                                                                             ACCEPTED
                                                                         03-15-00385-CR
                                                                                 8214204
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                   12/14/2015 9:16:24 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                    No. 03-15-00385-CR

                 IN THE COURT OF APPEALS              FILED IN
                                               3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF      AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS       12/14/2015 9:16:24 AM
                                                    JEFFREY D. KYLE
                                                         Clerk
                          ********

           KARL LEE WIGGINS
                            VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 27th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72,941

                           ******
                  STATE’S BRIEF
                           ******

                          HENRY GARZA
                          DISTRICT ATTORNEY

                          BOB D. ODOM
                          ASSISTANT DISTRICT ATTORNEY
                          P.O. Box 540
                          Belton, Tx 76513
                          (254) 933-5215
                          FAX (254) 933-5704
                          DistrictAttorney@co.bell.tx.us
                          SBA No. 15200000


Oral Argument Not Requested

                              1
                            TABLE OF CONTENTS

ITEM                                                                                     PAGE

Index of Authorities ……………………………......................................................     3

Statement Regarding Oral Argument ………………………………………….                                        4

Statement of the Case ………………………………………………………………..                                           4

Statement of Facts ……………………………………………………………………..                                            5

Summary of State’s Argument ……………………………………………………                                           8

Argument and Authorities …………………………………………………………                                            8

       Issue on Appeal ………………………………………………………………..                                          8
             APPELLANT RECEIVE INEFFECTIVE ASSISTANCE
             OF COUNSEL FOR FAILURE TO OFFER EVIDENCE
             OF POSSIBLE DEFECT IN WEAPON IN MITIGATION
             OF PUNISHMENT?

       Standard of Review ………………………………………………………….                                          9

       Application and Analysis ………………………………………………….                                      10

Prayer ………………………………………………………………………………………                                                  20

Certificate of Compliance with Rule 9 …………………………………………                                    21

Certificate of Service ………………………………………………………………….                                         21




                                              2
                   INDEX OF AUTHORITIES

CASES                                                          PAGE

Castenada v. State, No. 01-14-00389-CR, ……………………….…………..        16
      2015 Tex. App. LEXIS 11615 (Tx. App. Houston 1st
      Dist. 2015 no pet.), not designated for publication.

Johnson v. State, 4 S.W.3d 254 (Tx. Cr. App. 1999) ………………………    13

Ex Parte Kunkle, 852 S.W.2d 499 (Tx. Cr. Ap. 1993) ……………………     14

Milburn v. State, 15 S.W.3d 267 ……………………………………………13-14, 16
     (Tx. App. Houston 14th Dist. 2000 rev. ref.)

Strickland v. Washington, 466 U.S. 668 (1982) …………………………… 9-10

Smith v. State, 286 S.W.3d 333 (Tx. Cr. App. 2009) ……………………… 15-16

Thompson v. State, 9 S.W.3d 808 (Tx. Cr. App. 1999) ……………………     9

Torres v. State, No. 01-95-00862-CR, …………………………………………. 16-18
      2000 Tex. App. LEXIS 8574 (Tx. App. Houston 1st
      Dist. 2000 rev. ref.), not designated for publication)



OTHER

Texas Penal Code

     Section 12.32 ……………………………………………………………………                   11

     Section 12.42 (d) ………………………………………………………………                 11

     Section 19.02 (b)(3) ………………………………………………………….               10




                                3
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Karl Lee Wiggins, was charged by indictment with

murder. The indictment was amended to add paragraph II that charged

that the Appellant “….did then and there commit or attempt to commit a

felony, to-wit: Aggravated Assault and in the course of and in the

furtherance of the commission or attempted commission of Aggravated

Assault he committed or attempted to commit an act clearly dangerous

to human life, to-wit: waving, pointing, and threatening with a loaded

firearm, that caused the death of an individual, to wit: Edward Charles

Herman.” (CR Supp-3).

      The Appellant waived a jury and entered a plea of guilty before

Judge John Gauntt in the 27th District Court of Bell County, Texas to the

offense alleged in paragraph II of the indictment. (CR-41; RR4-9, 10). He

judicially confessed to the commission of the offense as alleged. (CR-46;

RR4-10).   The trial court found the evidence sufficient to find the

Appellant guilty, ordered a presentence investigation report, and

recessed the hearing. (RR4-10, 11).



