Modify and Affirm as modified; Opinion Filed October 19, 2017.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-16-00546-CR

                          COREY DEMON FRANKLIN, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 283rd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1575618-T

                             MEMORANDUM OPINION
                        Before Justices Fillmore, Stoddart, and Schenck
                                  Opinion by Justice Stoddart
       A jury convicted Corey Demon Franklin of murdering Jerry Johnson and sentenced him

to eighty years’ confinement. In two issues, appellant argues he suffered ineffective assistance

of counsel and the evidence is insufficient. We modify the judgment to show appellant pleaded

true to two enhancement paragraphs and the jury found the enhancement paragraphs to be true.

As modified, we affirm the trial court’s judgment.

                                     FACTUAL BACKGROUND

       Three people were present when Johnson was shot: appellant and his two uncles, Johnson

and Crandall Kelly. Kelly and appellant testified at trial and presented different accounts of the

events leading to Johnson’s death.
       The State presented Kelly as a witness. Kelly testified that on May 17, 2015, he and

Johnson were at their mother’s house. During their conversation, Kelly agreed to mediate on-

going disputes between Johnson and appellant. Eventually Johnson left the house and appellant

arrived. Kelly told appellant that Johnson believed appellant was selling drugs from their

mother’s house, which appellant denied. Appellant became angry after hearing the allegation.

Kelly testified: “Corey is angry at Jerry because Corey is timid. Not timid as in a man but timid

when it comes to fighting. And Jerry is real aggressive and Corey is scared of Jerry.” Kelly also

testified: “I told him in that conversation, I’m not going to let him fight you, I’m not going to let

him jump on you.” Kelly stated that he and his father both carried guns to protect themselves

from Johnson.

       When told Johnson would be returning to the house soon, appellant left through the front

door. Kelly testified that appellant always departed from a place if he learned Johnson would be

arriving. Johnson then returned to the house. While Johnson and Kelly were in the backyard,

appellant also returned to the house and entered the yard through a gate on the side of the house.

Kelly testified he was working on a chainsaw on the small porch, generally was looking down at

the chainsaw, and did not see everything that transpired after appellant returned.

       Appellant said to Johnson: “Uncle Jerry, Uncle Jerry, you telling Uncle Cran that you

wasn’t trying to fight me . . . But every time I see you, you keep running up on me and running

up on me and running up on me. . . . I don’t let people just keep coming up on me like that. I

don’t let nobody walk up on me. I don’t let people walk up on me but you keep doing that.”

Appellant and Johnson yelled and cursed at each other, but their argument did not become

physical. Kelly testified that appellant turned around to leave the yard, but then turned back and

shot Johnson twice. Kelly stated: “He’s bullying him, threatening him and he turned, he told him

not to say something again and he said it anyway and he shot him. Yeah, he shot him.” Kelly

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looked up from the chainsaw when he heard the gun shot and saw appellant holding a gun. He

did not see appellant shoot Johnson. After the shooting, appellant left the house and Kelly called

911.

       Appellant testified in his defense. He stated his fear of Johnson began when he was in

junior high school and Johnson hit his father. During that fight, appellant attempted to call 911,

but Johnson “kicked me so hard between my legs I couldn’t move.” Appellant fell to the ground

as Johnson attempted “to gouge my father’s eye out and he left like cuts from his nails scratching

over his eye.”

       Appellant testified Johnson threatened to hurt and kill him, telling “people that it was

going to be either me or him.” In early May 2015, Johnson threatened Kelly, who also was

afraid of Johnson. Kelly told appellant he did not feel comfortable around Johnson without his

gun. Approximately four days before the shooting, Johnson and his son “charged” appellant.

       Appellant testified that he had no intention of talking to Johnson on May 17, 2015.

Rather, he always attempted to avoid Johnson. However, on May 17, appellant arrived at the

house, entered through the side gate, and went into the backyard where he saw Kelly. Appellant

talked to Kelly for a long time, and followed Kelly inside the house. Eventually Johnson arrived,

which made appellant nervous. Appellant attempted to exit the house by the front door, but was

unable to because burglar bars across the front porch were locked. Instead he reached on to the

top shelf of a cabinet where his grandfather hid a gun and put the gun in his pocket.

