Opinion
NO. 01-16-00301-CR
09-07-2017
CLAUDIA KRISTINE ESQUIVEL, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 212th District Court Galveston County, Texas
Trial Court Case No. 14CR1878
MEMORANDUM OPINION
Appellant Claudia Kristine Esquivel was charged with murder. See TEX. PENAL CODE § 19.02(b). The indictment included three different legal theories to support a murder conviction, including felony murder. The trial court submitted a jury charge that included all three grounds for a murder conviction. The jury convicted Esquivel of murder with a deadly weapon and assessed punishment at 27 years in prison and a fine of $10,000. Esquivel filed a motion for new trial alleging that her trial counsel rendered ineffective assistance of counsel. The trial court denied her motion.
On appeal, Esquivel contends that the trial court erred by submitting to the jury an invalid legal theory of felony murder. She also argues that her trial counsel was ineffective.
Because the jury charge did not contain an invalid theory of felony murder, and the trial court did not abuse its discretion in denying Esquivel's motion for new trial alleging ineffective assistance of counsel, we affirm the judgment of the trial court.
Background
Claudia Kristine Esquivel lived with her boyfriend, Christopher Chapa, in Galveston County. Early one morning, Esquivel's mother called 911, and she reported that Chapa was beating up her daughter. Police officers responded to the 911 call within minutes and arrived at the house shared by Esquivel and Chapa. Initially, the officers knocked on the door to the residence, but nobody answered. The officers entered the house and found Chapa on the ground with his head against the wall. Chapa was "agonal breathing," which is characteristic of a "body dying," and he was bleeding from a gunshot wound to his head. The officers also found a 9mm semiautomatic pistol with its magazine missing next to Chapa. The officers found the magazine and a large knife in a laundry basket in another room. The officers also found a bullet that had been shot into the drywall in a room in the house.
Paramedics arrived, stabilized Chapa, and transported him to the hospital. Eventually, he died as a result of the gunshot wound to his head. In connection with Chapa's death, police located and detained Esquivel.
During Esquivel's detention, the police swabbed her hands for gunshot residue and blood. She gave two video-recorded statements to the police. According to her statements, she and Chapa had been fighting throughout the day before the shooting. At some point during the evening, they argued because Chapa said things to Esquivel's son that she did not like. When Chapa returned to the house at about 2 a.m., he and Esquivel resumed their argument.
According to Esquivel, Chapa got very angry and began cursing, calling her names, and insulting her son. Esquivel's son was asleep in the next room. Esquivel also stated that Chapa slammed things and pushed her around. Eventually, Esquivel told Chapa to leave, and he continued pushing her and began grabbing his things. She then grabbed Chapa's gun off of a desk and "used it" by pointing it at him and motioning for him to leave the house. She said she removed the magazine. She also said that she did not think the gun was "charged," meaning she did not think there was a bullet in the chamber. Chapa then started "coming towards" her, and "apparently there was still one bullet in the chamber." During "a scuffle," in which they were "wrestling and fighting," she said the trigger did "get pulled" and "it caught him." In other words, the gun fired. Esquivel stated that she tried to help Chapa. She left the house with her son and called her parents. Esquivel told the police that she had shot the gun at a shooting range prior to the incident.
After further investigation, a grand jury indicted Esquivel for the murder of Chapa. The indictment included three paragraphs containing three different legal theories under which Esquivel could be found guilty of murdering Chapa, including that she committed felony murder by committing an act clearly dangerous to human life, "pointing a handgun" at Chapa, which caused his death during the commission of aggravated assault.
At a trial before a jury, the State introduced the video-recorded statements that Esquivel gave to the police. The State also called several witnesses to testify, including several forensic scientists who analyzed evidence recovered during the investigation, a detective who investigated the shooting, the medical examiner who conducted the autopsy on Chapa's body, and a firearms instructor who taught a firearms course to Esquivel prior to the shooting.
The forensic scientists analyzed several pieces of evidence recovered during the investigation, including the gunshot residue swabs taken of Esquivel's hands and the gun found at the scene. One of them testified that Esquivel "either fired a weapon, came in close proximity of a weapon being fired, or touched a surface." Another forensic scientist testified that the gun recovered at the scene functioned correctly, had a trigger pull of approximately 8 5/12 pounds, and the bullet found at the scene had been shot from that gun. He also testified that the gun's safety features included an imprinted warning that it was capable of being fired with the magazine removed, as well as a "loaded chamber window" that could be used to see whether it had a cartridge in the chamber.
