Opinion
No. 05-10-01565-CR
08-02-2012
WESLEY WAYNE SAVANNAH, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED; Opinion Filed August 2, 2012.
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-72992-U
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Francis
Opinion By Justice Richter
A jury found appellant guilty of burglary of a habitation with the intent to commit aggravated assault with a deadly weapon. The trial court sentenced appellant to fifty years in prison and a $2,000 fine. Appellant raises eight issues on appeal. Specifically, appellant asserts the evidence is insufficient to support his conviction and the trial court erred by presenting a charge to the jury on a theory of burglary of a habitation not alleged in the indictment; by submitting only one special verdict form to the jury which included a theory of guilt not alleged in the indictment; by failing to pronounce appellant's sentence and afford him the right of allocution; and he was denied effective assistance of trial counsel for failing to object to the jury charge, the special verdict form and the statutory right of allocution. We overrule appellant's eight issues and affirm the trial court's judgment.
Background
Appellant entered the home of the complainant, Latoya Whitmore, and told her and her sister Monette Whitmore, to get out of his mother's house. Initially the girls tried to argue with appellant and explain that it was not his mother's house but when he told them he would kill them if they were still there when he returned, Latoya and Monette decided to take their children and leave. As appellant walked out of the house, Latoya, Monette, and their children fled across the street and watched as appellant walked down the street and got into a car, drove back to the Latoya's house and go back inside the house with a gun wrapped in a blanket. After a few minutes, appellant came out of Latoya's house and was picking up trash from the yard when the police arrived and arrested him. Sufficiency of the evidence
In his first and second issues, appellant challenges the sufficiency of the evidence to support his conviction for burglary.
A. Standard of Review
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). We determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements for the crime beyond a reasonable doubt."Jackson, 443 U.S. at 319. The essential elements of the crime are the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. "Under Jackson, the State must prove the statutory elements that it has chosen to allege, not some other alternative statutory elements that it did not allege." Cada v. State, 334 S.W.3d 766, 776 (Tex. Crim. App. 2011). The hypothetically correct jury charge is not required to exactly track all of the charging instrument's allegations; it need not incorporate allegations that give rise to immaterial variances. See Gollihar v. State, 46 S.W.3d 243, 253- 56 (Tex. Crim. App. 2001).
B. Applicable Law
A variance occurs whenever there is a discrepancy between the allegations in the indictment and the proof offered at trial. Gollihar, 46 S.W.3d at 246. A variance can be classified into three categories. First, a variance involving statutory language that defines the offense always renders the evidence legally insufficient to support the conviction. Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012). Second, a variance involving a non- statutory allegation that describes an "allowable unit of prosecution" element of the offense may or may not render the evidence legally insufficient, depending upon whether the variance is material. Id. Finally, other types of variances involving immaterial non-statutory allegations do not render the evidence legally insufficient. Id.
The materiality of defects in indictments and jury charges is analyzed by looking to the gravamen of the offense and the hypothetically correct jury charge under the specific indictment or information. Byrd v. State, 336 S.W.3d 242, 250 (Tex. Crim. App. 2011). Thus, we turn to the essential elements of the offense of burglary.
A person commits burglary if, without the effective consent of the owner, the person (1) enters a habitation, or a building not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or (3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. See Tex. Penal Code Ann. § 30.02(a) (West 2011). The gravamen of a burglary is the entry without the effective consent of the owner and with the requisite mental state under §§ 30.02(a)(1) and (2), or the further requisite acts or omissions, under § 30.02(a)(3). Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988).
C. Application of Law to the Facts
1. Indictment
The indictment as amended under which appellant was charged states appellant:
. . . did then and there unlawfully, intentionally and knowingly enter a habitation without the effective consent of LATOYA WHITEMOR, the owner thereof, and did then and there commit and attempt to commit a felony other than theft, namely, AGGRAVATED ASSAULT WITH A DEADLY WEAPON.
Italicized words in the indictment, jury charge, and special verdict form are emphasis added by this Court.
2. Verdict Form
The only verdict form given to the jury read:
We, the jury, find the defendant, Wesley Savannah, guilty of Burglary of a Habitation with the intent to commit Aggravated Assault with a deadly weapon as charged in the indictment.
We, the jury, find the defendant, Wesley Savannah, guilty of Criminal trespass as Included in the indictment.
We, the jury, find the defendant, Wesley Savannah, not guilty.
