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Opinion filed November 1, 2007
In The
Eleventh Court of Appeals
____________
No. 11-05-00358-CR
__________
CATHERINE MARSTON, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 331st District Court
Travis County, Texas
Trial Court Cause No. D-1-DC-2005-300053
O P I N I O N
Catherine Marston was charged by indictment with one count of burglary of a habitation and one count of violation of a protective order. The jury convicted her of both offenses and assessed punishment at confinement for ten years on each count. We affirm.
Issues on Appeal
Appellant has briefed eleven issues for appellate review. In the first three issues, she challenges the sufficiency of the evidence in support of her conviction for violating a protective order. Appellant specifically contends that the evidence is legally and factually insufficient and that a directed verdict should have been granted because the evidence failed to show that her acts were committed in furtherance of stalking. In the next three issues, appellant challenges the sufficiency of the evidence with respect to the burglary offense. She specifically contends that the evidence is legally and factually insufficient and that a directed verdict should have been granted because the evidence failed to show that she possessed the requisite intent to commit stalking when she entered the habitation. In her seventh issue, appellant complains that the jury charge enabled a verdict that was less than unanimous. In her eighth issue, appellant asserts that trial counsel was ineffective for failing to object to the jury charge. In the ninth issue, appellant complains that the trial court refused to give a charge on the lesser-included offense of criminal trespass. In the tenth issue, appellant asserts that the trial court erred in allowing expert testimony on the legal interpretation of what constitutes Afollowing@ as used in the stalking statute. In her final issue, appellant complains of the trial court=s refusal to redact the underlying protective order before admitting it into evidence.
Sufficiency of the Evidence
Standards of Review
In order to determine if the evidence is legally sufficient and whether the trial court erred in denying appellant=s motion for directed verdict, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we must determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. We must also give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 8-9.
Evidence Presented
The record in this case shows that appellant and the complainant, Tom Labinski, dated and then lived together from June 2000 to November 2001. Labinski obtained a restraining order against appellant in July 2004, effective until July 2006. The restraining order forbade appellant from coming within 200 yards of Labinski=s house, from calling him at home or work, and from contacting Labinski=s family members.
Appellant telephoned Labinski=s home several times during the early morning hours on October 13, 2004. She also called and left messages on his voicemail at work on December 7, 2004, and on December 8, 2004. In one voicemail, appellant stated that Labinski was going to jail for a long time. In another, appellant used a pseudo Spanish accent and called Labinski a liar and a batterer or murderer.
Appellant also went to Labinski=s house on the afternoon of December 8, 2004. Labinski testified that he was home that afternoon and heard the doorbell ring. He did not see anybody at the door, but he saw a cab parked out front. The cab left. About thirty minutes later, the doorbell rang again. Again, Labinski saw a cab parked out front, so he went into his garage to get a better look but still could not see anyone out front. Labinski then heard scraping noises and saw a crowbar being used to pry open a screen. Labinski quickly pulled up the blinds and saw a dark slender man standing outside. The man jumped back startled and said, A[W]hoa, somebody is in there.@ Then Labinski looked over and saw appellant standing to the man=s left. Appellant turned and ran, and the man followed her. They got into the cab and sped off. Labinski called 911 and took a picture of the cab leaving. A dark green pickup pulled up right after the cab left, and somebody rang the doorbell again. Labinski testified that he was Avery frightened@ during this incident.
A few days later, on the afternoon of December 13, 2004, Labinski=s neighbor, Ruth Godine, noticed two Pop-A-Lock trucks parked at Labinski=s house. Thinking this was strange because Labinski had been home earlier that day, Godine walked over to check on things. She saw appellant standing near the front door with a Pop-A-Lock employee and asked appellant if she was supposed to be there. Appellant said she was. Godine knew that appellant and Labinski had had problems, so Godine went around the corner to seek help from another neighbor, Jamie Baird. Baird and Labinski were friends and had been house mates. Godine also called 911.
