      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


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                                        NO. 03-00-00613-CR
                                        444444444444444


                                  Nolan Harrell Webb, Appellant

                                                   v.

                                    The State of Texas, Appellee


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   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
          NO. 003612, HONORABLE JON N. WISSER, JUDGE PRESIDING
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                Appellant Nolan Harrell Webb appeals from his conviction for murder. Tex. Pen.

Code Ann. § 19.02(b)(1) (West 1994). After the jury returned a verdict of guilty, the court entered

a deadly-weapon finding and assessed punishment at confinement in the Texas Department of

Criminal Justice, Institutional Division, for fifty years. In two issues, appellant contends the evidence

was factually insufficient to support his conviction and that he was denied effective assistance of

counsel. We will affirm the judgment.


                               Factual and Procedural Background

                Nancy Mendoza awoke on the morning of March 7, 2000, and discovered the body

of Gary Goins on the floor in front of her refrigerator, clutching a bottle of milk in one hand. Police

and EMS were already at the apartment complex, checking on reports that a man had been seen

stumbling around in his underwear, bleeding and clutching his chest, and asking for the police.
Mendonza summoned emergency personnel. Although paramedics detected faint heart activity, Goins

died by the time he reached the hospital.

               Goins and appellant had become acquainted while they were both incarcerated.

Appellant was aware of Goins’s HIV-positive status. After appellant’s release, he encountered Goins,

who invited him back to Goins’s apartment. Appellant visited several time over the next three weeks.

On at least one occasion, appellant spent the night and shared Goins’s bed. Appellant claims that

Goins made “romantic” advances to him but he had no sexual contact with Goins and simply

explained to Goins that he was not attracted to men.

               Tommy Lee Washington roomed with Goins. On the evening of March 6, 2000,

appellant visited Goins’s apartment. When he arrived, Goins and Washington were engaged in a

heated discussion in which Goins accused Washington’s friends of stealing from him. Ultimately,

Goins told Washington that he was going to kick Washington out so that appellant could move in.

Another friend of Goins, Teresa Strange, arrived about 10:30 or 11:00 p.m. The three men had been

drinking vodka. Strange testified that Goins was belligerent when she arrived and was making

remarks about how attractive he found appellant. Goins insisted that Washington leave right away,

which he did, sometime between 2:30 and 4:30 a.m. Strange then left. At some point after that,

appellant stabbed Goins, who then staggered out of the apartment in his underwear, told several

people to call the police, then entered Mendoza’s apartment and collapsed in front of her refrigerator.

               While Goins was staggering around, appellant left the apartment and walked to a local

convenience store that was Washington’s usual hangout. Appellant told Washington that he and

Goins had been in a fight. He showed Washington the bloody knife and said that he did not know

whether Goins was dead. Washington noticed a “scar” or “scratch” under one of appellant’s eyes.

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Appellant then purchased a beer and walked to a nearby wooded area. He tried to wash some of the

blood off his chest, jacket, and pants; he then sat on a couch in the woods where Officer David Erskin

found him after interviewing Washington.

               Appellant voluntarily agreed to accompany investigators. Officer Erskin frisked

appellant’s jacket and found the knife. As they were walking up the path, appellant told Erskin he

knew what this was about. Erskin replied that he was not an investigator so appellant should not talk

to him. Appellant was interviewed and arrested at the police station.

               Appellant testified at trial. Appellant said that after Washington and Strange left, he

took off his shoes and shirt and went to sleep on the couch. He awoke during the night to find his

pants removed and Goins standing over him. Appellant asked Goins what he was doing and Goins

said, “I’m going to rape you and then I’m going to kill you.” Appellant kicked Goins hard enough

to knock him away from the sofa; Goins rushed back and they struggled on the sofa; Goins attempted

to bite him. Appellant managed to put his pants back on; Goins said, “I can’t rape you like this.”

Goins ran into the kitchen; appellant was concerned Goins was going to get a knife. The only way

out of the apartment was through the kitchen. Appellant, with his own knife in hand, went into the

kitchen and found Goins with his hand in a drawer.1 Appellant asked Goins to step aside and let him

leave; Goins refused and grabbed appellant’s hand that was holding the knife. They struggled,

Goins’s hand slipped, and the knife plunged into his own chest. Appellant removed the knife and they




       1
          Appellant said that he was employed on the shipping and receiving dock of a warehouse.
His supervisor gave him a knife to open boxes and told him to keep it with him so that employees on
other shifts would not take it.

