JOSEPH PATTERSON v. THE STATE OF TEXAS--Appeal from 130th District Court of Matagorda County

NUMBER 13-04-215-CR

 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

JOSEPH PATTERSON, Appellant,

 

v.

 

THE STATE OF TEXAS, Appellee.

On appeal from the 130th District Court of Matagorda County, Texas.

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Ya ez and Castillo
Memorandum Opinion by Chief Justice Valdez

Joseph Patterson was convicted by a jury of aggravated assault. Tex. Pen. Code Ann. 22.02 (Vernon 2003). He was fined five-thousand dollars and sentenced to ten years in prison. Id. 12.32. Patterson's sole issue on appeal is that he was denied effective assistance of counsel because his trial attorney failed to request a self-defense instruction in the court's charge to the jury. We affirm the trial court's judgment.

I. BACKGROUND

A. Factual Background

The facts in the instant case center around a parking lot fight and who started the fight. It is undisputed that on June 8, 2003, around 2:00 a.m., an altercation took place between Patterson and four women in the parking lot of the Bay City Club. By Patterson's version of the events, he was at the Bay City Club to drop off a friend, who was retrieving a car that had been left there. The altercation began when Patterson approached a vehicle that the four women had just parked and asked them to move their car because it was blocking his exit. A woman from the vehicle emerged, exchanged unpleasantries with Patterson, and hit him in the face. When Patterson pushed the woman back, a fight ensued and quickly escalated, as several club patrons joined the fight. Patterson got hit from behind and knocked to the ground. He felt mobbed because several people were punching him; one individual hit him with a belt and another individual threw a bottle at him. During the fight, Patterson feared for his life, and although he did not remember whether he had a knife or whether he cut someone, he admitted he could have used a knife if he had one.

A second version of the fight's initiation implicates Patterson. According to this version, the four women refused to move their car after Patterson used vulgarities in making his request. (1) As the women walked from their car to the club, Patterson physically taunted them by slapping the eyeglasses off one woman's face and punching another woman "like she was a man." A fight began between Patterson and the four women. At some point during the fight, Patterson pulled out a knife and started swinging. Charlotte Woodberry, one of the women, suffered a cut to her lower back that caused her to faint and required seventeen staples. After Woodberry was cut, several men from the club physically intervened to protect the women. Mikael Taylor, one of the men who tried to help, fought with Patterson and sustained cuts to his right hand and chest.

Towards the end of the fight, Patterson tried to get into his car while he was holding Taylor by the arm. In an effort to get loose from Patterson's grip, Taylor brandished a pistol with his free hand and fired three shots into Patterson's vehicle. Patterson then got in his car and drove away. However, Taylor heard gunshots from Patterson's car and several bullets landed near the parking lot. When law enforcement officers caught up with Patterson, they found a semiautomatic handgun and three knives in his car.

B. Procedural Background

At trial, self-defense was mentioned several times during closing arguments by both the prosecutors and Patterson's trial counsel. During closing arguments, Patterson's defense attorney claimed that self-defense was not an issue because Patterson did not recall stabbing anyone. The defense attorney suggested that with all of the chaos, Woodberry was perhaps stabbed by someone other than Patterson. The prosecution countered by noting that self-defense was not the issue and that the only real question posed by the charge was whether Patterson committed the crime of aggravated assault. The jury convicted Patterson of aggravated assault and assessed punishment at ten years in prison and a five-thousand dollar fine.

On appeal, Patterson argues that his trial counsel's failure to object to the charge that omitted a self-defense instruction constitutes ineffective assistance of counsel because the issue of self-defense was brought up several times during trial. Patterson highlights the testimony concerning his fear during the fight and attempt to flee as evidenct that warranted a self-defense instruction.

II. DISCUSSION

A. Applicable Law

We evaluate claims of ineffective assistance of counsel at both phases of a criminal trial against the standard set forth in Strickland v. Washington. See 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 772, 774 (Tex. Crim. App. 1999) (applying Strickland standard). In deciding a claim of ineffective assistance of counsel, we must determine whether an attorney's performance was deficient, and if so, whether that deficiency prejudiced the defense. Strickland, 466 U.S. at 687; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). An attorney's performance is deficient if it falls below an objective standard of reasonableness. Strickland, 466 U.S. at 688; Thompson, 9 S.W.3d at 812.

