Andrew Barnes v. State

• Court: Court of Appeals of Texas
• Decided: October 8, 2009
• Docket: 01-08-00797-CR
• Status: Published

Opinion

Opinion issued October 8, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00797-CR

____________

ANDREW BARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1179556

MEMORANDUM OPINION

A jury found appellant, Andrew Barnes, guilty of the offense of murder ⁽¹⁾ and assessed his punishment at confinement for forty years. In five issues, appellant contends that the evidence is legally and factually insufficient to rebut his claim of self-defense, the trial court erred in excluding evidence of the complainant's aggressive character and prior aggressive acts and in admitting autopsy photographs that were more prejudicial than probative, and his trial counsel provided ineffective assistance of counsel.

We affirm.

Background

Houston Police Department ("HPD") Officer P. Jackson testified that on the morning of September 3, 2006, he was dispatched to the home of sixty-nine-year-old Robert Jackson, the complainant. An emergency dispatcher had received a telephone call from the complainant's residence, but the caller did not speak into the phone. When he arrived at the complainant's house, Officer Jackson noted burglar bars completely enclosed the front porch and front door and "the burglar bar doors were locked." On the front door was a sign that read, "Occupants are armed; Intruders will be shot." A window to the left of the front door, inside the enclosed front porch, was broken. Because he was unable to enter through the front door, Jackson went around the house, through an open gate, to the backyard, where he saw that "the back door and all the windows were boarded up." Seeing nowhere to enter the house from the backyard, Jackson returned to the broken window in the front of the house where he heard what sounded like a radio playing at a low volume. Jackson looked through the broken window and "saw what looked to be an outline of a person's upper torso" on the floor. Jackson pounded on the house, yelled that he was a police officer, and asked if everything was "okay." He then thought that he saw the person on the floor raise his hand intermittently as if he needed help.

Using a key that a neighbor showed him under the complainant's mailbox, Officer Jackson entered the house and saw blood "all over"--on the kitchen counter, on the floor, on a desk, and on a telephone. He saw the complainant sitting in a chair by a desk with blood "on his face, all over his head, his arms, his hands, [and] his legs." Jackson asked the complainant, "Do you know who did it?" The complainant responded, "It's the boy that cuts my grass."

HPD Officer R. King testified that when he arrived at the complainant's house after Officer Jackson, he saw "blood spatter evidence on many surfaces" and a "pool of coagulated blood" on the floor. King also saw a knife lying on the living room floor.

King explained that later in the day, he received information about a possible suspect at appellant's house, which is two blocks away from the complainant's house. King and HPD Officer R. Moreno went to appellant's house and knocked on the door. A man answered the door and allowed them to enter the house, where they found appellant standing in a bedroom closet. King informed appellant that he was under arrest and searched him for weapons and identification. In appellant's left hip pocket, King discovered the complainant's wallet. King also testified that appellant "could have been under the influence of some substance that made him more lethargic" when he was arrested.

HPD Crime Scene Unit Officer D. Lambright testified that after he arrived at the complainant's home, he collected a baseball bat that officers had found in a vacant lot near the complainant's house. Lambright noted that the bat had blood and scratches on it. When he examined the broken window at the complainant's home, Lambright determined that it had been "broken with a blunt object" and "was struck from the outside to the inside." Lambright explained that the blood spatter in the complainant's living room indicated that the complainant had been bludgeoned. He noted that the knife found on the living room floor only had small droplets of blood on it, indicating that the knife had not been used to cut anyone.

Lambright further testified that on a table in the complainant's master bedroom he saw a "revolver-type handgun," which appeared to have "been there for a while." Lambright also saw a large number of pill bottles, with prescription labels made out to the complainant, in the master bathroom and the living room. In the living room, Lambright retrieved from the complainant's desk a notebook in which the complainant had written appellant's name and phone number and a note that appellant would cut the complainant's grass. Lambright retrieved this notebook because, at the hospital, the complainant told HPD Sergeant J. Parker that the name of the person who attacked him was on a pad on his table.