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both stood there until Goins started to bleed. Goins left the apartment. Appellant got his jacket and

left.

               On cross-examination, the prosecutor questioned appellant about why he had not told

this story to the police at his initial interview. When appellant answered that he had told them part

of the story, the prosecutor said that he had told them nothing and started to say, “If I told you that

I watched a videotape of you sitting in the Austin Police Department . . . .” At that point, defense

counsel objected that the prosecutor had not laid the foundation for impeachment with a prior

inconsistent statement, which objection was sustained.2 The prosecutor then pointed out that

appellant claimed he put his coat on with blood all over his chest but the only blood found was on the

outside of the coat, not the inside. Appellant claimed that he forcefully kicked Goins, yet the medical

examiner found no bruises. She also questioned him about prior convictions.

               At trial, Dr. Robert Bayardo, the chief medical examiner for Travis County, testified

that the knife strike was a forceful blow. The wound was three and one-half inches deep, traversed

the left lung, and perforated both of the main chambers of Goins’s heart. He said the wound was not

characteristic of ones received in a struggle; it was too clean. He explained that in a struggle, there

is normally a twisting motion that leaves additional cuts, either on the way in or on the way out.

Additionally, if the victim had been struggling, he would expect to see bruises, scrapes, or other

defensive wounds. However, the victim had no defensive wounds. From the angle and force of the




        2
          No further relief was requested. The prosecutor later testified at the hearing on motion for
new trial, that she had intended the question to be hypothetical.

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blow he testified that, in his opinion, the appellant struck Goins with a right-handed blow almost from

chest to chest.3


                                              Discussion

Factual Sufficiency

                   In a factual sufficiency review, we begin with the presumption that the evidence

supporting the judgment is legally sufficient. Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App.

1996). In reviewing the factual sufficiency of the evidence, we examine all the evidence in a neutral

light. Id. at 129. Evidence is factually insufficient if it is so weak as to render the verdict clearly

wrong and manifestly unjust or the verdict is against the great weight and preponderance of the

evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Clewis, 922 S.W.2d

at 131-32. In reviewing the factual sufficiency of the evidence, the appellate court asks two

questions: (1) does a neutral review of all of the evidence reveal that the proof of guilt is so obviously

weak as to undermine confidence in the jury’s determination, or, (2) does a neutral review of all of

the evidence reveal that the proof of guilt is greatly outweighed by contrary proof? Johnson, 23

S.W.3d at 11. In either situation, an appellate court should overturn a jury’s verdict only when the

record clearly indicates that such a step is necessary to avoid a manifest injustice. Id. at 9.

                   The jury decides the credibility of the witnesses and the weight to be given their

testimony, and it resolves or reconciles conflicts in the testimony, accepting or rejecting such portions




        3
         According to the record, Dr. Bayardo simulated the knife blow using the prosecuting
attorney as the model.

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as it sees fit. Banks v. State, 510 S.W.2d 592, 595 (Tex. Crim. App. 1974). A jury can accept or

reject either the State’s or the accused’s version of the facts. Moore v. State, 804 S.W.2d 165, 166

(Tex. App.—Houston [14th Dist.] 1991, no pet.). When a jury’s determination depends primarily

on its evaluation of credibility and demeanor, it deserves almost total deference. Johnson, 23 S.W.2d

at 8-9; Cain, 953 S.W.2d at 408-09.

               Appellant presented evidence of self-defense at trial. Tex. Pen. Code Ann. § 9.32

(West Supp. 2001). The State does not have to present direct evidence to refute self-defense; rather,

the State must prove its case beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914

(Tex. Crim. App. 1991). A sufficiency review considers the sufficiency of the evidence to establish

all of the essential elements of the offense, including the jury’s implied rejection of the self-defense

theory. Montemayor v. State, 03-99-673-CR, 2001 Tex. App. LEXIS 4373, *11 (Tex. App.—Austin

June 29, 2001, pet. ref’d); Reaves v. State, 970 S.W.2d 111,115 (Tex. App.—Dallas 1998, no pet.).

                In this case, the jury’s evaluation of credibility and demeanor was crucial to its verdict.

