Affirmed and Memorandum Opinion filed July 31, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-01-01010-CR
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DEXTER MCCLELLAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 870,228
M E M O R A N D U M O P I N I O N
A jury convicted Dexter McClelland of murder and assessed punishment at forty years= confinement in the Institutional Division-Texas Department of Criminal Justice. Appellant contends the trial court erred for two reasons: (1) the state failed to carry its burden of persuasion that appellant was not entitled to an acquittal on the grounds of self-defense; and (2) trial counsel rendered ineffective assistance of counsel in violation of both the U.S. and Texas Constitutions because trial counsel failed to argue for manslaughter at the conclusion of the punishment phase. Finding no error, we affirm.
Background Facts
About 8:00 at night on February 24, 2001 appellant was at the Third Ward Car Care socializing with acquaintances. Anauflee >Pop= Jackson, the deceased complainant, drove up in his car, shouted at appellant, parked, and, with his car still running, got out, approached appellant, and started arguing with him. According to witnesses, Jackson did not have a weapon. There was a heated exchange of profanities between the two men, possibly some pushing back and forth, and Jackson slapped appellant in the face more than once. Appellant left the group, went to his vehicle, a Ford Explorer, and pulled a handgun out of the backseat. Everyone started to move away from the area, except Jackson. There is some conflict in the testimony at this point. Virginia Berry, Mary Bowman, and Christopher Cruse said that Jackson started to run away and appellant shot him while he was running away. Mrs. Bowman testified that she saw appellant chasing Jackson around the Explorer; Jackson was holding his chest and trying to get back to his car when she saw appellant shoot him. She testified appellant continued to chase Jackson across the street and to shoot at him. However, Arthur Williams, a friend of appellant, testified that appellant was not chasing Jackson and the shots went off very fast, “in the blink of an eye.” The distance between appellant and Jackson at the time of the gun shots was estimated to be between five and nine feet. After the shooting, appellant drove off in his car.
A police officer, E. W. Walker, who was in the neighborhood responding to a theft call, arrived on the scene after being flagged down by a woman. She told him a man was lying in the middle of the street with his head shot off. He found Jackson, who appeared to be dead, with his face covered in blood lying in the street. Todd Taylor, from the Houston Police Department, homicide division, arrived on the scene also. He found four shell casings all fired from the same weapon, but uncovered no weapons at the scene. Specifically, no weapon was found on Jackson or in Jackson=s car. Taylor prepared a photo-spread after interviewing witnesses. Three eye-witnesses to the shooting identified appellant from the photo-spread.
The deceased complainant was older and shorter than appellant. Jackson was about five-feet four-inches tall and weighed 198 pounds. The appellant was approximately six-feet one-inch tall and weighed 160 pounds at the time of the shooting.
The medical examiner testified that Jackson had three gunshot wounds: all were listed as the cause of his death. One bullet entered Jackson from the front of the left shoulder, and remained lodged in the back of his upper right arm. Another gunshot entered at the lower back and exited the upper right abdomen. A third gunshot entered the back of the upper left arm, passed across the top of his chest, traveled through his left lung, perforated his upper aorta and superior vena cava and exited the left arm. In other words, two of the three bullets entered Jackson from behind.
The medical examiner also testified that Jackson=s blood test showed that he had been abusing marijuana and PCP within hours before his death. A defense expert testified that people high on PCP could behave in a belligerent, violent, bizarre and unpredictable manner. The defense also put on evidence that Jackson had threatened appellant earlier that day and antagonized him on prior occasions.
The State carried its burden.
In his first issue, appellant claims the State failed to carry its burden of persuasion that appellant was not entitled to an acquittal on the grounds of self-defense. “[A] person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful force.” Tex. Pen. Code Ann. ' 9.31 (a) (Vernon 2003). The State has the burden of persuasion in disproving evidence of self‑defense; however, this is not a burden of production, requiring the State to affirmatively produce evidence refuting the self‑defense claim. Instead, it is a burden requiring the State to prove defendant=s guilt beyond a reasonable doubt. Saxton v. State, 804 S.W.2d 910, 913B14 (Tex. Crim. App. 1991). Generally, self‑defense is considered an issue of fact to be determined by the fact finder. See Saxton, 804 S.W.2d at 913B14. The fact finder, therefore, remains free to accept or reject any defensive evidence on the issue. See id. at 914. A jury=s verdict of guilty is an implicit finding rejecting the defendant=s self-defense theory. Id. (citing Jenkins v. State, 740 S.W.2d 435, 438 (Tex. Crim. App. 1983)).
