                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-12-00054-CR
                           ____________________
           ELBERT PERRY JR. A/K/A ELBERT PERRY, Appellant

                                        V.

                      THE STATE OF TEXAS, Appellee
_______________________________________________________           ______________

                 On Appeal from the Criminal District Court
                         Jefferson County, Texas
                        Trial Cause No. 11-13027
________________________________________________________           _____________

                         MEMORANDUM OPINION

      A jury found Elbert Perry Jr. guilty of aggravated robbery, enhanced by

prior convictions to habitual offender status. He received a punishment of 99 years

in prison. He challenges the sufficiency of the evidence, he contends the

prosecutor’s jury argument was improper, and he argues ineffective assistance of

counsel.




                                        1
                                     THE FACTS

      Wanita Teno explained that she was home with her children on the night of

the robbery; her husband had taken his mother to the hospital. After retrieving

some school papers out of her car trunk, she walked back to the house. Perry ran

up to her, called her by name, put a gun to her back, ordered her into the house,

and told her that if she said anything he would shoot her. He was accompanied by a

woman. Holding the gun on Wanita, Perry asked her where the safe was located in

the house, and told her to get it. Wanita testified she handed the safe to him. Perry

told her that if she said anything to her husband about the incident, Perry would

come back and kill her. Wanita knew Perry. He had worked on their house.

      With the safe and gun in his hands, Perry walked to the front door. At that

moment, Wanita’s husband returned home and opened the door. Perry pointed the

gun at him and told him not to try anything. Attempting to run out of the house,

Perry stumbled, dropped the safe and the gun, and fled. Wanita picked up the gun

and fired at the woman accompanying Perry. The bullet did not hit the woman. The

gun jammed, and Wanita dropped it. Her husband picked the gun up, put it in the

mailbox, told Wanita to go in the house, and placed the safe inside the house. She

called 911. Wanita testified she was terrified.




                                          2
       On cross-examination, defense counsel asked Wanita why, in the 911 call,

she referred to the gun as her gun and why her husband in his call to 911 would

mention that she shot her gun. Her explanation was that her adrenaline was

rushing. And with that rush of adrenaline, she also was able to lift the safe down

from the shelf. Wanita testified that she never owned a gun and that the gun was

Perry’s. She acknowledged that her husband is a convicted felon. She knew he

could be convicted of a felony for having a gun. Wanita also acknowledged that

her husband had been selling illegal DVDs out of the back of his car.

       Bohannon Tevo (“Bo”) testified to similar facts. He explained he “was

hysterical, adrenaline running, nervous.” He stated that as Perry left the house,

Perry stumbled and dropped the safe. Bo testified that his wife somehow ended up

with the gun, as Perry apparently dropped the gun along with the safe. Bo

explained that Wanita fired the gun at Cynthia Thomas, and the gun jammed. Perry

ran toward Cynthia’s car. Bo explained that he retrieved the safe and the gun; he

put the safe in the house and the gun in the mailbox outside their door. Bo called

911.

       Bo testified he has two prior convictions for possession of a controlled

substance, one nine years ago and one sixteen years ago. He completed both

probations successfully.

                                         3
      Cynthia Thomas, who was also charged with aggravated robbery, testified

for the prosecution as part of a plea agreement. Cynthia stated she was under the

influence of PCP that night. Perry asked Cynthia to take him to get a DVD movie.

He directed her to a specific house. Cynthia explained that Perry pulled out a gun,

pointed it at her, and instructed her to do everything he told her to do. He told her

to go up to the house and act like she had to use the restroom. Wanita let her in.

Cynthia testified Perry was pointing the gun at both her and Wanita; he told

Wanita to give him the safe. Cynthia testified Wanita was shaking and appeared

“[t]errified.” She got the safe and Perry took it. Cynthia testified that as they were

going down the hall, she saw a man approach the front door. Cynthia ran out of the

house. She heard a gunshot, but did not know who fired the gun. She started the car

and drove off. The police stopped her car.

      Keith Breiner, a detective with the police department, investigated the case.

He interviewed Wanita, Bo, and Cynthia. He testified the safe was not checked for

fingerprints, because the safe did not have a smooth surface. No fingerprints were

recovered from the pistol. Breiner stated that “it’s very rare that we get a

fingerprint off a firearm normally because of the oil base on them.”




                                          4
                           SUFFICIENCY OF THE EVIDENCE

      Perry argues he did not place Wanita in fear of imminent bodily injury and

death by using and exhibiting a deadly weapon. Perry also argues the physical

evidence does not link him to the gun or the safe. He contends that, when

considered in conjunction with the 911 tapes, the testimony of Wanita and Bo is

inconsistent regarding possession or ownership of the gun. Perry argues it could be

inferred that the gun belonged to Wanita.