       Appellant walked through the back door. The open screen door blocked his ability to exit

one side of the small porch and Kelly, who was on the edge of the porch, blocked his exit from

the other side. Johnson was at the bottom of the steps leading up to the house and “was getting

ready to come up the stairs as I was walking out the door.” Appellant asked Johnson what

Johnson told Kelly about their confrontation a few days earlier and Johnson called appellant a

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liar. They then began arguing and cursing, and appellant became “very nervous.” Johnson then

stepped on to the stairs leading to the house. Appellant testified: “he took the step up the stairs

and I told him back up. So he was on the second step and I keep telling him to stay back, get

back, just stay back.”

       Appellant told Johnson he knew that Johnson had stolen money from a family member,

which caused Johnson’s demeanor to drastically change. At that point, appellant knew he

“messed up, I said the wrong thing.” Johnson came up the steps and said he was going to hurt

appellant. Appellant told him to back up and stepped back himself as though he was going back

into the house. The second time Johnson moved toward appellant, appellant reached into his

pocket, pulled out the gun, and told Johnson to stop. Appellant testified that when he pulled out

the gun, Johnson “came on to me. . . he just moved on” so that the gun nearly touched the front

of Johnson’s chest. Appellant pressed the trigger and Johnson “went down the stairs and then he

came back up the stairs and I told him back up again because he coming back up towards me

again.” Appellant shot Johnson again. He testified he did not intend to kill Johnson.

       Appellant testified he was scared that he and Johnson “were going to fight, and I know

that he got a punch, he packs a nice punch, and I was scared that he was going to hit me.” And,

if they did fight and someone called 911, appellant would go to jail because fighting violated the

terms of his probation. He also was scared for his life.

       On cross-examination, appellant testified he did not know whether Johnson was carrying

a gun, but he had never seen Johnson with a gun. Johnson was not carrying a knife. Appellant

testified “he never had anything in his hands but his fists.” When asked: “So you shot your uncle

Jerry Johnson, an unarmed man, in the chest?” appellant replied that he did.

       Nathan Lewis, a relative of appellant’s girlfriend, testified he met with appellant and his

girlfriend on May 18, 2015. At that time, appellant told Lewis that “his uncle had pushed him

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too far, he had assaulted him verbally and that he was making some attempts to defend himself

and an altercation occurred from that event.” Appellant said Johnson verbally threatened his life

and he was afraid of being shot. Lewis believed Johnson had verbally assaulted and threatened

appellant many times in the past. Johnson previously threatened appellant’s girlfriend with a

gun. Appellant gave a bag with some of his belongings to Lewis, and Lewis put the bag in his

garage. He realized a gun was inside the bag. A detective from the Dallas Police Department

went to Lewis’s home and found a revolver with the barrel sawed off.

       The forensic pathologist who performed the autopsy on Johnson’s body testified that

Johnson sustained two gunshot wounds, which caused his death. Both entrance wounds were on

the front of Johnson’s body.

                                        LAW & ANALYSIS

       In his second issue, appellant argues the evidence is insufficient to support the conviction

because the State failed to meet its burden of persuasion to disprove he acted in self defense.

       As charged here, a person commits murder if he intentionally or knowingly causes the

death of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1). A person is justified in using

force against another when and to the degree the actor reasonably believes the force is

immediately necessary to protect the actor against the other’s use or attempted use of unlawful

force. Id. § 9.31(a). Under section 9.31, the use of force against another is not justified in

response to verbal provocation alone. Id. § 9.31(b)(1). A person is justified in using deadly

force against another (1) if he would be justified in using force against another under section

9.31 and (2) when and to the degree he reasonably believes the deadly force is immediately

necessary to protect himself against the other’s use or attempted use of unlawful deadly force.

Id. § 9.32(a). “Deadly force” means “force that is intended or known by the actor to cause, or in




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the manner of its use or intended use is capable of causing, death or serious bodily injury.” Id.

§ 9.01(3).

       The defendant has the initial burden of producing evidence to raise self-defense. Zuliani

v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 914

(Tex. Crim. App. 1991). If the defendant produces some evidence, the State has the burden of

persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594. The State is not obligated

to offer evidence refuting a claim of self-defense; rather, the State is required to prove its case

beyond a reasonable doubt. Id. The issue of self-defense is a fact issue to be determined by the

jury. Saxton, 804 S.W.2d at 913. Defensive evidence which is merely consistent with the

physical evidence at the scene of the alleged offense will not render the State’s evidence

insufficient because the credibility determination of such evidence is solely within the jury’s

province and the jury is free to accept or reject the defensive evidence. Id. at 914. When a fact

finder determines the defendant is guilty, there is an implicit finding against the defensive theory.

Zuliani, 97 S.W.3d at 594.

