Opinion
NO. 09-14-00327-CR
05-04-2016
MILTON D. STEPHENSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court Jefferson County, Texas
Trial Cause No. 12-15363
MEMORANDUM OPINION
In three issues, Milton D. Stephenson appeals a jury's verdict in which the jury found Stephenson guilty of burglarizing a habitation. See Tex. Penal Code Ann. § 30.02(a)(1), (c)(2) (West 2011). On appeal, Stephenson argues that (1) the evidence before the jury does not support his conviction; (2) he received ineffective assistance of counsel because his trial attorney failed to file a motion to quash the indictment, which failed to specify whether he committed the burglary by making a full-body entry into the victim's home, and (3) the trial court erred in failing to submit his requested charge on criminal trespass, which he alleges was a lesser-included offense under the facts of the burglary that were proven during his trial. Because Stephenson's issues are without merit for the reasons that we explain below, we affirm the trial court's judgment.
The indictment refers to the appellant as Milton D. Stephenson aka Milton Dae Stephenson aka Milton Stephenson, and the trial court's judgment identifies him as Milton D. Stephenson aka Mad Dog Stephenson.
Background
In 2012, a grand jury indicted Stephenson for entering a habitation owned by J.H. with the intent to commit theft. The indictment contains enhancement counts, which assert that Stephenson had committed four prior sequenced felonies. Based on the enhancement counts, if at least two of the enhancement paragraphs were found by the jury to be true, a trial in the case subjected Stephenson to a potential life sentence. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2015).
To protect the privacy of the complaining witness, we identify him by using the initials "J.H." to conceal his actual name. See Tex. Const. art. I, § 30 (granting crime victims "the right to be treated with fairness and with respect for the victim's dignity and privacy throughout the criminal justice process").
Prior to his trial, the prosecutor moved to amend one of the enhancement paragraphs to correct a date relevant to Stephenson's prior conviction for aggravated robbery. The trial court granted that request.
Although the Legislature amended the penalties for repeat and habitual felony offenders after the date the State alleged that Stephenson committed the crime alleged in the indictment, the changes to the section of the Penal Code cited that concerns enhancing a defendant's sentence are not pertinent to Stephenson's appeal. Therefore, we cite the current version of the Penal Code.
Briefly, the facts proven during the trial regarding the circumstances of the instant case show that shortly after midnight on the evening of October 2, 2012, J.H. was sitting in his dining room working at a computer when he heard a sound that he thought might be a knife or sharp object cutting an aluminum metal screen. Because J.H. thought someone was entering his home, he immediately picked up the phone and called 911. When the police arrived, J.H. and a police officer examined the outside of J.H.'s home, where they found that one of the screens on a door had been cut. After identifying the door where someone appeared to have made preparations to enter the house, J.H. told the officer that he had not given anyone permission to enter his home. At that point, J.H. and the officer heard someone in the garage. During his testimony, J.H. indicated that he believed the screen had been cut so the defendant could gain access to the door so that it could be unlocked.
Although the police ordered Stephenson to leave the house, police ultimately used tear gas in an attempt to get Stephenson to come outside. Approximately six hours after the time Stephenson initially entered the house and negotiations to get him to leave failed, a SWAT team entered J.H.'s home, handcuffed Stephenson, and took him outside the home. One of the SWAT officers indicated that they found Stephenson hiding in a bedroom under a three-foot stack of old newspapers and magazines. J.H. and two of the officers identified Stephenson at trial as the person who had been forcibly removed by SWAT officers from J.H.'s home.
J.H. testified at trial that he did not know Stephenson and that he had never invited him into his home. According to J.H., when Stephenson saw him after being taken into custody, Stephenson said: "'You are alone now.'" J.H. indicated that he took Stephenson's statement as a threat. Although J.H. indicated that he had not identified anything that had been taken the night of the burglary, he assumed that "whoever was in the garage was after tools[,]" because many of his tools were there. Stephenson did not testify during the trial, and no witnesses were called in his defense.
At the conclusion of the guilt-innocence phase of the trial, the jury was asked if Stephenson had entered the habitation with the intent to commit theft. In the charge, the jury was given various instructions, including an instruction that when "[a] person commits an offense if, without the effective consent of the owner, he intentionally enters a habitation and commits or attempts to commit a felony or theft[,]" he commits burglary of a habitation. Under the charge the court submitted, the term "enter" was defined to mean "to intrude any part of the body, or any physical object connected to the body." The jury was instructed that "[a] person commits theft if he unlawfully appropriates property with intent to deprive the owner of property." When the jury returned its verdict, it found Stephenson guilty of the offense of burglary of a habitation, as alleged in the indictment.
