FREDERICK LAMONT HARDY, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed June 4, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00549-CR
                                         No. 05-06-00550-CR
............................
 
FREDERICK LAMONT HARDY, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F04-36139-QH and F04-36140-QH
.............................................................
 
MEMORANDUM OPINION
 
Before Justices Moseley, Bridges, and Smith   See Footnote 1 
Opinion By Justice Moseley
 
 
        Frederick Lamont Hardy pleaded not guilty to burglary of a habitation with intent to commit assault   See Footnote 2  and guilty to evading arrest by use of a vehicle.   See Footnote 3  The jury found him guilty of both offenses. Hardy stipulated to one enhancement allegation in each indictment. The trial court assessed punishment at forty-five years' confinement for the burglary of a habitation offense, and ten years' confinement for the evading arrest offense. Hardy appeals, asserting in three issues that the evidence is factually insufficient to support his conviction for burglary of a habitation; the trial court erred in admitting evidence of an extraneous offense; and trial counsel rendered ineffective assistance. The background of the case and the evidence adduced at trial are well known to the parties; thus we do not recite them here in detail. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. For the reasons set forth below, we affirm the trial court's judgment.
        There is evidence in the record that McQueen Brown and Hardy argued over the telephone, and that Brown asked Hardy to move out of an apartment they shared. However, when she drove by the apartment a short time later, Hardy's car was parked outside. Afraid Hardy was taking her belongings, Brown called the police. Brown then drove to the home of her employer, Laurie Barton, and parked in Barton's garage. (Barton was a thirty-three-year-old woman with cerebral palsy; Brown was Barton's in-home health care provider.)
        At that point, Brown received a call from the police asking her to return to her apartment because it was “a disaster.” Brown attempted to leave Barton's residence, but found Hardy blocking the driveway. Brown and Hardy argued outside; then Brown, followed by Hardy, re-entered Barton's house. They continued to argue. Brown entered Barton's bedroom. Hardy grabbed Brown's purse, and she ran into the closet. Hardy followed Brown and hit and kicked her.
        Hardy left in his vehicle, and Brown called the police. Hardy was apprehended after a police chase. An indictment alleged he unlawfully, intentionally, and knowingly entered a habitation without the effective consent of Barton, the owner, with the intent to commit assault and did commit assault against Brown.
        In Hardy's first issue he argues the evidence is factually insufficient to support his conviction for the burglary of a habitation offense. Specifically, he contends the evidence is insufficient to prove he entered Barton's home without consent.
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Under the factual sufficiency standard, we reverse when the verdict “seems clearly wrong or manifestly unjust” or is “against the great weight and preponderance of the evidence.” Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (quoting Watson, 204 S.W.3d at 414-15). While the legal sufficiency standard requires the reviewing court to defer to the jury's credibility and weight determinations, the factual sufficiency standard permits the reviewing court to substitute its judgment for the jury's on these questions “albeit to a very limited degree.” Id. (quoting Watson, 204 S.W.3d at 415, 417); see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979) (jury “is the exclusive judge of the facts proved, and of the weight to be given to the testimony”); Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) (factual sufficiency review requires reviewing court to afford “due deference” to jury's determination). An appellate court cannot declare that a conflict in the evidence justifies a new trial simply because it disagrees with the jury's resolution of that conflict. See Watson, 204 S.W.3d at 417. We measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. See Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002); Gollihar v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
        A person commits the offense of burglary, if, as charged in the indictment, he “without the effective consent of the owner . . . enters a habitation . . . with intent to commit . . . an assault.” Tex. Pen. Code Ann. § 30.02(a)(1) (Vernon 2006). “Consent” means “assent in fact, whether express or apparent.” Id. § 1.07(a)(11) (Vernon Supp. 2006). “Effective consent” includes consent by a person legally authorized to act for the owner. Id. § 1.07(a)(19). An “owner” is a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Id. § 1.07(a)(35)(A). The testimony of an owner that she did not give permission to enter the habitation is sufficient to establish the absence of effective consent. See Ellett v. State, 607 S.W.2d 545, 550 (Tex. Crim. App. 1980).
        The indictment alleged that Barton was the owner of the house. Barton testified she did not invite Hardy into her house the day of the incident. This evidence is sufficient to establish the absence of effective consent. See id.
