Maurice Lamar Piper v. State

ACCEPTED
05-16-01321-CR
FIFTH COURT OF APPEALS
DALLAS, TEXAS
1/30/2018 12:47 PM
LISA MATZ
5th Court of Appeals
CLERK
The State requests oral argument only if counsel for Appellant argues.
FILED: 01/31/2018
Lisa Matz, Clerk
8:29:12
No. 05-16-01321-CR
RECEIVED IN
5th COURT OF APPEALS
IN THE COURT OF APPEALS DALLAS, TEXAS
1/30/2018 12:47:49 PM
FOR THE FIFTH DISTRICT OF TEXAS LISA MATZ
Clerk
AT DALLAS
MAURICE LAMAR PIPER,
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On appeal from the 283rd Judicial District Court of
Dallas County, Texas
in Cause No. F15-75812-T
STATE’S BRIEF
Counsel of Record:
Faith Johnson Marisa Elmore
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24037304
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax
marisa.elmore@dallascounty.org
Attorneys for the State of Texas
TABLE OF CONTENTS
INDEX OF AUTHORITIES ...................................................................... iii
STATEMENT OF THE CASE .................................................................... 1
STATEMENT OF FACTS .......................................................................... 1
SUMMARY OF ARGUMENT ................................................................. 10
ARGUMENT ........................................................................................... 11
RESPONSE TO APPELLANT’S FIRST AND SECOND
POINTS OF ERROR: The record does not support Appellant’s
claims that trial counsel provided ineffective assistance at trial,
or that he was prejudiced by any deficient performance. ......... 11
RESPONSE TO APPELLANT’S THIRD POINT OF ERROR:
The Court should modify the judgment to correctly reflect that
the jury convicted Appellant of manslaughter. ........................ 31
PRAYER .................................................................................................. 32
CERTIFICATE OF WORD COMPLIANCE ............................................ 32
CERTIFICATE OF SERVICE .................................................................. 33
ii
INDEX OF AUTHORITIES
Cases
Andrews v. State,
159 S.W.3d 98 (Tex. Crim. App. 2005) .................................................... 26
Asberry v. State,
813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) .......................... 31, 32
Bigby v. State,
892 S.W.3d 864 (Tex. Crim. App. 1994) ............................................. 25, 29
Bigley v. State,
865 S.W.2d 26 (Tex. Crim. App. 1993) ............................................... 31, 32
Bone v. State,
77 S.W.3d 828 (Tex. Crim. App. 2002) ......................................... 16, 17, 18
Brown v. State,
89 S.W.3d 630 (Tex. Crim. App. 2002) .................................................... 18
Brown v. State,
955 S.W.2d 276 (Tex. Crim. App. 1997) .................................................. 19
Burruss v. State,
20 S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref’d) .............. 17, 27
Carter v. State,
717 S.W.2d 60 (Tex. Crim. App. 1986) .................................................... 28
Dannhaus v. State,
928 S.W.2d 81 (Tex. App.—Houston [14th Dist.]
1996, pet. ref’d)....................................................................... 20, 21, 25, 26
Ex parte Martinez,
330 S.W.3d 891 (Tex. Crim. App. 2011) ............................................. 18, 27
George v. State,
681 S.W.2d 43 (Tex. Crim. App. 1984) .................................................... 19
iii
Hathorn v. State,
848 S.W.2d 101 (Tex. Crim. App. 1992) .................................................. 26
Jackson v. State,
877 S.W.2d 768 (Tex. Crim. App. 1994) ....................................... 16, 21, 22
Johnson v. State,
959 S.W.2d 230 (Tex. App.—Dallas 1997, no pet.) .................................. 27
Lewis v. State,
529 S.W.2d 550 (Tex. Crim. App. 1975) .................................................. 20
Lopez v. State,
343 S.W.3d 137 (Tex. Crim. App. 2011) ........................................... passim
McFarland v. State,
928 S.W.2d 482 (Tex. Crim. App. 1996) .................................................. 16
Menefield v. State,
363 S.W.3d 591 (Tex. Crim. App. 2012) ....................................... 16, 17, 22
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998) .................................................. 16
Okonkwo v. State,
398 S.W.3d 689 (Tex. Crim. App. 2013) ............................................. 16, 23
Pouncy v. State,
No. 14-12-00470-CR, 2013 WL 3580638 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d) (mem. op., not designated for publication)..... 24
Rogers v. State,
105 S.W.3d 630 (Tex. Crim. App. 2003) .................................................. 18
Stepherson v. State,
523 S.W.3d 759 (Tex. App.—Houston [1st Dist.] 2017, no pet.). .............. 20
Strickland v. Washington,
466 U.S. 668 (1984) ......................................................................... passim
iv
Thomas v. State,
699 S.W.2d 845 (Tex. Crim. App. 1985) .................................................. 28
Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999)........................................... 18, 27, 30
Tolbert v. State,
306 S.W.3d 776 (Tex. Crim. App. 2010) .................................................. 21
Tong v. State,
25 S.W.3d 707 (Tex. Crim. App. 2000) .................................................... 18
Vasquez v. State,
830 S.W.2d 948 (Tex. Crim. App. 1992) .................................................. 21
Weeks v. State,
894 S.W.2d 390 (Tex. App.—Dallas 1994, no pet.) .................................. 27
Whitehead v. State,
696 S.W.2d 221 (Tex. App.—San Antonio 1985, pet. ref’d) ...................... 19
Statutes
Tex. Penal Code Ann. § 6.01 (West 2011) ................................................... 18
Tex. Penal Code Ann. § 6.03 (West 2011) ................................................... 20
Tex. Penal Code Ann. § 19.04 (West 2011) ...................................... 19, 31, 32
Rule
Tex. R. App. P. 43.2 .................................................................................. 31
v
TO THE HONORABLE COURT OF APPEALS:
The State of Texas submits this brief in response to the brief of
Appellant, Maurice Lamar Piper.
