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holding that "the abstract portion of the jury charge correctly defined the term 'reasonable belief' to mean 'a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant'"
Summary of this case from Vasquez v. StateOpinion
No. 08-19-00024-CR
07-31-2020
IMELIA GARRETT, Appellant, v. THE STATE OF TEXAS, Appellee
Appeal from the 396th Judicial District Court of Tarrant County, Texas (TC#1485334D) OPINION
After rejecting her claim of self-defense, Appellant Imelia Garrett was convicted by a jury of one count of murder in the shooting death of Tujuan McIntosh and sentenced to a 40-year prison term. Before this Court, Appellant contends that the trial court erred in excluding evidence of McIntosh's reputation for violence, that the jury charge did not correctly state the law on self-defense, and that she was denied the effective assistance of counsel at the punishment phase of her trial. Finding no reversible error, we affirm the trial court's judgment.
This case was transferred from the Fort Worth Court of Appeals, and we apply the precedent of that court to the extent required by TEX.R.APP.P. 41.3.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant and McIntosh had known each other since they were children, and were in an "off and on" dating relationship from 2005 until sometime in 2013. Appellant testified that during that time, McIntosh was abusive to her, "would beat" on her, "would punch" her, and had broken her cell phones. In particular, she testified that on one occasion in either 2012 or 2013, McIntosh poured lighter fluid on her, threatened to kill her if she called 911, and then shot up her house with his gun. In addition, in the two or three weeks leading up to the shooting, Appellant testified--and witnesses confirmed--that McIntosh had threatened her on two separate occasions, pointing a gun at her both times. According to Appellant, she did not report any of these incidents to law enforcement because McIntosh had threatened to kill her and her children if she did.
Appellant and her friend, Nadia Yassien, testified that McIntosh threatened Appellant with a gun while they were fishing with their children in early January of 2017. In addition, Appellant, Yassien, and Appellant's son, testified that approximately two weeks later, all three of them were traveling in a car together when McIntosh pulled up next to them and pointed a gun at Appellant in a threatening manner.
In the early morning hours of January 21, 2017, Appellant and Mcintosh found themselves in the same nightclub in Fort Worth. McIntosh arrived at the club first, and was standing at the bar next to Appellant's brother, George Garrett, and a mutual friend, Randy Pinkston, when Appellant entered the club with a group of her friends. It is undisputed that Appellant encountered McIntosh as she approached the bar to buy a drink, and that she ultimately pulled a revolver from her purse and shot McIntosh six times, twice in the chest and two times in each of his thighs. McIntosh died from his gunshot wounds several hours later at the hospital.
What is in dispute is what happened in the moments leading up to the shooting. Appellant claims that as she approached McIntosh at the bar, he put in her a headlock. Appellant testified that after she successfully got out of the headlock and tried to walk away, McIntosh followed her, pulling on her clothes. According to Appellant, McIntosh then placed her in a second headlock, and while she struggled to get free, she observed that McIntosh had a gun tucked into his pants, and she thought he would kill them both. Appellant testified that she was unable to breathe, and believing that her life was in danger, she took a revolver from her purse and shot McIntosh in an attempt to free herself. Although Appellant only recalled shooting McIntosh once, she did not deny that she continued shooting him until her revolver was empty. According to Appellant, she then walked out of the club in shock, at the insistence of her brother, George. George provided a similar version of the events, testifying that he observed Appellant and McIntosh arguing at the bar prior to the shooting, and saw McIntosh grab and pull at Appellant, and ultimately place her in a headlock George testified that Appellant was struggling to get away for several seconds, and he believed that she shot McIntosh in an attempt to free herself.
The State, however, presented witnesses who told a different story. Tamesha Scott testified that prior to the shooting, she saw Appellant speaking with McIntosh as he was standing at the bar, but did not notice anything unusual. However, she testified that she saw Appellant walk away from the bar area and return several minutes later. Although she had her back to the bar, Scott recalled that shortly after Appellant returned, she heard a series of loud popping sounds, and as she turned toward the bar, she observed Appellant shooting at McIntosh as he lay on the ground. Pinkston similarly recalled that he observed Appellant speaking with McIntosh in a confrontational manner at the bar, and believed that she left the club, only to return minutes later with a revolver that she used to shoot McIntosh several times.
At trial, the State played a video clip from the club's surveillance camera which indicated that, prior to the shooting, Appellant did not leave the club, or even the bar area, after her initial encounter with McIntosh.
Other than Appellant, none of the witnesses to the shooting recalled seeing McIntosh with a gun at the club on the morning of the shooting, nor did the first responders find a gun on him when they arrived at the scene. However, in the commotion that followed the shooting, numerous individuals, including McIntosh's friends, were seen leaning over McIntosh as he lay on the ground, and defense counsel theorized that one of his friends could have removed the gun before the first responders arrived.
At the close of trial, the trial court instructed the jury on the law of self-defense. The jury, however, rejected Appellant's defense, and convicted her of McIntosh's murder, after which the trial court sentenced her to 40 years in prison.
II. EVIDENCE OF THE VICTIM'S REPUTATION FOR VIOLENCE
In Issue One, Appellant contends that the trial court improperly excluded testimony from three witnesses, McIntosh's friend, Jimmie Roberts, Appellant's brother, George Garrett, and Appellant's friend, Nadia Yassien, regarding whether they believed McIntosh had a reputation for violence. Appellant argues that the excluded testimony was relevant to establish that McIntosh was the first aggressor, and that she had a reasonable belief she was in danger at the time of the shooting. The State, on the other hand, contends that this issue was not properly preserved for our review, as Appellant did not make an adequate offer of proof regarding what the witnesses' testimony would have been. Without that offer, the State urges that Appellant cannot show any harm from the exclusion of the evidence. We agree with the State.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App. 2011); Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010). The trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Martinez, 327 S.W.3d at 736; see also Bundy v. State, 280 S.W.3d 425, 428 (Tex.App.--Fort Worth 2009, pet. ref'd) (appellate court reviews trial court's decision to exclude evidence under an abuse of discretion standard, and must therefore affirm the trial court's decision unless it is beyond the "zone of reasonable disagreement.").
