### 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. 03-11-00111- CR

Calvin Jack Jon es, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 340 TH JUDICI AL DISTRICT NO. C-0 9-0 496- SB , H ONO RAB LE B ARB ARA L. WALTH ER, JUDGE P RESIDING

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

A jury convicted appellant Calvin J ack J ones of the offe nse of ag g rava ted assault with a deadly wea

pon. See Tex. P en al C o d e Ann. § 22.02(a) (2) (West 2011). Punishm ent was assessed at ten y ear s’ imprisonment. I n a single issue on appea l, J ones asser ts that his trial counsel was inef fec tive for “ra is[ ing] an insanity defe nse at the la st minut e without providing the re quired notice and w ithout presenting any proof to support the de fense .” We will affir m the judgme nt.

BACK GR OUND The jury hear d evidenc e that on April 8, 2 0 0 9 , J o n es went to visit his neig hbor, Ricky Sain. Sain testified that when J o n es ar ri v ed at his barn ear ly in the evening , J ones “had

a pistol and five bullets and a bottle of whiskey and a cup.” Sain found this “kind of odd,” as J ones had never befor e broug ht whiskey and a g un to his barn. Another neig hbor, Bob Hedr ick, was also visiti ng Sain at the time. J ones proce eded to show Sain and Hedr ick his pistol and explain how hehad “fix ed the g rip over the y ear s” and how “it fit his hand re al l y well.” J ones t hen allowed Sain

and Hedr ick to handle the pistol. Sain could not re ca l l wh ether J ones was drinking during their

conver sation, but he “assumed” that he was. At some point later that evening , Hedr ick went home, and Sain and J ones continued talking. Eventually , Sain left the barn to chec k on his g irlfriend in the house. As he left, Sain notice d that J ones wa s loading his pistol with the bullets. Sain inter prete d this as an indication that J ones wa s “fixing to g o on home.”

When Sain returne d to the barn, he noticed that J ones was still seate d at the table, but he “wa s looking very strang e . . . b o t h hands under the table

. . . just looking at me, staring .” Sain thought, “‘Well, he must be g etting sick or something.’ I even thought may be he had a chill.” S ai n then turned around to look for his propane heate r. At that moment, Sain hear d a shot an d immediately rea liz ed that J ones had fire d his pistol at him. Sain r eac ted by try ing to “ g et the g un”

awa y from J ones. Sain shoved the table toward J ones and attempted to g rab the pistol, but J ones continued shooting. The second shot g razed Sain’s thumb, the third shot went past his ear , and the fourth shot hit him in the chest. Sain fell to the g round and tried to roll over, but he could not move beca use his arm had g one li mp. Sain reca lled, “I can’ t move, I can’ t roll over. I knew he had one

more bullet. And all the time he was say ing he was g oing to kill me.” Sain continued, “I looked up. And he was pointing the g un at me. And as he pulled the trig g er, I kicked [t he gu n ] wi th my left foot; and it went to the left. The bullet—the g un went off ; and it went somewhe re to my left.” Sain testified t h at J ones then backe d up, pointed the g un at Sain, and continued pulling the trig g er. Howeve r, the g un was out of bullets. J ones then walked up to Sain and told him, “You made me use all my bullets, y ou motherfuc ker. You tricked me. You tricked me.” J ones then

2proce eded to repe atedly hit Sain with his pistol. Sain rec alled that whi l e J o n es was hitting him,

J ones told him, “I ’m g oing to watch y ou die, y ou motherfuc ker. You’re g oing to die on this floor rig ht here

. You tricked me. You tricked me into thinking y ou wer e my friend.” Sain “had no idea” what Jones was talking about.

During the beating , Sain ma nag ed to r eac h his phone , which had fallen on the floor during the ear lier strug g le for the g un, and call h i s h ouse. Sain’s g irlfriend, Evang eline Torre s, testified that she a

nswere d the phone and hear d J ones y elling and Sain c ry ing out f or help. Tor

res then ran out to the barn and saw Sain “lay ing in a pool of blood” while J ones was “hitting him over and over with a g un.” Torre s added, “And he stopped for a littl e bit just to catc h his brea th, and then he starte d hitting him ag ain.” Torre s ran ba ck inside the house a nd called he r neig hbors and 911. The neig hbors, including Bob Hedr ick and his wife, arr ived befor e the police. When the Hedr icks tried to interve ne, Jones alleg edly pointed the g un at Bob’ s wife and order ed them to leave

. Howeve r, another neig hbor, Billy Wil son, eventua lly succe eded in c onvincing J ones to put down the g un. When the police ar rived, J ones ref

used to c omply with the ir commands and ha d to be tased three times and wre stled to the g round by the office rs befor e they wer e able to subdue him.

