Affirmed and Memorandum Opinion filed August 28, 2015.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-14-00313-CR

                  NORMAN ANDREW PUCKETT, Appellant
                                          V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 180th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1374245

                  MEMORANDUM OPINION

      Appellant Norman Andrew Puckett appeals his murder conviction. A jury
found him guilty and assessed punishment at nineteen years in the Institutional
Division of the Texas Department of Criminal Justice. In his first three issues on
appeal, appellant contends that his trial attorney provided ineffective assistance of
counsel during both the guilt-innocence and punishment phases of trial. In his
fourth issue, appellant contends that the trial court erred in overruling his objection
to the jury charge instruction on the issue of self-defense. In his fifth issue,
appellant contends that the trial court erred in admitting photographic evidence.
We affirm.

                                  I. Background

      Appellant was charged with murder for the stabbing death of complainant.
Both appellant and complainant lived in the same rooming house. Appellant, who
slept in the living room with complainant, had removed the light bulb from a light
fixture because he did not want to be awakened by the light. One morning around
3:00 a.m., complainant, who had been getting ready for work, confronted appellant
about the missing light bulb. Another resident of the house was awakened by
complainant’s yelling at appellant. He then saw appellant stab complainant in the
stomach. Complainant was taken to the hospital, where he underwent numerous
surgeries to repair his abdomen. Due to complications from the stab wound, he
died approximately three and a half months after the stabbing, having never left the
hospital.
      Appellant admitted to stabbing complainant, but claimed he did so in self-
defense. Appellant claimed he feared for his own life after complainant whispered
in his ear “I am going to bleed you out” before pressing down on appellant’s neck
with his forearm, making it difficult for appellant to breathe. Appellant stated that
he struggled with complainant but could not break free, so he took a knife out of
his back pocket and stabbed complainant.
      The State’s medical examiner testified that complainant died from
complications caused by the stab wound. Although trial counsel’s cross-
examination appeared to be aimed at raising the possibility of another cause of
death, counsel failed to call his own expert witness to support such a theory.
      The State elicited testimony from complainant’s father regarding
complainant’s non-violent nature. Part of this testimony was elicited as the jury

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was shown four photographs of complainant with various family members. The
trial court admitted the photographs into evidence over defense counsel’s relevance
objection.
      Prior to the court’s instructing the jury on the charge, trial counsel requested
an instruction that the State had the burden of disproving appellant’s claim of self-
defense beyond a reasonable doubt. The trial court denied the request, stating that
such an instruction is implicit in the standard jury charge on self-defense and that
such language, if added, would confuse the jury.
      During the punishment phase, defense counsel failed to introduce any
mitigating evidence or witnesses to testify on behalf of appellant. He also declined
to cross-examine the State’s witnesses, who were all family members of
complainant. However, in his closing argument, he sought leniency by again
raising the issues of causation and self-defense. The nineteen-year-sentence
assessed by the jury was well below the maximum possible sentences of ninety-
nine years or life.

                             II. Assistance of Counsel

      In three issues, appellant contends that his trial counsel provided ineffective
assistance by failing to (1) call an expert witness to refute the testimony of the
State’s medical examiner on causation, (2) object to the lack of a concurrent
causation jury instruction or request an intervening causation jury instruction, and
(3) introduce mitigating evidence or cross-examine the State’s witnesses during the
punishment phase. The United States Constitution guarantees the right to
reasonably effective assistance of counsel in criminal prosecutions. U.S. Const.
amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). To establish
ineffective assistance of counsel, appellant must show by a preponderance of the
evidence that his counsel’s representation fell below the standard of prevailing

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professional norms and that there is a reasonable probability that, but for counsel’s
deficiency, the result of the trial would have been different. Salinas v. State, 163
S.W.3d 734, 740 (Tex. Crim. App. 2005) (citing Strickland v. Washington, 466
U.S. 668 (1984)).
      Our review of counsel’s representation is highly deferential, and we indulge
a strong presumption that counsel’s conduct fell within a wide range of reasonable
representation. See id. We will rarely be in a position on direct appeal to fairly
evaluate the merits of an ineffective assistance claim. See id. In most cases, the
record on direct appeal will be undeveloped and cannot adequately reflect the
motives behind trial counsel’s actions. Id. To overcome the presumption of
reasonable professional assistance, “the record must demonstrate 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 v. State, 343 S.W.3d 137, 143
(Tex. Crim. App. 2011) (emphasis added). When the record is silent, we cannot
engage in retrospective speculation regarding counsel’s strategy. See id. at 142.

