Marcus Gilbert v. State

Affirmed and Memorandum Opinion filed November 21, 2006

Affirmed and Memorandum Opinion filed November 21, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00640-CR  

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MARCUS GILBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court  

Harris County, Texas

Trial Court Cause No. 1001661  

M E M O R A N D U M   O P I N I O N

Appellant Marcus Gilbert was convicted of burglary and sentenced to twenty years= confinement.  In a single issue, appellant claims he received ineffective assistance of counsel at trial.  We affirm.

Background

On February 6, 2004, appellant went to visit the complainant, Tennille Recard, his ex-girlfriend.  Appellant knocked loudly on Recard=s apartment door for several minutes and then kicked in the door.  He entered the apartment and, refusing Recard=s requests to leave, forced her into a bedroom and Apummeled her with his fist.@  After Recard began screaming, appellant ran out of the apartment, and Recard contacted the police.  Police Sergeant Larry Joe Martin responded to the call, interviewed Recard, and took several photographs.  Sergeant Martin did not find appellant during his investigation but completed a request for a protective order and a probable cause affidavit.  Three days later, appellant was arrested for burglary of Recard=s habitation.

Appellant=s defense at trial was that he lived in the apartment with Recard, and thus could not be guilty of burglary because he could not burglarize his own apartment.  See Tex. Penal Code Ann. ' 30.02(a) (Vernon 2003) (requiring that a person act Awithout the effective consent of the owner@ to commit burglary).  To establish this defense, trial counsel attempted to prove appellant lived with Recard in apartment 82.  Lease documents show that Recard leased

apartment 92

until October 31, 2003 and signed a Alease renewal@ for

apartment 82

on March 17, 2004, approximately one month after the incident.  It is not clear from the record when Recard moved from

apartment 92

to

apartment 82

. Counsel called Batrice Murphy, appellant=s parole officer, to confirm appellant=s address in the months leading up to the incident.  Murphy testified that parole records showed appellant lived in several different apartments in the same complex as Recard, including

apartment 82

.  Murphy confirmed that in January 2004, appellant lived in

apartment 82

. Counsel then called appellant=s aunt, Latonya Burkett, who testified that appellant lived in

apartment 82

with Recard and her children. 

The State called Recard=s neighbor, Steve Brown, who had seen appellant knocking loudly on Recard=s door. Brown testified that he knew Recard lived alone with her children and did not know where appellant lived.  On cross-examination, counsel attempted to show Brown was not certain that appellant did not live with Recard.  In response to counsel=s questions, Brown said he knew Afor a fact@ appellant Adidn=t live [with Recard].@

The jury convicted appellant of burglary of a habitation, and this appeal followed.  In his sole issue, appellant claims he received ineffective assistance of counsel.  He contends that counsel was ineffective by (1) undermining his burglary defense by offering proof that he lived in apartment 82 rather than 92,  (2) introducing evidence during the guilt-innocence phase of trial that he was on parole, (3) failing to interview a witness, and (4) failing to request a jury instruction for the lesser included offense of assault. 

Ineffective Assistance of Counsel

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel.  U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 2005). This includes the right to reasonably effective assistance of counsel.  Strickland v. Washington, 466 U.S. 668, 686 (1984).  To prove ineffective assistance of counsel, an appellant must show that (1) trial counsel=s representation failed to meet an objective standard of reasonableness, based on prevailing professional norms, and (2) the outcome of the proceeding would have been different but for counsel=s inadequate performance.  Id. at 688B92; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  We apply a strong presumption that counsel was competent and that counsel=s actions were reasonably professional and motivated by sound trial strategy.  Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  To rebut this presumption an appellant must prove, by a preponderance of the evidence, that there is no plausible professional reason for a specific act or omission.  Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).  An appellant usually cannot meet this burden unless an evidentiary record is developed to clearly show the reasons for counsel=s conduct.  See Osorio v. State, 994 S.W.2d 249, 253 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). In the absence of a proper evidentiary record developed at a hearing on a motion for new trial or with an affidavit from trial counsel, it is extremely difficult to show that counsel=s performance was deficient.  See Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003); Tello v. State, 138 S.W.3d 487, 495 (Tex. App.CHouston [14th Dist.] 2004), aff=d, 180 S.W.3d 150 (Tex. Crim. App. 2005).  When, as here, appellant did not allege ineffective assistance in his motion for new trial and there is no affidavit from counsel, we cannot conclude counsel=s representation was deficient unless her action was so outrageous that no competent attorney would have engaged in it.  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).  We therefore review appellant=s grounds for ineffective assistance applying the strong presumption that counsel=s actions were reasonably professional and motivated by sound strategy.  Thompson, 9 S.W.3d at 813. 