When Officer Lambright later went to appellant's house, he recovered from appellant's room three bottles of pills with the complainant's name on them. One of the bottles, which was labeled "Claritin D," was empty. The other two bottles contained pills and were labeled "Hydralazine" and "Amoxi/Clav."

Harris County Assistant Medical Examiner M. Anzalone testified that the complainant died on March 1, 2007, after six months of "required chronic ventilatory support and nursing home placement." Based on his autopsy on the complainant's body, Anzalone opined that fractures on the complainant's skull indicated that he had been hit in the head at least five times.

Appellant testified that in 2000, when he was eleven years old, he began mowing the complainant's lawn and would also do other jobs around his house. Sometimes the complainant would "just want to talk to [appellant] or have [him] inside [the] house." At some point, the complainant began to "[t]ouch [appellant's] private parts" approximately "once every couple of weeks." In 2005, when appellant told the complainant that he "was tired of it and [he] didn't want it to go on anymore," the complainant "started cursing at [him] . . . and said that [appellant had] to let him do things to [appellant] or [the complainant] was going to call the police," and accuse appellant of stealing his wallet. The complainant did later accuse appellant of stealing his wallet, and when HPD Officer Hadnot contacted appellant about the accusation, appellant "made a statement that [he] didn't steal [the complainant's] wallet that day." Appellant explained that the complainant further began to call appellant's telephone "and threaten to kill [him]." However, they reconciled later that summer, and appellant started working for him again.

Appellant further testified that the complainant, over time, had given him many bottles of pills and that the pill bottles found by police officers in his room had been given to him sometime in 2004 or 2005. Although, appellant asserted that he had not stolen any pills from the complainant, he acknowledged that he had been convicted of possessing a controlled substance in 2003 and of burglary in 2005.

Appellant explained that at 10:30 p.m. on September 2, 2006, the complainant picked him up from his house and drove him to the complainant's house, where the complainant gave him seven or eight pills. After appellant swallowed five of the pills and put the rest in his pocket, he then "passed out." When he awoke, the complainant "was over [him], touching [his] private parts," and appellant said, "Let me out. I don't want this to happen anymore." They began arguing, and the complainant said, "I'm going to kill you, you little bastard." Appellant found the complainant's wallet by the fireplace and said, "Is this the wallet you're going to accuse me of stealing? I'm going to take this to my mom and Officer Hadnot." Appellant explained that he did not "intend to use it for [his] own gain." Appellant put the wallet in his pocket and said, "Let me out right now." The complainant threatened appellant again and then "opened his front door to let [appellant] out as [he] requested."

After appellant walked onto the front patio area, which was enclosed by the locked burglar bars, the complainant "slammed the door . . . and started screaming he was going to kill [appellant] and blow [his] head off." Appellant screamed for help for about two minutes and then grabbed a baseball bat that was near the porch and broke a window so that he could go into the house to "look for some keys or another window that might be open without bars" to get away from the house. When he entered the house through the window, appellant saw the complainant standing near the kitchen with a knife in his hand. When appellant told the complainant to give him a key and let him out, the complainant "came at [appellant] with the knife." Appellant then hit the complainant with the baseball bat. After hitting the complainant, appellant "ran to the back part of the house looking for a window or keys," but, finding nothing, he returned to the living room, where the complainant attacked him again without the knife. Appellant "hit him some more times" until the complainant fell down. Then appellant "jumped back through the window and . . . [saw that he] might be able to squeeze through the top of the burglar bars." After squeezing through the bars, appellant went back to his house.

On cross-examination, appellant testified that he had cut his hands and arms when he crawled through the broken window. He admitted that he did not see the complainant with a firearm in his hands that night even though the complainant had approximately two minutes to retrieve the firearm from his bedroom while appellant was on the front porch. Appellant agreed that when he first hit the complainant with the baseball bat, he hit him on the head. Then, returning to the living room, appellant hit him on the head "around four or five times" with the baseball bat even though the complainant did not "have a knife or gun in his hand at the time." When he struck the complainant with the last several blows, appellant agreed that the complainant had dropped to one knee.

