Danny Carlton Fisher v. State

Opinion issued December 28, 2012.

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-11-00571-CR

———————————

DANNY CARLTON FISHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Case No. 1241361

MEMORANDUM OPINION

A jury found appellant, Danny Carlton Fisher, guilty of the offense of

criminal mischief.1 The trial court, pursuant to an agreed punishment

1

See TEX. PENAL CODE ANN. § 28.03 (West 2011).

recommendation from the State, assessed appellant’s punishment at confinement

for two years, suspended the sentence, placed appellant on community supervision

for four years, and ordered that he pay $12,264.72 in restitution. In two issues,

appellant contends that the evidence is legally insufficient to support his conviction

and he received ineffective assistance of counsel.

We affirm.

Background

Deborah Currier, the complainant, testified that in 2006, she lived in a house

with her two children in Kingwood, Texas. The home had a detached garage

apartment, which, on August 19, 2006, Currier leased to appellant for $750 per

month, including utilities. The apartment had in it a refrigerator, a stove, a “small

dinette,” a small table, two chairs, a loveseat, a television stand, a small dresser,

and some “decorative items.” The complainant provided appellant with a key to

the deadbolt lock on the door of the apartment and a key to her house because she

allowed him to use her washer and dryer. The only other person who had a key to

the deadbolt lock on the door of the apartment was Elias Currier, the complainant’s

ex-husband and “best friend,” who would occasionally perform maintenance on the

apartment. At first, appellant seemed “very cordial” and “friendly,” and the

complainant became “well-acquainted” with him.

2

The complainant explained that appellant was employed as a flower delivery

driver, so his work was “seasonal” and “holiday-oriented.” However, three or four

months after he had moved in, appellant “hardly ever left” the apartment. Because

appellant’s air conditioning unit was “continually running,” the complainant

noticed an increase in her electricity bill. As a result, in January 2008, she

informed appellant that because “he was now working from home” and she “didn’t

lease the apartment for him to run a business out of,” she was raising the rent from

$750 per month to $900 per month, effective February 15, 2008. Appellant

seemed “upset” at the increase in rent and said that he “needed time to think about

it.”

On the morning of February 11, 2008, the complainant knocked on the door

of the apartment to ask appellant if he was planning to remain. After she had

repeatedly knocked on the door, appellant answered by “crack[ing]” the door open

slightly and briefly stating that he did plan to remain at the apartment. When the

complainant returned home from work that evening, she saw that appellant’s car

was gone. And it was still missing when she awoke the following morning. The

complainant then knocked on appellant’s door but received no answer. She could

not open the door because only appellant and Elias had a key to the deadbolt lock.

She then telephoned Elias and asked him to “do a courtesy check” to “see if

[appellant] was there or if he had moved out without [her] noticing.”

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When the complainant returned home from work, she discovered that the

apartment had been “trashed” and the walls “sprayed with urine and feces,” mostly

in the bathroom and the kitchen. She also noted that appellant’s computer and

most of his clothes were missing, but he had left his bed and television. The

complainant opined that the damage to the apartment must “have taken place over

a period of days.” She noted that appellant never returned to pick up his remaining

clothing, his mail, or pay the rent that was due on February 15, 2008.

The complainant filed a police report and “repeatedly” tried to call appellant

on his cellular telephone, but he did not answer. She had to bring in a “specialized

crew to clean the walls.” And, to repair the apartment, she had to put in new

carpet, repaint the walls, fix the appliances, and purchase and install a new toilet,

new lights, and a new ceiling fan. In total, it cost the complainant “over $10,000”

to repair the damage done to the apartment. The State introduced into evidence

several receipts from purchases that the complainant had made in the effort to

repair the apartment. For example, the purchases included a $219 receipt for

plumbing repairs and materials, a $117.17 receipt for stove repairs and materials,

and a $675 receipt for replacing the carpet. On cross-examination, the complainant

testified that “a large amount of what it cost . . . to make those repairs is actually

what [Elias] invoiced for his labor” and “materials.”

