Opinion issued August 30, 2018




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-17-00234-CR
                           ———————————
                      CURTIS VILLAREAL, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Case No. 1465621


                         MEMORANDUM OPINION

      A jury found appellant, Curtis Villareal, guilty of the offense of aggravated

robbery.1 After he pleaded true to the allegations in two enhancement paragraphs




1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
that he had twice been previously convicted of felony offenses, the jury assessed his

punishment at confinement for thirty-five years. In three issues, appellant contends

that his trial counsel provided him with ineffective assistance during both the guilt

and punishment phases of trial and the trial court erred in admitting certain evidence

during the punishment phase of trial.

      We modify the trial court’s judgment and affirm as modified.

                                    Background

      The complainant, Yazan Barhoum, a taxi cab driver, testified that on the night

of April 10, 2015, he picked up three passengers, two males and a female, in his cab

from a restaurant. Although it was nighttime, the light from a streetlight at the

restaurant allowed the complainant to see all three passengers before they entered

his cab. Appellant sat next to the complainant in the front passenger seat of the cab,

while the other male passenger and the female passenger sat in the backseat. The

complainant “had an opportunity to observe [appellant]” during the approximately

fifteen-minute drive to the passengers’ destination. Upon arrival, appellant, who

was still seated next to the complainant in the cab, opened the front-passenger-side

door of the cab and “act[ed] like he want[ed] to pay” the complainant and “like he[]

[was] looking for his wallet.” Appellant then pushed the complainant and grabbed

his cellular telephone and wallet. Although the complainant “tr[ied] to get [his] stuff

back” and caught appellant by the back of the cab, the other male passenger, who


                                          2
had also exited the cab, grabbed the complainant from behind and said, “We will

shoot you.” As the other male passenger held him, the complainant looked straight

at appellant and saw that he was holding a black firearm in his hand. Appellant said,

“I will shoot you” and pointed the firearm at the complainant’s head, “even

click[ing] it.”

       The complainant then proceeded to “back up” and enter his cab, while

appellant and the other passengers ran away to the “corner house.” The complainant

watched to see where appellant and the other two passengers went, borrowed a

cellular telephone from a person nearby, and called for emergency assistance. The

complainant noted that when he initially called for emergency assistance, he

identified one of the male passengers as “Spanish [with] . . . tattoos all on his face”

and mistakenly stated that the other male passenger was black because he was

stressed, under pressure, and scared. The complainant explained that neither of the

male passengers in his cab that night was black, rather both were “Spanish with

tattoos on [their] face and neck.” And the “initial description” that he gave to

emergency-assistance personnel about the male passenger who had robbed him was

that he was “a Latin person with face tattoos.” After law enforcement officers

arrived at the scene, they detained the other male passenger, but appellant had “run[]

away.”




                                          3
      Following the aggravated robbery, a law enforcement officer contacted the

complainant about viewing a photographic array.           On April 14, 2015, the

complainant met with the officer, who showed him “some pictures,” and he signed

a “Witness Admonishment” form.2 The officer also told the complainant that “if

[he] recognize[d] the guy,” then he should circle that individual’s photograph.

      According to the complainant, he recognized, in the photographic array,

appellant, as the person who had robbed him and “almost kill[ed] him,” “[r]ight

away” based on “his face.” Identifying appellant in court, the complainant explained

that appellant was the person who he had identified in the photographic array, who

had sat next to him in the front passenger seat of his cab, and who had pointed a

firearm at him. None of the other individuals who the complainant had viewed in

the photographic array was the person who had robbed him. He also stated, “I know

that’s the guy,” indicating appellant.

      The complainant further testified that he did not give anyone permission to

take his cellular telephone or wallet on April 10, 2015, he felt “bad” and afraid when

appellant pointed the firearm at his head, and he felt threatened with serious bodily

injury or death. And appellant was the only person who the complainant saw with a

firearm that night.



2
      The trial court admitted into evidence the photographic array and the “Witness
      Admonishment” form signed by the complainant.

                                          4
                              Admission of Evidence

      In his second issue, appellant argues that the trial court erred in admitting,

during the punishment phase of trial, the testimony of Harris County Sheriff’s Office

Deputy W. Roush about his “alleged gang affiliation” because the evidence, in

violation of his right against self-incrimination and right to counsel, was obtained

“as a result of an unwarned and uncounseled interview” and he was harmed by its

admission. See U.S. CONST. amends. V, VI; see also Estelle v. Smith, 451 U.S. 454,

101 S. Ct. 1866 (1981) (relied on by appellant). In a portion of his third issue,

appellant further argues that the trial court reversibly erred in admitting such

evidence because it was not admissible as reputation or character evidence. In

response, the State asserts that appellant has not preserved his complaints for

appellate review.

      We review a trial court’s decision to admit evidence for an abuse of discretion.

See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App. 2006). A trial court

abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any

guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990). When considering a trial court’s decision to admit evidence, we will

not reverse the trial court’s ruling unless it falls outside the “zone of reasonable

disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal

quotations omitted). We will uphold a trial court’s evidentiary ruling if it is correct


                                          5
on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336,

344 (Tex. Crim. App. 2009).

Fifth and Sixth Amendments

       The plain language of the Fifth Amendment to the United States Constitution

protects a defendant from compelled self-incrimination. Salinas v. State, 369

S.W.3d 176, 179 (Tex. Crim. App. 2012), aff’d, 570 U.S. 178, 133 S. Ct. 2174

(2013); Buentello v. State, 512 S.W.3d 508, 521 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d); see U.S. CONST. amend. V (“No person . . . shall be compelled in

any criminal case to be a witness against himself . . . .”). It prohibits the use of

statements made by a criminal defendant against himself if they are obtained through

custodial interrogation without the necessary procedural safeguards to secure the

Fifth Amendment right against self-incrimination. See Miranda v. Arizona, 384 U.S.

436, 444, 86 S. Ct. 1602, 1612 (1966); Jones v. State, 119 S.W.3d 766, 772 (Tex.

Crim. App. 2003); see also Herrera v. State, 241 S.W.3d 520, 525 (Tex. Crim. App.

2007) (“The Fifth Amendment of the United States Constitution commands that no

person ‘shall be compelled in any criminal case to be a witness against himself[.]”

(alteration in original)).

