Shanklin v. State

• Decision Date: 29 December 2005
• Docket Number: No. 01-03-00998-CR.,01-03-00998-CR.
• Citation: 190 S.W.3d 154
• Parties: Jared Lloyd SHANKLIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

190 S.W.3d 154

Jared Lloyd SHANKLIN, Appellant, v. The STATE of Texas, Appellee.

No. 01-03-00998-CR.

Court of Appeals of Texas, Houston (1st Dist.).

December 29, 2005.

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Brian W. Wice, Houston, for Appellant.

Charles A. Rosenthal, Jr., Dist. Atty. — Harris County, and Donald W. Rogers, Jr., Asst. Dist. Atty., Houston, for Appellee.

Panel consists of Justices TAFT, KEYES, and HANKS.

OPINION

TIM TAFT, Justice.

A jury convicted appellant, Jared Lloyd Shanklin, of murder and assessed his punishment at 60 years in prison. We determine (1) whether appellant's defense counsel rendered ineffective assistance of counsel during the guilt-innocence and punishment stages of trial and (2) whether the trial court improperly admitted the trial prosecutor's affidavit at the hearing on appellant's motion for new trial. We affirm the conviction, but reverse and remand the cause for a new punishment hearing.

Background

On November 18, 2002, appellant and his friends, John Shanklin and Darrell Willis, went to a night club. While in the nightclub, appellant and the complainant got into an altercation. When the night club closed, appellant and the complainant met outside and continued their argument. The altercation ended when appellant shot the complainant two times at close range, killing him. Shortly thereafter, police on the scene arrested appellant.

At trial, appellant raised the defenses of self-defense and defense of a third person. After the jury convicted him of murder, appellant filed a motion for new trial alleging ineffective assistance of counsel. The trial court conducted the motion for new trial hearing by affidavits. Appellant's defense counsel filed an affidavit stating that a number of his decisions provided ineffective assistance of counsel and were not the result of any reasoned trial strategy. The State filed a controverting affidavit executed by the trial prosecutor. At the end of the hearing, the trial court overruled appellant's motion for new trial.

Ineffective Assistance of Counsel at Trial

In his first point of error, appellant argues that his defense counsel rendered ineffective assistance of counsel during the guilt-innocence stage of trial. Specifically, appellant argues that the following actions demonstrate ineffective assistance: (1) defense counsel failed to request the lesser included offenses of manslaughter and aggravated assault; (2) defense counsel did not elicit testimony from appellant that appellant was not trying to kill anyone; and (3) defense counsel failed to properly object to the State's closing argument.

A. Standard of Review

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05 (Vernon 1977). This right includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App.1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92, 104 S.Ct. at 2064-67; see also Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). Appellant has the burden of proving his claim by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim.App.1998). We apply a strong presumption that trial counsel was competent. Thompson, 9 S.W.3d at 813. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). We analyze appellant's ineffective assistance of counsel issue as a challenge to the denial of his motion for new trial. See Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004) (holding appropriate standard of review for ineffective assistance claim based upon affidavits brought forth in motion for new trial is abuse of discretion). In such circumstances, we review the Strickland test through an abuse of discretion standard. Id. at 208. Thus, we reverse only if the trial court's decision is arbitrary or unreasonable, viewing the evidence in the light most favorable to the ruling.

B. Lesser Included Offenses

1. Manslaughter

In his first sub-point of his first point of error, appellant argues that his defense counsel should have requested an instruction on the lesser included offense of manslaughter and that his failure to do so was ineffective assistance of counsel. He contends that defense counsel's affidavit demonstrates that his decision not to request the lesser offense was not the result of trial strategy.

To establish his claim that defense counsel's performance was deficient for failing to request an instruction on the lesser included offense of manslaughter, appellant must show that he was entitled to the instruction. Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim.App.1999). A defendant is entitled to an instruction on a lesser included offense when the proof for the offense charged includes the proof necessary to establish the lesser included offense, and there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim.App.1994) (citing Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App. 1993)). Anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Bignall, 887 S.W.2d at 23.

A conviction for manslaughter requires a finding that the defendant recklessly caused the decedent's death. TEX. PEN.CODE ANN. § 19.04 (Vernon 2003). "A person acts recklessly, or is reckless, with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur." TEX. PEN. CODE ANN. § 6.03(c) (Vernon 2003). A manslaughter charge is required if there is any evidence from which a jury could conclude the defendant did not intentionally or knowingly kill an individual, but consciously disregarded a substantial and unjustifiable risk that the result would occur. Lugo v. State, 667 S.W.2d 144, 147 (Tex. Crim.App.1984). "[A] defendant may be shown to be guilty only of the lesser offense if the evidence presented is subject to different interpretations." Saunders v. State, 840 S.W.2d 390, 392 (Tex.Crim.App. 1992). Moreover, it is immaterial whether the evidence fits within the larger theme of the defendant's testimony, whether it was admitted by the State or the defense, and whether it is "strong or weak, unimpeached or contradicted." Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App.1998).

Neither of the parties disputes that manslaughter is a lesser included offense of murder. See Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App.2003). We thus determine if there is some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser included offense of manslaughter. See Bignall, 887 S.W.2d at 23.

In Hernandez v. State, appellant testified that although he shot and killed the deceased, he did not intend to hit the deceased, but rather tried to scare him away. 742 S.W.2d 841, 842-43 (Tex.App.-Corpus Christi 1987, no pet.). The court of appeals held that this evidence was sufficient to warrant an instruction on manslaughter. Id. at 843.

The facts here are similar to those in Hernandez. Appellant testified that while a group of men were hitting his friend, he shot in the group's direction. He also stated, "I knew that I couldn't go over there and physically fight with him. So I felt like that was the only thing I could do is shoot in that direction and scatter everything and just calm it down so I could give him the chance to get away from all of that." Appellant further stated that he shot while he was getting up from the ground and that he was not sure whether he shot high or low. He also admitted that he could have shot his friend because he was not sure of where he was aiming. Appellant was asked, "you weren't shooting at anybody, were you?" To which appellant responded, "No." He agreed that he was just shooting into the crowd blindly. After he shot, appellant did not realize that he had shot anyone.

In light of the testimony presented, we hold that there is some evidence that appellant acted recklessly and that the jury could have rationally found that appellant, if guilty, was guilty only of manslaughter. See Hernandez, 742 S.W.2d at 843. Construed in the light most favorable to appellant, the evidence presented shows that appellant did not intend to kill the complainant, but rather to scatter the group of men who were hitting his friend. Accordingly, we conclude that appellant was entitled to an instruction on the lesser included offense of manslaughter.

In addition to showing that he was entitled to the lesser included offense, however, appellant must show that his defense counsel's conduct was deficient, i.e., that it fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 688-92, 104 S.Ct. at 2064-67. We presume counsel's actions and decisions were reasonably professional and motivated by sound trial strategy. Jackson, 877 S.W.2d at 771.

At the motion for new trial hearing, appellant's defense counsel submitted an affidavit that stated that his failure to request the lesser included offense of manslaughter was not the result of any reasoned trial strategy. We have recently held that such an affidavit from defense counsel defeats the presumption...