Following his arr est, J ones was transporte d to the hospital and trea ted by Dr. S tephen Seife rt, an e merg ency room phy sician, for

minor bruises. Seifer

t testified that during the course of the trea

tment, which included a “mental status exam,” J ones told him “that he had shot the victim, that he meant to, and that he would do it ag ain.” On cross-e x amination, defe nse counsel asked Seifert if J ones had “appe ar[ed] to be under the influence of any thing.” Seifert answe red, “He

3may have been under the influence of alcohol.” Seifert came to this conclusion based on the “smell

of alc ohol” on J ones and a n appar ent admission from J ones “tha t he had ha d some drinks.” Counsel a lso inquired of Seifer t, “Could y ou tell w hether or not he was responding
to y ou appropr iately when y ou asked about his situation? Where y ou are , what y ou’re doing, did he respond to y ou appropr iately ? ” Seifert answe red, “Absolutely

. His mental fac ulties, whether having had alcohol or not, wer e—I would judge him competent.” Seifert then clar ified that he was simply ref err ing to J ones’s ability to answe r questions, not whether J ones was “leg ally ” competent. Seifert later added, “[I ]n the course of the m edica l exam, the m ental st atus exam, the questi ons that wer e b ei n g as ked, he seeme d to respond appropriate ly

. A l ittle bellige rent but answe red appropria tely , the questions, with no indication that he was either incoher ent or demented or confuse d or any other incapa citating mental status.”

J ones testified in his defe nse. Acc ording to J ones, Sain ha d invited him over to his house on the night in question. J ones claimed that when he arr ived, he kept his pistol in his vehicle but br oug ht his whiskey with him into the barn. Sain had offe red him a bottle of what appea red to be water , and J ones “re member[ed] sitti ng down and having one drink or one swallow” of the water mix ed with his whiskey

. J ones rec alled, “The next thing I reme mber is him standing

. . . awa y from the table ag ainst the barn wall; and I ’m standing there with a g un in my hand.” J ones then saw a car coming toward the barn. I t pa rked, and then J ones saw two men g et out of the truck a nd approa ch the barn. J ones testified, “When I saw the car coming in, in the dark like that, and the men coming up, the first thing that comes to my mind is, ‘I ’ve be en set up.’”

4J ones then “kind of went b al listi c and went to pounding on Mr. Sain.” Howeve r,

J ones claimed that he “only had t i m e t o get i n two or t hree licks. The nex t thing I reme mber was hands on my shoulder pushing me to the g round.” J ones then had “a blank spell,” and the next thing he reme mbere d was having his hands secur ed behind his back on the g round and then being place d in a patrol car . J ones claimed not to reme mber being transporte d to the hospital, sp ea k i n g wi th Dr. Seifert, or later that night speaking with law enfor ceme nt office rs about the incident. J ones also denied discha

rg ing a firea rm on the nig ht in question.
Pr io r to closing arg uments, the State reque sted a “motion in limine” prohibiting J ones from making any arg ument that he “mig ht have been insane or incompetent at the time he committed the offe nse beca

use he never g ave notice” of an intent to raise an insanity defe nse. Counsel replied, 1 “We didn’t do any notice of [i nsanity ]. We didn’t provide any notice that he was . . . competent or incompetent. I think the jury has hear d the testimony from Mr. S ai n t h at h e appea red to be sick, wh et h er o r n o t he was competent or incompetent.” The district court asked counsel, “[I ]f y o u believed y our client was not competent at the time of the offe nse, that is a defe nse that should have been r aised. Ar e y ou now attempting to raise that de fense ? ” Counsel re sponded,

No, Your Honor. At the time—we’r e not say ing that he was not competent at the t i me. We’re not try ing to raise a defe nse now. We’re just say ing something was wrong with him. W e d o n ’t know what was wrong with him, but something was wrong with him. We don’t know whether he had the ability to mak e d ec i s i o n s or have de cisions.

