Opinion
04-22-00031-CR
07-05-2023
Frank Edwin STEPHENSON, Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CR-20-0000012 Honorable M. Rex Emerson, Judge Presiding
Sitting: Rebeca C. Martinez, Chief Justice Lori I. Valenzuela, Justice Sandee Bryan Marion, Chief Justice (Ret.)
Retired Fourth Court of Appeals Chief Justice Sandee Bryan Marion assigned to this court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV'T CODE ANN. § 74.003.
MEMORANDUM OPINION
Rebeca C. Martinez, Chief Justice
A jury convicted appellant, Frank Edwin Stephenson, of aggravated assault with a deadly weapon, a second-degree felony. TEX. PENAL CODE ANN. § 22.02. The trial court assessed punishment at ten years' imprisonment in the Texas Department of Criminal Justice - Institutional Division. In four issues, Stephenson complains that the trial court erred (1) by refusing his jury-charge requests for the lesser-included offense of deadly conduct, (2) by refusing a jury instruction on self-defense, (3) by denying a new trial based on the ground that his trial counsel rendered ineffective assistance by not timely filing a written request to have the jury assess punishment, and (4) by denying a new trial on the ground that trial counsel rendered ineffective assistance by not investigating and presenting mitigating evidence during the punishment phase. We affirm.
I. Background
A. Guilt/Innocence
A grand jury indicted Stephenson on one count of aggravated assault with a deadly weapon. During the guilt/innocence phase, the jury considered the testimony of Weston Louis Jureski, the complainant, and three law enforcement officers.
Jureski testified that on the night of September 17, 2019, he drove from his job in Boerne, Texas to his home in Bandera, Texas in his dark blue sedan. During the first leg of Jureski's commute, he traveled on State Highway 46. Jureski described the road as a curvy, two-lane highway. Jureski noticed that Stephenson's vehicle, which was traveling in the same direction and ahead of Jureski's vehicle, had neither its headlights nor its taillights on. Jureski flashed his bright headlights to alert Stephenson, and then, Stephenson slowed and pulled his vehicle onto the shoulder. After Jureski passed Stephenson, he noticed Stephenson speed up, pull behind Jureski's vehicle, and flash his bright headlights at Jureski. Stephenson then passed Jureski, and in doing so, Jureski noticed that Stephenson's back fender "clipped" Jureski's front fender. After this contact, Stephenson slowed, fell behind Jureski, and, as he did before, began tailgating Jureski while flashing his bright headlights. This caused Jureski to start shaking. The two vehicles then turned onto State Highway 16 and headed to Bandera, Texas. They came to a red light at the Pipe Creek Post Office. Jureski recalled Stephenson pulling up next to him with his window rolled down. Jureski looked over, and he saw the barrel of a gun that Stephenson pointed toward Jureski. Stephenson, according to Jureski, told him, "I'm going to f------ kill you, kid." Jureski was scared and thought he was going to die. Jureski ran the redlight and called 9-1-1. To outrun Stephenson, Jureski drove at approximately one-hundred-and-twenty miles per hour. The 9-1-1 operator advised Jureski to pull into a business parking lot and await a peace officer. The trial court admitted a recording of Jureski's 9-1-1 call as an exhibit.
Deputy Marshal Mike Smith, a peace officer with the Bandera City Marshal's Office, testified that on the night of September 17, 2019, he received a call to be on the lookout for a suspected road rage incident involving a vehicle traveling northbound on State Highway 16. Deputy Marshal Smith responded to the call by stationing his patrol unit along State Highway 16 and waiting for the suspected vehicle to cross that stretch of road. As Stephenson's vehicle passed along State Highway 16, Deputy Marshal Smith observed that it was tailgating Jureski's vehicle and failing to maintain a single lane of travel. Deputy Marshal Smith activated his overhead lights, pursued Stephenson's vehicle, and initiated a traffic stop. After Stephenson pulled over, Deputy Marshal Smith waited for a backup peace officer because the dispatcher warned that Stephenson had a gun and had pointed it at Jureski. Once backup arrived, Deputy Marshal Smith searched Stephenson and found a pocketknife. Stephenson acknowledged that he had a gun in his vehicle. The trial court admitted video footage from Deputy Marshal Smith's body-worn camera ("bodycam") that captured his interaction with Stephenson. As Deputy Marshal Smith secured Stephenson in the backseat of his patrol unit, Texas Department of Public Safety Trooper Arturo Perez retrieved a semi-automatic pistol from Stephenson's vehicle. Trooper Perez, according to Deputy Marshal Smith, "clear[ed] the weapon" by removing the magazine and a single round that was in the chamber.
