          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN




                                         NO. 03-02-00034-CR
                                         NO. 03-02-00035-CR




                                    David Bryan Hume, Appellant

                                                    v.

                                    The State of Texas, Appellee




       FROM THE DISTRICT COURT OF TARRANT COUNTY, 371ST JUDICIAL DISTRICT
        NO. 0795580D & 0795581D, HONORABLE JAMES R. WILSON, JUDGE PRESIDING




                A jury found appellant David Bryan Hume guilty of two offenses of indecency with a child

by exposure. See Tex. Pen. Code Ann. ' 21.11(a)(2)(A) (West Supp. 2002). The district court assessed

punishment for each offense at eight years in prison. Appellant raises two issues and contends that (1) the

district court abused its discretion when it overruled his objections and allowed the State to present

evidence that he resisted arrest and (2) he received ineffective assistance of counsel because his trial

attorney misunderstood the law regarding community supervision. We will affirm the judgments.
                                               Background

                As appellant does not challenge the sufficiency of the evidence, we briefly review the facts

of the case. On August 15, 1999, North Richland Hills police officers were dispatched to an apartment

complex to investigate a report that appellant exposed his genitals in the presence of children swimming in

the pool. A twelve-year-old boy and his thirteen-year-old sister testified that while they were swimming,

appellant was in the pool masturbating under water. The girl testified that appellant stared at her the entire

time. The children told their father about the incident on their way home from the pool.


                                                Discussion

                Appellant first contends that the district court abused its discretion by admitting evidence

related to his arrest for the offenses. Appellant contends that such evidence was irrelevant, was improper

character evidence, and even if the evidence was relevant, its probative value was outweighed by unfair

prejudice. Second, appellant contends that he received ineffective assistance of counsel during the

punishment phase of trial because his attorney did not understand the law regarding community supervision.


Admission of evidence related to arrest

                After witnesses testified about events at the pool, the State announced that it intended to

offer evidence related to appellant=s arrest for these offenses. Outside the jury=s presence, Detective

Enriqueta Garcia testified that she and her partner located appellant at work on a church roof. Garcia called

to appellant and he came down. Garcia identified herself and her partner as police officers and told

appellant she had a warrant for his arrest. Appellant lied about his identity and told Garcia he was not


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David but was his brother, ATony.@ Garcia responded that she had seen his picture, that he was David, and

that he was under arrest for the offense of indecency with a child. When Garcia persisted that appellant was

indeed the individual listed on the warrant, appellant walked away from her and attempted to leave through

a nearby door; however, the door was locked. Garcia followed appellant, grabbed him, and as she did so,

he threw her off and ran up some nearby scaffolding. Garcia followed appellant, and when she grabbed his

legs, he kicked her several times in the head and shoulders. Garcia=s partner handcuffed appellant to a

railing. Appellant eventually calmed down and went with the officers. Appellant objected that such

evidence was irrelevant and was improper character evidence. See Tex. R. Evid. 401, 404(b). Further,

appellant objected that in the event the district court determined such evidence was relevant, the evidence

should be excluded because the probative value of the evidence was clearly outweighed by its unfair

prejudicial effect. See Tex. R. Evid. 403. The district court overruled appellant=s objections and allowed

Garcia to testify before the jury about appellant=s arrest.

                 Montgomery v. State set the standard for review of evidentiary rulings relating to

extraneous acts. 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh=g); see also Rankin v. State,

974 S.W.2d 707, 718 (Tex. Crim. App. 1998). Montgomery defined relevant evidence and discussed the

admissibility of that evidence as well as a trial court=s role in determining admissibility. Rankin, 974 S.W.2d

at 718.

                 As defined in Rule 401, Arelevant@ evidence is evidence that has Aany tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less

probable then it could be without the evidence.@ Tex. R. Evid. 401. If the evidence is relevant it is


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admissible so long as no constitutional provision, statute, or rule bars its admissibility. Tex. R. Evid. 402.

Relevant evidence, however, may not be admissible for every purpose. Rule 404(b) bars evidence of

Aother crimes, wrongs or acts@ when that evidence is admitted for the purpose of proving Athe character of a

person in order to show that he acted in conformity therewith.@ Tex. R. Evid. 404(b). Rule 404(b)

incorporates the fundamental tenet of our criminal justice system that an accused may be tried only for the

offense for which he is charged and not his criminal propensities. Owens v. State, 827 S.W.2d 911, 914

(Tex. Crim. App. 1992). Evidence of other crimes, wrongs or acts, however, may be admissible if such

evidence has relevance apart from its tendency to prove character conformity. Tex. R. Evid. 404(b);

Montgomery, 810 S.W.2d at 387. Consequently, if a defendant objects on the ground that the evidence is

not relevant, violates Rule 404(b), or constitutes an extraneous act, the proponent must show that the

evidence has some relevance apart from showing bad character. Montgomery, 810 S.W.2d at 387.

