AFFIRMED; Opinion Filed March 4, 2015.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01495-CR

                              DENNIS RAY HAYES, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the 282nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1351915-S

                             MEMORANDUM OPINION
                          Before Justices Francis, Evans, and Stoddart
                                  Opinion by Justice Stoddart
       A jury convicted Dennis Ray Hayes of aggravated robbery with a deadly weapon. Hayes

pleaded true to two enhancement paragraphs, and the trial court sentenced him to 45 years’

confinement. In four issues, Hayes argues the evidence is insufficient to prove his identity, the

trial court misstated his rights and he suffered ineffective assistance of counsel, he entered an

involuntary plea of true to the enhancement paragraphs, and the evidence supporting the

enhancements is insufficient. We affirm the trial court’s judgment.

                                     FACTUAL BACKGROUND

       Lejla Pracic was a cashier at a Family Dollar store when a man tried to purchase a bottle

of dish soap. Pracic testified the customer was “[j]ust like any other customer, [he] put it on the

counter, I rang it up, put it in a bag. He gave me his money and I go to close the drawer, and

that’s when he reached over to grab the till out of the drawer.” He pointed his gun at Pracic.
         The robber instructed Pracic to tell the store manager to open the store’s safe. Before the

assistant store manager, Alicia Blackburn, could open the safe, the robber left the store.

Although Pracic said she would not be able to identify the robber, she described him as black,

and wearing a gray hoodie and “maybe a baseball cap.”

         Blackburn testified that on the night of the robbery, she heard Pracic “start screaming for

me to come up to the front.” Blackburn went to the front of the store where she saw a man

pointing a gun at Pracic. Blackburn walked behind the counter and the man followed her. The

robber wanted Blackburn to open the safe. When Blackburn told him it takes ten minutes to

open the safe, the robber left the store.

         Blackburn described the man as black, medium build, and wearing a gray hoodie or

sweatshirt. He was not wearing a mask. Blackburn went to the police station to view a photo

lineup. She thought there were “two pictures that both of them bared [sic] resemblance, but I

couldn’t say a hundred percent.”

         Michael Mulkey, a police officer with the Dallas Police Department, testified he was

called to the Family Dollar store after the robbery. While processing the crime scene, Mulkey

dusted the bottle of dish soap for fingerprints, and he was able to lift latent prints from the bottle.

On cross-examination, Mulkey testified it would be possible for fingerprints to remain on the

soap bottle for a week if no one else touched the bottle or disturbed it.

         Tammy McLean testified as a fingerprint expert. McLean analyzed the latent prints lifted

by Mulkey and concluded two of the latent prints had sufficient ridge detail to compare to inked

prints. She put the prints through a database and determined the prints belonged to Dennis

Hayes.

         Angela Nordyke, a detective with the Dallas Police Department, investigated the case

involving Hayes. She talked to Pracic and Blackburn about the robbery and they gave her a

                                                 –2–
description of the robber. Nordyke had a photo lineup administered to Blackburn. Blackburn

selected two photographs, but could not determine which one was the robber. One of the photos

selected by Blackburn was a picture of Hayes. Nordyke did not administer a photo lineup to

Pracic.

          Nordyke also viewed the surveillance video and saw the robber was wearing a gray

hoodie with black lining, jeans, black shoes with reflective toes, and a black hat. When she

initially contacted Hayes, she noticed he appeared to be wearing the same grey hoodie sweatshirt

with black lining and the same shoes that the robber in the video was wearing. She testified that

in her experience, she does not see many gray hoodie sweatshirts with black linings. The shoes

stood out to her because they have “a reflector thing on the toe.”

                                          LAW & ANALYSIS

          A.     Sufficiency of the Evidence

          In his first issue, Hayes argues the evidence is insufficient to prove his identity. Hayes

does not challenge whether an aggravated robbery occurred; Hayes contends that there is

insufficient evidence identifying him as the person who committed the offense.

          We review a challenge to the sufficiency of the evidence of a criminal offense for which

the State has the burden of proof under the single sufficiency standard set forth in Jackson v.

Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex.

Crim. App. 2013). We examine all the evidence in the light most favorable to the verdict and

determine whether a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Id. We defer to the jury’s credibility and weight determinations

because the jury is the sole judge of the witnesses’ credibility and the weight to be given to their

testimony. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). When the record

supports conflicting inferences, a reviewing court must “presume that the factfinder resolved the

                                                 –3–
conflicts in favor of the prosecution” and defer to that determination. Wise v. State, 364 S.W.3d

900, 903 (Tex. Crim. App. 2012).