Appellant argues the legal sufficiency of the evidence of a guilt finding of murder in his brief; however, his brief concludes that “[t]he evidence established adequate grounds for an acquittal on the theory of self-defense and it was against the great weight and preponderance of the evidence for the jury to have found otherwise.” As a result, we will examine the jury=s rejection of the self-defense argument, and whether the State met its burden to prove the elements of murder beyond a reasonable doubt, both legally and factually. See Tex. R. App. P. 38.9.
Legal sufficiency
When a defendant challenges the legal sufficiency of the rejection of a defense under Tex. Pen. Code Ann. ' 9.31, we look to whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and also would have found against appellant on the self-defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914.
In this case, the evidence viewed in the light most favorable to the verdict supports the guilty verdict for murder. Appellant retrieved a handgun from his vehicle and shot at Jackson, not once, but four times. He chased after Jackson while shooting. Jackson never had a weapon in his hands. Two of the three gun-shots entered Jackson from behind, reinforcing the eye-witness testimony that he was running away from appellantCwho then fled the scene. Any rational trier of fact could have found the shots were not fired in self-defense. This evidence, when viewed in the light most favorable to the verdict, is sufficient for a rational trier of fact to disbelieve appellant=s self‑defense argument and to find beyond a reasonable doubt that appellant committed murder. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Saxton, 804 S.W.2d at 914.
Factual sufficiency
When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court reviews all of the evidence in a neutral light and asks whether the proof of guilt is so obviously weak as to undermine confidence in the jury=s determination or so greatly outweighed by contrary proof as to indicate that a manifest injustice has occurred. See Zuliani v. State, 97 S.W.3d 589, 593B95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In conducting our review, we are mindful that the jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). We must defer to the jury=s determination concerning the weight given contradictory evidence. See Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Santellan v. State, 939 S.W.2d 155, 164B65 (Tex. Crim. App. 1997). Our authority to disagree with the jury=s determination is appropriate only when the record clearly indicates such action is necessary to avoid a manifest injustice. Otherwise, due deference must be accorded the jury=s determinations, particularly those concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 9.
In our review, we must consider the most important evidence that the appellant claims undermines the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). Threats of physical harm were made by Jackson to appellant earlier that day and on previous occasions. Jackson provoked the argument the night he was killed and witnesses testified ‘he was looking for a fight.’ On all those previous occasions, however, appellant left the scene. On the night of February 24, 2001, appellant was able to extricate himself from Jackson and the group to be able to go to his vehicle. But this time he did not retreat. Instead, he retrieved a gun and shot Jackson three times. This evidence is sufficient to support the jury=s rejection of appellant=s affirmative defense of self-defense.
Moreover, when the evidence is viewed in a neutral light, we hold the guilty verdict is not against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Zuliani, 97 S.W.3d at 595; Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). The testimony of Ms. Bowman, Mr. Cruse, Mrs. Berry, and Mr. Brazen supports the jury=s verdict of murder, and rejection of the self-defense claim. The jury chose not to believe the defense witnesses who testified otherwise. See Santellan v. State, 939 S.W.2d at 164; Tucker v. State, 15 S.W.3d 229, 235B36 (Tex. App.CHouston [14th Dist.] 2000, pet ref=d); Vasquez v. State, 2 S.W.3d 355, 358B59 (Tex. App.CSan Antonio 1999, pet. ref=d).
In conclusion, the State=s proof of appellant=s guilt is not so obviously weak that it undermines confidence in the jury=s verdict; neither is the State=s proof greatly outweighed by contrary proof. See Zuliani, 97 S.W.3d at 593B94. Viewing all of the evidence in a neutral light, we hold the evidence to be factually sufficient.
Accordingly, we overrule appellant=s first issue.
Effective assistance of counsel.
