      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00760-CR



                                 Jared Lee Bottorff, Appellant

                                                v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
         NO. 65465, THE HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury found appellant Jared Lee Bottorff guilty of murder and assessed his

punishment at confinement for 35 years in the Institutional Division of the Texas Department of

Criminal Justice and, in addition, imposed a $10,000 fine. See Tex. Penal Code Ann. §§ 12.32,

19.02 (West 2011). On appeal, appellant argues that the trial court erred in excluding evidence of

the deceased victim’s prior acts of violence and asserts that he suffered ineffective assistance of

counsel at trial. We affirm the judgment of conviction.


                                        BACKGROUND

               On August 7, 2009, members of a military unit that had recently returned from

Iraq gathered for a party at the home of the appellant, Jared Lee Bottorff, and his roommate,

Phillip Thomas. Guests included unit members Logan Bowers, Ramon Santos, Leonardo Almeida,

and his girlfriend, Kelsey Walsh. At some point, Bottorff left the gathering in Bowers’s jeep,
without Bowers’s knowledge or permission. As Bottorff drove around, he stopped and offered a

homeless man a ride and then offered him a place to stay, inviting the man to come home with him

and spend the night.

               When they arrived at the house, Bottorff introduced the homeless man,

Dan Smith, Jr., to his friends. Santos offered Smith a beer and the two men struck up a conversation

as they were seated in the living room. Bottorff went outside to the back patio. Bowers and Almeida

joined him out back where they expressed concerns over Bottorff bringing home a stranger and

homeless person because they did not know Smith or what he might be capable of doing. They

discussed the situation and Bottorff agreed that having Smith in his house was not a good idea.

Bottorff expressed that killing Smith would resolve the situation. He said that they were trained

soldiers, capable of doing it, and argued that, because Smith was homeless, they could get away with

it. Almeida and Bowers tried to talk Bottorff out of killing Smith, explaining they could just ask him

to leave. Bottorff seemed to agree, but then declared that he was going to kill Smith. Bowers and

Almeida decided that something must be done to defuse the situation and to keep Bottorff away from

Smith. They told Bottorff to stay outside while they went in to tell Smith that he had to leave.

               Bowers and Almeida went inside to where Smith was seated with Santos, talking

about football. They approached Smith and asked him if he would mind leaving because they did

not feel comfortable with him there. Smith asked if he could finish his beer, and Bowers and

Almeida agreed. After finishing his beer, Smith stood and started toward the door, but forgot his

cigarettes and asked to retrieve them. After he did so, Bowers and Almeida began to escort him

toward the door.



                                                  2
               As they were nearing the front door, Bottorff appeared with a pistol in his hand. He

placed it against Smith’s forehead and accused him of having been disrespectful. Angry, Smith

swatted the pistol away from his head.1 At that point, Almeida and Bowers attempted to physically

remove Smith from the residence by pushing him toward the door, and a fight broke out between

Smith, Almeida, and Bowers. Santos attempted to intervene. After a brief exchange of punches,

things calmed down and Santos and Smith were standing next to the door, Santos expressing regrets

about the way things had worked out and telling Smith to “just get out.”

               Suddenly Bottorff told Santos to move out of the way. Then Bottorff fired his

.410 gage shotgun into Smith’s head. Smith was unarmed, standing at the door when he was shot.

The impact of the shotgun blast propelled him across the door threshold on to the porch. The

medical examiner testified at trial that the cause of Smith’s death was a shotgun wound to the

forehead, fired from a distance of less than ten feet.

               After the shooting, Bottorff told the others that they had to help him to clean up and

to hide the body because they were his friends. Only Thomas, his roommate, did so. Bottorff got

a bottle of bleach and began cleaning the blood from the floor of the porch and Thomas started

hosing down the front porch area. They backed Bottorff’s car up to the house and loaded Smith’s

body into the trunk. Bowers, Santos, Almeida, and Walsh left, eventually going to Santos’s house

where they called the police and their platoon first sergeant to report what had happened.




       1
         It is unclear from the testimony whether Smith hit the weapon itself or Bottorff’s arm when
he swatted the weapon away from his head.

                                                  3
               After the others left, Bottorff and Thomas took Smith’s body to a nearby housing

construction site, intending to dispose of it, but after realizing they were “making a mistake,” they

returned home with the body and sat in the driveway smoking. Approximately 15 minutes later, the

police arrived at the residence. Thomas got out of the car and fled. The police detained Bottorff,

who was in the driver’s seat, and discovered Smith’s body in the trunk of his car. Patrol officers also

recovered a spent .410 shotgun shell from Bottorff’s shirt pocket. The shotgun and a bloody shirt

belonging to Bottorff were recovered from the residence.