                                      4
      After the subsequent punishment hearing the trial court found the

Appellant guilty and assessed his punishment at life in the Texas

Department of Criminal Justice. (CR-68; RR5-AV-12).

      The Appellant filed a Motion for New Trial, which was denied

after a hearing by the trial court (CR-79; RR6-53). Although the State

agreed not to pursue the allegations in its Notice to Enhance

Punishment (CR-17) in exchange for the Appellant’s plea of guilty (CR-

41), the trial court certified his right to appeal (CR-67) and stated for

clarification on the record it was the court’s intent to give the Appellant

permission to do so. (CR6-52).

STATEMENT OF FACTS

      The Appellant, his sister Elizabeth Gallagher, and her common law

husband, Edward Charles Herman were living together in a small cabin.

After a day of steady drinking, an argument broke out between the

Appellant and Herman. (RR5-29, 30).         At some point during that

argument the Appellant left the cabin and returned with a loaded .25

caliber semi-automatic pistol. (RR5-31). When the Appellant pointed

the gun at Herman, Herman asked if it was even loaded. The Appellant




                                    5
responded that it was loaded and ready. (RR5-31, 32). The Appellant

kept waving the gun around at Herman. (RR5-32, 33).

      Eventually, Herman got up and said, “Whatever, Lee. Whatever

you want to do, Lee, I’m not afraid to die”. Herman put his head down to

the gun. The Appellant fired and Herman fell to the floor. (RR5-34).

There was no struggle over the gun. He simply pulled the trigger and

the victim went down. (RR5-37). It was not necessary for the Appellant

to rack a shell into the chamber of the pistol after he entered the cabin.

(RR5-38). The Appellant then told Ms. Gallagher that he did not mean to

do it. (RR5-35). “Lee” referred to the Appellant. (RR5-34).

      During the punishment phase of the trial, the State called David

Cheadle, the manager of the largest gun shop in central Texas with at

least 11 years of experience in inspecting and doing minor repairs to

firearms. (RR5-11). Cheadle had examined State’s Exhibit 2, the .25

caliber automatic pistol recovered at the scene of the murder. (RR5-12).

He tested the trigger pull of the weapon and found it to be necessary to

exert 7¼ pounds on the trigger to fire the weapon. (RR5-15).           He

characterized this as a very heavy trigger pull. (RR5-15). Cheadle stated

no one had indicated any problem with the safety of the weapon and

that the gun seemed to be in working order. (RR5-16).


                                    6
      In the hearing on the Motion for New Trial the Appellant

introduced a Texas Department of Public Safety Ballistics Report that

noted that the weapon was operational “with a malfunction of the

quarter cock safety noted during test firing.” (Defendant’s Exhibit 1).

The Appellant’s two trial attorneys, Joseph Weiner and Bobby Barina

testified that they had received full discovery from the State and were

aware of the ballistics report. (RR6-15, 17).

      Mr. Weiner testified that there was no evidence that the gun went

off half-cocked (RR6-25) and pointed out that the Appellant’s plea was

to “felony murder” with a lesser culpable mental state. (RR6-27). He

stated that he was prepared to pursue manslaughter as a lesser included

offense and use the ballistics report as evidence in the event of a trial

and plea of not guilty, however, the attorneys and the Appellant had

concluded that it was better to plead guilty to felony murder with no

enhancements than to seek a manslaughter conviction enhanced to a

punishment range of 25 years to life. (RR6-29). Mr. Barina noted that

the gun had tested to be in working order and with a heavy trigger pull.

He concurred with the plea to felony murder. (RR6-35, 47).




                                     7
SUMMARY OF STATE’S ARGUMENT

     The Appellant has failed to show that his trial counsel’s conduct

was deficient in that it fell below an objective standard of

reasonableness. Counsel was aware of, and had evaluated the evidence

and made a reasonable strategic decision in not offering the ballistics

evidence at the punishment hearing.         It cannot be said that no

reasonable attorney would have employed that strategy.

     The Appellant has wholly failed to show by a preponderance of

the evidence that counsel’s performance prejudiced him and has not

shown a reasonable probability that but for counsels alleged

unprofessional performance the result of the proceedings would have

been different. The same judge who assessed the punishment heard the

motion for new trial and the evidence alleged to have been improperly

ignored and denied the motion.         Clearly, had that evidence been

presented at the punishment hearing, there is no reasonable probability

that the punishment assessed would have been different.

