                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-09-048-CR


TED NEAL BISHOP                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                    STATE

                                   ------------

           FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

                               I. INTRODUCTION

     A jury found Appellant Ted Neal Bishop guilty of the offense of graffiti

causing pecuniary loss of between $1,500 and $20,000, and the trial court

sentenced him to 365 days’ imprisonment and a $500 fine. The trial court

suspended imposition of the jail portion of the sentence and placed Bishop on



     1
          See Tex. R. App. P. 47.4.
two years’ community supervision.       In two issues, Bishop argues that the

evidence was legally and factually insufficient to support his conviction and that

his defense counsel was ineffective. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Janice Cranford owns an antique store in downtown Electra.              She

purchased the lot and building where she operates the antique store from

Shirley Craighead in 2006. Bishop owns the vacant lot immediately to the

north of Cranford’s lot. When Cranford purchased her property in 2006, she

made extensive repairs to the building, including resurfacing the exterior of the

north wall—the wall that faces Bishop’s property. She requested and received

permission from Bishop to go onto his property to resurface that wall.

      On November 2, 2007, Bishop went to the Electra Police Department to

complain about people removing his no trespassing signs from his vacant lot.

He wanted Electra’s Chief of Police Johnny Morris to find out who was

removing the signs. Bishop told Chief Morris that “he wanted that pervert to

keep off of his property” and that he was “going to go get a can of black spray

paint and spray something” on the north wall of Cranford’s antique store

because “it’s his wall.” Chief Morris advised against spray painting the wall

because it belonged to Cranford. Bishop left the police department and drove

towards his home. Later that evening, Chief Morris saw Bishop driving in the

                                        2
general direction of his vacant lot and Cranford’s property. Chief Morris drove

to Cranford’s and Bishop’s properties and saw that the north wall of Cranford’s

building—the wall facing Bishop’s vacant lot—had been spray painted with the

words “ALERT PERVERT AREA,” “Do Not Enter,” and “Stay out.” Cranford

received a bid for $2,457 from plasterer Bryan Davidson to repair the wall to

cover up the spray paint.

                         III. S UFFICIENCY OF THE E VIDENCE

      In his first issue, Bishop argues that the evidence is legally and factually

insufficient to sustain his conviction for the offense of graffiti because the State

failed to prove that Cranford owned the wall that he had spray painted. He

argues that the evidence demonstrates that two walls separate his property

from Cranford’s property and that he owns one of them—the one that he had

spray painted.

                             A. Standards of Review

                              1. Legal Sufficiency

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.             Jackson v.




                                         3
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      This standard gives full play to the responsibility of the trier of fact to

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

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the

sole judge of the weight and credibility of the evidence. See Tex. Code Crim.

Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568

(Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when

performing a legal sufficiency review, we may not re-evaluate the weight and

credibility of the evidence and substitute our judgment for that of the factfinder.

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,

529 U.S. 1131 (2000).        Instead, we “determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all

the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume

that the factfinder resolved any conflicting inferences in favor of the

prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778.




                                        4
                            2. Factual Sufficiency

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414–15, 417. To reverse under the second ground, we must determine, with

some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the verdict. Watson,

204 S.W.3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d

at 246. Evidence is always factually sufficient when it preponderates in favor




                                       5
of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d

at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude

that a conviction is clearly wrong or manifestly unjust simply because we would

have decided differently than the jury or because we disagree with the jury’s

resolution of a conflict in the evidence. Id. We may not simply substitute our

judgment for the factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958

S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals

that a different result is appropriate, we must defer to the jury’s determination

of the weight to be given contradictory testimonial evidence because resolution

of the conflict “often turns on an evaluation of credibility and demeanor, and

those jurors were in attendance when the testimony was delivered.” Johnson,

23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right

to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App.

2008). An opinion addressing factual sufficiency must include a discussion of

the most important and relevant evidence that supports the appellant’s




                                        6
complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App.

2003).

                    B. Elements of the Offense of Graffiti

      A person commits an offense if he (1) intentionally or knowingly makes

markings (2) on the tangible property of another person (3) without the

effective consent of the owner (4) with paint, an indelible marker, or an etching

or engraving device. Tex. Penal Code Ann. § 28.08(a) (Vernon Supp. 2009).

