Opinion issued July 2, 2015




                                    In The

                              Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                              NO. 01-14-00727-CR
                          ———————————
                      ALPHONSO SMITH, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 239th District Court
                         Brazoria County, Texas
                       Trial Court Case No. 71088


                        MEMORANDUM OPINION

     Appellant, Alphonso Smith, was charged by indictment with evading arrest,1

enhanced by a prior conviction for aggravated robbery. 2 Appellant pleaded not



1
     See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B) (Vernon Supp. 2014).
guilty to the offense and not true to the enhancement. The jury found Appellant

guilty, found the enhancement to be true, and assessed punishment at 13 years’

confinement. In three issues, Appellant argues (1) the evidence was insufficient to

establish he was the person who committed the offense, (2) the evidence was

insufficient to support the assessment of attorneys’ fees against him, and (3) he

received ineffective assistance of counsel.

      We modify the judgment and affirm the judgment as modified.

                                    Background

      On July 5, 2013, Officer N. Ross, of the Freeport Police Department, was on

patrol. While driving, he saw a car making a left-hand turn at an intersection with

a stop sign. The car did not come to a complete stop. Officer Ross made eye

contact with the person in the car as the person drove through the intersection.

Officer Ross turned around on the street and began to follow the car. The driver

began speeding, and Officer Ross pursued.         Eventually, the driver crashed.

Appellant got out of the car, and Officer Ross arrested him.

      Before trial, the State amended its indictment against Appellant to include an

enhancement paragraph, alleging Appellant had previously been convicted of

aggravated robbery. Appellant filed a motion to quash the enhancement paragraph,



2
      See TEX. PENAL CODE ANN. § 12.35(c)(2)(A) (Vernon Supp. 2014); TEX. CODE
      CRIM. PROC. ANN. art. 42.12, § 3g(a)(1)(F) (Vernon 2006).

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alleging that the prior conviction was void. After a hearing a trial, the trial court

denied the motion.

       During the guilt-innocence phase of the trial, the prosecutor asked Officer

Ross if he saw “the individual . . . in that vehicle that night.” Officer Ross testified

that he made eye contact with him. Later the prosecutor asked Officer Ross if the

“individual who got out of that car that evening” was in the courtroom. Officer

Ross said yes, identifying Appellant.

       Before trial, the trial court determined that Appellant was indigent.

Following trial, the trial court rendered a judgment of conviction against Appellant.

The judgment of conviction assessed attorney’s fees against Appellant. The trial

court also appointed appellate counsel, due to Appellant’s indigence.

                            Sufficiency of the Evidence

       In his first issue, Appellant argues the evidence was insufficient to establish

he was the person who committed the offense. In his third issue, Appellant argues

the evidence was insufficient to support the assessment of attorneys’ fees against

him.

A.     Standard of Review

       We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)



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(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)). This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational fact finder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See

Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that the fact finder resolved any conflicts in



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the evidence in favor of the verdict and defers to that resolution, provided that the

resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. In viewing

the record, direct and circumstantial evidence are treated equally; circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence

can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.

See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B.    Identity of Appellant

      Appellant argues that none of the evidence at trial establishes that he was the

person who perpetrated the crime. To establish this gap in the State’s burden,

Appellant relies principally on the following exchange between Officer Ross and

the prosecutor:

      Q.     . . . Now, Officer Ross, the individual who got out of that car
             that evening --

      A.     Yes, sir.

      Q.     -- do you recognize him in the courtroom today?

      A.     Yes, I do.

      Q.     And could you indicate where he is sitting and an article of
             clothing that he is wearing, just point him out?

      A.     Yes. He’s seated right there wearing that gray long-sleeved
             shirt.


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       [The prosecutor]: Your Honor, may the record reflect that the witness
             has correctly identified the defendant in open court?

       THE COURT: The record will so reflect.

       Appellant argues that, while Officer Ross identified him as “the individual

who got out of that car that evening,” Officer Ross never identified him as the

driver of the car. Accordingly, Appellant argues, the evidence is insufficient to

establish he committed the offense of evading arrest with a motor vehicle. We

disagree.

       Officer Ross testified that “the individual” got out of the car. This means

only one person got out of the car. See THE NEW OXFORD AMERICAN DICTIONARY

860 (2d ed. 2005) (defining “individual” as “a single human being as distinct from

a group, class, or family”). As Appellant acknowledges, Officer Ross testified a

short time earlier that, while the car was moving, he saw “the individual . . . in the

vehicle that night.” This evidence indicates that only one person was in the car in

question and that the one person was Appellant.

       Likewise, the trial court admitted into evidence the dash-cam video of the

pursuit and arrest. After the driver is arrested, the video continues for over 13

minutes. The video shows that Officer Ross holstered his weapon after the driver

was arrested, indicating no further safety risk remained. The video also shows

police officers searching the car. Throughout the video, no other person leaves the

car.


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      Finally, as the State points out, Officer Ross also testified that he believed

“the defendant” was trying to flee and that he was attempting to detain “the

defendant” that evening. We hold the jury could rely on all of this evidence to

conclude that the person committing the offense of evading arrest was Appellant.

See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789 (holding jury is responsible for

making reasonable inferences and reviewing courts must defer to such reasonable

inferences).

