WILLIAM KYLE WALTERS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued December 9, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-08-01244-CR
No. 05-08-01245-CR
............................
WILLIAM KYLE WALTERS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F07-59075-YT & F07-73763-YT
.............................................................
OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
        William Kyle Walters appeals his two convictions for aggravated assault with a deadly weapon. After the jury found him guilty, the trial court assessed punishment, enhanced by two prior convictions, at forty years in prison in each case and a $2500 fine in cause number 05-08-01244-CR. In four points of error, appellant claims the trial court erred by refusing to require a witness to testify, commenting on the weight of the evidence, and not giving a “special requested multiple assailant self defense charge,” and that he received ineffective assistance of counsel at trial. We affirm the trial court's judgments.
        On the evening of November 10, 2007, Brandon Hull, Chris Harrison, Kyle Williamson, and Adam Stewart were at the Red Blood Club in Deep Ellum for a concert. Brent Stephenson was working the door as a bouncer for the club. Stephenson and Williamson escorted a patron named Daniel Barfield out of the club and told him not to return. A short time later, Barfield tried to reenter the club accompanied by appellant, and at least two others. Stephenson met them in the hallway to the club entrance where he was joined by Hull and later Williamson. Stewart and Harrison were also in the area. Barfield and appellant both had knives and stabbed Hull, Harrison, and Stewart. Appellant was subsequently arrested and charged with the aggravated assaults with a deadly weapon of Hull and Stewart.
        In his first point of error, appellant claims his rights to due process and due course of law were violated when the trial court refused to require appellant's girlfriend, Kelly West, to testify at trial. According to appellant, West could testify about the events of that evening as well as the relationship of the parties, including that she used to date Stephenson who had since made threats against appellant and West.
        Generally, a defendant's right to compulsory process is denied when the State arbitrarily denies a defendant the right to put on the stand a witness whose testimony would have been relevant and material to his defense. Ex parte Scarbrough, 604 S.W.2d 170, 173-74 (Tex. Crim. App. [Panel Op.] 1980); Boler v. State, 177 S.W.3d 366, 371 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd). A defendant's right to compulsory process, however, does not override a potential witness's constitutional privilege against self-incrimination. Boler, 177 S.W.3d at 371 (citing Bridge v. State, 726 S.W.2d 558, 567 (Tex. Crim. App. 1986)). A trial court “cannot compel a witness to answer unless it is perfectly clear, from a careful consideration of all the circumstances in the case,” the witness is mistaken in asserting the privilege and the answer cannot possibly tend to incriminate the witness. Grayson v. State, 684 S.W.2d 691, 696 (Tex. Crim. App. 1984). When a witness invokes his Fifth Amendment right against self-incrimination on the advice of the witness's counsel, the trial court is not obligated to make any further determination. Ross v. State, 486 S.W.2d 327, 328 (Tex. Crim. App. 1972); Chennault v. State, 667 S.W.2d 299, 302 (Tex. App.-Dallas 1984, pet. ref'd).
        In this case, appellant sought to question West about the relationship of the parties, Stephenson's assault of appellant at the Red Blood Club one month prior, and the events leading up to the assaults on the evening in question. West, acting under the advice of counsel, invoked her Fifth Amendment right to not testify on the ground that to do so might incriminate her. Because West's refusal to testify was asserted on the advice of her attorney, the trial court was not required to question West or make any further determination. See Chennault, 667 S.W.2d at 301. We overrule appellant's first point of error.
        In his second point of error, appellant contends he was “denied his right to due process by the court's improper comment on the evidence, assuming a contested fact in the jury charge, to wit: 'switchblade.'”
        In support of this contention, appellant provides one sentence of law. He does not provide authority or any discussion of his right to due process, the law on self defense and its limitations, or what is required in a charge when instructing the jury on self defense. Appellant does not make a clear and concise argument for his contentions nor does he apply any law to the facts of his case. Appellant's second issue in inadequately briefed. See Tex. R. App. P. 38.1. Under these circumstances, we cannot conclude the trial court erred. We overrule appellant's second point of error.
        In his third point of error, appellant argues the trial court erred in not including his special requested multiple-assailant self defense charge. Appellant asked the court to instruct the jury he had a right to act in self defense against Hull, Stephenson, Stewart, or any number of attackers. He claims the denial of this instruction requires reversal.