If the amount of pecuniary loss is $1,500 or more but less than $20,000, the

offense is a state jail felony. Id. § 28.08(b)(3).

      The penal code defines an “owner” as a person who “has title to the

property, possession of the property, whether lawful or not, or a greater right

to possession of the property than the actor.” See Tex. Penal Code Ann. §

1.07(a)(35) (Vernon Supp. 2009).

                         C. Legally Sufficient Evidence

      Here, the evidence at trial demonstrated that Cranford owns the southern

twenty-five feet of lots 10, 11, and 12 and that Bishop owns the center

twenty-five feet of lots 10, 11, and 12. The evidence also demonstrated that

Bishop purchased the property as a vacant lot and that Cranford purchased her

property with a building on it.     Shirley Craighead testified when she sold

Cranford the property in 2006, she “sold her a building” and that buildings

                                        7
come with walls. Craighead testified that when she owned the property, she

and Bishop never had any agreement that Bishop owned part of the walls of her

building. Cranford testified that she never had an agreement with Bishop, or

any notice, that the wall in question belonged to Bishop. She also testified that

she did not give Bishop permission to spray paint the wall.

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

hold that a rational trier of fact could have found that the evidence at trial was

sufficient to establish that Cranford has title to the wall, possession of the wall,

whether lawful or not, or a greater right to possession of the wall than Bishop.

See Tex. Penal Code Ann. § 1.07(a)(35); Jackson, 443 U.S. at 326, 99 S. Ct.

at 2793; Clayton, 235 S.W.3d at 778. Accordingly, we hold that the evidence

is legally sufficient to support Bishop’s conviction.

                        D. Factually Sufficient Evidence

      Bishop argues that no rational juror could have found that he was not the

owner of the wall.    He points to evidence presented at trial that a dispute

existed about the boundary of his property and that the wall that he had spray

painted was actually a remnant of a building that once existed on his now-

vacant lot, rather than a wall to Cranford's building.

      Specifically, Paul Hayers testified that he is the City Attorney for Electra

and that he had prepared the deed from Craighead to Cranford in 2006. He

                                         8
testified that, prior to Bishop’s purchase the vacant lot, “somebody made a

mistake at some point” in the legal description of that property. Roy Woodman,

a land surveyor, testified that he had surveyed Bishop’s property and had

determined that the boundary line of that property is located approximately

seven-tenths of a foot inside the wall of the building on Cranford’s lot.

      Regarding evidence of the second wall, Cranford testified that the color

of the brick on the front of her building is a different color than the brick on the

north wall that faces Bishop’s property. Davidson testified that holes in the

north wall are consistent with rafters or roof beams. Woodman explained that

the width of the overlap between the boundary of Bishop’s property line and

the north wall is approximately the length of one brick. The most significant

evidence supporting Bishop’s argument is a discrepancy in the tax appraisal

records for Bishop’s property. The State introduced tax appraisal records from

the Wichita County Appraisal District for Cranford’s and Bishop’s properties.

The record for Bishop’s property shows that he owns a vacant lot, and the

comments section of the record is blank.          Lisa Musick, the deputy chief

appraiser for the appraisal district, testified that structures that add value to an

appraised property are included in an appraisal but that structures that do not

add value to the property are not included in an appraisal and are, instead,

typically noted in the comments section.          On cross-examination, Musick

                                         9
testified that the tax appraisal record for Bishop’s property used to include the

following notation in the comments section: “A recent survey indicates side

wall units attached to adjacent buildings on this parcel. No conclusive evidence

of who is the owner of the walls. . . .” A copy of the prior version of the tax

appraisal record for Bishop’s property that included this notation was introduced

at trial. Musick testified that “at some point in time someone . . . involved in

this case [came] into our office and talked to an appraiser.”       Afterwards,

Musick removed the comment from the tax appraisal record for Bishop’s

property because the comment was not in the correct place, and she “moved

it into the appropriate place in [the appraisal district’s] computer system.”

      We have considered the evidence in a neutral light, favoring neither party.

See Steadman, 280 S.W.3d at 242; Watson, 204 S.W.3d at 414.

