Jeffrey Durand Henderson v. The State of Texas--Appeal from 294th District Court of Van Zandt County

NO. 12-05-00268-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JEFFREY DURAND HENDERSON, APPEAL FROM THE 294TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

Jeffrey Durand Henderson appeals his conviction for burglary of a habitation. In four issues, Appellant contends that the evidence was legally and factually insufficient to support the verdict, that his right to effective assistance of counsel was violated, and that the trial court failed to administer an oath to prospective jurors before jury selection. We affirm.

Background

Robert Chambers and his wife built a home in a rural area near Ben Wheeler, Texas. The home sits on a heavily wooded lot comprising more than one hundred acres. It is 3400 feet from the county road, and the driveway to reach it is nearly a mile in length. The house is so far off the road that the lights from the house cannot be seen from the road at night.

Robert returned home late one evening. As was his custom, he emptied his pockets on a small table in the living room as he entered the house. When he came back to the living room a short time later, he was surprised to see Appellant standing there, holding his wallet. Chambers grabbed a handgun and a telephone. Appellant dropped the wallet and ran outside.

Chambers followed, and he was able to convince Appellant to yield. He called the police, and they arrived sometime thereafter. After Appellant was taken into custody, Chambers indicated to the police that several items of his personal property were outside the home. Specifically, his car keys were on the back of a Jeep, and a small bag that had contained washers was now in the yard a short distance from where Appellant had stopped. Chambers also noticed that the door to his car had been opened and that several bills were missing from his wallet.

A Van Zandt County grand jury indicted Appellant for the felony offense of burglary of a habitation. The indictment also alleged that he had been convicted previously of a felony offense. At trial, Appellant s defense was that he had only wanted to use the telephone. Appellant had offered this explanation when he was stopped by the homeowner, and two of his relatives testified that Appellant had planned to call his cousin that evening. Appellant lived nearby with several of his relatives, and they did not have telephone service.

The jury convicted Appellant as charged. Appellant pleaded true to the enhancement allegation, and the State introduced evidence that Appellant had been convicted previously of three felony offenses. The jury assessed punishment at thirty-five years of imprisonment and a fine of $10,000.00. This appeal followed.

Sufficiency of the Evidence

In his first and second issues, Appellant argues that the evidence was legally and factually insufficient to show that he committed the offense of burglary of a habitation. Specifically, Appellant asserts that there is no evidence that he intended to commit a theft.

Standard of Review Legal Sufficiency

The Fourteenth Amendment due process guarantee requires that there be legally sufficient evidence to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005), petitions for cert. filed, Nos. 05-856, 05-8398. Evidence is legally sufficient if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). For legal sufficiency review, the evidence is examined in the light most favorable to the jury s verdict. Jackson, 443 U.S. at 319, 99 S. Ct. 2789; Johnson, 871 S.W.2d at 186.

The legal sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State s burden of proof or unnecessarily restrict the State s theories of liability, and adequately describes the particular offense for which the defendant is tried. Id.

A person commits the offense of burglary of habitation if, without the effective consent of the owner, he enters a habitation with the intent to commit theft. Tex. Pen. Code Ann. 30.02(a)(1) (Vernon 2005); Tabor v. State, 88 S.W.3d 783, 786 (Tex. App. Tyler 2002, pet. ref d). The only contested issue at trial, and on appeal, is whether Appellant acted with the specific intent to commit theft when he entered the home.

Analysis Legal Sufficiency

Intent to commit theft may be inferred from a person s actions or conduct. McGee v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989). In this case, viewing the evidence in the light most favorable to the verdict, Appellant acted with the intent to commit theft. He was caught in another s home with the homeowner s wallet in his hand. Additionally, there was testimony that a small bag, coins, and keys that were on the table with the wallet were moved to near where Appellant was finally stopped. Finally, Appellant attempted to flee when confronted by the homeowner. A rational jury could have found all of the essential elements of the offense beyond a reasonable doubt. We overrule Appellant s first issue.

Standard of Review Factual Sufficiency

In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484-85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002);. A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Analysis Factual Sufficiency

Appellant argues that the jury should have believed his version of events: that he merely wished to use the homeowner s telephone and that he did not intend to commit theft. This theory was supported by Appellant s contemporaneous statements and by the testimony of two of his relatives that he was to make a phone call that evening.

This evidence cannot be reconciled, however, with the testimony of the homeowner that Appellant took his pocket change and car keys from the home and had the homeowner s wallet in his hand when he was confronted. Appellant s argument appears to be, as it was at trial, that the homeowner was either mistaken about those facts or not telling the truth about them.

In our system, the jury weighs and decides these kinds of conflicts in the evidence. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). We intrude on that process only when the result is clearly unjust and wrong. Id. In this case, the jury observed the witnesses and was able to evaluate their demeanor and credibility. There is nothing in the record to compel the conclusion that the homeowner s testimony was fabricated or mistaken. The evidence is factually sufficient to support the conviction. We overrule Appellant s second issue.

