                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NOS. 02-10-00127-CR
                                   02-10-00128-CR


JASON MICHAEL SORRELLS                                                APPELLANT

                                          V.

THE STATE OF TEXAS                                                       STATE


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           FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION1
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                                    Introduction

      Appellant Jason Michael Sorrells asks us to reverse his convictions for

unlawful possession of a firearm, evading arrest, deadly conduct, and nine

counts of aggravated assault of peace officers, claiming that the evidence is

insufficient and that his trial counsel was ineffective. We affirm.


      1
       See Tex. R. App. P. 47.4.
                  Background Facts and Procedural History

      Appellant moved out of Lesley Arterburn’s trailer house on the outskirts of

Granbury sometime around Thanksgiving 2008.               One night just before

Christmas, he went back to retrieve some of his belongings.          Friends were

visiting Lesley that night, and one of them, Darla Jorden, walked outside to meet

Appellant when he arrived. Darla asked him what he wanted; he said his tent;

she gathered it from the porch, tossed it into the back of his pickup truck, and

asked him to leave. He refused, claiming there still were more things he wanted.

Darla replied that she did not see anything else, repeated her request that he

leave, and suggested that he could deal with the other things later. Appellant got

upset, which resulted in his yelling, swearing, and revving his engine.

      Lesley and her other guests came out of the house. Randea Cowen, who

had known Appellant for a couple of years, thought she could persuade him to

come back for the rest of his things some other time. While she talked to him in

the doorway of his truck, Lesley walked up behind her. Appellant and Lesley

started arguing, and their argument escalated to Appellant’s reaching past

Randea and grabbing Lesley by the neck.

      John Ahnson stepped in at that point and engaged Appellant in a fist fight.

The two tussled in the grass, on the concrete, and inside the bed of Appellant’s

pickup truck before Appellant retreated behind the steering wheel. He gunned

the motor and plowed through the yard, swerving at the others as they dodged




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and scattered. After he left, Lesley and her guests retired to the house and

called the sheriff’s department.

      Appellant stopped briefly at the trailer park where he was staying and then

went to Curtis Proctor’s house. He asked Curtis if he could borrow a gun to take

―deer hunting‖ in the morning. Curtis lent him a rifle with a scope and four rounds

of .30–06 ammunition. Appellant took the rifle and hid in the woods across from

Lesley’s home.

      Peering through the rifle scope from his hiding place, Appellant watched

Patrol Sergeant Michelle Berry and Deputy Toby Fries arrive and take

statements from Lesley and her friends. The deputies also photographed

Lesley’s and John’s scrapes and bruises.

      When the deputies left, Beverly, who had ridden with Randea, went

outside and waited in Randea’s car parked beside the trailer.

      Randea, Lesley, Darla, and Billy Wiley were in the kitchen laughing and

joking with John, who sat facing them on the living room couch.          Appellant

slipped into the trailer through the back door, crept into the living room, and

lowered the rifle to the back of John’s head, taunting, ―You think this is f---ing

funny? I’ll show you how funny it is.‖

      Lesley and Darla grabbed their cell phones. Lesley dialed 911 on hers,

handed it to Billy, and walked toward Appellant while he tried to chamber a

round. The rifle jammed. Shaking the rifle, Appellant backed toward the front

door. When he reached the door, Lesley shoved him through. Appellant pushed


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back to get inside, but Lesley and Darla held the door and locked it. Randea ran

to lock the back door. Lesley slid to the floor and sat there while Billy and Darla

spoke with the 911 operator.

      Appellant climbed off the porch, ran several steps alongside the trailer, still

shaking the rifle. He finally dislodged the jammed cartridge, which dropped to

the grass in the front yard. Appellant chambered another round, aimed at the

trailer, and opened fire.

      The first bullet pierced the wall so close to Darla that she could smell it.

She dropped to the floor and started crawling to the back of the trailer. Appellant

fired two more shots. By the third one, Darla’s ears were ringing badly, but she

managed to stay on the line with the 911 operator. As her friends scrambled for

cover, Lesley remained planted by the front door.

