Summary
finding no egregious harm when evidence presented on both theories of burglary
Summary of this case from Savannah v. StateOpinion
Nos. 05-07-00939-CR, 05-07-00940-CR, 05-07-00941-CR
Opinion Filed February 8, 2010. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F05-52922-M, F05-58072-M, F06-72624-M.
Before Justices MORRIS, FITZGERALD, and LANG-MIERS.
OPINION
A jury found appellant, Steven Craig Brown, guilty of the offense of burglary of a habitation and assessed punishment at twenty years in prison. At the time, appellant was on deferred adjudication community supervision for two drug offenses. Following the trial on the burglary charge, the trial court adjudicated appellant guilty of the drug offenses and assessed his punishment at two years in state jail on one drug charge and twenty-five years in prison on the other. In ten issues, appellant argues on appeal that the evidence is insufficient to support the burglary conviction, his counsel was ineffective, there was error in the jury charge, the jury did not render a unanimous verdict, and his due process rights were violated by rendering judgment on a charge not authorized by the indictment. For the following reasons, we affirm.
Background
Appellant and Antesha Nelson lived together. In November 2006, Antesha and her children were visiting Antesha's mother, Mary Glenn, at Glenn's apartment. Antesha's sister Demeatrice Nelson and other adults and children were also at Glenn's apartment. They heard someone banging on the front door. Demeatrice looked through the peephole and saw appellant standing there. Antesha told her not to answer the door. Appellant demanded that Antesha open the door and give him the debit and Lone Star cards. He said if she did not open the door, he would count to ten and beat the door down. When no one opened the door, appellant got a baseball bat from his car, counted to ten, and began beating on the front door with the bat. He knocked a hole in the door, reached in, and unlocked it. The occupants of the house ran to the bedroom when they saw appellant reach in to unlock the door. Although some of the adults tried to hold the bedroom door shut, appellant hit the door hard enough that they let go and ran to the other side of the room. Once inside the bedroom, appellant began swinging the bat as if he was going to hit them. He yelled that he wanted Antesha and the debit and Lone Star cards. He grabbed Antesha by the shirt and pulled her back into the living room. The others followed. Antesha's oldest son gave appellant Antesha's purse. Appellant took the purse outside and poured its contents onto the ground. When he found the two cards he wanted, he took them and left. Dallas police officer Carlos Marquez responded to a 9-1-1 call at Glenn's residence. He testified that he observed damage to the front and bedroom doors. Dallas police detective Rosa Baum investigated the incident. She interviewed the witnesses, who described the incident related above. She spoke with Antesha later and testified that Antesha confirmed what the other witnesses had described. Antesha also led the police to appellant's car where they found a baseball bat in the trunk. The bat was introduced into evidence at the trial; it had white paint on it that was transferred from the bedroom door. The State charged appellant with burglary of a habitation with an underlying offense of robbery. The jury found appellant not guilty of that offense, but guilty of burglary of a habitation with an underlying offense of theft or assault.Legal Sufficiency of the Evidence
Appellant argues that the evidence is legally insufficient to support the conviction. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997). We measure the sufficiency of the evidence against the hypothetically correct jury charge. Malik, 953 S.W.2d at 240. The hypothetically correct jury charge 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. Id. We do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). And the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). A. The Indictment The indictment in this case charged appellant with first-degree burglary under penal code section 30.02(a)(3) with an underlying offense of robbery:On or about the 13th day of November, A.D., 2006 in the County of Dallas and said State, did said Defendant did [sic] then and there unlawfully, intentionally and knowingly enter a habitation without the effective consent of Mary Glenn, the owner thereof, and did then and there commit a felony other than theft, namely, robbery. . . .B. The Verdict The jury acquitted appellant of burglary as charged in the indictment, but convicted him of second-degree burglary of a habitation with an underlying offense of theft or assault:
We, the jury, find the defendant guilty of the offense of burglary of a habitation with the intent to commit theft or assault, as included in the indictment.C. Claimed Legal Insufficiency In his first four issues, appellant argues that the evidence is legally insufficient to prove he committed (1) theft, (2) assault, (3) burglary, or (4) any of the underlying offenses against the complainant, Mary Glenn. Although the indictment charged appellant only under 30.02(a)(3), the application paragraph of the court's charge instructed the jury under both 30.02(a)(3) and 30.02(a)(1). Because we evaluate the sufficiency of the evidence against the hypothetically correct jury charge, and the hypothetically correct jury charge is one authorized by the indictment, we will examine the sufficiency of the evidence to support the conviction under 30.02(a)(3). See Grissam v. State, 267 S.W.3d 39, 40 (Tex. Crim. App. 2008); Malik, 953 S.W.2d at 240; Kenny v. State, 292 S.W.3d 89, 97-98 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd). 1. Legal sufficiency to prove assault We examine appellant's second issue first-whether the evidence is sufficient to prove that appellant committed assault. A person commits assault if the person intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse. Tex. Penal Code Ann. § 22.01(a)(2) (Vernon Supp. 2009). Threats may be communicated verbally or by conduct. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). A threatened injury is "imminent" if it is "near at hand" or "on the verge of happening." Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). The gravamen of the offense of assault is that one acts with intent to cause a reasonable apprehension of imminent bodily injury. Tidwell v. State, 187 S.W.3d 771, 775 (Tex. App.-Texarkana 2006, pet. stricken). Appellant argues that the evidence of threats consists only of "conclusory suggestions" that have no specific, articulable facts to support them. He contends that the witnesses' testimony that he was "going to" hit them with the baseball bat is mere speculation. And he contends that the threats were only conditional-they were not intended to be executed unless a certain event happened-and, therefore, were not unlawful. We disagree. Even though a threat of harm may be conditioned on the occurrence or nonoccurrence of a future event, it may nevertheless constitute assault if the threat, even though conditional, is imminent. See Devine, 786 S.W.2d at 270-71; Green v. State, 567 S.W.2d 211, 212 (Tex. Crim. App. 1978); Tidwell, 187 S.W.3d at 774. According to the evidence, appellant broke into Glenn's home using a baseball bat. When he entered the bedroom, he swung the bat in the air, yelling. A friend of the family who was at the apartment that night testified that appellant "was threatening all of us"; she thought appellant would hit them with the bat. She demonstrated the way that appellant swung the bat at them, and she said that she and Antesha fell on the floor because they were trying to avoid getting hit with the bat. The witnesses testified that they were fearful and that everyone was screaming and crying. When Glenn's mother tried to calm appellant down, he said "Y'all better get back, b___, I will hit you too. I will hit y'all too." On the basis of this evidence, the jury could reasonably conclude that appellant's threat to use the baseball bat, while conditional, was imminent. Accordingly, the evidence is legally sufficient to show that appellant committed assault. See Tex. Penal Code Ann. § 22.01(a)(2). We resolve appellant's second issue against him. 2. Legal sufficiency to prove appellant assaulted the complainant In his fourth and related issue, appellant argues that the evidence did not prove that he assaulted the complainant. Again, we disagree. The evidence showed that Glenn was in the apartment when appellant entered and demanded the bank and Lone Star cards while swinging the baseball bat. She testified that "we were just frightened up in there. We didn't know what to do. And we called the police. . . ." She said, "I was afraid he was going to hit us with the bat." On the basis of this evidence, the jury could reasonably conclude that Glenn had a reasonable apprehension of imminent bodily injury. Accordingly, the evidence is legally sufficient to show that appellant assaulted the complainant. See id. We resolve appellant's fourth issue against him. 3. Legal sufficiency to prove burglary In his third issue, appellant contends that the evidence is legally insufficient to prove he committed burglary. A person commits burglary when the person, without the effective consent of the owner,
(1) enters a habitation . . . with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a . . . habitation; or
(3) enters a . . . habitation and commits or attempts to commit a felony, theft, or an assault.Tex. Penal Code Ann. § 30.02(a)(1)-(3) (Vernon 2003). The evidence showed that appellant knocked on Glenn's front door and no one would let him in. He warned the occupants of the apartment that he would count to ten and then break in. He counted to ten, and when no one unlocked the door, he beat a hole in the door with the baseball bat, reached in and unlocked the door, and entered Glenn's apartment without her permission. After he entered the apartment, he committed assault by threatening to hit the occupants of the apartment with a baseball bat. We conclude that the evidence is legally sufficient to show that appellant committed burglary. See Tex. Penal Code Ann. § 30.02(a)(3). We resolve appellant's third issue against him. Based on our disposition of issues two, three, and four, we do not need to consider issue one concerning the sufficiency of the evidence to prove appellant committed theft.