During the punishment phase of Stephenson's trial, the State presented various pleadings and judgments showing that Stephenson had been previously convicted of seven crimes. No witnesses testified during the punishment phase of the trial. The jury found that Stephenson had previously been convicted of four prior felonies, as alleged in his indictment, and it assessed Stephenson's punishment at fifty-five years' imprisonment.
The exhibits admitted before the jury reflect that Stephenson had previously been convicted in (1) cause number 143736 in Jefferson County for mischief, (2) cause number 53115 in Jefferson County of burglary of a habitation, (3) in cause number 53611 in Jefferson County of aggravated sexual assault, (4) cause number 54958 in Jefferson County of burglary of a habitation, (5) cause number 04-91144 in Jefferson County of aggravated robbery, (6) cause number 08-02550 in Jefferson County for burglary of a building, and (7) cause number 98-06-00051-CRK in Karnes County of having possessed a deadly weapon in a penal institution.
Standard of Review
In issue one, Stephenson argues the evidence is insufficient to support his conviction for burglarizing J.H.'s home. When the defendant raises a challenge to the sufficiency of the evidence supporting a conviction in his appeal, the evidence from the trial is reviewed on appeal in the light most favorable to the jury's verdict to determine whether the jury could have found, beyond reasonable doubt, that the defendant committed the essential elements of the offense at issue. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). In our review, we are not to substitute our judgment for the conclusions the jury reached based on the evidence they considered in deciding the case; instead, the standard of review requires that we give the jury deference to allow the jury to fully exercise its responsibility to fairly resolve any conflicts that may exist in the testimony, to weigh the evidence that is either favorable or unfavorable to the accused, and to draw reasonable inferences from the facts to reach a conclusion regarding the defendant's guilt. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Issue One Analysis
Stephenson's complaint about the sufficiency of the evidence focuses on the jury's conclusion that he intended to commit a theft when he entered J.H.'s home. Since Stephenson did not testify, and there was no evidence introduced indicating that Stephenson gave a statement to the police following his arrest, the jury was required to infer what Stephenson intended when entering the home based on circumstantial evidence as described by the witnesses that testified during Stephenson's trial.
Because the jury found Stephenson guilty, it apparently inferred from the circumstantial evidence that the State had sufficiently proven the various elements of burglary as it was defined by the trial court in the charge. See Tex. Penal Code Ann. § 30.02(a)(1). Under Texas law, the State was not required to prove that Stephenson actually committed or attempted to commit theft to prove that he was guilty of burglarizing J.H.'s home. See Langs v. State, 183 S.W.3d 680, 686 (Tex. Crim. App. 2006) ("A person charged with burglary under Section 30.02(a)(1) is guilty of that offense the moment that he crosses the threshold of a habitation without consent and with the intent to commit the underlying felony."); Garcia v. State, 571 S.W.2d 896, 899 (Tex. Crim. App. 1978) (noting that the offense of burglary may be complete regardless of whether any theft occurs).
The application paragraph of the charge states:
Now, if you believe from the evidence beyond a reasonable doubt that in Jefferson County, Texas, on or about October 2, 2012, the defendant Milton D. Stephenson did, with the intent to commit theft, enter a habitation owned by [J.H.] without his effective consent, you shall find the defendant guilty of the offense of burglary of a habitation as alleged in the indictment.
Unless you so find, or if you have a reasonable doubt thereof, you shall find the defendant NOT GUILTY.
In his brief, Stephenson acknowledges that the State was not required to prove that he actually committed or accomplished the intended theft to satisfy its burden of showing that he was guilty of committing burglary. Instead, Stephenson suggests that the inference the jury should have made from the circumstances proven at trial regarding his entry into J.H.'s home was that he was not acting rationally and because he was acting in an irrational way, the circumstances do not show that he intended to steal anything from J.H.'s home. According to Stephenson, the testimony of the witnesses suggests that he "was unstable, under the influence of an illegal or abused substance, or otherwise not acting in a normal or rational state of mind." However, none of the testimony admitted during the trial shows that Stephenson took or claimed that he had taken illegal drugs or substances before he entered the home, and none of the testimony indicates that he was found with any drugs when he was arrested. The record also contains no testimony from any witnesses who suggested that Stephenson was mentally ill.