      When he stopped shooting, Appellant ran into the dark toward the road.

Bullets had punched eight entry holes in the front of the trailer and nine exit holes

out the back, leaving shattered windows and Christmas ornaments, bent and

broken blinds, and a perforated couch in between.

      The 911 operator dispatched Sergeant Berry and Deputy Fries back to

Lesley’s trailer to investigate the ―shots fired call.‖      They were joined by

Sergeants James Cromwell and William Watt and by Deputies Brad Duckett and

William Drake.

      Granbury Police Sergeant Cliff Clemons was on patrol when he heard 911

dispatch the deputies. He drove to the city limits and waited near the back


                                         4
entrance of Lesley’s subdivision. After a few minutes, he saw Appellant’s truck

run the stop sign and go south on Highway 51 ―at a fairly good pace.‖ Within a

few minutes, Clemons had closed the gap. Appellant then made a U-turn and

drove toward Clemons’s car, causing the officer to swerve into the ditch.

       As Appellant sped northbound up 51, Officer Dirk Sain, responding to

Clemons’s call for backup, approached southbound. Sain narrowly missed a

collision with the pickup as it veered into his lane and forced him off the road.

       Having learned that city police officers had narrowly missed a collision

outside city limits, Texas Department of Public Safety (DPS) Trooper Nick

Duecker drove southbound on 51 to investigate. He saw Appellant followed by

patrol cars with lights flashing turn in front of him east onto Neri Road and race

toward Highway 144.

       When the deputies reached Lesley’s house, they heard over the radio that

city units were chasing the suspect to 144. After determining that no one at the

trailer had been injured, they left to assist in the pursuit.

       Appellant reached 144, turned south, and started rocking the truck back

and forth, dislodging furniture and a spare tire from the bed.         The pursuing

officers drove around the obstacles and chased Appellant into the Nubbin Ridge

RV Park, where his truck skidded to a stop in front of a large tree between two

trailers.

       Appellant climbed out of the truck with the rifle, and pacing nervously,

pointed the rifle at officers in several patrol cars as they converged around the


                                            5
pickup. He tossed the rifle into the bed, jumped into the bed, shouted for the

officers to shoot him, picked up the rifle, cocked it, lifted it to his shoulder, and

took aim.    As the officers formed a semi-perimeter, some of them aimed

weapons at Appellant. None fired, however, as it became apparent that at least

one trailer within the line of fire was occupied. After a brief standoff, Appellant

surrendered and was arrested.

      The grand jury returned two indictments charging Appellant with evading

arrest, unlawful possession of a firearm, three counts of deadly conduct, and

eleven counts of aggravated assault, including nine counts of aggravated assault

against peace officers.

      Appellant moved for and was granted funds to hire a psychiatrist to

determine Appellant’s competency to stand trial and sanity at the time of the

offense. The psychiatrist, Dr. Stephen Mark, examined Appellant, interviewed

Appellant’s family, reviewed his medical records, and determined that although

Appellant was suffering the effects of grief and alcohol at the time of the offense,

and that he had displayed faulty judgment, he was both competent to stand trial

and legally sane at the time of the offense.

      The jury found Appellant not guilty on one count of aggravated assault and

guilty of evading arrest, unlawful possession of a firearm, one count of deadly

conduct, and all nine counts of aggravated assault on peace officers.2 Appellant

      2
      The trial court granted the State’s motion to dismiss two counts of deadly
conduct and one count of aggravated assault.


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pleaded true to enhancement paragraphs alleging prior felonies, and the trial

court set his punishment at two years’ confinement in the state jail for evading

arrest, two twenty-year prison sentences for deadly conduct and unlawful

possession of a firearm, respectively, and nine life sentences for aggravated

assault. All sentences were ordered to run concurrently.

      Appellant filed and presented a motion for new trial and was granted a

hearing, but offered no evidence. He argued only that the verdicts should be set

aside as contrary to the law and the evidence, and that the trial court had

discretion to grant a new trial in the interest of justice. The motion was denied.