Ineffective Assistance of Counsel
In issues five, six, and seven, appellant argues that his trial counsel was ineffective and her cumulative failures deprived him of a fair trial under the federal and state constitutions. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Appellant must show by a preponderance of the evidence that his counsel's performance fell below an objective standard of reasonableness and a reasonable probability exists that, but for counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. An ineffective assistance claim must be "firmly founded in the record," and the record must affirmatively demonstrate that the claim has merit. Goodspeed, 187 S.W.3d at 392 (quoting Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)). In the absence of a record of counsel's reasoning or strategy, we must apply the strong presumption that counsel's performance was part of trial strategy, and we typically will not second guess a matter of trial strategy. See id.; Young v. State, 991 S.W.2d 835, 837 (Tex. Crim. App. 1999). When trial counsel has not had an opportunity to explain her actions, we should not find her performance deficient unless it was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). In issues five and six, appellant contends that counsel was ineffective in both the guilt and punishment phases of trial in multiple respects. He contends that counsel did not have a "firm command of the governing law and facts" and that she demonstrated a failure to understand the rules relating to evidentiary issues, jury argument, and jury charges. He also cites alleged deficient acts and omissions with regard to cross-examination and filing and arguing motions to quash the indictment and for mistrial. He contends these errors cumulatively prejudiced his defense. In addition, he argues in issue seven that counsel was ineffective in the revocation hearing by advising him to plead true to violating certain terms and conditions of community supervision. Appellant contends that, but for the cumulative errors of counsel, "there is a strong probability" the jury would have found him not guilty of second-degree burglary because the jury acquitted him of the first-degree burglary charge, or would have granted him community supervision. Appellant filed a motion for new trial, but he did not raise ineffective assistance in the motion and there was no hearing on the motion. Although some of the incidents cited by appellant can reasonably raise questions concerning the wisdom of and rationale for certain trial strategy decisions, trial counsel has not had an opportunity to explain her performance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). And the Texas Court of Criminal Appeals has made clear that in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance, and an application for writ of habeas corpus is the more appropriate vehicle to raise such claims. Id. at 110. Appellant bears the burden of rebutting the presumption of reasonable assistance by presenting evidence explaining trial counsel's conduct. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Whatever counsel's reasons for the alleged improper acts or omissions, without a record, we must presume they were made as part of sound trial strategy. We conclude, therefore, that appellant has not met the first prong of Strickland to show that counsel's performance was deficient. Accordingly, we resolve appellant's fifth, sixth, and seventh issues against him.Jury Charge Error
In issues eight and nine, appellant argues that the trial court erred by refusing to charge the jury on the lesser-included offenses of criminal mischief and criminal trespass and by allowing the jury to render a non-unanimous verdict. In issue ten, he argues that the trial court erred by rendering judgment on a theory not authorized by the indictment. In considering issues of jury charge error, we first determine whether error exists. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If there is error and the defendant objected, we will reverse if the defendant suffered some harm. Id. If there is error, but the defendant did not object, reversal is not required unless the error was fundamental, that is, so egregious that the defendant was denied a fair and impartial trial. Id.; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). A. Lesser-included Offenses Appellant requested charges on criminal mischief and criminal trespass. The trial court denied the requests, and appellant objected to their omission from the court's charge. On appeal, appellant contends the trial court erred. However, appellant does not argue or cite authority to support his contention that criminal mischief and criminal trespass are lesser-included offenses of burglary or that the trial court erred by denying the requested charges. Appellant's eighth issue presents nothing for our review. See Tex. R. App. P. 38.1(h). B. Non-Unanimous Verdict Appellant contends that the jury charge allowed a non-unanimous verdict because the charge authorized a burglary conviction without requiring the jury to unanimously agree on either theft or assault as the underlying offense:We, the jury, find the defendant guilty of the offense of burglary of a habitation with the intent to commit theft or assault, as included in the indictment.Appellant argues that theft and assault are separate offenses and may not be charged in the disjunctive. Appellant did not object to the court's charge on this ground; therefore, we first determine whether error exists in the charge. Our constitution requires that the jury be unanimous on the essential elements of the offense of conviction. Jefferson v. State, 189 S.W.3d 305, 310 (Tex. Crim. App. 2006). This means that the jury must unanimously agree that the defendant committed one specific crime. Landrian v. State, 268 S.W.3d 532, 535 (Tex. Crim. App. 2008). The gravamen of a burglary offense is the unauthorized entry of the habitation with the requisite mental state. Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006). Burglary may be committed three different ways. See Tex. Penal Code Ann. § 30.02(a)(1)-(3); Shaw v. State, 557 S.W.2d 305, 306 (Tex. Crim. App. 1977), overruled in part on other grounds by Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh'g). These different ways are not separate burglary offenses, however; they are alternative means of committing the single offense of burglary. Martinez v. State, 269 S.W.3d 777, 782-83 (Tex. App.-Austin 2008, no pet.). When a statute sets forth alternative ways or means that are subject to the same punishment, they may be charged disjunctively. Carlock v. State, 8 S.W.3d 717, 721 (Tex. App.