Opinion
No. 11-02-00247-CR
July 31, 2003. Do not publish. See TEX.R.APP.P. 47.2(b).
Appeal from Dallas County.
Opinion
The jury found that Paul Pitts was guilty of a felony offense (burglary of a habitation), found that 2 enhancement allegations were "true," and then assessed his punishment at confinement for 35 years. We affirm.
The Indictment
The indictment charged that, on or about October 23, 2001, appellant unlawfully entered the habitation of Vicky West without her consent and with the intent to commit an assault.Points of Error
Appellant presents two points of error. First, he argues that the trial court erred in allowing "prejudicial extraneous evidence." This point refers to proof that West had secured a protective order which prohibited appellant from going within 500 feet of her residence or place of employment. Appellant argues in his other point of error that he was "denied effective assistance of counsel" in violation of U.S. CONST. amend. VI and in violation of TEX. CONST. art. I, § 10.The Evidence
There was no challenge to the sufficiency of the evidence. The State's first witness, Officer Greg Fregeau of the Dallas Police Department, testified that he was sent by the dispatcher to a location in South Oak Cliff on October 23, 2001, at 2:17 a.m. for "a disturbance with known male refusing to leave the location." Officer Fregeau said that the front door of the home had been forced open. Relevant portions of Officer Fregeau's testimony on direct examination by the prosecutor read as shown:Q: Okay. Can you describe to the jury, what did [West] look like?
A: She looked like she had been in some kind of struggle.
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Q: The injuries that you saw on her, you said you noticed some obvious scratches on her neck?
A: She had a fresh scratch. . . . There was blood on it. On the left side of her neck. On the left upper chest [and] behind her right ear. And she also had some braids in her hand that had been pulled out of her head.
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Q: And while she was under that stress or excitement, what did she tell you had happened. [The objection to "hearsay" was overruled.]
A: She told me that she received a phone call from [appellant]. And he wanted to know whose car was in her driveway, and, you know, she said she didn't want to talk to him [and] shortly after that [appellant] was banging on the front door. (Emphasis added)Officer Fregeau identified the photographs which he took that night, and they show the injuries which West received. During his cross-examination, Officer Fregeau said that West declined his offer to call an ambulance and that she was the only person he interviewed at the scene. Appellant left before the officer arrived, and the only other person who was there was a four-year-old boy. Officer Fregeau said that West told him that appellant was the father of her son and that appellant had never lived with them in that town home. The State called only one other witness before resting. West testified that she was 26 years old at the time of trial and that her son was four years old. West testified that she worked for the federal government and that she had a second job with Fidelity Investment Company. West testified that she and appellant "started dating" in June or July of 1996. West said that appellant was abusive, that she had broken up with him "many times," and that she and her son were the only ones living in her town home on October 23, 2001. Relevant portions of her testimony in answer to questions by the prosecutor read as shown:
Q: Did he say anything to you the next time he called you?
A: Yes. He asked me to stop hanging up, that he wanted to talk to me. He wanted to see me. And I told him I didn't want to see him. And he said, well, you must have someone over. And I told him that I do not have anybody over, that it's late, that I did not feel like being bothered, you know, and I would talk to him some other time. So —
Q: So what happened after that?
A: Okay. Then I hung up on him again. He calls back again and he asked me, don't hang up. And I hung up anyway. So after a hour or so had passed . . . I heard a bam, bam, bam, bam, bam, bam. So I jump up out the bed. It frightened me. And I went to the door and it was [appellant].
Q: How did you know it was him?
A: I looked out the peephole, and he . . . was outside cursing. . . . So I told him, I said if he did not leave, I was going to call the police.
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Q: And then what happened?
A: Okay. I was . . . waiting for the police, hoping that the police [would get] there in time so I wouldn't have to do anything. And my son was upstairs screaming. I didn't know what to do. I was just shaking.
So then he kicks in the door. [I pointed my gun at him but] it didn't go off. So he just immediately grabbed me and pinned me down. And I was up against the couch. And he was hitting me, just hitting me.West said that appellant left after he made sure that no one else was there, that the police officer arrived about five minutes later, that her door was messed up, and that she called the maintenance man to board up the door. West said that the police officer took pictures of her and made sure that she had a safe place to stay that night. West said that she had to wear a wig while her hair grew back. She identified the braids of hair which appellant pulled out of her head that night, and they were admitted into evidence. West testified that appellant did not have her permission to come to her home that night and that he had never lived at that location. West also testified that she was given an eviction notice because there was a "zero tolerance" policy at the place where she and her son had been living. During her cross-examination, West said that she had never lived with appellant. West admitted that she pointed her gun at appellant and pulled the trigger, but she said that she aimed low because she did not want to hurt him. There was a discussion in open court, outside the presence of the jury, concerning the admissibility of testimony about the protective order which West secured on April 16, 2001, prohibiting appellant from going within 500 feet of her residence or place of employment. The trial court overruled the objection under TEX.R.EVID. 404(b), finding that this evidence was relevant on appellant's "intent." The trial court also announced that, under TEX.R.EVID. 403, it did not find that the probative value of this testimony was substantially outweighed by the danger of unfair prejudice. After the jury returned to the courtroom, the reporter's record shows West's answers to the following questions by the prosecutor:
Q: [A]t some point did you get a protective order?
