                                                                                                          ACCEPTED
                                                                                                      05-16-01321-CR
                                                                                            FIFTH COURT OF APPEALS
                                                                                                      DALLAS, TEXAS
                                                                                                   1/30/2018 12:47 PM
                                                                                                           LISA MATZ




                                                                                                           5th Court of Appeals
                                                                                                               CLERK
                                  The State requests oral argument only if counsel for Appellant argues.




                                                                                                            FILED: 01/31/2018
                                                                                                             Lisa Matz, Clerk
                                                                                                                 8:29:12
                               No. 05-16-01321-CR
                                                                                 RECEIVED IN
                                                                           5th COURT OF APPEALS
                   IN THE COURT OF APPEALS                                      DALLAS, TEXAS
                                                                           1/30/2018 12:47:49 PM
                FOR THE FIFTH DISTRICT OF TEXAS                                   LISA MATZ
                                                                                    Clerk
                           AT DALLAS


                         MAURICE LAMAR PIPER,
                               APPELLANT

                                              v.

                             THE STATE OF TEXAS,
                                    APPELLEE

                     On appeal from the 283rd Judicial District Court of
                                    Dallas County, Texas
                                 in Cause No. F15-75812-T


                                  STATE’S BRIEF

                                               Counsel of Record:
Faith Johnson                                  Marisa Elmore
Criminal District Attorney                     Assistant District Attorney
Dallas County, Texas                           State Bar No. 24037304
                                               Frank Crowley Courts Building
                                               133 N. Riverfront Boulevard, LB-19
                                               Dallas, Texas 75207-4399
                                               (214) 653-3625
                                               (214) 653-3643 fax
                                               marisa.elmore@dallascounty.org

                              Attorneys for the State of Texas
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES ...................................................................... iii

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

STATEMENT OF FACTS .......................................................................... 1

SUMMARY OF ARGUMENT ................................................................. 10

ARGUMENT ........................................................................................... 11

        RESPONSE TO APPELLANT’S FIRST AND SECOND
        POINTS OF ERROR: The record does not support Appellant’s
        claims that trial counsel provided ineffective assistance at trial,
        or that he was prejudiced by any deficient performance. ......... 11

        RESPONSE TO APPELLANT’S THIRD POINT OF ERROR:
        The Court should modify the judgment to correctly reflect that
        the jury convicted Appellant of manslaughter. ........................ 31

PRAYER .................................................................................................. 32

CERTIFICATE OF WORD COMPLIANCE ............................................ 32

CERTIFICATE OF SERVICE .................................................................. 33




                                                     ii
                                INDEX OF AUTHORITIES

Cases

Andrews v. State,
  159 S.W.3d 98 (Tex. Crim. App. 2005) .................................................... 26

Asberry v. State,
  813 S.W.2d 526 (Tex. App.—Dallas 1991, pet. ref’d) .......................... 31, 32

Bigby v. State,
  892 S.W.3d 864 (Tex. Crim. App. 1994) ............................................. 25, 29

Bigley v. State,
  865 S.W.2d 26 (Tex. Crim. App. 1993) ............................................... 31, 32

Bone v. State,
  77 S.W.3d 828 (Tex. Crim. App. 2002) ......................................... 16, 17, 18

Brown v. State,
  89 S.W.3d 630 (Tex. Crim. App. 2002) .................................................... 18

Brown v. State,
  955 S.W.2d 276 (Tex. Crim. App. 1997) .................................................. 19

Burruss v. State,
  20 S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref’d) .............. 17, 27

Carter v. State,
  717 S.W.2d 60 (Tex. Crim. App. 1986) .................................................... 28

Dannhaus v. State,
 928 S.W.2d 81 (Tex. App.—Houston [14th Dist.]
 1996, pet. ref’d)....................................................................... 20, 21, 25, 26

Ex parte Martinez,
  330 S.W.3d 891 (Tex. Crim. App. 2011) ............................................. 18, 27

George v. State,
  681 S.W.2d 43 (Tex. Crim. App. 1984) .................................................... 19

                                                  iii
Hathorn v. State,
 848 S.W.2d 101 (Tex. Crim. App. 1992) .................................................. 26

Jackson v. State,
  877 S.W.2d 768 (Tex. Crim. App. 1994) ....................................... 16, 21, 22

Johnson v. State,
  959 S.W.2d 230 (Tex. App.—Dallas 1997, no pet.) .................................. 27

Lewis v. State,
  529 S.W.2d 550 (Tex. Crim. App. 1975) .................................................. 20

Lopez v. State,
  343 S.W.3d 137 (Tex. Crim. App. 2011) ........................................... passim

McFarland v. State,
 928 S.W.2d 482 (Tex. Crim. App. 1996) .................................................. 16

Menefield v. State,
 363 S.W.3d 591 (Tex. Crim. App. 2012) ....................................... 16, 17, 22

Mosley v. State,
 983 S.W.2d 249 (Tex. Crim. App. 1998) .................................................. 16

Okonkwo v. State,
  398 S.W.3d 689 (Tex. Crim. App. 2013) ............................................. 16, 23

Pouncy v. State,
  No. 14-12-00470-CR, 2013 WL 3580638 (Tex. App.—Houston
  [14th Dist.] 2013, pet. ref’d) (mem. op., not designated for publication)..... 24

Rogers v. State,
  105 S.W.3d 630 (Tex. Crim. App. 2003) .................................................. 18

Stepherson v. State,
  523 S.W.3d 759 (Tex. App.—Houston [1st Dist.] 2017, no pet.). .............. 20

Strickland v. Washington,
  466 U.S. 668 (1984) ......................................................................... passim


                                                 iv
Thomas v. State,
  699 S.W.2d 845 (Tex. Crim. App. 1985) .................................................. 28

Thompson v. State,
  9 S.W.3d 808 (Tex. Crim. App. 1999)........................................... 18, 27, 30

Tolbert v. State,
  306 S.W.3d 776 (Tex. Crim. App. 2010) .................................................. 21

Tong v. State,
  25 S.W.3d 707 (Tex. Crim. App. 2000) .................................................... 18

Vasquez v. State,
  830 S.W.2d 948 (Tex. Crim. App. 1992) .................................................. 21

Weeks v. State,
 894 S.W.2d 390 (Tex. App.—Dallas 1994, no pet.) .................................. 27

Whitehead v. State,
 696 S.W.2d 221 (Tex. App.—San Antonio 1985, pet. ref’d) ...................... 19

Statutes

Tex. Penal Code Ann. § 6.01 (West 2011) ................................................... 18
Tex. Penal Code Ann. § 6.03 (West 2011) ................................................... 20
Tex. Penal Code Ann. § 19.04 (West 2011) ...................................... 19, 31, 32

Rule

Tex. R. App. P. 43.2 .................................................................................. 31




                                                    v
TO THE HONORABLE COURT OF APPEALS:

      The State of Texas submits this brief in response to the brief of

Appellant, Maurice Lamar Piper.

