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



                                  OPINION

      A jury convicted appellant, Charles Ray Carter, of murder, and the trial court

assessed punishment at 50 years’ confinement. In a single point of error, appellant
contends the trial court abused its discretion in denying his motion for new trial,

which was based on allegations of ineffective assistance of counsel. We affirm.

                                      BACKGROUND

      In the early hours of September 1, 2013, appellant shot Earl Green to death;

the question for the jury was whether the shooting was justified.

Events Before the Shooting

      According to Freda Wilson, who had been Green’s mistress for thirteen years

at the time of trial, Green had become convinced that appellant and Freda were

sleeping together. Demond Frank testified at trial that there had been “an issue

ongoing between the defendant and [Green] about Freda” and they had been in a

physical fight over it in the past.

      Freda Wilson testified that she, Green, and other family members had spent

the evening fishing. She and Green returned to her home around one in the morning.

While they were unpacking Green’s Jeep outside Freda’s trailer, appellant pulled up.

He appeared angry and mad, but Freda did not think he was mad at her or Green.

Freda stated appellant had a gun in one hand and a pack of bullets in the other, but

he was was not pointing the gun at anyone.

      Q. So, once he got out of the car and you said he was mad, what
      happened next?

      A. [Green] asked him what he was doing there. And he said, Man,
      Green, this is not for us.

                                          2
      Q. I am sorry. What was that?

      A. Man, Green, this is not for us.

      Q. And then what happened next?

      A. Then [Green] started chasing him around the car.

      Q. So it was [Green] chasing the defendant around the car; is that
      correct?

      A. Yes.

      According to Freda, while Green was chasing appellant around the car, Green

said that he was going to get appellant. Freda grabbed Green and held him, and Green

told appellant to leave. Green was upset and appellant left. Freda testified that as

appellant was leaving, he said, “You better be glad my cousin loves you or not (sic)

I would kill you.” Freda continued to hold Green back for a few minutes, and when

she released him, Green left.

The Shooting

      Demond Frank, appellant’s cousin, testified that he had been at a club in La

Porte and, after he left there at about one a.m., he went to Jennifer Dangerfield’s

house. Jennifer was not there yet, but her sister, Nathanielle Blake, and Dameeka

Moore were there. Frank talked with the two women until appellant drove up about

10 minutes later. Frank went to the curb to talk to appellant through the passenger-

side window. At first he was leaning on the car while they talked, then appellant

started rolling forward, and Frank walked along by the car as they continued talking.
                                           3
      Frank testified that appellant was holding a gun. Appellant seemed nervous

and said that earlier Green had accused him of sleeping with Freda. Frank spotted

Green’s Jeep heading toward them from the opposite direction of appellant’s car:

“[Green] shot up on us and all I heard was say, [n****r], and I seen (sic) blue fire. I

drove (sic) on the ground.” Frank heard more than one shot.

      After the shooting, Green’s Jeep rolled backward toward a field. Frank

testified that when he checked on Green he was “gone,” so Frank drove off to look

for appellant, who had driven away slowly after the shooting. Frank spoke with

appellant later in the morning, and appellant said that he was going to turn himself

in.

After the Shooting

      Andre Godfrey and Jennifer Dangerfield were on the way to her home from a

club in La Porte when Jennifer received a telephone call about a shooting near her

house. On arrival at Jennifer’s home, the pair saw “a Jeep backed up in the street in

a field.” Andre knew the Jeep belonged to Green. The Jeep was still running when

he and Jennifer approached it and found Green, unconscious and bleeding, “face[]

down between the seats.” Andre testified he went to a nearby house and got his

cousin, Mark Patterson, and his friend, Clarence Williams, to come help.

Meanwhile, Jennifer called 911 and was told by the dispatcher to get Green out of

the Jeep and try to administer CPR.

                                          4
      Andre and Mark lifted Green out of the Jeep, and Jennifer, then Mark,

attempted to revive him. Andre estimated the paramedics or police arrived about 30

to 45 minutes later. Andre said he neither saw anyone approach the Jeep during that

time, nor did he see anything in the Jeep; specifically, he did not see a gun.