       The Sixth Amendment guarantees a criminal defendant the right to have

counsel present at all “critical” stages of his prosecution. Montejo v. Louisiana, 556

U.S. 778, 786, 129 S. Ct. 2079, 2085 (2009); Carnell v. State, 535 S.W.3d 569, 571


                                          6
(Tex. App.—Houston [1st Dist.] 2017, no pet.); see U.S. CONST. amend. VI (“In all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of

Counsel for his defence.”).

      At the punishment phase of trial, Deputy Roush, a gang investigator, testified

that he interviews and documents gang members and the information he obtains from

them is entered into a database which tracks gang activity, gang location, and the

identities of known-gang members. According to Roush, there are over 250 known

gangs in Harris County, Texas, and they pose a “[b]ig threat” to the community.

Gang membership can be determined when a gang member “self-admit[s]” or

through “tattoos that are gang specific.” And gangs often have their own marks,

symbols, and colors. Roush noted that “people who are affiliated with . . . gangs”

do not “necessarily just stop [gang-related activities] as soon as they’re recognized

[as] . . . gang member[s]” or because of a “law enforcement presence.”

      In regard to appellant, Deputy Roush testified that he interviewed him on

January 26, 2017, and appellant “self-admit[ted]” that he was a member of the

“Houstone” gang. Appellant appeared proud of his membership, and Roush noted

that he had numerous gang-related tattoos. According to Roush, the Houstone gang

originated in the prison system, consisting of “[a] group of inmates that [would] band

together in prison to protect each other.” And it then evolved into “a predator-type

organization committing every type of crime [an individual] c[ould] think of.” The


                                           7
Houstone gang is large, and its members engage in criminal offenses such as

robbery, murder, extortion, and fraud. During Roush’s testimony, the trial court

admitted into evidence sixteen photographs of appellant’s tattoos, and Roush

described the tattoos and their gang-related significance and meaning.

      Appellant argues that Deputy Roush’s testimony violated his Fifth

Amendment right against self-incrimination and his Sixth Amendment right to

counsel because Roush obtained the evidence about appellant’s purported gang

affiliation during an interview that he conducted with appellant “in the Harris County

Jail during the pendency of the instant case.” At the time, “[a]lthough appellant was

represented by counsel, . . . Roush did not inform [his trial] counsel that he

intended[,] or did, in fact, interview appellant, and [Roush] ‘did not read [appellant]

his rights’” before conducting the interview.       (Fourth alternation in original.)

Further, appellant asserts that the “interview proved to be a ‘critical stage’ of the

aggregate proceedings” against him, his trial counsel “was not notified in advance

that the interview would encompass the issue of his client’s lack of rehabilitation or

‘continuing risk to the community,’” and he was “denied the assistance of his

counsel in making the significant decision of whether to submit to the interview and

to what end . . . [Roush’s] testimony could be employed.”

      To preserve a complaint for appellate review, a defendant must show that he

made his complaint to the trial court by a timely and specific request, objection, or


                                          8
motion, and the trial court either ruled on his request, objection, or motion, or refused

to rule, and he objected to that refusal. TEX. R. APP. P. 33.1(a); Griggs v. State, 213

S.W.3d 923, 927 (Tex. Crim. App. 2007); Geuder v. State, 115 S.W.3d 11, 13 (Tex.

Crim. App. 2003). The rationale of rule 33.1 is that if an objection is raised before

the trial court as soon as error becomes foreseeable, the error may be addressed and

possibly corrected or avoided. Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim.

App. 2009). Almost all error, even constitutional error, must be preserved by

objection or it is waived. See Hull v. State, 67 S.W.3d 215, 216–18 (Tex. Crim. App.

2002); Holland v. State, 802 S.W.2d 696, 700 (Tex. Crim. App. 1991); Briggs v.

State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990).

      Notably, “[t]he purpose of requiring a specific objection in the trial court is

twofold: (1) to inform the trial [court] of the basis of the objection and give [it] the

opportunity to rule . . . ; [and] (2) to give opposing counsel the opportunity to

respond to the complaint.” Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App.

2009). To preserve error, “a party must be specific enough so as to ‘let the trial

[court] know what he wants, why he thinks himself entitled to it, and do so clearly

enough for the [trial court] to understand him at a time when the trial court is in a

proper position to do something about it.’” Id. at 312–13 (quoting Lankston v. State,

827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).




                                           9
      A party also fails to preserve error when the contention urged on appeal does

not comport with the specific complaint made in the trial court. Lovill v. State, 319

S.W.3d 687, 691–92 (Tex. Crim. App. 2009); Pena v. State, 285 S.W.3d 459, 464

(Tex. Crim. App. 2009). In other words, an objection stating one legal basis may

not be used to support a different legal theory on appeal. See Heidelberg v. State,

144 S.W.3d 535, 537 (Tex. Crim. App. 2004).

      Prior to Deputy Roush’s testimony, appellant objected to its admission on the

grounds that “its probative value [was] . . . outweighed by its prejudicial impact”;3

“there [was] no evidence . . . linking th[e] particular crime [committed by appellant

in the instant case] with gang activity,” making it “totally extraneous”; and it

“violat[ed] . . . the attorney/client privilege.” Such objections do not comport with

the Fifth and Sixth Amendment complaints that appellant now attempts to advance

on appeal. See Pena, 285 S.W.3d at 464 (complaint on appeal must comport with

complaint made at trial); Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App.

2005) (“The issue . . . [is] whether the complaining party on appeal brought to the

trial court’s attention the very complaint that party is now making on appeal.”

(internal quotations omitted)); see also Alfaro v. State, 224 S.W.3d 426, 434 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (concluding trial court “never had the




3
      See TEX. R. EVID. 403.

                                         10
opportunity to rule upon th[e] rationale that [defendant] now presents on appeal”

(internal quotations omitted)).

      Accordingly, we hold that appellant has not preserved his complaint that the

trial court erred in admitting the testimony of Deputy Roush about his “alleged gang

affiliation” on the grounds that the evidence was obtained in violation of his right

against self-incrimination and right to counsel. See Johnson v. State, 357 S.W.3d

653, 658 n.3 (Tex. Crim. App. 2012) (“The Fifth Amendment privilege against

self-incrimination . . . is a forfeitable privilege.”); Lucio v. State, 351 S.W.3d 878,

909 (Tex. Crim. App. 2011) (defendant did not preserve complaint admission of

evidence violated Sixth Amendment right to counsel); Buentello v. State, 512

S.W.3d 508, 521 n.5 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d) (defendant

did not preserve Fifth Amendment complaint for appeal); see also Fuller v. State,

253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (holding constitutional and statutory

rights may be forfeited where defendant does not object); Longoria v. State, No.