               Bottorff testified on his own behalf at trial giving a different account of the events

than all of the other witnesses. He claimed that the fight between Smith, Bowers, and Almeida broke

out when Smith threw a punch at Bowers. Bottorff maintained that he did not get involved the

scuffle, but said that when he realized his friends were losing, he went and got his shotgun “as a

show of force” in accordance with his military training and because he was afraid and wanted to

defend himself and his friends. He testified that he approached Smith with the weapon pointed

toward the floor and asked him to leave. He repeatedly shouted at the victim to leave. He claimed

that he raised the shotgun to his shoulder and the victim took a step toward him, grabbed the weapon,

took control of it, and turned it on him. Bottorff testified that he was “staring down the barrel of

[his] own weapon” and thought he was going to die. He said that he moved sideways, grabbed the

weapon, and the two men struggled over the shotgun until he eventually regained control of it. He

then pointed it at Smith and again told him to leave his house. Bottorff said that in response Smith

took a step toward him and he shot him in the head.




                                                  4
               Bottorff admitted cleaning up the scene and taking Smith’s body to the construction

site for disposal, but changing his mind. He also acknowledged that Smith had no weapon of any

kind and had done nothing to cause any fear or alarm in the others while in the house. He further

conceded that he had regained possession of the shotgun and that Smith was not exerting deadly

force against him when he fired the shot that killed him.


                                           DISCUSSION

               Bottorff raises three issues on appeal. The first point asserts that the trial court erred

in excluding evidence of the victim’s prior acts of violence. The remaining two points argue that

his trial attorneys rendered ineffective assistance of counsel. We reject Bottorff’s contentions and

affirm his conviction and sentence.


                                 Evidence of Victim’s Prior Acts

               During the course of the trial, Bottorff asserted claims of self defense and defense of

third persons. Bottorff attempted to offer the testimony of two officers from the Temple Police

Department, Officer Jeffrey Bragg and Sergeant Tim Simeroth, to support his self-defense claim.

Officer Bragg’s proffered testimony reflected that on April 3, 2007, he responded to a domestic

disturbance call where he made contact with Teresa Chardt who told him that she had been punched

by Dan Smith, the victim in this case. Sergeant Simeroth’s proffered testimony reflected that on

August 10, 2007, he responded to a disturbance call where, on his arrival, he observed Dan Smith

being restrained by officers who eventually had to utilize a baton and pepper spray to gain control

of him. Bottorff argued that the testimony of these witnesses was relevant to show the victim’s state



                                                   5
of mind pursuant to Rule 404 (b) of the Texas Rules of Evidence and as evidence that the victim was

the first aggressor. The State objected to the admission of this evidence. The trial court ruled that

reputation and opinion evidence of the victim’s violent character would be allowed, but that specific

acts of the victim would be excluded.

                We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied,

131 S.Ct. 2966 (2011). A trial court abuses its discretion in this regard only if its determination “lies

outside the zone of reasonable disagreement.” Id.; Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.

App. 2007).

                The rules of evidence permit a defendant to offer evidence of the victim’s character

for violence or aggression when the defendant is charged with an assaultive offense. Ex parte Miller,

330 S.W.3d 610, 618 (Tex. Crim. App. 2009); see Mozon v. State, 991 S.W.2d 841, 845 (Tex. Crim.

App. 1999). A defendant may offer evidence of the victim’s character trait for violence to

demonstrate that the victim was, in fact, the first aggressor. Miller, 330 S.W.3d at 619; see Tex. R.

Evid. 404(a)(2). For this purpose, it does not matter if the defendant was aware of the victim’s

violent character.    Miller, 330 S.W.3d at 619; see Mozon, 991 S.W.2d at 845.                     Such

“uncommunicated character” evidence is admissible, however, only through reputation and opinion

testimony.2 Miller, 330 S.W.3d at 619; see Tex. R. Evid. 405(a). Here, Bottorff sought to offer


        2
          A defendant may also offer reputation or opinion testimony or evidence of specific prior
acts of violence by the victim to show the reasonableness of his claim of apprehension of danger
from the victim. Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009); Torres v. State,
71 S.W.3d 758, 760 n.4 (Tex. Crim. App. 2002). This is called “communicated character” because
the defendant is aware of the victim’s violent tendencies and perceives a danger posed by the victim,

                                                   6
evidence of specific instances of Smith’s conduct demonstrating his character for aggression or

violence through the testimony of Officer Bragg and Sergeant Simeroth. However, a defendant may

not offer evidence of the victim’s prior specific acts of violence to prove the victim’s violent

character and that the victim acted in conformity with that violent character at the time of the assault.

