                NUMBERS 13-10-00190-CR AND 13-10-00191-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

JESSICA LATRESE CHATMAN,                                                                  Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                       Appellee.


                  On appeal from the County Court at Law No. 5
                        of Montgomery County, Texas.


                              MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Rodriguez
        Appellant Jessica Latrese Chatman challenges her conviction by a jury for

possession of marihuana (appellate cause number 13-10-00190) and criminal trespass

(appellate cause number 13-10-00191), both class B misdemeanors.1 See Tex. HEALTH


        1
          This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to
an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (Vernon 2005).
& SAFETY CODE ANN. § 481.121(a), (b)(1) (Vernon 2010); TEX. PENAL CODE ANN.

§ 30.05(a)(1), (d)(1) (Vernon Supp. 2010). By three issues, Chatman argues that: (1)

the evidence was legally insufficient to support her criminal trespass conviction because

there was a "bona fide dispute" as to right-of-access; (2) her trial counsel was ineffective

for failing to request a jury instruction on mistake of fact as to criminal trespass; and (3)

the trial court erred in refusing her request, under article 38.23 of the code of criminal

procedure, for a jury charge in her marihuana possession case regarding evidence

seized in an alleged illegal entry by the police. See TEX. CODE CRIM. PROC. ANN. art.

38.23 (Vernon 2005). We affirm the judgment of conviction for criminal trespass and

affirm as modified the judgment of conviction of possession of marihuana.

                                     I. BACKGROUND

       In mid-March 2009, Chatman was arrested at the Cricket Hollow Apartments in

Montgomery County, Texas. At the time of her arrest, Chatman was present in the

apartment from which she had been evicted over three weeks earlier. The arresting

police officers found marihuana in the apartment and on Chatman's person.

       Chatman was charged by complaint and information for possession of marihuana

as follows: "on or about March 12, 2009, in Montgomery County, Texas, [Chatman], did

intentionally or knowingly possess a usable quantity of marihuana in the amount of two

ounces or less . . . ." Chatman was also charged by complaint and information for

criminal trespass as follows: "on or about March 12, 2009, in Montgomery County

Texas, [Chatman], did intentionally and knowingly enter a habitation of another, namely,

Stephanie Eason, without the effective consent of Stephanie Eason, the owner, and

[Chatman] did then and there have notice entry was forbidden . . . ."

                                             2
       Chatman pleaded not guilty to both charges, and her case was tried to a jury. The

jury returned guilty verdicts. For the marihuana possession conviction, the trial court

sentenced Chatman to 180 days' confinement in county jail, suspended for one year of

community supervision, and assessed a $500 fine; for the criminal trespass conviction,

the court sentenced Chatman to two days in county jail, with credit for time served, and

assessed a $300 fine. This appeal followed.

                             II. SUFFICIENCY OF THE EVIDENCE

       By her first issue, Chatman complains that the evidence was legally insufficient to

support her criminal trespass conviction because a bona fide dispute existed regarding

Chatman's right to access the property in question.

                     A. Standard of Review and Applicable Law

       When conducting a legal sufficiency review, a court must ask whether "any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt"—not whether "it believes that the evidence at the trial established guilt beyond a

reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); see Brooks v.

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). A legal sufficiency analysis requires

the court to view all of the evidence in "a light most favorable to the verdict." Jackson,

443 U.S. at 319; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The

trier of fact is the sole judge of the facts, the credibility of the witnesses, and the weight

given to testimony. TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1979); Beckham v.

State, 29 S.W.3d 148, 151 (Tex. App.–Houston [14th Dist.] 2000, pet. ref'd). We do not

reevaluate the weight or credibility of the evidence, nor do we substitute our own

conclusions for the trier of fact. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App.