       When an appellant challenges the sufficiency of the evidence to support the rejection of a

self-defense claim, we review all the evidence in the light most favorable to the verdict and

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

offense beyond a reasonable doubt and also would have found against the appellant on the self-

defense issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914.

       Appellant notes the jury heard two versions of the events that occurred on May 17, 2015:

his and Kelly’s. However, he asserts, based on the physical evidence presented at trial, the only

plausible version of the events is the one he presented. In that version of events, appellant

maintains, he reasonably believed Johnson posed a threat of death or serious bodily injury to him

and his use of deadly force was justified.

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       If, as appellant urges, we credit his testimony and discredit Kelly’s, the evidence does not

support his conclusion that a rational trier of fact must have found in his favor on the self-

defense issue. The evidence is uncontested that appellant and others were scared of Johnson.

However, even if Johnson threatened appellant and others on previous occasions and even if

family members were afraid of Johnson, a rational jury could have believed the use of deadly

force was not immediately necessary on May 17. Appellant testified that he did not see any

weapon on Johnson’s person. Rather, appellant stated Johnson “never had anything in his hands

but his fists.” Appellant was scared that he and Johnson “were going to fight, and . . . he packs a

nice punch, and I was scared that he was going to hit me.” When asked: “So you shot your uncle

Jerry Johnson, an unarmed man, in the chest?” appellant replied that he did.

       Based on the evidence, a rational jury could have concluded that appellant’s fear of

Johnson coupled with Johnson walking toward appellant with nothing but his fists was not the

use or attempted use of unlawful deadly force against appellant and appellant’s belief that deadly

force was immediately necessary was not reasonable under the circumstances. Considering all

the evidence in a light most favorable to the verdict, and given the jury’s role in resolving

conflicts in the evidence, we conclude the jury could have rationally rejected appellant’s claim of

self-defense. Garcia v. State, No. 05-16-00640-CR, 2017 WL 3048478, at *6 (Tex. App.—

Dallas July 19, 2017, pet. filed) (mem. op., not designated for publication) (collecting cases).

We overrule appellant’s second issue.

       In his first issue, appellant argues he suffered ineffective assistance of counsel because

his lawyer did not object to inadmissible evidence, failed to request a limiting instruction for

each piece of extraneous offense evidence admitted, presented harmful video evidence to the

jury, did not procure an expert witnesses, and failed to request a charge on sudden passion during

the punishment phase of trial.

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       To prevail on an ineffective assistance of counsel claim, appellant must establish both

that his trial counsel performed deficiently and that the deficiency prejudiced him. State v.

Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). With respect to the first prong, the record on appeal must be sufficiently

developed to overcome the strong presumption of reasonable assistance. See Thompson v. State,

9 S.W.3d 808, 813–14 (Tex. Crim. App. 1999). The defendant bears the burden to prove by a

preponderance of the evidence that trial counsel’s performance was deficient or not reasonably

effective by showing that counsel’s performance fell below an objective standard of

reasonableness based on prevailing professional norms. Robertson v. State, 187 S.W.3d 475,

483 (Tex. Crim. App. 2006).

       “Isolated instances in the record reflecting errors of omission or commission do not

render counsel’s performance ineffective, nor can ineffective assistance of counsel be established

by isolating one portion of trial counsel’s performance for examination.”          Id.   Counsel’s

performance is judged by “the totality of the representation” and, “judicial scrutiny of counsel’s

performance must be highly deferential” with every effort made to eliminate the distorting

effects of hindsight. Id. The Supreme Court in Strickland cautioned that intrusive post-trial

inquiry into attorney performance should be avoided because that would encourage the

proliferation of ineffectiveness challenges. See Strickland, 466 U.S. at 690.

       Absent an opportunity for trial counsel to explain his actions, we will not conclude his

representation was deficient “unless the 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). Texas procedure makes it “‘virtually impossible’” for appellate counsel to present an

adequate ineffective assistance claim on direct review. See Trevino v. Thaler, 569 U.S. 413

(2013). The inherent nature of most ineffective assistance claims means that the trial court record

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“will often fail to contain the information necessary to substantiate the claim.” Id. (internal

quotation omitted).   As a result, the better procedural mechanism for pursuing a claim of

ineffective assistance is almost always through writ of habeas corpus proceedings. Freeman v.

State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003).

       Here, the record does not include any testimony from appellant’s trial counsel. Further,

when we review the totality of counsel’s representation, we cannot conclude he performed

deficiently. Even though counsel’s performance may not have been perfect, the right to effective

assistance does not mean errorless or perfect counsel. See Robinson, 16 S.W.3d at 483.