                           Sufficiency of the Evidence

      In his second and third issues, Appellant claims that the evidence is legally

and factually insufficient, respectively, to support the guilty verdicts on the

aggravated-assault-against-public-servant counts. Because the court of criminal

appeals has eliminated the factual sufficiency standard of review from this state’s

criminal jurisprudence, and has held that the standard set out by the United

States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,

2789 (1979) is the only standard of review that applies to insufficiency-of-the-

evidence claims, we overrule Appellant’s third issue and consider only the

second in determining whether the evidence is sufficient to support the jury’s




                                         7
verdicts. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)).

      A person commits aggravated assault when he commits assault as defined

in section 22.01 of the penal code while using or exhibiting a deadly weapon.

Tex. Penal Code Ann. § 22.02(c) (West 2011). A person commits assault as

defined in section 22.01(a)(2) if he intentionally or knowingly threatens another

with imminent bodily injury.   Id. § 22.01(a)(2).   Aggravated assault is a first-

degree felony if committed against a person the actor knows is a public servant

while the public servant is discharging an official duty. Id. § 22.02(b)(2)(B). A

peace officer is a public servant. See Calhoun v. State, No. 14-09-00936-CR,

2011 WL 398077, at *6 (Tex. App.––Houston [14th Dist.] Feb. 8, 2011, no pet.)

(mem. op., not designated for publication). The actor is presumed to have known

the assaulted person was a public servant if the person was wearing a distinctive

uniform or badge. Tex. Penal Code Ann. § 22.02(c).

      Appellant does not contest the sufficiency of the evidence to prove that the

officers were peace officers acting in their official capacities as such, that

Appellant knew that they were, or that Appellant used or exhibited a deadly

weapon, i.e., a firearm. What he does argue is that the evidence is insufficient

because the jury was only guessing as opposed to reasonably inferring from the

evidence that he intended to threaten the officers because the evidence shows

that he only intended to commit ―suicide by cop‖ rather than assault.         We

disagree.


                                        8
      First, we note that Appellant misstates the requisite intent element by

asserting that the evidence is insufficient to show that he intended to assault the

officers. Appellant was found guilty on nine counts of aggravated assault of a

public servant as charged in the indictment by intentionally or knowingly

threatening the public servants with imminent bodily injury. See id. § 22.01(a)(2)

(West 2011). So whether or not Appellant intended to assault the officers, the

requisite culpable mental state is to intentionally or knowingly threaten.

      Second, and more importantly, Appellant’s argument assumes that intent

to threaten and intent to provoke assisted suicide are mutually exclusive.

Logically, they are not. Assuming for the sake of argument that Appellant’s goal

was to provoke the officers into killing him. In order to achieve that goal, a

credible threat to the officers or to a third party would be required. Without a

credible threat to justify the officers’ use of deadly force, it is unlikely that the

officers would use it. In other words, Appellant’s intent to commit suicide by cop

would remain unrealized unless Appellant intentionally or knowingly threatened

the officers.

      Furthermore, viewed in the light most favorable to the verdicts, the

evidence is sufficient to support a reasonable jury’s belief beyond a reasonable

doubt that Appellant intentionally or knowingly threatened all nine officers. Each

officer specifically testified that Appellant pointed the rifle at him. Before that, the

jury had already heard evidence that Appellant had grabbed a woman by the

throat, tried to mow down several people with his pickup truck in her front yard,


                                           9
lied to a friend to get a high-powered rifle that he used to shoot holes in a trailer-

full of people, led police on a high-speed chase in which he ran two patrol cars

off the road by driving his pickup truck directly toward them, and violently rocked

his pickup truck back and forth until it disgorged a large piece of furniture and a

spare tire from its bed, which pursuing officers had to maneuver around. When

he finally ended up cornered in the RV park, Appellant disregarded officers’

repeated commands to disarm himself, shouted for them to shoot him because

he was ―going to prison anyway,‖ racked his weapon, and drew a bead on the

officers.   We hold that the evidence is sufficient to show that Appellant

intentionally or knowingly threatened the officers. See Jackson, 443 U.S. at 319,

99 S. Ct. at 2789; Olivas v. State, 203 S.W.3d 341, 349 (Tex. Crim. App. 2006);

Delay v. State, No. 02-05-00132-CR, 2006 WL 820391, at *3 (Tex. App.—Fort

Worth Mar. 30, 2006, no pet.) (mem. op., not designated for publication).