STATEMENT OF THE CASE
The grand jury indicted Appellant for the murder of Hardy Wilson. (CR:
12). Appellant pled not guilty. (RR4: 11; CR: 48). A jury found him guilty of
the lesser-included offense of manslaughter and sentenced him to eighteen
years and six months’ confinement in the Institutional Division of the Texas
Department of Criminal Justice. (RR6: 104; CR: 48). Appellant filed a timely
motion for new trial, which was overruled by operation of law, and a timely
notice of appeal. (CR: 82-83).
STATEMENT OF FACTS
Ronald Wadley owned New Image Collision (New Image), an auto
body shop in Dallas. (RR4: 15, 17, 41-42, 45-49). Hardy Wilson, who was
“like an uncle” to Appellant, owned another body shop across the street from
New Image but occasionally worked at New Image. (RR4: 17-18, 50-51, 86;
RR5: 56). On June 18, 2015, Appellant shot Wilson during an altercation at
New Image. (RR4: 15, 17, 49; RR5: 56). The bullet went through Wilson’s
chest and exited his back, killing him. (RR4: 22-23).
1
The altercation arose from a dispute over Appellant’s car, a Dodge
Charger, which was at the shop for repairs. (RR5: 46, 88). Wadley testified that
he had done some body work on the car, which Appellant told him had been
involved in an accident. (RR5: 46, 88). An insurance company had disbursed
some money for the repairs, with half of the money going to Wadley and the
other half to Appellant. (RR4: 46). The Charger had been at the shop for eight
or nine months because Appellant was behind on his car payments and it had a
lien on it. (RR4: 47-40, 91).
Wadley testified that on the day of the shooting, Dominique Hawkins,
Appellant’s brother, called him about the Charger, which was still undergoing
repairs. (RR4: 46-47, 51-54). At around five o’clock p.m., Wadley and his
employee, Colvin Nickerson, were in the shop preparing to close for the day
when Appellant and Hawkins entered the office. (RR4: 22-23, 43, 51-52, 166-
68, 170-71). Wadley testified, “[Appellant] said he want flesh or he going to get
some money today.” (RR4: 53). Appellant had a gun in the pocket of his
shorts; he took it out and held it during the exchange. (RR4: 55, 116). Wilson
passed through the office a couple of times, and Appellant told Wadley in
Wilson’s presence, “[Wilson] know what I do. I’m a killer. I shoot him; I’m a
killer and he know I shoot that gun.” (RR4: 61-62).
2
Seeing the animosity Appellant had toward Wilson and to prevent
anyone from being hurt, Wadley tried to de-escalate the situation by asking
Appellant how much money he needed. (RR4: 53, 63). Appellant then started
beating on the counter and stated, “I don’t want no money. I want some
flesh.” (RR4: 63). Nickerson heard Appellant repeat those words three or four
times. (RR4: 170-71, 181). Appellant told Wadley “it’s the principle,” and
Wadley told him the principle was not worth someone’s life and was not going
to solve anything. (RR4: 63). Appellant responded, “I don’t have nothing to
lose.” (RR4: 63). Appellant and Hawkins went outside. (RR4: 53, 64). At some
point, Wilson also walked out of the shop and stood behind a truck that was
backed in to a parking space between two other cars by the front door of the
shop. (RR4: 66, 221, 224-25; SX 14).
Wadley, who witnessed the shooting from the window and front door of
the body shop, testified that Appellant pulled the gun out and started a
conversation with Wilson. (RR4: 123, 126-27). Appellant accused Wilson of
“taking stuff” off his car. (RR4: 68). Appellant told Wilson, “You better not
come close to me or I’m going to shoot you.” (RR4: 68). Wilson did not
charge at or rush toward Appellant. (RR4: 69). Wilson “threw his hands in the
air,” and Appellant shot him. (RR4: 68). Photographs of the crime scene
depicted a chain link fence with a gate that bordered the parking lot of the
3
body shop. (SX 10-11). Wilson testified that when Appellant fired the shot,
Hawkins was standing outside the gate a little over thirty feet away from
Appellant. (RR4: 70-71, 123, 126). Wadley said the shooting was not an
accident, but was “a killing.” (RR4: 120-21).
Freddie Whitaker, an auto-glass installer who was outside during the
shooting, also testified Appellant deliberately shot Wilson. (RR4: 199).
Whitaker testified that Appellant and Hawkins started walking back toward
the office. (RR4: 212). Hawkins, in an attempt to get Appellant to leave,
grabbed Appellant by the arm; Appellant jerked away, and Hawkins exited the
gate. (RR4: 212-14). Whitaker heard Appellant say to Wilson, “You need to
stay out of my business. Go ahead and say something, you always saying
something.” (RR4: 214). Appellant pulled a weapon out and said, “Nigger, I
shoot you.” (RR4: 214, 217, 230). Wilson put his hands up and Appellant shot
him. (RR4: 214, 216-17). Whitaker testified as follows:
[THE STATE]: Was it a mistake?
[WHITAKER]: No, it wasn’t a mistake, [Appellant] just
told him he was going to shoot him and he shot him.
[THE STATE]: He said it and he shot him.
[WHITAKER]: Yes.
[THE STATE]: Was there anyone pulling his arm back
where the gun would have gone off by mistake?
4
[WHITAKER]: No one was near him.
[THE STATE]: Was anyone touching him when the gun
went off?
[WHITAKER]: No one was near him.
[THE STATE]: You said [Hawkins] was outside the fence
over there; is that correct?
[WHITAKER]: [Hawkins] was outside the fence over here.
(RR4: 218-19).