01-15-00213-CR, 2016 WL 6755772, at *3 (Tex. App.—Houston [1st Dist.] Nov.

15, 2016, no pet.) (mem. op., not designated for publication) (defendant did not

preserve complaint trial court denied him Sixth Amendment right to counsel).

Beasley v. State

      Appellant further argues that the trial court erred in admitting Deputy Roush’s

testimony about his “alleged gang affiliation” because it was not admissible as


                                          11
reputation or character evidence where “the four-part test established by the Texas

Court of Criminal Appeals in Beasley [v. State, 902 S.W.2d 452 (Tex. Crim. App.

1995), was not] met.”

      In general, evidence of a defendant’s gang membership is relevant and

admissible during the punishment phase of a trial because the evidence relates to the

defendant’s character. Beasley, 902 S.W.2d at 456; Garcia v. State, 239 S.W.3d

862, 866–67 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d). Evidence of gang

membership allows the jury to make an informed decision regarding the character

of the defendant when determining the appropriate punishment to assess. See

Beasley, 902 S.W.2d at 456–57; Anderson v. State, 901 S.W.2d 946, 950 (Tex. Crim.

App. 1995). To prove relevance of a defendant’s membership in an organization or

a group, the State must show: (1) proof of the group’s violent and illegal activities

and (2) the defendant’s membership in the group. Mason v. State, 905 S.W.2d 570,

577 (Tex. Crim. App. 1995). This is because,

      [i]t is essential for the jury to know the types of activities the gang
      generally engages in so that [it] can determine if [a defendant’s] gang
      membership is a positive or negative aspect of his character, and
      subsequently his character as a whole. Only after the jury has been
      provided with this information can there be a fair evaluation of how
      gang membership reflects on the gang member’s character.

Beasley, 902 S.W.2d at 456; see also Anderson, 901 S.W.2d at 950 (“Although

relevant, gang membership alone would be meaningless to a jury which has no

knowledge of the gang’s purpose or activities.”). It is not necessary to link the
                                         12
defendant to the bad acts or misconduct generally engaged in by the gang members,

so long as the jury is (1) provided with evidence of the defendant’s gang

membership, (2) provided with evidence of the character and reputation of the gang,

(3) not required to determine if the defendant committed the bad acts or misconduct,

and (4) only asked to consider the reputation or character of the defendant. Beasley,

902 S.W.2d at 457; Garcia, 239 S.W.3d at 867; Aguilar v. State, 29 S.W.3d 268,

270 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

      Appellant argues that the trial court erred in admitting evidence of his “alleged

gang affiliation” because the fourth prong of Beasley was not met. Specifically,

appellant asserts that “there was . . . no testimony whatsoever about his actual

character or reputation . . . since Deputy Roush was completely unfamiliar with

him”; Roush “never explained to the jury how . . . [his] self-admission of gang

membership and tattoos affected [his] character”; “[i]t is difficult to discern how any

of [Roush’s] testimony should be considered in relation to [his] ‘character and

reputation’”; and the trial court did not limit the jury’s consideration of the evidence

of gang membership for the purposes of assessing his reputation and character.

      However, appellant objected to the admission of Deputy Roush’s testimony

on the grounds that “its probative value [was] . . . outweighed by its prejudicial

impact”;4 “there [was] no evidence . . . linking th[e] particular crime [committed by

4
      See id.

                                          13
appellant in the instant case] with gang activity,” making it “totally extraneous”; and

it “violat[ed] . . . the attorney/client privilege.” Such objections do not comport with

the complaint that appellant now attempts to advance on appeal, i.e., that the trial

court erred in admitting Roush’s testimony because the fourth prong of Beasley was

not met. See Pena, 285 S.W.3d at 464; Reyna, 168 S.W.3d at 177; see also Alfaro,

224 S.W.3d at 434.

      Accordingly, we hold that appellant has not preserved his complaint that the

trial court erred in admitting the testimony of Deputy Roush about his “alleged gang

affiliation” on the grounds that it did not meet the four-part test established in

Beasley.5 See Orellana v. State, 489 S.W.3d 537, 546–47 (Tex. App—Houston

[14th Dist.] 2016, pet. ref’d) (defendant’s Texas Rule of Evidence 403 objection did



5
      To the extent that this portion of appellant’s third issue can be read as a
      jury-charge-error complaint, i.e., a complaint that the trial court erred in not
      instructing the jury, during the punishment phase of trial, that it could consider the
      “alleged gang affiliation” evidence only in the context of appellant’s character and
      reputation, we note that he did not object to the trial court’s charge and he does not
      argue on appeal that the trial court’s error was so egregious and created such harm
      that he did not receive a fair and impartial trial. See TEX. R. APP. P. 38.1(i); Wyatt
      v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“We will not make
      [defendant]’s arguments for him . . . .”); Torres v. State, 979 S.W.2d 668, 674 (Tex.
      App.—San Antonio 1998, no pet.) (defendant’s jury-charge complaint waived due
      to inadequate briefing where he failed to discuss harm); see also Wooten v. State,
      400 S.W.3d 601, 606 (Tex. Crim. App. 2013) (complaints of jury-charge error
      reviewed under two-step process, considering first whether error exists and second
      whether error caused sufficient harm to require reversal); Sakil v. State, 287 S.W.3d
      23, 26 (Tex. Crim. App. 2009) (where defendant did not object at trial, appellate
      court will reverse only if error so egregious and created such harm defendant did
      not receive fair and impartial trial).

                                            14
not preserve complaint gang-related evidence not relevant); Burcham v. State, No.

02-10-00150-CR, 2011 WL 3211232, at *2–3 (Tex. App.—Fort Worth July 28,

2011, pet. ref’d) (mem. op., not designated for publication) (defendant did not

preserve complaint “trial court violated the fourth Beasley factor” where he did not

raise issue in trial court).