Notwithstanding evidence of the boundary dispute and of a second wall, the

evidence also showed that Cranford purchased a lot with a building, whereas

Bishop purchased a vacant lot. The evidence also demonstrated that Cranford

had previously asked for and had received Bishop’s permission to go onto his

property to repair the exterior of the north wall—the wall that Bishop now

claims to own.    Proof of ownership, which may be decided by direct or

circumstantial evidence, was an issue for the jury to decide.      Robertson v.

State, 871 S.W.2d 701, 707 (Tex. Crim. App. 1993), cert. denied, 513 U.S.

                                       10
853 (1994); Liggens v. State, 50 S.W.3d 657, 660 (Tex. App.—Fort Worth

2001, pet. ref’d). The jury could have determined that Cranford had title to the

wall, possession of the wall, whether lawful or not, or a greater right to

possession of the wall than Bishop. 2 See Tex. Penal Code Ann. § 1.07(a)(35);

Lancon, 253 S.W.3d at 706; Robertson, 871 S.W.2d at 707; Liggens, 50

S.W.3d at 660; see also Fuentes v. State, 991 S.W.2d 267, 271–72 (Tex.

Crim. App.) (noting that “to avoid intruding on the jury’s role as arbiter of the

weight and credibility of the evidence, a factual sufficiency review remains

deferential to the jury’s verdict”), cert. denied, 528 U.S. 1026 (1999).

      We cannot say that the evidence supporting Bishop’s conviction was so

weak that the jury’s determination was clearly wrong or manifestly unjust or

that it was contradicted by the great weight and preponderance of the

evidence. See Lancon, 253 S.W.3d at 704; Watson, 204 S.W.3d at 414–15,

417. We hold that the evidence presented at trial was sufficient to support the

verdict, and no contrary evidence exists that would render the evidence

factually insufficient under the applicable standard of review. See Lancon, 253

S.W.3d at 704; Watson, 204 S.W.3d at 414–15, 417. Accordingly, we hold

that the evidence is factually sufficient to support Bishop’s conviction.



      2
       The jury charge included the penal code’s definition of an “owner.”
See Tex. Penal Code Ann. § 1.07(a)(35).

                                       11
      Having held that the evidence is legally and factually sufficient, we

overrule Bishop’s first issue.

                     IV. E FFECTIVE A SSISTANCE OF C OUNSEL

      In his second issue, Bishop argues that his counsel was ineffective for not

requesting a jury instruction on the lesser included offense of Class B

misdemeanor graffiti, or graffiti causing pecuniary loss of less than $500. See

Tex. Penal Code Ann. § 28.08(b)(1). He argues that Davidson’s testimony that

he could repair the wall for as little as $450 supported this instruction. 3

                            A. Standard of Review

      We apply a two-pronged test to ineffective assistance of counsel claims.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984);

Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v.

State, 65 S.W.3d 59, 62–63 (Tex. Crim. App. 2001); Thompson v. State, 9

S.W.3d 808, 812 (Tex. Crim. App. 1999). To establish ineffective assistance

of counsel, appellant must show by a preponderance of the evidence that his

counsel’s representation fell below the standard of prevailing professional norms



      3
        Davidson testified on cross-examination that if he simply painted over
the spray-painted area of the wall with paint that matched the existing wall
color without repainting and retexturing the entire wall, he would charge
approximately $450. He testified that his professional opinion, however, is that
the entire wall should be repainted and refinished and that it would be “very
obvious” if someone simply painted over the spray-painted area.

                                       12
and that there is a reasonable probability that, but for counsel’s deficiency, the

result of the trial would have been different. Strickland, 466 U.S. at 687, 104

S. Ct. at 2064; Salinas, 163 S.W.3d at 740; Mallett, 65 S.W.3d at 62–63;

Thompson, 9 S.W.3d at 812.

      In evaluating the effectiveness of counsel under the first prong, we look

to the totality of the representation and the particular circumstances of each

case. Thompson, 9 S.W.3d at 813. The issue is whether counsel’s assistance

was reasonable under all the circumstances and prevailing professional norms

at the time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S.

Ct. at 2065. Review of counsel’s representation is highly deferential, and the

reviewing court indulges a strong presumption that counsel’s conduct fell within

a wide range of reasonable representation.        Salinas, 163 S.W.3d at 740;

Mallett, 65 S.W.3d at 63. A reviewing court will rarely be in a position on

direct appeal to fairly evaluate the merits of an ineffective assistance claim.

