Odell Burgess v. State
2014 Tex. App. LEXIS 10849
| Tex. App. | 2014Background
- On Sept. 7, 2012, Officer Marc Stallworth observed a black pickup exit the South Loop at high speed; he activated lights and siren and pursued the truck for ~½ mile as it weaved through traffic. Appellant Burgess drove; two male passengers were present.
- Occupants threw items from the truck during the pursuit; officers later recovered the victim’s purse and business cards near where items were discarded and found a $100 bill in a passenger’s shoe. Three new $100 bills were found on Burgess.
- Within 20 minutes before the pursuit, a robbery occurred at a nearby post office where a passenger (not Burgess) allegedly entered a woman’s car, took her purse and phone, and a frightened child jumped out. A witness identified Burgess’s truck and a passenger.
- Burgess led police into a parking lot, attempted to flee but was boxed in and arrested; he was charged with evading arrest or detention with a motor vehicle (third-degree felony with vehicle), pleaded true to two enhancement paragraphs, and received 53 years.
- On appeal Burgess raised four issues: sufficiency of evidence, alleged trial-court comment on failure to testify (jury charge language), admission of extraneous-offense (robbery) evidence during guilt-innocence, and ineffective assistance of counsel. The court affirmed.
Issues
| Issue | Burgess’s Argument | State’s Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Burgess intentionally fled a known peace officer | Burgess said he needed time to recognize the officer and intended to stop voluntarily; speed estimate unreliable | Officer activated lights/siren close behind; Burgess accelerated, threw items, weaved and only stopped when boxed in; robbery provided motive | Affirmed — evidence supported intentional flight and that officer lawfully attempted detention |
| Jury charge language commented on failure to testify | Language that evidence of prior conviction could aid in assessing “weight you will give his testimony” implied court expected Burgess to testify, violating rights | Instruction was overinclusive but jury was also affirmatively instructed Burgess elected not to testify; error non‑egregious | Affirmed — not a constitutionally impermissible comment; no egregious harm |
| Admission of extraneous-offense (recent robbery) during guilt-innocence | Admission should be excluded because trial court didn’t make proper threshold finding that jury could find robbery beyond reasonable doubt | Evidence (ID of truck, recovered purse/items, $100 found on passenger, eyewitness account) made robbery relevant to motive; court made admissibility determination | Affirmed — trial court did not abuse discretion admitting robbery evidence under Rule 404(b) and threshold was satisfied |
| Ineffective assistance of counsel (multiple subclaims: voir dire statements on punishment range, not objecting to extraneous-offense references, not objecting to jury charge language, not striking juror) | Counsel erred and prejudiced Burgess (e.g., misstated punishment range, failed objections, failed to remove biased juror) | Tactical choices plausible; record is cold; admitted evidence was admissible and charge error was non-prejudicial; no showing of reasonable probability of a different outcome | Affirmed — counsel’s performance not shown deficient or prejudicial on this record |
Key Cases Cited
- Gear v. State, 340 S.W.3d 743 (Tex. Crim. App.) (standard for reviewing sufficiency of evidence)
- Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App.) (deference to jury on credibility and inferences)
- Williams v. State, 235 S.W.3d 742 (Tex. Crim. App.) (role of appellate court in sufficiency review)
- Bustamante v. State, 48 S.W.3d 761 (Tex. Crim. App.) (standard for identifying improper comment on defendant’s failure to testify)
- Barrios v. State, 283 S.W.3d 348 (Tex. Crim. App.) (standard for unobjected-to jury charge error: egregious harm)
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App.) (404(b) admissibility framework)
- Fischer v. State, 268 S.W.3d 552 (Tex. Crim. App.) (trial court must determine jury could find extraneous offense beyond a reasonable doubt)
- Shuffield v. State, 189 S.W.3d 782 (Tex. Crim. App.) (abuse-of-discretion review for admission of extraneous offenses)
- Beardsley v. State, 738 S.W.2d 681 (Tex. Crim. App.) (party liability: consider events before, during, after offense)
- Howard v. State, 333 S.W.3d 137 (Tex. Crim. App.) (robbery can be committed by placing victim in fear by implicit threats)
- Strickland v. Washington, 466 U.S. 668 (U.S.) (two-prong test for ineffective assistance of counsel)
- Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App.) (on cold record, must show conduct so outrageous no competent attorney would do it)
- Delrio v. State, 840 S.W.2d 443 (Tex. Crim. App.) (cold-record refusal to find counsel ineffective for not striking venireperson)