Robert Gamble v. State

Opinion issued June 10, 2004. In The Court of Appeals For The First District of Texas NO. 01-03-00203-CR NO. 01-03-00204-CR ROBERT GAMBLE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause No. 937904 Trial Court Cause No. 937905 MEMORANDUM OPINION In two separate indictments, the State charged appellant Robert Gamble with separate felony offenses of burglary of a habitation. Each indictment included an allegation that Gamble used or exhibited a deadly weapon during the commission of the offense and a punishment enhancement paragraph alleging that he previously had been convicted of a felony offense. Gamble entered pleas of not guilty to the charged offenses, and true to the punishment enhancement paragraphs. A single jury convicted Gamble of both burglaries, found the enhancement paragraphs true, and found that Gamble used a deadly weapon while committing both offenses. The jury sentenced Gamble to 30 years confinement in cause number 937904, and 17 years confinement in cause number 937905, to run concurrently. Gamble challenges the legal and factual sufficiency of the evidence supporting his convictions. He further contends that the trial court erred in allowing the State to present inadmissible hearsay to the jury, and that his trial counsel failed to render effective assistance of counsel. We affirm. Background Gamble and Belinda Garcia were in a dating relationship that ended in December 2001. After Garcia’s relationship with Gamble ended, she and Desmond Stewart began living together in Garcia’s residence. On April 7, 2002, Gamble entered Garcia’s residence, assaulted Garcia while threatening her with a knife, and then stabbed Stewart with the knife. Gamble first contends that the evidence is legally and factually insufficient to support his convictions. Specifically, he contends that there was no evidence that he entered the residence with intent to assault Garcia and Stewart, because “he entered the condo under a claim of right as a sometimes occupant, . . . [he] cannot be held to be a burglar.” Gamble further contends that the State’s witnesses did not rebut his testimony that he used the knife to defend himself, and that he entered the residence with a key to retrieve his own personal property. Legal and Factual Sufficiency of the Evidence When determining whether a conviction is supported by legally sufficient evidence, we view the evidence in the light most favorable to the prosecution, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Howley v. State, 943 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1997, no pet.). We consider all of the evidence presented at trial, but we do not re-weigh the evidence or substitute our judgment for that of the jury. King, 29 S.W.3d at 562. The jury, as the trier of fact, is the sole judge of the credibility of the witnesses. Obigbo v. State, 6 S.W.3d 299, 304 (Tex. App.—Dallas 1999, pet. ref’d). We review the factual sufficiency of the evidence by reviewing all of the evidence as a whole neutrally, not in the light most favorable to the prosecution. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). As the Texas Court of Criminal Appeals recently has held: There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can “preponderate” in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can “outweigh” the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004). In a factual sufficiency review, we may not substitute our own judgment for that of the finder of fact. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The Charged Offenses A person commits burglary if, without the effective consent of the owner, that person enters a habitation with the intent to commit a felony, theft, or assault. Tex. Pen. Code Ann. § 31.02 (Vernon 2003). A person commits assault by intentionally, knowingly, or recklessly causing bodily injury to another, by intentionally or knowingly threatening another with imminent bodily injury, or by intentionally or knowingly causing physical contact with another when the person knows that the other will regard the contact as offensive or provocative. Tex. Pen. Code Ann. § 22.01 (Vernon Supp. 2004). An aggravated assault occurs if, while committing an assault, a person causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2004). A deadly weapon is a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon Supp. 2004). The Evidence at Trial Garcia testified that she and Stewart lived together in a residence with her children. On April 7, 2002, Garcia locked the doors to her residence and to her upstairs bedroom before going to bed, around midnight. Garcia was awakened by a loud noise and then saw Gamble enter her bedroom and charge at her with a knife in his hand. Gamble pulled Garcia out of bed by her hair and she fell to the floor, whereupon Gamble repeatedly kicked her. Garcia attempted to call 911, but Gamble grabbed the telephone from her hands and held his knife to her neck. Stewart testified that he saw Gamble’s silhouette in the doorway, and that Gamble held a shiny object in his hand. Stewart “attacked the silhouette.” He and Gamble fought in the bedroom and hallway, and Gamble pushed Stewart down the stairs. Stewart ran into the parking area, thinking that Gamble was outside, and then realized that he was bleeding profusely from several stab wounds. Stewart