       The evidence shows Hayes’s fingerprints were on the soap bottle that the robber placed

on the counter. Further, when Nordyke initially contacted Hayes, he was wearing a gray hoodie

sweatshirt with black lining and black shoes with reflective toes that looked like the garments the

robber was wearing on the surveillance video. Nordyke testified the black lining in the hoodie

and the reflective toe of the shoes were not common. Finally, in the photo lineup, Blackburn

narrowed the photos to two people who she thought looked like the person who robbed the

Family Dollar—one of those photos was a picture of Hayes. Viewing all the evidence in the

light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a

reasonable doubt that Hayes was the person who committed the robbery. See Matlock, 392

S.W.3d at 667; see also Penney v. State, No. 05-08-00494-CR, 2009 WL 1058742, at *3-4 (Tex.

App.—Dallas Apr. 21, 2009, pet. ref’d) (not designated for publication).

       Although Hayes suggests that he could have handled the bottle of soap on a different day

and his fingerprints could have remained on the bottle that the robber placed on the counter, the

record does not show Hayes was in the Family Dollar store on a prior occasion. The record does

not support Hayes’s argument.

       We overrule Hayes’s first issue.

       B.      Constitutional Claims

       In his second issue, Hayes argues his due process rights were violated when he waived

his right to testify in mitigation of punishment on the basis of incorrect information from the trial

court. He also asserts he suffered ineffective assistance of counsel. At the punishment phase of

the trial, the following exchange occurred:

              THE COURT: Okay. Mr. Hayes, you have a right to testify at this
       proceeding. You also have a right not to testify at this proceeding. And just like
                                                –4–
       the jury, I’m not going to hold it against you or take it as a circumstance against
       you in the event if you choose not to testify. It is a right that you have and you
       have alone. There are certain things that you could hurt yourself by testifying. I’m
       going to go over those, and that is if you decide to testify, the State could ask you
       questions regarding the - - the offense. They could ask you any question they
       want to, and including whether or not you did it. And at that time, you got to
       make a decision, and you could say either yes, I did it; or, no, I didn’t do it. But I
       accept the jury’s verdict, if you do say, yes, I did it, it would have certain
       collateral consequences for you on -- on appeal.
               Have you gone over that -- all of those things with your lawyer?
               THE DEFENDANT: Yes, I have.
               THE COURT: Okay. Do you have any questions about that at all?
               THE DEFENDANT: No, sir.

The defense did not call any witnesses in the punishment phase.

       On appeal, Hayes argues the trial court misinformed him that there could be collateral

consequences on appeal if he testified he committed the crime. As a result, he asserts, he

involuntarily waived his right to present mitigating evidence. He further asserts he was deprived

of effective assistance of counsel because his lawyer did not “correct” the trial court’s

misstatement.

       In his brief, Hayes assumes the “collateral consequences” to which the trial court referred

was the now-overruled DeGarmo doctrine that a defendant who testified and admitted guilt at the

punishment phase waived his right to challenge the sufficiency of the evidence. See Jacobson v.

State, 398 S.W.3d 195, 196-97 (Tex. Crim. App. 2013) (overruling DeGarmo v. State, 691

S.W.2d 657 (Tex. Crim. App. 1985)) (“a defendant who testifies at the punishment stage of trial

and admits his guilt does not forfeit his right to complain on appeal about errors occurring during

the guilt stage.”).   However, the record does not support that conclusion.         The trial court

specifically instructed Hayes he had a right to testify at the punishment proceedings and the trial

court would not hold it against him if he did not do so. The trial court further asked Hayes if

Hayes’s counsel had “gone over . . . all of those things” with him; Hayes stated his counsel had

and he did not have questions. Although Hayes filed a motion for new trial, this issue was not

                                                –5–
raised in the motion. Further, there is no evidence in the record about why Hayes opted not to

testify, whether he would have admitted guilt if he had testified, or what advice he received from

his lawyer. Based on this record, we cannot assume Hayes understood the trial court’s statement

to mean Hayes could not challenge the sufficiency of the evidence on appeal if he admitted guilt.

Similarly, we cannot conclude Hayes’s constitutional rights were violated by the trial court’s

statement that there could be collateral consequences on appeal if he testified he committed the

crime.

         Hayes also asserts he suffered ineffective assistance of counsel because his lawyer did

not “correct” the trial court’s “collateral consequences” statement. To prevail on an ineffective

assistance of counsel claim, an appellant must show counsel’s performance fell below an

objective standard of reasonableness and a reasonable probability exists 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 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex.