Deputy Cory Bolt, a peace officer with the Bandera County Sheriff's Office, testified that he provided backup for Deputy Marshal Smith. Deputy Bolt recalled that, after reading Stephenson his Miranda rights, Stephenson denied being afraid. Deputy Bolt also recalled that Stephenson told him that his "anger got the best of him for a 5-mile stretch." Deputy Bolt arrested Stephenson on a charge of aggravated assault with a deadly weapon, and he transported Stephenson to jail.
Investigator Gerald William Johnson, Jr., a peace officer with the Bandera County Sheriff's Office, testified that he assisted Deputy Marshal Smith by interviewing Jureski. Investigator Johnson described Jureski as "shaken" and that "[t]he more [Investigator Johnson] starting talking to [Jureski], he started getting more upset, started getting choked up like he was fixing to cry, and like . . . he couldn't control his nerves." Investigator Johnson examined Jureski's brand-new vehicle, and he observed damage to the front quarter panel. Investigator Johnson photographed this damage, which consisted of grey marks on Jureski's dark blue vehicle. The trial court admitted photographs of the damage to Jureski's vehicle and of Stephenson's grey vehicle.
The jury found Stephenson guilty.
B. Punishment
The punishment phase was tried to the bench because Stephenson did not timely elect for the jury to assess punishment. During the punishment phase, the State requested that the trial court consider three pieces of evidence. First, a presentence investigation report ("PSI"). Second, all evidence admitted during the guilt/innocence phase. Third, the district clerk's record in a civil lawsuit filed by Stephenson against the "Bandera City Council and mayor." Stephenson did not object to the first two requests. However, he objected to the third request as irrelevant and that "[t]here could be reams of hearsay" and witness statements for which he had not had the opportunity to "confront and cross-examine." The trial court overruled Stephenson's objections and admitted all three pieces of evidence. The State then rested.
The PSI states that Stephenson was taking Vyvance "for [a]nxiety," but also notes that, "[t]he defendant denied any history of mental health issues." The PSI alleges that Stephenson committed three separate criminal acts before and after the September 17, 2019, incident: (1) a "Deadly Conduct-Discharge Firearm" on May 24, 2018; (2) an aggravated assault with a deadly weapon on April 20, 2019; and (3) a "Driving While Intoxicated - 2nd" on February 5, 2021. It also alleges that Stephenson violated three terms of his Assaultive Bond-Community Supervision conditions while awaiting trial. First, that Stephenson possessed guns and ammunition. Second, that Stephenson tampered with an ankle monitor on multiple occasions. Third, that Stephenson consumed alcohol.
Stephenson presented five witnesses: (1) his wife, Carolyn Stephenson; (2) Allie Lansford, Stephenson's neighbor; (3) Kevin Harper, a realtor; (4) Cynthia Payne, an attorney who represented Stephenson in a civil property dispute; and (5) himself.
For ease of reference, we will refer to Carolyn Stephenson by her first name.
Carolyn testified that she and Stephenson had been married for thirty-eight years. She described Stephenson as a "great loving father," involved "with everything with our children," and a "great provider." Carolyn recalled that Stephenson operated his own business for several years and employed "many" people. She denied that Stephenson's consumption of alcohol interfered with his daily functioning, and she denied that Stephenson ever used illegal substances. Carolyn highlighted Stephenson's charitable activities, noting that he donated to Wounded Warriors and had "been very well known in our community [for] helping out with" local ranches. Carolyn testified that Stephenson "has multiple myeloma, which is a blood and bone cancer." She described his physical health as "deteriorating" and that he suffers from "lots of pain." Stephenson's cancer has caused him, according to Carolyn, to lose "all of his top teeth" and some bottom teeth.
Lansford testified that he and Stephenson each owned riverfront property, and the Bandera City Park was located on the other side of the river. He denied ever seeing Stephenson intoxicated. According to Lansford, park guests frequently trespassed onto Stephenson's property from the park. Lansford recalled an incident where he, his wife, and Stephenson were walking on their property along the river when a belligerent park guest, accompanied by several others, approached Lansford's group wanting to fight. The guest's behavior concerned Lansford, and he and Stephenson were each carrying a firearm. Lansford - not Stephenson - displayed his firearm, and the guest calmed down shortly thereafter.