      Mark Patterson testified that he and some friends had been partying outside

his house when Andre arrived. Mark’s house was about two blocks from the

homicide scene. Mark and Clarence Williams went to the scene with Andre. When

they arrived, Mark saw Jennifer in the road and the Jeep with its lights on. He saw

no one else. He said he got Green out of the Jeep, and that Andre might have helped.

Jennifer, then Mark, performed CPR, but they were unable to resuscitate Green.

      The prosecutor asked Mark if he had heard the shots since he lived only two

blocks away, and he replied that he had heard some shots about 35 minutes before

Andre arrived. While he was there, he saw no one approach the Jeep or take anything

out of it. He never saw a gun in the Jeep.

                 INEFFECTIVE ASSISTANCE OF COUNSEL

      In his sole point of error, appellant contends that

      [t]he trial court abused its discretion in denying the motion for new trial
      because no reasonable view of the record could support the trial court’s
      ruling. The totality of representation demonstrates defense counsel at
      trial failed to investigate the law or facts of the case or to adequately
      prepare for either phase of trial.




                                             5
Specifically, appellant contends that, at the guilt-innocence phase of the trial,

defense counsel failed to (1) investigate or introduce evidence of gunshot residue

[GSR] on the decedent’s hands; (2) seek out fact witnesses; and (3) call an expert or

cross-examine the State’s expert about whether shell fragments of “undetermined

origin” indicated that the decedent had fired a weapon. Appellant also argues that

he received ineffective assistance of counsel at the punishment phase of the trial

because defense counsel called only two witnesses to testify on his behalf, and “it

would have been easy for [defense counsel] to find people in the community who

would have been available to testify to [appellant’s] good reputation in the

community, as well as [the decedent’s] capacity for violence.” We address each

issue respectively.

Standard of Review

      We review a trial court’s denial of a motion for new trial under an abuse of

discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim. App. 2004).

When the motion alleges ineffective assistance of counsel, we must determine

whether the trial court’s finding on the ineffective assistance argument and

subsequent denial of the motion for new trial were “so clearly wrong as to lie outside

the zone of reasonable disagreement.” Keller v. State, 125 S.W.3d 600, 606–07 (Tex.

App.—Houston [1st Dist.] 2003), pet. dism’d, improvidently granted, 146 S.W.3d

677–78 (Tex. Crim. App. 2004).

                                          6
      To be entitled to a new trial based on a claim of ineffective assistance of

counsel, a defendant must show, by a preponderance of the evidence, that (1)

counsel’s performance was so deficient that he was not functioning as acceptable

counsel under the Sixth Amendment and (2) the deficient performance prejudiced

the defendant: “there is a reasonable probability that, but for counsel’s

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

Andrews v. State, 159 S.W.3d 98, 101–02 (Tex. Crim. App. 2005) (citing Strickland

v. Washington, 466 U.S. 668, 687–96, 104 S. Ct. 2052, 2064–69 (1984) and

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999)).

      “Appellant bears the burden of proving by a preponderance of the evidence

that counsel was ineffective.” Thompson, 9 S.W.3d at 813. “When handed the task

of determining the validity of a defendant’s claim of ineffective assistance of

counsel, any judicial review must be highly deferential to trial counsel and avoid the

deleterious effects of hindsight.” Id. (citing Ingham v. State, 679 S.W.2d 503, 509

(Tex. Crim. App. 1984)).

      We indulge in a strong presumption that counsel’s conduct fell within the wide

range of reasonable assistance and that the complained-of action or omission might

be considered sound trial strategy. Ex parte Jimenez, 364 S.W.3d 866, 883 (Tex.

Crim. App. 2012). “The mere fact that another attorney might have pursued a

different tactic at trial does not suffice to prove a claim of ineffective assistance of

                                           7
counsel.” Id. “The Strickland test is judged by the ‘totality of the representation,’ not

by counsel’s isolated acts or omissions, and the test is applied from the viewpoint of

an attorney at the time he acted, not through 20/20 hindsight.” Id.

