
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-06-00343-CR


Daniel Lynn Keeton, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 2006-058, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N

		A jury found Daniel Keeton guilty of aggravated assault with a deadly weapon, see
Tex. Penal Code Ann. § 22.02(a)(2) (West Supp. 2006), and the trial court assessed punishment at
40 years' confinement.  In two issues, appellant complains that the trial court improperly failed to
instruct the jury on the lesser-included offense of assault and that he was denied effective assistance
of counsel.  We affirm the judgment of conviction.

 BACKGROUND
 The evidence at trial showed that appellant developed a relationship with Tracy Garza
and lived with her on and off for nine months in 2005.  Garza testified that when her fourteen-year-old son and twelve-year-old daughter went to live with their father, appellant became abusive
towards her.
		In September 2005, Garza owned a cleaning company that provided custodial services
to businesses.  On the evening of September 28, appellant was helping Garza provide cleaning
services to one of her customers, an advertising agency in Austin.  In connection with her cleaning
services, the business had afforded Garza access to a refrigerator in the business that contained
beverages for office parties.  At Garza's request, appellant retrieved a root beer for her from the
refrigerator and a beer for himself, which they started to drink on the way home after work.  When
they arrived home at approximately 11:30 p.m., appellant--apparently unprovoked--threatened to
break the beer bottle from which he was still drinking and cut Garza with it.  Garza was sitting on
their bed when appellant threatened her.  She grabbed a Maglite flashlight located next to the bed
and held it in a manner to defend herself.  Garza testified that she and appellant remained in a
standoff in the bedroom for the next several hours with appellant threatening her with the bottle and
Garza holding the flashlight in a defensive posture.
		Garza testified that she took appellant's threat seriously because he had hurt and
threatened her many times before, and she was afraid for her life.  At the time, Garza's twelve-year-old daughter was asleep in the house.  Garza testified that appellant had told her on prior occasions
that if she ever told her family about the abuse, he would "hurt them or kill them" and that "[i]f I
ever called the police, he would have a shoot-out with them.  He would never go back to a situation
[in prison] again."
		The confrontation ended when it was time for Garza to awaken her daughter and take
her to school.  Garza testified:

	It was time to get my daughter up and ready for school.  And I got up and got my
daughter ready for school.  And he never did anything in front of anyone.  So I knew
that, as long as she was awake in there, I was safe.  So I got her ready for school and
I took her to the bus stop.  When I returned home, I told him to be gone by the time
I got back from work that night or I was going to call for some help.

Garza then left for work.  Garza testified to injuries she incurred that evening and on prior occasions,
including bruises, scratches, and a bite mark on her face.  The State introduced photographs showing
the injuries on her chest, neck and face that were taken a "few days before the incident" by a
neighbor and also other photographs taken by her daughter in the months prior to the incident.  When
Garza returned from work that night and learned from her neighbor that appellant was still in the
house, she called 9-1-1 and reported the episode.  Appellant was arrested and indicted for aggravated
assault with a deadly weapon for intentionally and knowingly threatening Garza with imminent
bodily injury with a beer bottle.  A jury found appellant guilty and this appeal followed.

DISCUSSION
		In two issues, appellant complains that (i) the trial court erred by refusing to instruct
the jury on the lesser-included offense of assault because the evidence shows that appellant did not
use a deadly weapon to assault Garza and that, if he did use a beer bottle, it did not constitute a
deadly weapon, and (ii) he was denied effective assistance of counsel.