Sandra Villalta and Ben Amos, who lived in the same neighborhood as the complainant and appellant, both testified about numerous incidents in which the complainant threatened to kill them and had used crude and abusive language towards them. Villalta testified that the complainant, who had threatened to kill her husband, had previously accused her husband of stealing from him and trespassing on his property. Amos testified that once, when he was driving down the complainant's street, the complainant came at him with a baseball bat and a gun and threatened to kill him. HPD Officer A. Castillo testified that the complainant had previously called him to complain about neighbors trespassing on his property and that the complainant had threatened three times to kill his neighbors if they did not stop. HPD Officer D. Carbajal testified that he previously responded to a call from the complainant who alleged that appellant had stolen money from his wallet. Carbajal explained that the complainant did not want to "pursue charges. [The complainant] just wanted to cover his end of the deal - he wanted to cover himself in case the [appellant] stated he fondled him."Sufficiency of the Evidence In his first and second issues, appellant argues that the evidence is legally and factually "insufficient to rebut appellant's claim of self defense" because the evidence established that appellant "reasonably believed he could not have retreated . . .[,] that [the complainant] was about to use deadly force against him . . .[, and] that he had to protect himself by the use of deadly force."

We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979)). In doing so, we give deference to the responsibility of the fact-finder to fairly resolve conflicts in testimony, to weigh evidence, and to draw reasonable inferences from the facts. Id. However, our duty requires us to "ensure that the evidence presented actually supports a conclusion that the defendant committed" the criminal offense of which he is accused. Id.

In a factual sufficiency review, we view all the evidence in a neutral light, both for and against the finding, and set aside the verdict if the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or the proof of guilt, although legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). We note that a jury is in the best position to evaluate the credibility of witnesses, and we afford due deference to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Although we should always be "mindful" that a jury is in the best position to decide the facts and that we should not order a new trial simply because we disagree with the verdict, it is "the very nature of a factual-sufficiency review that . . . authorizes an appellate court, albeit to a very limited degree, to act in the capacity of a so-called 'thirteenth juror.'" Watson, 204 S.W.3d at 416-17. Thus, when an appellate court is "able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate fact jurisdiction to order a new trial." Id. at 417.

A person is justified in using deadly force if he has a reasonable belief that it is immediately necessary to protect himself from another's use of deadly force and a reasonable person in his place would not retreat. See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2003). ⁽²⁾ A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v. State, 804 S.W.2d 910, 913-14 (Tex. Crim. App. 1991)). Once a defendant presents evidence of self-defense, the State has the burden of persuasion in disproving the evidence of self-defense. Id. The State is not required to produce evidence refuting the self-defense claim; the State need only prove its case beyond a reasonable doubt. Id. A jury verdict of guilty is an implicit finding rejecting a defendant's self-defense theory. Id.

When an appellant challenges the legal sufficiency of the rejection of a self-defense claim, it is well-settled law that appellate courts "look not to whether the State presented evidence which refuted appellant's [defensive evidence], but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found . . . against appellant on the [defensive] issue beyond a reasonable doubt." Saxton, 804 S.W.2d at 914. In a factual sufficiency review of the rejection of a self-defense claim, we review "all of the evidence in a neutral light and [ask] whether the State's evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence." Zuliani, 97 S.W.3d at 595.

In support of his legal sufficiency challenge, appellant emphasizes that the complainant had a reputation in the community for carrying a weapon and for aggressive conduct; the complainant's home had a sign on the front door stating, "Occupants are armed; Intruders will be shot"; the burglar bars and sealed windows in the complainant's home made leaving the home difficult; a handgun was lying on a TV stand in the complainant's bedroom; a bloody knife was found near the complainant's body; and appellant knew the complainant had weapons, feared the complainant, and believed the complainant would kill him.

