Walsh v. State, No. 06-09-00208-CR (Tex. App. 5/28/2010)

• Court: Texas Court of Appeals
• Writing for the Court: Carter
• Decision Date: 28 May 2010
• Docket Number: No. 06-09-00208-CR.,06-09-00208-CR.
• Citation: Walsh v. State, No. 06-09-00208-CR (Tex. App. 5/28/2010), No. 06-09-00208-CR. (Tex. App. May 28, 2010)
• Parties: JOHN WESLEY WALSH, Appellant, v. THE STATE OF TEXAS, Appellee.

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JOHN WESLEY WALSH, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 06-09-00208-CR.

Court of Appeals of Texas, Sixth District, Texarkana.

Submitted: May 27, 2010.

Decided: May 28, 2010.

On Appeal from the 115th Judicial District Court, Upshur County, Texas, Trial Court No. 14,971.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

DO NOT PUBLISH

MEMORANDUM OPINION

Memorandum Opinion by Justice CARTER.

A jury assessed life imprisonment for John Wesley Walsh after convicting him of burglary of Stan Burks' residence, enhanced by prior convictions of murder and burglary of a building. Walsh appeals the trial court's judgment on the grounds that insufficient evidence supported his conviction, his counsel rendered ineffective assistance, and the trial court erred in allowing the jury to assess punishment. In affirming the trial court's judgment, we find the evidence sufficient, conclude counsel was not ineffective, and find no reversible error with respect to jury assessment of Walsh's punishment.

I. Sufficient Evidence Supported Walsh's Conviction

Burks' son returned home from school to find "broken glass on the floor" from windows in the kitchen, back door, and dining room. He called his mother and waited outside of the residence for police to arrive. An inventory of missing items included missing knives, firearms, jewelry, a driver's license, social security card, debit card, other personal items, and cash taken from three bedrooms.

By the broken and jagged-edged kitchen window, officers noticed three drops of "blood which was located on the frame inside the residence." The blood was sent to a DNA laboratory, and was matched to Walsh's profile contained in the Combined DNA Index System (CODIS), a national database that stores known DNA profiles to generate leads in unsolved cases. Based on the laboratory report, officers secured a warrant allowing them to obtain a buccal swab from Walsh. The laboratory compared the DNA from the blood and cheek samples and confirmed Walsh was the contributor of the blood obtained from Burks' residence.

Walsh contends this evidence was insufficient to establish he committed burglary of a habitation. We disagree.

We will review the legal and factual sufficiency of the evidence supporting Walsh's conviction under well-established standards. In conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of burglary of a habitation beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003). We defer to the jury's responsibility "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We are not required to determine whether we believe that the evidence at trial established guilt beyond a reasonable doubt; rather, when faced with conflicting evidence, we presume that the jury resolved any such conflict in favor of the prosecution, and we defer to that resolution. State v. Turro, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

In conducting a factual sufficiency review, we consider the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). The verdict will be set aside only if (1) it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, or (2) it is against the great weight and preponderance of the evidence. Id. at 415 (citingJohnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)). Both legal and factual sufficiency are measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

Walsh was charged by indictment with burglary of a habitation; the specific charge was that with intent to commit theft he entered a habitation, without the effective consent of the owner, Burks. Burglary may be committed by three different means under the Texas Penal Code. DeVaughn v. State, 749 S.W.2d 62, 64-65 (Tex. Crim. App. 1988). Here, Walsh was charged with violating the first alternative means as set out in the statute. TEX. PENAL CODE ANN. § 30.02(a)(1) (Vernon 2003). When the State alleges one of several alternative manner or means of committing the crime, that alternative must be proved by the State and our review under the hypothetically correct jury charge must be guided by the requirements of the alleged statutory alternative. See Fuller v. State, 73 S.W.3d 250, 255 (Tex. Crim. App. 2002) (Keller, P.J., concurring); Mantooth v. State, 269 S.W.3d 68, 74 (Tex. App.-Texarkana 2008, no pet.). Here, a hypothetically correct charge would require the jury to find, beyond a reasonable doubt, that: (1) Walsh; (2) without effective consent of the owner; (3) entered a habitation; (4) with intent to commit theft. Tex. Penal Code Ann. § 30.02(a)(1). "Theft" is the unlawful appropriation of property with intent to deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (Vernon Supp. 2009). A person acts with intent "with respect to the nature of his conduct . . . when it is his conscious objective or desire to engage in the conduct . . . ." TEX. PENAL CODE ANN. § 6.03(a) (Vernon 2003). In a burglary prosecution, the specific intent to commit theft may be inferred from the circumstances. Hawkins v. State, 467 S.W.2d 465, 466 (Tex. Crim. App. 1971).

The evidence shows that the Burks home was forcibly entered and their property was taken. It is undisputed that Walsh's blood was found inside Burks' residence next to the broken kitchen window.¹ None of the Burks family knew Walsh and had never seen him before. Because there was no occasion for Walsh's presence inside of the home, it was reasonable for the jury to infer that the blood must have been left during the burglary.² The presence of three broken windows in the back of the home indicated a knowing or intentional intrusion into the residence. Since the Burks family did not know Walsh, he could not have obtained their consent for entry. The inventory of stolen items established that appropriation of the Burks property occurred. Intent to deprive the Burks of their property could have been inferred by the jury given these circumstances. Officer James Norred pointed out to the jury that the broken windows were all in "the back which would mean that whoever had burglarized the home, they were trying to hide." Considering the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found the essential elements of burglary of a habitation beyond a reasonable doubt.

The only contrary evidence Walsh sought to introduce was an allegation that another person by the name of Clifford Edward Pruitt may have burglarized the home. Pruitt testified that he did not know Walsh prior to their meeting in jail and that he had never seen the Burks residence. Affording the jury the deference it is due, we cannot conclude its verdict was so contrary to the overwhelming weight of the evidence as to be clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence.

We find that legally and factually sufficient evidence supported the jury's verdict and overrule Walsh's first point of error.

II. Walsh Did Not Receive Ineffective Assistance of Counsel

The right to counsel does not mean the right to errorless counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). In order to prevail on a claim of ineffective assistance of counsel, Walsh must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687-88 (1984); see also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009). The Strickland test "requires a case-by-case examination of the evidence." Williams v. Taylor, 529 U.S. 362, 391 (2000). The first prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

The second Strickland prejudice prong requires a showing that but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88; see also Imoudu, 284 S.W.3d at 869. "Reasonable probability" means a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003).

In an Anders³-style briefing format, Walsh raises several issues relating to this point of error and then proceeds to explain why they have no merit. For completeness, the brief states:

1. He was initially brought into the courtroom, handcuffed and shackled in the presence of the jury panel. His lawyer failed to object. There is no record of this even though apparently the Trial Court quickly corrected this situation. . . .

2. He was not allowed to help select the jury and has no idea when the jury was selected. The record reflects that Walsh was present during the jury voir dire.

3. Walsh contends that he did not sign the judgment of conviction . . . . This claim is groundless.

4. Walsh contends the docket sheet was altered. This is ministerial concerning the case number and the Trial Court's motion. It has nothing to do with any misconduct and does not give rise to any error at trial.

5. Although Walsh contends [that] he had no opportunity to participate in the jury selection, the Reporter's Record...