began to experience difficulty breathing, and called for help. Gamble found Stewart sitting on the ground in the parking lot attempting to catch his breath, and while holding the knife, pursued him. Stewart evaded Gamble until another individual arrived. Roger Espinoza, a Houston Police Department (“HPD”) patrol officer, responded to the incident. He interviewed Garcia, who informed him that she did not want Gamble to enter her home, and that he had not been invited. Espinoza observed bruises on Garcia’s chin and above her left buttock. Garcia informed Espinoza that she received the bruise on her chin when Gamble struck her with his fist, and the bruise above her left buttock when Gamble kicked her while she lay on the floor. Espinoza entered the residence, and determined that the door leading into Garcia’s bedroom had been forced open. He observed damage to the doorframe, and a hole in the sheetrock on the interior of Garcia’s bedroom caused by opening the door with such force that the doorknob broke through the wall. According to Espinoza, the bedroom was in a “state of chaos.” He observed that the bed and the carpet were soaked with blood. Officer D.C. Lambright, an HPD crime scene investigator, examined the sliding glass door at the residence, and testified that he found numerous signs of forced entry. The screen had been removed, and Garcia had indicated that it was on its track earlier that evening. Lambright located metal shavings along the entryway and observed that the metal on the sliding door was bent, indicating that someone forced, pried, or pulled the door open. Lambright has viewed many crime scenes, and described Garcia’s residence as “a very brutal scene.” Gamble testified that he resides in the LaMarque/Texas City area. He admitted that he was not invited, but nevertheless entered the residence through the front door with a key. He climbed the stairs leading to Garcia’s bedroom, and knocked on the door. Gamble testified that he heard both Garcia and Stewart through the bedroom door, and, notwithstanding that the door was locked, he “pushed the door in.” Gamble explained, “Because sometime on the lock, when it be [sic] locked, you just push it, it [sic] just opened. It been [sic] like that.” Gamble testified that Stewart hit him several times with a baseball bat, and admitted that he “stuck him a couple of times” with the knife in an attempt to defend himself. He explained that while being hit with a baseball bat, he was able to pull a folding knife from his pocket and stab Stewart with it. Gamble also admitted kicking Garcia, but his testimony was inconsistent with respect to whether he kicked her upstairs while in her bedroom, or downstairs. Gamble’s attorney questioned him regarding his purpose in entering the residence that night, and Gamble explained that “Every weekend we take turns. Sometimes she come [sic] down [to his residence]. Sometimes I come [sic] up [to her residence].” Gamble also justified his uninvited entry by explaining that he “had clothes over there,” that he helped out in paying the bills, and that Garcia had his income tax money. We conclude that a rational trier of fact could have found the essential elements of the charged offenses beyond a reasonable doubt and therefore conclude that the evidence is legally sufficient to support Gamble’s two convictions. See King, 29 S.W.3d at 562. Gamble conceded at trial that he was not invited into Garcia’s residence. The jury heard evidence that Garcia did not want Gamble to enter her home. See Ellett v. State, 607 S.W.2d 545, 550 (Tex. Crim. App. 1980) (testimony by owner that appellant not given permission to enter building is sufficient to establish absence of effective consent, even if entry through open door). In addition, the State presented testimony that physical evidence indicated that the sliding glass door to the residence had been forced open. Gamble admitted that he carried a knife with him. While holding a knife, Gamble entered Garcia and Stewart’s bedroom by forcing open the locked door with such force that he broke the doorframe and pushed the doorknob through the sheetrock when it hit the wall. A rational jury could have found from this evidence that Gamble entered the residence without consent or the possessory right to enter and with the intent to assault the occupants. Furthermore, upon a neutral view of the evidence both for and against the jury’s findings, we conclude that the jury was rationally justified in finding guilt beyond a reasonable doubt. Although Gamble contended that he had a right to be in the residence and that he had no intent to assault Stewart or Garcia, by convicting Gamble, the jury impliedly found him not credible in his assertions. We defer to the jury to make credibility assessments of the witnesses. Gamble’s testimony that he used a key to retrieve personal property and used the knife to defend himself is inconsistent with Stewart and Garcia’s testimony. It is also inconsistent with the physical evidence that someone removed the screen and forced open the sliding door. A jury may resolve inconsistent testimony by making credibility determinations of the witnesses, and it was free to believe or disbelieve any portion of any witness’ testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). We therefore conclude that the evidence is factually sufficient