Opinion
NO. 01-16-00117-CR
04-17-2018
NEAL EVERETT BLAND, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court Harris County, Texas
Trial Court Case No. 1372425
MEMORANDUM OPINION
A jury convicted appellant, Neal Everett Bland, of capital murder. The State did not seek the death penalty, and thus the trial court assessed a mandatory sentence of life imprisonment without parole. Appellant raises three points of error on appeal. In his first point of error, appellant contends that the trial court abused its discretion in denying his motion to suppress and allowing his statement to police to be introduced at trial. In his second point of error, he argues that the evidence was insufficient to support his conviction for capital murder. In his third point of error, appellant asserts that trial counsel rendered ineffective assistance of counsel. We affirm.
See TEX. PENAL CODE ANN. § 12.31(a)(2) (West Supp. 2015).
Background
On the morning of December 21, 2012, Godwin Mathew picked up Joshua Woods so they could go to Willowbrook Mall and purchase several pairs of limited release Air Jordan Retro 11 shoes. After they made their purchases and were exiting the mall, a young man approached them and asked to buy one of their pairs of shoes. Mathew quoted a price but the man declined to buy them. When they got back in the car, Woods got in the passenger seat and Mathew drove them back to his house.
When Mathew and Woods arrived at Mathew's house, Mathew parked his car in front, took a pair of shoes out of the car, and left the engine running while Woods remained in the car. When he realized that he did not have his house keys with him he turned back toward the car to get them. As he was returning to his car, another car pulled up in front of his car, and a young man jumped out of the rear driver's side, pulled out a gun, and told Mathew "[g]ive up the shoes." Mathew testified that Woods, who had already moved into the driver's seat because he was going to drive Mathew to work, began moving the car forward. Mathew testified that the robber started shooting at the car when another man opened his car door and began firing a gun. Mathew ran across the street to a neighbor's backyard and told them to call the police. When Mathew returned to his car, he found Woods unresponsive and slumped over the steering wheel with his face covered in blood. Woods was transported to the hospital and later pronounced dead.
Kegan Arrington testified at appellant's trial. He stated that on the morning of December 21, 2012, he and Anthony Wade, Daron Taylor, and appellant drove to Northline Mall to purchase shoes. Arrington testified that Wade drove them in Taylor's car to the mall, and that afterwards they went to Willowbrook Mall in Tra Veon Royston's car where Wade approached two individuals, later identified as Mathew and Woods, about buying some shoes. After they were unable to agree on a price, Wade came up with the plan to take Woods's and Mathew's shoes, and followed Mathew's car as they left the mall. Wade was the driver, Arrington sat in the passenger seat, Taylor sat in the rear passenger-side seat, and appellant sat in the rear driver-side seat.
Arrington testified that Taylor and appellant had guns in their possession. Arrington had sold a 9-millimeter gun to Taylor the previous day and a 40-caliber pistol with a fully loaded clip to appellant on the way to the mall. Arrington testified that Wade instructed Taylor and appellant what to do. When they pulled up in front of Mathew's car, appellant got out of Wade's car with his gun, demanded the shoes from Mathew, and began firing at Woods. Arrington testified that Taylor then opened the rear passenger door and began firing his gun. Appellant ran back to the car and the four men drove off. Arrington testified that after they left the scene, appellant realized that the laser on his gun had fallen off. When appellant took the clip out of his gun, he saw that it was empty. Police arrested Arrington later that day. Arrington told the officers that appellant was the first person to begin shooting at Mathew's car.
Detective Juan Viramontes of the Harris County Sheriff's Office, the lead investigator on the case, learned that an individual had been detained who might have information linked to the case. Deputy Viramontes spoke to Arrington and Royston and then obtained an arrest warrant for appellant. The Gulf Coast Violent Offenders Task Force executed the arrest warrant on December 28, 2012, and took appellant into custody. Detective Viramontes interviewed appellant at the homicide office of the Harris County Sheriff's Office. During the interview, appellant admitted that he was one of the individuals in the car, that he knew a robbery was going to take place, that he had purchased a gun from Arrington, and that he fired shots in Woods's direction, but denied that he was the initial shooter.
Appellant was subsequently charged with capital murder. Trial counsel filed a motion to suppress appellant's statement made to Detective Viramontes. The trial court held a hearing and denied appellant's motion. The case proceeded to trial. The jury subsequently found appellant guilty of capital murder as charged in the indictment, and the trial court assessed punishment at life imprisonment without parole. Appellant timely filed his notice of appeal.
