Affirmed and Opinion filed October 19, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01004-CR
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LARRY EARL GATTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court at Law No. 6
Harris County, Texas
Trial Court Cause No. 1160372
O P I N I O N
Appellant, Larry Earl Gatton, appeals from his conviction for assault. See Tex. Pen. Code Ann. ' 22.01 (Vernon Supp. 2004). Charged by information, appellant entered a plea of Anot guilty.@ Appellant was convicted and sentenced by a jury to 365 days= confinement in the Harris County Jail and assessed a fine of $4,000. In four points of error, appellant asserts the evidence was both legally and factually insufficient and that he received ineffective assistance of counsel at both the guilt/innocence and punishment phases of his trial. We affirm.
Appellant=s conviction arises out of an altercation at the C&M Ice House. The complainant testified that she was at the bar visiting her friend, the bartender. Appellant and his fiancee arrived sometime later in the evening. Appellant was yelling questions about the music selection on the juke box and the complainant replied to these questions. Apparently, complainant=s response angered appellant and his fiancee. Both the bartender and the complainant testified that appellant and his fiancee were giving the complainant Adirty looks.@ The complainant testified the situation escalated into physical violence when appellant=s fiancee pushed her as she was walking toward the pay phone. The two women began fighting. At some point during the fight, appellant punched the complainant in the face and proceeded to hit her several more times. After other bar patrons pulled appellant away, he and his fiancee left the bar. A short time later, appellant and his fiancee returned to the bar, but the bartender refused to serve them so they left again.
The police were called and arrived shortly thereafter. Officer Childers, of the Houston Police Department, responded to the call. Childers observed the complainant=s eyes were swollen and noticed scratches on her face and chin. As he was taking down statements, one of the bar patrons indicated that appellant and his fiancee were in the parking lot. Appellant then fled the parking lot in his truck. Childers and his partner pursued appellant and quickly took him into custody. Childers returned to the bar with appellant where witnesses identified him as the person who committed the assault.
Appellant asserted both self-defense and defense of a third person at his trial. Appellant=s fiancee, Kristy Edwards, was the defense=s sole witness. Edwards described the complainant as the original aggressor. After a series of escalating verbal exchanges, Edwards claims the complainant pushed appellant in the chest. The two women proceeded to fight after the complainant pulled her hair. A short time later, Edwards alleged that the complainant moved toward appellant with Afists flying@ and ripped both of his shirt sleeves off. Edwards claimed that she did not see appellant strike complainant. She explained that she had turned around and by the time she turned back around everything was over. The court=s charge on punishment included instructions on both self-defense and defense of a third person.
Sufficiency of the Evidence
In his first two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction because the State did not prove beyond a reasonable doubt that appellant did not act in self-defense or defense of a third person. We overrule appellant=s first two points of error.
The State bears a burden of persuasion, but not necessarily a burden to produce evidence affirmatively refuting a defensive theory. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). In other words, the State is not obliged to offer evidence refuting a claim of self‑defense, but rather, the State is required merely to prove its case beyond a reasonable doubt. Id.; Tidmore v. State, 976 S.W.2d 724, 729B30 (Tex. App.CTyler 1998, pet. ref=d). Moreover, self-defense and defense of others are fact issues to be determined by the jury. See Saxton, 804 S.W.2d at 913B14. AA jury verdict of guilty is an implicit finding rejecting the defendant=s self‑defense theory.@ Id.
In reviewing the legal sufficiency of the evidence when a defensive issue is raised, we must determine whether any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Saxton, 804 S.W.2d at 913B14. We also must determine whether any rational fact finder could hold against appellant on the defensive issue beyond a reasonable doubt. Id. In making both determinations, we view all the evidence in the light most favorable to the prosecution. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Saxton, 804 S.W.2d at 914. Furthermore, in determining legal sufficiency, we do not examine the fact finder=s weighing of the evidence, but merely determine whether there is evidence to support the verdict. Clewis v. State, 922 S.W.2d 126, 132 n.10 (Tex. Crim. App. 1996).
