Opinion
No. 05-05-01674-CR
Opinion Filed November 9, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F05-01453-RI. Affirmed.
Before Justices WRIGHT, O'NEILL, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Breyon Donte Davis was convicted of second degree manslaughter and sentenced to twenty years' confinement and a $10,000 fine. In his sole issue, Davis contends defense counsel was ineffective because he acted as an advocate for the State when he asked the jury to convict him of manslaughter rather than murder. We affirm. The facts of this case are undisputed. On March 21, 2005, Davis and his cousin were walking down the street when they slowed down to look inside of Brandy Emerson's car, which was parked in front of the home she shared with Greg Friend and Lonnie Strauser. She told the men to move along because "there's nothing in it." The men yelled obscenities back to her, which attracted the attention of Greg, who went outside to confront the men. Brandy briefly went back inside. When she looked out again, she saw Greg laying on the ground. She then saw Davis kick him, take his wallet, and run down the street. Lonnie chased the men, but was unable to catch them. He later gave the police their description. After talking to people in the area, the police located Davis at his home. He admitted to getting into a confrontation with Greg, and in his written statement to police stated "A man said me and my cousin tried to stolen his car, and he started talking trash, so me and he started beating him up. I took the wallet." He also took police to the trash can where he dumped Greg's wallet. Four days later, police arrested Davis and charged him with murder after Greg died from blunt force trauma head injuries. A jury convicted Davis of second degree manslaughter and sentenced him to twenty years' confinement and a $10,000 fine. This appeal followed. In a single issue, Davis argues his defense counsel was ineffective because he acted as an advocate for the State when he "strenuously argued" for the lesser-included offense of manslaughter rather than murder. The State responds that the record fails to affirmatively show that counsel acted ineffectively. Further, it contends that minimizing appellant's liability and punishment was sound trial strategy. To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record that provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Likewise, without evidence of counsel's trial strategy, the reviewing court will presume sound trial strategy. Thompson, 9 S.W.3d at 814; see also Rylander, 101 S.W.3d at 111 (Tex.Crim.App. 2003). As the Supreme Court of Texas stated in Andrews v. State, "we commonly assume a strategic motive if any can be imagined and find counsel's performance deficient only if the conduct was so outrageous that no competent attorney would have engaged in it." Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. 2002). Here, although Davis filed a motion for new trial, it was nothing more than a form motion arguing against the sufficiency of the evidence. There was no hearing on the motion, and no evidence of defense counsel's possible strategies for arguing for the lesser-included offense. Thus, there is no evidence rebutting the presumption that counsel acted pursuant to sound trial strategy. Without being afforded the opportunity to explain his strategies, we refuse to denounce defense counsel as ineffective. Further, Davis has failed to meet the first Strickland prong, which addresses whether counsel's conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 689. Part of this "range of reasonable assistance" is the possibility that counsel's actions could be viewed as sound trial strategy. Id.; Jackson v. State, 877 S.W.2d 768, 770 (Tex.Crim.App. 1994). Davis alleges his counsel sought a guilty verdict against him when he asked the jury to return a conviction of manslaughter instead of murder. Based on the evidence and Davis's admissions to police, it was not ineffective for defense counsel to minimize Davis's liability to the jury in an attempt to save him from a more severe punishment. Under these circumstances, a strategy of "damage control" was not objectively unreasonable. Dannhaus v. State, 928 S.W.2d 81, 87 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) (recognizing that in light of the strong evidence of guilt, counsel's strategy was apparently to seek a conviction of a lesser offense requiring a lesser culpable mental state). The Texas Court of Criminal Appeals reached a similar conclusion in Hathorn v. State when it held that because of the overwhelming strength of the State's murder case, it was sound trial strategy for defense counsel to concede guilt in an attempt to persuade the jury to find appellant guilty of a lessor offense. Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Crim.App. 1992); Belton v. State, 900 S.W.2d 886, 901 (Tex.App.-El Paso 1995, pet. ref'd) (holding that requesting the jury to find appellant guilty of a lesser-included offense can be sound trial strategy, particularly when the evidence overwhelmingly supports the State). Therefore, Davis has failed to overcome the strong presumption that defense counsel acted reasonably by using sound trial strategy. We overrule appellant's sole issue and uphold the trial court's judgment.
Davis attempts to distinguish Hathorn from the present facts because the attorney was trying to save his client from the death penalty, but we find such a distinction untenable. Although this is a factual distinction, it is not a legal distinction that alters the holding that it is sound trial strategy for an attorney to argue for a lesser-included offense when the State presents overwhelming evidence of guilt. Hathorn, 848 S.W.2d at 118.