                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-07-379-CR


LANCE DARNELL WILLIAMS                                           APPELLANT

                                          V.

THE STATE OF TEXAS                                                     STATE

                                      ------------

           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                         MEMORANDUM OPINION 1

                                      ------------

      Appellant Lance Darnell Williams appeals his conviction for murder. 2 We

affirm.




      1
          See Tex. R. App. P. 47.4.
      2
          See Tex. Penal Code Ann. § 19.02(b) (Vernon 2003).
         Appellant shot and killed his friend, Charlie Lee Jackson, following an

argument. A jury found appellant guilty of murder and assessed punishment at

twenty-five years’ confinement. The trial court sentenced him accordingly.

         In point one, appellant claims that the trial court erred in refusing his

requested jury charge on criminally negligent homicide as a lesser included

offense.        We use a two-step analysis to determine whether appellant was

entitled to a lesser included offense instruction. 3 First, the lesser offense must

come within article 37.09 of the code of criminal procedure.4 Article 37.09(3)

provides, “An offense is a lesser included offense if . . . it differs from the

offense charged only in the respect that a less culpable mental state suffices

to establish its commission. 5 Criminally negligent homicide satisfies this first

step.6

         The next step is to determine whether some evidence exists that would

permit a jury to rationally find that if appellant is guilty, he is guilty only of the


         3
       Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); Rousseau
v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App.), cert. denied, 510 U.S.
919 (1993).
         4
      Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v. State,
969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
         5
             Tex. Code Crim. Proc. Ann. art. 37.09(3).
         6
       Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992); Lugo
v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984).

                                           2
lesser offense.7 This step acknowledges that there are factual circumstances

in which an offense is indeed a lesser included offense under the first step, but

a jury charge instruction is not required because the condition—that the

defendant is not guilty of the greater offense but is guilty only of the lesser—is

not met. 8 In such a case, the offense remains a lesser included, but the trial

court is not required to instruct the jury on it.9

      The evidence must be evaluated in the context of the entire record. 1 0

There must be some evidence from which a rational jury could acquit the

defendant of the greater offense while convicting him of the lesser. 11 The court

may not consider whether the evidence is credible, controverted, or in conflict

with other evidence.12     Anything more than a scintilla of evidence may be

enough to entitle a defendant to a lesser charge. 13 A charge on the lesser


      7
      Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741 (Tex.
Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73.
      8
       Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005); see
also Irving v. State, 176 S.W.3d 842, 845–46 (Tex. Crim. App. 2005);
Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005).
      9
          Pickens, 165 S.W.3d at 679.
      10
           Moore, 969 S.W.2d at 8.
      11
           Id.
      12
           Id.
      13
           Hall, 225 S.W.3d at 536.

                                         3
included offense is not required when the defendant presents no evidence or

presents evidence that no offense was committed and there is no evidence

otherwise showing that the defendant is guilty of a lesser included offense.14

      A defendant is entitled to a charge on criminally negligent homicide only

if there is more than a scintilla of evidence to show that he did not perceive

that his conduct created a substantial and unjustifiable risk of injury or death.15

Appellant contends that he only shot in the air to scare Jackson and that he did

not intend to kill him. In support of this assertion, he cites testimony from a

witness to the shooting, Latoya Degraffinried, and Arlington Police Detective

Byron Stewart, together with his own videotaped statements. Assuming this

evidence does show that appellant was pointing the gun in the air when he

confronted Jackson, none of it proves that appellant failed to perceive the risk

created by his conduct.16      Even if the gun was pointing in the air, it is



      14
           Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
      15
       Hall, 225 S.W.3d at 536; Mendieta v. State, 706 S.W.2d 651, 653
(Tex. Crim. App. 1986).
      16
         See Trujillo v. State, 227 S.W.3d 164, 168 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d) (“In fact, appellant’s testimony that he wanted the gun
‘to frighten the men off’ shows that he either disregarded the risk or knew the
risk of having a loaded gun.”); Woodward v. State, 170 S.W.3d 726, 728 (Tex.
App.—Waco 2005, pet. ref’d) (defendant’s testimony that he merely intended
to “scare them off” did not entitle him to criminally negligent homicide
instruction).

