Summary
rejecting appellant's argument that trial court erred by not including a "self-defense negation instruction" in jury charge and not stating in written answer to jury note that prosecution had burden to "disprove self-defense beyond a reasonable doubt"
Summary of this case from Goodson v. StateOpinion
No. 05-06-01321-CR
Opinion Filed July 11, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd District Court, Dallas County, Texas, Trial Court Cause No. F05-14036-KP.
Before Justices MORRIS, BRIDGES, and O'NEILL.
OPINION
Nathan Todd Shafer appeals his assault conviction. A jury convicted appellant, and the trial court sentenced him to 270 days' confinement, probated for two years, and a $1200 fine. In eight points of error, appellant argues the trial court erred (1) by not including a self-defense "negation" instruction in the application paragraph of the jury charge and (2) by incorrectly responding to the jury's question whether the prosecution had to prove appellant did not use self-defense and commenting on the weight of the evidence. Appellant also argues he received ineffective assistance of counsel. We affirm the trial court's judgment. On January 25, 2005, Gary Neil Milam, his girlfriend, Jennifer Metcalf, and two other friends went to Dukes Original Roadhouse in Addison, Texas. The group met for happy hour but discovered VH1 was filming a reality television show called Strip Search. Two men were sitting at a table with four chairs near the stage. Milam's group approached the men and asked if they could sit at the table. The men agreed, and Milam's group pulled up two additional chairs and sat down. Everyone introduced themselves, and Milam's group had dinner and watched the show as it began. At one point, Metcalf got up to use the restroom. When she returned, Milam got up from his seat because the patio was crowded, and Metcalf could not get by him unless he got up and moved. Metcalf took her seat but noticed Milam did not sit back down. Metcalf saw that Milam's chair was in the same place, but appellant was sitting in it. Metcalf recognized appellant as one of the performers in the show. Milam had noticed appellant on stage earlier and remembered thinking, "wow, that guy he's massive." Milam remained calm, but appellant was loud and angry. Metcalf turned to the man sitting next to her to tell him what she overheard happening between Milam and appellant. As she turned back toward appellant, she saw appellant hit Milam in the face and she ducked because Milam's body was coming towards her. Metcalf turned back around to see what had happened, and she saw Milam's body going away from the table and bouncers from the bar grabbing Milam and pulling him in the opposite direction from appellant. The bouncers took Milam and appellant out to the parking lot, and Metcalf followed. Milam was bleeding from the nose, and his jacket, shoes, and pants were covered in blood. As Milam moved his jaw, it appeared to be disconnected from the rest of his mouth. Metcalf gave police a written statement at the scene and left at approximately 10 p.m. with Milam to go to the emergency room. Milam's face was extremely swollen, he had black eyes under both eyes, his nose was crooked, and his jaw was "detached from the bottom and top was not coming together." Milam stayed in the hospital for five days. Milam underwent surgery to put four titanium plates in his face to reconstruct his broken jaw, nose, right cheek, left cheek, and right orbital. Milam's jaw was wired shut for seven weeks following surgery, and he lost twenty-eight pounds from being on a liquid diet. Max Garza waited on Metcalf and Milam for three hours on the night of the offense. Garza saw Milam get up from the table and go to the bathroom, and appellant sat down in Milam's chair. Garza recognized appellant as someone who had been on stage as part of the show. When appellant sat down, Metcalf appeared "uneasy," and she was "leaning towards the side away from him." Milam came back to the table and started talking to appellant. Milam appeared "relaxed" when he began talking to appellant. Milam made a "couple of attempts of standing there motioning . . . like to get up out of his chair." Appellant stood up, "they got in each other's face," and Garza started "getting a little bit closer" because "you can tell when people are going to get into an altercation." Milam "was standing straight, arms out right by his body," and "there was no motion forward." Milam did not "lean in and head butt or anything of that sort" and did not do anything aggressive toward appellant. Appellant was "aggressive" and "kind of closed his fist by his side" when he spoke to Milam. Garza saw appellant hit Milam in the jaw with his fist and then hit him "somewhere around the eye." As soon as he was struck, Milam's "face just kind of blew up in blood like he started bleeding," his jaw was bleeding, and his eye orbit was bloody. Milam was "more in a pose trying to just get away, moving back away, kind of in shock more than anything." Garza started moving toward Milam and appellant after the first hit and tried to tackle appellant, who struck Milam a third "glancing" blow. While Garza was separating appellant, appellant was "still fighting" and punched Garza in the mouth. After Garza grabbed appellant, appellant was "even more aggressive." Appellant was a "big guy," and it took "three or four people to keep him down." Appellant "kept insulting us with obscenities and just trying to fight." Appellant was "aggressive towards everybody" including Garza, Garza's manager, the bouncers, and "three parties." "Even when the cops showed up [appellant] was still cocky, talking to the cops in a demeaning way." Garza did not notice any injuries on appellant's body, and appellant was not bleeding. Appellant was