The defendant and the deceased were the only eyewitnesses to the murder. The State presented

physical evidence inconsistent with appellant’s self-defense theory. The jury could have believed that

appellant’s defense was credible given his testimony about Goins’s sexual overtures, Strange’s

testimony about Goins’s suggestive comments concerning appellant, and testimony that Goins was

belligerent and drunk on the night of the murder. However, the jury was free to disbelieve the

defendant’s testimony and believe the State’s. See Reaves v. State, 970 S.W.2d at 117-18 (defendant

and parents only eyewitnesses to killing; their testimony consistent with self-defense, but jury free to

believe State’s version supported by medical evidence and 911 call); see also Saxton v. State, 804

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S.W.2d at 914 (defensive evidence merely consistent with physical evidence at scene will not render

State’s evidence legally insufficient because credibility determination of such evidence is solely

province of jury).

               After neutral consideration of all of the evidence, and after giving proper deference

to the jury’s verdict, including its implied rejection of the self-defense issue, we conclude that the

evidence of appellant’s guilt is not so weak as to undermine confidence in the jury’s determination,

nor is the proof of guilt, although adequate if taken alone, greatly outweighed by contrary proof. The

evidence, including the evidence supporting the jury’s implied rejection of appellant’s self-defense

claim, is factually sufficient to support the jury’s verdict of murder. We overrule appellant’s first

issue.


Ineffective Assistance

               In his second point of error, appellant claims ineffective assistance of counsel. To

prevail in an ineffective assistance of counsel claim, a defendant must prove by a preponderance of

the evidence (1) that his counsel’s performance was deficient and (2) that the deficiency prejudiced

his defense. Strickland v. Washington, 446 U.S. 668, 689 (1984); Hernandez v. State, 988 S.W.2d

53, 53 (Tex. Crim. App. 1986). In meeting the first prong of the test, the defendant must overcome

a strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance. Strickland, 446 U.S. at 689. He must identify the acts of omissions of counsel that are

not the result of reasonable professional judgment. Id. at 690. He then must show, in light of all the

circumstances, that the identified acts or omissions were outside the wide range of professionally



                                                  7
competent assistance. Id. To meet the second prong of the test, the defendant must show 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. A reasonable probability is a probability sufficient to

undermine confidence in the outcome. Id.

                The trial court held a hearing on appellant’s motion for new trial at which his

complaint was developed. One complaint about ineffective assistance centers around a videotape of

an interview at the police station. 4

                Defense counsel and the prosecutor had an informal open-file discovery agreement

in which counsel was allowed to view the State’s entire case file. Defense counsel filed no pre-trial

motions other than a Brady motion and a motion in limine concerning extraneous offenses. The

videotape was of an interview made during appellant’s initial interview at the police department. The

existence of the videotape was noted in the report that summarized the defendant’s statements.

Defense counsel said he had asked about the tape; the prosecutor did not remember his asking about

the tape and had no notation in her file. Neither defense counsel nor the prosecutor viewed the

videotape before the hearing on the motion for new trial. Defense counsel claimed he was ineffective

in not filing a formal discovery motion that might have resulted in the pre-trial production of the

videotape.

                Counsel for appellant said that both the offense report and the videotape were

consistent with appellant’s testimony but that the videotape had more detail. However, when asked


        4
         Appellant does not complain that the State failed to comply with his motion to disclose
exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963).

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whether he would have offered the videotape as a prior consistent statement to rebut the implied

charge of recent fabrication made on cross-examination, he replied that he probably would not have

unless he could have had certain statements, such as “I have no remorse,” excised. Neither did

counsel introduce any of the written police report.

               Counsel also claimed that he was ineffective because he failed to ask the court to

appoint an investigator. However, he said that after interviewing appellant, he had been satisfied that

appellant, Strange, and Washington were the only people with personal knowledge of the evening’s

events. Strange was a defense witness. Washington had given a statement adverse to appellant and

there was no reasonable expectation that he would change his story. Counsel obtained information

about Washington from the pre-trial services department, which he used to impeach Washington.

               Even if appellant could meet the first prong of Strickland, he cannot establish the

second prong; that, but for counsel’s errors, there was a reasonable probability that the result of the

proceeding would have been different. Appellant’s self-defense theory presented at trial was

inconsistent with portions of the State’s evidence. The videotape contained a statement about a lack

of remorse that could have been interpreted as incriminating. Appellant has not demonstrated that

his pre-trial receipt and viewing of the videotape would have made a difference in the outcome of the

trial. Neither has be demonstrated how the assistance of an investigator, when all relevant witnesses

had been identified and were available to testify, would have affected the outcome. Accordingly, we

overrule appellant’s second issue.




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                                            Conclusion

               We have overruled appellant’s two issues concerning factual sufficiency and ineffective

assistance of counsel. Accordingly, we affirm appellant’s conviction.




                                              Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: November 29, 2001

Do Not Publish




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