Nickerson also testified that Appellant shot Wilson with no interference
from Hawkins. (RR4: 189-90). Nickerson testified that Hawkins tried to stop
Appellant from re-entering the office; about a thirty-second scuffle ensued, but
Appellant broke away from Hawkins and did not fire the gun until two to three
minutes later. (RR4: 186-90). Nickerson heard Wilson say, “I didn’t take
anything off the car.” (RR4: 196). Appellant then said to Wilson, “Don’t walk
toward me,” and shot him. (RR4: 196).
Ladon McKinney also was standing outside the body shop near the gate
and witnessed the shooting; he gave a recorded statement to police at the crime
scene. (RR5: 38-39, 42; SX 31). McKinney, who was in jail at the time of trial,
refused to testify at trial and was deemed a “hostile witness.” (RR5: 37-38, 41-
42). He claimed he did not remember what happened that day because he was
high on marijuana. (RR5: 39).
5
The State played the recording of McKinney’s crime-scene statement for
the jury. (RR5: 42). McKinney told the police that Appellant was “aggressive”
toward Wilson “from the beginning to the end.” (SX 31). McKinney said he
saw Appellant pull out a black .38 or .32 revolver and point it at Wilson, and
heard him tell Wilson if he walked or moved “he was going to pop him.” (SX
31). McKinney said Wilson threw his hands up, and “the next thing I know he
pops him.” (SX 31). McKinney stated that Hawkins, “was the one trying to
stop everything … he was the one who pulled the dude back. He coulda did
more, but he just grabbed him and tried to stop everything.” (SX 31).
Appellant testified to a different version of facts leading up to the
altercation and the shooting. He testified that Wadley and Wilson were
complicit with him in facilitating insurance fraud involving Appellant’s
Charger, a car that Appellant wanted “to get rid of” because he owed more
money on the car than it was worth. (RR5: 57-60). Appellant claimed the plan
went awry, with Wadley keeping the insurance checks and taking parts off the
car to fix other vehicles. (RR5: 64-65, 80). Wadley denied knowing about any
insurance fraud involving the car. (RR4: 97-99).
Appellant testified that on the day of the shooting, frustrated because he
did not believe Wadley was working on the car, he called Wadley and
threatened to call the insurance company to report the fraud; in response,
6
Wadley told Appellant to come by the shop and get his money. (RR5: 67-68).
Appellant claimed he did not feel safe going to the shop and suspected that
Wadley’s invitation to come get his money might have been “a setup,” so he
picked up Hawkins on the way. (RR5: 68-70). Appellant admitted that he
never told police or the insurance agent that he believed the situation was a
setup or that he was scared for his life. (RR5: 91, 93).
Appellant admitted that he took a loaded .38 revolver with him to the
shop. (RR5: 69-70, 91, 93, 104). Appellant testified that he previously had
purchased a gun from Wilson and that he had carried a gun in the past. (RR5:
69). He claimed, however, that he could not remember where he obtained that
particular gun. (RR5: 69).
Appellant testified he was worried when he and Hawkins arrived and
saw Wilson and “his crew” of four or five people in the driveway of the shop.
(RR5: 70-71). He was afraid that they were going to attack him and Hawkins.
(RR5: 72). Nevertheless, he entered the office and asked Wadley for his money
and an update on the car repairs. (RR5: 72-73). Appellant was not satisfied
with the answers Wadley provided. (RR5: 72-73). Appellant denied telling
Wadley he was going to get “flesh or money,” and claimed he instead told
Wadley that since he could not get his money or his car he was going to call
the police and the insurance company about the matter. (RR5: 74).
7
Appellant testified that he and Hawkins exited the shop; Wilson also
came out and propped his foot on a truck and started “staring [Appellant]
down,” giving him “the google eye.” (RR5: 76-77). When counsel asked
Appellant if he believed Wilson had a gun, Appellant stated, “It was
speculation. I mean, [Hawkins] had mentioned something but I didn’t take it
into consideration.” (RR5: 87). Appellant, who believed his car was being
“chopped up” for parts, told Wilson, “Hey, I know y’all been taking parts off
my car,” but Wilson denied doing so. (RR5: 77-80). Appellant accused him
again, and Wilson “shot around the car taking long strides.” (RR5: 80). He
testified as follows:
[APPELLANT]: So after he come up he end up in the
middle, in the middle halfway from where I’m standing.
[TRIAL COUNSEL]: Okay. Now where you’re standing,
who is next to you?
[APPELLANT]: My brother is next to me.
[TRIAL COUNSEL]: Okay. What happens next, Maurice?
[APPELLANT]: I take my gun out and I draw down on him
and I tell him don’t approach me.
[TRIAL COUNSEL]: Why did you do that, Maurice?
[APPELLANT]: I was just – I was in fear, pretty much.
[TRIAL COUNSEL]: Did you have any intention of
shooting Hardy Wilson that day?
8
[APPELLANT]: No, not at all.
(RR5: 81). When he told Wilson not to approach him, Wilson “threw his
hands up.” (RR5: 83). Then the two men engaged in a “dialogue,” talking back
and forth. (RR5: 83).
Appellant testified that Wilson started taking steps backward with his
hands in the air; he still had his gun drawn on Wilson. (RR5: 84). He claimed
Hawkins was next to him on the left side, and “[f]or some strange reason,
[Hawkins] grabbed my neck and shoulder area.” (RR5: 82-85). The grabbing
was a “sudden jerk” that he was not expecting; the gun went off and he was
surprised. (RR5: 85). Appellant and his counsel demonstrated for the jury how
Hawkins grabbed Appellant. (RR5: 85). Trial counsel asked Appellant, “If
your brother had not pulled your arm would you have shot [Wilson]?” (RR5:
107). Appellant said he would not. (RR5: 107). The State asked Appellant if he
had ever shot a .38 revolver before, and Appellant claimed that he had not.