                               Ineffective Assistance

       In his first issue, appellant argues that his trial counsel did not provide him

with effective assistance during the guilt phase of trial because counsel did not

“challenge the out-of-court and in-court identifications of appellant.” In a portion

of his third issue, appellant argues that his trial counsel did not provide him with

effective assistance during the punishment phase of trial because counsel did not

“request [an] instruction[] limiting the jury’s consideration of inflammatory and

prejudicial evidence,” namely, “an instruction that the jury could consider evidence

of extraneous bad acts only if proven beyond a reasonable doubt.” See TEX. CODE

CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (Vernon Supp. 2017).

       The Sixth Amendment to the United States Constitution guarantees the right

to the reasonably effective assistance of counsel in criminal prosecutions. Garcia v.

State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001); see U.S. CONST. amend. VI. To

prove a claim of ineffective assistance of counsel, appellant must show that (1) his

trial counsel’s performance fell below an objective standard of reasonableness and


                                          15
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. Strickland v. Washington, 466

U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,

104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of

the representation to determine the effectiveness of counsel, indulging a strong

presumption that counsel’s performance falls within the wide range of reasonable

professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006).

      Appellant has the burden to establish both prongs of Strickland by a

preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.

App. 1998). “An appellant’s failure to satisfy one prong of the Strickland test

negates a court’s need to consider the other prong.” Williams v. State, 301 S.W.3d

675, 687 (Tex. Crim. App. 2009); see also Strickland, 466 U.S. at 697, 104 S. Ct. at

2069. We apply the same two-prong Strickland standard of review to claims of

ineffective assistance of counsel during both the guilt and punishment phases of trial.

Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999).

      Generally, a silent record that provides no explanation for trial counsel’s

actions will not overcome the strong presumption of reasonable assistance.


                                          16
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). In the rare case

in which trial counsel’s ineffectiveness is apparent from the record, an appellate

court may address and dispose of the claim on direct appeal. Lopez, 343 S.W.3d at

143. However, the record must demonstrate that counsel’s performance fell below

an objective standard of reasonableness as a matter of law and no reasonable trial

strategy could justify trial counsel’s acts or omissions, regardless of counsel’s

subjective reasoning. Id.

Pre-Trial and In-Court Identifications

      Appellant first argues that his trial counsel did not provide him with effective

assistance during the guilt phase of trial because counsel did not file a motion to

suppress the complainant’s pre-trial identification of him or object to the

complainant’s in-court identification of him.      He further asserts that his trial

counsel’s failure to do so prejudiced him.

      A trial counsel’s decision not to file a motion to suppress does not constitute

per se ineffective assistance. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim.

App. 1984); Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.]

2012, no pet.). This is because counsel is not required to perform any useless or

futile act. See Ex parte Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005);

Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991). To satisfy Strickland

and prevail on a claim for ineffective assistance of counsel premised on a failure to


                                         17
file a motion to suppress, a defendant “must show by a preponderance of the

evidence that the motion to suppress would have been granted and the remaining

evidence would have been insufficient to support his conviction.” Wert, 383 S.W.3d

at 753 (citing Jackson, 973 S.W.2d at 956–57). Likewise, to succeed on an

ineffective assistance claim based on not objecting to evidence, appellant must

demonstrate that if his counsel had objected, the trial court would have erred in

overruling the objection. Oliva v. State, 942 S.W.2d 727, 732 (Tex. App.—Houston

[14th Dist.] 1997, pet. dism’d). A trial counsel’s decision not to object to admissible

evidence does not constitute ineffective assistance. Id.

      Here, appellant’s ineffective-assistance-of-counsel arguments focus on the

pre-trial identification procedures utilized in the instant case.           A pre-trial

identification procedure may be so suggestive and conducive to mistaken

identification that subsequent use of that identification at trial denies the accused due

process of law. Conner v. State, 67 S.W.3d 192, 200 (Tex. Crim. App. 2001); Barley

v. State, 906 S.W.2d 27, 32–33 (Tex. Crim. App. 1995); Mendoza v. State, 443

S.W.3d 360, 363 (Tex. App.—Houston [14th Dist.] 2014, no pet.). When reviewing

a defendant’s challenge to the admissibility of a pre-trial identification procedure,

we employ a two-step analysis: (1) whether the pre-trial identification procedure

was impermissibly suggestive and (2) whether that suggestive procedure gave rise

to a very substantial likelihood of irreparable misidentification. Barley, 906 S.W.2d


                                           18
at 33; see also Adams v. State, 397 S.W.3d 760, 764 (Tex. App.—Houston [14th

Dist.] 2013, no pet). “An analysis under these steps requires an examination of the

‘totality of the circumstances’ surrounding the particular case and a determination

of the reliability of the identification.” Barley, 906 S.W.2d at 33. A defendant bears

the burden of showing by clear and convincing evidence both impermissible

suggestion and a substantial likelihood of misidentification. See Barley, 906 S.W.2d

at 33–34; see also Santos v. State, 116 S.W.3d 447, 451 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d).

      A pre-trial identification procedure may be impermissibly suggestive based

on the manner in which it was conducted or the content of the photographic array.

Barley, 906 S.W.2d at 33; Burns v. State, 923 S.W.2d 233, 237–38 (Tex. App.—

Houston [14th Dist.] 1996, pet. ref’d). To amount to the level of suggestiveness

made impermissible, the photographic identification procedure must in some way be

so defective as to indicate or suggest the photograph that the witness is to identify.

Ward v. State, 474 S.W.2d 471, 475 (Tex. Crim. App. 1971).

      While every photographic array must contain photographs of individuals who

fit the rough description of the suspect, it is not essential that all individuals be

identical in appearance. Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App.

1985); Colgin v. State, 132 S.W.3d 526, 532 (Tex. App.—Houston [1st Dist.] 2004,

pet. ref’d). Neither due process nor common sense requires that the individuals in a


                                         19
photographic array exhibit features exactly matching the accused. Buxton, 699

S.W.2d at 216; Colgin, 132 S.W.3d at 532. Nor are such practices practical. Ward,

474 S.W.2d at 475–76; see also Broussard v. State, No. 01-15-00628-CR, 2016 WL

887781, at *4 (Tex. App.—Houston [1st Dist.] Mar. 8, 2016, pet. ref’d) (mem. op.,

not designated for publication) (“Some differences in the appearance of individuals

are inevitable . . . .”).

