NUMBERS 13-10-00190-CR AND 13-10-00191-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JESSICA LATRESE CHATMAN, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the County Court at Law No. 5
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
Appellant Jessica Latrese Chatman challenges her conviction by a jury for
possession of marihuana (appellate cause number 13-10-00190) and criminal trespass
(appellate cause number 13-10-00191), both class B misdemeanors.1 See Tex. HEALTH
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This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to
an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005).
& SAFETY CODE ANN. § 481.121(a), (b)(1) (Vernon 2010); TEX. PENAL CODE ANN.
§ 30.05(a)(1), (d)(1) (Vernon Supp. 2010). By three issues, Chatman argues that: (1)
the evidence was legally insufficient to support her criminal trespass conviction because
there was a "bona fide dispute" as to right-of-access; (2) her trial counsel was ineffective
for failing to request a jury instruction on mistake of fact as to criminal trespass; and (3)
the trial court erred in refusing her request, under article 38.23 of the code of criminal
procedure, for a jury charge in her marihuana possession case regarding evidence
seized in an alleged illegal entry by the police. See TEX. CODE CRIM. PROC. ANN. art.
38.23 (Vernon 2005). We affirm the judgment of conviction for criminal trespass and
affirm as modified the judgment of conviction of possession of marihuana.
I. BACKGROUND
In mid-March 2009, Chatman was arrested at the Cricket Hollow Apartments in
Montgomery County, Texas. At the time of her arrest, Chatman was present in the
apartment from which she had been evicted over three weeks earlier. The arresting
police officers found marihuana in the apartment and on Chatman's person.
Chatman was charged by complaint and information for possession of marihuana
as follows: "on or about March 12, 2009, in Montgomery County, Texas, [Chatman], did
intentionally or knowingly possess a usable quantity of marihuana in the amount of two
ounces or less . . . ." Chatman was also charged by complaint and information for
criminal trespass as follows: "on or about March 12, 2009, in Montgomery County
Texas, [Chatman], did intentionally and knowingly enter a habitation of another, namely,
Stephanie Eason, without the effective consent of Stephanie Eason, the owner, and
[Chatman] did then and there have notice entry was forbidden . . . ."
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Chatman pleaded not guilty to both charges, and her case was tried to a jury. The
jury returned guilty verdicts. For the marihuana possession conviction, the trial court
sentenced Chatman to 180 days' confinement in county jail, suspended for one year of
community supervision, and assessed a $500 fine; for the criminal trespass conviction,
the court sentenced Chatman to two days in county jail, with credit for time served, and
assessed a $300 fine. This appeal followed.
II. SUFFICIENCY OF THE EVIDENCE
By her first issue, Chatman complains that the evidence was legally insufficient to
support her criminal trespass conviction because a bona fide dispute existed regarding
Chatman's right to access the property in question.
A. Standard of Review and Applicable Law
When conducting a legal sufficiency review, a court must ask whether "any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt"—not whether "it believes that the evidence at the trial established guilt beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). A legal sufficiency analysis requires
the court to view all of the evidence in "a light most favorable to the verdict." Jackson,
443 U.S. at 319; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The
trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight
given to testimony. TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Beckham v.
State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd). We do not
reevaluate the weight or credibility of the evidence, nor do we substitute our own
conclusions for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.
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2000) (en banc). Instead, we resolve any inconsistencies in the evidence in favor of the
final judgment and consider whether the jury reached a rational decision. Curry v. State,
30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Legal sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.
App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge
is one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
theories of liability, and adequately describes the particular offense for which the
defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240. The
elements of class B misdemeanor criminal trespass are that: (1) a person, (2) without
effective consent, (3) enters or remains on the property of another, (4) knowingly or
intentionally, (5) when she had notice that entry was forbidden. See Day v. State, 532
S.W.2d 302, 306 (Tex. Crim. App. 1976) (op. on reh'g); see also TEX. PENAL CODE ANN. §
30.05(a)(2). "'Effective consent' includes consent by a person legally authorized to act
for the owner." TEX. PENAL CODE ANN. § 1.07(19) (Vernon Supp. 2010).
B. The Evidence
At trial, the State admitted into evidence the judgment of eviction against Chatman
that was obtained by Cricket Hollow in justice court on February 12, 2009. The judgment
decreed as follows:
[T]hat Plaintiff, CRICKET HOLLOW APTS, do have and recover of
the Defendant, JESSICA CHATMAN, possession of the following described
premises situated in Justice Precinct One, Montgomery County, Texas to
wit:
9700 FM 1907 W #608 WILLIS, TX 77318
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. . . Defendant has 5 days to vacate or appeal from this date.
