### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00213- CR

Wesley Lee Hill, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CALDWELL CO UNTY, 421 ST JUDICI AL DISTRICT NO. 200 8-0 15, H ONO RAB LE TO DD A. B LOM ERTH, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Wesley L ee Hill of mur d er , see Tex. Penal Code Ann. § 19.02 (West 2003), sentenc ed him to life in prison, and assessed a $10,000 fine. Hill argues that the trial court err ed by excluding cer tain charac ter evidenc e and by overr uling an objection to the State’s closing argument. Hill also arg ues that he w as denie d eff ective a ssistance of c ounsel. We aff irm the judg ment of convic tion.

Hill, J ohnny Riles, and J uan Mendoza wer e neig hbors. Mendoz a l i v ed across the street from Riles, and Hill lived next door to Mendoza. Riles, who wa s 7 7 -y ears old and in poor health at the time of

the murder , was Hill’s uncle

. On Dec ember 2, 2007, Hill went to Riles’s house to collect $40 alleg edly owed him by Riles. The evidence indicates that Riles was in bed or sl eeping at t he ti me, as the i nside of hi s residenc e was completely dark, his porch light was o n, and his g lasses wer e found on the kitchentable. Neig hbors testified that it was common knowledg e in the neig hborhood that Riles was in the

habit of g oing to bed at an ear l y h o u r an d t urning his porch light on when he had retire d for the evening . Wit nesses a lso testified that Riles alway s wore his g lasses, except whe n sleeping

.

When Hill enter ed Riles’s house that evening , Riles’s neig hbor, Mendoza, was at his home with his brother, Ger ald Mendoza. The two brothers had observe d Hill enter ing Riles’s house without knocking

. They walked outside and hear d a loud thud. Concerne d, the brothers walked

acr oss the s tree t to investiga te. When they arr ived, t hey observe d Hill talking on the phone at t he door to Riles’s house. Hill told them that Riles wa s hurt and that he was g oing to blame the injury

on Ge ra l d

. Ger ald walked into the house and found Riles on the floor in a bedroom, bare ly breathing. Ge rald a lso observed blood a nd a broke n shotgun. Ger ald’s g irlfriend called 911. When office rs arr ived, Hill told them that Riles was almost dead and that he had beate n Riles with a shotgun. Acc ording to Hill, Riles had tried to shoot and stab him be cause Hill ha d come to c ollect $40 owed to him. Offic ers found Riles on the floor of a be droom. He w as ly ing on top of a broke n shotgun. Ril es wa s bleeding , and his blood stains

were found low on the wall, all within thirty inches of the floor, indicating that he had sustai n ed injuries while ly ing down. There was blood and sheet rock materia l on the shotgun barr el. Offic ers also found evidenc e of a g unshot blast in the hallway , observing g unshot residue i n t h e car pet, a spent shotgun she ll on the floor, and thre e pellets in the sub floor.

Riles was to be take n by

helicopter

from L ockhar

t to Austin, but he died in transit. The autopsy showed that Riles died from multipl e blunt forc e injuries. The examiner noted twenty

2three rib fra cture s, which had cause d Riles’s lung s to c ollapse. The examiner also discovere d that

Riles’s skull had been fr actur ed.

Hill was arr ested. At the time of his arr est, more than $1,200 was found on h is person, and there was evidenc e that, of that $1,200, a sum of $991 had been stolen from Riles at the time of the murder. On the way to the police station, Hill talked repe atedly about the beating , telling office rs, for example, “I kicked his fac e off with [m y shoes],” “[t] hen I bust him in his ass ag ain with the g un,” and “ I

made sure his bitch ass was dea d befor e I throwed the g un and knife on his ass.” Hill was indicted for murder. See Tex. Pena l Code Ann. § 19.02. A jury convicted him as char g ed, sentenc ed him to life in prison, and assessed a $1 0 , 0 0 0 fine. Hill argues that the trial court err ed by excluding cer tain char acte r evidenc e and by overr uling an objection to the State’s closing arg ument. Hill also arg ues that he w as denie d eff ective a ssistance of c ounsel. I n his fi rs t p o i nt of err or, Hill argues that char acte r evidenc e perta ining to Riles should have been admitted. The evidenc e was admissible, Hill contends, to show that Riles was the first ag g ressor and to rebut the evidenc e that Rile s wa s fr ai l , old, weak, and defe nseless in his encounte r with Hill.

We review a t ri al court’s decision to admit or exclude evidenc e for an abuse of discretion. Shuffield v. State , 189 S.W .3d 782, 793 (Tex. Crim. App. 2006). Unless the trial court’s decision was outside the zone of rea sonable disag ree ment, we uphold the ruling

. Id. ; Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1990) (op. on re h’g ).