                      A.    Failure to call an expert witness

      In his first issue, appellant complains of trial counsel’s failure to call an
expert witness to testify on the cause of death. Appellant contends that, given that
over three months passed between the stabbing and complainant’s death, one
obvious defense strategy would have been to argue that an intervening medical
condition was the independent cause of death. In pursuing such a strategy,
appellant argues, trial counsel should have called an expert who would contradict
the medical examiner’s testimony linking the initial stabbing to the death. Because
no expert provided such testimony, appellant contends the intervening causation
defense lacked credibility and thus was not successful, depriving appellant of a fair

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trial.
         Because there was no hearing on a motion for a new trial, defense counsel
has not had an opportunity to explain why he did not call an expert to testify or
even whether an expert could have supplied helpful evidence. See Bone v. State, 77
S.W.3d 828, 836-37 (Tex. Crim. App. 2002) (holding that appellant failed to show
that there was no plausible professional reason for counsel’s acts and omissions
when the record contained no specific explanation for counsel’s decisions).
Appellant concedes the record is silent as to what investigation was made by trial
counsel into the possibility of alternate causes of complainant’s death. Counsel
may have spoken with many experts, only to conclude it would not benefit
appellant’s case to call one as a witness. When an appellant argues that counsel
was ineffective because counsel failed to utilize an expert witness, the appellant
must also show that the expert’s testimony would have been beneficial to
appellant. Washington v. State, 417 S.W.3d 713, 725 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d). On this record, we cannot say that counsel’s performance
fell below the standard of prevailing professional norms.
         We overrule appellant’s first issue.

 B.       Failure to object to the lack of a concurrent causation jury instruction
                or request an intervening causation jury instruction
         Appellant contends in his second issue that trial counsel rendered ineffective
assistance by failing to object to the lack of a concurrent causation jury instruction
or request an independent intervening causation jury instruction. The existence or
nonexistence of a causal connection is a question for the jury’s determination.
Fountain v. State, 401 S.W.3d 344, 358 (Tex. App.—Houston [14th Dist.] 2013,
pet. ref’d). The State is not required to prove beyond a reasonable doubt that the
act alleged in the indictment alone caused the death. Id. Accordingly, a defendant
is responsible for the death of another when the defendant’s acts contributed to the
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cause of death, even when other contributing causes existed. Id. “A person is
criminally responsible if the result would not have occurred but for his conduct,
operating either alone or concurrently with another cause, unless the concurrent
cause was clearly sufficient to produce the result and the conduct of the actor is
clearly insufficient.”1 Tex. Penal Code § 6.04(a); Robbins v. State, 717 S.W.2d
348, 351 (Tex. Crim. App. 1986); Fountain, 401 S.W.3d at 358. A defendant is not
entitled to an instruction that is not raised by the evidence. See Fountain, 401
S.W.3d at 359-61.

       The record is undisputed as to the facts surrounding complainant’s stabbing,
hospitalization, and subsequent death. Complainant never left the hospital, never
fully recovered from the stabbing, and later died. No evidence suggests that any
other possible cause was “clearly sufficient” by itself to result in complainant’s
death or that the stabbing was “clearly insufficient” by itself to produce the
ultimate result. Without evidence of both, the trial court was not required to
provide a concurrent or intervening causation instruction. See id. at 359 n.2; see
also Tex. Pen. Code § 6.04(a).
       Appellant, however, does not argue that the trial court erred in failing to
instruct the jury on concurrent or intervening causation. Instead, appellant contends
that counsel’s failure to object to the lack of such instructions and request that they
be given was so contrary to any possible defense strategy that it constituted
ineffective assistance. In supporting this claim, appellant points out that trial
       1
         Although appellant complains on appeal about the lack of concurrent and intervening
causation instructions in the jury charge, the parties and the case law do not differentiate in their
discussion of contributing causes between concurrent and intervening causation. “Concurrent
causation” means that more than appellant’s conduct, that is “‘another cause’ in addition to
[appellant’s] conduct,” was in issue. Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App.
1994). The key issue is whether the defendant’s conduct was sufficient to produce the result. See
Fountain, 401 S.W.3d at 358 (discussing criminal causation); see also Hughes, 897 S.W.2d at
297 (“A jury charge on causation is called for only when the issue of concurrent causation is
presented.”).

