Opinion
No. 11-02-00100-CR
July 24, 2003. Do not publish. See TEX.R.APP.P. 47.2(b).
Appeal from Dallas County.
Opinion
The jury found John Brandon Reconnu guilty of murder and assessed his punishment at imprisonment for life. Appellant appeals. We affirm. The sufficiency of the evidence is not challenged. The jury rejected appellant's self-defense claim. In his sole point of error, appellant contends that trial counsel was ineffective for failing to object to the prosecutor's final argument at the penalty phase regarding appellant's lack of remorse. The right to effective assistance of counsel is guaranteed under U.S. CONST. amend VI. The Court in Strickland v. Washington, 466 U.S. 668 (1984), adopted a two-pronged analysis for determining ineffective assistance of counsel: (1) whether counsel's conduct was deficient and (2) whether, but for counsel's deficient performance, the result of the proceeding would have been different. See Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App. 1999). The Sixth Amendment does not guarantee the right to errorless counsel or counsel whose competency is judged by hindsight. Stafford v. State, 813 S.W.2d 503, 506 (Tex.Cr.App. 1991). Any allegation 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, 813 (Tex.Cr.App. 1999). There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Thompson v. State, supra. Appellant testified at both the guilt/innocence phase and the punishment phase of the trial that he shot the victim in self-defense. The record reflects the following questions by the prosecutor and answers by appellant during the punishment phase:
Q: Are you going to finally tell the jury the truth, that you went out to get that gun because you were looking to hurt somebody?
A: No, sir, I wasn't looking to hurt nobody.
Q: When you came around the club, you never saw Jennifer get hit twice?
A: I seen her get pushed and slide and fall, yes.
Q: So you're going to stick to the same story you told in guilt/innocence, correct?
A: Yes, sir.
Q: So you actually disagree with their verdict? You still think it was self-defense, right?
A: Yes, sir.It is proper jury argument for counsel to answer the argument of opposing counsel. Wesbrook v. State, 29 S.W.3d 103 (Tex.Cr.App. 2000),cert. den'd, 532 U.S. 944 (2001). The record reflects the following final arguments of counsel at the close of the punishment phase of trial:
[DEFENSE COUNSEL]: I see in this courtroom true sadness today. I see true sadness in the good people in those two rows right there and I see true sadness in those people in those two rows right there. And I saw what I believe was genuine remorse come from the defendant up on the stand. He was brutally honest with you folks today.
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[PROSECUTOR]: And there is a huge difference between remorse and feeling sorry for yourself or sorry you got caught or sorry you got convicted. That wasn't true remorse. True remorse would have been in the guilt/innocence phase of this trial when he testified he would have said I'm going to tell you the truth, I will take responsibility for what I did. He never pulled a gun on me. I shot him first. That is remorse, and you didn't hear that from him. He is sticking to his story. He doesn't like your verdict. He thinks you're wrong.Appellant's counsel argued before the jury that he believed appellant was remorseful and honest when he testified. It was proper for the State to answer that argument during the State's closing argument. Appellant also cites Vaughn v. State, 931 S.W.2d 564 (Tex.Cr.App. 1996), and argues that appellant's trial counsel was ineffective in failing to object to the prosecutor's argument that appellant showed no remorse because he was "sticking to his story" that he was not guilty because of self-defense. The court in Vaughn recognized that a defendant who takes the stand at the guilt/innocence phase and denies committing the offense is faced with a difficult decision as to taking the witness stand again at punishment. The court stated:
But we are inclined to agree with the State that "[n]o constitutional violation is presented by . . . a difficult decision for a defendant." Brief for State at 13. To take the stand and maintain her innocence in light of the probability that the jury will see her as unrepentant or even defiant was a voluntary tactical decision by appellant and her counsel. The fallout of this choice seems to us no different than that attendant to a defendant's decision whether or not to take the stand at guilt-innocence and be subject there to the broad array of potentially impeaching sources. That is to say, they are most likely just factors which should inform a proper, well-founded trial strategy. (Footnote omitted)Vaughn v. State, supra at 568. Appellant's trial counsel did not provide ineffective assistance of counsel. Appellant's sole point of error is overruled. The judgment of the trial court is affirmed.