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Rushing v. State

Court of Appeals Fifth District of Texas at Dallas
Nov 10, 2017
No. 05-16-00917-CR (Tex. App. Nov. 10, 2017)

Opinion

No. 05-16-00917-CR

11-10-2017

ZANDRA TARNESA RUSHING, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 296th Judicial District Court Collin County, Texas
Trial Court Cause No. 296-82667-2015

MEMORANDUM OPINION

Before Justices Francis, Myers, and Whitehill
Opinion by Justice Francis

Zandra Tarnesa Rushing appeals her conviction for the offense of manslaughter. In two issues, appellant contends the evidence is legally insufficient to support the jury's verdict and she received ineffective assistance of counsel. We affirm the trial court's judgment.

Appellant was indicted for the murder of her boyfriend, Jerome Knox. Knox and appellant were together for nine years and had three children together. No one disputes appellant shot and killed Knox on the evening of April 21, 2015. The focus of appellant's defense at trial was the abusive nature of her relationship with Knox and her claim that she shot him in self-defense. After hearing the evidence, the jury convicted appellant of the lesser-included offense of manslaughter.

In her first issue on appeal, appellant argues the evidence is legally insufficient to support the verdict because a rational jury could not have rejected her claims of self-defense and defense of others. In reviewing the legal sufficiency of the evidence to support the factfinder's rejection of defensive issues, we do not look at whether the State presented evidence refuting appellant's claimed defenses. Rather, we determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the offense beyond a reasonable doubt and also would have found against appellant on the defensive issues beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Smith v. State, 355 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd). The trier of fact is the sole judge of the weight and credibility of the evidence. See Kirk v. State, 421 S.W.3d 772, 776 (Tex. App.—Fort Worth 2014, pet. ref'd). If the jury finds the defendant guilty, then it implicitly finds against any defensive theory raised. See Zuilani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003).

The court's charge in this case instructed the jury that a person commits the offense of murder if the person intentionally or knowingly causes the death of an individual. Manslaughter was defined as recklessly causing the death of an individual. On the issue of self-defense, the charge instructed that a person is justified in using deadly force "when and to the degree the person reasonably believes the deadly force is immediately necessary . . . (A) to protect herself against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery." Appellant argues "all of the evidence indicates that [she] had a reasonable belief that deadly force was immediately necessary to protect herself and/or her family from Knox's use of deadly force." We first note appellant did not raise defense of a third person at trial and no instruction on the issue was included in the court's charge. See TEX. PENAL CODE ANN. § 9.33 (West 2011). With respect to the self-defense issue, appellant argues the evidence showed she endured years of physical abuse at the hands of Knox and this history established she had a reasonable belief that it was immediately necessary to defend herself using deadly force.

The evidence at trial revealed a physically and verbally combative relationship between appellant and Knox. In November of 2014, Knox was arrested, charged with assaulting appellant by "impeding her breath," and placed under a three-month protective order. In January 2015, appellant called 911 to ask what she could do to defend herself if Knox violated the protective order. An officer's incident report indicates she was told she "had a right to defend herself at all times." Then, eleven days before the shooting, appellant called the district attorney's office to speak with a victim advocate about self-defense. Appellant claimed she was told she could use a gun to protect herself. The advocate did not remember speaking with appellant and denied ever giving such advice. Despite appellant's concerns, she allowed Knox to stay at her house after the protective order expired.

On the day of the shooting, appellant and Knox were arguing. Appellant claimed Knox repeatedly "jumped on her," and hit and choked her. When she was examined shortly after her arrest, appellant showed no signs of having been recently assaulted. The only significant injury to appellant was a yellowing bruise on her breast that appeared to be at least eighteen hours old. According to an investigator who spoke with appellant, appellant said she didn't call 911 to report Knox's assaults that day because she didn't want to get him in trouble and "it wasn't that big of a deal."

Appellant told a number of people she was in fear for her life and shot Knox in self-defense, but gave multiple versions of what occurred; the physical evidence was contradictory. The medical examiner testified Knox died of a single bullet wound and the bullet was found lodged near his shoulder blade. Appellant claimed she only fired the gun once and does not dispute that Knox was not carrying a weapon at the time he was shot. When asked about the multiple bullet holes in the walls and ceiling, and bullet casings and drywall residue on the floor below one of the bullet holes, appellant's explanation for the discrepancy varied from Knox's having fired the gun a few days before the shooting, to the gun having fallen out of her pocket and discharging accidentally.

Immediately before the shooting, appellant called her friend, Dandrae James. James testified appellant wanted him to come pick her up because Knox was "trying to jump on her." Appellant asked James to make a "three-way call" and get her mother on the line. During the course of the phone call, James could hear appellant and Knox arguing and at one point, he heard Knox yell, "stop lying . . . you know I am not doing nothing to you." James also heard muffled sounds like Knox was attempting to take the phone away from appellant. He did not hear a gunshot, but heard appellant make the statement, "I shot." Appellant's mother told her to call the police immediately. James believed appellant shot Knox accidentally.

