Opinion
Nos. 05-08-00693-CR, 05-08-00832-CR
Opinion issued July 30, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F07-57063-M and No. F05-49530-WM.
Before Justices BRIDGES, O'NEILL, and MURPHY.
MEMORANDUM OPINION
In this consolidated appeal, appellant Andrew Wesley appeals his murder conviction, the adjudication of his guilt for aggravated robbery, and accompanying sentences. With regard to the murder conviction, appellant challenges the legal and factual sufficiency of the evidence to support the jury's implicit rejection of appellant's claim of self-defense and contends his counsel provided him ineffective assistance of counsel. In his appeal of the adjudication of his guilt for aggravated robbery, appellant contends the evidence that appellant committed murder was insufficient to support the revocation of his deferred adjudication probation. We affirm the judgments.
Background
Ian Joseph, the victim in this case, was the boyfriend of appellant's grandmother, Sheron Finley. On September 18, 2007, appellant was at his grandmother's house with his brother, Antonio, and sister, Erica. Appellant and Antonio got into an argument and began fighting. Finley and Joseph heard the commotion and came to break up the fight. Joseph grabbed appellant from the back and began hitting him in the ribs. Finley testified Joseph hit appellant twice while appellant was on the ground, but appellant and Erica stated Joseph hit appellant multiple times. At one point in the altercation, appellant got up and ran out of the house. Joseph chased appellant and threw a glass object at him in the middle of the street. Bryan Chambers, appellant's friend and a witness to the chase, stated he heard Joseph tell appellant that "If you want to steal something from me, you got to go through grown man's pain. . . ." Joseph stopped chasing him and returned to Finley's house. At about this point, Erica left the house. A few minutes later, appellant came back to Finley's house and went into an upstairs room and locked the door. Finley testified that Joseph then went upstairs to apologize to appellant for the incident. Appellant testified that after Joseph went upstairs, he was outside the bedroom door screaming, "What have I ever done to you?" However, Finley testified that she did not hear Joseph say anything from downstairs, but heard appellant yell, "You should go away cause you know I am afraid of you." Appellant also testified that he told Joseph to leave because he was afraid. Appellant stated he was scared of Joseph because, in addition to the events that took place that day, Joseph was larger than he was and had been to prison for aggravated assault with a deadly weapon. Appellant testified that when he opened the bedroom door, Joseph had a hand behind his back, and it appeared to appellant that some type of weapon was in Joseph's hand. Appellant testified that Joseph attempted to lunge through the bedroom door after appellant opened it and appellant closed his eyes and fired the gun. Appellant testified that he had the gun on his person the entire time (i.e. during the initial fist fight, the chase, and following), but did not use it until he was in the bedroom. Appellant stated he opened his eyes and made eye contact with Joseph after the first shot, saw Joseph was "still trying to come, [he] figured [he] missed so [he] shot again." He testified that he was in fear of serious bodily injury. But, he also testified that he and Joseph had a good relationship and were friends. Finley testified that she heard the door slam and then heard two gunshots. After hearing the gunshots, she ran outside to call 9-1-1. Appellant ran from the scene. Finley explained that she saw appellant run outside the house and saw the gun in his hand. She said appellant waived the gun at her and said, "I am going to kill your boyfriend." Appellant testified that he said nothing at this point. After he was shot, Joseph grabbed himself and went downstairs. While Finley was on the phone with 9-1-1, Joseph came into the garage and was bleeding. Finley notified the 9-1-1 operator that someone had been shot. The Dallas county medical examiner classified Joseph's death as a homicide caused by multiple gunshot wounds. Officer Gonzalez testified that a laser gun was found in Joseph's front pocket after he was taken to the hospital. The medical examiner testified that at the time of Joseph's death, he had alcohol in his system. A beer bottle was found in the area in which Joseph had been standing before he was shot. After he shot Joseph, appellant called his girlfriend to pick him up and drive him to his mother's house. His mother testified that appellant was upset and crying. Appellant testified that he was scared because he knew he was on probation. Appellant's mother said she and her family advised appellant to turn himself into authorities and arranged for appellant to do so. At trial, appellant admitted that he shot Joseph, but claimed to have done so in self-defense. Following trial, a jury convicted appellant of murder and the trial court sentenced appellant to thirty-eight years in prison. Following appellant's murder conviction, the State moved to revoke appellant's probation and proceed with adjudication of guilt for aggravated robbery. The State relied upon the murder conviction as one of the grounds for the revocation. After a hearing, the trial court revoked appellant's probation and adjudicated appellant guilty of aggravated robbery. Appellant was sentenced to fifty years in prison for the aggravated robbery conviction. Appellant appeals both convictions and the accompanying sentences.Analysis
I. Appeal of the Murder Conviction
A. Legal and Factual SufficiencyIn his first two issues, appellant challenges the legal and factual sufficiency of the evidence to support the jury's implicit rejection of his claim of self-defense. On a legal sufficiency challenge, this court reviews the evidence in the light most favorable to the jury's verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App. 2007). The reviewing court must give deference to "the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper, 214 S.W.3d at 14 (citing Jackson, 443 U.S. at 318-19). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, therefore, is free to accept or reject any or all evidence presented by either side. See Lancon v. State, 253 S.W.3d 699, 707 (Tex.Crim.App. 2008). When an appellant challenges the legal sufficiency of the evidence supporting a jury's rejection of self-defense, "we look not to whether the State presented evidence which refuted appellant's self-defense testimony, but 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 murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt." Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991).
