                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-09-286-CR


THOMAS W ARREN DOW DEN                                                    APPELLANT

                                            V.

THE STATE OF TEXAS                                                               STATE

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           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant Thomas W arren Dowden appeals from a judgment of conviction for

aggravated assault with a deadly weapon, enhanced by a prior felony conviction,

and a judgment of conviction for possession of a firearm by a felon. Appellant waived

his right to a trial by jury and proceeded to trial before the court. He also stipulated

that he had previously been convicted of the felony offense of aggravated assault

on a police officer. In his first two points, he claims that the evidence was legally and

factually insufficient to support the convictions. In his third point, he maintains that



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           See Tex. R. App. P. 47.4.
he was denied his right to effective assistance of counsel at trial. W e resolve these

points in favor of the State and affirm the trial court’s judgments.

                                     The Facts

      On the night of December 30, 2007, the Fort W orth Police Department

received a “loud music” complaint and dispatched police officers Anthony Staggs

and Ryan Timmons to the 1800 block of Highland Avenue. W hen they arrived, they

found that the loud music was coming from a Ford F-250 pickup parked in the street

near a house. Staggs got out of the police car and went over to the truck. The man

inside, whom Staggs identified as Appellant, appeared to be asleep in the front

passenger seat.       Staggs then shined his flashlight on Appellant; announced,

“Police”; and tapped on the window. W hile rolling over, Appellant picked up his

loaded gun and pointed it at Staggs’s head. Staggs feared he was about to be shot

and perhaps killed.

      Staggs repeated that he was a police officer and ordered Appellant to drop the

gun. After Appellant did not drop the gun, Staggs moved back from the truck out of

the line of sight. As he did, Appellant kept his gun aimed at him. Timmons ran

toward the truck. Staggs then drew his gun, and Appellant raised his hands, still

holding the gun. Appellant finally did drop the gun but refused to obey the officers’

other commands.

      Timmons broke out the passenger side window while Staggs tried to remove

Appellant from the truck. As he did so, Appellant tried to hit him. W hen the officers


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used pepper spray, Appellant climbed out the driver’s side of the truck and ran to his

house. Timmons caught Appellant at the front door and struggled with him. After

Staggs kicked Appellant using “knee-strikes” and used a Taser on Appellant, the

officers subdued him.

        After taking Appellant into custody, the officers found the gun—a Ruger 9

millimeter—with a fully loaded magazine, a second loaded magazine, and a half

empty bottle of Crown Royal whiskey, along with other items, inside the truck.

        Following his arrest, Appellant was medically examined. His coccyx (tailbone)

had been recently fractured. He had a hemorrhage to his right eye, pain in one of

his shoulders, acute trauma in his lower back, and scratches and contusions to his

forehead, among other injuries.

Appellant’s Defensive Claims

        Appellant testified that on the night of December 30, he and his wife had gone

out to dinner and to play cards. He had a few drinks that night. Upon returning to

his house, Appellant decided to stay outside in his truck and listen to music. In

grand jury testimony, a transcription of which was admitted as State’s exhibit 4,

Appellant had admitted to having his gun in his truck and to have driven in it for two

days.

        Appellant also testified that after falling asleep in his truck, he was awakened

by a bright light and a gun pointed at him. He testified that he was scared and

pointed his gun. W hen the officers backed up, he saw the Fort W orth Police car,


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threw his gun down, and raised his hands. He claimed that he did not hear them

identify themselves as police but believed he was being robbed. He also denied

struggling against the officers. On cross examination, he acknowledged that he had

not dropped the gun, but that he had put it between the seat and center console, and

that he had put Staggs in danger of serious bodily injury.

      At the conclusion of the trial, the trial court acknowledged that both sides

presented conflicting versions of the relevant events, requiring an evaluation of the

credibility of the witnesses. The trial court fully discussed the offenses and events

of the night. The trial court believed the State’s witnesses and found its evidence

credible; it disbelieved Appellant and found him not credible.

                           Sufficiency of the Evidence

      In reviewing the legal sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution in order to

determine whether any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.

2007).

      This standard gives full play to the responsibility of the trier of fact to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Clayton, 235 S.W .3d at 778. The trier of fact is the sole judge of the weight and


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credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon

1979); Brown v. State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied,

129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may

not re-evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim. App.

1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “determine whether the

necessary inferences are reasonable based upon the combined and cumulative

force of all the evidence when viewed in the light most favorable to the verdict.”

Hooper v. State, 214 S.W .3d 9, 16–17 (Tex. Crim. App. 2007). W e must presume

that the factfinder resolved any conflicting inferences in favor of the prosecution and

defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235

S.W .3d at 778.

      W hen reviewing the factual sufficiency of the evidence to support a conviction,

we view all the evidence in a neutral light, favoring neither party. Steadman v. State,

280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414

(Tex. Crim. App. 2006).      W e then ask whether the evidence supporting the

conviction, although legally sufficient, is nevertheless so weak that the factfinder’s

determination is clearly wrong and manifestly unjust or whether conflicting evidence

so greatly outweighs the evidence supporting the conviction that the factfinder’s

determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204

S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,


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with some objective basis in the record, that the great weight and preponderance of

all the evidence, although legally sufficient, contradicts the judgment when the trial

court is the trier of fact. Watson, 204 S.W .3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we must

give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson v.

State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.

      The elements of the offense of aggravated assault with a deadly weapon are

that a person intentionally or knowingly threatens another with imminent bodily injury,

while using or exhibiting a deadly weapon. Tex. Penal Code Ann. §§ 22.01(a)(2),

22.02(a)(2) (Vernon Supp. 2009). The record here demonstrates that Appellant

picked up a loaded gun and pointed it at Staggs’s head. Therefore, viewing the

evidence in the light most favorable to the verdict, we hold that the evidence is

legally sufficient to support Appellant’s conviction for aggravated assault with a

deadly weapon.