subsequently charged with aggravated assault. At trial, appellant presented the testimony of Chad Anthony Gonzalez, who was also auditioning for Strip Search on the night of the fight. Gonzalez testified he was returning from the restroom when he saw appellant and Milam talking. Gonzalez saw Milam "lunge and head butt [appellant] in the chin." Appellant "had stumbled back and then threw one punch to [Milam's] face and then they were both obtained by bouncers." After Milam was hit, Gonzalez saw no "blood or any disfigurement" on Milam's face. Milan Rainey, also present at the Strip Search audition, testified he saw Milam and appellant involved in a "loud argument." Milam "seemed like he hit his head against [appellant's] head and soon after that [appellant], I guess, retaliated." In Rainey's opinion, appellant hit back "because he was hit." A jury convicted appellant of assault, and this appeal followed. In his first point of error, appellant argues the trial court erred in not including a self-defense negation instruction in the application paragraph of the jury charge. Appellant complains the jury instructions should have required the State to prove beyond a reasonable doubt that appellant did not act in self-defense. In his second point of error, appellant contends the jury charge error was compounded by the trial court's response to a question from the deliberating jurors which asked whether the prosecution had to prove appellant did not use self defense. Appellant complains that, while the trial court's answer did reaffirm that the State had the burden to prove each element of the offense beyond a reasonable doubt, the trial court did not state that the prosecution had to disprove self-defense beyond a reasonable doubt in order to warrant a conviction. In his third point of error, appellant contends the error was further compounded by the trial court's statement that the prosecution was not required to affirmatively produce evidence to rebut evidence of self-defense. This statement, appellant contends, was an improper comment on the weight of the evidence. Because of the interrelated nature of the arguments raised in appellant's first, second, and third points of error, we will address these arguments together. A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. Tex. Penal Code Ann. § 9.31(a) (Vernon Supp. 2007). Section 2.03(d) of the penal code requires the trial court to instruct the jury it must acquit the defendant if it has reasonable doubt on the existence of a defensive issue. Tex. Penal Code Ann. § 2.03(d) (Vernon 2003). A defendant bears the burden of production of some evidence that raises self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). Once the defendant produces such evidence, the State has the burden of persuasion to show the defendant did not act in self-defense. Id. To meet this burden, the State is not required to produce evidence to disprove self-defense but only to prove its case beyond a reasonable doubt. Id. Here, the jury charge correctly placed the burden on the State to prove each element of the offense beyond a reasonable doubt. The application paragraphs both included the following instruction: if you have a reasonable doubt as to whether or not the defendant was acting in self-defense on said occasion and under the circumstances, then you should give the defendant the benefit of that doubt and say by your verdict not guilty. Thus, the charge correctly instructed the jury it should acquit appellant if it had reasonable doubt on the self-defense issue. See Tex. Penal Code Ann. § 2.03(d) (Vernon 2003). The State was not required to produce evidence to disprove self-defense but only to prove its case beyond reasonable doubt, as the charge required. See Zuliani, 97 S.W.3d at 594. Because the charge, as submitted, correctly instructed the jury, we cannot conclude the trial court erred in omitting a self-defense instruction. See id. We overrule appellant's first point of error. Similarly lacking in merit are appellant's arguments that the trial court incorrectly responded when the jurors asked whether the prosecution had to prove that appellant did not use self defense. The trial court responded to the jury that "The prosecution must prove the elements of the alleged offense beyond a reasonable doubt. The prosecution has the burden of persuasion in disapproving evidence of self-defense, if any. The prosecution is not required to affirmatively produce evidence to rebut evidence of self-defense, if any." This response is a correct statement of the law. See id. We overrule appellant's second and third points of error. In appellant's fourth, fifth, sixth, and seventh points of error, appellant argues his trial counsel was ineffective in (1) failing to object to the absence of a self-defense negation instruction in the court's charge, (2) failing to object to the trial court's response to the jury's question whether the State had to disprove self-defense, (3) failing to call witnesses who would have supported appellant's claim of self-defense, and (4) failing to explain to the jury in final argument that the State was required to disprove self-defense beyond a reasonable doubt. In his eighth point of error, appellant argues the combined effect of trial counsel's errors constituted ineffective assistance. