
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-99-00816-CR


Adam Biegel, Appellant

v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 0990020, HONORABLE BOB PERKINS, JUDGE PRESIDING






	Appellant Adam Biegel was convicted of capital murder, a murder committed in the
course of committing robbery.  See Tex. Penal Code Ann. § 19.03(a)(2) (West 1994).  The State did
not seek the death penalty; therefore, appellant's punishment is life imprisonment.  See id.
§ 12.31(b).  On appeal, appellant asserts in six points of error that he did not receive effective
assistance of trial counsel.  We will affirm the judgment.

	We summarize the evidence.  Codefendant Tammy Jo Fox, a topless cabaret dancer,
met the victim Lonnie Greenwood at the club where she worked about eighteen months before he
was murdered.  After they first met, Fox and the victim on several occasions went to various places
where she performed private dances and they engaged in sexual acts. About one month before the
murder, Fox began living with and had a sexual relationship with appellant, who was a former
employee of the victim.  Fox and appellant lived with Fox's mother and stepfather in an apartment
complex where Fox's stepfather was a security guard.
	Appellant and Fox knew that the victim customarily carried large sums of cash. 
Appellant and Fox, in concert with Fox's mother and stepfather, conspired to rob the victim.  To
accomplish the robbery, Fox lured the victim to a vacant apartment for a sexual tryst.  Fox's
stepfather furnished a key to a vacant apartment and furnished appellant a hammer and a knife with
which to attack the victim.  Although appellant planned to use a nylon stocking to cover his face and
hide his identity, Fox did not remember seeing appellant use the stocking for that purpose. 
According to their plan, appellant concealed himself in the bathroom of the apartment.  Appellant
planned to strike the victim on the head with the hammer, and if necessary, appellant was going to
"knife" the victim to obtain his wallet.  The lights were not on in the apartment.  When Fox led the
victim past appellant's hiding place and signaled appellant, she continued down the hallway into a
bedroom.  Fox claims that she did not see appellant attack the victim.  However, Fox, who testified
after being granted use immunity, testified that she heard the victim say, "Do you just want my
wallet?" and heard appellant respond "yes."  Fox also heard the victim say, "You don't have to cut
me, why are you cutting me?"
	After his attack on the victim, appellant ran out onto the balcony where he threw the
knife away, stuffed the victim's wallet into the waist band of his trousers, and jumped into the alley
behind the apartment.  Fox followed appellant back to her stepfather's apartment where Fox's
mother let them in through a bedroom window.  Fox and her mother discovered that there was no
money in the victim's wallet.  Appellant threw the wallet through a window.  Appellant told Fox he
had stabbed the victim more than twenty times.
	The wounded victim was able to get to his car in the parking lot and place a 911 call
with his cell phone.  Emergency personnel and police were soon on the scene.  The victim told the
officers he could only identify his assailant as a white man.  He was transported to an emergency
room; he had a bruise and cut on his head and three stab wounds.  The fatal stab wound caused injury
to several of the victim's organs and excessive bleeding.  In an attempt to stop the bleeding and save
his life, physicians surgically removed his spleen and one kidney.  Efforts to save the victim's life
were unsuccessful, and he died several days after he was stabbed.
	The police found a knife with blood on it in the alley behind the apartments.  The
victim's wallet was not found, but his hunting and fishing license and other contents of his wallet
were found behind the apartments.  DNA evidence showed the victim's blood was on clothes that
had been worn by appellant and Fox and on a rope bracelet worn by appellant.
	In his first point of error, appellant insists that his trial counsel was ineffective. 
Appellant contends that counsel was ineffective because he failed to request a jury instruction on the
lesser included offense of felony murder.  To establish his claim that trial counsel's performance was
deficient for failing to request a jury instruction, appellant must show that he was entitled to the
instruction on the lesser included offense of felony murder.  Cardenas v. State, 30 S.W.3d 384, 392
(Tex. Crim. App. 2000); Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999).
	To show ineffective assistance of counsel, appellant must show that: (1) counsel's
performance was deficient, in that counsel made such serious errors that he was not functioning
effectively as counsel; and (2) the deficient performance prejudiced the defense to such a degree that
appellant was deprived of a fair trial.  See Strickland v. Washington, 466 U.S. 668, 687 (1984);
Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Shaw v. State, 874 S.W.2d 115, 118
(Tex. App.--Austin 1994, pet. ref'd); O'Hara v. State, 837 S.W.2d 139, 143 (Tex. App.--Austin
1992, pet. ref'd).
	Whether a lesser offense instruction must be given is determined by a two-part test: 
"first, the lesser included offense must be included within the proof necessary to establish the offense
charged, and, second, some evidence must exist in the record that would permit a jury rationally to
find that if the defendant is guilty, he is guilty only of the lesser offense."  Rousseau v. State, 855
S.W.2d 666, 673 (Tex. Crim. App. 1993); accord Cardenas, 30 S.W.3d at 392; Wolfe v. State, 917
S.W.2d 270, 278 (Tex. Crim. App. 1996).
	Here, the first part of the test is satisfied because the offense of felony murder is
included within the proof necessary to establish capital murder.  See Tex. Code Crim. Proc. Ann. art
37.09 (West 1981); Fuentes, 991 S.W.2d at 272; Rousseau, 855 S.W.2d at 673.  We must determine
whether the evidence in the record would allow the jury rationally to find that, if guilty, appellant
was guilty only of the lesser offense of felony murder.  The distinguishing element between felony
murder and capital murder is intent.  See Fuentes, 991 S.W.2d at 272; Adanandus v. State, 866
S.W.2d 210, 230 (Tex. Crim. App. 1993).  Capital murder requires the intent to kill while felony
murder requires only the intent to commit the underlying felony.  Adanandus, 866 S.W.2d at 230;