Accordingly, we overrule Appellant’s second issue.

                        Effective Assistance of Counsel

       In his first issue, Appellant contends that his trial attorneys (Counsel) made

a number of harmful mistakes that deprived him of his constitutional right to

effective assistance of counsel. To prevail on this point, Appellant must show by

a preponderance of the evidence that 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,


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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); Hernandez v. State, 988

S.W.2d 770, 770 (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 the 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 we indulge a strong

presumption that Counsel’s conduct fell within a wide range of reasonable

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

      Rarely does the record on direct appeal position an appellate court to fairly

evaluate the merits of an ineffective assistance claim. Salinas, 163 S.W.3d at

740; 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 us to simply infer

ineffective assistance based upon unclear portions of the record. Mata v. State,


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226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Further, we are very reluctant to

denounce a lawyer as ineffective absent an opportunity for the lawyer to explain

his or her actions on the record. See Rylander v. State, 101 S.W.3d 107, 111

(Tex. Crim. App. 2003); Goodspeed v. State, 187 S.W.3d 390, 391 (Tex. Crim.

App. 2005) (holding that inquiry into counsel’s conduct—failure to ask any

questions during voir dire and exercise of peremptory challenges on jurors who

had already been excused—was needed to determine whether performance was

deficient).

       For these reasons, the court of criminal appeals and this court have often

stated that ineffective assistance claims are usually best addressed by a post-

conviction writ of habeas corpus. See Ex parte White, 160 S.W.3d 46, 49 n.1

(Tex. Crim. App. 2004); Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943

S.W.2d 469, 475–76 (Tex. Crim. App. 1997); Lopez v. State, 80 S.W.3d 624, 630

(Tex. App.––Fort Worth 2002), aff’d, 108 S.W.3d 293 (Tex. Crim. App. 2003);

Ramirez v. State, No. 02-08-00396-CR, 2009 WL 3490875, at *1 n.4 (Tex.

App.—Fort Worth Oct. 29, 2009, no pet.) (mem. op., not designated for

publication).   The case before us is yet another example where this is true.

Through his appellate counsel, Appellant filed and presented to the trial court a

motion for new trial and obtained a hearing on the motion. However, at the

hearing, which was transcribed on a one-page record, Appellant did not assert

that Counsel provided ineffective assistance and did not offer any evidence.




                                       12
      Still, Appellant criticizes Counsel for not taking four specific actions, which

he contends all worked to Appellant’s detriment at trial.       Although Appellant

offered no evidence on the issue of Counsel’s effectiveness, what is in the record

does not support Appellant’s claim.

      First, Appellant faults Counsel for not filing a notice of intent to seek an

insanity defense as well as ―other proper pleadings‖ to ensure that the jury could

have heard evidence and expert psychiatric testimony, which he asserts ―could

and likely would have negated‖ the intent element required for ―all the criminal

charges‖ the State had brought against him. He asserts that Counsel failed to

file ―any type of notice‖ of intent to seek an insanity defense but then

acknowledges that Counsel requested and that the trial court appointed a

psychiatrist to examine Appellant to determine whether he was insane at the time

of the alleged offenses. Appellant’s ―Motion to Appoint Psychiatrist to Assist in

the Evaluation, Preparation and Presentation of Defense‖ urged that a

psychiatrist was necessary to enable him to prepare for trial, present favorable

evidence, and provide expert opinion evidence ―critical to a determination of [his]

competency to stand trial and of [his] sanity at the time of the offense.‖ The trial

court granted the motion and appointed psychiatrist Dr. Stephen Mark, who

examined Appellant and opined that although Appellant certainly had some

mental and emotional problems, he was legally sane at the time of the alleged

offenses. Still, Appellant argues that Counsel was ineffective for not following

statutorily prescribed procedures for admitting evidence supporting an insanity


                                        13
defense and for not objecting to the trial court’s order appointing a psychiatrist

because it did not set out the elements of the insanity defense as required by the

code of criminal procedure.