-Waco 1999, pet. ref'd). See Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004) (jury unanimity not required on underlying offense of robbery or aggravated assault in capital murder indictment); White v. State, 890 S.W.2d 69, 72 (Tex. Crim. App. 1994) (jury may be charged in disjunctive on different manner and means of committing offense and conviction will be upheld if evidence supports any method); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (same). In this case, the punishment is the same whether the underlying offense is theft or assault because burglary of a habitation with an underlying offense of either theft or assault is a second-degree felony. See Tex. Penal Code Ann. § 30.02(c)(2), (d) (Vernon 2003). Accordingly, the jury was not required to unanimously agree on either theft or assault and submitting these offenses in the disjunctive was not error. See Martinez, 129 S.W.3d at 103; White, 890 S.W.2d at 72; Kitchens, 823 S.W.2d at 258. We resolve appellant's ninth issue against him. C. Judgment on Theory Not Authorized by Indictment In issue ten, appellant argues that the trial court violated his state and federal due process rights by rendering judgment on an offense under 30.02(a)(1) when the indictment alleged an offense under 30.02(a)(3). He points out that the verdict form authorized a conviction only under 30.02(a)(1) when the offense was charged under 30.02(a)(3). And he contends that 30.02(a)(1) is not a lesser-included offense of the indicted charge-not because theft and assault are not lesser-included offenses of robbery, but because 30.02(a)(1) requires the State to prove intent to commit theft or assault while 30.02(a)(3) requires the State to prove an actual or attempted theft or assault. Although appellant framed his issue as error in rendering judgment on a lesser-included offense, we construe appellant's argument to complain that the trial court erred by rendering judgment on a theory not alleged in the indictment. We agree it was error for the verdict form to authorize a conviction on a theory not alleged in the indictment. See Shaw, 557 S.W.2d at 306; Castillo v. State, 7 S.W.3d 253, 258 (Tex. App.-Austin 1999, pet. ref'd). However, because appellant did not object to the verdict form, he must show that the error was so egregious that it denied him a fair and impartial trial. See Jennings v. State, No. PD-0261-09, 2010 WL 298071, at *1 (Tex. Crim. App. Jan. 27, 2010); Almanza, 686 S.W.2d at 171. In conducting a harm analysis, we consider the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. See Lang, 691 S.W.2d 692; Almanza, 686 S.W.2d 171, 173-74. In this case, evidence was presented on both theories of burglary: intent to commit theft or assault at entry, and actual or attempted theft or assault once inside. We previously discussed the evidence on the second theory. Regarding the first theory, the evidence showed that when appellant knocked on the apartment door and no one opened it, he began to curse and yell for Antesha, threatening to hurt her if she did not open the door and demanding that she give him the debit and Lone Star cards. When Antesha did not open the door, he knocked a hole in the door with a baseball bat and reached in and unlocked the door. After he entered, he assaulted the occupants of the house, took the cards from Antesha, and left. Appellant argues that the State did not present any evidence that the cards did not belong to him. However, the evidence showed that the cards were in Antesha's purse; the debit card was imprinted with her name; the Lone Star card did not have a name; and two witnesses testified that the cards belonged to Antesha. Based on this evidence, the jury could have reasonably inferred that the cards belonged to Antesha and not appellant and that appellant intended to commit theft or assault when he broke into Glenn's apartment. In addition to the evidence that was presented to the jury on the uncharged theory of burglary, that is, evidence that appellant intended to commit theft or assault at entry, both parties argued the two theories of burglary during closing arguments. The State argued that there was no question that appellant intended to break into the apartment and intended to commit robbery. It argued that appellant "used threat of violence . . . from the minute he started banging on the door with that bat until the moment that he left." And defense counsel argued that the State did not carry its burden to prove that appellant committed burglary of a habitation with intent to commit a robbery, with intent to commit a theft, or with intent to commit an assault. Finally, the trial court instructed the jury on both theories:
Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, STEVEN CRAIG BROWN, on or about the 13th day of November, A.D., 2006, in the County of Dallas and State of Texas, did unlawfully, knowingly or intentionally enter a habitation without the effective consent of MARY GLENN, the owner thereof, with the intent to commit a theft or assault, or did then and there commit a theft or assault, you will find the defendant guilty of the offense of burglary of a habitation, as included in the indictment, and you will make no finding in this verdict as to punishment.
. . . .
If you find from the evidence beyond a reasonable doubt that the defendant is guilty of either burglary of a habitation with intent to commit robbery or the actor did commit robbery; or theft or assault but you have a reasonable doubt as to which he is guilty, then you should resolve the doubt in the defendant's favor and find him guilty of the lesser included burglary with intent to commit theft or assault as included in the indictment.(Emphasis added). Having examined the entire record, we conclude that the uncharged theory of burglary (with intent to commit theft or assault) was presented to the jury through evidence and arguments, and the application paragraph of the court's charge authorized the jury to convict under that theory as well as the theory authorized by the indictment. The evidence is overwhelming that appellant committed burglary under either theory. And the jury's guilty verdict suggests that it rejected appellant's defensive theories. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Because the evidence is sufficient to sustain a conviction for burglary under either 30.02(a)(1) or 30.02(a)(3), and both theories were presented to the jury, we conclude that appellant was not harmed by the trial court's error in instructing the jury under 30.02(a)(1) instead of 30.02(a)(3) in the verdict form. We resolve appellant's tenth issue against him.