Parmer v. State

545 S.W.3d 724
CourtCourt of Appeals of Texas
DecidedMarch 23, 2018
DocketNo. 06-17-00030-CR
StatusPublished
Cited by4 cases

This text of 545 S.W.3d 724 (Parmer v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parmer v. State, 545 S.W.3d 724 (Tex. Ct. App. 2018).

Opinion

Opinion by Justice Moseley

A jury convicted Timothy Parmer of attempted capital murder,1 resulting in a sentence of life imprisonment and a $10,000.00 fine. Parmer appealed. Because we find that Parmer was prejudiced by his counsel's ineffective assistance, we reverse *726the trial court's judgment and remand the case for a new trial.2

I. Background

Police officers received a distress call March 7, 2010, from Parmer's girlfriend, who reported that Parmer was acting strangely and shooting a gun. Using the cover of darkness, twelve to fourteen police officers descended on Parmer's home to investigate the call and to execute a warrant that had already been issued against him. Christopher Bettis, a Wood County deputy, testified that several officers "walked down the road using the shadows as cover ... to get right up against the residence," removed the lock securing Parmer's gate, and surrounded the property. While he was hidden, Bettis observed Parmer screaming and yelling. According to Bettis, Parmer's "demeanor, the way he was talking, he-he wasn't making any-any sense whatsoever."

Officers decided to terminate the electric power to Parmer's home. Larry Vaughan, a state trooper, testified that he heard two people emerge from the residence after the power was cut. Officers attempted to taze Parmer, but caught his girlfriend instead. Parmer yelled, "Get the 'F' off my property," ran back inside of his home, grabbed a shotgun, and chambered a shell. In order to see into the property, Vaughan shone his flashlight through a window.3 Parmer shot Vaughan in the face with buckshot. The State charged Parmer with attempted capital murder.4 See TEX. PENAL CODE ANN . §§ 15.01(a), 19.03(a)(1).

To prove Parmer knew that Vaughan was a peace officer, a required element of the offense, Bettis testified that someone shouted out "the sheriff's office was out here and, you know, that he just needed to *727come out and talk to us." See TEX. PENAL CODE ANN . § 19.03(a)(1). Bettis also said that officers commanded Parmer to get down on the ground after he initially emerged from the residence. Edward Shadbolt, another officer at the scene, testified that he heard Lieutenant Jerry Blaylock say, "Sheriff's Department. Come on out. Come on out. We need to talk to you." According to Shadbolt, Blaylock's voice was loud enough for someone who was inside of the house to have heard him. Shadbolt testified that he heard Parmer say, "I'm going to show these [MFs]" and "You [Fers] get off my land," before he fired the shot. James White, an officer who was also present during the encounter, testified that no one used a bullhorn and that he did not hear anyone say that they were from the sheriff's office.5

Pointing to the facts of the encounter, and the testimony of officers who described Parmer's statements, Parmer argued at trial that he did not intentionally or knowingly attempt to cause Vaughan's death. Instead, even though Parmer did not request the inclusion of any lesser-included offenses, Parmer argued that he only intended to get people off of his property when he shot his weapon. Prior to trial, defense counsel stipulated to the admission of Parmer's medical records. Those records described Parmer's long history of mental illness.6 However, the records also contained many detailed references to extraneous offenses, prior bad acts, and unpopular views. Yet, Parmer failed to request an extraneous-offense instruction for any offenses that may have been admissible. We now decide whether counsel's failure to object to the extraneous-offense evidence contained in portions of Parmer's medical records, admitted during the guilt/innocence phase of his trial, constituted ineffective assistance.

II. Parmer's Counsel Rendered Ineffective Assistance

A. Standard of Review

In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; see also Ex parte Imoudu , 284 S.W.3d 866, 869 (Tex. Crim. App. 2009) (orig. proceeding). The first prong requires a showing that counsel's performance fell below an objective standard of reasonableness. Strickland , 466 U.S. at 688, 104 S.Ct. 2052. This requirement can be difficult to meet since there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. 2052. "This measure of deference, however, must not be watered down into a disguised form of acquiescence." Profitt v. Waldron , 831 F.2d 1245, 1248 (5th Cir. 1987).

Allegations of ineffectiveness "must 'be firmly founded in the record.' " Bone v. State , 77 S.W.3d 828, 835 (Tex. Crim. App. 2002) (quoting Thompson v. State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ). When a claim of ineffective assistance of counsel is raised for the first time on direct appeal, the record "is in almost all cases inadequate to show that counsel's *728conduct fell below an objectively reasonable standard of performance." Andrews v. State , 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

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Cite This Page — Counsel Stack

Bluebook (online)
545 S.W.3d 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parmer-v-state-texapp-2018.