      Trial counsel’s failure to articulate a strategic reason for his action or inaction

does not mean that his conduct was per se deficient. Ex parte Saenz, No. WR945–1,

2016 WL 1359214, at *8 (Tex. Crim. App. April 6, 2016). Strickland requires courts

to judge defense counsel’s conduct by an objective standard of reasonableness. Id.

A decision that counsel defends as trial strategy might nonetheless be objectively

unreasonable; the magic word “strategy” does not insulate a decision from judicial

scrutiny. Id. (citing Ex parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007)).

Likewise, a decision not motivated by strategy might be objectively reasonable. Id.

      Moreover, after proving error, the appellant must affirmatively prove

prejudice from the deficient performance of his attorney. Hernandez v. State, 988

S.W.2d 770, 772 (Tex. Crim. App. 1999); Burruss v. State, 20 S.W.3d 179, 186

(Tex. App.—Texarkana 2000, pet. ref’d). The appellant must prove that his

attorney’s errors, 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

for the appellant to show that the errors had some conceivable effect on the outcome

of the proceedings. Id. He must show that there is a reasonable probability that, but

for his attorney’s errors, the jury would have had a reasonable doubt about his guilt

                                           8
or that the extent of his punishment would have been less. See id.; see also Bone v.

State, 77 S.W.3d 828, 836–37 (Tex. Crim. App. 2002).

Guilt-Innocence

      Failure to Introduce Gunshot Residue Evidence

      Appellant contends that defense counsel was ineffective for failing to present

evidence that the decedent, Green, had GSR on his hands, and that such evidence

was critical because it “was at least some evidence supporting the self-defense theory

but the jury did not hear about it.” Appellant’s argument regarding the GSR

evidence appears to be two-fold: (1) defense counsel did not even know about the

GSR evidence until after the trial, and (2) if he did know, he was ineffective for

failing to present it at trial. We address each argument respectively.

      Appellant testified by affidavit at the motion for new trial that, after his

conviction, defense counsel looked at the autopsy report and noticed that Green had

GSR on his hands. Appellant said that defense counsel “asked me not to let anyone

in the community know that he had missed that information before the trial and to

have my wife call him as soon as possible.” Defense counsel also mentioned filing

a new trial based on the GSR. Similarly, Alan Merrill, the person who had referred

appellant to defense counsel, testified that on the day of the conviction, defense

counsel said that there was no GSR on Green, but later told him that GSR had, in

fact, been found on Green’s hands.

                                          9
      In contrast, defense counsel testified that he did know about the GSR before

trial, but chose not to make an issue of it at that time for reasons detailed below.

Defense counsel explained that he had mentioned the GSR to appellant in connection

with a motion for new trial based “in the interest of justice,” not as newly discovered

evidence.

      The trial court was entitled to believe defense counsel’s testimony that he

knew about the GSR evidence before trial, and disbelieve appellant’s and Merrill’s

testimony to the contrary. Keeter v. State, 74 S.W.3d 31, 38 (Tex. Crim. App. 2002)

(holding at motion for new trial, factfinder is free to believe or disbelieve testimony

of any witness).

      Appellant also argues that, even if defense counsel knew of the GSR evidence,

he “failed in fulfilling his professional duty to put before the jury a highly significant

piece of the puzzle of why [appellant] fired the gun at [Green].” Thus, we must

decide whether defense counsel’s strategic choices regarding the GSR were

objectively reasonable. See Saenz, 2016 WL 1359214, at *8.

      When questioned at the motion for new trial hearing about his strategy

regarding the GSR evidence, defense counsel testified as follows:

      Q. What was your reason for not mentioning gunshot residue?

      A. The expert that testified at the time of trial, I asked questions in
      regards to did you find evidence that Earl Green had fired a weapon.
      Based upon that answer and him saying no, I didn’t want to go into it
      any further and him justify why finding gunshot residue on Earl Green,
                                           10
and also the report suggesting they found gunshot residue on two other
[witnesses]— actually, three other persons.

      ....