Motion to Suppress
In his first point of error, appellant contends that the trial court abused its discretion in denying his motion to suppress his videotaped custodial statement to police because the statement was not voluntarily given and was a product of coercion and undue influence.
A. Standard of Review
We review a trial court's denial of a motion to suppress under a bifurcated standard of review. Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010). We review the trial court's factual findings for an abuse of discretion, but review the trial court's application of law to the facts de novo. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013). When supported by the record, the trial judge's determination of historical facts are afforded almost total deference. Gonzales v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012). Almost total deference is also afforded to a trial judge's ruling on mixed questions of law and fact that depend upon an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, when mixed questions of law and fact do not depend on an evaluation of credibility and demeanor, we review the trial judge's ruling de novo. Gonzales, 369 S.W.3d at 854. "[C]ourts afford the prevailing party 'the strongest legitimate view of the evidence and all reasonable inferences that may be drawn from that evidence.'" State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011).
In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000). Accordingly, the judge may believe or disbelieve all or any part of a witness's testimony. Id. This is so because it is the trial court that observes firsthand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record. Id. When, as here, the trial court makes findings of fact with its ruling on a motion to suppress, we do not engage in our own fact-finding mission, but instead determine whether the trial court's findings were reasonable in light of the evidence presented. Hereford v. State, 339 S.W.3d 111, 118 (Tex. Crim. App. 2011). If these findings are reasonable, we must defer to the trial court. Id.
B. Applicable Law
Article 38.21 of the Code of Criminal Procedure provides that "[a] statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed." TEX. CRIM. PROC. CODE ANN. art. 38.21 (West 2012). A statement may be deemed involuntary in three circumstances: (1) noncompliance with Code of Criminal Procedure article 38.22; (2) noncompliance with the dictates of Miranda; or (3) a violation of due process or due course of law because the statement was not freely given (e.g., coercion, improper influences, incompetence). Moore v. State, 233 S.W.3d 32, 44 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Wolfe v. State, 917 S.W.2d 270, 282 (Tex. Crim. App. 1996)).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
In determining the question of voluntariness, a court should consider the totality of circumstances under which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex. Crim. App. 1997). The ultimate question is whether the defendant's will was overborne. Id. at 856. A defendant's will may be "overborne" if the record shows that there was "official, coercive conduct of such a nature" that a statement from the defendant was "unlikely to have been the product of an essentially free and unconstrained choice by its maker." Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995); Miller v. State, 312 S.W.3d 162, 167 (Tex. App.—Fort Worth 2010, no pet.).
C. Suppression Hearing
Outside the presence of the jury, the trial court held a hearing on appellant's motion to suppress his custodial statement. Trial counsel called Tyler Johnson, Tyric Mitchell, and appellant to testify.
Johnson testified that he, appellant, appellant's cousin "Ty," and Usavius Austin, were asleep in appellant's bedroom on the morning of December 28, 2012, when six or seven police officers burst into appellant's room. Johnson testified that the officers threatened appellant, saying "no matter what he tells them, they [are] going to make sure he never sees daylight again; they're going to hide him in the jail, make sure he spends the rest of life in prison." Johnson further testified that two of the officers hit appellant on the right side of his head and in the face with their fists at least ten times while another officer was trying to handcuff him. Johnson stated that appellant did not threaten the officers but only asked them if he could put some socks on because he was not wearing shoes. Johnson testified that appellant did not have the chance to put socks on or get dressed. Johnson thought he saw a little blood on appellant's mouth as if his lip had been busted. Johnson testified that appellant was cooperative when the officers were asking him questions and that he did not struggle or resist the officers. Johnson stated that the officers did not beat, threaten, or handcuff him, Ty, or Austin. He stated that the officers were in appellant's room for about ten or fifteen minutes before they took him to the police car.
