                              TERRY McCALL
March 12, 2009                                                JUSTICE
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.


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