                            NUMBER 13-09-00334-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


LARRY ADAMS,                                                                Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 94th District Court
                          of Nueces County, Texas.


                         MEMORANDUM OPINION

              Before Justices Rodriguez, Benavides, and Vela
               Memorandum Opinion by Justice Rodriguez

      A jury found appellant Larry Adams guilty of the felony offense of evading arrest or

detention using a vehicle and sentenced him to forty years' imprisonment after evidence

of his prior felonies was presented. See TEX . PENAL CODE ANN . § 38.04(a), (b)(2)(A)

(Vernon Supp. 2009); see also id. § 12.42(d)(4) (Vernon Supp. 2009) (setting out penalties

for repeat and habitual felony offenders). The trial court heard and denied appellant's
motion for new trial, which asserted ineffective assistance of counsel. By twelve issues,

appellant contends the following: (1) the evidence was factually insufficient to support his

conviction; (2-3) counsel was ineffective; (4) the trial court made improper comments on

the weight of the evidence; (5) appellant's sentence was disproportionate to the offense;

(6) the trial court erred in failing to submit a lesser-included offense to the jury; (7) the trial

court improperly instructed the jury on the range of punishment; (8) appellant was denied

the opportunity to testify during the guilt/innocence phase of trial; (9) the jury panel should

not have been informed of a prior conviction for evading arrest; (10) the trial court made

improper comments to the jury panel regarding the range of punishment and his prior

felony convictions; (11) the trial court erred in conducting a hearing outside the presence

of the jury without appellant present; and (12) the prosecutor made an improper jury

argument. We modify the judgment and affirm as modified.

                                    I. SUFFICIENCY OF THE EVIDENCE1

        By his first issue, appellant contends that the evidence is factually insufficient to

support his conviction for evading detention with a vehicle.                         Specifically, appellant

complains that the evidence does not establish that (1) he used his vehicle to intentionally

flee from the officer, and (2) the officer was attempting lawfully to detain appellant at the

time he fled.

                                                   A. FACTS

        At the guilt/innocence phase of trial, Police Officer Stephen Cox testified that on

January 7, 2009, he was on patrol, driving a fully-marked patrol car and wearing his


          1
            Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

                                                        2
uniform. At 5:24 a.m. that morning, he was dispatched to the Golla neighborhood, a high-

crime area in the refinery district. It was still dark when he responded to a report of "a

suspicious vehicle in the alleyway behind the 1200 block of Golla"; "a dark-colored small

pickup truck in the alleyway, which did not belong there." Officer Cox later explained that

there were two calls about this particular incident. One of the calls reported two people

rummaging through back yards in the area.

       Officer Cox testified that the alleyway was an unpaved utility easement separating

residences from commercial property, an easement not meant to be driven upon by the

residents. Officer Cox further explained that the easements were well-known for providing

burglars and thieves easy access into backyards and that he was "not accustom[ed] to

seeing vehicles going in and out of those easements for any legitimate purposes,

especially not that time of day."

       Officer Cox approached an open field which provided the only access point to the

easement, and he observed appellant's small, red pickup truck backing out of the utility

easement and into the open field. Officer Cox drove over the curb and into the field,

turning on his overhead lights, his take-down lights, and his spotlight to determine what

appellant was doing in the area. Officer Cox agreed that it was clear he was trying to

detain appellant.

       After Officer Cox turned on his lights and was about thirty yards from appellant, he

saw appellant turn his head to the side and look directly at him. Appellant immediately put

the truck into drive and accelerated into the easement, driving past three lots until he was

stopped by an area of thick brush—too thick to pass. Appellant then got out of the vehicle




                                             3
and fled on foot. Officer Cox shouted, "Police," and yelled for appellant to stop. A short

time later, backup officers caught appellant and returned him to Golla Street.

       Officer Cox testified that he did not see appellant commit any crimes and did not

have a warrant for his arrest. Appellant was not under arrest or detention when Officer Cox

attempted to approach him. There was no proof that appellant was trespassing on

personal property or committing any crime by his presence in the alleyway. Officer Cox

also agreed with the State that he was attempting lawfully to detain appellant.

       On cross-examination, Officer Cox responded that a bike was found in the

easement—"a couple of houses further down" from where the truck stopped. At that time,

Officer Cox could not determine whether the bike was stolen. No one claimed ownership

of the bike, and Officer Cox agreed that no one reported a home being broken into or that

any thefts occurred at that particular time. There was nothing else that "jumped out" at

Officer Cox that he suspected to be stolen. Officer Cox stated that he was attempting to

detain appellant—to question him—when he approached appellant; that he "had more than

enough reasonable suspicion to stop and detain [appellant] and ascertain what he was

doing in the area."

       Martin D. Sanchez, who resided on Golla Street, testified that around 4:00 a.m. on

the morning in question, he saw a vehicle parked under a tree in the alleyway behind his

neighbor's house. He called 911 to report the presence of a "suspicious vehicle." Later,

Sanchez saw appellant walk up to the truck. Sanchez further testified that when appellant

got into his truck, a police car approached "real quick" from around the corner. The patrol

car's lights were on. Appellant went "forward in that direction through the alleyway, . . . but

he finally stopped." When appellant stopped the vehicle, he opened the door and fled, and


                                              4
the officer yelled for him to stop and "hold it." Appellant jumped over Sanchez's fence. He

ran between the garages and out on to the street in front of the residences.

       Sanchez explained that he did not see appellant reverse the truck or back out of the

alleyway; however, when the officer came up from behind with his "cherry lights" on, he

saw appellant move his vehicle forward or to the right side of the alleyway for

approximately twenty-five feet. Sanchez agreed that Officer Cox turned on his lights before

appellant began to move forward.