       I had done some research earlier on that once I received the
reports. I reviewed the reports. I found that there was gunshot residue
on three persons that tried to help Mr. Green that night. I found there
was gunshot residue in the vehicle. I found gunshot residue on both his
hands, which to me indicated the allegation is he shot a gun with both
hands versus one, then that might seem a little improbable. I was aware
of the fact that three people arrived on the scene to help him, which
would explain, by taking the body and moving it out of the vehicle, that
they may get contents on them. Questioned in trial extensively about
the scene, the contamination of the scene, how things might appear
differently than when the officers arrived. I knew three people helped
him out of the car. And I also concluded that when Mr. Green was shot
that the gunshot residue either sprayed on his hands or by him touching
the wound. Through the investigations that I did and research that I
looked at, that was possible.
       The fact that there was no gun found on Mr. Green, the fact that
there was no gun—bullet holes in [appellant’s] vehicle, the approach at
the time was to present a case that showed Mr. Green to be aggressive
and had aggressive actions toward [appellant], and hopefully the jury
discounts the fact or not consider the fact that Mr. Green didn’t have a
weapon. Had a weapon been found, then we would have considered
approaching and using gunshot residue in conjunction to a weapon
being found.

Q: So, your reason for not introducing the gunshot residue or evidence
of 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?

A: In conjunction with the testimony of the medical expert and the
forensic expert.

Q. 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?
                                  11
      A. Correct. And we voir-dired on that issue, we talked at length about
      that issue, and that was clearly the approach in trial.

      Q. So, the fact that there was gunshot residue evidence, you decided—
      you made the decision not to introduce it.

      A. Yes, I did.

      In defense counsel’s affidavit, which was admitted at the motion for

new trial hearing, he further explained his strategic reasoning.

      I was aware at the time of trial that gunshot residue (GSR) was found
      on the hands of the victim. However, I was also aware that GSR was
      found on the hands of the witnesses who pulled the victim from the car
      and attempted to do CPR on him, and I believed that introducing
      evidence of GSR would unnecessarily confuse the jury without
      explaining where the gun supposedly fired by the victim had
      disappeared to. The GSR 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 the Defendant’s vehicle,
      despite the fact that the vehicles were at nearly point blank range when
      the Defendant 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 Defendant’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
      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 the Defendant to the time of the murder . . . .



                                          12
      As defense counsel articulated, he decided not to make an issue of whether or

not Green had fired a weapon because (1) multiple people at the scene had GSR on

their hands, (2) the GSR on Green’s hands could have come from touching his own

wounds, (3) no gun was found in Green’s car, and, in fact, all of his guns were

accounted for, (4) there were no bullets in appellant’s car, even though his car was

parked at point blank range to Green’s car, and (5) there was expert testimony of

there being no evidence that Green had fired a gun. Rather than focus the jury on

whether or not Green had fired a weapon at appellant, defense counsel chose to

pursue a tactic that, even if Green did not have a weapon, appellant’s actions in

shooting him were self-defense. Defense counsel correctly argued that self-defense

was available even if appellant did not see Green with a weapon. See Garcia v.

State, 492 S.W.2d 592, 596 (Tex. Crim. App. 1973) (holding defendant entitled to

self-defense instruction when she shot husband who was advancing on her with his

hand behind his back, and he had earlier threatened to kill her); see also Hamel v.

State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996) (“A person has the right to

defend himself from apparent danger to the same extent as he would if the danger

were real.”); Jones v. State, 544 S.W.2d 139, 142 (Tex. Crim. App. 1976) (“[I]t was

not necessary that the jury find that the deceased was using or attempting to use

unlawful deadly force against appellant in order for appellant’s right of self-defense

to exist. It would be sufficient if the jury found that the appellant reasonably

                                         13
believed, as viewed from his standpoint at the time, that deadly force, when and to

the degree used, if it was, was immediately necessary to protect himself against the

use or attempted use of unlawful deadly force by the deceased.”). Defense counsel

was concerned that if he made his self-defense theory appear to hinge on whether or

not Green had fired a gun, the jury would reject self-defense if it determined that

Green did not have a gun. Indeed, defense counsel argued at the close of the guilt-

innocence phase that no gun was necessary to support self-defense:

      See, the crux of this thing is, was there a weapon in Mr. Green’s car,
      did he see a weapon, did they find a weapon? Guess what? [The jury
      charge] says: No, you don’t have to have that. It’s about what you
      perceive and did you perceive that to be real?

