Affirmed and Memorandum Opinion filed April 5, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-03-01390-CR
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JOHN LOUIS JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 13,529
M E M O R A N D U M O P I N I O N
Appellant John Louis Johnson brings this appeal from his conviction for aggravated assault with a deadly weapon, for which he was sentenced to five years in prison. In three points of error, appellant argues that the evidence was legally and factually insufficient to support his conviction and that he received ineffective assistance of counsel. We affirm.
Background
On December 2, 2001, appellant, a former prison guard, went to the Benz 2000 club in Brenham, Texas. Appellant’s cousin, Brent Cooper, was asked to leave the club after an argument over a pool game. Cooper went outside, where a fight began with Sean Taylor and others. Appellant was summoned from the club to help his cousin leave the club. During the scuffle surrounding Cooper’s exit from the scene, appellant’s friend, Donte Jefferies, was found to be “cut” in the stomach. One of the men involved in the affray, Sean Taylor, struck appellant with a wooden table leg while appellant attempted to help Jefferies into his (appellant’s) running truck to take Jefferies to the hospital.
After he was struck, appellant testified that he saw Taylor and Taylor’s cousin, Alan Ausby, both holding table legs, coming back toward him. He testified that his truck was being pelted with rocks and/or sticks and bottles. He reached into his truck, retrieved his .410-gauge shotgun, which was loaded with small bird shot, and fired a single shot in the direction of Taylor and Ausby. Ausby was struck by a single pellet in his shoulder. Appellant then put the gun back in his truck and left the scene alone, not knowing whether he had hit anyone. He was arrested later that evening and charged with aggravated assault with a deadly weapon. A jury found him guilty of that offense and sentenced him to five years in prison.
In his appeal, appellant claims that the evidence was legally and factually insufficient to convict him of the crime since no rational jury should have rejected his claim of self-defense and that his counsel was ineffective for his failure to object at certain times during the trial and to request a certain jury charge regarding appellant’s self-defense claim.
Legal and Factual Sufficiency
In his first and second points of error, appellant claims that the evidence is legally and factually insufficient to support the jury’s rejection of his claim of self-defense. We disagree.
A defendant has the burden of producing some evidence in support of a claim of self-defense; once he produces such evidence, the State then bears the burden to disprove the raised defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. There is an implicit finding against the defensive theory when a jury finds the defendant guilty. Id.
When a defendant challenges the legal sufficiency of the evidence supporting the fact-finder’s rejection of a claim of self-defense, we do not look to whether the State presented evidence refuting the appellant’s self-defense testimony. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Instead, we determine whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found, beyond a reasonable doubt, both 1) the essential elements of the crime and 2) against the appellant on the self-defense issue. Id. When a defendant challenges the factual sufficiency of the evidence supporting a fact finder’s rejection of a defense, we review all of the evidence in a neutral light. Zuliani, 97 S.W.3d at 593–95. We then ask whether the State’s evidence, taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Id.
In order for the State to prove that appellant committed aggravated assault with a deadly weapon, it had to prove, beyond a reasonable doubt, that he used or exhibited a deadly weapon to intentionally, knowingly, or recklessly cause bodily injury to Alvin Ray Ausby. Tex. Pen. Code Ann. §§ 2201.(a)(1); 22.02(a)(2) (Vernon 2003). In Texas, an individual is justified in using force against another when and to the degree he reasonably believes that 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). Use of deadly force is justified against another if the actor would be justified in using force against another under Section 9.31; if a reasonable person in the actor’s situation would not have retreated; and when and to the degree the actor reasonably believes the deadly force to be necessary to protect himself against the other’s use or attempted use of unlawful deadly force. Tex. Pen. Code Ann. § 9.32(a) (Vernon 2003) (emphasis added).
