Prescott, Hosea v. State ( 2006 )

Affirmed and Memorandum Opinion filed May 25, 2006

Affirmed and Memorandum Opinion filed May 25, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-01046-CR

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HOSEA PRESCOTT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 959,955

M E M O R A N D U M  O P I N I O N

Challenging his conviction for the felony offense of burglary of a habitation with the intent to commit theft, appellant Hosea Prescott asserts that (1) the evidence is factually insufficient to support his conviction, (2) he was denied effective assistance of counsel, and ( 3) the trial court erred in allegedly permitting the prosecutor to comment on his failure to testify during closing argument. We affirm.

I.  Factual and Procedural Background

The complainant, Carolyn Johnson, lives in a large house in an area that has both residential and commercial buildings.  Her adult daughter lives in a smaller, detached guest house on the same property.  Around noon on August 28, 2003, Mrs. Johnson heard her housekeeper, Guadalupe Garcia, scream and run into the main house. After being chased by appellant, the housekeeper was able to get to the house first and lock the door behind her, preventing appellant from entering the residence.  When appellant was unable to gain entry to the main house, he headed for the guest house.  Both women watched appellant as he ascended the stairs and went into the bedroom of the guest house. 

Mrs. Johnson called the police.   She also called her brother, who happened to work at a nearby location.  Mrs. Johnson=s brother arrived at the scene first and locked the metal gates that surround the property.  Shortly thereafter, the police arrived.  Apparently alerted to the police presence by sirens, appellant fled the guest house. He was arrested at the scene. Appellant gave various reasons to the police as to why he had entered the residence. Mrs. Johnson stated that appellant did not have permission to enter the guest house.

Shortly thereafter, Mrs. Johnson called her daughter, who rushed home to find her bedroom in shambles.  Her dresser drawers had been opened and their contents disturbed. Pieces of jewelry had been removed from a jewelry box and set on top of her dresser. 

Appellant was charged with burglary of a habitation with the intent to commit theft. Appellant pleaded not guilty.  A jury found appellant guilty as charged and assessed punishment at life imprisonment.

II. Issues Presented

Appellant asserts three issues on appeal:

(1)     The evidence is factually insufficient to support his conviction of burglary of a habitation because he testified that he was not aware that the building he entered was a Ahabitation.@

(2)     He was denied effective assistance of counsel because his trial counsel allegedly erred in failing to object to photographs of the residence.

(3)    The trial court erred in allegedly allowing the prosecutor to comment on appellant=s failure to testify.

III.  Analysis

A.      Is the evidence factually insufficient to support appellant=s conviction of burglary of a habitation?

When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  A reviewing court may find the evidence factually insufficient in two ways.  Id.  First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt.  Id.  Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyondBaBreasonable-doubt standard could not have been met.  Id.  at 484B85.  In conducting the factualBsufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder.  Id. at 481B82.  Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant contends in his appellate brief that the evidence is factually insufficient to support his conviction for burglary of a habitation because he entered thinking the building was a business, not a residence. Appellant argues the outside of the building had the appearance of commercial property because a sign hung on the back of the building, there were six or seven parking spaces for the building, and the property was located in a commercial area of town.  Appellant argues that, based on these indicators, he assumed the building was a  restaurant, not a home, and he entered to seek employment. Thus, appellant contends, there is factually insufficient evidence to prove he had intent to enter a habitation.

The essential elements of burglary are: (1) a person; (2) without the effective consent of the owner; (3) enters a habitation with the intent to commit a felony or theft therein. See Tex. Pen. Code Ann. ' 30.02 (Vernon 1994); Draper v. State, 681 S.W.2d 175, 177 (Tex. App.BHouston [14th Dist.] 1984, pet. ref=d). Conviction requires entry of a habitation and that the one entering do so with the intent to commit a felony or theft. Habitation means a Astructure or vehicle that is adapted for the overnight accommodation of persons.@  Tex. Penal Code Ann. ' 30.01(1) (Vernon 1994).  Factors to be considered in determining whether a structure is suitable for the overnight accommodation of persons include: (1) whether the structure was being used as a residence at the time of the trespass; (2) whether the structure Acontained bedding, furniture, utilities, or other belongings common to a residential structure@; and (3) whether the structure was of such character that it was likely intended to accommodate persons overnight.  Blankenship v. State, 780 S.W.2d 198, 209 (Tex. Crim. App. 1989) (op. on reh=g).    Appellant points out that Mrs. Johnson testified that the yard was big and affixed to the building was a sign that read @Jake=s@.   Appellant argues that based on this evidence, the building could have been mistaken for a business and any entry could have been for a legitimate purpose, such as seeking employment opportunities.  The record, however, contains no evidence either that appellant mistook the Johnsons= home or guest house for a restaurant or any other business or that appellant intended to enter for any legitimate purpose.  The evidence presented at trial suggests just the opposite. 

After Mrs. Johnson=s housekeeper locked the front door to the main house behind her, appellant did not leave the premises, as one who was there seeking employment opportunities might; instead, appellant entered the detached guest house, which clearly was being used as a residence and was suitable for overnight accommodations.  Appellant went into the bedroom. He searched through the dresser drawers and removed items from the jewelry box.  Appellant exited the guest house only after the police sirens sounded in the front of the house.

It is within the jury=s exclusive province to resolve conflicts in the evidence by making determinations of the credibility of the witnesses.  See Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995).   A jury=s verdict is not manifestly unjust merely because it resolved conflicting views in favor of the State.  Cain, 958 S.W.2d at 410.   The jury is free to reject all of the evidence in favor of appellant=s theory that he did not believe the home was a Ahabitation@ and could believe all of the evidence in support of the theory that appellant entered a Ahabitation@ with the intent to commit a theft.  We conclude that the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  The evidence is factually sufficient to support appellant=s conviction.  Accordingly, we overrule appellant=s challenge to the factual sufficiency of the evidence.