                      B. STANDARD OF REVIEW AND APPLICABLE LAW

       The court of criminal appeals has set forth the standard for factual sufficiency review

as follows:

       In a factual sufficiency review, the evidence is reviewed in a neutral light
       rather than in the light most favorable to the verdict. Evidence can be
       factually insufficient in one of two ways: (1) when the evidence supporting
       the verdict is so weak that the verdict seems clearly wrong and manifestly
       unjust, and (2) when the supporting evidence is outweighed by the great
       weight and preponderance of the contrary evidence so as to render the
       verdict clearly wrong and manifestly unjust. Although an appellate court's
       factual sufficiency review of the evidence allows the court to second-guess
       the jury to a limited degree, the review should still be deferential to the jury's
       verdict.

Williams v. State, 301 S.W.3d 675, 684-85 (Tex. Crim. App. 2009) (citations omitted), cert

denied, 2010 U.S. LEXIS 4837, 78 U.S.L.W. 3729 (U.S. June 14, 2010) (No. 09-9635).

Our review of a factual sufficiency challenge should be examined under the principles of

review for a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280-81

(Tex. Crim. App. 2008). "'Such a charge [is] one that accurately sets out the law, is

authorized by the indictment, does not unnecessarily increase the State's burden of proof

or unnecessarily restrict the State's theories of liability, and adequately describes the

particular offense for which the defendant was tried.'" Villarreal v. State, 286 S.W.3d 321,

                                               5
327 (Tex. Crim. App. 2009) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997)).

        The offense of evading arrest or detention, a Class A misdemeanor, is committed

when the defendant "intentionally flees from a person he knows is a peace officer

attempting lawfully to arrest or detain him." TEX . PENAL CODE ANN . § 38.04(a). "'[F]leeing

is anything less than prompt compliance with an officer's direction to stop." Horne v. State,

228 S.W.3d 442, 446 (Tex. App.–Texarkana 2007, no pet.).                     The offense of evading arrest

or detention is raised to a third-degree felony if "the actor uses a vehicle while the actor is

in flight and the actor has been previously convicted [of evading arrest or detention]."2 TEX .

PENAL CODE ANN . § 38.04(b)(2)(A). The indictment in the present case tracked the

language of the third-degree felony evading-detention-with-a-vehicle statute and the

habitual, felony-offender statute. See id. §§ 12.42(d)(4), 38.04(a), (b)(2)(A).

                                               C. ANALYSIS

1. Using Vehicle to Intentionally Flee

        Appellant first contends that the evidence is factually insufficient to establish that

appellant knew of the officer's intentions to detain him while he was still in his truck.

Appellant claims that he only jumped out of his vehicle and fled after he saw the officer

approaching him in the alley.

        Officer Cox, however, testified that, when he turned on his red and blue overhead

lights and his spotlight, he was only thirty yards from appellant and that appellant turned

and looked directly at him. It was then that appellant put his truck in gear and accelerated


         2
          Appellant pleaded true to the enhancem ent portion of the indictm ent setting out that appellant had
a prior conviction for evading detention, thus, raising the alleged offense in this case to a felony. See T EX .
P EN AL C OD E A N N . § 38.04(b)(2)(A) (Vernon Supp. 2009).

                                                       6
away from Officer Cox. Sanchez's testimony differed concerning the location of appellant's

truck and whether appellant was backing his truck when Officer Cox first observed him.

However, both Officer Cox and Sanchez testified that appellant's truck moved forward,

away from the patrol car, and did not stop immediately after the lights of Officer Cox's

patrol car were activated as Officer Cox pursued appellant's truck. Viewing the evidence

in a neutral light, we conclude that the evidence is factually sufficient to establish that

appellant knew Officer Cox intended to detain him as he was moving forward in his vehicle,

as he fled from Officer Cox. See Williams, 301 S.W.3d at 684-85; Calton, 176 S.W.3d at

234; see also TEX . PENAL CODE ANN . § 38.04(a), (b)(2)(A).

2. Officer Attempting Lawfully to Detain Appellant

       Appellant also contends that the State failed to sufficiently prove that Officer Cox

was attempting lawfully to detain him. See TEX . PENAL CODE ANN . § 38.04(a). Through his

argument, appellant suggests that the evidence is insufficient to prove Officer Cox had a

reasonable suspicion to detain him because no crime was being committed in the officer's

presence and nothing was found afterwards for which appellant could have been arrested.

However, if an officer has a reasonable suspicion to believe that an individual is involved

in criminal activity, the officer may conduct a brief investigative detention. Balentine v.

State, 71 S.W.3d 763, 768 (Tex. Crim. App. 2002); see also Terry v. Ohio, 392 U.S. 1,

21-22, 27 (1968) (providing that reasonable suspicion must be based on more than a non-

specific suspicion or mere "hunch" of criminal activity). A temporary detention will be

justified when the detaining officer has specific, articulable facts which, taken together with

rational inferences from those facts, lead him to conclude that the person detained actually

is, has been, or soon will be engaged in criminal activity. Balentine, 71 S.W.3d at 768;


                                              7
Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001). Because this is an objective

standard, we disregard any subjective intent of the officer making the stop and look solely

to whether an objective basis exists. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App.

2005); see Tanner v. State, 228 S.W.3d 852, 855-59 (Tex. App.–Austin 2007, no pet.)

(concluding that the police has reasonable suspicion to detain the defendant when he and

his companion were seen walking at 3:00 a.m. from a dark area behind a bar that was then

closed for business). A reasonable-suspicion determination is made by considering the

totality of the circumstances. Ford, 158 S.W.3d at 492-93; Garcia, 43 S.W.3d, 530.

