James Howard Fitch v. The State of Texas--Appeal from 176th District Court of Harris County

Affirmed and Memorandum Opinion filed August 30, 2007

Affirmed and Memorandum Opinion filed August 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00408-CR

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JAMES HOWARD FITCH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 930,419

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

Appellant, James Howard Fitch, raises five issues in this appeal from his conviction for aggravated assault. In appellant=s first four issues, he contends the evidence is legally and factually insufficient to support the jury=s finding that he possessed the culpable mental state and the jury=s rejection of his self-defense claim. In appellant=s fifth issue, he contends he received ineffective assistance of counsel. Because our disposition is based on clearly settled law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.[1]

I. Background

On September 21, 2002, Tabitha Kokoska and Chrissy Sweeney went to Dick=s bar in Houston. During the evening, appellant approached them several times and asked for a ride home. He appeared intoxicated, and they thought he was Aannoying.@ Tabitha, the driver, refused his request because she did not know him. The women exited the bar when it closed at 2:00 a.m. Clifton Whitley and Gary Sayers were also leaving the bar and started a conversation with the women. In the parking lot, appellant again approached the women and repeatedly asked for a ride. Clifton and Gary told appellant the women would not give him a ride. During this confrontation, the women slipped away to Tabitha=s car and left the premises. It is undisputed that, a few minutes later, appellant struck Clifton and Gary each once in the face/head area with a large, heavy, glass beer mug. However, the trial testimony differed materially regarding the events triggering appellant=s actions.

Although Tabitha and Chrissy did not see appellant strike Clifton and Gary, both women characterized appellant as the aggressor during the initial part of the confrontation. They testified Clifton and Gary calmly asked appellant to leave the women alone because they did not want to give him a ride. Appellant became more aggressive and angry with each request. The men did not touch or threaten appellant.

According to the testimony of Clifton and Gary, they quietly and politely told appellant the women did not want to give him a ride and suggested he leave. Appellant repeatedly yelled that it was Anone of [their] business.@ At one point, appellant lunged toward Clifton, who said he did not want to fight. In contrast, Clifton did not flinch or lunge at appellant or threaten him. Eventually, appellant turned to walk away, so the men also turned to leave. Then, each man was suddenly struck and fell to the ground.

Vincente Martinez, a doorman at the bar, testified he could not hear the confrontation at issue, but he saw appellant strike both men with the mug. Although Martinez=s attention may have been briefly diverted from the confrontation, he did not see Clifton and Gary lunge at, touch, or threaten appellant.

Appellant=s testimony conflicted with the accounts presented by the State=s witnesses. Appellant agreed he approached the women in the parking lot and asked for a ride. According to appellant, Clifton insisted the women would not give appellant a ride, and Clifton was agitated until the women convinced him to calm down. Appellant explained to Clifton that he Adidn=t do anything@ to the women. Subsequently, Clifton became sarcastic, taunted appellant, and threatened to Achoke the life out of [his] little skinny scrawny ass@ and Akick [his] ass.@ Appellant responded that he was not afraid of Clifton, although he was actually afraid of both men together. Clifton lunged or flinched at appellant. Appellant thought Clifton planned to grab or hit him, so appellant Aautomatically just reacted@ by striking Clifton with the mug. Gary stepped toward appellant saying, Ayou shouldn=t have done that, now I=m going to have to . . .@ In mid-sentence, appellant struck Gary with the mug. Appellant thought he would be Ajumped@ by both men and did not have an opportunity to retreat. He ran away after striking the men.

Clifton testified that the blow Apretty much shattered@ all nerves and bone on the left side of his face. Medical records confirm he sustained fractures of the lateral left orbital rim and zygomatic arch Awith displacement.@ A plastic surgeon inserted titanium plates around Clifton=s eye, which will remain in place the rest of his life to maintain the bone structure. He will also require another surgery to replace some Afat@ around the eye. He still bears a scar from a laceration to the eye area. He experienced blurred vision for several months after the incident, but sustained no lasting vision damage. Gary also required medical attention.

Appellant was charged with aggravated assault of Clifton Whitley. A jury found him guilty and sentenced him to five years= confinement.

II. Sufficiency of the Evidence

We will address appellant=s first four issues together. In his first and third issues, he contends the evidence is legally and factually insufficient to support the jury=s finding that he committed aggravated assault. In his second and fourth issues, he contends the evidence is legally and factually insufficient to support the jury=s implicit rejection of his self-defense claim.

