Wood v. State

4 S.W.3d 85, 1999 Tex. App. LEXIS 7663, 1999 WL 817552
CourtCourt of Appeals of Texas
DecidedOctober 14, 1999
Docket2-98-441-CR
StatusPublished
Cited by84 cases

This text of 4 S.W.3d 85 (Wood 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
Wood v. State, 4 S.W.3d 85, 1999 Tex. App. LEXIS 7663, 1999 WL 817552 (Tex. Ct. App. 1999).

Opinions

OPINION

SAM J. DAY, Justice.

A jury convicted Randy Lee Wood of capital murder. Because the State did not seek the death penalty, he was automatically sentenced to life confinement. Tex. Penal Code Ann. § 12.31(a) (Vernon 1994). On appeal, Wood contends in his first point that his trial counsel was ineffective for failing to request an instruction on the lesser-included offense of murder. In points two and three, he argues that the trial court’s application paragraph at the guilt-innocence phase of trial was erroneous and that he received ineffective assistance of counsel when his attorney failed to object to this paragraph.

I. BACKGROUND

Because Wood does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary.

On October 2, 1996, Wood and two friends, Curtis Gambill and Joshua Bag-well, were driving around Waurika, Oklahoma, in Bagwell’s grandfather’s pickup. Although underage, they were drinking beer and whiskey. Heather Rich, the victim, later snuck out of her parents’ home and met the boys at a travel trailer owned by Bagwell’s grandparents. After Rich passed out from intoxication, Wood and Gambill put her in the backseat of the truck. Bagwell drove the pickup to Texas where Gambill eventually shot Rich nine times with a shotgun. Together, the three boys threw Rich’s body over the side of a bridge and returned to Waurika. On the way, Wood discarded the used shotgun shells he had picked up at the bridge where Rich was shot. He also took Rich’s cheerleader jacket to his home and burned it.

[87]*87Wood later confessed to his participation in the offense and signed a written statement about the killing. In addition, he agreed to testify against Gambill and Bag-well and pled guilty to the offense of murder in exchange for the State’s promise that no other charges would be filed against him. He later repudiated the plea bargain agreement but voluntarily testified at Bagwell’s trial.

II. FAILURE TO REQUEST A CHARGE ON THE LESSER-INCLUDED OFFENSE OF MURDER

In his first point, Wood contends he was entitled to a charge on the lesser-included offense of murder and his trial attorney was ineffective for failing to request this instruction. The standard for appellate review of effectiveness of counsel was set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). See Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex.Crim.App.1993). The claimant must prove that his counsel’s representation so undermined the “proper functioning of the adversarial process that the trial cannot be relied on having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Appellant’s claim that counsel’s assistance was so defective as to require reversal of a conviction has two components. First, appellant must show that his counsel’s performance was deficient; second, he must show the deficient performance prejudiced the defense. See id. at 687, 104 S.Ct. at 2064.

The first component of this test is met by showing appellant’s trial counsel made errors so significant that he was not functioning as the “counsel” guaranteed by the Sixth Amendment to the United States Constitution. See id. The second prong of Strickland requires a showing that counsel’s errors were so serious that they deprived the defendant of a fair trial, i.e., a trial whose result is reliable. See id. at 687, 104 S.Ct. at 2064. This means an appellant must prove by a preponderance of the evidence that his defense attorney’s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that but for counsel’s deficiency the result of the trial would have been different. See id. at 694, 104 S.Ct. at 2068; McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997).

The question for our review is whether there is a reasonable probability that, absent counsel’s errors, the fact-finder would have had a reasonable doubt on the issue of guilt, considering the totality of the evidence. See Strickland, 466 U.S. at 695, 104 S.Ct. at 2069. Our scrutiny of counsel’s performance must be highly deferential, and every effort must be made to eliminate the distorting effects of hindsight. See id. at 689, 104 S.Ct. at 2065. Allegations of ineffective assistance of counsel must be firmly founded in the record because the reviewing court may not speculate about counsel’s trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994).

A defense attorney’s failure to request a jury instruction can render his assistance ineffective if, under the particular facts of the case, the trial judge would have erred in refusing the instruction had counsel requested it. See Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App.1992). However, it may be reasonable trial strategy not to request a charge on a lesser-ineluded offense. See Lynn v. State, 860 S.W.2d 599, 603 (Tex.App.—Corpus Christi 1993, pet. ref'd). The defendant bears the burden of rebutting the strong presumption that, under the circumstances, counsel’s decision not to request the instruction was sound trial strategy. See Jackson, 877 S.W.2d at 771-72 (citing Strickland, 466 U.S. at 689, 104 S.Ct. at 2065). Thus, the accused must provide a record on appeal from which the [88]*88reviewing court can determine that trial counsel’s performance was not based on sound strategy. See id.

In this case, Wood acknowledges that “[a]n apparent question arises as to whether counsel was attempting to employ an all-or-nothing tactic at trial.” He argues that there was some evidence in the record tending to negate his guilt on the capital murder charge, but because “it was abundantly clear from the uncontroverted evidence that Randy Wood was a party to some crime,” his attorney’s failure to request an instruction on the lesser-included offense of murder could not have been trial strategy.

We do not agree with this reasoning. If there was some evidence in the record tending to prove that Wood was not guilty of the charged offense, as he contends, it could be reasonable trial strategy to forego a charge on the lesser offense and argue for an acquittal on the greater. Moreover, if Wood’s trial attorney had a different reason for not seeking the murder charge, it is not reflected in the record.1 Although Wood filed a motion for new trial, he did not raise his ineffective assistance of counsel claim in that motion and thus failed to develop a record that might have supported this claim.

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Bluebook (online)
4 S.W.3d 85, 1999 Tex. App. LEXIS 7663, 1999 WL 817552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-state-texapp-1999.