      The standard for determining the sufficiency of the evidence under Jackson

v. Virginia is “whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

The jury resolves conflicts in testimony, weighs the evidence, and draws

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;

Hooper, 214 S.W.3d at 13. From the testimony, the jury could reasonably conclude

the gun belonged to Perry, and that Perry, by using a firearm while in the course of

committing theft of property and with intent to obtain and maintain control of the

property, intentionally and knowingly threatened and placed Wanita in fear of

imminent bodily injury and death. We overrule Perry’s sufficiency issue.

                                            5
                                  JURY ARGUMENT

      Perry argues that during closing argument the prosecutor commented on

Perry’s failure to testify. Under the federal and state constitutions, a defendant has

a privilege not to testify. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App.

2011); see also U.S. Const. amend. V; Tex. Const. art. I, § 10. Article 38.08 of the

Code of Criminal Procedure provides that a defendant’s failure to testify on the

defendant’s own behalf may not be held against the defendant and that counsel

may not allude to the defendant’s failure to testify. Tex. Code Crim. Proc. Ann. art.

38.08 (West 2005).

      If another explanation for the prosecutor’s remark is equally plausible, the

reviewing court “‘cannot find that the prosecutor manifestly intended to comment

on the defendants’ failure to testify[.]’” Randolph, 353 S.W.3d at 891 (quoting

United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977)). “[T]he implication

that the State referred to the defendant’s failure to testify must be a clear and

necessary one.” Randolph, 353 S.W.3d at 891. Moreover, a prosecutor’s comments

may be permissible if they are a “fair response” to the defendant’s claims or

assertions. Id. at 892 (quoting United States v. Robinson, 485 U.S. 25, 28-32, 108

S.Ct. 864, 99 L.Ed.2d 23 (1988)).




                                          6
      The prosecutor made the following comment to the jury, and defense

counsel objected:

      [PROSECUTOR]: . . . I agree with [defense counsel] that really the
      only issue in this case, this happened in Jefferson County, Texas; . . .
      it was his client, Elbert Perry; it was their house; there was a theft that
      occurred. The only issue that is in contention is did the defendant have
      a gun and did he exhibit it against Mr. and Mrs. Teno and I agree with
      him on that.
             . . . . Everything I say and everything [defense counsel] said, we
      weren’t there. We’re not here to tell you what happened because we
      didn’t see it.
             He tells you his client was there. Well, the State agrees with
      that; but [defense counsel] doesn’t have evidence of that. He didn’t
      provide any of the evidence that he told you during opening statement.
      He says there is two sides to the story. There is no evidence of
      anything he told you. He says –
       [DEFENSE COUNSEL]: Your Honor, I object to that being a direct
      comment on the defendant’s failure to testify. He has no burden of
      proof and is covered by the presumption of innocence.
             ....
      THE COURT: Hold on. The objection is overruled. Ladies and
      gentlemen, again, let me instruct the jury that the statements in final
      argument, again, are not evidence. I’ve instructed you to that in
      writing; and, again, the statements by the attorneys are not evidence.
      The evidence comes from the witness chair and also exhibits that are
      admitted. The attorneys get to make comments in voir dire, opening
      statements, questioning of witnesses and final arguments but those
      have their particular places under the rules of procedure but you’re
      going to make your verdict, your decision in your deliberations, based
      upon the evidence and the law that’s given to you. And again, the law
      is provided by the instructions of the Court and the written
      instructions, jury charge, that has been read to you and has been
      provided to you in written form when you go to the deliberation room.
      With that, you may proceed.


                                          7
Perry focuses on the prosecutor’s statement that “[t]here is no evidence of anything

he told you.” He argues that the use of the word “he” clearly is a reference to Perry

and his failure to testify. But the reference is to defense counsel and the remarks

counsel made during his opening statement.

      During that opening statement, defense counsel commented that “we believe

the evidence is going to show the following[,]” and he provided examples of that

evidence: alleged prior transactions when Perry would sell CDs to the Tenos and

the Tenos could “produce illegal copies of CD[]s and sell them out on the streets”;

various details concerning Wanita’s alleged request to Perry to retrieve the safe

from the shelf; her alleged dissatisfaction with the transaction and desire to have

the safe back; and her alleged grabbing of her pistol out of her nightstand. During

his closing argument and prior to the State’s closing statement, defense counsel

again referenced the safe and argued that Wanita could not remove it from the

shelf and that she asked Perry to get it down for her. Defense counsel also argued

during his closing statement that the gun belonged to the Tenos, and they would

not admit ownership because Bo is a convicted felon.