4

Elias testified that on February 12, 2008, the complainant telephoned him

and asked him to see if appellant had moved out of her apartment. When he

arrived at the apartment at approximately 10:00 a.m, Elias noted that there were no

“forced signs of a break-in,” the deadbolt on the door was still secure, and all of

the windows were secure. As he opened the door, Elias immediately smelled a

“putrid” odor of “ammonia and feces,” and he saw that all of the light bulbs in the

apartment had been broken. He then called the complainant to report the damage,

which he described as “extensive,” although he did not call for police assistance

because he was not the property owner. Elias also noticed that appellant’s

computer was no longer in the apartment and his clothing was “completely gone

except for some things that weren’t wearable.”

The State then introduced into evidence several photographs depicting the

damage done to the apartment. From the photographs, Elias identified “3M spray-

on adhesive” spread across the front door and the walls. In the bedroom closet,

Elias identified the phrase, “You suck,” written on both the wall and closet door in

“dried feces.” And he noted “butter or grease” spread along the wall, a

“combination of urine and feces” staining the carpet, and “dried urine” running

down the walls in the kitchen. The phrase, “You suck,” was also written in dried

feces in the kitchen. Elias also identified urine and feces on the bedroom walls, on

the bathroom walls, in the shower, on the stove, and under the kitchen sink. The

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freezer was filled with water and frozen shut. The air conditioning unit was

sprayed with the adhesive and “completely sealed.” And the toilet had been

“jammed with towels” and contained “glass and other objects.”

To repair the damage done to the apartment, Elias had the walls cleaned and

replaced the carpet, cabinetry, doors, and appliances. The State introduced into

evidence the records that Elias had kept itemizing the costs, totaling $7,375, which

he had incurred for labor and materials in repairing the apartment. Although he

“didn’t really break it down piece by piece,” Elias explained that he had to “cut

out” the underlying sheetrock on the walls where feces or urine had been spread,

which cost him $1,600. He also estimated that it had cost him $1,500 to repair the

toilet and plumbing. On cross-examination, Elias testified that he had still not been

paid for the repairs.

Houston Police Department (“HPD”) Officer S. McDonald testified that he

was dispatched to the apartment on February 12, 2008. He noted that the

apartment was “one of the worst” damaged apartments that he had “ever seen,”

with “products” and “chemicals” poured “all over every room” and “every piece of

furniture” and “feces smeared on the wall as well as urine.” McDonald noted that

there was no evidence of forced entry into the apartment.

HPD Sergeant L. Brown testified that in 2008, she was assigned to

investigate the damage done to the apartment. She spoke with the complainant less

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than a month after the damage had been done and noted that the complainant was

“very good at keeping and collecting her receipts for any repairs.” Although

Brown attempted to locate appellant, he was “nowhere to be found.”

Appellant testified that in 2008, he ran his own “floral delivery service” and

lived in the leased apartment adjoining the complainant’s house. Around October

2007, appellant’s business started struggling and it became “harder to meet [his]

financial needs.” In January 2008, the complainant informed him that she was

going to increase his rent, and appellant replied that he had to “think about it.” On

January 15, 2008, appellant paid his rent through February and gave the

complainant a “written notice of [his] intent to move out.”

On January 18, 2008, appellant moved into a three-bedroom trailer in

Tomball with his friend, Jeremy Webb. He moved his clothing, computer,

“business records,” and stereo into Webb’s trailer. And he left his keys to the

complainant’s apartment on a dining table in the apartment and never returned to

the apartment.

In regard to the photographs taken of the damage done to the complainant’s

apartment, appellant explained that the clothes in the bedroom closet did not

belong to him. And, in two photographs, appellant noted that a bucket in the

photographs appeared to have been moved. He also explained that he had been

previously diagnosed as “bipolar,” and he took medication. He denied damaging

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the complainant’s apartment or having received any telephone calls from the

complainant regarding the damage done to the apartment.

On cross-examination, appellant admitted that he never contacted the

complainant about receiving his deposit back or updated his address with the postal

service. He also admitted that a copy of his notice of his intent to move out of the

apartment, which had been admitted into evidence, was printed from his computer,

and there was no “way to determine” when it was created.

Webb, a friend of appellant since 1979, testified that in January 2008,

appellant, while watching a football game in Webb’s trailer, mentioned that he was

looking for a “cheaper place to live.” On January 18, 2008, appellant moved into

Webb’s trailer, agreeing to pay $75 per week to “help towards food mainly.”