Moreover, errors in a trial court's evidentiary rulings are not of a constitutional dimension and therefore, in conducting a harm analysis, any error "that does not affect substantial rights must be disregarded." TEX.R.APP.P. 44.2(b); see also Taylor v. State, 268 S.W.3d 571, 592 (Tex.Crim.App. 2008). Under this standard, an error is reversible only when it has a substantial and injurious effect or influence in determining the jury's verdict, and we will not overturn a conviction "if we have fair assurance from an examination of the record as a whole that the error did not influence the jury, or had but slight effect." Id.
B. Applicable Law
In general, evidence of a person's character or character trait is not admissible to prove that the person acted in accordance with the character or trait on a particular occasion. TEX.R.EVID. 404(a)(1); see also Tate v. State, 981 S.W.2d 189, 192 (Tex.Crim.App. 1998). However, evidence rule 404(a)(2) provides an exception in criminal cases that allows a defendant to offer "evidence of a victim's pertinent trait," which may then be rebutted by the State. TEX.R.EVID. 404(a)(3). Thus, the Court of Criminal Appeals has recognized that in a prosecution for an assaultive offense, including a homicide prosecution, a defendant who raises the issue of self-defense may introduce evidence of the victim's character for violence or aggression under two separate theories. Torres v. State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002), citing TEX.R.EVID. 404(a)(2); see also Ex parte Miller, 330 S.W.3d 610, 618 (Tex.Crim.App. 2009).
First, the defendant may offer testimony relating to the victim's reputation for violence, or evidence of specific prior acts of violence by the victim of which the defendant was aware, to demonstrate that the defendant had a reasonable apprehension that she was in danger at the time of the offense in order to justify her conduct. See Ex parte Miller, 330 S.W.3d at 618. This theory is called "communicated character" because under it the defendant claims to have acted because of the victim's violent tendencies and the perceived danger posed by the victim, "regardless of whether the danger [was] real or not." Id. at 618. In other words, such evidence does not technically invoke Rule 404, as the evidence is not being used to demonstrate that the victim acted in "conformity with his violent character," and is instead being used by the defendant to establish a "self-defensive state of mind and the reasonableness of that state of mind." Id. at 619.
Second, a defendant may offer evidence of the victim's character trait for violence to demonstrate that the victim was the first aggressor in a confrontation leading to the alleged offense Id. at 619. This theory is called "uncommunicated character" because it does not matter if the defendant was aware of the victim's violent character or not. Id., citing Mozon v. State, 991 S.W.2d 841, 845 (Tex.Crim.App. 1999). Thus, when the issue of who was the first aggressor is in dispute, the defendant may offer witness testimony about the "victim's character for violence, but he may do so only through reputation and opinion testimony under Rule 405(a)." Id. at 619, citing Wilson v. State, 71 S.W.3d 346, 350 n.4 (Tex.Crim.App.2002).
With this framework in mind, we analyze the three instances in which Appellant claims the trial court erred in excluding evidence of McIntosh's reputation for violence at her trial.
C. Analysis
1. The testimony of Jimmie Roberts
Appellant's counsel cross-examined the State's witness, Jimmie Roberts on whether he believed McIntosh had a reputation for violence. Before he could respond, the State objected that allowing Roberts to answer the question would violate the parties' motion in limine, and the trial court sustained the objection. Appellant correctly points out, however, that allowing Roberts to respond would not have violated the motion in limine, as the motion expressly stated that "reputation testimony" of the victim's character was admissible in accordance with Rule 404 of the Rules of Evidence.
Appellant's theory at trial was that McIntosh was the first aggressor and that she had a reasonable apprehension of danger at the time of the shooting, such reputation evidence was arguably admissible under Rule 404 to support her self-defense claim. Ex parte Miller, 330 S.W.3d at 618-20. However, in order to preserve this issue for our review, Appellant was required to comply with Rule 103 of the Rules of Evidence by making an offer of proof setting forth the substance of what Roberts's excluded testimony would have been. See TEX.R.EVID. 103(a)(2); Reyna v. State, 168 S.W.3d 173, 176 (Tex.Crim.App. 2005). The primary purpose of an offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful, while a secondary purpose is to permit the trial court to reconsider its ruling in light of the actual evidence. Holmes v. State, 323 S.W.3d 163, 168 (Tex.Crim.App. 2010) (on reh'g 2010). Appellant could have made her offer of proof by questioning Roberts on voir dire to establish what his testimony would have been, or alternatively, trial counsel could have provided a concise statement to the court summarizing the proposed testimony. Id. However, Appellant did neither.
Without an offer of proof, we are unable to determine whether the exclusion of Roberts's testimony was either erroneous or harmful to Appellant's case, leaving us with nothing to review. See Holmes, 323 S.W.3d at 171 (error was not preserved for appellate review, where defendant failed to make an offer of proof, and the court was therefore "unable to judge the admissibility of the excluded evidence or determine whether the trial court abused its discretion by excluding it."); Mays v. State, 285 S.W.3d 884, 890 (Tex.Crim.App. 2009) (holding that error was not preserved where appellant failed to proffer, with "some degree of specificity," the substantive evidence he intended to present); see also Bundy v. State, 280 S.W.3d at 428-29 (Tex.App.--Fort Worth 2009, pet. ref'd) (same). We therefore conclude that Appellant did not preserve error with regard to her complaint about the exclusion of Roberts's testimony.