Harper testified that he worked closely with Stephenson on several real estate transactions. He denied seeing Stephenson belligerent, overly aggressive, or threatening. Harper recalled a 2018 incident in which he and Stephenson met on a tract of land Stephenson had recently purchased. The two were signing real estate documents on the hood of Harper's pickup when Stephenson used his firearm to shoot into the brush. Harper thought nothing of the incident, but he noticed law enforcement gathering nearby. Later, Harper witnessed law enforcement arrest Stephenson on a charge of deadly conduct.
Payne testified that, over the years, she represented Stephenson in several real estate transactions and in a civil lawsuit that he brought against Bandera city officials. She described Stephenson as a "very amenable client." Payne recalled the civil lawsuit as an attempt to resolve a boundary dispute.
Stephenson, in accordance with Carolyn's testimony, testified about his cancer diagnosis and charitable work. He also explained three encounters with law enforcement. First, he attributed the driving while intoxicated arrest while he was out on bond awaiting trial to dental deterioration. Stephenson testified that, on the day of his arrest, all of his top teeth were extracted, and he used liquor to numb the pain. Second, Stephenson recalled the firearm-discharge incident with Harper differently than Harper. According to Stephenson, he showed Harper a new gun and touted its trigger action. They then both took a turn firing a single shot to feel the trigger. As for the incident with Jureski, Stephenson denied telling the law enforcement officer that he put his gun out of his car's window. Instead, Stephenson recalled only holding his gun up by the steering wheel in front of him.
Stephenson, through his trial counsel, requested the minimum sentence. See id. at § 12.33 ("An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years."). The State recommend that Stephenson be sentenced to thirteen years' imprisonment. The trial court assessed punishment at ten years' imprisonment.
C. Motion for New Trial
After the trial court signed a final judgment of conviction and sentence, Stephenson, represented by new counsel, filed a motion for new trial. In Stephenson's motion, he argued that his trial counsel rendered ineffective assistance by, among other things, not filing a timely election for the jury to assess punishment and not investigating physical and emotional childhood trauma inflicted on him by his father, which could have provided mitigating evidence. At the hearing on Stephenson's motion for new trial, he called: (1) Cynthia Gunnels, Stephenson's half-sister; (2) Carolyn; and (3) trial counsel.
Gunnels testified that Stephenson's father was "violent," "very tortuous in a lot of ways" and that he was physically, emotionally, and mentally abusive. Growing up, Gunnels witnessed her stepfather hit her mother and siblings. Gunnels recalled that, as punishment for something the children had done wrong, her stepfather "gut shot a horse in its stomach" and forced the family to watch "its intestines hang out for weeks" until the horse died. On another occasion, Gunnels testified that her stepfather drowned a pet ferret. Gunnels believed that Stepheson was addicted to alcohol and pain killers. She also testified that trial counsel did not contact her. Had trial counsel asked, Gunnels would have testified during the punishment phase.
Stephenson's biological father was Gunnel's stepfather.
Carolyn testified that she knew about Stephenson's traumatic childhood. Carolyn also testified that she believed Stephenson had a substance abuse problem, and she opined that it stems from his traumatic childhood. Carolyn could not recall if trial counsel investigated Stephenson's childhood or contacted the couple's two adult sons. She recalled believing that Stephenson was intoxicated when he testified during the punishment phase of his trial.
Trial counsel testified that he and Stephenson discussed trial strategy "quite a bit" as they prepared for trial. He testified that Stephenson expressed no interest in who would assess punishment until the eve of trial. As for Stephenson's mental health, trial counsel testified:
Q. Did you discuss Mr. Stephenson's mental health history with him?
A. We discussed it, and from my recollection, there wasn't any history - any mental health history.
Q. Is that - that's what he told you, correct?
A. I don't think I discussed it with anybody else, so it would have been him.
Q. That's my question. When you asked him, he says no, but you didn't go and ask anyone else in his life?
A. No.
Trial counsel recalled that Stephenson was supposed to bring trial counsel his medical records to review, but Stephenson did not do so. Trial counsel did not believe that Stephenson suffered from cognitive impairment, but he recalled Stephenson smelling of "metabolized stale alcohol" during a few in-person consultations and sounding intoxicated during evening phone calls. When trial counsel questioned Stephenson about potential alcoholism, Stephenson "denied that he had a problem with alcohol." Trial counsel acknowledged not contacting Stephenson's grown children but believed that they would attend trial. He recalled that they did not attend. Trial counsel did not see the need to hire an investigator, mitigation specialist, or psychological expert because he did not see any mental health issue that could aid Stephenson's defense.
The trial court overruled Stephenson's motion for new trial. Stephenson timely appealed.
