No. 05-10-00417-CR
Opinion Filed December 14, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 7 Dallas County, Texas, Trial Court Cause No. F06-86507-SIY.
Before Justices MOSELEY, LANG, and MYERS.
Opinion by Justice LANG.
Appellant Anthony Allen London was convicted by a jury of murder. In his first appeal regarding that conviction, this Court reversed and remanded only for a new punishment trial. London v. State, 325 S.W.3d 197, 209 (Tex. App.-Dallas 2008, no pet.). Upon retrial, a jury assessed punishment at imprisonment for thirty-five years. In three issues, London contends (1) the jury's failure to find that he acted under the influence of sudden passion was against the great weight and preponderance of the evidence, (2) he received ineffective assistance of trial counsel when counsel failed to object to the prosecutor's misstatement during cross-examination of appellant during the penalty phase of the trial, and (3) he received ineffective assistance of trial counsel when counsel failed to object to the prosecutor's misstatement during closing argument of the penalty phase of the trial. We decide against London on all issues. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 28, 2006, Kerwin Holmes and his girlfriend were walking from a store to a motel where Holmes was living. Id. at 201. They met appellant, and an argument began between Holmes and appellant. Id. Appellant ran into a room at another nearby motel. Id. Holmes entered a car driven by Roderic Fowlks and sat behind him. Id. Also in the car were Fowlks's girlfriend and another passenger. Id. As the car drove away, appellant returned to the street with a gun and fired at the retreating car. Id. A shot from appellant's gun pierced the car's rear window, hit Holmes in the head, and killed him. Id. A jury convicted appellant of murder. Id. This is the second time appellant has appealed to this Court regarding his conviction. In the first appeal, we addressed appellant's claim that his conviction and punishment of twenty years' imprisonment for murder should be reversed because the trial court instructed the jury on a special issue of sudden passion in mitigation of punishment, but failed to instruct the jury to render a unanimous verdict on the sudden-passion special issue. Id. at 206-09. The jury returned a general verdict that appellant was guilty of murder and assessed punishment of twenty years' imprisonment. Id. at 201. This Court agreed with appellant, concluded the trial court's error was harmful, and reversed and remanded for a new punishment trial. Id. at 206-09. Upon remand, at the punishment stage of the trial, the jury again answered negatively on appellant's special issue of sudden passion arising from an adequate cause and assessed punishment of thirty-five years' imprisonment. Appellant timely filed a notice of appeal. II. SUDDEN-PASSION DEFENSE
In his first issue, appellant argues that the jury's rejection of his sudden-passion defense is against the great weight and preponderance of the evidence because appellant was being shot at by a person in the car in which Holmes was riding, which placed appellant in a state of fear, and appellant did not have sufficient time for cool reflection before returning fire at the car out of sudden passion. The State responds appellant was not placed in a state of fear because there was no other shooter besides appellant. Further, the State asserts the jury, as sole judge of weight and credibility of evidence, chose not to believe appellant was placed under the immediate influence of sudden passion arising from an adequate cause. Accordingly, the decision was not against the great weight and preponderance of the evidence. A. Standard of Review
The Court of Criminal Appeals has held that the Jackson v. Virginia legal-sufficiency standard is now "the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt." Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). For cases and claims involving other burdens of proof, a Brooks concurrence noted that the factual-sufficiency standard announced in Meraz v. State, 785 S.W.2d 146, 154-55 (Tex. Crim. App. 1990), is nevertheless appropriate for review of issues, such as affirmative defenses, on which the defendant has the burden of proof by preponderance of the evidence. See Brooks, 323 S.W.3d at 924-26 (Cochran, J., concurring). When a defendant seeks appellate review of a jury's failure to make a finding on which the defendant has the burden of proof, such as on an affirmative defense, the defendant invokes our factual review jurisdiction. Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.-Dallas 1998, pet. ref'd) (citing Meraz, 785 S.W.2d at 154-55). In such an instance, the appropriate standard of review is whether, after considering all the evidence relevant to the issue at hand, the judgment is so against the great weight and preponderance of the evidence so as to be manifestly unjust. Meraz, 785 S.W.2d at 155. In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). B. Applicable Law
The Texas Penal Code provides in relevant part that a person commits murder if he "(1) intentionally or knowingly causes the death of an individual; [or] (2) 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) (West 2011). At the punishment stage of the trial, the defendant may raise the issue of whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. Id. § 19.02(d). If the defendant proves that affirmative defense by a preponderance of the evidence, the offense of murder is punished as a second-degree felony. Id. Legally adequate cause requires some evidence of the condition of the accused's mind at the time of the offense. Merchant v. State, 810 S.W.2d 305, 310 (Tex.App.-Dallas 1991, writ ref'd). Ordinary anger is not adequate cause. See Ybarra v. State, 890 S.W.2d 98, 109 (Tex. App.-San Antonio 1994, writ ref'd). The cause must be the kind that would produce "anger, rage, resentment, or terror in a person of ordinary temper" so the person is "incapable of cool reflection." Tex. Penal Code Ann. § 19.02(a)(1); Merchant, 810 S.W.2d at 310. Such responses in persons with special susceptibilities are not enough unless the cause would also produce such responses in an ordinary person. Merchant, 810 S.W.2d at 310. The accused also may not rely upon cause of his own making, such as precipitating a confrontation. Nance v. State, 807 S.W.2d 855, 861 (Tex. App.-Corpus Christi 1991, writ ref'd). "`Sudden passion' requires first that the record contain objective evidence that direct provocation by the victim or someone acting with the victim occurred at the time of the killing." Naasz v. State, 974 S.W.2d 418, 423-24 (Tex. App.-Dallas 1998, pet. ref'd) (citing Merchant, 810 S.W.2d at 310). Evidence of prior provocation alone is not enough. Tex. Penal Code Ann. § 19.02(a)(2); Naasz, 974 S.W.2d at 423-24; Merchant, 810 S.W.2d at 310. "The record must also contain evidence from which the jury could subjectively decide the accused killed the victim while in an excited and agitated state of mind arising out of the direct provocation." Naasz, 974 S.W.2d at 424 (citing Merchant, 810 S.W.2d at 310). C. Application of Law to Facts
