Kenneth Eugene Leaks v. The State of Texas--Appeal from 351st District Court of Harris County

NUMBER 13-03-613-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

KENNETH EUGENE LEAKS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 351st District Court

of Harris County, Texas.

__________________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Kenneth Eugene Leaks, was indicted for burglary of a habitation. See Tex. Pen. Code Ann. 30.02(a)(3) (Vernon 2003). The indictment further contained allegations that appellant was a habitual felony offender. Appellant pleaded "not guilty." A jury found him guilty of burglary of a habitation as alleged in the indictment, and appellant stipulated to his prior convictions. In accordance with the jury's assessment of punishment, the trial court sentenced appellant to fifty years in the Texas Department of Criminal Justice, Institutional Division. Appellant appeals from that judgment. Concluding the appeal is frivolous, appellant's attorney filed a brief in which he presented two potentially arguable issues. Appellant has filed a pro se brief asserting three points of error. The trial court has certified that this case "is not a plea-bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). We affirm the trial court's judgment.

Because all issues of law are settled, our memorandum opinion only advises the parties of the Court's decision and the basic reasons for it. See id. at 47.4.

I. Anders Brief

A. Compliance with Anders v. California

Appellant's court-appointed counsel filed a brief in which he has concluded the appeal is frivolous. Anders v. California, 386 U.S. 738, 744 (1967). Appellant's brief meets the requirements of Anders. Id. at 744-45; see High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. [Panel Op.] 1978). In compliance with Anders, counsel presented a professional evaluation of the record and referred this Court to what, in his opinion, are the only possible errors in the record that might arguably support an appeal. See Anders, 386 U.S. at 744; Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974); see also High, 573 S.W.2d at 812. Counsel certified to this Court that: (1) he conscientiously reviewed the record and researched the applicable law; (2) in his opinion, this appeal lacks merit and is frivolous; (3) he set forth all points which might arguably support an appeal; (4) he forwarded a copy of the brief to appellant with a letter informing him of the filing of the brief and the motion to withdraw as counsel; and (5) he informed appellant of his right to access the appellate record, to file a pro se brief, and the time period within which he must comply. See Anders, 386 U.S. at 744-45; see also Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991); High, 573 S.W.2d at 813.

B. Ineffective Assistance of Counsel

As directed by Anders, counsel raises ineffective assistance of counsel as a possible issue for our review. By his first issue, appellant contends counsel was ineffective when he failed to object to the admission of State's Exhibit 18-A, a redacted copy of a letter written and mailed to the trial court by appellant wherein he admitted hitting the complainant. By a second issue, counsel also raises ineffective assistance of counsel on the basis that trial counsel was ineffective when he did not make an offer of proof upon the trial court's exclusion of evidence of the complainant's prior inconsistent written statement regarding consent for appellant to be in her residence.

The United States Supreme Court and the Texas Court of Criminal Appeals have promulgated a two-prong test to determine whether representation was so inadequate that it violated a defendant s sixth amendment right to counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 726 S.W.2d 53, 54-55 (Tex. Crim. App. 1986); De Pena v. State, 148 S.W.3d 461, 468-69 (Tex. App. Corpus Christi 2004, no pet.). To establish ineffective assistance of counsel, appellant must show: (1) his attorney s representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for his attorney s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687; Stone v. State, 17 S.W.3d 348, 349-50 (Tex. App. Corpus Christi 2000, pet. ref d).

Following the test for determining ineffective assistance of counsel as set forth in Strickland, we conclude, from a review of the totality of representation, appellant has not shown how his attorney s representation fell below an objective standard of reasonableness and has failed to show that there is a reasonable probability that, but for his attorney s errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Moreover, in the absence of evidence of counsel s reasons for the challenged conduct, we assume there was a strategic motivation for not objecting to the admission of appellant's redacted letter and for not making an offer of proof when the court excluded evidence of the complainant's prior inconsistent statements regarding consent. // Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

Based on this analysis, we agree with counsel that the issues presented for our review are without merit.

II. Pro Se Brief

Appellant filed a pro se brief and, by three points of error, complains of legal and factual insufficiency and failure to instruct the jury on the defense of necessity.A. Sufficiency of the Evidence

By points of error one and two, appellant contends that the evidence was legally and factually insufficient to establish that he was aware that entering the habitation was unlawful, and that he intentionally entered without consent. The relevant text of section 30.02(a) of the penal code provides that "[a] person commits an offense if, without the effective consent of the owner, he . . . enters a building or habitation and commits or attempts to commit a felony, theft or an assault." Tex. Pen. Code Ann. 30.02(a)(3) (Vernon 2003). Citing sections 6.02(a) and 6.03(a) of the penal code, appellant asserts that the State was required to demonstrate that he was aware he lacked consent and that it was his conscious objective or desire to engage in the conduct. See id. 6.02(a) & 6.03(a). Appellant's reliance on sections 6.02 and 6.03 is misplaced.

The State must simply prove that appellant entered the habitation and that the entry was without the owner's consent. See Espinoza v. State, 955 S.W.2d 108, 111 (Tex. App. Waco 1997, pet. ref'd). It must also prove that, after entry into the habitation, appellant formed an intent to commit, and did commit, a felony, theft or an assault. Flores v. State, 902 S.W.2d 618, 620 (Tex. App. Austin 1995, pet. ref'd) ("Prosecution under section 30.02(a)(3) is appropriate when the accused enters without effective consent and, lacking intent to commit any crime upon his entry, subsequently forms that intent and commits or attempts to commit a felony or theft."). Thus, the State was not required to prove appellant was aware that entering the habitation was unlawful or that he intentionally entered the habitation knowing he was doing so without consent. We need not determine then whether there is legally or factually sufficient evidence to establish that appellant was aware that he was entering the habitation without the complainant's consent because this is not an essential element of the crime of burglary under subsection (a)(3). See Tex. Pen. Code Ann. 30.02(a)(3) (Vernon 2003).