                        STATEMENT OF THE CASE

      The grand jury indicted Appellant for the murder of Hardy Wilson. (CR:

12). Appellant pled not guilty. (RR4: 11; CR: 48). A jury found him guilty of

the lesser-included offense of manslaughter and sentenced him to eighteen

years and six months’ confinement in the Institutional Division of the Texas

Department of Criminal Justice. (RR6: 104; CR: 48). Appellant filed a timely

motion for new trial, which was overruled by operation of law, and a timely

notice of appeal. (CR: 82-83).

                          STATEMENT OF FACTS

      Ronald Wadley owned New Image Collision (New Image), an auto

body shop in Dallas. (RR4: 15, 17, 41-42, 45-49). Hardy Wilson, who was

“like an uncle” to Appellant, owned another body shop across the street from

New Image but occasionally worked at New Image. (RR4: 17-18, 50-51, 86;

RR5: 56). On June 18, 2015, Appellant shot Wilson during an altercation at

New Image. (RR4: 15, 17, 49; RR5: 56). The bullet went through Wilson’s

chest and exited his back, killing him. (RR4: 22-23).




                                       1
      The altercation arose from a dispute over Appellant’s car, a Dodge

Charger, which was at the shop for repairs. (RR5: 46, 88). Wadley testified that

he had done some body work on the car, which Appellant told him had been

involved in an accident. (RR5: 46, 88). An insurance company had disbursed

some money for the repairs, with half of the money going to Wadley and the

other half to Appellant. (RR4: 46). The Charger had been at the shop for eight

or nine months because Appellant was behind on his car payments and it had a

lien on it. (RR4: 47-40, 91).

      Wadley testified that on the day of the shooting, Dominique Hawkins,

Appellant’s brother, called him about the Charger, which was still undergoing

repairs. (RR4: 46-47, 51-54). At around five o’clock p.m., Wadley and his

employee, Colvin Nickerson, were in the shop preparing to close for the day

when Appellant and Hawkins entered the office. (RR4: 22-23, 43, 51-52, 166-

68, 170-71). Wadley testified, “[Appellant] said he want flesh or he going to get

some money today.” (RR4: 53). Appellant had a gun in the pocket of his

shorts; he took it out and held it during the exchange. (RR4: 55, 116). Wilson

passed through the office a couple of times, and Appellant told Wadley in

Wilson’s presence, “[Wilson] know what I do. I’m a killer. I shoot him; I’m a

killer and he know I shoot that gun.” (RR4: 61-62).




                                       2
     Seeing the animosity Appellant had toward Wilson and to prevent

anyone from being hurt, Wadley tried to de-escalate the situation by asking

Appellant how much money he needed. (RR4: 53, 63). Appellant then started

beating on the counter and stated, “I don’t want no money. I want some

flesh.” (RR4: 63). Nickerson heard Appellant repeat those words three or four

times. (RR4: 170-71, 181). Appellant told Wadley “it’s the principle,” and

Wadley told him the principle was not worth someone’s life and was not going

to solve anything. (RR4: 63). Appellant responded, “I don’t have nothing to

lose.” (RR4: 63). Appellant and Hawkins went outside. (RR4: 53, 64). At some

point, Wilson also walked out of the shop and stood behind a truck that was

backed in to a parking space between two other cars by the front door of the

shop. (RR4: 66, 221, 224-25; SX 14).

     Wadley, who witnessed the shooting from the window and front door of

the body shop, testified that Appellant pulled the gun out and started a

conversation with Wilson. (RR4: 123, 126-27). Appellant accused Wilson of

“taking stuff” off his car. (RR4: 68). Appellant told Wilson, “You better not

come close to me or I’m going to shoot you.” (RR4: 68). Wilson did not

charge at or rush toward Appellant. (RR4: 69). Wilson “threw his hands in the

air,” and Appellant shot him. (RR4: 68). Photographs of the crime scene

depicted a chain link fence with a gate that bordered the parking lot of the

                                       3
body shop. (SX 10-11). Wilson testified that when Appellant fired the shot,

Hawkins was standing outside the gate a little over thirty feet away from

Appellant. (RR4: 70-71, 123, 126). Wadley said the shooting was not an

accident, but was “a killing.” (RR4: 120-21).

      Freddie Whitaker, an auto-glass installer who was outside during the

shooting, also testified Appellant deliberately shot Wilson. (RR4: 199).

Whitaker testified that Appellant and Hawkins started walking back toward

the office. (RR4: 212). Hawkins, in an attempt to get Appellant to leave,

grabbed Appellant by the arm; Appellant jerked away, and Hawkins exited the

gate. (RR4: 212-14). Whitaker heard Appellant say to Wilson, “You need to

stay out of my business. Go ahead and say something, you always saying

something.” (RR4: 214). Appellant pulled a weapon out and said, “Nigger, I

shoot you.” (RR4: 214, 217, 230). Wilson put his hands up and Appellant shot

him. (RR4: 214, 216-17). Whitaker testified as follows:

            [THE STATE]: Was it a mistake?

            [WHITAKER]: No, it wasn’t a mistake, [Appellant] just
      told him he was going to shoot him and he shot him.

            [THE STATE]: He said it and he shot him.

            [WHITAKER]: Yes.

