Opinion
No. 01-06-00891-CR
Opinion filed January 31, 2008. DO NOT PUBLISH. See Tex. R. App. P. 47.2(b).
On Appeal from the 208th District Court Harris County, Texas, Trial Court Cause No. 1026042.
Panel consists of Justices Nuchia, Hanks, Higley.
MEMORANDUM OPINION
A jury found appellant, Paul Hwaikuo Lin, guilty of murder and assessed punishment at confinement for 15 years and a fine of $10,000. Appellant asserts six issues on appeal, arguing that: (1) the evidence is factually insufficient to support the verdict and the jury's implied finding against his self-defense theory; (2) the jury instruction on self-defense was fundamentally defective; (3) the trial court erred in allowing the State to make an improper argument; (4) he was denied the effective assistance of counsel at the guilt-innocence stage; (5) he was denied the effective assistance of counsel at the punishment stage; and (6) the evidence is factually insufficient to support the jury's answer to the special issue that he did not act under the immediate influence of sudden passion arising from an adequate cause. We affirm.
TEX. PEN. CODE ANN. § 19.02(b) (Vernon 2003).
Background
At around midnight, February 12, 2005, Martin Ma, Henry Tran, and Tan Ma went to a club in downtown Houston. While at the club, Martin saw his friend, Vinh Tran, who joined them for a short time. Martin testified that, as he, Tan, and Henry left the club and began walking toward their car, Martin saw Dexter Mercado talking to someone inside a car. Dexter had confronted Martin at another club a few weeks earlier. Martin approached and shattered a beer bottle on the side of Dexter's face. A fistfight ensued between Martin and Dexter, and Martin testified that some of his friends joined the fight. At the time Dexter was attacked by Martin, Tony Nguyen and the appellant were inside the car. Tony remained inside the car, but appellant retrieved his gun from the glove compartment and stepped out. As he got out of the car, appellant was hit in the face. Appellant and Tony testified that appellant was knocked to the ground, where several guys began kicking him. Henry, however, stated that he fought with a male who got out of the car, but the person never fell to the ground. Several witnesses testified that they then heard gunshots. Appellant testified that he feared he was in danger of severe bodily injury or death and shot three times at the person closest to him. Appellant then returned to the car, and he and Tony drove away. As they drove, appellant stated that he "had to put two in him," which Tony understood as meaning appellant had shot someone. It was later determined that Vinh had been shot. The medical examiner, Anna Lopez, M.D., testified that Vinh had three gunshot wounds, one to the right side of the chest and one to the forearm showing upward bullet trajectory, and one to the left side of the chest showing downward trajectory. Dr. Lopez stated that Vinh died from the gunshot wound to the right side of his chest. Despite his assertion of self-defense, the jury found appellant guilty of murder. At punishment, a special issue was submitted, asking whether appellant caused Vinh's death under the immediate influence of sudden passion arising from an adequate cause. The jury returned a negative answer as to the special issue and assessed punishment at 15 years confinement and a fine of $10,000. Appellant now appeals.Factual Sufficiency
In his first issue, appellant argues that the evidence is factually insufficient to support the verdict that he committed murder and did not act in self-defense. Similarly, in his sixth issue, appellant contends that the evidence is factually insufficient to support the answer to the special issue that he did not act under the immediate influence of sudden passion arising from an adequate cause.Standard of Review
When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Cain v. State, 958 S.W.2d 404, 408 (Tex.Crim.App. 1997). We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the proof of guilt is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we also cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. In our factual-sufficiency review, we must also discuss the evidence that, according to appellant, most undermines the jury's verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Additionally, an appellate court may properly conduct a factual sufficiency review of the jury's negative finding on the sudden passion issue in the punishment stage of trial. Cleveland v. State, 177 S.W.3d 374, 390 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). The fact-finder alone determines the weight to be given contradictory testimonial evidence because that determination depends on the fact-finder's evaluation of credibility and demeanor. Cain, 958 S.W.2d at 408-09. As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented. Id. at 407 n. 5. This standard of review applies to both direct and circumstantial evidence cases. King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000).Self-Defense