       Notably, “a photographic array is not impermissibly suggestive merely

because each photograph can be distinguished in some manner from the photograph

of the accused.” Page v. State, 125 S.W.3d 640, 647 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d). A photographic array is not considered impermissibly

suggestive unless the defendant is placed with “persons of distinctly different

appearance, race, hair color, height or age.” Withers v. State, 902 S.W.2d 122, 125

(Tex. App.—Houston [1st Dist.] 1995, pet. ref’d).

       At trial, the complainant testified that on the night of April 10, 2015, he picked

up three passengers, two males and a female, in his cab from a restaurant. Although

it was nighttime, the light from a streetlight at the restaurant allowed him to see all

three passengers before they entered his cab. Appellant sat in the front passenger

seat of the cab next to the complainant, and the complainant “had an opportunity to

observe [him]” during the approximately fifteen-minute drive to the passengers’




                                           20
destination. Upon arrival, appellant, who was still seated next to the complainant in

the cab, pushed him and grabbed his cellular telephone and wallet.

      Although the complainant “tr[ied] to get [his] stuff back” and caught appellant

by the back of the cab, the other male passenger, who had also exited the cab,

grabbed the complainant from behind. As the other male passenger held the

complainant, he looked straight at appellant, who was in front of him and holding a

firearm.

      The complainant noted that when he initially called for emergency assistance,

he identified one of the male passengers from that night as “Spanish

[with] . . . tattoos all on his face” and mistakenly stated that the other male passenger

was black because he was stressed, under pressure, and scared. The complainant

explained that neither of the male passengers in his cab that night was black, rather

both were “Spanish with tattoos on [their] face and neck.” Further, the “initial

description” that the complainant gave to emergency-assistance personnel about the

male passenger who had robbed him was that he was “a Latin person with face

tattoos.”

      The complainant explained that following the aggravated robbery, a law

enforcement officer contacted him about viewing a photographic array. On April

14, 2015, the complainant met with the officer, who showed him “some pictures.”

The complainant signed a “Witness Admonishment” form, which instructed him as


                                           21
follows: “[t]he individual who committed the offense may or may not be present”;

he was “not required to select any individual and . . . it [was] equally important to

clear persons not involved in the crime from suspicion as it [was] to identify persons

believed to be responsible for the crime”; “[t]he investigation [would] continue

whether or not an individual [was] identified” by him; “[i]ndividuals presented [in

the photographic array] may not appear exactly as they did at the time of the incident

because features such as head hair, facial hair, and clothing [were] subject to

change”; “[i]ndividuals presented w[ould] be positioned in random order”; he was

not to “discuss the identification procedure with other witnesses”; “[w]hile

participating in the viewing [of the photographic array],” he was not to “speak or

make gestures or outcries that may be seen or heard by other witnesses”; “[w]hile

participating in the viewing [of the photographic array],” he was not to “look for

guidance from the administrator”; “[t]he administrator [was] prohibited from

providing feedback to [him] regarding [his] selection or non-selection”; and he,

while “viewing . . . [the] photo spread,” was to “remain in a position so that no one

else including the administrator c[ould] see the photo spread.” The law enforcement

officer who presented the photographic array to the complainant also explained to

him that “if he recognize[d] the guy,” then he should circle that individual’s

photograph.




                                         22
      The complainant further testified that he recognized, in the photographic

array, appellant as the person who had robbed him and “almost kill[ed] him,” “[r]ight

away” based on appellant’s face. And he stated, “I know that’s the guy,” indicating

appellant. Identifying appellant in court, the complainant explained that appellant

was the person who he had identified in the photographic array, who had sat next to

him in the front passenger seat of his cab, and who had pointed a firearm at him.

None of the other individuals who the complainant had viewed in the photographic

array was the person who had robbed him.

      Appellant argues that the photographic array viewed by the complainant was

impermissibly suggestive because the photograph of appellant in the array “leaps

out” as his face and body are “bright yellow” and “the faces and bodies of the other

[individuals in the remaining] five photographs are black and white.” Appellant

further argues that the photographic array was impermissibly suggestive because it

was only “one page,” contained only six photographs, and the law enforcement

officer told the complainant that if he “recognized the guy,” then he was to circle

that particular individual’s photograph. (Internal quotations omitted.)

      Here, all of the males pictured in the photographic array were of the same

race, were of similar age and size, and had visible tattoos, had similar hairstyles, and

wore similar clothing.     See Page, 125 S.W.3d at 647 (photographic array not

impermissibly suggestive where “[a]ll of the men pictured in the array [were]


                                          23
African-American, [were] wearing civilian clothes, ha[d] short black hair, and

appear[ed] to be similar in age”); see also Gorden v. State, No. 01-16-00088-CR,

2016 WL 6803354, at *6 (Tex. App.—Houston [1st Dist.] Nov. 17, 2016, no pet.)

(mem. op., not designated for publication) (photographic array not impermissibly

suggestive where all males pictured of same race, of similar age and size, with

general facial similarities); Salinas v. State, No. 07-00-0093-CR, 2002 WL 1870249,

at *10 (Tex. App.—Amarillo Aug. 13, 2002, pet. ref’d) (not designated for

publication) (“[T]he fact that all of the photos in the lineup were of Hispanic males

is not an indicator that the lineup procedures were impermissibly suggestive; rather,

it is an indicator of the opposite proposition—that the lineup procedures were not

impermissibly suggestive.”).

      In regard to the purported yellowish coloring of appellant’s photograph, the

background of his photograph does not appear to be different from the background

of the other photographs, and the lighting in his photograph does not appear to be

eye-catching. Further, the faces and bodies of the other five individuals in the

photographic array are not “black and white” as appellant asserts, and any slight

difference in the coloring of appellant’s photograph is insignificant. See Barley, 906

S.W.2d at 33–34 (photographic array not impermissibly suggestive where

defendant’s photograph “taken outside in a yard” and had “a more pinkish tint”);

Page, 125 S.W.3d at 647 (photographic array not impermissibly suggestive,


                                         24
although background and texture of defendant’s photograph “different than the

background and texture of some of the other photographs in the array” (internal

quotations omitted)); see also Perez v. State, No. 01-09-00805-CR, 2010 WL

4056540, at *3 (Tex. App.—Houston [1st Dist.] Oct. 14, 2010, no pet.) (mem. op.,

not designated for publication) (although defendant asserted “his photo was yellow

in color,” making it stand out, photographic array not impermissibly suggestive

because “even if the [defendant’s] photograph had a darker or lighter tint than the

other photographs in the array, that [does] not render the photo array impermissibly

suggestive”).