           [THE STATE]: Was there anyone pulling his arm back
      where the gun would have gone off by mistake?

                                       4
            [WHITAKER]: No one was near him.

           [THE STATE]: Was anyone touching him when the gun
      went off?

            [WHITAKER]: No one was near him.

            [THE STATE]: You said [Hawkins] was outside the fence
      over there; is that correct?

            [WHITAKER]: [Hawkins] was outside the fence over here.

(RR4: 218-19).

      Nickerson also testified that Appellant shot Wilson with no interference

from Hawkins. (RR4: 189-90). Nickerson testified that Hawkins tried to stop

Appellant from re-entering the office; about a thirty-second scuffle ensued, but

Appellant broke away from Hawkins and did not fire the gun until two to three

minutes later. (RR4: 186-90). Nickerson heard Wilson say, “I didn’t take

anything off the car.” (RR4: 196). Appellant then said to Wilson, “Don’t walk

toward me,” and shot him. (RR4: 196).

      Ladon McKinney also was standing outside the body shop near the gate

and witnessed the shooting; he gave a recorded statement to police at the crime

scene. (RR5: 38-39, 42; SX 31). McKinney, who was in jail at the time of trial,

refused to testify at trial and was deemed a “hostile witness.” (RR5: 37-38, 41-

42). He claimed he did not remember what happened that day because he was

high on marijuana. (RR5: 39).

                                       5
      The State played the recording of McKinney’s crime-scene statement for

the jury. (RR5: 42). McKinney told the police that Appellant was “aggressive”

toward Wilson “from the beginning to the end.” (SX 31). McKinney said he

saw Appellant pull out a black .38 or .32 revolver and point it at Wilson, and

heard him tell Wilson if he walked or moved “he was going to pop him.” (SX

31). McKinney said Wilson threw his hands up, and “the next thing I know he

pops him.” (SX 31). McKinney stated that Hawkins, “was the one trying to

stop everything … he was the one who pulled the dude back. He coulda did

more, but he just grabbed him and tried to stop everything.” (SX 31).

      Appellant testified to a different version of facts leading up to the

altercation and the shooting. He testified that Wadley and Wilson were

complicit with him in facilitating insurance fraud involving Appellant’s

Charger, a car that Appellant wanted “to get rid of” because he owed more

money on the car than it was worth. (RR5: 57-60). Appellant claimed the plan

went awry, with Wadley keeping the insurance checks and taking parts off the

car to fix other vehicles. (RR5: 64-65, 80). Wadley denied knowing about any

insurance fraud involving the car. (RR4: 97-99).

      Appellant testified that on the day of the shooting, frustrated because he

did not believe Wadley was working on the car, he called Wadley and

threatened to call the insurance company to report the fraud; in response,

                                       6
Wadley told Appellant to come by the shop and get his money. (RR5: 67-68).

Appellant claimed he did not feel safe going to the shop and suspected that

Wadley’s invitation to come get his money might have been “a setup,” so he

picked up Hawkins on the way. (RR5: 68-70). Appellant admitted that he

never told police or the insurance agent that he believed the situation was a

setup or that he was scared for his life. (RR5: 91, 93).

       Appellant admitted that he took a loaded .38 revolver with him to the

shop. (RR5: 69-70, 91, 93, 104). Appellant testified that he previously had

purchased a gun from Wilson and that he had carried a gun in the past. (RR5:

69). He claimed, however, that he could not remember where he obtained that

particular gun. (RR5: 69).

      Appellant testified he was worried when he and Hawkins arrived and

saw Wilson and “his crew” of four or five people in the driveway of the shop.

(RR5: 70-71). He was afraid that they were going to attack him and Hawkins.

(RR5: 72). Nevertheless, he entered the office and asked Wadley for his money

and an update on the car repairs. (RR5: 72-73). Appellant was not satisfied

with the answers Wadley provided. (RR5: 72-73). Appellant denied telling

Wadley he was going to get “flesh or money,” and claimed he instead told

Wadley that since he could not get his money or his car he was going to call

the police and the insurance company about the matter. (RR5: 74).

                                         7
      Appellant testified that he and Hawkins exited the shop; Wilson also

came out and propped his foot on a truck and started “staring [Appellant]

down,” giving him “the google eye.” (RR5: 76-77). When counsel asked

Appellant if he believed Wilson had a gun, Appellant stated, “It was

speculation. I mean, [Hawkins] had mentioned something but I didn’t take it

into consideration.” (RR5: 87). Appellant, who believed his car was being

“chopped up” for parts, told Wilson, “Hey, I know y’all been taking parts off

my car,” but Wilson denied doing so. (RR5: 77-80). Appellant accused him

again, and Wilson “shot around the car taking long strides.” (RR5: 80). He

testified as follows:

           [APPELLANT]: So after he come up he end up in the
       middle, in the middle halfway from where I’m standing.

           [TRIAL COUNSEL]: Okay. Now where you’re standing,
       who is next to you?

             [APPELLANT]: My brother is next to me.

             [TRIAL COUNSEL]: Okay. What happens next, Maurice?

            [APPELLANT]: I take my gun out and I draw down on him
       and I tell him don’t approach me.

             [TRIAL COUNSEL]: Why did you do that, Maurice?

             [APPELLANT]: I was just – I was in fear, pretty much.

            [TRIAL COUNSEL]: Did you have any intention of
       shooting Hardy Wilson that day?

                                      8
            [APPELLANT]: No, not at all.

(RR5: 81). When he told Wilson not to approach him, Wilson “threw his

hands up.” (RR5: 83). Then the two men engaged in a “dialogue,” talking back

and forth. (RR5: 83).

      Appellant testified that Wilson started taking steps backward with his

hands in the air; he still had his gun drawn on Wilson. (RR5: 84). He claimed

Hawkins was next to him on the left side, and “[f]or some strange reason,

[Hawkins] grabbed my neck and shoulder area.” (RR5: 82-85). The grabbing

was a “sudden jerk” that he was not expecting; the gun went off and he was

surprised. (RR5: 85). Appellant and his counsel demonstrated for the jury how

Hawkins grabbed Appellant. (RR5: 85). Trial counsel asked Appellant, “If

your brother had not pulled your arm would you have shot [Wilson]?” (RR5:

107). Appellant said he would not. (RR5: 107). The State asked Appellant if he

had ever shot a .38 revolver before, and Appellant claimed that he had not.