                                              3
2000) (en banc). Instead, we resolve any inconsistencies in the evidence in favor of the

final judgment and consider whether the jury reached a rational decision. Curry v. State,

30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

      Legal sufficiency 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. The

elements of class B misdemeanor criminal trespass are that: (1) a person, (2) without

effective consent, (3) enters or remains on the property of another, (4) knowingly or

intentionally, (5) when she had notice that entry was forbidden. See Day v. State, 532

S.W.2d 302, 306 (Tex. Crim. App. 1976) (op. on reh'g); see also TEX. PENAL CODE ANN. §

30.05(a)(2). "'Effective consent' includes consent by a person legally authorized to act

for the owner." TEX. PENAL CODE ANN. § 1.07(19) (Vernon Supp. 2010).

                                  B. The Evidence

      At trial, the State admitted into evidence the judgment of eviction against Chatman

that was obtained by Cricket Hollow in justice court on February 12, 2009. The judgment

decreed as follows:

            [T]hat Plaintiff, CRICKET HOLLOW APTS, do have and recover of
      the Defendant, JESSICA CHATMAN, possession of the following described
      premises situated in Justice Precinct One, Montgomery County, Texas to
      wit:

      9700 FM 1907 W #608 WILLIS, TX 77318
                                      4
                 . . . Defendant has 5 days to vacate or appeal from this date.

       Officer Courtney Yoak of the Willis Police Department testified that on March 12,

2009, she was dispatched to return the call of a citizen who had some questions of a civil

matter. Officer Yoak returned the call; the citizen was Chatman, who informed Officer

Yoak that she had been locked out of her apartment. Chatman informed Officer Yoak

that she had been evicted from her apartment, was ordered to remove her possessions,

and the time for removing her possessions had passed. During the call, Chatman told

Officer Yoak that she was currently in the apartment. Officer Yoak then received a call

from her detective, who was also employed as a security officer at Cricket Hollow. Her

detective stated that he had received a call from the apartment manager, Stephanie

Eason, requesting assistance with an evicted tenant who had gained access to her old

apartment. The detective asked Officer Yoak to investigate the situation. When Officer

Yoak arrived at the apartment, she and her partner, Officer Brian Skero, entered the

apartment and found Chatman.              Officer Yoak testified that she arrested Chatman

because of her own admission that she had been evicted but was nonetheless in the

apartment.

       Juanita Surgers, who was formerly married to Chatman's uncle and worked as the

administrative manager for a justice of the peace (JP), testified, as well. Surgers testified

that her job involved handling the financial matters for her JP. 2 Surgers testified that

during her eviction proceedings, Chatman called her to ask some questions about the

civil process of eviction. In response to her questions, Surgers told Chatman that if a

       2
           Surgers worked for a different JP than the JP who issued the judgment of conviction against
Chatman.
                                                   5
landlord obtains a judgment of eviction but the tenant refuses to leave, the landlord must

get a writ of possession to forcibly remove the tenant.         Surger also testified that

Chatman's judgment of eviction became final because Chatman did not appeal it.

                                      C. Analysis

       Citing Hann v. State, Chatman argues that because Cricket Hollow did not obtain a

writ of possession, there "was a bona fide dispute as to possession of the apartment

between [Chatman] and the apartment complex." 771 S.W.2d 731, 733 (Tex. App.–Fort

Worth 1989, no pet.). Based on this, Chatman contends that the evidence at trial was

legally insufficient to support the effective-consent element of criminal trespass. We

disagree that such bona fide dispute existed under the facts of this case.

       In Hann, appellant was arrested for criminal trespass when he taxied his airplane

over a strip of land between the runway and the hangar he rented to store his airplane;

appellant's landlord owned both the land where the hangar was located and the land on

which the runway was situated. Id. at 732. Appellant's landlord had a long-standing

dispute with an adjacent property owner over the strip of land in question but believed that

his tenants had the right to access the strip of land to cross from the runway to their

hangars. Id. at 733. The adjacent property owner believed they did not. Id. The

court concluded that because of the ongoing controversy over the legal title to the land

and some "ambiguous or unclear" language in the related legal documents, "a bona fide

dispute exist[ed] between appellant and [the adjacent property owner] as to whether

appellant had rights of access to the property." Id. For this reason, the court concluded

no "rational trier of the facts could . . . have found beyond a reasonable doubt that

appellant's entry on the property was without effective consent." Id. at 734.