Baird, who had a key to Labinski=s house, ran across to Labinski=s and went inside. Baird was aware of the protective order and knew that appellant was not supposed to be at Labinski=s house. When he went inside, Baird noticed appellant=s dog in the living room and eventually found appellant hiding in a closet. Baird ordered appellant to leave. She went into the living room, got her backpack, and headed outside. Baird testified that he knew about appellant=s history of confrontations, so he waited until she was outside and then he caught up to her and Atook her to the ground.@ Baird held appellant down until the police arrived.
When Officer Joseph M. Hernandez arrived at Labinski=s residence, he saw Baird holding appellant down and trying to restrain her. Officer Hernandez placed appellant in handcuffs. He testified that appellant was irate and that some of her answers to simple questions made no sense. Appellant also gave a false name. Officer Hernandez found a box containing handcuffs in appellant=s backpack, but the handcuff keys were not in the box. Because he was concerned that appellant had a key that she could use to unlock the handcuffs that had been placed on her, Officer Hernandez requested that a female officer frisk appellant. The handcuff keys were found in appellant=s pocket.
A Pop-A-Lock employee confirmed that he had been called to Labinski=s residence and that he and another Pop-A-Lock employee were met there by appellant, who came walking up with a dog. Appellant showed them her driver=s license, which indicated that she lived at that address. They opened the front door for her. One of the Pop-A-Lock employees testified that he drove a green pickup, that he had been called to that address on a previous day, and that a cab left as he was pulling up to the residence.
Stalking as Element of Offenses
Both offenses in this case involve the offense of stalking.[1] In her sufficiency issues, appellant challenges the element involving stalking. Appellant was charged with and convicted of burglary of a habitation with the Aintent to commit stalking.@ Appellant was also charged with and convicted of violating the protective order by committing acts in furtherance of the offense of stalking. See Tex. Penal Code Ann. ' 25.07 (Vernon Supp. 2006). The alleged acts in furtherance of stalking included the October 13 phone calls, the December 7 phone call, the December 8 phone call, and the December 8 attempt to enter the house.
With respect to the burglary offense, a completed offense of stalking need not have been proved. All that was required was that appellant entered the habitation with the intent to commit the offense of stalking. The evidence of appellant=s repeated phone calls despite the protective order, the content of those calls, and her previous attempt to break into Labinski=s home are sufficient to show that appellant entered Labinski=s home with the intent to commit stalking. We hold, therefore, that the evidence is both legally and factually sufficient to support appellant=s conviction for burglary of a habitation. The fourth, fifth, and sixth issues are overruled.
With respect to appellant=s conviction for violating a protective order, we note that appellant was charged pursuant to Section 25.07(a) with committing acts Ain furtherance of@ the offense of stalking. The offense of violation of a protective order is a Class A misdemeanor unless the State shows that the defendant has previously been convicted two or more times for violating a protective order or that the defendant Aviolated the protective order by committing an assault or the offense of stalking@ B in which case the offense is a felony of the third degree. Section 25.07(g). The jury in this case was instructed to find appellant guilty of the felony offense of violation of a protective order if it found that appellant Adid commit any two or more of the following offenses [four separate stalking allegations relating to the October 13 phone calls, the December 7 phone call, the December 8 phone call, and the December 8 attempt to enter the house] as alleged in Count II.@ The jury=s verdict and the judgment show that appellant was convicted of the third-degree felony of violation of a protective order. Thus, to uphold appellant=s felony conviction for violating the protective order, we must determine whether the evidence is sufficient to show that appellant committed the offense of stalking, not just acts Ain furtherance of@ stalking as argued by the State.
