Opinion
No. 05-11-01115-CR
07-13-2012
GEORGE WILLIS LAWRENCE, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed July 13, 2012.
On Appeal from the 59th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 058512
MEMORANDUM OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Murphy
A jury found George Willis Lawrence guilty of burglary of a building, and the trial court assessed punishment, enhanced by two prior felony convictions, at twelve years' imprisonment. In two points of error, appellant challenges the sufficiency of the evidence supporting his conviction and asserts he was denied a fair trial because of ineffective assistance of counsel. We affirm. Background
On June 15, 2008, Ed Flowers reported a burglary at a building he used to store tools and equipment from his former business, Flowers Electric Motor Service. Flowers found glass on the floor and discovered a window pane had been broken and knocked out. Flowers did not visit the building on a regular basis and estimated it may have been a couple of weeks to a month since he had last been in the building.
Flowers reported he was missing various hand tools, grinders, drills, and a "nearly new lawn mower." Flowers also reported that some of his other tools had been moved and gathered in piles and that "stuff" had been taken out of boxes and tools put in, "apparently gathered together to move." Some of the tools that had been collected were found outside the building. Specifically, a red plastic tool box containing miscellaneous tools belonging to Flowers was found next to the back door, and a variety of tools and an extension cord were found "neatly stacked" near the door. The officer responding to the report testified his impression was that the suspect had left these items because he could not carry them and "planned to come back to get the rest of the stuff." Flowers replaced the broken window pane, placed the red tool box and other items back inside, and secured the building.
Less than a week later, on June 21, 2008, Flowers reported a second burglary at the same location. This time, he found two broken windows. One window was located in the back of the building and was believed to be the point of entry; a second window was located next to the window broken during the previous burglary. Flowers told the responding officer he was missing around one hundred spools of copper wire, some of which were "very old" and valuable. The older wire was "real fine wire" packaged on wooden spools and was from the 1940s and 1950s. Flowers kept some of the wire in old "Coke carton[s]," stored in a "bookcase rack-type thing" that was located within inches of one of the broken windows.
The responding officer found some spools of wire outside the building next to the same red plastic tool box that was left during the first burglary. The officer explained the items found outside "seemed like more of a trail out the window" with a "couple of spools" and a big pile of tools in the grass and "then the wire was all laying there as if it was trailed out of the building." The trail of items led toward the road. Flowers did not know whether any wire was taken during the first burglary because he did not remember looking in the part of the building where he stored the wire to determine if it was "still in the shelves or not." But when he saw "the stuff piled outside" after the second burglary, he looked further and noticed the copper wire was missing.
Sherman police detective Nick Emmons was assigned to investigate the two burglaries. Emmons first determined that various items belonging to Flowers were pawned or sold at a local pawn shop called EZ Pawn. Records from the pawn shop indicated a lawn mower matching the description and serial number provided by Flowers was pawned on June 5, a "50ft extension cord" was sold on June 4, and other "Bulk Tools" were sold on June 21. Although the tools had no unique identifying numbers, Flowers recognized those tools as the ones he reported missing. Appellant was listed as the owner or seller on each ticket. Emmons also reviewed surveillance videos provided by EZ Pawn. Emmons testified that the person pawning or selling the items in the videos appeared to be appellant. The videos depicted appellant selling an extension cord and "pushing a lawn mower."
Emmons also determined that some of the missing copper wire had been sold to a local salvage yard. According to purchase vouchers from the salvage yard, about thirty spools of copper wire were sold over the course of four days-June 5, 7, 12, and 13. Some of the wire sold to the salvage yard was in old "Coke containers" similar to the ones used in Flowers's shop. The purchase vouchers listed appellant as the seller. The salvage yard also recorded appellant's driver's license number and the license plate number of the car appellant was driving at the time of the sales.