Officer Courtney Yoak of the Willis Police Department testified that on March 12,
2009, she was dispatched to return the call of a citizen who had some questions of a civil
matter. Officer Yoak returned the call; the citizen was Chatman, who informed Officer
Yoak that she had been locked out of her apartment. Chatman informed Officer Yoak
that she had been evicted from her apartment, was ordered to remove her possessions,
and the time for removing her possessions had passed. During the call, Chatman told
Officer Yoak that she was currently in the apartment. Officer Yoak then received a call
from her detective, who was also employed as a security officer at Cricket Hollow. Her
detective stated that he had received a call from the apartment manager, Stephanie
Eason, requesting assistance with an evicted tenant who had gained access to her old
apartment. The detective asked Officer Yoak to investigate the situation. When Officer
Yoak arrived at the apartment, she and her partner, Officer Brian Skero, entered the
apartment and found Chatman. Officer Yoak testified that she arrested Chatman
because of her own admission that she had been evicted but was nonetheless in the
apartment.
Juanita Surgers, who was formerly married to Chatman's uncle and worked as the
administrative manager for a justice of the peace (JP), testified, as well. Surgers testified
that her job involved handling the financial matters for her JP. 2 Surgers testified that
during her eviction proceedings, Chatman called her to ask some questions about the
civil process of eviction. In response to her questions, Surgers told Chatman that if a
2
Surgers worked for a different JP than the JP who issued the judgment of conviction against
Chatman.
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landlord obtains a judgment of eviction but the tenant refuses to leave, the landlord must
get a writ of possession to forcibly remove the tenant. Surger also testified that
Chatman's judgment of eviction became final because Chatman did not appeal it.
C. Analysis
Citing Hann v. State, Chatman argues that because Cricket Hollow did not obtain a
writ of possession, there "was a bona fide dispute as to possession of the apartment
between [Chatman] and the apartment complex." 771 S.W.2d 731, 733 (Tex. App.–Fort
Worth 1989, no pet.). Based on this, Chatman contends that the evidence at trial was
legally insufficient to support the effective-consent element of criminal trespass. We
disagree that such bona fide dispute existed under the facts of this case.
In Hann, appellant was arrested for criminal trespass when he taxied his airplane
over a strip of land between the runway and the hangar he rented to store his airplane;
appellant's landlord owned both the land where the hangar was located and the land on
which the runway was situated. Id. at 732. Appellant's landlord had a long-standing
dispute with an adjacent property owner over the strip of land in question but believed that
his tenants had the right to access the strip of land to cross from the runway to their
hangars. Id. at 733. The adjacent property owner believed they did not. Id. The
court concluded that because of the ongoing controversy over the legal title to the land
and some "ambiguous or unclear" language in the related legal documents, "a bona fide
dispute exist[ed] between appellant and [the adjacent property owner] as to whether
appellant had rights of access to the property." Id. For this reason, the court concluded
no "rational trier of the facts could . . . have found beyond a reasonable doubt that
appellant's entry on the property was without effective consent." Id. at 734.
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In Hann, the rights of the parties had not yet been adjudicated. Here, the
evidence demonstrates no such ambiguity or lack of clarity regarding who had the right to
access the apartment. The judgment of eviction clearly transferred the right of
possession of the apartment from Chatman to Cricket Hollow and ordered Chatman to
vacate the apartment or appeal the judgment. Because Chatman did not appeal the
judgment, as stated by Surgers, it became final. Cricket Hollow's failure to obtain a writ
of possession—a civil remedy to forcibly remove an evicted tenant—does not alter these
facts. Based on the evidence at trial, we cannot conclude that a bona fide dispute
existed over who had the right to access the apartment.
Rather, there is ample evidence from which a rational jury could have concluded
beyond a reasonable doubt that Chatman entered the apartment without the effective
consent of Cricket Hollow. See Jackson, 443 U.S. at 318-19; see also Day, 532 S.W.2d
at 306. Eason, Cricket Hollow's manager, called security to request assistance
regarding Chatman being present in the apartment despite being evicted. Further,
Chatman admitted to Officer Yoak that she had been evicted and that the time had
passed for removing her possessions from the apartment. The evidence was therefore
legally sufficient to support the without-effective-consent element. See TEX. PENAL CODE
ANN. §§ 1.07(19), 30.05(a)(2); Jackson, 443 U.S. at 318-19. Chatman's first issue is
overruled.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
By her second issue, Chatman argues that she received ineffective assistance of
counsel at trial.