      We overrule Appellant’s first issue.

C.    Assessment of Attorneys’ Fees

      Before trial, the trial court determined that Appellant was indigent. “A

defendant who is determined by the court to be indigent is presumed to remain

indigent for the remainder of the proceedings in the case unless a material change

in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN.

art. 26.04(p) (Vernon 2009). In order to assess attorneys’ fees against a defendant,

the trial court must “determine[] that a defendant has financial resources that

enable him to offset in part or in whole the costs of the legal services provided.”

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Vernon 2009). An assessment of court

costs in the judgment is reviewed for the sufficiency of the evidence supporting a

determination that the defendant has the necessary financial resources. Mayer v.

State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).



                                         7
      The State concedes and we agree that there is no evidence in the record

suggesting that Appellant was no longer indigent or otherwise indicating that he

had the financial resources to enable him to pay his attorneys’ fees. Accordingly,

we sustain Appellant’s third issue.

                        Ineffective Assistance of Counsel

      In his second issue, Appellant argues he received ineffective assistance of

counsel because his attorney failed to sufficiently prove that the judgment used to

enhance his sentence was void.

A.    Standard of Review

      The Sixth Amendment to the United States Constitution guarantees the right

to reasonably effective assistance of counsel in criminal prosecutions. See U.S.

CONST. amend. VI. To show ineffective assistance of counsel, a defendant must

demonstrate both (1) that his counsel’s performance fell below an objective

standard of reasonableness and (2) that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052,

2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App.

2005). Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.



                                        8
      An appellant bears the burden of proving by a preponderance of the

evidence that his counsel was ineffective. 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. at 814. We presume that a counsel’s conduct falls within the

wide range of reasonable professional assistance, and we will find a counsel’s

performance deficient only if the conduct is so outrageous that no competent

attorney would have engaged in it. Andrews, 159 S.W.3d at 101. When an

appellant argues that his counsel rendered ineffective assistance by failing to make

an objection, he must show that the trial court would have erred in overruling the

objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996); Jacoby

v. State, 227 S.W.3d 128, 131 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

      “In making an assessment of effective assistance of counsel, an appellate

court must review the totality of the representation and the circumstances of each

case without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex.

Crim. App. 2011).      Demonstrating ineffective assistance of counsel on direct

appeal is “a difficult hurdle to overcome.” Id. In order to establish it, “the record

must demonstrate that counsel’s performance fell below an objective standard of

reasonableness as a matter of law, and that no reasonable trial strategy could justify

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id.



                                          9
B.    Analysis

      Before trial in this case, Appellant’s trial counsel filed a motion to quash the

enhancement paragraph in the indictment, claiming that the judgment from the

enhancing offense was void. The indictment alleged that Appellant had previously

been convicted of aggravated robbery, referring to an earlier case with the case

number 22,623. Appellant’s counsel argued that case number 22,623 had been

enhanced by an even earlier conviction, identified as case number 14,608. He

argued that the conviction in case number 14,608 was void due to the conviction

being obtained in violation of Appellant’s right to be represented by counsel. See

Ex parte Flores, 537 S.W.2d 458, 459 (Tex. Crim. App. 1976) (holding judgment

was void for conviction following revocation hearing when defendant was denied

right to representation). By extension, Appellant argues the conviction in case

number 22,623 was void. Based on his claim that the conviction in case number

22,623 was void, Appellant’s counsel argued that the State could not rely on it to

enhance the charges against Appellant in the underlying case. See Henderson v.

State, 552 S.W.2d 464, 466 (Tex. Crim. App. 1977) (reversing conviction

enhanced by void prior conviction).

      Appellant acknowledges on appeal that, “in order to show that a conviction

is void for denial of counsel, a defendant has the burden to show he was indigent,

was not afforded counsel and did not voluntarily waive his right to counsel.”



                                         10
Appellant asserts that his trial attorney “made no attempt to offer support for his

motion apart from the motion itself, the attachments to the motion and his

argument.” Appellant asserts that he was present at the hearing, but his trial

counsel failed to call him to testify about the original void judgment. Appellant

claims that his attorney’s “failure to support that, which on its face, appears to be a

valid motion to quash the enhancement paragraph with readily available evidence,

namely, the record and his client, constitutes ineffective assistance of counsel.”

      Based on the current record, it remains unproven that the judgment of

conviction in case number 14,608 is, in fact, void.               Any allegation of

ineffectiveness must be firmly founded in the record, and the record must

affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814.

To show ineffective assistance of counsel, a defendant must demonstrate that there

is 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, 104 S.

Ct. at 2068; Andrews, 159 S.W.3d at 102. Without evidence that the conviction in

case number 14,608 is void, there is no proof that such evidence would have

produced a different result in the proceeding. See Ex parte White, 160 S.W.3d 46,

52 (Tex. Crim. App. 2004) (“To obtain relief on an ineffective assistance of

counsel claim based on an uncalled witness, the applicant must show . . . [the

witness’s] testimony would have been of some benefit to the defense.”).



                                          11
      We overrule Appellant’s second issue.

                                   Conclusion

      We modify the trial court’s judgment, removing the assessment of attorneys’

fees against Appellant. We affirm the judgment as modified.




                                                Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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