                                  NO. 12-15-00209-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

KULWANT GILL,                                     §      APPEAL FROM THE 258TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      TRINITY COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Kulwant Gill appeals his conviction for aggravated assault with a deadly weapon. In two
issues, Appellant challenges the sufficiency of the evidence to support his conviction and
contends that he received ineffective assistance of counsel at trial. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with aggravated assault with a deadly weapon. He
pleaded “not guilty,” and the matter proceeded to a jury trial.
       The evidence at trial showed that Appellant shot Joel Perez in the leg. According to
Perez, Appellant grabbed his neck and then shot him only after Perez attempted to defend
himself. Appellant, however, maintained that he acted in self-defense because he was afraid of
Perez and believed Perez wanted to steal his money.
       Ultimately, the jury found Appellant “guilty.” The jury sentenced Appellant to
imprisonment for ten years, but recommended that the sentence be suspended and Appellant
placed on community supervision.        The trial court signed an order placing Appellant on
community supervision for ten years. This appeal followed.
                                      SUFFICIENCY OF THE EVIDENCE
          In his first issue, Appellant contends the evidence is insufficient to support a finding
beyond a reasonable doubt that he was not acting in self-defense.1 According to Appellant, the
evidence supports his theory of self-defense because: (1) a red substance found in his vehicle
was never tested, (2) officers never investigated whether he was being robbed, (3) Perez
provoked Appellant, (4) Perez did not want to press charges, (5) Madera changed her story to
corroborate Perez’s account of the shooting, and (6) Appellant voluntarily went to the police
after the shooting. Appellant maintains that his conduct was consistent with that of an innocent
person.
Standard of Review and Governing Law
          The due process guarantee of the Fourteenth Amendment requires that a conviction be
supported by legally sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S.
Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim.
App. 2010) (Cochran, J., concurring). The issue of self-defense is a fact issue to be determined
by the jury, and a jury’s verdict of guilt is an implicit finding that it rejected a defendant’s self-
defense theory. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). The jury’s
implicit rejection of a defendant’s self-defense theory must be supported by legally sufficient
evidence. Id. at 914. In reviewing the sufficiency of the evidence to support the jury’s rejection
of self-defense, we examine all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential elements of the
offense and could have found against the defendant on the self-defense issue beyond a
reasonable doubt. Id.
          A person commits the offense of aggravated assault if he intentionally, knowingly, or
recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the
commission of the assault. TEX. PENAL CODE ANN. §§ 22.01(a)(1) (West Supp. 2016), 22.02
(a)(2) (West 2011). “Bodily injury” is defined as “physical pain, illness, or any impairment of
physical condition.” Id. § 1.07(a)(8) (West Supp. 2016). A “deadly weapon” includes a firearm.
Id. § 1.07(a)(17).


          1
          Appellant raises both legal and factual sufficiency. However, the court of criminal appeals has held that
the “Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply.” See
Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010); see also Miranda v. State, 350 S.W.3d 141, 147
(Tex. App.—San Antonio 2011, no pet.).


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       A person acts in self-defense in using force against another when and to the degree he
reasonably believes the force is necessary to protect him from the other’s use or attempted use of
unlawful force. Id. § 9.31(a) (West 2011). A “reasonable belief” is that which “would be held
by an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42) (West
Supp. 2015). The use of force is not justified if the actor is responding to force that he himself
provoked, unless the actor abandons the encounter and the other nevertheless continues or
attempts to use unlawful force against the actor. Id. § 9.31(b)(4) (West 2011). The Penal Code
justification for self-defense focuses on the existence of some necessity, the circumstances under
which the force was used, the degree of force used, and the type of conduct against which the
force was used. Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet.). The
amount of force used must be in proportion to the force encountered. Id.
       When a defendant raises self-defense, he bears the burden of producing some evidence to
support his defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the
defendant produces some evidence supporting his defense, the state then bears the burden of
persuasion to “disprove the raised defense.” Id. The burden of persuasion does not require the
production of evidence; it requires only that the state prove its case beyond a reasonable doubt.
Id. Moreover, “[d]efensive evidence which is merely consistent with the physical evidence at
the scene of the alleged offense will not render the [s]tate’s evidence insufficient since 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.” Saxton, 804 S.W.2d at 914. When the evidence
is conflicting, we presume that the fact finder resolved the conflicts in favor of the prosecution
and therefore defer to that determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007).
Analysis
       Appellant contends that the evidence is insufficient to support the jury’s implicit rejection
of his self-defense theory.
       In this case, the jury heard two versions of events. According to Appellant, he confronted
Nikki Madera on the night of the shooting because she had stolen from one of his employees. He
testified that Madera has also stolen money from him on other occasions. Madera contacted the
police. Officer Randy Wheeler of the Trinity Police Department responded to the scene and