Lesser-Included Offense
		In his first issue, appellant complains that the trial court erred in not instructing the
jury on the lesser-included offense of assault, arguing that either appellant did not use the beer bottle
to assault Garza or, if he did use the beer bottle, it did not constitute a deadly weapon.  He urges that
the jury could have properly convicted appellant only of the lesser-included offense.  Appellant does
not challenge the sufficiency of the evidence.
		The parties agree that assault is a lesser-included offense of aggravated assault; it is
elevated when the defendant uses or exhibits a deadly weapon.  See Tex. Penal Code Ann.
§§ 22.01-.02 (West Supp. 2006).  A defendant is entitled to an instruction on a lesser-included
offense if (1) proof of the charged offense includes the proof required to establish the lesser-included
offense, and (2) there is some evidence 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.  Ferrel v. State, 55 S.W.3d 586, 589
(Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d 385, 403-04 (Tex. Crim. App. 1999).  Anything
more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge.  Bignall
v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (citing Rousseau v. State, 855 S.W.2d 666, 673
(Tex. Crim. App. 1993), cert. denied, 510 U.S. 919 (1993)).  The State argues that appellant did not
meet the second prong.
		A person commits the offense of misdemeanor assault if he intentionally, knowingly,
or recklessly causes bodily injury to another.  Tex. Penal Code Ann. § 22.01(a)(1).  A person
commits the offense of aggravated assault if he commits misdemeanor assault and either (i) causes
serious bodily injury to another, or (ii) uses or exhibits a deadly weapon during the commission of
the assault.  Id. § 22.02(a).  Therefore, in order to be entitled to an instruction on misdemeanor
assault, there must have been some evidence that appellant did not use or exhibit a deadly weapon.
		Garza testified that appellant threatened to break the bottle and cut her with it and
leaned over toward the bed to break it on the wooden portion of the bed.  She grabbed a flashlight
and held it in a defensive posture.  Garza testified:  "We sat there all night in a standoff, him
threatening to cut me and me threatening to defend myself with the Mag light."  Garza testified that,
on the morning of the incident, he scratched and hurt her as he attempted to restrain her from leaving
the house.  In addition, Garza testified that a week prior to the beer bottle incident appellant had
bitten her on the face.  Because appellant had harmed her previously, she believed he was capable
of carrying out his threats to kill and harm her.  If the jury believed Garza's testimony, appellant used
the bottle in a manner capable of causing serious bodily injury, that is, as a deadly weapon.
		Appellant testified on his own behalf, denying that any assault had occurred.  He
testified that Garza became mad when he had not fixed her car, that she told him their relationship
would not work out, and that she wanted him out of the house.  Garza told him he had to leave and
stood over him with the flashlight as though she was going to hit him as he packed his clothes:
"[She] leaned forward and raised up like she was fixing to konk me on the head with it."  He testified
that in response he picked up the empty beer bottle that he had finished that night and put it on his
shoulder.  When Garza asked what he was going to do with the beer bottle, he testified that he
responded, "Nothing. I'm just showing you how stupid you look."  And he set the bottle down. 
Appellant testified that he did not leave that morning because his foot was swollen and he could not
get a boot on his foot.  Appellant denied that he had threatened Garza in any way.
		The proof also showed that appellant wrote letters to the district attorney stating that
"I would like to get this over" without costing "the county any more than it has to," and that "I am
guilty of abuse on Tracie Garza."  But he attributed the injuries to his attempt to restrain Garza from
hitting him with whatever weapon she would use to "come at" him, including axes, a knife, a
wooden club, pepper spray, and a pistol.  Attributing the episode of September 28 to a "love spat,"
appellant stated that he was ashamed that he had hurt Garza and promised never to hurt her again. 
In another letter, he acknowledged he was "guilty of abuse" of Garza, that he had been raised in an
abusive home, and that he would agree to counseling and treatment for his "problem."
		At the charge conference, defense counsel requested an instruction on the lesser-included offense, reasoning that "a reasonable jury could find that a threat was made, but not find
that the beer bottle constituted a deadly weapon under the facts presented in this case."  The trial
court denied the request, concluding that there was no evidence to show that anything other than
aggravated assault had occurred:  "The Defendant said that it didn't happen and the complaining
witness said that it did.  And I haven't heard anything to say that it was anything else but."
		The record supports the trial court's conclusion.  Appellant denied the conduct of
which he was accused and particularly that he had used or exhibited the beer bottle to threaten Garza. 
The record does not contain evidence that would permit a jury to rationally find that if he was guilty
he was only guilty of the lesser-included offense.  If believed by the jury, the testimony would have
negated the requisite elements of both aggravated assault and the lesser-included offense of assault,
and would have supported an acquittal on both offenses.  The testimony did not establish that if he
was guilty, he was guilty only of the lesser offense of assault.  Appellant was therefore not entitled
to an instruction on the lesser-included offense of assault.  We overrule appellant's first issue.

