Ladouceur, David Chance v. State

• Court: Court of Appeals of Texas
• Decided: June 25, 2013
• Docket: 05-12-00366-CR
• Status: Published

Opinion

Affirmed; Opinion Filed June 25, 2013.

In The Court of Appeals Fifth District of Texas at Dallas ──────────────────────────── No. 05-12-00366-CR ────────────────────────────

DAVID CHANCE LADOUCEUR, Appellant V.

THE STATE OF TEXAS, Appellee

═════════════════════════════════════════════════════════════ On Appeal from the County Court at Law No. 2 Grayson County, Texas Trial Court Cause No. 2010-2-1224 ═════════════════════════════════════════════════════════════

MEMORANDUM OPINION

Before Justices Moseley, Francis, and Lang Opinion By Justice Moseley

A jury convicted David Chance Ladouceur of criminal trespass and assessed punishment at

365 days in jail and a $4000 fine. In four issues, Ladouceur asserts the evidence is legally

insufficient to support the conviction, the evidence is legally insufficient to support a Class A

misdemeanor conviction, and the trial court erred by denying his motion for a mistrial and by

admitting photographs of his tattoos. The background of the case and the evidence adduced at trial

are well known to the parties; thus, we do not recite them here in detail. Because all dispositive

issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.

BACKGROUND

The record contains evidence that about a month before his arrest, Ladouceur was involved

in a disturbance at an apartment complex in Denison. DPS Trooper Kevin Galyon, who worked

as a courtesy officer at the apartments, called the Denison police about the incident. The apartment

manager, Terry Cooley, was also present and gave Ladouceur notice that he was not a resident and

would not be allowed to come back to the property.

About 4:00 a.m. on August 28, 2010, Galyon received a phone call about a disturbance at

the apartments. He looked out his window and saw Ladouceur on the property trying to get into

his girlfriend’s car. Galyon recognized Ladouceur and believed he was in violation of the

criminal trespass warning. Galyon, wearing a shirt with “State Trooper” on it and carrying his

sidearm, left his apartment to search for Ladouceur. Galyon found Ladouceur upstairs near a

stairwell at the apartments. Ladouceur acknowledged that he was not supposed to be on the

property. When Ladouceur tried to make a phone call, Galyon looked down and saw a handgun

on the ground between Ladouceur’s legs. Galyon drew his firearm and told Ladouceur to step

away from the handgun. Galyon called police, but Ladouceur managed to run away on foot

before they arrived.

SUFFICIENCY OF THE EVIDENCE

In his first two issues, Ladouceur attacks the sufficiency of the evidence supporting the

jury’s verdict. We apply the appropriate legal sufficiency standard of review. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011), cert. denied, 132 S. Ct. 1763 (U.S. 2012). In a legal sufficiency review, “we view all of the

evidence in the light most favorable to the verdict to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Adames, 353

B2B S.W.3d at 860. This standard “recognizes the trier of fact’s role as the sole judge of the weight

and credibility of the evidence after drawing reasonable inferences from the evidence.” Id. We

measure the sufficiency of the evidence by the elements of the offense as defined by a

hypothetically correct jury charge. See id. (citing Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997)).

As applicable here, a person commits criminal trespass if the person enters on property of

another without effective consent and the person had notice that entry was forbidden. TEX. PENAL

CODE ANN. § 30.05(a)(1) (West Supp. 2012). Notice means “oral or written communication by

the owner or someone with apparent authority to act for the owner.” Id. § 30.05(b)(2)(A).

“Owner” means 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. Id. § 1.07(a)(35)(A).

A. Notice That Entry was Forbidden

In his first issue, Ladouceur argues the evidence is legally insufficient because the State

failed to prove he had notice that entry was forbidden. He claims the State did not prove that he

received notice from the owner or someone with apparent authority from the owner.

Galyon testified that Cooley, the apartment manager, had authority to and did give a

criminal trespass warning to Ladouceur not to come back on the property. Galyon also testified

that residents of the apartments were given a phone number to call Galyon about complaints or

issues on the property. The owner hired Galyon as a courtesy officer because the owner wanted at

least one law enforcement officer living on the property to help the apartment manager make the

place safe and to give warnings if necessary. Galyon had given trespass warnings since the time

he was hired at the property with the knowledge of the owner. Galyon talked to the owner several

months after this incident and the owner expressly told Galyon he had the right to do anything

necessary to keep the property safe.

