OPINION
HEDGES, Justice.
A jury found appellant, Raymond Howard Marlow, guilty of murder. The trial court assessed punishment at 45-years confinement. On a previous appeal of this conviction, appellant’s counsel filed an Anders1 brief, asserting that the appeal was wholly frivolous and without merit. Appellant then filed an untimely pro se brief, raising two points of error, and we affirmed. The Court of Criminal Appeals vacated this court’s judgment and remanded for further proceedings. On remand, we overruled appellant’s first point of error, sustained appellant’s second point of error, and reversed and remanded for new trial. We then granted the State’s motion for rehearing, withdrew our earlier opinion in which we had reversed and remanded, and we ordered appellant to re-brief his case and raise any issues he desired. In four points of error, appellant claims he received ineffective assistance of counsel, and he asserts the trial court committed fundamental error in failing to charge the jury sua sponte on defense of property or on self-defense as it relates to the prevention of robbery or aggravated robbery. We affirm.
Facts
Appellant was disabled and received supplemental security income (SSI). He and complainant, Harold Ashlock, had known each other for over four years. Appellant and complainant had a history of getting drunk together and fighting. On March 31, 1990, appellant cashed his SSI check at a grocery store and purchased two bags of groceries and five and a half gallons of wine. Appellant’s purchase also included a folding knife, which became the murder weapon a few hours later. Appellant and complainant [316]*316then took a taxi to a motel, paid for a room, and began drinking. Appellant testified that he saw complaint taking his money, and, when he tried to stop him, complainant “went to hit me.” At that point, appellant stabbed complainant in the chest with the knife “to get him off me.”
Complainant lay on the bed awhile and then got up and wandered to the open doorway, where he told two nearby residents of the motel that he needed an ambulance. Officer Jeffrey Shipley of the Houston police department responded to the stabbing call and found complainant lying on his back, still alive, in front of the motel room door. Complainant told Officer Harold Childers, also of the Houston police department, that appellant had stabbed him. Complainant was transported to Ben Taub Hospital, where he died later that day from the stab wound.
Ineffective Assistance of Counsel
In his first and second points of error, appellant asserts that he received ineffective assistance of counsel under the constitutions of the United States and of Texas. He bases this claim primarily on counsel’s failure to request instructions on defense of property and self-defense as it relates to preventing robbery or aggravated robbery. Appellant contends that the evidence at trial raised neither voluntary manslaughter nor self-defense as defined in the jury charge. He further contends that his own testimony raised defense of property, under Tex Penal Code Ann. § 9.42 (Vernon 1974), and self-defense as it relates to preventing robbery or aggravated robbery, under Tex.Penal Code Ann. § 9.32(3)(B) (Vernon Supp.1994). Appellant argues that, because these issues were raised by the evidence, and because the evidence did not support any other defensive theory, defense counsel should have requested these instructions in the jury charge. Appellant claims that counsel’s failure to do so constituted ineffective assistance. We disagree.
The proper standard for attorney performance is reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984). “There are countless ways to provide effective assistance in any given case.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2064. Trial counsel must have wide latitude in making strategic and tactical decisions. Otherwise, counsel would lose its constitutionally protected independence. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To “eliminate the distorting effects of hindsight,” this Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Strickland, 466 U.S. at 689, 104 S.Ct. at 2064; Ingham, 679 S.W.2d at 509.
In Strickland, the Supreme Court set forth a two-step test for evaluating ineffectiveness claims:
First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064. Appellant has the burden of proving ineffective assistance of counsel and must meet this two-step test by a preponderance of the evidence. Davis v. State, 830 S.W.2d 762, 765 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd).
A. Jury Instructions
Appellant’s primary basis for his claim of ineffective assistance is counsel’s failure to request instructions raised by the evidence. The charge included the following instruction on self-defense:
Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is [317]*317immediately necessary to protect himself against the other person’s use or attempt ed use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force, and if a reasonable person in the defendant’s situation would not have retreated.