ARGUMENT AND AUTHORITIES

First Issue on Appeal




                                   8
      Did the Appellant receive ineffective assistance of counsel for

failure to present evidence at the punishment hearing of a possible

defect in the quarter-cocked safety of the weapon in mitigation?

Standard of Review

      In order to establish ineffective assistance of counsel, the

Appellant must prove by a preponderance of the evidence: (1) that his

trial counsel’s performance was deficient in that it fell below an

objective standard of reasonableness; and (2) that the deficient

performance prejudiced him to such a degree as to deprive him of a fair

trial. Such prejudice is demonstrated when the defendant shows a

reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceedings would have been different. A reasonable

probability is one sufficient to undermine confidence in the outcome of

the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1982);

Thompson v. State, 9 S.W.3d 808, 813-14 (Tx. Cr .App. 1999).

      The Appellate Court does not view trial counsel’s performance by

hindsight, but rather upon the facts of the particular case as they were

at the time of counsel’s conduct. Thompson at 813. The Appellate Court

must be highly deferential to the judgment of counsel and must




                                   9
presume that counsel’s actions fell within a range of reasonable and

professional assistance.

Application and Analysis

      It must be noted at the outset that the Appellant does not contest

the voluntariness of his plea of guilty on appeal nor the sufficiency of the

evidence, but only the alleged ineffectiveness of his trial counsel with

respect to failure to call a witness from the DPS laboratory to testify that

there was a malfunction in the quarter-cock safety of the murder

weapon in mitigation of punishment.

      Strickland imposes upon the Appellant the duty to show, by a

preponderance of the evidence, both that his trial counsel’s

performance was deficient in that it fell below an effective standard of

reasonableness; and that counsel’s performance prejudiced him to such

a degree that it deprived him of a fair trial.

Counsel’s Performance

      The Appellant has failed in his burden to show that trial counsel’s

performance fell below an objective standard of reasonableness given

the circumstances of the case. The Appellant had agreed to enter a plea

of guilty to murder under Section 19.02(b)(3) of the Texas Penal Code.

That section applies when a person commits or attempts to commit a


                                      10
felony, other than manslaughter, and in the course of and in furtherance

of that commission or attempt, commits or attempts to commit an act

clearly dangerous to human life, and causes the death of an individual.

      In exchange for his plea to that offense, the State agreed not to

pursue the allegations in the notice of enhancement. That notice alleged

two prior felony convictions in proper order to raise the punishment

range for murder to 25 years of life in prison. Section 12.42(d), Texas

Penal Code. By virtue of the plea agreement the minimum punishment

was 5 years as opposed to 25 years. Section 12.32, Texas Penal Code.

The same 25 to life range would have applied even had counsel pursued

a reduction to manslaughter by virtue of the alleged malfunction in the

weapon.

      The agreement to plead guilty to felony murder, without

enhancement and the State’s abandonment of the first paragraph of the

indictment charging intentional and knowing murder (RR4-5), removed

the necessity for the State to prove that he had intentionally or

knowingly caused the death of the victim. Instead, the State only had to

prove the commission or attempt to commit the felony and the act

clearly dangerous to human life, and the resultant death of the victim.

This certainly removed any issue as to the possibility that the safety


                                   11
might have malfunctioned on quarter-cock as the act clearly dangerous

to human life, the waving, pointing, and threatening the victim with a

loaded firearm, would be in no way negated by such a possible

malfunction. Thus, the Appellant’s argument that his trial counsel failed

to rebut the testimony that the pistol was in working order had little or

no relevance to the offense as charged in paragraph II of the indictment

and as admitted by him. Nor would that evidence have mitigated the

punishment.

      There was no evidence even remotely suggesting that a

malfunction occurred at the time of the offense.        The Appellant’s

statements that he did not mean to do it hardly raise an issue that the

murder resulted from a defective gun.        They do not mitigate the

particular offense because they have nothing to do with the Appellant’s

commission of an act clearly dangerous to human life. Waving, pointing,

and threatening another with a loaded gun is such an act whether there

was a possible malfunction or not. The Appellant’s self-serving denial of

intent and of “meaning to do it” had no bearing because the culpable

mental state of murder was not an element of the offense of felony

murder. The felony murder rule dispenses with the necessity of proving

mens rea accompanying the homicide itself, the underlying felony


                                   12
supplies the culpable mental state. Johnson v. State, 4 S.W.3d 254, 255

(Tx. Cr. App. 1999).