II. Discussion
A. Lesser-Included Offense
In Stephenson's first issue, he argues that the trial court erred in failing to instruct the jury on the lesser-included misdemeanor offense of deadly conduct. We review a trial court's refusal to include a lesser-included offense instruction in its charge to the jury for an abuse of discretion. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004).
1. First Step
Whether a defendant is entitled to a jury instruction on a lesser-included offense involves a two-step analysis. Safian v. State, 543 S.W.3d 216, 219-20 (Tex. Crim. App. 2018). Under the first step, we must decide whether the offense is a lesser-included offense of the offense charged, as defined in Texas Code of Criminal Procedure article 37.09. See TEX. CODE CRIM. PROC. ANN. art. 37.09; Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998) ("The first step is to apply the relevant definition to the offense charged and the offense in question."). This is a question of law that does not depend on the evidence produced at trial. Safian, 543 S.W.3d at 219-20.
The indictment alleged that Stephenson intentionally or knowingly threatened Jureski with "imminent bodily injury by pointing a gun at him, and did then and there use or exhibit a deadly weapon, to-wit: a handgun, during the commission of said assault." See TEX. PENAL CODE ANN. § 22.02(a)(2). "Intentionally" means that it is the defendant's conscious objective or desire to engage in conduct or cause the result. Id. at § 6.03(a). A defendant acts "knowingly" with respect to the nature of his conduct or the circumstances surrounding his conduct if he is aware of the nature of his conduct or that the circumstances exist; a defendant acts "knowingly" with respect to the result of his conduct if he is aware that his conduct is reasonably likely to cause the result. Id. at § 6.03(b). Deadly conduct requires evidence that Stephenson recklessly engaged in conduct that placed Jureski in imminent danger of serious bodily injury. See TEX. PENAL CODE ANN. § 22.05(a); Guzman v. State, 188 S.W.3d 185, 190-91 (Tex. Crim. App. 2006). "Recklessness" means that the defendant is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. TEX. PENAL CODE ANN. § 6.03(c).
In its briefing, the State concedes that the first step in the analysis is satisfied here, stating that "the indictment alleged aggravated assault by threatening to cause bodily injury with a deadly weapon, which satisfies the first prong for admission of deadly conduct as a lesser-included offense." See Safian, 543 S.W.3d at 217, 219-24 (holding, as matter of law, misdemeanor offense of deadly conduct "is a lesser-included offense of aggravated assault by threat when it is alleged that the defendant used a deadly weapon during the commission of the offense").
2. Second Step
Under the second step, we must evaluate the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant, if he is guilty, is guilty only of the lesser-included offense. Id. at 220. The evidence must be evaluated in the context of the entire record, and there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. Moore, 969 S.W.2d at 8. The court may not consider whether the evidence is credible, controverted, or in conflict with other evidence. Bullock v. State, 509 S.W.3d 921, 925 (Tex. Crim. App. 2016); Moore, 969 S.W.2d at 8. Any evidence that the defendant is guilty only of the lesser-included offense is sufficient to entitle the defendant to a jury charge on the lesser-included offense. Moore, 969 S.W.2d at 8.
For a lesser-included offense instruction to be required, the evidence suggestive of the lesser offense must be more than a jury's disbelief of evidence establishing the greater offense. Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003), abrogated on other grounds by Grey v. State, 298 S.W.3d 644 (Tex. Crim. App. 2009). "[T]here must be affirmative evidence to rebut the greater element, and the jury may not simply disbelieve evidence establishing the greater." Schmidt v. State, 278 S.W.3d 353, 362 (Tex. Crim. App. 2009); see also Segundo v. State, 270 S.W.3d 79, 90-91 (Tex. Crim. App. 2008) (holding trial court properly denied lesser-included offense instruction because evidence showed only that medical examiner said it was possible for sperm to remain in person's vaginal vault for up to 72 hours, but that evidence raised only theoretical possibility that rape and murder could be disconnected in time and space, and no evidence in record showed that victim's rape and murder were, in fact, disconnected based on medical evidence that they occurred at the same time); Enriquez v. State, 21 S.W.3d 277, 278-80 (Tex. Crim. App. 2000) (holding trial court erred by giving lesser-included offense instruction for lesser amount of marijuana because chemist only tested one bundle of several in evidence); Hampton, 109 S.W.3d at 441 (holding trial court erred by including instruction on lesser-included offense of sexual assault because complainant testified knife was used during sexual assault and failure to find knife was not affirmative evidence that no knife was used).