A: Yes.
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Q: Okay. And is this a protective order involving Vicky West and [appellant].
A: Yes.
[DEFENSE COUNSEL]: Your Honor, same objection.
THE COURT: I'll sustain the objection. Let's not go into the content of the document without getting it admitted into evidence.
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[PROSECUTOR]: Your Honor, at this time I'd offer . . . the protective order.
[DEFENSE COUNSEL]: Object to improper predicate, hearsay and best evidence.
THE COURT: Sustained as to the predicate.
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Q: [W]ith respect to Cause No. 99CV-990143 —
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: I'll sustain the objection. That's reading from a document not yet admitted into evidence.
Q: Were you at a protective order hearing on April 16th, 2001?
[DEFENSE COUNSEL]: Your Honor, asked and answered.
THE COURT: Sustained.
A: Yes.
[PROSECUTOR]: I'll pass the witness. (Emphasis added)The State rested, and two witnesses testified for appellant. Appellant's mother, Virginia Twilly Pinker, testified that appellant and West were "living together" at the "town home," that appellant would open the gate with a code in order to get to their town home, and that appellant drove West's car "all the time." On cross-examination, appellant's mother agreed that West came to see her after the incident and that West said that appellant had "kicked in the door" and "put his hands on her." Appellant's brother, Joe Freddy Pitts, Jr., testified that he had known West for about five years, that she was his brother's ex-girlfriend, and that she was the mother of his brother's son. This witness testified that appellant was living with West and their son in the town home where the incident occurred, that he had visited his brother at that town home, that his brother had the code to open the gate, and that his brother had a key to the town home. After the two defense witnesses testified, the State called one rebuttal witness. Carol Hinton testified that she is a property manager for Columbia Luxar Townhomes. Hinton authenticated the lease which showed that only West and her son were shown as occupants of the town home. Hinton also said that it was the policy of the town homes that "every one that lives in the unit is supposed to be on the lease." Hinton said that she had never had any problems with West but that West's lease was terminated on the day that appellant broke into her town home because of the "zero tolerance" policy.
Evidence about the Protective Order
The protective order was not introduced into evidence during the guilt/innocence portion of the trial, but West was permitted to testify that she had gotten a protective order "involving" appellant. The trial court did not err in permitting this testimony. It was relevant under Rule 404(b) to show appellant's intent when he broke into the town home and to show his knowledge of the fact that he was not supposed to be there. See, e.g., Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App. 1991). Trial courts are given "great discretion" in their evidentiary rulings, and appellant has not shown an abuse of that discretion. Pena v. State, 102 S.W.3d 450, 453 (Tex.App.-Eastland 2003, no pet'n). The first point of error is overruled.Effective Assistance of Counsel
In discussing an accused defendant's right to effective assistance of counsel under U.S. CONST. amend. VI and TEX. CONST. art. I, § 10, the court said in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App. 1986), that Texas "will follow in full" the standards which were established in Strickland v. Washington, 466 U.S. 668 (1984), "for determining ineffectiveness of counsel and for ascertaining when such ineffectiveness is prejudicial." The court quoted those standards in Hernandez v. State, supra at 55:[T]he proper standard for attorney performance is that of reasonably effective assistance. . . . When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. . . . A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. . . . The court should recognize that counsel is strongly presumed to have rendered adequate assistance and [to have] made all significant decisions in the exercise of reasonable professional judgment.
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The defendant must [also] show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. (Emphasis added)See also and compare Tompkins v. State, 869 S.W.2d 637, 641 (Tex.App.-Eastland), pet'n dism'd, 888 S.W.2d 825 (Tex.Cr.App. 1994). Appellant has not shown ineffective assistance of counsel, nor has he shown "a reasonable probability" that the result of his trial would have been different if his trial counsel had attempted to present testimony that he was acting in "self-defense" (the act or omission alleged in appellant's brief). Appellant's trial counsel had a difficult case. Appellant had assaulted his ex-girlfriend after breaking into her town home. Appellant had actually pulled braids of hair out of her head. The second point of error is overruled.