After oral arg ument, both Be rry and the State filed motions for leave to file supplemental 1 letter brie fs. These motions are her eby g rante d. 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 8 -00 031 -CR

Elli s Be r r y , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 427TH JUDICIAL DISTRICT NO. D-1- DC-07 -20 0930 , HO NORAB LE F RED A. MO ORE , JUDGE PRESIDI NG

O P I N I O N A j ur y fo un d E lli s B e rr

y g uil ty of burg lary of a ha bit a tio n w hil e a tte mpt ingto c omm it
or c omm itt ingre ta liatio n a nd , a ft er fi nd inga

pr ior c on vic tio n tr

ue fo r e nh a nc e me nt p ur

po se s,
a sse sse d p un ish me nt at 45 y e a rs ’ i mpr isonm ent and a $5 ,0 00 fi ne . B e rr

y a pp e a ls, a rguin g in two issues that (1) the e vidence was leg all y i n s u ff i ci en t to support the finding tha t he was committing or attempting t o commit reta liation at the time of the of fense and (2) that he wa s denied the ef fec tive assistance of counse l, due to a conf lict of i n t er es t s temming f rom Be rry ’s assault on defe nse counse l during trial. Be cause we hold that the evidenc e was leg ally sufficie nt to support the jur y ’ s r e t a l i a t i o n f

i n d i n g a n d

t h a tB e r r y h a s n o td e m o n s t r a t e d

t h a ta n a c tu a l c o n f

l i c to f i n te re st adver sely aff ecte d counsel’s pe rfor

mance , we a ffirm the judg ment of convic tion. 1B e c a us e Do min iqu e Cot tr e ll ha s the same la st name a s the c omp la ina nt i n th is c a se , w e wi ll 2 ref er to he r by

her f irst name. 2

BACK GR OUND On Fe bruar

y 17, 2007, Be rry

was living with his mot her in a n Austin duplex , the other side of

which wa s occupie d by L atasha Cottrell, the complainant in this case, a nd her se veny ear -old daug hter. At a

pproxi mately

5:30 that evening , Be rry came to Cott rell’s side of the duplex and bega n knocking on her door. Cottrell testified t hat because Ber ry was dre ssed only

in a pair of shorts and “ha d his hands in his shorts,” she ref us ed t o l et h i m into her home. Cottrell’s sister, Dominique, who was a lso present in Cottrell’s home that day , testified that af ter Cott re l l asked 2 Be rry to le ave, “she tried to close the door rea l quick,” but B err

y “stopped he r fr om closing the door with his foot. As soon as she g ot the door closed a nd she locke d it, h e wa s b ea t i n g on the door te lli nghe r t o op e n the do or .” Cot tr e ll wa rn e d B e rr y that sh e wo uld c a ll the po lic e if he re fu se d to leave . When Be rry

responde d by

knocking louder and kicking the door, Cottrell ca lled the police. Be fore the police arr ived, Be rry returne d to his side of the duplex and sw al l o wed
a pp ro xima te ly

fi ve “ c ra c k r oc ks .” Berry him se lf te sti fi e d to thi s a t tr ia l and e xpla ine d th a t he did so for the pur

pose of avoiding a

char g e for

drug possession. At some point after the police ar rived, Be rry wa s p l ace d in an ambulanc e to be tra nsported to a hospital due to his er ratic be havior, presumably

resulting from the c rac k coca ine he had sw allowed. While Be rry was in the ambulance, Cot tr e ll, a t the ins tr

uc tio n of po lic e of

fi c e rs , g a ve him

a ve rb a l w a rn ingthat he wa s n ot t o r e tur n to her pr operty . Offic er Richa rd Munoz, an o ffice r dispatche d to the scene , testified that it was Austin Pol ice De partment policy to require a ver

bal war ning in the prese nce of

police off icer s befor eMunoz t estified: 3 I t’ s le g a l a s w e ll a s p oli c y fo r t re sp a ss n oti c e s th e perso n mu st b e c le a rl y knowledg eable to the fac t that they ’re not to return to that prope rty
. So as st ate law say s, the person must be awa re of that. And our policy

confine s it and makes it an even na rrowe r s cope that a police of fice r must be pre sent to witness the verba l war ning g iven and then w e also doc ument it. That way i f the situation does arr ive that the per son returns in viol ation of t hat, t he person was clear f rom the beg inning that he wa s not or she wa s not supposed to return to that prope rty and it is a criminal offe nse. 3 makin g a n a

rr e st f or c ri min a l tr e sp a ss. See Tex. P en al C o d e Ann. § 30.05 (West Supp. 2008) 3 (ele ments of cr iminal trespass).

