Nos. 05-09-00194-CR, 05-09-00195-CR
Opinion Filed July 26, 2010. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F08-54445-NI and F08-54839-LI.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice LANG.
A jury convicted appellant of aggravated assault with a deadly weapon against a public servant and evading arrest or detention in a motor vehicle. Punishment was assessed at twenty years confinement in the aggravated assault case and two years confinement in the evading arrest case. In three issues, appellant claims the trial court erred in refusing to submit to the jury the lesser-included offenses of deadly conduct and reckless driving for the aggravated assault charge. Appellant also claims his trial counsel rendered ineffective assistance of counsel. We affirm. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of April 21, 2008, Officer Herb Ebsen of the Dallas Police Department was performing traffic duty when he stopped a vehicle driven by appellant in Dallas County, Texas. Officer Ebsen, who was in full police uniform in a marked squad car, stopped appellant for not wearing a seat belt and having an expired paper license plate. Officer Ebsen switched on his overhead emergency lights and in response, appellant pulled his vehicle over to the right side of the road. When he walked toward the driver's side of appellant's car, appellant drove off. Officer Ebsen sent out a radio broadcast notifying other police officers and then followed appellant as he drove southbound on North Ravinia Drive and then, after running a stop sign, turned right onto Davis Street. He tracked appellant's speed at approximately sixty miles per hour. When appellant turned onto Barnett Avenue, two squad cars fell in behind him, and Officer Ebsen turned onto an adjacent street. Officer Jose Llanes responded to Officers Ebsen's radio broadcast. As Officer Llanes was driving south on Barnett Avenue, he saw appellant driving north toward him in the same lane of traffic at approximately forty to fifty miles per hour. When Officer Llanes swerved to the right, appellant swerved toward Llanes. When Llanes swerved left, appellant again swerved in the same direction. Officer Llanes swerved back to his right, and appellant swerved again, causing Llanes to drive on top of a curb into the grass. Appellant drove past Officer Llanes, coming "within a foot" of his car. After he dislodged his car from the curb, Officer Llanes continued to follow appellant and found appellant driving southbound in the northbound lanes on Westmoreland Road at fifty to sixty miles per hour. Officer Llanes, driving northbound, swerved to avoid a collision, but appellant again swerved directly into his path coming "within a couple of feet" of his car. This caused Officer Llanes to drive on top of the median of the road to avoid colliding with appellant. Appellant then drove behind Officer Llanes and crossed back over into the southbound lanes of traffic. Officer Llanes testified that he felt that appellant was threatening him with imminent bodily injury, and appellant was using his car as a deadly weapon. Officer Eric Weast, who drove one of the squad cars that followed appellant, observed as appellant had two near head-on collisions with Officer Llanes. He testified it appeared that appellant was intentionally trying to hit Officer Llanes. Eventually, appellant's car hit a curb, and he jumped out and took off running. Officer Stanton Chambers captured appellant and placed him under arrest. Appellant was the only witness testifying in his defense. He testified he had been convicted once for aggravated assault with a deadly weapon, three times for vehicle theft, and twice for theft. He admitted driving the car when Officer Ebsen pulled him over, and he said he knew Officer Ebsen was a police officer, but sped off anyway. Appellant further admitted leading the officers on a chase. He drove off from where Officer Ebsen stopped him because he was afraid of getting "locked up" in jail and going through withdrawal from various drugs. He said he was taking heroin, methamphetamine, and cocaine. Appellant testified that the officers had correctly described the routes he took after driving off from Officer Ebsen's stop. As to the incident on Barnett Avenue, where Officer Llanes was pursuing him, appellant testified, "I was coming down Barnett, and I was getting chased. I was trying to get away from the officers. I seen a cop car in front of me, and I tried to get out of his way. I didn't want to hit him or nothing. I was trying to get away from the police officers." Appellant indicated that Officer Llanes was in his path with emergency lights on, but he did not pull over because he did not want to go to jail and suffer drug withdrawal. Appellant further testified he was scared, he was trying to avoid a collision, and he had "a lot of things going on in [his] head at the time." Appellant testified he did not intend to hit Officer Llanes. He explained he drove on the wrong side of the road toward Officer Llanes because the alignment on his car was damaged, which caused his car to swerve. While driving on Westmoreland Road, appellant testified he knew Officer Llanes was chasing him, but he drove past the officer, almost hitting him. Appellant denied the drugs he had previously ingested caused him to behave erratically and aggressively. Appellant affirmed that had he intentionally hit Officer Llanes, the impact might have incapacitated his car so that he would have been less likely to escape. Appellant was charged with aggravated assault with a deadly weapon against a public servant and evading arrest. The trial court denied appellant's request that the jury charge include the lesser-included offenses of deadly conduct and reckless driving. The jury returned a guilty verdict in both cases, and sentenced him to confinement for twenty years for aggravated assault and two years for evading arrest. II. LESSER-INCLUDED OFFENSESA. Applicable Law
