Opinion
NO. 03-17-00040-CR
01-11-2018
Garrett Ballard, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 43506 , HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING MEMORANDUM OPINION
Garrett Ballard was charged with capital murder for killing Travis Fox and E.B. "during the same criminal transaction." See Tex. Penal Code §§ 19.02(b)(1) (providing that person commits murder if he "intentionally or knowingly causes the death of an individual"), .03(a)(7)(A) (stating that person commits capital murder if he "murders more than one person . . . during the same criminal transaction"). At the end of the guilt-or-innocence phase of the trial, the jury found Ballard guilty of the charged offense. Ballard's punishment was automatically assessed at life imprisonment. See id. § 12.31 (setting out mandatory punishments for individuals convicted of capital felonies). In two issues on appeal, Ballard contends that his trial attorney provided ineffective assistance of counsel by failing to request that a lesser-included-offense instruction be given to the jury. We will affirm the district court's judgment of conviction.
At the time of his death, E.B. was a minor. In addition to E.B. being a minor, one of the witnesses who testified during the trial, C.J., may also have been a minor when the offense occurred. See Tex. R. App. P. 9.10(a)(3) (referring to "the name of any person who was a minor at the time the offense was committed" as sensitive data). Accordingly, we will refer to both individuals by their initials.
Originally, the indictment contained an alternative allegation that "both murders were committed pursuant to the same scheme or course of conduct, but during different criminal transactions." See Tex. Penal Code § 19.03(a)(7)(B). However, the State later abandoned the alternative allegation, and the jury charge did not mention the allegations regarding the abandoned count.
BACKGROUND
The following summary comes from the evidence presented at trial. The victims in this case—Fox and E.B.—were friends with Ballard. Prior to the offense, the three men ate dinner with E.B.'s family to celebrate E.B.'s birthday and then went to Ballard's parents' home to hang out and to take a hallucinogen that they had purchased earlier from C.J. On the night in question, Ballard's parents were out of town. Several hours after the three men took the drug, Ballard went outside to his father's car, retrieved his father's semi-automatic rifle from the trunk of his father's car, inserted the gun magazine, and shot E.B. and Fox, emptying all thirty bullets contained in the magazine.
Although the testimony presented at trial indicated that the drug purchased was commonly referred to as "acid," the drug was not LSD. Instead, the drug was a substance called 25N-NBOMe.
According to testimony from the forensic examiners and from the investigating law-enforcement officers, Ballard was less than two feet from Fox when he shot Fox but was more than four feet away from E.B. when he fired. The rifle used in the shooting had an average trigger pull weight and was not overly sensitive. E.B. was hit with eleven individual bullets, and some of those bullets went through E.B.'s body and reentered causing further injuries. E.B. had injuries to his face, chest, neck, arm, hip, buttocks, back, spinal cord, and knee, and he suffered fatal injuries to his intestines, stomach, liver, and one of his lungs. The injuries that E.B. sustained, particularly the multiple shots to the back, indicated that E.B. was not coming towards Ballard.
Regarding Fox, the forensic examiners and the investigating law-enforcement officers testified that he was hit by at least fourteen bullets and that some of bullets traveled through Fox's body and reentered in other locations causing additional injuries. Fox had gunshot wounds to his arms, chest, thigh, and abdomen causing injuries to one of his lungs, one vertebra, his aorta, his esophagus, his liver, his diaphragm, his stomach, his intestines, one of his kidneys, his spleen, and his bladder. The injuries to his chest, torso, and back were fatal injuries. The patterns of the injuries that Fox sustained did not indicate that Fox was charging at Ballard and instead showed that Fox was attempting "to move, duck, [or] change" his position.
