Summary
In Polk, the appellant was indicted for capital murder and convicted of the lesser included offense of murder under § 19.02(b)(2).
Summary of this case from Gordy v. StateOpinion
No. 05-03-01244-CR
Opinion issued December 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-51572-WU. Affirmed.
Before Justices WHITTINGTON, BRIDGES, and FRANCIS.
OPINION
Phillip Ladon Polk appeals his conviction for murder. After the jury found appellant guilty of murder, the trial judge assessed punishment at life confinement. In two issues, appellant claims the trial judge fundamentally erred in charging the jury on a lesser-included offense and he received ineffective assistance of counsel. We affirm the trial court's judgment. On May 30, 2002, Christopher Tarver and his girlfriend, Tania Kidd, drove to south Dallas to buy drugs at an apartment Tarver had visited previously. After he pulled into the driveway, another car pulled in to his right. As Tarver walked to the apartment, the driver of the other car, later identified as appellant, walked with him. When they got to the door, appellant entered first. Inside, appellant told Tarver he had taken "over the shop." Tarver told appellant he wanted a quarter, or twenty five dollars, of cocaine. Appellant searched the apartment but did not find any drugs to sell. Tarver left, telling appellant he was going to get something to eat. Appellant followed Tarver outside, walked to his car, and pulled out a pistol. He got in the backseat of Tarver's car, put the pistol to Tarver's head, and demanded Tarver's money. He then took Kidd's cell phone which was sitting on Tarver's side of the car. When appellant asked Kidd if she had any jewelry, she said no. As he got out and was closing the door, appellant said, "I ought to take the car." Tarver tried to put the car in reverse and "get out of there;" however, the car lurched forward a few feet. As Tarver put it in reverse, appellant shot through the car, hitting both Kidd and Tarver. Kidd later died at the hospital. Appellant was arrested and indicted for intentionally causing Kidd's death by shooting Kidd while in course of committing and attempting to commit the offense of robbery. The jury charge instructed the jury on capital murder and two lesser-included offenses of murder. See Tex. Pen. Code Ann. §§ 19.02(b)(1) (2) (Vernon 2003). The jury convicted appellant of the lesser-included offense of murder under section 19.02(b)(2). This appeal followed. In his first issue, appellant contends "[t]he trial court fundamentally erred in charging the jury pursuant to § 19.02(b)(2) the Texas Penal Code." See Tex. Pen. Code Ann. § 19.02(b)(2) (Vernon 2003). Appellant appears to argue a section 19.02(b)(2) murder is not a lesser-included offense of capital murder and, therefore, the jury should not have been charged on two manners of committing murder as lesser-included offenses when he was indicted for capital murder. He also claims he could not be convicted of a section 19.02(b)(2) murder because it "enlarges the offense" charged in the indictment. Before a jury charge instruction on a lesser-included offense may be given, a two-prong test must be met: (i) the lesser-included offense must be included within the proof necessary to establish the offense charged, and (ii) some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003). If a jury does not find beyond a reasonable doubt that a defendant is guilty of capital murder, he may still be convicted of murder or any other lesser-included offense. Livingston v. State, 739 S.W.2d 311, 336 (Tex.Crim.App. 1987). Murder that is committed when a person "intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual" is a lesser-included offense of capital murder. Miniel v. State, 831 S.W.2d 310, 317 (Tex.Crim.App. 1992); Lee v. State, 860 S.W.2d 582, 587 (Tex.App.-Houston [14th Dist.] 1993, pet ref'd); see Tex. Pen. Code Ann. § 19.03(c) (Vernon Supp. 2004-05). Because a section 19.02(b)(2) murder is a lesser-included offense of capital murder, the trial judge did not err in submitting the charge. To the extent appellant argues the jury was allowed to "enlarge the offense alleged and . . . convict [appellant] on a basis or theory [i.e. serious bodily injury] permitted in the jury charge but not alleged in the indictment," we also disagree. Appellant was indicted for intentionally causing Kidd's death by shooting her with a firearm while in the course of committing or attempting to commit the robbery of Kidd. The jury charge contained the lesser-included offense of intending to cause serious bodily injury and committing an act clearly dangerous to human life that caused the death of an individual. Serious bodily injury is "bodily injury that creates a substantial risk of death or that causes death. . . ." Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon Supp. 2004-05). "Death necessarily involves impairment of physical condition (if not pain and illness), so 'death' necessarily includes 'bodily injury.'" Cumbie v. State, 578 S.W.2d 732, 735 (Tex.Crim.App. 1979), overruled on other grounds by Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984); see Hayward v. State, 117 S.W.3d 5, 13 (Tex.App.-Houston [14th Dist.] 2003, pet. granted). Thus, to prove a defendant intentionally and knowingly caused a victim's death, the prosecution necessarily must prove the defendant caused serious bodily injury to the victim. Therefore, appellant's conviction on the basis that he intended to cause Kidd serious bodily injury and committed an act clearly dangerous to human life causing Kidd's death was not an enlargement of the offense of capital murder as alleged in the indictment. We overrule appellant's first issue. In his second issue, appellant contends he was denied effective assistance of counsel at trial when his trial counsel failed to object to the jury charge. Appellant claims counsel failed to (i) object to and request a more specific application paragraph addressing the law of parties, and (ii) request instructions on accomplice witness testimony and defense of a third party. We examine ineffective assistance of counsel claims under well-established standards. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant bears the burden of showing by a preponderance of the evidence (i) trial counsel's performance was deficient in that it fell below the prevailing professional norms, and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel's representation to determine whether appellant received effective assistance. Thompson, 9 S.W.3d at 812. We do not, however, judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Thompson, 9 S.W.3d at 812. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 812. The court of criminal appeals has made clear that, in most cases, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002); Thompson, 9 S.W.3d at 813-14. Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111; Bone, 77 S.W.3d at 836. Although appellant filed a motion for new trial, the complaint raised in his motion was that the "verdict is contrary to the law and the evidence." His motion did not allege he received ineffective assistance of counsel at trial. Thus, there is no record of a hearing to provide an explanation of the motivation behind counsel's decision to not object to the complained-of portion of the jury charge. The record is also silent regarding counsel's purported failure to request the instructions appellant now claims were essential to his defense. Because the record is silent regarding any explanation for counsel's actions, we cannot conclude appellant has met his burden to overcome the strong presumption of reasonable assistance. See Freeman v. State, 125 S.W.3d 505, 505-06 (Tex.Crim.App. 2003) ("The record in this case is insufficient to support the conclusion [that appellant received ineffective assistance of counsel] because appellant did not develop a record in the trial court for the purpose off establishing this claim."). We overrule appellant's second issue. We affirm the trial court's judgment.
Appellant does not challenge the second prong, that some evidence must exist in the record that if the defendant is guilty, he is guilty only of the lesser offense, and we do not discuss it.