Opinion issued January 8, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00140-CR
____________
DONALD RAYE WASHINGTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1102880
MEMORANDUM OPINION
A jury found appellant, Donald Raye Washington, guilty of the offense of murder (1) and, after finding true the allegation in an enhancement paragraph that appellant had been previously convicted of one felony offense, assessed his punishment at confinement for 40 years. In three issues, appellant contends that the evidence is legally and factually insufficient to support the jury's implicit rejection of his claim of self-defense, the trial court erred in excluding portions of his testimony, and his trial counsel provided ineffective assistance of counsel. The State contends that appellant's three issues should be overruled, but the judgment should be corrected to properly reflect that appellant entered a plea of true to the allegation in the enhancement paragraph and that the jury found this allegation to be true.
We modify the trial court's judgment and, as modified, affirm.
Background
Bridget Hubbard testified that she and Andra Davis, the complainant, lived in a home on Bridgedale Lane. She explained that appellant had dated one of her daughters and fathered two of her grandchildren. When these grandchildren stayed with her, Hubbard allowed appellant to spend time with the children.
On February 2, 2007, Hubbard and the complainant had invited appellant to come over to the Bridgedale Lane house to visit his two children. When appellant arrived, he spent some time with the children and then accepted the complainant's invitation to go to a barber shop for a haircut. After their haircuts, the two men picked up dinner at a Whataburger restaurant and returned to the house. When the two men returned, Hubbard was in the master bedroom with her four grandchildren, two of whom were appellant's children. Appellant's daughter, hearing that her father had returned to the house, ran out of the room to see him. Hubbard followed the child into the hallway with appellant's infant child in her arms.
Hubbard explained that as she entered the hallway, she found the complainant standing next to the bedroom door. Hubbard saw him look into her face and smile, and she noticed appellant farther down the hallway with his daughter standing next to him. Suddenly, appellant pulled a firearm from his right side, picked up his daughter, pointed the weapon towards the bedroom doorway, and prepared to fire. The complainant pushed Hubbard out of the way, and, as she looked back, Hubbard heard a single gunshot and watched the complainant fall to the ground. In fear for her life, Hubbard ran out of the house, with appellant's infant child in her arms, and she hid under her neighbor's truck. From her hiding place, Hubbard heard appellant come outside and tell her neighbor that somebody was trying to kill him. After waiting for appellant to leave, Hubbard used her neighbor's telephone to call for emergency assistance. She then discovered that appellant had taken her car and driven away with his older child and one of her other grandchildren.
Shawn Lavoy, one of Hubbard's neighbors, testified that as he was cleaning out his truck, he heard some yelling coming from the complainant's house. At first he continued cleaning out his truck, but then he noticed a woman lifting up the complainant's garage door. Lavoy did not recognize the woman, but he could tell that she was hysterical. Lavoy looked back at his house where his nine-year-old son was standing by the front door, and, when Lavoy turned around, he saw appellant standing six or seven feet away with a hand in his pocket. Although Lavoy could not recall everything that appellant said to him, he did remember that appellant told him that someone had been trying to kill him. Appellant then told him, "Don't go anywhere." However, Lavoy, fearing for his own life and his son's life, ran into his house, locked the door, and called for emergency assistance.
Harris County Sheriff's Office Detective M. Quintanilla testified that he was dispatched to the complainant's home, and, when he arrived, a deputy already at the crime scene showed him the body of the complainant. Detective Quintanilla observed that there were no weapons near the complainant's body, and he found no weapons at the residence.
Harris County Sheriff's Office Detective R. Tonry testified that upon arriving at the crime scene one of Hubbard's daughters approached him with a cellular telephone in her hand and, handing Tonry the telephone, she asked him to talk to appellant. Appellant told Tonry that someone was trying to kill him and that the two children were with him and were sleeping. When Tonry asked appellant to return to the scene, appellant said "he had to get his boys together first." After the telephone call ended, Tonry contacted another detective and told him to track the cellular telephone and discovered that appellant was near Dallas in Navarro County.