Appellant was “very consistent” in spending most of his time at the trailer, and

Webb did not remember appellant ever spending a significant amount of time at

another location. Appellant then moved out of Webb’s trailer in May 2008. On

cross-examination, Webb testified that in January and February of 2008, he was at

work “maybe sixty hours a week” instead of at the trailer, so he could not testify as

to appellant’s whereabouts during that time.

After the jury found him guilty, appellant timely filed a motion for a new

trial, contending that he had received ineffective assistance of counsel at trial.

Specifically, appellant asserted that his trial counsel (1) “did not adequately

8

prepare and investigate [the] case and mitigation issues”; (2) “failed to present an

alibi defense although the alibi witness . . . was ready and willing to testify”; (3)

“failed to file a Motion to Quash” the warrant to arrest appellant; (4) “failed to

request an instructed verdict based on insufficiency of the evidence”; (5) “failed to

object to testimony of a lay witness”; and (6) “failed to object and request a

continuance after the State violated the Court’s Discovery Order.”

At the hearing on appellant’s motion, Michael Renfro, appellant’s trial

counsel, testified that he had met with appellant at least six times before trial and

spoken with him “enough time[s] where [Renfro] felt like [he] was adequately

prepared for trial.” Appellant had provided Renfro “with what he felt [were]

reasons for [the complainant] to lie,” namely, that she had filed for bankruptcy and

had an insurance claim to fix the apartment denied. However, Renfro did not

believe that the complainant’s bankruptcy proceedings were “important or

relevant” to the case. Appellant then showed Renfro documents that indicated that

the complainant had filed a bankruptcy proceeding in 2006, which was dismissed

in August 2008.

Renfro further testified that he received from the State a notice of

impeachable offenses committed by HPD Detective M. Hamby, who had provided

an affidavit in support of the warrant to arrest appellant. Renfro explained that he

did not believe that Hamby would be called as a witness. And Renfro thought that

9

the allegations against Hamby, which involved “something about a tear gas bomb,”

had no relevance in regards to Hamby’s credibility. Renfro also spoke with Karen

Williams, a witness at trial who testified that appellant had an “excellent”

reputation for “truth and veracity.” Renfro explained that he believed Williams to

be a “character witness as to [appellant’s] truth and veracity.” Although Williams

could testify that appellant delivered flowers for her from February 11, 2008 to

February 14, 2008, Renfro did not believe that “she would have made an alibi

witness.” He reasoned that because the damage to the complainant’s apartment

likely “occurred over some period of time,” Williams simply could not provide an

alibi for appellant. Renfro maintained that appellant’s defense was always that he

“was not living at that address on the date in question,” not that his flower delivery

business made it impossible to commit the offense. He also noted that appellant

had never asserted that Williams could provide him an alibi. After the hearing, the

trial court denied appellant’s motion for new trial.

Sufficiency of the Evidence

In his first issue, appellant argues that the evidence is legally insufficient to

support his conviction because the State did not prove that appellant caused

damage to the complainant’s apartment in “the pecuniary amount charged in the

indictment.”

10

We review the legal sufficiency of the evidence by considering all of the

evidence “in the light most favorable to the prosecution” to determine whether any

“rational trier of fact could have found the essential elements of the offense beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S. Ct. 2781,

2788–89 (1979). Our role is that of a due process safeguard, ensuring only the

rationality of the trier of fact’s finding of the essential elements of the offense

beyond a reasonable doubt. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim.

App. 1988). We give deference to the responsibility of the fact finder to fairly

resolve conflicts in testimony, to weigh evidence, and to draw reasonable

inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007). However, our duty requires us to “ensure that the evidence presented

actually supports a conclusion that the defendant committed” the criminal offense

of which he is accused. Id.

A person commits the offense of criminal mischief if, without the effective

consent of the owner, he intentionally or knowingly damages or destroys the

tangible property of the owner. See TEX. PENAL CODE ANN. § 28.03(a)(1) (West

2011). The offense is a state jail felony if the amount of pecuniary loss is $1,500

or more but less than $20,000. Id. § 28.03 (4)(A). If the property is destroyed, the

amount of pecuniary loss is the fair market value of the property at the time and

place of the destruction or the cost of replacing the property within a reasonable

11

time after the destruction. Id. § 28.06(a) (West 2011). If the property is damaged,

the amount of pecuniary loss is the cost of repairing or restoring the damaged

property within a reasonable time after the damage occurred. Id. § 28.06(b).