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A. Standard of Review and Applicable Law
To establish ineffective assistance of counsel, Chatman must show that: (1) her
attorney's representation fell below an objective standard of reasonableness; and (2)
there is a reasonable probability that, but for her attorney's errors, the result of the
proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 684
(1984); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.).
Whether this test has been met is to be judged on appeal by the totality of representation,
not by any isolated acts or omissions. Jaynes, 216 S.W.3d at 851. The right to
"reasonably effective assistance of counsel" does not guarantee errorless counsel or
counsel whose competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d
822, 824 (Tex. Crim. App. 1983).
Our review of counsel's representation is highly deferential, and we will find
ineffective assistance only if Chatman rebuts the strong presumption that her counsel's
conduct fell within the wide range of reasonable professional assistance. See
Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Chatman must prove ineffective
assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403
(Tex. Crim. App. 1984)). To prove that counsel's performance fell below the
reasonableness standard, ―the record must contain evidence of counsel's reasoning, or
lack thereof.‖ Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.–Corpus Christi 1999, pet.
ref'd). Generally, the trial record will not be sufficient to establish an ineffective
assistance of counsel claim. Thompson, 9 S.W.3d at 813-14; Kemp v. State, 892
S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd). This is true because,
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normally, a record is silent with regard to counsel's decision-making processes, and
therefore, appellant often cannot rebut the presumption that counsel's performance was
the result of sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v.
State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In
the case of such a silent record, "the challenged conduct must be 'so outrageous that no
competent attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533
(Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005)).
B. Analysis
Here, Chatman complains that her trial counsel was ineffective for failing to
request a jury instruction on mistake of fact—i.e., that Chatman formed a reasonable but
mistaken belief about a matter of fact that negated the requisite mental state for the
offense. See TEX. PENAL CODE ANN. § 8.02(a) (Vernon 2003). Chatman contends that
testimony at trial established that she reasonably believed that she was legally able to
enter the apartment from which she had been evicted because Cricket Hollow had not yet
obtained a writ of possession from the justice of the peace. In short, Chatman argues
that the evidence raised the defensive issue of mistake of fact, and the trial court would
have erred in denying a request to include it in the jury charge.
However, because Chatman did not file a motion for new trial and did not elicit any
testimony regarding trial counsel's reasons for taking the complained-of actions, there is
no evidence in the record that the actions of Chatman's trial counsel were not the result of
sound and reasonable trial strategy. See Jaynes, 216 S.W.3d at 855. And based on
the record before us, we cannot conclude that trial counsel's actions were so outrageous
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that no competent attorney would have taken them. See Roberts, 220 S.W.3d at 533.
Chatman's alleged mistaken belief regarding Cricket Hollow's failure to obtain a writ of
possession and her resulting right to enter the apartment was, if anything, a mistake of
law, not a mistake of fact. See TEX. PENAL CODE ANN. § 8.03(b) (Vernon 2003) ("It is an
affirmative defense to prosecution that the actor reasonably believed the conduct
charged did not constitute a crime and that he acted in reasonable reliance" on either (1)
"an official statement of law in a written order" or (2) "a written interpretation of the law
contained" in a court opinion or "made by a public official charged by law with
responsibility for interpreting the law in question."). And the source from which Chatman
received her interpretation of civil eviction law was Surgers, who was the administrative
manager for a JP, not a public official charged with interpreting the law. Thus, the
evidence did not raise the issue of mistake of law, and Chatman's counsel did not act
unreasonably or incompetently in not seeking a jury instruction on that issue.
In sum, without specific evidence of trial counsel's decision-making process and
strategy, we cannot conclude that Chatman has overcome the strong presumption that
her trial counsel provided professional, objectively reasonable assistance. See
Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Because Chatman did not
establish that her trial counsel's performance fell below an objectively reasonable
standard, she has not met the first prong of Strickland. See Jaynes, 216 S.W.3d at 855.
Chatman's second issue is overruled.3
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Although Chatman's attempt at a direct appeal has been unsuccessful, she is not without a
potential remedy. Challenges requiring development of a record to substantiate a claim, such as
ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX.
CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2010); see also Cooper v. State, 45 S.W.3d 77, 82-83
(Tex. Crim. App. 2001) (suggesting that "the legislature may have regarded challenges to voluntariness as
better raised in habeas corpus than on appeal because the appellate record will often contain insufficient
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IV. JURY CHARGE
By her third issue, Chatman argues that, under article 38.23 of the code of criminal
procedure, the trial court erred in refusing her request in her marihuana possession case
for a jury instruction regarding evidence seized in an alleged illegal entry by the police.
See TEX. CODE CRIM. PROC. ANN. art 38.23(a). Chatman argues that she raised a fact
issue regarding the legality of Officer Yoak and Officer Skero's entry into the apartment
and that she was harmed by the refusal of the evidentiary instruction because if the jury
had resolved the illegal entry issue in favor of Chatman, the jury would have "been
instructed to disregard all evidence obtained from the officer's unlawful entry . . . including
the 'blunt' and marijuana that formed the basis for [Chatman]'s possession of marijuana
conviction."
Article 38.23 provides as follows:
No evidence obtained by an officer or other person in violation of any
provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted in
evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the
jury shall be instructed that if it believes, or has a reasonable doubt, that the
evidence was obtained in violation of the provisions of this Article, then and
in such event, the jury shall disregard any such evidence so obtained.
TEX. CODE CRIM. PROC. ANN. art 38.23(a). To be entitled to the evidentiary instruction,
the defendant must show that the evidence heard by the jury raised a genuine dispute
about a material fact. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).
grounds for a fair resolution of the claim. The legislature may well have decided to render the issue
unappealable but only as a means of encouraging its litigation in habeas corpus, where a new and more
complete record can be developed"). An application for writ of habeas corpus relief would "provide an
opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind
counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).
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"The disputed fact must be an essential one in deciding the lawfulness of the challenged
conduct." Id. at 511.
If there is no disputed factual issue, the legality of the conduct is determined
by the trial judge alone, as a question of law. And if other facts, not in
dispute, are sufficient to support the lawfulness of the challenged conduct,
then the disputed fact issue is not submitted to the jury because it is not
material to the ultimate admissibility of the evidence.
Id. at 510.
Here, the alleged misconduct is Officer Yoak and Officer Skero's entry into the
apartment without proper authority. Chatman argues that because Cricket Hollow did
not obtain a writ of possession, she believed she had a legal right to access the
apartment, and as a result, she raised a fact issue regarding who had permission to
authorize the police officers' entry into the apartment. Chatman's belief regarding civil
eviction procedures, however, has no bearing on the legality of the police officers' entry
into the apartment. As discussed previously, the evidence clearly established that
Cricket Hollow had the right to possess the apartment through the final judgment of
eviction issued against Chatman, and Chatman admitted as much when she told Officer
Yoak on the phone that she had been evicted and ordered to remove her possessions
from the apartment. Further, it is undisputed that Officers Yoak and Skero entered the
apartment pursuant to instructions from Eason, Cricket Hollow's manager.
Chatman's belief does not contradict the judgment of eviction or her own
admission that she had been evicted and ordered to vacate. In other words, Chatman's
belief that she had a legal right to access or possess the apartment does not raise a
factual dispute material to the legality of the officers' entry. Moreover, there was
undisputed evidence of other facts—i.e., Eason's authorization to enter the
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apartment—sufficient to support the lawfulness of the officers' entry. Thus, the legality of
the police officers' entry into the apartment was appropriately determined by the trial
court. Chatman's third issue is overruled.
V. MODIFICATION OF JUDGMENT
The trial court's judgment in Chatman's marihuana possession case mistakenly
recites Chatman's sentence as "0 days in the Montgomery County Jail" in one of the two
places in the judgment where Chatman's sentence is recited. Our review of the record
shows that the trial court sentenced Chatman to 180 days' confinement in county jail,
suspended the sentence, and placed Chatman on community supervision for one year.
Because we have the necessary data and evidence for reformation, we modify the trial
court's judgment to reflect the correct sentence of 180 days' confinement in county jail in
each place the judgment recites the sentence. See TEX. R. APP. P. 43.2; Bigley v. State,
865 S.W.2d 26, 27 (Tex. Crim. App. 1993).
VI. CONCLUSION
For appellate cause number 13-10-00191, we affirm the trial court's judgment of
conviction for criminal trespass. For appellate cause number 13-10-00190, we affirm the
trial court's judgment of conviction for possession of marihuana as modified.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of April, 2011.
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