Ineffective Assistance of Counsel
		In his second issue, appellant contends that he was denied effective assistance of
counsel.  Specifically, appellant asserts that his trial counsel were ineffective because they permitted
appellant's alleged history of abuse to permeate the trial.  He contends that his trial counsel failed
to object to the admission of prior episodes of domestic violence, including photographs of injuries
from other alleged acts of abuse, letters to Garza and the district attorney describing his own abuse
as a child and admitting abuse of Garza, and the testimony of a domestic violence expert who
reviewed appellant's letter to Garza to determine whether it reflected a cycle of domestic abuse. 
Appellant asserts that Garza's credibility was bolstered by the evidence of other episodes of domestic
violence and that appellant's credibility was undermined.
		For a claim of ineffective assistance of counsel to prevail, a defendant must first
show that his counsel's performance was deficient and that, if deficient, this performance prejudiced
the defense.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  Appellate review of defense
counsel's representation is highly deferential and presumes that counsel's actions fell within the wide
range of reasonable and professional assistance.  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.
2001); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000).  Under normal circumstances,
the record on direct appeal will not be sufficient to show that counsel's representation was so
deficient and so lacking in tactical or strategic decision-making as to overcome the presumption
that counsel's conduct was reasonable and professional.  Mata v. State, No. PD-1724-04,
2007 Tex. Crim. App. LEXIS 695, at *10-11 (Tex. Crim. App. June 6, 2007); see also Goodspeed
v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Mitchell v. State, 68 S.W.3d 640, 642
(Tex. Crim. App. 2002).  Rarely will the trial record contain sufficient information to permit a
reviewing court to fairly evaluate the merits of such a serious allegation:  "In the majority of
instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the
failings of trial counsel."  Thompson v. State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see
also Mitchell, 68 S.W.3d at 642 ("The reasonableness of counsel's choices often involves facts that
do not appear in the appellate record.  A petition for writ of habeas corpus usually is the appropriate
vehicle to investigate ineffective-assistance claims.").
		In the absence of evidence of trial counsel's reason for the challenged conduct,
we assume a strategic reason for trial counsel's conduct, if one can be imagined.  Garcia v. State,
57 S.W.3d 436, 440 (Tex. Crim. App. 2001) ("an appellate court 'commonly will assume a strategic
motivation if any can possibly be imagined,' and will not conclude the challenged conduct
constituted deficient performance unless the conduct was so outrageous that no competent attorney
would have engaged in it") (quoting 3 Wayne R. LaFave et al., Criminal Procedure § 11.10(c) (2d ed.
1999) and citing Thompson, 9 S.W.3d at 814)).  Appellant did not object to the introduction of
the complained-of evidence, and the evidence is arguably admissible to show motive, opportunity,
or intent.  See Tex. R. Evid. 404(b).  Here, the evidence may have been relevant and admissible to
provide context for appellant's spontaneous conduct on the night in question, Garza's response to
appellant's threats, and to respond to appellant's testimony of denial and that he was the
one threatened by Garza on that and prior occasions.  We conclude that the identified acts or
omissions were not outside the wide range of professionally competent assistance.  See Mata, 2007
Tex. Crim. App. LEXIS 695, at *10.
		We have a silent record before us on trial counsels' conduct and trial strategy. 
Because (i) we presume that counsel rendered adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment, (ii) the appellate record in this case does not
evidence the reasons for trial counsels' conduct, (iii) all of the alleged deficiencies could have been
the subject of trial strategy, and (iv) the evidence was relevant and arguably admissible, we overrule
appellant's second issue.

CONCLUSION
		Having overruled appellant's issues, we affirm the judgment of conviction.


  
						Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed:   June 19, 2007
Do Not Publish
