                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               §
 LAMONT TERRELL LEADON,                                       No. 08-12-00158-CR
                                               §
                       Appellant,                                   Appeal from
                                               §
 v.                                                            371st District Court
                                               §
 THE STATE OF TEXAS,                                        of Tarrant County, Texas
                                               §
                       Appellee.                                  (TC # 1248547D)
                                               §

                                        OPINION

       Lamont Terrell Leadon, pro se, appeals his conviction of evading arrest or detention with

a vehicle, a state jail felony. A jury found Appellant guilty and assessed his punishment at

confinement in the state jail for twenty-two months. We affirm.

                                    FACTUAL SUMMARY

       At about 11:40 p.m. on July 27, 2011, the Fort Worth Police Department received a

disturbance call regarding a male who had forcibly entered a home and possibly forced another

person into a car on the east side of Fort Worth. The suspect was reported to be driving a white

Lincoln in an unknown direction. Officer John Lucas was on patrol in the east side of Fort

Worth and spotted a vehicle matching the description provided in the dispatch traveling in the

opposite direction. Lucas turned around and began to follow the white Lincoln. While Lucas

waited on verification regarding the disturbance offense, he continued to follow the vehicle,
which made a few quick, sharp turns that caused the vehicle to “lean excessively” at some points.

Lucas described the driver’s actions as “typical behavior for someone who’s trying to get away

from a police car.” After receiving additional information about the disturbance call, Lucas felt

he had enough information to make an investigative stop of the vehicle. He turned on his

overhead lights and the spotlight which illuminated the interior of the white Lincoln. Lucas

could see that the driver was a male and a female was in the passenger seat, which was consistent

with the disturbance call received earlier. Lucas subsequently identified the driver of the white

Lincoln as Appellant. Lucas testified that his overhead lights and spotlight were noticeable to

Appellant due to the brightness of the spotlight and the fact that he and the white Lincoln were

the only two cars on the road. Appellant did not change speed or pull over and he instead

continued driving in the same directed for about a hundred yards, which prompted Officer Lucas

to turn on his siren. Appellant did not reduce his speed in response to the siren and emergency

lights, but instead ran through a stop sign and continued to make the same kind of quick, sharp

turns he had made when Lucas first began following him. Lucas then observed the vehicle turn

onto a street that ended in a cul-de-sac. The white Lincoln stopped in the intersection and

Appellant jumped out of the car and began running--“sprinting”--in the direction opposite of

Officer Lucas’ vehicle. Lucas then got out of his vehicle, began to attend to the potential

kidnapping victim in the car, and saw another police vehicle driving towards his location.

Officers Tullis and Winkovich had also received notice of the disturbance call and a description

of the man driving the white Lincoln. They witnessed a man matching that description running

towards them, and both officers got out of their car and tried to stop him. Officer Tullis

identified Appellant at trial as the same man he saw running towards him. The officers drew

their service weapons and told Appellant to stop running and get on the ground but he did not



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obey their instructions. Officer Winkovich holstered his weapon and tackled Appellant to the

ground, but Appellant pinned his hands between his body and the ground.                              The officers

eventually succeeded in handcuffing Appellant and placed him under arrest. Officer Lucas

observed all of this from his position next to the white Lincoln. A grand jury indicted Appellant

for intentionally fleeing, using a vehicle, from Officer Lucas, knowing that Lucas was a peace

officer attempting to lawfully arrest or detain him. The jury found him guilty of evading arrest

or detention with a vehicle and assessed punishment at confinement in a state jail for twenty-two

months.

                            INEFFECTIVE ASSISTANCE OF COUNSEL

         In his first and third points of error, Appellant contends that he was denied the effective

assistance of counsel at trial in violation of the Sixth Amendment.1 In his first point of error,

Appellant argues that his appointed counsel failed to preserve for appellate review a

disproportionate sentence complaint because he did not object to the sentence and he did not

raise the issue in a motion for new trial. In his third point of error, Appellant argues that trial

counsel did not object to State’s Exhibit 7, a picture of Appellant’s girlfriend. Standard of

Review

         In reviewing whether or not a defendant was availed of his right to effective assistance of

counsel, we apply the two-pronged test set forth in Strickland v. Washington. Hernandez v.

State, 726 S.W.2d 53 (Tex.Crim.App. 1986), citing Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first part of the Strickland test holds that in order to find

that a counselor provided ineffective assistance, the defendant must prove that the counsel’s

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    After appointed counsel filed the appellant’s brief, Appellant objected to the brief and asserted his right to
represent himself on appeal. The trial court conducted a hearing and admonished Appellant regarding the dangers of
disadvantages of self-representation, but Appellant persisted in his desire to represent himself. We entered an order
striking the brief of counsel and Appellant filed his brief raising three issues.