       The evidence in this case establishes that Officer Cox responded to pre-dawn

reports of a suspicious vehicle in an unpaved alleyway in a high-crime neighborhood and

of two people rummaging through backyards. This neighborhood was Officer Cox's patrol

area and the alleyways in question were well-known for providing burglars and thieves with

easy access to the backyards. Officer Cox did not generally see vehicles using the

alleyways for legitimate purposes, especially at this time of day. Further, Officer Cox saw

appellant's vehicle in the alleyway. He drove up and turned on his lights. Appellant looked

back at Officer Cox and drove his vehicle further into the alleyway, away from Officer Cox's

patrol car. These are specific, articulable facts which, when taken together with rational

inferences from those facts, could lead Officer Cox to conclude that appellant actually is,

has been, or soon will be engaged in criminal activity. See Balentine, 71 S.W.3d at 768;

Garcia, 43 S.W.3d at 530. Disregarding any subjective intent of Officer Cox and looking

solely to whether an objective basis exists and considering the totality of the

circumstances, we conclude that, based upon his observations, Officer Cox had

reasonable suspicion to detain appellant. See Ford, 158 S.W.3d at 492-93 (whether a


                                             8
basis for the stop exists is based on an objective standard). Viewing the evidence in a

neutral light, we conclude that the evidence was factually sufficient to support a finding that

the officer had attempted lawfully to detain appellant. See Williams, 301 S.W.3d at 684-85;

Calton, 176 S.W.3d at 234; see also TEX . PENAL CODE ANN . § 38.04(a).

       In summary, giving deference to the jury's verdict, we conclude that the evidence

supporting the verdict was neither so weak nor so outweighed by the great weight of any

contrary evidence as to make the verdict seem clearly wrong and manifestly unjust. See

Williams, 301 S.W.3d at 684-85. We overrule appellant's first issue.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

       By issues two and three, appellant challenges the effectiveness of his trial counsel's

assistance. Appellant first complains of counsel's failure to object to the admission of

certain testimony and of her elicitation of other testimony. He then complains of counsel's

failure to obtain evidence which appellant contends is exculpatory.

                                  A. STANDARD OF REVIEW

       Strickland v. Washington sets forth the standard by which we review claims of

ineffective assistance of counsel. 466 U.S. 668, 688 (1984); see Stafford v. State, 813

S.W.2d 503, 506 (Tex. Crim. App. 1991) (en banc). In order to determine whether

appellant's trial counsel rendered ineffective assistance at trial, we must first determine

whether he has shown that counsel's representation fell below an objective standard of

reasonableness and, if so, then determine whether there is a reasonable probability that

the result would have been different but for counsel's errors. Strickland, 466 U.S. at 688,

690-94. In assessing a claim of ineffective assistance of counsel, we indulge a strong

presumption that "counsel's conduct fell within a wide range of reasonable representation."


                                              9
Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Appellant must overcome

the presumption that, under the circumstances, the challenged action might be considered

sound trial strategy. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); Stafford,

813 S.W.2d at 508-09.

              B. TESTIMONY REGARDING METHADONE, A SYRINGE, AND A BIKE

       By his second issue, appellant contends his counsel was ineffective when, at the

guilt/innocence phase of the trial, she failed to object to testimony concerning methadone

and a syringe and testimony about a bike. He argues that "[t]he jury should never have

heard the evidence regarding the stolen bike or that the appellant was a drug addict."

1. The Methadone and Syringe

       During the guilt/innocence phase of the trial, Officer Cox testified on direct

examination by the State, without objection, that he found a locked box containing

documents with appellant's name on it and several doses of methadone in appellant's

truck. Officer Cox also testified that appellant was not charged with an offense for the

methadone because it had been prescribed for him. While Officer Cox testified on re-direct

that a syringe was found in appellant's truck, on re-cross he admitted that he did not know

whether the syringe could have been used to administer the methadone.

       Further, at the hearing on appellant's motion for new trial, appellant's trial counsel

testified that she had "no problem" with evidence of the methadone because it was

prescribed for appellant. Counsel also testified that she did not "[make] an issue of the

methadone" and that "[appellant] wasn't charged with possession or anything of that sort

. . . so [she] didn't think it harmed him very much."




                                             10
       The record developed at the hearing on the motion for new trial contains no support

for appellant's argument that his trial counsel was ineffective because she failed to object

to the admission of evidence that methadone and a syringe had been found in appellant's

truck. While possession of methadone and a syringe may suggest an addiction, it may

also support the position that one is confronting his problem, not running from it. Thus, the

record before this Court, including the complained-of testimony at trial and appellant's trial

counsel's testimony at the hearing, does nothing to rebut the presumption that trial

counsel's actions and decisions regarding the admission of evidence of the methadone and

syringe were reasonably professional and were motivated by sound trial strategy. See

Garcia, 57 S.W.3d at 440; Stafford, 813 S.W.2d at 508-09; see also Salinas, 163 S.W.3d

at 740.

2. The Bike

       At trial, appellant's counsel asked Officer Cox if a bike was found at the scene. He

responded that a bike was found further down the easement and that he suspected the

bike was stolen. However, Officer Cox also stated that none of the neighbors claimed the

bike and there were no reports of a stolen bike or other evidence to indicate that it was

stolen. Counsel elicited testimony from Officer Cox that there was nothing in appellant's

possession at the time that was suspected to be stolen and that Officer Cox had no proof

that appellant had committed any other crimes. In her closing argument, appellant's trial

counsel emphasized that, even though Officer Cox assumed that the bike was stolen, there

was no evidence that appellant had stolen it.




                                             11
         Furthermore, at the hearing on appellant's motion for new trial, when asked whether

her trial strategy was "to get a conviction for the lesser[-]included misdemeanor evading?",

appellant's trial counsel responded as follows:

         Yes, that was a trial strategy. After discussing the case with the defendant,
         he never really gave me any kind of trial strategy. His main, main issue was
         the bike and the receipt for the bike. But as far as him being in the alley, why
         he was there, what put him there, I never got details from him. All he kept
         telling me [was] he didn't remember, he didn't remember. I never got names
         of witnesses, I never got people who he was with. So we went out to the
         scene, we went and investigated, we spoke to Martin Sanchez, and he's the
         one that basically gave us our trial strategy which is he saw him running on
         foot.