B3B We conclude a rational jury could conclude from this and other evidence that either or both

of Cooley or Galyon had apparent authority from the owner to give notice that entry on the

property was forbidden. See Williams v. State, 138 S.W.3d 43, 45 (Tex. App.—Waco 2004, no

pet.) (police officer had apparent authority to give trespass warning where apartment manager

asked police to do so). It is well settled that an owner or property manager may delegate to

security guards or other agents the authority to keep people off the property. See State v. Jackson,

849 S.W.2d 444, 446 (Tex. App.— San Antonio 1993, no pet.).

B. Deadly Weapon

Criminal trespass is normally a Class B misdemeanor. TEX. PENAL CODE ANN.

§ 30.05(d)(1). However, the offense is a Class A misdemeanor if the defendant “carries a deadly

weapon during the commission of the offense.” Id. § 30.05(d)(3)(B). The information alleging

Class B criminal trespass was filed December 7, 2010. In December 2011, the State filed a notice

of intent to enhance punishment with the deadly weapon allegation and also filed a motion to

amend the information. The trial court granted the motion to amend the information. The

information, as amended, included the language, “And the defendant did then and there carry a

deadly weapon during the commission of the offense.”

At the beginning of the guilt/innocence phase of the trial, the State read the information to

the jury and Ladouceur entered a plea of not guilty. The State did not read the allegation that

Ladouceur carried a deadly weapon during the commission of the offense.

At trial, Ladouceur did not object to Galyon’s testimony about finding the handgun.

When the State offered the handgun in evidence, Ladouceur objected that the State had abandoned

the deadly weapon allegation by failing to read it to the jury. Ladouceur argued that the deadly

weapon allegation increased the offense to a Class A misdemeanor and was not merely an

enhancement of punishment. The State argued the allegation was an enhancement of the

B4B punishment and a special issue for the punishment phase. The trial court overruled the objection.

The trial court’s charge to the jury at guilt/innocence did not reference the deadly weapon

allegation by definition or by separate issue.

Before the punishment hearing, the State read the deadly weapon allegation and Ladouceur

pleaded not true subject to his earlier objection. The jury answered “Yes” to the special issue

asking whether they found beyond a reasonable doubt that Ladouceur carried a deadly weapon

during the commission of the offense. The jury also assessed punishment at the maximum for a

Class A misdemeanor. See TEX. PENAL CODE ANN. § 12.021.

Ladouceur’s second issue on appeal states:

The evidence is legally insufficient to support a conviction for Criminal Trespass because the Trial Court charged the jury with the Class A Misdemeanor offense of Criminal Trespass in the punishment phase of trial, after the State abandoned the deadly weapon element when it read the information to the jury.

There is evidence that Galyon found Ladouceur on the apartment property at 4:00 a.m., that

Ladouceur acknowledged he was not supposed to be at the apartments, and that Galyon saw a

handgun on the ground between Ladouceur’s legs. From this and other evidence in the record, a

rational jury could conclude beyond a reasonable doubt that Ladouceur carried a deadly weapon

during the commission of the offense. See Adames, 353 S.W.3d at 860. Ladouceur was properly

charged with criminal trespass and given notice of the State’s intent to enhance punishment to a

Class A misdemeanor. The punishment charge defined deadly weapon and the jury found

Ladouceur carried a deadly weapon during the commission of the offense. We reject the

abandonment argument.

Ladouceur also argues there is no evidence the handgun was used in any way. However,

the plain language of the statute requires only that the accused carry a deadly weapon during

commission of the offense; it does not require that a deadly weapon be used. See TEX. PENAL

B5B CODE ANN. § 30.05(d)(3)(B).

C. Conclusion

Considering all the evidence (including that summarized above) in the light most favorable

to the verdict, we conclude a rational trier of fact could have found Ladouceur guilty beyond a

reasonable doubt of the offense of criminal trespass and that the evidence supported an affirmative

finding on the special issue. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860.

We overrule Ladouceur’s first and second issues.

MOTION FOR MISTRIAL

Ladouceur’s third issue argues the trial court abused its discretion by overruling his motion

for a mistrial. The State called Galyon on rebuttal to respond to Ladouceur’s contention that his

girlfriend dropped the handgun outside her apartment. Galyon testified he did not believe that

version of events because “he had evidence before that [Ladouceur] liked to carry a pistol.”

