Opinion issued October 7, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00204-CR
WILLIE JOE McADAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 967,450
MEMORANDUM OPINION
Appellant, Willie Joe McAdams, pleaded not guilty to the offense of aggravated assault and pleaded true to two paragraphs alleged as enhancements. The jury found appellant guilty and assessed his punishment at 40 years in prison. In his sole point of error, appellant contends that his trial counsel was ineffective because (1) she did not request that the jury charge include an instruction on self-defense or object to lack of the instruction, and (2) she did not object when, in response to a question by the prosecutor about post-arrest statements by appellant, the arresting officer testified that appellant said that his lawyer would “get [him] off.” We affirm.
Background
Appellant was in his late 20’s and worked as a “rap” entertainer and music promoter. After concluding a performance with another entertainer elsewhere, appellant went to the club to pass out flyers, to promote and sell CD’s of his own music, and to gamble. He arrived at about 2:30 a.m and began shooting dice with a group of about a dozen participants.
Complainant, who was in his mid-40’s, stopped by the club at about 6:30 a.m. He was on his way to the car dealership where he worked and hoped to encounter a known customer of the club who owed money on his car note. Complainant saw appellant with a group in a corner who were shooting dice, approached the group, and placed a bet. Complainant offered to lend appellant money to place a bet, but someone cautioned him not to because appellant was upset about having already lost all his money. Angered by complainant’s offer, appellant became confrontational and aggressive toward him and several others. Appellant approached complainant and said, “[O]ld school, I will rob you.” Appellant then stormed out of the club, and complainant dismissed the threats. But Alfred Robertson, one of the co-owners of the club, became concerned enough to tell someone to lock the door of the club. The door was left unlocked, however, after someone left the club.
Complainant was seated in a chair with his back to the door when appellant returned and entered the club. As he strode toward complainant, appellant reached into the waist of his trousers and pulled out a gun. He caught complainant off guard and grabbed him from behind. As the two men struggled, appellant got complainant into a headlock and managed to pull him down, along with the chair on which he had been sitting. Complainant ended up on his back on the floor, with appellant leaning over him and pointing the gun at complainant’s face. With the gun just a few inches from complainant’s face, appellant said to him, “Old school, I told you, I’ll take your money.” Convinced that appellant would kill or rob him, complainant threw the money to the side, saying, “Take the money, here it is,” and, “What, you going to kill me for this money?” At that point, appellant shot complainant. The bullet entered complainant’s skull above his left eyebrow, entered and exited his left eyeball, hit and shattered his cheekbone, but then ricocheted off the floor and finally lodged in Alfred Robertson’s right thigh.
Appellant left the club with the gun still in his hand. He did not take complainant’s money, which remained on the floor. He did, however, apologize to Robertson and told Robertson that the shooting was an accident. Robertson, who was acquainted with both complainant and appellant, denied that he had ever seen complainant with a gun in his possession. Complainant described appellant’s gun as a nine-millimeter semiautomatic that “[l]ooked like it was black.” Despite several reconstructive surgeries, complainant lost the vision in his left eye.
About five weeks after complainant was shot, appellant was arrested for the aggravated assault, pursuant to an arrest warrant. Police recovered a loaded nine-millimeter semiautomatic pistol from the automobile appellant was driving when he was arrested. While appellant was in the peace officer’s patrol car, he asked the peace officer why he was under arrest, and the officer explained that there was an aggravated assault warrant for his arrest. Appellant then told the officer, “My lawyer will get me off.” Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, appellant must demonstrate that (1) counsel’s representation fell below an objective standard of reasonableness based on prevailing professional norms, and that (2) but for counsel’s errors, there is a reasonable probability the result of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). A “reasonable probability” is one that is “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2094; Bone, 77 S.W.3d at 833. Appellant must satisfy both prongs of the Strickland test to prevail on his claim of ineffective assistance. See Bone, 77 S.W.3d at 833; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In determining whether the Strickland test has been met, we focus on the totality of the representation afforded and not on individual, alleged errors. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
Appellant must also overcome the strong presumption that trial counsel’s performance fell within the range of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Bone, 77 S.W.3d at 833. Appellant bears the burden to prove ineffective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). Appellant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Gamble, 916 S.W.2d at 93.
