Opinion issued February 6, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00312-CR ——————————— KIRK ASA FREGIA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 68,719 MEMORANDUM OPINION
A jury found appellant Kirk Asa Fregia guilty of the second-degree felony
offense of aggravated assault.1 The jury also found at least two of the four felony
enhancement allegations in the indictment to be true. In accordance with the
habitual offender statute, the jury assessed appellant’s punishment at 30 years in
prison.2 In one issue, appellant asserts that he received ineffective assistance of
counsel during the guilt-innocence phase of trial.
We affirm.
Background Summary
On August 18, 2012, appellant and his girlfriend, Dana, went to a wedding
and then to a barbeque. Afterward, they returned home to Dana’s house where the
two had been living together for four months. When they arrived home, appellant
took Dana’s cell phone away from her and listened to her voicemail. Appellant
became agitated when he heard a message left Dana’s male friend. Appellant tore
off Dana’s dress and began punching her and throwing her to the ground. Dana
escaped from appellant and ran outside, screaming for help and asking her
neighbors to call the police.
1 See TEX. PENAL CODE ANN. § 22.02 (Vernon 2011). 2 See TEX. PENAL CODE ANN. § 12.42(d) (Vernon Supp. 2013). 2 At the time, Garrett Hough, who lived across the street from Dana, was in
his front yard cutting down a tree. Before Dana came out of her house, Hough had
heard yelling coming from Dana’s house and what sounded, to him, like things
being slammed against the walls. Hough saw Dana come out of her house and
heard her ask for someone to call the police. He saw that she was upset and
physically shaken.
Hough also saw appellant come out of the house and load items into
appellant’s truck. It appeared to Hough that appellant was packing to move out.
Hough then saw appellant put a padlock on the front door of Dana’s house. Hough
did not see Dana and was concerned that she was still in the house. Hough crossed
the street and approached appellant. Hough asked appellant where Dana was.
Appellant did not respond. Hough then saw Dana coming out of another
neighbor’s house.
Dana told Hough that appellant had her cell phone and that she needed to get
it back from him. Appellant had gotten into his truck, which was parked in the
yard of Dana’s house, and had started the engine. Dana’s yard was fenced with the
only exit being a gate, which was the width of one vehicle with approximately one
or two feet to spare on each side.
Dana and Hough stood in front of appellant’s truck and indicated to
appellant that Dana wanted her cell phone. Appellant had one foot on the truck’s
3 accelerator and the other foot on the brake. Appellant revved the engine and took
his foot off the brake making the truck jump or lurch forward toward Dana and
Hough. Appellant did this a number of times. Appellant yelled that he would kill
Dana and Hough if they did not move.
The last time that appellant revved the engine, Dana and Hough were two
feet in front of the truck. The truck came forward. Hough reacted by jumping
straight up and pushing Dana out of the way. Hough was struck by the truck.
Hough would later testify that he had jumped straight up when the truck came
toward him because he was in the center of the gate opening and believed he could
not move to the side to avoid being hit by the truck.
Hough landed on his knees on the truck’s hood and grabbed the top of the
hood by the windshield. Appellant sped out of the yard and onto the road with
Hough hanging on to the hood. Appellant pulled back into the yard and began
doing “donuts” or circles in the grass in an attempt to sling Hough from the hood.
Appellant was yelling, “I’m going to kill you.” Hough was yelling for appellant to
stop the truck. Hough began punching the windshield with one of his hands and
broke the windshield in two spots. Appellant stopped the truck. Hough jumped
off and ran. As a result of the incident, Hough suffered scraped knees and bruising
as well as cuts and puncture wounds to his hand.
4 Appellant was charged with the second-degree felony offense of aggravated
assault. The first paragraph of the indictment stated that appellant had
“intentionally or knowingly or recklessly cause[d] bodily injury” to Hough and that
appellant had used or exhibited “a deadly weapon, namely, a vehicle, which in the
manner of its use or intended use was capable of causing death or serious bodily
injury by striking . . . Hough with a vehicle the defendant was driving.” The
second paragraph of the indictment further alleged that appellant had “intentionally
or knowingly threaten[ed] . . . Hough with imminent bodily injury and . . . use[d]
or exhibit[ed] a deadly weapon, namely, a vehicle, which in the manner of its use
or intended use was capable of causing death or serious bodily injury.”