Miller, 330 S.W.3d at 619. Bottorff was not entitled to offer evidence of any specific prior acts of

violence to show that Smith was the first aggressor. See id. The proffered testimony was an attempt

to prove Smith’s conduct in conformity with his violent character, and is prohibited by Rules 404(a)

and 405(a). See id.

                Evidence of the victim’s prior specific acts of violence may also be offered for a

non-character conformity purpose under Rule 404(b)—such as his specific intent, motive for an

attack on the defendant, or hostility. Miller, 330 S.W.3d at 620; Tex. R. Evid. 404(b). Such specific

acts are admissible only to the extent that they have relevance apart from their tendency to show

character conformity. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). For example,

in Tate v. State, the defendant offered evidence that the victim had threatened to harm him on the

night in question. The court of criminal appeals found that the evidence of the specific act was not

offered to show character, but to show “the victim’s state of mind and possibly his motive for the

confrontation with the defendant.” Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998). By



whether the danger is real or not. Miller, 330 S.W.3d at 618; see Mozon v. State, 991 S.W.2d 841,
846 (Tex. Crim. App. 1999). This theory does not invoke Rule 404(a)(2) because the evidence is
not offered to show that the victim acted in conformity with his violent character. Miller,
330 S.W.3d at 618-19. Rather, the defendant is proving his own self-defensive state of mind and
the reasonableness of that state of mind. Miller, 330 S.W.3d at 618. Here, Bottorff did not know
Smith. Thus, he was unaware of any alleged character for violence. Bottorff did not rely on this
theory of admissibility at trial and does not raise it on appeal.

                                                    7
contrast, in the instant case, the incidents about which Bottorff wished to introduce testimony did

not implicate Bottorff in any way. Smith did not make any threat toward Bottorff. Nor does Smith’s

prior conduct indicate that he had any animosity toward Bottorff. The evidence is not probative of

Smith’s motivation or state of mind as related to the encounter with Bottorff two years after these

incidents occurred. Prior to the night of the shooting, the two men had no knowledge of each other.

Therefore, while Bottorff could introduce character evidence—through reputation or opinion

testimony—to suggest that Smith was the first aggressor, he could not introduce evidence of these

specific acts and events because such evidence was not admissible for other purposes. In this case,

the record does not show that Bottorff’s proffered testimony of Smith’s specific acts of violence or

aggression would have been relevant for any purpose other than character conformity. See, e.g.,

Smith v. State, 355 S.W.3d 138, 150-51 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); James

v. State, 335 S.W.3d 719, 728 (Tex. App.—Fort Worth 2011, no pet.).

                Because the excluded testimony was evidence of specific instances of conduct not

admissible under 405(a) and was prohibited character-conformity evidence under 404(b), we cannot

say the trial court abused its discretion in excluding the testimony of these two witnesses. We

overrule Bottorff’s first point of error.


                                 Ineffective Assistance of Counsel

                In his remaining two points of error, Bottorff complains that he received ineffective

assistance of counsel because trial counsel: (1) asserted a self-defense claim at trial, and (2) failed

to call a mental health expert to testify in the punishment phase of trial. Subsequent to trial, Bottorff




                                                   8
filed a motion for new trial alleging ineffective assistance of trial counsel.3 After conducting a

hearing on the motion, the trial court declined to find that defense counsel provided ineffective

assistance of counsel and denied the motion. Both attorneys who represented Bottorff at trial

testified at the hearing, explaining their reasoning for implementing the trial strategies they did.


Standard of Review

                To establish ineffective assistance of counsel, an appellant must demonstrate by a

preponderance of the evidence both deficient performance by counsel and prejudice suffered by the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Menefield v. State, 363 S.W.3d 591,

592 (Tex. Crim. App. 2012). The appellant must demonstrate under the first prong that counsel’s

performance fell below an objective standard of reasonableness under prevailing professional norms.