Each of the facts about a case that are admitted during a trial "need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). On appeal, whether the inferences that a jury made in a particular trial were reasonable is determined based on "'the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.'" Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (quoting Hooper, 214 S.W.3d at 16-17). In Stephenson's case, there was evidence showing that Stephenson entered the home, at night, by cutting a screen and removing a window on a door, and that he subsequently refused multiple requests made by police to leave the home. When the police entered the home, they found Stephenson hiding from them, and his conduct that night required police to forcibly remove Stephenson from J.H.'s home. See Gear v. State, 340 S.W.3d 743, 747-48 (Tex. Crim. App. 2011) (holding that evidence showing the defendant ran after he was discovered breaking a window and attempting to enter a home was sufficient to support a conviction for burglary of a habitation even though the defendant testified at trial that he did not break the window or intend to steal anything from the home). The evidence showed that J.H. did not know Stephenson, and that J.H. had never given Stephenson permission to enter his home. Given the circumstances in this case, we conclude the jury could have reasonably inferred from the evidence admitted during the trial that Stephenson entered J.H.'s home with the intent to commit theft. See Mauldin v. State, 628 S.W.2d 793, 795 (Tex. Crim. App. 1982) (holding that the defendant's "entry into the building having been made in the nighttime without the consent of the owner is sufficient to show an intent to commit theft"); Solis v. State, 589 S.W.2d 444, 446 (Tex. Crim. App. 1979) (noting that "an intent to commit theft will be presumed if the attempted entry occurred at night" in a case involving a burglary of a habitation).
We conclude the evidence is sufficient to support Stephenson's conviction for burglarizing J.H.'s home. See Jackson, 443 U.S. at 319 (noting that jurors are allowed to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the facts in reaching its conclusion). We overrule issue one.
Ineffective Assistance
In his second issue, Stephenson argues that he received ineffective assistance of counsel because he failed to file a motion to quash Stephenson's indictment. In support of his ineffective-assistance-of-counsel argument, Stephenson criticizes his trial counsel for failing to file a motion seeking to require the trial court to make the State specify the particulars of whether it would prove the burglary was committed by either a full or a partial body entry into J.H.'s home. Stephenson suggests that had the indictment been more specific regarding the State's theory of the manner he entered the home, the trial court, based on the evidence, would have been required to submit his requested charge on the lesser-included offense of criminal trespass. Stephenson notes that although his attorney requested the trial court charge the jury on criminal trespass, the trial court was not required to honor his request because the indictment on which he went to trial was too general regarding the manner the State would be required to prove that he had entered J.H.'s home. See State v. Meru, 414 S.W.3d 159 (Tex. Crim. App. 2013). In Meru, the Court noted:
In a burglary indictment in which the State does not allege whether the defendant's entry was full or partial, an instruction on criminal trespass as a lesser-included offense would be prohibited.
However, a defendant who committed a full-body entry and wants the opportunity for an instruction on criminal trespass can file a motion to quash the indictment for lack of particularity. This would force the State to re-file the indictment, specifying the type of entry it alleges the defendant committed and allow either party to later request an instruction on criminal trespass.Id. at 164 n.3. We agree with Stephenson that given the Court of Criminal Appeal's decision in Meru and the generality of the indictment in his case regarding the State's theory of his entry into the home, the trial court was not required to honor his request seeking the submission of an issue on criminal trespass. Id.
A two-prong test is used on appeal to resolve ineffective assistance claims. Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Under Strickland's first prong, Stephenson was required to show that his trial attorney performed below the standard that is expected of counsel under an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88; Thompson, 9 S.W.3d at 812. Under that standard, Stephenson must demonstrate that his attorney rendered ineffective assistance based upon a preponderance of the evidence. See Thompson, 9 S.W.3d at 813. If the first Strickland prong is satisfied, the defendant claiming he received ineffective assistance must demonstrate that had his attorney's assistance not been deficient, a reasonable probability exists that the trial's outcome would have been different. See Strickland at 687-88, 694; Thompson, 9 S.W.3d at 812. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Thompson, 9 S.W.3d at 812.
Our review of ineffective assistance claims is highly deferential to trial counsel; generally, we begin with the presumption "that counsel's actions fell within the wide range of reasonable and professional assistance." Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007). When the defendant has filed a motion for new trial alleging a claim of ineffective assistance of counsel, the trial court's denial of the motion is reviewed for abuse of discretion. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). Because an abuse-of-discretion standard applies to such claims, appeals courts will not reverse the trial court's ruling unless the ruling is clearly erroneous and arbitrary. Id. "A trial court abuses its discretion if no reasonable view of the record could support the trial court's ruling." Id. However, claims alleging ineffective assistance of counsel are generally unsuccessful in direct appeals, such as Stephenson's, because the record from the trial court is rarely sufficiently developed to support the claim. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).