In her call to 911, appellant told the dispatcher she shot Knox in self-defense because she was "tired of him jumping on [her]." A few hours later, appellant told a police officer she didn't mean to shoot Knox, but only meant to scare him. When speaking with an investigator, appellant gave several different statements about how and why the shooting occurred. She shot Knox because "she was tired of him hitting on her in front of the kids." But it was also "a reflex," an accident and, finally, self-defense. The investigator told the jury appellant's stories did not make sense. He told appellant he had spoken with James and what James said he heard on the phone conflicted with her story. Appellant responded that she and her mother told people not to talk to the police until after they had spoken to an attorney and gotten back to them and said if he called James back now, James would tell him "what really happened."

Viewing all the evidence in the light most favorable to the verdict, we conclude a rational jury could have found the essential elements of manslaughter beyond a reasonable doubt and could have found against appellant on the self-defense issue beyond a reasonable doubt. See Hill v. State, 99 S.W.3d 248, 252 (Tex. App.—Fort Worth 2003, pet. ref'd) (evidence sufficient to reject self-defense claim despite testimony that victim subjected defendant to years of verbal and physical abuse). Although appellant told others she was in fear for her life at the time of the shooting, this alone does not conclusively prove self-defense. See London v. State, 325 S.W.3d 197, 203 (Tex. App.—Dallas 2008, pet. ref'd); Denman v. State, 193 S.W.3d 129, 132-33 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). The jury could have reasonably concluded appellant was not credible given the conflicting evidence, her differing explanations of how the shooting occurred, and her attempt to prevent witnesses from discussing the case with police until after she and her mother had talked with them. The evidence also suggested appellant was exploring the viability of a self-defense argument before the shooting occurred. Finally, appellant testified Knox was pushing her when she shot him. Pushing or shoving does not normally constitute deadly force. See Warden v. State, No. 13-09-001116-CR, 2010 WL 3596861, at *4 (Tex. App.—Corpus Christi Sept. 16, 2010, pet. ref'd). (mem. op., not designated for publication). We resolve appellant's first issue against her.

In her second issue, appellant contends she received ineffective assistance of counsel because her attorney failed to offer certain evidence at the guilt-innocence phase of her trial that she contends supported her claim of self-defense. To prevail on an ineffective assistance of counsel claim, appellant must establish both that trial counsel performed deficiently and the deficiency prejudiced him. See State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). With respect to the first prong, the record on appeal must be sufficiently developed to overcome the strong presumption of reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999). The defendant bears the burden to prove by a preponderance of the evidence that trial counsel's performance was deficient or not reasonably effective by showing counsel's performance fell below an objective standard of reasonableness based on prevailing professional norms. See Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).

With regard to the second prong, an appellant establishes prejudice if she shows a reasonable probability—a probability sufficient to undermine confidence in the trial's outcome—that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).

In most cases, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Counsel should ordinarily be accorded an opportunity to explain his or her actions before being condemned as unprofessional and incompetent. Id. at 111. Absent an opportunity for trial counsel to explain his actions, we will not conclude his representation was deficient "unless the challenged conduct was so outrageous that no competent attorney would have engaged in it." See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Without direct evidence as to the role trial strategy played in the decision-making process, appellate courts are reluctant to find the record sufficient to overcome the presumption of competence. See Bone v. State, 77 S.W.3d 828, 833-34 (Tex. Crim. App. 2002).

Although appellant concedes her representation by counsel was arguably "adequate," she contends their failure to call her and others as witnesses to support her claim of self-defense, and their decision to not submit her counseling records into evidence during the guilt-innocence phase of trial, rendered their assistance ineffective. The record reveals appellant had a lengthy discussion with the trial judge about her right to testify at the guilt-innocence phase of her trial, and she chose not to testify. As for other witnesses who could have supported her claim of self-defense, appellant fails to identify any person her counsel could have called. Counsel cross-examined every witness extensively on the issue of self-defense and elicited substantial testimony regarding the history of abuse.

Appellant contends her counselling records would have shown the jury she suffered at least four years of physical, sexual, and emotional abuse at the hands of Knox before she shot him. She argues no reasonable strategy justifies the decision to withhold this evidence during the guilt-innocence phase. Even assuming the counselling records were admissible during this phase, the evidence was largely cumulative of other evidence presented. Appellant's counsel elicited extensive testimony about the history of violence between appellant and Knox. In addition, the specific evidence sought consisted of the counselling center's initial evaluation checklist made four years before the shooting took place where appellant indicated Knox engaged in certain behaviors. Appellant never returned to the center for counselling and did not respond to the center's attempts to contact her. As a result, the center terminated services. Appellant's counsel could have reasonably determined this evidence would have been more harmful than helpful to appellant at the guilt-innocence phase because it indicated appellant declined help when help was offered. We cannot conclude the decision by counsel not to offer the records was "so outrageous that no competent attorney would have engaged in it." See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). We resolve appellant's second issue against her.

We affirm the trial court's judgment.

/Molly Francis/

MOLLY FRANCIS

JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b)
160917F.U05

JUDGMENT

On Appeal from the 296th Judicial District Court, Collin County, Texas
Trial Court Cause No. 296-82667-2015.
Opinion delivered by Justice Francis. Justices Myers and Whitehill participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered November 10, 2017.


Summaries of

Rushing v. State

Court of Appeals Fifth District of Texas at Dallas
Nov 10, 2017
No. 05-16-00917-CR (Tex. App. Nov. 10, 2017)
Case details for

Rushing v. State

Case Details

Full title:ZANDRA TARNESA RUSHING, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Nov 10, 2017

Citations

No. 05-16-00917-CR (Tex. App. Nov. 10, 2017)