This is the only testimony provided by counsel that mentions the bike and her trial strategy.

         Based on the trial testimony and the testimony at the hearing, we conclude that the

record does not rebut the presumption that trial counsel's actions and decisions involving

evidence of the bike found in the alleyway were reasonably professional and were

motivated by sound trial strategy. See Garcia, 57 S.W.3d at 440; Stafford, 813 S.W.2d at

508-09; see also Salinas, 163 S.W.3d at 740. Accordingly, we overrule appellant's second

issue.

                      C. EVIDENCE REGARDING THE RELEASE OF THE BIKE

         By his third issue, appellant complains that his trial counsel was ineffective because

she failed to obtain exculpatory evidence—a release form from the Corpus Christi Police

Department (CCPD)—that would have established he owned the bike. Appellant claims

that this form "proved he had shown receipt of ownership of the bike to have it returned to

him." He asserts that his counsel had a duty to investigate and that her performance was

deficient. We disagree.




                                               12
       When assessing the reasonableness of an attorney's investigation, a reviewing court

must consider the quantum of evidence already known to counsel and whether the known

evidence would lead a reasonable attorney to investigate further. Ex parte Martinez, 195

S.W.3d 713, 721 (Tex. Crim. App. 2006) (citing Wiggins v. Smith, 539 U.S. 510, 527

(2003)). As the Supreme Court has stated concerning the duty to investigate:

       Strategic choices made after thorough investigation of law and facts relevant
       to plausible options are virtually unchallengeable; and strategic choices
       made after less than complete investigation are reasonable precisely to the
       extent that reasonable professional judgments support the limitations on
       investigation. In other words, counsel has a duty to make reasonable
       investigations or to make a reasonable decision that makes particular
       investigations unnecessary. In any ineffectiveness case, a particular
       decision not to investigate must be directly assessed for reasonableness in
       all the circumstances, applying a heavy measure of deference to counsel's
       judgments.

Wiggins, 539 U.S. at 521-23; see also Martinez, 195 S.W.3d at 721; Ex parte Briggs, 187

S.W.3d 458, 466-67 (Tex. Crim. App. 2005). Moreover, appellant proves his claim of

ineffective assistance only if the consequence of the failure to investigate is that the only

viable defense available to him is not advanced and there is a reasonable probability that,

but for counsel's failure to advance the defense, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694; Castellano v. State, 49 S.W.3d 566, 576 (Tex.

App.–Corpus Christi 2001, pet. ref'd).

       At the hearing on his motion for new trial, appellant testified that he had recovered

his bike from the police station by showing a purchase receipt. Appellant testified that he

had asked his trial attorney to get "paperwork" from the city jail showing that he had

purchased the bike in question. However, the form entered into evidence at the hearing

as Defense Exhibit 1 reflected only that a mountain bike had been permanently released

to appellant on January 21, 2009. The form did not describe the circumstances under

                                             13
which the release was made or what proof of ownership, if any, appellant was required to

provide.

        Moreover, appellant was charged with and found guilty of evading detention with a

vehicle. Whether the bike was stolen was not directly relevant to the question of whether

he was guilty of the offense charged; it was not a part of his defense at trial and was not

his only viable defense. See Strickland, 466 U.S. at 694; Castellano, 49 S.W.3d at 576.

Without more, considering the quantum of evidence already known to counsel and whether

the known evidence would lead a reasonable attorney to investigate further, Martinez, 195

S.W.3d at 721, we conclude that appellant's counsel made a reasonable decision that

further investigation, including efforts to obtain the form from the CCPD, was unnecessary.

See Wiggins, 539 U.S. at 521-23; see also Martinez, 195 S.W.3d at 721; Briggs, 187

S.W.3d at 466-67. Appellant has not shown that his trial attorney was ineffective for failing

to obtain such evidence, and we overrule his third issue.3

      III. IMPROPER COMMENTS TO JURY REGARDING DANGERS OF EVADING DETENTION

        Appellant urges, by his fourth issue, that the trial court made improper comments

to the jury panel which conveyed his opinion of the case. See TEX . CODE CRIM . PROC . ANN .

art. 38.05 (Vernon 1979) (providing that the judge shall not "at any stage of the proceeding

previous to the return of the verdict, make any remark calculated to convey to the jury his

opinion of the case"). Appellant complains of the following remarks made by the trial court

to the panel during voir dire: "We had a policeman get killed recently because somebody



        3
         Having concluded that counsel's assistance was not ineffective for failing to object to evidence of the
"stolen bike" or for failing to obtain the receipt releasing it, there is no support for appellant's argum ent that
because of the cum ulative nature of trial counsel's m istakes his substantial rights were violated and due
process denied.

                                                       14
failed to stop. In our case, I don't think anybody got killed, but it's a very dangerous thing

to do, not to stop when a policeman wants to stop you."

       No objection was made, and several panel members were then examined on

individual voir dire. Later, appellant's trial attorney moved for a mistrial, as follows:

       Right now, we would move for a mistrial, reason being, because you, when
       talking to the jury, just right now, mentioned the case involving Officer
       Alexander, and saying that this is a very serious crime, evading arrest, and
       we had a police officer killed in that, so it's very serious. . . . We feel that that
       is prejudicial and feel that the only way that that can be cured is this entire
       panel has to be—a mistrial needs to be declared and we need to get a whole
       entire new panel.

       The complaining party must timely raise a complaint that the trial court's comments

violate article 38.05 in order to preserve error on appeal. See TEX . R. APP. P. 33.1;

Resendez v. State, 160 S.W.3d 181, 189-90 (Tex. App.–Corpus Christi 2005, no pet.) (en

banc). In addition, a party who fails to request an instruction to disregard will have forfeited

appellate review of that class of events that could have been "cured" by such an

instruction. Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004) (en banc).