3. Analysis
Appellant's first and second issues claim the evidence is legally insufficient to support his conviction. Specifically, appellant contends no rational fact finder could have found that appellant committed the crime as alleged in the indictment because the State failed to prove appellant committed or attempted to commit aggravated assault. Further, appellant claims the State failed to establish that appellant committed burglary of a habitation with the intent to commit aggravated assault. Because we only review the evidence as defined by a hypothetically correct jury charge and appellant's second issue asks us to review the evidence in light of a jury charge not based on the indictment, we overrule appellant's second issue and will only address whether a rational fact finder could have found that appellant committed the crime as alleged in the indictment. See Malik, 953 S.W.2d at 240.
Latoya and Monette Whitmore both testified regarding appellant's entry into the house. Latoya testified she and her sister were in her home, sitting on her couch watching television when appellant came in her front door and said, "get the . . . out my mama house because, before I kill you . . . ." Latoya tried to explain to appellant that it was not his mother's house. Latoya testified appellant was reaching in his pants, like he had a gun or something behind his back. Appellant proceeded to walk through the house and stopped, turned around and said, "when I come back all you . . . better be outa my house. I'm going kill all of y'all." At that point, Latoya believed appellant would actually kill her so she took her two small children and went across the street to her mother's house. Latoya testified she believed appellant "was already on something because his eyes were blood shot red." Monette further testified her daughter walked into the room and started screaming, which agitated appellant and appellant started reaching "for something;" Monette thought appellant was getting ready to kill them. Latoya and Monette watched appellant from their mother's house as appellant went down the street, got into a car and drove back to the house. Appellant drove the car over the curb and ran into a tree in Latoya's front yard. They all watched as appellant retrieved a gun from the trunk, covered the gun with a blue and white cover and went back inside Latoya's home. Latoya testified appellant stayed in her house for a few minutes then came out of the house and began picking up trash from her front yard until the police arrived.
Dallas police officer Brian Emerson testified that he and his partner, officer Jonathan Walker, were the responding officers to the home of Latoya and Monette Whitmore. When the officers arrived, various people in the neighborhood approached them in a "chaotic" manner and were pointing to appellant and reporting that appellant had a weapon. After taking cover and ordering the appellant to get down, they handcuffed appellant. The officers found two weapons at the scene, one under a bed and the other in the back yard by the fence. Officer Emerson testified appellant told them where to find the gun under the bed. Both parties agree that appellant entered the home of Latoya and Monette Whitmore without consent. However, appellant first argues the proof he committed or attempted to commit aggravated assault is insufficient to support his conviction. Appellant's argument appears to center around the focus of the State's case being that appellant entered the habitation with the intent to commit aggravated assault, not that he committed or attempted to commit aggravated assault. However, the jury heard Latoya and Monette both testify that appellant told them he would kill them. Appellant continually motioned as though he had a gun in his pants or behind his back. Both girls were in fear for their lives and the lives of their children. Further, both girls testified appellant did in fact go outside and retrieve a weapon and then return to the house just as he had threatened. The jury further heard testimony regarding the appellant's agitated state of mind and that both Latoya and Monette thought appellant was under the influence of some substance due to his red eyes.
Appellant argues his threat was conditioned on a future event and was not imminent. We do not agree. A threatened injury is "imminent" if it is "near at hand" or "on the verge of happening." Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989). Appellant told the girls we would kill them if they were there when he got back. They had no idea how long it would be or where appellant was going; appellant could have been going to the next room and wanted them gone before he returned. The jury also heard testimony of appellant immediately returning with a gun and taking it inside the house where Latoya, Monette, and their children had been. We are "required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony." Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). On this record, we conclude the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant did enter Latoya's house and then committed or attempted to commit aggravated assault with a deadly weapon. Appellant's first and second issues are overruled. Jury charge error
In his third and fourth issues, appellant complains about the jury charge and special verdict form. Specifically, appellant complains the trial court erred by presenting a charge to the jury on a theory of burglary of a habitation not alleged in the indictment and by submitting only one special verdict form to the jury which included a theory of guilt not alleged in the indictment. Since appellant's third and fourth issues are both based on the jury charge, we discuss them together.
Standard of Review
We review allegations of charge error using a two-step process: first we determine whether error actually exists in the charge, and second, we determine whether sufficient harm resulted from the error to require reversal. See Young v. State, 311 S.W.3d 711, 713 (Tex. App.-Austin 2010) aff'd, 341 S.W.3d 417(Tex. Crim. App. 2011). When the defendant has failed to preserve error, the appropriate harm analysis for a jury charge requires "egregious harm" for reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). All jury charge errors, including errors in the verdict form, are cognizable on appeal under Almanza. Jennings v. State, 302 S.W.3d 306, 311 (Tex. Crim. App. 2010). When considering the actual degree of harm from the erroneous jury charge instructions and erroneous special verdict form, we examine (1) the entire jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the argument of counsel and (4) any other relevant information revealed by the record of the trial as a whole." Almanza, 686 S.W.2d at 171.
