                                                                                     ACCEPTED
                                                                                 14-15-00080-CR
                                                                 FOURTEENTH COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           10/1/2015 11:43:48 AM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK



               No. 14-15-00080-CR
                                                               FILED IN
                                                        14th COURT OF APPEALS
                                                           HOUSTON, TEXAS
                                                        10/1/2015 11:43:48 AM
     IN THE FOURTEENTH COURT OF                      A PCHRISTOPHER
                                                         P E A L S A. PRINE
                                                                 Clerk
                      HOUSTON, TEXAS


                      JOSHA RENEE PRIOR,

                              Appellant,

                                 Vs.

                      THE STATE OF TEXAS,

                              Appellee.

                Appeal from the 412th District Court
                     Brazoria County, Texas
                   Trial Court Cause No. 73278


BRIEF FOR THE APPELLEE, THE STATE OF TEXAS



                                           Cynthia D. Ericson
                                           State Bar No. 24053188
                                           Assistant Criminal District Attorney
JERI YENNE – BRAZORIA COUNTY               111 East Locust St., Suite 408A
CRIMINAL DISTRICT ATTORNEY                 Angleton, Texas 77515
                                           (979) 864-1233
                                           (979) 864-1712 Fax
                                           cynthiae@brazoria-county.com

                                           Attorney for the Appellee,
Oral argument is requested.                The State of Texas
             IDENTITY OF PARTIES AND COUNSEL

Appellant:                    Josha Renee Prior

Appellee:                     The State of Texas

Attorney for the Appellant:   Perry R. Stevens
                              State Bar No. 00797496
                              603 East Mulberry Street
                              Angleton, Texas 77515
                              (979) 848-1111
                              (979) 849-9398 Fax
                              pstevenslawoffice@sbcglobal.net

Attorney for the Appellant    Justin T. Surginer
at Trial:                     State Bar No. 24063329
                              8831 Long Point Road, Suite 401
                              Houston, Texas 77055
                              (713) 408-6421
                              (281) 715-2838 Fax

Attorneys for the Appellee    Cynthia D. Ericson
on Appeal:                    State Bar No. 24053188
                              Assistant Criminal District Attorney
                              111 East Locust St., Suite 408A
                              Angleton, Texas 77515
                              (979) 864-1233
                              (979) 864-1712 Fax
                              cynthiae@brazoria-county.com

Attorneys for the Appellee    Kurt Sistrunk
at Trial:                     State Bar No.18444950
                              Assistant Criminal District Attorney
                              Robyn Griffith
                              State Bar No. 24012738
                              Assistant Criminal District Attorney
                              111 East Locust St., Suite 408A
                              Angleton, Texas 77515
                              (979) 864-1233
                              (979) 864-1712 Fax


                               ii
                                    TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................. ii

TABLE OF CONTENTS............................................................................... iii

INDEX OF AUTHORITIES ...........................................................................v

ABBREVIATIONS FOR RECORD REFERENCES .....................................x

STATEMENT OF THE CASE .......................................................................1

ISSUES PRESENTED ....................................................................................2

STATEMENT OF FACTS ..............................................................................3

SUMMARY OF THE ARGUMENT ..............................................................9

ARGUMENT ................................................................................................ 10

1)       Strickland Standard of Review ........................................................... 11

2)       Presumption of Reasonably Professional Assistance ......................... 12

3)       Trial Strategy ...................................................................................... 15

4)       Theory of Defense: Attack on Credibility .......................................... 17

5)       Theory of Defense: Not a Deadly Weapon ........................................ 20

6)       Risks of Self-Defense Instruction....................................................... 24

7)       No Prejudice ....................................................................................... 31

CONCLUSION ............................................................................................. 35

PRAYER ....................................................................................................... 36




                                                      iii
CERTIFICATE OF SERVICE ..................................................................... 37

CERTIFICATE OF RULE 9.4 COMPLIANCE .......................................... 38

APPENDIX ................................................................................................... 39




                                                      iv
                                INDEX OF AUTHORITIES
Cases

Adame v. State,
            69 S.W.3d 581 (Tex.Crim.App.2002) ............................... 21, 22

Benoit v. State,
             561 S.W.2d 810 (Tex.Crim.App.1977), abrogated by
             Harrison v. State, 187 S.W.3d 429 (Tex.Crim.App.2005) ...... 31

Blaine v. State,
             647 S.W.2d 293 (Tex.Crim.App.1983).................................... 22

Bone v. State,
             77 S.W.3d 828 (Tex.Crim.App.2002) .......................... 14, 16, 32

Butler v. State,
              716 S.W.2d 48 (Tex.Crim.App.1986)...................................... 13

Cannon v. State,
            252 S.W.3d 342 (Tex.Crim.App.2008).................................... 33

Chapa v. State,
            407 S.W.3d 428 (Tex.App.—Houston [14th Dist.]
            2013, no pet.)............................................................................ 14

Cornet v. State,
             417 S.W.3d 446 (Tex.Crim.App.2013).............................. 25, 26

Delrio v. State,
             840 S.W.2d 443 (Tex.Crim.App.1992) (en banc)
             (per curium) .............................................................................. 13

Dugar v. State,
            464 S.W.3d 811 (Tex.App.—Houston [14th Dist.]
            2015, pet. ref’d) ........................................................................ 26

Ex parte Chandler,
            182 S.W.3d 350 (Tex.Crim.App.2005).................................... 31


                                                    v
Ex parte Lane,
            303 S.W.3d 702 (Tex.Crim.App.2009).................................... 32

Ex parte Nailor,
            149 S.W.3d 125 (Tex.Crim.App.2004)........................ 24, 25, 30

Fregia v. State,
             No. 01-13-00312-CR, 2014 WL 527535
             (Tex.App.—Houston [14th Dist.], Feb. 6, 2014, pet. ref’d)
             (mem.opinion) (not designated for publication) ...................... 24

Goodspeed v. State,
           187 S.W.3d 390 (Tex.Crim.App.2005).............................. 14, 30

Guerrero v. State,
            No. 14-13-00880-CR, 2014 WL 3955157
            (Tex.App.—Houston [14th Dist.], Aug.14, 2014, pet. ref’d)
            (mem. opinion) (not designated for publication) ..................... 15

Hernandez v. State,
           726 S.W.2d 53 (Tex.Crim.App.1986)................................ 11, 12

Hobbs v. State,
            298 S.W.3d 193 (Tex.Crim.App.2009).................................... 14

Jackson v. State,
             877 S.W.2d 768 (Tex.Crim.App.1994) (en banc).................... 13

Jones v. State,
             No. 14-10-00767-CR, 2011 WL 3332156
             (Tex.App.—Houston [14th Dist.], Aug. 4, 2011, pet. ref’d)
             (mem.opinion) (not designated for publication) ...................... 21

Juarez v. State,
             308 S.W.3d 398 (Crim.App.Tex.2010).................................... 24

Lopez v. State,
              343 S.W.3d 137 (Tex.Cr.App.2011) ..................... 12, 13, 14, 32




                                         vi
Mitchell v. State,
             68 S.W.3d 640 (Tex.Crim.App.2002) ...................................... 32

Mosley v. State,
             545 S.W.2d 144 (Tex.Crim.App.1976).................................... 22

Musquiz v. State,
            No. 14-13-01008-CR, 2015 WL 457737
            (Tex.App.—Houston [14th Dist.], Feb. 3, 2015, no pet.)
            (mem. opinion) (not designated for publication) ..................... 34

