11th Court of Appeals
Eastland, Texas
Opinion
Milton Allen Brown
Appellant
Vs. No. 11-01-00026-CR B Appeal from Dallas County
State of Texas
Appellee
The jury convicted appellant of aggravated assault during which appellant used or exhibited a deadly weapon. The trial court assessed his punishment at 2 years confinement and a fine of $2,000.
Appellant does not challenge the legal or factual sufficiency of the evidence. In his first two issues, appellant argues that the trial court erred in failing to give an application paragraph on self-defense in the charge and that he was denied effective assistance of counsel because of counsel=s failure to object to the omission of the application paragraph. In his other two issues, appellant argues that the trial court erred by not providing separate verdict forms in its charge and that he was denied effective assistance of counsel because of counsel=s failure to object to the omission of the separate verdict forms. We affirm.
Background Facts
Terry Ryan Hamilton, the complaining witness, testified that he had been visiting with a friend in front of the Chancellor Apartments when appellant approached and asked if Hamilton had been selling drugs in appellant=s apartment. Hamilton said that he denied the charge and that he started to walk away. According to Hamilton, appellant then surprised him by punching him in the eye and knocking him to the ground. Appellant continued to beat Hamilton with his fists while Hamilton was on the ground. Hamilton claimed that, at some point, appellant said that Ahe was gonna go get his [gun] and then gonna shoot me.@ During the two or three minutes that appellant left, Hamilton started walking toward a convenience store. Hamilton then saw appellant chasing after him with a pistol and pointing the pistol at him. Hamilton testified that he ran and made it to a grocery store to call the police. By that time, appellant had stopped chasing him.
Appellant testified, denying that he even owned a gun. Appellant stated that he had returned to his apartment and found it in a mess with a number of items missing. He admitted confronting Hamilton, accusing Hamilton of taking the items. Appellant described Hamilton as a drug dealer and stated that he had asked Hamilton on a number of occasions to stop selling drugs near the apartment. According to appellant, the two men then got into a heated argument. Appellant testified that he could not say who threw the first punch because:
I closed my eyes. So, I can=t say because I wasn=t looking. I was just trying to either hit first or get out of Dodge or get hit.
Appellant=s version was that it was Amutual combat,@ that he was defending himself, and that he just happened to get the Abest of [Hamilton].@
Appellant did not challenge the fact that Hamilton incurred $6,700 in medical bills because of his injuries.
Omission of Application Paragraph on Self-Defense
Although the trial court instructed the jury on self-defense in the abstract portion of the charge, the trial court erred in omitting the application paragraph on self-defense. Barrera v. State, 982 S.W.2d 415, 416 (Tex.Cr.App.1998). The omission in Barrera was the same as the one in this charge. The Barrera court held that omission of the application paragraph on self-defense was not constitutional error and then remanded the case to the court of appeals for a determination of whether the error constituted egregious harm under Almanza v. State, 686 S.W.2d 157, 171 (Tex.Cr.App.1985). Thus, the standard of review here will be the one set forth in Almanza and Barrera. To determine whether there was egregious harm, we will consider the charge, the evidence, the arguments of counsel, and any other relevant information from the record. Almanza v. State, supra at 171; Barrera v. State, supra at 417.
The trial court=s charge contained a lengthy instruction on self-defense:
Under the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect themselves against the other person=s use or attempted use of unlawful force.
The use of force against another is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another if he would be justified in using force against the other person in the first place, as above set out, and when and to the degree he reasonably believes that such deadly force is immediately necessary to protect himself against the other person=s use or attempted use of unlawful deadly force and if a reasonable person in the defendant=s situation would not have retreated.
The term Adeadly force@ as used herein means force that is intended or known by the person using it to cause, or, in the manner of its use or intended use, is capable of causing death or serious bodily injury.
The term Areasonable belief@ as used herein means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
When a person is attacked with unlawful deadly force, or he reasonably believes he is under attack or attempted attack with unlawful deadly force by one or more persons, and there is created in the mind of such person a reasonable expectation or fear of death or serious bodily injury, then the law excuses or justifies such person in resorting to deadly force by any means at his command to the degree that said person reasonably believes immediately necessary, as viewed from his standpoint at the time, to protect himself from such attack or attempted attack.
It is not necessary that there be an actual attack or attempted attack, as a person has a right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that said person acted upon a reasonable apprehension of danger, as it appeared to that person from his standpoint at the time, and that said person reasonably believed such deadly force was immediately necessary to protect himself against the other person=s use or attempted use of unlawful deadly force by the assailants.
You are further instructed that in determining the existence of real or apparent danger, it is your duty to consider all the facts and circumstances in the case in evidence before you and to consider the words, acts and conduct, if any, of the complainant at the time and prior to the time of the aggravated assault, and to consider whatever threats, if any, the complainant may have made to the defendant and to consider any difficulty or difficulties which the complainant had with the defendant.
