Lance Darnell Williams v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-379-CR
LANCE DARNELL WILLIAMS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Lance Darnell Williams appeals his conviction for murder. 2 We
affirm.
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003).
Appellant shot and killed his friend, Charlie Lee Jackson, following an
argument. A jury found appellant guilty of murder and assessed punishment at
twenty-five years’ confinement. The trial court sentenced him accordingly.
In point one, appellant claims that the trial court erred in refusing his
requested jury charge on criminally negligent homicide as a lesser included
offense. We use a two-step analysis to determine whether appellant was
entitled to a lesser included offense instruction. 3 First, the lesser offense must
come within article 37.09 of the code of criminal procedure.4 Article 37.09(3)
provides, “An offense is a lesser included offense if . . . it differs from the
offense charged only in the respect that a less culpable mental state suffices
to establish its commission. 5 Criminally negligent homicide satisfies this first
step.6
The next step is to determine whether some evidence exists that would
permit a jury to rationally find that if appellant is guilty, he is guilty only of the
3
Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau
v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App.), cert. denied, 510 U.S.
919 (1993).
4
Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v. State,
969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
5
Tex. Code Crim. Proc. Ann. art. 37.09(3).
6
Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992); Lugo
v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984).
2
lesser offense.7 This step acknowledges that there are factual circumstances
in which an offense is indeed a lesser included offense under the first step, but
a jury charge instruction is not required because the condition—that the
defendant is not guilty of the greater offense but is guilty only of the lesser—is
not met. 8 In such a case, the offense remains a lesser included, but the trial
court is not required to instruct the jury on it.9
The evidence must be evaluated in the context of the entire record. 1 0
There must be some evidence from which a rational jury could acquit the
defendant of the greater offense while convicting him of the lesser. 11 The court
may not consider whether the evidence is credible, controverted, or in conflict
with other evidence.12 Anything more than a scintilla of evidence may be
enough to entitle a defendant to a lesser charge. 13 A charge on the lesser
7
Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.
Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73.
8
Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005); see
also Irving v. State, 176 S.W.3d 842, 845–46 (Tex. Crim. App. 2005);
Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005).
9
Pickens, 165 S.W.3d at 679.
10
Moore, 969 S.W.2d at 8.
11
Id.
12
Id.
13
Hall, 225 S.W.3d at 536.
3
included offense is not required when the defendant presents no evidence or
presents evidence that no offense was committed and there is no evidence
otherwise showing that the defendant is guilty of a lesser included offense.14
A defendant is entitled to a charge on criminally negligent homicide only
if there is more than a scintilla of evidence to show that he did not perceive
that his conduct created a substantial and unjustifiable risk of injury or death.15
Appellant contends that he only shot in the air to scare Jackson and that he did
not intend to kill him. In support of this assertion, he cites testimony from a
witness to the shooting, Latoya Degraffinried, and Arlington Police Detective
Byron Stewart, together with his own videotaped statements. Assuming this
evidence does show that appellant was pointing the gun in the air when he
confronted Jackson, none of it proves that appellant failed to perceive the risk
created by his conduct.16 Even if the gun was pointing in the air, it is
14
Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
15
Hall, 225 S.W.3d at 536; Mendieta v. State, 706 S.W.2d 651, 653
(Tex. Crim. App. 1986).
16
See Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d) (“In fact, appellant’s testimony that he wanted the gun
‘to frighten the men off’ shows that he either disregarded the risk or knew the
risk of having a loaded gun.”); Woodward v. State, 170 S.W.3d 726, 728 (Tex.
App.—Waco 2005, pet. ref’d) (defendant’s testimony that he merely intended
to “scare them off” did not entitle him to criminally negligent homicide
instruction).
4
undisputed that it was pointed in Jackson’s direction. At a minimum, the
evidence shows that appellant knew and disregarded the risks created by
pointing and firing the gun in Jackson’s direction.17
Because there is no evidence that appellant failed to perceive that his
conduct would create a substantial and unjustifiable risk of injury or death, we
hold that no rational jury would acquit appellant of murder and find him guilty
only of criminally negligent homicide.18 We overrule point number one.
In points two through ten, appellant claims that his trial counsel provided
ineffective assistance. We apply a two-pronged test to ineffective assistance
of counsel claims.19 First, appellant must show that counsel’s performance was
deficient, which requires a showing that counsel made such serious errors that
he or she was not functioning as the “counsel” guaranteed by the Sixth
Amendment.20 Counsel’s performance is only deficient if it fell below an
objective standard of reasonableness measured by prevailing professional
17
See Trujillo, 227 S.W.3d at 168.
18
See Moore, 969 S.W.2d at 8.
19
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Salinas, 163 S.W.3d at 740; Mallett v. State, 65 S.W.3d 59, 62–63
(Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999).
20
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
5
norms.21 The record must be sufficiently developed to overcome a strong
presumption that counsel provided reasonable assistance.22 Our scrutiny of
counsel’s performance must be highly deferential, making every effort to
eliminate the distorting effects of hindsight.23
Second, appellant must show that counsel’s deficient performance
prejudiced the defense; this requires a showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial. 24 Appellant must show that
there is a reasonable probability that, but for counsel’s deficiency, the result of
the trial would have been different.25
A claim of ineffective assistance of counsel must be firmly grounded in,
and supported by, the record.26 When the record is silent as to possible trial
21
Id. at 688–89, 104 S. Ct. at 2065.
22
Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002);
Thompson, 9 S.W.3d at 813–14.
23
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
24
Id. at 687, 104 S. Ct. at 2064.
25
Id. at 694, 104 S. Ct. at 2068.
26
Thompson, 9 S.W.3d at 814; Jackson v. State, 973 S.W.2d 954, 955
(Tex. Crim. App. 1998).
6
strategies employed by defense counsel, we will not speculate on the reasons
for those strategies.27
There is a substantial risk of failure when a claim of ineffective assistance
of counsel is brought on direct appeal.28 “Under normal circumstances, the
record on direct appeal will not be sufficient to show that counsel’s
representation was so deficient and so lacking in tactical or strategic decision
making as to overcome the presumption that counsel’s conduct was reasonable
and professional.” 29
This case demonstrates the “inadequacies inherent in evaluating
ineffective assistance claims on direct appeal.” 3 0 Although appellant filed a
motion for new trial, there is nothing in the record to show that he presented
it to the trial court to afford the trial court a chance to hold a hearing and
inquire into the reasons for trial counsel’s acts or omissions. Consequently, we
cannot determine whether counsel’s actions were grounded in sound trial
strategy because the record is silent as to possible trial strategies, and we will
27
See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
28
Thompson, 9 S.W.3d at 813.
29
Bone, 77 S.W.3d at 833.
30
Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth 2001,
no pet.).
7
not speculate on the reasons for those strategies. 31 Therefore, appellant has
failed to meet the first prong of Strickland. Moreover, even if we could discern
from the record that appellant’s trial counsel’s performance fell below the
standard of reasonable professional representation, appellant has made no
showing that any of counsel’s alleged errors negatively affected the outcome.32
Consequently, appellant has failed to meet the second prong of Strickland. We
overrule points two through ten.
Having overruled all of appellant’s points, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 2, 2008
31
See id.; Jackson, 877 S.W.2d at 771.
32
See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
8