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No. 03-15-00385-CR

IN THE COURT OF APPEALS 

FOR THE THIRD JUDICIAL DISTRICT OF 

TEXAS AT AUSTIN, TEXAS 

********

KARL LEE WIGGINS 

VS. 

THE STATE OF TEXAS 

********

ON APPEAL FROM THE 27th DISTRICT COURT 

OF BELL COUNTY, TEXAS 

Cause No. 72,941 

******

STATE’S BRIEF

******

 HENRY GARZA 

 DISTRICT ATTORNEY 

 BOB D. ODOM 

 ASSISTANT DISTRICT ATTORNEY 

 P.O. Box 540 

 Belton, Tx 76513 

 (254) 933-5215 

 FAX (254) 933-5704 

 DistrictAttorney@co.bell.tx.us 

 SBA No. 15200000 

Oral Argument Not Requested 

ACCEPTED

03-15-00385-CR

8214204

THIRD COURT OF APPEALS

AUSTIN, TEXAS

12/14/2015 9:16:24 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 12/14/2015 9:16:24 AM JEFFREY D. KYLE Clerk
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TABLE OF CONTENTS

ITEM PAGE

Index of Authorities ....................................................................................... 3

Statement Regarding Oral Argument ................................................. 4

Statement of the Case .......................................................................... 4

Statement of Facts ................................................................................ 5

Summary of State’s Argument ............................................................ 8

Argument and Authorities .................................................................. 8

Issue on Appeal .......................................................................... 8

APPELLANT RECEIVE INEFFECTIVE ASSISTANCE

OF COUNSEL FOR FAILURE TO OFFER EVIDENCE 

OF POSSIBLE DEFECT IN WEAPON IN MITIGATION 

OF PUNISHMENT?

Standard of Review ................................................................... 9

Application and Analysis .......................................................... 10

Prayer ................................................................................................... 20

Certificate of Compliance with Rule 9 ................................................ 21

Certificate of Service ............................................................................ 21
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INDEX OF AUTHORITIES

CASES PAGE

Castenada v. State, No. 01-14-00389-CR, .......................................... 16

2015 Tex. App. LEXIS 11615 (Tx. App. Houston 1st

Dist. 2015 no pet.), not designated for publication. 

Johnson v. State, 4 S.W.3d 254 (Tx. Cr. App. 1999) ........................... 13

Ex Parte Kunkle, 852 S.W.2d 499 (Tx. Cr. Ap. 1993) ........................ 14

Milburn v. State, 15 S.W.3d 267 ...................................................13-14, 16

(Tx. App. Houston 14th Dist. 2000 rev. ref.)

Strickland v. Washington, 466 U.S. 668 (1982) ................................. 9-10

Smith v. State, 286 S.W.3d 333 (Tx. Cr. App. 2009) ........................... 15-16

Thompson v. State, 9 S.W.3d 808 (Tx. Cr. App. 1999) ........................ 9

Torres v. State, No. 01-95-00862-CR, ................................................. 16-18

2000 Tex. App. LEXIS 8574 (Tx. App. Houston 1st

Dist. 2000 rev. ref.), not designated for publication)

OTHER

Texas Penal Code

Section 12.32 .............................................................................. 11

Section 12.42 (d) ........................................................................ 11

Section 19.02 (b)(3) ................................................................... 10
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STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

STATEMENT OF THE CASE

The Appellant, Karl Lee Wiggins, was charged by indictment with 

murder. The indictment was amended to add paragraph II that charged 

that the Appellant “....did then and there commit or attempt to commit a 

felony, to-wit: Aggravated Assault and in the course of and in the 

furtherance of the commission or attempted commission of Aggravated 

Assault he committed or attempted to commit an act clearly dangerous 

to human life, to-wit: waving, pointing, and threatening with a loaded 

firearm, that caused the death of an individual, to wit: Edward Charles 

Herman.” (CR Supp-3). 

The Appellant waived a jury and entered a plea of guilty before 

Judge John Gauntt in the 27th District Court of Bell County, Texas to the 

offense alleged in paragraph II of the indictment. (CR-41; RR4-9, 10). He 

judicially confessed to the commission of the offense as alleged. (CR-46; 

RR4-10). The trial court found the evidence sufficient to find the 

Appellant guilty, ordered a presentence investigation report, and 

recessed the hearing. (RR4-10, 11).
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After the subsequent punishment hearing the trial court found the 

Appellant guilty and assessed his punishment at life in the Texas 

Department of Criminal Justice. (CR-68; RR5-AV-12). 