Self‑defense and defense of others are subject to a factual sufficiency review as well. See Tucker v. State, 15 S.W.3d 229, 235 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d). In conducting a factual sufficiency review, we must view the evidence Awithout the prism of >in the light most favorable to the prosecution=@ and set aside the verdict only if, considering all the evidence in a neutral light, the jury was not rationally justified in finding guilt beyond a reasonable doubt. Clewis v. State, 922 S.W.2d at 129; Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. Apr. 21, 2004).
Here, appellant contends the jury=s rejection of his self‑defense and defense of others claims was contrary to the overwhelming weight of the evidence. The jury heard evidence that appellant repeatedly hit the complainant after a scuffle ensued between the complainant and appellant=s fiancee. Appellant argues that his actions were taken only in defense of himself and his fiancee. The only evidence in the record supporting appellant=s argument is the testimony of his fiancee describing her own rendition of the brawl. The complainant detailed her version of the altercation and two other State=s witnesses testified as to the severity of the complainant=s injuries. In addition, the record contains photographs of the physical injuries the complainant sustained due to appellant=s actions. The jury is entitled to believe or disbelieve any witness and may resolve any inconsistencies in favor of either party. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury considered the evidence in this case and despite being instructed on the law of self-defense and defense of others, found that appellant had committed an assault. Our own careful review of the record indicates that any rational juror could have found beyond a reasonable doubt that appellant did in fact commit an assault and did not act in self-defense or the defense of another. Furthermore, the evidence to the contrary is not so overwhelming as to render the jury=s verdict Aclearly wrong and unjust.@ Accordingly, appellant=s first and second points of error are overruled.
Ineffective Assistance
Appellant complains in his third and fourth points of error that he was denied effective assistance of counsel at both the guilt/innocence and punishment phases of his trial. Specifically, appellant cites six instances in making his argument, namely that his trial counsel: (1) was unfamiliar with the offense report; (2) waived cross-examination of the arresting officer; (3) failed to object to cumulative evidence; (4) failed to object to Avictim impact statements@ before sentencing; (5) did not present mitigating evidence; and (6) allowed appellant to stipulate to prior convictions. After reviewing the record, we overrule appellant=s third and fourth points of error.
Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.05 (Vernon 1977). The right to counsel necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The United States Supreme Court has established a two‑prong test to determine whether counsel is ineffective. Id. First, appellant must demonstrate counsel=s performance was deficient and not reasonably effective. Id. at 688B92. Second, appellant must demonstrate the deficient performance prejudiced the defense. Id. at 693. Essentially, appellant must show that his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding would have been different. Id.; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).
Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge the strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We assume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, it is the appellant=s burden to rebut this presumption, by a preponderance of the evidence, through evidence illustrating why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). When the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Jackson, 877 S.W.2d at 771.
If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial. McFarland, 928 S.W.2d at 500. If appellant fails to make the required showing of either deficient performance or prejudice, his claim fails. Id.
Here, appellant does not direct us to any evidence in the record which indicates how he received ineffective assistance. Appellant did not file a motion for new trial and therefore, the record is silent as to the reasoning behind his trial counsel=s actions. An appellate court is not required to speculate on the reasons behind trial counsel=s actions when confronted with a silent record. Jackson, 877 S.W.2d at 771; see also Thompson, 9 S.W.3d at 814 (Tex. Crim. App. 1999) (holding that when the record provides no explanation as to the motivation behind trial counsel=s actions, an appellate court should be hesitant to declare ineffective assistance of counsel). Appellant fails to provide this Court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel. Thus, appellant has not satisfied his burden on appeal to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy.
Moreover, even if the record rebutted the presumption of sound trial strategy, appellant has not demonstrated that trial counsel=s performance prejudiced his defense. He has not, therefore, met the second prong of the test. Because appellant produced no evidence concerning trial counsel=s reasons for choosing the course he did, nor did he demonstrate prejudice to his defense, his third and fourth points of error are overruled.
The judgment of the trial court is affirmed.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Opinion filed October 19, 2004.
Panel consists of Justices Anderson, Hudson, and Frost.
Do Not Publish C Tex. R. App. P. 47.2(b).