Strickland, 466 U.S. at 687-88; Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). To

meet the second prong, the appellant has to show the existence of a reasonable probability—one

sufficient to undermine confidence in the outcome—that but for counsel’s deficient performance,

the result of the proceeding would have been different. Strickland, 466 U.S. at 694; Lane,

303 S.W.3d at 707. Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. Strickland, 466 U.S. at 700; see Perez v. State,

310 S.W.3d 890, 893 (Tex. Crim. App. 2010).




        3
          The record reflects that appellate counsel was originally appointed to represent Bottorff at
trial. At some point, Bottorff’s family retained trial counsel who replaced original trial counsel at
the request of Bottorff and his family. After trial, appellate counsel (original trial counsel) was again
appointed to represent Bottorff. Appellate counsel filed the motion for new trial on Bottorff’s behalf
and continues to represent him on appeal.

                                                   9
               In reviewing a claim of ineffective assistance, we must evaluate the quality of the

representation from the totality of counsel’s representation rather than counsel’s isolated acts

or omissions. Strickland, 466 U.S. at 689; Perez, 310 S.W.3d at 893; see Branch v. State,

335 S.W.3d 893, 905 (Tex. App.—Austin 2011, pet. ref’d). Appellate review of counsel’s

representation is highly deferential; we must indulge a strong presumption that counsel’s

representation falls within the wide range of reasonable professional assistance—that is, we must

presume that trial counsel’s actions or inactions and decisions were reasonably professional and

motivated by sound trial strategy. Strickland, 466 U.S. at 686; Salinas v. State, 163 S.W.3d 734, 740

(Tex. Crim. App. 2005); see Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009). To

rebut that presumption, a claim of ineffective assistance must be “firmly founded in the record” and

“the record must affirmatively demonstrate” the meritorious nature of the claim. See Menefield,

363 S.W.3d at 592 (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005));

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “‘The fact that another attorney may

have pursued a different tactic at trial is insufficient to prove a claim of ineffective assistance.’”

Miller, 330 S.W.3d at 616 (quoting Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App.

2004)); see Sessums v. State, 129 S.W.3d 242, 246 (Tex. App.—Texarkana 2004, pet. ref’d).

               The burden is on the appellant to affirmatively demonstrate “that counsel’s errors

were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Perez,

310 S.W.3d at 893 (quoting Strickland, 466 U.S. at 687). To overcome the presumption that counsel

rendered adequate assistance, the appellant must identify the specific acts or omissions of counsel

that allegedly constitute ineffective assistance and then affirmatively prove that they fall below the



                                                  10
professional norm for reasonableness. Strickland, 466 U.S. at 690; Bone v. State, 77 S.W.3d 828,

835 (Tex. Crim. App. 2002). Even if an appellant shows that particular errors of counsel were

unreasonable, the appellant must further show that they actually had an adverse effect on the defense.

Strickland, 466 U.S. at 693-95; Cochran v. State, 78 S.W.3d 20, 24 (Tex. App.—Tyler 2002, no

pet.). Merely showing that the errors had some conceivable effect on the proceedings will not

suffice. Strickland, 466 U.S. at 693; Martinez, 330 S.W.3d at 901. The appellant must prove that

counsel’s errors, judged by the totality of the representation, not by isolated instances of error or by

a portion of the trial, denied him a fair trial. Strickland, 466 U.S. at 695.


Asserting Self-Defense Claim

               Bottorff first maintains that his trial attorneys were ineffective for asserting a claim

of self defense instead of pursuing an excuse-based defense under Jackson v. State. While Texas

does not recognize diminished capacity as an affirmative defense, both lay and expert testimony of

a mental disease or defect that directly rebuts the particular mens rea necessary for the charged

offense is relevant and admissible unless excluded under a specific evidentiary rule. Ruffin v. State,

270 S.W.3d 586, 587-88 (Tex. Crim. App. 2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim.

App. 2005). Such mental conditions present evidence of an excuse for a criminal offense, that is,

the evidence rebuts proof of the defendant’s alleged mens rea. See Jackson, 160 S.W.3d at 573.

Bottorff asserts that any reasonable attorney would have pursued a trial strategy attempting to show

that his post-traumatic stress disorder (PTSD) reduced his level of culpability, not a claim of self

defense. However, simply because this was the trial strategy appellate counsel intended to employ




                                                  11
when he was trial counsel does not mean that pursuing another trial strategy falls below an objective

standard of reasonableness.