                                                 3
instructed Appellant to leave the premises. Appellant, who owns a convenience store, testified
that he left to go close his store.
        Appellant testified that he returned to the scene after receiving a call from Madera. He
explained that he had his gun with him because he was in possession of money from his store.
When Appellant arrived at the scene, Perez approached his vehicle and opened the driver’s side
door. Appellant testified that Perez tried to hit him and insert his foot in the door. After
unsuccessfully trying to push Perez out of the vehicle, Appellant shot Perez twice in the leg.
        Appellant explained that he shot Perez because he was afraid of Perez and believed Perez
was trying to take his money. Appellant testified that, immediately after shooting Perez, he
drove to the police station to report the shooting and attempted robbery. He denied being
involved in any prior altercations with Perez. He stated that his version of events has not changed
since he spoke with the police, which was confirmed by the video of his interview with police.
        Contrary to Appellant’s account, Perez and Madera testified that Appellant was the
aggressor. Madera claimed that Appellant returned to the scene after their earlier argument. At
that time, Perez was present. According to Madera, Perez and Appellant began arguing and
fighting. Appellant ran to his car, grabbed his gun, and shot Perez. Perez testified that he
approached Appellant only after he heard Madera and Appellant arguing. According to Perez,
when Appellant tried to grab his neck, Perez kicked at Appellant in self-defense. He testified
that Appellant ran to his vehicle, grabbed his gun, and shot Perez four times in the leg. Perez
denied approaching Appellant’s vehicle or placing his leg inside Appellant’s vehicle. Madera
and Perez both testified that Appellant and Perez were involved in prior altercations.
        Although he did not witness the shooting, Officer Wheeler believed that Appellant
retrieved the gun from his store and returned to the scene to shoot Perez. Officer Wheeler
testified that Perez suffered two gunshot wounds to his left leg and identified Appellant as the
shooter. He further testified that a red substance was found inside Appellant’s vehicle, but the
substance was never tested to determine whether it was blood. He testified that, had Perez been
shot inside Appellant’s vehicle, he would expect to see more blood in the vehicle.
        On appeal, Appellant does not challenge the sufficiency of the evidence to support the
elements of the charged offense. Rather, he contends that he only discharged his gun in self-
defense because he feared for his safety and wanted to protect both himself and his money.




                                                 4
Accordingly, we must determine whether the jury could have found against Appellant on his
self-defense claim. See Saxton, 804 S.W.2d at 914.
       The jury heard Appellant’s testimony that he acted in self-defense, out of fear of Perez,
and had no prior altercations with Perez. The jury heard contrary testimony from Madera and
Perez. Specifically, they testified that there were prior altercations, and that Appellant retrieved
his gun from his vehicle and shot Perez. Office Wheeler expressed his opinion that Appellant
returned to the scene to shoot Perez after retrieving his gun. Additionally, the record does not
indicate that Perez was armed at the time of the offense. As sole judge of the weight and
credibility of the evidence, it was within the province of the jury to determine which evidence to
credit and which to reject. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In
doing so, the jury was entitled to reject Appellant’s version of events and credit the testimony of
Perez, Madera, and Officer Wheeler. See id.; see also Clayton, 235 S.W.3d at 778; Saxton, 804
S.W.2d at 914.
       Based on that testimony, the jury could have determined that Appellant had a previous
history with Perez, brought a deadly weapon to the scene, approached Perez with the gun, was
not responding to similar force, and, therefore, was the aggressor on the night of the shooting.
Accordingly, the jury could reasonably conclude that Appellant shot Perez when such force was
not immediately necessary to protect himself from Perez. See TEX. PENAL CODE ANN. § 9.31(a).
Viewing the evidence in the light most favorable to the verdict, we conclude that a rational jury
could have found against Appellant on his self-defense claim beyond a reasonable doubt. See
Saxton, 804 S.W.2d at 914. Because the evidence is sufficient to support the jury’s implicit
rejection of Appellant’s self-defense claim, we overrule Appellant’s first issue.