2. The testimony of Nadia Yassien and George Garrett
We similarly conclude that Appellant did not preserve error with regard to the excluded testimony of both Nadia Yassien and George Garrett. As to these witnesses, Appellant did conduct a voir dire examination of both before calling them to the stand as defense witnesses. During voir dire, Yassien testified about two incidents that she witnessed in the weeks leading up to the shooting in which McIntosh threatened Appellant with a gun. George, however, testified that he had only heard about prior incidents in which McIntosh had threatened or been violent toward Appellant, but had not personally witnessed any such incidents. In addition, on voir dire, defense counsel asked George if he had known McIntosh to carry a gun on him, and in response, George testified that he had "heard" stories that McIntosh kept a gun in his car, but that he had never physically seen a gun on his person. Neither witness, however, was specifically asked whether they believed that McIntosh had a reputation for violence.
Following the voir dire, the State moved to exclude any evidence of McIntosh's reputation for violence, for carrying a gun, or for drug use. The trial court did not specifically rule that such reputation evidence was inadmissible, but instead addressed whether the witnesses could testify about McIntosh's prior specific acts of violence toward Appellant. In particular, the trial court ruled that Yassien could testify about the two incidents she observed, but that neither witness could testify about events they did not personally witness. The court further ruled that George could testify about what he observed at the club, but "nothing else." In addition, the trial court ruled that the witnesses could not testify about any incidents of violence they may have observed between McIntosh and any third parties. Upon questioning by the trial court, both attorneys stated that they were "clear" on the ruling, and defense counsel did not voice any objection to the ruling, or request that he be permitted to make any additional offers of proof.
On appeal, Appellant complains of the trial court's ruling in three respects. First, she complains that the trial court's ruling improperly prohibited her from asking the witnesses if they knew whether McIntosh had a reputation for violence. The trial court, however, did not expressly make a ruling on whether such reputation testimony would have been admissible. More importantly, defense counsel failed to ask either witness during voir dire whether they knew if McIntosh had a reputation for violence. We therefore have no way of knowing what their responses would have been, or whether their responses would have benefitted Appellant's case. Without an offer of proof regarding what the excluded testimony would have shown, we have no way of determining whether the exclusion of this evidence was error or whether the exclusion harmed Appellant's case. Once again, this complaint leaves us nothing to review. See Bundy, 280 S.W.3d at 429.
Appellant also complains that the trial court erred by excluding testimony of Appellant's reputation for carrying a gun. Once again, however, the trial court never expressly prohibited such testimony, and more importantly, defense counsel never questioned either witness regarding whether they knew if McIntosh had a reputation for carrying a gun, and did not make an offer of proof regarding what their expected testimony would have been. Moreover, even if we were to assume that the witnesses would have responded in the positive to this question, their testimony would have been cumulative in nature, as both witnesses expressly testified at trial that they had seen McIntosh with a gun on prior occasions. In particular, despite testifying on voir dire that he had never seen McIntosh with a gun, George testified in front of the jury that he had seen McIntosh carry a gun on three or four occasions prior to the shooting. Moreover, Yassien and other witnesses testified at trial that they had seen McIntosh threaten Appellant with a gun on two separate occasions in the weeks before the shooting. Accordingly, we cannot conclude that Appellant was harmed by the exclusion of any such "reputation" testimony.
And finally, Appellant complains about the trial court's ruling prohibiting her attorney from asking the witnesses whether they knew of any specific acts of violence that McIntosh had committed against third parties. This complaint suffers from a similar failure to preserve error. Defense counsel never asked either witness on voir dire if they knew of any such acts, and therefore we have no way of knowing what their expected testimony would have been. Further, there is nothing in the record to indicate that Appellant had been aware of any such acts of violence toward third parties prior to the shooting. As set forth above, a defendant in a murder prosecution who is claiming self-defense is only entitled to introduce evidence of a victim's specific acts of violence of which she was aware to show the "reasonableness of [her] claim of apprehension of danger from the victim." Ex parte Miller, 330 S.W.3d at 618 (evidence of victim's prior assault with a wrench was admissible to show the reasonableness of defendant's fear because defendant personally knew of the incident, but evidence of a prior assault with a gun was not admissible because defendant had no knowledge of it). Without an offer of proof establishing that Appellant was aware that McIntosh had committed a specific act of violence toward a third party, we cannot conclude that the trial court erred by prohibiting defense counsel from questioning the witnesses on this issue or that Appellant was harmed by the ruling.
Appellant's Issue One is Overruled.
III. THE JURY CHARGE: APPARENT DANGER
In Issue Two, Appellant contends that the jury charge on the law of self-defense did not properly instruct the jury that she had the right to defend herself against a reasonable apprehension of danger, viewed from her standpoint, at the time of the shooting. Although she acknowledges that she did not request such an instruction, she asserts that the failure to instruct the jury on this issue constituted egregious error. The State counters that no such instruction was necessary in this case. We agree with the State.
