No. 05-09-00178-CR
Opinion issued August 16, 2010. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District No. 7, Dallas County, Texas, Trial Court Cause No. F08-56627-LY.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice MOSELEY.
Dino Mejia waived his right to a jury trial and pleaded not guilty to the offense of burglary of a habitation. The trial court convicted him of the offense. Mejia pleaded true to two enhancement paragraphs. He was sentenced to fifty years' imprisonment. Mejia challenges the legal and factual sufficiency of the evidence supporting his conviction and argues he received ineffective assistance of counsel. We affirm.
I. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), when deciding whether evidence is legally sufficient to support a conviction, we assess all of the evidence in the light most favorable to the verdict to determine whether " any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt." The Jackson standard of review accounts for the fact finder's duty "to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Id. Direct evidence of the elements of the offense is not required. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). A fact finder may make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor. Id. at 14-15. Circumstantial evidence alone can be sufficient to establish guilt. Id. at 14. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Id. at 16. A fact finder may draw multiple reasonable inferences from the evidence, direct or circumstantial, but may not draw conclusions based on speculation. Id. Evidence is factually insufficient when, although legally sufficient under a Jackson analysis, the evidence is "so weak" that the verdict "seems clearly wrong or manifestly unjust" or "against the great weight and preponderance of the evidence." Watson v. State, 204 S.W.3d 404, 414-15, 417 (Tex. Crim. App. 2006). A factual sufficiency review is "barely distinguishable" from a Jackson legal sufficiency review. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007) (quoting Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)). In addressing a claim of factual insufficiency of the evidence, we review all of the evidence in a neutral light. Gardner v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009), petition for cert. filed, No. 09-10732 (U.S. Apr. 8, 2010), http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09-10732.htm . B. Applicable Law
As relevant here, a person commits the offense of burglary if, without the effective consent of the owner, the person enters a habitation with intent to commit theft or enters and commits or attempts to commit a theft. Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003). "Enter" means to intrude any part of the body. Id. § 30.02(b)(1). The element of entry in a burglary offense may be established by inference, just as inferences may be used to prove the elements of any other offense. See Lopez v. State, 884 S.W.2d 918, 921 (Tex. App.-Austin 1994, pet. ref'd). To "appropriate" personal property under the theft statute is "to acquire or otherwise exercise control over" it. Tex. Penal Code Ann. § 31.01(4)(B) (Vernon Supp. 2009). Burglary committed in a habitation is a felony of the second degree. Tex. Penal Code Ann. § 30.02(c)(2). C. Discussion
In his first and second issues, Mejia contends the evidence is legally and factually insufficient to support the verdict. Specifically, he argues there is no evidence he entered the complainant's home. The record reveals the following evidence. The complainant, Rebecca Cecil, testified that she lived in one part of a duplex on West Forest in Dallas, and that Portia Cooke lived in the other part. Cecil arrived home from work on Tuesday, June 10, 2008, at about 4:00 p.m. She spent a few minutes in her garage with the garage door open. While she was outside, she heard "a thump" in her loft bedroom. About five to seven minutes later she heard "a rustling" in the backyard and noticed the lock was not on the gate. About two or three minutes later, she saw a man she later identified as Mejia walk from the alley behind her back fence and get into a "station-wagon looking" car idling in Cooke's driveway. Cecil described the car as gray or light green Dodge. When she asked the man what he was doing, he said he was looking for someone. After Mejia left, Cecil discovered the drawers of her jewelry chest, which was located in her bedroom, were pulled out and empty and that her jewelry had been stolen. Cecil reported the theft to the police and described the car and Mejia to them. Cecil had never seen Mejia before; she did not see any property on him; and she did not consent to his entry into her home. Cecil's duplex neighbor, Cooke, testified that some time before Cecil arrived