      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-99-00816-CR




                                      Adam Biegel, Appellant

                                                   v.

                                    The State of Texas, Appellee



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
            NO. 0990020, HONORABLE BOB PERKINS, JUDGE PRESIDING




                Appellant Adam Biegel was convicted of capital murder, a murder committed in the

course of committing robbery. See Tex. Penal Code Ann. § 19.03(a)(2) (West 1994). The State did

not seek the death penalty; therefore, appellant’s punishment is life imprisonment. See id. § 12.31(b).

On appeal, appellant asserts in six points of error that he did not receive effective assistance of trial

counsel. We will affirm the judgment.

                We summarize the evidence. Codefendant Tammy Jo Fox, a topless cabaret dancer,

met the victim Lonnie Greenwood at the club where she worked about eighteen months before he

was murdered. After they first met, Fox and the victim on several occasions went to various places

where she performed private dances and they engaged in sexual acts. About one month before the

murder, Fox began living with and had a sexual relationship with appellant, who was a former

employee of the victim. Fox and appellant lived with Fox’s mother and stepfather in an apartment

complex where Fox’s stepfather was a security guard.
               Appellant and Fox knew that the victim customarily carried large sums of cash.

Appellant and Fox, in concert with Fox’s mother and stepfather, conspired to rob the victim. To

accomplish the robbery, Fox lured the victim to a vacant apartment for a sexual tryst. Fox’s

stepfather furnished a key to a vacant apartment and furnished appellant a hammer and a knife with

which to attack the victim. Although appellant planned to use a nylon stocking to cover his face and

hide his identity, Fox did not remember seeing appellant use the stocking for that purpose. According

to their plan, appellant concealed himself in the bathroom of the apartment. Appellant planned to

strike the victim on the head with the hammer, and if necessary, appellant was going to “knife” the

victim to obtain his wallet. The lights were not on in the apartment. When Fox led the victim past

appellant’s hiding place and signaled appellant, she continued down the hallway into a bedroom. Fox

claims that she did not see appellant attack the victim. However, Fox, who testified after being

granted use immunity, testified that she heard the victim say, “Do you just want my wallet?” and

heard appellant respond “yes.” Fox also heard the victim say, “You don’t have to cut me, why are

you cutting me?”

               After his attack on the victim, appellant ran out onto the balcony where he threw the

knife away, stuffed the victim’s wallet into the waist band of his trousers, and jumped into the alley

behind the apartment. Fox followed appellant back to her stepfather’s apartment where Fox’s mother

let them in through a bedroom window. Fox and her mother discovered that there was no money in

the victim’s wallet. Appellant threw the wallet through a window. Appellant told Fox he had stabbed

the victim more than twenty times.

               The wounded victim was able to get to his car in the parking lot and place a 911 call

with his cell phone. Emergency personnel and police were soon on the scene. The victim told the

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officers he could only identify his assailant as a white man. He was transported to an emergency

room; he had a bruise and cut on his head and three stab wounds. The fatal stab wound caused injury

to several of the victim’s organs and excessive bleeding. In an attempt to stop the bleeding and save

his life, physicians surgically removed his spleen and one kidney. Efforts to save the victim’s life were

unsuccessful, and he died several days after he was stabbed.

                The police found a knife with blood on it in the alley behind the apartments. The

victim’s wallet was not found, but his hunting and fishing license and other contents of his wallet were

found behind the apartments. DNA evidence showed the victim’s blood was on clothes that had been

worn by appellant and Fox and on a rope bracelet worn by appellant.

                In his first point of error, appellant insists that his trial counsel was ineffective.

Appellant contends that counsel was ineffective because he failed to request a jury instruction on the

lesser included offense of felony murder. To establish his claim that trial counsel’s performance was

deficient for failing to request a jury instruction, appellant must show that he was entitled to the

instruction on the lesser included offense of felony murder. Cardenas v. State, 30 S.W.3d 384, 392

(Tex. Crim. App. 2000); Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999).

                To show ineffective assistance of counsel, appellant must show that: (1) counsel’s

performance was deficient, in that counsel made such serious errors that he was not functioning

effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that

appellant was deprived of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687 (1984);

Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 115, 118

(Tex. App.—Austin 1994, pet. ref’d); O’Hara v. State, 837 S.W.2d 139, 143 (Tex. App.—Austin

1992, pet. ref’d).

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                Whether a lesser offense instruction must be given is determined by a two-part test:

“first, the lesser included offense must be included within the proof necessary to establish the offense

charged, and, second, some evidence must exist in the record that would permit a jury rationally to

find that if the defendant is guilty, he is guilty only of the lesser offense.” Rousseau v. State, 855

S.W.2d 666, 673 (Tex. Crim. App. 1993); accord Cardenas, 30 S.W.3d at 392; Wolfe v. State, 917

S.W.2d 270, 278 (Tex. Crim. App. 1996).

