RONNIE BREWER v. THE STATE OF TEXAS (2017)

MEMORANDUM OPINION

A jury convicted appellant, Ronnie Brewer, of burglary of a habitation.¹ Appellant pleaded true to a previous felony conviction, and the trial court sentenced him to fifteen years' confinement. In his sole point of error, appellant contends that trial counsel was ineffective for failing to (1) request that the lesser-included offense of theft be included in the jury charge and (2) present any mitigating evidence during the punishment phase of trial. We affirm.

Background

On May 19, 2015, at approximately 8 a.m., Maria Garza was asleep in her apartment when she was awakened by a loud bang against the wall. She heard her bedroom door open softly and shut again. Garza grabbed her phone and went to check on the noise.

When she entered her living room, Garza discovered that her television was missing and that the front door of her apartment had been kicked in. Garza called her husband and told him that someone had broken into their apartment. She then walked into the front room and saw appellant standing behind the door. When Garza began to scream, appellant told her that he knew who had broken into her apartment and taken her television, and that he could help identify the perpetrator. Appellant told Garza that he was her downstairs neighbor but Garza told him that she had never seen him before.

Appellant then walked outside and downstairs and Garza closed the door. Afraid that appellant would try to flee, Garza ran to her patio and called 911. She no longer saw appellant but instead noticed a grey-colored four-door Honda with paper plates backing out of the parking lot. Police arrived a few minutes later.

Deputy Jason Reese with Harris County Precinct Four was dispatched to the scene. As he approached the apartment complex, Deputy Reese saw a vehicle matching the description of the burglary suspect's vehicle turn in front of him. The driver also matched Garza's description of appellant. Deputy Reese initiated a traffic stop. As appellant stepped out of the vehicle, Deputy Reese noticed a large-screen television in the backseat. Appellant told Deputy Reese that he found the television on the sidewalk and picked it up to sell it. Garza subsequently arrived and identified appellant as the man who had been in her apartment and the television found in appellant's car as hers. Garza also identified appellant's car as the car she had seen leaving the complex.

The jury subsequently convicted appellant of burglary of a habitation. During the punishment phase, appellant pleaded true to a prior felony conviction for burglary of a habitation. The State introduced appellant's prior criminal convictions into evidence at the hearing ² and recommended a sentence of forty years in prison. At the conclusion of the hearing, the trial court sentenced appellant to fifteen years' confinement. This appeal followed.

Discussion

In one point of error, appellant argues that he received ineffective assistance when trial counsel failed to (1) request that the lesser-included offense of theft be included in the jury charge and (2) present any mitigating evidence during the punishment phase of trial.

A. Standard of Review

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Under the Strickland two-step analysis, a defendant must demonstrate that (1) his counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.

An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. When the record is silent, we may not speculate to find trial counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance is within a wide range of reasonable professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. We will find a counsel's performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. “When handed the task of determining the validity of a defendant's claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).

B. Analysis

1. Failure to Request Charge on Lesser-Included Offense

Appellant asserts that trial counsel was ineffective because he failed to ask that the lesser-included offense of theft be included in the jury charge.

An offense is a lesser-included offense under the following circumstances: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish commission of the offense; (3) it differs from the offense charged only in that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006); Phillips v. State, 178 S.W.3d 78, 81 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd).

A two-pronged test determines whether a defendant is entitled to a charge on a lesser-included offense. See Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Id. (citing article 37.09). Second, some evidence must exist in the record that would permit the jury to find, rationally, that the appellant, if guilty, is guilty only of the lesser-included offense. Hayward, 158 S.W.3d at 478; Phillips, 178 S.W.3d at 81–82. The evidence must establish the lesser-included offense as a valid, rational alternative to the charged offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000).

A person commits the offense of burglary of a habitation “if, without the effective consent of the owner, the person ․ enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault ․” TEX. PENAL CODE ANN. § 30.02 (West 2011). A person commits theft “if he unlawfully appropriates property with intent to deprive the owner of property.” Id. § 31.03 (West Supp. 2016). We have previously held that the offense of theft can be a lesser-included offense of burglary. See Phillips, 178 S.W.3d at 80–81. Thus, the first prong of the test is satisfied.