Prior to the shooting, Ballard called C.J. multiple times and stated that he was having a bad reaction to the drug that he had purchased, and C.J. tried "to talk [Ballard] down" and tried to find Ballard's home to check on him but was unable to locate the home. After the shooting, Ballard drove to the home of his girlfriend, Kylie Shouldis, and told her that he shot and killed Fox and E.B. Once he left Shouldis's home, he repeatedly texted her and stated that he thought that Fox and E.B. were "worshiping him," that he "was possessed," that E.B.'s and Fox's "heads started bulging," that E.B. and Fox were "possessed" and "came after" him, that he "was awake" when "this happen[ed] to" him, and that he "was able to understand what was happen[ing] to" him. During the trial, copies of recordings of conversations between Ballard and Shouldis that took place while he was in jail were admitted into evidence and played for the jury. On the recordings, Ballard stated that E.B. was standing around the pool "saying weird stuff," that Fox kept "running around screaming" and "getting all bloody" from falling on a lamp, that he thought that he was in a dream, that Fox started making "Satanic . . . gestures," and that E.B. was not acting like himself.
In addition to texting with Shouldis, Ballard called his brother-in-law, Officer Glenn Hanson, and told Officer Hanson that he had taken a hallucinogen and "exceeded the bounds of existence," that Fox and E.B. "had become demonized and grown horns out of their heads" and "worshiped him in some fashion," and that he killed Fox and E.B. After receiving the phone call, Officer Hanson asked emergency personnel to perform a welfare check on Ballard, and the responding officers found Ballard sitting in his car outside the gate to his parents' house. Once the responding officers found the bodies of Fox and E.B., Ballard was arrested.
Following his arrest, Ballard agreed to be interviewed by the police, and a recording of the interview as well as a copy of a written statement that Ballard made after the interview were admitted into evidence and shown to the jury. During the interview, Ballard stated that he drank a few beers and smoked marijuana before he and the victims took the drug that they had purchased, that Fox freaked out and ran around screaming and breaking things, that he felt like E.B. and Fox were "ganging in on" him and pressuring him to take more drugs, that he felt threatened because of the way that Fox and E.B. were behaving, and that Fox held him against the wall and started acting aggressively. In addition, Ballard recalled that he told Fox to stay in the house, that he grabbed his father's car keys, that he went outside, that he unlocked the trunk of his father's car, that he removed his father's rifle from the trunk, and that he loaded the weapon. Ballard explained that he got the weapon in case he needed to "warn" Fox about his behavior by pointing the weapon at Fox if Fox "did anything else" and in order to have a defensible position and to be ready in case anything happened. Next, Ballard described how Fox and E.B. came outside, how Fox kept "going back and forth" and walking around, how he felt "threatened," how he pulled the gun out and told Fox to "chill out," how Fox started screaming and pacing, how he panicked and shot Fox, and how he shot E.B. who was standing next to him after E.B. started screaming. When describing where E.B. and Fox were at the time of the shooting, Ballard estimated that E.B. was a few feet from him and that Fox was eight feet away. In addition to stating that Fox was pacing before the shooting, Ballard also indicated in some portions of the interview that Fox charged at him before the shooting. Furthermore, although Ballard stated that he had observed Fox act in a violent manner on previous occasions and that Fox had pushed him around on the night in question, Ballard told the officers that Fox did not hurt him that night or threaten him. Similarly, Ballard recalled that E.B. did not threaten him or hurt him. When describing the shooting, Ballard related that he thought that he was dying from the drugs, that he did not think anything was real, that he was "freaking out," that he had a panic attack, and that he was not aiming when he shot.
During the trial, Ballard's attorney requested that the jury be given instructions on the lesser-included offenses of murder and manslaughter, but the district court denied that request. After considering the evidence presented at trial, the jury found Ballard guilty of the crime of capital murder, and the district court rendered its judgment of conviction. Following his conviction, Ballard filed a motion for new trial but did not argue in the motion that his attorney provided ineffective assistance of counsel, and no hearing on the motion was held.
STANDARD OF REVIEW AND GOVERNING LAW
As discussed above, Ballard was charged with and convicted of capital murder. Under the Penal Code, an individual commits capital murder if he "commits murder as defined under Section 19.02(b)(1)" of the Penal Code and "murders more than one person . . . during the same criminal transaction." Tex. Penal Code § 19.03(a)(7)(A). Under subsection 19.02(b)(1), a person commits murder "if he . . . intentionally or knowingly causes the death of an individual." Id. § 19.02(b)(1). In addition to this definition of murder, the Penal Code also lists other ways in which an individual can be guilty of the offense of murder but that cannot serve as a basis for capital murder. Of significance to this appeal, a person commits murder "if he . . . intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Id. § 19.02(b)(2).
