Vincent Macri, Jr. v. The State of Texas--Appeal from 187th Judicial District Court of Bexar County

No. 04-98-00378-CR
Vincent MACRI, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CR-5378
Honorable Bill M. White, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Phil Hardberger, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: July 28, 1999

AFFIRMED

Vincent Macri, Jr. appeals his conviction for burglary, arguing his trial counsel provided ineffective assistance in failing to investigate and raise a temporary insanity defense and in failing to request a lesser included instruction on criminal mischief. We disagree.

Factual and Procedural Background

Macri began dating Sonja Baggett around May 1995 and moved into her home about one year later. During this time, Macri received periodic psychiatric treatment at the encouragement of Baggett. By January 15, 1997, the relationship had ended and Baggett told Macri to leave her house. Macri left, and Baggett activated her home alarm and changed her phone number and door locks. On the night of February 19, 1997, while Baggett and her children were away, Macri entered Baggett's house, setting off the alarm.

The police, responding to the alarm, arrived at Baggett's house, knocked on the door, and identified themselves as police officers. The police immediately heard a loud "bang" followed by Macri yelling "Come and get me. Come and get me if you want me." The police retreated to defensive positions around the outside of the house and began talking with Macri. Macri, talking through a broken upstairs window, demanded to know where Baggett was and explained he was upset because she had treated him poorly. Macri wore a tank top with a fluorescent orange circle painted in the middle, "like a target," and he yelled at the police to aim at the circle and shoot him. Macri also admitted he was a cocaine user and "[h]e had had quite a bit of cocaine that night."

While he was talking to the police, Macri would get very angry and walk away from the window, at which point the police could no longer see Macri but could hear loud crashing and banging noises inside the house. Macri began demanding the police bring Baggett to the house. After the police stalled, Macri threatened "If she is not here within 15 minutes, I am going to set this place on fire." Immediately after fifteen minutes had passed, Macri stepped away from the window, the police heard a loud crash at the door, and flames appeared inside the house. Macri went back upstairs and the police pleaded with him to give himself up. Macri refused, and when the fire became too intense, he climbed out of the window and onto the roof. Macri walked around the roof screaming at the police, jumping up and down, and pulling shingles and vents off the roof. Eventually, hours after the police initially found Macri in the house, they persuaded him to come down. Macri was placed in custody and driven to a hospital where he was treated for intoxication and smoke inhalation.

Police investigation after the standoff revealed heavy damage to the house. According to the arson investigator, the fire had been intentionally started with gasoline near the front door. In addition to the fire and smoke damage, the police also found spray paint on the walls and furniture and broken windows.

Macri was indicted for burglary and arson. Prior to trial, Macri's lawyer did not file a notice of intent to offer evidence of insanity. Rather, at trial, Macri's defense was that he did not intend to set fire to the house; he went to the house wanting to see Baggett and intending to commit suicide by lighting himself on fire in the front yard. The jury was charged solely on the burglary count, upon which they returned a guilty verdict. The court subsequently assessed punishment at twenty years in prison and ordered restitution of $115,294.21.

Discussion

The sole issue on appeal is whether Macri's trial counsel provided ineffective assistance. Macri argues his counsel was ineffective because he failed to obtain a defense expert to determine his sanity and help with a temporary insanity defense, he failed to raise a temporary insanity defense, and he failed to request a charge on the lesser included offense of criminal mischief.

When asserting ineffective assistance of counsel, an appellant has the burden of showing (1) his counsel's performance was deficient and (2) the deficient performance prejudiced the appellant's defense to such a degree that he was denied a fair trial. Strickland v. Washington, 466 U.S. 668, 687 (1984); Willkerson v. State, 726 S.W.2d 542, 548 (Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). We judge the effectiveness of an appellant's counsel under the totality of the circumstances, keeping in mind that a criminal defendant is not entitled to completely error free representation. Wilkerson, 726 S.W.2d at 548; Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986).

