Derrick Deshaun Forney v. State ( 2006 )

Affirmed and Memorandum Opinion filed August 24, 2006

Affirmed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00641-CR

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DERRICK DESHAUN FORNEY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 176th District Court

Harris County, Texas

Trial Court Cause No. 1030781

M E M O R A N D U M   O P I N I O N

A jury convicted appellant, Derrick Deshaun Forney, of aggravated assault on a public servant.  See Tex. Penal Code Ann. ' 22.02(a), (b)(2) (Vernon Supp. 2005).  The jury found two enhancement allegations true and assessed punishment at life in the Texas Department of Criminal Justice, Institutional Division.  We affirm. 

Factual and Procedural Background

On June 9, 2004, a felony arrest warrant team of three Houston police officers proceeded to 1702 Napoleon Street in Houston, Texas to execute a felony arrest warrant for appellant.  After knocking on the door, Officer Matt Richard saw appellant through a window, but appellant did not answer the door.  The police proceeded to forcibly gain entrance to the house by breaking through burglar bars with a tire iron and kicking in the front door.  Officer Richard then saw appellant inside the house holding a gun. Officer Richard shouted, AGun,@ and he and the team followed protective procedures and hid behind cars in front of the house.

Officer Richard instructed the individuals inside the house to exit with their hands up.  Two people complied with the instructions.  After the first person was detained by Sergeant Gallier but while the second person was kneeling at the front door, a gunshot was fired from inside the house through a front window.  A few moments later, appellant ran through the front door, firing a gun.  Appellant stopped at the car behind which Officer Richard was hiding and fired several shots directly at Officer Richard.  Officer Richard returned fire, but he did not hit appellant.  Appellant then ran from the scene on foot.  Officer Richard survived the shooting with gunshot wounds to both legs, his hip, and his side. 

After several days of hiding, appellant turned himself in to police.  He was subsequently charged with aggravated assault on a public servant. 

Discussion

Appellant raises four points of error on appeal.  He first claims the evidence is legally and factually insufficient to sustain a conviction.  He next claims ineffective assistance of counsel first during guilt/innocence and then during punishment.

I. Legal and Factual Sufficiency

In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005).  The jury, as the sole judge of the credibility of the witnesses, chooses whether or not to believe all or part of a witness=s testimony.  See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).  We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision.  Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Thus, if there is evidence establishing guilt beyond a reasonable doubt, we are not authorized to reverse the judgment on sufficiency of the evidence grounds.

In a factual sufficiency review, we consider all the evidence in a neutral light and determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  The evidence may be factually insufficient in two ways.  Id.  First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust.  Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005); Zuniga, 144 S.W.3d at 484.  Second, when the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.  Prible, 175 S.W.3d at 730B31; Zuniga, 144 S.W.3d at 484B85. AA clearly wrong and unjust verdict occurs where the jury=s finding is >manifestly unjust,= >shocks the conscience,= or >clearly demonstrates bias.=@  Prible, 175 S.W.3d at 731.  Our evaluation of the evidence should not intrude upon the fact-finder=s role as the sole judge of the weight and credibility of the evidence.  Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  In conducting a factual sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

A person commits assault if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person=s spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Tex. Penal Code Ann. ' 22.01(a) (Vernon Supp. 2005).  A person commits the offense of aggravated assault when the person commits an assault, and either (1) causes serious bodily injury to another or (2) uses or exhibits a deadly weapon during an assault.  Tex. Penal Code Ann. ' 22.02(a).  A person commits aggravated assault against a public servant if the offense is against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty.  See Tex. Penal Code Ann. ' 22.02(b)(2).

The State presented testimony from the police officers at the scene on the day in question, from several crime scene investigators, and an eye-witness living across the street.  Through this testimony the State showed Officer Richard knocked on the front door of 1702 Napoleon Street and announced they were looking for appellant.  Officer Richard saw appellant look through the blinds, but appellant did not answer the door.  After prying open the burglar bars with a tire iron, Officer Richard kicked in the door to gain access to the house.  He saw appellant with a gun, yelled AGun,@ and retreated behind appellant=s car for protection.  Officer Richard then shouted instructions for the occupants of the house to exit, and two other people inside the house exited without incident.  While the second person was exiting the house, a gun fired from inside the house through a front window. Shortly thereafter, appellant ran from the house firing his gun.  Appellant fired several shots directly at Officer Richard and then fled on foot from the scene. 