In this appeal, Ballard contends that his trial attorney provided ineffective assistance of counsel by failing to request a lesser-included-offense instruction for serious-bodily-injury murder under subsection 19.02(b)(2) of the Penal Code. To succeed on an ineffectiveness claim, a defendant must overcome the strong presumption that his trial "counsel's conduct falls within the wide range of reasonable professional assistance" and must show that the attorney's "representation fell below an objective standard of reasonableness . . . under prevailing professional norms" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Nava v. State, 415 S.W.3d 289, 308 (Tex. Crim. App. 2013). "It will not suffice for Appellant to show 'that the errors had some conceivable effect on the outcome of the proceeding.'" Perez v. State, 310 S.W.3d 890, 894 (Tex. Crim. App. 2010) (quoting Strickland, 466 U.S. at 693). "Rather, he must show that 'there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.'" Id. (quoting Strickland, 466 U.S. at 695). "Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
"[A]n appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Evaluations of effectiveness are based on "the totality of the representation." Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref'd) (providing that assessment should consider "cumulative effect" of counsel's deficiencies). Furthermore, even though a defendant is not entitled to representation that is error-free, a single error can render the representation ineffective if it "was egregious and had a seriously deleterious impact on the balance of the representation." Frangias, 450 S.W.3d at 136.
In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim "is generally undeveloped." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001) (stating that "[i]n the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions"). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Goodspeed, 187 S.W.3d at 392 (stating that "counsel's conduct is reviewed with great deference, without the distorting effects of hindsight"). If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440.
"To establish [a] claim that defense counsel's performance was deficient for failing to request an instruction on [a] lesser included offense," the defendant "must show that he was entitled to the instruction." Shanklin v. State, 190 S.W.3d 154, 159 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd); see also Wood v. State, 4 S.W.3d 85, 87 (Tex. App.—Fort Worth 1999, pet. ref'd) (explaining that "[a] defense attorney's failure to request a jury instruction can render his assistance ineffective if, under the particular facts of the case, the trial judge would have erred in refusing the instruction had counsel requested it"). "In addition to showing that he was entitled to the lesser included offense, however, appellant must show that his defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms." Shanklin, 190 S.W.3d at 160. In other words, "[t]he defendant bears the burden of rebutting the strong presumption that, under the circumstances, counsel's decision not to request the instruction was sound trial strategy" and "must provide a record on appeal from which the reviewing court can determine that trial counsel's performance was not based on sound strategy." Wood, 4 S.W.3d at 87-88.
DISCUSSION
In two issues on appeal, Ballard contends that his attorney provided "ineffective assistance of counsel for failing to request an instruction, with respect to . . . Fox" and "with respect to E.B. on the lesser-included offense of 'serious bodily injury' murder under Texas Penal Code § 19.02(b)(2)." On appeal, Ballard addresses the issues jointly, and we will similarly address the arguments together.
As an initial matter, we note that Ballard's attorney did, as set out above, request lesser-included-offense instructions for murder and manslaughter. Although Ballard's attorney did not specify the statutory provisions corresponding to the type or types of murder for which an instruction was being requested, Ballard argues on appeal that his attorney could not have been requesting an instruction for serious-bodily-injury murder because his attorney told the district court that "making that lesser included argument is really just dependent on whether the jury believes that it was committed within the same criminal transaction, but I could see a jury differing on the culpable mental states as to each of those individuals." Because capital murder can only be predicated on a murder in which the offender "intentionally or knowingly causes the death of an individual," see Tex. Penal Code §§ 19.02(b)(1), .03, and because Ballard's trial attorney stated that his argument regarding the lesser-included instruction was based on whether the jury could disbelieve that the deaths occurred as part of the same transaction, Ballard urges that his attorney was not seeking an instruction regarding serious-bodily-injury murder and was instead only seeking an instruction for murder by intentionally or knowingly causing someone's death. For the purpose of addressing these issues on appeal, we will assume without deciding that Ballard's trial attorney did not request an instruction for serious-bodily-injury murder.