               Both of Bottorff’s trial attorneys clearly articulated their reasons for asserting a

self-defense claim rather than an excuse-based reduced-culpability defense under Jackson. They

indicated that after a thorough investigation of the case, they felt that asserting an excuse-based

reduced-culpability defense was not consistent with the facts of the case. Both attorneys noted that

Bottorff consistently asserted that he had acted in self defense—immediately after the shooting to

his friends, in statements to law enforcement officials, as well as to them during the course of their

representation. According to the testimony of lead counsel, Bottorff also told law enforcement

officers that he “was not having a flashback, [and his] mind was clear” when he shot Smith. Neither

attorney viewed Bottorff’s PTSD as a major contributing factor to the offense. Based on the facts

of the case, they did not believe the existence of PTSD reduced Bottorff’s level of culpability—that

is, the mental condition did not demonstrate that Bottorff’s shooting of Smith was a reckless act

rather than an intentional or knowing one as alleged in the indictment. Co-counsel indicated that

witnesses he talked to during the investigation informed him that Bottorff was “a very competent

soldier” who “had won awards for marksmanship.” Further, the evidence demonstrated that Bottorff

shot Smith at very close range. Consequently, counsel felt it was unreasonable to characterize the

shooting as a situation where Bottorff disregarded a risk that Smith would die or failed to perceive

the risk of his conduct, the culpable mental states involved in manslaughter and criminally negligent

homicide. See Tex. Penal Code Ann. §§ 19.04, .05 (West 2011). Rather, the attorneys believed that

the facts demonstrated that Bottorff’s intent was to shoot and kill Smith—consistent with his training



                                                 12
as a military soldier to cause the death of an individual targeted—because he was afraid for his life.

Both attorneys were adamant that they felt it was inappropriate to “manufacture a defense when you

don’t have the facts to support [it].” Based on the reasoning provided by trial counsel, we cannot

say that trial counsels’ decision to present a self-defense claim was not reasonably professional and

motivated by sound trial strategy.4 Thus, Bottorff fails to demonstrate, on this record, deficient

performance by trial counsel.

                Further, Bottorff fails to demonstrate that he suffered prejudice as a result of trial

counsel’s strategy in asserting a self-defense claim. Bottorff’s conclusory statement in his brief that

“trial counsel’s conduct so undermined the adversarial process that the trial cannot be relied on as

having produced a reliable result,” fails to show the existence of a reasonable probability that but for

the assertion of the self-defense claim, the result of his trial would have been different. His

conclusory assertion fails to affirmatively demonstrate that had counsel pursued an excuse-based

defense based on PTSD the result of the proceeding would have been different.




       4
          Bottorff argues that the self-defense claim asserted at trial was prohibited “as a matter of
law” because the evidence was “undisputed” that Smith never used deadly force “other than the
claim by [Bottorff] that Smith took the shotgun away from him.” However, as trial counsel indicated
at the hearing, the legal issues related to self defense—such as whether Smith used deadly force or
Bottorff was in imminent danger—were fact issues for the jury. Counsel was entitled to make
decisions about what the anticipated evidence would show relying on what their client told them.
Had the jurors believed Bottorff’s version of the events, they might have been persuaded that he
acted in self-defense and found him not guilty. Furthermore, we note that the defense asserted at trial
included a claim of defense of third persons along with the self-defense claim. The trial court denied
Bottorff’s request for a jury-charge instruction relating to the defense of third persons, but granted
an instruction on self-defense.

                                                  13
Failure to Call Mental Health Expert

               Bottorff next contends that his trial attorneys rendered ineffective assistance because

they did not call a mental health expert during the punishment phase of trial to testify about his

PTSD. During the course of appellate counsel’s initial representation of Bottorff, he retained

Dr. Jerry Mungadze, a licensed professional counselor who specializes in PTSD, to evaluate

Bottorff. Mungadze concluded, among other things, that Bottorff suffered from PTSD. Bottorff

argues that his trial counsel were ineffective because they did not offer Mungadze’s testimony as

mitigation evidence in the punishment phase of trial. To determine if counsel was ineffective during

the punishment phase of trial, the individual facts and circumstances of each particular case must be

considered and the representation of counsel viewed in its totality. Riley v. State, No. PD-1531-11,

2012 WL 4092874, at *3 (Tex. Crim. App. Sept. 19, 2012).

               During the hearing on the motion for new trial, trial counsel explained why they chose

not to utilize Mungadze as a witness. Both attorneys expressed multiple concerns about calling

Mungadze as a witness. First, they were troubled by inconsistencies in his report. One of the

attorneys felt the “diagnosis kept changing” because the report documented that “the incident

happened because of PTSD and alcohol use that night” but later indicated that “it happened as a

result of PTSD and traumatic brain injury.” This latter conclusion was particularly troubling to trial

counsel because Bottorff’s medical records reflected that after initial concerns about traumatic brain

injury, it was determined that Bottorff did not suffer from traumatic brain injury. The attorneys also

testified that comments in Mungadze’s report suggested self defense which, they believed, was

inconsistent with his conclusion that PTSD caused the incident.