At some p o in t late r in th e e v e n in g , B e r r y r e tu r n e d f r o m th e h o s p it a l a nd made repe ated a ng ry phone ca lls to C ottrell’s home i n which he denied having knocked on her door e arlier that day . Cottrell testified, “[H] e wa s just telli ng me I didn’t come over there knocking on the door and so forth and that why am I ly ing. He was just saying .
. . that I was ly ing and t hat he didn’t knock
on the do or a nd so fo rt h. ” Cot tr e ll f

ur the r t e sti fi e d th a t the ph on e c a lls to h e r h ome c on tin ue d unti l
a p p r o x i m a t e l y t w e n t y m i n u t e s b e f o r e t h e b u r g l a r

y. S h o rt l y b ef o re m i d n i gh t , Be rr y

re tu rn ed t o C o t t re l l ’s s i d e of t h e du p l ex , u s ed a l ar ge rock to bre ak her

sliding g lass door, and enter ed her home. Both Cottrell a nd Dominique testified that w he n Berr

y e nte re d th e du

ple x, he wa s sh outin g a ng ri ly a nd thr e a te nin g to k ill Cot tr e ll. Dominique’s boy friend, B randon Ma pps, who was a lso present in the duplex at the time, blocked Be rry ’s ac cess to Cott re l l and ultimately succe eded in r emoving him from the pre mises by forc e. Meanw hile, Cottrell called th e p o l i ce f or the sec ond time that day . When police offic ers a rrived, M a p p s f la g g e d th e m d o w n a n d

p o in te d to B e r r y , w h o w a s a tt e mp ti n g to f le e o n f o o t. O f f ic e r M u n o z, who had a g ain bee n dispatched to the sc en e, ca u g ht up with Ber ry and ar rested him af

ter a brie f strug g le.4 Be rr y , testify ing on his own be half at trial, admitted to breakingCottrell’s slidi ng g la ss d oo r wit

h a roc k, bu t main ta ine d th a t he ne ve r a c tua lly e nte re d h e r s ide of

the du ple x. B e c a

us e B e r r y c h a l l e n g e s o n l y t h e r e t a l i a t i o n f i n d i n g o n a

p p e a l a n d n o t h i s c o n v i c t i o n f o rb u r g l a r

y, for pur poses of this appea l we will assume that the f acts support B err

y ’s burg lary

con v i ct i on. When asked why

he broke Cottrell’s window, Be rry stated, “B eca

use, like Isaid, when I

was in bac k of the a mbu lanc e g oin g to t

he ho sp ita l, s he c a me ba c k o ve r t o th e ba c k o f t he a mbu lanc e a nd

sh e sa id
a re mark lik e Ido n’ t w a nt h im b a c k o ve r he re . . . . An d tha t just sor t of like , y ou kn ow , mad e me mad, y ou know.”

During the trial o n t h e mer its, Ber ry made a number of outbur sts, prompting the tr ia l c o u rt to h a v e h im r e mo v e d f o r mu c h o f th e p r o c e e d in g s . A t o n e p o in t w h il e h e w a s in the
c ourt ro om, B e rr

y , o uts ide the pr e se nc e of the jur y , re qu e ste d a re str a ini ng or de r a g a ins t hi s d e fe ns e counsel. W hen thi s reque st was denied, Be rry assaulted his attorney , hitting him in the fac e. B err y
wa s q uic kly re str a ine d a nd re mov e d fr om the c ourt ro om. Th e tr ia l ju dg e the n q ue sti on e d d e fe ns e counsel, a sking, “ Do y ou believe—a re y ou able to repr esent y our client, e ven thoug h he assa ulted y ou he re in t he c ourt ro om, to t

he be st o f your abi li ty a nd pr ov ide him

a ll the e xpe rt ise that is
nece ssary and ade quate to do so, sir? ” Counsel re sponded, “Y es, sir, I am.” Ove r def

ense c ounsel’s objection, the State introduce d evidence of the assault as a n extraneous offe nse during the punishment phase of tria l.