On appeal, Ballard contends that there is no conceivable trial strategy that would have justified failing to request an instruction for serious-bodily-injury murder. Although Ballard acknowledges that it can be an effective trial strategy to forego a lesser-included-offense instruction in order to seek an acquittal of the greater offense by employing an all-or-nothing strategy, see Shanklin, 190 S.W.3d at 161 (discussing "all-or-nothing strategy" of failing to request instruction for lesser-included offense); Wood, 4 S.W.3d at 87 (explaining that "it may be reasonable trial strategy not to request a charge on a lesser-included offense"), Ballard contends that his attorney did not employ an all-or-nothing strategy in this case because his attorney sought instructions for the lesser-included offenses of manslaughter and murder by intentionally or knowingly killing someone. Moreover, Ballard argues that the two requested defensive instructions "were properly refused as a matter of law" because there was no evidence presented to support those instructions. In light of the preceding, Ballard asserts that there could be no reasonable trial strategy to seek instructions for lesser-included offenses that were not warranted by the evidence but to not seek an instruction regarding a lesser-included offense that was supported by the evidence presented at trial. In addition, Ballard urges that failing to seek the lesser-included-offense instruction could not have been part of a valid trial strategy in light of the fact that he admitted to the police that he shot Fox "and E.B. intentionally and did not claim accident [or] that he was unaware" of his actions.
As set out above, no allegations of ineffective assistance were presented to the district court, and Ballard's trial attorney has, therefore, not been afforded the opportunity to explain why he did not ask for an instruction regarding serious-bodily-injury murder. Accordingly, the record in this case would not seem to be sufficiently developed to analyze this claim. See Washington v. State, 417 S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (determining that defendant "failed to show deficient performance" because "[t]he decision to not request a lesser included could have been strategic" and because "the record contains no explanation for trial counsel's failure to request a manslaughter instruction"); Ward v. State, No. 05-01-01790-CR, 2002 WL 31159972, at *2 (Tex. App.—Dallas Sept. 30, 2002, pet. ref'd) (mem. op., not designated for publication) (explaining that reviewing courts "do not inquire into counsel's trial strategy unless such strategy does not have a plausible basis," commenting that record contained "no explanation for counsel's actions," and concluding that defendant had not met first Strickland prong "because he has not shown that counsel's performance was deficient"); Wood, 4 S.W.3d at 87, 88 (noting that defendant has burden of rebutting strong presumption that counsel's decision to not request instruction was reasonable trial strategy and that defendant "failed to develop a record that might have supported" his claim by not raising ineffective-assistance claim in motion for new trial).
Even setting aside the lack of a developed record in this case, we would still be unable to sustain Ballard's two issues on appeal because we do not believe that he was entitled to the lesser-included-offense instruction for serious-bodily-injury murder. When deciding whether a lesser-included-instruction should have been given, courts must determine whether the offense listed in the requested instruction is actually a lesser-included offense of the offense that the defendant was charged with. Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011); see Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). In performing this inquiry, reviewing courts "do not consider what the evidence at trial may show but only what the State is required to prove to establish the charged offense." Cannon v. State, 401 S.W.3d 907, 910 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). Reviewing courts then "compare these elements to those of the potential lesser-included offense, murder under section 19.02(b)(2), and decide whether the elements of the lesser offense are functionally the same or less than those required to prove the charged offense." Id.; see also Tex. Code Crim. Proc. art. 37.09 (defining lesser-included offenses).
