                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00354-CR


BRADLEY HAROLD ANDREWS                                           APPELLANT

                                        V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      In two issues, Appellant Bradley Harold Andrews appeals his burglary

conviction. We affirm.

                     II. Factual and Procedural Background

      At around 11:45 p.m., Christopher Carter and K.T., Carter’s girlfriend’s

daughter, were watching DVDs upstairs in the home that Carter shared with his
      1
       See Tex. R. App. P. 47.4.
parents when Andrews, K.T.’s biological father, pounded on the door of the

Carters’ home and demanded to see K.T.2 Carter’s parents, Charles and Diane,

had been downstairs watching television; Charles answered the door.

      Charles testified that Andrews entered the house when he saw Carter

coming down the stairs. After Carter told Andrews that he was not supposed to

be anywhere near K.T., Andrews stepped across the threshold, raised his fist,

and hit Carter. Carter took a defensive position and told Andrews to back off.

After the initial altercation, Andrews backed out the front door and continued to

yell about wanting his daughter back, and Diane called the police. Andrews then

reentered the house and repeatedly hit Carter.      After the second altercation,

Charles was able to shut the front door, but Andrews remained outside the

house, screaming profanities.

      Carter and his parents testified that Carter had not fought back and that

Andrews had entered the house without their consent.        After a jury convicted

Andrews of burglary of a habitation, the trial court sentenced him to seven years’

confinement. This appeal followed.

                         III. Sufficiency of the Evidence

      As set out in the State’s indictment and the trial court’s charge, a person

commits burglary if, without the effective consent of the owner, he enters a

habitation with intent to commit an assault or commits or attempts to commit an

      2
       Carter testified that Andrews’s parental rights to K.T. had been
terminated.


                                        2
assault. See Tex. Penal Code Ann. § 30.02(a)(1), (3), (c) (West 2011). In his

first issue, Andrews argues that the evidence is insufficient to support his

burglary conviction because the Carters impliedly consented to his entry on the

premises. He does not challenge the sufficiency of the evidence proving the

offense’s remaining elements.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

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, 319, 99 S. Ct. 2781, 2789 (1979); Isassi v. State, 330 S.W.3d 633, 638

(Tex. Crim. App. 2010). This standard gives full play to the responsibility of the

trier of fact 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; Isassi, 330 S.W.3d at 638. The trier of fact is the sole

judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.

Ann. art. 38.04 (West 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.

App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing an

evidentiary sufficiency review, we may not re-evaluate the weight and credibility

of the evidence and substitute our judgment for that of the factfinder. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Instead, we Adetermine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to

                                         3
the verdict.@ Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We

must presume that the factfinder resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at

2793; Isassi, 330 S.W.3d at 638.

      To support his argument, Andrews points to Charles’s testimony that he

stepped aside when he realized that Carter and Andrews knew each other and

were talking to each other. However, the jury also heard Charles testify that he

opened the door only to try to identify who was on the other side and that this

was not an invitation to Andrews to enter the home; that at no time during the

course of events was Andrews invited into the house; and that Andrews did not

have permission to enter.       Further, Carter testified that Andrews was not

welcome in the house and that he told Andrews that he should not be there

before Andrews entered the house.3 See Mayfield v. State, 188 S.W.3d 316, 319

(Tex. App.—Eastland 2006, pet. ref’d) (“The Penal Code does not require a

forced entry, and burglary convictions have been affirmed in a variety of

circumstances without one.”).      Viewing all of the evidence in the light most

favorable to the verdict, we hold that a rational trier of fact could have resolved

any conflicting inferences in favor of the verdict and found the essential elements

of burglary beyond a reasonable doubt. See Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Isassi, 330 S.W.3d at 638. We overrule Andrews’s first issue.

      3
       Andrews admits in his brief that he was “uninvited” after the first assault;
he directs us to no evidence that his second entry into the home was “invited.”


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                      IV. Ineffective Assistance of Counsel

      Andrews did not testify at trial. During closing arguments, his counsel told

the jury regarding Andrews’s not testifying, “You can hold that against me, but

don’t hold it against him. I made the decision for the Defense, my advice that

you’ve heard enough. I concluded that you have heard enough.”4 In his second

issue, Andrews argues that this statement constituted ineffective assistance.

      To establish ineffective assistance of counsel, the appellant must show by

a preponderance of the evidence that his counsel’s representation fell below the

standard of prevailing professional norms and that there is a reasonable

probability that, but for counsel’s deficiency, the result of the trial would have

been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064 (1984); Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009).

      In evaluating the effectiveness of counsel under the first prong, we look to

the totality of the representation and the particular circumstances of each case.