The jury convicted B err

y of both burg lary

while attempting to commit or committ ing reta liation and burgla

ry with the intent to commit assault. The trial court proc eede d to punishment
on the c ha rg e wi th t

he hig he st p un ish me nt r a ng e —b ur g lary wh ile a tte mpt ingto c omm it5

or committing re taliation—and the jury assessed punishment at 45 y ear s’ imprisonment and a $5,000 fine

. STA ND AR DS O F RE VI EW I n revie wing the leg al sufficie ncy of the evidenc e, we must view the evidenc e in the light most favor able to the ve rdict to deter mine whether

any rational trier

of fa ct could have found the essential elements of the offe nse bey ond a re asonable doubt. Swe ar inge n v. Sta te , 101 S.W .3d 89, 95 (Te x . Crim. App. 2003). When fac ed with conf licting e vidence , we pr esume the trie r of fa ct re solved conflicts in favor of the pr evailing party
. Sta te v . Tu rro , 86 7 S
. W
. 2 d 4 3 , 47 (Tex. Crim. App. 1993).

When determining whether counsel was ineffe ctive due to a conf lict of interest, we look to whether the appellant has established “that an actua l c onflict of intere st ex isted and that trial counsel a ctually

acte d o n b eh alf of those other intere sts during the trial.” Ac os ta v . S tat e , 233 S.W .3d 349, 355 (Tex. Crim. App. 2007). I n other wor ds, the appe llant must show that
an ac tual conflict of interest adve rsely aff ecte d his lawy er’ s perf

ormanc e. Cuyler v. Sullivan , 446 U.S. 335, 350 (1980).
DI SCU SSIO N

As a preliminary matter, we note that Be rry , who is r epre sented by appointed counse l
on a pp e a l, h a s su

bmi tte d a nu mbe r o f p ro se fi lin g s r a isi ng a dd iti on a l a pp e llate a rgume nts
. A
cr i m i n al d ef

en d an th as n o ri gh tt o h y

b ri d re p re s en t at i o n , a n d o u r re v i ew o f B erry ’s p ro s e f i l i n gs does not reve al an e rror

that shoul d b e co n s i d ered in the interests of justice. Se e Ru dd v . S tat e ,6

61 6 S. W.2 d 6 23 , 6 25 (T e x. Cr im. Ap p. 19 81 ). As a re su lt, we ne e d no t a dd

re ss B e rr y ’s pr o s e arguments on appea l and shall proce ed with the issues ra ised by appellate counsel. See id.
Retaliation I n h is f

ir st i ssu e on

a pp e a l, B e rr

y a rgue s th a t th e e vid e nc e is l e g a lly ins uf fi c ie nt t o
su pp or t th e jur y ’s fi nd ingthat he e nte re d Cot tr e ll’ s ho me wh ile c omm itt ingor a tte mpt ingto c omm it reta liation. The jury was instructed on reta liation accor ding to se ction 36.06(a) (1)( B) of the pe nal code, w hich states that a pe rson commits retaliation if he thre atens to har m another by

an unlawf

ul act “ in retaliation for

or on ac count of the se rvice or status of anothe r as a . . . person who ha s repor ted or who the actor

knows intends to report the oc curr ence of a cri m e.” T ex. P enal Code Ann. § 3 6. 06 (a )( 1) (B ) ( Wes t Su pp . 2 00 8) . Wh ile the Sta te a sse rt s th a t B e rr y re tali ate d ag a ins t Cot tr e ll b e c a

us e sh e int e nd e d to re po rt

him fo r c ri min a l tr e sp a ss, B e rr y a rgue s th a t he did

no t c omm it the offe nse of c riminal trespass prior to the b u rgl ar y , an d there fore he could not have reta liated ag ainst Cottrell for intending to report a crime that had not occur red. See I

n re K.H. , 169 S.W .3d 459, 464 (Tex. App.—Texarkana 2005, no pet.) (holding that reta liation statute refe rs to repor t of “the oc curr ence of ‘a cr i m e, ’” ra t h er tha n “an a ct that a pe rson might r easona bly believe to be a crime” ). To support thi s contention, Berr y points to t he fa ct that the police of fice rs who ar

rived on the sce ne af

ter Cottrell’s first ca ll did not arrest him for c riminal trespass be cause he had not y et
rec eived a

verba l warning

in the prese nce of

a police of

fice r. Despite B err

y ’s asser tions to t he contr ary , the police off icer s’ deter

mination that they coul d not make an a

rre st in the absence of a ve rbal wa rning g iven in their pre sence was ba sed on depar tment policy , rathe r than t h e requirements of the penal c ode. In Munoz’s testim ony , heNo e vid e nc e wa s p re se nte d a t tr ia l r e g a rd ingCottr ell ’s ri gh t of po sse ssi on , if

a ny , to 4 the outside are a s u rrounding the door to her side of

the duplex. See Tex. P enal Code Ann. § 1.07(a )(35) (A) ( West S upp. 2008) (de fining “owne r” a s a per son who “ha s t i t l e to t he prop erty , possession of the prope rty , whether lawful or not, or