The indictment also contained four enhancement paragraphs. The first two
alleged that appellant had been convicted of two felonies on November 3, 1999.
The third and fourth paragraphs alleged that appellant had later been convicted of
two felonies on September 28, 2007.
Hough and Dana testified for the State regarding the events of August 18,
2012. Appellant testified in his own defense. Appellant’s version of the events
differed from that of Dana and Hough. Appellant admitted that he had assaulted
Dana that day. He stated that he had packed his belongings into his truck to move
back to his own home. He testified that he got into his truck and started to drive
slowly throw the gate opening, which is very narrow. According to appellant,
5 Dana jumped in front of the truck and demanded that he return her cell phone.
Appellant told her that it was in the house on the bed.
Appellant stated that Dana has moved to the side when Hough jumped on
the hood of his truck. Before that moment, appellant had not noticed Hough.
Appellant testified that Dana’s and Hough’s claims indicating that Hough had
stood in front of his truck with Dana was a lie. Appellant testified that Hough
began to scream, “He’s tried to kill me! He’s tried to kill me!” Appellant stated
that it scared him when Hough jumped on his truck. As a result, appellant stated
that he “gunned it,” leaving a one-foot-long black tire mark on the road.
Appellant testified that another man, who he believed to be Hough’s relative,
tried “to get me through the window” as appellant was pulling out through the gate
opening. Appellant stated that he rolled up the window, but the man broke the
window. This also alarmed appellant, causing him to step on the accelerator.
Appellant testified that the man grabbed his steering wheel, sending his
truck spinning into the grass. When counsel asked him if he was going in circles
on purpose, appellant answered, “No. I was trying to get him off my truck.”
Appellant stated that he would periodically stop to try to get the man “to leave me
alone.” He said that he stopped the truck three or four times and told the man to
get off his truck. Appellant stated that the man was clawing at his face and holding
the steering wheel. Appellant testified that, during this time, Hough was on the
6 hood of the truck beating the windshield with two fists, causing the glass to break
in two places.
Appellant claimed that he was driving slowly the entire time because he did
not want to hurt Hough. Appellant stated that he also kept his foot on the brake the
whole time. When asked if he had made the “donuts” with his truck to fling
Hough off, he said that he had not. Appellant stated that he did not want to hurt
Hough. But appellant admitted to spinning his wheels in the grass. He indicated
that he did this to get the men off the truck but claimed that he spun the wheels
with one foot on the brake while driving slowly. He claimed that this enabled him
to be in control of the truck in case one of the men fell off. He stated that he did
not want to hurt the men.
Appellant testified that he finally punched the other man in the face, causing
the man to fall off the truck. Appellant stated that he stopped the truck so that he
would not run over the man. Appellant stated that the man then got up and tried to
drag appellant out through the window. Appellant stated that he then shifted the
truck into park and started to get out of the vehicle. Appellant testified that Hough
and the other man began to scream that appellant had a gun and ran away.
Appellant stated that he did not have a gun or any other type of weapon that day.
Appellant testified that he did not intentionally or knowingly try to hurt
Hough or the other man. He also stated that he did not recklessly try to hurt them.
7 Appellant also testified that he was in fear for his life that day. When asked
why, appellant said it was because Hough is much larger than him and because
Hough’s behavior was surprising.
The jury found appellant guilty of the offense of second-degree aggravated
assault, as charged in the indictment. The jury then found at least one of the
enhancement allegations regarding appellant’s 1999 felony convictions to be true
and found at least one of the allegations regarding the 2007 felony convictions to
be true. The jury assessed appellant’s punishment at 30 years in prison.
Appellant did not file a motion for new trial. This appeal followed.
Ineffective Assistance of Counsel
Appellant presents one issue, complaining that he received ineffective
assistance of counsel during the guilt-innocence phase. Appellant asserts that his
counsel was ineffective because she failed to request either a jury instruction of
self-defense or a jury instruction regarding the defense of necessity.
A. Applicable Legal Principles
To prevail on an ineffective assistance of counsel claim, an appellant
typically must show by a preponderance of the evidence both deficient
performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064 (1984); Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.
2009). Failure to make the required showing of either deficient performance or
8 sufficient prejudice defeats the ineffectiveness claim. See Williams, 301 S.W.3d at
687; Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005).