All witnesses, including appellant, testified that the scene was violent, emotional, and chaotic, especially since each person involved had consumed some amount of alcohol that evening. It is undisputed that Ausby and Taylor had wooden table legs in their possession, and that Taylor actually struck appellant prior to appellant’s firing of his shotgun. However, the extent of appellant’s injury and, implicitly, whether it warranted his retaliation by gunfire, was at issue. Although appellant testified that he went to the hospital for treatment three days after being injured in the fight, the arresting officer, Carl Weisepape, the booking officer, Curtis Schoen, and the investigating Texas Ranger, Otto Hanak, all testified that appellant did not request medical treatment the night of the shooting after they took him into custody. At the time of the shooting, the evidence indicates that appellant’s truck was running and the passenger door was open. Instead of getting into his truck and leaving the scene, appellant chose instead to retrieve his shotgun and fire into the crowd of people. He testified that he aimed at no particular person.
Therefore, taking into account that the issue of self-defense is a fact issue to be determined by the jury and that the jury is free to accept or reject any defensive evidence, we find that any rational trier of fact could have found the essential elements of aggravated assault with a deadly weapon beyond a reasonable doubt. Saxton, 804 S.W.2d at 913–14. We also find that a rational trier of fact could have found against the appellant beyond a reasonable doubt on his self-defense issue. Id. The evidence was thus legally sufficient to sustain the jury’s rejection of appellant’s self-defense claim. Id.
As to appellant’s factual sufficiency challenge, we find that, after reviewing all of the evidence in a neutral light, the State’s evidence, taken alone, is not too weak to support appellant’s conviction; neither is the proof of guilt against the great weight and preponderance of the evidence. Zuliani, 97 S.W.3d at 595. The evidence was therefore factually sufficient to support the jury’s rejection of appellant’s self-defense claim.
We overrule appellant’s first and second points of error.
Ineffective Assistance of Counsel
In his third and final point of error, appellant contends he was denied effective assistance of counsel because his counsel: (1) allowed the State to shift the burden of proof to appellant on the issue of self-defense by not objecting to the prosecutor’s remarks during voir dire and closing; (2) failed to object to the prosecutor’s allegedly improper questioning regarding appellant’s Fifth Amendment right to remain silent; and (3) failed to request a jury charge on appellant’s right to defend himself against multiple assailants.
To prove ineffective assistance of counsel, a defendant must show that (1) counsel’s performance fell below an objective standard of reasonableness, under prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 688, 694 (1984); Rodriquez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995). When reviewing a claim of ineffective assistance of counsel, we must give much deference to trial counsel and presume counsel made all significant decisions in the exercise of reasonable professional judgment. Thompson v. State, 9 S.W.3d 808, 813 ( Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
Appellant bears the burden to show counsel's ineffectiveness by a preponderance of the evidence, and allegations of ineffectiveness must be firmly founded in the record. Thompson, 9 S.W.3d at 813; Dewberry v. State, 4 S.W.3d 735, 757 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131 (2000).
We presume that his counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson, 877 S.W.2d at 771. Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he did. See id. An appellant cannot meet this burden when his trial counsel’s actions may have been based on tactical decisions, and the record does not specifically focus on the reasons for trial counsel’s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). In this case, although appellant filed a motion for new trial, he did not raise the issue of ineffective assistance of counsel in the motion. As a result, because there is no proper evidentiary record developed, it is extremely difficult to show that the trial counsel’s performance was deficient. See id. at 833. Accordingly, we cannot conclude that trial counsel’s performance was deficient or was anything other than trial strategy.[1] See Strickland, 466 U.S. at 694; Jackson, 877 S.W.2d at 771–72.
Appellant therefore fails to meet the first prong of Strickland with regards to all sub-issues under his ineffective assistance of counsel point of error. 466 U.S. at 694. Appellant’s third and final point of error is thus overruled.
We affirm the judgment of the trial court.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed April 5, 2005.
Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] We note that, although appellant argues his counsel was ineffective for failure to request a jury charge regarding his right to defend himself against his victim and others, the application paragraphs of the charge included numerous references to “Alvin Ausby and or [SIC] others.” Since the paragraph applying the law to the facts, rather than the abstract portion of the charge, determines whether error exists in the charge, appellant’s argument is without merit. See Hudson v. State, 675 S.W.2d 507, 512 (Tex. Crim. App. 1984); Frost v. State, 25 S.W.3d 395, 400 (Tex. App.—Austin 2000, no pet.).