A person commits the offense of murder if he intentionally or knowingly causes the death of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. TEX. PEN. CODE ANN. § 19.02(b)(1)-(2). However, a person is generally justified in using deadly force against another if he reasonably believes that deadly force was necessary to protect himself against the other's use or attempted use of unlawful deadly force and a reasonable person in the actor's situation would not have retreated. TEX. PEN. CODE ANN. §§ 9.31(a), 9.32(a) (Vernon Supp. 2007). 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). Once the defendant produces some evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. A determination of guilt by the fact-finder implies a finding against the defensive theory. Id. Thus, to convict a defendant of murder after he has raised the issue of self-defense, the State is required to prove the elements of the offense beyond a reasonable doubt and to persuade the jury beyond a reasonable doubt that the defendant did not kill in self-defense. Id. Self-defense is a fact issue to be determined by the jury, which is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App. 1991). We begin by discussing the evidence which appellant contends supports his claim of self-defense and undermines the jury's verdict. He notes that Martin and Henry testified that they heard gunshots, but do not know who fired the shots, or where Vinh was at the time of the shooting. Appellant also points out that Officer Paulino Zavala testified that he heard three gunshots, but does not know why they were fired. Appellant asserts that, while these witnesses do not know the circumstances surrounding the shootings, he and Tony testified that he was knocked to the ground after leaving the car and surrounded by several men who kicked him. Appellant stated that, because he felt he was in danger and had no way of retreat, he fired three shots at the person closest to him. Additionally, appellant draws our attention to Dr. Lopez's testimony that Vinh's gunshot wounds showing upward trajectory were consistent with a shooter who was lying on the ground, and the gunshot wound with downward trajectory could be explained by Vinh leaning forward. In considering this evidence, along with all the evidence, in a neutral light, we hold that the evidence is factually sufficient to support the jury's verdict and rejection of appellant's theory of self-defense. Martin may not know exactly who fired the gun, but he testified that he saw the silhouette of someone tall fire the gun and then come toward him. Henry testified that he fought with a male who got out of the car, but he did not knock the person to the ground. While Officer Zavala stated that it was three gunshots that initially got his attention, and he further testified that after he looked in the direction of the first gunshot, he saw a person standing in a strong-arm position fire twice, apparently clear the gun after it jammed and then fire another two times before entering a car and leaving. Furthermore, while Dr. Lopez agreed that Vinh's gunshot wounds could be consistent with a shooter who had been lying on the ground and most likely indicated the direction the gun was pointing when fired, she also testified that she could not definitively state where the shooter was or how the gun was aimed. We conclude that the evidence is neither so weak that it undermines confidence in the jury's finding of guilt and implied finding against appellant's theory of self-defense, nor is appellant's evidence of such great weight and preponderance that the State's burden to prove murder beyond a reasonable doubt was not met. See McClesky v. State, 224 S.W.3d 405, 411 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Appellant's first issue is overruled.Sudden Passion
Appellant's sixth issue challenges the factual sufficiency of the evidence concerning the jury's negative finding on the special issue of sudden passion during the punishment phase, which appellant had the burden to prove by a preponderance of the evidence. TEX. PEN. CODE ANN. § 19.02(d). At punishment, appellant submitted a special issue to the jury, asking whether he caused Vinh's death "under the immediate influence of sudden passion arising from an adequate cause." Appellant contends that Martin's and his friends' conduct in attacking Dexter constituted sufficient provocation to meet the definition of "sudden passion," regardless of whether Vinh was involved in the attack on Dexter. However, Subsection 19.02(a)(2) defines "sudden passion" as " passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." TEX. PEN. CODE ANN. § 19.02(a)(2) (emphasis added). Here, Dr. Lopez testified that scrapes and lacerations on Vinh's face could not all be caused by his falling to the ground and could be consistent with having been in a fight. However, there is no evidence that shows that Vinh was involved in the attack on Dexter. Furthermore, the only evidence that Vinh was involved in the attack on appellant was appellant's testimony, which the jury was free to disregard. See Johnson, 23 S.W.3d at 6-7. We hold that the jury's negative answer on appellant's special issue is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. See Cleveland, 177 S.W.3d at 390. Appellant's sixth issue is overruled.Jury Instruction
