No. 05-05-00148-CR
Opinion Filed July 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F03-33017-IJ. Affirm.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Joshua Richardson was convicted by a jury of burglary of a habitation enhanced by a prior felony conviction. The court, upon finding the enhancement paragraph true, assessed punishment at confinement for 35 years. In three issues, appellant argues (1) the evidence is factually insufficient to support the verdict, (2) the trial court erred by denying his request for an instruction on the lesser-included offense of criminal trespass, and (3) his counsel rendered ineffective assistance. We affirm the trial court's judgment.
Factual Sufficiency
In his first issue, appellant claims the evidence is factually insufficient to prove he committed burglary of a habitation. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 544 U.S. 950 (2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). Under this review, the jury, 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, 914 (Tex.Crim.App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944 (2001). We defer to the jury's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). Kimberly Williams testified that at approximately 9:00 p.m. on December 7, 2003, she heard footsteps outside. When she looked out the window, she heard the sound of glass shattering and observed a man running from her neighbor's porch and across her yard. She called the police and described the man's clothing as a "bluish dark-colored sweatshirt, maybe a royal or navy-it was a dark color- and what appeared to be jeans." As she was talking to the police dispatcher, she went to her front window to see where the man went and saw a "Blazer-type SUV" drive away. While Williams was still talking to the police dispatcher, she saw the SUV return, as though it had just gone around the block, and stop in front of her neighbor's house. She told the dispatcher, "I can't believe it, it just came back." Williams testified the driver of the SUV got out and "trotted up" her neighbor's driveway and to the porch. She saw him squat down in front of the window, heard glass, "like he was brushing it away," and then the man disappeared inside her neighbor's house. A few minutes later, police officers arrived. Officer David Hickman testified he stayed at the front of the house while his partner went to the rear. As they waited for back-up, Hickman saw a light go on inside the house and immediately go off. He also observed a dark-colored SUV parked in front of the house and testified he believed it was a Bronco. It was later determined to be stolen. Within minutes, three back-up police officers arrived and set up a perimeter around the house. Just as the police prepared to enter the house, appellant opened the front door. Officer Hickman ordered him to show his hands and to come out of the house with his hands up. But appellant leaned back behind the door where the officer could not see what he was doing. Officer Hickman ordered him again to show his hands and to come out with his hands up. Appellant tried to come out, but the screen door was locked. He asked the officer if he could unlock the screen door, and then he walked out of the house onto the porch. Appellant was placed under arrest. Officer Hickman testified they searched the house and no one else was found. Inside, they saw evidence of a burglary. They also found a pair of golf gloves behind the entertainment center by the front door that did not belong to the owner. Officer Hickman testified appellant was wearing a "dark blue shirt or sweatshirt" when he was arrested. While he was being placed under arrest, appellant stated he knew the people who live in the house and that he noticed a possible break-in and just wanted to make sure everyone was okay. Williams testified she never saw the man's face but believed appellant was the same man she had observed enter the house because of his physical build, the clothing, and the vehicle. She estimated approximately ten minutes passed from the time she first heard the glass break until the man was arrested. The owner of the house, David Medlin, testified he did not give appellant permission to enter his home and, in fact, did not even know him. Appellant testified differently. He testified he was at his home, located about 200 or 500 yards away from Medlin's house, watching movies with his wife until about 7:30 p.m. Then he left for a friend's house about six or seven miles away where he stayed and had a few drinks. He drove to his friend's house in a borrowed 1985 Blazer. On the way back home, the Blazer ran out of gas in the vicinity of Medlin's house. He started walking to get help when he observed a man running from the area of Medlin's house. Appellant went onto Medlin's porch, saw the broken window, opened the screen door, which he said was unlocked, saw the front door was ajar, and "hollered, is everybody okay." When he turned around, the police were there and arrested him before back-up officers had set up the perimeter around the house. Appellant testified he never went inside Medlin's house and never drove the Blazer-type vehicle parked in front of Medlin's house. He also denied owning the golf gloves found behind the entertainment center. Appellant told the jury he did not know Medlin and did not make the statement to the police that he knew who lived in the house. Additionally, he testified he was not wearing jeans or a blue sweatshirt. Appellant argues the eyewitness testimony is unreliable because Williams testified she saw a person in a dark sweatshirt and what appeared to be jeans and the evidence showed he was wearing a green shirt and