Favela, Raul Gerardo Jr. v. The State of Texas--Appeal from 405TH District Court of Galveston County

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Affirmed and Memorandum Opinion filed March 31, 2005

 Affirmed and Memorandum Opinion filed March 31, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-01299-CR

NO. 14-03-01300-CR

NO. 14-03-01302-CR

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RAUL GERARDO FAVELA, JR., Appellant

V.

 THE STATE OF TEXAS, Appellee

_______________________________________________________

On Appeal from the 405th District Court

Galveston County, Texas

Trial Court Cause Nos. 02CR2247; 02CR2248 & 02CR2249

_______________________________________________________

M E M O R A N D U M O P I N I O N

Raul Gerardo Favela appeals two convictions for manslaughter and a conviction for aggravated assault[1] on the ground that he was denied effective assistance of counsel. We affirm.


Appellant=s sole issue on appeal argues he was denied effective assistance of counsel because his trial counsel failed to recognize, research, present, and request a jury instruction on appellant=s only available defense of necessity.

A defendant=s right to effective assistance of counsel is denied when a defense attorney=s performance falls below an objective standard of reasonableness and there is a reasonable probability that, but for the error, the result of the proceeding would have been different.[2] However, to prevail on such a claim, a defendant must overcome a presumption that the challenged action might be considered sound trial strategy under the circumstances. Bell v. Cone, 535 U.S. 685, 698 (2002). Moreover, judicial scrutiny of counsel=s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. Id.

In order for a defendant to be entitled to a jury instruction on a defensive issue, the issue must be raised by the evidence. Rogers v. State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003). A defendant=s conduct is justified under the necessity defense if, among other things, the actor reasonably believes the conduct was immediately necessary to avoid imminent harm; and the desirability and urgency of avoiding the harm clearly outweighs, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct. Tex. Pen. Code Ann. ' 9.22(1), (2) (Vernon 2003).


In this case, appellant=s convictions were for causing two deaths and serious injuries to a third person by driving a vehicle at an excessive rate of speed, running a red light, and thereby colliding with another vehicle. Appellant testified during the punishment phase that he drove that way out of fear for his life because another person in his vehicle, Zuniga, saw a police car coming toward them, told appellant to get out of there quickly, had a gun, and was acting crazy, as if he was going to use the gun. The only explanation for counsel not pursuing a coercion defense, such as necessity, was stated during his opening statement in the guilt phase and his closing argument on punishment, respectively:

[Y]ou will not see the evidence that Zuniga put the gun behind my client=s back of his head and said, ADrive.@ That=s not the case. You won=t see that.

* * * *

Now he knows he should have stopped the car, but he was scared and there=s good reasons for him to be scared though it doesn=t rise to the level of involuntary force, a force causing involuntary action on him. That=s why we didn=t raise it as a defense. But at least it=s something you can consider now.

To the extent that counsel believed the evidence failed to establish a reasonable belief that appellant=s conduct was immediately necessary to avoid imminent harm, or that there were tactical reasons that appellant should not take the stand during the guilt phase, as would have been necessary to assert the defense, appellant cites no evidence on appeal to suggest that this was not plausible trial strategy.

In addition, appellant cites no legal authority or evidence to suggest that the desirability and urgency of avoiding the perceived harm to himself clearly outweighed, according to ordinary standards of reasonableness, the harm sought to be prevented by the laws proscribing driving at excessive speed and running red lights. Because appellant=s sole issue thus fails to establish ineffective assistance of counsel, it is overruled, and the judgment of the trial court is affirmed.

/s/ Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed March 31, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).


[1] A jury found appellant guilty of all three offenses and sentenced him to 20 years confinement in each case.

[2] Yarborough v. Gentry, 540 U.S. 1,5 (2003); Wiggins v. Smith, 539 U.S. 510, 534 (2003); Scheanette v. State, 144 S.W.3d 503, 509 (Tex. Crim. App. 2004), cert. denied, 125 S. Ct. 872 (2005).

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