Opinion issued August 4, 2016




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                            ————————————
                               NO. 01-14-01006-CR
                            ———————————
                     CHARLES RAY CARTER, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 337th District Court
                            Harris County, Texas
                        Trial Court Case No. 1399940



                             DISSENTING OPINION

      In this murder case in which self-defense was the critical issue, the majority

erroneously concludes that the strategy of the trial counsel of appellant, Charles Ray

Carter, to not introduce evidence that the complainant, Earl Green, had a significant
amount of gunshot residue on his dominant left hand at the time appellant shot him

was not “objectively unreasonable.” From this conclusion, it erroneously holds that

appellant was not deprived of effective assistance of counsel at trial. Accordingly,

I respectfully dissent.

      In his sole issue, appellant argues, in part, that the trial court erred in denying

his motion for new trial because “[n]o conceivable strategy could have justified

keeping . . . from the jury” evidence that the complainant had a significant amount

of gunshot residue on his “dominant [left] hand” at the time that appellant shot him.

He asserts that his “acquittal turned on whether he reasonably believed his life was

in real or apparent danger” from the complainant when the complainant, driving his

Jeep, “came speeding down the street, pulling over to the wrong side of the street”

so that the driver’s window of the Jeep and the driver’s window of appellant’s car,

in which he was sitting, “were facing one another.”         Appellant emphasizes the

obvious: “Whether [the complainant] had fired—or even pointed—a weapon at

[him] was a critical issue to the defense, particularly since no weapon was found in

[the complainant’s] Jeep.”

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

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

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

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

                                           2
Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S. Ct. 2052, 2064, 2068

(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Appellant has the burden of

establishing both Strickland prongs by a preponderance of the evidence. Jackson v.

State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

      Because appellant presented his ineffective-assistance claim to the trial court

in a motion for new trial and received a hearing on his motion, we analyze his issue

under an abuse-of-discretion standard as a challenge to the denial of his motion.

Biagas v. State, 177 S.W.3d 161, 170 (Tex. App.—Houston [1st Dist.] 2005, pet.

ref’d). We view the evidence in the light most favorable to the trial court’s ruling

and uphold the trial court’s ruling if it is within the zone of reasonable disagreement.

Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). We do not substitute

our judgment for that of the trial court, but rather decide whether the trial court’s

decision was arbitrary or unreasonable. Webb v. State, 232 S.W.3d 109, 112 (Tex.

Crim. App. 2007); Biagas, 177 S.W.3d at 170. A trial court abuses its discretion in

denying a motion for new trial only when no reasonable view of the record could

support the trial court’s ruling. Webb, 232 S.W.3d at 112.




                                           3
      At the new-trial hearing, appellant introduced into evidence the following

excerpt from the gunshot residue report by analyst Jason Schroeder related to the

complainant’s hands:




      Appellant also introduced into evidence the affidavits of Brian Carter, his

brother, Aaron Jones, and Jennifer Dangerfield. In his affidavit, Brian Carter

testified that after the shooting, he saw someone run to the complainant’s Jeep,

appear to take something out of the Jeep, and run behind a “club.” Jones testified

that he saw Braelon Green, the complainant’s nephew, approach the Jeep after the

shooting, look inside, and “r[u]n off.” And Dangerfield testified that her sister,

Nathanielle Blake, saw the complainant’s brother, Barry Green, and the

complainant’s nephew, Braelon Green, approach the Jeep after the shooting.

      Even if the trial court dismissed the testimony of Brian Carter, Jones, and

Dangerfield, it was not free to dismiss the uncontroverted evidence regarding the

gunshot residue found on the complainant’s hands, specifically his dominant left

hand. From the evidence of the gunshot residue found on the complainant’s hands,
                                        4
especially given the fact that a much greater amount was found on the complainant’s

dominant left hand, the jury could have reasonably inferred that the complainant, as

he caused his Jeep to approach appellant’s car at a high speed, fired a shot at

appellant when the driver’s side window of his Jeep aligned with the driver’s side

window of appellant’s car. Had the jury had before it the gunshot residue evidence

from which it could have made this inference, it, if it had made the inference, would

have most probably acquitted appellant.

      As the majority notes, appellant’s trial counsel did testify at the new-trial

hearing that he did not introduce evidence that the complainant was found to have

gunshot residue on his hands because he believed that, insofar as a firearm was not

found in the complainant’s car, and others also had gunshot residue on their hands,

the gunshot residue found on appellant’s hands could have possibly confused the

jury. He noted that his “approach at the time was to present a case that showed [the

complainant] to be aggressive and [that he] had [taken] aggressive actions toward

[appellant].” Specifically, appellant’s trial counsel testified as follows:

      [New-Trial Counsel]:              So, your reason for not introducing the
                                        gunshot residue or evidence of [the]
                                        gunshot residue was because you were
                                        hoping that a jury would not even look
                                        at the issue of whether or not there was
                                        a weapon?

      [Appellant’s Trial Counsel]:      In conjunction with the testimony of
                                        the medical expert and the forensic
                                        expert.
                                           5
      [New-Trial Counsel]:               So, you thought -- your thinking was
                                         ultimately I’m not going to introduce
                                         the gunshot residue evidence because I
                                         think the jury may be able to acquit
                                         him without there being any evidence
                                         of there being a gun?

      [Appellant’s Trial Counsel]:       Correct. And we voir-dired on that
                                         issue, we talk[ed] at length about that
                                         issue, and that was clearly the
                                         approach in trial.