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The issue is

whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065. Review of counsel’s representation is


      4
      Andrews also directs us to counsel’s request to the trial court after
sentencing, “At this time, Your Honor, he would like to give notice of appeal in
open court and I would like to request the Court to appoint him a different
counsel in order that he may bring up ineffective assistance of counsel on
appeal.”


                                        5
highly deferential, and the reviewing court indulges a strong presumption that

counsel’s conduct fell within a wide range of reasonable representation. Salinas

v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65

S.W.3d 59, 63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a

position on direct appeal to fairly evaluate the merits of an ineffective assistance

claim. Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813–14. “In the

majority of cases, the record on direct appeal is undeveloped and cannot

adequately reflect the motives behind trial counsel’s actions.”         Salinas, 163

S.W.3d at 740 (quoting Mallett, 65 S.W.3d at 63). To overcome the presumption

of reasonable professional assistance, “any allegation of ineffectiveness must be

firmly founded in the record, and the record must affirmatively demonstrate the

alleged ineffectiveness.” Id. (quoting Thompson, 9 S.W.3d at 813). It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex.

Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id. The ultimate focus of our inquiry must


                                          6
be on the fundamental fairness of the proceeding in which the result is being

challenged. Id. at 697, 104 S. Ct. at 2070.

      Andrews filed a motion for new trial, but he did not raise ineffective

assistance of counsel as a ground, and the record does not reflect trial counsel’s

motive in attempting to shift any blame the jury might place on Andrews’s failure

to testify away from Andrews and to his counsel. See Salinas, 163 S.W.3d at

740 (quoting Mallett, 65 S.W.3d at 63).

      Further, counsel’s plea to blame him instead of his client for Andrews’s

failure to testify may have been a logical strategy in light of the evidence at trial

and Andrews’s history with K.T. and K.T.’s mother.5 See Salinas, 163 S.W.3d at

740; see also Clark v. State, 365 S.W.3d 333, 337 (Tex. Crim. App. 2012)

      5
        Code of criminal procedure article 38.08 states, “Any defendant in a
criminal action shall be permitted to testify in his own behalf therein, but the
failure of any defendant to so testify shall not be taken as a circumstance against
him, nor shall the same be alluded to or commented on by counsel in the cause.”
Tex. Code Crim. Proc. Ann. art. 38.08 (West 2005). The statute’s intent is to
prohibit prosecutors from urging the jury to draw conclusions regarding the
defendant’s guilt from his failure to testify. See, e.g., Randolph v. State, 353
S.W.3d 887, 891 (Tex. Crim. App. 2011) (“In assessing whether the defendant’s
Fifth Amendment right has been violated, courts must view the State’s argument
from the jury’s standpoint and resolve any ambiguities in the language in favor of
it being a permissible argument.”); Snowden v. State, 353 S.W.3d 815, 823–24
(Tex. Crim. App. 2011) (“[T]he prosecutor’s remark about the appellant’s lack of
remorse in the courtroom was an objectionable comment on the appellant’s
failure to testify because it highlighted for the jury the appellant’s failure to take
the stand and claim present remorse.”); see also Fuentes v. State, 991 S.W.2d
267, 275 (Tex. Crim. App.) (noting that State’s comment, “We respect his right to
remain silent and we’ve done that . . . ,” was a recognition that appellant
possessed a right not to testify and was distinguishable “from cases in which the
State comments negatively on the defendant’s failure to testify”), cert. denied,
528 U.S. 1026 (1999).


                                          7
(“Defendants who take the stand are subject to the same rules governing the

cross-examination of any other witness.”); Jefferson v. State, No. 14-97-01018-

CR, 1999 WL 496915, at *1–3 (Tex. App.—Houston [14th Dist.] July 15, 1999, no

pet.) (not designated for publication) (concluding in similar circumstances that

counsel’s remark was not ineffective assistance). Counsel specifically requested

an instruction in the charge that the jury take no negative inference from

Andrews’s failure to testify, which the trial court granted.6 And counsel asked the

jury in closing argument that if he had done “anything that annoyed any of you in

any way, please don’t hold that against my client.”

      Furthermore, the record does not reflect that but for counsel’s alleged

error, the result of the proceeding would have been different: Three separate

witnesses testified to the same series of events establishing the elements of

burglary. Andrews does not explain how trying to shift any concern about his not

testifying to his counsel would have affected the outcome.    See Strickland, 466

U.S. at 687, 694, 104 S. Ct. at 2064, 2068. Therefore, we overrule Andrews’s

second issue.

                                   V. Conclusion

      Having overruled both of Andrews’s issues, we affirm the trial court’s

judgment.



      6
      Counsel requested a lesser-included offense instruction on assault
causing bodily injury, which the trial court also granted.


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                                        PER CURIAM

PANEL: MCCOY, GARDNER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 11, 2012




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