In his second issue, appellant argues that the jury instruction on self-defense was fundamentally defective in failing to authorize him to defend himself against Vinh.Standard of Review
Appellate review of error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). First, we must determine whether error occurred. If we find error, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32. Appellant recognizes that, because his trial counsel failed to object to the charge error, he must show egregious harm to prevail on appeal. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005). Egregious harm is present whenever a reviewing court finds that the case for conviction was actually made clearly and significantly more persuasive by the error. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991).Analysis
The trial court instructed the jury that if,from the words or conduct . . . of Martin Phouc Ma and/or Henry Tuan Tran and/or Tommy Tan Ma and/or other persons with them, it reasonably appeared to the defendant that his life or person was in danger and . . . he shot at Martin Phouc Ma and/or Henry Tuan Tran and/or Tommy Tan Ma and/or other persons with them and hit Vinh Tran, . . . then you should acquit the defendant on the grounds of self-defense.Appellant complains that the trial court did not instruct the jury that he had a right to defend himself against Vinh. Appellant asserts that, because he raised a theory of self-defense against multiple assailants, including Vinh, the trial court erred in failing to instruct the jury on his right to defend himself against Vinh. Appellant directs us to several cases from the Texas Court of Criminal Appeals which determined that the trial court erred in not properly instructing the jury on self-defense where there is evidence of multiple assailants. See Brown v. State, 651 S.W.2d 782, 784 (Tex.Crim.App. 1983); Horn v. State, 647 S.W.2d 283, 285 (Tex.Crim.App. 1983); McCuin v. State, 505 S.W.2d 831, 832 (Tex.Crim.App. 1974). The underlying rationale of these holdings is that the instruction cannot unduly limit the jury in deciding the appellant's right to self-defense where the evidence shows that he was attacked by multiple assailants. Brown, 651 S.W.2d at 784; Horn, 647 S.W.2d at 285; McCuin, 505 S.W.2d at 832. Here, the instruction did not "unduly limit" the jury, but rather, by including the phrase "and/or other persons with them," allowed the jury to find that appellant acted in self-defense against any other persons acting with Martin, Henry, or Tan, which the jury could have determined included Vinh. Therefore, the trial court did not err by failing to instruct the jury that appellant had a right to defend himself against multiple assailants. Appellant also asserts that, regardless of the trial court's addition of the inclusive phrase "and/or other persons with them," by mentioning Martin, Henry, and Tan, but failing to include Vinh, the trial court improperly commented to the jury that Vinh was an innocent bystander, instead of one of the assailants. However, even if the court's instruction improperly suggested that Vinh was an innocent bystander, we hold that no egregious harm to appellant resulted. In examining the record to determine whether jury-charge error is harmful, the reviewing court should consider the entirety of the jury charge itself; the evidence, including the contested issues and weight of the probative evidence; the arguments of counsel; and any other relevant information revealed by the record of the trial as a whole. Ngo v. State, 175 S.W.3d 738, 750 (Tex.Crim.App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). In reviewing the evidence and jury arguments, it is apparent that whether Vinh was an assailant or an innocent bystander was a contested issue. Nevertheless, in examining the charge, the jury was instructed that, if it found that appellant was acting in self-defense when he shot at Martin, Henry, Tommy, or anyone acting with them, and resulted in hitting Vinh, it should acquit appellant. Therefore, the jury's ability to find that appellant acted in self-defense did not turn on whether Vinh was an assailant or an innocent bystander. Therefore, in light of our Almanza harm analysis, we hold that, even if the trial court made an erroneous comment on the weight of the evidence concerning Vinh's assailant/bystander status, no egregious error occurred. See Almanza, 686 S.W.2d at 171. Appellant's second issue is overruled.
