Affirmed and Memorandum Opinion filed June 21, 2012.




                                         In The


                      Fourteenth Court of Appeals

                                  NO. 14-10-00882-CR




                        DAMON DESHON MILES, Appellant


                                            V.


                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 174th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1192156



                        MEMORANDUM OPINION

       Appellant Damon Deshon Miles appeals his conviction for felony deadly conduct,
asserting (1) the evidence is legally and factually insufficient to support his conviction;
(2) the trial court erred in admitting testimony that he was known by others as someone
who used narcotics; and (3) his trial counsel rendered ineffective assistance by eliciting
testimony of prior felony convictions. We affirm.

                      FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment with the murder of Solomon Zezqueaux.
Appellant pleaded ―not guilty.‖ A jury trial followed.

      According to undisputed evidence, Ena Dennis was returning to her apartment late
one evening. Appellant was standing outside the apartment and upon encountering him
Dennis became frightened. She entered her apartment and told her friends what had
happened.   By all accounts, at least two men from inside Dennis‘s apartment, the
complainant Solomon Zezqueaux and Derrik East, confronted appellant for scaring
Dennis.

      According to those who were inside the apartment, after the men exchanged
words, the complainant and East went back inside the apartment and closed the door.
Twenty to thirty minutes later, when the occupants of the apartment heard a knock at the
door, they opened the door and saw appellant. As the door opened, a gun shot was fired,
dropping the complainant to the floor. He later died from the gunshot wound.

      Those who were in the apartment reported the description of the assailant to
responding law enforcement officers, who developed appellant as a suspect. Police
investigators learned that appellant, who also went by the name ―Two,‖ lived in the same
apartment complex where the shooting occurred. Officers searched the apartment where
appellant lived, recovering a firearm hidden underneath a couch; latent fingerprints lifted
from the firearm matched those of appellant. Officers located appellant in a bathroom in
the apartment and believed that appellant was attempting to hide.

      By appellant‘s account at trial, he was about to visit a friend who lived in an
apartment across from Dennis. He unintentionally frightened Dennis. Appellant testified
that minutes later, three men from Dennis‘s apartment confronted and threatened him

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outside the apartment. He retrieved a loaded firearm from his waist band to scare and
ward off the three men and in an attempt to escape. Appellant testified that he moved
towards the men, who were backing away. According to appellant, as he was leaving, he
stumbled and hit his hand on a corner of the building.         The firearm accidentally
discharged, and he fled the scene.

       The jury found appellant guilty of the lesser-included offense of felony deadly
conduct.    Appellant was sentenced to sixty years‘ confinement.         Appellant now
challenges his conviction, raising three issues on appeal.

                                  ISSUES AND ANALYSIS

Is the evidence sufficient to support a conviction for felony deadly conduct?

       In appellant‘s first issue, he challenges the legal and factual sufficiency of the
evidence to support his conviction for third-degree felony deadly conduct. In evaluating
a legal-sufficiency challenge, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on
appeal is not whether we, as a court, believe the State‘s evidence or believe that
appellant‘s evidence outweighs the State‘s evidence. Wicker v. State, 667 S.W.2d 137,
143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is irrational or
unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846
(Tex. Crim. App. 1991). The trier of fact ―is the sole judge of the credibility of the
witnesses and of the strength of the evidence.‖ Fuentes v. State, 991 S.W.2d 267, 271
(Tex. Crim. App. 1999). The trier of fact may choose to believe or disbelieve any portion
of the witnesses‘ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App.
1986). When faced with conflicting evidence, we presume the trier of fact resolved
conflicts in favor of the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim.
App. 1993).    Therefore, if any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).
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       A majority of the judges of the Texas Court of Criminal Appeals have determined
that ―the Jackson v. Virginia legal-sufficiency standard is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a reasonable
doubt.‖ Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.)
(Hervey, J., joined by Keller, P.J., Keasler, and Cochran, J.J.); id. at 912–15 (Cochran, J.,
concurring, joined by Womack, J.) (same conclusion as plurality). Therefore, in this case
we will review the evidence under the Jackson v. Virginia standard as articulated in the
preceding paragraph.