A. Standard of Review and Applicable Law
When raised by the evidence and requested by the defendant, trial court is required to charge the jury on the law applicable to the case, including the elements of the offense charged, all statutory defenses, affirmative defenses, and justifications. See TEX.CODE CRIM.PROC. ART. 36.14 (setting forth requirements for the jury charge); Walters v. State, 247 S.W.3d 204, 208-09 (Tex.Crim.App. 2007); see also Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App. 1995) (the charge must contain an accurate statement of the law and must set out all the essential elements of the offense). If the trial court charges the jury on a defensive issue but fails to do so correctly, the resulting charge error is subject to review under the two-prong test set forth in Almanza v. State. See Vega v. State, 394 S.W.3d 514, 519 (Tex.Crim.App. 2013), citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh'g); Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005) (en banc). The first prong requires us to determine whether error exists. Ngo, 175 S.W.3d at 743. If no error is found, then the analysis ends; however, if charge error is found, the error is analyzed for harm under the second prong. See Almanza, 686 S.W.2d at 171.
The amount of harm necessary to warrant a reversal depends on whether the accused objected to the jury charge, and thereby preserved the error. Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171. If the error was preserved by a timely objection, we review the record to determine if the error caused the accused "some harm." Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171. However, if no objection was lodged, as Appellant concedes here, we review the unpreserved jury-charge error for egregious harm. Almanza, 686 S.W.2d at 171. Egregious harm is actual, rather than theoretical harm, and must be of such a nature that it affected the very basis of the case, deprived the accused of a fair and impartial trial, or otherwise vitally affected the accused's defensive theory at trial. See Villarreal v. State, 453 S.W.3d 429, 433 (Tex.Crim.App. 2015); Cosio v. State, 353 S.W.3d 766, 777 (Tex.Crim.App. 2011). "Egregious harm is a 'high and difficult standard' to meet, and such a determination must be 'borne out by the trial record.'" Villarreal, 453 S.W.3d at 433, quoting Reeves v. State, 420 S.W.3d 812, 816 (Tex.Crim.App. 2013). In making an egregious harm determination, we examine: (1) the entire charge; (2) the state of the evidence, including contested issues and the weight of the evidence; (3) arguments of counsel; and (4) any other relevant information revealed by the record of the trial as a whole. See Allen v. State, 253 S.W.3d 260, 264 (Tex.Crim.App. 2008).
B. The Law on Self-Defense
Section 9.32 of the Texas Penal Code provides, in relevant part, that "(a) A person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force[.]" TEX.PENAL CODE ANN. § 9.32. In turn, Section 9.31 provides that "Except as provided in Subsection (b), 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). Subsection (b) provides in part that the use of force against another is not justified "in response to verbal provocation alone." TEX.PENAL CODE ANN. § 9.31(b)(1). And finally, section 1.07 of the Code defines the term "reasonable belief" to mean a "belief that would be held by an ordinary and prudent man in the same circumstances as the actor." TEX.PENAL CODE ANN. § 1.07(42).
C. Analysis
1. The abstract portion of the jury charge
In the abstract portion of the jury charge, the trial court gave the jury the following instruction on the definition of self-defense:
Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree that the actor reasonably believes the force is immediately necessary to protect oneself against the other person's use or attempted use of unlawful force. The use of force is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another if she would be justified in using force against another as set out above and when she reasonably believes that such force is immediately necessary to protect herself against the other person's use or attempted use of unlawful deadly force. By the term "reasonable belief" is meant a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.
Appellant contends that the jury charge was erroneous, or at least incomplete, as it did not further instruct the jury that Appellant had the right to use deadly force against McIntosh if she had a "reasonable apprehension of danger as viewed from her standpoint at the time of the offense." Appellant correctly points out that the Court of Criminal Appeals has repeatedly recognized that a defendant has the right to defend oneself against apparent danger to the same extent as if the danger was real. Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App. 1996). Therefore, that court has held that if the evidence at trial raises the issue of self-defense--whether against actual or apparent danger--the defendant has the right to a jury instruction on the issue of self-defense. Hamel, 916 S.W.2d at 493. And in Jones v. State, the same court held that a defendant was entitled to a properly-requested instruction on his right to defend himself against an "apparent danger," as viewed from his standpoint, when the issue was raised by the evidence. Jones v. State, 544 S.W.2d 139, 142 (Tex.Crim.App. 1976).
However, three years later, the Court of Criminal Appeals clarified its holding in Jones, concluding that it was only error to refuse to give such an "apparent danger" instruction in cases in which the jury was not otherwise fully instructed on the law of self-defense. Valentine v. State, 587 S.W.2d 399, 400-01 (Tex.Crim.App. 1979). In Valentine, the court noted that a jury must be instructed, in accordance with the Penal Code, that a defendant's use of deadly force is justified if she reasonably believed that the deceased was using or attempting to use unlawful deadly force against her at the time of the shooting, and if she "reasonably believed that the use of force and the degree of force used were immediately necessary to protect herself against (the deceased's) use or attempted use of deadly force . . .." Id. The court found it significant that the trial court in Valentine had properly defined the term, "reasonable belief," to mean "a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant," a key definition that was missing in the jury charge in Jones. Id. at 401. The Court concluded that by defining "reasonable belief" in that manner, the trial court effectively instructed the jury on the concept that "a reasonable apprehension of danger, whether it be actual or apparent, is all that is required before one is entitled to exercise the right of self-defense against his adversary." Id. at 401. The court further observed that the charge was given in accordance with Sections 1.07, 9.31, and 9.32 of the Penal Code, "all of which adequately presented the appellant's defensive theory and protected her rights." Id. at 401, citing TEX.CODE CRIM.PRO.ANN. ART. 36.19 ("Whenever it appears by the record in any criminal action upon appeal that any requirement of [the Penal Code pertaining to the jury charge] has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.")
The Court cited to section 1.07(31) of the Penal Code, but the Code has since been renumbered, and the relevant subsection is now found at section 1.07(42), as set forth above. TEX.PENAL CODE ANN. § 1.07(42).