The Appellant filed a Motion for New Trial, which was denied 

after a hearing by the trial court (CR-79; RR6-53). Although the State 

agreed not to pursue the allegations in its Notice to Enhance 

Punishment (CR-17) in exchange for the Appellant’s plea of guilty (CR41), the trial court certified his right to appeal (CR-67) and stated for 

clarification on the record it was the court’s intent to give the Appellant 

permission to do so. (CR6-52).

STATEMENT OF FACTS

The Appellant, his sister Elizabeth Gallagher, and her common law 

husband, Edward Charles Herman were living together in a small cabin. 

After a day of steady drinking, an argument broke out between the 

Appellant and Herman. (RR5-29, 30). At some point during that 

argument the Appellant left the cabin and returned with a loaded .25 

caliber semi-automatic pistol. (RR5-31). When the Appellant pointed 

the gun at Herman, Herman asked if it was even loaded. The Appellant 
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responded that it was loaded and ready. (RR5-31, 32). The Appellant 

kept waving the gun around at Herman. (RR5-32, 33). 

Eventually, Herman got up and said, “Whatever, Lee. Whatever 

you want to do, Lee, I’m not afraid to die”. Herman put his head down to 

the gun. The Appellant fired and Herman fell to the floor. (RR5-34). 

There was no struggle over the gun. He simply pulled the trigger and 

the victim went down. (RR5-37). It was not necessary for the Appellant 

to rack a shell into the chamber of the pistol after he entered the cabin. 

(RR5-38). The Appellant then told Ms. Gallagher that he did not mean to 

do it. (RR5-35). “Lee” referred to the Appellant. (RR5-34). 

During the punishment phase of the trial, the State called David 

Cheadle, the manager of the largest gun shop in central Texas with at 

least 11 years of experience in inspecting and doing minor repairs to 

firearms. (RR5-11). Cheadle had examined State’s Exhibit 2, the .25 

caliber automatic pistol recovered at the scene of the murder. (RR5-12). 

He tested the trigger pull of the weapon and found it to be necessary to 

exert 71⁄4 pounds on the trigger to fire the weapon. (RR5-15). He 

characterized this as a very heavy trigger pull. (RR5-15). Cheadle stated 

no one had indicated any problem with the safety of the weapon and 

that the gun seemed to be in working order. (RR5-16).
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In the hearing on the Motion for New Trial the Appellant 

introduced a Texas Department of Public Safety Ballistics Report that 

noted that the weapon was operational “with a malfunction of the 

quarter cock safety noted during test firing.” (Defendant’s Exhibit 1). 

The Appellant’s two trial attorneys, Joseph Weiner and Bobby Barina 

testified that they had received full discovery from the State and were 

aware of the ballistics report. (RR6-15, 17). 

Mr. Weiner testified that there was no evidence that the gun went 

off half-cocked (RR6-25) and pointed out that the Appellant’s plea was 

to “felony murder” with a lesser culpable mental state. (RR6-27). He 

stated that he was prepared to pursue manslaughter as a lesser included 

offense and use the ballistics report as evidence in the event of a trial 

and plea of not guilty, however, the attorneys and the Appellant had 

concluded that it was better to plead guilty to felony murder with no 

enhancements than to seek a manslaughter conviction enhanced to a 

punishment range of 25 years to life. (RR6-29). Mr. Barina noted that 

the gun had tested to be in working order and with a heavy trigger pull. 

He concurred with the plea to felony murder. (RR6-35, 47).
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SUMMARY OF STATE’S ARGUMENT

The Appellant has failed to show that his trial counsel’s conduct 

was deficient in that it fell below an objective standard of 

reasonableness. Counsel was aware of, and had evaluated the evidence 

and made a reasonable strategic decision in not offering the ballistics 

evidence at the punishment hearing. It cannot be said that no 

reasonable attorney would have employed that strategy.

The Appellant has wholly failed to show by a preponderance of 

the evidence that counsel’s performance prejudiced him and has not 

shown a reasonable probability that but for counsels alleged 

unprofessional performance the result of the proceedings would have 

been different. The same judge who assessed the punishment heard the 

motion for new trial and the evidence alleged to have been improperly 

ignored and denied the motion. Clearly, had that evidence been 

presented at the punishment hearing, there is no reasonable probability 

that the punishment assessed would have been different.

ARGUMENT AND AUTHORITIES

First Issue on Appeal
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Did the Appellant receive ineffective assistance of counsel for 

failure to present evidence at the punishment hearing of a possible 

defect in the quarter-cocked safety of the weapon in mitigation?