to support Gamble’s two convictions. Hearsay Gamble further contends that the trial court erred in allowing Officer Espinoza to testify, over a hearsay objection, that Garcia told Espinoza that her former boyfriend had entered her residence through a sliding glass door. Gamble submits that Garcia’s statement did not fall within the excited utterance exception to the hearsay rule because Garcia provided a long and detailed statement to Espinoza, which evidences that she “was not so upset that she could not reply with . . . complete accuracy and completeness.” An excited utterance is “a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex. R. Evid. 803(2). A trial court’s decision to admit an out of court statement as an excited utterance is reviewed for abuse of discretion. King v. State, 953 S.W.2d 266, 269 n. 4 (Tex. Crim. App. 1997). In order to constitute an excited utterance, (1) the statement must be the product of a startling occurrence; (2) the declarant must have been dominated by the emotion, excitement, fear, or pain of the occurrence; and (3) the statement must be related to the circumstances of the startling occurrence. Couchman v. State, 3 S.W.3d 155, 159 (Tex. App.—Fort Worth 1999, pet. ref’d). The critical focus is “whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event” at the time of their statement. Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001); see also Hawkins v. State, 792 S.W.2d 491, 495 (Tex. App.—Houston [1st Dist.] 1990, no pet.) (when determining admissibility of statement under excited utterance exception to hearsay rule, element of time is important, but not controlling factor). Officer Espinoza testified that he arrived to find a very bloody scene, with emergency personnel from the Houston Fire Department providing medical care to Stewart. Stewart had been beaten, was covered in blood, and had sustained stab wounds on his chest, back, and legs. After speaking briefly with Stewart, Espinoza found Garcia. Espinoza testified that Garcia, was “very, very nervous” and “very much shook up by the ordeal that went on that night.” Garcia was “crying profusely, [and she was] trying to tell me what happened in between sobs.” Garcia was very upset and very excited. Based upon Espinoza’s description of the crime scene, his observations concerning Stewart’s condition and injuries, and his description of Garcia’s emotional state, the trial court reasonably could have found that the emotion, excitement, and fear of the occurrence dominated Garcia when she made her statement, that it was the product of that startling occurrence, and that it related to the circumstances of the startling occurrence. See Couchman, 3 S.W.3d at 159. We therefore conclude that the trial court did not abuse its discretion in allowing the statement. Ineffective Assistance of Counsel Gamble contends that his trial counsel failed to render effective assistance because his trial counsel: (1) made only one objection to the officer’s testimony concerning statements made to him by Garcia and Stewart; (2) filed no pretrial motions except for a request for funds to hire an investigator; and (3) failed to ask for a motion to disregard and a motion for mistrial following his objection during the State’s closing argument. We follow the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). In order to prevail, Gamble must prove that (1) his counsel’s representation was deficient; and (2) the deficient performance was so serious that it prejudiced his defense. See id. We begin our analysis with a strong presumption that counsel’s conduct is reasonable. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Accordingly, the allegation of ineffective assistance must be firmly founded and affirmatively demonstrated in the record. Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). In this case, Gamble did not file a motion for new trial. The record thus is silent as to his trial counsel’s reasoning with regard to the State’s introduction of the alleged inadmissible evidence, and to pretrial motions. Moreover, although Gamble contends his trial counsel erred in failing to move for an instruction to disregard and a mistrial during the State’s closing argument, he has not cited the record to support his contention. We have reviewed the record and have not found any objection to the State’s closing argument. Because the record gives no indication of the strategy or reasons behind the decisions of Gamble’s counsel, to find that Gamble’s trial counsel was ineffective would call for improper speculation. See Bone v. State 77 S.W.3d 828, 835 (Tex. Crim. App. 2002); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet). We conclude that Gamble failed to rebut the strong presumption that his trial counsel’s conduct was reasonable, and therefore hold that he has not satisfied his burden in demonstrating that his trial counsel was ineffective. Conclusion We conclude that legally and factually sufficient evidence supports the verdict. We further conclude that the trial court did not abuse its discretion in the admission of evidence, and that Gamble did not overcome the strong presumption that trial counsel acted reasonably on his behalf. We therefore affirm the judgment of the trial court. Jane Bland Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. Do not publish. Tex. R. App. P. 47.4.