                            NUMBER 13-12-00733-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

MATTHEW SKODZINSKY,                                                       Appellant,


                                          v.


THE STATE OF TEXAS,                                                       Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                        MEMORANDUM OPINION
          Before Justices Rodriguez, Benavides, and Longoria
              Memorandum Opinion by Justice Longoria
      By two issues, appellant, Matthew Skodzinsky, appeals his convictions on two

counts of burglary of a habitation for which he received a life sentence. See TEX. PENAL

CODE ANN. § 30.02(a) (West 2011). We affirm.
                               I. SUFFICIENCY OF THE EVIDENCE

         In his first issue, appellant contends that the evidence is insufficient to prove that

he entered the habitation without the effective consent of the owners. See id.

A. Standard of Review

         In a sufficiency review, courts examine the evidence in the light most favorable to

the verdict to determine whether “any rational fact finder could have found guilt beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard

requires reviewing courts to resolve any evidentiary inconsistencies in favor of the

judgment, keeping in mind that the jury is the exclusive judge of the facts, the credibility

of the witnesses, and the weight to give their testimony. Brooks v. State, 323 S.W.3d

893, 899 (Tex. Crim. App. 2010) (plurality op.); see also TEX. CODE CRIM. PROC. ANN.

art. 38.04 (West 1979) (“The jury, in all cases, is the exclusive judge of the facts proved,

and of the weight to be given to the testimony . . . .”). Appellate courts do not re-

evaluate the weight and credibility of the evidence; they only ensure that the fact finder

reached a rational decision. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.

2009).

         Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

“Such a charge is one that accurately sets out the law, is authorized by the indictment,

does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.



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B. Applicable Law

       Lack of effective consent is an essential element of the offense of burglary of a

habitation. See TEX. PENAL CODE ANN. § 30.02(a). “[P]roof of lack of consent to entry in

a prosecution for burglary . . . may be by circumstantial evidence the same as any other

issue in a criminal case may be proved by circumstantial evidence.” Prescott v. State,

610 S.W.2d 760, 763 (Tex. Crim. App. [Panel Op.] 1981). It is not necessary “for a

complainant to expressly use ‘the magic words’ that she did not give her effective

consent or that the accused did not have her effective consent to enter the premises

when testifying.” Id.

C. Discussion

       Appellant argues that there is no evidence that he entered the habitation without

the effective consent of its owners, Perry Bailey and Penny Webb, as alleged in the

indictment. We disagree.

       At trial, the evidence showed that Bailey and Webb leased and occupied the

home in question and were asleep in bed when appellant entered the premises. Webb

testified that she did not know appellant was planning to visit her home. Webb further

testified that she did not “in any way invite” appellant “over to the house.” Finally, Webb

testified that she became aware of appellant’s presence in the home when she woke up

at approximately 3:00 a.m. to the sound of appellant “beating on” Bailey, who had been

sleeping next to her in the same bed. Bailey was so severely injured in the encounter

that he was unavailable to testify at trial.

       Based on the foregoing evidence, the jury could have found that appellant

entered the premises without the consent of the owners, who were asleep at the time of



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his entry. Furthermore, the fact that appellant entered the house through an unlocked

door does not compel a different conclusion. See Hickson v. State, No. 04-09-00445-

CR, 2010 Tex. App. LEXIS 4109, *1, *9 (Tex. App.—San Antonio May 26, 2010, no

pet.) (mem. op., not designated for publication) (holding that entry was without consent

when “man abruptly entered the house through an unlocked door”). On this record,

“any rational fact finder could have found guilt beyond a reasonable doubt.” Jackson,

443 U.S. at 319.

       Appellant’s first issue is overruled.

                         II. INEFFECTIVE ASSISTANCE OF COUNSEL

       In his second issue, appellant contends that he received ineffective assistance of

counsel at trial.

A. Applicable Law and Standard of Review

       Both the United States and Texas Constitutions guarantee an accused the right

to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. 1 § 10; see also TEX.

CODE CRIM. PROC. ANN. art. 1.051 (West 2010). To prove ineffective assistance of

counsel, the defendant must meet the heavy burden established in Strickland v.