khakis when he was booked in to jail. But in closing argument, the State noted that appellant was first arrested on December 7 and placed in the Grand Prairie jail. The book-in information that showed he wore a green shirt and khakis was when he was booked into the Dallas County jail on December 10, three days later, the inference being that appellant changed clothes between December 7 and December 10. Further, the arresting officer also testified appellant wore a dark shirt or sweatshirt when he was arrested. Appellant also argues the State offered no evidence connecting him to the gloves found in the house, the disturbed condition of the property in the house, or the vehicle parked on the street. But appellant testified he was driving a Blazer that ran out of gas near Medlin's home, and the eyewitness said she saw the man drive off in a Blazer-type SUV. Additionally, Officer Hickman testified appellant was inside when they approached the house and had to unlock the screen door to exit the house. Matters of credibility and conflicts in the evidence fall within the exclusive purview of the jury. See Cain v. State, 958 S.W.2d 404, 408-09 (Tex.Crim.App. 1997); Edwards v. State, 106 S.W.3d 833, 841 (Tex.App.-Dallas 2003, pet. ref'd); Obigbo v. State, 6 S.W.3d 299, 305 (Tex.App.-Dallas 1999, no pet.). We defer to the jury's resolution of those conflicts. See Cain, 958 S.W.2d at 409; Edwards, 106 S.W.3d at 841; Obigbo, 6 S.W.3d at 305. The jury was in the best position to judge the credibility of the witnesses, and we must defer to their evaluation unless the record clearly reveals a different result is appropriate. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the evidence is factually sufficient to support the conviction. We overrule appellant's first issue. Lesser-Included Offense of Criminal Trespass
In his second issue, appellant argues the trial court erred when it denied his request to instruct the jury on the lesser-included offense of criminal trespass because the evidence showed appellant did not enter the habitation and did not intend to commit theft. "Without an entry inside the habitation or an intent to commit theft," appellant argues, "the unlawful intrusion onto the [porch] comprises a mere criminal trespass." We start by determining whether criminal trespass is a lesser-included offense of burglary of a habitation in this case. See Jacob v. State, 892 S.W.2d 905, 907 (Tex.Crim.App. 1995). An offense is a lesser-included offense if it meets one of four requirements. Tex. Code Crim. Proc. Ann. art. 37.09(1)-(4) (Vernon 1981). For our purposes, a lesser-included offense is one that is established by proof of the same or less than all of the facts required to establish the commission of the offense charged. Id. § 37.09(1). In determining whether a charge on a lesser-included offense should have been given, we conduct a two-part analysis. First, we determine whether the lesser-included offense is included within the proof necessary to establish the charged offense; and second, we determine whether there is some evidence in the record that if the defendant is guilty, he is guilty only of the lesser offense. Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App. 1993); Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App. 1986). The offense of burglary of a habitation as charged in the indictment required the State to prove: (1) the defendant, (2) without the effective consent of the owner, (3) entered a habitation, (4) with intent to commit theft. See Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon Supp. 2005). Under the definition of burglary, a person "enters" a habitation when he "intrudes any part of his body" or "any physical object connected with his body" into the habitation. Id. § 30.02(b). Criminal trespass requires the State to show: (1) the defendant, (2) without the effective consent of the owner, (3) entered or remained on or in property, (4) with notice that the entry was forbidden or received notice to depart but failed to do so. Id. § 30.05(a). Under the definition of criminal trespass, "entry" means "the intrusion of the entire body." Id. § 30.05(b)(1). Although criminal trespass can be a lesser-included offense of burglary of a habitation, see Day v. State, 532 S.W.2d 302, 306 (Tex.Crim.App. 1975), the determination is made on a case-by-case basis by looking at (1) the elements of the offense actually charged, (2) the statutory elements of the offense sought as a lesser-included offense, and (3) the facts of the case. See Jacob, 892 S.W.2d at 907-08. If the evidence raises only the issue that defendant is guilty of the offense charged or no offense at all, then the issue of a lesser-included offense is not raised. See Ramos, 865 S.W.2d at 465; Godsey, 719 S.W.2d at 584-85. In making this determination, we review all of the evidence, but we review the evidence that appellant contends raises the lesser-included offense in the "context of the facts." Guzman, 719 S.W.2d at 584. The evidence "cannot be plucked out of the record and examined in a vacuum." Id.; Ramos, 865 S.W.2d at 465. Here, the defense theme throughout trial was that appellant did not commit any offense at all and that he just happened upon a burglary in progress. Appellant testified that after he saw a man running from Medlin's house, he went on the porch and yelled into the house to see if everyone was okay. Appellant repeatedly testified that he never entered Medlin's house. Even when he yelled into the house, he said he "never put no part of my body in that house." The offense charged required entry into the house. Criminal trespass of the porch could not be established by proof of the same or less than all of the facts required to establish commission of the burglary of the habitation, because entry onto the porch is not the same as entry into the house. See Tex. Code Crim. Proc. Ann. art. 37.09; see also Johnson v. State, 665 S.W.2d 554, 556 (Tex.App.