Louron Bernard Willis v. The State of Texas--Appeal from 354th District Court of Hunt County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-04-00172-CR

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LOURON BERNARD WILLIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th Judicial District Court

Hunt County, Texas

Trial Court No. 22,016

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

When Louron Bernard Willis was sixteen years old, he, Cedrick Lewis, and Larry Hatley robbed three men at gun point. After the robbery yielded less than a dollar, the frustrated robbers shot Eddie Garcia to death. Willis was prosecuted as an adult, convicted of capital murder, and sentenced to life in prison.

We affirm the trial court's judgment because (1) ineffective assistance of counsel has not been shown, (2) sufficient evidence supports the finding that Willis had specific intent to kill the victim, and (3) an automatic life sentence for a juvenile capital murderer is not constitutionally unsound.

(1) Ineffective Assistance of Counsel Has Not Been Shown

Willis contends he did not receive effective assistance of counsel at trial. In our review of a claim of ineffective assistance of counsel, we apply the standards set out in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, an appellant must prove by a preponderance of the evidence that (a) his or her counsel's representation fell below an objective standard of reasonableness, and (b) the deficient performance prejudiced the defense. Id. To meet this burden, the appellant must prove that counsel's representation fell below the standard of prevailing professional norms and that there is a reasonable probability that, but for the attorney's deficiency, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Willis expresses three complaints concerning his trial counsel.

Willis first complains his counsel was ineffective because he did not call Willis to testify at trial, despite being informed of his desire to testify. Any allegation of ineffectiveness must be firmly grounded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record is silent on why counsel did not call Willis to testify. And numerous reasons exist why a defendant should not testify, even if he or she wishes to do so. Error has not been shown.

Willis next complains his counsel was ineffective for failing to file a motion to suppress Willis' videotaped and written statements. But this record reveals that such a motion was filed, a hearing was held on the topic, and the trial court found the statements admissible.

Willis also complains counsel was ineffective in failing to request, as a lesser-included offense, a jury charge on felony murder. Willis asserts his counsel could have argued that, instead of charging the jury under only Section 19.02(b)(1) (intentionally or knowingly causing the death of an individual; a prerequisite for capital murder), trial counsel should have asked that the jury be charged on a lesser-included offense under Section 19.02(b)(3) (felony murder). See Tex. Pen. Code Ann. 19.02(b)(1), (3) (Vernon 2003). The lesser charge carries with it a lesser sentencing range.

Not requesting a lesser-included-offense charge can be trial strategy. See Lynn v. State, 860 S.W.2d 599, 603 (Tex. App. Corpus Christi 1993, pet. ref'd). In this case, because of Willis' youth and on the theory that Hatley was the mastermind and the shooter who actually killed Garcia, counsel may have been attempting an all-or-nothing defense in the hope that the jury would choose not to incarcerate the youthful Willis for life. In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation, if any can be imagined. Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). The record does not reveal the reasons for counsel's action, but valid reasons can be imagined.

Ineffective assistance of counsel has not been shown on this record. The contention is overruled.

(2) Sufficient Evidence Supports the Finding That Willis Had Specific Intent To Kill the Victim

Willis contends the evidence was insufficient to show he formulated specific intent to kill Garcia, as is required to obtain a conviction based on the capital murder statute.

In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Tex. Pen. Code Ann. 6.03(a) (Vernon 2003). The question, then, is whether the jury had sufficient evidence to find beyond a reasonable doubt that Willis had the conscious objective to cause Garcia's death. We conclude the jury had sufficient evidence.

Whether a defendant had the intent to kill is a question of fact for the jury to determine. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). In determining whether the State has proven the intent to kill, the jury may use its collective common sense and may apply common knowledge and experience. See Rodriguez v. State, 90 S.W.3d 340, 355 (Tex. App. El Paso 2001, pet. ref'd). The jury may infer the intent to kill from any evidence that it believes proves the existence of that intent. Brown, 122 S.W.3d at 800. For example, the jury may infer the intent to kill from the defendant's words or conduct. Hall v. State, 418 S.W.2d 810, 812 (Tex. Crim. App. 1967); Robbins v. State, 145 S.W.3d 306, 309 (Tex. App. El Paso 2004, no pet.). The jury may also infer intent to kill from the defendant's use of a deadly weapon, such as a gun, unless it would be unreasonable to infer that death or serious bodily injury could result from the particular use of the weapon. Brown, 122 S.W.3d at 800 01; Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996); see Tex. Pen. Code Ann. 1.07(a)(17)(A) (Vernon Supp. 2004 2005).

The jury had evidence before it showing that Willis shot the victim once and that Hatley shot the second time, but other evidence that Willis personally pulled the trigger both times. Even under the two-shooter scenario, Willis' statement indicates that he shot Garcia in the chest and that Hatley shot Garcia in the leg. The evidence is both legally and factually sufficient to support the verdict. The contention of error is overruled.

(3) An Automatic Life Sentence for a Juvenile Capital Murderer Is Not Constitutionally Unsound

Finally, Willis contends the Texas capital murder scheme effectively mandates an automatic life sentence for a juvenile offender and therefore is constitutionally unsound.

The argument is based on recent action by the United States Supreme Court. That Court has recently held it is unconstitutional to execute individuals who are not yet eighteen years of age at the time they commit their crimes. Roper v. Simmons, __ U.S. __, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). The Roper Court ruled that such action violates the Eighth Amendment prohibition against cruel and unusual punishment. In Roper's majority opinion, Justice Kennedy noted that youth tend to have a "lack of maturity and an underdeveloped sense of responsibility" and that "these qualities often result in impetuous and ill-considered actions and decisions." Id. The Court also noted that juveniles are more vulnerable to outside pressures and that the character of a juvenile is not as well formed as that of an adult. Id. Based on those differences from adult offenders, the Court found suspect any conclusion that a juvenile falls among the worst offenders, reasoning that "their irresponsible conduct is not as morally reprehensible as that of an adult." Id.

Nevertheless, the Roper opinion is directed not at life imprisonment, or even life imprisonment without parole, // but at the ultimate penalty, death. Imprisonment, even for life, is not in the same category as capital punishment, and no compelling reason has been advanced that convinces us to further expand the Eighth Amendment. The contention of error is overruled.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: August 17, 2005

Date Decided: August 31, 2005

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