3. Analysis
To satisfy the second step, Stephenson highlights two pieces of evidence. First, while Deputy Bolt interviewed Stephenson at the scene, Stephenson conveyed that he feared for his life and merely "pulled a gun." Second, Stephenson emphasizes that in Jureski's statements to the 91-1 operator, he described that Stephenson "held up" a gun and did not state that Stephenson verbally threatened to kill him. The State responds by arguing that Stephenson purposely chased Jureski and intentionally threatened him with his gun. The State also argues that Stephenson isolates his statement that he "pulled a gun" and Jureski's statement that Stephenson "held up" a gun to minimize his conduct to merely reckless rather than intentional.
Stephenson takes the two pieces of evidence that he highlights out of context. Such isolation is contrary to our obligation to review statements in the context of the entire record. See e.g., Chaves v. State, 630 S.W.3d 541, 554 n.15 (Tex. App.-Houston [1st Dist.] 2021, no pet.) (citations omitted). Stephenson's more complete post-Miranda statement was that he "pulled a gun, pulled it out the window." Thereafter, he stated, "[m]y anger got the best of me for about a five-mile stretch." Similarly, Jureski's statement to the 9-1-1 operator is also more detailed. Jureski told the operator "he held a gun up to my f------ window." Stephenson's pointing a gun at Jureski punctuated his pursuit of Jureski, the last moments of which were captured by Deputy Marshal Smith's dashcam. Lastly, there is Deputy Marshal Smith's observation that Stephenson was tailgating Jureski's vehicle and failing to maintain a single lane of travel.
In Dixon v. State, 358 S.W.3d 250, 258 (Tex. App.-Houston [1st Dist.] 2011, pet. ref'd), the defendant argued that the trial court erred in refusing his request for the lesser-included offenses of deadly conduct and reckless driving in defending a charge of aggravated assault with a deadly weapon. In a 9-1-1 recording, the complainant alleged that the defendant "just tried to run me over again." Id. at 254. In distinguishing the defendant's case from others, the First Court of Appeals wrote that:
here appellant did not testify about any lack of intent to strike [the complainant], nor does any evidence from any source show he lacked the intentional or knowing mental state. Instead, the only evidence shows he argued with [the complainant] and chased her in his truck while she ran away screaming, narrowly missing her as she rolled out of the way into a hole under a house that he struck.Id. at 259. In this case, as in Dixon, there is no evidence that Stephenson lacked the intentional or knowing mental state; and, when viewed in the context of the entire record, the statements that Stephenson highlights do not negate intent. See id. at 258 ("We decline to hold that the trial court abused its discretion . . . when the testimony as a whole does not negate intent ...."). We overrule Stephenson's first issue.
B. Self-Defense Instruction
In Stephenson's second issue, he argues that the trial court erred by refusing to give a jury instruction on self-defense.
1. 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). Initially, we determine whether error occurred; if so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32. The standard of review for jury-charge error depends on whether the error was preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020). At the jury-charge conference, Stephenson requested a self-defense instruction; nonetheless, the trial court refused it. Therefore, Stephenson preserved his jury-charge complaint, and we will review any error for "some harm." Id.; see also TEX. CODE CRIM. PROC. ANN. art. 36.15; Francis v. State, 36 S.W.3d 121, 123 (Tex. Crim. App. 2000).
A defendant is entitled to a self-defense instruction when that defensive issue is raised by the evidence, "whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense." Gamino v. State, 537 S.W.3d 507, 510 (Tex. Crim. App. 2017). In reviewing the denial of a requested self-defense instruction, we view the evidence in the light most favorable to the requested submission to determine whether evidence from any source will support the elements of the defense. Id.; see also Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013) ("[E]ven a minimum quantity of evidence is sufficient to raise a defense as long as the evidence would support a rational jury finding as to the defense.").
2. Applicable Law
A person commits the offense of aggravated assault with a deadly weapon if the person commits assault and uses or exhibits a deadly weapon during the commission of the assault. TEX. PENAL CODE ANN. § 22.02(a)(2). Section 9.04 of the Texas Penal Code is titled "Threats as Justifiable Force." Id. § 9.04. It provides:
A person commits the offense of assault if the person intentionally or knowingly threatens another with imminent bodily injury. Tex. Penal Code Ann. § 22.01(a)(2).
The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.Id. Section 9.04 is not a separate statutory defense; rather, it is incorporated into the law of selfdefense. Gamino, 537 S.W.3d at 510. The law of self-defense includes Section 9.31, which provides that "a person is justified in using force against another when and to the degree [he] reasonably believes the force is immediately necessary to protect [himself] against the other's use or attempted use of unlawful force." TEX. CODE CRIM. PROC. ANN. § 9.31(a); see also Gamino, 537 S.W.3d at 510.