The value of pecuniary loss is a crucial element of the offense because it

forms the basis of the punishment assessed. Elomary v. State, 796 S.W.2d 191,

192–93 (Tex. Crim. App. 1990); Barnes v. State, 248 S.W.3d 217, 220 (Tex.

App.—Houston [1st Dist.] 2007, pet. struck). The State must establish the fair

market value of the cost of repairing or restoring the damaged property. See

Elomary, 796 S.W.2d at 194. However, expert testimony is not required to prove

the cost of repairing or restoring damaged property. See Holz v. State, 320 S.W.3d

344, 350 (Tex. Crim. App. 2010).

Appellant first argues that the evidence is legally insufficient to support the

jury’s finding that appellant caused the damage to the complainant’s apartment

because the complainant “never saw [appellant] damage the apartment,” but only

“speculated that he must have done it.”

At trial, the complainant testified that when she informed appellant that she

was going to raise his rent, appellant “wasn’t very happy” and seemed “upset.” On

February 11, 2008, she went to ask appellant if he was going to remain at the

apartment with the increased rent, and he, after he “cracked” the door open,

“brief[ly]” informed her that he would. Later that evening, however, the

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complainant noticed that appellant’s car was missing. And, when his car was still

missing the next morning, she requested that Elias inspect the apartment to see if

appellant had moved out. The apartment was fitted with a deadbolt lock, and only

appellant and Elias had keys for it. When the complainant tried to access the

apartment on the morning of February 12, the deadbolt was locked. Elias testified

that when he arrived to investigate the apartment, there were no signs of a “break-

in” and the front door and windows were “secure.” Officer McDonald similarly

testified that when he arrived later in the day, there appeared to be “no forced entry

at all” into the apartment.

The complainant further testified that after she had discovered the damage

done to the apartment, she attempted to call appellant on his cellular telephone for

“a couple of days,” but appellant did not answer her calls. Appellant also did not

return to the apartment to collect the rest of his clothing or his bed, and he did not

have his mail forwarded to a different address. Nor did he attempt to recover his

deposit.

Appellant testified that he moved out of the apartment on January 18, 2008,

did not return to the apartment, and did not cause the damage to the apartment.

However, the jury, as fact-finder, was entitled to resolve conflicts in testimony in

favor of the complainant. See Williams, 235 S.W.3d at 750. And, although

appellant asserts that there was no direct evidence that he caused the damage to the

13

apartment, the jury could have reasonably inferred, from the circumstantial

evidence outlined above that, he did. See Earls v. State, 707 S.W.2d 82, 85 (Tex.

Crim. App. 1986) (“Evidence as to the identity of the perpetrator of an offense can

be proved by direct or circumstantial evidence.”); Holland v. State, No. 13-06-532-

CR, 2008 WL 4723095, at *7 (Tex. App.—Corpus Christi Apr. 17, 2008, no pet.)

(holding circumstantial evidence legally sufficient to support defendant’s

conviction for criminal mischief).

Appellant next argues that the evidence is legally insufficient to establish

that the amount of pecuniary loss to the apartment exceeded $1,500 because “the

record is wholly silent on . . . exactly what amount of money was the financial loss

caused by [appellant’s] alleged smearing feces on some unnamed property of [the

complainant’s].”

Here, the indictment alleged that appellant:

[O]n or about February 11, 2008, did then and there unlawfully,

intentionally, and knowingly DAMAGE tangible property, namely

AN APARTMENT, ONE TOILET, ONE CARPET, AND A

FIXTURE, owned by [the complainant], . . . and the value of the

pecuniary loss so inflicted was over one thousand five hundred dollars

and under twenty thousand dollars, by FLOODING THE

COMPLAINANT’S PROPERTY . . . CLOGGING THE

COMPLAINANT’S TOILET WITH TOWELS . . . [and]

SMEARING FECES ON THE COMPLAINANT’S PROPERTY.