Navarro County Sheriff's Department Sergeant J. Lewis testified that, responding to a police call, he intercepted appellant, who was driving Hubbard's car on Interstate 45 in the early morning hours of February 3, 2007. Although Lewis had activated his lights and siren, appellant did not stop. Lewis then contacted Texas Highway Patrol Corporal J. Cabano to deploy spikes ahead of the car to stop it. After it hit the spikes, the car continued traveling another one to two miles down the road before coming to a full stop. Lewis approached the car with his weapon drawn and instructed appellant to turn off the ignition, put his hands on the window, and exit the car. Appellant complied with these instructions and was taken into custody. Other state troopers at the scene found two children in the back seat of the car and took the children to the county justice center, where they waited for their mothers. After the children were removed from the car, Lewis searched it and found a jacket with a .380 caliber handgun in one of its pockets.
Appellant testified that on February 2, 2007, he went to the complainant's home to see his children and talk to Hubbard and the complainant about his concerns that they were teaching his children "things of immorality." After he and the complainant went to a barber shop and a Whataburger restaurant, they returned to the house. Appellant put his food down onto a table and told Hubbard and the complainant, in a mild and nervous tone, that he wanted to talk with them outside of the children's presence. When appellant asked them to talk, Hubbard "ran past [appellant] and ran through the kitchen out of the garage." The complainant ran towards the bedroom. Appellant "thought [the complainant] was going to get his gun." Appellant testified that the complainant owned two handguns, one nine millimeter and one .380 caliber, which he either carried, kept in his car, or left on his bedroom dresser. Appellant thought that if he ran, the complainant would shoot him in the back. So, appellant followed the complainant into the hallway. When he saw the complainant coming back into the hallway from the bedroom, he pulled out his weapon and fired one shot at the complainant's head. Before the complainant fell to the floor, he asked if there were real bullets in the handgun.
After firing the shot, appellant picked up his daughter, put the gun into his pocket, and went outside to explain to Hubbard that he only wanted to talk. When he exited the garage, appellant saw Hubbard, who started screaming and ran away. Appellant went back inside of the house and took the car keys from the complainant's pocket. As he was leaving the house, his niece asked to go with him, so appellant took his niece and his daughter out to the car. Appellant testified that he did see Lavoy on the way to the car, but he did not threaten him in any way. After putting the two girls in the car, appellant drove north.
On cross-examination, appellant admitted that he had shot and killed the complainant and agreed that he did not see a weapon in the complainant's hand on the night of the shooting. Appellant conceded that when he took the car keys, he also took $600 cash and a cellular telephone from the complainant's pocket. Appellant explained that he did not "steal" Hubbard's car because she had told him that he could take it.
Sufficiency of the Evidence
In his first issue, appellant argues that the evidence is legally and factually insufficient to "overcome his claim of self-defense because there is ample evidence to support a logical conclusion that [the complainant] had access to a gun." (2)
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from the facts. Id. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.
In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Although we should always be "mindful" that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called 'thirteenth juror.'" Watson, 204 S.W.3d at 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417.
A person is justified in using deadly force if (1) he has a reasonable belief that it is immediately necessary to protect himself from another's use of deadly force and (2) a reasonable person in his place would not retreat. See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2003). (3) A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991)). Once a defendant presents evidence of self-defense, the State has the burden of persuasion in disproving the evidence of self-defense. Id. The State is not required to produce evidence refuting the self-defense claim; the State need only prove its case beyond a reasonable doubt. Id. A jury verdict of guilty is an implicit finding rejecting a defendant's self-defense theory. Id. When an appellant challenges the legal sufficiency of the rejection of a self-defense claim, it is well-settled law that appellate courts "look not to whether the State presented evidence which refuted appellant's [defensive evidence], 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 . . . against appellant on the [defensive] issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914. In a factual sufficiency review of the rejection of a self-defense claim, 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, 97 S.W.3d at 595.