      Appellant would be guilty of the offense of possession of a firearm by a felon

if he had been convicted of a felony five or more years prior to this offense and

thereafter was found in possession of a firearm at a place other than where he lives.

See Tex. Penal Code Ann. § 46.04 (Vernon Supp. 2009). Here, the record reveals


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that Staggs found appellant—who had a felony conviction more than five years

earlier—sitting in a truck outside his home with a loaded weapon.            Appellant

admitted that he had driven the truck with the firearm in it on the day of the incident

and the day before the incident. Accordingly, Appellant admitted to possession of

a firearm while away from the premises where he lived. Thus, viewing the evidence

in the light most favorable to the verdict, we hold that the evidence is legally

sufficient to support Appellant’s conviction for possession of a firearm by a felon.

      Looking to the question of the factual sufficiency of the evidence and reviewing

all the evidence, we held that its factually sufficient. See Johnson, 23 S.W .3d at 11.

Looking at the grand jury and trial court testimony of Appellant, it is apparent that he

defended the assault charge with the claim of self-defense and the claim of

possessing the firearm at the premises where he lived. His claim of self-defense

was based upon his assertion that he did not know that the persons tapping on his

window with a light and shouting, “Police,” were police officers and that he thought

he might be being robbed. He claimed that the gun was found in his truck at his

home, the truck being parked in front of his house with the two wheels closest to the

house being on the sidewalk.

      The trial court disbelieved Appellant’s claims and specifically found that the

truck was parked in a public place. W ithout regard to where the truck was parked,

Appellant admitted to having driven his truck around with the gun in it the day of the

incident and the day before the incident.


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      The trial court’s findings under all the evidence do not shock the conscience

or show bias. See Sells v. State, 121 S.W .3d 748, 754 (Tex. Crim. App. 2003), cert.

denied, 540 U.S. 986 (2003). Nor are the findings manifestly unjust. W e overrule

Appellant’s first and second points.

                        Ineffective Assistance of Counsel

      In his third point, Appellant questions his trial counsel’s tactics in allowing him

to testify before the grand jury. To establish ineffective assistance of counsel, an

appellant must show by a preponderance of the evidence that his counsel’s

representation fell below the standard of prevailing professional norms and that there

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

would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984); Salinas v. State, 163 S.W .3d 734, 740 (Tex. Crim. App. 2005);

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).

      In evaluating the effectiveness of counsel under the first prong, we look to the

totality of the representation and the particular circumstances of each case.

Thompson, 9 S.W .3d at 813.       The issue is whether counsel’s assistance was

reasonable under all the circumstances and prevailing professional norms at the

time of the alleged error. See Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.

Review of counsel’s representation is highly deferential, and the reviewing court

indulges a strong presumption that counsel’s conduct fell within a wide range of


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reasonable representation. Salinas, 163 S.W .3d at 740; Mallett, 65 S.W .3d at 63.

A reviewing court will rarely be in a position on direct appeal to fairly evaluate the

merits of an ineffective assistance claim. Thompson, 9 S.W .3d at 813–14. “In the

majority of cases, the record on direct appeal is undeveloped and cannot adequately

reflect the motives behind trial counsel’s actions.” Salinas, 163 S.W .3d at 740

(quoting Mallett, 65 S.W .3d at 63). To overcome the presumption of reasonable

professional assistance, “any allegation of ineffectiveness must be firmly founded in

the   record, and     the   record   must affirmatively demonstrate         the alleged

ineffectiveness.” Id. (quoting Thompson, 9 S.W .3d at 813). It is not appropriate for

an appellate court to simply infer ineffective assistance based upon unclear portions

of the record. Mata v. State, 226 S.W .3d 425, 432 (Tex. Crim. App. 2007).

      The second prong of Strickland requires a showing that counsel’s errors were

so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable

result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, appellant

must show there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct.

at 2068. A reasonable probability is a probability sufficient to undermine confidence

in the outcome. Id. The ultimate focus of our inquiry must be on the fundamental

fairness of the proceeding in which the result is being challenged. Id. at 697, 104 S.

Ct. at 2070.




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       The record here does not establish counsel’s reasoning in allowing Appellant

to testify.   Under such circumstances, we are not to speculate on counsel’s

reasoning. Jackson v. State, 877 S.W .2d 768, 771 (Tex. Crim. App. 1994). W e thus

must conclude that no error is shown.

       Appellant asserts that we should not inquire into trial strategy absent no

possible basis existing to determine counsel’s reason for having him give grand jury

testimony. See Johnson v. State, 614 S.W .2d 148, 152 (Tex. Crim. App. 1981).

Appellant argues,

              Appellant’s point is simple. Trial counsel permitted him to testify
       before the grand jury to either obtain a no-bill or to presumably defeat
       the law enforcement component of the charge. This tactic is
       questionable at first blush in the sense that it allowed the State to re-
       indict and prove up a new charge. On the other hand, Appellant is
       mindful of the argument that Appellant’s testimony might well have
       been the deciding factor in persuading the Grand Jury to indict him on
       the lesser charge of Aggravated Assault.

This argument defeats itself. Acknowledging that we should not inquire into the trial

tactics absent a possible basis to make the decision, Appellant acknowledges a

reasonable basis existed. W e therefore overrule Appellant’s third point.




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                                  Conclusion

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

judgments.



                                             CHARLES BLEIL
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER, J.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

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

DELIVERED: July 15, 2010




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