home, she attempted to drive out of her garage but could not because an idling car blocked her exit. Thinking the car-a "gun metal gray Dodge"-might be stolen, Cooke looked for the license number. There was no license tag on the front, and silver tape was covering the license numbers on the back. Cooke saw a big set of keys in the car and a suitcase in the back seat. She described the suitcase as black, "nondescript," and looking like "you could put in the overhead" of an airplane. Cooke called the police and gave them a description of the car. She did not see Mejia. Dallas police Officer Phillip Strodtman testified that a gray 2005 Dodge Magnum registered to Mejia was a suspect vehicle in connection with his investigation of burglaries that had occurred on June 8 and 9. On June 10, 2008 (the day of Cecil's burglary), he advised patrol officers in the northwest division to be on the lookout for the vehicle and for Mejia. Officer Dale Richardson testified that at about 9:40 p.m. on June 10, 2008, he saw a vehicle matching Strodtman's lookout information turn into the Budget Suites, an extended-stay motel on Mockingbird Lane, one block east of Interstate 35. Richardson radioed for assistance. Officer Shawn Moses testified he responded to Richardson's call and participated in Mejia's arrest on an outstanding Tarrant County warrant. Officers Herring and Michael Clifford testified that, on the evening of June 10, 2008, they had been assigned to watch room 3073 at the Budget Suites. They saw a woman, identified as Mickey Young, leave the room. Young told the officers that she lived in the room with Mejia. A motel security officer also confirmed that Mejia stayed in the room. Young consented to a search of the room and directed the officers to property there, including jewelry. The officers also found men's shoes and a small piece of luggage. Within a day or two of the offense, Cecil identified some of the jewelry seized from the motel room as the jewelry that had been stolen from her home, although some of her stolen items were not among the seized property. Budget Suites's property manager, Diane Willis, testified that Mejia's name was on the room lease. Although Willis had never seen Mejia enter or leave the room, she had seen Mejia and his car, a silver Dodge Magnum, on the property. The room had been leased to Mejia for six to eight months. In his defense, Mejia testified Young had called him about 2:30 p.m. on June 10, 2008, to pick her up in the area of West Forest. He knew he had a case pending in Tarrant County, but did not know why. While driving on Interstate 35, he was chased by a police officer. He exited at Royal Lane and stopped in the alley at the Cecil/Cooke duplex. He covered his plates "just in case they — they find the car." Mejia testified he parked the car and walked down the alley to the street expecting to see Young at a building there. He did not see Young, and he was returning to his car when he encountered Cecil. He denied entering Cecil's yard or house. After encountering Cecil, he left in the car. He spent between five and ten minutes in the alley. After failing to find Young, Mejia looked for a job in Dallas and Fort Worth. About 8:00 p.m., Young called and asked him to pick her up at a Wal-Mart. Young had a black suitcase. They returned to Budget Suites and saw police cars. Mejia dropped Young off. Mejia said room 3073 was registered to Young, although he had leased the room at Young's request because Young did not have "a valid identification." He said that in April 2008, he had asked a motel clerk to remove his name from the lease. Young was the sole resident of the room. He did not have a key; Young accompanied him when he went in the room. He lived in Bridgeport, Texas, working in the oil field on twenty-four hour call. On cross examination, Mejia admitted he had previous convictions for theft and escape and three previous convictions for burglary of a habitation (including two offenses alleged in enhancements paragraphs). He also admitted leaving his car idling in a driveway. He said he only covered his license plate one time, on June 10, 2008, with silver tape he had in his car. Mejia argues the evidence is insufficient because he was not seen entering Cecil's home; there was no evidence of forced entry; fingerprints were not found inside her home; and he was not found in possession of the stolen property. The statute requires a non-consensual, rather than a forced, entry. The absence of fingerprint evidence is not dispositive. See Rascon v. State, 496 S.W.2d 99, 101 (Tex. Crim. App. 1973) (discussing absence of fingerprint evidence in circumstantial cases); LaGrone v. State, 757 S.W.2d 893, 898 (Tex. App.