At the charge conference, the State abandoned the allegation that appellant caused

the damage by flooding the apartment. Thus, the State was required to prove that

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appellant caused damage in a pecuniary amount of at least $1,500 by “clogging the

complainant’s toilet” and/or “smearing feces on the complainant’s property.”

Appellant asserts that the complainant “did not testify what areas were

specifically smeared with feces.” However, the complainant testified that feces

had been “thrown or rubbed on the walls” in both the bathroom and the kitchen.

And it was “all over the ceiling” and “all over the floor of the bathroom shower.”

She also testified that the words, “You suck,” were written in feces on the closet

door and “[t]here were towels and objects stuffed into the commode.” Elias

testified that the carpet was stained with a “[c]ombination of urine and feces” and

the refrigerator was “smeared with feces.” Although Officer McDonald testified to

only seeing feces on the bathroom wall, he further testified that he “couldn’t spend

a lot of time in the house.” He noted that there possibly could have been feces in

other rooms of the apartment, but “the conditions were so deplorable and the smell

was so bad, it would have taken a lot more time to go through to see that.” And the

jury was presented with photographic evidence of the damage to the apartment,

which includes photographs of stains to the wall of the bathroom, kitchen, and

carpet, and the words, “You suck,” written in the closet.

The complainant testified that it cost her “over $10,000” to repair the

damage, including Elias’s work in replacing the carpeting, cleaning the walls, and

fixing and replacing the appliances and fixtures. The State also introduced into

15

evidence several receipts, including a receipt for $900 to clean the apartment and a

receipt for $675 to replace the carpeting. Elias, who identified himself as a

“handyman” and carpenter, testified that he arranged to replace the carpet, clean

the walls, and replace the toilet. The State also introduced into evidence an invoice

that Elias had prepared documenting the cost of the labor and materials used in

repairing the damage to the apartment. Elias testified that he had to “cut out” the

sheetrock on some walls because “some of [the damage] couldn’t be washed off or

cleaned off”; his invoice showed a cost of $1,600 for “sheetrock – prep” including

“cutting out damaged rock and contaminated rock.” The invoice also included a

cost of $825 for plumbing repairs, including “commode removal and installation,

because of vandalism,” and $1,050 for “painting, priming, and staining” the

damaged sheetrock.

Viewing the evidence in the light most favorable to the jury’s finding, the

jury could have reasonably found that the complainant had to clean the entire

apartment at a cost of $900, replace the carpeting at a cost of $675, “cut out” the

sheetrock at a cost of $1,600, and repaint the damaged sheetrock at a cost of

$1,050. See Barnes v. State, 248 S.W.3d 217, 221 (Tex. App.—Houston [14th

Dist.] 2007, no pet.) (“[A] complainant’s testimony may be sufficient, without

additional evidence, to support the pecuniary loss, or value, element of a

conviction for criminal mischief.”); Kinkade v. State, 787 S.W.2d 507, 508–10

16

(Tex. App.—Houston [1st Dist.] 1990, no pet.) (holding that, in criminal mischief

conviction, expert testimony or reasonableness of cost of repairs not required

because property owner is competent to testify as to costs to repair damage).

Accordingly, we hold that the evidence is legally sufficient to support appellant’s

conviction.

We overrule appellant’s first issue.

Ineffective Assistance of Counsel

In his second issue, appellant argues that he received ineffective assistance

of counsel at trial because his counsel failed to (1) “adequately investigate and

prepare” for trial; (2) “prepare and present alibi” evidence, specifically, the

testimony of Williams; (3) file a motion to suppress his arrest warrant; (4) request

an instructed verdict based on legally insufficient evidence; and (5) “introduce

evidence of [the complainant’s] grave financial situation to show motive to lie.”

Appellant presented his ineffective assistance claim to the trial court in a

motion for new trial and received a hearing on his motion. We therefore analyze

his second issue as a challenge to the denial of the motion for new trial. Biagas v.

State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d). We

view the evidence in the light most favorable to the trial court’s ruling and uphold

the trial court’s ruling if it was within the zone of reasonable disagreement. Wead

v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute our

17

judgment for that of the trial court, but rather we decide whether the trial court’s

decision was arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109, 112 (Tex.