                                             6
       In Hann, the rights of the parties had not yet been adjudicated.         Here, the

evidence demonstrates no such ambiguity or lack of clarity regarding who had the right to

access the apartment.      The judgment of eviction clearly transferred the right of

possession of the apartment from Chatman to Cricket Hollow and ordered Chatman to

vacate the apartment or appeal the judgment. Because Chatman did not appeal the

judgment, as stated by Surgers, it became final. Cricket Hollow's failure to obtain a writ

of possession—a civil remedy to forcibly remove an evicted tenant—does not alter these

facts. Based on the evidence at trial, we cannot conclude that a bona fide dispute

existed over who had the right to access the apartment.

       Rather, there is ample evidence from which a rational jury could have concluded

beyond a reasonable doubt that Chatman entered the apartment without the effective

consent of Cricket Hollow. See Jackson, 443 U.S. at 318-19; see also Day, 532 S.W.2d

at 306.      Eason, Cricket Hollow's manager, called security to request assistance

regarding Chatman being present in the apartment despite being evicted.          Further,

Chatman admitted to Officer Yoak that she had been evicted and that the time had

passed for removing her possessions from the apartment. The evidence was therefore

legally sufficient to support the without-effective-consent element. See TEX. PENAL CODE

ANN. §§ 1.07(19), 30.05(a)(2); Jackson, 443 U.S. at 318-19. Chatman's first issue is

overruled.

                        III. INEFFECTIVE ASSISTANCE OF COUNSEL

       By her second issue, Chatman argues that she received ineffective assistance of

counsel at trial.



                                            7
                       A. Standard of Review and Applicable Law

          To establish ineffective assistance of counsel, Chatman must show that: (1) her

attorney's representation fell below an objective standard of reasonableness; and (2)

there is a reasonable probability that, but for her attorney's errors, the result of the

proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 684

(1984); Jaynes v. State, 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.).

Whether this test has been met is to be judged on appeal by the totality of representation,

not by any isolated acts or omissions.       Jaynes, 216 S.W.3d at 851.       The right to

"reasonably effective assistance of counsel" does not guarantee errorless counsel or

counsel whose competency is judged by perfect hindsight. Saylor v. State, 660 S.W.2d

822, 824 (Tex. Crim. App. 1983).

          Our review of counsel's representation is highly deferential, and we will find

ineffective assistance only if Chatman rebuts the strong presumption that her counsel's

conduct fell within the wide range of reasonable professional assistance.             See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Chatman must prove ineffective

assistance of counsel by a preponderance of the evidence. See Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Cannon v. State, 668 S.W.2d 401, 403

(Tex. Crim. App. 1984)).         To prove that counsel's performance fell below the

reasonableness standard, ―the record must contain evidence of counsel's reasoning, or

lack thereof.‖ Moreno v. State, 1 S.W.3d 846, 865 (Tex. App.–Corpus Christi 1999, pet.

ref'd).    Generally, the trial record will not be sufficient to establish an ineffective

assistance of counsel claim.      Thompson, 9 S.W.3d at 813-14; Kemp v. State, 892

S.W.2d 112, 115 (Tex. App.–Houston [1st Dist.] 1994, pet. ref'd). This is true because,

                                             8
normally, a record is silent with regard to counsel's decision-making processes, and

therefore, appellant often cannot rebut the presumption that counsel's performance was

the result of sound or reasonable trial strategy. Strickland, 466 U.S. at 688; Stafford v.

State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991); see Jaynes, 216 S.W.3d at 855. In

the case of such a silent record, "the challenged conduct must be 'so outrageous that no

competent attorney would have engaged in it.'" Roberts v. State, 220 S.W.3d 521, 533

(Tex. Crim. App. 2007) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005)).