(RR5: 93). When the State asked, “It takes a lot of pressure to shoot a revolver

over a handgun; isn’t that right?” Appellant answered, “I don’t know.” (RR5:

93). The State also asked Appellant if he killed an unarmed man, and

Appellant stated, “I don’t – I don’t know.” (RR5: 105).

      Appellant testified he had no intention of shooting Wilson and was

“devastated” by Wilson’s death. (RR5: 81-82, 87). When Appellant saw that

                                       9
Wilson had been shot, he was “frozen,” “shaken up,” and in “disbelief.” (RR5:

85-86). Appellant testified that he fled after the shooting because he was scared

and wanted “to get away from the scene before anything else happened other

than this misfortune.” (RR5: 87).

      Appellant admitted that and his girlfriend left the State of Texas and

Hawkins helped him get rid of the gun. (RR5: 93-95, 104). Appellant returned

to Texas only after he discovered that Hawkins had turned himself in to police.

(RR5: 99). When he returned, he first called the auto insurance company,

telling the insurance agent that he had lost his job and could not provide for his

family. (RR5: 99). He told the insurance agent, “I did it or whatever. My

brother turned himself in. He didn’t do it. I killed him. I did.” (RR5: 95, 99).

Appellant did not turn himself in to police until six days after he shot Wilson.

(RR5: 100).

                        SUMMARY OF ARGUMENT

      Appellant has failed to demonstrate that he received ineffective

assistance of counsel. Appellant fails to fulfill the first prong of Strickland

because the record does not contain affirmative evidence explaining trial

counsel’s decision not to request a voluntariness-of-conduct instruction in the

jury charge. Moreover, a review of the record indicates that trial counsel

employed objectively reasonable trial strategy in attempting to prove Appellant

                                       10
did not have the culpable mental state for murder and encouraging the jury to

either acquit Appellant or consider a conviction of manslaughter. Moreover,

Appellant fails to prove the second prong of Strickland because the

overwhelming evidence of Appellant’s guilt, coupled with his self-serving,

incredible testimony, shows that even had the jury charge included a

voluntariness-of-conduct instruction, no reasonable probability exists that the

jury would have acquitted him.

      Finally, this Court should modify to the judgment to correctly reflect

that the jury convicted Appellant of manslaughter, a second-degree felony

under section 19.04 of the Texas Penal Code.

                                 ARGUMENT

               RESPONSE TO APPELLANT’S FIRST AND
                    SECOND POINTS OF ERROR

      The record does not support Appellant’s claims that trial
      counsel provided ineffective assistance at trial, or that he was
      prejudiced by any deficient performance.

      In his first issue, Appellant argues that because his testimony raised the

issue of voluntariness of conduct, his trial counsel’s failure to request a jury

charge instruction on that issue amounted to ineffective assistance of counsel.

In his related second issue, Appellant contends that trial counsel provided

ineffective assistance of counsel by “inviting” the trial court to include an


                                      11
instruction on the lesser-included offense of manslaughter in the jury charge.

The record does not support Appellant’s claims.

                                Relevant Facts

      During voir dire, the State discussed manslaughter with the jury panel.

(RR3: 34). Trial counsel also discussed manslaughter with the jury panel,

including the applicable punishment range and the culpable mens rea of

recklessness. (RR3: 87-88). Trial counsel also discussed criminally negligent

homicide with the panel and extensively discussed self-defense. (RR3: 89-105).

      At the October 24, 2016 pretrial hearing, trial counsel informed the trial

court that he believed lesser-included offenses of manslaughter and criminally

negligent homicide would be raised by the evidence at trial and that he would

be filing a notice of eligibility for probation. (RR2: 11). At the time of trial,

Hawkins had also been charged with the murder of Wilson; he was out of jail

on bond, and the parties discussed whether he was going to testify at trial.

(RR2: 9; RR5: 24). The State and trial counsel anticipated that he would

testify, and Hawkins’s counsel affirmed that he might do so. (RR2: 10).

However, on October 27, after the State had rested and before trial counsel

presented Appellant’s case, Hawkins invoked his Fifth Amendment right to

not testify. (RR2: 9-10; RR5: 23).




                                       12
      Trial counsel did not present an opening statement. (RR4: 13; RR5: 22-

32). At closing, trial counsel argued that Appellant was reckless in pulling a

gun out, as follows:

             Was [Appellant] right for coming over there with a gun?
      Okay, first point that needs to be made, no one has said that him
      coming over there with a gun is illegal. We have not heard one
      word of testimony. … Was it smart? No, it was stupid, it was
      stupid. Okay? It’s set into a part of a chain of events that occurred.
      Now, many of these events were out of the control of [Appellant].
      But it was a dumb thing to do. Chalk it up to a kid, a 29-year-old
      who just [sic] a stupid mistake. Was he upset? Yeah, he probably
      was upset.

(R5: 121). Trial counsel continued to argue that Wilson left the office “in a

huff.” (RR5: 124.) Trial counsel appeared to argue that Appellant pulled out a

gun because he was afraid of Wilson and, due to the unexpected appearance of

the employees from Wilson’s shop, his action in doing so might have been

reasonable behavior because he was in a “chop shop.” (RR5: 123-24). Counsel

argued:

            But what did you hear from [Appellant] is, he had no
      intention of using that weapon, none. He wanted to meet [Wilson]
      over there. You heard from many witnesses that [Wilson] advance
      at that time. And you heard – you heard testimony that at that
      time [Hawkins] grabbed [Appellant] and the gun went off.

            …

            And he told you that he is – feels horrible that it happened,
      and that is not a lie. But from all the evidence you know, he is not
      criminally responsible for this.

                                       13
               And if he did anything his act was reckless, pulling out the
        weapon itself. He is not responsible for that weapon pulling out,
        but if you’re going to hold him [sic] for doing anything, it was a
        reckless act.