The medical examiner who conducted Chapa's autopsy testified that the cause of death was a gunshot wound to the head. He also testified that the entrance wound was toward the rear of Chapa's head, and the exit wound was in his forehead. Further, he testified that he found no gun powder, "muzzle imprint," or "stippling" on Chapa's body. Based on the lack of this evidence, he concluded that the shot was "fired at some distance," at least 12 to 15 inches from the head.
One of the detectives who investigated the shooting identified several inconsistencies between Esquivel's statements and the results of the investigation. For example, the angle of the gunshot wound was inconsistent with Esquivel's statement that Chapa was coming toward her and they were wrestling at the time he was shot. She noted that Chapa did not have any defensive wounds on his body. The detective also testified that pointing a gun at someone is an act clearly dangerous to human life.
Finally, the State called a firearms instructor to testify. The instructor taught a firearms course that is required to become a police officer in Galveston. Esquivel had attended and passed the course. Everyone in the class was informed of firearm safety rules, including that a firearm always should be treated as if it were loaded. In addition, the instructor noted that Esquivel would have unloaded and "cleared" a gun during the course.
Prior to closing arguments, the trial court held a charge conference. Esquivel's trial counsel, Greg Russell, did not object to the charge, nor did he request that the court include defensive instructions on self-defense, mistake of fact, or voluntary conduct. Following the charge conference, the trial court read the charge to the jury. The jury charge contained the three legal theories contained in the indictment by which Esquivel could be found guilty of murder. Included among these three theories was the theory that she committed felony murder by committing an act clearly dangerous to human life, by "pointing a handgun" at Chapa, during the commission of aggravated assault, which caused Chapa's death.
The jury found Esquivel guilty of murder.
During the punishment phase of trial, the State called only one witness to testify, Chapa's mother. In contrast, Russell called five witnesses, including Esquivel. The four witnesses who testified on Esquivel's behalf included her mother and father, a high school teacher, and a friend. Through these witnesses Russell elicited positive testimony about Esquivel including that she was a good mother, daughter, and friend. Russell also introduced several photographs of Esquivel and her son. Russell did not ask the trial court to give a defensive instruction on sudden passion in the punishment jury charge. The jury assessed punishment at 27 years in prison.
Following the punishment phase and represented by new counsel, Esquivel moved for a new trial alleging that her trial counsel rendered ineffective assistance during both the guilt-innocence and punishment phases of trial. The trial court held a hearing on the motion. During the hearing, Esquivel introduced 27 affidavits from people who averred that they would have testified on her behalf during the punishment phase of trial. In addition, Esquivel's new counsel questioned Russell about his strategy and actions during trial. Russell testified that his primary strategy at the guilt-innocence stage of trial was to obtain a conviction for a lesser-included offense. Specifically, he attempted to demonstrate that Esquivel did not have the intent to murder Chapa, and therefore she lacked the requisite culpable mental state to be found guilty of murder. Russell based this strategy on Esquivel's statement that the shooting was accidental. Russell also testified that his strategy at the punishment stage of trial was to show a "broad picture" of Esquivel to the jury by calling her friends and family. After the hearing, the trial court denied the motion for new trial.
Esquivel appealed.
Analysis
Esquivel raises five issues challenging the trial court's judgment. In her first three issues, she contends that she suffered egregious harm because the jury charge included an invalid basis to convict her of felony murder. In her remaining two issues, she contends that her trial counsel rendered ineffective assistance of counsel during both the guilt-innocence and punishment phases of trial.
I. Jury charge
Esquivel challenges the jury charge's application paragraph regarding felony murder. In her first issue, she contends that the felony-murder application paragraph allowed her to be convicted based on conduct that does not constitute felony murder. By her next two issues, Esquivel argues that the felony-murder application paragraph allowed for her conviction based on conduct that constituted manslaughter or a lesser-included offense of manslaughter.
On appeal, jury-charge error is reviewed using a two-step process. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (en banc). First, the court determines whether error exists in the charge. Id. at 743. To determine whether there was error in the charge, it is considered "as a whole instead of a series of isolated and unrelated statements." Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995) (en banc). If error does exist, the record is reviewed to determine whether the error caused sufficient harm to require reversal of the conviction. Ngo, 175 S.W.3d at 743-44. When the defendant properly objects to the error in the charge, reversal is required unless the error was harmless. Id. at 743; see also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (en banc). If the defendant fails to object to the charge, as was the case here, we will not reverse for jury-charge error unless the record shows "egregious harm" to the defendant. Ngo, 175 S.W.3d at 743-44.
