Jorge G. Guerrero v. State

Opinion issued

May 3, 2012

In

The

Court of

Appeals

For

The

First District

of Texas

————————————

NO. 01-11-00091-CR

———————————

JORGE GUERRERO , Appellant

V.

THE

STATE OF TEXAS , Appellee

On Appeal from the 228th

District Court

Harris County, Texas

Trial Court Case No. 1235066

MEMORANDUM

OPINION

A

jury found appellant, Jorge Guerrero, guilty of the third-degree felony offense

of theft of property valued at $20,000 or more, but less than $100,000. [1] The jury assessed appellant’s punishment at

three years in prison. In one issue, appellant

contends that he received ineffective assistance of counsel at trial.

We

affirm.

Background Summary

In

late 2007, R. Swain was provided a 2008 Ford F250 truck by his employer. The truck cost $54,000. On September 21, 2009, the truck was stolen

from Swain’s place of employment. He

reported the theft to police.

Eight

days later, neighbors of a house on Des Jardines

Street called the police to report suspicious loud noises occurring both night

and day at the house. Deputy Constable F.

Gallegos with Precinct Six was dispatched to investigate. When he arrived at the house, Deputy Gallegos

heard the sound of electrical tools and cutting coming from the back end of the

driveway. The officer walked to the back

of the house and saw car parts all over the backyard. Deputy Gallegos also saw two men in the

backyard. One man was holding the frame

of a vehicle and the other man was cutting it.

One of the men was appellant. Deputy

Gallegos located the vehicle identification number (VIN) on the frame being cut

and checked the number in his computer system.

The officer learned that the cut frame was from Swain’s 2008 truck,

which had been reported as stolen.

Deputy

Gallegos detained appellant and two other men at the scene. The deputy contacted the auto theft division

of the Houston Police Department to further investigate.

Sergeant

M. Hewitt of the Houston Police Department and several other HPD officers went

to the scene to investigate. The

officers located a 2005 Ford King Ranch truck parked in front of the

house. Its driver’s door was open. The officers saw exposed wires dangling down

from the dashboard to the floor of the truck.

The officers determined that the license plates on the 2005 truck were

fictitious. Appellant claimed to be the

owner of the 2005 truck.

In

the garage and in the back of the house, the officers located many different

truck parts. The officers also found Swain’s

2008 truck being disassembled in the backyard.

No one at the scene claimed ownership of Swain’s truck. They also determined that the 2005 truck in

front of the house had been fitted with parts from Swain’s 2008 truck. The officers did not find or receive any keys

to either truck at the scene.

The

police impounded the 2005 truck for further investigation. Officer C. Gerlich ,

with the HPD auto theft division, was assigned to the case. He learned that the 2005 truck had been

purchased at auction as a salvaged vehicle by an auto dealer, who had purchased

the truck for appellant.

Appellant

was indicted for the theft of Swain’s truck.

The indictment provided in relevant part, as follows:

JORGE G. GUERRERO, . . . on or about SEPTEMBER 29, 2009, .

. . unlawfully, appropriate[d] by acquiring and exercising control over

property, namely, A MOTOR VEHICLE, owned by [R.] SWAIN, . . .

of the value of over twenty thousand dollars and under one hundred thousand

dollars, with the intent to deprive [Swain] of the property.

The case was tried to a jury. The

State presented the testimony of Swain and investigating police officers.

Appellant

testified during the guilt-innocence phase of trial. He stated that, in the past, he had purchased

salvaged vehicles, repaired them, and sold them for a profit. Appellant testified that in July 2009, he

bought a 2005 Ford F350 truck from Hector Lopez, a car dealer, who had

purchased the truck at auction. [2] The truck was missing the rear tail light,

the front clip, the interior door panels and all of the seats and center

consoles.

Appellant

testified that in September 2009 an acquaintance, J. Regalado ,

contacted him about purchasing a salvaged truck. Regalado knew that appellant

had recently purchased 2005 truck needing repair. Regalado offered to

sell the salvaged truck to appellant to use for parts.