Mitchell, appellant's cousin, testified that when the officers entered appellant's bedroom, appellant asked the officers if he could put his socks on and the officers said that he could. Mitchell stated that one of the officers grabbed him by the neck and pushed him into a corner. According to Mitchell, four officers tackled appellant and one of them hit appellant on the right side of his face. Mitchell testified that when the officer swung at appellant, one of the other officers turned Mitchell's head to the corner. Mitchell stated that the only thing he remembered the officers telling appellant was to move his arm from behind his back or they would break it. Mitchell testified that appellant did not resist or talk back to the officers, or attempt to escape. Mitchell did not see any marks, bruises, or blood on appellant's face after the officer struck him. Mitchell testified that he, Ty, and Austin were handcuffed before officers took them outside.
Appellant testified that Ty, Johnson, and Austin, were spending the night at his house when six police officers entered his bedroom, bum-rushed him, and pushed him up against a wall. Appellant stated that one of the officers hit him a couple of times, and that the officers told him that he would never be home or see his family again and that he believed them. Appellant stated that as a result of being hit, he received some scratches on his back and his neck and that he was bleeding near his mouth. Appellant testified that he did not resist, talk back to, or try to run away from the officers. Appellant further testified that, while he was being transported to the police station, the officer told him that he better tell them something or he would never see his family again. Appellant testified that he believed the officers when they told him that he had to tell them something and that he was scared.
Appellant further testified that when he arrived at the police station, he was taken to a small room where he sat for hours. Two officers later entered the room and asked him whether he wanted to make a statement and appellant responded that he did. Appellant testified that the officers read him his rights before he made a statement, and that he decided to give a statement because he was scared by the officers' threat to him that he would not see his family. Appellant stated that he was dressed in a muscle shirt, shorts, and one sock at the time when he arrived at the police station. Appellant testified that the officers showed him a paper that Arrington wrote and signed. Appellant stated that he would not have given his statement to police if he had not been threatened or assaulted. Appellant did not tell the officers that he had been hit and did not ask for medical attention. Appellant stated that his booking photo would not show the blood on his lip because he cleaned it off before it was taken. Appellant stated that he told the officers in the room that he was cold and that they told him they would bring him something but they never did. Appellant stated that the officers did not promise him anything in exchange for his statement.
Deputy Sheriff David Crain, the team leader of the Gulf Coast Violent Offender Task Force, was assigned to execute the felony warrant and apprehend appellant. Upon entering appellant's room, Deputy Crain pinned Mitchell against the wall while the other officers attempted to handcuff appellant and take him into custody. Deputy Crain testified that the officers had some difficulty arresting appellant because he refused to comply with the officers' orders. Deputy Crain testified that he did not touch or threaten appellant. He further testified that he did not see any of the other officers strike appellant or hear them threaten appellant. Deputy Crain testified that the two individuals on the bed told appellant to comply and stop struggling with the officers. He stated that no use-of-force reports had to be completed in this case.
Task Force Officer James Drury was one of the officers assigned to take appellant into custody. He testified that when he and the other officers entered appellant's room, appellant initially complied with Officer Drury's command to put his hands up but then dropped his hands and turned around "kind of in a disgusted manner." Officer Drury stated that as appellant turned away from him, he began reaching down toward the foot of his bed. Officer Drury testified that he then grabbed appellant's arms to prevent his movement and that appellant put up a "pretty good little wrestle." Officer Drury and another officer put appellant on the ground and handcuffed him. He testified that neither he nor any of the other officers struck or threatened appellant.
Detective Viramontes testified that he read appellant his rights prior to questioning him on December 28, 2012. Detective Viramontes testified that appellant did not appear to be injured and that appellant did not tell him that the other officers had struck him or ask for medical assistance. He further testified that he did not promise anything to appellant in exchange for appellant's statement, and that he did not refuse to give food or drink to appellant. Detective Viramontes stated that appellant did not indicate to him that he was providing a statement because he was scared or injured. Detective Viramontes testified that appellant was left in an interview room for approximately four hours before he and another officer spoke with him. At the conclusion of the hearing, trial counsel argued that the officers' use of physical force and threats made to appellant constituted coercive conduct which rendered his statement to police involuntary. The trial court denied appellant's motion to suppress.
After the jury began its deliberations, the trial court made the following findings of fact:
Based on allegations that it was involuntary, I make the following findings of fact. As I stated earlier, I find that the State's witnesses, the officers who testified were credible and the defense witnesses were not. Specifically, the defense witnesses' testimony was
inconsistent with each other. They were also inconsistent with some of the later testimony that was given in front of the jury. It was also inconsistent with the physical evidence that was offered by the State, being the defendant's booking photo and the videotaped statement did not show any signs of obvious or recent injuries.