B.      Was appellant denied effective assistance of counsel?

In his second issue, appellant contends that he was denied effective assistance of counsel because his trial counsel failed to lodge objections to certain photographs of the property.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. art. 1.051 (Vernon 2005).  This right necessarily includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance.  Strickland, 466 U.S. at 688B92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence.  Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). 

In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).  We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel=s performance was deficient.  See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).  If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim.  Stults v. State, 23 S.W.3d 198, 208B09 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel=s trial strategy.  See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005) (stating that facts at hand presented a Arare case@ in which ineffective assistance can be found on direct appeal based on a record silent as to counsel=s trial strategy). Absent an opportunity for trial counsel to explain her actions, appellate courts should not find ineffective assistance unless the challenged conduct was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed v. State, __S.W.3d__, 2005 WL 766996, at *2 (Tex. Crim. App. Apr. 6, 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)).

Before this court may conclude counsel was ineffective for failure to make an objection, appellant must show the trial court would have erred in overruling the objection. See Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).   Appellant cannot make this showing.  If there are elements of a photograph that are genuinely helpful to the jury in making its decision, the photograph is inadmissible only if the emotional and prejudicial aspects substantially outweigh the helpful aspects. See Prible v. State, 175 S.W.3d 724, 734, n.20 (Tex. Crim. App. 2005); Erazo v. State, 144 S.W.3d 487, 489B90 (Tex. Crim. App.  2004).  If a photograph is competent, material, and relevant to the issue at hand, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury.  Erazo, 144 S.W.3d at 490.  In addition, if there is admissible  testimony concerning the matters depicted in the photograph, as there was in this case, then the photograph is generally admissible.  See id. A trial court is given wide discretion when deciding whether photographs are admissible.   See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App.  1995). 

The photographs admitted into evidence depict Mrs. Johnson=s property.   Appellant contends that defense counsel should have objected to these photographs because if the jury would have viewed only the outside of the structure, then they could have come to the conclusion that the it was a Abusiness@ and not a Ahabitation.@    Appellant=s arguments lack merit.  He  has not suggested, much less established, any valid reason the photographs were subject to objection. The photographs aided the jury in understanding Mrs. Johnson=s testimony about the inside of the guest house. Any objection to these photographs would have been futile.  It is not ineffective assistance for counsel to forego making frivolous arguments and objections.  Edmond v. State, 116 S.W.3d 110, 115 (Tex. App.BHouston [14th Dist.] 2002, pet. ref=d). Moreover, appellant did not file a motion for new trial and points to nothing in the record to support his arguments on appeal. 

Appellant has not shown that his counsel=s performance was deficient, or that he was prejudiced by his counsel=s failure to object to the photographs.  Nor has appellant shown that his counsel=s failure to object was A>so outrageous that no competent attorney would have engaged in it.=@ Goodspeed, __S.W.3d at__, 2005 WL 766996, at *2. Accordingly, we overrule appellant=s second issue.

C.      Did the appellant preserve error as to his complaint that the prosecutor improperly commented on his failure to testify during closing argument?

In his third issue, appellant contends that during closing argument the prosecutor made improper comments  on appellant=s failure to testify.  Appellant complains about the following excerpt from the State=s closing argument:

[Prosecutor]: Officer Dunn, I asked him if he asked the defendant what he was doing on the property. He said, yes. Did he answer you? Yes. Did you ask him again? Yes, I asked him again. Was he cooperative? No. And I stopped my questioning.

Defense counsel asked did he give you an explanation for what he was doing in that house? Officer Dunn, yes, several.  What does that tell you? Some of you sitting here, well, what did he say, I want to know.  The law doesn=t allow it. We can only present the evidence the law allows. The law does not allow that evidence. He=s giving him several answers.^[1]

Appellant contends that the italicized statements above were improper comments on his  failure to testify at trial.  Appellant, however, failed to object on this or any other basis in the trial court.  A party must object and pursue the objection to an adverse ruling in order to complain on appeal about an erroneous jury argument or to complain on appeal that an instruction to disregard could not have cured an erroneous jury argument.  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Even when argument is so inflammatory that an instruction to disregard would not be sufficient to cure the error, counsel must object and obtain an adverse ruling to preserve error for appellate review.  See Tex. R. App. P.  33.1(a) (stating that an appellant must make a timely objection); Campos v. State, 946 S.W.2d 414, 417 (Tex. App.BHouston [14th Dist.] 1997, no pet.) (recognizing that Cockrell overruled prior caselaw which held that counsel need not object to blatant and inflammatory argument).  Appellant did not preserve error because he did not timely object and did not request an instruction to cure the allegedly improper argument.  Therefore, appellant waived his right to complain about the comment.  See Cockrell, 933 S.W.2d at 89 (holding that [defendant] waived appellate review of his claim that prosecutor impermissibly commented during closing argument of guilt‑innocence stage of assault trial on defendant=s failure to testify, where no objection was lodged); see also Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004) (holding that the court of appeal erred in considering [appellant=s] argument that the prosecutor=s comment amount to a comment on [appellant=s] failure to testify since [appellant] made no such argument in the trial court).  Accordingly, we overrule appellant=s third issue.

Having overruled all of appellant=s issues on appeal, we affirm the trial court=s judgment.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed May 25, 2006.

Panel consists of Justices Hudson, Frost, and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Emphasis added.