Charles Matthews Davis, Jr. v. The State of Texas--Appeal from 56th District Court of Galveston County

Affirmed and Memorandum Opinion filed July 26, 2005

Affirmed and Memorandum Opinion filed July 26, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00007-CR

____________

CHARLIE MATTHEW DAVIS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

______________________________________________________________

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 02CR2111

______________________________________________________________

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

Appellant, Charlie Matthew Davis, Jr., challenges his conviction for murder, alleging: (1) the evidence is factually insufficient to support the jury=s rejection of appellant=s self-defense claim, and (2) his trial counsel rendered ineffective assistance. We affirm.

I. Factual and Procedural Background

During the early morning hours of June 28, 2002, appellant and Michael Wiley were arguing in the parking lot of H.T.=s Lounge in Galveston County, Texas. The argument escalated, and appellant shot Wiley six times. Wiley died later that morning at the hospital. Appellant was charged by indictment with murder. Appellant pleaded not guilty.

At trial, appellant claimed he was acting in self-defense when he shot Wiley and gave the following account. Wiley approached appellant outside the bar and grabbed a necklace and charm from around his neck. Because appellant was scared, he started walking toward his car. Wiley followed him and threatened to kill him. Appellant got into his car, but Wiley kept coming toward him. Wiley then reached in his back pocket. Appellant, believing Wiley was reaching for a weapon, pulled his gun from behind the driver=s seat and shot Wiley. Appellant felt his life was being threatened and thought he was going to die if he did not shoot Wiley. Appellant was afraid of Wiley because Wiley had a history of mental illness and had threatened his life before.

Edward Senegal, a friend of appellant=s who was also at H.T.=s Lounge that evening, offered a different version of events. He testified that he saw appellant and Wiley arguing in the parking lot. Senegal was unable to understand all of what appellant and Wiley were saying, but he did testify that he heard Wiley say, AIf you want some of this come on and get it.@ Senegal never saw Wiley reach for a weapon and never heard Wiley threaten to kill appellant. Senegal stated that Wiley raised his fists, but never swung at appellant. Wiley and appellant walked towards appellant=s car. Appellant got in, and Wiley closed the car door for him. As Wiley was walking back towards H.T.=s Lounge, appellant calmly got out of the car and fired six shots at Wiley.

A jury found appellant guilty and assessed punishment at fifty years=confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Issues and Analysis

 A. Is the evidence factually insufficient to support the jury=s rejection of appellant=s self-defense claim?

In his first issue, appellant alleges that the evidence is factually insufficient to support the jury=s rejection of his self-defense claim. We disagree.

A person commits murder if the person intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen. Code Ann. '19.02(b)(1) & (2) (Vernon 2003). A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against another=s use or attempted use of unlawful force. Tex. Pen. Code Ann. ' 9.31(a) (Vernon 2003). Use of deadly force against another is justified (1) if the actor would be justified in using force against another under section 9.31; (2) if a reasonable person in the actor=s situation would not have retreated; and (3) when and to the degree the actor reasonably believes the deadly force is immediately necessary (a) to protect himself against the other=s use or attempted use of unlawful deadly force, or (b) to prevent another=s imminent commission of, among other things, murder, robbery, or aggravated robbery. Tex. Pen. Code Ann. ' 9.32(a) (Vernon 2003).

A defendant bears the burden of producing some evidence in support of a claim of self-defense. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Once the defendant produces such evidence, the burden falls upon the State to disprove the raised defense. Id. at 913B14. The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. at 913. There is an implicit finding against the defensive theory when a jury finds the defendant guilty. Id. at 914.

When evaluating a challenge to the factual sufficiency of the evidence supporting the fact finder=s rejection of a claim of self-defense, we review all of the evidence in a neutral light. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). We determine whether (1) the evidence, when considered by itself, is too weak to support the rejection beyond a reasonable doubt, or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not be met. Roy v. State, 161 S.W.2d 30, 37 (Tex. App.CHouston [14th Dist.] 2004, no pet.). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Zuniga v. State, 144 S.W.3d 477, 481B82 (Tex. Crim. App. 2004). Our evaluation should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

Appellant argues the evidence is factually insufficient to support the jury=s rejection of his claim of self-defense because (1) Wiley=s aggressive conduct involved more than mere words; (2) appellant was not able to retreat; and (3) deadly force was necessary (a) to protect himself against Wiley=s use or attempted use of unlawful deadly force, or (b) to prevent Wiley from murdering and robbing appellant. As previously detailed, the State and appellant presented two different versions of what transpired on the day in question. By its verdict, the jury believed appellant was not justified in using deadly force against Wiley and implicitly rejected appellant=s claim of self-defense. The State=s evidence, when considered by itself, is not too weak to support the implicit finding, and the contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met. After reviewing all the evidence in a neutral light, we conclude that the evidence is factually sufficient to support the jury=s rejection of appellant=s self-defense claim. Therefore, we overrule appellant=s first issue.