      Further, we note that the complainant testified that he selected appellant’s

photograph based on appellant’s face,6 not based on the purportedly yellowish color

of the photograph. See Jackson v. State, No. 01-15-00330-CR, 2016 WL 4487979,

at *10 (Tex. App.—Houston [1st Dist.] Aug. 25, 2016, no pet.) (mem. op., not

designated for publication) (complainant selected defendant by “look[ing] at the

faces” in photographs (internal quotations omitted) (alteration in original)); Burks v.

State, No. 01-10-00633-CR, 2012 WL 151463, at *4 (Tex. App.—Houston [1st

Dist.] Jan. 19, 2012, no pet.) (mem. op., not designated for publication) (complainant



6
      The complainant testified that he saw appellant before he entered his cab, appellant
      sat next to him in the front passenger seat of the cab, he “had an opportunity to
      observe [appellant]” during the approximately fifteen-minute drive, and he looked
      straight at appellant, as he pointed a firearm at him.

                                           25
identified defendant based on his recollection of gunman’s facial features); Santos

v. State, No. 01-05-01005-CR, 2007 WL 3040802, at *4 (Tex. App.—Houston [1st

Dist.] Oct. 18, 2007, no pet.) (mem. op., not designated for publication) (although

defendant argued his photograph “stood out among the others,” witnesses testified

they identified him based on recollections of offense, not based on characteristics of

photograph).

      In regard to appellant’s complaint about the size of the photographic array, he

cites no controlling authority to support his assertion that the array was

impermissibly suggestive because it was only “one page” and contained only six

photographs. See TEX. R. APP. P. 38.1(i); see also In re C.E.B., No. 09-04-128-CV,

2005 WL 1531294, at *4 (Tex. App.—Beaumont June 30, 2005, no pet.) (mem. op.,

not designated for publication) (although defendant asserted photographic array

impermissibly suggestive because it contained only three photographs, he did not

cite any authority to support his assertion array must contain certain number of

photographs).    And we note that Texas courts have repeatedly held that

six-photograph arrays, including those presented on a single page, are not

impermissibly suggestive. See, e.g., Barley, 906 S.W.2d at *33–34 (photographic

array consisted of six photographs of black males with similar features); Mims v.

State, 434 S.W.3d 265, 273 (Tex. App.—Houston [1st Dist.] 2014, no pet.)

(photographic array containing six photographs—one of defendant and five of men


                                         26
matching defendant’s general description—not impermissibly suggestive); Plater v.

State, No. 06-07-00063-CR, 2008 WL 2469055, at *2–3 (Tex. App.—Texarkana

June 20, 2008, no pet.) (mem. op., not designated for publication) (photographic

array, consisting of “a single page with six pictures of African-American men, each

appearing to be generally of similar ages and stature,” not impermissibly

suggestive); Stenson v. State, No. 03-03-00531-CR, 2005 WL 670552, at *5–9 (Tex.

App.—Austin Mar. 24, 2005, no pet.) (mem. op., not designated for publication) (six

photographs on “a one-page photo array” not impermissibly suggestive); see also

Ford v. State, 794 S.W.2d 863, 866 (Tex. App.—El Paso 1990, pet. ref’d)

(three-photograph array not impermissibly suggestive); cf. Johnigan v. State, 69

S.W.3d 749, 752 (Tex. App.—Tyler 2002, pet. ref’d) (single photograph array

improperly suggestive and viewed with suspicion).

      Appellant also complains that the law enforcement officer who presented the

complainant with the photographic array told him that if he “recognized the guy”

who had robbed him, he was to circle that particular individual’s photograph.

(Internal quotations omitted.) However, this statement does not constitute evidence

that the law enforcement officer presented the photographic array in an

impermissibly suggestive manner. See Barley, 906 S.W.2d at 33 (“Suggestiveness

may be created by the manner in which the pre-trial identification procedure is

conducted, for example by police pointing out the suspect or suggesting that a


                                        27
suspect is included in the line-up or photo array.”); Webb v. State, 760 S.W.2d 263,

272 (Tex. Crim. App. 1988) (“It is undoubtedly the case that in a substantial number

of . . . lineups the identification witness will presuppose that police have some

reason to believe one of the participants is the perpetrator”; however, “[t]his fact

alone [is not] sufficient to render the lineup impermissibly suggestive . . . .”); see,

e.g., Williams v. State, No. 03-08-00633-CR, 2009 WL 2059092, at *5–6 (Tex.

App.—Austin July 17, 2009, no pet.) (mem. op., not designated for publication)

(photographic array not conducted in impermissibly suggestive manner where

officer told witness “to take a look at the photos, to look at them carefully, and that

if he recognized the person who committed the robbery, to point them out”); Moore

v. State, No. 2-06-280-CR, 2007 WL 2405126, at *3 (Tex. App.—Fort Worth Aug.

24, 2007, pet. dism’d, untimely filed) (mem. op., not designated for publication) (law

enforcement officer’s “action in showing the photo lineup to [witness] was not

impermissibly suggestive” where officer “asked [witness] if he recognized

anybody”); cf. Stenson, 2005 WL 670552, at *7 (law enforcement officer’s statement

“he believed the suspect was in the photo array,” standing alone, “insufficient to

render [the] pretrial identification procedure impermissibly suggestive”).

      Further, we note that the complainant, prior to viewing the photographic array,

was admonished that “[t]he individual who committed the offense may or may not

be present”; he was “not required to select any individual and . . . it [was] equally


                                          28
important to clear persons not involved in the crime from suspicion as it [was] to

identify persons believed to be responsible for the crime”; and “[t]he investigation

[would] continue whether or not an individual [was] identified.”

      We conclude that appellant has not met his burden of showing that the pre-trial

identification procedure utilized in the instant case was impermissibly suggestive.

      As previously noted, to establish that appellant’s trial counsel rendered

ineffective assistance by not moving to suppress the complainant’s pre-trial

identification of appellant, appellant must show that if his trial counsel had filed the

motion, the trial court would have granted it. See Wert, 383 S.W.3d at 753. Further,

to establish that his trial counsel rendered ineffective assistance by not objecting to

the complainant’s in-court identification, appellant must establish that, had his

counsel objected, the trial court would have erred in overruling the objection. See

Oliva, 942 S.W.2d at 732. Here, because appellant cannot show that the pre-trial

identification procedure was impermissibly suggestive, he also cannot show that the

pre-trial identification was inadmissible or the trial court would have erred in not

granting a motion to suppress the complainant’s pre-trial identification of appellant

or not sustaining an objection to the complainant’s in-court identification of him.