See Tex. Cod e C ri m. Proc. Ann. art. 46C.051 (West 2006) (providing that defe ndant 1 planning to offe r evidenc e of insanity defe nse must file notice with court at least 20 day s befor e date case is set for trial). 5The district court ad v ised counsel, “[T] hat is an attempt at a defe nse that y our client did not

know what he w as doing . You have not f iled any notice of insanity

. The Court ha s hear d nothing of insanity nor o f co m p etenc y .” Counsel continued to emphasize to the court that he was mere ly try ing to arg ue the “fa cts of the case ,” not raise an insanity defe nse. Counsel acknow ledg ed, “[H]e doesn’t fit the cate g ory of being incompetent, he doesn’t fit t h e ca teg ory of being insane. I f a psy cholog ist was to examine him, it wouldn’t have been applicable in this particula r case .” Counsel explained that he mere ly wanted to arg ue that there was evidenc e prese nted that J ones did not have the require d “cr iminal intent” to commit the crime. The State claimed that this was “a round-a bout
way ” of a rg uing insa

nity

. The district cour

t, stil l believing counsel to be arg uing insanity , then asked counsel if he ha d “g ood cause ” for failing to provide notice. Counsel maintained, 2

Your Honor, we are not asking for an insanity defe nse in th i s ca s e. We have not prese nted one, we have not g iven notice. Howeve r, when

. . . Mr. Sain testified that Mr. J ones looked sick and when Mr. J ones testified as to what he knew, that was not insanity and that was not incompetenc y . I t was a phy sical condition; it’s something that came u p . And all his testimony was allowed in

. . . without objection by the State. Since his testimony was allowed in without objection by the State, we believe his motion in limine oug ht to be overr uled. I t i s n o t an insanity defe nse that we’ re pushing f orwa rd.

The district cour

t replied,

See id

. ar t

. 46C.052 (West 2006) (providing that unless notice is timely filed, “evidence 2 on the insanity defe nse is not admissible unle ss the court finds that g ood cause exis ts f or failure to g ive notice” ). 6I believe this to have been a strateg y of the de fense from the be g inning. The Court finds that notice was not g iven, that it would be improper to ar gu e re d u ced responsibility or no responsibility at all under a theory of insanity without using the mag ic words. I f y ou make that a rg ument, the Court will inst ruct the jury that there has been no application for insanity or notice g iven and th at t h ey should disreg ard that arg ument.

Howeve r, as the discussion with counsel co ntinued, the district court appea red to

come to a differ ent understanding of the defe nsive theory that counsel was attempting to prese nt and allowed him to arg ue it:
[The Court] : Has y our client e ver be en examined by any body on this? [C ounsel]: He has been examined by sever al doctors. The problem is he’s fully

compet en t when he talks to the doctors. We’ve discussed—we ’ve attempted to discuss this with other doctors to see if he could even g et an MRI to see wha t might have happene d or wha t happene d to him. He’ s been to thr ee doctors, and nobody thinks it’s nece ssary for him to be examined. [The Court] : [C ounsel], an MRI does not g ive y ou an explanation for insanity

. [C ounsel]: Your Honor, ag ain, we do not believe it’s insanity

. We do not believe

it’s temporar

y insanity

. We believe it’s a phy siologica l problem that occur red, and that’s what we wer e attempting to discover. T h at ’s why we don’ t believe that this—the insanity is applicable. [The Court]: So y our arg ument is that he had some sort of phy siologica l blackout

and that that is why

this occurr ed? [C ounsel]: He had some ty pe of phy siologica l aff

ect from some res u l t ; and beca use of t he phy siologica l aff ect, all he reme mbers is what he reme mbers; and he is responsible for w hat he r emember s. [The Court]: So unde r that theory a defe ndant is only responsible if the defe ndant

commits the act—commits the act a nd reme mbers committing it?

7[C ounsel]: No, Your Honor.

. . . [H] e’s responsible for committing the act. But if y ou g o into the code, in the definitions, a person acts intentionally or with intent or with awa rene ss or wit h k nowledg e that he was committing it. I f h e didn’t have the awa rene ss . . . but was consciously disreg arding , then that’s part of the problem. “Was he consciously d i s reg arding ? ” Mr. Sain said he was sick, Mr. Wil son said he didn’t respond to his reque sts, and Mr. J ones t estified about what he kne w and what he saw. [P rosec utor]: Your Honor , the onl y evidenc e that would show any rea son for him to have blacke d out was consumption of alcohol; and consumption of alcohol is not a def

ense. V oluntary consumption of alcohol is not a defe nse. There is no other evidenc e that there ’s wrong —they can’ t find any [si c]. He’ s been to the do ct o r. T hey don’t have any indication. There ’s no indicati o n he did any thing other than voluntarily

consume L ord Calver

t Whi sky

. But that’s not a def ense at all. [The Court] : Well, if the Def endant make s t h at t y

p e o f ar gu m ent, y ou will be permitted to addre ss that in y our closing statements. [P rosec utor]: Yes, ma’ am. [The Court] : But just so that I am s ure, there is no reque st for the jury to fin d the

Def endant not g uilty

beca use of insanity ? [C ounsel]: We are not reque sting that. [The Court] : All rig ht. And, [prosecutor], y ou are entitled to object if the opposing

side arg ues outside the evidenc e, just as the d ef en se attorney is entitled to object if y ou arg ue outside the e vidence

. The pa rties then proc eede d to present their closing arg uments without objection. The jury found J ones g uilty as char g ed, and the case proce eded to p u n i shment. I n

acc ordanc e with the jury ’s verdic t, the district court sentenc ed J ones to ten y ear s’ imprisonment. This appea l followed.