Ladouceur objected to this statement and the trial court sustained the objection and instructed the

jury to disregard it. The trial court denied Ladouceur’s motion for a mistrial.

Applying the appropriate factors, the trial court could reasonably have concluded the

prejudicial effect of the brief reference to Ladouceur’s prior conduct was slight, that the instruction

to disregard was sufficient to cure the prejudice, and that absent the misconduct, the outcome

would likely have been the same. See Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998). The trial court sustained Ladouceur’s objection and instructed the jury to disregard the

statement. Such prompt curative action normally cures any prejudice resulting from improper

testimony regarding an extraneous offense. See Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim.

App. 2000) (“Ordinarily, a prompt instruction to disregard will cure error associated with an

improper question and answer, even one regarding extraneous offenses.”). Nothing in this record

indicates the jury was unable to follow the instruction and the testimony was not so inflammatory

B6B that the instruction could not cure its prejudicial effect. We conclude the trial court did not abuse

its discretion by denying the motion for mistrial. See Hawkins v. State, 135 S.W.3d 72, 76–77

(Tex. Crim. App. 2004).

We overrule Ladouceur’s third issue.

ADMISSION OF PHOTOGRAPHS

In his fourth issue, Ladouceur argues the trial court abused its discretion by admitting

photographs of his tattoos. Galyon identified Ladouceur at trial, but said Ladouceur had changed

his appearance drastically since the incident. Galyon described Ladouceur as having a beard and

dark hair at trial, but at the time of the incident, Ladouceur’s head and face were shaved and he was

covered with tattoos on his head, neck, and arms. The State then offered two photographs of how

Ladouceur looked at the time. The photographs show Ladouceur wearing a t-shirt; his head is

bald and his face shaved. The photographs show tattoos covering his scalp, face, and neck. 1

Ladouceur objected to the photographs under evidence rule 403. TEX. R. EVID. 403. The State

said the photographs were important to explain how Galyon knew Ladouceur by sight. The trial

court overruled the objection. Galyon later testified that after receiving the call about a

disturbance, he looked out his window and recognized Ladouceur by sight.

We review the trial court’s ruling admitting or excluding evidence for an abuse of

discretion. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). Relevant evidence may

be excluded if the probative value of the evidence is “substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403; Gigliobianco v. State,

210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (listing factors in balancing analysis required by

1 The tattoos appear to be spider webs, bats, various lines and patterns, a teardrop, dollar sign, and some lettering.

B7B rule 403). The trial court must balance the probative force of and the proponent’s need for the

evidence against any tendency the evidence has to suggest an improper basis for decision, to

confuse or distract from the main issues, or to be given undue weight by a jury not equipped to

evaluate its probative force, and the likelihood of consuming an inordinate amount of time or

repeating evidence already admitted. Gigliobianco v. State, 210 S.W.3d at 641–42.

Ladouceur does not contend the photographs had no probative value and the court could

have concluded they were relevant to show identity and to explain how Galyon could easily

recognize Ladouceur. Ladouceur’s argument on appeal is primarily that the State did not need the

photographs to prove identity because Galyon identified Ladouceur as the defendant before the

State offered the photographs. However, need for the evidence is only one of the several factors

the trial court must consider in deciding whether to admit evidence. See Gigliobianco, 210

S.W.3d at 641–42.

The trial court could have concluded from this record that the photographs were relevant

and the State had a need to explain to the jury how Galyon could so easily recognize Ladouceur in

the early morning hours when he looked out his window. The trial court could also have concluded

that the tendency of the evidence to suggest an improper basis for decision or to confuse or distract

from the main issues was slight. Presentation of the photographs did not take an inordinate

amount of time at the guilt/innocence phase. Nor does the record indicate the jury was

unequipped to evaluate the probative force of the photographs. We conclude the trial court did

not abuse its discretion by admitting the photographs.

We overrule Ladouceur’s fourth issue.

B8B CONCLUSION

We affirm the trial court’s judgment.

/Jim Moseley/ JIM MOSELEY JUSTICE

Do Not Publish Tex. R. App. P. 47.2(b) 120366F.U05

B9B S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DAVID CHANCE LADOUCEUR, On Appeal from the County Court at Law No. Appellant 2, Grayson County, Texas Trial Court Cause No. 2010-2-1224. No. 05-12-00366-CR V. Opinion delivered by Justice Moseley. Justices Francis and Lang participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 25th day of June, 2013.

B10B