Darrell Wayne Hogan v. State of Texas--Appeal from 21st District Court of Burleson County

IN THE

TENTH COURT OF APPEALS

No. 10-01-034-CR

DARRELL WAYNE HOGAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 21st District Court

Burleson County, Texas

Trial Court # 12,096

O P I N I O N

Darrell Wayne Hogan shot and killed Kelvin Bryson in a bar in Caldwell, Texas. The jury found him guilty of murder. At punishment, Hogan pled true to a prior felony conviction. By a submitted special issue, the jury found that Hogan killed Bryson while Hogan was under the immediate influence of sudden passion arising from an adequate cause. The jury assessed punishment at 60 years in prison. We affirm.

Motion to Suppress

In his first three issues, Hogan contends that the trial court erred in denying his motion to suppress a portion of his tape-recorded statement. Specifically, he contends that the taped statement does not reflect an affirmative waiver of his Miranda // rights until later in the interview.

A trial court's denial of a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The trial court's findings of fact are given "almost total deference," and in the absence of explicit findings, the appellate court assumes the trial court made implicit findings which were supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89-90 (Tex. Crim. App. 1997). The application of relevant law is reviewed de novo. Id.; Hailey v. State, 50 S.W.3d 636, 639 (Tex. App. Waco 2001, pet. granted).

The trial court found:

The statements made by the defendant to Chief Deputy Brackman and Ranger Malinak were only made after the appropriate warnings (Miranda warnings) were given.

This determination is supported by the record on appeal. A transcription of the taped statement was introduced at the motion to suppress hearing. It revealed that Miranda warnings were given to Hogan at the beginning of the statement and after an interruption of the interview. Hogan indicated both times that he understood those rights.

Hogan is correct that no express waiver of his rights appears on the taped statement the first time his rights were read. However, the law does not require a taped statement to reflect an express waiver of the rights. Rocha v. State, 16 S.W.3d 1, 12 (Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1, 16 (Tex. Crim. App. 1994).

The officers warned Hogan of his rights. Hogan indicated that he understood his rights and answered the officers questions. The trial court did not err in denying his motion to suppress. Issues one, two, and three are overruled.

Jury Charge

Hogan also complains on appeal that the trial court erred in submitting an instruction, over his objection, that Hogan would not be justified in using force while unlawfully carrying a handgun when the instruction was not raised by the evidence. He contends there was no evidence that he sought an explanation from or discussion with Bryson, the victim.

The use of force against another person is not justified if the actor sought an explanation from or a discussion with the other person about their differences while the actor was unlawfully carrying a weapon. Tex. Pen. Code Ann. 9.31(b)(5)(A) (Vernon Supp. 2002). After the charge on self-defense, the trial court instructed the jury:

While a defendant has the right to seek an explanation from or discussion with another concerning difference[s] with the other person, the use of force against another is not justified if the defendant sought an explanation from or discussion with another person concerning differences with the other person while the defendant was intentionally, knowingly, or recklessly carrying on or about his person a handgun.

Handgun means any firearm that is designed, made, or adapted to be fired with one hand.

Now therefore, if you find and believe from the evidence beyond a reasonable doubt that the force used by the Defendant against Kelvin Todd Bryson was at a time when the Defendant was seeking an explanation from Kelvin Todd Bryson but at that time the Defendant was unlawfully carrying a weapon, to-wit: intentionally, knowingly, or recklessly carrying on or about his person a handgun, you will find against the defendant s claim of self defense.

We have previously held that an analysis similar to that employed in an instruction on provoking the difficulty should be applied to the instruction used in this case. Bumguardner v. State, 963 S.W.2d 171, 175 (Tex. App. Waco 1998, pet. ref d). A charge on the limitation of a defendant s right to self-defense is proper when:

1. Self-defense was raised as an issue;

2. There is evidence that the defendant sought an explanation from or discussion with the victim concerning their differences; and

3. The defendant unlawfully carried a weapon.

Id. Self-defense was submitted to the jury. Also, it is undisputed that Hogan was unlawfully carrying a handgun. Thus, we must examine the entire record to determine if there is any evidence that Hogan sought an explanation from or discussion with Bryson concerning their differences.