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performance was “deficient.” Id. A showing of deficiency requires the defendant to demonstrate

that the counsel made errors so significant in nature that counsel was not functioning as the

“counsel” that is guaranteed by the Sixth Amendment. Id. The defendant must also demonstrate

prejudice—that is, defendant must show that the outcome of the trial was altered due to counsel’s

error(s). Id. Unless a defendant demonstrates both that his counsel performed deficiently and

that this deficient performance prejudiced the defense, the defendant cannot be said to have been

denied effective assistance of counsel. Id. There is a strong presumption that counsel’s conduct

was reasonable, and defendant must rebut this presumption by showing, by a preponderance of

the evidence, both deficiency and prejudice in order to maintain a successful claim of ineffective

assistance of counsel. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Cannon v.

State, 668 S.W.2d 401, 403 (Tex.Crim.App. 1984).

          In our review, we must be deferential to counsel’s choices made at trial and must rely on

the record on direct appeal, as it contains the entirety of evidence concerning Appellant’s trial

counsel’s performance. Ramos v. State, 45 S.W.3d 305, 311 (Tex.App.--Fort Worth 2001, pet.

ref’d).    However, it is widely accepted that this record cannot adequately reflect what

circumstances or strategies motivated trial counsel’s actions. Rylander v. State, 101 S.W.3d 107,

110-11 (Tex.Crim.App. 2003), citing Mallet v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001).

Although the record is almost always incomplete as to the trial counsel’s strategy, it is

inappropriate to incorporate the “I can’t define it but I know it when I see it” standard of

reviewing trial counsel’s actions as effective or ineffective; thus, we must rely solely on the

record on direct appeal and Appellant’s showing of deficiency and prejudice in assessing

whether or not Appellant was denied effective assistance of counsel. Jackson v. State, 877

S.W.2d 768, 772 (Tex.Crim.App. 1994). If there is no evidence in the record concerning



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counsel’s reasons for his actions, we cannot conclude that counsel’s performance was

ineffective. Id.

                                    Disproportionate Sentence

       In Appellant’s first point of error, he asserts that trial counsel’s performance is deficient

because he failed to preserve the disproportionate sentencing issue by objecting to the sentence

or by raising it in a motion for new trial. Under the Strickland standard, Appellant must show

that the claimed error constituted deficient performance and prejudiced the defense. Strickland,

466 U.S. at 687. Under the second part of the Strickland standard, Appellant must show that his

trial counsel’s error deprived him of a fair trial whose result was reliable—that is, he must

demonstrate that the outcome of his trial would have been different had counsel actually asserted

a disproportionate sentencing claim in the motion for new trial. Id.; Dewberry v. State, 4 S.W.3d

735, 757 (Tex.Crim.App. 1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958

(2000). The sentence assessed by the jury was within the statutory range (more than 180 days,

but less than two years) and courts whose guidance we follow have a history of declining to find

such punishments unconstitutional.      Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63

L.Ed.2d 382 (1980); Jordan v. State, 495 S.W.2d 949, 952 (Tex.Crim.App. 1973). Appellant

does not proffer any evidence or arguments to demonstrate that the outcome of his trial would

have been different had counsel asserted a disproportionate sentencing claim or that such a claim

would have been successful on appeal. We find that Appellant has not satisfied the second prong

of the Strickland test with respect to the disproportionate sentencing claim.

                                     Admission of Photograph

       In his third point of error, Appellant argues that trial counsel’s failure to object to the

admission of State’s Exhibit 7 constituted ineffective assistance of counsel. State’s Exhibit 7 is a



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photograph of the woman who was in the vehicle with Appellant and she appears to have been

crying.     Appellant does not state any legal grounds in his brief why the photograph is

inadmissible and simply contends that his girlfriend’s photograph “and what she looked like on

the night of the offense, had nothing to do with Appellant evading arrest while driving her in his

car.” To the extent Appellant’s argument might be construed as raising a relevancy issue, it is

without merit.

          Relevant evidence is “evidence having any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less probable than it

would be without the evidence.” TEX.R.EVID. 401. Evidence need not by itself prove or

disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge

toward proving or disproving some fact of consequence. Kirsch v. State, 306 S.W.3d 738, 743

(Tex.Crim.App. 2010); Stewart v. State, 129 S.W.3d 93, 96 (Tex.Crim.App. 2004).               The

information provided to Officer Lucas included a report that a woman may have been kidnapped

by the driver of the white Lincoln. After Appellant fled from the vehicle, Lucas found a woman

inside of the vehicle who appeared to have been crying and was visibly upset. The photograph

of the woman is relevant because it demonstrated who was present in the vehicle with Appellant

and it depicted how she appeared that evening. An attorney’s failure to object to admissible

evidence is not ineffective assistance. McFarland v. State, 845 S.W.2d 824, 846 (Tex.Crim.App.