In his second point of error, Macri contends his counsel was ineffective in failing to obtain a defense expert to determine his sanity at the time of the offense and assist in the preparation of an insanity defense. The record demonstrates Macri's counsel filed neither a notice of intent to raise the insanity defense nor a motion to appoint a mental health expert. See Tex. Code Crim. Proc. Ann. art. 46.03 2, 3 (Vernon 1979 & Supp. 1998). However, we cannot "assume that because a record is silent as to the depth of an attorney's investigation of the insanity defense, he made no such investigation." Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). Indeed, there is evidence Macri's attorney was aware of two psychiatric reports conducted for a different court that concluded Macri was sane at the time of the burglary.(1) Furthermore, to the extent Macri complains his counsel failed to find and bring a mental health expert to testify at trial, we are unable to find any evidence regarding who such a witness would have been, whether the witness would have been available at trial, and whether the witness's testimony would have been favorable to Macri. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Harling v. State, 899 S.W.2d 9, 13 (Tex. App.--San Antonio 1995, pet. ref'd). Therefore, we hold Macri has failed to meet his burden in demonstrating his trial counsel's performance was deficient in investigating and obtaining an expert witness on the issue of temporary insanity.

Macri further argues his trial counsel was ineffective for failing to raise a temporary insanity defense. However, an attorney is not ineffective for failing to raise an insanity defense where the evidence does not support such a defense. See Wilkerson, 726 S.W.2d at 551. While there is evidence Macri was on cocaine the night of the burglary, voluntary intoxication is not a defense to a crime. Tex. Pen. Code Ann. 8.04(a) (Vernon 1994). Likewise, Macri's testimony that he could not remember setting the house on fire and the police officer's testimony that Macri was acting "bizarrely" and "out of control" was insufficient to raise the issue of insanity. See Lugo v. State, 732 S.W.2d 662, 667 (Tex. App.--Corpus Christi 1987, no pet.). On the whole, there is no evidence Macri did not know his conduct was wrong. See Tex. Pen. Code Ann. 8.01(Vernon 1994); Still v. State, 709 S.W.2d 658, 661 (Tex. Crim. App. 1986). Therefore, Macri's counsel was not ineffective in failing to raise a temporary insanity defense.

In his final point of error, Macri argues his counsel was ineffective in failing to request a lesser included charge on the offense of criminal mischief. A defendant is entitled to a charge on a lesser included offense if: (1) the offense is a "lesser included offense" as defined by article 37.09 of the Texas Code of Criminal Procedure, Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998), and (2) some evidence exists "in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense." Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). A person commits the offense of burglary, as charged in this case, if, without the effective consent of the owner, he (1) enters a habitation with the intent to commit a felony or (2) enters a habitation and attempts to commit or commits a felony. Tex. Pen. Code Ann. 30.02(a)(1), (3) (Vernon 1994).The felony alleged to have been intended, attempted, or committed by Macri when he entered Baggett's home was arson. See id. 28.02. A person commits the offense of criminal mischief

if, without the effective consent of the owner:

(1) he intentionally or knowingly damages or destroys the tangible property of the owner;

(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or

(3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.

Id. 28.03(a).

Even if we assume criminal mischief is a lesser included offense under article 37.09, Macri presented no evidence that he entered Baggett's house with her consent. That is, there was no evidence that if Macri was guilty, he was guilty only of the lesser included offense of criminal mischief. See Farley v. State, 970 S.W.2d 755, 757 (Tex. App.--Fort Worth 1998, no pet.); Robledo v. State, 717 S.W.2d 647, 650-51 (Tex. App.--Amarillo 1986, no pet.). Therefore, Macri's counsel's performance was not deficient in failing to request an instruction on criminal mischief. See Rogers v. State, 795 S.W.2d 300, 305 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd).

Accordingly, we hold Macri's counsel did not provide ineffective assistance at trial, overrule Macri's points of error, and affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

1. At the punishment phase of the trial, Macri's counsel offered two psychiatric evaluations conducted by the same doctor. Both were conducted at the request of Judge Raymond Angelini in an earlier cause for the same burglary. The doctor concluded Macri was addicted to cocaine and was under the influence of cocaine at the time of the burglary. The doctor also concluded Macri suffered from a mild form of bipolar illness. However, in regard to a possible temporary insanity defense, the doctor concluded Macri "did not suffer from a severe mental disease," and that "he knew what he was doing" at the time of the offense.