Okonkwo v. State,
           398 S.W.3d 689 (Tex.Crim.App.2013).................. 12, 23, 30, 33

Posey v. State,
             966 S.W.2d 57 (Tex.Crim.App.1998)................................ 16, 31

Pouncy v. State,
            No. 14-12-00470-CR, 2013 WL 3580638
            (Tex.App.—Houston [14th Dist.], July 11, 2013, pet. ref’d)
            (mem.opinion) (not designated for publication) ...................... 15

Robertson v. State,
            187 S.W.3d 475 (Tex.Crim.App.2006).................................... 12

Salinas v. State,
             163 S.W.3d 734 (Tex.Crim.App.2005).................................... 12

Saxton v. State,
             804 S.W.2d 910 (Tex.Crim.App.1991).................................... 16

Smith v. State,
             286 S.W.3d 333 (Tex.Crim.App.2009).................................... 14

Solis v. State,
              792 S.W.2d 95 (Tex.Crim.App.1990) (en banc).......... 13, 32, 33

Storr v. State,
              126 S.W.3d 647 (Tex.App.—Houston [14th Dist.]
              2004, pet. ref’d) ........................................................................ 13


                                                   vii
Strickland v. Washington,
             466 U.S. 668, 104 S.Ct. 2052,
             80 L.Ed.2d 674 (1984) ........................................... 11, 12, 13, 32

Thomas v. State,
            678 S.W.2d 82 (Tex.Crim.App.1984) (en banc)...................... 24

Thompson v. State,
           9 S.W. 3d 808 (Tex.Crim.App.1999) ................................. 13, 14

Tolbert v. State,
             306 S.W.3d 776 (Tex.Crim.App.2010).................................... 16

Vasquez v State,
            830 S.W.2d 948 (Tex.Crim.App.1992)
            (en banc) (per curium) .............................................................. 13

Villa v. State,
              370 S.W.3d 787, 796-97 (Tex.App.—Eastland 2012,
              aff’d, 417 S.W.3d 455 (Tex.Crim.App.2013) .......................... 13

Weatherall v. State,
            No. 06-09-00095-CR, 2009 WL 3349039
            (Tex.App.—Texarkana, Oct. 20, 2009, no pet.)
            (mem.opinion) (not designated for publication) ...................... 27

Williams v. State,
             No. 14-95-01098-CR, 1998 WL 78595
             (Tex.App.—Houston [14th Dist.], Feb.26, 1998, no pet.)
             (not designated for publication) ............................................... 16




                                               viii
Statutes

TEX. PENAL CODE ANN. § 1.07(a) (Vernon 2011) ........................................ 21

TEX. PENAL CODE ANN. § 9.31 (Vernon 2011) ................................ 27, 28, 29

TEX. PENAL CODE ANN. § 46.02 (Vernon 2011)........................................... 27


Treatises

8 Tex. Prac., Criminal Forms and Trial Manual § 106.16 (11th ed.) ............ 29




                                          ix
       ABBREVIATIONS FOR RECORD REFERENCES

    Abbreviation                   The Record

1     RR 2:532         Reporter’s Record, vol. 2, page 532.

2      CR 1:45           Clerk’s Record, vol. 1, page 45.

3     Ant. Br. 5             Appellant’s brief, page 5.

4     Apx. Ex. 1           State’s appendix, Exhibit 1.

5     RR 5: Sx. 1   Reporter’s Record, vol. 5, State’s Exhibit 1




                           x
                      STATEMENT OF THE CASE

            A jury convicted Appellant, Josha Renee Prior, of Aggravated

Assault with an affirmative finding of a deadly weapon, sentenced her to

five years confinement, and assessed a fine of $10,000 (CR 1:60-61). Trial

occurred in the 412th Judicial District Court for Brazoria County, Texas, the

Honorable Jeremy E. Warren presiding on behalf of the Honorable W.

Edwin Denman.




                                     1
                            ISSUES PRESENTED

             At issue is whether Appellant was denied effective assistance of

counsel when her trial attorney declined to include a self-defense instruction

in the jury charge after consulting with her at the conclusion of the guilt-

innocence phase of trial.




                                      2
                           STATEMENT OF FACTS

              Shortly after 3 p.m. on March 14, 2014, Bruce Bratcher rode in

his Ford F-350 pickup truck to a convenience store in Pearland, Texas. (RR

3:33, 3:34, 3:59, 3:117, 3:119; RR 6: Sx.3). As his wife, Vickie, drove the

truck into the parking lot, they noticed the Appellant because the waistband

of her pants sat below her buttocks, exposing her red underwear. (RR 3:69-

3:70, 3:143-144, 3:146).

              Mr. and Mrs. Bratcher noticed Appellant bending over her SUV

because of her exposed red underwear. (RR 3:69-70, 3:128). Appellant also

wore a baseball cap turned to the side. (RR 3:71, 3:146). The Bratchers and

Appellant were strangers to each other on the date of the offense. (RR

3:189). Bruce thought that Appellant was “another man,” and he later

described her to a Pearland Police Department detective as a small male in

his late teens or early twenties who had braided hair and saggy clothing.1

(RR 3:24, 3:146; RR 6: Sx. 9).

              Vickie remained in the truck with the engine running while

Bruce exited the passenger seat and walked toward the front the convenience


1
  Detective Jeffrey Jernigan identified Appellant as the daughter of the registered owner
of the Mercedes SUV Appellant was driving at the time of the offense by using the
license plate number taken down by Vickie Bratcher. (RR 3:25-28). He presented Bruce
Bratcher with a photo line-up, and Bruce confirmed that Appellant was the person whom
he initially believed to be a small male. (RR 3:141).



                                           3
store. (RR 3:67-68). Appellant had parked her SUV near that location, and

was moving back and forth from her vehicle to a trash can. (RR 3:35-36,

RR 3:186). While this was happening, her younger brother was inside the

store. (RR 3:192-94).

              Bruce testified that he noticed her underwear before he exited

his truck and said she appeared to react to him because of the way he was

looking at her. (RR 3:122-24). At the time Bruce and Appellant first spoke

to each other, they were ten to fifteen feet apart—or about the length of a

car. (RR 3:81, 3:122, 3:143).2 Bruce said he heard Appellant say something,

and he asked her, “Pardon me?” (RR 3:120).              Appellant asked him “what

the F__” he was looking at. (RR 3:120-21, 3:169, 3:173). Bruce turned to

face Appellant, and said he was looking at her “mother-F__ing A__.” (RR

3:121, 3:149). According to Bruce and his wife, he neither approached nor

followed Appellant, and remained in the same place at the front of the store

during the entire encounter. (RR 3:80-81, 3:115, 3:126, 3:169-70, 3:255).

Appellant then told Bruce that she had something for his “F__ing A__,”

indicating with her finger for Bruce to wait for her. (RR 3:123, 3:175).

              Appellant’s version of the initial events leading up to the

confrontation, however, differed from Bruce’s testimony. Appellant said

2
 Vickie and Bruce Bratcher are in their fifties. (RR 3:58). Appellant is 5’ 7” and weighs
126 pounds. (RR 3:189). Bruce is six foot tall and weighs 240 pounds. (RR 3:153).


                                           4
she used no foul language, but Bruce was loud and aggressive. (RR 3:188-

89). Appellant said Bruce was “looking at [her] funny,” and she asked

herself under her breath, “Why is he looking at me?” as she walked to the

trash can. (RR 3:187, 3:188). Appellant said that instead of begging her

pardon Bruce asked her, “What—what did you say?”               (RR 3:188-89).