Guerrero

agreed to pay Regalado $8,000 for the salvaged truck. Appellant testified that he gave Regalado a $2,000 down payment. In return, Regalado

gave appellant the keys to the truck and left the truck with appellant. The truck that appellant claimed to have

purchased from Regalado was Swain’s 2008 truck. Appellant acknowledged that he never received

the title to the truck. He stated that he

anticipated receiving title from Regalado once he

paid the $6,000 balance. Appellant

testified that he had no reason to believe that the truck was stolen.

Appellant

stated that he intended to use parts from the 2008 truck to repair the 2005

truck he had recently purchased from Lopez.

Appellant testified that he believed the salvage title for the 2008 truck

legally precluded him from doing anything with the truck except selling it for

parts. He planned to use some the

truck’s parts to repair his 2005 truck and then sell other parts from the 2008 truck

to pay off the $6,000 he owed Regalado .

At trial,

appellant produced a copy of the bill of sale and a copy of Regalado ’s driver’s license. Appellant acknowledged that the bill of sale

was dated October 27, 2009, a month after he claimed to have purchased the 2008

truck. Appellant stated that he did not

ask for a bill of sale at the time he purchased the truck “because [ Regalado ] left the truck there at my house where it was

parked.”

Appellant explained

that he obtained the bill of sale after he got out of jail in October. At that time, appellant searched for Regalado . Once he

found him, appellant obtained the bill of sale from Regalado

to show that the purchase of the 2008 truck was legitimate.

After

appellant’s testimony, the State called Officer Gerlich

and Deputy Gallegos as rebuttal witnesses. Appellant had testified that he gave the keys

to the 2005 truck and the 2008 truck to Deputy Gallegos. However, the deputy testified that appellant

had not given him any keys. Appellant

also testified that he had not noticed any damage to the 2008 truck, including

the locking mechanisms on the doors.

Officer Gerlich testified that before trial,

he had examined the doors and found that the locking mechanism on the doors had

been damaged by a prying instrument.

During his closing

statement, defense counsel argued that the State’s evidence did not show that

appellant had reason to know the truck was stolen. Defense counsel asserted that it was

reasonable to believe appellant’s story regarding how he acquired Swain’s

truck. Appellant’s defense was that he

believed that the truck was a salvaged vehicle that Regalado

had purchased at auction and then sold to appellant.

The State

argued that appellant’s story regarding how he acquired the truck was not

plausible. The State asserted in its

closing statement that appellant knew that the truck was stolen.

Among its

instructions, the jury charge contained the following: “Our law provides that a

person commits the offense of theft if he unlawfully appropriates property with

intent to deprive the owner of property.”

The charge informed the jury, “A person acts intentionally, or with intent,

with respect to the nature of his conduct or to a result of his conduct when it

is his conscious objective or desire to engage in the conduct or cause the

result.”

The application

paragraph instructed the jury as follows:

Now, if you find from the evidence beyond a reasonable

doubt that on or about the 29th day of September, 2009, in Harris County,

Texas, the defendant, Jorge G. Guerrero, did then and there unlawfully,

appropriate by acquiring or exercising control over property, namely, a motor vehicle,

owned by [R.] Swain, of the value of over twenty thousand

dollars and under one hundred thousand dollars, with the intent to deprive [R.]

Swain of the property, then you will find the defendant guilty of theft of

property of the value of over twenty thousand dollars and under one hundred

thousand dollars, as charged in the indictment.

The

jury found appellant guilty as charged in the indictment and assessed his

punishment at three years in prison. Appellant

did not file a motion for new trial. This

appeal followed.

Appellant raises one issue

on appeal. He contends that he received

ineffective assistance of counsel at trial because his defense attorney did not

request the trial court to include an instruction in the charge on the defense

of mistake of fact; thus, he contends that the jury did not consider that

defense.