        Hardy's argument that his entry was not “without consent” is premised on Brown's trial testimony that she invited him into Barton's house. Barton's mother testified that Barton's employees knew they were not to bring anyone into the house without Barton's approval. Barton's mother testified, “”[I]f Laurie doesn't invite them there they are not invited.” There was no evidence that Brown was legally authorized to act for Barton in giving Hardy consent to enter Barton's house. See Tex. Pen. Code Ann. § 1.07(a)(19). Moreover, the evidence regarding Brown's consent was conflicting. Brown testified she invited Hardy into the house. However, two written statements by Brown, one on the day of the incident and the other made five days later, were admitted into evidence. In the first hand-written statement, Brown stated, in relevant part, “I jump out of my car ran into Laurie house he came in and started to hit me in my face and back at that time I ran in Laurie closet [sic] . . . .” In the second statement, made to a person in the District Attorney's office, Brown stated, in part, “I jumped out of the car and attempted to run away. I ran back inside of [Barton's] house . . . . [Hardy] ran into my patient's house and grabbed my purse. I ran into my patient's closet . . . .” At trial, Brown testified that she did not recall telling the person these things. In addition, two investigating police officers testified that Brown told them Hardy “chased” her into Barton's house. Both officers testified that Brown never told them she had let Hardy into the house.
        Evaluating all of the evidence under the factual sufficiency standard, we cannot say the verdict seems clearly wrong or manifestly unjust or is against the great weight and preponderance of the evidence. See Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414-15. We need not further detail the rest of the evidence. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). We resolve Hardy's first issue against him.
        In Hardy's second issue he contends the trial court erred in admitting evidence that he burglarized Brown's apartment before he burglarized Barton's house. In his pretrial motion and at trial, Hardy objected to the admission of extraneous offense evidence under evidence rule 404(b). The trial court overruled the objection.
        Texas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Tex. R. Evid. 404(b). “Same transaction contextual evidence is deemed admissible as a so-called exception to the propensity rule where 'several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.'” Mayes v. State, 816 S.W.2d 79, 86 n.4 (Tex. Crim. App. 1991) (citation omitted). Thus, same transaction contextual evidence is admissible as an exception under rule 404(b) where such evidence is necessary to the jury's understanding of the instant offense. Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Same transaction contextual evidence should be admitted only if the facts and circumstances of the instant offense would otherwise make little or no sense. See id. Whether extraneous offense evidence has relevance apart from character conformity is a question for the trial court, and should be reviewed on appeal under an abuse of discretion standard. See Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).
        Brown testified she told Hardy she would put his belongings outside and that he should retrieve them. Brown passed her apartment before going to Barton's house and saw Hardy's vehicle there. Hardy called Brown's cell phone and left a recording of “Run and Hide” on her voicemail. To Brown, the song implied the threat of violence. Brown was suspicious of the amount of time Hardy was in the apartment, and she called the police. She parked inside Barton's garage because she did not want Hardy to know she was there. She was afraid there would be a “physical altercation” because they had fought in the past. Thus, evidence of the apartment burglary explained the circumstances of Brown's avoidance of Hardy and of Hardy's mental state when he arrived at Barton's house. Thus, the facts and circumstances of the indicted offense made little sense without bringing in evidence of the apartment burglary. See Rogers, 853 S.W.2d at 33. Because evidence of the apartment burglary was necessary, we discern no abuse of discretion in its admission. Accordingly, we resolve Hardy's second issue against him.
        In Hardy's third issue he contends that he was denied effective assistance of counsel at trial due to counsel's failure to object to Barton's victim-impact testimony during the punishment phase of trial. Specifically, Barton testified she was afraid Hardy was going to kill Brown during the incident; “[i]f he gets free he knows where I live, and he will [be] over there again”; and she (Barton) never wanted to see him again.
        To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence: (1) deficient performance, and (2) prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be “firmly founded in the record” and “the record must affirmatively demonstrate” the meritorious nature of the claim. Id. Direct appeal
is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id. This is true with regard to the question of deficient performance-in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. Id. “[T]trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003). Absent such an opportunity, an appellate court should not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
        The record is silent as to counsel's strategy or reasons for failing to object to Barton's testimony. This Court will not speculate as to what counsel's trial strategy might have been with regard to the alleged error. Moreover, we cannot say that counsel's failure to object to the witness testimony is “so outrageous that no competent attorney would have engaged in it.” See id. Therefore, Hardy has failed to rebut the strong presumption in favor of effectiveness of counsel.
Moreover, although appellant filed a motion for new trial, he did not allege in that motion that his counsel was ineffective and did not otherwise develop a record explaining why counsel failed to object to Barton's evidence. See Goodspeed, 187 S.W.3d at 392. The silent record in this case cannot overcome the presumption of effective assistance of counsel. See id. Accordingly, we resolve Hardy's third issue against him.
 
 
 
 
        Having resolved Hardy's three issues against him, we affirm the trial court's judgment.
 
                                                          
                                                          JIM MOSELEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060549f.u05
 
Footnote 1 The Honorable Bea Ann Smith, Retired, sitting by assignment.
Footnote 2 Appellate court cause number 05-06-00549-CR; trial court cause number F04-36139-QH.
Footnote 3 Appellate court cause number 05-06-00550-CR; trial court cause number F04-36140-QH.