Appellant said that he followed this question with, “What—what’s up? I’m

a real N____; I’m a real N___.” (RR 3:190). Appellant responded with “So

what?” (RR 3:190). She later told the detective that Bruce said that because

he was jealous of her. (RR 3:257).

             Appellant claimed that Bruce then began walking aggressively

towards her, and she returned to her SUV. When Appellant reached her

vehicle she noticed a BB gun inside. (RR 3:153, 3:190-92, 3:232-33).

Appellant told the jury she believed that a friend must have left it there after

they had recently played with it in the park. (RR 3:190-92, 3:215, 3:232-33).

At that moment, feeling that her life was threatened—and thinking that the

BB gun looked like a real firearm—Appellant said she stuck the BB gun in

her pants and turned to face Bruce. (RR 3:192). Appellant said he was

within arm’s reach when she got the BB gun from her SUV. (RR 3:201).

She also said that Bruce backed away from her once she put the BB gun in

her pants (RR 3:54, 229), and that she said nothing after she retrieved the



                                       5
gun.3 (RR 3:194-96). Appellant also denied pointing or waving the pistol,

explaining that she never raised it for fear that Bruce would see that it was

only a BB gun. (RR 3:195, 3: 229).

              Appellant testified Bruce asked her, “What you gonna do, shoot

me? I’m a cop?” Bruce then ran to his vehicle saying, “Baby, they pulled a

gun out on me.” (RR 3:193). Appellant said as she then tried to enter the

convenience store to get her brother, Bruce came back to her and blocked

her path. (RR 3:193). As Appellant’s brother then exited the convenience

store, Bruce turned to face him, nose-to-nose. (RR 3:193-94, 3:217).

              In contrast, Bruce testified that Appellant went to her SUV and

pulled a pistol from inside the open driver’s side door. (RR 3:124, 3:127).

Bruce said Appellant slid the top of the pistol back to cock it, and pointed it

at him.4 Appellant then waved her arms in a circular motion and said “This

is what I have for you, mother-F___er, uh-huh.” (RR 3:133, 3:157). Bruce

asked Appellant if she was going to shoot him. (RR 3:178). At that moment,

he sensed Appellant’s brother approach him from the rear saying “yeah, uh-

3
  Detective Jernigan testified that during her statement to him in his investigation “she
advised initially that she said nothing, but eventually stated that she said, ‘Now, what’s
up?’” (RR 3:258).
4
   During direct examination, Appellant denied pointing the gun at Bruce. In response to
a question about whether she pointed the gun, she responded, “Not at all because I felt
like if I did that, he would notice it would be a BB gun.” (RR 3:195). She continued,
“No, I did not point it,” and she denied waiving it around. But during cross-examination,
Appellant admitted pointing it at him. “I pointed a gun at him ...” (RR 3:224).


                                            6
huh.” (RR 3:134-35). Bruce turned to Appellant’s brother while trying to

reduce his profile in the event Appellant fired the pistol. (RR 3:134-37,

3:160). Bruce then spoke roughly to Appellant’s brother.5 (RR 3:134-37,

60). He said that Appellant put the gun in her waistband and continued to

speak to him. At that moment, Bruce motioned for his wife to drive towards

them. (RR 3:137-39).

               Vickie Bratcher viewed the encounter from inside the couple’s

truck; however, she could not hear the initial exchange. (RR 3:77-79).

Vickie testified she saw her husband stop, turn his face and body towards

Appellant, and speak to Appellant.               (RR 3:77-79). Vickie then saw

Appellant go to her car and return to speak to Bruce again (RR 3:82), but she

did not see the gun. (RR 3:102-105). Vickie then saw Appellant’s brother

exit the store door and approach her husband so that Appellant was in front

of Bruce while Appellant’s brother was behind him. (RR 3:83-84, 3:91).

               Vickie saw Bruce raise his hand and heard him yell for her to

block the two young people in the parking lot. He also told her to call the




5
  In fact, Bruce testified that he wanted to frighten Appellant’s brother because Bruce did
not know whether he was also armed. Bruce told Appellant’s brother, “Look mother-
F___, I will suck your mother-F___ing eyeball out . . . .” (RR 3:134-37, 3:162). Bruce
also hoped to use Appellant’s brother as a shield in the event Appellant tried to shoot
him. (RR 3:136, 3:177).


                                            7
police because one of them pulled a gun on him.6 (RR 3:86). As Vickie

began to drive the Ford F-350 slowly toward Appellant’s SUV, Appellant

and her brother got into the SUV and maneuvered it abruptly out of the

convenience store parking lot and fled the scene. (RR 3:96, 3:98, 3:139).

Officers with the Pearland Police Department arrived approximately ten

minutes later. (RR 3:98).

              Although Appellant said the pistol was only a BB gun, (RR

3:55, 3:190-92, 3:232-33), Bruce described it as a semi-automatic pistol like

the Sig-Sauer P228 that his wife owns. (RR 3:58, 3:129, 3:131-32; RR 6:Sx.

7, 6:Sx. 8). Bruce said he saw Appellant cock the pistol, and that he saw the

barrel of the firearm. (RR 3:130, 3:133, 3:170, 2:175). The actual gun

Appellant used during the encounter was neither recovered during the

investigation; nor was it produced by any witness during trial, including the

Appellant.




6
  Explaining his thought process, Bratcher testified that he wanted his wife to “run into
them and put that Mercedes in the store” because “if she hit that car hard enough with
them in there” then “it would give me the upper hand ...” (RR 3:138-39, 3:163; RR 6:Sx.
1, 6:Sx. 2, 6:Sx. 5).


                                           8
                   SUMMARY OF THE ARGUMENT

             Appellant cannot establish defense counsel was ineffective for

failing to request a self-defense instruction in the jury charge, especially

since the record shows Appellant agreed with her attorney’s decision to have

the instruction taken out of the charge during the charge conference. Further,

the record is silent about the defense trial strategy and Appellant cannot

overcome the presumption of reasonably professional assistance with the

limited information available in the record. In addition, defense counsel’s

decision to exclude a self-defense instruction was not so outrageous as to

exceed the behavior of competent counsel under the circumstances. In fact,

plausible reasons for this decision are suggested in the record.

             Finally, even if the decision complained of here proved

erroneous, Appellant’s own testimony contained internal inconsistencies and

contradicted the testimony of the State’s witnesses. Forced to determine

which version of events to find more credible, the jury discounted

Appellant’s testimony in finding her guilty. In that regard, there is nothing in

the record to suggest the jury would have given any credence to a self-

defense instruction in the charge had it been included. Accordingly,

Appellant cannot show there is a reasonable probability that defense

counsel’s alleged ineffectiveness altered the outcome of the jury’s verdict.



                                       9
                                    ARGUMENT

               In a single point of error, Appellant argues his trial counsel was

ineffective for failing to request a self-defense instruction in the jury

charge.7 The record shows, however, a deliberate intent on the part of the

Appellant and her attorney that the defense be taken out of the charge.

During the charge conference, the trial court stated, “it’s my understanding

that [counsel] wants to put something on the record with his client about not

having a self-defense charge in the jury charge.” (RR 4:5). Appellant’s

counsel responded affirmatively. The Court then asked, “And you’ve

discussed that with Ms. Prior?” (RR 4:5). Counsel again confirmed, stating,

“I have discussed that with her, and we have both come to the decision that

that should be taken out.” (RR 4:5).