                                      B. Analysis

       Here, Chatman complains that her trial counsel was ineffective for failing to

request a jury instruction on mistake of fact—i.e., that Chatman formed a reasonable but

mistaken belief about a matter of fact that negated the requisite mental state for the

offense. See TEX. PENAL CODE ANN. § 8.02(a) (Vernon 2003). Chatman contends that

testimony at trial established that she reasonably believed that she was legally able to

enter the apartment from which she had been evicted because Cricket Hollow had not yet

obtained a writ of possession from the justice of the peace. In short, Chatman argues

that the evidence raised the defensive issue of mistake of fact, and the trial court would

have erred in denying a request to include it in the jury charge.

       However, because Chatman did not file a motion for new trial and did not elicit any

testimony regarding trial counsel's reasons for taking the complained-of actions, there is

no evidence in the record that the actions of Chatman's trial counsel were not the result of

sound and reasonable trial strategy. See Jaynes, 216 S.W.3d at 855. And based on

the record before us, we cannot conclude that trial counsel's actions were so outrageous

                                             9
that no competent attorney would have taken them. See Roberts, 220 S.W.3d at 533.

Chatman's alleged mistaken belief regarding Cricket Hollow's failure to obtain a writ of

possession and her resulting right to enter the apartment was, if anything, a mistake of

law, not a mistake of fact. See TEX. PENAL CODE ANN. § 8.03(b) (Vernon 2003) ("It is an

affirmative defense to prosecution that the actor reasonably believed the conduct

charged did not constitute a crime and that he acted in reasonable reliance" on either (1)

"an official statement of law in a written order" or (2) "a written interpretation of the law

contained" in a court opinion or "made by a public official charged by law with

responsibility for interpreting the law in question."). And the source from which Chatman

received her interpretation of civil eviction law was Surgers, who was the administrative

manager for a JP, not a public official charged with interpreting the law. Thus, the

evidence did not raise the issue of mistake of law, and Chatman's counsel did not act

unreasonably or incompetently in not seeking a jury instruction on that issue.

        In sum, without specific evidence of trial counsel's decision-making process and

strategy, we cannot conclude that Chatman has overcome the strong presumption that

her trial counsel provided professional, objectively reasonable assistance. See

Strickland, 466 U.S. at 689; Jaynes, 216 S.W.3d at 851. Because Chatman did not

establish that her trial counsel's performance fell below an objectively reasonable

standard, she has not met the first prong of Strickland. See Jaynes, 216 S.W.3d at 855.

Chatman's second issue is overruled.3

        3
           Although Chatman's attempt at a direct appeal has been unsuccessful, she is not without a
potential remedy. Challenges requiring development of a record to substantiate a claim, such as
ineffective assistance of counsel, may be raised in an application for writ of habeas corpus. See TEX.
CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2010); see also Cooper v. State, 45 S.W.3d 77, 82-83
(Tex. Crim. App. 2001) (suggesting that "the legislature may have regarded challenges to voluntariness as
better raised in habeas corpus than on appeal because the appellate record will often contain insufficient
                                                   10
                                        IV. JURY CHARGE

       By her third issue, Chatman argues that, under article 38.23 of the code of criminal

procedure, the trial court erred in refusing her request in her marihuana possession case

for a jury instruction regarding evidence seized in an alleged illegal entry by the police.

See TEX. CODE CRIM. PROC. ANN. art 38.23(a). Chatman argues that she raised a fact

issue regarding the legality of Officer Yoak and Officer Skero's entry into the apartment

and that she was harmed by the refusal of the evidentiary instruction because if the jury

had resolved the illegal entry issue in favor of Chatman, the jury would have "been

instructed to disregard all evidence obtained from the officer's unlawful entry . . . including

the 'blunt' and marijuana that formed the basis for [Chatman]'s possession of marijuana

conviction."