Emmons traced the car registration to an address in Sherman where appellant was living with his ex-wife. After meeting with Emmons, appellant agreed to come to the police station for an interview. The interview was recorded, and the recording was admitted into evidence without objection and played for the jury. Emmons testified that during the course of the interview appellant did not admit to committing the burglaries but did admit to being at the building and to selling the copper wire to the salvage yard. Appellant told Emmons he was "walking around the building" looking for cans and that he found the wire spools in a backpack in a dumpster. According to Emmons, appellant "was never real clear on the dumpster's exact location," but based on appellant's description, Emmons estimated the dumpster was located several blocks away. Appellant denied pawning the lawn mower. Emmons explained that although appellant told him more than once he had not pawned anything, this "was not consistent with [the] evidence recovered." Everything appellant told Emmons he found and sold was in or around dumpsters. According to Emmons, one does not find new items, such as a new lawn mower, in or around dumpsters.
Emmons could not state the exact date on which the copper wire was taken. Flowers told him he had "so much wire that he wouldn't have been able to tell" if a "little bit of it went missing." Emmons also confirmed that authorities had not recovered the rest of the wire reported missing and explained it was "pretty common" not to find all the property because "it can be sold to other individuals" or "stored somewhere else." He stated that appellant's story of finding the items after they were left behind at the crime scene was "not very likely." Additionally, appellant originally lied when Emmons asked him whether he had been around Flowers's building, and Emmons believed certain other responses by appellant indicated deception. Emmons did agree there was no physical evidence, such as fingerprints or footprints, to establish appellant was inside the building.
The State charged appellant by separate indictments with burglarizing a building on two occasions, one for the June 15 burglary and the second for the June 21 burglary. The jury acquitted appellant of the June 21 charge but convicted him of the June 15 charge. Appellant pleaded true to two enhancement paragraphs, and the trial court sentenced him to twelve years' imprisonment. Sufficiency of the Evidence
In his first point of error, appellant complains the evidence is legally insufficient to support his conviction. Specifically, he contends the evidence is insufficient to establish he entered the burglarized building. In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). We defer to the fact finder's determinations of the witnesses' credibility and the weight to be given their testimony because the fact finder is the sole judge of those matters. Jackson, 443 U.S. at 326; Brooks v. State, 323 S.W.3d 893, 899-900 (Tex. Crim. App. 2010) (plurality op.). This standard is the same whether reviewing direct or circumstantial evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) ("[C]ircumstantial evidence alone can be sufficient to establish guilt.").
A person commits the offense of burglary if, without the effective consent of the owner, he enters a building or any portion thereof not then open to the public, with the intent to commit a felony theft. Tex. Penal Code Ann. § 30.02(a)(1) (West 2011). Direct evidence of entry is not required; that element may be established by inference, just as inferences may be used to prove the elements of any other offense. Lopez v. State, 884 S.W.2d 918, 921 (Tex. App.-Austin 1994, pet. ref'd). A defendant's unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the offense. Rollerson v. State, 227 S.W.3d 718, 725 (Tex. Crim. App. 2007); Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). If the defendant offers a reasonable explanation for his possession of the stolen property, the record must demonstrate that the account is false or unreasonable. See Adams v. State, 552 S.W.2d 812, 815 (Tex. Crim. App. 1977). The question of whether a defendant's explanation for possession of recently stolen property is true or reasonable is a question of fact to be resolved by the jury. Id. The falsity of the explanation may be shown by circumstantial evidence. Id.
Appellant asserts there was "absolutely no physical evidence or witness statements" to prove he was the person who entered the Flowers building. He claims that although the evidence showed he pawned the lawn mower and tools and sold some of the wire to the salvage yard, he had a "reasonable explanation" for possessing those items. Specifically, he claims he had been outside the building looking for cans and that he found a backpack full of wire in a dumpster near the building.