(RR5: 124-25). Trial counsel finally argued, “Folks, this was a horrible thing

and [Appellant] is not coming to you with totally clean hands. He made that

admission. But at the end of the day, he is not criminally liable for the offense

of murder.” (RR5: 125).

        At the jury charge conference, trial counsel did not request a

voluntariness-of-conduct instruction. (RR5: 108). Trial counsel requested a

charge on criminally negligent homicide, which the trial court denied. (RR5:

108). Ultimately, the trial court’s charge to the jury stated in pertinent part:

              A person commits the offense of murder if he intentionally
        or knowingly causes the death of an individual or if he intends to
        cause serious bodily injury and commits an act clearly dangerous
        to human life that causes the death of an individual.

              A person commits the offense of manslaughter if he
        recklessly causes the death of an individual.

(CR1:     61).   The   jury   charge   included   the   statutory   definitions    of

“intentionally,” “knowingly,” and “recklessly.” (CR1: 62). The jury charge

included application paragraphs regarding knowing and intentional murder

and serious bodily injury murder. (CR1: 65). The jury was instructed that if it

did not believe Appellant committed murder, to next consider the following:


                                         14
             [I]f you believe from the evidence beyond a reasonable
      doubt that the defendant … did then and there recklessly cause the
      death of Hardy Wilson … by shooting deceased with a firearm, a
      deadly weapon, thereby causing the death of said deceased, you
      will find the defendant guilty of the offense of manslaughter, as
      included in the indictment.

             If you find from the evidence beyond a reasonable doubt
      that the defendant is guilty of murder or manslaughter, but you
      have a reasonable doubt as to which offense he is guilty, then you
      must resolve that doubt in favor of the defendant and find him
      guilty of the lesser offense of manslaughter.

            If you do not believe, or if you have a reasonable doubt that
      the defendant is guilty of any offense as contained in this charge,
      then you will find the defendant not guilty, and say by your
      verdict, not guilty.

(CR1: 66).

                             Standard of Review

      To prove a claim of ineffective assistance of counsel, an appellant must

show that (1) his trial counsel’s performance fell below an objective standard of

reasonableness, and (2) a reasonable probability exists that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Lopez v. State, 343

S.W.3d 137, 142 (Tex. Crim. App. 2011). Under the first prong of the

Strickland test, an appellant must show that counsel’s performance was

deficient. See Strickland, 466 U.S. at 687. This requires the appellant to

demonstrate that counsel’s representation fell below an objective standard of

                                       15
reasonableness under prevailing professional norms. See id. at 688. To satisfy

this requirement, the appellant must identify the acts or omissions of counsel

alleged to constitute ineffective assistance and affirmatively prove that they fell

below the professional norm for reasonableness. See McFarland v. State, 928

S.W.2d 482, 500 (Tex. Crim. App. 1996), abrogated on other grounds by Mosley v.

State, 983 S.W.2d 249 (Tex. Crim. App. 1998).

      The reviewing court begins with a strong presumption that counsel was

effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). The

court should presume counsel’s actions and decisions were reasonably

professional and were motivated by sound trial strategy. Id.; see also Okonkwo v.

State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013). The appellant must rebut

this presumption by presenting evidence illustrating the reasons for counsel’s

actions and decisions. See Jackson, 877 S.W.2d at 771. The appellant cannot

meet this burden if the record does not affirmatively support the claim. See

Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012). When direct

evidence is not available, reviewing courts will assume that counsel had a

strategy if any reasonably sound strategic motivation can be imagined. Lopez,

343 S.W.3d at 143.

      An ineffective assistance claim cannot be built upon retrospective

speculation. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

                                        16
Moreover, before being condemned as unprofessional and incompetent,

counsel should be given an opportunity to explain his actions. See id. at 836. If

trial counsel is not given that opportunity, then the appellate court should not

find deficient performance unless the challenged conduct was so outrageous

that no competent attorney would have engaged in it. Menefield, 363 S.W.3d at

592. More specifically, it must be apparent from the record “that counsel’s

performance fell below an objective standard of reasonableness as a matter of

law, and that no reasonable trial strategy could justify trial counsel’s acts or

omissions, regardless of his or her subjective reasoning.” Lopez, 343 S.W.3d at

143. Thus, absent a properly developed record, an ineffective assistance claim

must usually be denied as speculative. See Bone, 77 S.W.3d at 836.

      Under the second prong of Strickland, the appellant must affirmatively

prove his counsel’s deficient performance prejudiced his defense. See Strickland,

466 U.S. at 687; Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—Texarkana

2000, pet. ref’d). The appellant must prove that his counsel’s error, judged by

the totality of the representation and not by isolated instances of error, denied

him a fair trial. Burruss, 20 S.W.3d at 186. It is not enough to show that the

errors had some conceivable effect on the outcome of the proceeding; instead

the appellant must show that a reasonable probability exists that, but for his

counsel’s error, the outcome of the proceeding would have been different. Id.;

                                       17
see also Bone, 77 S.W.3d at 836. A reasonable probability is a probability

sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.

      Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. Thompson v. State, 9

S.W.3d 808, 813 (Tex. Crim. App. 1999). To prevail on his claim, the

appellant must prove both prongs of the Strickland test by a preponderance of

the evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The

prongs need not be analyzed in a particular order, and an appellant’s failure to

satisfy either prong defeats the claim. Ex parte Martinez, 330 S.W.3d 891, 901

(Tex. Crim. App. 2011).

                               Applicable Law

      Section 6.01(a) of the Texas Penal Code provides that “a person

commits an offense only if he voluntarily engages in conduct, including an act,

an omission, or possession.” Tex. Penal Code Ann. § 6.01(a) (West 2011).

Voluntariness within the meaning of section 6.01(a) refers only to one’s own

physical bodily movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim.

App. 2003); Brown v. State, 89 S.W.3d 630, 633 (Tex. Crim. App. 2002). If a

physical movement is the nonvolitional result of someone else’s act, is set in

motion by some independent nonhuman force, is caused by a physical reflex or

convulsion, or is the product of unconsciousness, hypnosis or other

                                      18
nonvolitional impetus, that movement is not voluntary. See Rogers, 105 S.W.3d

at 638.