 B. Was appellant=s trial counsel ineffective because she failed to request a jury instruction on defense of property?

In his second issue, appellant alleges his trial counsel was ineffective because she did not request a defense-of-property jury instruction. We disagree.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2004). We evaluate appellant=s ineffective-assistance-of-counsel claim under the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687B92, 104 S. Ct. 2052, 2064B67, 80 L. Ed. 2d 674 (1984). To satisfy the Strickland test, appellant must prove that (1) in light of all the circumstances at the time of trial, counsel=s performance fell below an objective standard of reasonableness under prevailing professional norms, and (2) there is a reasonable certainty that, but for counsel=s alleged error, the result of the trial would have been different. Id. at 694, 104 S. Ct. at 2068. Appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998).

In assessing appellant=s claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what she did. See id.

Appellant testified that Wiley ripped the charm off of appellant=s necklace. Therefore, appellant argues, a defense-of-property jury instruction was warranted in this case. At the motion-for-new-trial hearing, appellant=s trial counsel stated that her failure to ask for a defense-of-property instruction was not a strategic decision, but an inadvertent oversight. Appellant argues that because his counsel=s failure to request such an instruction was an omission, we cannot presume it was reasonably professional and motivated by sound trial strategy. Appellant asserts that trial counsel=s failure to request this instruction and her failure to elicit specific testimony indicating that appellant was defending his property when he shot Wiley constitutes conduct that falls below an objective standard of reasonableness under prevailing professional norms.

Assuming without deciding that appellant has shown trial counsel=s conduct met the first prong of the Strickland test, appellant has not satisfied the second prong because there is not a reasonable certainty that, but for counsel=s alleged error, the result of the trial would have been different. A person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to recover his tangible, moveable property from another if (1) the actor used the force immediately or in fresh pursuit after the dispossession, and (2) (a) the actor reasonably believed the other had no claim of right when he dispossessed the actor, or (b) the other accomplished the dispossession by using force, threat, or fraud against the person. Tex. Pen. Code Ann. ' 9.41(b) (Vernon 2003). Use of deadly force against another to protect tangible, moveable property is justified (1) if the actor would be justified in using force against another under Texas Penal Code section 9.41; (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary (a) to prevent the other=s imminent commission of robbery, theft during the nighttime, or criminal mischief during the nighttime, or (b) to prevent the other=s immediate flight after committing robbery or theft during the nighttime from escaping with the property; and (3) the actor reasonably believes that (a) his property cannot be recovered by any other means, or (b) the use of force other than deadly force to protect or recover the property would expose the actor to a substantial risk of death or serious bodily injury. Tex. Pen. Code Ann. ' 9.42 (Vernon 2003).

Even if an instruction of defense of property had been included in the jury charge, there is not a reasonable certainty that the result of the trial would have been different. In his statement to police, appellant made no mention of Wiley grabbing the chain and charm from around appellant=s neck. At trial, appellant altered his version of events and testified that Wiley grabbed the chain and charm from around his neck. Senegal, however, did not testify that he saw Wiley grab the necklace or that he saw appellant recover it from Wiley after the shooting. In addition, the charm was not found in Wiley=s possession and the chain was later recovered from appellant by his private investigator.

The jury implicitly rejected appellant=s self-defense claim when it found him guilty of murder. See Saxton, 804 S.W.2d at 914. Given that the jury is the sole judge of the credibility of witnesses and the weight to be given their testimony, we conclude that it is highly unlikely that the jury would have rejected appellant=s self-defense claim but would have found that appellant was justified in using deadly force to protect his property. Accordingly, we overrule appellant=s second issue.

Having overruled both of appellant=s issues on appeal, we affirm the judgment of the trial court.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed July 26, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

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