Ineffective Assistance of

Counsel

To prevail on a claim of

ineffective assistance of counsel, an appellant must show the following: (1)

counsel’s performance fell below an objective standard of reasonableness and

(2) a reasonable probability exists that, but for counsel’s errors, the result

would have been different. See 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, 101 (Tex. Crim. App. 2005). The first Strickland

component requires appellant to overcome the strong presumption that counsel’s

performance falls within a wide range of reasonable professional

assistance. See Andrews , 159 S.W.3d at 101 .

The second Strickland component requires appellant to show that there is a

reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. See id . at 102.

A “reasonable probability” is a

probability sufficient to undermine confidence in the outcome. See id .

Appellant has the burden to

establish both components by a preponderance of the evidence. See

Jackson v. State , 973 S.W.2d 954, 956 (Tex. Crim. App.

1998). A failure to show either (1) deficient

performance or (2) sufficient prejudice defeats the ineffectiveness claim. See

Williams v. State , 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Carballo v. State , 303 S.W.3d 742, 750 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d ). If an appellant fails to prove the second

“prejudice” component, we need not address whether counsel’s performance was

deficient. Carballo , 303 S.W.3d at 750 – 51 (citing Boyd v. State , 811 S.W.2d 105, 109 (Tex.

Crim. App. 1991)).

Here, appellant has not satisfied

the second Strickland component. More precisely, appellant has not shown that

there is a reasonable probability that the result of the guilt-innocence

proceeding would have been different had the jury been instructed on the

defense of mistake of fact.

The defense

of mistake of fact is codified in Section 8.02(a) of the Penal Code, which

provides that it is a defense to prosecution if the actor, through a mistake,

formed a reasonable belief about a matter of fact that negates the kind of

culpability required for commission of the offense. See Tex. Penal Code Ann. § 8.02(a) (Vernon 2011). Specifically, appellant contends that he was

entitled to an instruction regarding his mistaken belief that his purchase of

the truck was legitimate because he believed that Regalado

possessed legal title to the vehicle.

The

jury was instructed that, to find appellant guilty of theft, it must find that

he possessed the truck “with intent” to deprive the owner, Swain, of the

truck. The charge defined what is

required to show that a defendant acted “with intent” or “intentionally.”

As his

sole defense, appellant claimed he had purchased the truck from Regaldo with no knowledge that it was stolen. Appellant expressly testified that he did not

know that the truck was stolen. He claimed to have purchased the vehicle under

the impression that Regalado had legal title

and would pass title to him .

Appellant

argues that, due to his counsel’s failure to request a mistake of fact instruction,

the jury was left with no basis to find a mistake of fact negating the culpable

mental state required for the offense. However, the charge instructed the jury to find

appellant guilty only if it found beyond a reasonable doubt that appellant possessed

the vehicle with the intent to commit theft; that is, with the intent to

deprive Swain of the property. See Tex.

Penal Code Ann . §

31.03(a) (Vernon Supp. 2011) .

Given

the charge, the jury necessarily had to determine whether it believed appellant’s

testimony about his mistaken belief to reach a verdict. When it found him guilty of theft, the jury

chose not to believe appellant’s assertion that he had no knowledge that the

truck was stolen and implicitly rejected his claim that he purchased the truck under

the circumstances he described at trial.

The jury had to consider his mistake of fact defense before finding him

guilty of the offense of theft. Had it believed

appellant’s testimony regarding the circumstance of his claimed purchase of the

truck, the jury could not have found — as it necessarily did — that appellant possessed the truck with the intent

to deprive the owner, Swain, of the property.

The jury could not have believed appellant’s testimony and also have

found him guilty under the charge as given.

In short, counsel’s failure to request a mistake of fact instruction did

not allow the jury to convict appellant without considering his mistake of fact

defense. There is not a reasonable

probability that including a mistake of fact instruction in the charge would

have changed the outcome in this case. See Bruno v. State , 845 S.W.2d 910, 913

(Tex. Crim. App. 1993) (stating that jury would have been required to

disbelieve appellant’s story before it could find sufficient evidence to

convict, thus the instruction need not have been given); Sands v. State , 64 S.W.3d 488, 496 (Tex. App. — Texarkana 2001, no pet.) (holding that,

although mistake of fact instruction should have been given, failure to submit

requested instruction was not harmful because jury was “squarely” presented

with defense of mistake); Traylor v.