The trial court's charge must fully instruct the jury on the law applicable to the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004); see TEX. CODE CRIM. PROC. art. 36.14. A person commits the offense of felony murder if, in the course of committing a felony other than manslaughter, she commits an act clearly dangerous to human life that causes the death of an individual. TEX. PENAL CODE § 19.02(b)(3); Tata v. State, 446 S.W.3d 456, 463 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd).
With respect to her first issue, Esquivel argues that the charge authorized her conviction for felony murder based on conduct that does not constitute felony murder. The charge included the following application paragraph regarding felony murder:
. . . if you unanimously find from the evidence beyond a reasonable doubt that on or about the 16th day of June, 2014, in Galveston County, Texas, the Defendant, CLAUDIA KRISTINE ESQUIVEL, did then and there intentionally or knowingly commit or attempt to commit an act clearly dangerous to human life, to wit: pointing a handgun at CHRISTOPHER CHAPA, that caused the death of CHRISTOPHER CHAPA, and the defendant was then and there in the course of intentionally or knowingly committing a felony, to wit: Aggravated Assault, and said death of CHRISTOPHER CHAPA was caused while the defendant was in the course of and in furtherance of the commission or attempt of said felony, as alleged in the indictment . . .The charge also stated that "a person commits the offense of aggravated assault if the person uses or exhibits a deadly weapon during the commission of an assault," and it included a statement that "a person commits the offense of assault" if the person:
. . . .
THEN
you will find the Defendant Guilty of Murder as alleged in the indictment.
1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
2) intentionally, or knowingly threatens another with imminent bodily injury, including the person's spouse; or
3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.See TEX. PENAL CODE §§ 22.01(a), 22.02(a)(2) (defining aggravated assault); see also id. § 1.07(a)(17)(A) (a firearm is a deadly weapon).
Esquivel argues that the reference to causing the death of Chapa by "pointing a handgun" at him was jury-charge error because her act of pointing a gun at him was not, "under these circumstances," the "specific act" that was clearly dangerous to human life and caused his death. She argues that the act that was clearly dangerous to human life and caused his death was "discharging" the handgun or "pointing a loaded gun" at Chapa. As a result, she contends that the jury charge authorized her conviction for an act that could be considered negligent but did not constitute felony murder.
To support a felony-murder conviction, the "act clearly dangerous to human life" must be the cause of the victim's death. Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014). Whether an act is clearly dangerous to human life is measured under an objective standard, not the subjective belief of the actor. Lugo-Lugo v. State, 650 S.W.2d 72, 81 (Tex. Crim. App. 1983). To be clearly dangerous to human life, the act need only threaten or risk a resulting death. See id. at 88. The felony itself may satisfy the requirement of an act clearly dangerous to human life. Johnson v. State, 4 S.W.3d 254, 255-58 (Tex. Crim. App. 1999) (holding that same act may constitute both the underlying felony and the act clearly dangerous to human life, except manslaughter).
In this case, the State alleged that the act clearly dangerous to human life committed by Esquivel was "pointing a handgun" at Chapa. Despite Esquivel's contentions, pointing a firearm in another's direction can place that person in imminent danger of serious bodily injury, and it can constitute an act clearly dangerous to human life. See TEX. PENAL CODE § 22.05(c) (knowingly pointing a firearm in the direction of another is deadly conduct); see also Hayes v. State, No. 05-06-00980-CR, 2008 WL 204510, at *1-2 (Tex. App.—Dallas Jan. 25, 2008, no pet.) (mem. op., not designated for publication) (evidence supported deadly conduct when defendant pointed a firearm at or in the direction of the complainant); Brown v. State, No. 02-03-00289-CR, 2004 WL 1944722, at *4-5 (Tex. App.—Fort Worth Aug. 30, 2004, no pet.) (mem. op., not designated for publication) (evidence supported deadly conduct when defendant pointed a semiautomatic firearm at or in the direction of the complainant). As Judge Cochran explained in Lawson v. State:
. . . a person whose conduct causes an unintended death during the commission or attempted commission of a felony is guilty of murder. Thus, if a robber points a gun at the bank teller and the gun "accidentally" discharges, killing the bank teller, then the bank robber is guilty of murder. It matters not whether the robber intended to shoot or whether he intended to kill.64 S.W.3d 396, 397 (Tex. Crim. App. 2001) (Cochran, J. concurring) (citing Davis v. State, 597 S.W.2d 358, 361 (Tex. Crim. App. 1980)). Pointing a gun at another person, viewed under an objective standard, can be an act clearly dangerous to human life that could cause someone's death. As a result, the jury charge authorized Esquivel's conviction for an act that the jury objectively could have found to constitute an act that is clearly dangerous to human life and that caused Chapa's death.