Appellant did not testify about any events occurring substantively different than those described by the police testimony, except appellant testified hearing Officer Richard call out that he was going to blow appellant=s head off when he came out of the house.  Appellant testified this made him fearful for his life.  Appellant further testified he flushed marijuana down the toilet and then was going to change his shirt before exiting the house, so the police would not think he was the same person who Officer Richard previously saw with the gun and would not try to shoot him. Appellant testified he looked through the blinds again and saw Officer Richard point his weapon at appellant, and this further enhanced appellant=s fear.  Appellant testified his gun accidentally fired through the window.  Once the gun fired, appellant did not think he could surrender to police without being shot first. He decided to flee the house, and that is when he exited the house firing his gun.  When appellant reached the car Officer Richard was hiding behind, appellant testified he felt he could not turn his back to the officer in fear of being shot in the back.  Appellant also testified he intentionally shot Officer Richard in the legs, so not to kill the officer but only to protect himself.  On cross examination, appellant admitted Officer Richard did not fire any shots at appellant until after appellant shot Officer Richard in the leg. 

Viewing this evidence in the light most favorable to the verdict, a rational trier of fact could have found the elements of aggravated assault against a public servant beyond a reasonable doubt.  The jury, as the sole judge of credibility of the witnesses, did not believe appellant=s version of events that he was being threatened by police and put in fear for his life whereby his only way to safety was to flee while firing his weapon at police. Appellant knew he was wanted by the police, he possessed marijuana and a handgun when police arrived looking for him, and he fired his weapon before any police officers fired their weapons.  We overrule appellant=s legal sufficiency point of error. 

The same facts that make evidence legally sufficient may also make it factually sufficient.  See Prible, 175 S.W.3d at 731. Appellant felt he needed to preemptively use deadly force to protect himself from Officer Richard because Officer Richard threatened to shoot appellant in the head and pointed his weapon at appellant.  One other witness also testified hearing Officer Richard threaten appellant, but only the jury decides what amount of weight to give such testimony.  When considering the evidence in a neutral light, this contrary evidence is not so strong that the beyond-a-reasonable-doubt standard could not have been met, nor is the evidence supporting the guilty verdict so weak it is clearly wrong and manifestly unjust.  See id. at 730B31.  We overrule appellant=s factual sufficiency point of error.

II. Ineffective Assistance of Counsel

In his third and fourth points of error, appellant claims ineffective assistance of counsel.  Appellant argues his trial counsel failed to make a hearsay objection, failed to request a jury instruction on necessity, and failed to object to improper closing argument by the prosecutor.  The standard of review for an appellate issue claiming ineffective assistance of counsel is well settled.  We apply the two-prong test from Strickland v. Washington, 466 U.S. 668, 687B92, 104 S. Ct. 2052, 2064B67, 80 L. Ed. 2d 674 (1984) as recited in Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986).  See Green v. State, 191 S.W.3d 888, 893B94 (Tex. App.CHouston [14th Dist.] 2006, pet. filed).

Appellant does not meet the first prong of Strickland because the record is undeveloped.  The first prong of Strickland requires appellant to demonstrate his counsel=s performance was deficient and not reasonably effective.  Strickland, 466 U.S. at 688, 104 S. Ct. at 2064.  Any allegation of ineffectiveness must be firmly founded in the record.  Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).  When the record is silent about the motivations of counsel, we cannot conclude counsel=s performance was deficient.  See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  In such circumstances, appellant fails to rebut the presumption trial counsel=s decisions were reasonable.  Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).  An appellate court is not required to speculate on trial counsel=s actions when confronted with a silent record.  See Jackson, 877 S.W.2d at 771; McCoy v. State, 996 S.W.2d 896, 900 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d).  However, if a silent record clearly indicates no reasonable attorney could have made such trial decisions, to hold such counsel ineffective is not speculation.  See Vasquez v. State, 830 S.W.2d 948, 950B51 (Tex. Crim. App. 1992).

The record before us contains no explanation as to why defense counsel failed to object to hearsay testimony, failed to request a necessity defense, and failed to object to improper jury argument.  Appellate counsel filed a motion for new trial but did not raise ineffective assistance of counsel as a ground in the motion.  Further, A[i]solated instances in the record reflecting errors of omission or commission do not render counsel=s performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel=s performance for examination.@  Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).  Trial counsel=s alleged errors do not rise to a level such that no reasonable attorney could have made such trial decisions.  Therefore, we overrule appellant=s third and fourth points of error.

Conclusion

Having considered and overruled each of appellant=s points of error, we affirm the judgment of the trial court. 

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 24, 2006.

Panel consists of Justices Anderson, Edelman, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).