                 If the trial judge determines that the evidence has no relevance apart from character

conformity, it is inadmissible. Id. If the proponent persuades the trial court that the evidence is admissible

for some other permissible purpose, and that purpose Atends in logic and common experience to . . . make

the existence of a fact of consequence more or less probable than it would be without the evidence,@ the

evidence is admissible. Montgomery, 810 S.W.2d at 391. Extraneous-act evidence is considered relevant

only (1) when it logically makes an elemental fact, such as identity, or intent more or less probable; (2)

makes an evidentiary fact, such as motive, opportunity or preparation, that inferentially leads to an elemental

fact more or less probable; or (3) makes defensive evidence undermining an elemental fact more or less

probable. Id. at 387-88.


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                 A trial court=s admission of extraneous-acts evidence is not reviewed de novo but under an

abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1999). As long as

the trial judge properly admitted the evidence in light of the factors enunciated in Montgomery and the trial

court=s decision to admit the evidence lies Awithin the zone of reasonable disagreement@ the decision will be

upheld. Rankin, 974 S.W.2d at 718 (citing Montgomery, 810 S.W.2d at 391). On the other hand, when

the appellate court can say with confidence that by no reasonable perception of common experience can it

be concluded that proffered evidence has a tendency to make the existence of a fact of consequence more

or less probable than it would otherwise be, then it can be said the trial court abused its discretion to admit

the evidence. Montgomery, 810 S.W.2d at 391.

                 Appellant contends that the evidence related to his arrest was improper character evidence

in that it showed only Aappellant=s dangerous character.@ He contends that the evidence was not part and

parcel of the indecency offenses and was not relevant to any contested issue in the case other than

appellant=s character. He contends the evidence allowed the jury to convict appellant not for what the facts

established regarding the charged offenses but for being a criminal generally. Appellant contends that at best

this evidence was Abackground contextual evidence@ relating solely to his character and did not make it

more likely than not that appellant committed the offenses. Further, appellant contends that even if the

evidence was relevant, it should have been excluded because its probative value was outweighed by its

prejudicial effect.

                 The State responds that the district court properly admitted the evidence related to

appellant=s arrest because his attempt to deceive Garcia by claiming to be ATony,@ his attempt to flee, and


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his assault of Garcia were indicative of a Aconsciousness of guilt@ or were circumstances from which an

inference of guilt could properly be drawn. See Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App.

1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989). It is well accepted that any

conduct by a defendant accused of a crime after its commission which indicates a consciousness of guilt may

be received as a circumstance tending to prove that he committed the act with which he is charged. Hyde

v. State, 846 S.W.2d 503, 505 (Tex. App.CCorpus Christi 1990, pet. ref=d); Torres v. State, 794

S.W.2d 596, 598 (Tex. App.CAustin 1990, no pet.). A consciousness of guilt is perhaps one of the

strongest kinds of evidence of guilt. Hyde, 846 S.W.2d at 505; Torres, 794 S.W.2d at 598. Before such

evidence is admitted, however, the State must establish that it has some relevance to the offense under

prosecution. Burks, 876 S.W.2d at 903. Once the State established the relevancy requirement, evidence

of Aescape from custody or flight to avoid arrest@ is admissible unless the defendant shows that escape or

flight was connected to some other transaction unrelated to the charged offense. Id. (citing Rumbaugh v.

State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982)). Flight is no less relevant if it is flight to avoid arrest.

Burks, 876 S.W.2d at 903; Foster, 779 S.W.2d at 859. Additionally, a lapse of time between

commission and a defendant=s flight does not necessarily adversely affect the admissibility of the flight.

Burks, 876 S.W.2d at 903.

                 The evidence showed that appellant acted deceptively and attempted to flee only when

Garcia advised appellant that she had a warrant for his arrest for the offense of indecency with a child. We

hold that the State established that appellant=s attempted deception, flight and assault of Garcia were related

to the charged indecency offense, indicated appellant=s consciousness of guilt, and were circumstances from


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which an inference of guilt for the acts with which he was charged could be properly drawn. Further,

appellant failed to show that his deception and flight were connected to another transaction unrelated to the

charged offenses.

                 Having determined that the evidence was relevant, we review the district court=s

determination that the probative value of the evidence was not outweighed by its prejudicial effect. The trial

court is given wide latitude to exclude or, particularly in view of the presumption of admissibility of relevant

evidence, to admit evidence as it sees fit. Montgomery, 810 S.W.2d at 390. So long as the trial court

acted within the boundaries of its discretion, an appellate court should not disturb its decision. Id.

                 The term Aunfair prejudice@ does not mean that the evidence will not injure or prejudice the

appellant=s case. Rather, the term refers to an undue tendency to suggest a decision on an improper basis.