Viewing all of the evidence in the light most favorable to the verdict, we note the critical fact that appellant was able to climb into, or out of, the complainant's front porch through the locked burglar bars. He broke the complainant's window to enter the house and struck the complainant with a baseball bat several times even after the complainant had dropped his knife and had fallen to one knee. The complainant's wallet and medicine were subsequently found in appellant's bedroom. Given this evidence, a reasonable trier of fact could have disbelieved appellant's explanation that he had struck the complainant repeatedly with a baseball bat because he was in fear of his life. A reasonable trier of fact could have found that appellant either did not have a reasonable belief that such force was immediately necessary to protect himself or that he could have retreated. Accordingly, we hold that the evidence is legally sufficient to support the jury's implied finding that appellant was not justified in using deadly force.

In support of his factual sufficiency challenge, appellant emphasizes that the complainant "had an aggressive, quarrelsome character" and a reputation in the community for "displaying weapons to threaten neighbors and passers-by"; the complainant's house "was a fortress with limited means of egress"; the complainant owned weapons; and the complainant had threatened to kill appellant and others in the neighborhood numerous times.

Viewing the evidence in a neutral light, it is true that the complainant had previously threatened to kill certain neighbors, passers-by, and appellant. The complainant had charged others, either while carrying a bat or other implement, but he never actually physically assaulted any of them. Appellant himself testified that before any violence had occurred, the complainant let him out of the house onto the front porch. Most importantly, although burglar bars enclosed the front porch and appellant testified that he had broken back into the house only to find another way to leave, appellant also testified that he was later physically able to squeeze through the bars to leave the home. The complainant did have a knife in his hand when appellant re-entered the house, but appellant testified that the complainant dropped the knife after appellant hit him with the baseball bat. Appellant also admitted that he did not see the complainant with any other kind of weapon in his hands after he struck the complainant, and he testified that he hit the complainant an additional four or five times in the head, striking the final blows after the complainant had dropped to one knee.

Viewing the evidence in a neutral light, a reasonable trier of fact could have concluded that it was not necessary for appellant to use deadly force or that a reasonable person in appellant's place would have retreated. See Tex. Penal Code Ann. §§ 9.31(a), 9.32(a). Thus, we conclude that the verdict is not "clearly wrong and manifestly unjust" and the proof of guilt is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. Accordingly, we hold that the evidence is factually sufficient to support the jury's implied finding that appellant was not justified in using deadly force.

We overrule appellant's first and second issues.

Excluded Testimony

In his third issue, appellant argues that the trial court erred in excluding testimony from five witnesses--Lydia Winterrowd, Brian McIlwain, Troy Pope, Joseph Santhoff, and James Santhoff--because their testimony that the complainant "had an aggressive character and had committed prior aggressive acts" was "probative of [the complainant's] state of mind" and its probative value was not outweighed by the danger of unfair prejudice. See Tex. R. Evid. 404(a)(2), 403. We review a trial court's decision to admit evidence for an abuse of discretion. Narvaiz v. State, 840 S.W.2d 415, 429 (Tex. Crim. App. 1992). An "appellate court will not reverse a trial court's ruling unless that ruling falls outside the zone of reasonable disagreement." Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).

In a murder prosecution, a defendant who raises the issue of self-defense may introduce evidence of the violent character of the complainant in the form of "opinion or reputation testimony to prove the deceased acted in conformity with his violent nature." Id.; see Tex. R. Evid. 404(a)(2). "Specific, violent acts of misconduct may only be admitted to show the reasonableness of the defendant's fear of danger, or to show that the deceased was the first aggressor." Torres, 71 S.W.3d at 760. Such specific acts are admissible only to the extent that they have relevance apart from their tendency to show character conformity. Id. The defendant may offer testimony about specific violent acts that show the reasonableness of the defendant's fear of danger if the defendant was aware of the violent acts. Id.