If the reviewing court determines that the offense listed in the requested instruction is a lesser-included offense, the court must then determine whether the evidence presented during the trial supports the requested instruction. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App. 2011); Rice, 333 S.W.3d at 144. When deciding whether the evidence supports the requested instruction, the reviewing court considers all of the evidence admitted at trial and not just the evidence presented by the defendant, Goad, 354 S.W.3d at 446; see Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993), and must determine whether there is some evidence from which a rational jury could acquit the defendant of the greater offense and convict the defendant of the lesser offense, Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012). In other words, courts must evaluate if there is some evidence that would allow the jury to rationally determine that if the defendant was guilty, he was only guilty of the lesser offense. See Rice, 333 S.W.3d at 145; Guzman v. State, 188 S.W.3d 185, 188-89 (Tex. Crim. App. 2006). "Meeting this threshold requires more than mere speculation—it requires affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of the greater offense." Cavazos, 382 S.W.3d at 385. "'Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.'" Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011) (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). The "threshold showing is low," but "'it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense'"; "'rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted.'" Id. (quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997)). In performing this analysis, the court may not consider the credibility of the evidence supporting the lesser charge or consider whether that evidence is controverted or conflicts with the other evidence. Goad, 354 S.W.3d at 446-47. Moreover, "the evidence produced must be sufficient to establish the lesser-included offense as a 'valid, rational alternative' to the charged offense." Cavazos, 382 S.W.3d at 385 (quoting Hall, 225 S.W.3d at 536).
As set out above, under the Penal Code, an individual commits serious-bodily-injury murder "if he . . . intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual." Tex. Penal Code § 19.02(b)(2). Moreover, the Penal Code defines "serious bodily injury" as including an injury "that causes death." Id. § 1.07(46); see Cannon, 401 S.W.3d at 911 (explaining that "[d]eath is, essentially, the most serious bodily injury"). "Accordingly, proof that appellant intentionally and knowingly caused the deaths of two people by shooting them would also prove appellant intended to cause serious bodily injury to at least one person as required by section 19.02(b)(2)." Cannon, 401 S.W.3d at 911. In addition, "proof that a person shot someone else with a firearm, as required by the charge in this case, would also prove that the person committed an act clearly dangerous to human life." See id.; see also Cavazos, 382 S.W.3d at 384 (noting that "shooting with a firearm" is "an act clearly dangerous to human life"). For these reasons, we must conclude that serious-bodily-injury murder is a lesser-included offense of the charged offense. See Cannon, 401 S.W.3d at 911 (determining that serious-bodily-injury murder is lesser-included offense of capital murder); see also Smith v. State, 297 S.W.3d 260, 275 (Tex. Crim. App. 2009) (explaining that court of criminal appeals "has long held that murder is a lesser-included offense of capital murder").
Regarding the second prong, Ballard contends that "[t]here is enough evidence to support the conclusion that [he] shot [Fox] and/or E.B. with the intent to cause serious bodily injury but without the intent to kill them." In particular, Ballard argues that the evidence established that he attempted to avoid a confrontation by leaving the house after Fox started acting aggressively, that he only intended to use the rifle to "warn" Fox but "not shoot him," that he only fired because he panicked, that he was trying to defend himself, that several of the wounds to the victims were not fatal wounds, that Ballard did not conceal what happened, and that he expressed remorse. Further, Ballard refers to the evidence regarding the hallucinations that he experienced on the night in question. Based on this characterization of the evidence, Ballard contends that the evidence supported an inference that he did not act with the intent to kill anyone and instead intended to cause serious bodily injury in order to stop Fox and E.B. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) (explaining that "[i]ntent may . . . be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant").
In his brief, Ballard refers to Forest v. State, 989 S.W.2d 365 (Tex. Crim. App. 1999), as support for his claim that he was entitled to a lesser-included-offense instruction for serious-bodily-injury murder. In Forest, the defendant was charged with intentionally or knowingly causing the death of an individual and requested a lesser-included-offense instruction for the offense of aggravated assault. 989 S.W.2d at 366, 367. When determining that the defendant was not entitled to the instruction, the court of criminal appeals explained that even though the defendant testified that he did not intend to kill the victim, the defendant admitted that "he meant to shoot the victim 'in the butt,'" which established the defendant's intent to cause serious bodily injury to the victim. Id. at 366, 368. Accordingly, the court determined that the defendant's "testimony showed him, at the least, to be guilty of" serious-bodily-injury murder and that he "was not entitled to an instruction on aggravated assault." Id. at 368.
Although the court of criminal appeals did indicate that the testimony in that case indicated, at minimum, that the defendant intended to cause serious bodily injury, we do not see anything in the analysis from Forest that would compel a determination that a lesser-included-offense instruction for serious-bodily-injury murder was warranted under the circumstances of this case, particularly in light of the injuries to vital areas that the victims sustained in this case. Moreover, as will be discussed in the body of the opinion, more recent opinions by the court of criminal appeals have suggested that injuries like those present in this case that were inflicted in similar manners only support an inference of an intent to kill.