The evidence regarding Stephenson's ineffective assistance claim is not sufficiently developed on the record before us. Although Stephenson filed a motion for new trial alleging a global claim of ineffective assistance, he did not specify in his motion that he was claiming that his trial counsel failed to file a motion to quash the indictment because it lacked sufficient particularity about the State's theory of how it would seek to prove that he had entered J.H.'s home. Also, Stephenson did not file any affidavits to support his motion, so the record before us does not include any evidence establishing that Stephenson's trial counsel failed to meet the standards that are required of attorneys in criminal cases. Moreover, Stephenson's motion for new trial does not include the affidavit of trial counsel, so we cannot determine from the motion whether Stephenson's complaint concerns a matter that involved trial strategy. Finally, the trial court did not conduct an evidentiary hearing on Stephenson's motion, so the record does not reflect that trial counsel has ever been provided the opportunity to explain why he did not seek to quash Stephenson's indictment on the basis that it lacked sufficient particulars regarding the State's theory of entry.
"In deciding an ineffective-assistance claim, a reviewing court must analyze the reasonableness of counsel's conduct on the facts of the particular case, viewed at the time of the conduct." Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013). When trial counsel has not provided an explanation for the strategies employed at the defendant's trial, the decisions that trial counsel made are reviewed with great deference. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). Generally, absent an exception that does not apply here, an appellate court cannot conclude that trial counsel's conduct was ineffective when the record before it is silent about why counsel chose a given strategy. Id. (explaining that an exception to the general rule regarding the state of the record exists where trial counsel's conduct was so outrageous that no competent attorney would have engaged in the conduct being complained about on appeal); see also Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Additionally, any Strickland claim must be "'firmly founded in the record' and 'the record must affirmatively demonstrate' the meritorious nature of the claim." Goodspeed, 187 S.W.3d at 392 (quoting Thompson, 9 S.W.3d at 813).
In summary, Stephenson's appeal does not present "the rare case where the record on direct appeal is sufficient to prove that counsel's performance was deficient[.]" Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). On this record, Stephenson has not overcome the strong presumption that he received reasonable professional assistance. See Thompson, 9 S.W.3d at 813-14. We overrule Stephenson's ineffective assistance claim without prejudice to his right to raise his claim in a post-conviction writ. See Goodspeed, 187 S.W.3d at 392; Robinson, 16 S.W.3d at 813 n.7.
Charge Error
In his third issue, Stephenson contends the trial court erred by denying his request to charge the jury on criminal trespass. However, Stephenson has acknowledged that the trial court properly followed the cognate pleadings approach in analyzing whether he was entitled to his request to have the jury charged on his theory that he committed a lesser-included offense. See Meru, 414 S.W.3d at 163, 164 n.3. Stephenson draws no significant distinction between the indictment in his case and the indictment at issue in Meru. Id. at 163 n.1. As an intermediate court, we are required to follow binding precedent in cases decided by the Court of Criminal Appeals. See State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006) ("As an intermediate appellate court, we lack the authority to overrule an opinion of the court of criminal appeals."), aff'd sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007); Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd) ("[A]s an intermediate appellate court, we must follow the binding precedent of the Court of Criminal Appeals."); State v. Stevenson, 993 S.W.2d 857, 867 (Tex. App.—Fort Worth 1999, no pet.) ("Because a decision of the court of criminal appeals is binding precedent, we are compelled to comply with its dictates."); see also Tex. Const. art. V, § 5(a) (providing that in Texas, the Texas Court of Criminal Appeals is the final authority regarding matters of criminal law).
Stephenson's indictment alleges, in pertinent part, that
MILTON D STEPHENSON AKA MILTON DAE STEPHENSON AKA MILTON STEPHENSON, hereafter styled the Defendant, committed an offense[,] hereafter styled the primary offense, on or about the 2ND day of OCTOBER, TWO THOUSAND AND TWELVE, and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas, did then and there with intent to commit theft, enter a habitation owned by [J.H.], hereafter styled the Complainant, without the effective consent of the Complainant[.]
The indictment in Meru's case alleged
that Mark Meru, defendant, on or about November 8, 2011, in Nueces County, Texas, did then and there, with intent to commit theft, enter a habitation, without the effective consent of [A.T.], the owner thereof.State v. Meru, 414 S.W.3d 159, 163 n.1 (Tex. Crim. App. 2013).
Because Meru is controlling authority, we overrule Stephenson's third issue. Having overruled each of Stephenson's issues, the trial court's judgment is affirmed.
AFFIRMED.
/s/_________
HOLLIS HORTON
Justice Submitted on June 23, 2015
Opinion Delivered May 4, 2016
Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