               The Court then directed its inquiry to Appellant, asking, “Is that

your decision, Ms. Prior, to not let the jury decide if you were acting in self-

defense?” (RR 4:5).         “Yes, sir,” she responded. (RR 4:5).             The Court

concluded the charging conference with a final instruction to “take out the

self-defense instruction ... at the request of defendant,” a direction which

was endorsed by counsel’s “yes, sir.” (RR 4:7-8).



7
 The decision to exclude a self-defense paragraph in the jury charge is the only aspect of
his performance labeled deficient on appeal.


                                           10
              In compliance with the request of Appellant and her counsel,

the self-defense instruction was not included in the final version of the jury

charge, and the Court reiterated to counsel and Appellant that the “self-

defense charge was taken out” before it charged the jury with it. (RR 4:9).

The jury deliberated for less than an hour and returned a verdict of guilty of

the offense of aggravated assault as charged in the indictment.8 (RR 4:58-

59) (CR 1:37, 1:52). Defense counsel was given permission to withdraw on

December 11, 2014, the same day that the Court entered the jury’s judgment

of conviction for the offense of aggravated assault with an affirmative

finding of a deadly weapon. (CR 1:57, 1:60-61).

              1)     Strickland Standard of Review

              To prevail on a claim of ineffective assistance of
              counsel, an appellant must meet the two-pronged
              test established by the U.S. Supreme Court in
              Strickland and adopted by Texas two years later in
              Hernandez. Appellant must show that (1)
              counsel’s representation fell below an objective
              standard of reasonableness, and (2) the deficient
              performance prejudiced the defense.         Unless
              appellant can prove both prongs, an appellate court
              must not find counsel’s representation to be
              ineffective.




8
  In part, the indictment alleged that Appellant “did then and there intentionally or
knowingly threaten Bruce Bratcher with imminent bodily injury and did use or exhibit a
deadly weapon, namely, a firearm.” (CR 1:5) (RR 3:12).


                                         11
Lopez v. State, 343 S.W.3d 137, 142 (Tex.Crim.App.2011) (reversing the

finding of deficiency when the record was silent about trial counsel’s

reasons for failing to object to hearsay testimony) (citing Strickland v.

Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and

Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986)).

             2)     Presumption of Reasonably Professional Assistance

             The first prong of the Strickland test requires Appellant to show

“by a preponderance of the evidence, that trial counsel’s performance fell

below an objective standard of reasonableness under the prevailing

professional norms.” Lopez, 343 S.W.3d at 142. This prong is tempered by

the “strong presumption that counsel’s performance fell within a wide range

of reasonably professional assistance.” Id. (quoting Robertson v. State, 187

S.W.3d 475, 483 (Tex.Crim.App.2006) and Salinas v. State, 163 S.W.3d

734, 740 (Tex.Crim.App.2005)).

             To determine whether defense counsel’s performance fell

below an objective standard of reasonably professional assistance, the

reviewing court looks at “the facts of the particular case, viewed at the time

of   the   conduct.”    Okonkwo      v.    State,   398   S.W.3d    689,    693

(Tex.Crim.App.2013) (holding that the court of appeals erred in reversing

the trial court’s denial of motion for new trial based on ineffective assistance



                                      12
of counsel) (citing Strickland, 466 U.S. at 690).                The Court reviews

counsel’s performance “by the totality of counsel’s representation and not by

isolated acts or omissions.” Solis v. State, 792 S.W.2d 95, 98

(Tex.Crim.App.1990) (en banc) (citing Butler v. State, 716 S.W.2d 48, 54

(Tex.Crim.App.1986)).

              To meet her burden on direct appeal, Appellant must show that

the record reveals that “no reasonable trial strategy could justify trial

counsel’s acts or omissions.” Lopez, 343 S.W.3d at 143. When the record on

direct appeal is silent about trial counsel’s strategy, then the record generally

does not “adequately reflect the failings of trial counsel’ for an appellate

court ‘to fairly evaluate the merits of such a serious allegation.”9 Id. at 143;

see also Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994) (en

banc) (citing Delrio v. State, 840 S.W.2d 443, 447 (Tex.Crim.App.1992) (en

banc) (per curium). “Under normal circumstances, the record on direct

appeal will not be sufficient to show that counsel’s representation was so

9
  Claims of ineffective assistance of counsel have been resolved on direct appeal when
“counsel’s ineffectiveness is apparent from the record,” thus a well-developed record
with a single error can overcome the presumption of reasonably professional assistance.
See Lopez, 343 S.W.3d at 143-44; Thompson v. State, 9 S.W. 3d 808, 813, 814 n.6
(Tex.Crim.App.1999)). When counsel fails to pursue the defendant’s only defense, these
claims have succeeded on direct appeal. Vasquez v State, 830 S.W.2d 948, 951
(Tex.Crim.App.1992) (en banc) (per curium); Villa v. State, 370 S.W.3d 787, 796-97
(Tex.App.—Eastland 2012, aff’d, 417 S.W.3d 455 (Tex.Crim.App.2013)) (failure to
request medical care defense deprived defendant of his only defense); Storr v. State, 126
S.W.3d 647, 653 (Tex.App.—Houston [14th Dist.] 2004, pet. ref’d) (counsel failed to
request mitigation instruction for voluntary release of kidnapping victim).


                                           13
deficient and so lacking in tactical or strategic decision making as to

overcome the presumption that counsel’s conduct was reasonable and

professional.”10 Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).

               Appellant bears the burden of overcoming this presumption by

affirmatively demonstrating that counsel’s performance was deficient.11

Bone, 77 S.W.3d at 835; Thompson, 9 S.W.3d at 813-14. The “court must

not engage in retrospective speculation.” Lopez, 343 S.W.3d at 142 (citing

Thompson, 9 S.W.3d at 813.                Because counsel should be given an

opportunity to explain his actions, unless “the challenged conduct was so

outrageous that no competent attorney would have engaged in it,” trial

counsel’s performance when the record is silent will not be found deficient

on direct appeal.12 Goodspeed v. State, 187 S.W.3d 390, 392


10
  When the record is lacking on direct appeal, “claims of ineffective assistance of
counsel rejected due to lack of adequate information may be reconsidered on an
application for a writ of habeas corpus.” Lopez, 343 S.W.3d at 143.
11
   Trial counsel “should ordinarily be accorded an opportunity to explain her actions
before being condemned as unprofessional and incompetent.” Bone v. State, 77 S.W.3d
828, 836 (Tex.Crim.App.2002).
12
   On direct appeal, a hearing for a motion for new trial can supply “additional
information about trial counsel’s reasons.” Lopez, 343 S.W.3d at 144. Appellant moved
for a new trial, alleging ineffective assistance of counsel. (CR 1:62-66, 1:69, 1:83). To be
entitled to a hearing, Appellant “must at least allege facts that show reasonable grounds
to believe that [Appellant] could prevail under both prongs of the test for ineffective
assistance of counsel under Strickland.” Smith v. State, 286 S.W.3d 333, 338
(Tex.Crim.App.2009); Chapa v. State, 407 S.W.3d 428, 431 (Tex.App.—Houston [14th
Dist.] 2013, no pet.). Because Appellant’s motion alleged actions related to only the first
prong, it does not appear that Appellant was entitled to a hearing. C.f. Hobbs v. State, 298


                                            14
(Tex.Crim.App.2005); see also Pouncy v. State, No. 14-12-00470-CR, 2013

WL 3580638 at *2 (Tex.App.—Houston [14th Dist.], July 11, 2013, pet.

ref’d) (mem.opinion) (not designated for publication). Here, the record is

silent about defense counsel’s strategy. Based on a silent record, Appellant

cannot affirmatively demonstrate that counsel’s conduct at trial was so

outrageous that no other competent attorney would have done likewise, and

thus she cannot satisfy the requirements for the first prong of Strickland.

