Avery Antwine v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00093-CR
AVERY ANTWINE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1368337D
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MEMORANDUM OPINION1
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Appellant Avery Antwine appeals his conviction for aggravated assault with
a deadly weapon. The jury assessed his punishment at fifteen years in prison,
and the trial court sentenced him accordingly. In two issues, Appellant contends
that trial counsel rendered ineffective assistance and that the trial court erred by
excluding evidence. We affirm.
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See Tex. R. App. P. 47.4.
INEFFECTIVE ASSISTANCE OF COUNSEL
In Appellant’s first issue, he asserts that trial counsel rendered ineffective
assistance. Appellant initially pled not guilty. After one day of testimony, he
decided to change his plea to guilty. Appellant contends he changed his plea
based upon incorrect legal advice from counsel.
Standard of Review
To establish ineffective assistance of counsel, appellant must show by a
preponderance of the evidence that his counsel’s representation was deficient
and that the deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d
289, 307 (Tex. Crim. App. 2013). An ineffective-assistance claim must be “firmly
founded in the record,” and “the record must affirmatively demonstrate” the
meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.
Crim. App. 1999).
Direct appeal is usually an inadequate vehicle for raising an ineffective-
assistance-of-counsel claim because the record is generally undeveloped.
Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,
9 S.W.3d at 813–14. In evaluating the effectiveness of counsel under the
deficient-performance prong, we look to the totality of the representation and the
particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue
is whether counsel’s assistance was reasonable under all the circumstances and
prevailing professional norms at the time of the alleged error. See Strickland,
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466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of
counsel’s representation is highly deferential, and the reviewing court indulges a
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d
at 307–08.
It is not appropriate for an appellate court to simply infer ineffective
assistance based upon unclear portions of the record or when counsel’s reasons
for failing to do something do not appear in the record. Menefield, 363 S.W.3d at
593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel
“should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not
given that opportunity, we should not conclude that counsel’s performance was
deficient unless the challenged conduct was “so outrageous that no competent
attorney would have engaged in it.” Nava, 415 S.W.3d at 308.
Discussion
Regarding the reasons Appellant changed his plea from not guilty to guilty,
the motion for new trial did not allege ineffective assistance of counsel;
consequently, there was no hearing during which defense counsel was given an
opportunity to explain her position. However, at trial, before Appellant changed
his plea, defense counsel asked Appellant the following questions on the stand,
[DEFENSE COUNSEL:] Is your name Avery Antwine?
A. Yes.
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Q. Avery, you and I have had an opportunity to discuss this
case at—at length last night and prior to that and then today,
correct?
A. Yes.
Q. And I advised you that certain testimony that we had posed
to put in through other witnesses was not going to be admissible,
and therefore, the defense that we have raised of self-defense was
not going to be able to be put on in our case in chief. You and I
talked about that?
A. Yes.
Q. Okay. And based on the fact that character—I mean,
witnesses as to the complainant’s past, bad acts and all of that could
not be admissible, and you elected to change your plea so that you
could discuss in front of the jury why you acted the way you did that
day?
A. Yes.
Q. Okay. And you’ve done this voluntarily. You understand—
you understand that no longer is the Judge going to assess the
punishment, but the jury is going to be instructed to assess the
punishment?
A. Yes.
Q. And that they can give you anywhere between 2 years up
to 20 years?
A. Yes.
Q. And are you satisfied with the representation I’ve had with
you in this case?
A. Yes.
[DEFENSE COUNSEL]: Pass the witness.
Moments later, Appellant entered a formal plea of guilty.