Closing Argument
In his third issue, appellant complains that the trial court erred in allowing the State to make an improper jury argument. During closing argument, the State commented that "anything less than a guilty ensures that your children, your spouses —" when defense counsel objected that such an argument improperly asked the jury to put themselves in the victim's or any victim's position. The trial court overruled appellant's objection, and the State continued:Your children, your spouses, your business associates, God forbid they're ever in a parking lot where a fistfight erupts they are to be the victim, and excusable victims, of a self-defense claim because that's what we've got.Appellant contends that this argument dissuaded the jurors from weighing his self-defense claim objectively and denied him trial by an impartial jury. The State argues that, because appellant objected before the State finished the statement, but failed to object afterward, appellant waived any error. Assuming without deciding that appellant preserved his complaint, we hold that the State's complained-of statement is a proper plea for law enforcement.
Standard of Review
It is well established that proper jury argument generally must fall within one of the following categories: (1) summary of the evidence, (2) reasonable deduction from the evidence, (3) response to argument of opposing counsel, and (4) plea for law enforcement. Borjan v. State, 787 S.W.2d 53, 56 (Tex.Crim.App. 1990). To determine whether a party's argument falls within one of these categories, we must consider the argument in light of the record as a whole. Palermo v. State, 992 S.W.2d 691, 696 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). We must consider counsel's remarks during final argument in the context in which they appear. Denison v. State, 651 S.W.2d 754, 761 (Tex.Crim.App. 1983). If a jury argument exceeds the bounds of proper argument, the trial court's erroneous overruling of a defendant's objection is not reversible error unless it affected the appellant's substantial rights. TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex.Crim.App. 2000). In determining whether the appellant's substantial rights were affected, we consider (1) the severity of the misconduct (i.e., the prejudicial effect of the prosecutor's remarks), (2) curative measures, and (3) the certainty of conviction absent the misconduct. Martinez, 17 S.W.3d at 692-93.Analysis
A proper plea for law enforcement may take many forms, one of which is to argue the relationship between the jury's verdict and the deterrence of crime in general. Borjan, 787 S.W.2d at 56. The State may also argue the impact of the jury's verdict on the community. Id. The State may not, however, argue that the community or any particular segment of the community expects or demands either a guilty verdict or a particular punishment. Id. It is also generally improper for the State to ask members of the jury to place themselves in the shoes of the victim. Boyington v. State, 738 S.W.2d 704, 709 (Tex.App.-Houston [1st Dist.] 1985, no pet.). Here, the State appears to have argued that a finding that appellant acted in self-defense would open the door for anyone involved in a fistfight to start shooting, and someone close to the jurors could be a victim of similar self-defense. Such a statement does not ask the jury to put itself in the shoes of the victims, but instead comments on the relationship between the jury's verdict and its impact on the community. Therefore, we hold that the trial court did not err in allowing the State to make the complained-of argument. Appellant's third issue is overruled.Ineffective Assistance of Counsel
In his fourth and fifth issues, appellant argues that he was denied the effective assistance of counsel at both the guilt-innocence and punishment stages of his trial. Specifically, appellant alleges that his counsel was deficient by: ú failing to challenge a biased venireman;
• failing to object that the jury instruction on self-defense failed to authorize appellant to defend himself against an attack by Vinh;
• failing to object to the State's comment during voir dire that a jury instruction on self-defense does not mean that the court believes self-defense is applicable;
• failing to object to the State's repeated use of the word "murder" when speaking about Vinh;
• failing to object to the State's comments that appellant was not justified in using deadly force against a person hitting or kicking him; and
• arguing during the punishment stage that Vinh was an innocent bystander who did not deserve to be shot.