(RR5: 93). When the State asked, “It takes a lot of pressure to shoot a revolver
over a handgun; isn’t that right?” Appellant answered, “I don’t know.” (RR5:
93). The State also asked Appellant if he killed an unarmed man, and
Appellant stated, “I don’t – I don’t know.” (RR5: 105).
Appellant testified he had no intention of shooting Wilson and was
“devastated” by Wilson’s death. (RR5: 81-82, 87). When Appellant saw that
9
Wilson had been shot, he was “frozen,” “shaken up,” and in “disbelief.” (RR5:
85-86). Appellant testified that he fled after the shooting because he was scared
and wanted “to get away from the scene before anything else happened other
than this misfortune.” (RR5: 87).
Appellant admitted that and his girlfriend left the State of Texas and
Hawkins helped him get rid of the gun. (RR5: 93-95, 104). Appellant returned
to Texas only after he discovered that Hawkins had turned himself in to police.
(RR5: 99). When he returned, he first called the auto insurance company,
telling the insurance agent that he had lost his job and could not provide for his
family. (RR5: 99). He told the insurance agent, “I did it or whatever. My
brother turned himself in. He didn’t do it. I killed him. I did.” (RR5: 95, 99).
Appellant did not turn himself in to police until six days after he shot Wilson.
(RR5: 100).
SUMMARY OF ARGUMENT
Appellant has failed to demonstrate that he received ineffective
assistance of counsel. Appellant fails to fulfill the first prong of Strickland
because the record does not contain affirmative evidence explaining trial
counsel’s decision not to request a voluntariness-of-conduct instruction in the
jury charge. Moreover, a review of the record indicates that trial counsel
employed objectively reasonable trial strategy in attempting to prove Appellant
10
did not have the culpable mental state for murder and encouraging the jury to
either acquit Appellant or consider a conviction of manslaughter. Moreover,
Appellant fails to prove the second prong of Strickland because the
overwhelming evidence of Appellant’s guilt, coupled with his self-serving,
incredible testimony, shows that even had the jury charge included a
voluntariness-of-conduct instruction, no reasonable probability exists that the
jury would have acquitted him.
Finally, this Court should modify to the judgment to correctly reflect
that the jury convicted Appellant of manslaughter, a second-degree felony
under section 19.04 of the Texas Penal Code.
ARGUMENT
RESPONSE TO APPELLANT’S FIRST AND
SECOND POINTS OF ERROR
The record does not support Appellant’s claims that trial
counsel provided ineffective assistance at trial, or that he was
prejudiced by any deficient performance.
In his first issue, Appellant argues that because his testimony raised the
issue of voluntariness of conduct, his trial counsel’s failure to request a jury
charge instruction on that issue amounted to ineffective assistance of counsel.
In his related second issue, Appellant contends that trial counsel provided
ineffective assistance of counsel by “inviting” the trial court to include an
11
instruction on the lesser-included offense of manslaughter in the jury charge.
The record does not support Appellant’s claims.
Relevant Facts
During voir dire, the State discussed manslaughter with the jury panel.
(RR3: 34). Trial counsel also discussed manslaughter with the jury panel,
including the applicable punishment range and the culpable mens rea of
recklessness. (RR3: 87-88). Trial counsel also discussed criminally negligent
homicide with the panel and extensively discussed self-defense. (RR3: 89-105).
At the October 24, 2016 pretrial hearing, trial counsel informed the trial
court that he believed lesser-included offenses of manslaughter and criminally
negligent homicide would be raised by the evidence at trial and that he would
be filing a notice of eligibility for probation. (RR2: 11). At the time of trial,
Hawkins had also been charged with the murder of Wilson; he was out of jail
on bond, and the parties discussed whether he was going to testify at trial.
(RR2: 9; RR5: 24). The State and trial counsel anticipated that he would
testify, and Hawkins’s counsel affirmed that he might do so. (RR2: 10).
However, on October 27, after the State had rested and before trial counsel
presented Appellant’s case, Hawkins invoked his Fifth Amendment right to
not testify. (RR2: 9-10; RR5: 23).
12
Trial counsel did not present an opening statement. (RR4: 13; RR5: 22-
32). At closing, trial counsel argued that Appellant was reckless in pulling a
gun out, as follows:
Was [Appellant] right for coming over there with a gun?
Okay, first point that needs to be made, no one has said that him
coming over there with a gun is illegal. We have not heard one
word of testimony. … Was it smart? No, it was stupid, it was
stupid. Okay? It’s set into a part of a chain of events that occurred.
Now, many of these events were out of the control of [Appellant].
But it was a dumb thing to do. Chalk it up to a kid, a 29-year-old
who just [sic] a stupid mistake. Was he upset? Yeah, he probably
was upset.
(R5: 121). Trial counsel continued to argue that Wilson left the office “in a
huff.” (RR5: 124.) Trial counsel appeared to argue that Appellant pulled out a
gun because he was afraid of Wilson and, due to the unexpected appearance of
the employees from Wilson’s shop, his action in doing so might have been
reasonable behavior because he was in a “chop shop.” (RR5: 123-24). Counsel
argued:
But what did you hear from [Appellant] is, he had no
intention of using that weapon, none. He wanted to meet [Wilson]
over there. You heard from many witnesses that [Wilson] advance
at that time. And you heard – you heard testimony that at that
time [Hawkins] grabbed [Appellant] and the gun went off.
…
And he told you that he is – feels horrible that it happened,
and that is not a lie. But from all the evidence you know, he is not
criminally responsible for this.
13
And if he did anything his act was reckless, pulling out the
weapon itself. He is not responsible for that weapon pulling out,
but if you’re going to hold him [sic] for doing anything, it was a
reckless act.
(RR5: 124-25). Trial counsel finally argued, “Folks, this was a horrible thing
and [Appellant] is not coming to you with totally clean hands. He made that
admission. But at the end of the day, he is not criminally liable for the offense
of murder.” (RR5: 125).