Standard of Review

In order to establish ineffective assistance of counsel, the 

Appellant must prove by a preponderance of the evidence: (1) that his 

trial counsel’s performance was deficient in that it fell below an 

objective standard of reasonableness; and (2) that the deficient 

performance prejudiced him to such a degree as to deprive him of a fair 

trial. Such prejudice is demonstrated when the defendant shows a 

reasonable probability that, but for counsel’s unprofessional errors, the 

result of the proceedings would have been different. A reasonable 

probability is one sufficient to undermine confidence in the outcome of 

the proceeding. Strickland v. Washington, 466 U.S. 668, 687 (1982); 

Thompson v. State, 9 S.W.3d 808, 813-14 (Tx. Cr .App. 1999).

The Appellate Court does not view trial counsel’s performance by 

hindsight, but rather upon the facts of the particular case as they were 

at the time of counsel’s conduct. Thompson at 813. The Appellate Court 

must be highly deferential to the judgment of counsel and must 
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presume that counsel’s actions fell within a range of reasonable and 

professional assistance.

Application and Analysis

It must be noted at the outset that the Appellant does not contest 

the voluntariness of his plea of guilty on appeal nor the sufficiency of the 

evidence, but only the alleged ineffectiveness of his trial counsel with 

respect to failure to call a witness from the DPS laboratory to testify that 

there was a malfunction in the quarter-cock safety of the murder 

weapon in mitigation of punishment. 

Strickland imposes upon the Appellant the duty to show, by a 

preponderance of the evidence, both that his trial counsel’s 

performance was deficient in that it fell below an effective standard of 

reasonableness; and that counsel’s performance prejudiced him to such 

a degree that it deprived him of a fair trial.

Counsel’s Performance

The Appellant has failed in his burden to show that trial counsel’s 

performance fell below an objective standard of reasonableness given 

the circumstances of the case. The Appellant had agreed to enter a plea 

of guilty to murder under Section 19.02(b)(3) of the Texas Penal Code. 

That section applies when a person commits or attempts to commit a 
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felony, other than manslaughter, and in the course of and in furtherance 

of that commission or attempt, commits or attempts to commit an act 

clearly dangerous to human life, and causes the death of an individual. 

In exchange for his plea to that offense, the State agreed not to 

pursue the allegations in the notice of enhancement. That notice alleged 

two prior felony convictions in proper order to raise the punishment 

range for murder to 25 years of life in prison. Section 12.42(d), Texas 

Penal Code. By virtue of the plea agreement the minimum punishment 

was 5 years as opposed to 25 years. Section 12.32, Texas Penal Code. 

The same 25 to life range would have applied even had counsel pursued 

a reduction to manslaughter by virtue of the alleged malfunction in the 

weapon. 

The agreement to plead guilty to felony murder, without 

enhancement and the State’s abandonment of the first paragraph of the 

indictment charging intentional and knowing murder (RR4-5), removed 

the necessity for the State to prove that he had intentionally or 

knowingly caused the death of the victim. Instead, the State only had to 

prove the commission or attempt to commit the felony and the act 

clearly dangerous to human life, and the resultant death of the victim. 

This certainly removed any issue as to the possibility that the safety 
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might have malfunctioned on quarter-cock as the act clearly dangerous 

to human life, the waving, pointing, and threatening the victim with a 

loaded firearm, would be in no way negated by such a possible 

malfunction. Thus, the Appellant’s argument that his trial counsel failed 

to rebut the testimony that the pistol was in working order had little or 

no relevance to the offense as charged in paragraph II of the indictment 

and as admitted by him. Nor would that evidence have mitigated the 

punishment.

There was no evidence even remotely suggesting that a 

malfunction occurred at the time of the offense. The Appellant’s 

statements that he did not mean to do it hardly raise an issue that the 

murder resulted from a defective gun. They do not mitigate the 

particular offense because they have nothing to do with the Appellant’s 

commission of an act clearly dangerous to human life. Waving, pointing, 

and threatening another with a loaded gun is such an act whether there 

was a possible malfunction or not. The Appellant’s self-serving denial of 

intent and of “meaning to do it” had no bearing because the culpable 

mental state of murder was not an element of the offense of felony 

murder. The felony murder rule dispenses with the necessity of proving 

mens rea accompanying the homicide itself, the underlying felony 
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supplies the culpable mental state. Johnson v. State, 4 S.W.3d 254, 255 

(Tx. Cr. App. 1999).

The Appellant’s reliance upon Milburn v. State, 15 S.W.3d 267 (Tx. 