The evidence at trial was sufficient to allow the jury to resolve the question of whether, under the circumstances of this case, Esquivel's act of pointing a handgun at Chapa was an act clearly dangerous to human life and if it caused his death. See, e.g., Depauw v. State, 658 S.W.2d 628, 633-34 (Tex. App.—Amarillo 1983, pet. ref'd). The evidence supported a rational factfinder's determination that Esquivel knew the gun was loaded, and it matters not whether she intended to fire the weapon or to kill Chapa. The charge properly tracked the language of the felony-murder statute by requiring the jury to find that the act Esquivel was alleged to have committed constituted an act clearly dangerous to human life and that caused Chapa's death. See TEX. PENAL CODE § 19.02(b)(3); Tata, 446 S.W.3d at 463.
In her second and third issues, Esquivel contends that the felony-murder application paragraph allowed the jury to convict her of felony murder based on conduct constituting manslaughter or a lesser-included offense of manslaughter.
'"A conviction for felony murder under section 19.02(b)(3), will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter."' Lawson, 64 S.W.3d at 396 (quoting Johnson, 4 S.W.3d at 258). A person commits the offense of manslaughter if she recklessly causes the death of an individual. See TEX. PENAL CODE § 19.04.
The statutory underlying felony offense with which Esquivel was charged was an intentional and knowing aggravated assault. Esquivel contends that such conduct constitutes manslaughter or a lesser-included offense of manslaughter.
In Lawson, an indictment alleged that the defendant had killed the victim while committing an intentional and knowing aggravated assault of that person. 64 S.W.3d at 396. The issue before the court was whether "intentional and knowing" aggravated assault could constitute the underlying offense for a conviction for felony murder. See id. at 396-97. The court concluded that an intentional and knowing "aggravated assault is not a lesser included offense of manslaughter, nor is it statutorily includable in manslaughter." Id. at 397. Therefore, intentional and knowing aggravated assault can constitute the underlying offense for felony murder. See id. at 396-97.
The felony-murder paragraph required the jury to find that Esquivel committed an act clearly dangerous to human life that caused Chapa's death. "Pointing a handgun" at someone in the circumstances of this case could be objectively determined to be an act clearly dangerous to human life that could have caused the death of Chapa. Intentional and knowing aggravated assault is not includable in manslaughter and is not a lesser-included offense of manslaughter. We thus conclude that the jury charge's application paragraph regarding felony murder was not erroneous, and the jury charge did not contain an invalid legal theory of murder. See id. at 396-97. Accordingly, we overrule Esquivel's first, second, and third issues.
II. Ineffective assistance of counsel
By her fourth and fifth issues, Esquivel argues that her trial counsel rendered ineffective assistance of counsel during both the guilt-innocence and punishment phases of trial.
When a claim of ineffective assistance of counsel is asserted by a defendant in a motion for new trial, and that motion is denied after an evidentiary hearing, the denial of the motion is reviewed under an abuse-of-discretion standard. See Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). "We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement." Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007); see also Anderson, 193 S.W.3d at 37-39. We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable. Holden, 201 S.W.3d at 763. When, as in this case, the trial court makes no findings of fact regarding the denial of a motion for new trial, we '"impute implicit factual findings that support the trial judge's ultimate ruling on that motion when such implicit factual findings are both reasonable and supported in the record."' See Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005) (quoting Charles v. State, 146 S.W.3d 204, 213 (Tex. Crim. App. 2004)). A trial court only abuses its discretion in denying a motion for new trial when no reasonable view of the record could support its ruling. Webb, 232 S.W.3d at 112. The trial court was the "sole factfinder and judge of . . . credibility at the motion for new trial hearing, both during live testimony and in affidavits." See Riley v. State, 378 S.W.3d 453, 459 (Tex. Crim. App. 2012).
Claims that a defendant received ineffective assistance of counsel are governed by the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Strickland mandates a two-part test: (1) whether the attorney's performance was deficient, i.e., whether counsel made errors so serious that he or she was not functioning as the "counsel" guaranteed by the Sixth Amendment, and if so, (2) whether that deficient performance prejudiced the party's defense. 466 U.S. at 687, 104 S. Ct. at 2064. "The defendant has the burden to establish both prongs by a preponderance of the evidence; failure to make either showing defeats an ineffectiveness claim." Shamim v. State, 443 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (citing Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011)).
A reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and the appellant bears the burden to overcome the presumption that, under the circumstances, the challenged action was a result of sound trial strategy. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. An accused is not entitled to perfect representation, and a reviewing court must look to the totality of the representation when gauging trial counsel's performance. Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013).
a. Guilt-innocence phase
In her fourth issue, Esquivel contends that her trial counsel, Greg Russell, rendered ineffective assistance of counsel during the guilt-innocence phase of trial. She identifies several aspects of Russell's representation that she claims were deficient, including that he failed to object to the jury charge's application paragraph regarding felony murder, and he failed to request defensive jury instructions on self-defense, mistake of fact, and voluntary conduct.
i. Felony-murder paragraph
Esquivel argues that Russell rendered ineffective assistance of counsel because he failed to object to the allegedly erroneous application paragraph regarding felony murder. Esquivel's contentions in this issue are based on her arguments in her first, second, and third issues by which she argued that the felony-murder paragraph authorized her conviction for conduct that did not constitute felony murder. We have concluded, however, that the jury-charge paragraph regarding felony murder was not erroneous. Accordingly, we hold that Russell did not render deficient assistance by failing to object to this aspect of the jury charge. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
ii. Affirmative-defense instructions
Next, Esquivel contends that Russell rendered ineffective assistance of counsel because he failed to request jury instructions on self-defense, mistake of fact, and voluntary conduct during the guilt-innocence phase of trial.
A defendant is entitled to an instruction on a defensive issue if it is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). "[A] defense is supported (or raised) by the evidence if there is some evidence, from any source, on each element of the defense that, if believed by the jury, would support a rational inference that that element is true." Shaw v. State, 243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007).
Even if the law permitted counsel to obtain an instruction on self-defense, mistake of fact, or voluntary conduct, the failure to request one of those instructions does not mean counsel was ineffective because defensive issues "frequently depend upon trial strategy and tactics." See Tolbert v. State, 306 S.W.3d 776, 779-82 (Tex. Crim. App. 2010); see also Vasquez v. State, 830 S.W.2d 948, 950 n. 3 (Tex. Crim. App. 1992) ("[J]ust because a competent defense attorney recognizes that a particular defense might be available to a particular offense, he or she could also decide it would be inappropriate to propound such a defense in a given case."). The test for determining whether the decision not to request a defensive instruction is whether it was objectively unreasonable for counsel not to ask for it. See Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064-65.
Esquivel argues that Russell's representation of her was deficient because he failed to request a self-defense instruction. A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. TEX. PENAL CODE § 9.31(a). In Ex parte Nailor, the defendant was convicted of misdemeanor assault. 149 S.W.3d 125, 128 (Tex. Crim. App. 2004). The Court found that the defendant's trial counsel was not ineffective for failing to request a self-defense instruction. Id. at 132-34. In reaching this conclusion, the Court noted that the defendant testified to "the lack of a culpable mens rea" at trial. Id. at 133-34. Because the defendant's testimony centered on a lack of intent, "i.e., it was an accident," the court concluded that his trial counsel was not deficient in failing to request a self-defense instruction or for relying on the defensive position raised by the defendant's testimony. Id. at 134.
In this case, the State introduced two video-recorded statements that Esquivel gave to the police after Chapa's death. In both recordings, Esquivel maintained that she did not intend to shoot Chapa and that it was an accident. Further, during the hearing on the motion for new trial, Esquivel's trial counsel testified that he did not request a self-defense instruction because of Esquivel's statements that Chapa's death occurred as the result of an accident. He testified that his overall trial strategy was to show that Esquivel lacked the requisite intent to murder Chapa. Because Russell relied upon the defensive position raised by Esquivel's statements, we conclude that he was not ineffective for failing to request a self-defense instruction. See id. at 132-34.
Esquivel also argues that Russell rendered ineffective assistance because he did not request an instruction on the defense of mistake of fact despite her testimony that she thought the gun was not loaded when she pointed it at Chapa. With regard to mistake of fact, the Penal Code provides that:
(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.TEX. PENAL CODE § 8.02. Esquivel asserted that she thought the gun was unloaded at the time she pointed it at Chapa. The State, however, presented evidence that Esquivel had used the gun on previous occasions and that she had taken, and passed, a firearms course required to become a police officer. Further, the State presented evidence that the gun had a "loaded chamber window." The user of the gun could use this window to see if the gun was loaded. This evidence undermined Esquivel's statements that she believed the gun was unloaded. Therefore, Russell reasonably could have decided not to rely upon a mistake-of-fact theory or request an instruction about that defense. See Okonkwo v. State, 398 S.W.3d 689, 695-97 (Tex. Crim. App. 2013).