At the jury charge conference, trial counsel did not request a
voluntariness-of-conduct instruction. (RR5: 108). Trial counsel requested a
charge on criminally negligent homicide, which the trial court denied. (RR5:
108). Ultimately, the trial court’s charge to the jury stated in pertinent part:
A person commits the offense of murder if he intentionally
or knowingly causes the death of an individual or if he intends to
cause serious bodily injury and commits an act clearly dangerous
to human life that causes the death of an individual.
A person commits the offense of manslaughter if he
recklessly causes the death of an individual.
(CR1: 61). The jury charge included the statutory definitions of
“intentionally,” “knowingly,” and “recklessly.” (CR1: 62). The jury charge
included application paragraphs regarding knowing and intentional murder
and serious bodily injury murder. (CR1: 65). The jury was instructed that if it
did not believe Appellant committed murder, to next consider the following:
14
[I]f you believe from the evidence beyond a reasonable
doubt that the defendant … did then and there recklessly cause the
death of Hardy Wilson … by shooting deceased with a firearm, a
deadly weapon, thereby causing the death of said deceased, you
will find the defendant guilty of the offense of manslaughter, as
included in the indictment.
If you find from the evidence beyond a reasonable doubt
that the defendant is guilty of murder or manslaughter, but you
have a reasonable doubt as to which offense he is guilty, then you
must resolve that doubt in favor of the defendant and find him
guilty of the lesser offense of manslaughter.
If you do not believe, or if you have a reasonable doubt that
the defendant is guilty of any offense as contained in this charge,
then you will find the defendant not guilty, and say by your
verdict, not guilty.
(CR1: 66).
Standard of Review
To prove a claim of ineffective assistance of counsel, an appellant must
show that (1) his trial counsel’s performance fell below an objective standard of
reasonableness, and (2) a reasonable probability exists that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011). Under the first prong of the
Strickland test, an appellant must show that counsel’s performance was
deficient. See Strickland, 466 U.S. at 687. This requires the appellant to
demonstrate that counsel’s representation fell below an objective standard of
15
reasonableness under prevailing professional norms. See id. at 688. To satisfy
this requirement, the appellant must identify the acts or omissions of counsel
alleged to constitute ineffective assistance and affirmatively prove that they fell
below the professional norm for reasonableness. See McFarland v. State, 928
S.W.2d 482, 500 (Tex. Crim. App. 1996), abrogated on other grounds by Mosley v.
State, 983 S.W.2d 249 (Tex. Crim. App. 1998).
The reviewing court begins with a strong presumption that counsel was
effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The
court should presume counsel’s actions and decisions were reasonably
professional and were motivated by sound trial strategy. Id.; see also Okonkwo v.
State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013). The appellant must rebut
this presumption by presenting evidence illustrating the reasons for counsel’s
actions and decisions. See Jackson, 877 S.W.2d at 771. The appellant cannot
meet this burden if the record does not affirmatively support the claim. See
Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). When direct
evidence is not available, reviewing courts will assume that counsel had a
strategy if any reasonably sound strategic motivation can be imagined. Lopez,
343 S.W.3d at 143.
An ineffective assistance claim cannot be built upon retrospective
speculation. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).
16
Moreover, before being condemned as unprofessional and incompetent,
counsel should be given an opportunity to explain his actions. See id. at 836. If
trial counsel is not given that opportunity, then the appellate court should not
find deficient performance unless the challenged conduct was so outrageous
that no competent attorney would have engaged in it. Menefield, 363 S.W.3d at
592. More specifically, it must be apparent from the record “that counsel’s
performance fell below an objective standard of reasonableness as a matter of
law, and that no reasonable trial strategy could justify trial counsel’s acts or
omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at
143. Thus, absent a properly developed record, an ineffective assistance claim
must usually be denied as speculative. See Bone, 77 S.W.3d at 836.
Under the second prong of Strickland, the appellant must affirmatively
prove his counsel’s deficient performance prejudiced his defense. See Strickland,
466 U.S. at 687; Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—Texarkana
2000, pet. ref’d). The appellant must prove that his counsel’s error, judged by
the totality of the representation and not by isolated instances of error, denied
him a fair trial. Burruss, 20 S.W.3d at 186. It is not enough to show that the
errors had some conceivable effect on the outcome of the proceeding; instead
the appellant must show that a reasonable probability exists that, but for his
counsel’s error, the outcome of the proceeding would have been different. Id.;
17
see also Bone, 77 S.W.3d at 836. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim. Thompson v. State, 9
S.W.3d 808, 813 (Tex. Crim. App. 1999). To prevail on his claim, the
appellant must prove both prongs of the Strickland test by a preponderance of
the evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The
prongs need not be analyzed in a particular order, and an appellant’s failure to
satisfy either prong defeats the claim. Ex parte Martinez, 330 S.W.3d 891, 901
(Tex. Crim. App. 2011).
Applicable Law
Section 6.01(a) of the Texas Penal Code provides that “a person
commits an offense only if he voluntarily engages in conduct, including an act,
an omission, or possession.” Tex. Penal Code Ann. § 6.01(a) (West 2011).
Voluntariness within the meaning of section 6.01(a) refers only to one’s own
physical bodily movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim.
App. 2003); Brown v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002). If a
physical movement is the nonvolitional result of someone else’s act, is set in
motion by some independent nonhuman force, is caused by a physical reflex or
convulsion, or is the product of unconsciousness, hypnosis or other
18
nonvolitional impetus, that movement is not voluntary. See Rogers, 105 S.W.3d
at 638.
If the issue of voluntariness of conduct is raised by the evidence, whether
it is strong, feeble, unimpeached, or contradicted, the defendant is entitled to
an instruction on that issue. See Brown v. State, 955 S.W.2d 276, 279–80 (Tex.