      Dr. Mark’s letter, however, implies that he was aware of the legal definition

of insanity.   Further, it reveals a fairly sophisticated understanding of the

distinction between certain mental health issues—such as anxiety, depression,

grief and substance abuse—and insanity in the legal sense, while also displaying

a recognition that although these issues may not meet the legal definition of

insanity, they may be offered to support mitigation of punishment.

      Moreover, the facts of the case support the doctor’s opinion that Appellant

was sane as well as a reasonable conclusion by Counsel that the pursuit of an

insanity defense would have been in vain. In order to prevail on an insanity

defense, a defendant must show that at the time of the offense, because of

severe mental disease or defect, he did not know that his conduct was wrong.

Tex. Penal Code Ann. § 8.01(a) (West 2011).          The evidence in the record

includes several instances of Appellant’s displaying his awareness that what he

was doing was wrong. For example, he lied to Curtis Proctor about what he

wanted a rifle for, he hid in the woods across from Lesley’s trailer while the

deputies were there, he fled after shooting up the trailer, and he continued fleeing

to avoid capture by law enforcement. When cornered, he shouted for the officers

to kill him because he was ―going to prison anyway,‖ and he finally surrendered




                                        14
by hopping down from the bed of his pickup truck, kneeling to the ground, and

then laying face down with his hands behind him.

      Given the doctor’s opinion, especially in light of the facts of the case,

Counsel reasonably could have concluded that Appellant did not have a viable

insanity defense and that pursuing one any further than he did would have been

futile. We will not declare a lawyer ineffective for declining to pursue a futile trial

strategy. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. Crim. App. 1991)

(holding that counsel was not ineffective for failing to file futile motions);

Kinnamon v. State, 791 S.W.2d 84, 97 (Tex. Crim. App. 1990) (failure to request

lesser included charge not deficient where evidence did not authorize lesser

included charge), overruled on other grounds by Cook v. State, 884 S.W.2d 485,

491 (Tex. Crim. App. 1994).

      Appellant lodges his next two criticisms at Counsel for not objecting to and

not seeking a limiting instruction on the admission of State’s Exhibit 34, the

recorded 911 call from Billy Wiley, one of Lesley’s guests on the night of the

shooting. Even if we were to assume that State’s Exhibit 34 was objectionable

for the reasons now suggested by Appellant on appeal, and that Counsel should

have objected to it, we fail to see how its exclusion would have affected the

outcome of Appellant’s trial. Darla Jorden was on the line with the 911 operator

at the same time Billy was. Her tape was also admitted in evidence. Appellant

does not claim Darla’s tape should have been excluded. We have listened to

both tapes. Shots are heard on both. In fact, they are actually more clearly


                                          15
heard on Darla’s. Further, a number of witnesses testified that Appellant shot at

Lesley’s trailer while people were in it. Because Appellant does not show how

admission of Billy’s tape harmed Appellant given that the same or similar

evidence was admitted through Darla’s, this complaint does not advance his

claim that Counsel was ineffective.

      Finally, Appellant complains of Counsel’s not making various hearsay and

speculation objections but fails to demonstrate how these ―failures‖ affected the

outcome of his trial. Without a record showing Counsel’s reasons for raising or

not raising objections during trial, we presume that Counsel’s acts were part of a

reasonable trial strategy.   See Jackson v. State, 877 S.W.2d 768, 771 (Tex.

Crim. App. 1994). Moreover, given the evidence in the record that Appellant

does not contend could have been excluded, we hold that Counsel’s not making

the objections suggested by Appellant through hindsight would not have affected

the outcome. Appellant’s first issue is overruled.




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                                 Conclusion

      Having overruled Appellant’s issues, we affirm the judgments.




                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: WALKER, McCOY, and GABRIEL, JJ.

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

DELIVERED: August 31, 2011




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