When a defe ndant in a homicide prosec ution raises the issue of self-de fense , he may introduce evidenc e of the dece ased’ s violent char acte r. Tex. R. Evid. 404(a) (2); Tate v. State ,

3981 S.W .2d 189, 192-93 (Tex. Crim. App

. 1 9 9 8). To demonstrate the rea sonablene ss of the

defe ndant’s fea

r of dang er or to demonstrate that the dece ased was the first ag g ressor, specific acts of violence may be introduced. Torres v. State , 117 S.W .3d 891, 894 (Tex. Cr i m . Ap p . 2 0 0 2 ). Evidence of the decea s ed ’s prior violent acts is admissible, howeve r, only to the extent that the evidenc e is rele vant apar

t from showing char acte r confor mity

. Id. Specific violent acts are rele vant apar t from showing char acte r confor mity when the ac t s ar e used to prove the dece ased was the first ag g ressor by demonstrating the dece ased’ s i n t ent, motive, or state of mind. Id. at 894-95. Ho weve r, t here must be som e evidence of ag g ression by the decease d during the events that gav e rise to t h e cr i m i n al charg es in the case befor e the defe ndant may introduce evidenc e of a prior specific violent act that tends to explain the dece ased’ s later c onduct. Id. at 895.

Her e, we fi nd no evidenc e of ag g ression by Riles during the events prec eding his murder. The evidenc e shows that Hill enter ed Riles’s home afte r Hill had retire d for the evening

. Hill was uninvited and did not knock. The house wa s dark, and Riles’s g lasses, which he wore at all times except when sleeping , wer e found on the ki tchen t ab l e. Hill’s stated reason for enter ing Riles’s house was to collect $40 owed by Riles. T h e ev i d ence indicates that Hill took $991 in cash f rom Riles. When po l i ce ar ri ved, they found Riles on the bedroom floor, along with a broken shotgun. The injury to his head was consistent with his having been hit on the head with the shotgun barr el. Al l t h e b l oodstains wer e low on the wall, indicating that Hill had inflicted the injuries while R iles was ly ing on the ground, defense less. At the t ime of t his death, Hill was 77 y ear s old and in poor he alth.

4Thus, t h e evidenc e shows that Hill enter ed the home of Riles, his elder ly uncle,

uninvited, and proce eded to rob and beat him. Whether Riles g rabbe d his shotgun befor e the beating beg an, as Hill a sserts, or afte r, there is no evidenc e to show that Riles wa s the first ag g ressor. The district court acted withi n its discretion in ex cluding char acte r evide nce a s to Riles. Acc ording ly , we ove rrule H ill’s first point of error

. See Shuffield , 189 S.W .3d at 793.

I n his second point of err or, Hill arg ues that the State’s argument to the jury that Hill had a duty to retre at when confr onted by Riles wa s a misstatement of t he law. Acc ording to Hill, the State’s argument was contra ry to the law of retre at and preve nted him from eff ectively asser

ting his self-def

ense a rg ument. Hill complains about the following argument:

State’s counsel: L adies and g entlemen, if y ou look at the Charg e, at the end of

eac h self-de fense : “A person who has a rig ht to be prese nt at the location wher e the forc ed [si c] is used, who has not provoked the person ag ainst whom t h e fo rce is used, and who is not eng ag ed in criminal activity at t he ti me t he f o rc e i s used i s not require d to retre at bef

ore using forc e.” All rig ht. Well, y ou look at that. I f Mr. Hill had seen J ohnny Riles with the shotgun, I think it’s sa fe to a ssume that at that point Mr. Hill no longe r had a rig ht t o be prese nt at the location wher e the forc e was used. So, there fore , Mr. Hill had a duty to retre at. Def ense c ounsel: J udg e, I ’ll object. That’ s not what the law sa y s. Court: Over ruled. State’s counsel: He had a duty to retre at. Somebody pulls a shotgun—Y ou’re

in somebody else’s house, somebody pulls a shotgun on y ou,

5g ood idea, hey , y ou no l o n ger h ave the rig ht to be there

. Be tter g et off that property . He ha d a duty to retre at. Def ense c ounsel: Same objection. May Ihave a running objection? Court: Over ruled.

Permissible ju

r y a r g u me n t in c lu des summation of the evidenc e, rea sonable deduction from the evidenc e, answe r to argument of opposing counsel, and plea for law enfor ceme nt. Allridge

v. State , 7 6 2 S

. W

. 2 d 1 46, 155 (Tex. Crim. App. 1988). To war rant reve rsal, argument must be manifestly improper, violate a statute, or inject new, harmful fac ts into the case . Eve rett v. State , 707 S.W .2d 638, 640 (Tex. Crim. App. 1986).

