No. 05-06-00714-CR
Opinion issued April 24, 2007. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the County Court at Law No. 1 Collin County, Texas, Trial Court Cause No. 001-85478-04 .
Before Justices WHITTINGTON, FRANCIS, and LANG. Opinion By Justice WHITTINGTON.
MARK WHITTINGTON, Justice.
Frank Mohdi appeals his conviction for criminal mischief to property involving a pecuniary loss of $500 or more but less than $1500. See Tex. Pen. Code Ann. § 28.03 (Vernon Supp. 2006). After finding appellant guilty, the trial judge assessed punishment at 180 days' confinement, probated for two years, and a $2000 fine. In two issues, appellant claims the evidence is legally insufficient to support his conviction and that he received ineffective assistance of counsel at trial. We affirm the trial court's judgment.
Legal Sufficiency of the Evidence
In his first issue, appellant contends the evidence is legally insufficient to support his conviction. Under this issue, appellant claims we must reverse his conviction and order a judgment of acquittal because the State failed to prove the fair market value of the property destroyed. When reviewing a challenge to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003). The factfinder, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). A person commits the offense of criminal mischief if, without the effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner. See Tex. Pen. Code Ann. § 28.03(a)(1). The offense is a Class A misdemeanor if the amount of pecuniary loss is $500 or more but less than $1500. See Tex. Pen. Code Ann. § 28.03(b)(3)(A)(i). The amount of pecuniary loss, if the property is destroyed, is the fair market value of the property at the time and place of destruction or, if that cannot be ascertained, the cost of replacing the property within a reasonable time after the destruction. Tex. Pen. Code Ann. § 28.06(a) (Vernon 2003). Although appellant contends the State failed to establish the pecuniary value of the property at the time it was destroyed, we cannot agree. At trial, Fred Moyini testified he owned and drove a 2003 Ford Explorer with Michelin truck tires. On the morning of January 31, 2004, he discovered all four tires on his Ford Explorer had been slashed. Moyini had driven the vehicle the previous day, and the tires had not been flat. He testified the tires were not repairable and had to be discarded because each had a one-inch gash on the side wall. Moyini testified the retail value of the Michelin tires on his truck was between $150 to $160 each. He later testified new tires cost him approximately $600. Moyini's unobjected to testimony is more than a scintilla of evidence that the four existing tires on his truck were destroyed and that the value of those tires exceeded $500. In reaching this conclusion, we reject appellant's reliance on the court of criminal appeals opinion in Deas v. State, 752 S.W.2d 573 (Tex.Crim.App. 1988). In Deas, the defendant backed a pickup truck into a garage door, creating an opening large enough for a person to step into the garage. The garage door was replaced by the owner at a cost of $590. At trial, Deas was convicted of criminal mischief, and the court of appeals affirmed his conviction. The Texas Court of Criminal Appeals reversed his conviction because "the evidence wholly fails to show the property was destroyed as distinguished from damaged." Deas, 752 S.W.2d at 575. The Court held that, "[f]or this reason alone, reversal is required." Deas, 752 S.W.2d at 575. In contrast, Moyini testified in this case without objection that each tire was slashed, they were "not repairable," and they "had to be discarded." This evidence establishes the property was destroyed. Deas is also distinguishable because the garage door owner specifically testified he did not know what the fair market value of his garage door was at the time of the incident. In this case, there was no such testimony from Moyini. Because we find Deas distinguishable, we reject appellant's reliance on it. After viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found the elements of the offense beyond a reasonable doubt, including that the property destroyed was valued at $500 or more but less than $1500. Therefore, the evidence is legally sufficient to support appellant's conviction for criminal mischief in the amount of $500 or more but less than $1500. We overrule appellant's first issue. Ineffective Assistance of Counsel
In his second issue, appellant complains he received ineffective assistance of counsel at trial. Appellant argues trial counsel failed to adequately investigate the case or properly prepare for an alibi witness's testimony. We examine ineffective assistance of counsel claims under well-established standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Appellant bears the burden to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson, 9 S.W.3d at 812. We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander, 101 S.W.3d at 110-11; Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Consequently, an application for writ of habeas corpus is generally the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110. Although appellant filed a motion for new trial, the complaint raised in his motion was that the "verdict is contrary to the law and the evidence." His motion did not allege he received ineffective assistance of counsel at trial. There was no hearing on the motion for new trial. As was the case in Thompson, the record provides no discussion of trial counsel's purported errors. It contains no explanation of the motivation behind counsel's decision to question a defense witness about the complaining witness's relationship with appellant. Nor does it establish what counsel did to prepare for trial or to what extent counsel investigated the facts of the case. Thus, contrary to appellant's claims, this case is not one in which the trial record contains all the information that we need to make a decision. Andrews v. State, 159 S.W.3d 98, 103 (Tex.Crim.App. 2005). Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim."); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in particular manner). We overrule appellant's second issue. We affirm the trial court's judgment.