Deficient performance is prejudicial when, but for the attorney's unprofessional conduct, there is a reasonable probability that the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; Thompson, 9 S.W.3d at 812. Absent both showings, we cannot conclude that there was a breakdown in the adversarial process that rendered the result of a trial unreliable. Thompson, 9 S.W.3d at 813.

In determining whether an attorney's performance was deficient, we apply a strong presumption that the attorney's conduct was within the range of reasonable professional assistance. Id. at 814. We do not speculate about an attorney's strategy. Blevins v. State, 18 S.W.3d 266, 271 (Tex. App.-Austin 2000, no pet.); see also Moore v. Johnson, 194 F.3d 586, 604 (5th Cir. 1999) (finding that courts are not "required to condone unreasonable decisions parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of counsel when it appears on the face of the record that counsel made no strategic decision at all"). We review the effectiveness of counsel in light of the totality of the representation and particular circumstances of each case. Thompson, 9 S.W.3d at 813.

"[A]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814 (citing McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996)). The appellant bears the burden of overcoming the presumption of reasonable attorney performance and is required to prove by a preponderance of the evidence that his counsel was ineffective. Blevins, 18 S.W.3d at 271; Mayhue v. State, 969 S.W.2d 503, 511 (Tex. App.-Austin 1998, no pet.). Therefore, the appellant must produce a record from which we may discern that his attorney's performance was not based on sound trial strategy. Blevins, 18 S.W.3d at 271. Ineffective assistance of counsel claims may be reviewed on direct appeal only when "no reasonable trial strategy could justify the trial counsel's conduct, [thus] counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as she did." Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

B. Analysis

Patterson contends that his version of events entitled him to a self-defense instructions and that his trial counsel's failure to object to the jury charge because it lacked a self-defense instruction amounts to ineffective assistance of counsel. Pursuant to sections 9.31(a) and 9.32 of the Texas Penal Code, a defendant is entitled to a jury charge that includes an instruction on the justification defense of self-defense with deadly force if a person is justified in using force against another when and to the degree that he reasonably believes that the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force and if a reasonable person in the actor's situation would not have retreated. See Tex. Pen. Code Ann. 9.31(a), 9.32 (Vernon 2003).

According to Patterson, one of the four women in the car hit him. After the initial hit, Patterson was attacked by a number of people. The fight was very chaotic and he was knocked on the ground, punched and kicked, hit with a belt and a bottle, and attempted to flee. While Patterson did not recall pulling out a knife, he feared for his life and could have used one if he had one. Therefore, Patterson contends that he did not initiate the original assault, attempted to flee, and possibly used a knife in self-defense.

Even if Patterson's testimony could have supported a self-defense charge, it also supports his claim that he did not commit the aggravated assault. Based on the record, it appears that Patterson's trial attorney opted to present a case for innocence on the aggravated assault charge rather than presenting a self-defense theory. Given that (1) Patterson did not testify that he used a knife during the fight, (2) the fight, in Patterson's eyes, was so chaotic and violent that another individual could have stabbed Woodberry, and (3) there was conflicting testimony regarding whether Patterson was the initial aggressor, the trial attorney's strategy of presenting a case for innocence, undiluted by a self-defense theory, was within an objective standard of reasonableness. See McAdams v. State, No. 01-04-00204-CR, 2004 Tex. App. LEXIS 8982 at 10*(Tex. App.-Houston [1st] Dist. October 7, 2004, no pet.) ("trial attorney could reasonably have believed that proceeding solely with a defense of accident was a better strategy than asserting both accident and self-defense, which the jury could have perceived as inconsistent."). Patterson has not overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. See Strickland, 466 U.S. at 689. His sole issue is overruled.

III. CONCLUSION

The judgment of the trial court is affirmed.

 

_______________________

ROGELIO VALDEZ

Chief Justice

 

Do not publish.

Tex. R. App. P. 47.2(b).

 

Memorandum Opinion delivered and filed

this the 9th day of November, 2006.

1. There is testimony that Patterson told the four women that he was going into the club to beat up somebody and did not want their car blocking his exit.