(Emphasis added.)
The question here is whether the following testimony raises the issue of self-defense as defined in the jury charge:
Q. State what happened then, sir, when you saw him taking your money.
A. Okay. I went to stop him from taking my money. He went to hit me.
Q. All right. Then what did you do?
A I grabbed that knife, and I stuck him.
Q. One time or two times?
A Just once, enough to get him off me.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
HEDGES, Justice.
A jury found appellant, Raymond Howard Marlow, guilty of murder. The trial court assessed punishment at 45-years confinement. On a previous appeal of this conviction, appellant’s counsel filed an Anders1 brief, asserting that the appeal was wholly frivolous and without merit. Appellant then filed an untimely pro se brief, raising two points of error, and we affirmed. The Court of Criminal Appeals vacated this court’s judgment and remanded for further proceedings. On remand, we overruled appellant’s first point of error, sustained appellant’s second point of error, and reversed and remanded for new trial. We then granted the State’s motion for rehearing, withdrew our earlier opinion in which we had reversed and remanded, and we ordered appellant to re-brief his case and raise any issues he desired. In four points of error, appellant claims he received ineffective assistance of counsel, and he asserts the trial court committed fundamental error in failing to charge the jury sua sponte on defense of property or on self-defense as it relates to the prevention of robbery or aggravated robbery. We affirm.
Facts
Appellant was disabled and received supplemental security income (SSI). He and complainant, Harold Ashlock, had known each other for over four years. Appellant and complainant had a history of getting drunk together and fighting. On March 31, 1990, appellant cashed his SSI check at a grocery store and purchased two bags of groceries and five and a half gallons of wine. Appellant’s purchase also included a folding knife, which became the murder weapon a few hours later. Appellant and complainant [316]*316then took a taxi to a motel, paid for a room, and began drinking. Appellant testified that he saw complaint taking his money, and, when he tried to stop him, complainant “went to hit me.” At that point, appellant stabbed complainant in the chest with the knife “to get him off me.”
Complainant lay on the bed awhile and then got up and wandered to the open doorway, where he told two nearby residents of the motel that he needed an ambulance. Officer Jeffrey Shipley of the Houston police department responded to the stabbing call and found complainant lying on his back, still alive, in front of the motel room door. Complainant told Officer Harold Childers, also of the Houston police department, that appellant had stabbed him. Complainant was transported to Ben Taub Hospital, where he died later that day from the stab wound.
Ineffective Assistance of Counsel
In his first and second points of error, appellant asserts that he received ineffective assistance of counsel under the constitutions of the United States and of Texas. He bases this claim primarily on counsel’s failure to request instructions on defense of property and self-defense as it relates to preventing robbery or aggravated robbery. Appellant contends that the evidence at trial raised neither voluntary manslaughter nor self-defense as defined in the jury charge. He further contends that his own testimony raised defense of property, under Tex Penal Code Ann. § 9.42 (Vernon 1974), and self-defense as it relates to preventing robbery or aggravated robbery, under Tex.Penal Code Ann. § 9.32(3)(B) (Vernon Supp.1994). Appellant argues that, because these issues were raised by the evidence, and because the evidence did not support any other defensive theory, defense counsel should have requested these instructions in the jury charge. Appellant claims that counsel’s failure to do so constituted ineffective assistance. We disagree.
The proper standard for attorney performance is reasonably effective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984). “There are countless ways to provide effective assistance in any given case.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2064. Trial counsel must have wide latitude in making strategic and tactical decisions. Otherwise, counsel would lose its constitutionally protected independence. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. To “eliminate the distorting effects of hindsight,” this Court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Strickland, 466 U.S. at 689, 104 S.Ct. at 2064; Ingham, 679 S.W.2d at 509.
