Ivory Dwaine Dawson v. The State of Texas--Appeal from 351st District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00175-CR

Ivory Dwaine Dawson,

Appellant

v.

The State of Texas,

Appellee

From the 351st District Court

Harris County, Texas

Trial Court No. 940,722

MEMORANDUM Opinion

A jury convicted Ivory Dwaine Dawson of murder, and the court assessed his punishment at twenty-five years imprisonment. Dawson contends in two issues that he received ineffective assistance of counsel. We will affirm.

Dawson contends in his first issue that he received ineffective assistance of counsel during the guilt-innocence phase because counsel (1) failed to request a self-defense instruction regarding multiple assailants and (2) opened the door to the admission of extraneous-offense evidence that Dawson was a drug dealer then failed to object when the State elicited further testimony on this topic.

We begin with a strong presumption that counsel provided reasonably professional assistance, and an appellant bears the burden of overcoming this presumption. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Generally, the appellate record is insufficient to satisfy this burden. See Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). [I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel. Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)).

Here, the trial court appointed new counsel to represent Dawson for his motion for new trial and this appeal. Counsel did not raise the issue of ineffective assistance in the motion for new trial and did not call Dawson s trial counsel as a witness at the hearing on that motion.

However, when no reasonable trial strategy could justify the conduct at issue, counsel s performance may be found unreasonable as a matter of law regardless of whether the record reflects the subjective reasons for trial counsel s actions. Andrews, 159 S.W.3d at 102. The failure to request a defensive instruction in the jury charge is one type of deficient performance which may be found unreasonable as a matter of law. See Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992).

To be entitled to a self-defense instruction regarding the use of deadly force, the defendant must have been threatened with deadly force or must have reasonably believed he was about to be threatened with deadly force.[1] See Tex. Pen. Code Ann. 9.32(a)(3)(A) (Vernon 2003); Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).

Dawson s conviction arises from an altercation between Dawson, Michael Charles, and Michael s brother Roddrick Charles. According to Dawson, he thought Michael had stolen some drugs from him. Dawson armed himself with a handgun and went to confront Michael. Michael pushed Dawson against a wall and started hitting him. Dawson then saw Roddrick approaching.

Dawson tried to go into the apartment they were outside of, but Michael pulled him back. Dawson broke loose from Michael and headed for the parking lot, trying to leave the premises. Roddrick came running up behind Dawson, and Dawson shot him because he feared Roddrick was about to shoot him.

Dawson s trial counsel obtained a jury instruction on self-defense by use of deadly force with regard to his stated fear that Roddrick was about to shoot him. Dawson contends that his trial counsel should have sought a self-defense instruction with regard to both Roddrick and Michael. See Frank v. State, 688 S.W.2d 863, 868 (Tex. Crim. App. 1985).

However, the record contains no evidence that Michael threatened Dawson with deadly force or that Dawson believed Michael was about to attack him with deadly force. See Starks v. State, 127 S.W.3d 127, 132-33 (Tex. App . Houston [1st Dist.] 2003, no pet.). Accordingly, Dawson was not entitled to a jury instruction on self-defense by deadly force against both Michael and Roddrick.

Therefore, because the record does not reflect the bases for counsel s actions and because the evidence does not support an instruction on self-defense by deadly force against multiple assailants, Dawson has failed to sustain his burden of proving that his trial counsel s performance was deficient for failing to request such an instruction. See Andrews, 159 S.W.3d at 101.

Dawsonalso contends that counsel was ineffective during the guilt-innocence phase because counsel opened the door to the admission of extraneous-offense evidence that Dawson was a drug dealer during counsel s cross-examination of Michael then failed to object when the State questioned Michael further on this topic during redirect.

On cross-examination, Dawson s counsel raised the issue that Michael s and Dawson s altercation stemmed from an incident on the previous night involving drugs. On redirect, the prosecutor asked Michael what had happened the previous night. Michael testified without objection that he went to Dawson s to buy some cocaine and that he had been buying drugs from Dawson for about four months. When the prosecutor asked Michael when he had last bought drugs from Dawson before the night in question, Dawson s counsel objected to the relevance of that line of questioning.

As with the failure to request a self-defense instruction involving multiple assailants, counsel was not afforded an opportunity to explain his conduct. If counsel s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel s decisions and deny relief on an ineffective assistance claim on direct appeal. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002).

The record is not completely silent on counsel s strategy however. Dawson s trial counsel told jurors in opening statements that Michael stole drugs from Dawson and this case involved the use and sale of illegal drugs. Dawson testified he sold drugs to Michael over 20 times, he had been convicted for selling drugs and, the dispute with Michael involved allegedly stolen drugs. Counsel emphasized Michael s drug use in closing argument in an effort to discredit him.

It appears that counsel chose to be up front with the jury about the drug issues. We can only speculate as to the wisdom of this choice. However, [t]hat a trial strategy does not work does not mean that counsel was ineffective. Johnson v. State, No. 01-03-00319-CR, 2004 WL 1472064 at *5 (Tex. App. Hous. [1st Dist.] July 1, 2004, pet. ref d).

Accordingly, we overrule Dawson s first issue.

Dawson contends in his second issue that he received ineffective assistance of counsel during the punishment phase because counsel failed to ask the court for a finding that he committed the murder under the influence of sudden passion.

Again, we have no record to inform us of counsel s reasons for not seeking a finding on sudden passion. The jury rejected Dawson s self-defense claim. Thus, counsel may well have concluded that the trial court would likewise reject any claim that Dawson acted under the influence of sudden passion. See Chavez v. State, 6 S.W.3d 56, 64-65 (Tex. App. San Antonio 1999, pet. ref d). We will defer to counsel s judgment on this issue.

Accordingly, we overrule Dawson s second issue.

We affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 24, 2005

Do not publish

[CRPM]

[1] A person is also justified in using deadly force against another to prevent the other s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Tex. Pen. Code Ann. 9.32(a)(3)(B) (Vernon 2003). However, Dawson does not contend that this provision applies.