      ****

      [O]ne of the things I highlighted is it is not necessary that there be an
      actual attack or attempt. That’s not necessary. What’s necessary is that
      you felt the need to defend yourself under those circumstances.

      ****

      Do you believe that Mr. Carter reacted too quickly? I don’t. Why? Not
      but 15 minutes ago, maybe ten minutes ago you were chasing me
      around and you wanted to do something to me. And it didn’t appear to
      be very nice of what you wanted to do. And you knew I had a weapon.
      So, my perception is that you didn’t come flying around here empty
      handed. You came with intention to cause me harm. So, I’m going to
      protect myself. And that’s what [appellant] did. That’s called self-
      defense.

      While another attorney may have chosen a different strategy, given defense

counsel’s explanation of his trial strategy regarding the GSR evidence, we cannot

                                         14
say that defense counsel’s strategy was objectively unreasonable. Thus, on this

record, defense counsel’s decision not to introduce the GSR evidence did not deprive

appellant of effective assistance of counsel.

       Failure to Introduce Shell Fragments of “Undetermined Origin”

       The firearms expert’s report noted two shell fragments found at the scene that

were of “undetermined” origin—one lead fragment “that lacks individual, as well as

class characteristics and was unsuitable for microscopic comparison,” and “a jacket

fragment fired from a firearm with pologonal rifling of an undetermined caliber-

class.” At the motion for new trial hearing, appellant asserted that defense counsel

was ineffective for failing to use this evidence because “the presence at the scene of

these fragments of undeterminable origin might have corroborated [Green’s] having

fired at [appellant] . . . .”

       When asked why he did not question the firearms expert about the shell

fragments of undetermined origin, defense counsel stated:

       The undetermined casing could have very well been from—and she
       could have answered the question as it being from [appellant’s] weapon
       or it could have been from another weapon. I didn’t want to ask an
       open-ended question.

Defense counsel reiterated that his trial strategy was not to focus on the possibility

of Green having a weapon, which he felt he could not prove, but to show that

appellant’s response was reasonable self-defense, even if he did not see a weapon.

Specifically, defense counsel stated:
                                          15
              Going down the trial strategy again, there were a couple of
      thoughts. And as the evidence unfolded from the stand as well, the
      issue was [appellant] was in fear of his life and [Green] was the
      aggressor. No weapon being found was secondary to the issue of the
      fact that according to the law you don’t have to have a weapon if you
      feel that what you are doing is justified and you can show it. The fact
      that [Green] came rushing up on him in his vehicle and another witness
      testified to that, the fact that [Green] was chasing this man earlier, a few
      minutes earlier, while he had a weapon in his hand, showed that [Green]
      clearly was the aggressor. The fact that [Green] had alcohol in his
      system above the legal[] limit show that [Green] was possibly the
      aggressor in that circumstance, and that [appellant] had a right to defend
      himself from that. And I still believe that he does and did.

             And that was the approach at the time of the trial. So, I was not
      trying to highlight the issue and make an issue of the weapon, because
      with no weapon, I felt like the jury, from voir dire on forward, would
      find and only focus on the weapon.

As with the GSR evidence discussed above, defense counsel’s decision not to focus

on whether Green had a gun, a fact defense counsel felt that he could not prove given

the absence of a gun at the scene or bullet holes in appellant’s car, was not

objectively unreasonable. Thus, on this record, defense counsel’s choice not to

introduce the shell fragment evidence did not deprive appellant of effective

assistance of counsel.



      Failure to Seek Out Fact Witnesses

      Appellant also contends that defense counsel was ineffective for failing to

seek out fact witnesses that would have testified (1) about seeing someone near

Green’s Jeep and possibly removing something from the jeep, and (2) about
                                          16
appellant’s reputation for peacefulness and Green’s reputation for violence. Again,

we address each issue respectively.

      At the motion for new trial, appellant’s younger brother, Brian Carter, alleged

in an affidavit that he had seen someone run to Green’s Jeep, appear to take

something out of the Jeep, and then run behind a house. Defense counsel explained

in his affidavit that he never spoke to Brian Carter because, even though he asked

appellant for the names and phone numbers of potential witnesses, appellant never

mentioned that his own brother might have evidence relevant to his self-defense

strategy.