Crim. App. 1999).       The record must be sufficiently developed to overcome the strong

presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim.

App. 1999). In general, a silent record that provides no explanation for counsel’s actions will not

overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107,

110–11 (Tex. Crim. App. 2003). We presume a sound trial strategy in the absence of evidence

of counsel’s strategic motives. Thompson, 9 S.W.3d at 813–14.            We will not reverse for

ineffective assistance when counsel’s actions or omissions may have been based on tactical

decisions, but the record does not explain the reasons for counsel’s decisions. Lopez v. State,

343 S.W.3d 137, 142 (Tex. Crim. App. 2011). Absent an opportunity for trial counsel to explain

his conduct, we should not find ineffective assistance unless the challenged conduct was “so




                                               –6–
outrageous that no competent attorney would have engaged in it.” Goodspeed v. State, 187

S.W.3d 390, 392 (Tex. Crim. App. 2005).

       Hayes did not raise his claim of ineffective assistance of counsel in the trial court or

otherwise develop a record showing what advice Hayes received from his counsel or why his

counsel did not “correct” the statement about which Hayes complains on appeal. The record

includes no evidence to overcome the presumption that Hayes’s counsel provided reasonable

assistance. See Rylander, 101 S.W.3d 110–11. Because it is not apparent that the trial court

misstated the law, the decision by Hayes’s counsel not to object was not “so outrageous that no

competent attorney would have engaged in” that action. See Garcia v. State, 57 S.W.3d 436, 440

(Tex. Crim. App. 2001). Further, the record does not show how Hayes would have testified,

whether he would have admitted guilt, or how his testimony (if any) would have affected the

outcome of the trial. In light of this record, we conclude Hayes has not demonstrated that his

trial counsel’s performance was deficient or that the outcome of his trial would have been

different but for his counsel’s actions.

       We overrule Hayes’s second issue.

C.     Enhancement Paragraphs

       In his third and fourth issues, Hayes argues the trial court violated his due process rights

by accepting his pleas of true to the enhancement allegations when the allegations were unclear

and the evidence is insufficient to prove the enhancement allegations.

       The State filed two notices of enhancement allegations prior to trial. The first notice

included allegations of two prior convictions, stating:

       And it is further presented to said Court that prior to the commission of the
       aforesaid offense, the said defendant was convicted of a felony offense of FELON
       IN POSSESSION OF A FIREARM, on the 22nd day of MARCH, 1994, A.D., in
       Cause Number CR-93-590-1 on the docket of ELEVENTH DISTRICT, FIRST
       DIVISION, of JEFFERSON COUNTY, ARKANSAS under the name of
       DENNIS HAYES and said conviction was a final conviction,
                                                –7–
       And further, presented to said Court that prior to the commission of each of the
       aforesaid offenses, the said defendant was convicted of a felony offense of
       BURGLARY, on the 6th day of JANUARY 1992, A.D., in Cause Number CR-
       91-612 on the docket of ELEVENTH, WEST DISTRICT FIRST DIVISION, of
       JEFFERSON COUNTY, ARKANSAS under the name of DENNIS HAYES and
       said conviction was a final conviction.

The second notice also included allegations of two prior convictions, stating:

       And it is further presented to said Court that prior to the commission of the
       aforesaid offense, the said defendant was convicted of a felony offense of
       ROBBERY, on the 13th day of NOVEMBER, 2001, A.D., in Cause Number CR-
       2000-863-2 on the docket of the ELEVENTH WEST JUDICIAL DISTRICT,
       SECOND DIVISION, JEFFERSON COUNTY, ARKANSAS under the name of
       DENNIS RAY HAYES and said conviction was a final conviction,

       And further, presented to said Court that prior to the commission of each of the
       aforesaid offenses, the said defendant was convicted of a felony offense of
       FELON IN POSSESSION OF A FIREARM, on the 22nd day of MARCH, 1994,
       A.D., in Cause Number CR-93-590-1 on the docket of ELEVENTH DISTRICT,
       FIRST DIVISION, of JEFFERSON COUNTY, ARKANSAS under the name of
       DENNIS HAYES and said conviction was a final conviction.


