Patricia Lee Fennell v. The State of Texas--Appeal from County Court at Law No 4 of Bexar County

MEMORANDUM OPINION
No. 04-06-00473-CR
Patricia Lee FENNELL,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 4, Bexar County, Texas
Trial Court No. 887833
Honorable Sarah E. Garrahan-Moulder, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: April 4, 2007

 

AFFIRMED Patricia Lee Fennell appeals her conviction of criminal trespass of a building. Fennell challenges the sufficiency of the evidence to support her conviction and asserts that she was denied effective assistance of counsel. Fennell also contends that the trial court abused its discretion in denying her motion for new trial based on her allegation of ineffective assistance of counsel. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion.

1. In her first and second issues, Fennell challenges the legal and factual sufficiency of the evidence to support her conviction. Specifically, Fennell contends the evidence is insufficient to show that she was given notice to leave the building. Fennell also contends that the evidence established that she had left the building prior to being arrested.

In reviewing the legal sufficiency of the evidence, we view 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, 319 (1979); Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). In conducting a factual sufficiency review, this court views all of the evidence in a neutral light and sets aside the verdict only if: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). "[D]ue deference must be accorded the fact finder's determinations, particularly those determinations concerning the weight and credibility of the evidence," and a reviewing court's disagreement "with the fact finder's determination is appropriate only when the record clearly indicates such a step is necessary to arrest the occurrence of a manifest injustice." Id. at 9.

Rebecca Lull testified that Fennell became unruly and threatening while in the Bexar County Appraisal office to discuss an exemption issue. Officer George Valdillez, a security officer, was summoned to the office. Lull testified that she told Fennell she needed to leave two times before turning to the security officer and requesting his assistance. Officer Valdillez testified that he instructed Fennell that she needed to leave the building six or seven times and told her that she would be arrested for criminal trespass if she failed to leave. Although Fennell exited the doors to the appraisal office, she refused to exit the doors to the building. Officer Valdillez told Fennell that if he put his hands on her, he would have to arrest her. As Fennell continued to scream, Officer Valdillez grabbed her wrist to arrest her. Although Fennell's hand slipped, and she moved outside the doors as she resisted arrest, Officer Valdillez followed her and arrested her.

Fennell testified that the information Lull provided to her did not answer her questions. Fennell stated that Lull was agitated during the conversation. Fennell testified that Lull never told her to leave, and she left when she was not given any answers. Fennell stated she first encountered Officer Valdillez outside the building when he followed her, grabbed her, and slammed her against a wall. Fennell testified Officer Valdillez never instructed her to leave the building.

Giving due deference to the jury's credibility determinations, the jury chose to believe the testimony of Lull and Officer Valdillez, and the jury's decision is not against the great weight and preponderance of the evidence or manifestly unjust. Accordingly, the evidence is legally and factually sufficient to support Fennell's conviction, and her first and second issues are overruled.

2. In her third and fourth issues, Fennell contends counsel was ineffective in failing to investigate and interview additional witnesses and in failing to obtain a videotape of the incident. Fennell also contends that the trial court abused its discretion in denying her motion for new trial alleging ineffective assistance of counsel.

We review a trial court's ruling on a motion for new trial under an abuse-of-discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004); Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.--Houston [1st Dist.] 2006, pet. ref'd). Where, as here, the motion for new trial alleges ineffective assistance of counsel, we must determine whether the trial court's determination of the ineffective assistance claim and denial of the motion for new trial were clearly wrong and outside the zone of reasonable disagreement. Anderson, 193 S.W.3d at 39.

Under the legal standards for ineffective assistance of counsel claims, Fennell must show that counsel's performance was deficient, and that the deficiency prejudiced the defense. Ex parte Briggs, 187 S.W.3d 458, 466 (Tex. Crim. App. 2005). "'In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.'" Id. at 467 (quoting Wiggins v. Smith, 539 U.S. 510, 521-22 (2003)). An attorney's failure to investigate or present witnesses will be a basis for establishing ineffective assistance of counsel only where it is affirmatively shown that the presentation of that evidence would have benefitted appellant. Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004).

In this case, Fennell failed to introduce any evidence to show that she would have benefitted from the testimony of the witnesses that she alleges trial counsel failed to call. Furthermore, trial counsel testified at the hearing on the motion for new trial that the witnesses were not called because they would not have benefitted Fennell's case. Trial counsel denied that Fennell had given him the name of Pat Pickett as a potential witness. Trial counsel stated that he was not retained to represent Fennell until several months after the incident. Although he investigated the existence of a videotape, trial counsel was told that any video would have been destroyed or used over because of the passage of time. Trial counsel stated that he reviewed the State's file and met with Fennell several times. Although trial counsel attempted to negotiate a plea bargain agreement, Fennell rejected the offer from the State.

The record does not support Fennell's allegation that trial counsel failed to render effective assistance of counsel, and the trial court did not abuse its discretion in denying the motion for new trial. Fennell's third and fourth issues are overruled.

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

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