London, Anthony Allen v. The State of Texas

 
AFFIRM; Opinion Filed December 14, 2011.
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00417-CR
............................
ANTHONY ALLEN LONDON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F06-86507-SIY
.............................................................
OPINION
Before Justices Moseley, Lang, and Myers
Opinion By Justice Lang
 
Appellant Anthony Allen London was convicted by a jury of
murder. In his first appeal regarding that conviction, this Court
reversed and remanded only for a new punishment trial. London v. State,
325 S.W.3d 197, 209 (Tex. App.-Dallas 2008, no pet.). Upon retrial, a
jury assessed punishment at imprisonment for thirty-five years. In three
issues, London contends (1) the jury's failure to find that he acted
under the influence of sudden passion was against the great weight and
preponderance of the evidence, (2) he received ineffective assistance of
trial counsel when counsel failed to object to the prosecutor's
misstatement during cross-examination of appellant during the penalty
phase of the trial, and (3) he received ineffective assistance of trial
counsel when counsel failed to object to the prosecutor's misstatement
during closing argument of the penalty phase of the trial. We decide
against London on all issues. The trial court's judgment is affirmed.
 
 
I. FACTUAL AND PROCEDURAL BACKGROUND
 
On March 28, 2006, Kerwin Holmes and his girlfriend were walking
from a store to a motel where Holmes was living. Id. at 201. They met
appellant, and an argument began between Holmes and appellant. Id.
Appellant ran into a room at another nearby motel. Id. Holmes entered a
car driven by Roderic Fowlks and sat behind him. Id. Also in the car
were Fowlks's girlfriend and another passenger. Id. As the car drove
away, appellant returned to the street with a gun and fired at the
retreating car. Id. A shot from appellant's gun pierced the car's rear
window, hit Holmes in the head, and killed him. Id. A jury convicted
appellant of murder. Id.
This is the second time appellant has appealed to this Court
regarding his conviction. In the first appeal, we addressed appellant's
claim that his conviction and punishment of twenty years' imprisonment
for murder should be reversed because the trial court instructed the
jury on a special issue of sudden passion in mitigation of punishment,
but failed to instruct the jury to render a unanimous verdict on the
sudden-passion special issue. Id. at 206-09. The jury returned a general
verdict that appellant was guilty of murder and assessed punishment of
twenty years' imprisonment. Id. at 201. This Court agreed with
appellant, concluded the trial court's error was harmful, and reversed
and remanded for a new punishment trial. Id. at 206-09.
Upon remand, at the punishment stage of the trial, the jury
again answered negatively on appellant's special issue of sudden passion
 
arising from an adequate cause and assessed punishment of thirty-five
years' imprisonment. Appellant timely filed a notice of appeal.
II. SUDDEN-PASSION DEFENSE
 
In his first issue, appellant argues that the jury's rejection
of his sudden-passion defense is against the great weight and
preponderance of the evidence because appellant was being shot at by a
person in the car in which Holmes was riding, which placed appellant in
a state of fear, and appellant did not have sufficient time for cool
reflection before returning fire at the car out of sudden passion. The
State responds appellant was not placed in a state of fear because there
was no other shooter besides appellant. Further, the State asserts the
jury, as sole judge of weight and credibility of evidence, chose not to
believe appellant was placed under the immediate influence of sudden
passion arising from an adequate cause. Accordingly, the decision was
not against the great weight and preponderance of the evidence.
A. Standard of Review
 
The Court of Criminal Appeals has held that the Jackson v.
Virginia legal-sufficiency standard is now “the only standard that a
reviewing court should apply in determining whether the evidence is
sufficient to support each element of a criminal offense that the State
is required to prove beyond a reasonable doubt.” Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). For cases and
claims involving other burdens of proof, a Brooks concurrence noted that
the factual-sufficiency standard announced in Meraz v. State, 785 S.W.2d
 