       A person commits the offense of felony deadly conduct when that person
knowingly discharges a firearm at or in the direction of one or more individuals. Tex.
Penal Code Ann. § 22.05(b)(1), (e) (West 2011). A person acts knowingly with respect
to the nature of his conduct or to circumstances surrounding his conduct when that person
is aware of the nature of his conduct or the circumstances that exist. Tex. Penal Code
Ann. § 6.03(b) (West 2011). The ―knowing‖ element may be inferred from words, acts,
or conduct of the accused and from the circumstances under which the act occured. See
Wheaton v. State, 129 S.W.3d 267, 273 (Tex. App.—Corpus Christi 2004, no pet.).

       The record reflects the undisputed fact that appellant discharged a firearm, which
resulted in the death of the complainant. Appellant claimed the complainant‘s death was
an accident, testifying that he pointed the gun at the group of men who confronted him
outside the apartment in an attempt to ward them off so that he could escape and that the
firearm accidentally discharged when he tripped and the hand in which he held the
weapon hit the corner of a building. Other witnesses described a verbal altercation
outside the apartment after which appellant knocked at the door of the apartment and
opened fire, killing the complainant. A finder of fact is entitled to believe all, some, or
none of a witness‘s testimony. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App.
1997). In the face of a record reflecting conflicting inferences, we presume the finder of

                                             4
fact resolved all conflicts in favor of the verdict , and we defer to that resolution. See
Matchett v. State. 941 S.W.2d 922, 936 (Tex. Crim. App. 1996); Wheaton, 129 S.W.3d at
274. The jury could have drawn the inference of knowledge from the evidence of the
circumstances surrounding the act. See Wheaton, 129 S.W.3d at 274.

       In considering the record evidence under the prevailing standard, we conclude that
a rational finder of fact could have found the elements of felony deadly conduct beyond a
reasonable doubt. See Tex. Penal Code Ann. § 22.05(b)(1), (e); Wheaton, 129 S.W.3d at
273. We conclude the evidence is legally sufficient to support appellant‘s conviction.
Accordingly, we overrule appellant‘s first issue.

Did the trial court err in allowing testimony about appellant’s use of narcotics?

       In his second issue, appellant asserts the trial court erred in allowing testimony of
appellant‘s ―supposed use of an illegal drug.‖ According to appellant, the testimony was
irrelevant and prejudicial. A trial court‘s ruling on the admission of evidence is reviewed
under an abuse-of-discretion standard. Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim.
App. 2002). Under this standard, we will uphold the trial court‘s decision so long as that
decision rests within the zone of reasonable disagreement. See id.

       As reflected in the record, appellant‘s trial counsel cross-examined a witness as to
whether, before the shooting, appellant had any connection to the complainant and East,
and whether the men knew appellant. At one point, the witness denied knowing if the
complainant and East knew appellant, and appellant‘s trial counsel sought to impeach the
witness with the witness‘s statement to investigators. Eventually, the witness answered
affirmatively that the two men (complainant and East) knew appellant.

       After trial counsel passed the witness, counsel for both parties approached the
bench. The prosecutor asserted that through this witness‘s testimony, appellant had
opened the door to further questioning as to how the men knew appellant, because the
testimony left the false impression that the men shared some kind of relationship. The
State claimed that the men knew appellant as someone who always looked ―high‖ and
                                         5
always used ―dope.‖ Appellant asserted that testimony of how the men knew appellant
was simply a matter of impeachment and that it did not open the door to how they knew
appellant; appellant also indicated that reference to his use of narcotics was not relevant.
The trial court allowed the State to question the witness how the men knew appellant. On
redirect examination, the State elicited testimony, over appellant‘s hearsay objection, that
East and the complainant knew appellant from seeing him around the apartment complex.
When asked by the State how the men knew appellant, the witness testified that the men
knew appellant as ―the guy hanging around the apartment smoking wet,‖ which,
according to the record, is an embalming fluid.         Appellant did not object to this
testimony, and it is the admission of this testimony that forms the basis of appellant‘s
complaint of on appeal. The State contends that appellant failed to preserve the issue for
appeal.