Appellant appears to acknowledge that the jury charge in her case properly instructed the jury on the law on self-defense, as set forth in the Penal Code, and properly defined "reasonable belief" in accordance with the holding in Valentine. However, she argues that we should not follow the holding in Valentine, as she believes there is a "split" of authority, or at least some "confusion" in the law, regarding whether Valentine remains good law. We disagree. In support of her argument, Appellant relies almost exclusively on Torres v. State, 7 S.W.3d 712, 715 (Tex.App.--Houston [14th Dist.] 1999, pet. ref'd), in which the Houston court held that a trial court erred by refusing to include a specific instruction on "apparent danger" in the jury charge, in addition to the standard charge on self-defense, stating that it knew of "no case law supporting the State's argument that the standard charge on self-defense encompasses apparent danger." As other courts have recognized, however, the court in Torres relied solely on the holding in Jones, and failed to cite to the holding in Valentine, thereby rendering the reasoning set forth in the opinion suspect. See Cleary v. State, No. 05-11-00040-CR, 2012 WL 987762, at *2 (Tex.App.--Dallas Mar. 26, 2012, pet. ref'd) (mem. op., not designated for publication); Clark v. State, No. 04-02-00551-CR, 2004 WL 1835732, at *6 (Tex.App.--San Antonio 2004, Aug. 18, 2004, pet. ref'd) (mem. op., not designated for publication).
Moreover, the Court of Criminal Appeals has twice reaffirmed its holding in Valentine. See Walters v. State, 247 S.W.3d 204, 213 (Tex.Crim.App. 2007); Semaire v. State, 612 S.W.2d 528, 530 (Tex.Crim.App. 1980). In addition, the Fort Worth Court of Appeals, whose guidance we must follow, has repeatedly followed the holding in Valentine, concluding that it is not error for a trial court to refuse to give an "apparent danger" instruction where the jury is otherwise properly instructed on the law of self-defense as set forth in the Penal Code, and the definition of "reasonable belief" in particular. Smith v. State, No. 02-16-00272-CR, 2017 WL 2979916, at *1-2 (Tex.App.--Fort Worth July 13, 2017, pet. ref'd) (mem. op., not designated for publication); Bundy v. State, 280 S.W.3d 425, 430 (Tex.App.--Fort Worth 2009, pet. ref'd); Price v. State, No. 02-02-00268-CR, 2003 WL 1351991, at *1 (Tex.App.--Fort Worth Mar. 20, 2003, no pet.) (mem. op., not designated for publication). Accordingly, we find no confusion in the law on this point.
We also note that numerous other courts of appeals have followed Valentine in applying this same principle. See, e.g., Buford v. State, No. 01-18-01134-CR, 2020 WL 2069243, at *5-7 (Tex.App.--Houston [1st Dist.] Apr. 30, 2020, no pet. h.); Marpoe v. State, No. 03-17-00748-CR, 2019 WL 5076506, at *7-8 (Tex.App.--Austin Oct. 10, 2019, no pet.) (mem. op., not designated for publication); Clark v. State, No. 04-02-00551-CR, 2004 WL 1835732, at *7 (Tex.App.--San Antonio Aug. 18, 2004, pet. ref'd) (mem. op., not designated for publication); Goodson v. State, No. 05-15-00143-CR, 2017 WL 1360193, at *15 (Tex.App.--Dallas Apr. 12, 2017, pet. ref'd) (mem. op., not designated for publication); Lowe v. State, 211 S.W.3d 821, 824-25 (Tex.App.--Texarkana 2006, pet. ref'd); Bales v. State, No. 12-16-00048-CR, 2017 WL 511891, at *2 (Tex.App.--Tyler Feb. 8, 2017, pet. ref'd) (mem. op., not designated for publication); Dotson v. State, No. 09-08-00323-CR, 2009 WL 5205359, at *2 (Tex.App.--Beaumont Dec. 30, 2009, pet. ref'd) (mem. op., not designated for publication); Trevino v. State, No. 11-17-00103-CR, 2019 WL 1716452, at *4-6 (Tex.App.--Eastland Apr. 18, 2019, no pet.) (mem. op., not designated for publication); Brown v. State, No. 13-12-00672-CR, 2014 WL 1465033, at *7 (Tex.--Corpus Christi Apr. 10, 2014, no pet.) (mem. op., not designated for publication);
Moreover, to the extent that Appellant is suggesting that the holding in Valentine was flawed, and that we should "reconsider the logic and applicability" of the court's opinion, we decline to do so. As an intermediate court of appeals, this Court has no authority to overrule the precedent set by the Court of Criminal Appeals, and we are instead bound to follow its holdings. See Wiley v. State, 112 S.W.3d 173, 175 (Tex.App.--Fort Worth 2003, pet. ref'd) (recognizing that an intermediate appellate court is "bound to follow the pronouncements of the court of criminal appeals."); see also Ex parte Ramos, 583 S.W.3d 748, 756 (Tex.App.--El Paso 2019, pet. ref'd) (recognizing that intermediate courts of appeal are bound by Court of Criminal Appeals' holdings).
2. The application paragraph of the jury charge
Appellant also contends that even if the definitional portion of the jury charge correctly stated the law, the application paragraph of the jury charge did not, and the trial court's standard self-defense instruction on "reasonable belief" could not cure the problem caused by this "flawed application paragraph."
The application paragraph of a jury charge explains to the jury in concrete terms how to apply the law to the particular facts of the defendant's case. See Yzaguirre v. State, 394 S.W.3d 526, 530 (Tex.Crim.App. 2013); see also Vasquez v. State, 389 S.W.3d 361, 366 (Tex.Crim.App. 2012) ("The application paragraph is that portion of the jury charge that applies the pertinent penal law, abstract definitions, and general legal principles to the particular facts and the indictment allegations."). Because the application paragraph specifies the factual circumstances under which the jury should convict or acquit, it is considered the "heart and soul" of the jury charge. See Vasquez, 389 S.W.3d at 367. However, an appellate court does not view the application paragraph in isolation in determining whether there was error in the charge; rather, we "must examine the charge as a whole instead of [as] a series of isolated and unrelated statements." Dinkins, 894 S.W.3d at 339.