I find that the statement was freely and voluntarily given without the fear of threat, undue influence, or compulsion.
I also find, although I wasn't asked to rule on this, that his statutory warnings were given to him and he indicated that he understood the warnings. In addition, he in no way indicated to the officer either that he didn't understand his warnings or that his statement was anything other than freely and voluntarily given. He certainly made no complaints about any threats or physical injury that he sustained.
D. Analysis
Appellant contends that his statement to police was not voluntary because the police officers physically assaulted and threatened him. He asserts that despite the fact that the defense witnesses' testimony was inconsistent with regard to the number of times the officers hit appellant, they all testified that appellant was physically assaulted. He also points to the officers' testimony that they used their bodies to get appellant under control and that there was "a good little wrestle" during appellant's arrest. Appellant also takes issue with the trial court's finding that appellant's booking photo and videotaped statement did not show any injuries to appellant. He argues that the photo was taken after appellant's arrest so he would have had the opportunity to wipe any blood from his face, and the videotape does not show a close-up of appellant's face so it would not have been possible to see whether appellant had any bruising or marks.
As the sole trier of fact and judge of the credibility of the witnesses, the trial court was entitled to believe or disbelieve all or any part of the witnesses' testimony. Ross, 32 S.W.3d at 855. Deputy Crain and Officer Drury testified that appellant was not physically assaulted or threatened while being arrested and taken into custody. The court also heard undisputed testimony that appellant did not complain at any time about having been hit or threatened by officers while in custody. The trial court chose to believe the officers' testimony and disbelieve the defense witnesses' testimony. Those findings are reasonable in light of the evidence presented, and therefore, we defer to this assessment of the testimony. Hereford, 339 S.W.3d at 118; Coleman, 440 S.W.3d 218, 224 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
Appellant also contends that "[h]e was denied food, warm clothing, and contact with his family for a period of four hours" while being questioned, and that these conditions rendered his videotaped statement involuntary. Specifically, he complains that he was only wearing a muscle shirt, shorts, and one sock when he was arrested and held in custody in December, and that although he told Detective Viramontes that he was cold on two separate occasions and the detective told him that he would get him something, he was never given anything.
The record reflects that appellant stated twice during the interview that he was cold, and Detective Viramontes told appellant that he would get him something in a moment but that they needed to continue the interview. Detective Viramontes testified that he did not want to stop the interview because "we were getting to where I wanted him to get and I just didn't want to interrupt it." After stating that he was cold, appellant continued to talk at length with Detective Viramontes and did not indicate that he did not want to answer any more questions. The interview lasted no more than an hour. Both Detective Viramontes and appellant testified that appellant never asked for food or drink at any time while in custody, and Detective Viramontes stated that he never denied either to appellant. We hold the trial court did not abuse its discretion by finding that the conditions under which appellant was questioned did not render his videotaped statement involuntary. See Smith v. State, 779 S.W.2d 417, 428 (Tex. Crim. App. 1989) (holding that eight hours of questioning without food did not render confession involuntary); Bell v. State, 169 S.W.3d 384, 391-92 (Tex. App.—Fort Worth 2005, pet. ref'd) (holding that eight hours of questioning, while in handcuffs and leg shackles, did not render confession involuntary where defendant never indicated he did not want to answer any more questions or that he wanted to speak to attorney, and never requested food, water, or bathroom breaks); see also Miller, 312 S.W.3d at 167 (holding trial court did not err in finding defendant's statement voluntary while in detention where trial court heard conflicting evidence regarding whether defendant was kept in cold cell for hours without blanket, food, or water); Stewart v. State, No. 04-08-00274-CR, 2009 WL 2183397, at *6 (Tex. App.—San Antonio July 21, 2009, pet. ref'd) (mem. op., not designated for publication) (holding trial court did not err by finding oral statements voluntarily given where trial court heard conflicting evidence concerning defendant's alleged deprivation of food, water, medication, and bathroom access over course of twelve hours).
Having considered the totality of the circumstances under which appellant's statement was obtained, we do not find that appellant's will was overborne, and we find that his statement was voluntary. See Creager, 952 S.W.2d at 855-56. Accordingly, we overrule his first point of error.
Sufficiency of the Evidence
In his second point of error, appellant argues that the evidence was insufficient to support his conviction for capital murder. Specifically, he argues that the evidence does not support a finding that he intended to kill Woods.