       To preserve an issue for appellate review, a party is required to show a timely
objection was made to the trial court and that in support of the objection the party stated
the grounds with sufficient specificity to apprise the trial court of the complaint, and
secured a ruling from the trial court. See Tex. R. App. P. 331.(a). Unless a party obtains
a running objection to evidence or requests a hearing outside of the jury‘s presence, a
party is required to protect the initial ruling by continuing to object each time
inadmissible evidence is offered. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim.
App. 2003). Appellant did not object to the reference of his narcotics use either when the
State posed the question or when the witness answered the question, nor did appellant
make any request for a running objection to the testimony.         See id. At the bench
conference, however, appellant argued that the testimony of his narcotics use was not
relevant. This objection was sufficient to preserve the relevance objection because the
objection was deemed to apply when the evidence is subsequently admitted before the
jury. See Tex. R. Evid. 103(a)(1); Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim. App.
2005). But, at the bench conference, appellant objected only on relevance grounds;
appellant did not object to the prejudicial effect of the testimony. Appellant‘s objection
                                             6
in the trial court does not comport with the argument he makes on appeal. Therefore,
appellant has failed to preserve for appellate review his complaint that the testimony was
prejudicial. See Tex. R. App. P. 33.1(a).

        Even if we were to presume, without deciding, that the trial court erred in
admitting the testimony regarding appellant‘s narcotics use, any such error would be
harmless. The improper admission of evidence is not reversible error when, as in this
case, the same or similar evidence is admitted without objection at another point in the
trial. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999); Chapman v.
State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet. ref‘d). The
record reflects several instances in which witnesses testified on direct- or cross-
examination about appellant‘s use of narcotics on the night in question. In response to
the State‘s question on re-cross-examination about the demeanor of East and the
complainant after first confronting appellant outside of the apartment, Dennis testified,
without objection, that East and the complainant were laughing because appellant was
high.1 Additionally, the State‘s rebuttal witness, Pooky, testified without objection that,
on the night of the murder, appellant asked him for the pistol used in the commission of
the offense and that appellant smelled of PCP, which Pooky claimed was embalming
fluid or formaldehyde. On cross-examination, Pooky testified that although he was not
with appellant when appellant smoked narcotics that night, it was not hard to tell that
appellant had used a controlled substance because Pooky could smell the strong odor on
appellant‘s person. We conclude that even if the trial court erred in admitting the
testimony in question, because the same facts were admitted in evidence without
objection elsewhere, any error would be harmless. See Leday v. State, 983 S.W.2d 713,
717 (Tex. Crim. App. 1998). We overrule appellant‘s second issue.


        1
         At an earlier point in Dennis‘s testimony, appellant objected to Dennis‘s reference that East and
the complainant were laughing at appellant because he was ―probably high.‖ Appellant objected to this
testimony as hearsay. The trial court sustained the objection, instructed the jury to disregard the
statement, and denied appellant‘s request for a mistrial.
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Did appellant receive ineffective assistance of counsel?

      In his third issue, appellant asserts that he received ineffective assistance of
counsel at trial by eliciting direct testimony about appellant‘s prior felony convictions.
Both the United States and Texas Constitutions guarantee an accused the right to
assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE
CRIM. PROC. ANN. art. 1.051 (West Supp. 20011). This right necessarily includes the
right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S.
668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830,
835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must
show that (1) trial counsel‘s representation fell below an objective standard of
reasonableness, based on prevailing professional norms; and (2) there is a reasonable
probability that the result of the proceeding would have been different but for trial
counsel‘s deficient performance. Strickland, 466 U.S. at 688–92. Moreover, appellant
bears the burden of proving his claims by a preponderance of the evidence. Jackson v.
State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

