In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00172-CR ______________________________
LONZELL JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th Judicial District Court Harris County, Texas Trial Court No. 863169
Before Morriss, C.J., Grant and Ross, JJ. Opinion by Justice Ross
O P I N I O N
Lonzell Jones appeals his conviction by a jury for the offense of burglary of a habitation. Jones pled true to two prior felony convictions, and the jury assessed punishment at imprisonment for thirty-eight years.
After reviewing the record and related law, Jones' attorney concludes the appeal is frivolous and without merit. Jones' appellate counsel filed an appropriate brief with this Court, which summarized pretrial and trial activities. After a detailed account of the proceedings, counsel concludes that, in his professional judgment, the record fails to contain any arguable error. This meets the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel served a copy of his brief on Jones, informed Jones the record was available to him, and informed him of his right to file a response.
Jones filed a response pro se, in which he alleges three points of error: 1) the evidence is legally insufficient to support the conviction; 2) David Medina, the victim, should not have testified because he had a prior felony conviction and lacked credibility; and 3) ineffective assistance of trial counsel.
On December 8, 2000, Medina resided in an apartment with two other people. Anthony Parsons lived in another apartment in the same building. On December 8, at approximately 4:00 p.m., Parsons heard the sound of a window breaking. He stepped outside and saw someone crawling through the front window of Medina's apartment. Because he could not get a good look at the person, Parsons at first thought it was one of the three people who resided there. However, Parsons later saw Jones exit the apartment and knew that Jones was not one of the three people who lived in that apartment.
Medina testified he and a friend arrived at Medina's apartment around 4:00 p.m. He noticed the security gate was open and saw that the front window of his apartment was broken. Medina heard a noise coming from inside the apartment, and then the door opened and Jones came out. Medina and his friend detained Jones and called the police. When Medina entered the apartment, he observed items from the apartment (some packed in pillowcases) placed near the front door and saw that the apartment was in disarray. Medina and his friend kept Jones there until the police arrived and arrested him. Medina testified he had a greater right to possession of the apartment than Jones.
In his first point of error, Jones contends the evidence is legally insufficient to support the conviction for burglary of a habitation. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We accord great deference "to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319). We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution. Id. at n.13 (citing Jackson, 443 U.S. at 326). In our review, we determine only whether "any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt." King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (citing Jackson, 443 U.S. at 319).
To support the conviction, the evidence must support the elements of burglary of a habitation. A person commits the offense of burglary of a habitation if, without the effective consent of the owner, the person enters a habitation with intent to commit a felony, theft, or an assault. Tex. Pen. Code Ann. § 30.02 (Vernon Supp. 2002). The indictment in this case charged Jones with entering Medina's apartment with intent to commit theft. Medina and Juan Guzman both testified that they were tenants of the apartment and that they did not give consent to Jones to enter the apartment. Medina testified he found the front window broken, and Parsons testified he saw someone enter the apartment through the window and then saw Jones open the door shortly before Medina arrived. Medina and Guzman both testified they had a greater right to possession of the apartment and property therein than Jones. When the owner of a burglarized premises testifies he did not give the defendant permission to enter the premises and that he did not give anyone permission to take property from the premises, this satisfactorily proves the owner's lack of consent to the entering and the taking. Anderson v. State, 481 S.W.2d 810, 811 (Tex. Crim. App. 1972). The evidence is clearly legally sufficient to support the jury's finding that Jones entered without the effective consent of the owner.
Jones specifically complains the evidence is legally insufficient to prove he had the requisite intent required in burglary of a habitation. In a burglary prosecution, the specific intent to commit theft may be inferred from the circumstances. Simmons v. State, 590 S.W.2d 137, 138 (Tex. Crim. App. [Panel Op.] 1979); Martin v. State, 148 Tex. Crim. 232, 186 S.W.2d 80, 80 (1945). The jury is empowered to determine the issue of intent. Moreno v. State, 702 S.W.2d 636, 641 (Tex. Crim. App. 1986). Jones need not have removed the property from the apartment in order for the State to prove intent to commit theft. See Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App. [Panel Op.] 1981); Phillips v. State, 538 S.W.2d 116, 117-18 (Tex. Crim. App. 1976); Gutierrez v. State, 666 S.W.2d 248, 250 (Tex. App.-Dallas 1984, pet. ref'd). When Medina arrived at his apartment, he found Jones inside the apartment without consent, belongings gathered in pillowcases near the front door, and the apartment in disarray. There is more than a scintilla of evidence that Jones had the requisite intent to commit a theft after having broken into Medina's apartment. We overrule Jones' first point of error.
In his second point of error, Jones contends that, because Medina admitted to a six- or seven-year-old conviction for intoxicated assault and is still on community supervision, he "shouldn't have been allowed to testify at trial," citing Tex. R. Evid. 609(a). In his testimony, Medina divulged his prior conviction on his own, without objection. Without an objection, Jones has waived this point of error on appeal. Tex. R. App. P. 33.1. However, there was no need to object to Medina's testimony.