                                                 14
               In addition, both of Bottorff’s trial attorneys indicated that, in their opinion,

Mungadze had serious credibility issues. His background included articles on exorcism, which both

attorneys felt subjected him to impeachment by the prosecutor. Further, both expressed their opinion

that Mungadze had lost his objectivity. They felt that he was “trying to help” and became more of

a treating expert than an objective testifying expert. Also, Mungadze submitted two reports, adding

things to the second report. Lead counsel testified that he felt this subjected Mungadze to

impeachment for changing his report. Lead counsel also expressed that he thought this expert

“would have been found incredible by this jury” and the prosecuting attorney “would have a field

day with [him].” Co-counsel agreed, expressing his concern about “what a skilled prosecutor would

do on cross-examination.”

               Finally, counsels’ testimony reflected that the trial strategy in punishment was to

focus on Bottorff’s good character as opposed to provide excuses for his conduct. Counsel

attempted to demonstrate that Bottorff was a good person before and after this incident and that this

shooting, which he maintained was done in self defense, was an aberration. Trial counsel felt that

Mungadze’s conclusions were inconsistent with the theory of the case—the assertion of self-defense

in guilt-innocence and the good-character issue presented in punishment. In fact, the record reflects

that Mungadze reported that Bottorff’s PTSD made him “difficult to control,” and that Bottorff was

unstable and should not have access to weapons. A further concern about presenting expert

testimony about Bottorff’s PTSD was making the jury afraid of their client. Co-counsel testified that

while some jurors might view the PTSD evidence as mitigating, others might view it as aggravating.

Trial counsel could have reasonably concluded that presenting evidence of Bottorff’s PTSD through



                                                 15
Mungadze might have made the jury view Bottorff as an unpredictable, uncontrollable danger to

others. Also, we note that trial counsel did present some evidence of Bottorff’s PTSD through a

family witness who witnessed a PTSD event and directly observed how PTSD affected Bottorff.

Both attorneys expressed a preference in this case to provide the PTSD evidence to the jury through

a family member rather than a “hired gun.” As reflected by their testimony at the hearing, trial

counsel wanted to present the PTSD evidence in a limited manner to explain why the shooting was

an aberration of Bottorff’s good character but wanted to avoid making the jury fear their client or

view him as a future threat.

               Based on the foregoing reasons provided by trial counsel, we cannot conclude that

the decision not to call Mungadze or another mental health expert as a witness during punishment

was not an exercise of reasonable professional judgment or was a decision that fell below an

objective standard of reasonableness.

               Furthermore, Bottorff has failed to demonstrate that such decision prejudiced his

defense. The “failure to call witnesses at the guilt-innocence and punishment stages is irrelevant

absent a showing that such witnesses were available and appellant would benefit from their

testimony.” Perez, 310 S.W.3d at 894 (quoting King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App.

1983)). We are not convinced that Bottorff would have benefitted from Mungadze’s testimony or

any expert testimony regarding his PTSD. Such testimony would have shown that due to PTSD

Bottorff was hyper-aroused and reacted unreasonably given the situation, and, as Mungadze said,

would “go into an immediate reaction thing” to anything that sounds threatening. Trial counsel

could have reasonably concluded that such evidence may just have easily been detrimental to the



                                                16
defense, portraying Bottorff as dangerous and unpredictable and, as trial counsel feared, instilling

fear of Bottorff in the jury. We do not see a reasonable probability that expert testimony of his

PTSD would have changed the outcome of the punishment phase of Bottorff’s trial.


               Because we cannot conclude on this record that the performance of trial counsel fell

below an objective standard of reasonableness or that Bottorff was prejudiced by any alleged

deficiencies, we reject Bottorff’s claims of ineffective assistance of counsel. We overrule Bottorff’s

second and third points of error.


                                          CONCLUSION

               We conclude that the trial court did not abuse its discretion by excluding the evidence

of specific acts of the victim’s prior conduct. We further conclude that Bottorff failed to demonstrate

either deficient performance on the part of trial counsel or that he suffered prejudice due to the

strategy decisions counsel made and, thus, has failed to establish that he suffered ineffective

assistance of counsel. Accordingly, we affirm the judgment of conviction.



                                               __________________________________________
                                               Melissa Goodwin, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: September 28, 2012

Do Not Publish



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