The "reasonably believes" provision contains subjective and objective components. Lozano v. State, 636 S.W.3d 25, 32 (Tex. Crim. App. 2021). "A defendant must subjectively believe that another person used or attempted to use unlawful force (Section 9.31) or deadly force (Section 9.32) against the defendant and that the defendant's use of unlawful or deadly force in response was immediately necessary." Lozano, 363 S.W.3d at 32. Second, a defendant's subjective belief must be reasonable. Id. A reasonable belief is one held by an "ordinary and prudent man in the same circumstances as the actor." Id. (quoting TEX. PENAL CODE ANN. § 1.07(a)(42)). "In certain situations, an actor's subjective belief is presumed reasonable[.]" Id. However, "[b]y its own terms, the presumption applies under Section 9.32(b) only if the defendant first harbors a subjective belief that the use of deadly force was immediately necessary to defend himself from another's use or attempted use of deadly force." Id. at 33 (emphasis added).
The analytical framework employed in Lozano for defense against deadly force (Section 9.32) equally applies to defense against unlawful force (Section 9.31). See Lozano, 363 S.W.3d at 32.
3. Analysis
Stephenson argues that he believed it was immediately necessary to display his gun in an attempt to protect himself against Jureski's use of unlawful force and that his displaying the gun was limited to creating an apprehension that he would use deadly force. Stephenson emphasizes his statement, captured on Deputy Bolt's bodycam, that he feared for his life, and he suggests that we assess his subsequent "retraction" in light of the entire record. The State responds by arguing, among other things, that Stephenson fails to establish the confession-and-avoidance requirement. Specifically, the State argues that there is no evidence that Stephenson intended to warn Jureski.
Although Stephenson argued that he displayed his gun out of fear, the only evidence of his subjective belief is his statement on Deputy Bolt's bodycam. This contains Stephenson's assertion that he feared for his life because he contended Jureski was the aggressive driver. Immediately after making this statement, Stephenson states, "no, I'm not saying I was fearing for my life. Let me retract." Deputy Bolt asked Stephenson, "my question is: why didn't you call us." Stephenson responded, "good question . . . I should have, but my anger got the best of me for about a five-mile stretch." Thus, the evidence fails to meet the subjective belief threshold articulated in Lozano because there is no evidence that Stephenson feared for his life or that Stephenson needed to immediately use force to defend himself from Jureski. To the contrary, Jureski's testimony and his statements on the 9-1-1 recording indicate that he was fleeing from Stephenson. We overrule Stephenson's second issue.
C. Ineffective Assistance of Counsel
In Stephenson's third and fourth issues, he contends that his trial counsel rendered ineffective assistance in not filing a timely written request to have the jury assess punishment and not investigating and presenting mitigating evidence during the punishment phase.
1. Standard of Review
A defendant may move for a new trial based on ineffective assistance of counsel. See Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). When an appellant presents his ineffective assistance claim to the trial court in a motion for new trial, we analyze that claim as a challenge to the denial of the motion for new trial. See Cruet v. State, 658 S.W.3d 799, 802 (Tex. App.-Waco 2022, pet. ref'd).
We review a trial court's grant or denial of a motion for new trial for an abuse of discretion. State v. Gutierrez, 541 S.W.3d 91, 97-98 (Tex. Crim. App. 2017); State v. Simpson, 488 S.W.3d 318, 322 (Tex. Crim. App. 2016); State v. Boyd, 202 S.W.3d 393, 401 (Tex. App.-Dallas 2006, pet. ref'd). A trial court is given wide latitude in making the decision to grant or deny a motion for new trial. Boyd, 202 S.W.3d at 401.
In ruling on a motion for new trial, we apply a deferential standard of review. Najar v. State, 618 S.W.3d 366, 372 (Tex. Crim. App. 2021). The trial court is the exclusive judge of the credibility of the evidence presented at the motion for new trial hearing. Id. We also defer to the trial court's credibility choices and presume that all reasonable fact findings in support of the ruling have been made. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014).
In doing so, we "afford almost total deference to a trial court's fact findings, view the evidence in the light most favorable to the trial court's ruling, and reverse the ruling only 'if no reasonable view of the record could support' it." Najar, 618 S.W.3d at 371(quoting Okonkwo v. State, 398 S.W.3d 689, 694 (Tex. Crim. App. 2013)). In the absence of express findings, we must presume all findings in favor of the prevailing party. Id. We will reverse the trial court's ruling "only if we discern an abuse of discretion, that is, if the ruling is arbitrary or unsupported by any reasonable view of the evidence." Crucet, 658 S.W.3d at 803.