Appellant asserts that the undisputed evidence shows that the complainant routinely kept loaded handguns in the bedroom at the complainant's house, appellant was aware of the location of the handguns, and the complainant was coming out of the bedroom after appellant attempted to start a conversation with him about the upbringing of appellant's children.
Viewing the evidence in the light most favorable to the verdict, appellant admitted that he shot and killed the complainant. Additionally, appellant testified that he never saw a weapon in the complainant's hands on the night of the shooting. Appellant stated that he pursued the complainant down the hallway, reached into his pocket, released the safety on his firearm, and pulled the firearm out of his pocket. Then, when the complainant came back into the hallway, appellant shot him in the eye. Detective Quintanilla testified that no weapons were found at the crime scene.
In sum, the evidence shows that a rational trier of fact could have found that appellant either did not have a reasonable belief that deadly force was immediately necessary to protect himself from another's use of deadly force or that a reasonable person in appellant's place would have retreated. See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a). Accordingly, we hold that the evidence is legally sufficient to support the jury's implied finding that appellant did not act in self-defense.
In support of his argument that the evidence is factually insufficient to show that he was not acting in self-defense, appellant asserts that the undisputed evidence showed that the complainant routinely kept loaded handguns in the bedroom at the complainant's house, appellant was aware of the location of the handguns, and the complainant was coming out of the bedroom after appellant attempted to start a conversation with him about the upbringing of appellant's children.
Viewing the evidence in a neutral light, appellant testified that he believed that the complainant kept two loaded handguns in the bedroom. However, Hubbard testified that there was only one .380 caliber handgun kept in the bedroom and that the complainant did not have access to the handgun. She did not state whether there was any ammunition for the firearm at her residence. Additionally, although appellant testified that he fired the weapon when the complainant exited the bedroom, Hubbard testified that appellant fired the weapon just after she exited the bedroom and that the complainant was next to the bedroom door. Nevertheless, it is undisputed that appellant shot and killed the complainant and that appellant did not see a weapon in the complainant's hands before appellant shot him.
By finding appellant guilty, the jury implicitly rejected his assertion that deadly force was immediately necessary to protect himself from the complainant's use of deadly force or that a reasonable person in his place would not have retreated. See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a). We conclude that the evidence is not so obviously weak as to make the jury's verdict clearly wrong and manifestly unjust, nor is the proof of guilt against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is factually sufficient to support the jury's implied finding that appellant did not act in self-defense.
We overrule appellant's first issue.
Excluded Testimony
In his second issue, appellant argues that because it was "insightful and highly relevant" to the issue of self-defense, the trial court erred in excluding his testimony regarding the specific contents of the conversation that took place between appellant and the complainant before appellant shot the complainant and in excluding the specifics about the "immoral teachings" appellant believed the complainant and Hubbard had been exposing his children to.
First, appellant asserts that the trial court excluded his testimony about "the content of the conversation immediately prior to the shooting of" the complainant. However, the record does not support appellant's assertion. The record shows that during the re-direct examination of appellant, the State objected to a question about the conversation. The trial court did not explicitly rule on the objection but, after a bench conference, allowed appellant to explore the tone of the conversation. When appellant was asked about the tone of the conversation, he testified as follows:
[Appellant]: It was mild toned but a nervous tone.
[Appellant's Counsel]: Did you believe the subject matter of that conversation to be important?
[Appellant]: Very much so.
[Appellant's Counsel]: Did you try to relay the information to Ms. Hubbard and [the complainant]?
[Appellant]: Actually, they didn't give me time.
(Emphasis added.) Appellant's testimony during this portion of his re-direct examination mirrored his testimony during direct examination, i.e., when appellant told the complainant and Hubbard that he wanted to talk, Hubbard ran out of the house, and the complainant ran towards the bedroom. Thus, according to appellant's own testimony, the entire conversation consisted of his statement that he wanted to talk to Hubbard and the complainant. The trial court did not exclude this testimony about the conversation that occurred.
Appellant next asserts that the trial court excluded his testimony about the specific "immoral teachings" that he was concerned about. When appellant attempted to discuss the content of these "immoral teachings," the trial court sustained the State's relevance objection.
