In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-02-086 CR
____________________
JOSEPH GUILLORY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
Jefferson County, Texas
Trial Cause No. 83302
Joseph Guillory, Jr. appeals his conviction for murder. A jury found Guillory guilty and assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of thirty-eight years, with fine of $10,000 also included. Guillory raises two issues for our consideration, viz:
FIRST ISSUE
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE ON THE LESSER-INCLUDED OFFENSE OF CRIMINALLY NEGLIGENT HOMICIDE.
SECOND ISSUE
TRIAL COUNSEL WAS INNEFECTIVE [sic] BECAUSE HE ARGUED THE CASE AT GUILT/INNOCENCE AND PUNISHMENT IN A MANNER THAT NECESSARILY UNDERRCUT [sic] AND CONTRADICTED APPELLANT'S TESTIMONY AND CASE-IN-CHIEF.
Texas courts adhere to the two-pronged test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, it is the appellant's burden to show that (1) trial counsel's performance was deficient, and (2) a reasonable probability that, but for trial counsel's deficient performance, the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Furthermore, any assessment of an ineffective counsel claim must be made according to the facts of each case. Id. at 813. Any particular allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. Appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. See Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001). Lastly, when examining an appellant's claim of ineffective assistance of counsel the reviewing court must be highly deferential to trial counsel and avoid the deleterious effects of hindsight. Thompson, 9 S.W.3d at 813. Indeed, the reviewing court engages in a strong presumption that counsel's actions fell within the wide range of reasonable professional assistance. Id.
The indictment in the instant case alleged that Guillory "did then and there intentionally and knowingly cause the death of an individual, namely:[complainant], . . . by strangling Complainant by means unknown to the Grand Jury, . . ." The testimony of the forensic pathologist, Dr. Tommy Brown, established the cause of death, via autopsy, as "asphyxiation due to strangulation." Dr. Brown testified that the complainant's death was not due to accident but was in fact a homicide. Guillory testified in his own defense and fully admitted to having struck the complainant several times during the course of a fight but consistently denied ever having choked or strangled complainant, his live-in girlfriend. He also repeatedly stated that the blows he inflicted upon the complainant could not have, in his opinion, been the cause of her death. In essence, appellant testified that, regardless of his actions on the day in question, he was absolutely not the instrument of the complainant's death. Trial counsel requested an instruction to the jury on "accident." Said instruction appears of record as follows:
ACCIDENT (INVOLUNTARY ACT OR OMISSION):
You are instructed that a person commits an offense only if he voluntarily engages in conduct, including an act, omission, or possession. Conduct is not rendered involuntary merely because the person did not intend the results of his conduct.
Therefore, if you believe from the evidence beyond a reasonable doubt that on the occasion in question, the defendant did cause the death of the complainant by strangling complainant with means unknown to the Grand Jury, as alleged in the indictment, but you further believe from the evidence, or you have a reasonable doubt thereof, that the death was not the result of a voluntary act or conduct of the defendant, you will acquit the defendant and say by your verdict "not guilty". [sic]
Guillory's first issue complains that trial counsel's failure to request a jury charge on the lesser-included offense of criminally negligent homicide rendered his assistance ineffective. An accused is entitled to a lesser-included offense instruction if: (1) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (2) some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Wesbrook v. State, 29 S.W.3d 103, 113 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense. Wesbrook, 29 S.W.3d at 113; Arevalo v. State, 943 S.W.2d 887, 889 (Tex. Crim. App. 1997). Significantly for our purposes, an accused's own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
In the instant case, the State's evidence that asphyxiation occurred due to strangulation was entirely circumstantial. The State's evidence raised the reasonable inference that at some point during their fight Guillory somehow managed to use the shirt the complainant was wearing when she was last seen alive to strangle her by using the shirt's neckline pulled tightly around her neck until the blood supply to her brain was cut off. Guillory's testimony indicated that about three hours after the fight he awoke from a nap and found the complainant in the bathroom kneeling on the floor with her head inside a trash can and she was unconscious. All subsequent attempts to revive her proved fruitless. In essence, all of the State's evidence pointed to an intentional act on the part of Guillory.
Guillory's testimony was to the effect that while he struck the complainant repeatedly about her head and body, at no time did he choke or strangle her during their fight, and that she was alive prior to him falling asleep. In his brief, Guillory argues the criminal negligence homicide instruction was warranted because "Guillory's testimony is evidence a jury could use to conclude that Guillory committed an act, hitting [the complainant], that caused her death by causing her to pass out in the trash can after he fell asleep." This scenario is not, however, a valid rational alternative to the charged offense in that Dr. Brown's testimony completely discounted the possibility of the complainant's death being accidental, with the trash can not factoring into the death at all. The record is simply devoid of any evidence that would permit a jury rationally to find that if Guillory was guilty, he was only guilty of criminal negligent homicide. Appellant's first issue is overruled.
With regard to his second issue, Guillory's brief is a bit confusing. The wording of the issue itself complains of trial counsel's final arguments in both the guilt/innocence and punishment phases of the trial. However, in explaining his complaint, Guillory appears to focus only on the punishment phase argument, contending that said argument "undercut" Guillory's punishment phase testimony. Appellate counsel then sums up the issue by stating, "Trial counsel's request for an instruction on sudden passion in the punishment a [sic] phase of the trial also undercut Guillory's testimony, discredited his defense, and was ineffective assistance." Is appellate counsel claiming ineffective assistance because of jury argument, and if so which phase; or is the complaint that Guillory was somehow harmed by trial counsel's request, and inclusion, of the "sudden passion" instruction?
We find no need to engage in a substantive analysis of issue two because it is essentially a disagreement by appellate counsel of the defense strategy used by trial counsel. While the record indicates appellate counsel filed a motion for new trial no hearing was held so as to get to the root of trial counsel's trial strategy. As has been noted on numerous occasions, an appellate court is not required to indulge in speculation concerning counsel's decision-making processes or to imagine reasons why counsel acted or failed to act in a particular manner. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Therefore, when the record is silent as to trial counsel's reasons for performing or failing to perform in the manner alleged, we cannot conclude that counsel's performance was deficient. Id. As the Court of Criminal Appeals has pointed out, the record on direct appeal is generally insufficient to show that counsel's performance was so deficient as to meet the first part of the Strickland standard. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 813-14.
In the instant case, other than the very obvious attempt to reduce Guillory's punishment exposure to a second degree felony, normally a very sound trial strategy, we will not speculate as to trial counsel's reasons for requesting such a punishment phase jury instruction. Once received, it was certainly proper for trial counsel to argue for the lesser punishment from the jury. We have examined the record from both the guilt/innocence and punishment phases and cannot say that trial counsel engaged in any inappropriate trial strategy. Simply because appellate counsel, on hindsight, disagrees with the actions, or omissions, of trial counsel does not permit a finding of ineffective assistance of counsel. Guillory has not met his burden to show either deficient performance by trial counsel or any reasonable likelihood that the results of his trial would have been different. Issue two is overruled. The judgment and sentence of the trial court are affirmed.
AFFIRMED.
PER CURIAM
Submitted on January 29, 2003
Opinion Delivered February 5, 2003
Do Not Publish
Before McKeithen, C.J., Burgess and Gaultney, JJ.