      The Appellant’s reliance upon Milburn v. State, 15 S.W.3d 267 (Tx.

App. Houston 14th Dist. 2000 rev. ref.), is misplaced. In that case counsel

did not call any witnesses at the punishment hearing, although

numerous were available and willing to speak on the defendant’s behalf.

Instead they merely sought stipulations that some 21 people would

testify to his character.     The Houston court held that counsel’s

performance was ineffective for failure to even evaluate available

mitigation testimony so as to determine if it would be helpful and, as a

result of such a lack of preparation there was no evidence before the

jury to offset the State’s punishment evidence. Milburn at 270.

      In this case, however, the Appellant’s counsel was aware of the

DPS ballistics report and had been prepared to raise the issue had the

case gone to trial on a plea of not guilty in order to seek a lesser

included manslaughter verdict. (RR6-23, 24). When they were able to

negotiate a plea lowering the Appellant’s exposure to a higher range of

punishment, they concluded that the evidence was no longer germane

to the issues in the case and not mitigating at all. Unlike in Milburn,

however, they did not leave the fact finder with nothing to consider in


                                    13
mitigation. Counsel called the Appellant’s sister to testify about the

relationship of the parties, their intoxicated state at the time of the

offense and the circumstances under which it had occurred. They also

called the Appellant’s brother for family background in mitigation.

      Counsel is not ineffective for failing to present mitigating evidence

when the decision a strategic and deliberate one made after a thorough

investigation of the facts and the law. Ex Parte Kunkle, 852 S.W.2d 499,

506 (Tx. Cr. App. 1993).       In Milburn counsel admittedly had not

investigated or evaluated punishment evidence at all, let alone

presented it. Milburn at 270. Here, counsel was aware of and had

considered the ballistics report, but made a reasonable strategic

decision to dispose of the case in a way that rendered that report less

probative and irrelevant.      Counsel did review and present other

mitigation evidence. Such a decision falls within the wide range of

reasonable professional conduct.

      It cannot be said that the Appellant has shown by a

preponderance of the evidence that no reasonably competent attorney

would have chosen to forego testimony concerning the ballistic report

in light of the circumstances of the case and the mode of its disposition.




                                    14
Prejudice

      It is also incumbent on the Appellant to show that his counsel’s

alleged unprofessional errors prejudiced him to such a degree that he

was deprived of a fair trial. To do so he must show that there is a

reasonable probability that, but for those errors, the results of the

proceedings, in this case the punishment assessed, would have been

different.

      In this case the trial court was the fact finder and assessed

punishment. The court also heard and denied the motion for new trial.

In Smith v. State, 286 S.W.3d 333 (Tx. Cr. App. 2009), the Court of

Criminal Appeals reviewed the decision of the trial court not to hold a

hearing on a motion for new trial as to punishment and to deny the

motion based upon the affidavits attached and the record. In that case

the trial court had heard the issue of punishment. The Court of Criminal

Appeals observed:

             “Only the trial judge in this case could have known what
             factors he took into consideration in assessing the original
             punishment, and only he would know how the defendant’s
             testimony, if allowed, might have affected that assessment.
             When the trial judge declined to hold a hearing on the
             appellant’s motion for new trial, we presume that he knew
             from the affidavits what the appellant’s testimony at the
             hearing would be, and that, even assuming any such
             testimony to be accurate and reliable, knew that it would


                                    15
            not have influenced his ultimate normative judgment. In
            that event, the trial court could have concluded, without
            the necessity of a hearing, that the appellant suffered no
            prejudice from any deficiency on his trial counsel’s part
            with respect to the assessment of punishment for the
            original offense.” Smith at 344-45.

See also Castenada v. State, No. 01-14-00389-CR, 2015 Tex. App. LEXIS

11615 (Tx. App. Houston 1st Dist. 2015 no pet.), not designated for

publication (holding that the defendant failed to show harm when the

judge who sentenced him also denied his motion for new trial for

ineffective assistance, and declining to follow Milburn because in that

case the jury assessed punishment.).

      In this case the same judge who sentenced the Appellant to life for

murder actually heard the testimony on the motion for new trial and

reviewed the ballistics report, but denied the motion. As noted in Smith,

the judge alone knew the factors he took into consideration in

sentencing the Appellant and he certainly was in a position to know

whether evidence concerning the ballistic report would have been

reasonably likely to produce a different result. By denying the motion

the trial court clearly indicated that it would not.