However, whether Ballard felt provoked by any of the actions of Fox or E.B. "is irrelevant to the issue of whether [he] intended to cause" their deaths. See Rousseau, 855 S.W.2d at 674. Similarly, evidence that Ballard "initially or at some point" before the shooting "did not have an intent to cause death does not amount to evidence that [he] did not intend to cause the victim[s'] death[s] when the murder[s] w[ere] committed"; instead, Ballard "must only have formulated an intent to cause death when he actually commit[ted] the murder[s]." See id. Stated differently, what Ballard "anticipated before the offense is inconsequential; the issue is whether there is any evidence that appellant did not intend to kill" the victims "at the time he shot" them. See Fuentes v. State, 991 S.W.2d 267, 273 (Tex. Crim. App. 1999).
In this case, the evidence established that Ballard retrieved his father's gun from his car, loaded the weapon, fired the weapon at Fox and then later at E.B. while he was in close range to both victims, fired multiple bullets into both victims, hit vital areas of the victims causing multiple fatal injuries to each victim, continued to fire the weapon until all of the bullets had been discharged, and left the scene to see his girlfriend without calling 911 for help. Cf. id. at 273 (concluding that there was "no evidence upon which a jury could rationally have found that appellant did not inten[d] to kill when he shot the deceased" where evidence established that "appellant ran up to Tate, shot him not once but twice in the chest, and then fled the scene as Tate fell into a ditch and died"); Roussea, 855 S.W.2d at 674-75 (determining that testimony that defendant did not fire first shot and that defendant gave robbery victims "opportunity to cooperate" did "not amount to evidence that the offender had not formulated the intent to cause Delitta's death in returning fire" or "had not formulated the requisite intent at the time he caused the death of the deceased" and concluding that defendant was not entitled to lesser-included-offense instruction for felony murder where evidence showed "that appellant aimed his gun at the victim, fatally shooting him in a vital area of the body"). In addition, the evidence established that the weapon was a semi-automatic rifle, meaning that Ballard had to pull the trigger each time to fire a bullet, and that the weapon did not have an overly sensitive trigger, and no evidence was presented indicating that Ballard did not intend to shoot the weapon. Moreover, although Ballard did state during his interview that he panicked before shooting and that he did not aim before firing, he did not state that he did not intend to kill the victims or that he only intended to cause them serious bodily injury at the time that he fired the weapon.
In light of the preceding, we do not believe that there was some evidence that would allow the jury to rationally determine that if Ballard was guilty, he was only guilty of serious-bodily-injury murder. As the court of criminal appeals has explained, "[i]t is both a common-sense inference and an appellate presumption that a person intends the natural consequences of his acts . . . and that the act of pointing a loaded gun at someone and shooting it toward that person at close range demonstrates an intent to kill." See Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005); see also De La Paz v. State, 279 S.W.3d 336, 349 (Tex. Crim. App. 2009) (explaining that "the intent to kill is easily inferred from pointing a gun and shooting").
In his brief, Ballard challenges the wisdom of the statement regarding close-range shootings made by the court of criminal appeals in Ex parte Thompson, 179 S.W.3d 549, 556 n.18 (Tex. Crim. App. 2005), by hypothesizing that an individual who "shoots a staff attorney at point-blank range in the big toe" did "not 'demonstrate' intent to kill." In addition to postulating about whether the comment by the court of criminal appeals would be true in all cases involving close-range shootings, Ballard contends that the cases that the court of criminal appeals cited in Ex parte Thompson as support for its statement involved situations in which the intent to kill could have been established without consideration of whether the shots were fired in close proximity to the victims. See, e.g., Jones v. State, 944 S.W.2d 642, 646-47 (Tex. Crim. App. 1996) (determining that evidence was sufficient to show intent to kill where evidence showed that defendant used gun during robbery, that defendant pulled trigger to fire gun, that "the bullet struck the victim practically between the eyes," and that victim stated before he was shot that defendant "would have to kill him to take the car"); Womble v. State, 618 S.W.2d 59, 61, 64 (Tex. Crim. App. 1981) (noting that defendant threatened "'to shoot [victim's] mother fucking head off'" before firing at car and hitting victim and that "the law presumes an intent to kill" "where a weapon is fired at close range and death results"). Moreover, Ballard contends that any presumption regarding an intent to kill applies only in the absence of evidence to the contrary and further urges for the reasons set out above that the presumption has been overcome in this case. See Whitlock v. State, 177 S.W.2d 205, 208 (Tex. Crim. App. 1943) (providing that "in the absence of any proof on the part of the appellant of the want of intent to kill, the legal presumption would obtain that he intended that which was the natural and probable consequences of his act"). Finally, Ballard asserts that even if the reasoning by the court of criminal appeals applied in this case, it would only have applied to "the need to give a serious bodily injury murder instruction for E.B. only."