Crim. App. 1997). Evidence does not raise voluntariness of conduct when the
accused voluntarily engages in conduct that includes one or more voluntary
acts that lead to the actual shooting. George v. State, 681 S.W.2d 43, 47 (Tex.
Crim. App. 1984). However, when evidence of an independent event that
could have precipitated the discharge of the bullet, such as the conduct of a
third party, is presented, a trial court must give the instruction when requested.
See id.; Brown, 955 S.W.2d at 277 (holding defendant entitled to voluntariness
instruction where the testimony reflected the gun discharged when the
defendant was bumped from behind); Whitehead v. State, 696 S.W.2d 221, 222
(Tex. App.—San Antonio 1985, pet. ref’d) (holding question of voluntariness
raised where the evidence showed gun discharged when someone grabbed
defendant from behind).
As charged here, the jury could have found Appellant guilty of
manslaughter if it found he recklessly caused the death of Wilson by shooting
him with a firearm. See Tex. Penal Code Ann. § 19.04(a) (West 2011). A
19
person acts recklessly with respect to circumstances surrounding his conduct or
the result of his conduct when he is aware of, but consciously disregards, a
substantial and unjustifiable risk that the circumstances exist or the result will
occur. Id. § 6.03(c) (West 2011). The risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the standard of care that an
ordinary person would exercise under all circumstances as viewed from the
actor’s standpoint. Id. “At the heart of reckless conduct is conscious disregard
of the risk created by the actor’s conduct.” Lewis v. State, 529 S.W.2d 550, 553
(Tex. Crim. App. 1975). Proof of a culpable mental state almost invariably
depends on circumstantial evidence and may be inferred from any facts
tending to prove its existence, including the acts, words, and the conduct of the
accused. Stepherson v. State, 523 S.W.3d 759, 763 (Tex. App.—Houston [1st
Dist.] 2017, no pet.).
Even if the evidence raises voluntariness of conduct, merely being
entitled to a jury instruction but not requesting it is not the test for ineffective
assistance of counsel. See Dannhaus v. State, 928 S.W.2d 81, 85-86 (Tex. App.—
Houston [14th Dist.] 1996, pet. ref’d). A failure to request an instruction on
voluntary conduct simply because the evidence raises the issue does not mean
counsel was ineffective, as defensive issues “frequently depend upon trial
strategy and tactics.” See Tolbert v. State, 306 S.W.3d 776, 779–82 (Tex. Crim.
20
Ohio App. 2010); see also Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App.
1992) (“[J]ust because a competent defense attorney recognizes that a
particular defense might be available to a particular offense, he or she could
also decide it would be inappropriate to propound such a defense in a given
case.”). Instead, the test is whether it was objectively unreasonable for counsel
not to ask for it. Dannhaus, 928 S.W.2d at 85-86; see Strickland, 466 U.S. at
686. Counsel is under no duty to raise every defense available, so long as
counsel presents a defense that is objectively reasonable or strategically sound.
Dannhaus, 928 S.W.2d at 86 (holding where the evidence of the appellant’s
guilt was strong, trial counsel’s action in not requesting instructions on several
defenses, including voluntariness of conduct, and strategy in focusing on lack
of intent for greater offense of murder was not objectively unreasonable).
Counsel’s Representation was not Deficient
Appellant has failed to meet his burden under the first prong of
Strickland. Even assuming that the evidence in this case raised the issue of
voluntariness of conduct, this Court should begin with a strong presumption
that counsel was effective. See Jackson, 877 S.W.2d at 771. Importantly, the
record does not contain any affirmative evidence explaining trial counsel’s
conduct, and counsel was not afforded an opportunity to explain his
21
challenged action. Hence, the record does not affirmatively support
Appellant’s ineffective assistance claim. See Menefield, 363 S.W.3d at 592.
In the absence of direct evidence explaining trial counsel’s action in not
requesting an instruction on voluntariness of conduct, this Court must assume
that counsel had a strategy if any reasonably sound strategic motivation can be
imagined. See Lopez, 343 S.W.3d at 143. Appellant attempts to rebut the
presumption of reasonable assistance of counsel by arguing the record
demonstrates that trial counsel was mistaken or confused about the law
regarding voluntariness of conduct, and “conflated the scenario testified to by
[Appellant] with one in which a person points a gun at another and, absent
third-party intervention, ‘accidentally’ fires.” Appellant’s Br. at 9. He argues
that failure to request a voluntariness-of-conduct instruction was so outrageous
that no competent attorney would have engaged in it. Appellant’s
interpretation of counsel’s actions based on the record, however, is just that —
a personal, self-serving interpretation of counsel’s actions, which does not
amount to affirmative evidence supporting a finding of inadequate
representation. See Menefield, 363 S.W3d at 592; Jackson, 877 S.W.2d at 771.
Rather than presuming, as Appellant asserts, that trial counsel was confused or
mistaken about the relevant law, this Court should presume counsel’s actions
22
and decisions were reasonably professional and were motivated by sound trial
strategy. See Lopez, 343 S.W.3d at 14.; see also Okonkwo, 398 S.W.3d.
Indeed, an examination of the record reveals an objectively reasonable
explanation for trial counsel’s decision not to request a voluntariness-of-
conduct instruction. Trial counsel’s voir dire and closing argument clearly
indicate that counsel’s trial strategy was to focus on Appellant’s lack of a
culpable mental state for murder. The record reflects that trial counsel was
unsure whether Hawkins, Appellant’s co-defendant, would testify. Notably,
during voir dire, although trial counsel briefly discussed manslaughter and
criminally negligent homicide, trial counsel spent more time discussing self-
defense than any other theory, indicating he may have anticipated the evidence
to raise the issue. Trial counsel did not make an opening statement to
summarize his defensive strategy. These facts show that counsel may have
been unsure as to how Appellant’s defense would unfold at trial and, as
testimony was developed, counsel may have reasonably determined that
focusing on minimizing Appellant’s culpable mental state was a more prudent
trial strategy.