Crim. App. 2007); Biagas, 177 S.W.3d at 170. A trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could

support the trial court’s ruling. Webb, 232 S.W.3d at 112.

In order to prove an ineffective assistance of counsel claim, appellant must

show that his trial counsel’s performance fell below an objective standard of

reasonableness and, but for counsel’s unprofessional error, there is a reasonable

probability that the result of the proceeding would have been different. Strickland

v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984);

Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). A reasonable

probability is a “probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s

performance, we look to the totality of the representation to determine the

effectiveness of counsel, indulging a strong presumption that his performance falls

within the wide range of reasonable professional assistance or trial strategy.

Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). A failure to make a showing

under either prong defeats a claim of ineffective assistance. Rylander v. State, 101

S.W.3d 107, 110 (Tex. Crim. App. 2003).

18

Appellant first argues that his trial counsel failed to “adequately investigate

and prepare” for trial and “prepare and present alibi” evidence because Williams’s

testimony “would have been able to place [a]ppellant away from home” for long

enough that committing the offense “would be impossible time-wise.”

At the hearing on the motion for new trial, Renfro testified that he met with

appellant on “at least half a dozen” occasions before trial and he spoke with

appellant for “enough time where [he] felt like [he] was adequately prepared for

trial.” Renfro requested that appellant provide him with “names, addresses, and

phone numbers” of potential witnesses. Appellant testified that he gave Renfro the

names and addresses of three witnesses: Webb, Williams, and appellant’s father.

Webb and Williams both testified at trial, and appellant fails to articulate what

evidence Renfro failed to uncover in his investigation. See Joseph v. State, 367

S.W.3d 741, 744 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (“The

reasonableness of an attorney’s investigation may turn on information supplied to

him by a defendant.”) (citing Bryant v. Scott, 28 F.3d 1411, 1414 (5th Cir. 1994)).

In regard to Williams’s testimony, Renfro admitted that he received a letter

from her stating, in part,

This is to certify that I am the owner of Rain Forest Flowers. Danny

Fisher works for me on holidays on a contract basis. Consequently,

he worked for me on February 11, 12, 13 & 14, 2008 delivering

flowers. This is a florist[’s] busiest time of year and I have been

depending on [appellant] for the last five years to assist me and my

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drivers in getting all our Valentines Day deliveries for our clients

delivered on time.

[Appellant] is known to me and all my contract employees as a

professional, courteous delivery driver. Additionally, he is . . . kind,

caring and concerned regarding others. I witnessed at one time, while

working for me, [my] lead designer dropped a knife on her foot and

hit a vein. [Appellant], due to his medic training while in the military,

knew exactly how to handle the situation and did it in a timely manner

with a great deal of concern.

At the hearing, Williams testified that appellant was also working at her flower

shop on February 9 and 10 for “eight to ten hours” per day because it was the

weekend before Valentine’s Day.

Renfro explained that appellant presented Williams as “a good character

witness for us to establish the fact that he is a person of truth and veracity in the

community he resides.” Appellant insisted to Renfro that his defense was that he

“was not living at that address on the date in question,” not that his flower delivery

business made it impossible to commit the offense. Renfro also noted that the

damage done to the apartment had to have occurred, at least partially, before the

dates mentioned in Williams’s letter. Thus, Renfro wanted to focus the jury’s

attention on appellant’s primary defense that he had moved out of the

complainant’s apartment before the damage was done and had left his key in the

apartment. Thus, Renfro could have reasonably considered Williams as only a

character witness and not an alibi witness. See Shanklin v. State, 190 S.W.3d 154,

164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d) (“[T]he decision whether

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to present witnesses is largely a matter of trial strategy.”); Rodd v. State, 886

S.W.2d 381, 384 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

In regard to Renfro’s not filing a motion to suppress appellant’s arrest

warrant, appellant asserts that the State gave Renfro notice that Detective M.

Hamby, the affiant on the affidavit supporting probable cause, was “on suspension

for an investigation relating to a tear gas bomb at the rodeo.” Appellant also notes

“contradictions or errors” in Hamby’s affidavit supporting probable cause, such as

identifying the complainant as Deborah “Carrier” and reporting that the apartment

was “flooded.” However, appellant fails to identify any evidence recovered

pursuant to the execution of the arrest warrant. See Blondett v. State, 921 S.W.2d

469, 473 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (holding that trial

court did not err in denying motion to suppress arrest warrant because no evidence

was obtained from the arrest).