8STANDARD OF REVIEW To preva il on a Strickland claim, J ones must prove by a preponde ranc e of the evidenc e that counsel was ineffe ctive. Perez v. State , 310 S.W .3d 890, 892 (Tex. Crim. App. 2010) (citing Strickl a n d v. W

ashington , 466 U.S. 668 (1984))

. There are two require d components of

an ineffe ctiveness claim: perf ormanc e and prejudice

. Id

. Fir s t , J ones must prove that counsel’s perf ormanc e was defic ient. Strickland , 466 U.S. at 687; Perez , 310 S.W .3d at 892. To satisfy this
prong of the analy sis, J ones “must show that counsel’s repr esenta tion fe l l b el o w an objective standard of rea sonablene ss” b as ed upon “pre vailing profe ssional norms.” Strickland , 466 U.S.
at 688; Perez , 310 S.W .3d at 893. For this perf ormanc e inquiry we consider all of the circ umstances, with “a strong presum p t i o n t h at counsel’s conduct falls within the wide rang e of rea sonable profe ssional assistance.” Strickland , 466 U.S. at 688-89; Perez , 310 S.W .3d at 893.

“Second, the defe ndant must show that the defic ient perf ormanc e p re

j u d i ced the defe nse. This require s showing that counsel’s err ors wer e so serious as to deprive the defe ndant of

a fair trial, a trial whose result is reliable .” Strickland , 466 U.S. at 687. To succe ed under the prejudice component, J ones “must show that there is a rea sonable probability that, but for counsel’s unprofe ssional err o rs , t h e re sult of the proce eding would have been differ ent.” Id

. at 694. A rea sonable probability is “ a probability sufficie nt to undermine confide nce in the outcome.” Id

. “I t i s n o t en o u g h for the defe ndant to show that the err ors had some conce ivable eff ect on the
outcome of the proce eding .” Id

. at 693. Rather, he must show that “ther e is a rea sonable probability that, absent the err ors, the fac tfinder would have had a rea sonable doubt respe cting g uilt.” Id

. at 695. “I n making this deter

mination, a court hear ing an ineffe ctiveness claim must consider the totality of

9the evidenc e befor e the judge or jury .” Id

. “[A] verdic t or conclusion only wea kly supported by the

rec ord is more likely to have been aff ecte d by err ors than one with ove rwhe lming rec ord support.” Id . at 696.

ANALYSIS

I n his sole issue on appea l, J ones asser ts that his trial counsel was i n ef fe ct ive by “ra is[ ing] an insanity

defe nse at the la st minut e without providing the re quired notice and without
prese nting any proof to support the defe nse.” Acc ording to J ones, this denied him “the opportunity to present the only

viable def

ense he had to the cr ime.”
I n this case , b ec au s e n o m o t i o n fo r n ew trial was filed, our revie w of c ounsel’s perf ormanc e is limit ed to the re cord of the proceeding s during J ones’s trial. J ones claims that the exchang e betwee n counsel and the district court, summarized above, is s u ff i cient to prove that counsel wa s ineffe ctive. We disag ree .

First, contra

ry to J ones’s claim, the rec ord does not demonstrate that counsel raised an insanity

defe nse “a t the last minute.” I nstead, as counsel explained to the district c ourt, he wa s
not r aising an insanity

defe nse at all. I nsanity is “ an aff irmative defe nse to pr osecution that, at the time of the conduc t char g ed, the a ctor, a s a result of sever e mental disease or defe ct, did not know that his conduct was wrong .” Tex. Penal Code Ann. § 8.04(a) (West 2011). “This defe nse excuses the person from criminal responsibility even though the State has proven ever y element o f the offe nse, including the mens rea , bey ond a rea sonable doubt.” Ruffin v. State , 270 S.W .3d 586, 592 (Tex. Crim. App. 2008). Counsel’s theory of the case was not that J ones had committed the crime but should be excused from responsibility

. R at h er , his theory was that J ones did not commit the

10crime beca use he did not have the requisite mens rea . I n other words, counsel was attempting to
neg ate an essential element of the char g ed offe nse, specific ally that J ones committed the offe nse intentionally , knowing ly , or rec klessly

