Opinion issued March 10, 2016




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-15-00185-CR
                           ———————————
                       JASON A. SNAVELY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 230th District Court
                           Harris County, Texas
                       Trial Court Case No. 1404979



                       MEMORANDUM OPINION

      A jury convicted appellant, Jason A. Snavely, of aggravated assault of a

family member,1 enhanced by a previous felony conviction for aggravated robbery,

1
      See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
and assessed his punishment at fifty-five years’ confinement. In one point of error,

appellant contends that his trial counsel was ineffective for presenting an

inapplicable defense at the guilt-innocence phase of trial. We affirm.


                                   Background

      Odell “Joe” Jackson shared a home in Houston with his nephews,

Christopher Wetzel and appellant, appellant’s girlfriend, Susan Allen, and their

two-year old son. On October 15, 2013, Jackson and Wetzel were sitting in their

backyard and talking when they heard what sounded like a firecracker go off in the

house. The sound occurred because appellant had picked up a shotgun and fired a

shot through his bedroom door, where Allen and his son were located. Appellant

then opened the back door and shot Wetzel in the face, and turned to Jackson and

told him, “you’re next.” Jackson jumped behind appellant, grabbed the shotgun,

and held it against appellant’s chest while Wetzel ran across the street for help.

Once appellant was calm, Jackson released him and they walked inside the house.

When appellant grabbed a knife in the kitchen, Jackson ran outside and gave the

shotgun to firefighters who had arrived at the scene. Upon emerging from the

house, appellant was placed under arrest.

      Before trial, appellant’s appointed counsel sought psychiatric evaluations of

appellant to determine both his competency to stand trial and his sanity at the time

of the charged offense. The evaluator found that appellant was competent to stand


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trial and that his state of mind at the time of the conduct charged did not satisfy the

statutory criteria for insanity.

       At trial, counsel cross-examined the State’s witnesses. Jackson testified that

he was aware that appellant has had mental issues and that, on the morning of the

shooting, he and Wetzel had discussed hallucinations that appellant had

experienced the previous night. Allen, a defense witness, testified that she met

appellant at a mental hospital twenty-eight years ago and that appellant suffered

from back pain and depression as a result of the pain. She further testified that

appellant appeared dazed and in a fog on the morning of the shooting. Appellant

testified that, on the night before the shooting, he was feeling a bit depressed and

asked Wetzel to give him something for his headache. He testified that after he

took the pill Wetzel gave him, he felt dizzy and strange and had difficulty falling

asleep. Appellant testified that he remembered waking up the morning of the

shooting and then being arrested outside his house, but that he did not recall

anything else. In his closing argument, trial counsel argued that the State had

failed to prove that appellant intentionally or knowingly caused Wetzel’s injuries.

       The jury found appellant guilty of aggravated assault of a family member.

Having found the enhancement paragraph alleging a prior felony conviction for

aggravated robbery true, the jury assessed appellant’s punishment at fifty-five

years’ confinement. Appellant timely filed this appeal.



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                                     Discussion

      In his sole point of error, appellant contends that his trial counsel was

ineffective because he misunderstood the law and presented an inapplicable

defense of involuntary intoxication at the guilt-innocence phase of trial.

   A. Standard of Review

      The standard of review for evaluating claims of ineffective assistance of

counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct.

2052, 2064 (1984). Under the Strickland two-step analysis, a defendant must

demonstrate that (1) his counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Id.

at 687–88, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159 S.W.3d 98, 101–02

(Tex. Crim. App. 2005). A reasonable probability is a “probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at

2068. Failure to make the required showing of either deficient performance or

sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.

      An appellant bears the burden of proving by a preponderance of the

evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded



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in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Id. at 814. When the record is silent, we may not speculate to find

trial counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App.

2001).    In reviewing counsel’s performance, we look to the totality of the

representation to determine the effectiveness of counsel, indulging a strong

presumption that counsel’s performance is within a wide range of reasonable

professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. We will find a

counsel’s performance deficient only if the conduct is so outrageous that no

competent attorney would have engaged in it.          Andrews, 159 S.W.3d at 101.

“When handed the task of determining the validity of a defendant’s claim of

ineffective assistance of counsel, any judicial review must be highly deferential to

trial counsel and avoid the deleterious effects of hindsight.” Thompson, 9 S.W.3d

at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).

   B. Analysis

      Appellant contends that his trial counsel was ineffective because he

misunderstood the law and presented the inapplicable defense of involuntary

intoxication at the guilt-innocence stage of trial.

      “A person commits an offense only if he voluntarily engages in conduct,

including an act, an omission, or possession.” TEX. PENAL CODE ANN. § 6.01(a)



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(West 2011). “Involuntary intoxication” may constitute an affirmative defense to

the commission of a crime if it is shown that (1) the accused exercised no

independent judgment or volition in taking the intoxicant, and (2) as a result of a

“severe mental disease or defect” caused by the involuntary intoxicant, the accused

did not know that his conduct was wrong. Mendenhall v. State, 77 S.W.3d 815,

817–18 (Tex. Crim. App. 2002).

