Affirmed and Memorandum Opinion filed February 19, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00206-CR
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PAUL ANTHONY HORTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 337th District Court
Harris County, Texas
Trial Court Cause No. 916,697
M E M O R A N D U M O P I N I O N
Paul Anthony Horton appeals a conviction for aggravated assault with a deadly weapon[1] on the grounds that: (1) the evidence was legally insufficient to support his conviction; and (2) he was denied effective assistance of counsel. We affirm.
Legal Sufficiency
Appellant=s first point of error contends that the evidence was legally insufficient to support his conviction for aggravated assault because the State failed to rebut his claim of self-defense beyond a reasonable doubt. In particular, appellant asserts that inconsistencies in the testimony of the State=s witnesses render the evidence supporting his conviction insufficient in light of his self-defense evidence that he only shot the complainant after complainant attacked and tried to rob him.
In reviewing legal sufficiency, we view all of 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. Jackson v. Virginia, 443 U.S. 307, 318‑19 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex. Crim. App. 2003). Where a defendant asserts a claim of self‑defense, the State is not required to affirmatively produce evidence to refute that claim, but only to prove its case beyond a reasonable doubt. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991).
As relevant to this case, an aggravated assault occurs when one intentionally causes injury to another by using a deadly weapon such as a firearm. Tex. Pen. Code Ann. '' 22.01(a)(1); 22.02(a)(2) (Vernon Supp. 2004). A person is justified in using deadly force against another in self‑defense if, among other things, he reasonably believes the force is immediately necessary to protect himself against the other=s use or attempted use of unlawful deadly force, and a reasonable person in the actor=s situation would not have retreated. Tex. Pen. Code Ann. '' 9.31(a), 9.32(a) (Vernon 2003).
In this case, it is undisputed that appellant shot the complainant. Although appellant claims that he did so in self-defense after the complainant attacked and tried to rob him, the complainant and two other witnesses to the shooting all testified, to the contrary, that the complainant was shot by someone driving slowly past in a van. This evidence is legally sufficient to prove the offense and overcome the self-defense claim, and appellant=s first issue is overruled.
Ineffective Assistance of Counsel
Appellant=s second and third points of error argue that he was denied effective assistance of counsel because his trial counsel failed to: (1) conduct an independent investigation of the case; (2) acquaint himself with the facts of the case; (3) develop a trial strategy or defensive theory; (4) and file numerous pre-trial motions.
A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and thereby prejudices the defense to the extent of causing the result of the proceeding to be different. Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003); Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003). Ineffective assistance claims must be affirmatively demonstrated in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). If counsel=s reasons for the challenged conduct do not appear in the record and there is at least a possibility that it could have been legitimate trial strategy, we will defer to counsel=s decisions and deny relief on an ineffective assistance claim on direct appeal. Murphy, 112 S.W.3d at 601.
In this case, because appellant did not develop a record of counsel=s reasons for the challenged actions by motion for new trial or otherwise, he has not overcome the presumption of sound trial strategy. In addition, if anything, the record shows that appellant=s counsel competently cross-examined witnesses, demonstrated a familiarity with the evidence, pointed the jury to inconsistencies in the State=s evidence, had a defensive strategy throughout the case, and had a standing discovery order which encompassed most of the information appellant claims his counsel should have asked for in pre-trial motions. Concerning the remaining motions, the record does not reflect whether counsel received additional information from a State=s open file policy or otherwise. Nor has appellant shown what further evidence his counsel might have developed upon further investigation. Because appellant=s second and third points of error thereby fail to demonstrate a deficiency in counsel=s performance, they are overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Memorandum Opinion filed February 19, 2004.
Panel consists of Justices Fowler, Edelman, and Seymore.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] A jury convicted appellant and assessed punishment of ten years confinement and a $3,500 fine.