Opinion
No. 05-10-00820-CR
03-09-2012
STEVEN FULFORD, Appellant v. THE STATE OF TEXAS, Appelle
AFFIRM and Opinion March 8, 2012
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-81213-09
OPINION
Before Justices O'Neill, Richter, and Francis
Opinion By Justice Richter
A jury convicted appellant of attempted murder and sentenced him to forty-five years' imprisonment. In three issues on appeal, appellant contends the evidence is insufficient to support his conviction, the trial court erred in instructing the jury, and he was denied effective assistance of counsel. Finding no reversible error, we affirm the trial court's judgment.
Sufficiency of the Evidence
In his first issue, appellant argues the evidence is insufficient to support his conviction because the state failed to prove he had the specific intent to commit murder. We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute [its] judgment for that of the jury"). All evidence, whether properly or improperly admitted, will be considered when reviewing the sufficiency of the evidence. See McDaniel v. Brown, 130 S.Ct. 665, 672 (2010); Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Jackson, 443 U.S. at 319.
One of the essential elements of attempted murder is that, while acting with specific intent to commit murder, the defendant does an act amounting to "more than mere preparation" that tends but fails to effect the murder. See Tex. Penal Code Ann. § 15.01(a) (West 2011). Specific intent may be inferred from the conduct, words, or acts of the accused. See Session v. State, 680 S.W.2d 549, 552 (Tex. App.-Beaumont 1984, no pet.). Appellant claims the evidence is insufficient to prove this essential element.
The record reflects that following gallbladder surgery, appellant moved in with his mother, Rosalinda Gensler. On February 19, 2009, appellant went out to lunch and did not return until about 7:00 p.m. Gensler could tell appellant had been drinking and knew he had been taking pain pills as a result of his surgery. Gensler told appellant he should not have been drinking after his surgery, and he went upstairs to his bedroom.
Gensler heard a noise upstairs and was afraid appellant had fallen. When she checked on him, she found appellant sitting on his bed, rocking back and forth and crying. Gensler tried to calm appellant down, but he began yelling at her, asking if she was going to kick him out of the house. Gensler started downstairs to call her other son to see if he could calm appellant down. But appellant followed her, and suddenly pushed her. Gensler fell down three flights of stairs, and then appellant pushed her against the front door. He first hit the door, and then began hitting Gensler with his fist. Gensler begged appellant to stop. The pair tripped over a stool and fell against the sofa, where appellant pushed Gensler's face into the cushions and began choking her.
Appellant then threw Gensler against the floor and started punching and kicking her. He called her "all kinds of names" and told her she was going to die that night. As appellant was kicking her, Gensler saw a cell phone under the couch cushion, and managed to call 911. Gensler attempted to communicate with the 911 operator while begging appellant to stop. In the interim, appellant grabbed a hair dryer and hit Gensler with it several times in the head and face. Appellant started choking Gensler with his hands and told her she was going to die and would see what it was like to live in hell. Then he started choking her with the dryer cord. On the 911 tape that was played for the jury during trial, appellant can be heard saying repeatedly "I'll kill you, I'll kill you." He also says "I'll kill you. I swear to God I'll slit your [expletive] throat." Later appellant says, "I'll kill you just like that." After Gensler whispers her address, the call is cut off.
When the police arrived in response to the 911 call, appellant thought it was Gensler's boyfriend and said he was "going to kill him too." Appellant opened the door, still holding the dryer in his hands. Although appellant smelled like alcohol, the police did not believe he was "so intoxicated that he was out of his mind." Appellant told the officers Gensler's boyfriend had assaulted her and fled.
Appellant's sufficiency challenge is premised on the fact that Gensler did not sustain life threatening or serious bodily injury and Gensler's testimony that appellant was in a weakened state, intoxicated, and was not himself that evening. We are not persuaded by this argument. Attempted murder does not require that the victim sustain a life threatening injury, but rather, that the actor intended to bring about the desired result. See See Tex. Penal Code Ann. §19.02(b) (West 2011) . The weight to be afforded Gensler's testimony was within the province of the jury. See King, 29 S.W.3d at 562. On this record, we conclude a rational trier of fact could have inferred from the words and conduct of appellant that he had the specific intent to commit murder. Appellant's first issue is overruled.
Charge Error
In his second issue, appellant contends the trial court erred by defining murder to include a "knowing" mental state in the jury charge. The state responds that the trial court did not err, or alternatively, that any error was harmless.
"All alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." Kirsch v. State, No. PD-0245-11, 2012 WL 204280 at *2 (Tex. Crim. App. January 25, 2012); Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003). In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. See Abdnor v.. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994); see also Sakil v. State, 287 S.W.3d 23, 25-26 (Tex. Crim. App. 2009). If error occurred, we then evaluate whether sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 731-32.
The issue of error preservation is not relevant until harm is assessed because the degree of harm required for reversal depends on whether the error was preserved. Kirsch, 2012 WL 204280 at * 2. If there is error in the court's charge but the appellant did not preserve it at trial, we must decide whether the error was so egregious and created such harm that the appellant did not have a fair and impartial trial - in short, that egregious harm has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.1985) (op. on reh'g); see tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm "is a difficult standard to prove and such a determination must be done on a case-by-case basis." Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011) (quoting Hutch, 922 S.W.2d at 171).