                             INEFFECTIVE ASSISTANCE OF COUNSEL
       In his second issue, Appellant contends he received ineffective assistance when his trial
counsel failed to introduce a witness’s prior statement and stipulated to certain facts.
Governing Law
       In reviewing an ineffective assistance of counsel claim, we apply the United States
Supreme Court’s two-pronged test established in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim.
App. 1986). To prevail on an ineffective assistance of counsel claim, an appellant must show that



                                                  5
(1) trial counsel’s representation was deficient, and (2) the deficient performance prejudiced the
defense to the extent that there is a reasonable probability that the result of the proceeding would
have been different but for trial counsel’s deficient performance. Strickland, 466 U.S. at 687,
104 S. Ct. at 2064. An appellant must prove both prongs of Strickland by a preponderance of the
evidence. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2002). Failure to make the
required showing of either deficient performance or sufficient prejudice defeats an appellant’s
ineffectiveness claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
       To establish deficient performance, an appellant must show that trial counsel’s
representation fell below an objective standard of reasonableness under prevailing professional
norms. See Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064–65. “This requires showing that
[trial] counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Id., 466 U.S. at 687, 104 S. Ct. at 2064. To
establish prejudice, an appellant must show that there is a reasonable probability that, but for
counsel’s deficient performance, the result of the proceeding would have been different. Id., 466
U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Id. When it is easier for a reviewing court to dispose of an ineffective
assistance of counsel claim on the ground of lack of sufficient prejudice without determining
whether counsel’s performance was deficient, the court should follow that course. Id., 466 U.S.
at 697, 104 S. Ct. 2069.
       Review of trial counsel’s representation is highly deferential. See id., 466 U.S. at 689,
104 S. Ct. at 2065. In our review, we indulge a strong presumption that trial counsel’s actions
fell within a wide range of reasonable and professional assistance. Id. It is the appellant’s burden
to overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Moreover, “[a]ny allegation of
ineffectiveness must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness.” Thompson, 9 S.W.3d at 813 (citation omitted). When,
as here, no record specifically focusing on trial counsel’s conduct was developed at a hearing on
a motion for new trial, it is extremely difficult to show that counsel’s performance was deficient.
See Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002); Thompson, 9 S.W.3d at 814.
Absent an opportunity for trial counsel to explain the conduct in question, we will not find
deficient performance unless the challenged conduct was “so outrageous that no competent



                                                 6
attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005) (citation omitted).
Evaluation of Trial Counsel’s Representation
        Appellant alleges that his attorney’s performance at trial fell below the professional norm
because he stipulated that Madera changed her version of the events instead of having the video
of Madera’s prior statement to police admitted into evidence. According to Appellant, Madera
did not observe the shooting. Initially, Madera told Officer Wheeler that she did not witness the
shooting. She explained that she was afraid and did not want to get involved. Madera testified
that she subsequently decided to tell the truth. She further stated that Appellant asked her to tell
the police that Perez tried to rob him, which she declined to do.
        During trial counsel’s cross examination of Officer Wheeler, he offered the recorded
interview of Madera into evidence because he wished to play the portion in which Madera told
Officer Wheeler that she did not see the shooting occur. However, the State offered to stipulate
that Madera changed her story after the recorded interview, and trial counsel agreed to so
stipulate.   Trial counsel was also able to question Officer Wheeler and Madera about her
previous statement. As explained above, Madera testified that she lied in her previous statement
to police but subsequently decided to tell the truth.
        The record is silent regarding trial counsel’s reasons for abandoning his offer of evidence
and accepting the State’s offer to stipulate. Appellant’s motion for new trial did not include
claims regarding ineffective assistance of counsel. In addition, the record from the hearing on
the motion for new trial does not show that Appellant raised a claim of ineffective assistance.
Thus, we presume counsel made all significant decisions in the exercise of professional
judgment. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Because Appellant
has failed to rebut the presumption that trial counsel’s actions were based upon a reasonable
decision, he has not satisfied the first prong of Strickland. See Tong, 25 S.W.3d at 712; see also
Thompson, 9 S.W.3d at 813; Perez v. State, 56 S.W.3d 727, 731-32 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d). Appellant’s second issue is overruled.


                                            DISPOSITION
        Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.



                                                  7
                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered January 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          JANUARY 31, 2017


                                         NO. 12-15-00209-CR


                                        KULWANT GILL,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 258th District Court
                           of Trinity County, Texas (Tr.Ct.No. CR9947)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