      If the issue of voluntariness of conduct is raised by the evidence, whether

it is strong, feeble, unimpeached, or contradicted, the defendant is entitled to

an instruction on that issue. See Brown v. State, 955 S.W.2d 276, 279–80 (Tex.

Crim. App. 1997). Evidence does not raise voluntariness of conduct when the

accused voluntarily engages in conduct that includes one or more voluntary

acts that lead to the actual shooting. George v. State, 681 S.W.2d 43, 47 (Tex.

Crim. App. 1984). However, when evidence of an independent event that

could have precipitated the discharge of the bullet, such as the conduct of a

third party, is presented, a trial court must give the instruction when requested.

See id.; Brown, 955 S.W.2d at 277 (holding defendant entitled to voluntariness

instruction where the testimony reflected the gun discharged when the

defendant was bumped from behind); Whitehead v. State, 696 S.W.2d 221, 222

(Tex. App.—San Antonio 1985, pet. ref’d) (holding question of voluntariness

raised where the evidence showed gun discharged when someone grabbed

defendant from behind).

      As charged here, the jury could have found Appellant guilty of

manslaughter if it found he recklessly caused the death of Wilson by shooting

him with a firearm. See Tex. Penal Code Ann. § 19.04(a) (West 2011). A

                                       19
person acts recklessly with respect to circumstances surrounding his conduct or

the result of his conduct when he is aware of, but consciously disregards, a

substantial and unjustifiable risk that the circumstances exist or the result will

occur. Id. § 6.03(c) (West 2011). The risk must be of such a nature and degree

that its disregard constitutes a gross deviation from the standard of care that an

ordinary person would exercise under all circumstances as viewed from the

actor’s standpoint. Id. “At the heart of reckless conduct is conscious disregard

of the risk created by the actor’s conduct.” Lewis v. State, 529 S.W.2d 550, 553

(Tex. Crim. App. 1975). Proof of a culpable mental state almost invariably

depends on circumstantial evidence and may be inferred from any facts

tending to prove its existence, including the acts, words, and the conduct of the

accused. Stepherson v. State, 523 S.W.3d 759, 763 (Tex. App.—Houston [1st

Dist.] 2017, no pet.).

      Even if the evidence raises voluntariness of conduct, merely being

entitled to a jury instruction but not requesting it is not the test for ineffective

assistance of counsel. See Dannhaus v. State, 928 S.W.2d 81, 85-86 (Tex. App.—

Houston [14th Dist.] 1996, pet. ref’d). A failure to request an instruction on

voluntary conduct simply because the evidence raises the issue does not mean

counsel was ineffective, as defensive issues “frequently depend upon trial

strategy and tactics.” See Tolbert v. State, 306 S.W.3d 776, 779–82 (Tex. Crim.

                                        20
App. 2010); see also Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App.

1992) (“[J]ust because a competent defense attorney recognizes that a

particular defense might be available to a particular offense, he or she could

also decide it would be inappropriate to propound such a defense in a given

case.”). Instead, the test is whether it was objectively unreasonable for counsel

not to ask for it. Dannhaus, 928 S.W.2d at 85-86; see Strickland, 466 U.S. at

686. Counsel is under no duty to raise every defense available, so long as

counsel presents a defense that is objectively reasonable or strategically sound.

Dannhaus, 928 S.W.2d at 86 (holding where the evidence of the appellant’s

guilt was strong, trial counsel’s action in not requesting instructions on several

defenses, including voluntariness of conduct, and strategy in focusing on lack

of intent for greater offense of murder was not objectively unreasonable).

                 Counsel’s Representation was not Deficient

      Appellant has failed to meet his burden under the first prong of

Strickland. Even assuming that the evidence in this case raised the issue of

voluntariness of conduct, this Court should begin with a strong presumption

that counsel was effective. See Jackson, 877 S.W.2d at 771. Importantly, the

record does not contain any affirmative evidence explaining trial counsel’s

conduct, and counsel was not afforded an opportunity to explain his



                                       21
challenged action. Hence, the record does not affirmatively support

Appellant’s ineffective assistance claim. See Menefield, 363 S.W.3d at 592.

      In the absence of direct evidence explaining trial counsel’s action in not

requesting an instruction on voluntariness of conduct, this Court must assume

that counsel had a strategy if any reasonably sound strategic motivation can be

imagined. See Lopez, 343 S.W.3d at 143. Appellant attempts to rebut the

presumption of reasonable assistance of counsel by arguing the record

demonstrates that trial counsel was mistaken or confused about the law

regarding voluntariness of conduct, and “conflated the scenario testified to by

[Appellant] with one in which a person points a gun at another and, absent

third-party intervention, ‘accidentally’ fires.” Appellant’s Br. at 9. He argues

that failure to request a voluntariness-of-conduct instruction was so outrageous

that no competent attorney would have engaged in it. Appellant’s

interpretation of counsel’s actions based on the record, however, is just that —

a personal, self-serving interpretation of counsel’s actions, which does not

amount to affirmative evidence supporting a finding of inadequate

representation. See Menefield, 363 S.W3d at 592; Jackson, 877 S.W.2d at 771.

Rather than presuming, as Appellant asserts, that trial counsel was confused or

mistaken about the relevant law, this Court should presume counsel’s actions




                                       22
and decisions were reasonably professional and were motivated by sound trial

strategy. See Lopez, 343 S.W.3d at 14.; see also Okonkwo, 398 S.W.3d.

      Indeed, an examination of the record reveals an objectively reasonable

explanation for trial counsel’s decision not to request a voluntariness-of-

conduct instruction. Trial counsel’s voir dire and closing argument clearly

indicate that counsel’s trial strategy was to focus on Appellant’s lack of a

culpable mental state for murder. The record reflects that trial counsel was

unsure whether Hawkins, Appellant’s co-defendant, would testify. Notably,

during voir dire, although trial counsel briefly discussed manslaughter and

criminally negligent homicide, trial counsel spent more time discussing self-

defense than any other theory, indicating he may have anticipated the evidence

to raise the issue. Trial counsel did not make an opening statement to

summarize his defensive strategy. These facts show that counsel may have

been unsure as to how Appellant’s defense would unfold at trial and, as

testimony was developed, counsel may have reasonably determined that

focusing on minimizing Appellant’s culpable mental state was a more prudent

trial strategy.