                                        4
undisputed that it was pointed in Jackson’s direction.        At a minimum, the

evidence shows that appellant knew and disregarded the risks created by

pointing and firing the gun in Jackson’s direction.17

      Because there is no evidence that appellant failed to perceive that his

conduct would create a substantial and unjustifiable risk of injury or death, we

hold that no rational jury would acquit appellant of murder and find him guilty

only of criminally negligent homicide.18 We overrule point number one.

      In points two through ten, appellant claims that his trial counsel provided

ineffective assistance. We apply a two-pronged test to ineffective assistance

of counsel claims.19 First, appellant must show that counsel’s performance was

deficient, which requires a showing that counsel made such serious errors that

he or she was not functioning as the “counsel” guaranteed by the Sixth

Amendment.20       Counsel’s performance is only deficient if it fell below an

objective standard of reasonableness measured by prevailing professional



      17
           See Trujillo, 227 S.W.3d at 168.
      18
           See Moore, 969 S.W.2d at 8.
      19
       Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064
(1984); Salinas, 163 S.W.3d at 740; Mallett v. State, 65 S.W.3d 59, 62–63
(Tex. Crim. App. 2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999).
      20
           Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

                                         5
norms.21 The record must be sufficiently developed to overcome a strong

presumption that counsel provided reasonable assistance.22        Our scrutiny of

counsel’s performance must be highly deferential, making every effort to

eliminate the distorting effects of hindsight.23

      Second, appellant must show that counsel’s deficient performance

prejudiced the defense; this requires a showing that counsel’s errors were so

serious as to deprive the defendant of a fair trial. 24 Appellant must show that

there is a reasonable probability that, but for counsel’s deficiency, the result of

the trial would have been different.25

      A claim of ineffective assistance of counsel must be firmly grounded in,

and supported by, the record.26 When the record is silent as to possible trial




      21
           Id. at 688–89, 104 S. Ct. at 2065.
      22
      Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002);
Thompson, 9 S.W.3d at 813–14.
      23
           Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
      24
           Id. at 687, 104 S. Ct. at 2064.
      25
           Id. at 694, 104 S. Ct. at 2068.
      26
       Thompson, 9 S.W.3d at 814; Jackson v. State, 973 S.W.2d 954, 955
(Tex. Crim. App. 1998).

                                         6
strategies employed by defense counsel, we will not speculate on the reasons

for those strategies.27

      There is a substantial risk of failure when a claim of ineffective assistance

of counsel is brought on direct appeal.28 “Under normal circumstances, the

record on direct appeal will not be sufficient to show that counsel’s

representation was so deficient and so lacking in tactical or strategic decision

making as to overcome the presumption that counsel’s conduct was reasonable

and professional.” 29

      This case demonstrates the “inadequacies inherent in evaluating

ineffective assistance claims on direct appeal.” 3 0 Although appellant filed a

motion for new trial, there is nothing in the record to show that he presented

it to the trial court to afford the trial court a chance to hold a hearing and

inquire into the reasons for trial counsel’s acts or omissions. Consequently, we

cannot determine whether counsel’s actions were grounded in sound trial

strategy because the record is silent as to possible trial strategies, and we will



      27
           See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
      28
           Thompson, 9 S.W.3d at 813.
      29
           Bone, 77 S.W.3d at 833.
      30
        Patterson v. State, 46 S.W.3d 294, 306 (Tex. App.—Fort Worth 2001,
no pet.).

                                        7
not speculate on the reasons for those strategies. 31   Therefore, appellant has

failed to meet the first prong of Strickland. Moreover, even if we could discern

from the record that appellant’s trial counsel’s performance fell below the

standard of reasonable professional representation, appellant has made no

showing that any of counsel’s alleged errors negatively affected the outcome.32

Consequently, appellant has failed to meet the second prong of Strickland. We

overrule points two through ten.

      Having overruled all of appellant’s points, we affirm the trial court’s

judgment.

                                                  PER CURIAM


PANEL: CAYCE, C.J.; HOLMAN and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: October 2, 2008




      31
           See id.; Jackson, 877 S.W.2d at 771.
      32
           See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.

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