Analysis
The first Almanza factor requires consideration of the entire jury charge. Almanza, 686 S.W.2d at 171. Here, appellant was indicted for " intentionally and knowingly" entering a habitation without the effective consent of the owner, "and did then and there commit and attempt to commit a felony other than theft" under Texas Penal Code § 30.02(a)(3). The application portion of the jury charge instructed the jury:
. . .
Now, if you find from the evidence beyond a reasonable doubt, that on or about 11th day of November, 2009 Dallas County, Texas, the defendant, Wesley Savannah, did then and there unlawfully intentionally or knowingly enter a habitation without the effective consent of Latoya Whitmore, the owner thereof, with the intent to commit aggravated assault with a deadly weapon;
-OR-
the said defendant did intentionally or knowingly enter a habitation without the effective consent of Latoya Whitmore, the owner thereof, and did then and there commit or attempt to commit aggravated assault with a deadly weapon, and then you will find the defendant guilty of the offense of Burglary of a Habitation as charged in the indictment.
. . . .
Further, the special verdict form's only option for a conviction of burglary stated he intentionally or knowingly entering the habitation "with the intent to commit aggravated assault with a deadly weapon." The special verdict form also allowed a conviction for the lesser included "criminal trespass" and the option of "not guilty."
We agree it was error for the verdict form to authorize a conviction on a theory not alleged in the indictment. See Shaw v. State, 557 S.W.2d 305, 307 (Tex. Crim. App. 1977) (fundamental error in charge that allowed jury to convict under 30.02(a)(1) when indictment charged under 30.02(a)(3)). "A charge is fundamentally defective if it erroneously authorized a conviction only on a theory not charged in the indictment." Id.
The second Almanza factor to be considered in our harm analysis considers the state of the evidence. Almanza, 686 S.W.2d at 171. Appellant relies on the absence of proof that he committed or attempted to commit aggravated assault.
A person commits aggravated assault if the person (1) intentionally or knowingly threatens another with imminent bodily injury and (2) uses or exhibits a deadly weapon during the commission of the assault. See Tex. Penal Code Ann. §§ 22.01 & 22.02 (West 2011). As discussed above, we find evidence in the record that appellant told the Whitmores he would kill them if they were still there when he returned. In fact, appellant never left their sight as they watched him go outside, get his car, and return with a gun. Further, after appellant took the gun inside the house and then came back out, he waived to the Whitmores and told them "It's Okay!" The evidence shows appellant did enter the habitation and did commit or attempt to commit aggravated assault.
The third Almanza factor to be considered is the arguments made by counsel. Almanza, 686 S.W.2d at 171 . From the beginning of appellant's trial, defense counsel, the prosecutor, and the court all told the venire the case was about appellant entering with the intent to commit aggravated assault even though that is not what was charged in the indictment. During voir dire, the court stated:
Mr. Savannah has been indicted for the offense of burglary of a habitation with the intent to commit aggravated assault.
Shortly thereafter, the court read the indictment to the venire stating:
The defendant, Wesley Savannah, on or about the 11th day of November, 2009, in Dallas County, Texas did then and there unlawfully, intentionally and knowingly enter a habitation without the effective consent of Latoya Whitmore, the owner thereof, and did then and there commit a felony, other than theft.
. . .
Okay, you are not just breaking in there to steal something. You are breaking in to commit an aggravated assault with a deadly weapon. And that's what they have alleged in this indictment.
Defense counsel referred to intent to commit aggravated assault during voir dire as well. Defense counsel went as far as to explain "intent" to the venire. Then, during her opening statement, the prosecutor also told the jury:
Ladies and gentlemen, it's an unusual set of facts, but based on the evidence that you hear we're going to ask you to find the Defendant guilty of burglary of a habitation with intent to commit aggravated assault.
Even in closing arguments, both sides argued to the jury about the entry with intent to commit aggravated assault as well as the attempt to commit aggravated assault.
Finally, the final Almanza factor requires us to review any other relevant information revealed by the record as a whole. Almanza, 686 S.W.2d at 171 . We find the two separate theories of burglary were referred to interchangeably throughout appellant's entire trial. From the beginning with voir dire, until the end with the charge given to the jury, the jury was told they could find appellant guilty of burglary if they found he entered the habitation "with the intent to commit aggravated assault with a deadly weapon."