      The Defendant did not tell me until after the trial was over that his
      brother, Brian Carter, purportedly saw a black male go to the victim’s
      jeep before [sic] the shooting and remove something from the car.
      None of the witnesses to the shooting or its immediate aftermath ever
      mentioned that Brian Carter had been on the scene to witness anything.
      Additionally, the witnesses told police and testified that they did not
      see anyone approach the vehicle or remove anything from the vehicle.
      I discussed these issues with the assistant district attorney handling this
      case and I was aware that the State had interviewed the victim’s brother
      and the complainant’s nephew, both of whom categorically denied
      having taken anything from the victim’s vehicle prior to the arrival of
      police and paramedics. The State also informed me that the victim’s
      nephew is currently an active duty member of the military with no
      criminal history, which would likely have given him increased
      credibility with a jury and would have made it difficult to prove to a
      jury that he had intentionally tampered with evidence in order to frame
      the Defendant for murder. In trial, I made the strategic decision to
      present the argument to the jury that it did not matter whether the victim
      actually had a gun in his vehicle so long as it was reasonable for the
      Defendant to have believed that the victim had a gun and was about to
      use it at the time the Defendant used deadly force. The decisions I made

                                          17
      regarding which witnesses to present and what evidence to highlight for
      the jury were made with that strategic goal in mind.

Defense counsel’s failure to question appellant’s brother was reasonable since

appellant never even mentioned the possibility that his own brother might have

relevant information until after appellant’s conviction. See Strickland, 466 U.S. at

691 (“Counsel’s actions are usually based, quite properly, on informed strategic

choices made by the defendant and on information supplied by the defendant. In

particular, what investigation decisions are reasonable depends critically on such

information.”).

      Two other people—Aaron Johns and Jennifer Dangerfield—provided

affidavits suggesting that they saw Braelon Green, appellant’s nephew, go near the

Jeep after the murder. As defense counsel explained above, he discussed this issue

with police, found out that Braelon had denied taking anything from Green’s Jeep,

and that he decided not to pursue that line of questioning because he believed that

Braelon, an active duty member of the military with no criminal record, would be a

very credible witness before a jury if he denied removing a weapon from Green’s

Jeep. Instead, defense counsel chose to pursue his original trial strategy, which did

not rely on the existence of a gun in Green’s possession. Thus, on this record,

defense counsel’s to not interview Brian Carter or obtain witness statements to

suggest that Braelon or someone else had removed a gun from Green’s Jeep was not



                                         18
objectively unreasonable and did not deprive appellant of effective assistance of

counsel.

      We next consider whether defense counsel was ineffective for failing to obtain

witnesses to testify about appellant’s reputation for peacefulness. Specifically,

appellant alleges that defense counsel was deficient because “he neither sought out,

nor called any of the many people in Barrett Station that would have vouched for

[appellant’s] peaceful nature[,]” and “[n]either did [defense counsel] investigate the

aggressive nature of the decedent by interviewing people in the community.” In

support of a new trial on this ground, appellant offered the affidavits of numerous

people willing to testify as to his peaceful nature, as well as several people who had

witnessed a previous physical altercation between appellant and Green, and who

believed that Green initiated that altercation.

      When asked at the motion for new trial hearing why he did not further

investigate the peaceful nature of appellant or the violent nature of Green, defense

counsel responded:

      I’m aware that there were violent acts committed by Mr. Green and
      [appellant]. And after talking with [appellant], I advised him that we
      shouldn’t bring up certain ones of those violent acts because of the way
      he may look.

         ****
      As I mentioned earlier, I didn’t find any evidence from the research that
      I had done that would have substantiated that Earl Green had prior
      aggressions. In addition to that, there were instances that I talked with
      [appellant] about. Mr. Green and [appellant] had an extensive history
                                          19
      between the two of them. Once learning about what Mr. Carter’s
      version of those histories were, my fear was that it would indicate that
      [appellant] was the prior aggressor.