1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex.Crim.App. 1994);

Burruss v. State, 20 S.W.3d 179, 188 (Tex.App.--Texarkana 2000, pet. ref’d).

          Further, Appellant has failed to demonstrate that he was prejudiced by the admission of

State’s Exhibit 7.     Officer Lucas testified without objection that he found the woman in

Appellant’s car and it appeared she had been crying. Appellant has not shown that the outcome



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of his trial would have been different if counsel had objected to the photograph because the same

information was provided to the jury through the testimony of Officer Lucas. For these reasons,

we conclude that Appellant has failed to show he was denied the effective assistance of counsel

at trial. Issues One and Three are overruled.

                            SUFFICIENCY OF THE EVIDENCE

       In his second point of error, Appellant challenges the legal sufficiency of the evidence

supporting his conviction. Specifically, he argues that the uncorroborated testimony of Officer

Lucas was not enough evidence to secure a conviction, as the testimony was not corroborated by

any other evidence to suggest that Officer Lucas’ testimony was not false. Appellant thus asserts

that there was insufficient evidence to prove beyond a reasonable doubt that he evaded arrest or

detention with a vehicle.

                                       Standard of Review

       In reviewing the sufficiency of the evidence to determine whether the State proved all of

the elements of evading arrest or detention with a vehicle beyond a reasonable doubt, we apply

the Jackson v. Virginia standard. Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App. 2010),

citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this

standard, a reviewing court will consider all evidence in the light most favorable to the

prosecution and determine whether any rational trier of fact could have found--beyond a

reasonable doubt--that the prosecution proved all elements of the crime. Brooks, 323 S.W.3d at

894-94, citing Jackson, 443 U.S. 307 at 319, 99 S.Ct. 2781 at 2789. The jury is the trier of fact

and the jury alone determines the credibility and weight that is to be given to admitted evidence;

thus, we defer to the verdict delivered by the jury. Brooks, 323 S.W.3d at 894; TEX.CODE

CRIM.PROC.ANN. art. 38.04 (West 1979). Furthermore, if the evidence supports conflicting



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inferences, we must assume that the jury made all inferences in favor of the verdict and disregard

all other possible inferences. Id. On appeal, we may not reevaluate the evidence and substitute

our judgment for that made by the fact finder, but rather we must determine whether the jury

could have reasonably come to find Appellant guilty of evading arrest or detention with a

vehicle. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000); Dewberry, 4 S.W.3d at 740.

                                    Uncorroborated Testimony

       Appellant argues that the evidence offered by the prosecution was insufficient to prove

that he evaded arrest or detention with a vehicle beyond a reasonable doubt. He argues that the

State’s only evidence against him was Officer Lucas’ testimony, which was not supported by any

additional evidence to corroborate Lucas’ testimony that could prove to the jurors that Lucas

“didn’t ‘make-up’ a ‘false-story’.” Appellant’s argument is without merit.

       The State was not required to offer any corroborating evidence to support the testimony

of the police officers who testified in this case. The jury is the sole judge of the weight and

credibility of witness testimony. Temple v. State, 390 S.W.3d 341, 360 (Tex.Crim.App. 2013).

Thus, the jury is free to believe or disbelieve all or part of a witness’s testimony. Jones v. State,

984 S.W.2d 254, 257 (Tex.Crim.App. 1998). It is well established that eyewitness testimony

alone may be sufficient to support a guilty verdict.        Aguilar v. State, 468 S.W.2d 75, 77

(Tex.Crim.App. 1971)(“We conclude that the testimony of [an] eye witness alone was sufficient

to support the jury’s verdict.”). Further, the Second Court of Appeals has applied this principle

and held that the testimony of the arresting officers was sufficient to uphold a conviction of

evading arrest. See Jimenez v. State, No. 2-04-092-CR, 2004 WL 2485264 at *3 (Tex.App.--Fort

Worth, Nov. 4, 2004, no pet.)(“the jury could choose to believe or disbelieve all or any portion of

the officer’s testimony”). Having viewed the evidence in the light most favorable to the verdict,



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we find that it is legally sufficient to allow any rational fact finder to conclude that Appellant

evaded arrest or detention with a vehicle as alleged in the indictment. Issue Two is overruled.

Having overruled each point of error, we affirm the judgment of the trial court.


July 30, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)




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