Under Rule 609, a party may attack the credibility of a witness with a prior conviction if the crime was a felony or involved moral turpitude, its probative value is not outweighed by its prejudicial effect, and it is not too remote. Further, under Tex. R. Evid. 601 "[e]very person is competent to be a witness except as otherwise provided . . . ." Prior criminal history is not generally a ground to preclude testimony under the rules.
Rule 609(a) does not prevent the witness from testifying. Rather, it is used to call into question the credibility of the witness. The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We overrule Jones' second point of error.
In Jones' final point of error, he complains of ineffective assistance of counsel at trial. Specifically, Jones complains of his counsel's failure to file a motion to quash the indictment and counsel's failure to call him as a witness.
The well-known two-pronged standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), is utilized when reviewing claims of ineffective assistance of counsel. The reviewing court must first decide whether trial counsel's representation fell below an objective standard of reasonableness under prevailing professional norms. Id. at 687. If counsel's performance was deficient, the reviewing court must decide whether there is a "reasonable probability" the result of the trial would have been different but for counsel's deficient performance. Id. A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Id. at 694. Absent both showings, an appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. at 687; Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993); Boyd v. State, 811 S.W.2d 105, 109 (Tex. Crim. App. 1991).
The defendant bears the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998); Riascos v. State, 792 S.W.2d 754, 758 (Tex. App.-Houston [14th Dist.] 1990, pet. ref'd). Allegations of ineffective assistance of counsel will be sustained only if they are firmly founded and affirmatively demonstrated in the appellate record. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996); see Jimenez v. State, 804 S.W.2d 334, 338 (Tex. App.-San Antonio 1991, pet. ref'd). When handed the task of determining the validity of a defendant's claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984).
Generally, the trial record will not be sufficient to establish an ineffective assistance of counsel claim. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). This is true because, normally, a silent record cannot rebut the presumption that counsel's performance was the result of sound or reasonable trial strategy. Strickland, 466 U.S. at 688; see Stafford, 813 S.W.2d at 508. However, a defendant may rebut the presumption by providing a record from which the appellate court may determine that trial counsel's conduct was not based on a strategic or tactical decision. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). This record may be provided via a hearing on a motion for new trial. Robinson v. State, 16 S.W.3d 808, 813 (Tex. Crim. App. 2000). There was no such hearing in the instant case.
Jones' brief states, without elaboration, that trial counsel provided ineffective assistance by failing to file a motion to quash the indictment. Jones directs us to no flaws in the indictment requiring a motion to quash, and our review of the indictment reveals no deficiencies. The record does not reflect any reason for counsel to have filed a motion to quash the indictment; therefore, we are unable to hold that counsel's failure to file a motion to quash violates the first prong of Strickland.
Jones also complains counsel failed to call him as a witness to testify on his own behalf. "Every criminal defendant is privileged to testify in his own defense, or to refuse to do so." Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). "The choice of whether to testify in one's own defense . . . is an exercise of the constitutional privilege." Id., 401 U.S. at 230 (Brennan, J., dissenting); see Nelson v. State, 765 S.W.2d 401, 404 (Tex. Crim. App. 1989). Ultimately, the decision of whether to testify lies in the hands of the defendant, not the defendant's counsel. Medina v. State, 962 S.W.2d 83, 87 (Tex. App.-Houston [1st Dist.] 1997, pet. ref'd); Hubbard v. State, 770 S.W.2d 31, 43 (Tex. App.-Dallas 1989, pet. ref'd); see Thompson v. Wainwright, 787 F.2d 1447, 1452 (11th Cir. 1986).
There is no evidence in the record showing what advice, if any, Jones' counsel gave him regarding waiver of his Fifth Amendment right. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland, 928 S.W.2d at 500. The record in this case does not reveal ineffective assistance of counsel.
Even if Jones' attorney recommended that he not testify, we cannot hold that such recommendation would have violated the first prong of Strickland. The State gave notice to Jones' counsel that Jones had seven prior felony convictions since 1989. If Jones had testified, the State could have used these prior convictions to attack Jones' credibility under Tex. R. Evid. 609. We cannot say, given such a prior criminal history, that trial counsel would be ineffective for advising a defendant not to testify. We overrule Jones' final point of error.
We affirm the judgment.
Donald R. Ross
Justice
Date Submitted: July 10, 2002
Date Decided: July 17, 2002
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00037-CR
______________________________
IN RE:
JOHN WAYNE CHARLESTON
Original Mandamus Proceeding
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
John Wayne Charleston has asked the Fifth Judicial District Court to convene a court of inquiry. See generally Tex. Code Crim. Proc. Ann. art. 52.01 (Vernon 2006). Because Charlestons initial request, filed in October 2008, has not been acted on, he petitions this Court for mandamus relief, to direct the trial court to rule on his request.[1]
Mandamus issues only when the mandamus record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 83940 (Tex. 1992).