      Our review of the record reveals that trial counsel did not present the defense

of involuntary intoxication at trial. Counsel never requested that the jury charge

include the affirmative defense, and no such instruction was included in the charge.

Trial counsel also did not make any reference to the defense of involuntary

intoxication during closing arguments.2 Rather, he argued that the State had failed

to show that appellant intentionally or knowingly caused Wetzel’s injuries.3

Further, the defense of involuntary intoxication was not raised by the evidence.

2
      In fact, the State—not appellant—raised the defense of involuntary intoxication in
      closing arguments as a strawman to knock down.
3
      After reading the definitions of “intentionally” and “knowingly” from the charge
      during closing arguments, trial counsel argued:

            No motive, no reason, no intent to do what happened. And if you
            don’t know those kind of things based upon this Court’s charge,
            everything can happen, but you can still be not guilty. Because if
            you’re not aware that you’re acting with knowledge or with intent to
            cause the result and there’s no rhyme or reason for any of this to
            have happened, you can throw out well, mean as a snake and ornery
            and sorry and all those kinds of adjectives you want. But none of
            them apply in this case because there is no evidence of that.



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Although trial counsel elicited testimony that Wetzel gave a pill to appellant and

that appellant felt strange after taking it, appellant testified that he took the pill and

never claimed that he had not exercised independent judgment or volition in taking

it. 4 See Mendenhall, 77 S.W.3d at 817–18 (noting that involuntary intoxication

may constitute affirmative defense to commission of crime if it is shown that

accused exercised no independent judgment or volition in taking intoxicant and, as

result of “severe mental disease or defect” caused by involuntary intoxicant,

accused did not know that his conduct was wrong).

      In sum, the record does not show that trial counsel either misunderstood the

law or presented a defense of involuntary intoxication during the guilt-innocence

phase of trial.      See Thompson, 9 S.W.3d at 813 (stating allegation of

ineffectiveness must be firmly founded in record, and record must affirmatively

demonstrate alleged ineffectiveness). Thus, appellant’s contention that his trial

counsel’s performance in proposing an involuntary intoxication defense did not

meet an objective standard of reasonableness fails.



4
      Trial counsel’s presentation that appellant took the pill, coupled with testimony
      that appellant had mental issues, could have been part of his strategy trying to
      raise reasonable doubt as to the mens rea of the charged offense. See, e.g.,
      Thompson v. State, No. 14-12-00958-CR, 2014 WL 2158152, at *2 (Tex. App.—
      Houston [14th Dist.] May 22, 2014, no pet.) (concluding trial counsel’s
      presentation of defendant’s prescription drug use could have been part of
      reasonable trial strategy trying to raise reasonable doubt as to mens rea element of
      charged offense).


                                            7
      Moreover, even if the record affirmatively demonstrated counsel’s

deficiency, appellant has failed to show that, but for his trial counsel’s error, the

result of the proceeding would have been different. Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). In this case, trial counsel conducted a thorough

voir dire, cross-examined the prosecution witnesses developing reasonable doubt

where he could, presented a plausible defense, and argued that the State had failed

to prove that appellant had intentionally or knowingly caused Wetzel’s injuries as

required to find him guilty of the charged offense. Further, the State’s case was

strong. The evidence showed that appellant fired the gun into his bedroom door

while Allen and their son were in appellant’s room, and that he reloaded the gun

and walked to the back patio where Jackson and Wetzel were talking; Jackson and

Wetzel identified appellant as the person who shot Wetzel in the face; Jackson

testified that appellant told him that he was next as appellant attempted to reload

the shotgun, and that he had to restrain appellant until appellant had calmed down.

Although appellant alleges that, absent counsel’s error, the results of the trial

would have been different, he has not discussed any specific instances or examples

to show how the results would have been different.          See id. (noting that if

defendant cannot prove both prongs under Strickland, trial counsel’s representation

will not be found ineffective).




                                         8
      Based on the record before us, appellant has not rebutted the strong

presumption that his trial counsel’s performance was within the range of

reasonable professional assistance. See Lopez, 343 S.W.3d at 142; Robertson, 187

S.W.3d at 483; Thompson, 9 S.W.3d at 813. Nor has appellant demonstrated that,

but for his trial counsel’s alleged deficiency, there is a reasonable probability that

the result of the trial would have been different. See Lopez, 343 S.W.3d at 142.

Having concluded that appellant failed to establish both elements of an ineffective

assistance claim, we overrule appellant’s sole issue.

                                    Conclusion

      We affirm the trial court’s judgment.




                                               Russell Lloyd

                                               Justice


Panel consists of Justices Higley, Huddle, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




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