             3)     Trial Strategy

             Appellant claims that her trial counsel failed to perform in a

reasonably professional manner because he declined to include a self-

defense instruction in the jury charge. However, Appellant and her trial

counsel each advised the court that they did not wish to submit an instruction

on self-defense to the jury. Accordingly, the issue on appeal is whether

counsel should have requested the instruction for self-defense even though

Appellant expressly told the court that she did not want it. The guilty verdict

in this case, standing alone, does not establish ineffective assistance of

counsel. Instead, Appellant’s conviction merely shows that the jury rejected

her defensive theory. See Guerrero v. State, No. 14-13-00880-CR, 2014

WL 3955157 at *2 (Tex.App.—Houston [14th Dist.], Aug.14, 2014, pet.

S.W.3d 193, 199 (Tex.Crim.App.2009). Although a hearing was scheduled (CR 1:67) the
record does not show that it took place.


                                        15
ref’d) (mem. opinion) (not designated for publication) (citing Saxton v.

State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991)).

               In this regard, the failure of the particular strategy employed

during trial does not entitle an appellant to retry the case on appeal with an

alternative trial strategy. Tolbert v. State, 306 S.W.3d 776, 780 n. 6, 782

n.11 (Tex.Crim.App.2010); Posey v. State, 966 S.W.2d 57, 61, 63

(Tex.Crim.App.1998). Rather, Appellant must prove by a preponderance of

the evidence there was no plausible professional reason for trial counsel’s

rejection of the self-defense instruction. Bone v. State, 77 S.W.3d 828, 836

(Tex.Crim.App.2002); Williams v. State, No. 14-95-01098-CR, 1998 WL

78595 at *4 (Tex.App.—Houston [14th Dist.], Feb. 26, 1998, no pet.) (not

designated for publication). Appellant in this case cannot meet this

requirement for two reasons.

               First, Appellant herself asked the court to leave the self-defense

instruction out of the jury charge.13 Second, plausible professional reasons

for counsel to decline the court’s invitation to use the self-defense


13
   Appellant complains on appeal that the “purpose of having counsel during trial” is to
“make the legal decisions.” (Ant. Br. 10). Appellant played an active role throughout her
defense. During arraignment in early November, her initial plea of guilty was withdrawn
by the Court after she failed to accept “responsibility for guilt.” (CR 1:80) (RR 2:11). On
November 20, the Court granted her motion to substitute her court-appointed counsel
with retained counsel. (CR 1:7-9). On the first day of trial, Appellant rejected the same
plea offer a second time after defense counsel obtained it from the State and relayed it to
her. (RR 2:11-14).


                                            16
instruction are visible in multiple aspects of defense counsel’s representation

during trial. These plausible professional reasons for rejecting a self-defense

instruction can be seen in the two-part theory of defense presented by

counsel during the guilt-innocence phase of trial.

             4)    Theory of Defense: Attack on Credibility

             In Appellant’s opening argument, defense counsel told the jury

that no witnesses other than Bruce Bratcher would say that Appellant

pointed a gun at him because “it just flat out did not happen.” (RR 3:20).

Throughout trial he highlighted the lack of corroborating witnesses and

video, the behavior of the complaining witness, and the nature of the gun.

He revisited the same topics during his closing argument. (RR 4:30-40).

Defense counsel also noted these facets of his defensive theory at a bench

conference during the testimony of the detective as he explained, “What I

was merely doing was trying to lay the groundwork, trying to set this thing

for the jury this is a busy area.” (RR 3:48). Defense counsel also clarified

that he was emphasizing no one else at the store called 9-1-1 or “came

forward as a witness and said, ‘I saw a gun.’” (RR 3:51).

             Defense counsel also elicited from the detective that the

“interaction” between Appellant and Bruce took place at 3:20 p.m. at a “very

busy” gas station parking lot (RR 3:33, 3:34). Counsel had the detective



                                      17
explain that the store video showed other patrons calmly entering and exiting

the convenience store while Bruce stood at the door addressing the

Appellant. (RR 3:38-39). Counsel obtained similar testimony about the

presence of others in the parking lot from Vickie Bratcher (RR 3:99) as well

as Bruce. (RR 3:154-55). Defense counsel had the detective explain that the

security video showed a store employee walk to the store window and return

calmly to the register “like nothing happened.” (RR 3:39). Counsel drew

from this testimony for his closing argument:

                 Let’s talk about the evidence in this case. The
                 evidence that does exist but was never shown to
                 you. . . . There is video surveillance14 taken from
                 the store on that day. Did they ever show it to
                 you? No. That’s because you would have seen
                 numerous people going in and out of this very
                 same front door that this whole incident happened
                 in front of.

(RR 4:34).


14
     Defense counsel addressed the video in his motion in limine:

                 Any statement ... that the video in this case corroborates
                 Mr. Bratcher’s story is speculation. There is no video of
                 the interaction between Mr. Bratcher and Josha Prior and
                 any statement that the video corroborates Mr. Bratcher’s
                 story would be speculative, prejudicial and irrelevant.

(CR 1:17). Other facts included in the motion were references to Appellant’s deferred
adjudication status in Harris County for another offense that occurred after this offense,
shell casings located in her vehicle, her invocation of the right to remain silent during her
second interview with Pearland Police Department, and any reference to Appellant’s
brother taking items from the store without paying for them. (CR 1:17-19). The court
granted the motion. (CR 1:20) (RR 2:8).


                                             18
             Defense counsel also argued Bruce Bratcher’s behavior as

aggressive and inconsistent with that of a person who had been in fear of his

life. On cross-examination, Bruce conceded that he was angry. (RR 3:169).

Counsel focused on Bruce’s anger during closing argument:

             Mr. Bratcher had an opportunity to avoid a
             confrontation that day. Okay. He could have just
             walked through the parking lot and into the store,
             but he didn’t. He got all the way to the front door,
             turned around to show that he wasn’t afraid of
             anybody. ... He didn’t just say “what” to Ms. Prior
             from a distance. Okay. He aggressively moved
             towards her ... A large man against a 5’7 female.

(RR 4:31).

             Counsel had the detective describe how the video showed

Bruce calmly go into the store and stand in line immediately after the

conclusion of his “interaction” with Appellant (RR 3:41-43).          Also, in

response to cross-examination, Bruce acknowledged that he completed the

trivial task of purchasing candy after his dramatic interaction with Appellant.

(RR 3:167-68, 3:179-80). Bruce acknowledged for defense counsel that he

said nothing to the clerks and did not seek out other patrons at the store as

potential witnesses to Appellant’s threat on his life. (RR 3:180).

             Defense counsel also drew testimony from Vickie Bratcher that

she failed to see the gun—even though she is a trained peace officer and was

in a good location to see it. (RR 3:102-105). Counsel responded to the


                                      19
introduction of State’s Exhibits No. 7 and 8 (photographs of a semi-

automatic pistol) for demonstrative purposes by interjecting, “I don’t mean

to interrupt but I just want to make clear this was not the weapon that was

allegedly used that day.” (RR 3:132). Instead, Appellant and Appellant’s

counsel presented the theory that the gun was a BB gun—a toy that “many

of us . . . give to our children as a present.” (RR 4:31).