A. Standard of Review

In considering a legal-sufficiency challenge, we review all evidence in the light most favorable to the finding to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). In examining a factual-sufficiency challenge, we view all evidence in a neutral light and set aside the verdict Aonly if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). Before we may reverse for factual insufficiency, we must first conclude with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).

The jury was instructed to determine whether appellant committed aggravated assault by (1) intentionally or knowingly causing bodily injury to Clifton by using or exhibiting a deadly weapon, namely a glass mug; or (2) intentionally or knowingly causing serious bodily injury to Clifton by striking him with a glass mug. See Tex. Pen. Code Ann. '' 22.01(a)(1), 22.02(a)(1),(2) (Vernon Supp. 2006). We may uphold the verdict if the evidence is sufficient to support a finding that appellant committed aggravated assault under either alternative method. See Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991). Nevertheless, as explained below, we conclude the evidence is sufficient to support a finding that appellant committed the offense through both methods.

The jury was also instructed regarding self-defense pursuant to Texas Penal Code section 9.32. A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other under Section 9.31;[2]

(2) if a reasonable person in the actor=s situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other=s use or attempted use of unlawful deadly force; . . .

Tex. Pen. Code Ann. ' 9.32 (Vernon 2003). The defendant bears the burden of producing some evidence to support his self defense claim. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). However, once self defense is raised, the State bears the burden of persuasion to disprove the defense. Id. The burden of persuasion does not require production of evidence; rather, the State is required only to prove its case beyond a reasonable doubt. Id. Self defense is a fact issue to be determined by the jury, which is free to accept or reject it. Saxton v. State, 804 S.W.2d 910, 913B14 (Tex. Crim. App. 1991). When the jury finds the defendant guilty, there is an implicit finding against the defensive theory. See Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

B. Analysis

Appellant does not challenge the findings that he used a deadly weapon and Clifton sustained Abodily injury@ or Aserious bodily injury.@[3] Rather, the gist of appellant=s complaint is that he lacked the requisite culpable mental state and acted in self-defense. Assault by causing bodily injury is a result-oriented offense. Ford v. State, 38 S.W.3d 836, 844 (Tex. App.CHouston [14th Dist.] 2001, pet. ref=d). Therefore, the State must prove the defendant caused the result with the requisite culpable mental state. See id. AA person acts intentionally, or with intent, with respect to . . . a result of his conduct when it is his conscious objective or desire to . . . cause the result.@ Tex. Pen. Code Ann. ' 6.03(a) (Vernon 2003). AA person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.@ Tex. Pen. Code Ann. ' 6.03(b) (Vernon 2003). A culpable mental state may be inferred from circumstantial evidence such as acts, words, and conduct of the accused, surrounding circumstances, the method of committing a crime, and the nature of wounds inflicted on the victim. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004); Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); Stadt v. State, 120 S.W.3d 428, 438 (Tex. App.CHouston [14th Dist.] 2003), aff=d, 182 S.W.3d 360 (Tex. Crim. App. 2005).

Appellant contends he did not intentionally or knowingly injure Clifton because he Ajust reacted@ when Clifton made threatening statements and gestures towards him. However, as sole judge of the credibility of witnesses, the jury was free to believe the testimony from Tabitha, Chrissy, Clifton, Gary, and Martinez, reflecting that Clifton did not make any threatening statements or gestures, to which appellant Areacted.@[4] See Jones v. State, 944 S.W.2d 642, 647B48 (Tex. Crim. App. 1996). Similarly, the jury was free to disregard appellant=s self-defense claim.

Instead, the jury reasonably could have inferred appellant intentionally or knowingly caused, at least, bodily injury to Clifton because he was angry that Clifton and Gary requested he leave the women alone. Further, the jury could have inferred appellant intentionally or knowingly caused serious bodily injury because he struck Clifton in the face/head area with a large, heavy, glass mug, using such force that Clifton was knocked onto one knee. The jury also could have inferred appellant knew the mug was sufficiently heavy to cause serious bodily injury because he purchased it at the bar two months before the incident and brought it during subsequent visits to obtain beer refills. Finally, the jury could have found intent or knowledge with respect to serious bodily injury from the extent of Clifton=s wounds.

In sum, the jury could have found the essential elements of the offense beyond a reasonable doubt. In addition, the verdict is not contrary to the great weight and preponderance of the evidence. Accordingly, we overrule appellant=s first four issues.