146, 154-55 (Tex. Crim. App. 1990), is nevertheless appropriate for
review of issues, such as affirmative defenses, on which the defendant
has the burden of proof by preponderance of the evidence. See Brooks,
323 S.W.3d at 924-26 (Cochran, J., concurring).
When a defendant seeks appellate review of a jury's failure to
make a finding on which the defendant has the burden of proof, such as
on an affirmative defense, the defendant invokes our factual review
jurisdiction. Naasz v. State, 974 S.W.2d 418, 421 (Tex. App.-Dallas
1998, pet. ref'd) (citing Meraz, 785 S.W.2d at 154-55). In such an
instance, the appropriate standard of review is whether, after
considering all the evidence relevant to the issue at hand, the judgment
is so against the great weight and preponderance of the evidence so as
to be manifestly unjust. Meraz, 785 S.W.2d at 155. In a factual
sufficiency review, an appellate court views all of the evidence in a
neutral light to determine whether the jury's verdict of guilt was
rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.
2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006).
B. Applicable Law
 
The Texas Penal Code provides in relevant part that a person
commits murder if he “(1) intentionally or knowingly causes the death of
an individual; [or] (2) intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of
an individual.” Tex. Penal Code Ann. § 19.02(b)(1)-(2) (West 2011). At
 
the punishment stage of the trial, the defendant may raise the issue of
whether he caused the death under the immediate influence of sudden
passion arising from an adequate cause. Id. § 19.02(d). If the defendant
proves that affirmative defense by a preponderance of the evidence, the
offense of murder is punished as a second-degree felony. Id.
Legally adequate cause requires some evidence of the condition
of the accused's mind at the time of the offense. Merchant v. State, 810
S.W.2d 305, 310 (Tex.App.-Dallas 1991, writ ref'd). Ordinary anger is
not adequate cause. See Ybarra v. State, 890 S.W.2d 98, 109 (Tex.
App.-San Antonio 1994, writ ref'd). The cause must be the kind that
would produce “anger, rage, resentment, or terror in a person of
ordinary temper” so the person is “incapable of cool reflection.” Tex.
Penal Code Ann. § 19.02(a)(1); Merchant, 810 S.W.2d at 310. Such
responses in persons with special susceptibilities are not enough unless
the cause would also produce such responses in an ordinary person.
Merchant, 810 S.W.2d at 310. The accused also may not rely upon cause of
his own making, such as precipitating a confrontation. Nance v. State,
807 S.W.2d 855, 861 (Tex. App.-Corpus Christi 1991, writ ref'd).
“'Sudden passion' requires first that the record contain objective
evidence that direct provocation by the victim or someone acting with
the victim occurred at the time of the killing.” Naasz v. State, 974
S.W.2d 418, 423-24 (Tex. App.-Dallas 1998, pet. ref'd) (citing Merchant,
810 S.W.2d at 310). Evidence of prior provocation alone is not enough.
 
Tex. Penal Code Ann. § 19.02(a)(2); Naasz, 974 S.W.2d at 423-24;
Merchant, 810 S.W.2d at 310. “The record must also contain evidence from
which the jury could subjectively decide the accused killed the victim
while in an excited and agitated state of mind arising out of the direct
provocation.” Naasz, 974 S.W.2d at 424 (citing Merchant, 810 S.W.2d at
310).
C. Application of Law to Facts
 
Appellant testified that after a verbal altercation with Holmes,
appellant returned to the motel room where he was staying. At that
point, he called a friend and asked him to give him a ride so he could
get away from the area. Then, appellant left his motel room to get into
his friend's car when he was fired upon by someone in a white Lincoln
that was driving towards him. After appellant was fired upon, he
returned fire, but only to protect himself, appellant alleges. Appellant
testified that he was fired upon approximately three to four times, and
he returned fire the same number of times.
The State's eyewitness Davius Williams testified there were no
shots fired before appellant began shooting at the car. In fact,
Williams testified that at no time did anyone other than appellant fire
a weapon. Williams stated that appellant fired three to eight times at
the car. A police officer, supporting Williams's testimony, testified
that no cartridge casings were found other than in front of the motel
where appellant fired and that no casings were found inside the Lincoln.
Further, the police officer testified that the glass in the back window
 
of the car had been shattered by a shot that was fired outside the
vehicle and passed inside it.
The only immediate cause to which appellant testified was his
sole, unsubstantiated account that he was fired upon first, which was
directly contradicted by Williams, the eyewitness. In light of the
dispute as to whether any person other than appellant fired shots, the
jury was free to reject appellant's version of events.
Where the testimonial evidence is, as here, conflicting and
requires an evaluation of demeanor and credibility of witnesses, the
jury is the final judge of the weight of the evidence. Cain v. State,
 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997). On appeal we do not
disturb the jury's credibility determinations. Id. A decision is not
manifestly unjust merely because the jury resolved conflicting views of
the evidence in favor of the State. Id. at 410. Having reviewed the
entire record, we cannot conclude that the jury's failure to find sudden
passion is so against the great weight and preponderance of the evidence
as to be manifestly unjust.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
 