Rousseau, 855 S.W.2d at 673; Creel v. State, 754 S.W.2d 205, 211 (Tex. Crim. App. 1988).
	We must decide from the evidence in the record whether the evidence would support
a rational jury finding that appellant had only the intent to rob the victim and not the intent to kill
him.  "The possibility that initially at some point during the commission of the robbery the offender
did not have the intent to cause death does not amount to evidence that the offender did not intend 
to cause the victims death when the murder was committed."  Rousseau, 855 S.W.2d at 674; accord
Fuentes, 991 S.W.2d at 273.
	There is no direct evidence of appellant's intent to kill at the time he stabbed the
victim.  However, intent to kill may be inferred from circumstantial evidence.  A knife is not a
deadly weapon per se.  Brown v. State, 651 S.W.2d 782, 783 n.2 (Tex. Crim. App. 1983); Victor v.
State, 874 S.W.2d 748, 751 (Tex. App.--Houston [1st Dist.] 1994, pet. ref'd).  Therefore,
appellant's intent to kill cannot be presumed.  See Butler v. State, 981 S.W.2d 849, 853 (Tex.
App.--Houston [1st Dist.] 1998, pet. ref'd).  If the weapon used is not a deadly weapon per se, the
intent to kill may be shown by the manner of its use along with the nature and extent of the wounds
inflicted on the victim.  Boazman v. State, 501 S.W.2d 894, 896 (Tex. Crim. App. 1973); accord
Hawkins v. State, 605 S.W.2d 586, 588 (Tex. Crim. App. 1980); Abels v. State, 489 S.W.2d 910, 913
(Tex. Crim. App. 1973); Lewis v. State, 486 S.W.2d 104, 106 (Tex. Crim. App. 1972); Martinez v.
State, 699 S.W.2d 910, 913 (Tex. App.--Amarillo 1985, no pet.).
	The knife used was admitted in evidence for the jury's inspection and consideration. 
The seriousness and nature of the fatal stab wound was explained by expert testimony.  The wound
inflicted on the victim caused extensive internal bleeding, required the surgical removal of his spleen
and a kidney, and ultimately caused the victim's death.  In addition, there is other circumstantial
evidence to support a rational finding that appellant stabbed the victim with the intent to kill him. 
There is evidence of appellant's animus and hatred of the victim.  The appellant, who had previously
been employed by the victim, had been "fired" by the victim.  The victim had an ongoing sexual
relationship with Fox that was longer than appellant's recent sexual relationship with her.  Fox, in
her testimony, affirmed that appellant's animosity toward the victim was obvious to her.  Appellant
bragged to Fox that he had stabbed the victim more than twenty times.  Furthermore, evidence that
the victim was willing to give up his wallet without being "cut" shows that appellant's stabbing of
the victim was unnecessary, if robbery was appellant's only intent.
	Because the evidence would not allow a rational finding that, if guilty, appellant was
guilty only of the lesser offense of felony murder, a jury instruction on the lesser offense was not
warranted.  Appellant has failed to demonstrate that trial counsel was ineffective because of his
failure to request a felony murder instruction.  Appellant's first point of error is overruled.
	In his second point of error, appellant asserts that: "The decision by trial counsel to
request and endorse an instruction from the court on the offense of aggravated robbery in lieu of an
instruction on the offense of felony murder constituted ineffective assistance of counsel and denied 
appellant a fair trial."  We have held that appellant was not entitled to a jury instruction on felony
murder.  On appeal, appellant argues and we agree that appellant was not entitled to the lesser
included offense instruction on aggravated robbery.  However, the giving of the jury instruction on
aggravated robbery was potentially beneficial to appellant; it gave the jury an opportunity to find
appellant guilty of a lesser offense.  The giving of this instruction was not calculated to be harmful
for appellant's defense; it was at most harmless error.  Allowing without objection, or even
encouraging the trial court to give this instruction, does not demonstrate ineffective assistance of
counsel.  Appellant's second point of error is overruled.
	In his third point of error, appellant complains that "[t]he failure of trial counsel to
object to the instruction from the court on causation constituted ineffective assistance of counsel and
denied appellant a fair trial."  The trial court, with acquiescence of trial counsel, instructed the jury: 
"A person is criminally responsible if the result would not have occurred but for his conduct,
operating either alone or concurrently with another cause, unless the concurrent cause was clearly
sufficient to produce the result and the conduct of the defendant clearly insufficient."  There was no
application of the abstract charge to any facts in the case.  Appellant's principle complaint is that the
giving of this abstract charge confused the jury.
	On appeal, the State concedes that this definitional jury instruction on causation was
unnecessarily given but was harmless citing Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App.
1994).  In Hughes, over objection and even though the evidence did not raise the issue of concurrent
causation, an abstract jury instruction on concurrent causation was given.  Id.  The court held that
"when an abstract charge is erroneously given on a theory of law, without specific application, to
facts of the case, the overruling of an objection to the abstract charge is not error."  Id.; Lewis v.
State, 815 S.W.2d 560, 562 (Tex. Crim. App. 1991).  Here, the failure of trial counsel to object to
the unnecessary abstract charge on concurrent causation does not demonstrate ineffectiveness of
counsel.  Appellant's third point of error is overruled.
	Appellant has combined his argument of the fourth and fifth points of error. 
Appellant contends that his trial counsel's decision to share with a hostile codefendant the expert
assistance of the same forensic pathologist and counsel's failure to obtain independent expert
assistance to evaluate, prepare, and present defensive evidence on the issue of intent to cause death
constituted ineffective assistance of counsel and denied appellant a fair trial.  Appellant makes a
lengthy, convoluted argument that is largely unsupported by the record and is speculative and
hypothetical in nature.
	We quote illustrative portions of appellant's argument.  