In addition, in light of the evidence, trial counsel may have determined
that the evidence Appellant knowingly and intentionally murdered Wilson or
intended to cause serious bodily injury to him was strong and a voluntariness-
23
of-conduct defense was weak. Because Hawkins did not testify, Appellant was
the only witness to testify that Hawkins grabbed him and caused the gun to
discharge. Appellant’s testimony was sharply controverted by the testimony of
Whitaker, Nickerson, and Wadley, who testified that Hawkins was standing at
least thirty to sixty feet — and at least arm’s length — away from Appellant at
the time Appellant fired the gun, and that no one bumped or grabbed
Appellant causing the gun to discharge. See Pouncy v. State, No. 14-12-00470-
CR, 2013 WL 3580638, at *4 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d) (mem. op., not designated for publication) (counsel not ineffective for
failing to request multiple assailants instruction, in part because evidence of
multiple assailants was strongly controverted). Even defense witness
McKinney’s recorded statement, which mentioned the scuffle between
Appellant and Hawkins, did not reflect that the gun discharged involuntarily.
Hence, trial counsel’s failure to request a voluntariness-of-conduct instruction
did not deprive Appellant of a defense supported by conclusive evidence.
Moreover, Wadley testified that the shooting was not an accident and
was a deliberate “killing.” Whitaker likewise testified that Appellant
deliberately shot Wilson, and the shooting was not an accident. Prior to the
shooting, Nickerson and Wadley heard Appellant say, “I want cash or flesh,”
24
and Whitaker heard Appellant state to Wilson, “Nigger, I shoot you,”
immediately before Appellant shot him.
In addition, Appellant admitted that he told an insurance agent that he
killed Wilson. Appellant admitted being “extremely frustrated” and taking a
loaded gun to the body shop. He admitted pointing a loaded gun at Wilson,
who was not armed. He also admitted fleeing the crime scene, disposing of the
murder weapon, and leaving the State of Texas, all of which undermined the
plausibility of a potential defensive theory that he acted involuntarily. See, e.g.,
Bigby v. State, 892 S.W.3d 864, 883 (Tex. Crim. App. 1994) (explaining that the
jury may infer the defendant’s guilt of the charged offense from evidence of
flight).
Without the testimony of Hawkins to support Appellant’s testimony,
trial counsel may have determined that the evidence of intentional and
knowing murder or serious bodily injury murder was strong, a voluntariness-
of-conduct defense was weak, and the best strategy was to focus on negating
Appellant’s mental state for murder. As such, the record supports a finding
that trial counsel’s choice not to argue a voluntariness-of-conduct defense was
based on reasonable trial strategy, not on confusion or mistake about the law
as Appellant’s interpretation of the record suggests. See Dannhaus, 928 S.W.2d
at 85-86. Hence, this Court cannot conclude that trial counsel’s strategy in
25
“inviting” the jury to consider manslaughter and not focusing on voluntariness
of conduct was an objectively unreasonable and strategically unsound strategy.
See id.; see also Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992)
(holding that trying to get a jury to find a defendant guilty of lesser offense can
be explained as sound trial tactic), cert. denied, 509 U.S. 932 (1993).
Appellant relies on Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.
App. 2005), to support his contention that this is a “rare case” where the
record on direct appeal supports a finding of deficient performance.
Appellant’s Br. at 12. In Andrews, however, the Court of Criminal Appeals held
that the error committed by trial counsel — failing to object to the prosecutor’s
misstatement of the law regarding whether the defendant’s sentences could be
stacked — could not be attributed to any reasonable trial strategy and was error
as a matter of law. Id. at 103. Here, as discussed above, case law indicates that
seeking to minimize a defendant’s culpable mental state is reasonable trial
strategy, and Andrews provides no guidance in the case at bar.
Finally, although in hindsight appellate counsel may disagree with trial
counsel’s strategy, such a disagreement does not render trial counsel’s
performance deficient. That another attorney, including Appellant’s counsel on
appeal, might have pursued a different course of action does not necessarily
indicate ineffective assistance. See Johnson v. State, 959 S.W.2d 230, 236-37
26
(Tex. App.—Dallas 1997, no pet.); Weeks v. State, 894 S.W.2d 390, 391 (Tex.
App.—Dallas 1994, no pet.). This Court should conclude that counsel’s action
fell within the wide range of reasonable professional assistance. See Thompson,
9 S.W.3d at 813. Because Appellant has not shown that trial counsel rendered
deficient performance, this Court is not required to examine the second prong
of Strickland. In any event, Appellant has failed to affirmatively prove prejudice
under the second prong. See Strickland, 466 U.S. at 687; Burruss, 20 S.W.3d at
186.
Appellant was not Prejudiced
Appellant also fails to fulfill the second prong of Strickland. He argues,
“If the jury had known that, under the defense’s theory of the case, [Appellant]
was in fact, not guilty of any type of criminal homicide, it’s reasonably likely
that that would not have been the verdict.” Appellant’s Br. at 11-12. Despite
his contention, a review of the totality of the evidence presented at trial proves
that even had trial counsel requested and the trial court included a
voluntariness-of-conduct instruction in the charge, a reasonable probability
does not exist that the jury would have acquitted Appellant. See Ex parte
Martinez, 330 S.W.3d 891, 903 (Tex. Crim. App. 2011) (stating that the
prejudice analysis under the second prong of Strickland requires appellate
courts to “look at the totality of the evidence,” and that even if the
27
inadmissible evidence had not been admitted, the evidence was sufficient to
support the jury’s guilty verdict).