To show deficient performance, an appellant must demonstrate that his
attorney’s performance fell below an objective standard of reasonableness under
prevailing professional norms. Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064;
Ex parte Lane, 303 S.W.3d 702, 707 (Tex. Crim. App. 2009). In our review, we
indulge a strong presumption that counsel’s conduct fell within a wide range of
reasonable representation. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App.
2005). We must review the totality of the representation and the circumstances of
each case without the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143
(Tex. Crim. App. 2011). “[T]he record must demonstrate that counsel’s
performance fell below an objective standard of reasonableness as a matter of law,
and that no reasonable trial strategy could justify trial counsel’s acts or omissions,
regardless of his or her subjective reasoning.” Id. at 143.
To show sufficient prejudice, the appellant must show the existence of a
reasonable probability that, but for his attorney’s deficient performance, the result
of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.
Ct. at 2068; Lane, 303 S.W.3d at 707. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694,
104 S. Ct. at 2068.
9 B. Analysis
As stated, appellant claims that he received ineffective assistance of counsel
at trial because his attorney failed to request either a jury instruction of self-defense
or a jury instruction regarding the defense of necessity. Appellant asserts that his
counsel should have requested a charge on the right of self-defense against the
complainant and a charge on self-defense against multiple assailants.
A defendant is entitled to an instruction on self-defense if the 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. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). A
defense is supported (or raised) by the evidence if there is some evidence, from any
source, on each element of the defense that, if believed by the jury, would support
a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657–
58 (Tex. Crim. App. 2007).
Pursuant to Penal Code subsection 9.31(a), a person is justified in using
force against another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the other’s use or
attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a) (Vernon 2011).
The actor’s belief that the force was immediately necessary as described by this
subsection is presumed to be reasonable if the actor:
10 (1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
Id.
A defendant is entitled to a charge on the right of self-defense against
multiple assailants if there is evidence that, when viewed from the his perspective,
the defendant reasonably believed “‘that he was in danger of an unlawful attack or
a threatened attack at the hands of more than one assailant.’” Frank v. State, 688
S.W.2d 863, 868 (Tex. Crim. App. 1985) (quoting Wilson v. State, 145 S.W.2d
890, 893 (1940)).
Appellant also asserts that his trial counsel should have requested the jury to
be instructed on the defense of necessity. The defense of necessity is available to
11 justify criminal conduct if (1) the defendant reasonably believes that his conduct is
immediately necessary to avoid imminent harm; (2) the desirability and urgency of
avoiding the harm clearly outweigh the harm sought to be prevented by the law
proscribing the conduct; and (3) no legislative purpose exists to exclude the
defense. TEX. PENAL CODE ANN. § 9.22 (Vernon 2011).
The doctrine of confession and avoidance applies to the defenses of self-
defense and necessity. See Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App.
2010) (necessity); Ex parte Nailor, 149 S.W.3d 125, 132–34 (Tex. Crim. App.
2004) (self-defense). The Court of Criminal Appeals has been clear that, before
becoming entitled to a jury instruction on the defenses of necessity and self-
defense, the defendant must admit the act alleged and then produce evidence that
supports the appropriate defense. See, e.g., Juarez, 308 S.W.3d at 399; Ex parte
Nailor, 149 S.W.3d at 132–34.
To establish that appellant committed the offense of aggravated assault as
alleged in the first paragraph of the indictment, the State was required to prove that
appellant intentionally, knowingly, or recklessly caused bodily injury to Hough by
using a deadly weapon, namely, a vehicle, to strike appellant. See TEX. PENAL
CODE ANN. §§ 22.01(a)(1) (Vernon 2011) (defining simple assault); 22.02(a)(2)
(Vernon 2011) (defining aggravated assault). At trial, appellant did not admit to all
of the elements of the offense of aggravated assault, as charged in the indictment’s
12 first paragraph. Specifically, appellant testified that Hough was not standing in
front of the truck and denied seeing Hough. Appellant claimed that he did not
strike Hough with his truck but instead claimed that it was Hough who jumped on
the hood of his truck. Thus, appellant denied the mens rea element of the offense
with respect to the allegations in the first paragraph.
Appellant does not premise his assertion on appeal that his trial counsel
should have requested self-defense and necessity instructions as they relate to the
allegations in the first paragraph of the indictment. Rather, appellant focuses on
the aggravated-assault allegation as stated in the indictment’s second paragraph.