On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex.Crim.App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. When an appellant challenges the factual sufficiency of the rejection of self-defense, we review all of the evidence in a neutral light and ask "whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). A person commits murder if he intentionally or knowingly causes the death of an individual or 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 Ann. § 19.02(b)(1-2) (Vernon 2008). A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. Id. at § 9.31(a). "Deadly force" is force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. Id. at § 9.01(3).
A person is justified in using deadly force against another if he would be justified in using force against the other under section 9.31 of the penal code and when and to the degree he reasonably believes the deadly force is immediately necessary to protect him against the other's use of or attempted use of unlawful deadly force. Id. at 9.32(a). The issue of self-defense is an issue of fact to be determined by the jury. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). A jury verdict of guilty is an implicit finding rejecting the defendant's self-defense theory. Id.
Turning to the sufficiency review in this case, appellant admitted pulling the trigger on a weapon he already had on his person that day. Appellant stated he opened the bedroom door and then pulled the trigger and shot Joseph when the deceased lunged at him. He also admitted that he paused after the first shot to open his eyes and then shot Joseph a second time when he thought he had missed Joseph with the first shot. The jury heard that appellant had been fighting with his brother earlier that day and that Joseph broke up that fight. Finley testified that Joseph went upstairs to apologize and did not hear Joseph yelling at appellant, but only heard appellant yelling at Joseph to leave because he was afraid. The jury also learned that appellant fled the scene after he shot Joseph. Finley testified that when appellant fled, he waived the gun at her and said, "I am going to kill your boyfriend." Although appellant admitted he shot Joseph, he stated he did so in self-defense. Appellant testified that he believed Joseph had a weapon behind his back. In fact, the jury discovered that Joseph had a laser gun, but it was found in his pocket at the hospital. Although appellant stated he was in fear of serious bodily injury at the time he shot Joseph, he also indicated that he and Joseph had a good relationship and were friends. On the basis of these facts, we hold that a rational jury could have found beyond a reasonable doubt against appellant on the self-defense issue. See Harper, 214 S.W.3d at 14; Zuliani, 97 S.W.3d at 595. In other words, the evidence is sufficient to support appellant's murder conviction. Id. We overrule appellant's first two issues on appeal.B. Ineffective Assistance of Counsel
In his third issue, appellant contends his counsel was ineffective for eliciting the fact that appellant was on deferred adjudication for armed robbery when such an offense is otherwise inadmissible. He contends his lawyer was particularly ineffective since the self-defense claim was almost entirely dependent on appellant's credibility.
A claim of ineffective assistance of counsel is reviewed under ths Strickland test. Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999) (citing Strickland v. Washington, 466 U.S. 668 (1984)). In determining whether counsel rendered ineffective assistance, an appellate court considers two factors: (1) whether counsel's performance fell below an objective standard of reasonableness, and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. Thompson v. State, 9 S.W.3d 808, 812 (Tex Crim. App. 1999). Appellant bears the burden of proving his counsel was ineffective by a preponderance of the evidence. Thompson, 9 S.W.3d at 813.
There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813. To defeat this presumption, appellant must prove that there was no plausible professional reason for a specific act or omission. Bone, 77 S.W.3d at 836. Furthermore, a reviewing court on direct appeal will rarely be able to fairly evaluate the merits of an ineffective assistance claim because the record on direct appeal is not developed adequately to reflect the reasons for defense counsel's actions at trial. Mata v. State, 226 S.W.3d 425, 430 (Tex.Crim.App. 2007). In the present case, appellant complains of the following exchange with his lawyer:
Defense counsel:
Now, Mr. Wesley, you are presently on felony probation, is that correct?
Appellant:
Yes, sir.
Following this preliminary question and answer, defense counsel moved on to question appellant about the events on September 17, 2007. During the State's questioning, the following exchange took place:
State:
Mr. Wesley, let me begin by talking about the first point your attorney brought up, when all of this occurred, you were on felony probation already?
Appellant:
Yes, sir.
State:
You were on felony probation for aggravated robbery?
Appellant:
Yes, sir.
State:
Okay. And in that case, Mr. Wesley, what was your role?
Defense counsel:
Your Honor, I am going to object to him going into the facts of the case, that is improper impeachment.
