                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00482-CR

                                       Douglas J. BRUMLEY,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 52nd Judicial District Court, Coryell County, Texas
                                  Trial Court No. FAM-13-21556
                             Honorable Trent D. Farrell, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 13, 2014

AFFIRMED

           Douglas J. Brumley (“Brumley”) was involved in a physical altercation with his mother,

Gail Brumley, and his father, Douglas B. Brumley. A jury convicted Brumley of family-violence

assault for causing bodily injury to Gail, assessing his punishment at eighteen years’ imprisonment

and a $10,000 fine. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2) (West Supp. 2013). In his

sole appellate issue, Brumley contends his trial counsel was ineffective because he did not request

a jury instruction on the law of self-defense. We affirm the trial court’s judgment.
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                                          BACKGROUND

       In December 2012, Gail made a 9-1-1 call to the Coryell County Sheriff’s Office and

reported that Brumley was drunk and “acting crazy.” She stated she was unable to deal with him

because she was under hospice care. She further reported that he was acting violent, that “he done

bruised up my arm,” and that “he grabbed me and I got blood on my hand, blood on my arm.”

Douglas also spoke to the 9-1-1 operator and reported that Brumley was “shoving” Gail around

and that Gail “was too weak to deal with this.” They both indicated that this was not the first time

Brumley became violent when drinking.

       A sheriff’s deputy was dispatched to Gail’s residence in South Mountain, Texas. He

testified that when he arrived, Gail—whom he described as a “frail, older . . . female”—was

standing in front of the residence. She showed the deputy her right arm, which had blood on it, and

said that Brumley had caused the injury but that he had run out the back door. Photographs from

that night show a large, dark bruise and a small open wound on Gail’s right arm.

       After he made sure Brumley had left, the deputy interviewed Gail and Douglas. Gail told

the deputy that her son had been drinking and became abusive and argumentative. She said that

Brumley pushed her, causing her to fall on her hospital bed. The deputy testified Douglas’s account

of the night’s event was consistent with Gail’s. He also testified that neither Gail nor Douglas

indicated that Gail initiated the contact with Brumley. Gail and Douglas both told the deputy they

did not want criminal charges filed.

       The deputy decided to file charges and left Gail’s residence so that he could prepare the

charges at the sheriff’s office. After the deputy left, Gail made another 9-1-1 call because Brumley

had returned. She reported that he was back and he had “gone crazy again.” When the 9-1-1

operator asked “has he hit you,” Gail replied “yes he bruised me up.” The deputy returned to the

residence and arrested Brumley.
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          At trial, Gail testified that the reason she called 9-1-1 was because Brumley was “getting

too mouthy” and speaking negatively about her family. In response to his comments, she “got up”

and “punched [Brumley] in the nose a couple of times.” Brumley then took her arm to help her

back to bed because she was about to lose her balance. Gail also testified that she bruised easily.

Gail did not recall telling the 9-1-1 operator that Brumley had hurt her.

          Douglas testified Gail called 9-1-1 because Brumley was drunk and speaking poorly of her

family, causing her to “hit” Brumley on the nose three times. He testified that Brumley caught

Gail’s arm when she was about to swing for the fourth time and that her legs got caught on the

bed. Brumley then helped Gail sit down. Douglas testified that the only “shoving” that occurred

that night was when he attacked and wrestled with Brumley for speaking negatively about Gail’s

family.

                                              DISCUSSION

          Brumley contends his trial counsel was ineffective because he did not request the trial court

to instruct the jury on self-defense.

          To show that his counsel’s representation was so inadequate as to violate the Sixth

Amendment right to counsel, Brumley must prove by a preponderance of the evidence that 1) his

counsel’s performance was deficient, and 2) his deficient performance prejudiced his defense.

Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). “The assessment of whether a

defendant received effective assistance of counsel must be made according to the facts of each

case.” Id. at 813. “An appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.” Id. “Any allegation of

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

demonstrate the alleged ineffectiveness.” Id.



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        The Court of Criminal Appeals has recognized that the defendant and his trial counsel may

strategically choose not to request instructions on defensive issues. See Delgado v. State, 235

S.W.3d 244, 254 (Tex. Crim. App. 2007) (holding trial court had no sua sponte duty to instruct

the jury on the State’s burden of proof for extraneous offenses); Posey v. State, 966 S.W.2d 57, 63

(Tex. Crim. App. 1998) (holding trial court had no sua sponte duty to instruct jury on mistake-of-

fact defense). In Posey, the Court reasoned that a decision by the defendant and his counsel not to

request an instruction on the mistake-of-fact defense could have been based on their desire to

“avoid losing their credibility with the jury because the evidence raising the defense is so unworthy

of belief.” 966 S.W.2d at 63.

        The record does not contain any evidence about whether counsel made a strategic decision

to not request a self-defense instruction. Brumley’s attack on his counsel’s performance, based on

an alleged error of omission, is particularly ill-suited to evaluation on direct appeal without a record

developed on a motion for new trial. See Thompson, 9 S.W.3d at 814. Because we are obligated to

accord his counsel a strong degree of deference, we may sustain Brumley’s ineffectiveness claim

only if we conclude that absolutely no reasonable strategy could justify a decision to not request a

self-defense instruction.

        Brumley contends that Vasquez v. State supports such a determination. See 830 S.W.2d

948 (Tex. Crim. App. 1992) (per curiam). In Vasquez, the appellant was convicted of unlawful

possession of a firearm by a felon. Id. at 949. On direct appeal, the appellant argued his counsel

was ineffective for failing to request an instruction on the justification of necessity as a defense to

the crime. Id. The appellant had testified at trial that he was a target of ex-members of prison gangs,

that he had been attacked and kidnapped by a group of them at the time of his offense, and that he

escaped from his kidnappers by grabbing a gun from an inattentive kidnapper. Id. at 950. He was

then apprehended when he walked into a convenience store with the gun. Id.
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       The Court of Criminal Appeals found that the facts of the case raised the defense of

necessity and that appellant’s counsel was ineffective for not failing to request the instruction. Id.

at 951. The Court reasoned that “[c]ounsel should have recognized that appellant’s testimony was

sufficient to raise the defense, and that appellant had nothing to lose by requesting a defensive

instruction.” Id. Furthermore, appellant’s conviction was a foregone conclusion without an

instruction on necessity. Id.

       Brumley’s case is distinguishable because it is arguable that Brumley did have something

to lose by asserting self-defense at trial. The evidence showed that Gail was a small, frail woman

who was under hospice care. Brumley’s offense report shows that he was a 35-year-old male, stood

at 5′ 10″ tall, and weighed 170 pounds. Given the significant disparity in health and stature between

Brumley and Gail, a reasonably competent lawyer could conclude that the jurors would find an

argument that Brumley acted in self-defense implausible, causing them to be more inclined to

convict Brumley and sentence him to a harsher punishment. See Posey, 966 S.W.2d at 63. And

without a record reflecting the reasons behind counsel’s actions at trial, we have no way of

knowing whether this strategic concern, or any other one, motivated Brumley’s counsel to not seek

an instruction on self-defense.

       Because the record does not affirmatively show that Brumley’s counsel was

constitutionally ineffective for not requesting a jury instruction on self-defense, we overrule

Brumley’s sole point of error and affirm the trial court’s judgment.

                                                   Luz Elena D. Chapa, Justice

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