2. Applicable Law
In reviewing an ineffective assistance of counsel claim, we follow the United States Supreme Court's two-pronged test in Strickland v. Washington, 466 U.S. 668 (1984). See also, Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). Under the first prong of the Strickland test, an appellant must show that counsel's performance was "deficient." Strickland, 466 U.S. at 687; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). "This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. To be successful, an appellant must "show that counsel's representation fell below an objective standard of reasonableness." Id. at 688; accord Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the "deficient performance prejudiced the defense." Strickland, 466 U.S. at 687; accord Tong, 25 S.W.3d at 712. The appropriate standard for judging prejudice requires an appellant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694; accord Tong, 25 S.W.3d at 712. The appellant must prove that his attorney's errors, judged by the totality of the representation and not by isolated instances of error, denied him a fair trial. Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.-Texarkana 2000, pet. ref'd).
It is not enough for the appellant to show that the errors had some conceivable effect on the outcome of the proceedings. Id. The appellant must show that there is a reasonable probability that, but for his or her attorney's errors, the factfinder would have had a reasonable doubt about his or her guilt or that the extent of the punishment imposed would have been less. See id.; see also Bone v. State, 77 S.W.3d 828, 836-37 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694; accord Tong, 25 S.W.3d at 712. An appellant claiming ineffective assistance of counsel must affirmatively prove prejudice from counsel's deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App. 1999). Review of trial counsel's representation is highly deferential. Tong, 25 S.W.3d at 712. We indulge in a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
It is the appellant's burden to overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id.; accord Tong, 25 S.W.3d at 712. Moreover, 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. Crim. App. 1999). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Id.
3. Jury Election
In Stephenson's third issue, he contends that his trial counsel rendered ineffective assistance in not timely filing a written request to have the jury assess punishment. This error, according to Stephenson, deprived him of the opportunity to receive community supervision. In his initial brief, Stephenson argues that he had always preferred to have the jury assess punishment. Stephenson references the testimony of Carolyn during the hearing on his motion for new trial for the proposition that she "testified that she heard [Stephenson] tell his attorneys that he wanted the jury to decide his punishment in the event that he was convicted at trial." In Stephenson's reply brief, he argues that his "trial counsel had a responsibility to ascertain [Stephenson's] preference and ensure it was timely elected and not waived." We read this as criticism of trial counsel failing to adequately counsel Stephenson on who should have assessed punishment.
The State counters that Stephenson's reliance on Carolyn's testimony is misplaced. At the hearing on Stephenson's motion for new trial, Carolyn testified:
Q. Okay. Did you ever have occasion to hear a phone conversation from your husband's end with any of his attorneys?
A. Yes.
...
Q. Okay. And during the phone conversation, do you recall if your husband ever wanted to make an election for a jury?
A. Yes. That's always been.
...
Q. And do you recall, if you can remember, what the date was that you overheard this conversation?
A. No.
The State argues that this testimony is vague as to whether Stephenson insisted the jury assess punishment - as opposed to it only assessing guilt/innocence - and when the overheard conversation occurred. The State also highlights the new-trial hearing testimony of trial counsel, wherein he testified that Stephenson: (1) believed that he would be found not guilty; (2) would become agitated, worked up, and verbally aggressive when they discussed plea offers from the State; and (3) expressed no preference for who would assess punishment until "the 11th and a half hour a couple of days before" trial. Trial counsel also testified that he advised Stephenson that only the jury could recommend community supervision as a punishment and that the two discussed the advantages and disadvantages of who would assess punishment. Trial counsel opined that "it would be very unlikely a jury would give [Stephenson] probation because of all his violations of his bond conditions and a lot of the stuff he did leading up to the" trial.
The trial court was the sole judge of the credibility of the witnesses and as such was tasked with reconciling potentially conflicting testimony on the fact question of whether and when trial counsel advised him about his right to elect to have the jury assess punishment. Najar, 618 S.W.3d at 372. It was within the trial court's discretion to conclude that the "overheard conversation" Carolyn recalled occurred on the eve of trial, as alluded to by trial counsel. The fact that no sworn motion for community supervision appears in the clerk's record may have bolstered the trial court's conclusion. Moreover, the trial court may have credited the testimony from trial counsel that he adequately counseled Stephenson on the advantages and disadvantages of who would assess punishment. As such, we conclude that the court did not abuse its discretion by denying Stephenson's contention that his trial counsel rendered ineffective assistance in not timely filing a written request to have the jury assess punishment and in not adequately counseling Stephenson on who should assess punishment. We overrule Stephenson's third issue.