Standard of Review
The standard for evaluating ineffective assistance of counsel claims is set forth in Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); see also Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.). To be entitled to a new trial because his trial counsel was ineffective, appellant must show (1) that counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) that, but for counsel's error, the result of the proceedings would have been different. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. In determining whether the Strickland test has been met, we focus on the totality of the representation afforded and not on individual, alleged errors. See Ex parte Welborn, 785 S.W.2d 391, 393 (Tex.Crim.App. 1990). The appellant has the burden to establish both prongs of the Strickland test by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). The appellant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Gamble, 916 S.W.2d at 93. "[A]ny allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Mallett v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001) ( quoting Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999)). We will not speculate to find an attorney ineffective. Gamble, 916 S.W.2d at 93. During his motion for new trial hearing, appellant questioned one of his defense counsel concerning some of his ineffective assistance allegations. He concedes, however, that several of his allegations were not developed at the hearing. Nevertheless, appellant contends that we must consider the allegations because the record demonstrates that counsel's performance was not based on any reasonable trial strategy. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App. 1994). Ordinarily, 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. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Trial counsel should be given an opportunity to explain his actions before being denounced as ineffective. Rylander v. State, 101 S.W.3d 107, 111 (Tex.Crim.App. 2003). However, a motion for new trial claiming ineffective assistance of counsel is not always required to preserve that claim. See Robinson v. State, 16 S.W.3d 808, 809-10 (Tex.Crim.App. 2000). It is not speculation to hold counsel ineffective if a silent record clearly indicates that no reasonable attorney could have made such trial decisions. See Vasquez v. State, 830 S.W.2d 948, 950-51 (Tex.Crim.App. 1992). Therefore, in rare cases, the record can be sufficient to prove that counsel's performance was deficient, despite the absence of affirmative evidence of counsel's reasoning or strategy. See Robinson, 16 S.W.3d at 813 n. 7.Allegations Addressed at the Hearing
We first address those ineffective assistance allegations which appellant raised at the motion for new trial hearing. Appellant complains about his trial counsel's failure to challenge a biased venireman who served on the jury. Specifically, he argues that Michael Maywald should have been challenged, because he stated that he could not consider five years probation for murder. At trial, appellant was represented by Allan Cease, who hired Brian Wice, to help preserve error, and Robert Hirschhorn, as a jury consultant. During the motion for new trial hearing, appellant questioned Wice, who indicated that Cease was the lead counsel for appellant and made the decision, along with Hirschhorn, not to remove Maywald because they thought he would be a good juror at guilt/innocence. Additionally, Wice testified that Cease's decision not to challenge Maywald was a strategic decision. Because the record expressly shows that a reasonable strategic decision was made to keep Maywald, we hold defense counsel was not ineffective in failing to challenge Maywald. Appellant also contends that defense counsel was ineffective in failing to object to the jury instruction on self-defense, which failed to authorize appellant to defend himself against an attack by Vinh. In appellant's second issue, we held that any error stemming for this instruction was not egregious; therefore, appellant cannot satisfy the second Strickland prong, and trial counsel was not ineffective in failing to object to the instruction.Allegations Not Addressed at the Hearing
We next address appellant's allegations which were not raised at the motion for new trial hearing. The first three allegations we address concern defense counsel's performance at the guilt-innocence stage. Similar among these allegations is appellant's complaint that defense counsel's failure to object to statements made by the State allowed the jury to be misled and have a flawed view of appellant's self-defense claim. We must first determine whether the record proves that defense counsel's performance was deficient, despite the absence of affirmative evidence of their reasoning or strategy. See Robinson, 16 S.W.3d at 813 n. 7. If not, then to find that defense counsel were ineffective would call for speculation, which we will not do. See Gamble, 916 S.W.2d at 93. We begin by addressing appellant's allegation that defense counsel was deficient in failing to object to the State's comment during voir dire that a jury instruction on self-defense does not mean that the court believes self-defense is applicable. Specifically, the State explained to the venire, "The Court has to instruct the jury on self defense if an issue was raised. Merely because it's in the charge is not a comment from the Court or anybody else that they think that's really applicable, it's just that we're putting all the cards on the table." Appellant directs us to two cases where murder convictions were reversed after the State commented during jury argument that the inclusion of an instruction on self-defense does not mean that the trial court believes self-defense occurred. See Dunbar v. State, 551 S.W.2d 382, 383-84 (Tex.Crim.App. 1977); McClory v. State, 510 S.W.2d 932, 934 (Tex.Crim.App. 1974). Appellant asserts that, while these cases deal with statements made during argument, the same statements made during voir dire are equally harmful. However, appellant directs us to no caselaw holding that similar statements are erroneous during voir dire. Therefore, appellant has not overcome the presumption that counsel's conduct was reasonable, and we hold that counsel's failure to object did not rise to a level such that no reasonable attorney could have made such a trial decision. Appellant also asserts that defense counsel was deficient in failing to object to the State's repeated use of the word "murder" when questioning witnesses, because of the well-settled principle that the State cannot express an opinion on whether the defendant is guilty. See Boyd v. State, 643 S.W.2d 700, 706 (Tex.Cr.App. 1983). Appellant argues that counsel's failure to object undermined his testimony that he acted in self-defense, because failing to object conceded that a crime occurred. However, appellant directs us to no caselaw holding that the State's use of the word "murder" while questioning a witness during a murder trial was an improper, objectionable comment on the defendant's guilt. Assuming without deciding that it would have been proper for counsel to object to such statements, we hold that defense counsel's failure to object does not rise to a level such that no reasonable attorney could have made such a trial decision. Additionally, appellant complains about defense counsel's failure to object to the State's comments during voir dire and jury argument that appellant was not justified in using deadly force against a person who was hitting or kicking him. Appellant complains that the following statements should have been objected to during voir dire:. The State's statement that, if someone "slaps me, I have a right to slap him. I might have a right to kick him because that's in the same force level. Do I have a right to pull out a gun and shoot him? No."