Whether an intent to kill would be present under the scenario offered by Ballard is beyond the scope of this opinion, but we do note that the close-range injuries that the victims sustained in this case differ significantly from the injury posed in Ballard's hypothetical. Moreover, we fail to see how Ballard's assessment of the cases relied on by the court of criminal appeals in Ex parte Thompson renders the logic of the court's statement inapplicable to this case. Finally, as set out above, we do not believe that the evidence presented in this case established serious-bodily-injury murder as a valid and rational alternative to capital murder for the deaths of E.B. or Fox.
For all of these reasons, we must conclude that Ballard has failed to show that he was entitled to an instruction for serious-bodily-injury murder.
In light of our determination above, we need not further address the matter of whether Ballard's trial counsel provided ineffective assistance of counsel when he did not request the instruction at issue, but we do emphasize that ineffectiveness challenges are considered in light of "the totality of the representation" provided by the attorney. See Thompson, 9 S.W.3d at 813; see also Simmons v. State, Nos. 03-11-00229—00230-CR, 2012 WL 3629864, at *4 (Tex. App.—Austin Aug. 22, 2012, pet. ref'd) (mem. op., not designated for publication) (determining that "[t]he critical weakness" in ineffectiveness claim was "its failure to consider the totality of trial counsel's representation"). Prior to trial, Ballard's attorney moved to suppress evidence seized during the investigation of the offense and to suppress statements that Ballard made while being interviewed by the police. In addition, Ballard's attorney moved to preclude the State from admitting certain photographs into evidence, including some photographs of the victims. During voir dire, Ballard's attorney emphasized the importance of having a fair trial, the State's burden of proof, and the presumption of innocence; questioned the panel regarding whether they had any personal knowledge of the case, regarding whether the panel would hold Ballard's decision to testify or not testify against him, and regarding any biases that they might have had that could have affected their ability to serve as a juror; and exercised his peremptory strikes. In the trial, Ballard's attorney objected to the admission of several exhibits offered by the State, thoroughly cross-examined the State's witnesses, and proffered evidence outside the presence of the jury after the district court sustained objections to questions that he asked witnesses. During his closing argument, Ballard's attorney acknowledged that Ballard caused the deaths of Fox and E.B. but argued that Ballard was overcharged by the State, that the offense was not capital murder, and that Ballard's negative reaction to the drug that he took framed the events. In addition, his attorney emphasized the State's burden, asserted that the State failed to prove that Ballard intended to kill the victims, and urged that Ballard's confession was not voluntary. In summary, the totality of the representation reflects that Ballard was provided with effective assistance of counsel during the trial. Cf. Grant v. State, 696 S.W.2d 74, 77, 78 (Tex. App.—Houston [1st Dist.] 1985, pet. ref'd) (noting that "[a]lthough appellant was entitled to the appropriate jury charge, if properly requested, the failure of counsel to request a charge on the lesser-included offenses did not render that counsel's assistance ineffective" in light of "the totality of the representation").
For all the reasons previously given, we overrule Ballard's two issues on appeal.
CONCLUSION
Having overruled Ballard's two issues on appeal, we affirm the district court's judgment of conviction.
/s/_________
David Puryear, Justice Before Justices Puryear, Field, and Bourland Affirmed Filed: January 11, 2018 Do Not Publish