. On the rec ord befor e us, we cannot conclude that attempting such a defe nse fell below an objective standard of rea sonablenes s , particula rly in light of the

overw helming e vidence that J ones committed the ac tus rea of the offe nse. We simil arly cannot conclude on t h i s rec ord that counsel’s decision not to pursue

an insanity defe nse fell below an objective stan d ar d o f reasonablene ss. A decision not to pursue

an i n s an ity defe nse can be a matter of trial strateg y . See, e.g. , Faz v. State , 510 S.W .2d 922, 9 2 6 (Tex

. Crim. App. 1974); Gottson v. State , 940 S.W .2d 181, 185 (Tex. App.—San Antonio 1996,
p et

. ref ’d). When the rec ord is silent reg arding trial counsel’s strateg y , we will not find defic ient perf ormanc e unless the challeng ed conduct was “so outrag eous t hat no competent attorn ey would h av e eng ag ed in it.” Goodspee d v. State , 187 S.W .3d 390, 392 (Tex. Crim. App. 2005); see als o Vasquez v. State , 830 S.W .2d 948, 950 n.3 (Tex. Crim. App. 1992) (“[J ]ust beca use a competent defe nse attor n ey rec og nizes that a particular defense might be available to a particular offense , he or she c ould also decide it would be inappropria te to propound such a

defe nse in a g iven ca se.”)

. We cannot say on this rec ord that no competent attorney would have decide d not to
pursue an insanity defe nse, particula rly in light of the absenc e of evidenc e in the rec ord supporting

a theory that J ones “did not know that his c onduct was wrong .” I n fac t, c ounsel repr esente d to the district court, “[H]e doesn’t fi t t h e ca t eg ory of being incompetent, he doesn’t fit the cate g ory of being insane. I f a psy cholog ist was to examine him, it wouldn’t have been applicable in this particula r case .” Counsel added that J ones had been “examined by sever al doctors” and that “he’ s

11fully competent when h e t alks to the doctors.” This was consistent with the trial testimony of

Dr. Sei fe rt, who explained that when he had examined J ones shortly afte r the offe nse had been committed, J ones answe red questions “appr opriately

. . . with no indication that he was either incoher ent or demented or confuse d or any other incapa citating mental status.” We cannot conclude 3

on such a rec ord t hat counsel was de ficient for failing to raise an i nsanity defe nse. See W ilkerson

v. State , 726 S.W .2d 542, 551 (Tex. Crim. App. 19 8 6 ) (w h en rec ord contained no evidenc e that defe ndant may have been leg ally insane at time offe nse was committed, insanity “wa s simply not a viable defe nse to advanc e,” and counsel was not defic ient “by failing to raise a non-existent defe nse
at trial”); Brown v. State , 129 S.W .3d 762, 767 (Tex. App.—Houston [1st Dist.] 2 0 0 4 , n o p et.) (dec lining to find counsel ineffe ctive for failing to raise insanity defe nse when “[n] o evidenc e in the

rec ord demonstra tes that appe llant was incompete nt or insane” ).

We also cannot conclude on this rec ord that J ones proved that he was prejudice d by counsel’s decision not to raise an insanity defe nse. The rec ord fails to show a rea sonable probability that, but for counsel not raising an ins anity defe nse, t he re s u l t of t he procee ding would have been differ ent. See Strick

land , 466 U.S. at 693-96. We overrule J ones’s sole issue on a ppeal.

J ones arg ues that his violent behavior , which he char acte rizes as “bizarre at b est” and 3 lacking a “re asonable explanation” or motive, was evidenc e of h i s insanity , as was his profe ssed inability to reme mber exactly what happene d. Howeve r, such evidenc e is insufficient t o ra i s e an insanity defe nse. See, e.g. , Still v. State , 7 09 S.W .2d 658, 661 (Tex. Crim. App. 1986); Jeffley v. S t a t e , 938 S.W .2d 514, 515 (Tex. App.—Texarkana 1997, no pet.); Lugo v. State , 732 S.W .2 d 662, 667 (Tex. App.—Corpus Christi 1987, no pet.). T o raise an insanity defe nse as that term is leg ally define d, there must be evidenc e prese nted that the defe ndant did not know that his c onduct was wr ong . See R uffin v. State , 270 S.W .3d 586, 592 (Tex. Crim. App. 2008). No such e vidence exis ts in thi s case . 12CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pemberton a nd Henson Affir med Filed: Aug ust 11, 2011 Do Not Publish

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