In connection with the law of self-defense, you are instructed that there need not be actual deadly force or actual attempted deadly force exercised against the defendant before he can act in self-defense, as a person has the right to defend his life and person from apparent danger as fully and to the same extent as he would had the danger been real, provided that a reasonable person in the defendant=s situation would have so acted.
Counsel for appellant began laying the groundwork for appellant=s self-defense claim when he cross-examined Hamilton. In his direct testimony, appellant emphasized that he acted in self-defense and that it was Amutual combat.@ Appellant denied Hamilton=s version of a surprise punch, and he denied having a gun during the assault. Appellant also testified that he knew that drug dealers sometimes carry weapons.
The State waived its right to have the first closing argument. Counsel for appellant focused on appellant=s self-defense claim in his closing argument:
This dope dealer had to make up a story because he got into a fight.
* * *
And I=d ask you to go to page 5 of the charge. There had not to be - - no actual attack was necessary for someone to defend themselves. All [appellant] needed was that apprehension, the fear. And he definitely had that....He had to defend himself against this known drug dealer.
* * *
I ask you to deliver a message. Drug dealers, we can tell when you are lying and when you are not lying. You may have suffered injury, you lost a fight that you got into and didn=t know what you were getting into. Tough luck. You did not convince us beyond a reasonable doubt.
There is nothing in the record to show that the jury was misinformed or uninformed on the law of self-defense. The trial court=s error in omitting the application paragraph on self-defense did not cause egregious harm to appellant. We overrule appellant=s first issue.
Appellant asserts in his second issue that his trial counsel was ineffective because counsel failed to object to the trial court=s failure to include an application paragraph for self-defense in the jury charge. To determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). The burden of showing ineffective assistance rests with appellant. Moore v. State, 694 S.W.2d 528, 531 (Tex.Cr.App.1985).
The right to counsel does not guarantee errorless counsel or counsel whose competency is judged by hindsight. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Cr.App.1991). A reviewing court must indulge a strong presumption that counsel=s conduct fell within a wide range of reasonable professional assistance. Strickland v. Washington, supra at 688-89. Although appellant=s trial counsel failed to object to the omission of the application paragraph, there is no indication that the jury was confused about appellant=s reliance on the law of self-defense. The evidence showed that Hamilton=s injuries were serious and substantial. Appellant=s evidence on self-defense was weak. After reviewing the record, we conclude that counsel=s representation did not fall below an objective standard of reasonableness. Moreover, we earlier found that the charge error was not an egregious error. An error in the charge is egregious if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Cr.App.1996); Almanza v. State, supra at 172. Thus, we also conclude that the second prong of Strickland was not met; appellant has not shown that there is a reasonable probability that the result of the trial would have been different even if the trial court had included the application paragraph. We overrule appellant=s second issue.
The Single Verdict Form Was Proper
In his third issue, appellant claims that the trial court erred by submitting only one verdict form because the indictment alleged multiple offenses. Appellant claims that he was harmed because the omission allowed the jury to reach a non-unanimous verdict. The indictment read that appellant on or about June 28, 2000, did:
[U]nlawfully then and there intentionally and knowingly cause bodily injury to TERRY HAMILTON, hereinafter called complainant, by striking said complainant, and said defendant did use and exhibit a deadly weapon to-wit: a hand, during the commission of the assault,
[A]nd further, unlawfully then and there intentionally and knowingly threaten TERRY HAMILTON, with imminent bodily injury, and said defendant did use and exhibit a deadly weapon to-wit: a firearm, during the commission of the assault.
The indictment alleged alternative methods of committing the offense of aggravated assault, not two different offenses. The evidence reflects that there was one assault of Hamilton on that day; the indictment simply alleged alternative methods which raised the assault to an aggravated assault. Although the indictment alleged the alternative methods of committing the offense in the conjunctive, it was proper for the trial court to charge the jury in the disjunctive. Kitchens v. State, 833 S.W.2d 256, 258 (Tex.Cr.App.1991), cert. den=d, 504 U.S. 958 (1992). The trial court did not err in submitting a single verdict form on aggravated assault. We overrule appellant=s third issue.
In his fourth and last issue, appellant asserts that he was denied effective assistance of counsel because his counsel failed to object to the omission of separate verdict forms on the Atwo separate aggravated assaults.@ Because the trial court did not err in submitting the single verdict form, appellant has not met the first requirement of Strickland. Moreover, even if appellant=s counsel believed that there were two aggravated assaults, he might have chosen the trial strategy of allowing the single verdict form rather than expose appellant to two convictions. We overrule appellant=s fourth issue.
This Court=s Ruling
We affirm the judgment of the trial court.
TERRY McCALL
JUSTICE
January 24, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.