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On appeal, Appellant contends that defense counsel gave him erroneous
advice. First, Appellant was not required to testify during the trial on
guilt/innocence if he were able to raise the issue of self-defense through some
other evidence. See Ortega v. State, 207 S.W.3d 911, 919 (Tex. App.—Corpus
Christi 2006 no pet.) (holding that issue of self-defense may be raised by
evidence other than the defendant’s testimony). This argument appears directed
more at earlier statements made by the trial judge than at anything defense
counsel told Appellant on the record. The trial court had earlier stated that
Appellant’s requested evidence was premature because Appellant had not yet
testified regarding having had any fear of Complainant. Second, Appellant
maintains the history of his relationship with Complainant as well as
Complainant’s violent and aggressive character were potentially admissible. See
Tex. R. Evid. 404(a)(3)(A).
Under section 9.31 of the penal code, “a person is justified in using force
against another when and to the degree the actor reasonably believes the force
is immediately necessary to protect the actor against the other’s use or
attempted use of unlawful force.” Tex. Penal Code Ann. § 9.31(a) (West 2011).
However, “[t]he use of force against another is not justified . . . if the actor sought
an explanation from or discussion with the other person concerning the actor’s
differences with the other person while the actor was” unlawfully carrying a
weapon under penal code section 46.02. Id. § 9.31(b)(5)(A). “A person commits
an offense if the person intentionally, knowingly, or recklessly carries on or about
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his or her person a handgun . . . if the person is not: (1) on the person’s own
premises or premises under the person’s control.” Id. § 46.02(a)(1) (West Supp.
2016).
Defendants bear the burden of production of some evidence supporting
the justification of self-defense. Lay v. State, 359 S.W.3d 291, 297 (Tex. App.—
Texarkana 2012, no pet.). Once the evidence raises a defensive issue,
defendants have the right to an instruction whether that evidence is weak or
strong, unimpeached or contradicted, and regardless of what the trial court thinks
about the credibility of the defense. Id. However, when the evidence, viewed in
the light most favorable to a defendant, establishes as a matter of law that force
is not justified in self-defense, no self-defense issue is required. Id.
The State’s version of the evidence was primarily from Complainant’s
sister. Complainant himself did not testify. His sister testified that in the early
morning hours of April 5, 2014, Complainant walked out the front door of their
apartment. Immediately after Complainant closed the door, she heard multiple
gunshots and saw Complainant run back inside their apartment and fall down.
She testified that Appellant then followed Complainant into their apartment, fired
several more times at Complainant as Complainant crawled on the floor, and
then left.
Based upon Appellant’s testimony during the punishment phase,
Appellant’s version of the evidence was that when he returned to his apartment
on April 5, 2015, his girlfriend and the neighbor across the hall both told him that
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Complainant had burglarized his apartment. Complainant stole some cash and
marijuana. Appellant then drove to Complainant’s apartment, parked his car, and
started walking to Complainant’s apartment. When asked why Appellant went to
Complainant’s apartment, Appellant answered, “I was going to see what was
going on.” Appellant saw Complainant pointing a gun at him. Appellant shot
first. Appellant maintained all the shooting occurred outside and denied going
inside the apartment. Appellant stated that he was aware that Complainant had
robbed Appellant’s best friend at gunpoint, that he was afraid of Complainant,
and that he thought Complainant was capable of shooting him. Because
Appellant went to Complainant’s apartment with a gun to confront him about the
burglary, even under Appellant’s version of the events, he was not entitled to a
self-defense instruction. See id. at 298; Williams v. State, 35 S.W.3d 783, 787
(Tex. App.—Beaumont 2001, pet. ref’d).
Based on the record, Complainant’s sister was not in a position to see
what occurred outside. She could not provide Appellant with evidence
supporting self-defense. Even if Appellant’s girlfriend and neighbor testified, the
most they could say would be that Complainant burglarized Appellant’s
apartment, so Appellant went to Complainant’s apartment. Because Appellant
went to Complainant’s apartment with a gun, even their testimony would not have
entitled Appellant to a self-defense instruction. As noted earlier, Complainant
himself did not testify. If Appellant had testified during the guilt/innocence phase,
his own testimony would have precluded a self-defense instruction.