In determining whether error occurred, the reviewing court examines the charge as a whole, considering the workable relationship between the abstract paragraphs of the charge and those applying the abstract law to the facts of the case. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997); see also Caldwell v. State, 971 S.W.2d 663, 666 (Tex. App.-Dallas 1998, pet. ref'd). The abstract paragraphs act as a "glossary" to facilitate the jury's understanding of the concepts and terms used in the application paragraphs of the charge. Plata, 926 S.W.2d at 302; see also Caldwell, 971 S.W.2d at 666. A charge is adequate if it contains an application paragraph authorizing a conviction under conditions specified by other paragraphs of the charge to which the application paragraph necessarily and unambiguously refers, or contains some logically consistent combination of such paragraphs. Plata, 926 S.W.2d at 304; see also Caldwell, 971 S.W.2d at 666. The Texas Penal Code dictates that a person commits a criminal attempt if: "with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Penal Code Ann. § 15.01(a) (West 2011). A person commits murder if he intentionally or knowingly causes the death of an individual. See Tex. Penal Code Ann. §19.02(b). Criminal attempt under section 15.01 requires the specific intent to commit the offense attempted. Tex. Penal Code Ann. § 15.01(a). "Specific intent" has traditionally been interpreted to mean that the actor must have the intent to bring about the desired result, which in the case of attempted murder, is the death of the individual. See Flanagan v. State, 675 S.W.2d 734,741 (Tex. Crim. App. 1982) (op. on reh'g).
The portion of the charge about which appellant complains is set forth in the abstract paragraph and states:
Our law provides that a person commits murder if he intentionally or knowingly causes the death of an individual.
Appellant does not dispute that the foregoing comports with the statutory definition of murder. Instead, he complains the inclusion of this definition authorized the jury to find him guilty of attempted murder absent a specific intent to kill. In support of his argument, appellant relies on a note from the jury to the judge that purportedly evidences the jury's confusion about the charge. According to appellant, in light of this note, the record as a whole supports the conclusion that the "error" in the definitional part of the charge was not cured in the application paragraph. We disagree with appellant's characterizations and conclusions.
The jury noted that "knowingly" did not appear in the charge of attempted murder as it did in the charge of aggravated assault, and stated that their understanding from voir dire was that attempted murder could be either knowing or intentional. The court directed the jury back to the charge. As appellant concedes, he did not request a mistrial.
The abstract paragraph also included the statutory definition of criminal attempt. This definition immediately followed the definition of murder, and stated in pertinent part:
A person commits an offense, if with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends, but fails, to effect the commission of the offense intended. This is an attempt to commit an offense.The charge further instructed the jury on aggravated assault, and provided definitions for "knowing," "intentional," and "reckless."
Here, the application paragraph of the charge instructed the jury that appellant could only be convicted of attempted murder if they found beyond a reasonable doubt, that appellant acted "with the specific intent to commit the offense of murder." Significantly, jurors are not authorized to return a verdict except under those conditions given by the application paragraph of the charge. See Delapaz v. State, 228 S.W.3d 183, 212 (Tex. App.-Dallas 2007, pet. ref'd).
Considering the charge in its entirety, we conclude the charge was not erroneous. The definition of criminal attempt informed the jury that a specific intent was required for the charged offense. Moreover, the application paragraph properly required the jury to find that appellant acted with the specific intent to murder in order to find him guilty of attempted murder. See Roberson v. State, 144 S.W.3d 34, 41-42 (Tex. App.-Fort Worth 2004, pet ref'd). Because we conclude the charge was not error, appellant's second issue is overruled.
Ineffective Assistance of Counsel
In his third issue, appellant maintains he was denied effective assistance of counsel because his trial counsel failed to object to evidence of his prior conviction for injury to a child. The state responds that the record is inadequate to address this complaint. We agree with the state.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, §10. This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92. Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).
Review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct fell within a wide range of reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005); Mallett v. State, 65 S.W.3d 59, 62-63 (Tex. Crim. App. 2001). A reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at 740; Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1994). To overcome the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. (quoting Thompson, 9 S.W.3d at 813). It is not appropriate for an appellate court to simply infer ineffective assistance based upon unclear portions of the record. Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007).
When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex. App.-Houston [14th Dist.] 2000, pet. ref'd). The Court of Criminal Appeals has stated that it should be a rare case in which an appellate court finds ineffective assistance on a record that is silent as to counsel's trial strategy. See Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim. App. 2005). On such a silent record, this court can find ineffective assistance of counsel only if the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Prior to the commencement of the punishment phase of trial, defense counsel requested permission to confer with the state. After an off-the-record consultation, defense counsel stipulated to the admission of a pen packet showing appellant's prior conviction for injury to a child. The exhibit was offered and admitted outside the jury's presence, and when the jury returned, the state published the exhibit and rested. Appellant now complains counsel was ineffective because he stipulated to the admission of the exhibit into evidence.
The record before us, however, is devoid of any explanation of counsel's strategy. Because we have no measure by which to evaluate counsel's strategy or rationale, appellant has failed to overcome the presumption of reasonable professional assistance. Appellant's third issue is overruled.
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100820F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STEVEN FULFORD, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00820-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 81213-09).
Opinion delivered by Justice Richter, Justices O'Neill and Frances participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 8, 2012.
MARTIN RICHTER
JUSTICE