Hogan, his sister JoAnn, and his girlfriend Valencia, went to a bar called the Do Drop In. Brandon Covell, an acquaintance, put a gun in JoAnn s shirt because the bar was conducting weapons checks on the men entering the bar. Eventually, JoAnn gave the gun to Valencia so that she could dance. Valencia did not want to hold the gun, so she gave it to Hogan who put it in his pants pocket.

Hogan testified that while in the bar, Bryson had been looking at Hogan like Bryson had a problem with him. Near closing time, Hogan wanted to leave. JoAnn had been dancing with Bryson, and Hogan saw Bryson grab JoAnn s buttocks. Hogan sent Valencia over to tell JoAnn they were ready to leave. Hogan waited, but Bryson would not let JoAnn go. Hogan walked up to Bryson and told him JoAnn was his sister and to let her go. After some expletives by Bryson, he let go of JoAnn. Bryson turned to put his beer down and reached behind his back. Valencia and JoAnn testified similarly as to the events leading up to the shooting. As Bryson reached behind his back, Hogan pulled out the gun and shot at Bryson until he emptied the gun. Bryson sustained two fatal gunshot wounds to the back.

Evidence exists which shows Hogan had had differences with Bryson. Hogan s demand for Bryson to let go of JoAnn after Bryson grabbed JoAnn s buttocks tends to show that Hogan sought an explanation or discussion with Bryson while unlawfully carrying a handgun. Thus, the trial court properly submitted the issue to the jury. Hogan s fourth issue is overruled.

Ineffective Assistance of Counsel

In his last two issues, Hogan argues he was denied effective assistance of counsel because his trial counsel failed to object to the State s cross-examination of Hogan regarding the facts of an extraneous offense and failed to request a limiting instruction for the same offense.

In assessing the effectiveness of counsel, whether in the guilt/innocence or punishment phase, we apply the test set forth by the Supreme Court in Strickland v. Washington. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Ex parte Jarrett, 891 S.W.2d 935, 938 (Tex. Crim. App. 1994). Strickland requires us to determine whether:

1. Counsel's performance was deficient; and if so,

2. Whether there is a reasonable probability the results would have been different but for counsel's deficient performance.

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This two-pronged test is the benchmark for judging whether counsel s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a reliable result. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex. Crim. App. 1999).

Recently, the Court of Criminal Appeals has reminded us that under Strickland, the defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Bone v. State, No. 0473-00, slip op. at 13 (Tex. Crim. App. June 19, 2002). Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel s representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel s conduct was reasonable and professional. Id. at 7. Not only does Strickland require proof of professional incompetence but also requires proof of prejudice. Id. at 14. The failure to make any effort to prove prejudice for counsel s allegedly deficient performance precludes relief. Ladd v. State, 3 S.W.3d 547, 570 (Tex. Crim. App. 1999).

Hogan testified during guilt/innocence. He admitted that he had been previously convicted of unlawfully carrying a weapon on a licensed premises. No limiting instructions were requested. When Hogan denied actually having a gun in the licensed premises, the State introduced a judgment revoking Hogan s probation on the offense and his statement admitting that he had a gun in his waistband. The State read part of the statement and questioned Hogan about his truthfulness to the jury. Hogan then wanted the entire statement read, and the State obliged him.

Even if these omissions by counsel made his performance so deficient that the first prong of Strickland is satisfied, Hogan has failed to make any attempt to show prejudice. Thus, relief is precluded. Issues five and six are overruled.

Conclusion

Having overruled each of Hogan s issues on appeal, the trial court s judgment is affirmed.

TOM GRAY

Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Affirmed

Opinion delivered and filed July 3, 2002

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