Paul Austin Walton v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-93-236-CR

PAUL AUSTIN WALTON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 22,054-272

O P I N I O N

A jury found Paul Walton guilty of attempted murder and assessed punishment of sixteen years' imprisonment and a $5,000 fine. See Tex. Penal Code Ann. 15.01 (Vernon Supp. 1994), 19.02 (Vernon 1989). After his attorney filed an Anders brief, we abated the appeal for the trial court to afford Walton the opportunity to review the record of his trial and file a brief on his own behalf. // Walton has now filed a document entitled "Brief on Appeal," containing nine points he "hopes . . . will clarify some of the facts of [his] trial." Applying the briefing rules liberally, as we must, we conclude that Walton is raising three challenges to his conviction. See Tex. R. App. P. 74(p). First, he raises the possibility of a conflict of interest on the part of his attorney. Second, he challenges the sufficiency of the evidence supporting the jury's conclusion that he was guilty of attempted murder. Finally, he alleges that the evidence is insufficient to allow the jury to find he was not acting in self-defense when he shot his victim. Additionally, we will consider the "potential" points raised by his attorney in the Anders brief involving sufficiency of the evidence and ineffective assistance of counsel. Finally, as directed by Anders, we will make an independent review of the record to determine if we agree with the attorney's conclusion that any appeal of Walton's conviction would be frivolous. Finding ourselves in agreement with that conclusion, we will affirm the judgment.

Walton had a stormy relationship with his wife. She eventually moved out of the house they shared and began a relationship with Clifford Martin. Finding Martin with his wife in a tavern, Walton shot Martin three times. He also severely wounded Troy Hawkins, a bystander, shooting him in the head and causing irreversible brain damage.

According to Walton, who testified at his trial, he began firing his pistol after he was attacked by Martin. He claimed he believed that Martin was reaching for a gun. However, he was incorrect. Martin stated that he struck Walton with his fist as soon as Walton entered the room.

First, Walton claims that his attorney represented Martin in a separate trial. However, there is nothing in the record which supports this assertion. See Reyes v. State, 647 S.W.2d 255, 256 (Tex. Crim. App. 1983). Additionally, Walton does not argue any potential injury from an unrelated representation. See Tex. R. App. P. 81(b)(2). After examining the record where Martin testified against Walton, we can detect no deferential treatment of Martin by Walton's attorney. Walton's first argument is rejected.

In resolving the sufficiency-of-the-evidence issue, we view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt and also could have found against Walton on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Self-defense is an issue of fact to be determined by the jury. Id. at 913. Thus, the jury is free to accept or reject the defensive theory of the evidence. Id. at 914. By finding Walton guilty, the jury implicitly rejected his self-defense theory. See id. The jury was entitled to reject the defensive evidence and credit the State's witnesses' version of the events. See Lackey v. State, 819 S.W.2d 111, 116 (Tex. Crim. App. 1989). "[T]he evidence is not rendered insufficient simply because [Walton] presented a different version of the events." See Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).

Walton's testimony alone is sufficient to support a finding that he shot Hawkins, the bystander. Thus, the only issue to be resolved is whether the evidence was sufficient for the jury to reject Walton's self-defense claim. We conclude that the jury could have reasonably decided that the use of deadly force in response to Martin's blow with his hand was not a reasonable response by Walton. See Tex. Penal Code Ann. 9.31, 9.32 (Vernon 1974 & Supp. 1994). Thus, the evidence is sufficient to support the jury's verdict. Walton's second two arguments are rejected. Additionally, his attorney's first "potential" point of error is overruled.

Walton's attorney also raises the possibility that he received ineffective assistance of counsel at both the guilt-innocence and the punishment phases of his trial. See Craig v. State, 825 S.W.2d 128, 129-30 (Tex. Crim. App. 1992). However, his attorney does not point to any potential errors on the part of the trial attorney. Again, we have reviewed the record and have found no errors by the trial attorney that could support an arguable allegation of ineffectiveness at either stage of the trial. Potential points two and three are overruled.

Finally, we have reviewed the record generally to determine, on our own, if there are unaddressed points which could arguably support an appeal. Having found none, we conclude that any appeal of this cause would be frivolous.

Walton's conviction is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 27, 1994

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