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counsel asked the jury to consider whether post-surgical complications were
independently sufficient to cause death. Because the trial court did not issue an
instruction on concurrent or intervening causation, appellant argues, the jury could
not properly determine whether appellant’s stabbing was the cause of death.
      It is possible that counsel decided for strategic reasons not to request a
concurrent or intervening causation instruction or object to the lack thereof. Such
an instruction would have explained to the jury that a defendant is not required to
be the sole cause of the occurrence and may be criminally responsible even if the
result of the defendant’s conduct operated concurrently with another cause. See
Tex. Pen. Code § 6.04(a). Defense counsel reasonably might have concluded that
this instruction would have been more detrimental than helpful to appellant. Cf.
Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994) (addressing
appellant’s argument that a concurrent causation jury instruction deprived him of a
fair and impartial trial because it permitted the jury to find appellant guilty even if
it concluded the victim would not have died but for other conduct not alleged in the
indictment). Such a conclusion could be part of a reasoned trial strategy, even
though it is a strategy with which appellate now disagrees.
      Defense counsel need not pursue all available defenses. Dannhause v. State,
928 S.W.2d 81, 86 (Tex. App.—Houston [14th Dist.] 1996, no pet.). Rather,
defense counsel reasonably may decide to focus on the most viable means of
obtaining a verdict in the defendant’s favor. See id. (“In some cases, it may be a
more effective strategy to focus on a relatively narrow defense, rather than to use a
‘shotgun’ approach by arguing every defense available.”). In the present case,
counsel’s own investigation of the anticipated trial testimony could have led
counsel to conclude that the evidence would not support a defensive theory of
concurrent or intervening causation. In light of the more viable self-defense option,
counsel may have decided to forego seeking instructions on causation to avoid
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complicating the jury’s deliberation on self-defense. The record does not
demonstrate a lack of sound trial strategy with respect to trial counsel’s failure to
object to the lack of a concurrent causation instruction or request an intervening
causation instruction.
       Appellant’s second issue is overruled.

C. Failure to introduce mitigating evidence or cross-examine State’s witnesses
                          during punishment phase
       In his third issue, appellant contends that trial counsel was ineffective for
failing to present mitigating evidence and cross-examine the State’s witnesses
during the punishment phase. Both the record and appellant’s issue on appeal,
however, are silent as to whether any or what type of mitigating evidence was
available for counsel’s presentation and also as to what sort of testimony counsel
could have elicited from the State’s witnesses during cross-examination. See Bone,
77 S.W.3d at 834-35. Defense counsel reasonably could have determined that the
potential benefit of additional witnesses or cross-examining the State’s witnesses
was outweighed by the risk of unfavorable counter-testimony. See id. at 835. We
will not speculate as to how mitigating evidence might have prejudiced the
outcome of the case.2 See id.
       Similarly, the record does not show whether counsel intentionally declined
to cross-examine the State’s witnesses because additional testimony might not
have been beneficial. See id. at 834 n.21. We may not assume a lack of sound trial
strategy on the part of defense counsel merely because we are unable to discern
any particular strategic or tactical purpose in counsel’s trial presentation. See Bone,
77 S.W.3d at 836 (“A vague, inarticulate sense that counsel could have provided a

       2
          Engaging in pure speculation can be a double-edged sword. See Bone 77 S.W.3d at 835
(“If a reviewing court can speculate about the existence of further mitigating evidence, then it
just as logically might speculate about the existence of further aggravating evidence.”).

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better defense is not a legal basis for finding counsel constitutionally
incompetent. . . . [A] defendant must prove, by a preponderance of the evidence,
that there is, in fact, no plausible professional reason for a specific act or
omission.”).
      Appellant’s third issue, therefore, is overruled.