In Strickland, the Supreme Court set forth a two-step test for evaluating ineffectiveness claims:
First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687, 104 S.Ct. at 2064. Appellant has the burden of proving ineffective assistance of counsel and must meet this two-step test by a preponderance of the evidence. Davis v. State, 830 S.W.2d 762, 765 (Tex.App.—Houston [1st Dist.] 1992, pet. ref'd).
A. Jury Instructions
Appellant’s primary basis for his claim of ineffective assistance is counsel’s failure to request instructions raised by the evidence. The charge included the following instruction on self-defense:
Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is [317]*317immediately necessary to protect himself against the other person’s use or attempt ed use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.
A person is justified in using deadly force against another if he would be justified in using force against the other in the first place, as above set out, and when he reasonably believes that such deadly force is immediately necessary to protect himself against the other person’s use or attempted use of unlawful deadly force, and if a reasonable person in the defendant’s situation would not have retreated.
(Emphasis added.)
The question here is whether the following testimony raises the issue of self-defense as defined in the jury charge:
Q. State what happened then, sir, when you saw him taking your money.
A. Okay. I went to stop him from taking my money. He went to hit me.
Q. All right. Then what did you do?
A I grabbed that knife, and I stuck him.
Q. One time or two times?
A Just once, enough to get him off me.
Q. Was he literally on you?
A Almost. He was close enough where I could go like that though.
Q. What happened after you stuck him?
A He stopped. He just sat down and all of a sudden he laid down in the bed, and that was it....
Q. When you testified earlier, sir, that he came at you—
A Yeah.
Q. What happened exactly? Can you tell the jury the specifics, exactly what happened or how it happened?
A All I know is he went for my money. I went to stop him, and that’s when he started hitting me. I grabbed the knife and stuck him and there was no place for me to go to. I can’t get up and stand up and fight him.
Q. At any time during this period of time were you afraid of the guy at all or anything?
A Afraid he was going to hurt me like he’s done before.
Q. Did you have any — do you feel that you had any choice to do what you did?
A Well, it was either do that or let him beat the hell out of me and take my money and leave....
Q. Could you have done anything else other than what you did do at that time other than stick him?
A No. Like I said, I can’t get up and fight him. I can’t do that because I can’t walk.
From this testimony alone, the jury could have inferred that appellant was in fear of his life. Appellant was disabled and could not retreat from the beating that complainant had begun to inflict upon him. Hence, self-defense was a reasonable theory of defense in this case. See Tex.Penal Code Ann. § 9.32(1), (2), (3)(A) (Vernon Supp.1994).
The record indicates that trial counsel intentionally chose self-defense as the only defensive theory, even though other defensive theories were available. The theories of defense to be included in the jury charge generally fall within counsel’s wide latitude to make strategic and tactical decisions. Appellant relies upon Vasquez v. State, 830 S.W.2d 948 (Tex.Crim.App.1992), for the proposition that trial counsel was ineffective by failing to request instructions on alternative defenses that were available. Vasquez, however, involved the omission of the only available defense. In the present case, appellant had several defensive theories available to him, and trial counsel chose to proceed with only one of those, namely, self-defense. This is within his prerogative as a matter of trial strategy.
The jury did not have the option of the alternative defensive theories appellant now raises, but this omission does not constitute ineffectiveness. Trial counsel may pursue one reasonable defensive theory and exclude others; this is within his constitutionally protected independence under Strickland.
[318]*318B. Statement to Police
In addition, appellant claims that trial counsel was ineffective in failing to object to several items of evidence, including his own statement containing vulgar and hostile language, an investigator’s report that was contained in an autopsy report, and the murder weapon, which was seized from the motel room with neither a warrant nor appellant’s consent. Appellant claims on appeal that trial counsel should have objected to the following written statement, which appellant signed a few hours after the stabbing:
Harold Ashlock jump [sic] on me and I stuck him with a pocket knife. Yea I stick him again five hundred more times, that mother f-. F— the judge too, f— Huntsville. I will do my time, if I get out I will stick him again. It dont [sic] make a different [sic], I am going to do life. I had to do what I had to do, thats [sic] not the first time he jumped on me. He will not jump on me again. I will kill him next time, I will make sure he’s dead next time. If he thinks I [sic] f-lying, try me. I kill that mother f-dead like a f-rat, worst [sic] then [sic] a f-rattle snake.