However, if the defendant was unaware of the specific violent acts, he may use those prior specific acts of violence relevant to the ultimate confrontation to show that the deceased was the first aggressor by "demonstrating the deceased's intent, motive, or state of mind." Id. at 760-61; see Tex. R. Evid. 404(b); 1 Steven Goode, Olin Guy Wellborn, III, & M. Michael Sharlot, Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 404.4, at 157 (2d ed. 1993 & Supp. 2001) (noting that specific violent acts are admissible to show that deceased had motive or intent to be first aggressor). Before a specific, violent act is introduced, there must be some evidence of a violent or aggressive act by the deceased that tends to raise the issue of self-defense and that the specific act may explain. Torres, 71 S.W.3d at 761. "Then, as long as the proffered violent acts explain the outward aggressive conduct of the deceased at the time of the killing, and in a manner other than demonstrating character conformity only, prior specific acts of violence may be admitted to show the deceased was the first aggressor even though those acts were not directed against the defendant." Id. at 762 (emphasis added).

For example, in Torres, evidence that the deceased had previously threatened to kill his ex-girlfriend's aunt and her children was admissible to show that the deceased was the aggressor because it explained the deceased's conduct toward the defendant, i.e., that he had "a mind set of violence against those who might stand between him and" his ex-girlfriend or the "intent or motive of getting back with [his ex-girlfriend] one way or another or keeping others away from [her] by violence if necessary." Id. at 762. In Jenkins v. State, evidence that the deceased had a prior conviction for assault with intent to murder was admissible to show that the deceased was the aggressor because there was evidence of some act of aggression by the deceased, which the prior act tended to explain, i.e., the deceased verbally threatened to kill the defendant and put his hand in his pocket just before the defendant shot him. 625 S.W.2d 324, 325-327 (Tex. Crim. App. 1981). In Tate v. State, evidence that two months prior to his death the deceased made a statement that he might have "to kill the little son of a bitch [the defendant] some day" was admissible to show that the deceased was the first aggressor because it "was probative of his state of mind and possibly indicated a motive or demonstration of intent behind the confrontation" with the defendant. 981 S.W.2d 189, 193 (Tex. Crim. App. 1998).

Here, Winterrowd's proffered testimony was that the complainant had discharged a firearm outside her front door, left human feces at her door, and attempted to "run [her] over with his car" as she was walking through a parking lot. Appellant's trial counsel argued that her testimony was admissible as reputation evidence and as specific "bad acts." Joseph and James Santhoff both testified that they saw the complainant walk down his driveway and wave his fist or gardening tools at them as they drove past his house. Additionally, James Santhoff testified that one morning the complainant waved him down as he drove by, opened his car door, and began "yelling at [Santhoff] and screaming profanities, saying he was going to kick [Santhoff's] butt and that he was mad that [Santhoff] was driving so fast down his street." Appellant's trial counsel argued that this testimony demonstrated that the complainant had "a violent temper" and would counter the State's argument that the complainant was a "frail, tiring, old man in his dotage."

On appeal, appellant asserts that the testimony of Winterrowd and the Santhoffs about specific acts of the complainant is "probative of [his] state of mind" to show he was the aggressor. Appellant did present evidence of violent and aggressive acts committed by the complainant that tended to raise the issue of self-defense. However, in his brief, appellant does not offer any explanation as to how the complainant's acts towards Winterrowd and the Santhoffs is probative as to the complainant's state of mind during the incident in question. See Tex. R. Evid. 404(b); Torres, 71 S.W.3d at 760.

To be admissible, a witness' testimony about the aggressive conduct of a complainant must explain the aggressive conduct toward a defendant at the time of the confrontation and in a manner other than demonstrating character conformity only. Torres, 71 S.W.3d at 762. Here, appellant did not explain to the trial court and does not explain in his brief how the testimony of Winterrowd and the Santhoffs demonstrates more than character conformity. Unlike the situations presented in Torres, Jenkins and Tate, where the witnesses' testimony about the deceaseds' prior violent acts clarified the deceaseds' confrontations with the defendants, appellant offers no explanation as to how the complainant's actions towards Winterrowd and the Santhoffs clarify his actions toward appellant during the incident in question. Accordingly, we hold that the trial court did not err in excluding the testimony of Winterrowd and the Santhoffs.