      Accordingly, we hold that appellant has not established that his trial counsel’s

performance fell below an objective standard of reasonableness in not filing a motion




                                          29
to suppress or objecting to the complainant’s pre-trial and in-court identifications of

appellant.

      We overrule appellant’s first issue.

Extraneous-Offense Evidence

      Appellant next argues that his trial counsel did not provide him with effective

assistance during the punishment phase of trial because counsel did not object to the

trial court’s omission of, or request that the trial court include in its charge, an

instruction that the jury “could not consider evidence of extraneous offenses,” in

assessing punishment, “unless [it] was satisfied that the extraneous offenses had

been proven beyond a reasonable doubt.” See TEX. CODE CRIM. PROC. ANN. art.

37.07, § 3(a)(1). Appellant further asserts that his trial counsel’s failure to do so

prejudiced him.

      In regard to the admissibility of evidence of extraneous offenses and bad acts

in non-capital cases during the punishment phase of trial:

      [E]vidence may be offered by the state and the defendant as to any
      matter the court deems relevant to sentencing, including but not limited
      to the prior criminal record of the defendant, his general reputation, his
      character, an opinion regarding his character, the circumstances of the
      offense for which he is being tried, and, notwithstanding Rules 404 and
      405, Texas Rules of Evidence, any other evidence of an extraneous
      crime or bad act that is shown beyond a reasonable doubt by evidence
      to have been committed by the defendant or for which he could be held
      criminally responsible, regardless of whether he has previously been
      charged with or finally convicted of the crime or act.



                                          30
See id. (emphasis added); see also Huizar v. State, 12 S.W.3d 479, 484 (Tex. Crim.

App. 2000) (article 37.07, section 3(a)(1) governs admissibility of evidence at

punishment phase in all non-capital cases). While extraneous-offense and bad-act

evidence is generally admissible under article 37.07, section 3(a)(1), the jury may

not consider such evidence in assessing punishment unless it first concludes beyond

a reasonable doubt that the defendant committed the offenses or acts. See TEX. CODE

CRIM. PROC. ANN. art. 37.07, § 3(a)(1); see also Huizar, 12 S.W.3d at 484; Fields v.

State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999); Burks v. State, 227 S.W.3d 138,

149–50 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). When a jury determines

beyond a reasonable doubt that the defendant committed the extraneous offenses or

bad acts, it may then use the evidence however it chooses in assessing punishment.

Huizar, 12 S.W.3d at 484; Fields, 1 S.W.3d at 688.

      When evidence of extraneous offenses or bad acts is admitted during the

punishment phase of a trial, the trial court must instruct the jury that the evidence

may only be considered if the State proves the commission of the extraneous

offenses or bad acts beyond a reasonable doubt. See TEX. CRIM. PROC. CODE ANN.

art. 36.14 (Vernon 2007) (trial court shall instruct jury on law applicable to case);

Huizar, 12 S.W.3d at 483–84 (article 37.07, section 3(a)(1) constitutes law

applicable to non-capital punishment cases and trial courts must sua sponte instruct

juries on reasonable-doubt standard); Burks, 227 S.W.3d at 150 (when evidence of


                                         31
extraneous offenses or bad acts introduced in punishment phase of non-capital trial,

trial court has independent duty to charge jury pursuant to article 37.07, section

3(a)(1)). This is because, absent such an instruction, a jury might apply a standard

of proof less than reasonable doubt in its determination of the defendant’s connection

to such offenses and bad acts, contrary to article 37.07, section 3(a)(1). Huizar, 12

S.W.3d at 484.

      Appellant asserts that Deputy Roush’s testimony about his “alleged gang

affiliation” constituted extraneous-offense evidence and his trial counsel rendered

ineffective assistance in not requesting that the trial court instruct the jury pursuant

to article 37.07, section 3(a), and in not objecting to the trial court’s omission from

its charge of an article 37.07, section 3(a) instruction.

      Here, we need not address whether appellant’s trial counsel’s performance fell

below an objective standard of reasonableness7 because even were we to conclude

that trial counsel’s performance was deficient,8 appellant has not shown that he was

prejudiced by his counsel’s presumed deficient performance.


7
      We also need not address whether appellant was actually entitled to article 37.07,
      section 3(a) instruction in the instant case. See TEX. R. APP. P. 47.1. For purposes
      of this opinion, we will presume that he was so entitled.
8
      But see Gholson v. State, 5 S.W.3d 266, 273 (Tex. App.—Houston [14th Dist.]
      1999, pet. ref’d) (“Failure to request an instruction on the burden of proof required
      for consideration of extraneous offenses during the punishment phase of trial is not
      necessarily ineffective assistance of counsel.”); Poole v. State, 974 S.W.2d 892, 903
      (Tex. App.—Austin 1998, pet. ref’d); Ryan v. State, 937 S.W.2d 93, 104 (Tex.
      App.—Beaumont 1996, pet. ref’d).

                                           32
      An appellate court will not reverse a conviction for ineffective assistance of

counsel at the punishment phase of trial unless the defendant shows prejudice as a

result of deficient attorney performance. See Wiggins v. Smith, 539 U.S. 510, 534,

123 S. Ct. 2527, 2542 (2003); Rivera v. State, 123 S.W.3d 21, 32 (Tex. App.—

Houston [1st Dist.] 2003, pet. ref’d). Thus, in order to prove his claim of ineffective

assistance of counsel, appellant, in addition to establishing a deficiency in his

counsel’s performance, must show that a reasonable probability exists that the jury’s

assessment of his punishment would have been less severe in the absence of

counsel’s deficient performance. Bazan v. State, 403 S.W.3d 8, 13 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d); Rivera, 123 S.W.3d at 32; see also Ex parte

Rogers, 369 S.W.3d 858, 863 (Tex. Crim. App. 2012) (defendant “must prove that

there is a reasonable probability that, but for counsel’s errors, the sentencing jury

would have reached a more favorable verdict” (internal quotations omitted)). Our

prejudice analysis turns on whether counsel’s deficiency made any difference to the

outcome of the case. Riley v. State, 378 S.W.3d 453, 458 (Tex. Crim. App. 2012).