      In assessing appellant‘s ineffective-assistance claim, we apply a strong
presumption that appellant‘s trial counsel was competent. Thompson v. State, 9 S.W.3d
808, 813 (Tex. Crim. App. 1999). We presume counsel‘s actions and decisions were
reasonably professional and were motivated by sound trial strategy. See Jackson v. State,
877 S.W.2d 768, 771 (Tex. Crim. App. 1994). When, as in this case, there is no proper
evidentiary record developed at a hearing on a motion for new trial, it is extremely
difficult to show that trial counsel‘s performance was deficient. See Bone v. State, 77
S.W.3d 828, 833 (Tex. Crim. App. 2002). If there is no hearing or if counsel does not
appear at the hearing, an affidavit from trial counsel becomes almost vital to the success
of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208–09 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref‘d). The Court of Criminal Appeals has stated that it
should be a rare case in which an appellate court finds ineffective assistance on a record

                                            8
that is silent as to counsel‘s trial strategy. See Andrews, 159 S.W.3d 98, 103 (Tex. Crim.
App. 2005). On such a silent record, this court can find ineffective assistance of counsel
only if the challenged conduct was ―‗so outrageous that no competent attorney would
have engaged in it.‘‖ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)
(quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). There was no
motion for new trial filed in this case. Thus, we consider the issue in the face of a silent
record.

       Trial counsel filed several motions in limine to prevent any testimony of
appellant‘s previous convictions from being entered into evidence. Following a hearing
on the motions outside of the jury‘s presence, in which the parties presented their
respective arguments for the admission and exclusion of the evidence under the Theus2
factors, the trial court denied appellant‘s motions. In the course of appellant‘s testimony
following the hearing, appellant testified on direct examination that he had been
convicted in 2000 and 2003 for felony offenses involving possession of a controlled
substance; appellant served time in confinement for both offenses.                        On cross-
examination, appellant confirmed that he was convicted in 2007 for possession of a
controlled substance, in 2003 for manufacturing or delivering a controlled substance, and
in 2000 for possession of a controlled substance.

       Appellant does not challenge the admissibility of the evidence under the Theus
factors or the trial court‘s ruling on the admission of the evidence; rather, appellant
asserts only that his trial counsel rendered ineffective assistance of counsel by eliciting
the very testimony appellant previously sought to exclude though his motions in limine.
The record reflects that the State gave notice of its intent to use appellant‘s prior
convictions for impeachment and that the prior convictions occurred within ten years of
the 2008 charged offense. See Tex. R. Evid. 609 (providing that a prior conviction is
admissible if the probative value outweighs the prejudicial effect and the prior conviction
       2
          See Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992) (enumerating five
nonexclusive factors for weighing a prior conviction‘s probative value against the prejudicial effect).
                                                  9
is not too remote as falling outside a ten-year period prior to the charged offense). It is
possible that, given the State‘s notice of its intent to impeach appellant with the prior
convictions and upon learning the trial court‘s ruling regarding the prior convictions, trial
counsel employed a reasonable strategy to introduce the testimony of appellant‘s prior
convictions in an attempt to appear open and honest and to lessen the impact of
impeachment on the issue. See Huerta v. State, 359 S.W.3d 887, 894, 892 (Tex. App.—
Houston [14th Dist.] 2012, no pet.); Martin v. State, 265 S.W.3d 435, 445 (Tex. App.—
Houston [1st Dist.] 2007, no pet.); see also Rodriguez v. State, 129 S.W.3d 551, 558
(Tex. App.—Houston [1st Dist.] 2003, pet. ref‘d) (providing that eliciting testimony from
a defendant about remote prior convictions was a matter of trial strategy). Given the
silent record before this court, we cannot conclude appellant has rebutted the strong
presumption of competent representation. See Thompson, 9 S.W.3d at 813. We overrule
appellant‘s third issue.

       The trial court‘s judgment is affirmed.


                                          /s/     Kem Thompson Frost
                                                  Justice


Panel consists of Justices Frost, Brown, and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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