Appellant claims that he suffered egregious harm because it was easier for the State to obtain a conviction on the erroneous verdict form given. The verdict form required the State to prove appellant entered the home with intent to commit aggravated assault. The verdict form did not require the jury to find an actual or attempted aggravated assault. In some instances conviction under these circumstances might require reversal. The case before us is not such a situation. On this record, the jury could have found appellant had the intent to commit and did commit aggravated assault upon entry when appellant entered the house with a gun after telling Latoya Whitmore he would kill her when he returned. See Jacob v. State, 892 S.W.2d 905, 909 (Tex. Crim. App. 1995) (a completed assault may be used to show intent to commit the assault); Brown v. State, No. 05-07-00939-CR, 2010 WL 425063, *7 (Tex. App.-Dallas 2010, no pet.) (not designated for publication) (finding no egregious harm when evidence presented on both theories of burglary); Valentine v. State, No. 05-92-01690-CR, 1993 WL 541404, *5 (Tex. App.-Dallas 1993, no pet.) (not designated for publication) (finding no egregious harm when indicted under § 30.02(a)(3) and charged under § 30.02(a)(1) with evidence sufficient to convict under either theory). The jury could have found appellant guilty under either theory of burglary and the jury's guilty verdict supports this conclusion. Under the facts of this case, the evidence is sufficient that appellant committed burglary under either theory.
We conclude appellant suffered no egregious harm due to the error in the court's charge. Appellant's third and fourth issues are overruled. Right of allocution
Appellant's fifth issue contends the trial court erred in failing to pronounce the sentence and to afford him the right of allocution under code of criminal procedure article 42.07. See Tex. Code Crim. Proc. Ann. art. 42.07 (West 2006). The State responds that appellant did not preserve this issue for appellate review and alternatively, that appellant has failed to show any harm from the alleged denial of his right of allocution.
After the prosecution and defense presented the punishment evidence and arguments, the record shows there was an off-the-record discussion with the lawyers in the judge's office. When the record begins again, the court pronounced the sentence. Appellant recognizes he failed to object to any error; however, he encourages this Court to consider his argument in the interest of justice. We decline his invitation.
Texas Rule of Appellate Procedure 33.1 requires a complaining party to make a timely, specific objection to preserve error for appellate review. Tex. R. App. P. 33.1. Here, appellant failed to object that he was denied his right to the pronouncement of sentencing or his right to allocution. Therefore, he has failed to preserve error for our review. See Tenon v. State, 563 S.W.2d 622, 623-24 (Tex. Crim. App. 1978) (holding appellant failed to preserve his argument regarding allocution by failing to object in the trial court). We overrule appellant's fifth issue. Effective assistance of counsel
Appellant's sixth, seventh and eighth issues complain he was denied effective assistance of trial counsel because counsel failed to object to the jury charge, failed to object to the special verdict form, and failed to object to the denial of the right of allocution.
We review ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Appellant has the burden to show by a preponderance of the evidence: (1) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (2) the deficiency prejudiced the appellant in that, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.
In most cases a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14. Further, an appellant claiming ineffective assistance must overcome the presumption that the challenged action under the circumstances "might be considered sound trial strategy." Strickland, 466 U.S. at 689. Any 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 812.
Here, appellant did not file a motion for new trial on ineffective assistance of counsel grounds. Thus, the record contains no explanation of counsel's motives or strategy in failing to object to the jury charge, special verdict form, or the denial of the right to allocution. Further, the record shows defense counsel argued both burglary theories throughout the trial proceedings which supports the possibility of a specific trial strategy. As we explained above in our egregious harm analysis, the charge and verdict form stated an alternative manner and means to commit a burglary and the jury could have inferred the requisite intent from the evidence provided. See Almanza, 686 S.W.2d at 171.
As for the failure to object to the lack of allocution, no objection was made to the trial court's failure. The only reasons that sentence may not be pronounced are pardon, incompetency, and mistaken identity. See Tex. Code Crim. Proc. Ann. art. 42.07. Appellant has not complained that any of these reasons apply here and we find none are applicable here.
After a careful review of the record, we conclude appellant has failed to demonstrate a reasonable probability that the result of the proceeding would have been different had defense counsel objected to the jury charge, special verdict form, or lack of allocution. See Strickland, 466 U.S. at 694. Appellants sixth, seventh, and eighth issues are overruled. Conclusion
Having resolved appellant's eight issues against him, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101565F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
WESLEY WAYNE SAVANNAH, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01565-CR
Appeal from the 291st Judicial District Court of Dallas County, Texas.
(Tr.Ct.No. F09-72992-U).
Opinion delivered by Justice Richter, Justices O'Neill and Francis participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 2, 2012.
MARTIN RICHTER
JUSTICE