LON RADCLIFF v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

Appellant Lon Radcliff was charged by indictment with one count of evading arrest, a state-jail felony, see TEX. PENAL CODE ANN. § 38.04(b) (West, Westlaw through 2015 R.S.), and one count of burglary of a habitation, a second-degree felony. See id. § 30.02 (West, Westlaw through 2015 R.S.). By two issues, Radcliff argues that the evidence was legally insufficient to convict him for burglary and that he received ineffective assistance of counsel. We affirm.

I. BACKGROUND

Sharon Vanderpool testified that on September 24, 2015, she saw two men walking near Alameda and Atlantic Street in Corpus Christi and that one of them was pulling along a recycling dumpster. She thought it looked suspicious so she called the police. Officer Jesse Menchaca testified that he was dispatched to respond to the suspicious person report. When he arrived, he testified that he saw someone—whom he later identified as Radcliff—pushing a blue city recycling bin down the sidewalk. According to Menchaca, when he approached Radcliff to speak to him, Radcliff dropped some latex gloves and immediately ran away. Inside of the recycling bin was a flat screen Sony TV, two pillows, and an afghan blanket covering the TV.

Margaret Neu testified that she and her husband lived on Atlantic Street and that on September 24, 2015, she returned to her home in the afternoon to find that someone had thrown a brick through her back door. She also testified that her flat screen Sony TV, two pillows, and her afghan blanket were missing. She had personally knit the afghan blanket when her father died and claimed that the afghan had a very distinctive pattern. Neu further stated that she had not given anyone consent to enter her house that day.

Thomas Fisher, Neu's husband, testified that on September 24, 2015, he went with an officer to recover the items that were in the recycling bin. Fisher identified the TV, the afghan, and the two pillows as the items that were missing from his house.

Corpus Christi employee Danny Deloy testified that he was the custodian of the business records for the Solid Waste Department. He further testified that all recycling bins come with a bin number and that the bin that Radcliff was pushing was assigned to Neu's house on Atlantic Street.

Against the advice of his counsel, Radcliff requested a bench trial, and on March 7, 2016, the bench trial commenced. Radcliff stipulated to multiple previous convictions, including burglary, possession of marijuana, assault, and evading arrest. He pleaded “not guilty” to the charges in this case. After hearing testimony, the trial court found Radcliff guilty of both evading arrest and burglary. The trial court sentenced Radcliff to two years' imprisonment on the evading charge and fifteen years' imprisonment on the burglary charge, with the sentences to run concurrently. This appeal followed.

II. LEGAL SUFFICIENCY

In his first issue, Radcliff argues that the evidence was legally insufficient to sustain a conviction for burglary of a habitation.

A. Standard of Review and Applicable Law

In order to determine if the evidence is legally sufficient in a criminal case, the appellate court reviews all of the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 905 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). We give great deference to the trier of fact and assume the factfinder resolved all conflicts in the evidence in favor of the verdict. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). “Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Orr v. State, 306 S.W.3d 380, 395 (Tex. App.—Fort Worth 2010, no pet.). We will uphold the verdict unless the factfinder “must have had reasonable doubt as to any essential element.” Laster, 275 S.W.3d at 517.

Sufficiency is measured by the elements of the offense as define by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge in this case would state that a person commits the offense of burglary of a habitation if he intentionally or knowingly commits an unauthorized entry into private property with the intent to commit a theft. See TEX. PENAL CODE ANN. § 30.02(a)(i).

B. Discussion

Radcliff claims that the evidence is legally insufficient because none of the evidence presented specifically places him as having been inside Neu's home on Atlantic Street. However, a defendant's unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the burglar. Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007). Furthermore, a factfinder is allowed to draw an inference of guilt when the defendant flees from the police. Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007). Giving deference to the factfinder, we conclude that the trial court could have found beyond a reasonable doubt that Radcliff entered the house given the evidence before it. See Laster, 275 S.W.3d at 517; see also Clayton, 235 S.W.3d at 780.