III. Ineffective Assistance of Counsel

In his fifth issue, appellant contends he received ineffective assistance of counsel. To prevail on an ineffective-assistance claim, an appellant must prove (1) counsel=s representation fell below the objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel=s deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In considering an ineffective-assistance claim, we indulge a strong presumption that counsel=s actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy. See Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814. In most cases, direct appeal is an inadequate vehicle for raising such a claim because the record is generally undeveloped and cannot adequately reflect the motives behind trial counsel=s actions. See Rylander v. State, 101 S.W.3d 107, 110B11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813B14. When, as in this case, the record is silent regarding trial counsel=s strategy, we will not find deficient performance unless the challenged conduct was Aso outrageous that no competent attorney would have engaged in it.@ Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Jagaroo v. State, 180 S.W.3d 793, 797 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).

Appellant contends his counsel performed deficiently in several respects:

A. Purportedly Deficient Voir Dire

First, appellant contends counsel asked confusing and global questions and failed to address pertinent subjects during voir dire. In particular, appellant asserts counsel did not specifically ascertain whether panel members could consider the full range of punishment or probation in an aggravated assault case. Appellant also asserts counsel did not determine whether any panel members had been crime victims or were connected to law enforcement.

However, at the outset of voir dire, the trial court extensively addressed various pertinent subjects. The trial court inquired about panel members= ability to consider the full range of punishment and probation. Subsequently, the State also addressed these matters. Further, the trial court asked whether panel members, based on personal feelings or other factors, would automatically believe a police officer=s testimony. This question elicited a response from a panel member regarding family and friends in law enforcement. In addition, the trial court asked panel members to inform the court if their ability to be fair might be affected by Asomething . . . that=s happened to you or someone else that you know.@ The trial court gave an example of a previous juror who could not be fair to a defendant charged with delivery of cocaine because a relative died of a cocaine overdose. Therefore, the trial court effectively addressed the matters that appellant=s counsel did not discuss.

Accordingly, counsel may have exercised sound trial strategy by deciding not to repeat subjects already addressed by the trial court and the State. See Goodspeed, 187 S.W.3d at 391B93 (recognizing counsel=s failure to ask any voir dire questions, including inquiries concerning consideration of full range of punishment or probation, could have been legitimate trial strategy based on counsel=s comments to panel that State had fully addressed his concerns). With respect to the subjects counsel did address, some comments were fairly broad, and the panel seemed confused by certain questions.[5] However, considering the extent of pertinent topics addressed in the entire voir dire, counsel=s failure to be as specific and articulate as possible did not render his performance Aso outrageous that no competent attorney would have engaged in it.@ See id. at 392; Jagaroo, 180 S.W.3d at 797.[6]

B. Failure to Make an Opening Statement

Next, appellant complains his counsel did not make an opening statement. However, counsel=s decision to refrain from making an opening statement could have been a valid tactical decision because an opening statement provides the State with a preview of defense strategy. See Taylor v. State, 947 S.W.2d 698, 704 (Tex. App.CFort Worth 1997, pet. ref=d); Standerford v. State, 928 S.W.2d 688, 697 (Tex. App.CFort Worth 1996, no pet.). Appellant does not direct us to any portion of the record containing an explanation for counsel=s decision. Therefore, appellant has not rebutted the strong presumption that counsel=s decision was based on sound trial strategy. Counsel=s failure to make an opening statement was not conduct Aso outrageous that no competent attorney would have engaged in it.@ See Goodspeed, 187 S.W.3d at 392; Jagaroo, 180 S.W.3d at 797.

C. Alleged Failure to Adequately Prepare Appellant to Testify

Appellant further contends his counsel failed to adequately prepare him to testify. However, this allegation is not a matter that appears in the record. Therefore, we reject appellant=s contention regarding this alleged deficiency.