      The prosecutor’s remarks were a response to the defendant’s claims or

assertions concerning the evidence. The jury would not necessarily and naturally

take the prosecutor’s language -- that there is no evidence of anything he told you --

                                          8
as referring to the defendant himself or his failure to testify. Rather, the prosecutor

pointed out that there was no evidence of the version of events defense counsel

suggested in the opening statement. We overrule Perry’s jury-argument issue.

                       INEFFECTIVE ASSISTANCE OF COUNSEL

      In an amended brief, Perry contends trial counsel was ineffective, and should

have filed pretrial motions. The record is silent as to why Perry’s trial counsel did

not file pretrial discovery motions. The mere failure to file pretrial motions,

however, does not categorically constitute ineffective assistance. See Autry v.

State, 27 S.W.3d 177, 182 (Tex. App.—San Antonio 2000, pet. ref’d); Ryan v.

State, 937 S.W.2d 93, 104 (Tex. App.—Beaumont 1996, pet. ref’d).

      To prevail on a claim of ineffective assistance, the appellant must meet the

two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App.

2011). Perry must show that (a) counsel’s representation fell below an objective

standard of reasonableness under prevailing professional norms, and (b) there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. See Strickland, 466 U.S. at 687-88, 694;

Lopez, 343 S.W.3d at 142. Appellant has the burden of proving by a preponderance




                                          9
of the evidence that counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999).

      There is a strong presumption that trial counsel’s performance fell within the

wide range of reasonable professional assistance. Lopez, 343 S.W.3d at 142.

Counsel’s deficiency must be affirmatively demonstrated in the trial court, and the

reviewing court must not engage in “retrospective speculation.” Id. The reviewing

court cannot consider factual assertions that are outside the record. Whitehead v.

State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). When direct evidence is not

available, we assume trial counsel had a strategy “if any reasonably sound strategic

motivation can be imagined.” Lopez, 343 S.W.3d at 143. We review the totality of

the representation and the circumstances of each case. Id. Because the record on

direct appeal is usually inadequately developed, “claims of ineffective assistance of

counsel rejected due to lack of adequate information may be reconsidered on an

application for a writ of habeas corpus.” Id.

      Perry argues that if trial counsel had filed pretrial motions he would have

discovered that Wanita and Bo made certain pretrial “statements” that are

important to the case, that the gun was not purchased by Perry, and that “perhaps”

Wanita was the gun’s owner. He asserts that the Tenos’ testimony at trial was




                                         10
inconsistent with the Tenos’ prior “statements” regarding the ownership of the gun,

and he characterizes their testimony as “governmental witness false testimony.”

      Keith Breiner, the police department detective who interviewed Wanita, Bo,

and Cynthia prior to trial, testified the department makes “audio/video statements.”

The record does not contain the police interviews of these witnesses. We do not

know if counsel reviewed them prior to trial, and we do not know whether counsel

would have found them to be as favorable as appellant believes. See Bone v. State,

77 S.W.3d 828, 834-35 n.21 (Tex. Crim. App. 2002).

      The record does contain the recordings of the 911 calls that Wanita and Bo

made to the police dispatcher. Counsel cross-examined both Wanita and Bo

regarding ownership of the gun, referenced the language in the 911 tapes, and

presented the defensive theory that Bo and Wanita lied about the gun’s ownership

because of Bo’s status as a convicted felon. Counsel also argued the issue of gun

ownership to the jury.

      In his brief on appeal, Perry states his trial attorney told him that no pretrial

discovery motions were filed because Wanita and Bo did not make any statements,

and therefore Perry should win the case. But there is nothing in the record to

support Perry’s claim that trial counsel made this statement to Perry. An ineffective




                                         11
assistance of counsel claim must be firmly founded in the record. Thompson, 9

S.W.3d at 813. We cannot speculate on matters not contained in the record.

      Perry also argues that if trial counsel had “filed a motion for extraneous

crimes[,]” counsel “would have investigated and prepared a different defense.” The

record is silent as to trial counsel’s trial strategy in failing to file the motion. Perry

references evidence from the punishment stage of the trial. Two witnesses testified

Perry robbed them at gunpoint approximately eleven days before he committed the

present offense. Trial counsel cross-examined the punishment-phase witnesses. In

addition to their testimony, the jury also heard evidence during the trial’s

punishment phase of Perry’s extensive criminal history. Perry pleaded “true” to

having committed four prior felony offenses and two prior state-jail-felony

offenses. Perry has not shown that there is a reasonable probability that, but for

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

been different or that the jury would have assessed a lesser sentence. Perry’s issue

alleging ineffective assistance of counsel is overruled. The judgment is affirmed.

      AFFIRMED.


                                                _______________________________
                                                       DAVID GAULTNEY
                                                             Justice


                                           12
Submitted on May 30, 2013
Opinion Delivered July 10, 2013
Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.




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