In the present case, the application paragraph instructed the jury on Appellant's claim of self-defense in relevant part as follows:
If you find from the evidence beyond a reasonable doubt that on or about the 21st day of January, 2017, in Tarrant County, Texas, the Defendant, Imelia Garrett did then and there intentionally or knowingly cause the death of an individual, Tujuan McIntosh by shooting Tujuan McIntosh with a deadly weapon, to-wit: a firearm; . . . which caused his death, but you further find from the evidence, or you have a reasonable doubt thereof, that at that time the defendant was under attack, if any, or attempted attack, if any, from Tujuan McIntosh, and that the defendant reasonably believed, as viewed from her standpoint, that such deadly force as she used, if any, was immediately necessary to protect herself against the use or attempted use of any unlawful deadly force by another, if there was, and so believing, she shot Tujuan McIntosh, if she did, with a deadly weapon, to-wit: a firearm or with the intent to cause serious bodily injury to Tujuan McIntosh, the defendant committed an act, if she did, that was clearly dangerous to human life, namely, shooting Tujuan McIntosh with a deadly weapon, to-wit: a firearm, if she did, which caused his death, if it did, then you will acquit the defendant and say by your verdict "Not Guilty." (Emphasis added.)
Appellant contends that the language contained in the application paragraph required the jury to find that she was under an actual or attempted attack before it could acquit her, and that it therefore did not allow the jury to acquit her if it instead believed she was in "apparent danger." We disagree. As set forth above, Appellant's factual theory at trial was that McIntosh was the first aggressor and was attacking her, or attempting to attack her, at the time of the shooting. Therefore, applying those facts to Appellant's claim of self-defense, the charge correctly informed the jury that if Appellant had a reasonable belief, viewed from her perspective, that she was justified in using deadly force in response to McIntosh's attack, or attempted attack, the jury could acquit her of his murder. Further, as set forth above, the abstract portion of the jury charge correctly defined the term "reasonable belief" to mean "a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant," and the trial court was not required to repeat that definition in the application paragraph of the charge. See Vasquez, 389 S.W.3d at 367 (where trial court properly defined the term "reasonable belief" in the abstract portion of the jury charge, trial court was not required to "cut and paste" that definition into the application paragraph); Thompson v. State, No. 02-18-00084-CR, 2019 WL 3819265, at *8-9 (Tex.App.--Fort Worth Aug. 15, 2019, no pet.) (mem. op., not designated for publication) (same); see also Anderson v. State, No. 11-02-00329-CR, 2004 WL 690708, at *2-3 (Tex.App.--Eastland Apr. 1, 2004, no pet.) (per curiam) (not designated for publication) (where application paragraph failed to track the language of the Penal Code on the issue of the "use of deadly force," but abstract portion of the charge did, the defendant was not precluded from adequately presenting his self-defense claim to the jury).
Accordingly, we conclude that the jury charge as a whole sufficiently informed the jury that Appellant's conduct in shooting McIntosh would be justified if she had a reasonable belief that she was in danger from McIntosh's attack. See Valentine, 587 S.W.2d at 400-01.
Appellant's Issue Two is overruled.
III. THE JURY CHARGE: BURDEN OF PROOF
In Issue Three, Appellant contends that the trial court erred by refusing her request to instruct the jury that the State bore the burden of disproving her claim of self-defense beyond a reasonable doubt. In response, the State acknowledges that it bore the ultimate burden of persuasion in proving, beyond a reasonable doubt, that Appellant did not act in self-defense when she shot McIntosh. See Zuliani v. State, 97 S.W.3d 589, 594-595 (Tex.Crim.App. 2003) (recognizing that the State has the ultimate burden of persuasion in a case in which the defendant has raised a claim of self-defense).
At the charge conference, defense counsel requested the following instruction: "Once a defendant produces some evidence raising the issue of self-defense, the State bears the burden of persuasion to show beyond a reasonable doubt that the defendant's actions were not justified but is not required to produce additional evidence to meet such burden."
The defendant bears the initial burden of producing some evidence in support of a claim of self-defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003). Once the defendant produces such evidence, the State bears the burden of persuasion to disprove that defense. Id. The burden of persuasion is not one that requires the production of evidence. Id. Rather, it requires only that the State prove its case beyond a reasonable doubt. Id.
However, as both the State and Appellant recognize, the Court of Criminal Appeals has held that it is not error for a trial court to refuse to give the jury a specific instruction on the State's burden to disprove the defendant's claim of self-defense, where the jury charge otherwise properly instructed on the following principles: (1) that the defendant was entitled to the presumption of innocence; (2) that the State had the burden of proving the defendant's guilt beyond a reasonable doubt; and (3) that the jury was required to acquit the defendant if it "believed that he was acting in self-defense or the jury had a reasonable doubt thereof." See, e.g., Luck v. State, 588 S.W.2d 371, 375 (Tex.Crim.App. 1979). And as both the State and Appellant also appear to agree, the jury charge in the present case correctly instructed the jury that Appellant was entitled to the presumption of innocence, that the State had the burden of establishing Appellant's guilt beyond a reasonable doubt, and that the jury was required to acquit Appellant of McIntosh's murder if it believed she was acting in self-defense when she shot him, or if it had a "reasonable doubt thereof." Accordingly, under the holding set forth in Luck, we conclude that the jury charge, when viewed as a whole, properly placed the burden on the State to prove beyond a reasonable doubt that Appellant was not acting in self-defense. Id. at 375.