A. Evidence that Appellant Lived in Apartment 82

Appellant claims counsel provided ineffective assistance by presenting evidence proving he lived in

apartment 82

rather than 92, undermining his primary defense that he could not burglarize his own residence. However, there is ample evidence in the record, notwithstanding the lease document, showing the incident occurred at

apartment 82

.  A photograph taken by Sergeant Martin shows A82@ on the door appellant kicked in.  Recard testified that the photograph showing number 82 was Athe outside of [her] door@ and Aaccurately represent[ed] the scene@ on February 6, 2004.  Sergeant Martin testified that the door in the photograph was Recard=s, and he indicated she lived in

apartment 82

in both the probable cause affidavit and the protective order.  Finally, appellant=s aunt testified that Recard lived in

apartment 82

. Appellant must prove by a preponderance of the evidence that counsel=s performance was deficient.  Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).  Because there is evidence in the record that the incident occurred in apartment 82, it was not unreasonable for counsel to offer evidence that appellant lived there.  Therefore, appellant has not proven by a preponderance of the evidence that counsel=s performance was deficient.  Id. 

B. Evidence that Appellant was on Parole

In his second complaint, appellant argues counsel provided ineffective assistance by calling his parole officer as a witness, which unnecessarily revealed evidence of his prior criminal history during the guilt-innocence phase of the trial.  Introduction of prior convictions during the guilt-innocence phase can be ineffective assistance if an appellant can prove the evidence would otherwise be inadmissible and could serve no strategic purpose.  Id. at 484.

Appellant contends counsel=s decision could serve no strategic purpose because Murphy=s testimony showed he did not live with Recard.  However, as discussed above, there was ample evidence that the incident occurred in

apartment 82

.  Proving appellant lived in

apartment 82

with Recard could constitute reasonable trial strategy because it would preclude a conviction for burglary.  Further, counsel could have believed Murphy=s testimony would convince the jury that appellant lived in

apartment 82

, because appellant would violate his parole if he misrepresented his address to his parole officer.  Thus, this is not a case in which A[w]e are convinced that nothing trial counsel could say would make this court believe that it was sound trial strategy to offer the prior conviction.@  Stone v. State, 17 S.W.3d 348, 352 (Tex. App.CCorpus Christi 2000, pet. ref=d).  Because appellant has not proven that the evidence could serve no strategic purpose, we disagree with appellant=s contention that counsel was ineffective on this basis.  See Robertson, 187 S.W.3d at 484. 

C. Examination of Steve Brown   

Appellant next complains that counsel failed to adequately prepare for trial.  He contends counsel should have interviewed State=s witness Steve Brown before trial to learn what his testimony would be regarding appellant=s residence. Counsel has a duty to make an independent investigation into the facts of the case.  McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996) (citing Strickland, 466 U.S. at 691). However, this duty is not categorical, and counsel may make a reasonable decision that a particular investigation is unnecessary.  Id.  The record does not indicate whether counsel attempted to interview Brown before trial, whether Brown would have cooperated if asked, or whether counsel had a strategic reason not to interview him.  Absent a well-developed record revealing the motives behind counsel=s actions, we cannot conclude that the failure to investigate a witness renders counsel=s assistance ineffective.  See Rylander v. State, 101 S.W.3d 107, 110B11 (Tex. Crim. App. 2003) (rejecting claim that counsel=s failure to interview a state=s witness constituted ineffective assistance, where record on direct appeal did not explain counsel=s action).  Therefore, appellant has not rebutted the presumption that counsel=s decision was made in the exercise of reasonable professional judgment.  See Thompson, 9 S.W.3d at 813.

D. Failure to Request an Instruction on a Lesser Included Offense

Finally, appellant argues counsel=s assistance was ineffective because she failed to request a jury instruction on the lesser included offense of assault.  A decision not to request a charge on a lesser included offense may be reasonable trial strategy.  See Ex parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004) (noting decision not to request instruction on the lesser included offense could be a reasonable all-or-nothing trial strategy).  Here, the record is silent as to the reasons behind counsel=s decision.  Accordingly, appellant has not proven there is no plausible professional reason for counsel=s failure to request the instruction.  See Bone, 77 S.W.3d at 836.

We overrule appellant=s sole issue and affirm the trial court=s judgment.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed November 21, 2006.

Panel consists of Chief Justice Hedges, Justice Yates, and Senior Justice Amidei.*

Do Not Publish C Tex. R. App. P. 47.2(b).

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*  Senior Justice Maurice E. Amidei sitting by assignment.