D. Introduction of Allegedly Harmful Testimony

Appellant also asserts his counsel elicited testimony from Clifton Whitley that bolstered the State=s case and harmed appellant=s defense. For instance, on cross-examination of Clifton, appellant=s counsel established that Clifton did not flinch at, or Amake a move@ toward, appellant during the incident. In another instance, appellant testified Clifton had taunted him by bragging that he owned better cars than appellant, his family owned a large parcel of land, and he could Akick [appellant=s] ass@ without consequence because he knew a Abouncer@ at the bar. Subsequently, appellant=s counsel recalled Clifton. In response to counsel=s questions, Clifton denied making these taunts or that the alleged statements were true. Appellant contends this testimony made him look like a Aridiculous liar.@

However, even if counsel were deficient by eliciting the above-cited testimony, appellant has not shown a reasonable probability that, but for the deficiency, the result of the trial would have been different. As we have explained, the overall testimony of Clifton and four other witnesses reflected appellant was the aggressor and Clifton did not threaten him. Further, the jury heard ample evidence from which to evaluate the credibility of witnesses, including appellant. Accordingly, the record contained significant evidence supporting the jury=s verdict, even without the above-cited testimony.[7]

E. Failure to File Written Motion for Continuance

Appellant also contends his counsel was ineffective because he failed to file a written motion for continuance when a witness was unavailable. Counsel called an Officer Clopton to testify, but the bailiff could not locate him. After another witness testified, counsel informed the trial court that Officer Clopton had been subpoenaed. The trial court responded that counsel needed to rest if he had no more witnesses. Counsel then rested without moving for a continuance.

Appellant cites no portion of the record indicating the substance of Officer Clopton=s potential testimony. Thus, we do not know whether the testimony would have been beneficial and material to appellant=s defense. Consequently, counsel may have strategized that obtaining the officer=s testimony was not worth delaying the trial. Without a record demonstrating the substance of his potential testimony, we cannot conclude counsel=s failure to file a written motion for continuance was such outrageous conduct Athat no competent attorney would have engaged in it.@ See Goodspeed, 187 S.W.3d at 392; Jagaroo, 180 S.W.3d at 797; see also King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (rejecting ineffective-assistance claim because counsel=s failure to present any defense witnesses was irrelevant absent showing they were available and defendant would benefit from their testimony).

F. Failure to Request Charge on Deadly Conduct

In addition, appellant complains that his counsel failed to request a jury charge on the alleged lesser-included offense of deadly conduct. A person commits misdemeanor deadly conduct Aif he recklessly engages in conduct that places another in imminent danger of serious bodily injury.@ See Tex. Pen. Code Ann. ' 22.05(a), (e) (Vernon 2003). Appellant=s counsel requested a charge on Areckless aggravated assault@ based on appellant=s testimony that he Ajust reacted@ when he struck Clifton, but the trial court denied the request. See Tex. Pen. Code Ann. '' 22.01(a)(1), 22.02(a) (providing aggravated assault by causing bodily injury may be committed with Arecklessly@ culpable mental state). Appellant suggests this testimony also supported a charge on deadly conduct. According to appellant, counsel=s request demonstrates he was unfamiliar with the law on deadly conduct. We disagree.

The record is silent regarding the reason for counsel=s action. Once the trial court refused to submit Areckless aggravated assault,@ counsel may have decided to pursue an Aall or nothing@ strategyCrequiring a conviction for aggravated assault, as charged, or an acquittal based on self-defense. See Wood v. State, 4 S.W.3d 85, 87B88 (Tex. AppCFort Worth 1996, pet. ref=d) (recognizing that counsel=s employing Aall or nothing@ tactic by failing to request lesser-included offense may be reasonable strategy). Therefore, even if appellant were entitled to a charge on deadly conduct, absent an explanation for counsel=s actions, we cannot foreclose the possibility his decision was reasonable trial strategy. Again, his action was not so outrageous Athat no competent attorney would have engaged in it.@ See Goodspeed, 187 S.W.3d at 392; Jagaroo, 180 S.W.3d at 797.

G. Failure to Request Instruction on Necessity

Finally, appellant asserts his counsel did not request an instruction on the defense of necessity. ANecessity@ is a justification defense to a criminal charge if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

Tex. Pen. Code Ann. ' 9.22 (Vernon 2003). However, appellant was not entitled to an instruction on necessity because the conduct at issue was use of deadly force and the jury was charged concerning self-defense pursuant to Penal Code section 9.32. See Tex. Pen. Code Ann. ' 9.32 (explaining law on use of deadly force in self-defense).