      [New-Trial Counsel]:               So, the fact that there was gunshot
                                         residue evidence, you decided -- you
                                         made the decision not to introduce it.

      [Appellant’s Trial Counsel]:       Yes, I did.

In his affidavit, filed in the trial court, appellant’s trial counsel further explained:

      . . . I believed that introducing evidence of [the gunshot residue] would
      unnecessarily confuse the jury without explaining where the gun
      supposedly fired by the victim had disappeared to. The [gunshot
      residue] on the victim’s and witness[es]’ hands also contradicted the
      fact that no gun was recovered from the victim’s car, no shell casings
      were recovered from the victim’s car, and there was no evidence
      whatsoever of any bullet strikes to [appellant]’s vehicle, despite the fact
      that the vehicles were at nearly point blank range when [appellant] fired
      into the victim’s car. In trying the case and presenting the case to the
      jury, I was making the argument based on the reasonableness of the
      [appellant]’s actions based on apparent danger and his perceived,
      reasonable belief that the victim owned a gun and was coming towards
      him in a threatening and aggressive manner.

      I was aware that the victim owned several firearms and that he
      frequently carried a pistol in the glove compartment of his vehicle.
      However, I was also aware that police investigated this issue and
      determined that all of the victim’s firearms were accounted for by his
      wife and that from the victim’s phone and text messages the night of
                                            6
      the murder, it did not appear that he had had the opportunity to go to
      his house to retrieve a firearm between the time of his initial encounter
      with [appellant] to the time of the murder[.]

(Emphasis added.)

      From the evidence, the majority, as noted above, concludes that it “cannot say

that defense counsel’s strategy was indeed objectively unreasonable.” Respectfully,

however, the strategy of appellant’s trial counsel was objectively unreasonable.

      Frankly, the so-called strategy of appellant’s trial counsel makes no sense.

First, trial counsel’s thinking that “ultimately I’m not going to introduce the gunshot

residue evidence because I think the jury may be able to acquit without there being

any evidence of there being a gun,” is completely at odds with the fact that the

gunshot residue found on the complainant’s hands, especially the much greater

amount found on his dominant left hand, serves to establish that he not only had a

gun on his person at the time he caused his Jeep to approach appellant’s car, but that

he actually fired the gun. Without this evidence, all the jury had before it to support

appellant’s claim of self-defense was that the complainant owned guns and caused

his Jeep to approach appellant’s car.

      Second, trial counsel’s strategy was at odds with itself. On the one hand,

counsel stated, “I believed that introducing evidence of [the gunshot residue] would

unnecessarily confuse the jury without explaining where the gun supposedly fired by

the victim had disappeared to.” On the other hand, trial counsel stated, “I was

                                          7
making the argument based on the reasonableness of [appellant]’s actions based on

apparent danger and his perceived, reasonable belief that the victim owned a gun

and was coming towards him in a threatening and aggressive manner.” (Emphasis

added.) Counsel admits that his strategy was based on the fact that the complainant

“owned” guns. Yet he failed to introduce the only available evidence that the

complainant actually had a gun on his person and fired it as he approached appellant.

In counsel’s own words, “[t]he [gunshot residue] on the victim’s and witness[es]’

hands [would have] contradicted the fact that no gun was recovered from the

victim’s car . . . .” (Emphasis added.)

      Even without the evidence from Brian Carter that he saw someone run to the

complainant’s Jeep after the shooting, appear to take something out, and run behind

a “club,” the fact that the complainant had gunshot residue, primarily on his

dominant left hand, would have actually served to establish that he had a gun on his

person at the time of the shooting and fired it. Merely establishing that the

complainant owned guns served no such purpose. In other words, rather than

confusing the jury about whether the complainant actually had a gun in his Jeep at

the time of the shooting, trial counsel affirmatively chose to not present the jury with

the gunshot residue evidence—the only evidence that would have supported an

inference that the complainant had a gun in his Jeep. His choice left the jury with




                                           8
no evidence that the complainant had a gun on him at the time of the shooting, and

it, in effect, undermined appellant’s self-defense claim.

      Thus, this “strategy” was objectively unreasonable. See Strickland, 466 U.S.

at 687–88, 104 S. Ct. at 2064; see also Ex parte Saenz, No. WR-80,945-01, ---

S.W.3d ---, 2016 WL 1359214, at *8 (Tex. Crim. App. Apr. 6, 2016) (decision

counsel defends as “trial strategy” might nonetheless be objectively unreasonable;

magic word “strategy” does not insulate decision from judicial scrutiny (internal

quotations omitted)). Moreover, trial counsel’s deficient performance necessarily

prejudiced appellant. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Again,

from the evidence of the gunshot residue found on the complainant’s hands,

especially with the greater amount found on his dominant left hand, the jury could

have reasonably inferred that the complainant, as he caused his Jeep to approach

appellant’s car at a high speed, fired a shot at appellant when the driver’s side

window of his Jeep aligned with the driver’s side window of appellant’s car. And

had the jury had before it the gunshot residue evidence from which it could have

made this inference, it, if it had made the inference, would have most probably

acquitted appellant. See id.




                                          9
         Accordingly, I would hold that the trial court erred in denying appellant’s

new-trial motion, reverse the trial court’s judgment, and remand the case for a new

trial.




                                               Terry Jennings
                                               Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.

Jennings, J., dissenting.

Publish. TEX. R. APP. P. 47.2(b).




                                          10