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Once it became clear that Appellant would not get a self-defense
instruction (whether he testified or not), Appellant had to choose between
(1) keeping his plea of not guilty and risk getting convicted on the State’s
evidence or (2) changing his plea to guilty and testifying during the punishment
phase of trial to get his side of the story out. Pleading not guilty and testifying
during the guilt/innocence phase in a manner that only proved his guilt might
have served only to antagonize the jury. Conversely, where the State’s evidence
is strong, as here, changing his plea to guilty, thereby enhancing the perception
of acceptance of responsibility, and testifying during the punishment phase to
show mitigating circumstances would be a plausible trial strategy.
Although the dialogue between defense counsel and Appellant is muddled,
the gist of it is not—Appellant was not going to get a self-defense instruction.
Implicit in the exchange was that absent a self-defense instruction, Appellant was
not going to fight his guilt. Also implicit in the exchange was that Appellant
thought he had mitigating circumstances that he wanted the jury to know about.
Contextually, the mitigating circumstances related to punishment, not guilt.
Counsel has not had an opportunity to fully explain what went into the decision to
explain the change in Appellant’s plea or to address the complained-of dialogue
between her and Appellant shortly before he changed his plea to guilty. We
decline to speculate about the reasons underlying counsel’s decisions. See
Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet.
ref’d). On this record, we cannot say that defense counsel’s challenged conduct
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was so outrageous that no competent attorney would have engaged in it. See
Nava, 415 S.W.3d at 308.
We have no record evidence of counsel’s reasoning behind her actions or
inactions. Appellant’s motion for new trial did not allege ineffective assistance.
There was no hearing at which counsel was allowed to defend herself. Because
counsel’s reasons for her conduct do not appear in the record and there is at
least the possibility that the conduct could have been grounded in legitimate trial
strategy, we defer to counsel’s decisions. See Bledsoe v. State, 479 S.W.3d
491, 497 (Tex. App.—Fort Worth 2015, pet. ref’d) (citing Garza v. State, 213
S.W.3d 338, 348 (Tex. Crim. App. 2007)).
To the extent that Appellant argues that his plea was involuntary based
upon bad advice, Appellant would have to show that he would not have pled
guilty but for the erroneous advice of counsel. See Ex parte Moussazadeh, 361
S.W.3d 684, 691 (Tex. Crim. App. 2012) (“In the context of [an] involuntary plea,
the ‘different outcome’ is choosing not to plead and instead choosing to go to
trial.”). On this record, Appellant has not shown that his plea was involuntary.
We overrule Appellant’s first issue.
EXCLUSION OF EVIDENCE
Appellant’s second issue is related to his first. In his second issue, he
contends that the trial court abused its discretion by refusing to allow him to
develop testimony about how Complainant possessed firearms and had a history
of drugs, both of which were germane to raising the issue of his self-defense.
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Appellate courts review a trial court’s evidentiary rulings for an abuse of
discretion. Billodeau v. State, 277 S.W.3d 34, 39 (Tex. Crim. App. 2009). We
uphold the trial court’s ruling if it lies within the zone of reasonable disagreement.
Id. If the trial court’s ruling was correct under any theory of law applicable to the
case, we will uphold the decision. Bowley v. State, 310 S.W.3d 431, 434 (Tex.
Crim. App. 2010).
A defendant can admit evidence of a complainant’s character for violence
in two situations: (1) to show he reasonably believed the force he used was
immediately necessary to protect himself from the complainant, and (2) to show
the complainant was the first aggressor. Mozon v. State, 991 S.W.2d 841, 845
(Tex. Crim. App. 1999). Both reasons relate to the issue of self-defense. Id. As
explained in Appellant’s first issue, self-defense was not an issue available to
Appellant. Because the evidence would not have helped establish that Appellant
acted in self-defense, we hold that the trial court did not abuse its discretion by
excluding it. See Tex. R. Evid. 402.
We overrule Appellant second issue.
CONCLUSION
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
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/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 17, 2016
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