             5)     Theory of Defense: Not a Deadly Weapon

             Accepting the court’s invitation to include the self-defense

instruction would have required Appellant to admit to elements of the

offense that were in dispute. The indictment alleged that Appellant “did use

or exhibit a deadly weapon, namely, a firearm” to “intentionally or

knowingly threaten Bruce Bratcher with imminent bodily injury.” (CR 1:5;

RR 3:12). Referring to the elements of the offense during voir dire, trial

counsel spoke of “proving whether or not the weapon used was a firearm.”

(RR 2:144). Appellant testified she used a BB gun (RR 3:192, 3:195, 3:197-

98, 3:210-15, 3:226, 3:229, 3:232, 3:237, 3:240-41, 3:251).       She also

explained, “A BB gun is a toy.” (RR 3:232). Appellant did not, however,

admit that she used or exhibited a firearm.

             On the other hand, the State’s evidence showed that the gun

was a bona fide firearm.       Bruce testified that Appellant used a semi-



                                       20
automatic pistol. (RR 3:129). He described its cocking mechanism, said that

he saw the front of its barrel, and explained Appellant’s gun was similar to

the pistol that his wife owned. (RR 3:125, 3:130). He reiterated, “It looked

just like my wife’s firearm.” (RR 3:129). Bruce also said getting the pistol

away from Appellant was one of his motivations when he asked his wife to

prevent Appellant and her brother from leaving the scene. (RR 3:162-63).

              The State did not attempt to show that Appellant’s BB gun was

used in manner that rendered it a deadly weapon. To prove that a BB gun is

a deadly weapon,15 the State need only have shown “that the weapon used

was capable of causing serious bodily injury or death in its use or intended

use.” Adame v. State, 69 S.W.3d 581, 582 (Tex.Crim.App.2002). Here, the

record is sufficient to show that the jury could have also convicted Appellant

if the State had argued the purported BB gun was a deadly weapon.

              “In considering whether an object is a deadly weapon, the jury

may consider all of the facts of the case, including the words spoken by the

accused. Jones v. State, No. 14-10-00767-CR, 2011 WL 3332156 at *4

(Tex.App.—Houston [14th Dist.], Aug. 4, 2011, pet. ref’d) (mem.opinion)

(not designated for publication) (citing Blaine v. State, 647 S.W.2d 293, 294


15
   The guilt-innocence jury charge defined a deadly weapon as a “firearm or anything
manifestly designed, made or adapted for the purpose of inflicting death or serious bodily
injury.” (RR 4:10); see also TEX. PENAL CODE ANN. § 1.07(a)(17) (Vernon 2011).


                                           21
(Tex.Crim.App.1983)). During cross-examination, Appellant strayed from

her previous testimony about putting the gun directly into her pants. “I

pointed a gun at him, and that’s when I started to walk towards the store to

get my brother out.” (RR 3:224).

              A jury can rationally infer that a BB gun pointed at another

person’s face “was capable of causing serious bodily injury or death in its

use or intended use.” Adame, 69 S.W.3d at 582 (BB gun pointed at a

convenience store clerk during a robbery upheld as a deadly weapon). Bruce

and Appellant were either an arm’s-length or a car-length apart, depending

on whose story the jury believed. Appellant also testified a BB gun is

capable of shooting out an eye.16 (RR 3:212, 214).

              Based on the evidence presented during trial, if the jury

believed that Appellant had only a BB gun and she never pointed it at Bruce,

then the jury could have acquitted her. Counsel for Appellant campaigned

for this interpretation of the evidence during his closing argument:

              This was a BB gun, just as Ms. Prior testified, a
              BB gun. Not a 9-millimeter or anything, not a gun
              that’s going to hurt somebody, a BB gun.




16
   But see Mosley v. State, 545 S.W.2d 144, 145 (Tex.Crim.App.1976) (A BB gun that
was unloaded, never pointed at the victim’s face, and never used to “bludgeon” or
threaten to bludgeon the victim, however, may not be a deadly weapon because it could
cause neither death nor serious bodily injury.)


                                         22
             I want to read the definition of a deadly weapon to
             you. It’s in the charge that you’re all going to get.

             A deadly weapon is defined as a firearm or
             anything manifestly designed, made or adapted for
             the purpose of inflicting death or serious bodily
             injury.

             Do you think people are going to buy a BB gun for
             their children if they are going to go out and kill
             somebody with it or hurt somebody with it? No,
             it’s a BB gun. It’s not a deadly weapon.

(RR 3:37).

             Thus, counsel had at least two plausible professional reasons

for declining to use the self-defense jury instruction. First, Appellant risked

allowing the purported BB gun to be presented to the jury as a deadly

weapon instead of a toy. Second, Appellant was not required to confess that

she used or employed a deadly weapon during her argument with Bruce as

long as she did not claim the affirmative defense of self-defense.

             To avail herself of the avoidance benefit of the defensive theory

of self-defense, Appellant would have to confess to the elements of the

offense of aggravated assault with a deadly weapon.           In light of this

requirement, trial counsel had a plausible professional reason to pursue an

alternative theory of defense. See Okonkwo, 398 S.W.3d at 702. Using the

self-defense instruction would have reduced the State’s burden, an

unreasonable theory of defense given the inconsistencies within Appellant’s


                                      23
testimony. A theory of defense that does not reduce the State’s burden of

proving each element of the offense is not unreasonable. Id. at 696.

               6)     Risks of Self-Defense Instruction

               The law on self-defense is governed by the doctrine of

confession and avoidance. Juarez v. State, 308 S.W.3d 398, 401-402

(Crim.App.Tex.2010); Fregia v. State, No. 01-13-00312-CR, 2014 WL

527535 at *5 (Tex.App.—Houston [14th Dist.], Feb. 6, 2014, pet. ref’d)

(mem.opinion) (not designated for publication). To use a defensive theory

that falls within the doctrine of confession and avoidance, a defendant must

admit to all elements of the offense and produce evidence to support the

defensive theory. Fregia, 2014 WL 527535 at *5 (citing Juarez, 308 S.W.3d

at 399 and Ex parte Nailor, 149 S.W.3d 125, 132-34 (Tex.Crim.App.2004)).

               Appellant’s admission that she pointed the gun at Bruce

combined with her testimony that her BB gun could have destroyed his

eye—a concession that her BB gun was adaptable to inflicting serious bodily

injury and hence a deadly weapon—taken in conjunction with her other

testimony during trial constitute an admission of the elements of the

offense.17    “An instruction on a confession-and-avoidance defense ... is


17
   Even when “the evidence supporting the defensive theory is contradicted,” the
defendant is still “entitled” to an instruction on the affirmative defense. Thomas v. State,
678 S.W.2d 82, 85 (Tex.Crim.App.1984) (en banc). “[T]he trial court must instruct the


                                            24
appropriate only when ‘the defendant’s defensive evidence essentially

admits to every element of the offense, including the culpable mental state,

but interposes the justification to excuse the otherwise criminal conduct.’”

Cornet v. State, 417 S.W.3d 446, 451 (Tex.Crim.App.2013).