      In addition, in light of the evidence, trial counsel may have determined

that the evidence Appellant knowingly and intentionally murdered Wilson or

intended to cause serious bodily injury to him was strong and a voluntariness-

                                      23
of-conduct defense was weak. Because Hawkins did not testify, Appellant was

the only witness to testify that Hawkins grabbed him and caused the gun to

discharge. Appellant’s testimony was sharply controverted by the testimony of

Whitaker, Nickerson, and Wadley, who testified that Hawkins was standing at

least thirty to sixty feet — and at least arm’s length — away from Appellant at

the time Appellant fired the gun, and that no one bumped or grabbed

Appellant causing the gun to discharge. See Pouncy v. State, No. 14-12-00470-

CR, 2013 WL 3580638, at *4 (Tex. App.—Houston [14th Dist.] 2013, pet.

ref’d) (mem. op., not designated for publication) (counsel not ineffective for

failing to request multiple assailants instruction, in part because evidence of

multiple assailants was strongly controverted). Even defense witness

McKinney’s recorded statement, which mentioned the scuffle between

Appellant and Hawkins, did not reflect that the gun discharged involuntarily.

Hence, trial counsel’s failure to request a voluntariness-of-conduct instruction

did not deprive Appellant of a defense supported by conclusive evidence.

      Moreover, Wadley testified that the shooting was not an accident and

was a deliberate “killing.” Whitaker likewise testified that Appellant

deliberately shot Wilson, and the shooting was not an accident. Prior to the

shooting, Nickerson and Wadley heard Appellant say, “I want cash or flesh,”




                                      24
and Whitaker heard Appellant state to Wilson, “Nigger, I shoot you,”

immediately before Appellant shot him.

       In addition, Appellant admitted that he told an insurance agent that he

killed Wilson. Appellant admitted being “extremely frustrated” and taking a

loaded gun to the body shop. He admitted pointing a loaded gun at Wilson,

who was not armed. He also admitted fleeing the crime scene, disposing of the

murder weapon, and leaving the State of Texas, all of which undermined the

plausibility of a potential defensive theory that he acted involuntarily. See, e.g.,

Bigby v. State, 892 S.W.3d 864, 883 (Tex. Crim. App. 1994) (explaining that the

jury may infer the defendant’s guilt of the charged offense from evidence of

flight).

       Without the testimony of Hawkins to support Appellant’s testimony,

trial counsel may have determined that the evidence of intentional and

knowing murder or serious bodily injury murder was strong, a voluntariness-

of-conduct defense was weak, and the best strategy was to focus on negating

Appellant’s mental state for murder. As such, the record supports a finding

that trial counsel’s choice not to argue a voluntariness-of-conduct defense was

based on reasonable trial strategy, not on confusion or mistake about the law

as Appellant’s interpretation of the record suggests. See Dannhaus, 928 S.W.2d

at 85-86. Hence, this Court cannot conclude that trial counsel’s strategy in

                                        25
“inviting” the jury to consider manslaughter and not focusing on voluntariness

of conduct was an objectively unreasonable and strategically unsound strategy.

See id.; see also Hathorn v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992)

(holding that trying to get a jury to find a defendant guilty of lesser offense can

be explained as sound trial tactic), cert. denied, 509 U.S. 932 (1993).

      Appellant relies on Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim.

App. 2005), to support his contention that this is a “rare case” where the

record on direct appeal supports a finding of deficient performance.

Appellant’s Br. at 12. In Andrews, however, the Court of Criminal Appeals held

that the error committed by trial counsel — failing to object to the prosecutor’s

misstatement of the law regarding whether the defendant’s sentences could be

stacked — could not be attributed to any reasonable trial strategy and was error

as a matter of law. Id. at 103. Here, as discussed above, case law indicates that

seeking to minimize a defendant’s culpable mental state is reasonable trial

strategy, and Andrews provides no guidance in the case at bar.

      Finally, although in hindsight appellate counsel may disagree with trial

counsel’s strategy, such a disagreement does not render trial counsel’s

performance deficient. That another attorney, including Appellant’s counsel on

appeal, might have pursued a different course of action does not necessarily

indicate ineffective assistance. See Johnson v. State, 959 S.W.2d 230, 236-37

                                        26
(Tex. App.—Dallas 1997, no pet.); Weeks v. State, 894 S.W.2d 390, 391 (Tex.

App.—Dallas 1994, no pet.). This Court should conclude that counsel’s action

fell within the wide range of reasonable professional assistance. See Thompson,

9 S.W.3d at 813. Because Appellant has not shown that trial counsel rendered

deficient performance, this Court is not required to examine the second prong

of Strickland. In any event, Appellant has failed to affirmatively prove prejudice

under the second prong. See Strickland, 466 U.S. at 687; Burruss, 20 S.W.3d at

186.

                         Appellant was not Prejudiced

       Appellant also fails to fulfill the second prong of Strickland. He argues,

“If the jury had known that, under the defense’s theory of the case, [Appellant]

was in fact, not guilty of any type of criminal homicide, it’s reasonably likely

that that would not have been the verdict.” Appellant’s Br. at 11-12. Despite

his contention, a review of the totality of the evidence presented at trial proves

that even had trial counsel requested and the trial court included a

voluntariness-of-conduct instruction in the charge, a reasonable probability

does not exist that the jury would have acquitted Appellant. See Ex parte

Martinez, 330 S.W.3d 891, 903 (Tex. Crim. App. 2011) (stating that the

prejudice analysis under the second prong of Strickland requires appellate

courts to “look at the totality of the evidence,” and that even if the

                                       27
inadmissible evidence had not been admitted, the evidence was sufficient to

support the jury’s guilty verdict).