        In reviewing charge error, we first determine whether error exists. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). If we find error, we must then determine whether the error caused sufficient harm to require reversal. Hutch v. State, 922 S.W.2d 166, 170-71 (Tex. Crim. App. 1996). The degree of harm necessary for reversal depends on whether the error was preserved. Id. at 171. Error properly preserved by an objection to the charge will require reversal as long as the error is not harmless, that is, any harm, regardless of degree, is sufficient to require reversal. Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007).
        According to appellant, he and four friends were at the Red Blood Club to see several bands. Sometime after one o'clock in the morning, most of the group decided to leave. Barfield stopped to get some water; appellant and two others walked outside. Appellant heard a commotion, and a beer bottle flew by him. Barfield came out of the club followed by “a crowd of people.” Appellant told his girlfriend, Kelly, to run to the car. He saw Hull with a “big Maglite flashlight” and, although he ducked in time to avoid being hit on the head, appellant was hit on the shoulder by the flashlight. Appellant then pulled out his knife and “started to defend” himself. He “stabbed probably two people.” Initially, appellant said Hull was the only person with anything in his hands. The following day, he testified he saw both Hull and Stewart with knives. Later, during cross- examination, appellant admitted that statement was not true and he did not see any knives that night.
        In cause number 05-08-01244-CR, after first instructing the jury on the law of self-defense, the trial court applied the law:
 
even if you believe from the evidence beyond a reasonable doubt that [appellant] caused bodily injury to Adam Stewart by cutting or by stabbing Adam Stewart with a knife, a deadly weapon, as alleged, but you further believe from the evidence, or you have a reasonable doubt thereof, that at the time he did so, [appellant] reasonably believed that Adam Stewart was using or attempting to use deadly force against him and that he reasonably believed that the use of force and the degree of force used were immediately necessary to protect himself against Adam Stewart's use or attempted use of unlawful deadly force, you will find [appellant] not guilty.
 
The trial court similarly instructed the jury on self defense and gave the same application to the jury substituting the name “Brandon Hull” for Adam Stewart in cause number 05-08-01245-CR.
        Assuming, without deciding appellant was entitled to the “multiple party self defense” instruction, we cannot conclude he has shown harm requiring reversal. Appellant claims “[e]ven if the jury believed only that Hull had the flashlight or only that Stewart had the knife, [appellant] would have had the legal right to use deadly force against both of them.” However, the jury was instructed on self defense and did not find appellant acted in self defense with respect to either Stewart or Hull separately. It follows that the jury would not have found appellant acted in self defense if the instruction had been given as to both of them. Under these circumstances, we cannot conclude appellant has shown harm from the failure to give a multiple party self defense instruction. We overrule his third point of error.
        In his final point of error, appellant claims he was denied the effective assistance of counsel at trial. Specifically, he contends counsel was ineffective by failing to: investigate the facts of the case, object to “consistent and numerous instances of” prosecutorial misconduct, make proper objections to improper jury charges, advance necessary jury instructions, and object to certain evidence. We conclude appellant has not met his burden entitling him to relief.
        We examine ineffective assistance of counsel claims by the standard set out in Strickland v. Washington, 466 U.S. 668 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Appellant has the burden to show by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.
        Because a silent record provides no explanation for counsel's actions, the record on direct appeal usually “will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decisionmaking as to overcome the presumption that counsel's conduct was reasonable and professional.” Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008); see Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003). Furthermore, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002). Consequently, an application for writ of habeas corpus is the more appropriate vehicle to raise ineffective assistance of counsel claims. Rylander, 101 S.W.3d at 110.
        In this case, appellant did not file a motion for new trial and, consequently, there was no post-conviction hearing. As was the case in Thompson, the record here provides no discussion of trial counsel's purported errors. It contains no discernible explanation of the motivation behind counsel's decisions and actions. And, contrary to appellant's assertions, the record does not establish trial counsel failed to investigate the facts of the case. Although there are rare cases in which a record is sufficient for an appellate court to make a decision on the merits, we cannot conclude this is one of those rare cases. See Cannon, 252 S.W.3d at 349-50.         We conclude appellant failed to meet his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 506-07 (Tex. Crim. App. 2003 ) (“The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose of establishing this claim.”). We overrule appellant's final point of error.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
081244F.U05