Regarding the testimony of Pope, appellant's trial counsel asserted only that Pope's testimony was admissible "to show that [the complainant was] not a feeble old man in his dotage." Appellant's trial counsel did not assert that Pope's testimony was admissible to prove the complainant's aggressive character and prior aggressive acts. "Appellate courts may uphold a trial court's ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised." Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002). To preserve a complaint, the record must show that an appellant raised a timely request stating "the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." Tex. R. App. P. 33.1(a)(1)(A). Because appellant did not request that the trial court allow Pope to testify about the complainant's aggressive character or prior aggressive acts, he has not preserved this complaint for review. Id.

Regarding the testimony of McIlwain, appellant asserts that McIlwain would have shown "that [the appellant's] house was strewn with liquor bottles and pill bottles." However, he does not explain in his briefing how the trial court erred in excluding this testimony. "The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(I). Appellant has inadequately briefed this issue, and, thus, it is waived.

Accordingly, we hold that the trial court did not err in excluding the testimony of Pope and McIlwain.

We overrule appellant's third issue.Autopsy Photographs

In his fourth issue, appellant argues that the trial court erred in admitting into evidence certain autopsy photographs--State's Exhibits 112, 114, 119, 121, 124, 127, and 130-35--because the probative value of these photographs is substantially outweighed by their prejudicial effect. See Tex. R. Evid. 403.

The trial court allowed assistant Medical Examiner M. Anzalone to select photographs "that you need [that] would help the jury to understand the deceased's injuries that you are going to be testifying to," and appellant objected to the admission into evidence of the photographs. State's Exhibit 112 shows the complainant's body under hospital sheets with feeding tubes attached to him; 114 shows a close up of the complainant's head; 119, 121 and 124 show close ups of the complainant's shaved head from different perspectives to reveal his wounds; 127, 131 and 132 show the complainant's skull with the skin pulled back to display fractures on the right, back, and left sides of his skull, respectively; 130 shows the airway attachment of the right lung with mucus plugging the airway; 133 shows the complainant's skull opened to reveal contusions and bruises on his brain; and 134 and 135 show the complainant's brain removed from the skull to reveal bruises and contusions on the right side and on the base of his brain.

In order to be admissible, photographs must be relevant to the solution of a disputed fact issue. Lanham v. State, 474 S.W.2d 197, 199 (Tex. Crim. App. 1972). Autopsy photographs provide powerful visual evidence of an offense, and a trial court does not abuse its discretion in admitting photographs of a complainant into evidence merely because they may be gruesome. Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995). Relevant photographs may, however, be excluded if their probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. In determining the prejudicial effect of photographs, we consider (1) the number of photographs, (2) the size of photographs, (3) whether the photographs are in color or black and white, (4) the detail shown in the photographs, (5) whether the photographs are gruesome, (6) whether a body shown in the photographs is naked or clothed, and (7) whether the photographed body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to an appellant's detriment. Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000).

Appellant first argues that the probative value of the photographs is low because he did not deny striking the complainant with the bat or contest that the blows led to the complainant's death. Nevertheless, autopsy photographs showing the cause of a complainant's death are admissible even when a defendant does not contest the cause of death. Newbury v. State, 135 S.W.3d 22, 41-44 (Tex. Crim. App. 2004).

Appellant next argues that the probative value of the photographs is low because "there was a substantial gap in time between the blows struck by [a]ppellant on September 3, 2006" and the complainant's death, "[c]onsequently the photos represented [the complainant] not as he was immediately after the blows struck by [a]ppellant, but as he became after seven months in the hospital." However, appellant does not explain how the time between the attack and the complainant's death and autopsy impacts the probative value of these photographs. The photographs show skull fractures that indicate that the complainant had been struck in the head at least five times, a relevant fact in this case. Thus, the photographs had probative value that was not substantially outweighed by the danger for unfair prejudice even though not taken immediately after the blows were struck.

Appellant next argues that the photographs labeled as exhibits 127 and 130-35 should have been excluded because they depict mutilation resulting from the autopsy. Dr. Anzalone used the photographs to explain the nature and extent of the complainant's internal injuries resulting from the blows from the bat. The photographs are no more gruesome than would be expected. See Sonnier, 913 S.W.2d at 519. When the power of the photographs comes from "nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence." Id.