Appellant nevertheless contends that we should not follow the holding in Luck, arguing that the court's reasoning was "illogical." In particular, she argues that the holding in Luck yielded a result that is contrary to the purpose of Section 2.03 of the Texas Penal Code, which provides that "if the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted." TEX.PENAL CODE ANN. § 2.03(d). Whatever the force of that argument may be, it will have to be urged to the Court of Criminal Appeal, as we are bound by the decision in Luck. See Wiley, 112 S.W.3d at 175; Ex parte Ramos, 583 S.W.3d at 756. Accordingly, we decline Appellant's invitation to reconsider the Court's holding in Luck.
We further note that the Court's holding in Luck has been followed by various other courts of appeal and remains good law. See, e.g., Wilson v. State, No. 11-16-00163-CR, 2018 WL 3060936, at *3 (Tex.App.--Eastland June 21, 2018, no pet.); Goodson, 2017 WL 1360193, at *10-12; Brotherton v. State, 666 S.W.2d 126, 128 (Tex.App.--Houston [14th Dist.] 1983, pet. ref'd); Davidson v. State, No. 03-08-00446-CR, 2009 WL 3230777, at *1-3 (Tex.App.--Austin Oct. 8, 2009, no pet.) (mem. op., not designated for publication).
Appellant's Issue Three is overruled.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
In her fourth issue, Appellant claims that her trial attorney was ineffective for failing to investigate the claim that she received mental health treatment prior to the shooting due to the alleged abuse she suffered during her relationship with McIntosh. She reasons that trial counsel should have obtained her treatment records and presented them to the trial court during the punishment phase of her trial. Had counsel done so, she claims the treatment records would have given the trial court a complete picture of mitigating circumstances. The State counters that the record is not sufficiently developed to support her claim. We agree with the State.
A. Standard of Review and Applicable Law
Under the Sixth Amendment to the United States Constitution and Section Ten of Article 1 of the Texas Constitution, a criminal defendant is entitled to be represented by effective, competent counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App. 2011), citing U.S. CONST. AMEND. VI and TEX.CONST.ART. 1, § 10. A criminal defendant, however, is not entitled to a flawless performance from counsel; "isolated lapses or mistakes during the trial are not necessarily indicative of ineffectiveness." Calderon v. State, 950 S.W.2d 121, 128 (Tex.App.--El Paso 1997, no pet.), citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App. 1992), cert. denied, 508 U.S. 963 (1993). Rather, the defendant must show that counsel's performance was deficient to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994).
To prevail on a claim of ineffective assistance of counsel, Appellant must establish by a preponderance of evidence that (1) the attorney's performance was deficient, and that (2) the deficient performance deprived her of a fair trial. Strickland, 466 U.S. at 687; Ex parte Chandler, 182 S.W.3d 350, 353 (Tex.Crim.App. 2005). Appellant must satisfy both Strickland elements, and the failure to show either deficient performance or prejudice will defeat the claim. Perez v. State, 310 S.W.3d 890, 893 (Tex.Crim.App. 2010); Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).
Under the first prong of the Strickland test, Appellant must show the attorney's performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). Stated otherwise, she must show the counsel's actions do not meet the objective norms for professional conduct of trial counsel. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002). We presume, however, that the attorney's representation fell within the wide range of reasonable and professional assistance. Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Ineffective assistance claims must be firmly founded in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; Coffman v. State, 465 S.W.3d 797, 800 (Tex.App.--Fort Worth 2015, no pet.) (recognizing that an ineffective assistance claim must be "firmly founded in the record," and "the record must affirmatively demonstrate the meritorious nature of the claim."). Consequently, a direct appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because the record is generally undeveloped as to why trial counsel did what he or she did. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005); Thompson, 9 S.W.3d at 814 n.6.
Generally, in the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation if any can be imagined. Garcia v. State, 57 S.W.3d 436, 441-41 (Tex.Crim.App. 2001). In more rare circumstances a court may address an ineffective assistance claim when the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Goodspeed, 187 S.W.3d at 392 (internal quotes omitted.); see also Rylander, 101 S.W.3d at 111 (noting that "trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective"). In deciding whether a case falls into that category, the key question is whether trial "counsel's performance [fell] below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as he did." See Ex parte Bryant, 448 S.W.3d 29, 39-40 (Tex.Crim.App. 2014). As the Court of Criminal Appeals has noted, however, this poses a "difficult hurdle to overcome," and, a "reviewing court will rarely be in a position on direct appeal to fairly evaluate the merits of an ineffective assistance claim." Lopez, 343 S.W.3d at 143; see also Salinas, 163 S.W.3d at 740; Thompson, 9 S.W.3d at 813-14.
Because of this an application for a writ of habeas corpus is typically the more appropriate vehicle to raise a claim of ineffective assistance of counsel because it allows a defendant to develop a sufficient record. See Rylander v. State, 101 S.W.3d at 110, citing Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App. 2002); see also Lopez, 343 S.W.3d at 143 (recognizing that ineffective assistance of counsel claims are generally not successful on direct appeal and are better brought in a collateral proceeding, such as in an application for a writ of habeas corpus where the record may be developed). In certain circumstances, a defendant may develop the record at a hearing on a motion for new trial when appropriate. See Jones v. State, 133 S.W.3d 307, 312 (Tex.App.--Fort Worth 2004, no pet.). In the present case, however, Appellant did not bring such a motion.