a g reater rig ht to possession of the proper ty than the ac tor”). 7 acknow ledg ed that the depa rtment’s interna l policy

of re quiring a ver

bal war ning in the pr esenc e of an off icer is narrow er tha

n the statutory

elements of c riminal trespass. Unde r sec tion 30.05 of the penal c o d e , c r im in a l tr e s p a s s o c c u r s w h e n a p e r s o n “ e n te r s o r r e ma in s o n o r in p r o p e rty
. . . of another without effe ctive conse nt” and that pe rson “ha d notice that the e ntry was for bidden” or “re ceive d notice to depa

rt but failed to do so.” Te x . Penal Code Ann. § 30.05(a) . Notice is def ined, in r e le va nt p a rt , a s “or a l or wr itt e n co mmunic a tio n by the ow ne r or so me on e wi th ap pa re nt a uth or ity to act for the owner .” Id. § 30.05(b)( 2)(A) . No t i ceably absent is any

require ment that a ver

bal
war ning be g iven in the pre sence of a police office r. Under the plain lang uag e of the statute, Cottrell ’s re q u es t s that Be rry leave her pr operty

when he knocked on he r fr ont door constituted notice that B err

y did not have her

consent to ente r the prope rty
. Whil e the e vidence supports a finding that Be rry was on noti ce that he did not have Cottrell’s consent to enter her property , one element of cr iminal trespass appe ars to be la cking in the fac ts of this case. The criminal trespa ss statute define s “entry” as “ the intrusion of the entire body .” Id. § 30 .0 5(b )(1) . Wh ile Do min iqu e te sti fi e d th a t B e rr y pla c e d h is f

oo t in the do or wh e n Co ttr e ll
a tte mpt e d to c los e it, the re is n o e vid e nc e that Be rr y su c c e e de d in ent e ri ng Cot tr e ll’ s h ome wi th h is
e n t i r e b o dy. Howeve r, Be rry ’s attempt to e nter Cottrell’s home by placing his foot in the door, afte r 4
rec eiving notice that he did not have eff ective c onsent, is sufficient to es t ab l ish the elements of

a tt e mpted cr iminal trespass. Se e Aguil ar v . S tat e , 682 S.W .2d 556, 559 (Tex. Crim. App. 1985)8

(Clinton, J ., dissenting) (stating that elements of attempted criminal trespa ss are prese nt when “one intends to e nter a building of another without e ffe ctive consent, having notice that entr y is forbidden,
a nd g oe s b e y on d p re pa

ri ng to d o s o” ) A s a re su lt, a ll of the e le me nts of a tte mpt e d c ri min a l tr e sp a ss
wer e pre sent when B err

y attempted to enter

Cottrell’s property by placing his f oot in the door

afte r
rec eiving notice that he did not have consent to ente r.

I n Be rry ’s testimony , he stated that he broke Cottrell’s window beca use he was ang ry at her for telling police off

icer s that she did not want him o n her pr operty . Both Cottrell and he r sister testified that when Be rry burg larized Cottrell’s home a few hours afte r his attempted criminal tr e sp a ss— fo r wh ic h Cottr e ll ha d ca lle d the po lic e —B e rr y wa s shoutin g a ng ri ly

a nd ma kin g thr e a ts
on he r l if e . Cottr e ll als o tes tif

ie d tha t Be rr

y ma de re pe a te d thr e a te nin g ph on e c a lls to he r h ome in the time betwee n his attempted criminal tre spass and the burg lary
. I n light of this evidenc e, viewe d in the light most favor able to the ve rdict, we hold that a rational jury could have deter

mined bey ond
a re a so na ble do ub t that B e rr

y burg lari zed Cot tr e ll’ s ho me in re ta liatio n fo r he r int e nt t o r e po rt him fo r the of fe ns e of a tte mpt e d cr imi na l tre sp a ss. Th e e vid e nc e is the re fo re le g a lly su ff ic ie nt t o u ph old the jury ’s re taliation finding. See Swe aringen , 101 S.W .3d at 95. B err y ’s first issue is overr

uled. Ineffec tive Assistance of Counsel

I n his second issue on appe al, B err y arg ues that he w as denie d the ef fec tive assistance of counse l during the punishment phase be cause a conf lict of interest arose when the State prese nted
e vid e nc e of