      Here, Appellant’s lack of credibility and the evidence of his acts, words,

and conduct proved Appellant’s guilt of at least manslaughter. Appellant

admitted that he took a loaded .38 revolver to the body shop and pointed it at

Wilson. Evidence that the defendant arrived at the scene of the crime carrying

a loaded weapon is probative of deliberate conduct. Carter v. State, 717 S.W.2d

60, 67 (Tex. Crim. App. 1986). When questioned about the amount of pressure

it takes to shoot a .38 revolver, Appellant denied knowing how much pressure

it takes to fire one, even though he was the one who fired the .38 that killed

Wilson. Appellant’s admission that he had carried a gun in the past, that he

had purchased a gun from Wilson before — but incredibly did not remember

where he got the .38 he used to shoot Wilson — indicated his guilt. See Thomas

v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985) (holding that where a

defendant familiar with guns and the potential for injury points a gun at the

victim, the evidence indicates reckless conduct).

      Although at trial Appellant claimed he was scared for his life to go the

shop, the first time he mentioned this was at trial. At the shop, where he

claimed he was scared for his life and surrounded by people he claimed to be

scared of, he purported to have made threats to call the police and the

                                       28
insurance company about the insurance fraud. Appellant admitted that he

could have left the shop at any time; instead, he went outside and engaged in a

further argument with and pointed a loaded gun at an unarmed Wilson.

      Appellant’s testimony that Hawkins’s act in grabbing him caused the

gun to discharge was self-serving and not credible. Even reading from a cold

record, his testimony that, “For some strange reason, [Hawkins] grabbed my

neck and shoulder area,” rings hollow, especially in light of the four other

witnesses whose testimony and statement indicated that Hawkins actively was

attempting to persuade Appellant to leave the shop.

      Appellant’s flight from the crime scene also indicated his guilt. Appellant

admitted that immediately after the shooting, he fled not only the crime scene,

but also the State of Texas. He returned only after he discovered that Hawkins

had turned himself in to police. These actions indicated to the jury that

Appellant was conscious of his guilt and lessened the probability that the jury

would have found he involuntarily shot Wilson and was not guilty of any

crime. See, e.g., Bigby, 892 S.W.2d at 884 (stating that evidence of flight “shows

a consciousness of guilt of the crime for which the defendant is on trial.”).

Finally, when Appellant did return to Texas, instead of going directly to the

police, he first called the insurance agent to report the insurance fraud to set up

his story.

                                        29
      Finally, the testimony all three of the State’s witnesses controverted

Appellant’s testimony that Hawkins grabbed him and caused the gun to

discharge. Although a scuffle and a grabbing did occur, Nickerson, Watkins,

and Wadley all testified that Hawkins was more than arm’s length away from

Appellant when Appellant deliberately fired the gun. Even the testimony of

McKinney, the defense witness, though unclear as to when Hawkins grabbed

Appellant, did not indicate in any way that Hawkins’s action in grabbing or

scuffling with Appellant is what caused the gun to discharge. Instead,

McKinney’s on-the-scene, recorded interview, in which he even described the

color and caliber of the gun Appellant used, credibly demonstrated that

Appellant first pointed the gun at Wilson, told him not to move, then shot him

deliberately with no interference by Hawkins.

      Considering the overwhelming evidence of Appellant’s guilt, Appellant

has failed to establish that a reasonable probability exists that the result of the

guilt-innocence stage of his trial would have been different but for trial

counsel’s alleged deficiency and his complaint fails. See Strickland, 466 U.S. at

695; Thompson, 9 S.W.3d at 812. This Court should overrule his first and

second issues.




                                        30
      RESPONSE TO APPELLANT’S THIRD POINT OF ERROR

      This Court should modify the judgment to correctly reflect that
      the jury convicted Appellant of manslaughter.

      The State agrees that the judgment incorrectly reflects the offense for

which Appellant was convicted. The jury returned a verdict of guilty of

manslaughter, a second-degree felony. See Tex. Penal Code Ann. § 19.04(a)

(West 2011). (RR5: 132; CR: 68). The judgment incorrectly states that the jury

found Appellant guilty of “MURDER,” with the degree of the offense as,

“1ST DEGREE FELONY,” and the statute for the offense as, “19.02 Penal

Code.” (CR: 48, 68).

      This Court has the power to modify an incorrect judgment to make the

record speak the truth when it has the necessary information before it to do so.

See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim.

App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991,

pet. ref’d). As set forth above, this Court has the necessary information to

correct the judgment. Accordingly, the State respectfully requests this Court

modify the trial court’s judgment to correctly reflect the “Degree of Offense:

2nd Degree Felony,” the “Offense for which Defendant Convicted:

Manslaughter,” and the “Statute for Offense: 19.04 Penal Code.” See Tex.




                                      31
Penal Code Ann. § 19.04(a); Bigley, 865 S.W.2d at 27-28; Asberry, 813 S.W.2d

at 529-30.

                                    PRAYER

      The State prays that this Honorable Court will affirm the trial court’s

judgment as modified.

                                             Respectfully submitted,

                                              /s/ Marisa Elmore
Faith Johnson                                Marisa Elmore
Criminal District Attorney                   Assistant District Attorney
Dallas County, Texas                         State Bar No. 24037304
                                             Frank Crowley Courts Building
                                             133 N. Riverfront Boulevard, LB-19
                                             Dallas, Texas 75207-4399
                                             (214) 653-3625
                                             (214) 653-3643 fax

             CERTIFICATE OF WORD-COUNT COMPLIANCE

        I hereby certify that the foregoing brief, including all contents except for
the sections of the brief permitted to be excluded by Rule 9.4(i)(1) of the Texas
Rules of Appellate Procedure, is 7,438 words in length according to Microsoft
Word 2010, which was used to prepare the brief, and complies with the word-
count limit in the Texas Rules of Appellate Procedure. See Tex. R. App. P.
9.4(i).

                                              /s/ Marisa Elmore
                                             Marisa Elmore




                                        32
                      CERTIFICATE OF SERVICE

     I hereby certify that a true copy of the foregoing brief was served on
Bruce Anton and Brett Ordiway, counsel for Appellant, by electronic
communication through eFileTexas.gov on January 30, 2018.

                                          /s/ Marisa Elmore
                                         Marisa Elmore




                                    33