-Houston [1st Dist.] 1984, no pet.) (trespass of adjacent private alley not lesser-included offense of burglary of building). In other words, the entry element of burglary of a habitation does not include the entry element of the lesser offense, criminal trespass of property. Johnson, 665 S.W.2d at 556; see Jacob, 892 S.W.2d at 907-08. And proof of entry onto the porch, which could help prove criminal trespass, was not an element of the State's case for burglary of a habitation. Consequently, under the facts of this case, criminal trespass is not a lesser-included offense of burglary of a habitation. The first prong of the test has not been met. But even if it had, the second prong fails. Although not specifically stated in the statute, criminal trespass requires a culpability element of knowingly, intentionally, or recklessly. See Day, 532 S.W.2d at 306. As a result, if appellant innocently trespassed on Medlin's property, he would not have committed a criminal offense. See id.; see also White v. State, 698 S.W.2d 494, 496 (Tex.App.-Corpus Christi 1985, no pet.) (appellant's testimony that he climbed into window thinking it was sister's apartment negated culpable mental state for burglary and criminal trespass and court did not err by refusing to charge on criminal trespass). Appellant repeatedly testified he only approached the porch to see if everyone in the house was okay. This evidence shows that he claimed he did not intentionally, knowingly, or recklessly trespass on to Medlin's property. See Lindsey v. State, 608 S.W.2d 230, 232 (Tex.Crim.App. 1980) (appellant not entitled to instruction on lesser-included offense of criminal trespass because appellant claimed he was only trying to stop burglary in progress); White, 698 S.W.2d at 496. The same testimony that appellant contended disproved the burglary charge also disproved the criminal trespass. See Lindsey, 608 S.W.2d at 232; White, 698 S.W.2d at 496. We conclude criminal trespass was not a lesser-included offense of burglary of a habitation under the facts of this case. But even if it were, viewing all of the evidence in context, we conclude the evidence raised only the issue that appellant was guilty of the offense charged or no offense at all. Accordingly, he was not entitled to an instruction on criminal trespass. We overrule appellant's second issue. Ineffective Assistance of Counsel
In his third issue, appellant argues he received ineffective assistance of counsel because his attorney failed to interview potential witnesses and present their testimony to the jury. He claims this affected his decision whether to testify because to do so would allow the State to impeach him with prior convictions. To prevail on this claim, appellant must prove by a preponderance of the evidence his counsel's performance was deficient and it prejudiced his defense. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1974)). A claim of ineffective assistance of counsel 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. We strongly presume counsel's competence. Weeks v. State, 894 S.W.2d 390, 391 (Tex.App.-Dallas 1994, no pet.). Here, a brief record was made of appellant's complaint about his counsel when the trial court asked appellant whether he intended to testify. Appellant explained that he had asked his attorney to call his wife, boss, and a lawyer on a previous case to testify before he testified because it would make his testimony make more sense. Appellant said his wife would testify about what he was doing prior to the incident and what he was driving that night to show that he was not driving the same vehicle the police found in front of Medlin's house. Counsel responded that he did not plan to call these people because they were character witnesses whose testimony was inadmissible and not relevant at this stage of the proceeding. Counsel stated, "I would ask the-the questions that you would like for me to ask, Mr. Richardson, the State would then object because the question that you want to ask is whether or not you did this. And they don't know whether you did this. All they know is that you said you didn't do this. They are character witnesses; they're not fact witnesses. . . . So I'm not calling them for inadmissible testimony." Even if appellant's wife would have corroborated appellant's testimony that he was watching movies at home and left in a 1985 Blazer, appellant testified he left his house about 7:30 p.m. to see a friend. He said he was on his way home when his vehicle ran out of gas and he was arrested for the burglary. According to his own account of the events that night, appellant was alone when he ran out of gas and walked onto Medlin's porch. Consequently, his wife was not a witness to any of the events that were relevant on the charged offense. And there is nothing in the record to show the other witnesses would have offered any evidence other than character evidence. Based on this record, we conclude appellant failed to show that counsel's performance was deficient or that it prejudiced his defense. We overrule appellant's third issue. Conclusion
We conclude the evidence presented at trial was factually sufficient to support the conviction, the trial court did not err by denying appellant's request for an instruction on criminal trespass, and appellant did not show that he received ineffective assistance of counsel. Having overruled all of appellant's issues, we affirm the trial court's judgment.