A. Standard of Review
We review appellant's challenge to the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. The jury is the sole judge of the credibility of witnesses and the weight to give testimony, and our role on appeal is simply to ensure that the evidence reasonably supports the jury's verdict. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). Inconsistencies in the evidence are resolved in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
Appellant frames his complaint as a challenge to the factual sufficiency of the evidence. In Brooks v. State, the Texas Court of Criminal Appeals determined that a legal sufficiency standard of review is "indistinguishable" from a factual sufficiency standard of review. 323 S.W.3d 893, 901 (Tex. Crim. App. 2010).
B. Applicable Law
A person commits murder if he intentionally or knowingly causes the death of an individual. TEX. PENAL CODE ANN. § 19.02 (b)(1) (West 2011). A person commits capital murder if he commits murder as defined under section 19.02(b)(1) and intentionally commits that murder in the course of committing or attempting to commit robbery. See id. § 19.03(a)(2).
A person commits robbery if, in the course of committing theft, as defined in Chapter 31 and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another, or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a) (West 2011). "Theft" is the unlawful appropriation of property with intent to deprive the owner of property. See id. § 31.03 (West 2011).
In determining whether the evidence is sufficient to prove an intent to cause death, the jury can use common sense and may apply common knowledge and experience. See Galvan-Cerna v. State, 509 S.W.3d 398, 404 (Tex. App.—Houston [1st Dist.] 2014, no pet.). The jury may infer intent to kill from any evidence that it believes proves the existence of that intent. Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003). A person's acts, words, and conduct are generally reliable circumstantial evidence of one's intent. See Laster v. State, 275 S.W.3d 517, 524 (Tex. Crim. App. 2009). The jury may also infer intent to kill from the use of a deadly weapon, unless it would be unreasonable to infer that death or seriously bodily injury could result from the particular use of the weapon. See Brown, 122 S.W.3d at 800-01.
C. Analysis
Appellant contends that the evidence is insufficient to support his conviction for capital murder because the evidence was contradictory as to whether he had an intent to kill.
The evidence at trial established that when the four men left the mall to follow Woods and Mathew, appellant was sitting in the rear driver-side seat. Arrington testified that when they pulled up in front of Mathew's car, appellant got out of the car with his gun, demanded the shoes from Mathew, and subsequently began firing at Woods. Arrington further testified that after they fled the scene, appellant checked his gun and that the magazine appeared empty. Matthew testified that the first robber got out of the rear driver-side seat and demanded Mathew's shoes. When Woods moved the car forward, the robber began shooting at the car. Woods died from a gunshot wound to his head, and Matthew's vehicle, from which Woods was pulled, was riddled with bullet holes. The evidence shows that 9-millimeter and 40-caliber shell casings were recovered from a large area on and near the street where the incident took place, and that the vast majority of the casings were 40-calliber casings.
Based on this evidence, the jury could have inferred that appellant intended to kill Woods in the course of attempting to rob Mathew of his shoes. Brown, 122 S.W.3d at 800-01 (noting jury may infer intent to kill from any evidence that it believes proves existence of that intent, including use of deadly weapon). Further, a person acts intentionally with regard to his conduct "or to the result of his conduct" when it is his conscious objective to engage in the conduct "or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (West 2011). The evidence, from both witnesses and appellant himself, is undisputed that appellant consciously engaged in the conduct of shooting his pistol at Woods, conduct resulting in Woods's death. Since he voluntarily and consciously engaged in the conduct, he is responsible for the result.
After viewing the evidence in the light most favorable to the verdict, we hold that the evidence is sufficient to support appellant's conviction for capital murder. Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. We therefore overrule appellant's second point of error.
Ineffective Assistance of Counsel
In his third point of error, appellant asserts that his trial attorney rendered ineffective assistance of counsel. Specifically, he argues that his trial counsel was ineffective when he (1) failed to object when the State requested to take a witness out of order and (2) contradicted appellant's statement that he was not the initial shooter.
A. Standard of Review
The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052 (1984). Under the Strickland two-step analysis, a defendant must demonstrate that (1) his counsel's performance fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687-88, 694, 104 S. Ct. at 2064, 2068; Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.