Radcliff also argues that the evidence is legally insufficient because several witnesses were not able to properly identify him. For example, Vanderpool was unable to identify Radcliff as the individual pushing the recycling bin and during his testimony, Officer Menchaca originally described the individual pushing the recycling bin as a “white male,” which Radcliff is not. However, a single eyewitness can support a conviction. See Leadon v. State, 332 S.W.3d 600, 607 (Tex. App.—Houston [1st Dist.] 2010, no pet.). Also, inconsistencies in an identifying witness's testimony does not render the testimony legally insufficient to support the conclusion. See id. Instead, it falls to the factfinder to evaluate the credibility of the witness and the reliability of the identification. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The trial court could have reasonably believed Menchaca's subsequent identification of Radcliff as the individual he saw when he was about fifteen feet away. See Laster, 275 S.W.3d at 517.

Based on all of the evidence presented, we conclude that the evidence was legally sufficient to support the burglary charge. See Brooks, 323 S.W.3d at 905. We overrule Radcliff's first issue.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In his second issue, Radcliff argues that he received ineffective assistance of counsel.

A. Standard of Review

A claim for ineffective assistance of counsel is analyzed under the standard in Strickland v. Washington, 466 U.S. 668 (1984). To succeed under this test, the record must demonstrate both that trial counsel's performance was deficient and that the defendant suffered prejudice as a result. Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012). Trial counsel should normally be afforded an opportunity to explain his or her actions before being proclaimed as deficient, especially if counsel's reasons for failing to take an action do not appear in the record. Id. If trial counsel has not been given an opportunity to explain his or her actions, “then the appellate court should not find deficient performance unless the challenged conduct was so outrageous that no competent attorney would have engaged in it.” Id. Thus, direct appeal is usually an inadequate tool for claims of ineffective assistance because the record has not been developed sufficiently to make such findings. Id.

A defendant suffers prejudice when there is a “reasonable probability” that the result of the proceeding would have been different but for counsel's errors. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

B. Discussion

Radcliff contends that he was denied effective assistance of counsel by making several vague accusations against his trial counsel. Radcliff claims that his trial counsel: “failed to investigate his case”; did not prepare him to testify; did not present any expert witnesses on identification; did not allow him to testify on his own behalf; and did not counsel him on waiving his jury rights.

However, Radcliff's trial counsel was never afforded an opportunity to explain his actions, and courts are hesitant to declare a counsel's performance as deficient until he has been afforded an opportunity to explain himself. See Menefield, 363 S.W.3d at 592. In its current state, the record does not support the allegations of ineffective assistance of counsel. See Carballo v. State, 303 S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd) (“Allegations of ineffective assistance of counsel must be firmly founded in the record.”).² For example, Radcliff claims that his trial counsel “did not allow” him to testify on his own behalf; however, nothing in the record indicates what advice, if any, Radcliff's trial counsel actually gave concerning whether he should testify. Nothing in the record suggests that his trial counsel gave advice that could be construed as having prevented Radcliff from testifying on his own behalf. See id. Moreover, even assuming that any of the other claims about his trial counsel are true, Radcliff has wholly failed to establish that the questioned acts were “so outrageous that no competent attorney would have engaged in [them].” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).

Furthermore, Radcliff did not establish prejudice by showing a “reasonable probability” that the result of the proceeding would have been different but for his trial counsel's alleged shortcomings. See Thompson, 9 S.W.3d at 812. Radcliff offers no explanation as to how the result might have been different had he testified on his own behalf or if an expert on identification was presented or if his trial counsel adequately investigated the case. We overrule Radcliff's second issue.

IV. CONCLUSION

We affirm the trial court's judgment.

FOOTNOTES

2.   We note that challenges requiring a record to substantiate a claim, such as ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX. CODE CRIM. PROC. ANN art. 11.07 (West, Westlaw through 2015 R.S.); Cooper v. State, 45 S.W.3d 77, 82 (Tex. Crim. App. 2001).

NORA L. LONGORIA Justice