Under the second Strickland prong, in a case that was actually tried, the defendant must establish that there is a reasonable probability that but for the attorney's deficient performance, the outcome of the case would have been different. See Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. A "reasonable probability" is that which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998).
The prejudice rule is different when counsel's mistake causes the defendant to forego a legal proceeding, such as when a defendant pleads guilty based on erroneous advice. See Lee v. U.S., 137 S. Ct. 1958, 1964-65 (2017).
With these standards in mind, we take up Appellant's complaints about her trial counsel.
B. The Alleged Failure to Conduct a Reasonable Investigation
In general, a trial attorney has a duty to conduct a reasonable investigation to assist his client's case, or to make a reasonable decision that a particular investigation is not necessary. See Strickland, 466 U.S. at 691; see also Wiggins v. Smith, 539 U.S. 510, 521-23 (2003); Ex parte Martinez, 195 S.W.3d 713, 721 (Tex.Crim.App. 2006); Aldrich v. State, 296 S.W.3d 225, 244 (Tex.App.--Fort Worth 2009, pet. ref'd). This duty requires counsel to first evaluate what "conceivable line[s] of mitigating evidence" may exist in the case, and then determine whether following those leads would be likely to discover evidence that "would . . . assist the defendant" at trial or sentencing. Wiggins, 539 U.S. at 533. In determining the reasonableness of an attorney's investigation, we must consider "the quantum of evidence already known to counsel and whether the known evidence would lead a reasonable attorney to investigate further." Ex parte Martinez, S.W.3d at 721, quoting Wiggins, 539 U.S. at 527. In addition, when trial counsel decides not to investigate a particular lead, that decision "must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Wiggins, 539 U.S. at 521-22, quoting Strickland, 466 U.S. at 690-91.
As set forth above, Appellant contends that her trial counsel failed to conduct a reasonable investigation into her mental health history and failed to obtain her treatment records. Appellant points out that trial counsel was clearly aware that she had received such treatment, as counsel questioned her about it during both the guilt and punishment phases of her trial. And according to her, the records would have "confirmed" or "corroborated" the claimed abuse by McIntosh. She further contends that she was prejudiced by this failure, arguing that if defense counsel had presented the treatment records to the trial court, there is a reasonable likelihood she would have received a different sentence.
We find several problems with Appellant's argument, all of which are tied to deficiencies in the appellate record, and assumptions that she is making regarding what a fully developed record would show. First, contrary to Appellant's contention, the record is entirely silent on the nature and extent of any investigation that her attorney may have conducted, and in particular, there is nothing in the record to indicate whether or not he attempted to obtain her treatment records. We will not assume that trial counsel did not conduct a reasonable investigation when, as here, the record is silent on what counsel did, or did not do. See Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App. 1986); see also Brown v. State, 129 S.W.3d 762, 767 (Tex.App.--Houston [1st Dist.] 2004, no pet.) (without any affirmative evidence that appellant's counsel failed to investigate, a court cannot assume trial counsel made no investigation); see also Hernandez v. State, No. 02-05-243-CR, 2006 WL 563247, at *2 (Tex.App.--Fort Worth Mar. 9, 2006, no pet.) (mem. op., not designated for publication) (court declined to find ineffective assistance of counsel where the record was "otherwise silent regarding the extent to which trial counsel investigated [the defendant's] background."); Bone v. State, 77 S.W.3d 828, 834 n.21 (Tex.Crim.App. 2002) (refusing to find ineffective assistance of counsel based on trial counsel's alleged failure to obtain mitigating evidence, where the record was silent on the nature of defense counsel's investigation, and left open the possibility that trial counsel may have obtained the evidence in question, but may have "intentionally declined" to present it at trial for strategic reasons). As such, we cannot say on this record that defense counsel failed to conduct a reasonable investigation or that his performance was deficient in this regard.
In this same vein, even if we were to assume that defense counsel made no attempt to obtain Appellant's treatment records, there is insufficient evidence in the record from which we could conclude that any failure to do so prejudiced Appellant's case. In order to establish prejudice, Appellant would need to show not only that the records existed and were available to her attorney, but that the records would have helped her case. See Stokes v. State, 298 S.W.3d 428, 432 (Tex.App.--Houston [14th Dist.] 2009, pet. ref'd) (appellant had the burden to prove what would have been discovered had counsel investigated mental health history); Brennan v. State, 334 S.W.3d 64, 79 (Tex.App.--Dallas 2009) (overruling appellant's claim that trial counsel was ineffective for failing to call witness to stand where appellant failed to meet his burden of establishing that witness was available). Appellant, however, has not met this burden, as the record is silent as to the existence or availability of Appellant's treatment records. More importantly, there is nothing in the record to suggest what any treatment records would have shown. Without such evidence, we have no way of determining whether Appellant suffered any prejudice from her trial attorney's failure to obtain and present her treatment records at her sentencing hearing. See, e.g., Cooks v. State, 240 S.W.3d 906, 912 (Tex.Crim.App. 2007) (appellant did not demonstrate prejudice from counsel's alleged failure to investigate, where he made no showing regarding what a proper investigation would have revealed); see also Ex parte McFarland, 163 S.W.3d 743, 755 (Tex.Crim.App. 2005) (finding no prejudice for failure to investigate a witness where there was no showing that the witness would have provided exculpatory testimony); King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983) (en banc) (counsel's failure to call witnesses at the trial is "irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony.").
Accordingly, we are unable to conclude, based on the record before us, that Appellant was denied her right to the effective assistance of counsel.
Appellant's Issue Four is overruled.
V. CONCLUSION
The trial court's judgment is affirmed.
JEFF ALLEY, Chief Justice July 31, 2020 Before Alley, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)