Additionally, to the extent appellant is complaining that the evidence is legally and factually insufficient to prove his entry was without the complainant's effective consent, we address this issue separately.

In a legal sufficiency review, this Court must examine the evidence presented in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense present beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). In making this determination, the reviewing court considers all the evidence admitted that will sustain the conviction, including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).

On appeal, we measure the legal sufficiency of the evidence in a jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Poindexter v. State, 115 S.W.3d 295, 298 (Tex. App. Corpus Christi 2003, pet. denied). This hypothetically correct jury charge would set out the law, be authorized by the indictment, not necessarily increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; see Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000).

In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if proof of guilt is so obviously weak as to undermine confidence in the jury s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). We are not bound to view the evidence in the light most favorable to the verdict, and may consider the testimony of all the witnesses. Johnson, 23 S.W.3d at 10-12. In our factual sufficiency review, we are again required to accord due deference to the jury's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment. Swearingen, 101 S.W.3d at 97; Johnson, 23 S.W.3d at 7; Mosley, 983 S.W.2d at 254. We also measure the factual sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App. Corpus Christi 2002, pet. ref'd).

In regard to this sufficiency challenge, appellant appears to be arguing that there is insufficient evidence to support the jury's finding that, without consent of the owner, he entered the habitation. He argues that the evidence demonstrates that he was considered a member of the household with authority to act for the owner and that apparent consent was established because (1) he had been involved with the complainant on and off for approximately six years; (2) they had lived together in the past and he continued to occasionally spend the night at her residence; (3) and appellant had developed an "uncle-like" relationship with complainant's children and had authority to discipline them.

Effective consent is defined as assent in fact, whether express or apparent, and includes consent by a person legally authorized to act for the owner. Tex. Pen. Code Ann. 1.07(a)(11), (19) (Vernon Supp. 2004-2005). Here, the complainant testified she and appellant had an "off and on" relationship for approximately six years. Occasionally during that period they lived together at her apartment. In early 2002 appellant moved out. He was not living there on July 19, 2002, the date of the incident, although they had continued dating after he moved out of the apartment. Although appellant testified he unlocked the door before entering the residence, the complainant stated that appellant did not have a key to the apartment and that she had changed the locks on the doors the day he left. The complainant asserted appellant did not have her consent to enter her apartment and, had he knocked on her door, she would not have let him in on that day. On cross examination, the complainant acknowledged appellant had some of his property at her residence and that a statement she had signed contained the assertion that "on the date of this incident she considered her residence to be his residence" and that on the date of the incident he did have permission to enter her residence. She further stated that she signed it under pressure, and it was not true, "a lot of things on the paper is [sic] not true."

Reviewing the evidence in the light most favorable to the verdict, see Jackson, 443 U.S. at 319, we conclude that the jury, acting as a rational trier of facts, could have found beyond a reasonable doubt that appellant entered complainant's habitation without her effective consent. See Tex. Pen. Code Ann. 30.02 (Vernon 2003). Thus, the evidence is legally sufficient to support appellant s conviction. Moreover, after reviewing all the evidence, we conclude that the proof of guilt is not so obviously weak as to undermine confidence in the jury s determination nor is the proof of guilt greatly outweighed by contrary evidence. See Swearingen, 101 S.W.3d at 97. Thus, we conclude the evidence is also factually sufficient to support appellant s conviction.

Accordingly, appellant s first and second points are overruled.

B. Jury Instruction on Defense of Necessity

By appellant's third point of error, appellant contends the trial court committed harmful error when it failed to instruct the jury on the defense of necessity. See id. 9.22. However, to raise the defense of necessity, a defendant must admit to the offense and then offer necessity as a justification. Young v. State, 991 S.W.2d 835, 838-39 (Tex. Crim. App. 1999); Withers v. State, 994 S.W.2d 742, 745 (Tex. App. Corpus Christi 1999, pet. ref'd). In this case, appellant argued he did not commit the offense because he had apparent or implied consent to enter the apartment. Moreover, although appellant testified that he pushed the complainant out of the way, he also testified that when he entered the residence an unknown male was hitting her. Because appellant did not admit to the conduct underlying the offense, he cannot raise a justification defense. Therefore, the necessity defense was never raised, and appellant was not entitled to a jury instruction on the defense of necessity. We overrule appellant's third point of error.

III. Independent Review of Record

The Supreme Court advised appellate courts that upon receiving a frivolous appeal brief, they must conduct a full examination of all the proceeding[s] to decide whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988); see Ybarra v. State, 93 S.W.3d 922, 926 (Tex. App. Corpus Christi 2003, no pet.). Accordingly, we have carefully reviewed the record and have found nothing that would arguably support an appeal. See Stafford, 813 S.W.2d at 509. We agree with counsel that the appeal is wholly frivolous and conclude the appeal is without merit.

IV. Conclusion

The judgment of the trial court is affirmed. Additionally, in accordance with Anders, appellant's attorney has asked permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant counsel's motion to withdraw. We order counsel to notify appellant of the disposition of this appeal and of the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 24th day of March, 2005.