               Based on the portion of her testimony where she testified that

she intended to use force, she actually used force, and she used it because

she “reasonably believed it was necessary to prevent” Bruce’s use of

unlawful force, Appellant was entitled to a self-defense instruction as a

matter of law. Ex parte Nailor, 149 S.W.3d at 132. Appellant’s version of

Bruce Bratcher’s aggression could support a defensive theory of self-

defense, regardless of contradictory evidence on the record. “[A] defense

can be raised even when its supporting evidence has been impeached or

contradicted.”18 Dugar v. State, 464 S.W.3d 811, 818 (Tex.App.—Houston

[14th Dist.] 2015, pet. ref’d) (reversing trial court for refusing a self-defense

instruction when appellant’s sole defensive theory was self-defense).



jury on inconsistent defensive theories when those theories appear to directly contradict
one another.” Booth v. State, 679 S.W.2d 498, 499 (Tex.Crim.App.1984) (en banc). If
raised during trial and requested by counsel, the trial court must instruct the jury on the
defensive theory requested. Id. “[I]t makes no difference whether such evidence ...
might be strong, weak, unimpeached, or contradicted.” Id. at 500.
18
   The availability of the defense does not mean the facts that support it are necessarily
credible. “Because appellant gave more than one story of the events, his claim of self-
defense may not strike all as especially strong or convincing.” Dugar , 2015 WL 1632690
at *5.


                                            25
              However, accepting the court’s offer to include the self-defense

instruction in the jury charge would have been a risky approach for the

Appellant and her counsel. First, counsel would have had to act contrary to

Appellant’s expressed wishes. Next, invoking the justification of self-

defense would have required Appellant to highlight her admission during

cross-examination to the elements of the offense while discounting her other

efforts to negate the deadly weapon element.

              It would have highlighted the testimony about Appellant

retrieving the gun and walking toward Bruce with it, rendering her a less

sympathetic party for the jury than the person described as a 5’ 7” young

lady terrified by an angry, jealous, six-foot-tall, fifty-six-year-old. Defense

counsel incorporated an implied plea for sympathy during closing arguments

when he criticized Bruce’s inability to determine Appellant’s gender.19 (RR

4:38). Appellant did the same when she announced during her testimony, “I

didn’t start this incident,” and she continued, “There are bullies in this

world, and that man is a bully.” (RR 3:251).


19
    In closing argument, counsel for Appellant condemned the State’s and Bruce’s
description of Appellant’s appearance. “She has every right to dress however she wants
to, live her life however she wants to; and I’m offended that anyone would say that she
can’t do otherwise.” (RR 4:31). He resumed, “Could it be because he automatically
assumed this person was a thug just because the way she was dressed?” (RR 4:37). He
revisited the accusation again. “Discrimination is the same whether it’s based on race or
whether it’s based on not liking someone just because of the way they dress or just
because of what lifestyle they have.” (RR 4:38).


                                           26
                Also, a self-defense instruction would have enabled the State to

request jury instructions about violation of Texas law on firearms and verbal

provocation, both of which give the jury the opportunity to neutralize the

justification for the use of force sought by a self-defense instruction. The

evidence at trial showed the Appellant retrieved the gun from her SUV while

standing in the parking lot and confronting Bruce. The use of force against

another is not justified “if the actor sought an explanation from or discussion

with the other person concerning the actor’s differences with the other

person while the actor” was carrying a weapon in violation of Section 46.02

of the Texas Penal Code. TEX. PENAL CODE ANN. § 9.31(b)(5)(A) (Vernon

2011).
                                  20
                Section 46.02          prohibits one from carrying a handgun “on or

about his or her person” when one is not on one’s own premises or when one

is not “inside of or directly en route to a motor vehicle” under one’s control.

TEX. PENAL CODE § 46.02 (Vernon 2011). Appellant’s actions met none of

the exceptions. The use of force in self-defense is not justified for a person

who is carrying a weapon in violation of Section 46.02 when that person

“seeks an explanation from, or discussion with, another person concerning

the actor’s differences with that other person.” Weatherall v. State, No. 06-


20
     Acts 2011, 82 Leg., ch. 679 (H.B. 25), § eff. Sept. 1, 2011.


                                             27
09-00095-CR, 2009 WL 3349039 at * 2 (Tex.App.—Texarkana, Oct. 20,

2009, no pet.) (mem.opinion) (not designated for publication). Thus, using

the self-defense instruction would have obligated the Appellant to achieve

the impossible by explaining how she could have been justified in using

force when she returned from her SUV with the gun to confront Bruce.

             Use of an instruction on the justification of self-defense also

would have placed Appellant in another difficult strategic position because

“the use of force against another is not justified ... in response to verbal

provocation alone.” TEX. PENAL CODE § 9.31(b)(1).               If Appellant’s

testimony was true, then Bruce Bratcher would have walked toward her.

Bratcher testified that he did not, and if the jury found him more credible,

then the only force from him that Appellant would have to defend herself

against was an implied threat based on his larger physical size. At the time

Appellant retrieved the gun from her vehicle, their “interaction” was strictly

verbal. Although she testified that his appearance frightened her and that he

walked toward her, she did not describe any specific acts of force she

anticipated from him.

             The State seized upon the difficulties of this justification during

closing arguments:




                                      28
               There is no self-defense here. Just get that out of
               your mind. It’s not in here. It’s not justification to
               pull out a gun based on words alone.

               Also, you can’t provoke a situation and then start
               the whole dadgum thing and then turn around and
               say, I’m the victim. ... You don’t get to start
               trouble and then scream, I’m the victim, when
               things don’t go the way you want them to. It
               doesn’t work that way.

(RR 4:18-19).

               The qualification on the use of force in self-defense would have

highlighted Appellant’s role in a “verbal provocation” that she ended by use

of a gun. If the jury believed that Appellant initiated the verbal argument,

then she could not invoke the statutory presumption of reasonableness for

her use of force against Bruce because she provoked him.21 See TEX. PENAL

CODE § 9.31(a)(2). The State would also be in a position to seek a contrary

jury instruction on the limitation of self-defense by provoking the difficulty.

See 8 Tex. Prac. Criminal Forms and Trial Manual § 106.16 (11th ed.).

               Appellant is unable to show that trial counsel relied on self-

defense as a theory of defense.

               Because appellant has not shown that his trial
               counsel relied on the statutory law of self-defense,
               he has failed to establish, by a preponderance of

21
  Appellant was reluctant to characterize her use of the gun as an intentional threat, and
she transferred the interpretation to the complaining witness. “Mr. Bratcher took the BB
gun as a threat.” (RR 3:237). She had previously denied threatening his life. (RR 3:195).


                                            29
               the evidence, that his trial counsel was deficient
               either in failing to request an instruction on the law
               of self-defense or, conversely, in relying upon the
               defensive position that appellant’s testimony
               raised.

Ex parte Nailor, 149 S.W.3d at 134. Like the appellant in Nailor, Appellant

also denied an element of the offense. An indicator of Appellant’s outlook

on the facts and the offense charged comes from her response to a question

on cross-examination when she said that she did not contact police about

Bruce Bratcher because she “thought it would be over because nobody

touched nobody.” (RR 3:167).

