Nathan Davis v. The State of Texas--Appeal from 230th District Court of Harris County

MEMORANDUM OPINION

No. 04-03-00768-CR

Nathan DAVIS,

v.

THE STATE OF TEXAS

From the 230th Judicial District Court, Harris County, Texas

Trial Court No. 956861

Honorable Belinda Hill, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: July 6, 2005

AFFIRMED

Nathan Davis appeals the judgment convicting him of murder and sentencing him to twenty-five years confinement.

SUFFICIENCY OF THE EVIDENCE

In his first issue, Davis asserts the evidence is factually insufficient to support the jury s verdict because the evidence showed he acted in self-defense. Specifically, Davis contends he feared for his life when he shot the complainant.

1. Burden of Proof

Davis contends he fired his gun because he believed the complainant was reaching for a weapon, and, under the circumstances, he acted under a reasonable apprehension of apparent danger. A person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other s use or attempted use of unlawful force. Tex. Pen. Code Ann. 9.31(a) (Vernon 2003). If a person uses deadly force, his conduct is justified if (1) he would be justified in using force in self-defense, (2) a reasonable person in the actor s situation would not have retreated, and (3) the use of force is to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other s use or attempted use of unlawful deadly force. Id. 9.32(a).

Apparent danger is a facet of self-defense. Brooks v. State, 548 S.W.2d 680, 684 (Tex. Crim. App. 1977), disapproved on other grounds, Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim. App. 1984). Under the theory of apparent danger, it is immaterial that a defendant was not, in fact, attacked. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). Instead, a person has the right to defend against apparent danger to the same extent as actual danger, provided he acts upon a reasonable apprehension of danger as it appears to him at the time. Id.; Courtney v. State, 908 S.W.2d 48, 52 (Tex. App. Houston [1st Dist.] 1995, pet. ref d).

A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913; Tex. Pen. Code Ann. 2.03. However, the burden of persuasion is not one that requires the production of evidence; it requires only that the State prove its case beyond a reasonable doubt. Saxton, 804 S.W.2d at 913.

Defensive evidence that is merely consistent with other evidence of the alleged offense does not render the State s evidence insufficient because the credibility determination of such evidence is solely within the jury s province and the jury is free to accept or reject the defensive evidence. Id. at 914. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Id.

2. Standard of Review

The burden of proof at trial dictates the standard of review this court applies on appeal. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). In Zuniga, the Court of Criminal Appeals linked the burden of proof at trial to the standard of review and acknowledged the necessity for appellate courts to consider the burden of proof at trial when reviewing the factual sufficiency of the evidence. Id. The court held that, when reviewing the factual sufficiency of the evidence, a reviewing court asks whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. The court noted, however, that there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485.

When a defendant challenges the factual sufficiency of the jury s rejection of a defense, we review all the evidence in a neutral light and ask whether the evidence supporting the rejection of the defense, when considered by itself, is too weak to support the rejection beyond a reasonable doubt or whether contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not be met. See Zuniga, 144 S.W.3d at 484-85; Zuliani, 97 S.W.3d at 595.

3. The Evidence at Trial

Davis and his wife, Kristina, attended a New Year s Eve party at the home of Kristina s sister and brother-in-law, Shirley and Owen Delutis. Davis and his wife intended to spend the night at the Delutis home, after the party. Also at the party were the Delutises neighbors, Bob and Sandra Hocko. Owen, Bob, and Davis had all been hunting and fishing together in the past, and Bob and Davis each owned guns. On the night of party, Davis had one of his handguns in his truck. After the party ended, only the Delutises, the Hockos, Davis, and Kristina remained. While Kristina lay on a bed in the guest bedroom, Davis walked into the kitchen and sat down in Sandra s lap. Bob walked into the kitchen and saw Davis sitting in his wife s lap. No words were exchanged, and Davis got up and put his arm around Bob.

The Hockos lived approximately one mile from the Delutises. As they walked to their car, Bob and Sandra got into an argument. Bob asked his wife why she allowed Davis to sit in her lap, and whether she was one of his whores. After a brief argument, Sandra decided to walk home in the hope that Bob would get into the car and come after her.

At about this same time, both Owen and Davis walked into the backyard. According to Davis, he followed Owen into the yard and he was surprised to see the Hockos car because he thought they had already left. As he walked toward the Hockos car, he heard someone say something, at which time, Davis turned and saw Bob. Bob looked at him like weird kind of and he looked angry. Davis testified Bob then hit him in the face with a chair, knocking him to the ground. As Davis got up from the ground, he heard Bob say, I m going to kill you. Instead of retreating into the house, Davis said he ran away because he was scared. As he was running, he saw another chair come by. As he ran, he heard Owen say Bob in a tone of voice that Davis said meant something was going to happen. Davis said his only plan at the moment was to protect himself and his wife. He admitted no threats were made to his wife, and he denied that he went to his truck for his gun. However, after jumping over a fence to get to his truck, he opened the truck door, reached in, and retrieved the gun from the center console. He said he did not get in the truck and drive away because he would not leave without his wife.

After retrieving his gun, Davis briskly walked back to the yard, and stopped as soon as he saw Owen, who was standing by the barbeque pit. Davis said Bob took a few steps forward and he saw Bob reach around for something. Davis testified that because he thought Bob was reaching for a weapon and because he feared for his life, he fired his gun twice. When Davis saw Bob fall, he put his gun back inside his truck.