Prior to September 1, 2007, section 9.32 of the penal code p rovi ded the use of deadly fo rc e wa s justified only “if a rea sonable person in the actor ’s situation would not have

re t re at ed .” See Act of May 16, 1995, 74th L eg ., R.S., ch. 235, § 1, 1995 Tex. Gen. L aws 2141 , 2141-42 (ame nded 2007) (cur rent version at Tex. Penal Code Ann. § 9.32 (West Supp. 2009)). Effe ctive September 1, 2007, the leg islature deleted the require ment that a rea sonable person in the actor ’s situation would not have retre ated. Howeve r, the leg islature also added to both sections 9.31 and 9.32 of the penal code the provision that “[a] person who has a rig ht to be prese nt at the location wher e the deadly forc e is use d, who has not pr ovoked the person ag ainst whom the deadly forc e is used, and who is not eng ag ed in criminal activity at the time the deadly forc e is used is not require d to retre at befor e using deadly forc e as require d by this sec tion.” Tex. Pena l Code Ann. §§ 9.31(e) , 9.32(c) (West Supp. 2009).

6The State argued that Hill had no rig ht to be presen t at R i l es’s house and that he

had provoked Riles and eng ag ed in criminal activity

. There fore , Hill was require d to retre at befor e using deadly forc e. Whil e the State’s argument did not exactly trac k the languag e of the statute, the meaning th e S t at e s o u gh t to convey was clea r and was consistent with the circ umstances in which it is statutorily permissible t o d ef en d oneself with deadly forc e. None of the deadly forc e justifications apply here , and, assuming that Hill was not justified in using d ea dly forc e, he was require d to retre at. See id. §§ 9.31, 9.32. Considering the s u bstance of the self-de fense statute, we do not ag ree that the S tate’s arg ument that Hill had a d u t y t o re t re at was manifestly improper, see Ev erett , 707 S.W .2d at 640, and we overr ule Hill’s second point of e rror . I n his third point of err or, Hill argues that he wa s d enied eff ective assistance of counsel. Specifica lly , Hill challeng es his attorney ’s failure to object to cer tain testimony during the punishment phase and his failure to reque st a p u n i shment mitigation char g e or object to the absenc e of suc h char g e.

We evaluate claims of ineffe ctive assistance of counsel ag ainst the standard set forth in Strickland v. W

ashington

. See466 U.S. 668, 687 (1984); Hernande z v. State , 988 S.W .2d 770, 774 (Tex. Crim. App. 1999). I n deciding a claim of ineffe ctive assistance of counsel at a noncapital sentenc ing proce eding , we must deter mine whether an attorney ’s perf ormanc e was defic ient and, if so, whether that defic iency prejudice d the defe nse. Strickland , 466 U.S. at 687; Thompson v. State , 9 S.W .3d 808, 812 (Tex. Crim. App. 1999). An attorney ’s perf ormanc e is defic ient if it falls below

an objective standard of rea sonablene ss. Strickland , 466 U.S. at 688; Thompson , 9 S.W .3d at 812. Deficient perf

ormanc e is prejudicia l when, but for the attorney ’s unprofe ssional conduct, t h er e i s

7a rea sonable probability that the outcome of the proce eding would have been differ ent. Strickland ,

466 U.S. at 694; Thompson , 9 S.W

. 3 d at 812. A reasonable probability is a probability sufficie nt to undermine confide nce in the outcome. Strickland , 466 U.S. at 694; Thompson , 9 S.W .3d at 812. I n deter mining wh et her an attorney ’s perf ormanc e was defic ient, we apply a strong presumption that the attorney ’s conduct was within the rang e of rea sonable profe ssional assistance

. Thompson , 9 S.W .3d at 814. We revie w the eff ectivene ss of counsel in light of the totality of the repr esenta tion and the c ircumstance s of ea ch ca se. Id. at 813.

I n most case s, an undevelope d rec ord on direc t appea l is insufficient to satisfy the dual prong s of Strickland beca use the rea sonablene ss of counsel’s decisions often involves fac ts not appea ring in the appellate rec ord. Rylander v. State , 101 S.W .3d 107, 110 (Tex. Crim. App. 2003). Wit ho u t ev i d en ce of the strateg y and methods involved conce rning counsel’s actions at trial, an appellate court should pr esume a sound trial strateg y . See Thompson , 9 S.W .3d at 814. Where an alleg ation of ineffe ctive assistance of counsel is not raised in a motion for new trial, trial co u n s el has no opportunity to explain his conduct, and absen t s u ch o p portunity , an appellate court should not find defic ient perf

ormanc e unless the challeng ed conduct was “so outrag eous that no competent attorney would have eng ag ed in it.” Goodspee d v. State , 1 8 7 S

. W

. 3 d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001)).