       For example, appellant complains that his trial counsel was ineffective for allowing the

admission of at least nine inadmissible offenses without objecting or requesting a limiting

instruction. The record shows the State began its cross-examination of appellant during the

guilt/innocence phase by asking about appellant’s prior convictions. Defense counsel interrupted

the questioning and requested the parties approach the bench. A discussion, which was not

reported, was held at the bench and then the State resumed questioning appellant about his prior

convictions. The record does not show whether defense counsel objected to the admission of

prior offenses, requested a limiting instruction, or moved for a mistrial during this bench

conference. We will not assume he failed to do so.

       Shortly after the bench conference, defense counsel again asked that the parties approach

the bench because “[w]e object to impeachment . . . misdemeanors are not proper impeachment.”

The jury was removed from the courtroom and the trial court conducted a hearing during which

the prosecutor, defense counsel, and the judge discussed impeachment evidence. The record

shows defense counsel objected to the State’s impeachment evidence and clearly explained the

objections to the trial court. The record does not show counsel’s representation was ineffective.




                                               –9–
       Appellant also complains about his counsel’s decision to play a video from Nathan

Lewis’s interview with police because it contained inadmissible character evidence. The record

shows defense counsel moved to admit the video and the “video played” to the jury. The record

does not show whether the entire video was played or only the portion required to refresh

Lewis’s recollection was played. Further, although appellant argues on appeal that statements in

the video were damaging to his credibility with the jury, when analyzing appellant’s sufficiency

argument, above, we concluded that even if the jury credited appellant’s version of events and

discredited Kelly’s that a rational jury would not have been required to conclude appellant acted

in self-defense. Thus, even if we were to assume that appellant’s counsel erred by playing the

entire video, appellant has not met his burden to show he was harmed.

       Appellant alleges his counsel’s performance was deficient because he failed to procure an

expert witness to testify at trial. Although appellant argues his version of events could have been

proven to be true through an expert witness’s testimony concerning the forensic evidence,

appellant adduced no evidence showing that such an expert was available or could have offered

beneficial testimony. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983); Jones v.

State, 500 S.W.3d 106, 116 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Moreover, appellant

argues the key to determining whether his killing of Johnson was in self defense is which version

of events, his or Kelly’s, is true and supported by the record. However, as previously discussed,

even if the jury credited all of appellant’s evidence and discredited Kelly’s, the evidence does not

compel the conclusion that he acted in self defense. Thus, even if we were to assume appellant’s

counsel erred by failing to procure an expert witness, he has not met his burden to show harm.

       Finally, appellant argues his counsel was ineffective for failing to request a sudden

passion instruction during the punishment phase. If we assume appellant met the first prong of

the Strickland standard, appellant fails to show he was harmed. The jury charge authorized the

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jury to assess appellant’s punishment at confinement for life or for a term of not more than 99 or

less than 25 years. The jury assessed punishment at eighty years’ incarceration. On appeal,

appellant has failed to show that there is a reasonable probability that he would have received a

lesser sentence but for his counsel’s alleged deficiencies.

        On this record we cannot conclude appellant showed by a preponderance of the evidence

that his counsel’s performance was deficient. The record does not overcome the strong

presumption of reasonable assistance and we decline to conclude defense counsel’s performance

was so outrageous that no competent attorney would have engaged in it. We overrule appellant’s

first issue.

                                   MODIFICATION OF JUDGMENT

        The trial court’s judgment mistakenly shows there were no enhancement paragraphs or

jury findings on enhancement paragraphs. Because the necessary information is available in the

record, on our own motion we modify the trial court’s judgment to show appellant pleaded true

to two enhancement paragraphs and the jury found two enhancement paragraphs to be true. See

TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991,

pet. ref’d).

                                           CONCLUSION

        We modify the trial court’s judgment and affirm as modified.



                                                    /Craig Stoddart/
                                                    CRAIG STODDART
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
160546F.U05




                                               –11–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

COREY DEMON FRANKLIN, Appellant                    On Appeal from the 283rd Judicial District
                                                   Court, Dallas County, Texas
No. 05-16-00546-CR        V.                       Trial Court Cause No. F-1575618-T.
                                                   Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee                       Justices Fillmore and Schenck participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to show appellant Corey Demon Franklin pleaded true to the first and second enhancement
paragraphs and the jury found the first and second enhancement paragraphs to be true.

       As REFORMED, the judgment is AFFIRMED.


Judgment entered this 19th day of October, 2017.




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