AFFIRM~       Opinions issued .January ll, 2013.




                                                                In The
                                          C!rourt of Appeals
                                 lJHftl1 IDistrid of IDexas at IDallas
                                                     No. 05-11-01299-CR


                                        EDDRIC M. WILLIA.t\1S, Appellant

                                                                   v.
                                         THE STATE OF TEXAS, Appellee


                              On Appeal from the 291st Judicial District Court
                                           Dallas County, Texas
                                   Trial Court Cause No. Fl0-59036-U


                                                           OPINION
                                Before Justices FitzGerald, Fillmore, and Richter'
                                          Opinion By Justice Fillmore

        A jury convicted Eddric M. Williams of murder and sentenced him to seventy-five years'

imprisonment. In two issues, Williams asserts the trial court erred by including an instruction in the

punishment phase jury charge that impermissibly prohibited the jury from considering voluntary

intoxication in mitigation unless it rose to the level of temporary insanity, and trial counsel was

ineffective by requesting the instruction. We afflrm the trial court's judgment.




   1 The Honorable Manin E. Richler. Re1ired Juslice. Coun of Appeals. Fiflh Dislricl of Texas al Dallas, siuing by assignmenl.
                                       --   -~-----   ~-·•-------   _ _ _ _ _ _ .._____·•-·•·-••   ----·----   r.   ·------   .~   -•   ·----   --   ·--·----




                                                                    nackground 2

          On August 5. 20 I0, Oarron Scourton was shot devcn times in the parking lot of the Leigh

Ann Apartment.;;. Scourton died from his injuries.

          Terrence Clayton, Scourton's cousin, testified he, his eight-year-old son, and Scourton were

standing on a comer in the parking lot when he saw Williams walking ~oward them. Williams was

saying loudly that he was the wrath of God and was there to kill all demons and serpents. Williams

stopped in front of Clayton and said. ·'And I will kill you." Williams had a gun in his hand.

          Scourton pushed Clayton to one side and attempted to talk to Williams. Clayton grabbed his

son and ran to his car. As he was crouched behind his car, Clayton saw Williams fire the gun at

Scourton's head. Scourton fell to the ground. Williams then repeatedly fired the gun at Scourton.

          Regina Scourton, Scourton's wife, was inside her apartment when she heard a gunshot.

Regina went outside to investigate and saw Williams standing by her husband's body with a gun in

his hand. Williams then shot at the body three more times.

           According to Billy King, Sr., a resident of the Leigh Ann Apartments, Williams was

generally "laid back," but could be a "hot head" if you owed him, "messed with him," or

disrespected him or the mother of his child. On August 5, 20 lO, King saw Williams in an

"altercation" with Scourton. King heard Williams say he had a message from God and "then all of

a sudden comes out with a- with a .45, boom." Williams shot Scourton a number of times. King

tried to tell Williams to stop shooting Scourton. King's wife stopped him and said "he's crazy. He's

out of his mind. He's liable to shoot you. He's out of his mind. He don't know what's going on."

After Williams shot Scourton, King heard Williams say to Scourton that he had told Scourton that



     2 Williams has not challenged lhe sufficit..-ncy or lhe evidence to suppon lhe conviction. Therefore. we recite only lhose facts necessary to
atltlress his complaints on appeal.




                                                                                -2-
he was going to kill "one of you" for bothering him.

        Williams testified he took pcpJ on August 5, 2010. He was talking to a couple of women

about God and remembers saying he was the wrath of God. Williams then looked toward the moon

and everything went white. Williams does not recall shooting Scourton.

         After the jury found Williams guilty of murdering Scourton, it heard testimony from Arturo

Mestas that Williams was a bully and liked to start trouble. One time, Williams and Mestas got into

a fight. Williams picked Mestas up and dropped him on his head, giving him a concussion.

         Kimberly Morgan testified she grew up with Williams, and he was loving and caring.

Williams was not a bully, and his behavior on August 5, 2010 was out of character. According to

Morgan, if Williams had not taken PCP, he would not have acted that way. Misty Williams,

Williams's sister. testified Williams must have been in an altered state and there was "no way" he

could "have been in his right mind." Williams testified that he had taken PCP on prior occasions

and had never been violent. His actions on August 5, 2010 were "not Lhiml at all," and the murder

would not have happened if he had not taken PCP.

