No. 14-04-00114-CR
Opinion filed August 25, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 178th District Court, Harris County, Texas, Trial Court Cause No. 941,903. Affirmed and Memorandum.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
CHARLES W. SEYMORE, Justice.
A jury convicted appellant, Gary Christopher McClain, of murder and assessed punishment at ninety-nine years' imprisonment. In two issues, appellant contends (1) the evidence was factually insufficient for the jury to conclude he did not cause the death under the immediate influence of sudden passion arising from adequate cause, and (2) he was denied effective assistance of counsel at trial. We affirm.
I. BACKGROUND
The record reflects that appellant and Helen Kirklin were involved in a tumultuous romantic relationship. They frequently argued over money, and Kirklin had become involved with another man. On March 9, 2003, appellant drove Kirklin to church and during the drive they argued about money. Appellant dropped Kirklin off at church, but he later returned and persuaded Kirklin to attend a joint counseling session with the church pastor. Following the counseling session, appellant went to his place of business and Kirklin went to her apartment. Appellant testified that while he was at his place of business, he called his daughter. During their conversation, his daughter told him that she did not want to go to Kirklin's house because Kirklin had abused her physically. Upset by this information, appellant went to Kirklin's apartment and confronted her in the parking lot. When appellant confronted Kirklin, she was talking on her cell phone to Jeffrey Van Row. According to appellant, Kirklin told appellant that she was talking to her "new boyfriend." Appellant testified that he asked Kirklin about mistreating his daughter and "using" him. According to appellant, Kirklin responded that she never loved him or his daughter and had only been "using" him. Appellant stated that at this point his "mind went blank," and he went to his trunk and retrieved a gun. He then shot Kirklin four times. Appellant immediately fled the scene. He contemplated killing himself but later changed his mind. Later that week, appellant turned himself in to the police. II. FACTUAL SUFFICIENCY
In his first issue, appellant contends that the evidence is factually insufficient to support the jury's negative answer to the issue of whether he caused Kirklin's death while under the immediate influence of sudden passion arising from adequate cause. 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) (Vernon 2003). At the punishment phase of trial, a defendant may raise the issue of whether he caused the death under the immediate influence of sudden passion arising from adequate cause. Id. § 19.02(d). "Sudden passion" means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed that arises at the time of the offense and is not solely the result of former provocation. Id. § 19.02 (a)(2). It is not enough that the defendant act with "sudden passion"; the "sudden passion" must arise from "adequate cause." See id. § 19.02(d). "Adequate cause" is cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Id. § 19.02(a)(1). If the defendant proves the issue of sudden passion in the affirmative by a preponderance of the evidence, the offense of murder is reduced from a first degree felony to a second degree felony. Id. § 19.02(d); see also Hernandez v. State, 127 S.W.3d 206, 211-12 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (noting that defendant bears burden at punishment phase of trial to prove issue of sudden passion by preponderance of the evidence). When reviewing the factual sufficiency of evidence to support a jury's negative answer to the sudden passion issue, we review the evidence in a neutral light to determine whether the negative finding is so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. Hernandez, 127 S.W.3d at 212; Naasz v. State, 974 S.W.2d 418, 423 (Tex.App.-Dallas 1998, pet. ref'd); see also Nolan v. State, 102 S.W.3d 231, 238-39 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (applying factual sufficiency review to the mitigating factor of release in a safe place for the offense of aggravated kidnapping). Our evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility of witness testimony. Naasz, 974 S.W.2d at 423. Appellant contends the evidence at trial so clearly established that he had acted under sudden passion arising from adequate cause that it was manifestly unjust or clearly wrong for the jury to find that he did not act with "sudden passion." Specifically, appellant points to his trial testimony that just before he killed Kirklin, he "went blank" when she told him she never loved him or his daughter, she was using him for financial gain, and she had another boyfriend to whom she was talking on the telephone. However, based on the evidence, the jury could have reasonably concluded that there was insufficient provocation to establish adequate cause. Appellant testified that his relationship with Kirklin had been tumultuous, and he had recently been trying to end the relationship. He testified that he knew Kirklin was having a romantic relationship with another man, and that Kirklin had cheated on him four other times in the past. He further testified that prior to his confrontation with Kirklin, she repeatedly asked him for money and that he was beginning to think "the whole relationship was being centered on money. . . ." Thus, the jury could have reasonably determined that the statements allegedly made by Kirklin immediately before the murder were not new revelations of which appellant was unaware. See Naasz, 974 S.W.2d at 425 (holding that jury could have found adequate cause was lacking where the appellant had previously learned of his wife's affair, and the dispute concerning wife's neglect of son was not a "new occurrence"). Additionally, during the drive to Kirklin's apartment, appellant had sufficient time to reflect on his daughter's alleged statements regarding the physical abuse. Furthermore, when a defendant instigates a confrontation, then becomes inflamed by another's response, he cannot claim he has been provoked by adequate cause. Naasz, 974 S.W.2d at 423; Nance v. State, 807 S.W.2d 855, 861 (Tex.App.-Corpus Christi 1991, pet. ref'd). Appellant testified that he went to Kirklin's apartment to confront her about mistreating his daughter. The statements that allegedly provoked appellant to kill Kirklin resulted directly from this confrontation. Having instigated a confrontation with Kirklin, appellant cannot claim that Kirklin's response to the confrontation provided adequate cause for his actions. After reviewing the evidence in a neutral light, we conclude that the evidence is factually sufficient for the jury to have rejected that appellant acted under the influence of sudden passion arising from adequate cause. Accordingly, we overrule appellant's first issue. III. ASSISTANCE OF COUNSEL
In his second issue, appellant contends his trial counsel rendered ineffective assistance because he did not call appellant's daughter to testify regarding the alleged abuse by Kirklin. To prevail on an ineffective assistance of counsel claim, an appellant must prove by a preponderance of the evidence that (1) trial 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. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). Any allegations of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). A silent record usually cannot rebut the presumption that counsel's performance resulted from sound or reasonable trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Appellant attached to his brief a letter from his trial counsel explaining counsel's reasons for not calling appellant's daughter to testify. However, we may not consider this letter because it was not placed in evidence before the trial court. See Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. 1981); Deloro v. State, 712 S.W.2d 805, 808 (Tex.App.-Houston [14th Dist.] 1986, no pet.). In the absence of this letter, there is nothing in the record that explains why appellant's trial counsel did not call appellant's daughter to testify. Thus, there is nothing to overcome the presumption of sound trial strategy. See Jackson, 877 S.W.2d at 771 (noting that record on direct appeal was inadequate to reflect the failings of trial counsel where the alleged error was an error of omission). Furthermore, it is possible for counsel to have had legitimate reasons for declining to call appellant's daughter to testify. See Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002) ("If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal."). Accordingly, we find that appellant has failed to satisfy the first prong of Strickland and overrule appellant's second issue. The judgment of the trial court is affirmed.