DARBY v. STATE (1998)

OPINION

The trial court found appellant, Dannie Lee Darby, guilty of burglary of a habitation, and after having found three allegations ¹ of prior convictions to be true, the trial court assessed punishment at 35-years confinement.   On appeal, appellant contends (1) the evidence was insufficient to support his conviction because the State did not prove appellant entered the habitation;  (2) he was denied effective assistance of counsel at trial;  and (3) the evidence was insufficient to support his conviction because the State did not prove that the garage was a habitation.   We affirm.

FACTS

Lucille Laughlin, complainant, testified that she has known appellant for five years.   Appellant performed various repair and maintenance jobs for Laughlin.   On the morning of December 12, 1994, Laughlin left her home to run some errands.   When she left, her home and garage were locked and secured.   On the way home, Laughlin passed appellant in his truck.   Laughlin noticed two people in the truck.   Laughlin returned home at approximately noon.   When she went to put her car back in the garage several hours later, she noticed that the back door of her garage was unlocked.   She also noticed that a makeshift lock ² on one of the front garage doors had been tampered with.   Laughlin looked around the garage and saw that her toolbox was missing.

Laughlin reported the missing toolbox to the sheriff's department.   Three days later, Detective Bradley Moon recovered the toolbox from a pawnshop and returned the toolbox, which had been emptied, to her.   John Deaton, the manager of the pawnshop, testified that appellant pawned a toolbox on December 12, 1994.   The pawn ticket was admitted into evidence.

When Laughlin talked to appellant about the toolbox, appellant told her his roommate and his roommate's girlfriend took the toolbox.   They gained entry to the garage by shaking the garage door until it opened wide enough for the woman to crawl underneath the garage door.   According to Laughlin, appellant was too large to be able to crawl in that space underneath the garage door.   Appellant told Laughlin that he was at home asleep when the toolbox was stolen.   However, appellant admitted he pawned the toolbox.

David Boern, whose office is near Laughlin's home, testified that at approximately 11:30 a.m.   on December 12, 1994, he noticed an old, dark green Ford truck pull into Laughlin's driveway and stop in front of the garage.   Appellant drove a dark green Ford truck.   When Boern returned from lunch at 12:30 p.m., the truck was gone.

Tammy Wood, who lives down the street from Laughlin, testified that between 11:00 a.m.   and noon that day she was in her yard when appellant's green truck drove past her.   The truck was travelling in a direction that was away from Laughlin's house.   When asked whether she saw who was driving the truck, Wood responded, “I think-Mr.   Darby.”   Later, she testified there was no doubt in her mind that the person driving the truck was appellant.   Another person was in the truck with appellant.

SUFFICIENCY OF THE EVIDENCE

Standard of Review

 Evidence is sufficient when, viewed in the light most favorable to the verdict, a rational jury could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 317-318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979);  Matamoros v. State, 901 S.W.2d 470, 474 (Tex.Crim.App.1995);  Green v. State, 891 S.W.2d 289, 297 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).   If there is evidence that establishes guilt beyond a reasonable doubt, and if the trier of fact believes the evidence, we are not in a position to reverse the judgment on sufficiency of the evidence grounds.  Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988);  Reece v. State, 878 S.W.2d 320, 325 (Tex.App.-Houston [1st Dist.] 1994, no pet.).

Habitation

 In point of error three, appellant contends the evidence was insufficient to show that Laughlin's unattached garage was a habitation.   A “habitation” means a structure that is adapted for the overnight accomodation of people and includes “(A) each separately secured or occupied portion of the structure ․;   and (B) each structure appurtenant to or connected with the structure.”   See Tex. Penal Code Ann. § 30.01(1) (Vernon 1994).

Laughlin testified her unattached garage is approximately nine feet from her house and is fully enclosed.   Laughlin stores all items which she cannot store in her house in her garage.   She considers her garage to be part of her home.   In the storage room in the back of the garage, there is a bed in which Laughlin's grandson slept for six months.   Laughlin testified the garage was secured before she left to run errands on December 12, 1994.

It has been held that an unattached garage is a “structure appurtenant to” a residence and, therefore, is within the statutory definition of “habitation.”   Jones v. State, 690 S.W.2d 318, 319 (Tex.App.-Dallas 1985, pet. ref'd).   In reaching this holding, the Dallas court said the unattached garage was “necessarily connected with the use and enjoyment of the house, and it [was] secondary or incident to the principal building, the house.”  Id. (citation omitted).   In this case, Laughlin's unattached garage, which was used to store items she could not store in her house, was “appurtenant to” her house as the term is defined in Jones.

We overrule point of error three.

The discussion of the remaining points of error does not meet the criteria for publication, Tex.R.App. P. 47, and is thus ordered not published.

We affirm the trial court's judgment.

Entry

In point of error one, appellant contends the evidence is insufficient to show the element of entry to support his conviction for burglary of a habitation.   To support a conviction for burglary, the State must prove beyond a reasonable doubt that (1) appellant, without the effective consent of Laughlin, entered a habitation with intent to commit a felony or theft.   See Tex. Penal Code Ann. § 30.02(a) (Vernon 1994).  “Enter” means to intrude “any part of the body” or “any physical object connected with the body.”  Tex. Penal Code Ann. § 30.02(b) (Vernon 1994).   There is no evidence that appellant himself entered the garage within the meaning of section 30.02(b).   Therefore, for him to be guilty of burglary of a habitation, he must be shown to have acted as a party to the offense.