(b) Although an actor's mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.
Finally, Esquivel contends that Russell provided ineffective assistance because he failed to request an instruction on voluntary conduct. A person commits a criminal offense only if he voluntarily engages in conduct, including an act, an omission, or possession. TEX. PENAL CODE § 6.01(a). Voluntariness is defined as "the absence of an accidental act, omission or possession." Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993). A voluntary act plus a culpable mental state is required for a person's conduct to be criminal. See TEX. PENAL CODE §§ 6.01, 6.02. Esquivel contended that the gun fired during "a scuffle" between her and Chapa. But the gun did not have a hair trigger. It required over eight pounds of pressure to fire. In addition, the State presented evidence indicating that the bullet entered the back side of Chapa's head and that he did not have marks or residue consistent with him being near the gun at the time it fired. This evidence undermined Esquivel's statement that the gun accidently fired during "a scuffle" between her and Chapa.
Russell's choice to focus on a culpable mental state rather than self-defense, mistake of fact, or voluntariness cannot be said to fall below the standard of reasonable professional assistance, especially when the evidence to support the other theories was not strong, and when his trial strategy focused on the State's failure to show intent. See Dannhaus v. State, 928 S.W.2d 81, 85-87 (Tex. App.—Houston [14th Dist.] 1996, pet. ref'd). Russell testified that his strategy was to seek a conviction for a lesser offense. Because Esquivel told the police the shooting was an accident, Russell attempted to demonstrate that she did not act intentionally or knowingly when Chapa was shot. Therefore, he was attempting to prove that Esquivel did not have the requisite culpable mental state at the time of the shooting to be found guilty of murder, but instead should be convicted of a lesser offense requiring a less culpable mental state. Given this approach, it could have been more effective to focus the jury's attention on lack of mental state than to risk confusing the jury with instructions on other issues that were not well supported by the evidence. See id. at 87. Under the circumstances, a strategy of "damage control" was not objectively unreasonable. See Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992) (trying to persuade jury to find defendant guilty of lesser offense can be a sound trial tactic). Accordingly, based on the record, the trial court reasonably could have found that Esquivel did not meet her burden to overcome the strong presumption that Russell's conduct fell within the wide range of reasonable professional assistance and that his actions were the result of sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Thus, Esquivel did not satisfy the first prong of Strickland, and the trial court did not abuse its discretion in refusing to grant her new-trial motion. See id. Thus, we overrule Esquivel's fourth issue.
b. Punishment phase
Esquivel contends in her fifth issue that Russell rendered ineffective assistance of counsel during the punishment phase. She notes several actions Russell failed to take during punishment that allegedly demonstrated his ineffectiveness, including that he failed to develop a sudden passion defense and he failed to investigate and present mitigating evidence.
i. Sudden-passion defense
Esquivel argues that Russell was ineffective by failing to request a jury instruction on sudden passion at the punishment phase. At the punishment stage of a murder trial, the defendant may raise an issue as to "whether he caused the death under the immediate influence of sudden passion arising from an adequate cause." TEX. PENAL CODE § 19.02(d). "If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree." Id. "Sudden passion" means "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Id. § 19.02(a)(2). "Adequate cause" means "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). "A defendant's testimony alone is sufficient to raise a defensive issue requiring an instruction in the charge." Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App. 2015).
In order to demonstrate that Russell rendered ineffective assistance of counsel by failing to request an issue on sudden passion, Esquivel must demonstrate a reasonable probability that, but for counsel's failure to request the instruction, she would have received a less harsh sentence. See Newkirk v. State, 506 S.W.3d 188, 197-98 (Tex. App.—Texarkana 2016, no pet.). This means that she must establish that she would have received the sudden-passion instruction had counsel requested it, and that upon hearing the instruction the jury would have imposed a lesser sentence. Id. at 198.
Esquivel argues that the evidence introduced at trial raised the issue of sudden passion. In her statements to the police she indicated that she and Chapa were fighting, Chapa was calling her son bad names, and she wanted him to leave. Esquivel stated that she was angry. But she also denied that she grabbed the gun because Chapa angered her, and she indicated that it was just "basically another fight."