Any allegation of ineffectiveness “must be firmly founded in the record.” Thompson, 9 S.W.3d at 813. On direct appeal, as here, the trial record will rarely contain sufficient information to permit us to evaluate a serious claim of ineffectiveness because the record is “‘undeveloped and cannot adequately reflect the failings of trial counsel.’” See Bone, 77 S.W.3d at 833 (quoting Thompson, 9 S.W.3d at 813-14). When the record is silent, this Court will not speculate about why trial counsel made a particular decision. Safari v. State, 961 S.W.2d 437, 445 (Tex. App.—Houston [1st Dist.] 1997, pet ref’d, untimely filed); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.).
Omission of Self-Defense Instruction in Jury Charge
Appellant contends that his trial counsel was ineffective because she neither requested an instruction on the law of self-defense nor objected to the lack of an instruction.
Appellant was convicted of knowingly or intentionally causing bodily injury to complainant by using a firearm. See Tex. Pen. Code Ann. § 22.02 (Vernon 2003). A firearm is a deadly weapon per se. See Lafleur v. State, 106 S.W.3d 91, 99 (Tex. Crim. App. 2003). Chapter nine of the Penal Code encompasses justification defenses that exclude criminal responsibility. See Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999). Pursuant to sections 9.31(a) and 9.32 of the Penal Code, a defendant is entitled to a jury charge that includes an instruction on the justification defense of self-defense with deadly force if a person is justified in using force against another when and to the degree that he reasonably believes that the deadly force is immediately necessary to protect himself against the other’s use or attempted use of unlawful deadly force and if a reasonable person in the actor’s situation would not have retreated. See Tex. Pen. Code Ann. §§ 9.31(a), 9.32 (Vernon 2003).
Appellant contends that his version of the incident entitled him to a self-defense charge. According to appellant, complainant was the aggressor. Appellant claimed that complainant had been gambling, rolling dice, and winning, during the entire time that appellant spent at the club. Appellant joined complainant’s game at about 5:30 a.m., placed several bets, but lost $500. He became frustrated, felt he had been cheated, examined the dice, and claimed that they were “loaded.” When appellant confronted complainant and asked to use fresh dice to win back what he had lost, complainant refused. A heated discussion and struggle followed.
Appellant claimed that, during the struggle, complainant pulled out a gun and aimed it at appellant. The two men were within arms’ reach of each other on opposite sides of a table, and complainant had been drinking. Appellant claimed that he backed away when he saw the gun and put his hands in the air, fearing that complainant would shoot him and that, when complainant looked away briefly, appellant rushed at him to knock him down and to knock the gun out of his hand. Appellant rushed at complainant, and both men fell on the floor while wrestling for the gun. As they struggled, “the gun went off.” On realizing that he had not been shot, appellant immediately left the club and left complainant’s money on the floor. Appellant denied knowing that either complainant or Robertson had been shot and claimed that the gun went off by accident. He also stated that his own fingers never touched the trigger of the gun, and denied intentionally or knowingly shooting complainant.
Even if appellant’s testimony could have supported a self-defense charge, his testimony also supported his claimed defense theory at trial—that the injury to complainant was an accident and not based on any criminal intent to commit the offense of aggravated assault. Appellant’s trial attorney could reasonably have believed that proceeding solely with a defense of accident was a better strategy than asserting both accident and self-defense, which the jury could have perceived as inconsistent. Cf. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (concluding that record sufficiently raised defense of necessity and that trial counsel had no possible reason for not requesting instruction on necessity defense). As the record reflects, appellant’s trial counsel argued, during her closing argument, that appellant lacked the requisite criminal intent to commit the offense of aggravated assault, which requires that the State prove that appellant knowingly or intentionally caused bodily injury to complainant by using a firearm. See Tex. Pen. Code Ann. § 22.02 (Vernon 2003).