Under the law of parties, a person is criminally responsible for an offense committed by another if, acting with the intent to promote or assist in the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense.  Tex. Penal Code Ann. § 7.02(a)(2) (Vernon 1994).   To determine whether a person acted as a party to an offense, the trier of fact may look to events occurring before, during, and after the offense, and it may rely on actions that show an understanding and common design to engage in an act.  Hubbard v. State, 896 S.W.2d 359, 362 (Tex.App.-Houston [1st Dist.] 1995, no pet.).   Participation in an offense may be shown by circumstantial evidence.  Hubbard v. State, 896 S.W.2d at 362.

Appellant argues the indictment did not allege the law of parties, and, therefore, unless the evidence established appellant's guilt as a principal actor beyond a reasonable doubt, the evidence is insufficient to support his conviction.   We disagree.   The law of parties may be applied to a case even though no such allegation is contained in the indictment.  Jackson v. State, 898 S.W.2d 896, 898 (Tex.Crim.App.1995);  Diaz v. State, 902 S.W.2d 149, 151 (Tex.App.-Houston [1st Dist.] 1995, no pet.) (bench trial);  see also Tex. Penal Code Ann. § 7.01(c) (Vernon 1994).

Viewing the evidence in the light most favorable to the verdict, we conclude the totality of the circumstantial evidence is sufficient to show appellant was a party to the burglary of Laughlin's garage.   Laughlin testified that her garage door had been tampered with.   Laughlin further testified appellant told her that his roommate's girlfriend entered the garage by crawling underneath the garage door.   Boern testified he saw appellant's truck in front of Laughlin's garage at approximately 11:30 a.m.   Wood testified she saw appellant and another person in appellant's truck between 11:00 a.m.   and noon.   Laughlin testified that she passed appellant on her way home and that there was another person in his truck.   The manager of the pawnshop testified appellant pawned the missing toolbox on December 12, 1994, or the same day Laughlin noticed it was missing.

We overrule point of error one.

INEFFECTIVE ASSISTANCE OF COUNSEL

In point of error two, appellant contends he was denied the right to effective assistance of counsel as guaranteed under the United States Constitution.   See U.S. Const. amend. 6;  U.S. Const. amend. 14.   Specifically, appellant contends his trial counsel (1) did not object to leading questions asked throughout the trial;  (2) did not object to questions that called for hearsay testimony throughout the entire trial;  (3) did not present evidence;  and (4) argued during the punishment phase that defendant committed a “reprehensible crime” and deserved to be punished.

To show ineffective assistance of counsel during the guilt/innocence phase, appellant must demonstrate (1) his trial counsel's performance was deficient because it fell below an objective standard of reasonableness, and (2) there was a reasonable probability that, but for counsel's errors, the result of the proceeding would have differed.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984);  Rodriguez v. State, 899 S.W.2d 658, 664 (Tex.Crim.App.1995).   Whether the Strickland test has been met is to be judged by the totality of the representation, not isolated acts or omissions.  Rodriguez, 899 S.W.2d at 665.   In reviewing appellant's claim for ineffective assistance of counsel, we must indulge a strong presumption that the counsel's conduct falls within the wide range of reasonable professional assistance.  Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994);  Heiman v. State, 923 S.W.2d 622, 625 (Tex.App.-Houston [1st Dist.] 1995, pet. ref'd).   That is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.  Strickland, 466 U.S. at 689, 104 S.Ct. at 2065;  Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.).

The standard of review for ineffective assistance during the punishment phase is less strict than the Strickland standard.  Thompson v. State, 915 S.W.2d 897, 904 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd).   The test is (1) whether counsel was reasonably likely to render effective assistance and (2) whether counsel reasonably rendered effective assistance.  Ex parte Duffy, 607 S.W.2d 507, 516 (Tex.Crim.App.1980).   This standard does not mean errorless counsel or competency judged by hindsight.  Thompson, 915 S.W.2d at 905.

Appellant argues the admission of hearsay testimony during trial, the lack of evidence presented by his trial counsel, and his trial counsel's admission that appellant committed the crime during the punishment phase could not be explained away by trial strategy.   We are unable to make this determination because there was no motion for new trial hearing;  and, thus, the record is silent as to why the appellant's trial counsel did not make the hearsay objections, did not present evidence, and admitted that appellant committed the crime during the punishment phase.   To find the trial counsel was ineffective based on these grounds would call for speculation, which we will not do.   See Gamble, 916 S.W.2d at 93.   We conclude appellant has not rebutted the presumption that his trial counsel's conduct fell within the wide range of professional judgment.

We overrule point of error two.

We affirm the trial court's judgment.

Entry

INEFFECTIVE ASSISTANCE OF COUNSEL

FOOTNOTES

1.   Two of the prior convictions occurred on the same day.

2.   The makeshift lock consisted of two iron bars, which when placed in two holes, secured the garage door.   Laughlin noticed that one bar was partially out of the hole, and the other bar was lying on the floor of the garage.

SCHNEIDER, Chief Justice.