Ordinary anger does not justify a sudden-passion instruction. Dukes v. State, 486 S.W.3d 170, 180-81 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Hernandez v. State, 127 S.W.3d 206, 211-14 (Tex. App.—Houston [1st Dist.] 2003, pet. ref'd). Based on Esquivel's statements, a reasonable view of the record indicates that Chapa's actions might have been a cause for anger, but they would not drive a person of ordinary temper to violent passion. See Dukes, 486 S.W.3d at 181. Thus, the trial court reasonably could have concluded that Russell did not render ineffective assistance of counsel by failing to request a sudden-passion instruction because there was inadequate evidence of provocation. See id.
Esquivel also argues that Russell was ineffective for failing to elicit testimony from her that would have raised the issue of sudden passion. As noted, defensive issues "frequently depend upon trial strategy and tactics." See Tolbert, 306 S.W.3d at 780. Russell's testimony indicated that his trial strategy was to demonstrate that Esquivel lacked the requisite intent to commit murder and that the shooting was an accident. In doing so, he relied upon Esquivel's statements to the police that the shooting was an accident.
Esquivel contends that a trial strategy based on an accidental shooting does not preclude the submission of a sudden-passion instruction. See Trevino v. State, 100 S.W.3d 232, 239-40 (Tex. Crim. App. 2003). But Russell explained that in his judgment, both he and Esquivel would have lost credibility with the jury had he argued at guilt-innocence that the shooting was an accident and then argued at punishment that she intentionally shot Chapa in a fit of passion and rage. Russell reasonably could have concluded that those two theories were inconsistent. Instead, Russell relied upon the evidence that the shooting was an accident, and he made the strategic decision to give the jury a "broad picture" of Esquivel during the punishment stage. See Nailor, 149 S.W.3d at 134.
Based on the totality of the representation, the trial court could have concluded that Russell did not render objectively unreasonable professional representation by failing to request an instruction on sudden passion or by failing to elicit evidence that would have strengthened a sudden-passion defense. See Dukes, 486 S.W.3d at 181; see also Nailor, 149 S.W.3d at 134. Accordingly, the trial court did not abuse its discretion by refusing Esquivel's motion for new trial on these issues. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Johnson, 169 S.W.3d at 239-41.
ii. Mitigation evidence
Finally, Esquivel argues that Russell rendered ineffective assistance of counsel by failing to perform a reasonable investigation into possible mitigation evidence and witnesses. At the hearing on her motion for new trial, she introduced affidavits from numerous individuals who averred that they would have testified on her behalf at the punishment phase of trial if they had been asked to do so. She contends that Russell's performance was deficient because he failed to discover, interview, and investigate these potential witnesses at the punishment phase. Additionally, Esquivel contends that Russell's performance was deficient because he failed to investigate her past and discover that she had been sexually abused as a child.
An attorney representing a criminal defendant has a duty to make an independent investigation of the facts of the case. McFarland v. State, 928 S.W.2d 482, 501 (Tex. Crim. App. 1996); Ex parte Duffy, 607 S.W.2d 507, 516-17 (Tex. Crim. App. 1980). This includes conducting a legal and factual investigation and seeking out and interviewing potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990). An attorney also must conduct an adequate investigation into potential mitigation evidence. Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S. Ct. 2527, 2536 (2003); Goody v. State, 433 S.W.3d 74, 80-81 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). In considering whether trial counsel conducted an adequate investigation for potential mitigation evidence, a court focuses on whether the investigation supporting counsel's decision not to introduce mitigation evidence was reasonable. Wiggins, 539 U.S. at 522-23, 123 S. Ct. at 2536; Goody, 433 S.W.3d at 80. An attorney's decision not to investigate or to limit the scope of the investigation is given a "heavy measure of deference" and is assessed in light of all of the circumstances to determine whether reasonable professional judgment would support the decision. Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. But failure to uncover and present mitigation evidence cannot be justified when counsel has not conducted a thorough investigation of the defendant's background. Shanklin v. State, 190 S.W.3d 154, 164 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd).
During the punishment phase of trial, Russell called four witnesses to testify on Esquivel's behalf. These witnesses included her mother and father, one of her high school teachers, and one of her friends. These witnesses testified about Esquivel's good qualities, including being a good and loving daughter, mother, and friend. Her parents testified that she had never been in trouble previously, and her teacher testified about how she was dependable and an excellent student. Russell also introduced several photographs of Esquivel and her son. In addition, Esquivel also testified during the punishment phase. She testified about her son and how sorry she was for what happened.