                Here, the first part of the test is satisfied because the offense of felony murder is

included within the proof necessary to establish capital murder. See Tex. Code Crim. Proc. Ann. art

37.09 (West 1981); Fuentes, 991 S.W.2d at 272; Rousseau, 855 S.W.2d at 673. We must determine

whether the evidence in the record would allow the jury rationally to find that, if guilty, appellant was

guilty only of the lesser offense of felony murder. The distinguishing element between felony murder

and capital murder is intent. See Fuentes, 991 S.W.2d at 272; Adanandus v. State, 866 S.W.2d 210,

230 (Tex. Crim. App. 1993). Capital murder requires the intent to kill while felony murder requires

only the intent to commit the underlying felony. Adanandus, 866 S.W.2d at 230; Rousseau, 855

S.W.2d at 673; Creel v. State, 754 S.W.2d 205, 211 (Tex. Crim. App. 1988).

                We must decide from the evidence in the record whether the evidence would support

a rational jury finding that appellant had only the intent to rob the victim and not the intent to kill him.

“The possibility that initially at some point during the commission of the robbery the offender did not

have the intent to cause death does not amount to evidence that the offender did not intend to cause

the victims death when the murder was committed.” Rousseau, 855 S.W.2d at 674; accord Fuentes,

991 S.W.2d at 273.




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               There is no direct evidence of appellant’s intent to kill at the time he stabbed the

victim. However, intent to kill may be inferred from circumstantial evidence. A knife is not a deadly

weapon per se. Brown v. State, 651 S.W.2d 782, 783 n.2 (Tex. Crim. App. 1983); Victor v. State,

874 S.W.2d 748, 751 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Therefore, appellant’s

intent to kill cannot be presumed. See Butler v. State, 981 S.W.2d 849, 853 (Tex. App.—Houston

[1st Dist.] 1998, pet. ref’d). If the weapon used is not a deadly weapon per se, the intent to kill may

be shown by the manner of its use along with the nature and extent of the wounds inflicted on the

victim. Boazman v. State, 501 S.W.2d 894, 896 (Tex. Crim. App. 1973); accord Hawkins v. State,

605 S.W.2d 586, 588 (Tex. Crim. App. 1980); Abels v. State, 489 S.W.2d 910, 913 (Tex. Crim. App.

1973); Lewis v. State, 486 S.W.2d 104, 106 (Tex. Crim. App. 1972); Martinez v. State, 699 S.W.2d

910, 913 (Tex. App.—Amarillo 1985, no pet.).

               The knife used was admitted in evidence for the jury’s inspection and consideration.

The seriousness and nature of the fatal stab wound was explained by expert testimony. The wound

inflicted on the victim caused extensive internal bleeding, required the surgical removal of his spleen

and a kidney, and ultimately caused the victim’s death. In addition, there is other circumstantial

evidence to support a rational finding that appellant stabbed the victim with the intent to kill him.

There is evidence of appellant’s animus and hatred of the victim. The appellant, who had previously

been employed by the victim, had been “fired” by the victim. The victim had an ongoing sexual

relationship with Fox that was longer than appellant’s recent sexual relationship with her. Fox, in her

testimony, affirmed that appellant’s animosity toward the victim was obvious to her. Appellant

bragged to Fox that he had stabbed the victim more than twenty times. Furthermore, evidence that




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the victim was willing to give up his wallet without being “cut” shows that appellant’s stabbing of the

victim was unnecessary, if robbery was appellant’s only intent.

                Because the evidence would not allow a rational finding that, if guilty, appellant was

guilty only of the lesser offense of felony murder, a jury instruction on the lesser offense was not

warranted. Appellant has failed to demonstrate that trial counsel was ineffective because of his failure

to request a felony murder instruction. Appellant’s first point of error is overruled.

                In his second point of error, appellant asserts that: “The decision by trial counsel to

request and endorse an instruction from the court on the offense of aggravated robbery in lieu of an

instruction on the offense of felony murder constituted ineffective assistance of counsel and denied

appellant a fair trial.” We have held that appellant was not entitled to a jury instruction on felony

murder. On appeal, appellant argues and we agree that appellant was not entitled to the lesser

included offense instruction on aggravated robbery. However, the giving of the jury instruction on

aggravated robbery was potentially beneficial to appellant; it gave the jury an opportunity to find

appellant guilty of a lesser offense. The giving of this instruction was not calculated to be harmful

for appellant’s defense; it was at most harmless error. Allowing without objection, or even

encouraging the trial court to give this instruction, does not demonstrate ineffective assistance of

counsel. Appellant’s second point of error is overruled.