• The State asked if anyone had heard of the phrase "You can't bring a gun to a fistfight," and then stated that, if he were hit, kicked or punched, "I can do all that stuff in return, but I can't pull out a handgun, or a machete; or a hydrogen bomb or anything like that."
• The State's statement, "Punching, slapping, kicking, do you have the right to use deadly force? No."Appellant also complains of the following statements made by the State during jury argument:
• The State's statement, "To allow the defendant to walk on a claim of . . . self defense . . . allows a person in this county to pull out a gun as a way to resolve a fistfight," and also stated "you don't want to give license to people . . . anywhere a fistfight might reasonably result. Because fistfighting is not deadly force."
• The State's statement that, even if Vinh was kicking appellant while he was on the ground, "this is what we talked about in voir dire: A hit for a hit, a kick for a kick, a hit for a kick; but not a bullet. Not a bullet."
• The State concluded its closing argument by stating, "I'm asking you to go back there and do what is right, sign a verdict for guilty and tell this man and anybody else who tote guns in our counties that firing a weapon is not self defense for a fistfight. Thank you."Appellant asserts that these statements were contrary to the trial court's charge and, because it is well-settled that fists and feet are deadly weapons, misled the jury into believing appellant was not entitled to use deadly force to defend against being hit and kicked. However, hands and feet are not deadly weapons per se, but can be deadly weapons within the definition of the Penal Code "depending on the evidence shown." Lane v. State, 151 S.W.3d 188, 191 (Tex.Crim.App. 2004) (quoting Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App. 1983)). Therefore, in making these statements, the State was arguably expressing that the evidence does not show that any hit or kicks received by appellant rose to the level of unlawful deadly force for which appellant could respond with deadly force. Therefore, we hold that defense counsel's failure to object does not rise to a level such that no reasonable attorney could have made such a trial decision. Finally, in his fifth issue, appellant asserts that defense counsel's performance was deficient during argument at the punishment stage. Defense counsel Wice argued that Vinh "was a great kid and he didn't deserve what happened to him that night. Nobody questions that." He also stated that Vinh was an innocent bystander and that it had been hard for the defense lawyers "not to walk up to Vinh's mom and just give her a hug and say we're sorry." Appellant complains that these statements undermined his testimony from the guilt-innocence stage and contributed to the jury's negative answer on his special issue of self-defense. Showing compassion for the victim of a crime and the victim's family can be a reasonable strategy during punishment. Therefore, we hold that defense counsel's argument does not rise to a level such that no reasonable attorney could have made such a trial decision. Because the record does not show that defense counsel acted deficiently in the situations complained of by appellant, or that, but for the actions, the result of the proceedings would have been different, we hold that, as to the allegations addressed at the motion for new trial hearing, appellant failed to meet his burden of proving that trial counsel's performance was deficient. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Gamble, 916 S.W.2d at 93. Furthermore, we decline to address the merits of appellant's ineffective assistance allegations not addressed at the hearing, because he has failed to show on direct appeal that trial counsel's actions were such that no reasonable attorney could have made. See Thompson, 9 S.W.3d at 814.
Appellant's fourth and fifth issues are overruled.