       Article 38.23 provides as follows:

              No evidence obtained by an officer or other person in violation of any
       provisions of the Constitution or laws of the State of Texas, or of the
       Constitution or laws of the United States of America, shall be admitted in
       evidence against the accused on the trial of any criminal case.

              In any case where the legal evidence raises an issue hereunder, the
       jury shall be instructed that if it believes, or has a reasonable doubt, that the
       evidence was obtained in violation of the provisions of this Article, then and
       in such event, the jury shall disregard any such evidence so obtained.

TEX. CODE CRIM. PROC. ANN. art 38.23(a). To be entitled to the evidentiary instruction,

the defendant must show that the evidence heard by the jury raised a genuine dispute

about a material fact. Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007).


grounds for a fair resolution of the claim. The legislature may well have decided to render the issue
unappealable but only as a means of encouraging its litigation in habeas corpus, where a new and more
complete record can be developed"). An application for writ of habeas corpus relief would "provide an
opportunity to conduct a dedicated hearing to consider the facts, circumstances, and rationale behind
counsel's actions at . . . trial." Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999).
                                                 11
"The disputed fact must be an essential one in deciding the lawfulness of the challenged

conduct." Id. at 511.

       If there is no disputed factual issue, the legality of the conduct is determined
       by the trial judge alone, as a question of law. And if other facts, not in
       dispute, are sufficient to support the lawfulness of the challenged conduct,
       then the disputed fact issue is not submitted to the jury because it is not
       material to the ultimate admissibility of the evidence.

Id. at 510.

       Here, the alleged misconduct is Officer Yoak and Officer Skero's entry into the

apartment without proper authority. Chatman argues that because Cricket Hollow did

not obtain a writ of possession, she believed she had a legal right to access the

apartment, and as a result, she raised a fact issue regarding who had permission to

authorize the police officers' entry into the apartment. Chatman's belief regarding civil

eviction procedures, however, has no bearing on the legality of the police officers' entry

into the apartment.     As discussed previously, the evidence clearly established that

Cricket Hollow had the right to possess the apartment through the final judgment of

eviction issued against Chatman, and Chatman admitted as much when she told Officer

Yoak on the phone that she had been evicted and ordered to remove her possessions

from the apartment. Further, it is undisputed that Officers Yoak and Skero entered the

apartment pursuant to instructions from Eason, Cricket Hollow's manager.

       Chatman's belief does not contradict the judgment of eviction or her own

admission that she had been evicted and ordered to vacate. In other words, Chatman's

belief that she had a legal right to access or possess the apartment does not raise a

factual dispute material to the legality of the officers' entry.      Moreover, there was

undisputed evidence of other facts—i.e., Eason's authorization to enter the

                                             12
apartment—sufficient to support the lawfulness of the officers' entry. Thus, the legality of

the police officers' entry into the apartment was appropriately determined by the trial

court. Chatman's third issue is overruled.

                             V. MODIFICATION OF JUDGMENT

       The trial court's judgment in Chatman's marihuana possession case mistakenly

recites Chatman's sentence as "0 days in the Montgomery County Jail" in one of the two

places in the judgment where Chatman's sentence is recited. Our review of the record

shows that the trial court sentenced Chatman to 180 days' confinement in county jail,

suspended the sentence, and placed Chatman on community supervision for one year.

Because we have the necessary data and evidence for reformation, we modify the trial

court's judgment to reflect the correct sentence of 180 days' confinement in county jail in

each place the judgment recites the sentence. See TEX. R. APP. P. 43.2; Bigley v. State,

865 S.W.2d 26, 27 (Tex. Crim. App. 1993).

                                     VI. CONCLUSION

       For appellate cause number 13-10-00191, we affirm the trial court's judgment of

conviction for criminal trespass. For appellate cause number 13-10-00190, we affirm the

trial court's judgment of conviction for possession of marihuana as modified.



                                                               NELDA V. RODRIGUEZ
                                                               Justice

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

Delivered and filed the
14th day of April, 2011.


                                             13