In regard to exhibit 130, which shows a cutaway of the complainant's right lung with mucus clogging the airway, Dr. Anzalone used this photograph to explain the ultimate cause of the complainant's death. She testified that the complainant died from "complications following blunt head trauma with skull fractures, subdural hemorrhage and brain contusions." Mucus plugging the airway to the lung is a frequent occurrence in people, such as the complainant, who have been mechanically ventilated. If verbal testimony is relevant, photographs of the same are also relevant. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007). Because Dr. Anzalone could properly testify about the factors contributing to the cause of the death of the complainant, such as mucus that clogged his right lung, the trial court did not abuse its discretion in admitting this photograph.

Finally, appellant argues that the State invested more time in admitting these photographs than their probative value would warrant because there are forty pages of testimony from the medical examiner developing this evidence. See Hall v. State, 137 S.W.3d 847, 855 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd). In Hall, the medical examiner's testimony was only twenty-nine pages long out of hundreds of pages of testimony in the record. The court held that the six pages of testimony covering the three objected-to photographs did not unduly lengthen the trial. Id. Here, the record is also several hundred pages long, and Dr. Anzalone referenced the objected-to photographs periodically in about thirteen pages out of over fifty-five pages of her testimony. As in Hall, Dr. Anzalone's testimony regarding the objected-to photographs did not inordinately prolong the trial or unduly focus the jury on the photographs.

Accordingly, we hold that the probative value of the photographs was not substantially outweighed by any prejudicial effect and the trial court did not err in admitting the autopsy photographs into evidence.

We overrule appellant's fourth issue.

Ineffective Assistance of Counsel

In his fifth issue, appellant argues that his trial counsel provided ineffective assistance because counsel made statements during voir dire that "undermine[d] [a]ppellant's self-defense theory" and asked "only minimal questions to determine if there were any prospective jurors who would not be able to follow the law on self-defense"; did not, during his closing argument in the guilt phase of the trial, "cite the self-defense charge, interpret the meaning in lay language, and illustrate how it applied to the facts"; and, during the punishment phase of the trial, did not "present medical and psychiatric testimony about [a]ppellant to help the jury understand why he acted as he did."

The standard of review for evaluating claims of ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). Strickland requires a two-step analysis whereby an appellant must show that (1) counsel's performance fell below an objective standard of reasonableness, and (2) but for counsel's unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Id. at 687-94, 2064-68; Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).

Moreover, an appellant must prove ineffective assistance by a preponderance of the evidence. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.--Houston [1st Dist.] 1996, no pet.). The assessment of whether a defendant received effective assistance of counsel must be made according to the facts of each case. Thompson, 9 S.W.3d at 813. We must look to the "totality of the representation and the particular circumstances of each case" in evaluating the effectiveness of counsel. Id. In so doing, we must also recognize the strong presumption that counsel's performance fell within the wide range of reasonable professional assistance. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064-65; Thompson, 9 S.W.3d at 813. To defeat this presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), abrogated on other grounds by, Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation. Thompson, 9 S.W.3d at 813. However, a single egregious error of omission or commission by counsel has been held to constitute ineffective assistance, even in the absence of a record setting forth counsel's reasons for the challenged conduct. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (per curiam); Valencia v. State, 966 S.W.2d 188, 191 (Tex. App.--Houston [1st Dist.] 1998, pet. ref'd); Laurant v. State, 926 S.W.2d 782, 783 (Tex. App.--Houston [1st Dist.] 1996, pet. ref'd). In the rare case where the record on direct appeal is sufficient to prove counsel's performance was deficient, an appellate court should address the claim. Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Voir Dire Questioning

