Affirmed and Opinion filed April 5, 2012.




                                           In The

                           Fourteenth Court of Appeals
                                  ___________________

                                   NO. 14-10-01003-CR
                                  ___________________

                                LEE JOSEPH, Appellant

                                             V.

                           THE STATE OF TEXAS, Appellee


                        On Appeal from the 208th District Court
                                 Harris County, Texas
                            Trial Court Cause No. 1221058


                                       OPINION

       Appellant Lee Joseph appeals his conviction for murder. A jury found appellant
guilty and assessed punishment at twenty-two years in prison. On appeal, appellant
contends that his trial counsel failed to provide him with effective assistance based on three
distinct arguments: (1) failure to conduct an independent investigation of facts in order to
adequately present a claim of self defense; (2) failure to object to questions by the
prosecution asking appellant whether various witnesses had lied during their testimony;
and (3) failure to present reputation and fact witnesses during the punishment phase of the
trial. We affirm.
                                      BACKGROUND

          On June 18, 2009, appellant shot and killed Edward Colomb. Appellant owned a
barn where Colomb kept horses. A week earlier, on June 10, 2009, appellant and Colomb
got into an argument about whose horse would win in a race. When Mr. Colomb’s
girlfriend Andrea Houston interjected, appellant got upset and told her that she would have
to move her horses and get off his property. Over the course of the next week, Colomb
and Houston moved all but one of their horses to another barn.

          On the night of the shooting, Colomb and Houston’s brother, Shannon Thomas,
came to appellant’s property to feed the remaining horse. Appellant testified that Colomb
and Thomas pulled up to his property “real fast,” after which an altercation between
appellant and Colomb ensued.         As the argument progressed, Thomas and Colomb
approached appellant, and appellant testified that he was frightened because both Colomb
and Thomas were bigger, stronger, and younger than he, and he thought they were going to
hurt him “real bad.” As Colomb and Thomas moved towards appellant, appellant backed
up towards a trailer until he could not go further. At that point, appellant drew a gun,
aimed it at Thomas and Colomb, and told them, “Y’all need to get out of this barn.” When
they continued to approach, appellant fired several shots and Colomb was shot once and
killed.

          Appellant was tried for murder and subsequently convicted by a jury on October 8,
2010. The jury assessed punishment at twenty-two years’ imprisonment. On November
8, 2010, appellant filed a motion for new trial which was denied by the trial court.
Appellant timely appealed.

                                          DISCUSSION

          On appeal, appellant contends that he was denied effective assistance of counsel.
In three issues, appellant argues that:



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          1. Trial counsel failed to conduct an independent investigation of the facts
              necessary to present a claim of self defense;

          2. Trial counsel failed to object to questions by the prosecution asking appellant
              if a number of the witnesses had lied under oath; and

          3. Trial counsel failed to present reputation and fact witnesses during the
              punishment phase of the trial.

       We discuss issues one and three together, and issue two on its own merits.

I.   Failure to Conduct an Independent Investigation and Failure to Present
Reputation and Fact Witnesses

       In his first and third issues, respectively, appellant argues that trial counsel: (1)
failed to complete an investigation necessary to present appellant’s claim of self defense,
and (2) failed to present reputation and fact witnesses during the punishment phase of the
trial. Although these allegations are independent of one another—one speaking to the
guilt-innocence phase of the trial and the other addressing the punishment stage—they
both involve the same witnesses and therefore the issues are interrelated and we address
them together.

       Ineffective assistance of counsel claims are reviewed under the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland analysis, appellant
must satisfy a two-prong test to prove ineffective assistance of counsel. Id. at 687. To
satisfy the first prong, “a defendant must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. The second prong requires appellant
to demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694.

       Appellant argues that he was prevented from presenting an adequate claim of self
defense at trial as a result of his counsel’s failure to investigate. Strickland maintains that
where there is only one plausible line of defense, counsel must conduct a “reasonably
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substantial investigation” into that line of defense, since there can be no strategic choice
that renders such an investigation unnecessary. Id. at 680. The investigation need not be
exhaustive, but it must include “an independent examination of the facts, circumstances,
pleadings and laws involved.” Id.

       Here, appellant argues that his trial counsel failed to interview seven available
character and fact witnesses who were willing to testify at trial.         Appellant further
contends his counsel did not call Rick Collins, his employer of thirty-five years, to testify,
nor did he call Joseph Jason Cormier even though Cormier was present in the courtroom
each day of appellant’s trial.

       We are presented with almost no evidence demonstrating what trial counsel did or
did not do regarding an investigation of the facts. The record simply shows that counsel
asked appellant to bring his witnesses into counsel’s office and appellant did so. The
reasonableness of an attorney’s investigation may turn on information supplied to him by a
defendant. Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994). Counsel contends that he
chose not to use a particular witness—specifically, Rick Collins—because appellant
described Mr. Collins to counsel as “not nice” and “racist.” When a defendant gives
counsel reason to believe that pursuing certain investigations would be harmful, counsel’s
failure to pursue such investigations may not be deemed unreasonable. Strickland, 466
U.S. at 691.