         In the punishment charge, the trial court instructed the jury:

                I U )nder our law neither intoxication nor temporary insanity of mind caused
         by intoxication shall constitute any defense to the commission of a crime. Evidence
         of temporary insanity caused by intoxication may be considered in mitigation of the
         penalty, if any, attached to the offense.
                 By the term "intoxication" as used herein is meant disturbance of mental or
         physical capacity resulting from the introduction of any substance into the body.
                 By the term "insanity" as used herein is meant that as a result of intoxication
         the defendant did not know that his conduct was wrong.
                 Now, if you find from the evidence that the defendant, Eddric Williams, at
         the time of the commission of the offense for which he is on trial, if you find from
         the evidence beyond a reasonable doubt that the [sic) did commit such offense, was
         laboring under temporary insanity as defined in this charge, produced by voluntary



    3 .. PCP" is phencyclidine. a conuolled substance. Black v. State. 739 S. W.2d 638. 641 n.5 (Tex. App.-Dallas 1987. no pet.).




                                                                    -3-
       intoxication. then you may take sm:h temporary insanity into consideration in
       mitigation of the penalty which you attach to the if crime. if you find him guilty.

After the jury began deliberating punishment, the following exchange occurred:

       Triat Court:           The Court has submitted the charge to both-the State and the
                              Defense. The Defense had made a special request regarding
                              the voluntary intoxication.

       [Prosecutor[:          Yes,. Your Honor.

       Trial Court:           The Court has included that. Was there any objection from
                              the State or the Defense? No objection from the State?

       I Prosecutor[:         No.

       Trial Court:·           Defense?

       [Defense Counsel]:      No, Your Honor.

       Trial Court:           Okay. I just want the record to be clear.

The jury assessed punishment of seventy-five years' imprisonment.

                                           Charge Error

       Relying on dicta from Tucker v. State, 771 S.W.2d 523 (Tex. Crim. App. 1988), Williams

contends in his first issue that the instruction on voluntary intoxication included in the punishment

phase charge impermissibly prohibited the jury from considering voluntary intoxication in mitigation

of punishment unless it rose to the level of "temporary insanity." However, the record reflects

Williams requested the trial court to include the instruction on voluntary intoxication in the jury

charge and the trial court granted his request.

        The court of criminal appeals has consistently held that if a defendant requests a charge and

the charge is submitted as requested, the defendant is in no position to complain of that charge on

appeal. Trejo v. State, 280 S.W.3d 258,260 (Tex. Crim. App. 2009); Prystash v. State, 3 S.W.3d

522, 531 (Tex. Crim. App. 1999); Livingston v. State, 739 S. W.2d 311, 341 (Tex. Crim. App. 1987).




                                                  -4-
Even if the charge is later found to be erroneous. the accused may not. first invite error and then

complain about_ it on appeal. Prystash, 3 S. W.Jd at 531; Tucker. 771 S. W.2d at 534. The court of

criminal appeals has specitically concluded a defendant may not request an instruction on voluntary

intoxication as mitigation of punishment and then complain about the instruction on appeal. Tucker,

771 S.W.2d at 534.

       Because the trial court charged the jury in the manner requested by Williams, any error in

giving the instruction is invited. We resolve Williams's tirst issue against him.

                                Ineffective Assistance of Counsel

       In his second issue, Williams asserts his counsel was ineffective by requesting the instruction

on voluntary intoxication in the punishment phase of the trial. Williams specifically argues there

was no reasonable trial strategy for requesting an instruction that precluded the jury from giving

consideration to any intoxication that did not rise to the level of temporary insanity.

       To be entitled to a new punishment hearing based on an ineffective assistance of counsel

claim, a defendant must show that counsel's performance was deficient and the deficiency prejudiced

the defense. Strickhmd v. Washington, 466 U.S. 668, 687-88, 692 (1984); Riley v. State, 378

S.W.3d453,456n.5 (Tex. Crim. App. 2012); £'Cparte Lane, 303 S.W.Jd 702,707 (Tex. Crim. App.

2009). The first prong requires the defendant to show counsel's performance fell below an objective

standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88,

689; £-'C parte Lane, 303 S.W.3d at 707. The second prong requires the defendant to show there is

a reasonable probability that, but for his counsel's errors, the result of the proceeding would have

been different. Strickland, 466 U.S. at 694; £'C parte Lane, 303 S.W.3d at 707. A defendant's

failure to satisfy one prong negates the need to consider tpe other prong. Strickland, 466 U.S. at 697;

£'C parte Lane, 303 S.W.3d at 707.




                                                 -5-
        In determining whether a defendant has met his burden. we consider the totality of the

representation and the particular circumstances of each case. £t parte Lane. 303 S.W.Jd at 707.

We strongly presume counsel's conduct fell within the wide range of reasonable professional

assistance and do not judge counsel's actions in hindsight. Strickland, 466 U.S. at 689; Tiwmpsun

v. State, 9 S.W.Jd 808, 813 (Tex. Crim. App. 1999). The fact that another attorney might have

pursued a different strategy at trial is not sufficient to prove counsel was ineffective. Sc.:heanette v.

State, 144 S.W.Jd 503, 509 (Tex. Crim. App. 2004).

