Nos. 05-02-01917-CR, 05-02-01918-CR, 05-02-01919-CR
Opinion Filed January 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 382nd Judicial District Court Rockwall County, Texas, Trial Court Cause Nos. 2-02-206, 2-02-207, 2-02-208. Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.
ELIZABETH LANG-MIERS, Justice.
Steven Ray Nelson appeals his conviction and sentence for two counts of aggravated assault of a public servant and one count of tampering with evidence. In two issues, appellant asserts that he was denied effective assistance of counsel. In the first issue, appellant claims that he was denied effective assistance because his trial counsel failed to request a jury charge instruction on involuntary act. In the second issue, appellant claims that he was denied effective assistance because his trial counsel failed to develop testimony supporting a defense of involuntary conduct. We affirm the trial court's judgment.
Background
Appellant and his wife were driving slowly through a residential community in the early morning hours of April 14, 2002. At the same time, several police officers were concluding a manhunt that they had conducted in the area nearby. Officer Kevin Cauley saw appellant's car, was suspicious and signaled for him to stop. Once the car stopped, the officer tapped on Mrs. Nelson's window with his flash light and asked her to roll down the window. As she did, Officer Cauley looked in the car and saw appellant pick up a small plastic bag from the car's console area and attempt to swallow it. Officer Cauley yelled to his fellow officers that appellant was swallowing "rocks" of crack cocaine. He jumped into the car through the passenger's side window, throwing his body across appellant's wife in the passenger seat. He grabbed appellant by the throat and hit appellant repeatedly in an effort to keep him from swallowing drugs. Officer Sergio Reyes, an officer with the Rockwall County Sheriff's Department, opened the driver's side car door and tried to pull appellant out of the car. Three more officers came to the driver's side of the car to help Officer Reyes pull appellant out of the car. Officer Cauley testified at trial that while he and the other officers were trying to keep appellant from swallowing drugs and trying to pull him out of the car, he saw someone's hand reach for the vehicle's gearshift and shift the vehicle's transmission into gear. The car then lunged backward, stopped momentarily, and accelerated quickly in reverse again for approximately fifty feet, dragging three officers along with it. Four of the officers and appellant were injured in the incident. Three of the officers, along with appellant, were transported to various hospitals for treatment. Appellant was arrested and charged with two counts of aggravated assault of a public officer and one count of tampering with evidence. Appellant pled not guilty to all charges. Appellant admitted at trial that he had swallowed the baggie and that it contained the residue from drugs he had purchased and taken earlier in the evening. Appellant also testified that he passed out after Officer Reyes grabbed his throat and that he did not know what had happened to cause the car to accelerate in reverse. Based on these facts, appellant contends that his trial counsel was ineffective because (1) he did not request a jury charge instruction on involuntary conduct, and (2) he did not develop trial testimony to support a defense of involuntary conduct. Both issues are based on an ineffective assistance of counsel claim and will be reviewed together. Ineffective Assistance of Counsel
To prevail on an ineffective assistance of counsel claim, an appellant must show two things: (1) that his trial counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) a probability sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003). Failure to establish the required showing of either deficient performance or sufficient prejudice defeats the ineffective assistance claim. Rylander, 101 S.W.3d at 110. An appellant has the burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999); Duckworth v. State, 89 S.W.3d 747, 751 (Tex. App.-Dallas 2002, no pet.). He must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Rylander, 101 S.W.3d at 110. In his first issue, appellant claims that his trial counsel should have asked for a jury instruction on involuntary act. Although a defendant is entitled to an affirmative defense instruction on every issue raised by the evidence of the case, Warren v. State, 565 S.W.2d 931, 933-34 (Tex.Crim.App. 1978), counsel is not obligated to request a particular instruction merely because the defendant is entitled to it. Dannhaus v. State, 928 S.W.2d 81, 86 (Tex. App.-Houston [14th Dist.] 1996, writ ref'd). The proper test for determining whether counsel's representation was deficient is whether it was objectively unreasonable for counsel not to ask for it. Id. at 86 (citing Strickland, 466 U.S. at 686, 104 S.Ct. 2052). In his second issue, appellant contends that his trial counsel should have developed further testimony to support the defense of involuntary conduct. More specifically, appellant contends that counsel should have: (1) presented expert witnesses for direct examination concerning involuntary conduct; (2) elicited testimony on cross examination from the State's expert witnesses concerning involuntary conduct; and (3) further developed testimony tending to show that appellant's actions were caused by outside forces. Because there is no evidence of counsel's strategy or the methods involved in reaching his decisions, there is no evidence to show a deficiency in counsel's representation and we presume that counsel's strategy was a sound one. See Thompson, 9 S.W.3d at 813; see also Gutierrez v. State, 8 S.W.3d 739, 749 (Tex. App.-Austin 1999, no pet.) (Recognizing trial counsel's failure to request an amendment to the jury charge as a possible sound trial strategy). Conclusion
We conclude that appellant has not met his burden of proof to establish ineffective assistance of counsel and resolve both of appellant's issues against him. We affirm the trial court's judgment.