Specifically, an instruction by the trial court to the jury to disregard any comments made

by the court is generally sufficient to cure any error arising from its statements. Marks v.

State, 617 S.W.2d 250, 252 (Tex. Crim. App. 1981); Peavey v. State, 248 S.W.3d 455, 470

(Tex. App.–Austin 2008, pet. ref'd); Aschbacher v. State, 61 S.W.3d 532, 539 (Tex.

App.–San Antonio 2001, pet. ref'd).

       In this case, appellant neither timely objected to the trial court's comments nor

requested an instruction to disregard the comments in question before requesting a




                                                15
mistrial.4 Therefore, appellant has waived his claim that the trial court made improper

comments to the jury panel. See Young, 137 S.W.3d at 69-70. Appellant's fourth issue

is overruled.

                                   IV. DISPROPORTIONATE SENTENCE

        Appellant argues, in his fifth issue, that his sentence of forty years, under the

circumstances of this case, is disproportionate to the gravity of his offense. However,

when the sentence imposed is within the punishment range and is not illegal, as in this

case, the failure to specifically object to an alleged disproportionate sentence in the trial

court or in a post-trial motion waives any error on appeal. Noland v. State, 264 S.W.3d

144, 151 (Tex. App.–Houston [1st Dist.] 2007, pet ref'd); Trevino v. State, 174 S.W.3d 925,

927-28 (Tex. App.–Corpus Christi 2005, pet. ref'd); see TEX . R. APP. P. 33.1(a).

        Appellant directs us to no place in the record where he objected to the sentence as

being disproportionate or constitutionally improper. And he did not raise such a claim in

his motion for new trial. Thus, appellant waived error on his present claim that the

sentence was disproportionate. We overrule the fifth issue.

                                     V. LESSER -INCLUDED OFFENSE

        By his sixth issue, appellant contends the trial court erred in refusing his request for

submission of a jury instruction on the offense of fleeing or attempting to elude a police

officer under section 545.421 of the Texas Transportation Code. See TEX . TRANSP . CODE



        4
           At voir dire, the relief sought m ay be m ore properly characterized as a m otion to quash the venire
panel, rather than as a m otion for m istrial. See Mendoza v. State, 552 S.W .2d 444, 446-47 (Tex. Crim . App.
1977); Capps v. State, 244 S.W .3d 520, 527 (Tex. App.–Fort W orth 2007, pet. ref'd) (m em o. op., designated
for publication) (generally equating review of the trial court's decision to deny a m otion to quash the panel with
later review of its denial of a m otion for m istrial, with regard to claim s that im proper com m ents tainted the
potential or actual jurors). Nonetheless, our review in this case, whether it be a m otion to quash or a m otion
for m istrial, is the sam e.

                                                       16
ANN . § 545.421 (Vernon Supp. 2009). Appellant claims that section 545.421 of the

transportation code is a lesser-included offense of the state-jail felony of evading arrest

under penal code section 38.04, the offense for which he was convicted. See TEX . PENAL

CODE ANN . § 38.04. However, the court of criminal appeals has concluded otherwise,

affirming the Houston First District Court of Appeals's determination that the transportation

code offense of fleeing or attempting to elude a police officer is not a lesser-included

offense of the penal code offense of evading detention by use of a motor vehicle. See

Farrakhan v. State, 247 S.W.3d 720, 720-24 (Tex. Crim. App. 2008) (affirming Farrakhan

v. State, No. 01-04-01205-CR, 2006 Tex. App. LEXIS 103, at *2-8 (Tex. App.–Houston [1st

Dist.] Nov. 30, 2006)); Peavey, 248 S.W.3d at 468-69 (listing the differing elements of the

two offenses).

       Appellant relies on Klapuch v. State as support for his lesser-included-offense

argument.    See No. 13-05-025-CR, 2005 Tex. App. LEXIS 9121, at *4-5 (Tex.

App.–Corpus Christi 2005, no pet.) (mem. op., not designated for publication). In Klapuch,

however, we did not address the first prong of the analysis set out in Threadgill v. State,

146 S.W.3d 654, 665 (Tex. Crim. App. 2004) (en banc)—whether the offense is actually

a lesser-included offense of the offense charged—because the State did not dispute that

prong of the analysis. See Klapuch, 2005 Tex. App. LEXIS 9121, at *3-4. We assumed,

without deciding, that it was a lesser-included offense and concluded, under Threadgill's

second prong, that there was no evidence that Klapuch knew that the officer was

attempting lawfully to arrest or detain him. See id., 2005 Tex. App. LEXIS 9121, at *4-5.

Therefore, Klapuch provides no precedential value for this Court on the issue now before

us.


                                             17
       Therefore, following the holding in Farrakhan, we conclude that appellant was not

entitled to a charge on the transportation code offense. Farrakhan, 247 S.W.3d at 720.

Because the transportation code offense is not a lesser-included offense of the charged

offense, we conclude that the trial court did not err in refusing to submit appellant's

requested instruction. We overrule appellant's sixth issue.

                        VII. INSTRUCTION ON RANGE OF PUNISHMENT

       Appellant asserts by his seventh issue that the trial court erred when it improperly

instructed the jury on the range of punishment under section 12.42(d) of the Texas Penal

Code. See TEX . PENAL CODE ANN . § 12.42(d). Appellant claims that fundamental error

occurred when the trial court instructed the jury on the range of punishment because, as

a policy matter, it is inherently unfair to apply habitual felony offender status to any state

jail felony case. However, appellant was not convicted of a state jail felony, but of a third-

degree felony, by virtue of the combination of his use of a vehicle and his prior conviction.

See id. § 38.04(b)(2)(A). Accordingly, appellant's policy argument against applying the

habitual felony statute to a state jail felony does not apply in this case. We overrule

appellant's seventh issue.