An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. When the record is silent, we may not speculate to find trial counsel ineffective. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). In reviewing counsel's performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that counsel's performance is within a wide range of reasonable professional assistance and trial strategy. See Robertson v. State, 187 S.W.3d 475, 482-83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d at 813. We will find a counsel's performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. "When handed the task of determining the validity of a defendant's claim of ineffective assistance of counsel, any judicial review must be highly deferential to trial counsel and avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984)).
B. Analysis
On the second day of testimony, the State presented four witnesses, the last of whom was Arrington. After the State passed Arrington as a witness, trial counsel began its cross-examination. The trial court later interrupted the questioning to recess trial until the next day because it was past 6:00 p.m. The next morning, the trial court informed the jury that a witness would be called out of order due to a scheduling issue, and the State briefly examined another witness. Afterwards, the trial court announced that Arrington was available to take the stand, but his attorney was not present. The State then asked trial counsel if it could continue with another witness until Arrington's counsel arrived, to which trial counsel responded, "I don't care." During the State's examination of the second witness, the trial court interrupted the questioning so that trial counsel could resume his cross-examination of Arrington.
Appellant complains that he received ineffective assistance of counsel when trial counsel failed to object to the State's request to take a witness out of order. He argues that allowing two minor witnesses to take the stand before trial counsel continued his cross-examination of Arrington, one of the State's primary witnesses, hindered the strength of the defense's cross-examination, might have confused the jury, and allowed the State an opportunity to coach Arrington before cross-examination resumed. Appellant has not directed us to any authority to support appellant's contention that trial counsel's failure to object under these circumstances fell below an objective standard of reasonableness. Further, trial counsel conducted a thorough voir dire, cross-examined the prosecution witnesses developing reasonable doubt where he could, and argued that the State had failed to prove that appellant intended to kill Woods. Trial counsel's conduct was not so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101. Further, appellant has not shown that a different result would have occurred if the witnesses had not been taken out of order. Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101-02.
Appellant also argues that counsel was ineffective because he contradicted appellant's statement to police and placed appellant as the initial shooter. He asserts that, without this error, all of the other evidence would have only shown that appellant was near the area when the murder occurred, possessed a gun, and was with several other people. This assertion is not supported by the record.
Arrington testified that appellant was sitting in the rear driver-side seat when their car pulled up in front of Mathew's car. He testified that appellant got out of the car with his gun, demanded the shoes from Mathew, and began firing at Woods. Mathew also testified that the initial shooter emerged from the rear driver-side door, pulled out a gun and demanded Mathew's shoes, and began shooting at his car when Woods moved it forward. Trial counsel did not assert that appellant was not the first shooter. Rather, faced with the formidable evidence against appellant, he argued in closing that although appellant committed an act clearly dangerous to human life, the evidence did not reflect an intent to kill. He stated that appellant stood in the driveway and demanded the shoes from Mathew, and that he only began shooting when Woods began driving the car toward him. He argued that appellant fired fourteen shots at the car in a panicked attempt to stop the car from moving. He urged the jury to find appellant guilty of felony murder, which carries a punishment range of five to 99 years' confinement, see TEX. PEN. CODE ANN. §§ 12.32, 19.02(c), rather than capital murder, which would result in life imprisonment without parole. Id. § 12.31(a)(2). Trial counsel's argument was an effort to reduce the charge to one to which appellant was exposed and was not ineffective. See Strickland, 466 U.S. at 668; see also Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) ("A vague, inarticulate sense that counsel could have provided a better defense is not a legal basis for finding counsel constitutionally incompetent. . . . [A] defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission."); Burke v. State, No. 13-13-00520-CR, 2015 WL 1869417, at *5 (Tex. App.—Corpus Christi Apr. 23, 2015, no pet.) (mem. op., not designated for publication) (concluding that trial counsel's acknowledgement that his client should be punished was argument for leniency, not for harsher punishment, and did not constitute ineffective assistance of counsel). Moreover, appellant has not shown that a different result would have occurred but for trial counsel's conduct. Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068; Andrews, 159 S.W.3d at 101-02.
Because appellant has neither shown that his counsel's representation fell below an objective standard of reasonableness nor that there is a reasonable probability that, but for counsel's alleged deficiency, the result of the proceeding would have been different, we overrule appellant's third point of error.
Conclusion
We affirm the trial court's judgment.
Russell Lloyd
Justice Panel consists of Justices Higley, Massengale, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).