Opinion issued October 29, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00299-CR
———————————
CREGORY THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Cause No. 1317593
MEMORANDUM OPINION
A jury found appellant Cregory Thompson guilty of the second degree
felony offense of aggravated assault with a deadly weapon, and the trial court
assessed a punishment of five years’ imprisonment. See TEX. PENAL CODE ANN.
§ 22.02 (West 2012). On appeal, Thompson contends that the trial court erred in
overruling his motion for new trial because he was denied effective assistance of
counsel. Finding no reversible error, we affirm.
Background
Jason Bittner worked for vehicle lienholders, assisting them in repossessing
vehicles due to nonpayment. On the evening of August 4, 2011, Bittner attempted
to repossess a Ford F150 truck that Cregory Thompson had in his possession. The
truck was registered in the name of Lakendra Coffman, Thompson’s business
partner. At the time of the attempted repossession, the Ford F150 was parked in a
parking lot in a strip center directly in front of the nightclub that Thompson owned.
Bittner parked his tow truck behind the F150 to block it from the parking lot
exit. He then got out of his car and approached Thompson, who was standing
outside the nightclub with Tony Gaitlin. Bittner and Thompson spoke for about
ten minutes. Thompson refused to let Bittner repossess the F150 and, after several
minutes, Thompson cocked a gun, pointed it at Bittner, and ordered him to leave
the property. Bittner called the police and reported the incident as he was pulling
away from the parking lot.
About fifteen minutes after the incident, Thompson called 911 to inquire
whether an outstanding warrant for aggravated assault had been issued in his name.
Officer R. Freeze, of the Houston Police Department, began an investigation
of Thompson a few days after Bittner reported the encounter. Officer Freeze stated
2
that Bittner positively identified Thompson in a photo spread, but Thompson
denied the accusation and stated that there was surveillance video that would
exonerate him. Neither Officer Freeze nor Thompson was able to recover video
footage from that evening. The police never located the gun that Thompson used
in the altercation.
The indictment charged that Thompson “intentionally and knowingly
threaten[ed] Jason Bittner with imminent bodily injury by using and exhibiting a
deadly weapon, namely, a firearm.” Thompson pleaded not guilty to the charge.
Ineffective Assistance of Counsel
I. Standard of Review
Thompson contends that his trial counsel was ineffective in not requesting
that the jury be given an instruction on the defense of property, investigating “the
law and facts” that would support his defense, or challenging the State’s evidence
in a meaningful way. The United States Supreme Court has established a two-
pronged test for determining whether there was ineffective assistance of trial
counsel. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064,
2068 (1984). To prevail on a claim of ineffective assistance of counsel, a
defendant must show that (1) his counsel’s performance was deficient and (2) a
reasonable probability exists that the result of the proceeding would have been
different but for counsel’s deficient performance. Id.; Andrews v. State, 159
3
S.W.3d 98, 101–02 (Tex. Crim. App. 2005).
The first prong of the Strickland test requires that the defendant show that
counsel’s performance fell below an objective standard of reasonableness.
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). The defendant
must prove, therefore, by a preponderance of the evidence that trial counsel’s
representation objectively fell below professional standards. Mitchell v. State, 68
S.W.3d 640, 642 (Tex. Crim. App. 2002); see Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064 (“This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”).
The second prong requires the defendant to show a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;
Thompson, 9 S.W.3d at 812. “Reasonable probability” means a “probability
sufficient to undermine confidence in the outcome.” Thompson, 9 S.W.3d at 812.
A failure to make a showing under either prong defeats a claim for ineffective
assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
The record must affirmatively support any allegation of ineffectiveness.
Thompson, 9 S.W.3d at 813. The appellant must prove ineffective assistance by a
preponderance of the evidence and must overcome the strong presumption that his
4
counsel’s conduct falls within the wide range of reasonably professional assistance
or might reasonably be considered sound trial strategy. Robertson v. State, 187
S.W.3d 475, 482–83 (Tex. Crim. App. 2006).
The grant or denial of a motion for new trial is a matter entirely within the
trial court’s discretion and will not be reversed unless the trial court abused its
discretion. State v. Gonzales, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). An
abuse of discretion occurs when the trial court’s decision is so clearly wrong as to
lie outside the zone of reasonable disagreement. Cantu v. State, 842 S.W.2d 667,
682 (Tex. Crim. App. 1992). At a hearing on a motion for new trial, the trial court
is the sole judge of witness credibility. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.
Crim. App. 1995).
II. Failure to Investigate “the Law and Facts” Regarding Defense of
Property
Thompson complains that his trial counsel failed to render competent
assistance because he failed to investigate facts that, if developed during the guilt-
innocence phase, would have lent credibility to Thompson’s explanation for his
actions following the incident. Section 9.41 of the Penal Code allows
[a] person unlawfully dispossessed of . . . tangible, moveable property
by another [to use] force against the other when and to the degree the
actor reasonably believes the force is immediately necessary to ...
recover the property if the actor uses the force immediately or in fresh
pursuit after the dispossession and . . . reasonably believes the other
had no claim of right when he dispossessed the actor[.]