                                   VIII. RIGHT TO TESTIFY

       By his eighth issue, appellant complains that he was denied his right to testify during

the guilt/innocence phase of trial because he was improperly counseled to believe that

because of his prior convictions, he could not testify. See TEX . CONST . art. I, § 10

(providing that "in all criminal prosecutions the accused shall have . . . the right of being

heard by himself or counsel, or both"); TEX . CODE CRIM . PROC . ANN . art. 38.08 (Vernon

2005) (setting out that "any defendant in a criminal trial shall be permitted to testify in his


                                              18
own behalf"); see also Smith v. State, 286 S.W.3d 333, 338 n.9 (Tex. Crim. App. 2009)

(citing Rock v. Arkansas, 483 U.S. 44, 51-52 (1987)) (explaining that a criminal defendant

has a constitutional right to testify based on the due process clause of the Fourteenth

Amendment and the Fifth and Sixth Amendments of the United States Constitution; a right

that can be knowingly and voluntarily waived only by the defendant, not by his counsel).

While it is the defendant who must make the ultimate decision on whether to testify,

counsel is permitted to advise him on the advantages and disadvantages. Sapata v. State,

574 S.W.2d 770, 771 (Tex. Crim. App. 1978); Hebert v. State, 836 S.W.2d 252, 255 (Tex.

App.–Houston [1st Dist.] 1992, pet. ref'd) (op. on rehr'g).

       The record in the present case reveals that during the guilt/innocence phase of the

trial, the State offered two witnesses and then rested. Appellant did not testify, although

he now asserts that he wanted to testify at trial to tell the truth about what happened in the

alleyway and to explain his prior convictions if he had to do so.

       At the hearing on his motion for new trial, appellant provided the following testimony

on direct examination that he contends supports his claim:

       Q: [Counsel]         Okay. You did not testify at the guilt/innocence phase;
                            is that correct?

       A: [Appellant]       No.

       Q:                   Okay. And what was [trial counsel's] explanation for
                            you not testifying, or what was her explanation
                            regarding the law in regards to your testimony?

       A:                   That they would bring my past up.

       Q:                   Okay. Your past meaning you had two priors, that's
                            why you were indicted with the habitual?

       A:                   Yes.


                                             19
      Q:                   Okay. So she told you that if you testified during the
                           guilt/innocence before the jury, they could learn about
                           your prior felonies, correct?

      A:                   Yes.

      Q:                   Did you understand you still had the right to testify?

      A:                   Not really.

      Q:                   Okay. You believed it meant you couldn't testify?

      A:                   Well, not without them bringing my past up.

      ....

      Q:                   So you realized you could testify, they would just bring
                           it up?

      A:                   Yeah, and that's why she filed a motion from the
                           beginning to suppress my past.

Appellant also relies on the following testimony provided during his cross-examination:

      Q: [The State]       Now, it sounds like you knew you could have testified at
                           trial, but you made a decision not to tell people that you
                           were still on parole . . . for . . . two burglaries of a
                           building?

      A: [Appellant]       No. The way she was pursing [sic] the case I couldn't
                           testify because I didn't actually know what to say.

      ....

      Q:                   Why didn't you just tell the truth?

      A:                   Then it would have brought my past up. I couldn't
                           testify in my trial.

      Q:                   Well, that's a decision that you made after talking to
                           your counsel?

      A:                   The only time that she said that I could testify was after
                           I was found guilty, that I could actually get up there and
                           I didn't. I chose not to.


                                           20
       Q:                   Would that be because your history would have already
                            been admitted? At punishment, your entire criminal
                            history is admitted.

       A:                   Yeah, but then—

       Q:                   At guilt/innocence it's not. You know, if you had
                            testified at guilt/innocence, you understand that you
                            would have at least the minimum of your two '89
                            burglaries of a vehicle would have been admitted?

       A:                   My two '89 burglaries of a—

       Q:                   I'm sorry, burglary of a building, that you received 20-
                            year sentences that you're still on parole for?

       A:                   Well, yeah, it was irrelevant. They indicted me as a
                            habitual. Yeah, they were gonna bring my past up.

       Q:                   But if you had testified it would have come out during
                            guilt/innocence?

       A:                   Yes.

       Q:                   So it sounds like you understood what were the
                            consequences of testifying and not testifying, right?

       A:                   No.

       Appellant also provided the following testimony on direct examination concerning

his decision on whether to testify at the guilt/innocence phase of the trial:

       Q: [Counsel]         Were you willing to risk the jury hearing about your past
                            so you could present this defense on your behalf?

       A: [Appellant]       Well, I don't really know. I mean, I kind of thought [my
                            trial counsel] knew what she was doing. She said that
                            she had talked to the guy that was actually there that
                            was the [S]tate's witness and she was—he was
                            supposed to be our witness too.

       Q:                   Okay.




                                             21
       A:                   So it kind of threw me off, you know. I mean, she made
                            it sound like she really had some good defense or
                            something.

The State contends that this testimony supports its position that the testimony from the

hearing clearly shows that appellant followed his trial counsel's advice not to testify at the

guilt/innocence phase of the trial because of the consequences and possible impeachment

with his priors, not because he thought he had no right to testify. In addition, the State

directs us to the following testimony provided by appellant's trial counsel, which it argues

supports its position:

       Q: [the State]       And did you go over his—the defendant's right to
                            testify?

       A: [Trial Counsel]   Yes. We went over that in detail. I explained to him
                            that he had a right to testify. My concern was that he
                            had convictions that would come in which is why we
                            filed a motion in limine. The motion in limine was
                            granted, but if he was to get up to testify, he still ran the
                            risk of his history coming in, and we went over that in
                            detail.

       Q:                   And to your recollection, did his burglary conviction, his
                            felony convictions come out during the guilt/innocence?

       A:                   No, they did not, and that was because he did not
                            testify.