Washington, 466 U.S. 668, 687 (1984). Under Strickland, assistance of counsel is

ineffective if, in considering the totality of the circumstances: (1) counsel made such

serious errors that he was not functioning effectively as counsel; and (2) counsel’s

deficient performance prejudiced the defense to such a degree that the defendant was

deprived of a fair trial. Id.; Rodriguez v. State, 899 S.W.2d 658, 665 (Tex. Crim. App.

1995). “A convicted defendant making a claim of ineffective assistance must identify

the acts or omissions of counsel that are alleged not to have been the result of



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reasonable professional judgment.”     Strickland, 466 U.S. at 690.     The record must

affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999). We will not find counsel ineffective when the record is

silent as to counsel’s reasoning or strategy. Godoy v. State, 122 S.W.3d 315, 322 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d).

      “A substantial risk of failure accompanies an appellant’s claim of ineffective

assistance of counsel on direct appeal.” Thompson, 9 S.W.3d at 813. “Rarely will a

reviewing court be provided the opportunity to make its determination on direct appeal

with a record capable of providing a fair evaluation of the merits of the claim involving

such a serious allegation.” Id. “In the majority of instances, the record on direct appeal

is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. at

813–14.

      “To defeat 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 ineffectiveness.” Id. at 814 (quotations omitted).

“Indeed in a case such as this, where the alleged derelictions primarily are errors of

omission de hors the record rather than commission revealed in the trial record,

collateral attack may be the vehicle by which a thorough and detailed examination of

alleged ineffectiveness may be developed and spread upon a record.” Id. Thus, for

example, the Texas Court of Criminal Appeals has held that the presumption of

reasonable professional assistance is not rebutted where the record is silent as to

counsel’s reasons for not objecting to the State’s persistent attempts to offer

inadmissible evidence. See id.



                                              5
B. Discussion

       Appellant argues that he received ineffective assistance of counsel at trial

because his attorney did not (1) move for a directed verdict at the close of the State’s

case-in-chief on the basis that the State has failed to prove the element of lack of

consent and (2) make a closing argument.

       Trial counsel “should ordinarily be afforded an opportunity to explain his actions

before being denounced as ineffective.” Menefield v. State, 363 S.W.3d 591, 593 (Tex.

Crim. App. 2012). In this case, counsel has not been afforded an opportunity to explain

the reasons for his actions with regard to his failure to move for a directed verdict and to

make a closing argument. We do not know the reasons for counsel’s decisions. See

Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002) (“If counsel’s reasons for his

conduct do not appear in the record and there is at least the possibility that the conduct

could have been legitimate trial strategy, we will defer to counsel’s decisions and deny

relief on an ineffective assistance claim on direct appeal.”). It is possible that counsel’s

conduct could have been grounded in legitimate trial strategy. See Lopez v. State, 343

S.W.3d 137, 143 (Tex. Crim. App. 2011) (“When such direct evidence is not available,

we will assume that counsel had a strategy if any reasonably sound strategic motivation

can be imagined.”).    It is possible that counsel did not move for a directed verdict

because, like this Court, he concluded that the evidence was sufficient to prove that

appellant entered the habitation without the consent of the owners. It is also possible

that counsel did not make a closing argument because the evidence of guilt was

overwhelming. It is possible that counsel exercised sound professional judgment and

executed a reasonable trial strategy by waiving a closing argument that the jury would



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most likely have rejected and choosing to focus instead on the punishment phase of

trial, in which counsel did make a closing argument to the jury.

       On the record before us, we cannot conclude that counsel’s conduct was “so

outrageous that no competent attorney would have engaged in it.”        Menefield, 363

S.W.3d at 593.      Consequently, we conclude that the record fails to show deficient

performance. See Badillo v. State, 255 S.W.3d 125, 129 (Tex. App.—San Antonio

2008, no pet.) (“[T]hus a silent record on the reasoning behind counsel’s actions is

sufficient to [overrule this issue.]”).

       Appellant’s second issue is overruled.

                                          III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                    _______________________
                                                    NORA L. LONGORIA
                                                    Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
8th day of August, 2013.




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