Consideration of a motion that is properly filed and before the trial court is a ministerial act, and mandamus may issue to compel the trial court to act. See Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992). A trial court is required to consider and rule on a properly filed and pending motion within a reasonable time. See In re Shaw, 175 S.W.3d 901, 904 (Tex. App.Texarkana 2005, orig. proceeding); In re Tasby, 40 S.W.3d 190, 191 (Tex. App.Texarkana 2001, orig. proceeding). In proper cases, mandamus may issue to compel the trial court to act. In re Kleven, 100 S.W.3d 643, 644 (Tex. App.Texarkana 2003, orig. proceeding); Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex. App.San Antonio 1997, orig. proceeding); see also Marshall, 829 S.W.2d at 158 (trial court abuses discretion by refusing to conduct hearing and render decision on motion); Chiles v. Schuble, 788 S.W.2d 205, 207 (Tex. App.Houston [14th Dist.] 1990, orig. proceeding) (mandamus an appropriate remedy to require trial court to hold hearing and exercise discretion).[2]
Determining what time period is reasonable is not subject to exact formulation. Whether the trial court has acted within a reasonable period of time depends on the circumstances of the case. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.Houston [1st Dist.] 1992, orig. proceeding). Moreover, no bright line separates a reasonable time period from an unreasonable one. In re Keeter, 134 S.W.3d 250, 253 (Tex. App.Waco 2003, orig. proceeding); In re Chavez, 62 S.W.3d 225, 228 (Tex. App.Amarillo 2001, orig. proceeding). What is a reasonable time to rule is dependent on a myriad of criteria, not the least of which is the trial courts actual knowledge of the motion, its overt refusal to act on same, the state of the courts docket, and the existence of other judicial and administrative matters which must be addressed first. Ex parte Bates, 65 S.W.3d 133 (Tex. App.Amarillo 2001, orig. proceeding). The trial courts inherent power to control its own docket must also be factored into the mix. See Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 69495 (Tex. App.Amarillo 1998, pet. denied) (court has inherent authority to control its own docket).
From the record before us, it appears that, on October 24, 2008, Charleston filed his request that a court of inquiry be convened.[3] On or about June 16, 2009, he wrote the trial court asking the status of his request; on December 15, 2009, he sent a document to the trial court asking for a hearing and ruling on his complaint seeking a court of inquiry. On January 10, 2010, he filed a motion with the trial court asking the trial court ORDER CONVENED THE PROCEEDINGS OF A COURT OF INQUIRY.
Since Charleston filed his petition to this Court, we have received notice that the trial judge has recused himself, citing his involvement as Charlestons appellate counsel following Charlestons conviction. We are also advised that a visiting judge has since been appointed and that the visiting judge has scheduled a hearing for May 26, 2010, to address the issue of Charlestons standing to request a court of inquiry. Since it appears that the visiting judge is proceeding on Charlestons motion below, we cannot say the visiting judge is acting at an unreasonable pace.[4] We do not grant mandamus relief when it would be of no practical effect, or if for any reason it would be useless or unavailing. Dow Chem. Co. v. Garcia, 909 S.W.2d 503, 505 (Tex. 1995) (quoting Holcombe v. Fowler, 118 Tex. 42, 9 S.W.2d 1028 (1928)).
We deny Charlestons petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: May 11, 2010
Date Decided: May 12, 2010
Do Not Publish
[1]Charlestons prayer, at the conclusion of his petition for mandamus relief, asks us to ISSUE A WRIT OF MANDAMUS COMPELLING A STATE INTEREST TEST AND A DECLARATORY JUDGMENT AGAINST THE RESPONDENT DECLARING THAT THE RESPONDENT HAS VIOLATED THE RELATORS CONSTITUTIONAL RIGHTS UNDER THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE FOURTEENTH[] AND SET ORDER RESPONDENT IMPLY [sic] TO ART. 52[.01]. From the text of his petition, though, we infer that he seeks to compel the trial court to rule on his request for a court of inquiry.
[2]While we have jurisdiction to direct the trial court to make a decision, we may not tell the court what that decision should be. Crofts v. Court of Civil Appeals, 362 S.W.2d 101, 105 (Tex. 1962); State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 n.3 (Tex. Crim. App. 2001); ODonniley v. Golden, 860 S.W.2d 267, 26970 (Tex. App.Tyler 1993, orig. proceeding).
[3]Whether to convene a court of inquiry is a discretionary matter:
When a judge of any district court of this state, acting in his capacity as magistrate, has probable cause to believe that an offense has been committed against the laws of this state, he may request that the presiding judge of the administrative judicial district appoint a district judge to commence a Court of Inquiry.
Tex. Code Crim. Proc. Ann. art. 52.01(a).
[4]We point out that, while Charlestons initial motion to the trial court was filed almost eighteen months ago, only in December 2009, fourteen months after filing his motion, did Charleston ask the trial court to have a hearing and rule on the motion.