It is not enough to show that trial counsel’s errors had some “conceivable” effect on

the outcome of the punishment assessed; the likelihood of a different result must be

“substantial.” Harrington v. Richter, 562 U.S. 86, 104, 112, 131 S. Ct. 770, 787,

792 (2011); see also Ex parte Rogers, 369 S.W.3d at 863; Goody v. State, 433

S.W.3d 74, 81 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d).


                                          33
      The jury assessed appellant’s punishment at confinement for thirty-five

years.9 And the evidence supporting the jury’s sentence is overwhelming. Initially,

we note that the jury had before it, when assessing punishment, the evidence

presented in the guilt phase of trial. Further, during the punishment phase of trial,

appellant stipulated that he had been previously charged with two juvenile offenses

of theft, disposed of on July 24, 1998; charged with the juvenile offense of theft,

disposed of on January 22, 1998; charged with the juvenile offenses of burglary of

a habitation and possession of a controlled substance, disposed of on December 30,

1999; convicted of the misdemeanor offense of assault on a family member on July

14, 2006; convicted of the misdemeanor offenses of theft and possession of a

controlled substance on August 8, 2006; convicted of the misdemeanor offense of

criminal trespass on December 1, 2006; convicted of the misdemeanor offense of

“possession of inhalant paraphernalia” on April 12, 2007; convicted of the felony

offense of robbery on June 11, 2007 and sentenced to two years confinement;

convicted of the misdemeanor offense of criminal trespass on September 25, 2009;




9
      Because appellant pleaded true to, and the jury found true, the allegations in two
      enhancement paragraphs that he had twice been previously convicted of felony
      offenses, appellant was subject to the habitual-offender punishment range of
      confinement for not less than twenty-five years and not greater than ninety-nine
      years or life. See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2017); see also
      id. § 29.03(b) (aggravated robbery first-degree felony offense).

                                          34
and convicted of the felony offense of robbery on March 8, 2010 and sentenced to

five years confinement.

      Stephanie Villareal, appellant’s wife, also testified during the punishment

phase of trial that he had “committed several crimes since” January 2003, when their

relationship began. And he had “been to prison twice” since that time. Further,

appellant had assaulted her, “the police were called out,” and he was “now facing

charges for assaulting [her].”

      Under these circumstances, appellant has not shown that but for his trial

counsel’s deficient performance, the jury’s assessment of his punishment would

have been less severe than confinement for thirty-five years. See Bazan, 403 S.W.3d

at 13; see also Donald v. State, 543 S.W.3d 466, 486–87 (Tex. App.—Houston [14th

Dist.] Feb. 27, 2018, no pet.) (defendant did not show but for counsel’s deficient

performance, sentencing jury would have reached more favorable verdict than

confinement for seven years where jury heard evidence of lengthy criminal history);

Martinez v. State, 313 S.W.3d 358, 369 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d) (no egregious harm from omission of beyond-reasonable-doubt instruction in

part because jury would have likely assessed same life sentence in light of

defendant’s lengthy criminal history, including several convictions as juvenile); cf.

Brown v. State, No. 12-01-00117-CR, 2002 WL 1338611, at *11 (Tex. App.—Tyler

June 18, 2002, pet. ref’d) (not designated for publication) (defendant did not


                                         35
establish prejudice as result of counsel’s failure “to request a jury instruction that the

State must prove extraneous offenses beyond a reasonable doubt” despite jury

assessing “maximum punishment”).

      Accordingly, we hold that appellant has not established that but for his trial

counsel not requesting that the trial court include in its charge, or not objecting to

the trial court’s omission of, an instruction, pursuant to article 37.07, section 3(a),

there is a reasonable probability that the jury’s assessment of his punishment would

have been less severe.

      We overrule this portion of appellant’s third issue.

                              Modification of Judgment

      We note that the trial court’s written judgment does not accurately comport

with the record in this case in that it states “N/A,” meaning “not applicable,” in

regard to appellant’s “[p]lea to 1st [e]nhancement [p]aragraph” and “[p]lea to 2nd

[e]nhancement/[h]abitual [p]aragraph.”        Further, the judgment states “N/A” in

regard to the jury’s “[f]indings on 1st [e]nhancement [p]aragraph” and “[f]indings

on 2nd [e]nhancement/[h]abitual [p]aragraph.” See Dromgoole v. State, 470 S.W.3d

204, 226–27 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (judgment incorrectly

reflected trial court’s finding on enhancement paragraph was “n/a,” meaning “not

applicable” (internal quotations omitted)).




                                           36
      The record reveals that appellant actually pleaded “[t]rue” to the allegations

in two enhancement paragraphs that he had twice been previously convicted of

felony offenses. And the jury found the allegations in both enhancement paragraphs

to be “true.”

      “[A]ppellate court[s] ha[ve] the power to correct and reform a trial court

judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data

and information to do so, or make any appropriate order as the law and nature of the

case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st

Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d)).   Although neither party addresses the inconsistency

between the trial court’s written judgment and the record in this case, we, based on

our review, conclude that the portion of the judgment regarding appellant’s pleas to

the allegations in the two enhancement paragraphs and the jury’s findings do not

accurately comport with the record. See Asberry, 813 S.W.2d at 529–30 (authority

to correct incorrect judgment not dependent upon request of any party).

      Accordingly, we modify the trial court’s judgment to reflect that appellant

pleaded “[t]rue” to the “1st [e]nhancement [p]aragraph” and the “2nd

[e]nhancement/[h]abitual [p]aragraph.”        We further modify the trial court’s

judgment to reflect that the jury found the allegations in the “1st [e]nhancement

[p]aragraph” and the “2nd [e]nhancement/[h]abitual [p]aragraph” to be “true.” See


                                         37
TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.

1993); Torres v. State, 391 S.W.3d 179, 185 (Tex. App.—Houston [1st Dist.] 2012,

pet. ref’d) (modifying judgment to reflect defendant pleaded “true” to allegations in

enhancement paragraphs).

                                    Conclusion

      We affirm the judgment of the trial court as modified. We dismiss all pending

motions as moot.




                                                Terry Jennings
                                                Justice

Panel consists of Chief Justice of Radack and Justices Jennings and Lloyd.

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




                                           38