Thompson, 9 S.W.3d at 813–14. “In the majority of cases, the record on

direct appeal is undeveloped and cannot adequately reflect the motives behind

trial counsel’s actions.”    Salinas, 163 S.W.3d at 740 (quoting Mallett, 65

S.W.3d at 63).        To overcome the presumption of reasonable professional

assistance, “any allegation of ineffectiveness must be firmly founded in the

record,   and   the    record   must   affirmatively   demonstrate   the   alleged

                                        13
ineffectiveness.”    Id. (quoting Thompson, 9 S.W.3d at 813).             It is not

appropriate for an appellate court to simply infer ineffective assistance based

upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432

(Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with

a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other

words, the appellant must show there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.   Id. at 694, 104 S. Ct. at 2068.       A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Id. The ultimate

focus of our inquiry must be on the fundamental fairness of the proceeding in

which the result is being challenged. Id. at 697, 104 S. Ct. at 2070.

      B. Law on Failure to Request Lesser Included Offense Instruction

      Defense counsel’s failure to request a jury instruction can render his

assistance ineffective if, under the particular facts of the case, the trial judge

would have erred in refusing the instruction had counsel requested it. See

Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992); Wood v.

State, 4 S.W.3d 85, 87 (Tex. App.—Fort Worth 1999, pet. ref’d). However,

it may be reasonable trial strategy not to request a charge on a lesser-included

                                        14
offense. See Lynn v. State, 860 S.W.2d 599, 603 (Tex. App.—Corpus Christi

1993, pet. ref’d).   The defendant bears the burden of rebutting the strong

presumption that, under the circumstances, counsel’s decision not to request

the instruction was sound trial strategy. See Jackson v. State, 877 S.W.2d

768, 771–72 (Tex. Crim. App. 1994) (citing Strickland, 466 U.S. at 689, 104

S. Ct. at 2065); Wood, 4 S.W.3d at 87. Thus, the accused must provide a

record on appeal from which the reviewing court can determine that trial

counsel’s performance was not based on sound strategy. See Jackson, 877

S.W.2d at 771–72.

                       C. Counsel Was Not Ineffective

      Here, the record from the charge conference shows that defense counsel

was employing an “all or nothing” strategy by not requesting a lesser included

offense instruction on misdemeanor graffiti. This decision was also consistent

with Bishop’s primary defensive theory—that he owned the wall that he had

spray-painted and that, consequently, he could not be guilty of graffiti.

      At the charge conference, the State and defense counsel discussed

whether Bishop would request a lesser included offense instruction. Defense

counsel stated that although “some trial lawyers would” request such an

instruction, he had discussed it with Bishop and had decided against requesting

a lesser included offense instruction.   He stated, “It’s been a very difficult

                                      15
decision, but this whole case has been prosecuted as a felony only from the

get-go.” Moreover, Bishop did not file a motion for new trial, and the record is

otherwise silent on trial counsel’s reasoning. Because the record demonstrates

that defense counsel was aware of the availability of a lesser included offense

instruction and made a strategic decision not to request it, we cannot say that

his decision was anything other than sound trial strategy.      See Sendejo v.

State, 26 S.W.3d 676, 678–80 (Tex. App.—Corpus Christi 2000, pet. ref’d)

(finding defense counsel not ineffective when he knew instruction was available

but chose to “roll the dice” by not requesting it, consistent with his defensive

theory); Lynn, 860 S.W.2d at 603 (“Such a decision, although risky, is

sometimes successful.”).

      Based on the record before us, in light of the strong presumption of

reasonable professional assistance by defense counsel, we hold that Bishop has

not met his burden of showing by a preponderance of the evidence that his trial

counsel’s representation fell below the standard of prevailing professional

norms. See Strickland, 466 U.S. at 690, 104 S. Ct. at 2066; Thompson, 9

S.W.3d at 813. We overrule Bishop’s second issue.




                                      16
                           V. C ONCLUSION

     Having overruled Bishop’s two issues, we affirm the trial court’s

judgment.




                                            SUE WALKER
                                            JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DATE: April 8, 2010




                                 17