In regard to Renfro’s alleged failure “to request [an] instructed verdict based

on insufficient evidence,” appellant asserts that there “was no evidence at trial how

much the damage was to repair or replace any of the items specifically due to

clogging the toilet or smearing feces.” However, the failure to move for an

instructed verdict cannot provide the basis for a claim of ineffective assistance of

counsel if the State produced more than a scintilla of evidence supporting a guilty

verdict. Gill v. State, 111 S.W.3d 211, 217 (Tex. App.—Texarkana 2003, no pet.).

21

Having already held that the evidence is legally sufficient to support appellant’s

conviction, we conclude that appellant has not shown that Renfro was deficient in

not moving for an instructed verdict. See Wyatt v. State, No. 14-10-00872-CR,

2011 WL 2120118, at *9 (Tex. App.—Houston [14th Dist.] May 24, 2011, pet.

ref’d) (mem. op.) (holding that, because legally sufficient evidence supported

defendant’s conviction, defendant did not show that the trial court would have

erred in denying any motion for instructed verdict).

In regard to Renfro’s alleged failure to “introduce evidence of [the

complainant’s] grave financial situation and motive to lie,” appellant asserts that

Renfro did not produce evidence that the complainant “tried to get insurance

money for the damage, but was denied” and she “was in a pending personal

bankruptcy case at the time of this event.” However, the jury did hear testimony

relating to the complainant’s denied insurance claim for the damage done to her

apartment. The complainant testified that although she “maintained insurance on

the entire property,” her insurance claim was denied. She explained that the

insurance company “did not assume any liability” for the damage because the

complainant “knew who had vandalized” the apartment and had already “pressed

the charges.” She reiterated this testimony on cross-examination as well. At the

hearing on the motion for new trial, appellant admitted that the jury heard that

appellant’s insurance claim was denied. And, in closing argument, Renfro again

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argued that the complainant accused appellant of causing the damage “because an

insurance claim was denied.”

Regarding the bankruptcy evidence, appellant, at the hearing on his motion

for new trial, testified that he provided Renfro “bankruptcy records and bankruptcy

information about [the complainant].” He believed that the trial strategy should

have been to show “why [the complainant] needed the money, which would be the

bankruptcy and the insurance claim.” Appellant also presented Renfro with

documents “showing that the complainant in this case [had] filed for bankruptcy”

in 2006 and the proceeding was dismissed in August 2008.2 Renfro testified that

he did not believe the bankruptcy proceeding “to be important or relevant to the

facts of his case.” Given the strong presumption that trial counsel’s performance

was reasonable, the vague information regarding the bankruptcy proceedings

provided to Renfro, and the fact that Renfro did introduce evidence regarding the

complainant’s denied insurance claim, we cannot conclude that his decision not to

present evidence regarding the complainant’s bankruptcy proceedings was outside

the realm of reasonable trial strategy. See Thompson, 9 S.W.3d at 813; see also

Martin v. State, 265 S.W.3d 435, 441 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (holding that failure to investigate does not constitute ineffective assistance of

counsel unless “only viable defense available to the accused is not advanced”).

2

Although it appears that the documents were admitted into the evidence at the

hearing, they are not in the appellate record.

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We also note that appellant has failed to demonstrate that the bankruptcy evidence

would have been admissible. Cf. United States v. Bensimon, 172 F.3d 1121, 1128–

29 (9th Cir. 1999) (“[A] petition for bankruptcy is not in and of itself evidence of a

specific and immediate financial need such that it would be relevant to showing

[defendant’s] motive.”); Smith v. State, No. 14-94-00452-CR, 1996 WL 224985, at

*5 (Tex. App.—Houston [14th Dist.] May 2, 1996, pet. ref’d) (not designated for

publication) (“Trial counsel cannot be ineffective for failing to offer inadmissible

evidence.”).

Accordingly, we hold that the trial court did not abuse its discretion in

denying appellant’s motion for new trial on the ground that appellant received

ineffective assistance of counsel at trial.

We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).

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