With regard to the second prong, appellant's version of the events was that he found the television abandoned outside of Garza's apartment and did not take it from her apartment. However, the offense of theft requires that the person appropriate property “with intent to deprive the owner of property.” TEX. PENAL CODE § 31.03. Appellant's defense is that he found, or merely possessed, the property. However, this attempt to set out an innocent explanation for his possession of the property negates the requisite intent to “deprive the owner of property” necessary for a jury to find him guilty of theft. Thus, he could not be found guilty only of theft. Moreover, the State presented evidence showing that Garza awoke to find her television missing, the front door to her apartment broken, and appellant in her apartment. The evidence also showed that when Deputy Reese stopped appellant he discovered Garza's television in the backseat of appellant's car.

No evidence in the record establishes that, if appellant was guilty, he was guilty only of the lesser-included offense of theft. Because appellant was not entitled to a charge on theft as a lesser-included offense of burglary of a habitation, trial counsel's failure to request the charge does not constitute deficient performance. Kinnamon v. State, 791 S.W.2d 84, 96–97 (Tex. Crim. App. 1990) (holding that where evidence did not authorize submission of murder instruction as lesser-included offense, defendant's trial counsel did not render ineffective assistance for failing to request it), overruled on other grounds, Cook v. State, 884 S.W.2d 485 (1994).

2. Failure to Present Mitigating Evidence

Appellant also contends that trial counsel was ineffective because he failed to present any mitigating evidence during the punishment phase of trial.

“The decision whether to present witnesses is largely a matter of trial strategy.” Lopez v. State, 462 S.W.3d 180, 185–86 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Lair v. State, 265 S.W.3d 580, 594 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). We defer to the trial court's determination of trial strategy and his choice of witnesses so long as any conceivable strategy can be imagined for the actions taken or not taken. Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). To preserve error in trial counsel's failure to call witnesses, a criminal defendant must specify the witnesses who should have been called and the content of their testimony. Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (noting failure to call particular witness constitutes ineffective assistance only if defendant shows that such witness was available for trial and would have given testimony that actually benefitted defense). An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 814. Here, there was no motion for new trial filed and the record is silent as to what type of pre-trial preparation trial counsel did. See Garcia, 57 S.W.3d at 440 (noting that when record is silent, reviewing court may not speculate to find trial counsel ineffective). There is also no evidence as to witnesses available to testify or as to what their testimony would have been. See Perez, 310 S.W.3d at 894.

Appellant argues that although trial counsel's closing argument that appellant committed many of his prior offenses because of homelessness and poverty makes it clear that trial counsel was aware of appellant's background and situation, he did not call any family members or friends to testify to these facts.

With regard to trial counsel statements regarding appellant's homelessness and poverty, we note that these statements are facts not in evidence. However, even assuming that appellant was homeless, it is possible that there were no family members or friends to call to testify. In that case, trial counsel would have had to call appellant to testify on his own behalf. In light of appellant's extensive criminal history, it is entirely plausible that trial counsel may not have wanted to subject appellant to cross-examination by the State. Nonetheless, it is clear from the record that the trial court did, in fact, consider appellant's circumstances. Prior to sentencing appellant, the trial court stated, “[w]hile I appreciate the earnestness of your lawyer's argument, and recognize that many of the crimes you have been convicted of are related to poverty, it is not lost on me that the folks that you are burglarizing are also very close to the poverty line.” The trial court proceeded to sentence appellant to fifteen years' confinement, well below the State's recommendation of forty years and at the lower end of the applicable range in this case of five to ninety-nine years.³

We conclude that trial counsel's decisions not to request that the lesser-included offense of theft be included in the jury charge or to present mitigation witnesses at punishment do not constitute deficient performance.⁴ See Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011); Robertson, 187 S.W.3d at 483; Thompson, 9 S.W.3d at 813. Because appellant's ineffectiveness claim fails on both grounds, we overrule appellant's sole point of error.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 30.02 (West 2014).

2.   Between 2007 and 2015, appellant was convicted of burglary of a habitation, forgery, criminal trespass (five times), theft (twice), and the unauthorized use of a motor vehicle (four times).

3.   By pleading true to the enhancement allegation, appellant's punishment range was elevated from that of a second-degree felony to a first-degree felony. See TEX. PENAL CODE ANN. § 12.42(b) (West 2014).

4.   Because appellant failed to satisfy the first prong of the Strickland test, we need not consider the second prong. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052).

Russell Lloyd Justice