5
TEX. PENAL CODE ANN. § 9.41(b)(1) (West 2011). The defense requires the
defendant to admit to the intentional use of force.
An appellate court generally assumes that trial counsel had a strategic reason
to act as he did if any strategic motivation can possibly be imagined, and “will not
conclude the challenged conduct constituted deficient performance unless the
conduct was so outrageous that no competent attorney would have engaged in it.”
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Thompson’s trial
counsel explained his reasons for not requesting a defense-of-property instruction
during the motion for new trial hearing:
Q. And can you get into about why you did not request a defense of property
instruction? Was that a strategic decision?
A. No. It was not. I—honestly, it didn’t cross my mind. I’ll be perfectly
honest.
Q. Okay.
A. It didn’t cross my—let me clarify. It didn’t cross my mind because it wasn’t
his truck.
Q. Okay.
A. I mean, it wasn’t his property.
Q. Okay.
A. So, I mean, it was just one of those—it didn’t seem applicable to me.
6
At the motion for new trial hearing, Thompson testified that, even though
the truck registration showed Coffman as the sole owner, the truck belonged to
their business, and payments for the truck were drawn from a joint bank account
held by Thompson and Coffman. Thompson claims that, because he had an
ownership interest in the truck, he was entitled to a defense-of-property jury
instruction and prejudiced by his trial counsel’s failure to request its submission.
Proof of ownership, however, is only one of the elements that the evidence
must raise before a defendant is entitled to a jury instruction on defense of
property. Thompson was also required to show that (1) Bittner was acting
unlawfully in attempting to repossess the truck and (2) Thompson reasonably
believed that the force he used was immediately necessary to prevent Bittner’s
unlawful interference. See TEX. PENAL CODE ANN. § 9.41(a) (West 2011). No
evidence presented during the guilt-innocence phase raised an issue about whether
Bittner’s attempted repossession was unlawful. During the punishment phase,
Thompson admitted that he knew that his business partner had not kept up with the
payments due on the truck and that he had tried to make arrangements with Bittner
to pick up the truck the next morning.
Further, Thompson denied having brandished a gun at Bittner—the very
conduct he would have had to admit to in order to claim defense of property in this
case. See TEX. PENAL CODE ANN. § 9.42 (West 2011); East v. State, 76 S.W.3d
7
736, 738 (Tex. App.—Waco 2002, no pet.) (holding that defendant must admit to
committing conduct which forms basis of affirmative defense before claiming that
defense). Instead, he relied on the eyewitness testimony of an acquaintance who
frequented the club and was present the night of the incident. The witness denied
that Thompson held or used a weapon during his discussion with Bittner.
From the evidence presented at the new trial hearing, the trial court could
have reasonably concluded that trial counsel made a strategic decision not to raise
the issue of defense of property because the evidence at trial did not substantiate a
need for Thompson to protect the property and counsel reasonably chose to employ
the available trial strategy, namely, that Thompson was innocent of the alleged
crime and never brandished a firearm at all. Because the defense of property issue
would have undermined the reasonable trial strategy that trial counsel employed,
Thompson has failed to satisfy the first prong of the Strickland test. See
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
III. Failure to Challenge the State’s Evidence
Thompson next contends that his trial counsel failed to challenge the State’s
evidence in a meaningful way. First, Thompson points to Sergeant Hendrix’s
testimony that, in his 911 call, Thompson denied involvement in the incident. In
testimony adduced at the punishment stage, Thompson explained that Coffman
called him earlier that evening to tell him that Bittner had informed her that the
8
police had an outstanding warrant for Thompson’s arrest, and that he called 911 to
demonstrate to Coffman that no warrant had been issued. Because trial counsel did
not elicit testimony on this issue from Bittner during cross-examination, Thompson
contends the jury was left with the impression that Thompson’s call demonstrated
his awareness of his guilt. Thompson also claims that his trial counsel should have
developed the facts surrounding a conversation between Coffman and Thompson
in which Coffman asked Thompson about what happened that night, and
Thompson replied “I don’t know what you’re talking about.” Thompson explains
that his reply referred to Bittner’s allegations of assault, not to whether he had been
present during the incident. Trial counsel’s failure to elicit testimony from
Coffman that would place Thompson’s statement in context, he complains, left the
appearance that he was being evasive and denying his involvement in the incident.
Thompson did not present either of these failure-to-investigate claims in his
motion for new trial, and the hearing record does not affirmatively demonstrate
that trial counsel was ignorant of those issues or that he lacked a strategic reason
for not developing the testimony concerning them. Further, Thompson fails to
account for Coffman’s trial testimony in which she explained that, contrary to
Thompson’s assertion, she understood Thompson’s response that “[h]e didn’t
know what I was talking about” to mean that “he wasn’t there” when Bittner tried
to repossess the truck. In any event, we hold that the record is insufficient to
9
support Thompson’s burden to prove these ineffective assistance complaints. See
Thompson, 9 S.W.3d at 814.
Conclusion
We hold that Thompson has not met his burden to show that he was denied
effective assistance of counsel. We therefore affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
10
Cregory Thompson v. State
Combined Opinion