State , 43 S.W.3d 725 , 730 – 31 (Tex. App. — Beaumont 2001, no pet.) (concluding that mistake of fact

instruction was not required because, had the jury believed defendant’s story,

it could not have convicted him under charge given); see also Hopson v. State , No. 14–08–00735–CR, 2009 WL 1124389 , at

*3–5 (Tex. App. — Houston

[14th Dist.] Apr. 28, 2009, no pet.) ( mem . op., not designated for publication) (holding mistake

of fact instruction not necessary in burglary case because “to convict [appellant]

of that offense, the State was already required to prove beyond a reasonable

doubt that appellant entered the house, without the effective consent of the

owners, with the intent to commit theft ”);

Turner v. State , No. 04–03–00436–CR, 2004

WL 1881748 , at *7 (Tex. App.—San Antonio Aug. 25, 2004, no pet.) ( mem . op., not designated for publication) ( rejecting claim that counsel was ineffective because he

failed to request mistake of fact instruction because “the jury had to consider

her defense of consent before finding her guilty, and there is no indication

that including a mistake of fact instruction would have changed the outcome”;

thus, appellant did not show prejudice component of Strickland ).

Appellant

contends that Green v. State , 899

S.W.2d 245 (Tex. App. — San

Antonio 1995, no pet.) supports his ineffective assistance of counsel claim. There, the court of appeals reversed the

defendant’s conviction based on ineffective assistance of counsel based, in

part, on counsel’s failure to request a mistake of fact instruction. Id . at 249.

Although

the entirety of the trial court’s charge in Green

is not set forth in the opinion, it is apparent from the opinion that the

charge did not require the jury to consider the defendant’s mistake of fact

defense. See id . at 248 – 49. Thus, the jury was allowed to convict the

defendant without deciding the merits of that defense. See id.

at 249 . In

contrast, the jury in this case was necessarily required to consider the merits

of appellant’s defense before finding him guilty, even without a mistake of

fact instruction; therefore, the analysis in Green does not apply.

We also recognize that, in Okonkwo v. State , 357 S.W.3d 815, 821 (Tex.

App.—Houston [14th Dist.] 2011, pet. granted), the Fourteenth Court of Appeals

recently reversed a judgment of conviction on the ground that appellant’s trial

attorney had rendered ineffective assistance of counsel by failing to request a

mistake of fact instruction. The court

in Okonkwo concluded, inter alia, that, given the

facts and the offense involved in that case, the charge did not require the

jury to consider the appellant’s mistake of fact defense. See

id. As discussed, the jury charge in

this case would have necessarily considered appellant’s mistake of fact defense

under the charge as given. For this

reason, Okonkwo is distinguishable from this case.

We conclude

appellant has not shown that there is a reasonable probability that, but for

his counsel’s alleged deficient performance, the outcome of the proceeding

would have been different. See Andrews , 159

S.W.3d at 102 . The failure to

make a showing under either of the required prongs of Strickland defeats a claim for ineffective assistance of counsel. Williams ,

301 S.W.3d at 687 . We hold that appellant has not met his burden

to show ineffective assistance of counsel by a preponderance of the evidence. See

Jackson , 973 S.W.2d at 956 .

We overrule

appellant’s sole issue.

Conclusion

We affirm the judgment of the trial

court.

Laura

Carter Higley

Justice

Panel consists of Chief

Justice Radack and Justices Higley and Brown.

Do not publish. Tex. R. App. P. 47.2( b).

[1]

See Tex. Penal Code Ann . § 31.03(e )( 5) (Vernon Supp.

2011). We cite to the current version of

the Penal Code because the 2011 amendments to section 31.03 do not affect the

outcome of this appeal .

[2] Lopez testified at trial. He confirmed that he had purchased the 2005

truck for appellant at auction.