See Torres, 794 S.W.2d at 600. While the evidence related to appellant=s arrest did not place him in a

positive light, it demonstrated appellant=s consciousness of guilt. Further, appellant does not suggest any

specific prejudicial effect arising from the admission of the evidence, but argues broadly that the evidence

prejudiced him by allowing the jury to convict him for being a criminal generally. We hold that the district

court did not abuse its discretion in admitting evidence related to appellant=s arrest. Appellant=s first issue is

overruled.


Ineffective assistance of counsel

                 Appellant contends that he received ineffective assistance of counsel during the punishment

phase of trial. When appellant=s attorney asked appellant=s father about placing appellant on community

supervision, the following occurred:

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        [State=s attorney]:          He=s not eligible.

        [Appellant=s attorney]:      The Judge could do it.

        [State=s attorney]:          If he pled guilty to the Court, the Judge could defer him.

        [The Court]:                 He=s already been found guilty by a jury. There=s already
                                     been a finding of guilt.

        [Appellant=s attorney]:      Okay.

        [Appellant=s attorney]:      Mr. Hume [appellant=s father], I misspoke regarding
                                     [community supervision]. That is not an option in this case.
                                     All right? You understand that?

        [Appellant=s father]:        Yes, sir.

        [Appellant=s attorney]:      But you are asking the Court to be merciful on your son in this
                                     case.

        [Appellant=s father]:        Yes, sir. I pray that they will be.


Appellant contends that his attorney=s misunderstanding of the law regarding community supervision

constituted ineffective assistance of counsel.

                To prevail on an ineffective assistance of counsel contention, the appellant bears the burden

of showing (1) deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668, 687

(1984); Jackson v. State, 877 S.W.2d 768 (Tex. Crim. App. 1994). To prove deficiency, an appellant

must demonstrate that counsel=s performance fell below an objective standard of reasonableness or

deviated from prevailing professional norms. Strickland, 466 U.S. at 688. Judicial scrutiny of counsel=s

performance should be highly deferential. Id. at 689. An appellant must overcome a strong presumption


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that an attorney=s actions were sound trial strategy. Id.; Jackson, 877 S.W.2d at 771. Further, to show

prejudice, Athe defendant must show that there is a reasonable probability that, but for counsel=s

unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.@ Id. (citing Strickland, 466 U.S. at 694).

Further, while a single egregious error of commission or omission may be sufficient, reviewing courts are

hesitant to declare counsel ineffective based on a single alleged miscalculation. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999).

                 In order to effectively present and argue an issue of ineffective assistance of counsel, the

appellant must develop a record focused on the conduct of trial counsel should be developed. Jackson,

877 S.W.2d at 772 (Baird, J., concurring). This is because a trial record is generally insufficient to address

claims of ineffective assistance of counsel in light of the strong presumption that trial counsel=s conduct falls

within the wide range of reasonable professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.

Crim. App. 2001).

                 To succeed on an ineffective assistance of counsel claim based on counsel=s

misunderstanding of the law related to community supervision, there must be more apparent from the record

than trial counsel=s mere mistake. State v. Recer, 815 S.W.2d 730, 731 (Tex. Crim. App. 1991).

Appellant must demonstrate he was initially eligible to receive community supervision; his counsel=s advice

not to plead guilty was not given pursuant to a valid trial strategy; his decision on which finder of fact, the

judge or the jury, would assess punishment was based on counsel=s erroneous advice; and appellant=s




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decision would have been different had counsel correctly advised him of the applicable law. Id. at 731-32;

Pena-Mota v. State, 986 S.W.2d 341, 348 (Tex. App.CWaco 1999, no pet.).

                Here, because appellant had a prior felony conviction for injury to a child, after pleading not

guilty and having been found guilty, he was not eligible for community supervision regardless of whether the

jury or the district judge assessed punishment. However, had appellant pleaded guilty to these offenses and

asked the district judge to assess punishment, the judge would have had the option to give appellant

deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, ' 5(a) (West

Supp. 2002). Here, appellant filed a motion for new trial which was overruled by operation of law. There

was no record made regarding questions about appellant=s trial counsel=s conduct or the strategical bases

for any of his decisions. Without such a record, this Court cannot determine whether counsel recommended

that appellant plead guilty or not guilty and whether such advice was pursuant to sound trial strategy. See

Pena-Mota, 986 S.W.2d at 348. Furthermore, there is nothing in the record indicating that appellant

would have pleaded differently had he known that if he had done so the district judge would have had the

option to grant him deferred adjudication community supervision. Given the paucity of the record regarding

this issue, we cannot say that appellant has shown his trial counsel was ineffective. Appellant=s second issue

is overruled.




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                                              Conclusion

                 The judgments of conviction are affirmed.




                                                __________________________________________

                                                Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: August 30, 2002

Do Not Publish




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