Appellant's trial counsel . . . . never personally asked Dr. Frost to pursue any
particular avenues of investigation such as whether it was possible to develop
evidence that someone other than appellant inflicted the stab wounds on [the victim]
or whether the nature and location of the stab wounds could provide any information
about the identity of the person who stabbed [the victim]. . . .  Appellant's trial
counsel never asked Dr. Frost to conduct any investigation or to give any advice
concerning the issue of whether the nature and severity of the stab wounds gave any
indication that the wounds were or were not inflicted with the intent to cause death
. . . with respect to the prejudice suffered by appellant as a result of his counsel's
disclosure of confidential communications with a defense expert it is difficult to
pinpoint any specific way in which the error contributed to the jury's verdict in
appellant's case because the prejudice is largely structural and elusive.


	Trial counsel obtained the assistance of an independent expert, Dr. Randall E. Frost,
a forensic pathologist.  At the motion for new trial hearing, appellant's appellate counsel offered in
evidence the pathologist's written report.  That report stated that the victim's cause of death was a
stab wound to the abdomen.  This coincided with the autopsy report and the trial evidence offered
by the State.  The evidence is overwhelming that appellant stabbed the victim.  The record shows
that the stab wound was clearly sufficient to cause the victim's death, despite speculation that
medical care or the lack of medical care was a concurrent cause of the victim's death.  Although trial
counsel and Fox's attorney both received the report of the pathologist, the record fails to show that
any privileged information was shared.  Appellant's speculation as to the possible use of privileged
information is mere speculation unsupported by the record.
	A reviewing court must "indulge a strong presumption that counsel's conduct falls
within a wide range of reasonable representation."  McFarland v. State, 928 S.W.2d 482, 500 (Tex.
Crim. App. 1996).  Appellant has failed to overcome the strong presumption that trial counsel was
acting effectively at all times.  See Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998);
Gravis v. State, 982 S.W.2d 933, 937 (Tex. App.--Austin 1998, pet. ref'd).  Appellant's fourth and
fifth points of error are overruled.
	In his sixth point of error, appellant urges that "the various errors and omissions of
trial counsel cumulatively constituted ineffective assistance of counsel and denied appellant a fair
trial."  We have overruled appellant's various points of error in which he asserts that trial counsel
was ineffective.  Appellant has failed to show that there are errors and omissions that cumulatively
demonstrate he was denied effective assistance of trial counsel or a fair trial.  Appellant's sixth point
of error is overruled.
	The judgment is affirmed.


					__________________________________________
					Carl E. F. Dally, Justice
Before Justices Kidd, B. A. Smith and Dally*
Affirmed
Filed:   August 30, 2001
Do Not Publish





*  Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment.  See  
   Tex. Gov't Code Ann. § 74.003(b) (West 1998).
