Affirmed and Opinion Filed January 15, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00606-CR

                                 JT WILLIAMS, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                   Dallas County, Texas
                           Trial Court Cause No. F-1676083-Y

                             MEMORANDUM OPINION
                   Before Justices Bridges, Partida-Kipness, and Pedersen, III
                               Opinion by Justice Partida-Kipness
          A jury convicted JT Williams of murder and assessed punishment at forty years’

imprisonment. On appeal, Williams contends that he received ineffective assistance of counsel

due to counsel’s failure to request a jury instruction on voluntariness. We affirm the trial court’s

judgment.

                                           Background

       In the pre-dawn hours of July 14, 2016, Williams shot and killed Albert Brown during an

argument while sitting in a car in an Oak Cliff park. The argument arose during a conversation

between Williams and Brown regarding Williams’s suspicion that his girlfriend, Ykella Bickems,

had been cheating on him with Brown.

       Williams met Brown several years earlier when Williams, Bickems, and Bickems’s

daughter moved into an apartment near Brown’s. The record reflects that Williams and Brown
became friends. Several months before the shooting, however, Williams began to suspect that

Bickems had been cheating on him with Brown and another man. Williams called the men to

discuss his suspicions, and both men denied the allegations.

       Bickems testified that she and Williams moved out of the apartment complex in May 2016.

According to Bickems, Williams said he could not stay in the apartment because people were after

him, and the couple began staying in various hotels. Williams continued to accuse Bickems of

cheating on him after the couple moved from the apartment.

       On the night of the shooting, Williams and Bickems were staying in a hotel in Waxahachie.

Williams called Brown to ask if Brown would cut Williams’s hair. Brown agreed, and Williams

and Bickems drove in Bickems’s car to Brown’s apartment in Dallas. Bickems testified that

Williams drove and would not let her sit in the front seat during the trip. Bickems also testified

that she typically kept a gun in the car’s center console. Williams had begun carrying the gun, and

Bickems testified that she saw the gun on Williams earlier that day.

       As Williams drove up to Brown’s apartment, Brown came out to meet him on the street.

Williams told Brown that he wanted some marijuana. Brown said he didn’t have any and offered

to take Williams to a supplier in Brown’s apartment complex. Williams declined and suggested

instead that they go to Williams’s supplier in Oak Cliff. Eventually, Williams convinced Brown

to go with him to Oak Cliff, and Brown got in the front passenger seat of the car.

       Williams drove to a park in Oak Cliff that was allegedly around the corner from his

marijuana supplier. Williams did not call his supplier but stopped the car and began talking with

Brown about his suspicion that Brown had been sleeping with Bickems. Williams testified that

Bickem’s gun was in a cup holder on the console while he and Brown talked.

       Bickems, who was in the backseat during the entire trip, testified that she did not think

Brown was aware of her presence because the car was dark inside and she sat quietly looking at

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Facebook photos on her cell phone the entire time. Bickems testified that Williams and Brown

initially joked with one another but started arguing after Brown insulted Williams. Bickems said

it was normal for Williams and Brown to argue in this way.

        Williams testified that at some point during the argument Brown reached for the gun. A

“tussle” ensued when Williams attempted to stop Brown. Williams slapped Brown’s face, and the

gun fell in Brown’s lap. Williams testified that the gun went off when he grabbed it from Brown’s

lap. According to Williams, he did not intend to shoot Brown, but the gun went off accidentally.

        Bickems testified that she did not witness the “tussle” but felt the car shift before she heard

the gun shot. She looked up immediately after the shot and saw Williams with his arm extended

and pointing the gun at where Brown’s head had been. Brown was slumped over towards the

passenger-side door.

        The medical examiner testified that Brown died of a gunshot wound to the head. The

medical examiner noted that the bullet entered the left side of Brown’s head and exited the right

side, “basically straight across, left to right, with no significant vertical deviation or front to back

deviation.” The rear passenger-side window was shattered by the bullet that passed through

Brown’s head.

        Immediately after the shooting, Williams pulled Brown from the car and pushed the

shattered rear passenger-side window into the car. Williams drove back to the hotel in Waxahachie

with Bickems in the backseat of the car. Williams and Bickems cleaned up the car and stayed at

the hotel until police visited them.

        Using Brown’s cellphone records, police learned that Williams had been near Brown’s

apartment on the night of the shooting, and contacted Williams. Police met with Williams and

Bickems on July 21, 2016, and impounded Bickems’s car. Williams and Bickems were later

arrested in Natchez, Louisiana.

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       Williams initially implicated Bickems in Brown’s shooting but later recanted and claimed

that he shot Brown in self-defense. Williams also testified that he shot Brown accidentally. When

Williams was asked why he had the gun, which was prohibited due to his prior felony conviction,

Williams stated that he and Bickems were in danger. The jury found Williams guilty of murder.

