No. 4-05-00078-CR
Delivered and Filed: February 22, 2006. DO NOT PUBLISH.
Appeal from the 293rd Judicial District Court, Dimmit County, Texas, Trial Court No. 04-03-02276-Dcr, Honorable Cynthia L. Muniz, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
Opinion by: SANDEE BRYAN MARION, Justice.
A jury found defendant, Olga Hernandez, guilty of murdering her husband and assessed a punishment of sixty years' imprisonment. Defendant complains of her conviction in two issues on appeal.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her second issue, defendant asserts she received ineffective assistance of counsel because her trial counsel failed to: 1) request appointment of an expert on battered woman's syndrome; 2) draft a special charge on a theory of self-defense based on necessity; and 3) conduct an investigation of the victim's history of physical and mental abuse toward defendant. Claims of ineffective assistance of counsel are evaluated under the two-step analysis articulated in Strickland v. Washington, 466 U.S. 688 (1984). Defendant must show 1) that counsel's representation fell below an objective standard of reasonableness, and 2) but for counsel's errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 688-89; Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986). The reasonableness standard in Strickland requires analyzing the attorney's performance based on the "totality" of the representation. Strickland, 446 U.S. at 690. The defendant must overcome the presumption that the challenged action of counsel might be considered sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). A reviewing court cannot speculate as to the reasons why trial counsel acted as he did, rather a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. See Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App. 1999). The appellate record must affirmatively demonstrate the alleged ineffective assistance of counsel. See Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Generally, the trial record will not suffice to establish an ineffective assistance of counsel claim. Thompson, 9 S.W.3d at 813-14. Defendant contends her trial counsel was ineffective for failing to obtain a psychiatrist to evaluate defendant's state of mind, which would have assisted defendant in presenting a theory of self-defense based on necessity. Defendant contends an expert was not hired because defendant had "exhausted her financial resources [and] could not afford to retain the expert." In Ex parte Briggs, after reviewing documents in the record in which trial counsel admitted he failed to hire a medical expert because he was not paid, the Court of Criminal Appeals held trial counsel was ineffective because his decision not to hire an expert was not a strategic decision, but rather a financial one. No. AP-75199, 2005 WL 3440433, at *3-6 (Tex.Crim.App. Dec. 16, 2005). Here, no motion for new trial was filed and no new trial hearing was held. The record before the trial court is silent as to why trial counsel failed to obtain a psychiatrist. Instead, in an affidavit attached to her brief on appeal, defendant's appellate counsel claims, "I learned that the Appellant and defense counsel had discussed the need to retain a psychiatrist to help with the presentation of Appellant's defense, but that an expert was not hired because Appellant had exhausted her funds." Appellate counsel does not indicate how or from whom he "learned" this information. However, we cannot take appellate counsel's allegations as true when no evidence exists in the record for trial counsel's decision. To find that trial counsel was ineffective based on the record before us would call for speculation, which we will not do. Jackson, 877 S.W.2d at 771. Defendant also argues her trial counsel was ineffective in failing to submit a jury charge on the defensive theory of necessity. Generally, a defendant is entitled to a jury instruction on any properly requested defensive issue raised by the evidence. Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App. 1999). This right exists regardless of the source of the evidence, its strength, or whether the trial court finds it credible. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). Under the defense of necessity, a defendant's conduct is justified if he reasonably believes the conduct is immediately necessary to avoid imminent harm, the desirability and urgency of avoiding the harm clearly outweigh the harm sought to be prevented by the law proscribing the conduct, and a legislative purpose to exclude the justification for the conduct does not otherwise plainly appear. Tex. Pen. Code Ann. § 9.22 (Vernon 2003). "Imminent" means "ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near." Devine v. State, 786 S.W.2d 268, 270 (Tex.Crim.App. 1989). Additionally, "imminent" refers to "a present, not a future threat" of bodily injury. Id. Harm is imminent when there is an emergency situation and it is "immediately necessary" to avoid the harm. Jackson v. State, 50 S.W.3d 579, 595 (Tex.App.-Fort Worth 2001, pet. ref'd). In other words, a split-decision is required without time to consider the law. Id. Here, defendant shot the victim while he was asleep and the record does not establish the victim was threatening or harming defendant immediately prior to the shooting; therefore, the issue of necessity was not raised by the evidence. Accordingly, because trial counsel did not err in failing to request a jury charge on necessity, trial counsel's representation was not ineffective. Finally, defendant complains her trial counsel was ineffective because he did not investigate whether defendant was physically and mentally abused by the victim. An attorney representing a criminal defendant must have a firm command of the facts of the case as well as governing law before he can render effective assistance to his client. Flores v. State, 576 S.W.2d 632, 634 (Tex.Crim.App. 1978). This encompasses the duty to conduct a legal and factual investigation and to seek out and interview potential witnesses. Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). Defense counsel should not, as a matter of course, rely on the veracity of either his client's version of the facts or witness statements in the State's file. Cantu v. State, 993 S.W.2d 712, 718 (Tex.App.-San Antonio 1999, pet. ref'd). A decision not to investigate must be directly assessed for reasonableness in all circumstances, although we apply a heavy measure of deference to the attorney's judgment. Id. We will not reverse a conviction unless the consequence of the failure to investigate is that the only viable defense available to the defendant is not advanced, and there is a reasonable probability that, but for counsel's failure to advance the defense, the result of the proceeding would have been different. Id. Here, trial counsel called several witnesses who testified the victim physically and mentally abused defendant. Gilbert Cruz testified that defendant told him she could not take the beatings any longer. He also testified that he witnessed the victim strike defendant in the face with a closed fist. Defendant's sister, Martha Cruz, testified that the victim started beating defendant when defendant was fourteen years old. She also testified that on one occasion the victim slapped defendant, knocking her to the ground, and dragged her out of the house. Mrs. Cruz testified that the victim would not allow defendant or her son to talk to anyone, and if they did, he would hit them. She also stated that, "[Defendant] was being abused physically, mentally, and verbally because [the victim] would tell her she wasn't worth it." Defendant testified that the victim "was always beating me for anything and everything that was out of place." She also testified that on one occasion while getting ready for dinner, she put a fork in the wrong place, and the victim hit her across the face and pulled her by her hair. Defendant testified that during her pregnancy with her first son, the victim hit her and she fell to the ground and blacked out. The record shows that defendant's trial counsel offered extensive testimony showing that defendant was physically and mentally abused; therefore, the record does not establish that trial counsel failed to investigate the victim's treatment of defendant. JURY INSTRUCTION ON SELF-DEFENSE
In her first issue, defendant asserts the trial court erred in not granting her request for a self-defense instruction and in not including sua sponte a charge on self-defense and a charge pursuant to Texas Code of Criminal Procedure, article 38.36(b). It is well established that a defendant has a right to a jury instruction on any defensive issue that has been raised by the evidence, regardless of whether the evidence is weak or strong, unimpeachable or contradicted, and regardless of what the trial court may think of its credibility. Granger, 3 S.W.3d at 38. However, if the testimony or other evidence viewed in a light most favorable to the defendant does not establish self-defense, an instruction is not required. Id. A defendant requesting an instruction on self-defense with deadly force must show: 1) she was justified in using force; 2) a reasonable person in her situation would not have retreated; and 3) she reasonably believed the use of deadly force was immediately necessary to protect herself against another's use or attempted use of unlawful deadly force, or to prevent the imminent commission of specified violent crimes. Flores v. State, 49 S.W.3d 29, 34 (Tex.App.-San Antonio 2001, pet. ref'd); see also Tex. Pen. Code Ann. §§ 9.31, 9.32. In the absence of the use or attempted use of deadly force by the deceased, a section 9.32 instruction is not available to the defendant. Flores, 49 S.W.3d at 34. Here, the defendant's daughter-in-law, Casey Hernandez, testified that a few days prior to the victim's death, defendant told her that she was going to kill the victim on "Saturday [because] he was supposed to be sleeping in." Casey also testified that while she was getting her son dressed at defendant's home she heard two gunshots, and went into the hallway where she saw defendant holding a gun. When asked why she shot her husband, the defendant responded, "Because I felt myself in danger. Because I knew that if he got up, he would start beating me again. And I couldn't take that anymore." Further, defendant concedes on appeal that the "crime was committed on September 22, 2001, while the victim was asleep in his own bed." There is no evidence showing the immediacy of any threat posed by the victim. Also, there is no evidence that the victim took any physical actions against defendant directly prior to the shooting that would have warranted her belief that deadly force was immediately necessary to protect herself. Accordingly, the evidence did not raise the issue of self-defense. Therefore, the trial court did not err in denying defendant's request for a self-defense instruction and did not err in not including sua sponte a self-defense charge. CONCLUSION
We overrule defendant's issues on appeal and affirm the trial court's judgment.