Appellant testified that after a verbal altercation with Holmes, appellant returned to the motel room where he was staying. At that point, he called a friend and asked him to give him a ride so he could get away from the area. Then, appellant left his motel room to get into his friend's car when he was fired upon by someone in a white Lincoln that was driving towards him. After appellant was fired upon, he returned fire, but only to protect himself, appellant alleges. Appellant testified that he was fired upon approximately three to four times, and he returned fire the same number of times. The State's eyewitness Davius Williams testified there were no shots fired before appellant began shooting at the car. In fact, Williams testified that at no time did anyone other than appellant fire a weapon. Williams stated that appellant fired three to eight times at the car. A police officer, supporting Williams's testimony, testified that no cartridge casings were found other than in front of the motel where appellant fired and that no casings were found inside the Lincoln. Further, the police officer testified that the glass in the back window of the car had been shattered by a shot that was fired outside the vehicle and passed inside it. The only immediate cause to which appellant testified was his sole, unsubstantiated account that he was fired upon first, which was directly contradicted by Williams, the eyewitness. In light of the dispute as to whether any person other than appellant fired shots, the jury was free to reject appellant's version of events. Where the testimonial evidence is, as here, conflicting and requires an evaluation of demeanor and credibility of witnesses, the jury is the final judge of the weight of the evidence. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). On appeal we do not disturb the jury's credibility determinations. Id. A decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Id. at 410. Having reviewed the entire record, we cannot conclude that the jury's failure to find sudden passion is so against the great weight and preponderance of the evidence as to be manifestly unjust. III. INEFFECTIVE ASSISTANCE OF COUNSEL
In his second and third issues, appellant asserts his trial counsel was ineffective on two occasions during the new punishment trial. A. Standard of Review and Applicable Law
To prevail on a claim of ineffective assistance of counsel, an appellant must show by a preponderance of the evidence that (1) counsel's performance fell below an objective standard of reasonableness and (2) a reasonable probability exists that, but for counsel's errors, the result would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Ex parte Niswanger, 335 S.W.3d 611, 615 (Tex. Crim. App. 2011). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the claim that counsel was ineffective. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Allegations that counsel was ineffective must be firmly founded in the record and not based on retrospective speculation. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). This requires an appellant to present direct evidence of the reasons for counsel's actions or omissions at trial, unless counsel's deficiency is affirmatively demonstrated in the record. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007); Thompson, 9 S.W.3d at 814. A reviewing court will find counsel's deficiency to be affirmatively demonstrated in the record when no reasonable strategy could justify counsel's conduct. Andrews, 159 S.W.3d at 102. B. Application of Law to Facts
In his second issue, appellant complains that, during the penalty phase of the trial, his counsel failed to object to the prosecutor's cross-examination question of appellant, which asked if he understood he had been convicted of "intentionally or knowingly caus[ing] the death of an individual." Tex. Penal Code Ann. § 19.02(b)(1). The record reflects, in the guilt/innocence phase of the trial, the jury returned only a general verdict, convicting under section 19.02(b) of the Texas Penal Code. Accordingly, the record does not reflect on which of two disjunctive theories, subsections 19.02(b)(1) or 19.02(b)(2), the jury convicted appellant. Accordingly, appellant argues that this misstatement of the jury's decision prejudiced the jury against appellant. The State concedes that the prosecutor's argument constituted "minimal divergence from the truth," but argues that there were a number of logical reasons why appellant's counsel would strategically choose not to object. As to his third issue, appellant argues ineffective assistance of counsel because his trial counsel failed to object to the following argument made by the prosecutor in closing argument: "[Appellant] has shown you through his actions he doesn't even want probation. In fact, he's had probation before on his first offense because that's what we do." Appellant now argues his counsel should have objected because the prosecutor's statement led the jury to believe appellant had received probation in his first punishment trial. The State responds that the prosecutor's closing argument was true and fully supported by the evidence presented at the punishment trial. Even assuming without deciding that trial counsel's performance fell below an objective standard of reasonableness, appellant must show a reasonable probability exists that, but for trial counsel's errors, the result would have been different. In his brief, appellant states that "[t]rial counsel's failures to object constituted deficient performance which inevitably affected the outcome of Appellant's new trial on punishment," "this deficient performance resulted in prejudice to Appellant in this new trial on punishment," and "[h]ad counsel objected to these erroneous statements, there is a probability that the jury would have found favorably for Appellant on the sudden passion issue and would have assessed much less than the punishment of thirty-five (35) years in prison that it did assess." Appellant does not cite evidence, references to the record, other specific grounds, or persuasive case law to support this assertion. Accordingly, we conclude appellant has not met his burden to show he received ineffective assistance of counsel. Appellant's second and third issues are decided against him. IV. CONCLUSION
We cannot conclude that the jury's failure to find sudden passion is so against the great weight and preponderance of the evidence as to be manifestly unjust. Also, appellant has not shown that he received ineffective assistance of counsel in either of the two occasions during the new punishment trial. The trial court's judgment is affirmed.