When deadly force in self-defense is the conduct that is allegedly Aimmediately necessary@ under section 9.22, the defense of necessity does not apply. See Butler v. State, 663 S.W.2d 492, 496 (Tex. App.CDallas 1983), aff=d, 736 S.W.2d 668 (Tex. Crim. App. 1987) (prescribing this rule in a murder case); Banks v. State, No. 14 00 00650 CR, 2002 WL 27265, at *5 (Tex. App.CHouston [14th Dist.] Jan. 10, 2002, pet. ref=d) (not designated for publication) (applying Butler rationale in aggravated assault case). Specifically, the third element of section 9.22 cannot be met because a legislative purpose to exclude this justification appears in the Aretreat@ requirement of section 9.32. See Tex. Pen. Code Ann. '' 9.22(3), 9.32(a)(2); Butler, 663 S.W.2d at 496 (recognizing any other result would circumvent the Aretreat@ requirement and thwart the legislative purpose to impose a higher standard where use of deadly force is sought to be justified); Banks, 2002 WL 27265, at *5. Therefore, when an instruction on use of deadly force in self-defense is submitted, a defendant is not entitled to an instruction on necessity. See Butler, 663 S.W.2d at 496; Banks, 2002 WL 27265, at *4B5. Accordingly, appellant=s counsel was not ineffective by failing to request an instruction on necessity. See Young v. State, 991 S.W.2d 835, 839 (Tex. Crim. App. 1999) (holding counsel was not ineffective for failing to request instruction on necessity where defendant was not entitled to it); cf. Vasquez v. State, 830 S.W.2d 948, 950B51 (Tex. Crim. App. 1992) (finding counsel ineffective for not seeking necessity instruction, which was the only defense available to the defendant and presented at trial).

In sum, having rejected all of appellant=s arguments supporting his ineffective-assistance-of-counsel claim, we overrule his fifth issue.

The judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed August 30, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.

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

[1] We initially dismissed appellant=s direct appeal for lack of jurisdiction because the notice of appeal was untimely filed; however, the Court of Criminal Appeals subsequently allowed an out-of-time appeal. See Ex Parte Fitch, No. AP 75360, 2006 WL 708524 (Tex. Crim. App. March 22, 2006) (not designated for publication).

[2] Under section 9.31, with certain exceptions, 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 the other=s use or attempted use of unlawful force. See Tex. Pen. Code Ann. ' 9.31 (Vernon 2003).

[3] In short, under one method of the offense, the jury was required to find bodily injury and use of a deadly weaponCthe glass mug. The other method required serious bodily injury with no Adeadly weapon@component. A police officer testified the mug was a deadly weapon based on the manner of use during this incident. The evidence reflects Clifton sustained not only Abodily injury,@but also Aserious bodily injury,@ based on the surgical insertion of permanent titanium plates required to maintain his facial bone structure following the blow from the glass mug. See Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon Supp. 2006) (defining ASerious bodily injury@ to include Abodily injury . . . that causes . . . protracted loss or impairment of the function of any bodily member or organ.@).

[4] Appellant argues his version was credible because he had no prior felony convictions, and Clifton and Gary drank more alcohol than appellant on the night of the incident. However, appellant cites no place in the record where the jury heard that he lacked a felony record. Regardless, lack of a felony record would not militate that the jury believe his testimony. Further, the jury was free to consider the amount of alcohol consumed by the witnesses when evaluating the weight to give their testimony.

[5] Counsel=s voir dire questions concerned several areas including burden of proof, the reasonable-doubt standard, the concept that appellant was not required to present evidence, the Aintentionally or knowingly@ element of the offense, whether panel members would necessarily decide the mug was a deadly weapon or use of the mug in self-defense was unreasonable, and panel members= general opinions about the criminal justice system.

[6] Appellant cites San Roman v. State, 681 S.W.2d 872, 874B76 (Tex. App.CEl Paso 1984, pet. ref=d), in which the court held the defendant received ineffective assistance during his trial for aggravated rape. However, in that case, counsel=s voir dire was deficient in numerous respects. See id. at 874B75. He not only failed to inquire about pertinent subjects, including panel members=ability to consider the full range of punishment or probation and whether panel members had been victims of crime or had connections to law enforcement, but he also antagonized panel members. See id. Further, the court found counsel was ineffective based on the totality of the representation which consisted of numerous deficiencies. See id. at 874B76.

[7] Without supporting argument, appellant also simply notes his counsel elicited testimony that Clifton still bears a scar on his scalp and left eye area. However, appellant has not shown this testimony was necessarily harmful because it was undisputed Clifton has a scar as a result of being struck by appellant.