        Our review of counsel's performance is highly deferential and begins with the assumption

that counsel's conduct fell within the wide range of reasonable professional assistance. Andrews v.

State, 159 S.W.Jd 98, 101 (Tex. Crim. App. 2005). We commonly assume a strategic motive if any

can be imagined and conclude counsel's performance was deficient only if the conduct was so

outrageous that no competent attorney would have engaged in it. !d. An ineffective assistance claim

must be ·'firmly founded in the record," and the record must affirmatively demonstrate that the claim

has merit. Goodspeed v. State, 187 S.W.Jd 390, 392 (Tex. Crim. App. 2005); see also £r parte

Martinez, 330 S.W.Jd 891,901 (Tex. Crim. App.), cert. denied, 131 S.Ct. 3073 (2011) ("Allegations

of ineffectiveness must be based on the record, and the presumption of a sound trial strategy cannot

be overcome absent evidence in the record of the attorney's reasons for his conduct."). In most

cases, a silent record that provides no explanation for counsel's actions will not overcome the strong

presumption of reasonable assistance. Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App.

2008); Rylander v. State, 101 S.W.3d 107, 110-ll (Tex. Crim. App. 2003). Further, counsel should

ordinarily be accorded an opportunity to explain his actions before being condemned as

unprofessional and incompetent. Rylander, 101 S.W.3d at ill; Bone v. State, 77 S.W.3d 828, 836

(Tex. Crim. App. 2002). Because the reasonableness of counsel's choices often involve facts that
do not appear in the appellate record, an application for writ of habeas corpus is generally the more

appropriate vchide to raise ineffective assistance of counsel daims. lvlitclte/1 v. State,   6~   S.W.Jd

640, 642 (Tex. Crim. App. 2002).

        Williams l:Ontended at trial that, due to his use of PCP, he did not remember shooting

Scourton. He presented evidence that his shooting Scourton was out of character and only occurred

because he had taken PCP. Evidence that the defendant may have been intoxicated at the time of

the offense does not automatically entitle him to a mitigation instruction at punishment. Miniel v.

State, 831 S. W.2d 310, 320 (Tex. Crim. App. 1992); Shelton v. State, 41 S. W.Jd 208, 213 (Tex.

App.-Austin 2001, pet. refd). However, "[elvidence of voluntary intoxication may serve to

mitigate the severity of an offense where the effect of the intoxication is to render the defendant

temporarily insane." £t parte Martinez. 195 S.W.3d 713, 722 (Tex. Crim. App. 2006) (citing

section 8.04(b) of the penal code). On this record, Williams has failed to establish a determination

by his trial counsel that it would benefit Williams to have an instruction in the jury charge that

voluntary intoxication rising to the level of temporary insanity could act to mitigate the severity of

punishment was not a reasonable trial strategy.

        In most cases, a silent record will not overcome the strong presumption of counsel's

reasonable assistance. See Rylander, 101 S.W.3d at 110-11. Although Williams filed a motion for

new trial. he did not raise the issue of ineffective assistance of counsel in the motion and did not

have a hearing on the motion. Consequently, Williams's trial counsel has not been given an

opportunity to explain his actions in requesting the complained-about instruction. Nor has Williams

shown that this case is one of those extraordinary situations in which the face of the record shows

counsel's challenged conduct was "so outrageous that no competent attorney would have engaged

 in it." Garcia v. State, 57 S.W.3d 436,440 (Tex. Crim. App. 2001) (citing flwmpson, 9 S.W.3d at




                                                  -7-
X14). We conclude Williams has not met his burden of showing that trial counsel's pcrfonnance fell

below an objective standard of reasonableness. See Freeman v. State, 125 S. W.Jd 505, 506-07

(Tex. Crim. App. 2003) ("The record in this case is insufficient to support the conclusion Lthat

appellant received ineffective assistance of counsel! because appellant did not develop a record in

the trial court for the purpose of establishing this claim.").

        We resolve Williams's second issue against him and affirm the trial court's judgment.




                                                         ROBERT M. FILLMORE
                                                         JUSTICE
Do Not Publish
TEX. R. APP. P. 47

lll299F.U05




                                                   -8-
                                  Qtourt of Appeats
                       lf.ift}f 1ilistrirl of IDexas at 1ilallas

                                      JUDGMENT
EDDRIC M. WILLIAMS, Appellant                     Appeal from the 291st Judicial District
                                                  Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-11-0 1299-CR         V.                    Fl0-59036-U).
                                                  Opinion delivered by Justice Fillmore,
THE STATE OF TEXAS, Appellee                      Justices FitzGerald and Richter
                                                  participating.


       Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.




Judgment entered January 11, 2013.




                                                   ROBERT M. Fll.LMORE
                                                   JUSTICE