In his first and second issues, appellant contends he was entitled to a jury charge on lesser-included offenses of deadly conduct and reckless driving. We review the trial court's decision regarding a lesser-included offense charge under an abuse of discretion standard. Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004); Dobbins v. State, 228 S.W.3d 761, 768 (Tex. App.-Houston [14th Dist.] 2007, pet. dism'd). The code of criminal procedure provides that an offense is a lesser-included offense if it can be established by proof of the same facts required to establish the commission of the offense charged. Tex. Code Crim. Proc. Ann. art. 37.09(1) (Vernon Supp. 2009). Texas courts use a two-pronged test to determine if a charge on a lesser-included offense is required. Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993) (citing Royster v. State, 622 S.W.2d 442 (Tex. Crim. App. 1982)); Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006). First, the appellate court determines whether the lesser-included offense is included within the proof necessary to establish the offense charged. Rousseau, 855 S.W.2d at 672-73. This determination is a question of law that does not consider the evidence produced at trial. Rather, it compares the statutory elements of the offense as alleged in the indictment with the elements of the potential lesser-included offense. Hall v. State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). Second, the court determines whether some evidence exists in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser offense and not the greater offense. Id. at 536. In this step of the analysis, anything more than a scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. The appellate court looks to all the evidence presented at trial and thus, a statement cannot be plucked out of the record and examined in a vacuum. Jones v. State, 833 S.W.2d 118, 127 (Tex. Crim. App. 1992); Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim. App. 1986). In determining whether the second prong has been met, it is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. Skinner v. State, 956 S.W.2d 252, 543 (Tex. Crim. App. 1997). Rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted. Id. Moreover, a defendant's own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included offense. Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001). B. Deadly Conduct
Appellant contends the trial court erred when it denied his requested jury charge on the lesser-included misdemeanor offense of deadly conduct. See Tex. Pen. Code Ann. § 22.05(a) (Vernon Supp. 2009). A person is engaged in deadly conduct if he recklessly engages in conduct that places another in imminent danger of serious bodily injury. Id. The indictment in this case charged appellant with aggravated assault by intentionally and knowingly threatening Officer Llanes with imminent bodily injury and using and exhibiting a deadly weapon, a motor vehicle, during the commission of the assault. See Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2009). The State concedes, and we conclude, that misdemeanor deadly conduct is a lesser-included offense of aggravated assault by threat with a motor vehicle as charged in the indictment. See Guzman, 188 S.W.3d at 190. The first prong of the Rousseau test is met. With respect to the second prong, appellant contends that the record contains some evidence that he did not intentionally or knowingly assault Officer Llanes, but recklessly engaged in conduct that placed Llanes in imminent danger of serious bodily injury. In so arguing, he points to his own testimony in which he denied intentionally trying to ram or run into Officer Llanes's car and explained that he was trying to get away from the officer, but his car was hard to control due to the damaged alignment. However, a defendant's own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included offense. Lofton, 45 S.W.3d at 652. With regard to misdemeanor deadly conduct, the second prong of the Rousseau test is not met. We conclude that the evidence in the instant case did not raise the issue of the lesser-included offense of deadly conduct. C. Reckless Driving