-Beaumont 1988, no pet.) (upholding burglary conviction on circumstantial evidence despite absence of fingerprint evidence). The rest of Mejia's arguments amount to a lack of direct evidence establishing that he entered Cecil's home and acquired or exercised control over the stolen property. However, the jury was entitled to weigh-and draw reasonable inferences from-the circumstantial evidence regarding his presence at the Cecil/Cooke residences immediately before the burglary was discovered; his admitted efforts there to hide the license numbers of his vehicle; his whereabouts between his presence at the scene of the burglary about 4:00 p.m. and his arrival at the Budget Suites at 9:40 p.m. that night; and his access to and possession of the motel room and the jewelry recovered there the evening of the burglary. Based on the record, we conclude the jury was entitled to infer from the circumstantial evidence that Mejia entered Cecil's home and that he acquired or otherwise exercised control over her personal property. See Hooper, 214 S.W.3d at 14; see also Rascon, 496 S.W.2d at 101 ("It is well settled that where the evidence shows a burglary of a house by someone [and] the accused's unexplained possession of some or all of the property recently stolen from the house is sufficient to sustain a conviction."); Lopez, 884 S.W.2d at 921 (circumstantial evidence of entry included identification of defendant as one of two persons at scene of burglary and possession of stolen items in his home); McMillian v. State, 873 S.W.2d 62, 64 (Tex. App.-Tyler 1993, pet. ref'd) (circumstantial evidence of entry included defendant's "hasty" retreat in car from scene of burglary); Martinez v. State, 715 S.W.2d 725, 727 (Tex. App.-Houston [14th Dist.] 1986, pet. ref'd) (circumstantial evidence of burglary included defendant's car "backed into complainant's driveway" and leaving immediately after home alarm sounded). Therefore, viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support a finding on all the elements of burglary of a habitation beyond a reasonable doubt. See Jackson, 443 U.S. at 319. We resolve Mejia's first issue against him. Additionally, viewing all the evidence in a neutral light, we conclude it is not so weak that the verdict seems clearly wrong or manifestly unjust or against the great weight and preponderance of the evidence. See Gardner, 306 S.W.3d at 285; Rollerson, 227 S.W.3d at 724; Watson, 204 S.W.3d at 414-15, 417. We resolve Mejia's second issue against him. III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his third issue, Mejia contends he was deprived of his constitutional right to effective assistance of counsel. Specifically, he contends counsel failed to object to Strodtman's and Clifford's testimony that Mejia was a suspect in other burglaries. He argues this evidence of unadjudicated extraneous offenses was inadmissible pursuant to rule of evidence 404(b). A. Applicable Law
To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence: (1) deficient performance, and (2) prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A claim of ineffective assistance of counsel must be "firmly founded in the record" and "the record must affirmatively demonstrate" the meritorious nature of the claim. Id. Direct appeal is usually an inadequate vehicle for raising such a claim because the record is generally undeveloped. Id. This is true with regard to the question of deficient performance-in which counsel's conduct is reviewed with great deference, without the distorting effects of hindsight-where counsel's reasons for failing to do something do not appear in the record. Id. "[T]rial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim . App. 2003). Absent such an opportunity, an appellate court should not find deficient performance unless the 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). B. Discussion
Although Mejia filed a motion for new trial, he did not allege in that motion that his counsel was ineffective and did not otherwise develop a record explaining why counsel engaged in the challenged conduct. See Goodspeed, 187 S.W.3d at 392. Thus, the record is silent as to counsel's strategy or reasons for the alleged failure to object to Strodtman's and Clifford's testimony. We will not speculate as to what counsel's trial strategy might have been with regard to the alleged error. Moreover, we cannot say that counsel's conduct in failing to object to the evidence is "so outrageous that no competent attorney would have engaged in it." See id.; accord Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007). The silent record in this case cannot overcome the presumption of effective assistance of counsel. See Goodspeed, 187 S.W.3d at 392. We resolve Mejia's third issue against him. IV. CONCLUSION
Having resolved Mejia's three issues against him, we affirm the trial court's judgment.