                                   NO. 07-10-0070-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                   APRIL 8, 2011
                          _____________________________

                             KENNETH DUANE BALENTINE,

                                                                   Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

              NO. 57,111-B; HONORABLE JOHN B. BOARD, PRESIDING
                         _____________________________

                               Memorandum Opinion
                          _____________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Kenneth Duane Balentine appeals his conviction for murder by asserting three

issues.   The first two concern the legal and factual sufficiency of the evidence

underlying the jury’s decision to reject his claim of self-defense. The third issue involves

the purported ineffectiveness of his counsel during the punishment phase of the trial.

We affirm the judgment.
       Background

       Appellant shot Justin Hobbs after the latter purportedly struck appellant and

entered appellant’s house through the rear door. Hobbs had been in the home a short

time earlier and had been asked to leave due to his conduct. After leaving, he allegedly

went to the back door and began striking it. Appellant, who was wearing a firearm, went

to the door and opened it after directing Hobbs to stop “disrespecting” the house. At

that point, Hobbs allegedly struck him in the face and on his glasses with his fist,

causing appellant to fall backwards. While on the floor, appellant drew his firearm and

shot Hobbs in the head after the latter allegedly said something about appellant needing

to use the weapon if he drew it and reached for a pipe or stick allegedly kept by the

door. Needless to say, appellant used it.

       Sufficiency Issues

       Since the issuance of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010),

appellate claims involving the factual sufficiency of the evidence are no longer viable.

Thus, we will consider only the allegation that the jury’s implicit rejection of appellant’s

claim of self-defense was legally insufficient, that is, that there was no evidence of

record from which jurors could infer that appellant did not act in self-defense.        We

overrule the issues.

       A person is justified in using force against another, with certain exceptions, when

and to the degree he reasonably believes force is immediately necessary to protect him

against another’s use or attempted use of unlawful force.         TEX. PENAL CODE ANN.

§9.31(a) (Vernon Supp. 2010). Deadly force may be used when 1) the use of force

under §9.31 is justified, and 2) the actor reasonably believes deadly force is



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immediately necessary to protect him against the other person’s use or attempted use

of unlawful deadly force, or to prevent the other person’s imminent commission of

various enumerated offenses. Id. §9.32(a).

       At bar, no one other than appellant and Hobbs actually witnessed the shooting,

according to the record.    Others supposedly heard commotion and a gunshot, but

appellant and Hobbs were alone at the back door. Thus, the bulk of the testimony

proffered in support of the defense came from appellant himself, which, in turn, made

his credibility of paramount importance.     With that in mind, we observe that more

appears in the record than merely evidence of Hobbs’ effort to attack appellant with a

pipe or stick. For instance, appellant had previously brandished a firearm at Hobbs

before Hobbs left the house. Though Hobbs allegedly was angry about something and

acted accordingly, he had threatened no one. Nonetheless, appellant pulled out his

gun, set it on a table and said “we’re not going to act like that in my house.” Thereafter,

appellant left, sat on the front porch for a bit, and went to the back door. One could

draw at least two reasonable inferences from this testimony. First, appellant had little

fear of Hobbs when he had his gun, and two, appellant was quick to exert his authority

via the exhibition of his firearm. More importantly, neither inference tends to support the

contention that appellant either feared or felt threatened by Hobbs.

       Next, appellant’s son testified that he was told by appellant that Hobbs was

actually standing outside on the back porch when the shooting occurred. So too did

appellant allegedly reveal to his son that he (appellant) dragged Hobbs inside the house

after the shooting. Other evidence indicated that Hobbs’ hoodie was pulled up and/or

over his head as if he was dragged. This evidence tends to contradict the veracity of



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appellant’s testimony about shooting Hobbs after he entered the abode. So too could it

lead one to ponder whether appellant was merely trying to comply with that old adage

about being able to better prove self-defense by dragging the victim inside the house if

he was shot outside it.

      Additionally, appellant cited us to no evidence indicating that Hobbs’ fists were

deadly weapons. Nor were we cited to any evidence indicating that Hobbs possessed

any type of weapon with which to strike appellant until he purportedly reached for the

pipe or stick allegedly by the back door. Yet, before Hobbs sought that instrument,

appellant already had drawn his handgun. From this evidence, one reasonably could

infer that the act of appellant brandishing his weapon actually instigated both Hobbs’

supposed comment about appellant needing to use it and his effort to find some

weapon with which to strike appellant. In other words, one could question whether

appellant provoked the supposed need to use deadly force.

      Next, and after the shooting, appellant directed those in another room of the

house to leave, locked a door to his “band room” to protect property therein from theft,

and walked to a nearby convenience store to buy a soda. Upon his arrival there, he

appeared to be “normal” and “smiling,” according to the store’s clerk. Additionally, he

feigned to others that he did not know what happened. For instance, while walking back

to his house with an acquaintance he said, “I wonder what [is] going on.” At another

time, he asked someone at the scene of the shooting if it was his gun that was used to

shoot Hobbs. Feigning ignorance of the circumstances hardly supports the notion that

appellant acted in self-defense but rather indicates that he was being deceitful.