4. Mitigating Evidence
In Stephenson's fourth issue, he contends that his trial counsel rendered ineffective assistance by not investigating and presenting mitigating evidence during the punishment phase. Specifically, Stephenson faults trial counsel for not investigating and presenting evidence that he suffered a traumatic childhood. Stephenson contends that his traumatic childhood caused him to suffer mental health issues and abuse substances and alcohol. The State responds by arguing that Stephenson's criticism fails to appreciate that trial counsel's mitigation strategy during the punishment phase was - regardless of trial counsel's investigative efforts - reasonable. According to the State, trial counsel attempted to portray Stephenson as a stable family man and a professional real-estate developer and philanthropist. The incident with Jureski was, according to the State's assessment of trial counsel's mitigation strategy, isolated. Stephenson's post-judgment criticism would have had trial counsel, according to the State, portray Stephenson as psychologically damaged, drug and alcohol addicted, and prone to anger due to childhood trauma inflicted on him in the 1960s.
In Stogiera v. State, No. 04-04-00675-CR, 2006 WL 3419778, at *1 (Tex. App.-San Antonio Nov. 29, 2006, no pet.) (mem. op, not designated for publication), the defendant alleged that Bruner, his trial counsel, was ineffective because Bruner did not investigate and present psychological evidence as mitigation facts during both phases of his trial for criminal solicitation with the intent to commit aggravated sexual assault of a child. We observed that Bruner testified at a motion for new trial hearing that he "had no indication that there was any kind of psychological problem with" the defendant. Id. at *2. Regarding the alleged ineffective assistance during the guilt/innocence phase, we elaborated:
Bruner testified that he spent many hours with Stogiera[, the defendant], interviewed members of Stogiera's family, and when Bruner repeatedly asked if there was anything in Stogiera's background that would be helpful to the case, Bruner was not told about any abuse history or mental health problems. Additionally, there was no report in the pre-sentence investigation, which was conducted by a probation officer, that Stogiera was ever sexually abused. Therefore, based on his own professional experience, Bruner found that there was absolutely no evidence that Stogiera had ever been abused or had a mental illness. Finally, Bruner testified that information regarding Stogiera's mental health or alleged abuse would have been very damaging to his trial strategy. Bruner felt that such information would have negated his effort to establish Stogiera's lack of intent and would have led the jury to believe that Stogiera was inclined or had a compulsion to commit sex acts against children. Because there was no evidence that Bruner knew about Stogiera's mental health problems or was aware that Stogiera may have been abused in the past, Stogiera did not prove that Bruner's trial strategy was unsound.
Id. Regarding the alleged ineffective assistance during the punishment phase, we observed:
Where the issue is whether trial counsel conducted an adequate investigation for potential mitigating evidence, "we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of [appellant's] background was itself reasonable." Strickland does not require counsel to investigate every
conceivable line of mitigating evidence nor does it require defense counsel to present mitigating evidence at sentencing in every case.Id. (quoting Wiggins v. Smith, 539 U.S. 510, 523 (2003); Freeman v. State, 167 S.W.3d 114, 11718 (Tex. App.-Waco 2005, no pet.)). We overruled both of appellant's ineffective assistance of counsel issues.
Like the defendant in Stogiera, Stephenson denied to trial counsel that he had any mental health issue. Stephenson also denied having any mental health issue to the probation officer who drafted the PSI report, which trial counsel received. Carolyn, during her punishment phase testimony, denied that Stephenson's alcohol consumption interfered with his daily functioning and denied that Stephenson used illegal substances. Accordingly, it would have been reasonable for trial counsel to conclude that Stephenson neither suffered from mental illness nor abused alcohol and illegal substances. Stephenson's failure-to-investigate contention fails under the first prong of Strickland. See Wiggins, 539 U.S.at 523; Freeman, 167 S.W.3d at 117-18; see also Stogiera, 2006 WL 3419778, at *2. Stephenson's criticism of trial counsel's strategic decision to paint the incident with Jureski as isolated also fails. Lansford, Harper and Payne were all professionals who had positive business relationships with Stephenson. Their testimony advanced the narrative that Stephenson's two prior gun-related incidents was also an aberration. While this strategy did not yield the sentence Stephenson desired, we cannot say that it was unreasonable. We overrule Stephenson's fourth issue.
III. Conclusion
We affirm the trial court's judgment.