The record in this case shows that, in violation of a protective order, appellant telephoned Labinski=s home and office as alleged and that she attempted to gain entry into his home as alleged. There was also evidence showing that appellant=s December 7 phone call made Labinski Afearful,@ that Labinski was Aafraid@ after receiving the phone call from appellant on December 8, and that he was Avery frightened@ during the incident in which appellant tried to break into his house. Appellant=s knowledge that Labinski would regard her actions as threatening bodily injury or death can be inferred from the history of confrontations alluded to by Baird and from the existence of a protective order that was issued because Labinski had been the victim of family violence committed by appellant and because appellant posed a threat to the physical safety of Labinski. Furthermore, the circumstances as shown by the evidence are sufficient to show that a reasonable person under these circumstances would have feared bodily injury or death. Consequently, we hold that the evidence is both legally and factually sufficient to support appellant=s conviction for the felony offense of violating a protective order. Appellant=s first, second, and third issues are overruled.
Jury Charge B Unanimous Verdict
In her seventh issue, appellant contends that the jury charge enabled a verdict that was less than unanimous with respect to the offense of violation of a protective order. The trial court instructed the jury to find appellant guilty of the felony offense of violation of a protective order if it found that appellant Adid commit any two or more of the following offenses as alleged in Count II.@ The Afollowing offenses@ were set out in the next four paragraphs of the jury charge; each paragraph required the jury to find that appellant violated the terms of the protective order by:
[I]ntentionally or knowingly committing acts in furtherance of an offense of Stalking [as previously defined in the charge] under Section 42.072 against Tom Labinski, to-wit: did then and there intentionally and knowingly engage in conduct directed specifically toward Tom Labinski that the defendant knew or reasonably believed Tom Labinski would regard as threatening bodily injury or death to Tom Labinski, to-wit: by . . . [conduct including telephoning or attempting to gain entry], and said conduct would cause a reasonable person to fear and did cause Tom Labinski to fear bodily injury or death.
The conduct in the first paragraph was telephoning Labinski=s residence on October 13, 2004. In the second and third paragraphs, the conduct was telephoning Labinski=s work place on December 7 and December 8, 2004, respectively. In the fourth paragraph, the conduct was attempting to gain entry to Labinski=s residence on December 8, 2004. Appellant asserts that, because the jurors may not have agreed on which two of the four Aoffenses@ appellant committed, the verdict may not have been unanimous.
A jury verdict in a felony case is required to be unanimous under both the constitution and statutory law of Texas. Tex. Const. art. V, ' 13; Tex. Code Crim. Proc. Ann. art. 36.29(a) (Vernon 2006); Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App.), cert. denied, 127 S. Ct. 386 (2006); Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). A unanimous jury verdict Aensures that the jury agrees on the factual elements underlying an offense,@ which requires Amore than mere agreement on a violation of a statute.@ Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000). The jury must unanimously agree on the essential elements of the offense but not necessarily on the alternate modes or means of committing that offense. See Jefferson, 189 S.W.3d at 311. A trial court may submit a disjunctive jury charge and obtain a general verdict where the alternate theories involve the commission of the Asame offense.@ Francis, 36 S.W.3d at 124; Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). However, because of the possibility of a non-unanimous jury verdict, Aseparate offenses@ may not be submitted to the jury in the disjunctive without an instruction requiring unanimity for each of the separate offenses. Ngo, 175 S.W.3d at 749; Francis, 36 S.W.3d at 124-25. Thus, we must determine whether the jury charge in this case merely charged alternate theories of committing the same offense or whether the jury charge included separate offenses charged disjunctively without a unanimity requirement.
Adhering to the reasoning of the court in Jefferson and the decision in Kitchens, we hold that the particular conduct in this case was not an essential element of the offense about which the jury must have unanimously agreed. In Jefferson, the jury charge allowed a conviction for injury to a child if the jurors found that the defendant struck the victim with his foot, caused the victim=s head to strike an unknown object, failed to intercede or stop the physical abuse of the victim by her mother, Aor@ failed to provide proper medical care for the victim. 189 S.W.3d at 309. The jury charge did not require that the jurors unanimously agree upon which act or omission was committed by the defendant. The Jefferson court determined that the jury was not required to unanimously agree on what act or omission the defendant committed because the particular act or omission was not a separate criminal offense but, rather, a means of committing the conduct element of the offense of injury to a child. Id. at 312-13.