Testimony is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Tex. R. Evid. 401. Irrelevant evidence is inadmissible. Tex. R. Evid. 402. We do not disturb a trial court's determination regarding the relevance of evidence unless an abuse of discretion has been shown. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993).
Here, appellant asserts that the excluded testimony "goes directly to the heart of his claim of self-defense" and was relevant to show his state of mind prior to the shooting "which might justify his self-defense claim." However, appellant does not explain, nor are we able to discern, how any testimony about the contents of any "immoral teachings" would have any tendency to make his self-defense claim more or less probable.
Accordingly, we hold that the trial court did not err in excluding testimony about the "immoral teachings."
We overrule appellant's second issue.Ineffective Assistance of Counsel
In his third issue, appellant argues that his trial counsel rendered ineffective assistance of counsel because he failed to submit a formal bill of exceptions "concerning the contents of [his] conversation with Ms. Hubbard and [the complainant], which arose during his re-direct examination."
In order to prove an ineffective assistance of counsel claim, appellant must show that his trial counsel's performance fell below an objective standard of reasonableness and, but for counsel's unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). Allegations of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). When the record is silent, we may not speculate to find trial counsel ineffective. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel's conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006); Gamble, 916 S.W.2d at 93. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
Here, appellant did not request a hearing on a motion for new trial. Had appellant requested such a hearing, he could have presented evidence of the contents of any such conversation and conducted an examination of his trial counsel as to why he did not submit a bill of exceptions. To find that trial counsel was ineffective in this case, without a motion for new trial hearing, would call for speculation, which we will not engage in. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble, 916 S.W.2d at 93. Accordingly, we hold that appellant has not satisfied the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
We overrule appellant's third issue.
Correction of the Judgment
The State contends that the "written judgment should be corrected because it fails to properly reflect that appellant entered a plea of true to the enhancement paragraph and the jury found the allegations in the enhancement paragraph to be true." An appellate court may correct and reform a trial court judgment when it has the necessary information to do so. Tex. R. App. P. 43.2(b); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.--Houston [1st Dist.] 2001, no pet.).
Here, the record reflects that appellant pleaded true to the enhancement paragraph:
[The State]: This is Cause No. 1102880 the State of Texas vs. Donald Raye Washington. Before the commission of the offense alleged above on November 24, 1993, in Cause No. 0644755 in the 262nd District Court of Harris County, Texas, the defendant was convicted of the felony offense of robbery.
[The Court]: Mr. Washington, to that enhancement paragraph, how do you plead, sir; true or not true?
[Appellant]: True, Your Honor.
Furthermore, the record reflects that the jury found that "the allegations in the enhancement paragraph are true." Nevertheless, the written judgment entered by the trial court on February 14, 2008, incorrectly states "N/A" next to "Plea to 1st Enhancement Paragraph" and next to "Findings on 1st Enhancement Paragraph."
Accordingly, we reform the written judgment to reflect that appellant pleaded true to the allegation in the first enhancement paragraph and that the jury entered a finding that the allegation in the first enhancement paragraph is true.
Conclusion
We modify the judgment of the trial court to reflect that appellant pleaded true to the allegation in the first enhancement paragraph and that the jury entered a finding that the allegation in the first enhancement paragraph is true. We affirm the judgment as modified.
Terry Jennings
Justice
Panel consists of Justices Jennings, Hanks, and Bland.
Do not publish. Tex. R. App. P. 47.2(b).
1. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003).
2. Appellant concedes that the evidence is legally and factually sufficient to meet the
required elements of murder because appellant "admitted to the crime during cross-examination."
3. Although the Legislature has amended sections 9.31 and 9.32 of the Penal Code, the
offenses for which the jury convicted appellant occurred on February 2, 2007, which
was before the effective date of the amendments. Accordingly, our analysis of
appellant's issues is governed by the previous version of the statutes. Act of June 19,
1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3598 (amended
2007); Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141,
2141 (amended 2007).