       Q:                   But at least some of those convictions would have been
                            relevant if he had testified?

       A:                   Yes, it would have harmed his credibility, yes.

       Q:                   And was your trial strategy to get a conviction for the
                            lesser included misdemeanor evading?

       A:                   Yes, that was a trial strategy. . . .

       Q:                   And if he—in your opinion, if he had given testimony
                            similar to what he had given today, or what he gave to
                            you earlier, would he have appeared credible to a jury?

                                             22
       A:                    No, I do not believe he would have appeared credible
                             and that's what we told him.           We strongly
                             recommended that he not testify because of his history,
                             and he followed our advice. He asked for our advice
                             and that's what we recommended.

       Q:                    But ultimately, it was his decision?

       A:                    Ultimately, it was his decision not to testify. And once
                             punishment came along, we told him, I mean, at this
                             point you kind of explain, you know, why you have the
                             history that you do, and he said he didn't want to.

       Q:                    So even after—in punishment, after his history had
                             been admitted through other means, he still didn't want
                             to testify?

       A:                    Yes, he still did not want to testify. And again, that was
                             his election.

       As set out by the Texas Criminal Court of Appeals in Johnson v. State, because

"defense counsel shoulders the primary responsibility to inform the defendant of his right

to testify, including the fact that the ultimate decision belongs to the defendant," a claim by

a defendant that he was denied his right to testify is properly addressed under the

Strickland framework for ineffective-assistance-of-counsel claims. 169 S.W.3d at 235, 239

(Tex. Crim. App. 2005); see Smith, 286 S.W.3d at 341-42. Appellant raises no claim here

that his trial counsel's advice not to testify was deficient. Nonetheless, even if we assumed

appellant's argument was an ineffective-assistance-of-counsel claim, it fails.

       The record shows that appellant discussed his right to testify with his trial counsel.

His counsel specifically testified that she explained to appellant that he had a right to testify

and went over it in detail with him. She testified that ultimately it was appellant's decision

not to testify. Counsel also testified that she discussed trial strategy with appellant,

including what could happen should he testify at the guilt/innocence phase of trial.


                                               23
Although appellant argues that he was misled by his trial counsel into believing he could

not testify during the guilt/innocence phase of the trial, the record does not support this

assertion. Appellant testified that his trial counsel's explanation for not testifying was that

"they would bring [his] past [prior felonies] up." Appellant believed he could not testify

"without them bringing [his] past up" and that was "why [his trial counsel] filed a motion . . .

to suppress [his] past." Appellant also stated that he believed he could not testify because

he did not know what to say. He explained that if he told the truth, his past, including his

two prior burglaries, would be brought up; therefore, he could not testify at trial. Appellant

also disagreed that he understood the consequences of testifying or not testifying and that

he "thought [trial counsel] knew what she was doing" and "kind of threw [him] off," making

it sound like she had a good defense.

       Based on our review of the record, we cannot conclude that it supports appellant's

contention that appellant's counsel's assistance was ineffective because she led him to

believe that, because of the prior convictions, he could not testify, that he had to give up

his right to testify.   Rather, appellant's decision not to testify was based on his

understanding that the jury would become aware of his prior convictions.              Counsel

explained this to him in detail. Therefore, indulging a strong presumption that "counsel's

conduct fell within a wide range of reasonable representation" and that, under the

circumstances, the challenged action might be considered sound trial strategy, we

conclude that appellant has failed to bring forth any record indicating counsel misled him

into thinking that he could not testify or that counsel's performance fell below an objective

standard of reasonableness. Strickland, 466 U.S. at 688, 690-94; Salinas, 163 S.W.3d at

740; Garcia, 57 S.W.3d at 440. Appellant's eighth issue is overruled.


                                              24
                                  IX. PRIOR CONVICTION

       Appellant argues, by his ninth issue, that appellant's "prior conviction used to

enhance the charge from a state jail felony to a third-degree felony should not have been

read to the jury panel during voir dire, thus opening it up for discussion and unnecessary

attention." However, appellant failed to object to the statements concerning the allegation

of a prior conviction for evading arrest, at the time they were made. See TEX . R. APP. P.

33.1; Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001) (refusing to find

fundamental error with regard to comments that did not "bear on the presumption of

innocence or vitiate the impartiality of the jury"). Moreover, even had error been preserved,

the comments were proper. A prior conviction requirement for third-degree evading arrest

is an element of the offense that must be proved at the guilt/innocence phase of trial.

Calton, 176 S.W.3d at 234-36. And "prior convictions [are] the legitimate subject of voir

dire, opening statements, and closing arguments." Hollen v. State, 117 S.W.3d 798, 802

(Tex. Crim. App. 2003). Accordingly, we conclude that it was not error to mention the prior

conviction to the panel at voir dire. Appellant's ninth issue is overruled.

          X. IMPROPER COMMENTS TO JURY REGARDING RANGE OF PUNISHMENT

       Appellant complains by his tenth issue that the trial court made improper comments

to the jury panel during voir dire concerning the range of punishment and prior felonies,

thereby "improperly impl[ying] by [its] comments that the appellant had progressively

worked his way up committing other crimes in the past and that is why the punishment

range was so high." By this argument, as in issue four above, appellant is complaining that

the trial court made improper comments to the jury panel which conveyed his opinion of

the case. See TEX . CODE CRIM . PROC . ANN . art. 38.05. And again, as set out above, the


                                             25
complaining party must timely object that the trial court's comments violate article 38.05

in order to preserve error on appeal. See TEX . R. APP. P. 33.1; Resendez, 160 S.W.3d at

189-90. Appellant failed to timely object to the trial court's remarks to the jury panel

regarding punishment. Thus, appellant has not preserved error for our review. We

overrule the tenth issue.