Appellant asserts that his trial counsel devoted his entire voir dire to the subject of self-defense but his approach "hampered [him] in his obligation to educate members of the jury panel about the requirements of self-defense." Also, appellant complains that trial counsel used a hypothetical that supported the State's theory of the case and "led jurors to misunderstand what Appellant's defense was likely to be." Trial counsel did use a hypothetical that was not entirely consistent with the facts of the case to illustrate the concept of self-defense. However, the hypothetical was only one technique trial counsel employed to educate the jury about self-defense. He also explained that "you have to put yourself in the shoes of the person claiming [self-defense] and look at it from his standpoint alone at the time he claims it and evaluate it." Trial counsel further explained that "a person asserting self-defense can consider the words spoken along with the bodily language that's being used by the person [he acts] in self-defense against" in determining the reasonableness of the person's actions. Trial counsel emphasized the law of self-defense throughout voir dire, leading any prospective jurors who had trouble with the hypothetical back to the basic principle that "you as a citizen have a right to use deadly force against another who you reasonably believe is about to cause you serious bodily injury or death." On these facts, we cannot conclude that appellant's trial counsel's performance was deficient.

Final Argument on Guilt or Innocence

Appellant next asserts that the "court's charge include[d] many legal terms and concepts whose meaning would not be immediately clear to the members of the jury" and that "[h]ad defense counsel explained the charge to the jury and explained how the defense evidence satisfied its requirement" the outcome likely would have been different.

At the beginning of his closing argument, trial counsel stated "I'm not going to get into the jury charge. You people are plenty intelligent and can read this thing yourselves." From the record, trial counsel's strategy focused on the story of the relationship between appellant and the complainant and how that led up to both the incident in question and how appellant reacted during the incident. He did remind the jury that in determining the facts and applying them to the charge that "as we've all agreed, you have to look at it from [appellant's] point of view as he saw it at the time. And you have to consider the relationship between the parties." He also admonished the jury to consider the reasonableness of appellant's actions in the situation, his right to defend himself, his right to try to live, and the real danger that appellant faced. Trial counsel further highlighted weaknesses in the State's theory that this was a homicide committed during a burglary or robbery. He also pointed out uncontroverted evidence from appellant and from the complainant's neighbors that supported appellant's self-defense claim. It is apparent that the jury understood the argument because it acquitted appellant of the offense of capital murder and found him guilty of the lesser offense of murder. Thus, we cannot say trial counsel's performance was deficient.

Punishment Phase

Appellant next asserts that, during the punishment phase, trial counsel failed to present medical and psychiatric testimony about appellant "to help the jury understand why [appellant] acted as he did."

The decision whether to present witnesses is largely a matter of trial strategy. See Rodd v. State, 886 S.W.2d 381, 384 (Tex. App.--Houston[1st Dist.] 1994, pet. ref'd). Moreover, an attorney's decision not to present particular witnesses at the punishment stage may be a strategically sound decision if the attorney bases it on a determination that the testimony of the witnesses may be harmful, rather than helpful, to the defendant. See Weisinger v. State, 775 S.W.2d 424, 427 (Tex. App.--Houston [14th Dist.] 1989, pet. ref'd) (holding that it is trial counsel's prerogative, as matter of trial strategy to decide which witnesses to call). However, a failure to uncover and present mitigating evidence cannot be justified as a tactical decision when defense counsel has not conducted a thorough investigation of the defendant's background. Wiggins v. Smith, 539 U.S. 510, 521, 123 S. Ct. 2527, 2535 (2003); Rivera v. State, 123 S.W.3d 21, 31 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd).

Here, trial counsel called only appellant's brother during the punishment phase to testify on appellant's behalf. While this may appear to be a failure to uncover and present mitigating evidence, we simply have no facts in the record regarding trial counsel's strategy at sentencing. It is possible that trial counsel determined that psychiatric testimony would not be favorable to appellant. Accordingly, we hold that appellant has not satisfied the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

We overrule appellant's fifth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. Tex. R. App. P. 47.2(b).

1. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003).

2. Although the Legislature has amended sections 9.31 and 9.32 of the Penal Code, the offense for which the jury convicted appellant occurred in September 2006, which was before the effective date of the amendments. Accordingly, our analysis of appellant's issues is governed by the previous version of the statutes. Act of June 19, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3598 (amended 2007); Act of May 27, 1995, 74th Leg., R.S., ch. 235, § 1, 1995 Tex. Gen. Laws 2141, 2141 (amended 2007).