Here, Appellant’s lack of credibility and the evidence of his acts, words,
and conduct proved Appellant’s guilt of at least manslaughter. Appellant
admitted that he took a loaded .38 revolver to the body shop and pointed it at
Wilson. Evidence that the defendant arrived at the scene of the crime carrying
a loaded weapon is probative of deliberate conduct. Carter v. State, 717 S.W.2d
60, 67 (Tex. Crim. App. 1986). When questioned about the amount of pressure
it takes to shoot a .38 revolver, Appellant denied knowing how much pressure
it takes to fire one, even though he was the one who fired the .38 that killed
Wilson. Appellant’s admission that he had carried a gun in the past, that he
had purchased a gun from Wilson before — but incredibly did not remember
where he got the .38 he used to shoot Wilson — indicated his guilt. See Thomas
v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985) (holding that where a
defendant familiar with guns and the potential for injury points a gun at the
victim, the evidence indicates reckless conduct).
Although at trial Appellant claimed he was scared for his life to go the
shop, the first time he mentioned this was at trial. At the shop, where he
claimed he was scared for his life and surrounded by people he claimed to be
scared of, he purported to have made threats to call the police and the
28
insurance company about the insurance fraud. Appellant admitted that he
could have left the shop at any time; instead, he went outside and engaged in a
further argument with and pointed a loaded gun at an unarmed Wilson.
Appellant’s testimony that Hawkins’s act in grabbing him caused the
gun to discharge was self-serving and not credible. Even reading from a cold
record, his testimony that, “For some strange reason, [Hawkins] grabbed my
neck and shoulder area,” rings hollow, especially in light of the four other
witnesses whose testimony and statement indicated that Hawkins actively was
attempting to persuade Appellant to leave the shop.
Appellant’s flight from the crime scene also indicated his guilt. Appellant
admitted that immediately after the shooting, he fled not only the crime scene,
but also the State of Texas. He returned only after he discovered that Hawkins
had turned himself in to police. These actions indicated to the jury that
Appellant was conscious of his guilt and lessened the probability that the jury
would have found he involuntarily shot Wilson and was not guilty of any
crime. See, e.g., Bigby, 892 S.W.2d at 884 (stating that evidence of flight “shows
a consciousness of guilt of the crime for which the defendant is on trial.”).
Finally, when Appellant did return to Texas, instead of going directly to the
police, he first called the insurance agent to report the insurance fraud to set up
his story.
29
Finally, the testimony all three of the State’s witnesses controverted
Appellant’s testimony that Hawkins grabbed him and caused the gun to
discharge. Although a scuffle and a grabbing did occur, Nickerson, Watkins,
and Wadley all testified that Hawkins was more than arm’s length away from
Appellant when Appellant deliberately fired the gun. Even the testimony of
McKinney, the defense witness, though unclear as to when Hawkins grabbed
Appellant, did not indicate in any way that Hawkins’s action in grabbing or
scuffling with Appellant is what caused the gun to discharge. Instead,
McKinney’s on-the-scene, recorded interview, in which he even described the
color and caliber of the gun Appellant used, credibly demonstrated that
Appellant first pointed the gun at Wilson, told him not to move, then shot him
deliberately with no interference by Hawkins.
Considering the overwhelming evidence of Appellant’s guilt, Appellant
has failed to establish that a reasonable probability exists that the result of the
guilt-innocence stage of his trial would have been different but for trial
counsel’s alleged deficiency and his complaint fails. See Strickland, 466 U.S. at
695; Thompson, 9 S.W.3d at 812. This Court should overrule his first and
second issues.
30
RESPONSE TO APPELLANT’S THIRD POINT OF ERROR
This Court should modify the judgment to correctly reflect that
the jury convicted Appellant of manslaughter.
The State agrees that the judgment incorrectly reflects the offense for
which Appellant was convicted. The jury returned a verdict of guilty of
manslaughter, a second-degree felony. See Tex. Penal Code Ann. § 19.04(a)
(West 2011). (RR5: 132; CR: 68). The judgment incorrectly states that the jury
found Appellant guilty of “MURDER,” with the degree of the offense as,
“1ST DEGREE FELONY,” and the statute for the offense as, “19.02 Penal
Code.” (CR: 48, 68).
This Court has the power to modify an incorrect judgment to make the
record speak the truth when it has the necessary information before it to do so.
See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim.
App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991,
pet. ref’d). As set forth above, this Court has the necessary information to
correct the judgment. Accordingly, the State respectfully requests this Court
modify the trial court’s judgment to correctly reflect the “Degree of Offense:
2nd Degree Felony,” the “Offense for which Defendant Convicted:
Manslaughter,” and the “Statute for Offense: 19.04 Penal Code.” See Tex.
31
Penal Code Ann. § 19.04(a); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d
at 529-30.
PRAYER
The State prays that this Honorable Court will affirm the trial court’s
judgment as modified.
Respectfully submitted,
/s/ Marisa Elmore
Faith Johnson Marisa Elmore
Criminal District Attorney Assistant District Attorney
Dallas County, Texas State Bar No. 24037304
Frank Crowley Courts Building
133 N. Riverfront Boulevard, LB-19
Dallas, Texas 75207-4399
(214) 653-3625
(214) 653-3643 fax
CERTIFICATE OF WORD-COUNT COMPLIANCE
I hereby certify that the foregoing brief, including all contents except for
the sections of the brief permitted to be excluded by Rule 9.4(i)(1) of the Texas
Rules of Appellate Procedure, is 7,438 words in length according to Microsoft
Word 2010, which was used to prepare the brief, and complies with the word-
count limit in the Texas Rules of Appellate Procedure. See Tex. R. App. P.
9.4(i).
/s/ Marisa Elmore
Marisa Elmore
32
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on
Bruce Anton and Brett Ordiway, counsel for Appellant, by electronic
communication through eFileTexas.gov on January 30, 2018.
/s/ Marisa Elmore
Marisa Elmore
33