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       After being told at the scene that Hobbs was the victim, appellant said such

things as “that’s what he get[s]” and “I told him he’s always starting shit and talking shit

to somebody,” and “I knew somebody was going to get his ass one day.” Aside from

illustrating an obvious lack of remorse or empathy for someone he knew, those

comments describe appellant as having an antipathy towards Hobbs as well as a pre-

existing belief that Hobbs merited being injured or shot.

        Upon encountering the police at the house, appellant said nothing to them

about the shooting since he was not asked. Later that day, though, a detective secured

his statement. In it, appellant disclosed how Hobbs purportedly struck him with his fist

and damaged his glasses. Upon hearing it, the investigator looked at appellant’s face

and saw neither injury to it nor damage to his glasses. To this, we add the evidence

that no pipe or stick was found by the door. These bits of testimony tend to contradict

appellant’s version of events and his need to defend himself.

       In short, the foregoing evidence presented the jury with various inconsistent

scenarios of what occurred. Among other things, it could be that appellant provoked the

use of deadly force, even if Hobbs had struck him with his fist. Or, it could be that

Hobbs never entered the house or struck appellant, given the testimony of the latter’s

son. Or, in acting normally when entering the convenience store, in smiling, in feigning

ignorance about the event, in being offended by Hobb’s “disrespecting” the house, in

drawing his handgun before Hobbs purportedly reached for his own weapon, and in

dragging Hobbs’ body inside the house, appellant’s conduct and demeanor could be

viewed as calculating rather than spontaneous or fearful.        Or, the nominal or non-

existent evidence of injury to appellant’s face or damage to his glasses could lead one



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to reasonably question the allegation that Hobbs struck first. Similarly, the absence of a

pipe or like object by the door (and within Hobbs’ reach) could also lead objective third

parties to reasonably question whether appellant simply made up the whole thing. More

importantly, none of those scenarios comport with appellant’s claim of self-defense.

         Self-defense is an issue of fact to be determined by the jury, and the jury is free

to accept or reject it. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991).

Moreover, the jury can infer from contradictory statements and the defendant’s conduct

after the shooting that he was not acting in self-defense. Whipple v. State, 281 S.W.3d

482, 497-98 (Tex. App.–El Paso 2008, pet. ref’d). So, while the jury had the discretion

to believe appellant’s version of the events, there was some evidence of record which

freed it from having to accept that version. Reasonable minds reasonably could have

concluded that both appellant and his claim of self-defense were disingenuous.

         Ineffective Assistance of Counsel

         Next, appellant contends that his counel was ineffective because he did not raise

the issue of sudden passion during the punishment phase of the trial. We overrule the

issue.

         Appellant was charged and tried for committing a felony of the first degree.

Nonetheless, if he proved by a preponderance of the evidence that he caused the death

of Hobbs while under the immediate influence of sudden passion arising from an

adequate cause, the offense could have been reduced to a felony of the second degree.

TEX. PENAL CODE ANN. §19.02(d) (Vernon 2003).

         Next, and unlike the question of guilt, punishment was tried to the court. Why

trial counsel did not argue to the court that his client’s actions were stimulated by



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sudden passion arising from adequate cause is unknown. This is of import since we are

to presume that counsel’s action derived from sound trial strategy, and that presumption

cannot be overcome absent evidence in the record of the attorney's reasons for his

conduct. Ex parte Niswanger, No. AP-76,302, 2011 Tex. Crim. App. LEXIS 390, at *9-10

(Tex. Crim. App. March 16, 2011). It may be that trial counsel opted to forego the

matter because the jury rejected the claim of self-defense and because evidence

appeared of record indicating that appellant was being disingenuous. See Chavez v.

State, 6 S.W.3d 56, 65 (Tex. App.–San Antonio 1999, pet. ref’d) (observing that when

the defendant raises issues of self-defense during the guilt/innocence phase of trial, the

issue of sudden passion is typically also raised, but, it is also true that, except in rare

instances, when the State's evidence is sufficient to overcome a claim of self-defense,

then it will also be sufficient to show the absence of sudden passion); Kent v. State, 982

S.W.2d 639, 641 (Tex. App.–Amarillo 1998, pet. ref’d, untimely filed) (holding that

counsel need not pursue a baseless theory to be effective). But, in any case, without

knowing the reasons, if any, underlying counsel’s decision, we cannot say that appellant

rebutted the aforementioned presumption.

       Accordingly, the judgment of the trial court is affirmed.



                                                  Brian Quinn
                                                  Chief Justice

Do not publish.




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