Trial counsel joined the State in offering appellant’s written statement into evidence. This was part of his defensive trial strategy, evident from his own opening statement, when he told the jury, “[Y]ou have to get the intent from that statement.” Appellant has failed to show how trial counsel was deficient in using this written statement to show intent.2
C. Investigator’s Report
Appellant contends that attached to the medical examiner’s report was the investigator’s report, which appears to have been prepared by an Officer J. Brite. Appellant claims that this report “contains considerable inadmissible hearsay, such as Sgt. Alderetti’s description of the incident.” The portion of the report to which appellant directs us is as follows:
According to Sergeant Alderetti, the decedent got into an argument which accelerated to a fight with Raymond E. Marlowe, at 8325 LaPorte Road. During the altercation, Marlowe stabbed the decedent in the chest with a folding pocket knife. The stabbing occurred at approximately 2:00 p.m., on March 31, 1990. Marlowe was taken into custody by Houston Police Department[.]
We agree that this is hearsay and even hearsay within hearsay. However, appellant’s own testimony contained essentially the same information. The evidence was cumulative and its admission was harmless. Appellant has failed to show prejudice from trial counsel’s failure to object to this evidence.
D.Physical Evidence From Motel Room
Appellant next claims that trial counsel was ineffective in fading to object to the admission of some of appellant’s personal effects and a knife that was purportedly the murder weapon, labeled as State’s exhibits 22 and 21, respectively. Appellant complains that these items were seized in a warrant-less, nonconsensual search of his rented motel room. State’s exhibit 22 included some cash, cigarette papers, a label from a whiskey bottle, some unidentified personal papers, and appellant’s wallet. Trial counsel affirmatively stated that he had no objection to this evidence. Appellant fails to show how the admission of this evidence could possibly have prejudiced him. Nor does he show why trial counsel should have objected to it. Appellant has faded to meet his burden under the Strickland test as it relates to State’s exhibit 22.
Appellant next contends that trial counsel failed to object to the admission of State’s exhibit 21, the knife that appellant used in the lulling. The record does not support appellant’s argument on this point. The record shows, to the contrary, that trial counsel objected no less than four times to the admission of the knife. The first three [319]*319objections were sustained. The fourth was overruled, and the knife was admitted during questioning of the assistant medical examiner. Trial counsel then cross-examined the assistant medical examiner in an attempt to dissociate the knife from appellant. We cannot agree with appellant’s characterization that this performance by trial counsel constituted ineffective assistance. Appellant has failed to meet the deficiency prong of the Strickland test.
We overrule points of error one and two.
Fundamental Error
In his third and fourth points of error, appellant asserts that the trial court committed fundamental error in failing to instruct the jury on the defense of property, and in failing to instruct on self-defense as applied to prevention of robbery or aggravate ed robbery.3 Appellant concedes that the trial court’s failure to include unrequested instructions is not fundamental error unless it is so egregious that it deprived appellant of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). He claims that the trial court’s failure to so instruct satisfies Almanza, and that the conviction should be reversed and remanded for a new trial.
The Court of Criminal Appeals has expressly declined to impose a duty on the trial court to submit unrequested instructions sua sponte. White v. State, 495 S.W.2d 903, 904 (Tex.Crim.App.1973). It cannot be said that the trial court committed fundamental error in failing to perform a duty that it did not owe. To the contrary, had the trial court provided the instructions when appellant indicated no objection to the charge, the trial court would have interfered with counsel’s constitutionally protected independence. See Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
We overrule points of error three and four.
We affirm the judgment of the trial court.
ANDELL, J., dissenting.