In Kitchens, the court held that alternate theories of committing the same offense may be charged in the disjunctive without requiring the jury to agree unanimously. 823 S.W.2d at 257-58. The court in Kitchens upheld a single application paragraph that allowed the jury to convict the defendant of capital murder even though some jurors may have found that the murder was committed in the course of sexual assault while others may have found that the murder was committed in the course of robbery. Id.
The particular conduct or acts committed in this case, whether phone calls on various dates or an attempt to enter Labinski=s residence, were merely alternate means of committing the conduct element of the offense; they were not separate criminal offenses. Thus, the jury charge in this case was not erroneous. Cf. Ngo, 175 S.W.3d 738 (finding error where separate criminal acts of credit card abuse were submitted disjunctively without requiring unanimous agreement as to which criminal act was committed). Appellant=s seventh issue is overruled.
Effective Assistance of Counsel
In her eighth issue, appellant contends that trial counsel was ineffective for failing to object that the jury charge did not require a unanimous verdict as to the violation of a protective order. In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). As discussed above, the jury charge was not erroneous; therefore, trial counsel=s failure to object was not unreasonable. We hold that appellant has not shown that trial counsel=s representation fell below an objective standard of reasonableness or that the result would have been different if trial counsel had objected to the jury charge. Appellant=s eighth issue is overruled.
Lesser Included Offense
In her ninth issue, appellant contends that the trial court erred in refusing to include in the jury charge the lesser included offense of criminal trespass. Appellant requested that a charge of criminal trespass of a habitation be given as a lesser included offense of burglary of a habitation. A charge on a lesser included offense is required if (1) the statutory elements of the lesser included offense are included within the proof necessary to establish the offense as charged in the indictment and (2) there is some evidence that would permit a rational jury to find that, if the accused is guilty, he is guilty of only the lesser offense. Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007); Rousseau v. State, 855 S.W.2d 666 (Tex. Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981). An offense is a lesser included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the charged offense; (2) it differs from the offense charged only with respect to the seriousness of the injury or risk of injury; (3) it differs from the offense charged only with respect to the culpable mental state; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006).
When a person has notice that entry is forbidden and enters another=s building or habitation without effective consent, the person commits the offense of criminal trespass. See Tex. Penal Code Ann. ' 30.05(a), (d) (Vernon Supp. 2006). When a person enters another=s building or habitation without effective consent but with the intent to commit (or attempts to commit) a felony, theft, or an assault, the person commits the offense of burglary. See Tex. Penal Code Ann. ' 30.02 (Vernon 2003). Because criminal trespass is a lesser included offense of burglary, the first prong of the Royster test is satisfied. Mitchell v. State, 807 S.W.2d 740, 741-42 (Tex. Crim. App. 1991) (reversing burglary conviction where trial court failed to charge jury on the lesser included offense of criminal trespass).
Next, we must consider the second prong: i.e., whether there was some evidence that would have permitted a rational jury to find that, if appellant was guilty, she was guilty of criminal trespass only. Appellant did not testify or call any witnesses to testify at the guilt/innocence phase of trial. On cross-examination, Baird testified that, at one point during the struggle outside, appellant went from being combative and violent to limp and, as if talking to somebody else, said she Ajust came to get some Grateful Dead CDs from [Labinski].@ We can find no evidence in the record indicating that appellant was guilty of criminal trespass only. The only evidence regarding appellant=s intent was that she entered the house with the intent to commit stalking or theft. Either of these culpable mental states converts a criminal trespass into a burglary under the provisions of Section 30.02. Because there was no evidence that appellant was guilty of criminal trespass only, the second prong of the Royster test was not met. Consequently, we hold that the trial court did not err in refusing to instruct the jury on criminal trespass. Appellant=s ninth issue is overruled.