                        III. Self-defense Jury Instruction

      In his fourth issue, appellant contends that the trial court erred by providing,
over objection, an improper jury charge instruction on self-defense. When
reviewing jury instruction errors, we first determine whether there was error in the
charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Grubbs v.
State, 440 S.W.3d 130, 136 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). If
error is present, the degree of harm necessary for reversal depends on whether the
appellant preserved the error by objecting to the instruction provided at trial.
Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); Grubbs, 440 S.W.3d
at 136. If the defendant properly objected to the erroneous jury charge instruction,
reversal is required if we find even “some harm” to the defendant’s rights. Olivas,
202 S.W.3d at 144 n.21; Grubbs, 440 S.W.3d at 136. If the error was not objected
to, it must be “fundamental” and requires reversal only if it was so egregious and
created such harm that the defendant “has not had a fair and impartial trial.”
Barrios, 283 S.W.3d at 350; Grubbs, 440 S.W.3d at 136.
      Appellant contends that the jury charge instruction on self-defense is
contrary to Texas Penal Code section 2.03(d), which states, “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.” The
burdens at trial to establish self-defense alternate between the defense and the
State. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). A defendant

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bears the initial burden to produce some evidence that supports his self-defense
theory. Id. Once the defendant produces such evidence, the State then bears the
ultimate burden of persuasion to disprove the defense beyond a reasonable doubt.
Id. The burden of persuasion does not require the production of evidence—it
requires only that the State prove its case beyond a reasonable doubt. Id. When a
jury finds the defendant guilty, there is an implicit finding against the defensive
theory. Id.
      Appellant asserts the instruction on self-defense omits the initial burden of
persuasion requirement on appellant, ignores the State’s requirement to disprove
beyond a reasonable doubt that appellant acted in self-defense, and can be read to
shift the burden to the defendant to prove beyond a reasonable doubt he acted in
self-defense. It is unclear what appellant means in complaining that the instruction
did not address his “initial burden of persuasion.” We presume for purposes of our
analysis that appellant is referring to his burden of production.

      Appellant did not request an instruction at trial on his argument regarding
the omission of an instruction on his initial burden of production. Accordingly, we
may reverse on this issue only if the trial court’s failure to include such an
instruction resulted in fundamental error. See Grubbs, 440 S.W.3d at 136. With
regard to appellant’s argument that the self-defense instruction does not properly
articulate the State’s burden of proof, we must reverse if the trial court erred and
there is some harm. See id.

      At trial, appellant requested an instruction that he was “not required to prove
self-defense, rather the State must prove beyond a reasonable doubt that self-
defense does not apply to the defendant’s conduct.” The trial court denied the
request and submitted the following self-defense instruction to the jury:

      [I]f you find from the evidence beyond a reasonable doubt that the

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      defendant, Norman Andrew Puckett, did cause the death of
      [complainant], by stabbing [complainant] with a deadly weapon,
      namely, a knife, as alleged, but you further find from the evidence, as
      viewed from the standpoint of the defendant at the time, that from the
      words or conduct, or both of [complainant] it reasonably appeared to
      the defendant that his life or person was in danger and there was
      created in his mind a reasonable expectation or fear of death or serious
      bodily injury from the use of unlawful deadly force at the hands of
      [complainant], and that acting under such apprehension and
      reasonably believing that the use of deadly force on his part was
      immediately necessary to protect himself against [complainant’s] use
      or attempted use of unlawful deadly force, he stabbed [complainant],
      then you should acquit the defendant on the grounds of self-defense;
      or if you have a reasonable doubt as to whether or not the defendant
      was acting in self-defense on said occasion and under the
      circumstances, then you should give the defendant the benefit of that
      doubt and say by your verdict, not guilty.

(Emphasis added.)