Appellant avers in his second and third points of error that trial counsel was ineffective in violation of the Sixth Amendment to the U.S. Constitution and Article I, ' 10 of the Texas Constitution, because they failed to argue for an instruction on sudden passion at the punishment stage.[1] Both the United States and Texas Constitutions guarantee an accused the right to effective assistance of counsel. U.S. Const. Amend. Vi; Tex. Const. Art. I, ' 10; see also Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). Appellant must prove the ineffectiveness of trial counsel by a preponderance of the evidence. See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In doing this, appellant must overcome the strong presumption that counsel=s conduct is within the wide range of professional assistance. Strickland v. Washington, 466 U.S. 668, 688B89, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson, 9 S.W.3d at 813. A claim of ineffective assistance of counsel must be firmly founded and affirmatively demonstrated in the record. Thompson, 9 S.W.3d at 813B14. The record is best developed by a collateral attack, such as a motion for new trial. Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d).
A claim that counsel=s assistance was so defective as to require a reversal has two components. First, appellant must show his counsel=s performance was deficient; second, he must show the deficient performance prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.[2]
The first component is met by showing appellant=s trial counsel made errors so significant that they were not functioning as the “counsel” guaranteed by the Sixth Amendment to the United States Constitution. Id. Appellant must show his attorneys= representation fell below an objective standard of reasonableness. Id. at 687B88, 104 S. Ct. at 2064. The issue is whether counsel=s assistance was reasonable under all the circumstances and prevailing professional norms at the time of the alleged error. Id. at 688B89, 104 S. Ct. at 2065. “[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690, 104 S. Ct. at 2066.
The second prong of Strickland requires a showing that counsel=s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. Id. at 687, 104 S. Ct. at 2064. A defendant must show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.; Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The ultimate focus of our inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. Id. at 695, 104 S. Ct. at 2069. However, our scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Id. at 689, 104 S. Ct. at 2065.
This case presents an example of the inadequacies inherent in evaluating ineffective assistance claims on direct appeal. Appellant did not file a motion for new trial that raised this issue; therefore, the appellate complaint directed at trial counsel involves action that may or may not be grounded in sound trial strategy. The record does not reflect defense counsels= reasons for failing to argue or submit consideration of either manslaughter or >sudden passion= at the punishment phase. In such situations, ineffectiveness of counsel issues are better presented within the framework of a post‑conviction writ of habeas corpus under article 11.07 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2003); Bone, 77 S.W.3d at 833B34; Ex parte Torres, 943 S.W.2d 469, 475B76 (Tex. Crim. App. 1997).
Ineffective assistance of counsel claims are not built on retrospective speculation; they must “be firmly founded in the record.” That record must itself affirmatively demonstrate the alleged ineffectiveness. Bone, 77 S.W.3d at 835; Thompson, 9 S.W.3d at 813B14. For us to evaluate why trial counsel did not argue for a manslaughter conviction or request a sudden passion instruction in the punishment stage of the trial without a more adequate record would be speculative and we refuse to do so. See Thompson, 9 S.W.3d at 813B14. The Court of Criminal Appeals has repeatedly cautioned appellate courts to “be especially hesitant to declare counsel ineffective based upon a single alleged miscalculation during what amounts to otherwise satisfactory representation, especially when the record provides no discernible explanation of the motivation behind counsel=s actions.” Id. at 814; see Bone, 77 S.W.3d at 833; Perez v. State, 56 S.W.3d 727, 736 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d) (giving examples of when the failure to undertake the complained of action may be attributable to sound trial strategy). In the present case, appellant has failed to meet the first prong of Strickland because the record has not been adequately developed for this Court to consider whether defense counsels= representation was ineffective. However, appellant is not precluded from bringing a petition for writ of habeas corpus to fully develop the record. See Thompson, 9 S.W.3d at 814B15. Therefore, under the facts of this case as developed on appeal, we overrule appellant=s second and third issues.
Accordingly, we affirm the judgment.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed July 31, 2003.
Panel consists of Justices Yates, Anderson, and Fowler.
Do Not PublishCTex. R. App. P. 47.2(b).
[1] Appellant complains that trial counsel did not ask for a manslaughter instruction at the punishment phase, citing to section 19.02 of the Penal Code. Counsel asked for a manslaughter instruction at the guilt phase. Because a manslaughter request is properly made at the guilt phase (see section 19.04 of the Penal Code) and not at the punishment phase, and appellant complains about the punishment phase, we interpret his point of error to complain that trial counsel did not request an instruction on >sudden passion= at the punishment phase.
[2] The standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) apply to claims of ineffective assistance of counsel whether at the guilt/innocence phase or the punishment phase of trial. See Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999).