The affidavits from additional witnesses generally consisted of information similar to that presented by the witnesses Russell called during the punishment phase, including that Esquivel was a good person and friend. In addition, the court admitted into evidence an affidavit from Esquivel in which she averred that Russell never "broached the subject of what he intended to do" on her behalf at the punishment stage until "immediately before final argument in the guilt-innocence stage," when he turned to her and asked who she had to speak for her.
In contrast to Esquivel's affidavit and the numerous other affidavits she introduced, Russell testified that he talked with Esquivel's family specifically about punishment witnesses, and he received some of the names of people included within the affidavits she produced. Russell further testified that he met with nine or ten of Esquivel's friends and family prior to the punishment phase. From this group of people he picked the five people that he thought would convey to the jury the "broad picture" of his client.
Esquivel relies on Lair v. State, 265 S.W.3d 580 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd), and Shanklin v. State, 190 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd), in support of her contention that Russell rendered ineffective assistance of counsel by failing to interview all of the 27 people who provided affidavits indicating that they would have testified on her behalf at punishment. Lair and Shanklin, however, presented distinguishable factual scenarios. In Lair, the defendant's trial counsel called only one witness at the punishment phase of trial. 265 S.W.3d at 593. Further, his trial counsel submitted an affidavit in which he averred that he knew about 6 to 10 possible witnesses he could have called, but he did not investigate or interview them. Id. at 594. In Shanklin, the defendant submitted affidavits from 20 potential witnesses who were willing to testify on his behalf. 190 S.W.3d at 163. Trial counsel averred in an affidavit that he "did not conduct any meaningful investigation as regards [to] the punishment stage of" the defendant's case. Id. at 164. He also testified that he knew that the defendant's mother, father, fiancée, and business partner were available to testify, but he neither interviewed them nor called any of them to testify. Id.
In contrast to Lair and Shanklin, Russell called five witnesses to testify during the punishment phase of the trial, thereby introducing mitigation evidence. Further, the record indicates that he investigated potential punishment witnesses by interviewing and meeting with Esquivel's friends and family. Russell testified that he "was asking repeatedly prior to trial, during trial . . . who are we going to call for punishment." Although there was conflicting evidence about the depth of Russell's investigation and evidence regarding other potential punishment-phase witnesses he could have called, the trial court was the "sole factfinder and judge of . . . credibility at the motion for new trial hearing, both during live testimony and in affidavits." See Riley, 378 S.W.3d at 459. Since Russell's decisions about his investigation for potential witnesses and mitigation evidence are given a "heavy measure of deference," and the decision to present witnesses is largely a matter of trial strategy, we conclude that trial court reasonably could have found that Esquivel did not meet her burden to overcome the strong presumption that her attorney's conduct fell within the wide range of reasonable professional assistance and that his actions with respect to investigating and calling punishment-phase witnesses were the result of sound trial strategy. See Strickland, 466 U.S. at 689-91, 104 S. Ct. at 2065-66.
Next, Esquivel contends that Russell rendered ineffective assistance of counsel because he failed to uncover and elicit evidence indicating that she had been sexually abused when she was a child. She averred that she was sexually abused by her father's step brother. She also averred that Russell never took a detailed life history from her "so that he could determine if there were any events in" her life—such as sexual abuse—that would lead a jury to believe she was "less morally blameworthy" for her conduct.
In contrast to these contentions, however, Russell testified that he had met with Esquivel on several occasions prior to trial and "asked her about her childhood, where she went to school, where she grew up." Additionally, Russell testified that he asked Esquivel and others about "any traumatic events."
As with the contention that Russell failed to conduct an adequate investigation into punishment-phase witnesses, there is conflicting evidence about his investigation into her background, and the trial court was the "sole factfinder and judge of . . . credibility at the motion for new trial hearing, both during live testimony and in affidavits." See Riley, 378 S.W.3d at 459. The trial court could have believed Russell's testimony that he adequately investigated Esquivel's background and upbringing. Accordingly, the trial court reasonably could have found that Esquivel did not meet her burden to overcome the strong presumption that Russell's conduct fell within the wide range of reasonable professional assistance and that his actions were the result of sound trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Esquivel has not satisfied the first prong of Strickland, and the trial court did not abuse its discretion in refusing to grant her new-trial motion based on these issues. See id. We overrule her fifth issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice Panel consists of Chief Justice Radack and Justices Keyes and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).