               Counsel’s pursuit of a two-part defensive theory at trial was a

strategy that reflects his reasonable and professional performance in the

defense of Appellant. His trial strategy was not “so outrageous that no

competent attorney would have engaged in it.” Goodspeed v. State, 187

S.W.3d 390, 392 (Tex.Crim.App.2005). For Appellant, self-defense was not

the only defense available to her. From voir dire to closing argument on

guilt-innocence, counsel’s strategy focused on the credibility of Bruce

Bratcher and the nature of the gun used by Appellant.22




22
   “‘[A]n act or omission that is unprofessional in one case may be sound or even brilliant
in another.’” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex.Crim.App.2013) (quoting Ex
parte Chandler, 182 S.W.3d 350, 354 (Tex.Crim.App.2005) (alteration in original)).



                                            30
               Based on the foregoing, a reasonable trial strategy may be

inferred given the facts in the record. Appellant’s trial counsel did not fall

below an objective standard of reasonableness because he failed to include

every potential defensive theory in his trial strategy. On the contrary, a

curated trial strategy is a hallmark of professional assistance. “[T]he lawyer

and the client could decide not to request the defensive issue and risk losing

their credibility with the jury because the evidence raising the defense is so

unworthy of belief.” Posey, 966 S.W.2d at 61, 63. Appellant is unable to

satisfy the first prong of Strickland.23

               7)     No Prejudice

               Even if Appellant could overcome her burden and show

counsel’s performance was objectively unreasonable, she cannot show

prejudice occurred when defense counsel abided by her wishes and rejected

the court’s invitation to include an instruction on self-defense in the jury

charge on guilt-innocence. Absent a showing of prejudice, Appellant is

unable to satisfy the second prong of Strickland.

               Prejudice exists when “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

23
  “An attorney must apprise a case and do the best he can with the facts, and the fact that
other counsel might have tried the case differently does not show inadequate
representation.” Benoit v. State, 561 S.W.2d 810, 818 (Tex.Crim.App.1977), overruled
on other grounds by Harrison v. State, 187 S.W.3d 429, 433 (Tex.Crim.App.2005).


                                            31
have been different. Solis, 792 S.W.2d at 98-99; see also Bone, 77 S.W.3d at

833; Ex parte Lane, 303 S.W.3d 702, 707 (Tex.Crim.App.2009); Lopez, 343

S.W.3d at 142 (citing Strickland, 466 U.S. at 687). Assuming arguendo that

counsel’s performance was unprofessional, a “‘reasonable probability’ is one

sufficient to undermine confidence in the outcome.” Bone, 77 S.W.3d at 833

(quoting Strickland, supra, and Mitchell v. State, 68 S.W.3d 640, 642

(Tex.Crim.App.2002)). The jury’s verdict of guilty implies that the jury

found the testimony of Bruce and Vickie Bratcher more credible than

Appellant’s version of events.

             Inclusion of a self-defense instruction would have compounded

the contrast between Appellant’s story and the testimony of the other

witnesses, and it would serve as a vehicle for the State to reinforce the

inconsistencies within Appellant’s own testimony. The outcome of the case

relied on the jury’s assessment of credibility—no gun was produced,

Appellant’s brother did not testify, no video was submitted, and only three

witnesses testified for the State. The addition of a self-defense instruction

would not undermine the outcome of the case. Actually, the use of a self-

defense instruction would reinforce the inconsistencies within Appellant’s

testimony and its contradictions with the testimony of the other witnesses.




                                     32
             Prejudice is presumed when counsel completely fails to subject

the State’s case to “meaningful adversarial testing” to such an extent that

appellant is constructively denied assistance of counsel. Cannon v. State,

252 S.W.3d 342, 349 (Tex.Crim.App.2008). The record does not indicate

that Appellant was de facto unrepresented before or during trial. In fact,

defense counsel submitted a successful motion in limine (CR 1:17-20); (RR

2:8), and he filed a Motion for Probation (CR 1:15). His voir dire

incorporated themes from the theory of the defense that he presented during

witness testimony (RR 2:131-34) and he vigorously cross-examined the

State’s witnesses.

             Counsel’s efforts in defending Appellant were indicative of a

familiarity with critical issues of fact and law as well as preparation for trial.

See Solis, 792 S.W.2d at 100 (“Viewing counsel’s representation as a whole,

and assessing the cumulative effect of all of the trial counsel’s errors, we do

not find that but for these errors the result of the trial would have been any

different.”). Closing argument of counsel may also be considered in

determining whether appellant has been prejudiced. See Okonkwo v. State,

398 S.W.3d 689, 696 n.7 (Tex.Crim.App.2013). During closing, defense

counsel reinforced the themes of Appellant’s defensive theories, and he

attempted to mitigate evidence that was harmful to those theories. Counsel



                                       33
cannot be presumed to have failed Appellant based on this conduct.

Musquiz v. State, No. 14-13-01008-CR, 2015 WL 457737 at *4 (Tex.App.—

Houston [14th Dist.], Feb. 3, 2015, no pet.) (mem.opinion) (not designated

for publication).




                                   34
                              CONCLUSION

             Appellant is unable to prove her attorney’s performance was

ineffective. Defense counsel complied with Appellant’s decision to exclude

a self-defense instruction from the jury charge. While the record is silent

about the strategy behind this decision, it contains evidence of plausible

reasons for leaving a self-defense theory out of the charge. Further, even if

counsel were to have requested a jury instruction on self-defense, Appellant

cannot demonstrate the outcome of trial would have been any different.

Here, the guilty verdict resulted from the jury’s assessment of credibility of

the witnesses. The inclusion of the self-defense charge would have only

focused the jury’s attention on the inconsistencies within Appellant’s

testimony, which, in light of the verdict, the jury did not believe. Therefore,

Appellant’s single issue claiming ineffectiveness of counsel should be

overruled.




                                      35
                              PRAYER

            For these reasons, the State asks the Court of Appeals to

overrule the Appellant’s issue on appeal and affirm the trial court’s

judgment.


                           Respectfully submitted,


                           /s/ Jeri Yenne
                           _____________________________________
                           Jeri Yenne
                           State Bar No. 04240950
                           Brazoria County Criminal District Attorney


                           /s/ Cynthia D. Ericson
                           _____________________________________
                           Cynthia D. Ericson
                           State Bar No. 24053188
                           Assistant Criminal District Attorney


                           111 East Locust St., Suite 408A
                           Angleton, Texas 77515
                           (979) 864-1233
                           (979) 864-1712 Fax
                           cynthiae@brazoria-county.com

                           ATTORNEY FOR THE APPELLEE,
                           THE STATE OF TEXAS




                                 36
                       CERTIFICATE OF SERVICE

             As required by Texas Rule of Appellate Procedure 6.3 and

9.5(b), (d), (e), I certify that I have served this document on all other parties,

which are listed below, on October 1, 2015:

      Perry R. Stevens                By:
      State Bar No. 00797496              ☐          personal delivery
      603 East Mulberry Street
      Angleton, Texas 77515               ☐          mail
      (979) 848-1111                      ☐          commercial delivery service
      (979) 849-9398 Fax
                                                    electronic delivery / fax
      pstevenslawoffice@sbcglobal.net

      Attorney for the Appellant


                                         /s/ Cynthia D. Ericson
                                         _____________________________
                                         Cynthia D. Ericson
                                         Assistant Criminal District Attorney




                                       37
             CERTIFICATE OF RULE 9.4 COMPLIANCE

            I certify that this electronically filed document complies with

Rule 9.4 of the Texas Rules of Appellate Procedure and that the number of

words is: 7,533.


                                     /s/ Cynthia D. Ericson
                                     _____________________________
                                     Cynthia D. Ericson
                                     Assistant Criminal District Attorney




                                    38
                  APPENDIX

No documents are attached.




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