The reasonableness of appellant's explanation-that he happened upon the items while searching for cans and diving in dumpsters-was a fact issue the jury resolved against him. See id. Emmons told the jury that it is common for people who make their living going through dumpsters to come across items and sell them. But appellant specifically denied pawning or selling the items found at EZ Pawn, which Emmons testified was not consistent with the pawn shop's records and surveillance videos. The EZ Pawn records established that a lawn mower with the same serial number as the one reported missing by Flowers was pawned by appellant, and Emmons testified the person on the EZ Pawn surveillance video seen pushing the lawn mower into the shop appeared to be appellant. The EZ Pawn records also showed appellant was the person who sold various tools belonging to Flowers on two other occasions. In addition, although appellant admitted to selling the wire he found in the backpack, the salvage yard also purchased spools of copper wire from appellant in Coke crates similar to the ones Flowers said he used in his shop to store the wire. Emmons further testified that the salvage yard employee confirmed appellant was the only person who sold Flowers's unique wire and that appellant sold wire on four different occasions.
Under these circumstances, the jury was entitled to disbelieve appellant's story of how he came into possession of the items-especially in light of his denial of possessing the lawn mower and selling spools in crates specifically used by Flowers in the building-and to infer from the circumstantial evidence that appellant entered Flowers Electric Motor Service. See Lopez, 884 S.W.2d at 921. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support a finding on the essential element of entry beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We overrule appellant's first point of error. Ineffective Assistance of Counsel
Appellant argues in his second point of error that he received ineffective assistance of counsel because his trial counsel did not object to the admission of extraneous-offense evidence referenced in his video interview with Emmons. He further complains counsel failed to request that the court reporter transcribe the audio portion of the video interview played to the jury.
To prevail on an ineffective assistance of counsel claim, appellant must show by a preponderance of the evidence both deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Williams v. State,301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 130 S. Ct. 3411 (2010). Appellant must demonstrate under the first prong that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688; Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). To meet the second prong, appellant has to show the existence of a reasonable probability, sufficient to undermine confidence in the outcome, that but for counsel's deficient performance, the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Ex parte Lane, 303 S.W.3d at 707. A defendant's failure to satisfy one prong negates a court's need to consider the other prong. Williams, 301 S.W.3d at 687.
"[I]solated instances in the record reflecting errors of omission or commission do not render counsel's performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel's performance for examination." McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). Rather, in determining whether appellant met his burden, we consider the totality of the representation and the particular circumstances of this case. Ex parte Lane, 303 S.W.3d at 707. Our review is highly deferential, and we presume counsel's conduct fell within the wide range of reasonable professional assistance and do not judge counsel's actions in hindsight. Strickland, 466 U.S. at 689; Ex parte Lane, 303 S.W.3d at 707. The fact that another attorney might have pursued a different strategy at trial is not sufficient to prove counsel was ineffective. Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004).
For appellant to succeed on an ineffective assistance of counsel claim, the record must demonstrate affirmatively the deficient performance he challenges. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Without evidence of counsel's considerations, we will presume sound trial strategy. See Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Here, the record is silent as to counsel's strategy or reasoning. Although appellant filed a motion for new trial, he did not raise the issue of ineffective assistance of counsel in the motion, and he has failed to bring us any record supporting his claim counsel rendered ineffective assistance. In most cases, a silent record will not overcome the strong presumption of counsel's reasonable assistance. See id. at 110-11. And before being adjudged unprofessional or incompetent, counsel should be given the opportunity to explain any actions or inactions. Id. at 111. That has not occurred here. Nor has appellant shown that this case is one of those extraordinary situations in which the face of the record shows counsel's challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001) (citing Thompson, 9 S.W.3d at 814); Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984) (failing to object to every instance of improper evidence does not constitute ineffective assistance). We therefore conclude appellant failed to demonstrate under the first Strickland prong that counsel's performance was deficient. See Strickland, 466 U.S. at 687-88; Williams, 301 S.W.3d at 687. We overrule appellant's second point of error.
Having resolved appellant's two points of error against him, we affirm the trial court's judgment.
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111115F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GEORGE WILLIS LAWRENCE, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-01115-CR
Appeal from the 59th Judicial District Court of Grayson County, Texas. (Tr.Ct.No. 058512).
Opinion delivered by Justice Murphy, Justices FitzGerald and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 13, 2012.
MARY MURPHY
JUSTICE