The record shows the State arraigned Hayes on enhancement paragraphs. However, the record

does not reflect which enhancement paragraphs were read. Rather, the reporter’s record shows:

               THE COURT: And you’ve got enhancement paragraphs as well?
               [STATE]: Yes, Your Honor, do you want me to arraign him on those as
       well?
               THE COURT: Yes.
                       ([State] read the enhancement paragraphs to defendant.)
               ...
               THE COURT: And to the enhancement paragraphs that were read, how do
       you plead, true or not true?
               [DEFENSE COUNSEL]: Your Honor, is that something that we can take
       up later?
               THE COURT: We can take it up later. I think what - - the way that we
       normally do it is, that you enter a plea of not true at this time; however, you
       would certainly be afforded a right to change your plea to true should you so
       desire.
               So the Court will enter pleas of not true on behalf of the defendant at the
       [sic] he has the absolute right to be able to change that.




                                               –8–
       After the jury found Hayes guilty of aggravated robbery, the trial court conducted

sentencing proceedings. The following exchange occurred:

                THE COURT: There are two enhancement paragraphs that at the outset
       you entered pleas of not true to. It’s my understanding that you wish to plead true
       to those offenses. You don’t have to plead true to the offenses. You can stick
       with a plea of not true and put the State to their -- to their -- to their burden. But
       it’s in fact your desire to plead -- to change your plea from true to not true [sic] to
       the paragraphs?
                THE DEFENDANT: Not true -- I mean, true.
                THE COURT: True. Okay. You talked to your lawyer about that?
                THE DEFENDANT: Yes, sir.
                THE COURT: All right. Pleas of true are entered.
                You understand that that makes the minimum 25 to life?
                THE DEFENDANT: Yes, sir.
                THE COURT: Okay. All right. Pleas of true are entered to the
       enhancement paragraphs. And to - - the Court finds them to be true as well.


       The State then offered Exhibit 48, which it described as “the pen packet from Arkansas

Department of Corrections,” containing “two paragraphs in the penitentiary packet and also

contains other priors.” The exhibit was admitted without objection. The exhibit shows Hayes

was convicted of all three offenses included in the notices of enhancements.

       The record shows that at the beginning of the proceedings, the State “read the

enhancement paragraphs to defendant” and Hayes pleaded not true. After consulting with his

lawyer, Hayes subsequently changed his plea to true. During the entirety of the proceedings,

Hayes was represented by counsel. There is no indication that anyone––the trial judge, the State,

Hayes, or Hayes’s counsel—was confused about which enhancement paragraphs were at issue.

When the trial court reintroduced the subject of the enhancement paragraphs, Hayes pleaded true

without objecting the allegations were unclear. He also informed the trial court he had discussed

his plea with his lawyer. The record supports the conclusion that Hayes and his counsel knew

what the enhancement allegations were, discussed the enhancements being alleged by the State,




                                                –9–
and discussed Hayes’s plea to those enhancement. The record does not support Hayes’s claim

that the allegations being made by the State were unclear.

         Additionally, if the enhancement allegations being made by the State were unclear to

Hayes, Hayes was required to object to preserve his complaint for appeal. See TEX. R. APP. P.

33.1(a). Hayes did not do so, and we conclude Hayes has not preserved this complaint for

appeal. We overrule Hayes’s third issue.

         To establish a prior conviction for purposes of enhancement, the State must prove two

elements beyond a reasonable doubt: (i) the existence of a prior conviction; and (ii) the

defendant’s link to that conviction. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App.

2007). A defendant’s plea of “true” to the enhancement allegation satisfies the State’s burden of

proof. Wilson v. State, 671 S.W.2d 524, 525 (Tex. Crim. App. 1984). Once a defendant pleads

“true” to an enhancement allegation, he cannot thereafter complain the evidence is insufficient to

support it. Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981) (op. on reh’g).

         The reporter’s record and the judgment reflect Hayes pleaded true to the enhancement

paragraphs and the trial court found the enhancement paragraphs to be true. Hayes’s plea of true

constituted sufficient proof to support the enhancement allegations. We overrule Hayes’s fourth

issue.

                                           CONCLUSION

         We affirm the trial court’s judgment.



Do Not Publish
TEX. R. APP. P. 47
131495F.U05                                         / Craig Stoddart/
                                                    CRAIG STODDART
                                                    JUSTICE




                                                 –10–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

DENNIS RAY HAYES, Appellant                        On Appeal from the 282nd Judicial District
                                                   Court, Dallas County, Texas
No. 05-13-01495-CR        V.                       Trial Court Cause No. F-1351915-S.
                                                   Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                       Justices Francis and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 4th day of March, 2015.




                                            –11–