Although the record shows that trial counsel relied on a defense of accident or lack of criminal intent, the record does not show or suggest why appellant’s trial counsel chose that strategy and did not request the self-defense charge or object to its omission. Appellant did not file a motion for new trial to assert his claim of ineffective counsel, and nothing in the record suggests or attempts to explain the reasons for trial counsel’s conduct. To find trial counsel ineffective under these circumstances would require us to speculate, which we decline to do. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble, 916 S.W.2d at 93; see also Henderson v. State, 29 S.W.3d 616, 624 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (holding that trial counsel was not ineffective when record was silent as to trial counsel’s reasons for declining to request instruction on concurrent causation). We conclude that appellant has failed to establish that trial counsel was ineffective by failing to object to the jury charge because it did not contain a self-defense instruction or by failing to request the charge.
Failure to Object to Appellant’s Postarrest Statements
Appellant contends that his trial counsel was ineffective because she did not object, during the guilt-innocence phase of appellant’s trial, to testimony by the arresting officer that described appellant’s postarrest statements. Appellant contends that the testimony was “inadmissible and prejudicial.” See Tex. R. Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence”).
After the arresting officer described the firearm recovered from appellant’s car, the prosecutor asked whether appellant made “any statements” to the officer. The trial court sustained appellant’s trial counsel’s objection. The prosecutor then asked whether appellant made any statements to the officer “that were not in response to any sort of questioning or interrogation” by the officer, whereupon the following exchange occurred:
OFFICER: When he was in the backseat, he asked me what he was under arrest for, at which time I explained to him that he had an aggravated assault warrant out for his arrest, at which time he acted like it was no big deal and he said his lawyer—
TRIAL COUNSEL: Objection to the characterization of how he acted.
PROSECUTOR: It’s officer’s observations, Judge.
THE COURT: All right. Overruled.
. . . . Go ahead and continue Officer . . . . Well, finish your statement.
OFFICER: He appeared like it was no big deal, like he had done it before.
TRIAL COUNSEL: Objection, Your Honor.
THE COURT: Sustained.
PROSECUTOR: What statement did he make to you in relation to the charge?
OFFICER: He said, [‘]My lawyer will get me off.[’]
The record thus reflects that the trial court did not permit the officer to describe appellant’s statements until it was established that the statement was not in response to interrogation by the officer and that the officer did not attribute other bad acts or character traits to appellant based on his statements to the officer, but did permit the officer to state what appellant said to the officer after he answered appellant’s question about the charges against him.
The State refutes appellant’s contention that the officer’s statement was inadmissible, prejudicial, and therefore objectionable, by pointing out that, because appellant did not file a motion for new trial, nothing in the record substantiates why appellant’s trial counsel did not object to the evidence. Therefore, the State contends, appellant has not rebutted the presumption that trial counsel’s strategy in not objecting was sound. See Thompson, 9 S.W.3d at 813. We agree.
One possible interpretation of appellant’s statement is that his attorney would get him off because appellant was not guilty of the offense. An alternative interpretation, among others, is that appellant’s attorney would get him off despite his guilt. But here again, the record does not reflect why appellant’s trial counsel did not object to the officer’s reiterating appellant’s statement. Appellant did not file a motion for a new trial to assert his claim of ineffective counsel, and nothing in the record suggests or attempts to explain the reasons for trial counsel’s conduct. Accordingly, to find trial counsel ineffective under these circumstances, we would have to speculate, which we again decline to do. See Jackson, 877 S.W.2d at 771; Gamble, 916 S.W.2d at 93; see also Henderson, 29 S.W.3d at 624. Moreover, appellant has not established that, but for the actions by trial counsel, the results of the proceedings would have been different.
We conclude that appellant has not shown that his trial counsel was ineffective and therefore hold that appellant has neither satisfied the first prong of the Strickland test for either of his contentions nor overcome the strong presumption that his trial counsel’s performance fell within the wide range of reasonably professional assistance. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 813; Safari, 961 S.W.2d at 445; Gamble, 916 S.W.2d at 93.
We overrule appellant’s sole point of error.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).