The State elicited testimony from four family members—Hill’s sister (Riles’s niece ) and three of Hill’s cousins (Riles’s sons)—as to the punishment they believed the jury should assess. All responde d that Hill should be g iven a life sentenc e. Hill contends that this testimony was improper a

nd that defe nse counse l’s perf ormanc e wa s deficie nt beca use he f ailed to object.

8A family member’ s st at em en t of opinion as to the punishment deser ved by the defe ndant i s outside the s cope of what is admissi ble as victim-impact evidenc e in the puni shment phase of trial. Simpson v. State , 119 S.W .3d 262, 272 (Tex. Crim. App. 2003). Even if the evidenc e would have been inadmissible upon proper objection by trial counsel, howeve r, there is substantial evidenc e to support the jury ’s assessm en t o f a life sentenc e, and we cannot conclude that, but for trial counsel’s failure to object, there is a rea sonable probability that the outcome of the proce eding would have be en diffe rent. See Strick land , 466 U.S. at 694; Thompson , 9 S.W .3d at 812. The jury was to assess punishment in the rang e of five to ninety -nine y ear s. All four witnesse s who offe red opinions as to how l ong Hill should be sente nced w ere rela ted to both Hill and to Riles. They eac h testified that, beca use of Hill’s propensity for violence, they fea red for their safe ty and the safe ty of their families. Eac h testified that t h ey b eli eved that Hill’s rele ase would result in a repe at offe nse. Riles’s three sons all testified as to the devasta ting impact Riles’s murder had o n t h ei r families and that the m urder had crea ted an atmosphere of fear in the family , espec ially among their children (Riles’s g randc hildren). Hill’s sister testified that she was afr aid of Hill, descr ibing an incident in 2007 when Hill attacked her, hitting her and threa tening her and her two sisters with a knife. She told the jury that Hill is mentally ill and that, when Hill does not take his medication, he be comes “ very violent.” The tes t i m o n y of eac h of these four witnesses shows that eac h rec og nized Hill’s violent tendenc ies an d wer e afr aid that—if Hill wer e rele ased—he would be a continuing dang er to them and t o t h ei r fa m i l ies. Even without direc t statements that these witnesses wanted to see Hill locked up for life, the jury could have rea sonably made this infere nce. I n addition, the witness’s

9testimony

that Hill wa s mentally ill, violent, and a continuing da

ng er pr ovided substantial support for the jury to sentenc e Hill to life in prison. Given this testimony , we find no rea sonable probability that trial counsel’s failure to object t o t h e witness’s specific rec ommendations of punishment would have had any eff

ect on the jury ’s v er d i ct

. See Strickland , 466 U.S. at 694; Thompson , 9 S.W .3d at 812.

Hill also arg

ues that he was denied eff ective assistance of counse l wh en defe nse counsel failed to reque st a punishment mitigation char g e. Specifica lly , Hill argues that he was entitled to a sudden passion i n s t ru cti on which, if found by the jury to have been proven by a preponde ranc e of the evidenc e, would have reduc ed the offe nse from a first deg ree felony to a second deg ree felony

. See Tex. P enal Code A nn. § 19.02(c) , (d); McKinnley v . State , 179 S.W .3d 565, 570 (Tex. Crim. App. 2005). Howeve r, as Hill conce des, a sudden passion instruction is proper only when the sudden passion was direc tly cause d by and arose out of provocation by the dece ased at the time of the offe nse. McKinnley , 179 S.W .3d at 570. As discussed above, the evidenc e shows that Hill enter ed the home of Riles, his elder ly uncle, uninvited, and proce eded to rob and beat him. Even if the jury believed that Riles pointed a shotgun at Hill in response to Hill’s intrusion, Hill, as intruder, cannot c laim that he was pr ovoked by Riles. In such circ umstances, Hill would not ha ve been entitled to a sudden passion instruction, even if one had been reque sted by trial couns el , and trial counsel’s failure to object to the absenc e of such instruction was proper . Acc ording ly , we

overr ule Hill’s third point of error

.

10Having overr uled eac h of Hill’s points of err or, we aff irm the judgme n

t of conviction.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Affir med Filed: June 25, 2010 Do Not Publish

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