       Appellant’s argument that his counsel’s failure to conduct an investigation
prevented him from adequately asserting his claim of self defense lacks merit.
Appellant’s counsel testified that he believed he adequately presented appellant’s self
defense claim through the testimony of Andrea Houston, Joe Bolden, and appellant
himself. The record reveals that appellant testified regarding his state of mind at the time
of the shooting and that he shot Colomb in self defense. Appellant testified that when
Colomb and Thomas were approaching him, he feared for his life. Appellant was unsure
if Colomb and Thomas would kill him, but thought they would “hurt [him] real bad.” We
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conclude that appellant has not shown ineffective assistance of counsel in the presentation
of appellant’s claim of self defense primarily through appellant’s own testimony.
Accordingly, we overrule appellant’s first issue.

       In his third issue, appellant contends that his trial counsel failed to present
reputation and fact witnesses during the punishment phase of the trial.          During the
punishment phase of trial, appellant’s counsel presented appellant’s wife and children as
character witnesses. Counsel later stated that he did not call other witnesses because
“anything we had outside would have been cumulative.” Lacking any evidence to the
contrary, we presume that counsel rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at
690. Moreover, the decision to call witnesses is generally a matter of trial strategy. State
v. Thomas, 768 S.W.2d 335, 337 (Tex. App.—Houston [14th Dist.] 1989, no pet.).

       The failure to interview eyewitnesses to a crime may support a claim of ineffective
assistance of counsel. Bryant, 28 F.3d at 1415. In the instant case, however, there were
no potential alibi witnesses or eyewitnesses. All of the affiants in question stated they
were willing to testify to either appellant’s character or the victim’s reputation, but none
could testify to the actual events on the night of the shooting. A high degree of deference
must be given to counsel’s decision not to further investigate these witnesses. Wiggins v.
Smith, 539 U.S. 510, 521–522 (2003). We conclude that counsel’s actions did not fall
outside the standard of reasonable professional conduct.

       It has been said that “surmounting Strickland’s high bar is never an easy task.”
Cullen v. Pinholster, 131 S.Ct. 1388, 1408 (2011). Here, trial counsel’s performance
cannot be said to have fallen outside the realm of reasonable conduct, and accordingly, the
first prong of the Strickland test has not been satisfied. See Kimmelman v. Morrison, 477
U.S. 365, 381 (1986) (noting that the reasonableness of counsel’s performance is to be
evaluated from counsel’s perspective at the time of the alleged error and in light of all the
circumstances, and that the standard of review is highly deferential). Because appellant
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has failed to satisfy the first prong of the test, we need not consider an analysis under the
second prong.     See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
Accordingly, appellant’s first and third issues are overruled.

II. Failure to Object to Questions by the Prosecution

       In his second issue, appellant alleges that trial counsel failed to object to questions
by the prosecution asking appellant whether a number of the witnesses had lied under oath.
During trial, there was a divergence in testimony between appellant’s account of events,
and the other witnesses’ versions. Appellant raised this issue on direct examination when,
in response to one of trial counsel’s questions he replied, “they telling a lie.” In response,
the prosecution asked appellant, in a series of questions during cross-examination, whether
or not several other witnesses had lied during their testimony, to which appellant answered
in the affirmative. The prosecution’s final question in this regard was: “Is there anybody
that testified during this trial that didn’t lie about you Mr. Joseph?” To which appellant
replied: “So far not.”

       It is not proper for an attorney to question one witness about the truthfulness of
another witness’s testimony. Lopez v. State, 200 S.W.3d 246, 257 (Tex. App.—Houston
[14th Dist.] 2006, pet. ref’d). However, when viewing the record as a whole, such
questions are usually held harmless because they simply highlight the fact that defendant
disagrees with the State’s witnesses’ testimony. Temple v. State, 342 S.W.3d 572, 615
(Tex. App.—Houston [14th Dist.] 2010, pet. granted). Where there is a sharp conflict in
testimony, appellant’s testimony that the officer was wrong could not have injured him
before the jury. Ayala v. State, 352 S.W.2d 955, 956 (Tex. Crim. App. 1962); Streff v.
State, 890 S.W.2d 815, 820 (Tex. App.—Eastland 1994, pet. ref’d) (“Given the
contradicting testimonies, the error was harmless.”); Creech v. State, 329 S.W.2d 290, 291
(Tex. Crim. App. 1959) (“[W]hen the appellant said that the officer was lying, he was
merely saying that his version of the affair was correct and that of the officer incorrect. We


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see nothing in such answer which would tend to bring him into disrepute with the jury.”);
see also Temple, 342 S.W.3d at 615.

       Moreover, whether counsel’s performance fell below the reasonableness standard is
irrelevant because appellant would fail to meet the second prong of the Strickland test.
466 U.S. at 691. The essential fact of the case is not in dispute: appellant admitted to
shooting the victim. Considering the totality of the circumstances, we cannot say that the
result would have been different had appellant’s counsel objected to the prosecution’s line
of questioning. Accordingly, appellant’s second issue is overruled.

                                      CONCLUSION

       With respect to appellant’s first and third issues, appellant has failed to meet his
burden of showing that trial counsel’s performance fell below a reasonable standard, or
that if it had, then but for counsel’s performance, the outcome of the trial would have been
different. With respect to appellant’s second issue, we find that the prosecution’s line of
questioning was improper, but the error was nevertheless harmless. Therefore, because
counsel’s conduct did not fall below a reasonable standard, appellant has failed to meet the
high burden required to satisfy the first prong of the Strickland ineffective assistance of
counsel test. Accordingly, we overrule appellant’s three issues on appeal, and we affirm
the judgment of the trial court.


                                          /s/       Martha Hill Jamison
                                                    Justice



Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Publish — TEX. R. APP. P. 47.2(b).




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