      Self-defense is a justification defense, which excuses but does not mitigate a
crime. Brotherton v. State, 666 S.W.2d 126, 128 (Tex. App.—Houston [14th Dist.]
1983, pet. ref’d). A jury charge on self-defense need not state specifically that the
State must disprove justification to prove murder. Id. The charge in the instant case
required the jurors to acquit appellant if they believed he was acting in self-defense
or they had a reasonable doubt thereof. See id. The charge correctly stated that the
burden of proof beyond a reasonable doubt was on the State and contained
instructions on the presumption of innocence. See id. We conclude that the charge
correctly explained the law of self-defense with the proper instruction that the
jurors could find appellant guilty only if they found beyond a reasonable doubt that
appellant committed all the elements of murder and did not kill complainant in
self-defense. See id. Accordingly, the trial court did not err in failing to address the
appellant’s burden of production or in refusing to include an instruction in the


                                          11
charge that the State was required to disprove self-defense.3 See id. (“We decline to
impose a ‘lack of justification’ as an element in the charge which must be
specifically disproved by the state when the issue of self-defense is raised by the
evidence.”).

      We overrule appellant’s fourth issue.

                    IV. Admission of Photographic Evidence

      In his fifth issue, appellant complains that the trial court erred by admitting
photographic evidence over his relevance objection. The admissibility of evidence,
including photographs, is within the sound discretion of the trial court. See, e.g.,
Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007); Paredes v. State, 129
S.W.3d 530, 540 (Tex. Crim. App. 2004). Moreover, we may not reverse a
conviction on appeal due to the admission of evidence unless we determine that it
affected appellant’s substantial rights. See Tex. R. App. P. 44.2(b); Taylor v. State,
268 S.W.3d 571, 592 (Tex. Crim. App. 2008). An error affects a substantial right
when it has a substantial and injurious effect or influence in determining the jury’s
verdict. Taylor, 268 S.W.3d at 592. Non-constitutional error, such as that
postulated in the present case, is harmless if we have fair assurance that the error
had no influence or only a slight influence on the jury. Id. In conducting a harm
analysis, we consider “everything in the record, including any testimony or
physical evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, the character of the alleged error and how it might be
considered in connection with other evidence in the case.” Morales v. State, 32
S.W.3d 862, 867 (Tex. Crim. App. 2000).

      At issue are four photographs of complainant with his family, offered as
      3
        Because we find no error in the charge, we do not address harm. See Grubbs, 440
S.W.3d at 136.

                                          12
purportedly illustrative of his non-violent nature to rebut the defendant’s self-
defense theory. The photographs all depict complainant as he appeared within the
last fifteen years of his life; three show complainant with his children and the
fourth shows him holding one of his grandchildren. The State introduced the
photographs during the direct examination of complainant’s father for the express
purpose of presenting “background information” to aid the witness in explaining
“how [complainant] was with his family in terms of him being a first aggressor
towards anybody.” Appellant argues that because the State did not establish the
photographs were taken close in time to the stabbing, they did not represent
complainant’s character and behavior preceding the incident. We conclude that
even assuming the trial court abused its discretion in admitting the photographs,
the error was harmless.
      To begin with, the photographs were only very briefly mentioned during the
father’s testimony and were not emphasized at any point during trial. See, e.g.,
Leyba v. State, 416 S.W.3d 563, 570 (Tex. App.—Houston [14th Dist.] 2013, pet.
ref’d) (holding error in admission of evidence was harmless where the evidence
was only briefly presented and was not emphasized). Additionally, the subject
matter of the photographs—complainant’s connection to his family—was
otherwise covered by the father’s unobjected-to testimony. See Saldinger v. State,
No. 14-14-00402-CR, 2015 WL 4594053, at *5 (Tex. App.—Houston [14th Dist.]
(Tex. App.—Houston [14th Dist.] July 30, 2015, no pet. h.) (explaining that the
improper admission of evidence is generally considered harmless when the same
information comes in properly or without objection from another source). Lastly,
there was little of substance regarding complainant’s character to be gleaned from
the photographs, much less whether he had any propensity towards violence. See
Neal v. State, 256 S.W.3d 264, 284 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) (holding any error in admission of evidence was harmless due in part to
                                       13
insignificance of evidence). Accordingly, we have a fair assurance that the
admission of the photographs had no influence or at most only a slight influence on
the jury. See Taylor, 268 S.W.3d at 592.

      We overrule appellant’s fifth issue.

      We affirm the judgment of the trial court.




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Chief Justice Frost and Justices Jamison and Busby.
Do not publish — Tex. R. App. P. 47.2(b).




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