                         XI. HEARING WITHOUT APPELLANT PRESENT

         In his eleventh issue, appellant contends that the trial court erred in conducting a

hearing without his presence. See TEX . CODE. CRIM . PROC . ANN . art. 33.03 (Vernon 2006)

(providing criminal defendants with a statutory right to be present during their trials and

allowing criminal defendants to be absent, if they choose, after pleading to the indictment

in a bench trial or after jury selection in a jury trial); Routier v. State, 112 S.W.3d 554, 575

(Tex. Crim. App. 2003). The State responds that appellant's trial counsel's waiver of

appellant's presence was not erroneous, and even if there was error, it was harmless. We

agree.

         Prior to the beginning of the punishment phase of appellant's trial, a hearing was

held to discuss the charge and the admissibility of certain evidence. At the end of the

hearing, the trial court inquired about appellant's absence. Appellant's counsel responded

that he "was fine with doing that . . . hearing without [his] client being [present]."

         When a defendant's attorney waives his client's right to be present at trial, the

defendant must show that the waiver was erroneous or that he was not aware of the

proceedings and that the trial court erred in accepting the waiver. Routier, 112 S.W.3d at

576. The record, in this case, shows that counsel waived appellant's presence. Appellant

does not specifically allege that the waiver was erroneous. See id. The record does not


                                              26
reveal why appellant was not present. See id. And although appellant alleges that he was

unaware of the proceedings, there is no evidence to support this allegation. See id.

Finally, he has not shown that the trial court erred in accepting his attorney's waiver of his

presence. See id.

       Moreover, even had there been supporting evidence, we would conclude that

appellant's absence was harmless because the absence of the defendant when only

questions of law are considered will not cause reversal unless the presence of the

defendant bears "a reasonably substantial relationship to the opportunity to defend."

Adanadus v. State, 866 S.W.2d 210, 219-20 (Tex. Crim. App. 1993) (explaining that a

defendant must show that his presence would have furthered the defense in some way and

concluding that "[b]ecause appellant's presence did not bear a 'reasonably substantial

relationship to the opportunity to defend', no harm or prejudice was shown as a result of

his absence"); Guerra v. Sate, 760 S.W.2d 681, 696 (Tex. App.–Corpus Christi 1988, pet.

ref'd) (quoting Mares v. State, 571 S.W.2d 303, 307 (Tex. Crim. App. 1978)). In this case,

matters discussed at the hearing concerned the charge and the admissibility of certain

evidence. These matters raised only legal issues. We cannot conclude that appellant,

himself, would have had anything to contribute in the way of additional facts or strategy

decisions. Thus, the presence of appellant at the hearing did not bear "a reasonably

substantial relationship to the opportunity to defend." Adanadus, 866 S.W.2d at 220.

Accordingly, error, if any, in failing to secure appellant's presence at the hearing was

harmless. Appellant's eleventh issue is overruled.

                              XII. IMPROPER JURY ARGUMENT

       Finally, by his twelfth issue, appellant complains of improper jury argument by the

prosecution—argument asking the jury to be the voice of the community in assessing

                                             27
punishment.5 However, failure to object to jury argument forfeits the right to raise the issue

on appeal. See Threadgill, 146 S.W.3d at 667, 670; Simpson v. State, 119 S.W.3d 262,

268 (Tex. Crim .App. 2003); Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996)

(en banc). Appellant did not object to this argument. Furthermore, while the prosecutor

may not ask the jury to convict the defendant because the community demands, desires,

or expects it, he may properly ask the jury to be the voice of the community and argue that

its decision should reflect the community's desire for strong law enforcement. See Borjan

v. State, 787 S.W.2d 53, 56 (Tex. Crim. App. 1990) (en banc); In re A.J.G., 131 S.W.3d

687, 692-93 (Tex. App.–Corpus Christi 2004, pet. denied). In this case, the complained-of

argument asked the jury to be the voice of the community and in its decision, to reflect the

community's desire for strong law enforcement. Accordingly, the argument was not

improper. We overrule appellant's twelfth issue.

                                     XII.   MODIFICATION OF JUDGMENT

       The Texas Rules of Appellate Procedure give this Court authority to modify

judgments sua sponte to correct typographical errors and make the record speak the truth.

TEX . R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (en

banc); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.–Texarkana 2009, no pet.); Gray

v. State, 628 S.W.2d 228, 233 (Tex. App.–Corpus Christi 1982, pet. ref'd). In this case,



       5
           Appellant com plains of the following argum ent:

               As 12 m em bers of the com m unity— you're 12 m em bers of the com m unity, taken
       from the com m unity at large to say what the com m unity feels about this. Now, as the
       com m unity, we are asking you to say it's not okay to run from police, it's not okay to not be
       very good at it, it's not okay to be suspicious in utility easem ents where there are backyards
       that can easily be jum ped into and out of when there's no other eyes on the street.

               I'm asking you that this defendant is guilty of using a vehicle and evading from
       Stephen Cox. As a com m unity say, "This is not all right [sic]. W e are tired of crim e here."
       Find the defendant guilty.

                                                      28
the trial court's judgment refers to the statute for the offense under which appellant was

convicted as section 38.04(b)(2)(B) of the Texas Penal Code. See TEX . PENAL CODE ANN .

§ 38.04(b)(2)(B) (Vernon Supp. 2009). Section 38.04(b)(2)(B) provides that the offense

becomes a third-degree felony because of serious bodily injury caused to another who is

neither the actor nor the officer from whom the actor is fleeing. Id. Our review of the

record shows that the correct statute for the offense is section 38.04(b)(2)(A). See id. §

38.04(b)(2)(A). Therefore, we hereby modify the judgment to indicate that the statute

under which appellant was convicted is section 38.04(b)(2)(A) of the Texas Penal Code.

                                    XIII.   CONCLUSION

       We affirm the judgment as modified.


                                                         NELDA V. RODRIGUEZ
                                                         Justice

Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
15th day of July, 2010.




                                              29