Owen testified he walked into his backyard to tend to the barbeque pit. He saw Bob and Davis, but he did not hear their conversation. Instead, he thought he heard Bob tell Davis to stay away from his wife and he saw a chair thrown. He did not hear Bob make any threats. Owen said he walked over to Bob, put his hand on Bob s shoulder, and asked what was going on. Owen said Bob did not try to follow Davis when Davis walked away. Owen did not believe Bob actually hit Davis with the chair or that a second chair was thrown. Owen said Bob was upset when they both walked back to the barbeque pit, but by the time they got to the pit, Bob was calm.

Owen and Bob were standing about an arm s length from each other, when Owen heard two pops, sounds he attributed to firecrackers. When he turned around toward the sound, he saw Davis. He could not recall Davis saying anything. When he looked back, Bob was on the ground. At first, Owen thought it was a joke, but he soon realized Bob had been shot. Owen stated that immediately before the shots were fired, Bob was just standing by the pit, with his arms by his side. Owen said Bob did not do anything with his hands.

Bob died before the police arrived, and the coroner recovered a knife from Bob s pocket. The medical examiner testified that the left side of Bob s body faced the muzzle of the gun when it was fired, causing the bullet to enter on the left-side and exit on the right-side of his body.

Considering all the evidence in the proper light, we conclude that the evidence supporting the jury s implied rejection of Davis defense is not so weak, nor the evidence in favor of the defense so strong, as to preclude a finding of his guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. Therefore, the evidence supporting conviction is factually sufficient.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second issue, Davis asserts his attorney was ineffective during the punishment phase of trial because counsel was manifestly inexperienced and unfamiliar with the law and rules of evidence. According to Davis, the prosecutor blatantly took advantage of his attorney s inexperience by preventing counsel from effectively questioning witnesses.

Davis has the burden to prove by a preponderance of the evidence that: (1) counsel s performance was deficient, i.e., his assistance fell below an objective standard of reasonableness; and (2) Davis was prejudiced, i.e., a reasonable probability exists that but for counsel s unprofessional errors, the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999). However, the constitutional right to effective assistance does not mean errorless counsel. See Hernandez v. State, 726 S.W.2d 53, 58 (Tex. Crim. App. 1986). Therefore, [a]n appellate court looks to the totality of the representation and the particular circumstances of each case in evaluating the effectiveness of counsel. Thompson, 9 S.W.3d at 813. There is a strong presumption that counsel s conduct fell within the wide range of reasonable professional assistance. Id. To defeat the presumption of reasonable professional assistance, [a]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id.

During the guilt-innocence phase, Davis was represented by two attorneys, Mark Bennet, who is an experienced trial attorney, and Melissa Martin, who is not as experienced as Bennet. During the punishment phase, only Martin represented Davis; however, the trial court allowed a third attorney to sit with Martin. On appeal, Davis admits his attorney earnestly and diligently did her best to serve [his] interests. However, Davis contends counsel was inexperienced, needed guidance and supervision, and she did not believe she could try the case on her own.

Davis first complains about the numerous objections raised by the prosecutor and Martin s lack of effective response to those objections. According to Davis, the prosecutor took advantage of Martin s inexperience and lack of confidence with the rules of evidence by becoming more and more aggressive.

A criminal defense lawyer must have a firm command of the facts of the case as well as governing law before [she] can render reasonably effective assistance of counsel. Ex parte Ybarra, 629 S.W.2d 943, 946 (Tex. Crim. App. 1982). However, under our system of criminal justice, a defendant is not guaranteed two perfectly matched opponents with equal levels of skill and experience in the practice of criminal law. Morris v. State, 696 S.W.2d 616, 622 (Tex. App. Houston [14th Dist.] 1985), aff d, 739 S.W.2d 63 (Tex. Crim. App. 1987). A defendant is guaranteed counsel with a level of competence adequate to protect the defendant s right to a fair trial. Id. Here, the record reveals both the prosecutor and Martin made numerous objections throughout the punishment phase, some of which were sustained by the trial court and others overruled. On several occasions, Martin successfully argued her response to the prosecutor s objections, resulting in the trial court overruling the objections. Based on the record as a whole, we conclude that any inexperience on Martin s part, or the prosecutor s alleged ability to benefit from that inexperience, does not detract from the underlying certainty that [Martin] defended [her] client with reasonable effectiveness. Id. (holding that defense counsel s performance must be judged, not upon momentary lapses, but upon the totality of the circumstances).

Davis next complains Martin did not develop or argue to the jury a special issue on sudden passion. Martin filed a requested instruction on the law of sudden passion and the jury charge included the special issue. Although a motion for new trial was filed, Davis did not raise Martin s ineffectiveness as grounds for a new trial; therefore, the record is otherwise silent as to counsel s possible strategies. We decline to speculate why counsel acted as she did. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We may not reverse a conviction on ineffective assistance of counsel grounds when counsel s actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel s decisions. Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002); see also Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Because the record does not affirmatively demonstrate that Martin s omissions were attributable to ineffectiveness, the presumption of reasonable professional assistance has not been defeated. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). CONCLUSION

We overrule Davis issues on appeal and affirm the trial court s judgment.

Sarah B. Duncan, Justice

DO NOT PUBLISH