To establish that appellant committed the offense of aggravated assault as
alleged in the second paragraph, the State was required to prove that appellant
intentionally or knowingly threatened Hough with imminent bodily injury and used
or exhibited a deadly weapon, namely, a vehicle, during the commission of the
assault. See TEX. PENAL CODE ANN. §§ 22.01(a)(2); 22.02(a)(2). The jury was
correctly instructed that a “deadly weapon” means anything that in the manner of
its use or intended use is capable of causing death or serious bodily injury. See
TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (Vernon Supp. 2013); Sullivan v. State,
248 S.W.3d 746, 751 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
Appellant asserts that he was entitled to self-defense and necessity
instructions with regard to the charge of aggravated assault as alleged in the second
13 paragraph. At trial, the State indicated that the jury could find appellant guilty
under the second paragraph based on the evidence showing that (1) appellant
accelerated after Hough landed on the hood; (2) appellant continued to drive with
Hough on the hood of the truck; and (3) appellant drove into the yard where he did
“donuts” or circles in an attempt to fling Hough off the truck, which he was using
as a deadly weapon.
At trial, appellant admitted to accelerating after Hough landed on the hood.
However, appellant claimed that he had accelerated because he was surprised by
Hough’s jumping on the hood and then by the other man attacking him through the
window. In other words, appellant claimed that his acceleration was a reaction and
not a conscious choice. Appellant claimed that he turned into the yard because the
other man was grabbing the steering wheel. Appellant stated that, after the initial
acceleration, he was driving slowly, “barely crawling,” while keeping his foot on
the brake. He testified that he stopped three or four times to allow the men to get
to off the truck. Appellant stated that he was driving in this manner to ensure that
he did not hurt the men. Appellant did, however, testify that he wanted the men to
get off his truck. He stated that is why he continued to drive after he stopped each
time. Appellant also admitted to spinning his wheels in the yard to indicate to the
men that they should get off the truck. However, appellant claimed that he spun
his wheels with his foot on brake while driving slowly, which enabled him to stay
14 in the control of the truck in case one of the men fell off. In closing argument,
appellant asserted that, because of the careful manner in which he was driving, he
was not using a deadly weapon; that is, he was not using the truck in a manner
capable of causing death or serious bodily injury. Thus, appellant arguably was
not entitled to the defensive instructions because he did not admit to every element
of the charged offense. See Shaw v. State, 243 S.W.3d 647, 657 (Tex. Crim. App.
2007) (indicating that defensive instruction is appropriate only when defendant’s
defensive evidence essentially admits to every element of the offense but
interposes the justification to excuse the otherwise criminal conduct).
In short, appellant asserts on appeal that he was entitled to the defensive
instructions because he admitted to driving with Hough on the hood and to
spinning his truck in circles, albeit in a safe manner, to encourage the men to get
off his truck. He thereby admitted to conduct on which the State, in part, based the
aggravated assault charge. He also points out that this conduct was justified
because he claimed that he was in fear for his life that day.
Even if we presume that he was entitled to the defensive instructions,
appellant has not shown that he received ineffective assistance of counsel at trial.
Counsel’s performance will be sufficient if any strategic motive can be
envisioned and will be considered deficient only if “the conduct was so outrageous
that no competent attorney would have engaged in it.” Andrews v. State, 159
15 S.W.3d 98, 101 (Tex. Crim. App. 2005). Here, although no motion for new trial
was filed, a strategic motive can be envisioned as to why trial counsel did not
request the defensive instructions of self-defense and necessity.
At trial, appellant choose to defend against the aggravated-assault charge by
emphasizing that he acted carefully and with restraint when he was driving with
Hough on his hood. Appellant testified that he was “barely crawling” as he drove
with Hough on the hood, kept his foot on the brake, and stopped several times to
let Hough off the truck. Appellant’s counsel could have believed that requesting
the defensive instructions would have undercut appellant’s claim that he did not act
forcefully, shifted the focus of the defense, and confused the jury. Counsel may
have also reasonably believed that the instructions may have seemed inconsistent
with appellant’s testimony, thereby weakening his credibility.
We conclude that appellant did not meet his burden to satisfy the first
Strickland prong; that is, he has not shown that he his counsel engaged in deficient
performance when she did not request the trial court to instruct the jury regarding
self-defense and necessity. Strickland, 466 U.S. at 687–88, 104 S. Ct. at 2064. We
hold that appellant has not shown that he received ineffective assistance of counsel
at trial. See id.
We overrule appellant’s sole issue.
16 Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).