In his second and third issues, appellant asserts his trial
counsel was ineffective on two occasions during the new punishment
trial.
A. Standard of Review and Applicable Law
 
To prevail on a claim of ineffective assistance of counsel, an
appellant must show by a preponderance of the evidence that (1)
counsel's performance fell below an objective standard of reasonableness
and (2) a reasonable probability exists that, but for counsel's errors,
 
the result would have been different. See Strickland v. Washington, 466
U.S. 668, 687-88, 694 (1984); Ex parte Niswanger, 335 S.W.3d 611, 615
(Tex. Crim. App. 2011). Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the claim that
counsel was ineffective. Andrews v. State, 159 S.W.3d 98, 101 (Tex.
Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999).
Allegations that counsel was ineffective must be firmly founded
in the record and not based on retrospective speculation. Bone v. State,
 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). This requires an appellant to
present direct evidence of the reasons for counsel's actions or
omissions at trial, unless counsel's deficiency is affirmatively
demonstrated in the record. See Mata v. State, 226 S.W.3d 425, 430 (Tex.
Crim. App. 2007); Thompson, 9 S.W.3d at 814. A reviewing court will find
counsel's deficiency to be affirmatively demonstrated in the record when
no reasonable strategy could justify counsel's conduct. Andrews, 159
S.W.3d at 102.
B. Application of Law to Facts
 
In his second issue, appellant complains that, during the
penalty phase of the trial, his counsel failed to object to the
prosecutor's cross-examination question of appellant, which asked if he
understood he had been convicted of “intentionally or knowingly
caus[ing] the death of an individual.” Tex. Penal Code Ann. §
19.02(b)(1). The record reflects, in the guilt/innocence phase of the
trial, the jury returned only a general verdict, convicting under
 
section 19.02(b) of the Texas Penal Code. Accordingly, the record does
not reflect on which of two disjunctive theories, subsections
19.02(b)(1) or 19.02(b)(2), the jury convicted appellant. Accordingly,
appellant argues that this misstatement of the jury's decision
prejudiced the jury against appellant. The State concedes that the
prosecutor's argument constituted “minimal divergence from the truth,”
but argues that there were a number of logical reasons why appellant's
counsel would strategically choose not to object.
As to his third issue, appellant argues ineffective assistance
of counsel because his trial counsel failed to object to the following
argument made by the prosecutor in closing argument: “[Appellant] has
shown you through his actions he doesn't even want probation. In fact,
he's had probation before on his first offense because that's what we
do.” Appellant now argues his counsel should have objected because the
prosecutor's statement led the jury to believe appellant had received
probation in his first punishment trial. The State responds that the
prosecutor's closing argument was true and fully supported by the
evidence presented at the punishment trial.
Even assuming without deciding that trial counsel's performance
fell below an objective standard of reasonableness, appellant must show
a reasonable probability exists that, but for trial counsel's errors,
the result would have been different. In his brief, appellant states
that “[t]rial counsel's failures to object constituted deficient
 
performance which inevitably affected the outcome of Appellant's new
trial on punishment,” “this deficient performance resulted in prejudice
to Appellant in this new trial on punishment,” and “[h]ad counsel
objected to these erroneous statements, there is a probability that the
jury would have found favorably for Appellant on the sudden passion
issue and would have assessed much less than the punishment of
thirty-five (35) years in prison that it did assess.” Appellant does not
cite evidence, references to the record, other specific grounds, or
persuasive case law to support this assertion. Accordingly, we conclude
appellant has not met his burden to show he received ineffective
assistance of counsel. Appellant's second and third issues are decided
against him.
IV. CONCLUSION
 
 
We cannot conclude that the jury's failure to find sudden
passion is so against the great weight and preponderance of the evidence
as to be manifestly unjust. Also, appellant has not shown that he
received ineffective assistance of counsel in either of the two
occasions during the new punishment trial. The trial court's judgment is
affirmed.
 
 
DOUGLAS S. LANG
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100417F.U05
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