Appellant contends the trial court erred when it denied his requested jury charge on the lesser-included misdemeanor offense of reckless driving. See Tex. Transp. Code Ann. § 545.401(a) (Vernon Supp. 2009). A person commits reckless driving if the "person drives a vehicle in wilful or wanton disregard for the safety of persons or property." Id. "Wilful and wanton" in this context means "the deliberate conscious indifference to the safety of others." See Bartholomew v. State, 871 S.W.2d 210, 215 (Tex. Crim. App. 1994) (White, J., concurring) (citing White v. State, 647 S.W.2d 751, 753 (Tex. App.-Fort Worth 1983, pet. ref'd). The indictment in this case charged appellant with aggravated assault by intentionally and knowingly threatening Officer Llanes with imminent bodily injury and using and exhibiting a deadly weapon, a motor vehicle, during the commission of the assault. See Tex. Pen. Code Ann. § 22.02. Because the indictment charged conduct that included the driving of a vehicle in "wilful and wanton" disregard for the safety of others, the State concedes that misdemeanor reckless driving is a lesser-included offense of aggravated assault by threat with a motor vehicle as charged in the indictment. Therefore, we conclude that reckless driving is included within the proof necessary to establish aggravated assault, and the first prong of Rousseau test is met. See Tex. Code Crim. Proc. Ann. art. 37.09(1); see Rice v. State, 305 S.W.3d 900, 907 (Tex. App.-Dallas 2010, pet. filed). With regard to the second prong, appellant argues the jury could have rationally found him guilty of the lesser-included offense of reckless driving. He asserts the same arguments as he did in the first issue regarding the lesser-included offense of deadly conduct. Appellant again denied that he was trying to ram Officer Llanes's car and testified there was a problem with his car's alignment. However, as we stated above, a defendant's own testimony that he committed no offense, or testimony which otherwise shows that no offense occurred at all, is not adequate to raise the issue of a lesser-included offense. Lofton, 45 S.W.3d at 652. We conclude that the evidence in the instant case did not raise the issue of the lesser-included offense of reckless driving. Appellant's first and second issues are resolved against him. III. INEFFECTIVE ASSISTANCE OF COUNSEL
To prevail on a claim for ineffective assistance of counsel, appellant must show that counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability the results of the proceedings would have been different in the absence of counsel's errors. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005); Thompson, 9 S.W.3d at 813. An appellate court ordinarily will not declare trial counsel ineffective where there is no record showing counsel had an opportunity to explain himself. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007) (because counsel's reasons for failing to present mitigating evidence regarding mental capacity during the punishment phase did not appear in the record, the court deferred to counsel's decisions). Without evidence of the strategy motivating counsel's actions at trial, the reviewing court will presume sound trial strategy. See Thompson, 9 S.W.3d at 814; Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). Appellant contends trial counsel was ineffective because he failed to present any evidence regarding his drug abuse and addiction during the punishment phase of trial. Appellant points out that he testified during the guilt-innocence stage of trial that he was using methamphetamine, cocaine, and heroin on the day of the offense and was afraid to go to jail because he would suffer withdrawal from the drugs. Appellant claims because counsel had knowledge of appellant's drug abuse and addiction, counsel should have conducted an investigation regarding his history. Had counsel properly investigated appellant's drug addiction history and presented that history as mitigating evidence, appellant claims he would have not received the maximum punishment in the evading arrest conviction. The State responds because appellant's claim that he received ineffective assistance of counsel at his punishment hearing was not developed in his motion for new trial, the record is insufficient to support that claim. The State asserts that appellant has not met his burden of showing that trial counsel's performance was deficient and that he was prejudiced by the failure of counsel to present mitigating evidence. The record does not include any explanation of why appellant's trial counsel did not present evidence regarding his history of drug abuse during the punishment phase. Also, the record does not contain any evidence showing that the failure of appellant's trial counsel to present mitigating evidence was not a part of his trial strategy. See Garza, 213 S.W.3d at 347-48. Further, the record is silent regarding what the additional evidence, if presented, would have shown. See King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) ("Counsel's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony."). Without a record, we would have to speculate about whether this evidence would have benefitted appellant, which we cannot do. See Bone, 77 S.W.3d at 835-36. As a result, we conclude appellant has not shown by a preponderance of the evidence that his trial counsel's performance fell below an objective standard of reasonableness because he failed to present evidence of his history of drug abuse during the punishment phase. We resolve appellant's third issue against him. IV. CONCLUSION
We decide appellant's three issues against him. The trial court's judgment is affirmed.