      The Appellant relies heavily upon Torres v. State, No. 01-95-

00862-CR, 2000 Tex. App. LEXIS 8574 (Tx. App. Houston 1st Dist. 2000



                                     16
rev. ref.), not designated for publication. In that case the appellate court

held that counsel was ineffective for failing to present ballistic evidence

at the punishment hearing.            That case, however, is clearly

distinguishable. Torres pled guilty to aggravated robbery that was

committed by himself and his companion. In the course of that robbery

one of the robbers pulled a gun and shot the female victim three times

in the chest. The victim identified Torres as the robber who shot her

both prior to trial and at the punishment hearing. Torres trial counsel,

however, did not present ballistic evidence in mitigation that showed

that he was not the shooter, but rather the shots had been fired by his

companion.

      Torres’ counsel testified at the motion for new trial hearing that

he did not present that evidence because the State had suggested that

the two robbers might have switched guns. The Court of Appeals noted

that Torres only mitigation was that he was not the one who had shot

the victim of the robbery. Counsel also failed to cross examine the

victim about her identification of Torres as the shooter because he did

not want her to “feel bad” and believed that she had gone through

enough. The record was totally devoid of the evidence that Torres was




                                    17
not the shooter. Torres slip op. at page 7-8. The conviction was reversed

for ineffective assistance of counsel.

      Under the facts of the present case, however, the ballistics report

in no way indicated that the Appellant did not commit the alleged act

clearly dangerous to human life in the course of the commission or

attempted commission of aggravated assault that caused the death of

the victim. The identity of the Appellant as the person who caused the

death of the victim by shooting him with a gun was never at issue. All

the Appellant notes about the ballistic report was that it mentioned in

passing that in test firing the weapon a malfunction in the quarter-cock

safety was discovered. Given the offense of which the Appellant pled

guilty, it is difficult to see how that evidence would be mitigation at all,

much less such that might reasonably have produced a different result

on sentencing.

      The Appellant’s act clearly dangerous to human life was the

waving, pointing, and threatening the victim with a loaded gun. How

could a malfunction in the safety on quarter-cock mitigate that act? The

Appellant’s actions with the gun were no less clearly dangerous to

human life even with a possible malfunction of the weapon. In fact, if




                                     18
anything, his actions were more dangerous to human life if that was the

case.

        The Appellant was not convicted of intentionally or knowingly

causing the death of the victim, in which case an accidental discharge

due to a malfunction of the weapon would undoubtedly be mitigating.

However, no such culpable mental state was required for the felony

murder of which the Appellant was convicted.

        The Appellant admitted that he was committing or attempting to

commit the felony offense of aggravated assault and, in so doing, he

committed or attempted to commit an act clearly dangerous to human

life by waving, pointing, and threatening the victim with a loaded gun.

He also admitted that he caused the death of the victim as a result of

those actions. Even if the gun had a partially defective safety, that

would neither change the nature of the offense nor mitigate or excuse

his conduct. The trial court, who assessed punishment in the first place,

clearly did not find that the evidence that it heard on the motion for new

trial would be reasonably likely to have changed the result. Otherwise

the court would not have denied the motion. The court did not abuse its

discretion in doing so.




                                   19
      The Appellant has wholly failed to satisfy his burden to show that

his trial counsel rendered ineffective assistance at the punishment

hearing of the trial as well as that, but for that ineffective assistance, the

trial court would have been reasonably likely to have assessed a

different sentence.



                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                             Respectfully Submitted,

                                             HENRY GARZA
                                             District Attorney

                                             /s/    Bob D. Odom
                                             BOB D. ODOM
                                             Assistant District Attorney
                                             P.O. Box 540
                                             Belton, Tx 76513
                                             (254) 933-5215
                                             FAX (254) 933-5704
                                             DistrictAttorney@co.bell.tx.us
                                             SBA No. 15200000




                                     20
     CERTIFICATE OF COMPLIANCE WITH RULE 9

     This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 3,128 words.




                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney



                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, James H. Kreimeyer, Counsel for Appellant, by electronic

transfer via Email, addressed to him at jkreime@vvm.com on this 14th

day of December, 2015.




                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




                                    21