Ineffective Assistance of Counsel

In his third issue, Appellant complains that he was denied effective assistance of counsel because his lawyer performed inadequately during the voir dire examination of prospective jurors and because he did not object to various pieces of evidence.

Standard of Review

To prevail on a claim of ineffective assistance of counsel, a defendant must prove that his lawyer s performance was deficient, that the lawyer made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment, and that the errors of counsel were so serious that there exists a reasonable probability that, but for counsel s errors, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); see also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986).

When considering the issue of ineffective assistance of counsel, we begin with the strong presumption that counsel was effective, and we presume that sound strategy motivated counsel s actions and decisions. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). An appellant has the burden of rebutting this presumption by presenting evidence illustrating why his trial counsel did what he did. See id. The record on appeal is generally not sufficient to show that counsel s representation was so deficient as to meet the first part of the Strickland standard because counsel s decisions often involve facts and considerations that do not appear in the appellate record. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); see also Rogers v. State, 183 S.W.3d 853, 868 (Tex. App. Tyler 2005, no pet.).

After proving error, an appellant must affirmatively prove prejudice by a preponderance of the evidence. See Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). To prove prejudice, an appellant must show that there is a reasonable probability that, but for his attorney s errors, the jury would have had a reasonable doubt about his guilt. Id.

Analysis Voir Dire

Appellant first complains that counsel spent significant time discussing probation for his client during voir dire and that this was below a reasonable standard of representation because Appellant was not eligible for probation. Counsel s questions about probation were as follows:

COUNSEL: If there was a Defendant that were [sic] probation eligible, with the burglary of a habitation, is there anyone here that feels probation would not be an option for the Defendant?

JUROR NO. 3: Yes.

COUNSEL: You feel that probation would not be an option at any time.

JUROR NO. 3: If he s found guilty, no, there is no probation. Found guilty, he serves his time; no probation.

COUNSEL: All right. Thank you for your honesty. Is there anyone else that feels the same way as [Juror No. 3]? Okay. [Juror No. 79]?

JUROR NO. 79: If he s guilty, no probation.

COUNSEL: Is there anyone else that agrees with [Juror Nos. 79 and 3] that probation is not Juror No. 41.

JUROR NO. 41: Yes.

COUNSEL: Anyone else? [Juror No. 27], okay. And you feel that there would just be no way, if it was an option, that you can do it?

JUROR NO. 27: I have been a victim and

Later, counsel was able to persuade the trial court to exclude Juror 27 for cause because of her statement that she could not consider probation, even though his client had not applied for probation and the parties agreed that he was ineligible for probation from a jury. Jurors 3 and 79 had already been excluded for cause because they would have held it against Appellant if he did not testify.

Appellant is correct that it could be risky to discuss probation when it was not an option for the jury. On the other hand, the question about probation brought out the feelings and predispositions of several jurors, including the conclusion of several of them that they could not consider probation even for a person convicted of burglary of a habitation. Appellant s burden is to show that counsel s actions are outside what may be considered sound trial strategy. Jackson, 877 S.W.2d at 771. That burden is not met in this case. It was a reasonable strategy to identify and attempt to remove potential jurors who could not consider probation even though it risked confusing the issue. Trial counsel s apparent conclusion that individuals who could not consider probation would not be receptive to his other arguments is just the kind of judgment that attorneys are called upon to make regularly.

Analysis Failure to Object

Appellant s second complaint is that trial counsel did not object to the admission of a video taken of the home and surrounding area and that he did not object to the penitentiary packet. Our inquiry does not go any further unless Appellant can show that the trial court would have committed error if it had overruled the proposed objection. Vaughn v. State, 931 S.W.2d 564, 566 (Tex. Crim. App. 1996).

With respect to the video, this threshold is not met. Appellant claims that the evidence was not relevant because it wholly failed to prove what the home was like on the night in question. The record does not support this conclusion. The video was made in the weeks before the trial and the homeowner had made improvements to the interior of the home since the incident. But, both sides were able to carefully examine the homeowner about the changes he had made, and it does not appear that the changes were particularly significant. Furthermore, the thrust of the evidence was not the interior layout of the home, but the distance of the home from the road, something that had not changed. Even with the interior changes, the video was relevant, and we are not persuaded that the video should have been excluded upon objection or that counsel was duty bound to raise an objection.

With respect to the penitentiary packet, Appellant argues that counsel should have objected because it contained information about additional offenses not contained in the indictment, because it contained hearsay, and because its admission violated Appellant s Sixth Amendment right to confront his accusers.