                                             Analysis

       Williams claims that trial counsel provided ineffective assistance by failing to request a

jury instruction on voluntariness, instead arguing that Williams acted in self-defense.

       To prevail on an ineffective assistance of counsel claim, an appellant must establish both

that his trial counsel performed deficiently and that the deficiency prejudiced him. State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). With respect to the first prong, the record on appeal must be sufficiently

developed to overcome the strong presumption of reasonable professional assistance.            See

Thompson v. State, 9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). Absent an opportunity for trial

counsel to explain his actions, we will not conclude his representation was deficient “unless the

challenged conduct was so outrageous that no competent attorney would have engaged in it.”

Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

       The record indicates that the self-defense theory was discussed during voir dire. Defense

counsel also addressed intent as an element of murder and questioned the venire on whether a

person charged with murder should receive leniency if he did not intend to kill. The State also

discussed with the venire how a murder charge can be reduced by evidence the death was

accidental. Williams testified during trial that the shooting was an accident. In closing argument,

both defense counsel and the State addressed accident as a possible cause. Defense counsel also

argued that the only fact at issue was “what caused the gun to be discharged,” and asked the jury




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to decide whether Williams discharged the gun in self-defense. The jury charge included an

instruction on justified use of deadly force in self-defense.

       A person commits a criminal offense only if he voluntarily engages in conduct, including

an act, an omission, or possession. TEX. PENAL CODE ANN. § 6.01(a). “‘[T]he issue of the

voluntariness of one’s conduct, or bodily movements, is separate from the issue of one’s mental

state.’” Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997) (quoting Adanandus v. State,

866 S.W.2d 210, 230 (Tex. Crim. App. 1993)). When evidence of an independent event, such as

the conduct of a third party, is presented, a defendant is entitled to an instruction on involuntary

conduct when requested. Id. at 277, 280.

       Counsel is under no duty to raise every defense available, so long as counsel presents a

defense that is objectively reasonable or strategically sound. See Dannhaus v. State, 928 S.W.2d

81, 85–86 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (counsel’s strategy to focus on

culpable mental state rather than self-defense, mistake of fact, or voluntariness was not objectively

unreasonable in light of the strong evidence of guilt); see also Vasquez v. State, 830 S.W.2d 948,

950 n.3 (Tex. Crim. App. 1992) (“[J]ust because a competent defense attorney recognizes that a

particular defense might be available to a particular offense, he or she could also decide it would

be inappropriate to propound such a defense in a given case.”). Defensive issues “‘frequently

depend upon trial strategy and tactics.’” See Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim.

App. 2010) (quoting Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007)). Thus,

the failure to request an instruction on voluntariness, even if the evidence raises the issue, does not

automatically render counsel’s performance deficient. See id.

       In this case, Williams filed a motion for new trial. However, he did not raise a claim of

ineffective assistance of counsel in the motion. Thus, trial counsel did not have an opportunity to

explain himself in the trial court. See Garcia, 57 S.W.3d at 440. Additionally, the record contains

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no evidence of an independent event that caused Williams’s gun to discharge, see Brown, 955

S.W.2d at 280 (voluntariness instruction was warranted on evidence that defendant’s gun

discharged when defendant was bumped by a third party), and accidental discharge does not merit

a voluntariness instruction, see Adanandus, 866 S.W.2d at 230 (“The fact that appellant did not

initially intend to engage in a struggle with a customer does not render his conduct in doing so

involuntary or any of his bodily movements during that encounter involuntary.”); George v. State,

681 S.W.2d 43, 47 (Tex. Crim. App. 1984) (voluntariness instruction was not warranted on

evidence that defendant’s gun discharged accidentally when his thumb slipped off the hammer).

                                            Conclusion

       On this record, we cannot conclude that trial counsel’s failure to request an instruction on

voluntariness was not the result of sound trial strategy. See Hathorn v. State, 848 S.W.2d 101, 118

(Tex. Crim. App. 1992) (counsel’s attempt to get the jury to find appellant guilty of a lesser offense

can be explained as a sound trial tactic); Dannhaus, 928 S.W.2d at 85–86. Since Williams has

failed to rebut the presumption of trial counsel’s competence under the first prong, we need not

consider the requirements of the second prong. We rule against Williams on his sole issue and

affirm the trial court’s judgment.



                                                       /Robbie Partida-Kipness/
                                                       ROBBIE PARTIDA-KIPNESS
                                                       JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
180606F.U05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JT WILLIAMS, Appellant                             On Appeal from the Criminal District Court
                                                    No. 7, Dallas County, Texas
 No. 05-18-00606-CR         V.                      Trial Court Cause No. F-1676083-Y.
                                                    Opinion delivered by Justice Partida-
 THE STATE OF TEXAS, Appellee                       Kipness. Justices Bridges and Pedersen, III
                                                    participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 15th day of January, 2020.




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