Court:
Sustained.
State:
Let me ask you this, that case involved a deadly weapon as well?
Appellant:
Yes, sir.
State:
And part of the conditions that you are on probation is that you weren't allowed to carry any kind of gun?
Appellant:
Correct.
State:
Okay. Yet you had one here?
Appellant:
Correct.
State:
Why?
Appellant:
I got it from somebody. I was going to sell it to somebody I knew.
State:
Did that matter?
Appellant:
No, sir.
State:
You weren't supposed to have it regardless, right?
Appellant:
No, sir.
State:
Whether you were buying it, selling it, giving it to somebody else, you weren't supposed to have it?
Appellant:
No, sir.
State:
And you knew that?
Appellant:
Yes, sir.
State:
Now, based on that probation, how were you doing on that probation?
Defense counsel:
Your Honor, I am going to object to that, that is improper impeachment.
Court:
Sustained.
State:
You had a warrant out for that probation?
Appellant:
Correct.
State:
All right. You didn't report?
Defense counsel:
Your Honor, I am going to object once again, that is improper.
State:
Judge, it goes to his bias, it goes straight to his bias. He is allowed to get into this, he cannot go into the facts of the aggravated robbery, you can go into the warrant.
Defense counsel:
And you have asked him whether he has a warrant out and he said, yes.
Court:
I sustain the objection.
In his brief, appellant contends his trial attorney was ineffective because he seriously undermined his credibility with the jury by having him inform the jury about an inadmissible offense he had committed, he opened the door for the State to cross-examine appellant about the offense, and he opened the door for the State to remind the jury about the offense in closing while arguing appellant's claim of self-defense was not credible. We disagree.
We must follow the strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Bone, 77 S.W.3d at 833. We agree with the State's argument that it is conceivable that defense counsel elicited the testimony to explain why appellant, who argued he was completely justified in shooting Joseph, fled the scene. Although, appellant may now disagree with this strategy, he has not established that there was no other plausible reason or explanation for the testimony and we cannot second-guess trial counsel's strategy now. Blount v. State, 64 S.W.3d 451, 454 (Tex.App.-Texarkana 2001, no pet.). Consequently, appellant has failed to meet the first Strickland requirement for this Court to find defense counsel ineffective. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005) (holding that an appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself). We overrule appellant's third issue on appeal.II Appeal of the Adjudication of Guilt for Aggravated Robbery
With regard to his adjudication of guilt for aggravated robbery, appellant raises one issue. He contends the evidence that appellant committed murder was insufficient to support the revocation of his deferred adjudication probation when that allegation was the major allegation supporting the State's motion to revoke probation and proceed with adjudication of guilt. In its motion to proceed with adjudication of guilt, the State alleged appellant violated several conditions of his community supervision. Appellant entered a plea of "true" to all of the State's allegations, with the exception of one, and following a revocation hearing, the trial court adjudicated appellant guilty of aggravated robbery and sentenced him to fifty years in the Institutional Division of the Texas Department of Criminal Justice.
On appeal, appellant contends that, despite his plea of "true" to all but one of the alleged violations, the trial court's decision to revoke his community supervision was an abuse of discretion because the evidence was insufficient to show that appellant committed the alleged violation to which he plead "not true." We disagree.
The trial court's decision to revoke a defendant's deferred adjudication community supervision is reviewed under an abuse of discretion standard. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2008); Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App. 2006) (holding appellate review of an order revoking community supervision is limited to determining whether the trial court abused its discretion). The reviewing court must consider all the evidence in the light most favorable to the trial court's finding to determine whether the trial court could have reasonably found by a preponderance of the evidence that the defendant violated the terms and conditions of his probation. Id. at 763-64. A plea of "true" to even one allegation in the State's motion to adjudicate is sufficient to support a revocation of deferred adjudication community supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex.Crim.App. 1979); Lewis v. State, 195 S.W.3d 205, 209 (Tex.App.-San Antonio 2006, pet denied).
Here, appellant entered a plea of "true" to the following community supervision violations: (1) possession of a firearm; (2) failing to report to the community supervision officer; (3) failure to obtain and maintain employment; (4) failure to make community supervision payments; (5) failure to perform community service; (6) failure to complete SAFPF aftercare; (7) failure to complete the required drug education program; (8) failure to obtain a GED; and (9) failure to reside at the location ordered by the court. Appellant entered a plea of "not true" to the offense of murder. When viewed in the light most favorable to the trial court's ruling, appellant's plea of "true" to nine out of ten violations supports the trial court's decision to revoke appellant's community supervisionCole, 578 S.W.2d at 128; Lewis, 195 S.W.3d at 209. Therefore, we overrule appellant's sole issue in the appeal of his adjudication of guilt for aggravated robbery.
Having overruled all of appellant's issues, we affirm the judgments of the trial court.