Generally, prior convictions are admissible in the punishment phase of trial. Tex. Code Crim. Proc. Ann. art. 37.07 3(a)(1) (Vernon 2005). The other two prior convictions were not offered to support an enhanced sentence, but to assist the jury in their determination of the appropriate punishment. In the punishment phase of trial, the State is entitled to prove each and every one of Appellant s prior convictions whether alleged in the indictment or not. Counsel was not ineffective for failing to object because the prior convictions were not alleged in the indictment.

Nor was counsel ineffective for failing to object on the basis of the general rule against hearsay. It has long been the law that penitentiary packets are admissible as an exception to the hearsay rule if they are properly authenticated as public records. See Tex. R. Evid. 803(8), 901(b)(7), 902(4); State v. Handsbur, 816 S.W.2d 749, 750 (Tex. Crim. App. 1991); Reed v. State, 811 S.W.2d 582, 584 (Tex. Crim. App. 1991). The penitentiary packet in this case was properly authenticated by the Texas Department of Criminal Justice. The certification of the record keeper at the penal institution is sufficient for the record to be admissible even if each document within the record is not certified by the originating jurisdiction. Reed, 811 S.W.2d at 586-87. The penitentiary packets were not inadmissible hearsay.

Finally, Appellant complains his attorney should have objected to the packet on the basis of his right to confront his accusers. The packet, including the formal parts, is twelve pages in length and consists only of Appellant s photograph, his fingerprints, and the judgments of conviction for three felony offenses. The individual judgments are each three pages in length and do not feature police reports, victim statements, or other accusatory information. They merely recite the fact of Appellant s conviction in each case.

Appellant is correct that Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), reordered the evaluation of hearsay. Crawford stands for the principle that testimonial evidence may not be admitted by a state statute or common law rule that substitutes a determination of reliability for the crucible of cross examination. Id., 514 U.S. at 61, 124 S. Ct. at 1370. But Crawford and the Sixth Amendment require confrontation only for testimonial statements. Id., 541 U.S. at 51-52, 124 S. Ct. at 1364. Although the Court did not define the term testimonial, it did, in dicta, exclude business records from the class of testimonial evidence. Id., 541 U.S. at 56, 124 S. Ct. at 1367 ( Most of the hearsay exceptions covered statements that by their nature were not testimonial--for example, business records or statements in furtherance of a conspiracy. ). For purposes of this analysis, there is little difference between business records and public records so long as the documents themselves do not contain testimonial material. A series of Texas cases since Crawford has held that public records are nontestimonial. Denoso v. State, 156 S.W.3d 166, 181-82 (Tex. App. Corpus Christi 2005, pet. ref d)(autopsy report); Mitchell v. State, 04-04-00885-CR, 2005 Tex. App. LEXIS 10830, at *3-4 (Tex. App. San Antonio 2005, pet. ref d) (not designated for publication);Barela v. State, 08-02-00492-CR, 2004 Tex. App. LEXIS 8802, at *15-21 (Tex. App. El Paso 2004) (not designated for publication), aff d, 180 S.W.3d 145 (Tex. Crim. App. 2005).

Of course, public records may contain testimonial evidence. In Russeau, 171 S.W.3d at 881, the court of criminal appeals found error in the admission of jail records as business records. The records contained discipline reports and incident reports with written statements made by correctional officers of their own observations. Id. at 880. The court found these statements to be testimonial and subject to the Sixth Amendment right to confrontation. Id. at 881. On the other hand, the Fourteenth Court of Appeals, distinguishing Russeau, held that jail records not containing statements or observations made by correctional officers were not testimonial. Ford v. State, 179 S.W.3d 203, 209 (Tex. App. Houston [14th Dist.] 2005, pet. ref d). The records admitted in Ford only recited the prisoners offenses and the punishments he received for the offenses. The records did not contain statements that were testimonial in nature. Id.

The records in this case contained no testimonial evidence and would have been admitted even if there had been an objection pursuant to Crawford. Counsel was not ineffective for failing to raise an objection that would have been denied. We overrule Appellant s third issue.

Administration of Oath to Prospective Jurors

In his fourth issue, Appellant noted that the record did not show that the prospective jurors had been administered an oath as required by Texas law. See Tex. Code Crim. Proc. Ann. art. 35.02 (Vernon 2005). As counsel disclosed forthrightly in his brief, this issue is familiar. See White v. State, 12-05-00012-CR & 12-05-00055-CR, 2006 Tex. App. LEXIS 4454, at *9-10 (Tex. App. Tyler 2006, no pet. h.) (not designated for publication). As occurred in White, the court reporter has prepared a supplemental record containing the qualification of the jury venire for this case. We have reviewed the supplemental reporter s record and are satisfied that the oath required by article 35.02 was administered to the panel of prospective jurors before jury selection began. Appellant s fourth issue is overruled.

Disposition

We affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered June 30, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)