B e rr y ’s a ssa ult on c ouns e l. Th is ev ide nc e c on sis te d of a vid e o r e c or din g of the a ssa ult , as we ll as testimony

from a she riff’ s deputy

who witnessed the inc iden t
. Berry takes the position that counsel’s status as t he victim of an extraneous offense created an a ctual conf lict of interest that adver sely aff ecte d counsel’s pe rfor

mance .9 Upon lear ning that the State intended to offe r evide nce of the assault as a

n extraneous of fe ns e , d e fe ns e c ouns e l im me diate ly ob je c te d, emp has izing that he did no t w ish to f ile a ssa ult char g es ag ainst Be rry , that he had not r ece ived prior notice that such evide nce w ould be introduce d,
a nd that “ it’ s o f s uc h a hig hly pr e jud ic ia l nat

ur e a nd c re a te s suc h a

pa ra do x of p ro ble ms f

or me to eff ectively repr esent h i m that Ithink it would be improper to prese nt that to the jury .” Counsel objected a g ain at the time the video w as off ere d as evide nce, sta ting, “ Iobject on the ba sis of
re le va nc e . A lso , it ’s n ot a

n a c c ur a te re c or din g be c a us e it d oe sn ’t

have the so un d a

nd it a lso doesn’t—it’s one of

those that doesn’t show a ll the movements. I t’s just a time lapse.” Eac h of these objec tions was overr uled. I n cross-e x amining the deputy who witnessed the a ssault, counsel
co n fi rm ed t h at he had not r equire d medical attention and had informe d the deputy that he did not wish t o p re s s ch ar g es. F inally , in his closing stateme nt, counsel sug g ested that the a ssault was
a n in dic a tor

of “ se ri ou s me nta l he a lthiss ue s, ” wh ic h s ho uld be ta ke n in to c on sid e ratio n in
a sse ssi ngpunis hme nt.

W h i l e cla ims of ineffe ctive assistanc e of c ounsel are usually analy zed under the Strickland standard, w hich re quires the appellant to establish that, but for counse l’s unprofe ssional
err ors, the re sult of the proce eding w o uld have be en diffe rent, see Strick land v. W

ashington , 466 U.S. 668, 694 ( 1984), a lower standard a

pplies when the c laim of ineff ective a ssistance is base d on an alleg ed conf

lict of interest. Ac os ta , 2 3 3 S.W .3d at 352-53. In order to preva il on an ineffe ctive-a ssistance c laim based on a conflict of inter est, the appe llant must show that c o u nsel

“ a c tiv e ly re pr e se nte d c on fl ic tin g int e re sts ” a nd that c ouns e l’ s p e rf

or mance at tri a l w a s “ a dv e rs e ly aff ecte d” by the conf lict. Cuyler , 446 U.S. at 349-50.10 I n lig ht of thi s sta

nd a rd , we mus t fi rs t a dd re ss wh e the r tr ia l c ounsel act iv ely repr esente d conflicting interests in the punishment phase of trial. Be rry

argues that counse l was conflicte d by

his own self-inter est as a v i ct i m of an e x trane ous offe nse, but fails to explain how counsel, who state d on the re cord that he did not wish to press charg es, could persona lly benef it from
a dmi ssi on

of the a ssa ult e vid e nc e . T he re fo re , it is no t re a dil y a pp a re nt h owc ouns e l’ s se lf -i nte re st
c on fl ic te d w ithhis re pr e se ntatio n o f Berry
. Th e re c or d, fa r f ro m in dic a tin g that c ouns e l a c tiv e ly repr esente d his own s elf-inter est, ref lects t hat counsel consistently repr esente d Be rry ’s intere sts by objecting to evidence of the a ssault and attempting to minim ize its eff ect on the jur

y , as desc ribed above. B eca

use B err y has not established that his t ri al counse l actively repr esente d his own selfinterest during the punishment phase of trial, his ineffe ctive-a ssistance c laim fails. See Cuyler , 446 U.S. at 249. Be rry ’s sec ond issue on appea l is overruled.
CO NC LU SION Be cause we ha

ve dete rmined that the e vidence was lega lly sufficie nt to support the jury ’s finding of reta liation a nd that Be rry did not rec eive ineffe ctive assistance of counse l, we af firm the judg ment of convic tion.

__________________________________ _ _ _ _ _ _ _ __ Be fore J ustices Waldrop, Henson a nd Onion* Affir med Filed: F ebrua

ry 4, 2009 Pub lis h * Be fore J ohn F. Onion, Jr., Presiding Judge (re tired), Te x as Court of Criminal Appea ls, sitt ing by assig nment. See Tex. Gov’t Code Ann. § 74.003(b) ( West 2005).