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. Strickland, 466 U.S. at 687-88, 694. The record must be sufficiently developed to overcome a strong presumption that counsel provided reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). An appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Id. at 813. We have already determined the State was not required to produce evidence to disprove self-defense but instead was required to prove its case beyond a reasonable doubt, and the trial court did not err in not including a self-defense negation instruction in the charge and responding to the jury's question whether the State had to disprove self-defense. Accordingly, appellant's trial counsel was not ineffective in choosing not to object to these unobjectionable matters and choosing not to argue the State was required to disprove self-defense beyond a reasonable doubt. As to whether counsel was ineffective in failing to call witnesses who would have supported appellant's claim of self-defense, appellant complains specifically of counsel's failure to call Tanya Foreman and Nicholas Warr. At the hearing on appellant's motion for new trial, appellant's trial counsel testified appellant instructed counsel to "try this thing as quickly and fast as possible." Appellant identified Foreman as a potential witness and said he would be able to contact Foreman, but he did not give counsel correct contact information for Foreman. Counsel's investigator was unable to locate Foreman despite trying "on several occasions" to contact her. Counsel testified more time would have been beneficial in trying to find Foreman, but appellant "wanted a trial as quickly as possible." Appellant made the decision to proceed to trial on the date set and knew Foreman was not available as a witness at that time. Counsel testified he reviewed Foreman's statement, and her testimony would have been helpful to corroborate what other witnesses had already stated. However, counsel testified he was able to "get that information out through other witnesses." As to Warr, counsel testified it was a "collective decision" not to call Warr to testify "since [Warr] had a prior conviction as a juvenile." Counsel talked to Warr "two or three times" prior to the trial date and formed the opinion Warr was, of all the witnesses, "the one that would present with the most baggage." Warr had a prior conviction as a juvenile, and Warr was not "strong in our interviews," so counsel thought Warr would be unpredictable on cross-examination. Warr needed a "lot of guidance to get through what happened" and seemed the "weakest" of all the witnesses. Counsel told appellant it was appellant's decision whether to have Warr testify. Appellant agreed Warr should not testify. Foreman testified that a mutual friend introduced her to appellant on the night of the offense, and she witnessed the fight between appellant and Milam. Foreman testified she "saw [Milam] kind of come toward [appellant] and then it was just a bunch of bouncers." "There might have been words being exchanged" between Milam and appellant, but she did not "remember them yelling." Foreman did not "remember a whole lot about the night." Foreman testified she saw Metcalf coming back from the bathroom while the fight was happening. Regarding the fight, it "looked like [Milam] moved towards [appellant] and maybe even bumped him," but Foreman "couldn't be for sure because [she] wasn't standing right up at that angle." Foreman remembered appellant giving Milam "just one pretty hard hit." Foreman testified the phone number appellant's counsel had was no longer her correct number at the time of trial, and her address was not listed. Foreman had gotten married, and she "really didn't talk to any of these guys." Foreman testified appellant would not have been able to contact her because she had gotten married and changed her name. Warr testified he was "an associate" of appellant's. On the night of the fight, Warr saw appellant and Milam "standing in each other's face" and yelling at each other. Warr "tried to intervene and get in between them." Warr walked in between them and tried to put his arms in between them. Warr testified Milam pushed Warr's hand away and "stepped towards [appellant] and flinched at him." This movement "knocked [appellant] back and [appellant] hit [Milam]." According to Warr, appellant hit Milam only once, and there was no blood or obvious damage to Milam's face. Warr testified he showed up at appellant's trial, but appellant's counsel told Warr to go home. Thus, though appellant was able to locate Foreman after searching for two weeks and have her testify at the motion for new trial hearing, the record shows Foreman could not be located to testify at trial because she had moved, gotten married, and changed her name. Counsel would have benefitted from more time to look for her, but appellant "wanted a trial as quickly as possible." Appellant made the decision to proceed to trial on the date set and knew Foreman was not available as a witness at that time. As to Warr, appellant, who had known Warr for years, conferred with his counsel and decided not to call Warr as a witness. Appellant argues on appeal that Warr's juvenile conviction would not have been admissible at trial. However, this does not appear to have been the only basis for not calling Warr as a witness. Counsel testified Warr was not "strong" in interviews and would have been unpredictable on cross-examination. Having reviewed the record, it appears counsel tried repeatedly without success to find Foreman and made the "collective decision" not to call Warr to testify after talking repeatedly to Warr and conferring with appellant. The record shows both Gonzalez and Rainey testified at trial that Milam struck appellant first with his head. Under the facts and circumstances of this case, we cannot conclude counsel's strategic choices rendered his assistance ineffective. Strickland, 466 U.S. at 687-88, 694. We overrule appellant's fourth, fifth, sixth, and seventh points of error. Having concluded appellant's complaints that trial counsel rendered ineffective assistance lack merit, we overrule appellant's eighth point of error complaining of the combined effect of counsel's ineffective assistance. We affirm the trial court's judgment.