      For instance, there was one situation where they had a fight and
      [appellant] pulled a knife on [Green]. I said: We cannot present that.

Defense counsel was correct that, had he offered evidence of appellant’s or Green’s

reputation for peacefulness or the lack thereof, the State could have cross-examined

the character witness with “relevant specific instances of the person’s conduct.” See

TEX. R. EVID. 405(a)(1). After discussing with appellant the earlier altercations

between appellant and Green, defense counsel made the strategic decision not to

explore any reputation evidence because he did not want the jury to know that, on a

prior occasion, appellant had pulled a knife on Green during a fight. Even if Green

had been the aggressor in that altercation, as suggested by the affidavits offered by

appellant at the new trial hearing, it was reasonable for defense counsel to conclude

that the evidence was best not presented to the jury because appellant had pulled a

knife on an unarmed man and arguably escalated the altercation. And, in the charged

offense, appellant had again used a weapon against an unarmed man.

      Defense counsel also stated that he did not obtain any reputation evidence

because “[appellant] had extraneouses. He had an event that occurred earlier that

night where there was a shooting—.” The “event” to which defense counsel refers

was a shooting that took place at a night club in La Porte on the same night as the

murder, using the same weapon. At the motion for new trial, appellant suggested
                                         20
that, had defense counsel further investigated this event, he would have discovered

that appellant was not a suspect in the earlier shooting, but that the police suspected

the State’s witness, Demond Frank.

      However, even if Frank were the shooter in the earlier event, the State could

still have cross-examined any reputation witnesses about whether they were aware

that somehow appellant came to be in possession of a gun that Frank had used earlier

that night to shoot someone. Defense counsel could have been concerned that such

evidence would raise an issue of whether appellant had aided or abetted Frank in

some way by taking Frank’s gun, which appellant then later used to shoot Green.

      Thus, on this record, defense counsel’s choice not to seek out and introduce

evidence of appellant’s and Green’s reputations for peacefulness was not objectively

unreasonable and did not deprive appellant of effective assistance of counsel.

Punishment

      Appellant also contends that defense counsel was ineffective based on his

decision to have only two witnesses—appellant’s wife and cousin—testify on his

behalf at the punishment hearing.       Appellant argues that many people in the

community would have been willing to provide mitigating evidence for appellant,

and in support showed the trial court at the motion for new trial hearing 28 letters

written on his behalf.

      Failure to Present Sufficient Mitigating Evidence

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      When questioned about his decision to call only two witnesses at punishment,

defense counsel explained:

      I made the decision to limit the testimony to just the Defendant’s wife
      and cousin because I felt they would best be able to present the positive
      aspect of the defendant’s character and history to the judge. Because
      the Defendant had elected to go to the judge for punishment instead of
      the jury, I felt that it would be more persuasive to limit the number of
      redundant witnesses.

This case is unlike Shanklin v. State, 190 S.W.3d 154, 164–65 (Tex. App.—Houston

[1st Dist.] 2005), pet. dism’d, improvidently granted, 211 S.W.3d 315 (Tex. Crim.

App. 2007), in which this Court found ineffective assistance of counsel when

defense counsel did not interview or present any character evidence at punishment,

and his decision not to call witnesses was not the result of “any reasoned trial

strategy.” Here, defense counsel made a reasoned, strategic choice to limit the

character witnesses to the two that he thought would be more persuasive to the judge,

and to avoid having several witnesses testifying to essentially the same information.

The decision to call a witness is generally, as it was here, a matter of trial strategy.

State v. Thomas, 768 S.W.2d 335, 337 (Tex. App.—Houston [14th Dist.] 1989, no

pet.). And, “[e]ven if such [additional mitigating] evidence existed, defense counsel

could have reasonably determined that the potential benefit of additional witnesses

or evidence was outweighed by the risk of unfavorable counter-testimony.” Bone v.

State, 77 S.W.3d at 835 (citing TEX. R. EVID. 404(b), 405, 608).

      We overrule appellant’s sole issue on appeal.
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                                CONCLUSION

      We affirm the trial court’s judgment.


                                              Sherry Radack
                                              Chief Justice

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

Jennings, J., dissenting

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




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