Expert Testimony on AFollowing@
In her tenth issue, appellant argues that the trial court erred in overruling her objection to expert testimony regarding the legal interpretation of the term Afollowing@ as an element of stalking. The record shows that Sergeant Richard A. Shirley was called as an expert on the topic of stalking. Sergeant Shirley testified that stalking is a complicated offense and explained the elements of stalking and the four basic types of stalking. The prosecutor then asked Sergeant Shirley, who had already testified without objection that Acourt cases@ had upheld the constitutionality of the current stalking statute, to Adescribe for us the different ways in Texas that a person may be followed.@ Sergeant Shirley answered: AWell, there have been court cases that have held that simply going to a person=s residence or place of business knowing that that person will be there is perceived as following in the eyes of some of the court cases that I have read.@ After the answer, defense counsel asked to approach the bench and then objected that the testimony regarding court cases was inappropriate, was being promoted as the law in Texas, and lent too much credibility to the witness. The trial court overruled the objection, and the prosecutor passed the witness.
The State contends that appellant failed to preserve her objection for review by failing to timely object. We agree. Appellant did not object until after the question was asked and the answer completed. To preserve error, an objection must be timely and should be made as soon as the ground for objection becomes apparent. Tex. R. App. P. 33.1(a); Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997). When a defendant does not object until after an objectionable question has been asked and answered, the objection is not timely unless the defendant has a legitimate reason to justify the delay. Lagrone, 942 S.W.2d at 618. No justification has been shown in this case. Therefore, we hold that appellant failed to preserve the issue for review. The tenth issue is overruled.
Redaction of Protective Order
In her final issue, appellant contends that the trial court erred in refusing to redact the underlying protective order before admitting it into evidence. The protective order contained findings that family violence had taken place in the past and was likely to recur in the future. At trial, appellant objected that these findings were not relevant and constituted an impermissible comment on the weight of the evidence.[2] On appeal, appellant contends only that the findings were irrelevant to the case at bar and did not constitute harmless error.
The admissibility of evidence is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Sorto v. State, 173 S.W.3d 469, 491 (Tex. Crim. App. 2005). Appellant was charged with violating a protective order. The protective order that she allegedly violated was, therefore, relevant. It showed that a valid protective order had been issued against appellant and that she had knowledge of its existence. See Section 25.07. Pursuant to the Family Code, a court issuing a protective order like the one in this case is required to find whether family violence has occurred and whether family violence is likely to occur in the future. Tex. Fam. Code Ann. ' 85.001 (Vernon 2002).
We cannot hold that these findings of family violence were irrelevant or that the trial court abused its discretion in failing to redact the protective order. Relevant evidence is Aevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@ Tex. R. Evid. 401. The issuing court=s findings were relevant to a determination of appellant=s intent in violating the protective order, Labinski=s fear of bodily injury or death, and a reasonable person=s fear of bodily injury or death. Appellant=s eleventh issue is overruled.
This Court=s Ruling
The judgment of the trial court is affirmed.
PER CURIAM
November 1, 2007
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.
[1]Tex. Penal Code Ann. ' 42.072(a) (Vernon 2003) provides that a person commits the offense of stalking if:
[T]he person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct, including following the other person, that:
(1) the actor knows or reasonably believes the other person will regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person=s family or household; or
(C) that an offense will be committed against the other person=s property;
(2) causes the other person or a member of the other person=s family or household to be placed in fear of bodily injury or death or fear that an offense will be committed against the other person=s property; and
(3) would cause a reasonable person to fear:
(A) bodily injury or death for himself or herself;
(B) bodily injury or death for a member of the person=s family or household; or
(C) that an offense will be committed against the person=s property.
[2]We note that appellant did not object on the basis that the findings contained an extraneous offense or were unfairly prejudicial. See Tex. R. Evid. 403, 404(b); Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999) (relevancy objection does not preserve extraneous-offense objection). We also note that appellant did not offer to make any stipulations with respect to the protective order. See Tamez v. State, 11 S.W.3d 198 (Tex. Crim. App. 2000) (State cannot refuse defendant=s offer to stipulate to prior DWI convictions necessary to prove a felony DWI).