                In his third point of error, appellant complains that “[t]he failure of trial counsel to

object to the instruction from the court on causation constituted ineffective assistance of counsel and

denied appellant a fair trial.” The trial court, with acquiescence of trial counsel, instructed the jury:

“A person is criminally responsible if the result would not have occurred but for his conduct,

operating either alone or concurrently with another cause, unless the concurrent cause was clearly

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sufficient to produce the result and the conduct of the defendant clearly insufficient.” There was no

application of the abstract charge to any facts in the case. Appellant’s principle complaint is that the

giving of this abstract charge confused the jury.

                 On appeal, the State concedes that this definitional jury instruction on causation was

unnecessarily given but was harmless citing Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App.

1994). In Hughes, over objection and even though the evidence did not raise the issue of concurrent

causation, an abstract jury instruction on concurrent causation was given. Id. The court held that

“when an abstract charge is erroneously given on a theory of law, without specific application, to

facts of the case, the overruling of an objection to the abstract charge is not error.” Id.; Lewis v.

State, 815 S.W.2d 560, 562 (Tex. Crim. App. 1991). Here, the failure of trial counsel to object to

the unnecessary abstract charge on concurrent causation does not demonstrate ineffectiveness of

counsel. Appellant’s third point of error is overruled.

                 Appellant has combined his argument of the fourth and fifth points of error. Appellant

contends that his trial counsel’s decision to share with a hostile codefendant the expert assistance of

the same forensic pathologist and counsel’s failure to obtain independent expert assistance to

evaluate, prepare, and present defensive evidence on the issue of intent to cause death constituted

ineffective assistance of counsel and denied appellant a fair trial. Appellant makes a lengthy,

convoluted argument that is largely unsupported by the record and is speculative and hypothetical in

nature.

                 We quote illustrative portions of appellant’s argument.


          Appellant’s trial counsel . . . . never personally asked Dr. Frost to pursue any
          particular avenues of investigation such as whether it was possible to develop

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       evidence that someone other than appellant inflicted the stab wounds on [the victim]
       or whether the nature and location of the stab wounds could provide any information
       about the identity of the person who stabbed [the victim]. . . . Appellant’s trial
       counsel never asked Dr. Frost to conduct any investigation or to give any advice
       concerning the issue of whether the nature and severity of the stab wounds gave any
       indication that the wounds were or were not inflicted with the intent to cause death
       . . . with respect to the prejudice suffered by appellant as a result of his counsel’s
       disclosure of confidential communications with a defense expert it is difficult to
       pinpoint any specific way in which the error contributed to the jury’s verdict in
       appellant’s case because the prejudice is largely structural and elusive.


                Trial counsel obtained the assistance of an independent expert, Dr. Randall E. Frost,

a forensic pathologist. At the motion for new trial hearing, appellant’s appellate counsel offered in

evidence the pathologist’s written report. That report stated that the victim’s cause of death was a

stab wound to the abdomen. This coincided with the autopsy report and the trial evidence offered

by the State. The evidence is overwhelming that appellant stabbed the victim. The record shows that

the stab wound was clearly sufficient to cause the victim’s death, despite speculation that medical care

or the lack of medical care was a concurrent cause of the victim’s death. Although trial counsel and

Fox’s attorney both received the report of the pathologist, the record fails to show that any privileged

information was shared. Appellant’s speculation as to the possible use of privileged information is

mere speculation unsupported by the record.

                A reviewing court must “indulge a strong presumption that counsel’s conduct falls

within a wide range of reasonable representation.” McFarland v. State, 928 S.W.2d 482, 500 (Tex.

Crim. App. 1996). Appellant has failed to overcome the strong presumption that trial counsel was

acting effectively at all times. See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998);

Gravis v. State, 982 S.W.2d 933, 937 (Tex. App.—Austin 1998, pet. ref’d). Appellant’s fourth and

fifth points of error are overruled.


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                 In his sixth point of error, appellant urges that “the various errors and omissions of

trial counsel cumulatively constituted ineffective assistance of counsel and denied appellant a fair

trial.” We have overruled appellant’s various points of error in which he asserts that trial counsel was

ineffective. Appellant has failed to show that there are errors and omissions that cumulatively

demonstrate he was denied effective assistance of trial counsel or a fair trial. Appellant’s sixth point

of error is overruled.

                 The judgment is affirmed.




                                                __________________________________________

                                                Carl E. F. Dally, Justice

Before Justices Kidd, B. A. Smith and Dally*

Affirmed

Filed: August 30, 2001

Do Not Publish




*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 74.003(b) (West 1998).



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