App. Houston 14th Dist. 2000 rev. ref.), is misplaced. In that case counsel 

did not call any witnesses at the punishment hearing, although 

numerous were available and willing to speak on the defendant’s behalf. 

Instead they merely sought stipulations that some 21 people would 

testify to his character. The Houston court held that counsel’s 

performance was ineffective for failure to even evaluate available 

mitigation testimony so as to determine if it would be helpful and, as a 

result of such a lack of preparation there was no evidence before the 

jury to offset the State’s punishment evidence. Milburn at 270.

In this case, however, the Appellant’s counsel was aware of the 

DPS ballistics report and had been prepared to raise the issue had the 

case gone to trial on a plea of not guilty in order to seek a lesser 

included manslaughter verdict. (RR6-23, 24). When they were able to 

negotiate a plea lowering the Appellant’s exposure to a higher range of 

punishment, they concluded that the evidence was no longer germane 

to the issues in the case and not mitigating at all. Unlike in Milburn, 

however, they did not leave the fact finder with nothing to consider in 
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mitigation. Counsel called the Appellant’s sister to testify about the 

relationship of the parties, their intoxicated state at the time of the 

offense and the circumstances under which it had occurred. They also 

called the Appellant’s brother for family background in mitigation. 

Counsel is not ineffective for failing to present mitigating evidence 

when the decision a strategic and deliberate one made after a thorough

investigation of the facts and the law. Ex Parte Kunkle, 852 S.W.2d 499, 

506 (Tx. Cr. App. 1993). In Milburn counsel admittedly had not 

investigated or evaluated punishment evidence at all, let alone 

presented it. Milburn at 270. Here, counsel was aware of and had 

considered the ballistics report, but made a reasonable strategic 

decision to dispose of the case in a way that rendered that report less 

probative and irrelevant. Counsel did review and present other 

mitigation evidence. Such a decision falls within the wide range of 

reasonable professional conduct. 

It cannot be said that the Appellant has shown by a 

preponderance of the evidence that no reasonably competent attorney 

would have chosen to forego testimony concerning the ballistic report 

in light of the circumstances of the case and the mode of its disposition.
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Prejudice 

It is also incumbent on the Appellant to show that his counsel’s 

alleged unprofessional errors prejudiced him to such a degree that he 

was deprived of a fair trial. To do so he must show that there is a 

reasonable probability that, but for those errors, the results of the 

proceedings, in this case the punishment assessed, would have been 

different. 

In this case the trial court was the fact finder and assessed 

punishment. The court also heard and denied the motion for new trial. 

In Smith v. State, 286 S.W.3d 333 (Tx. Cr. App. 2009), the Court of 

Criminal Appeals reviewed the decision of the trial court not to hold a 

hearing on a motion for new trial as to punishment and to deny the 

motion based upon the affidavits attached and the record. In that case 

the trial court had heard the issue of punishment. The Court of Criminal 

Appeals observed:

“Only the trial judge in this case could have known what 

factors he took into consideration in assessing the original 

punishment, and only he would know how the defendant’s

testimony, if allowed, might have affected that assessment.

When the trial judge declined to hold a hearing on the 

appellant’s motion for new trial, we presume that he knew 

from the affidavits what the appellant’s testimony at the 

hearing would be, and that, even assuming any such 

testimony to be accurate and reliable, knew that it would
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not have influenced his ultimate normative judgment. In

that event, the trial court could have concluded, without

the necessity of a hearing, that the appellant suffered no

prejudice from any deficiency on his trial counsel’s part

with respect to the assessment of punishment for the 

original offense.” Smith at 344-45.

See also Castenada v. State, No. 01-14-00389-CR, 2015 Tex. App. LEXIS 

11615 (Tx. App. Houston 1st Dist. 2015 no pet.), not designated for 

publication (holding that the defendant failed to show harm when the 

judge who sentenced him also denied his motion for new trial for 

ineffective assistance, and declining to follow Milburn because in that 

case the jury assessed punishment.).

In this case the same judge who sentenced the Appellant to life for 

murder actually heard the testimony on the motion for new trial and 

reviewed the ballistics report, but denied the motion. As noted in Smith, 

the judge alone knew the factors he took into consideration in 

sentencing the Appellant and he certainly was in a position to know 

whether evidence concerning the ballistic report would have been 

reasonably likely to produce a different result. By denying the motion 

the trial court clearly indicated that it would not. 

The Appellant relies heavily upon Torres v. State, No. 01-95-

00862-CR, 2000 Tex. App. LEXIS 8574 (Tx. App. Houston 1st Dist. 2000 
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rev. ref.), not designated for publication. In that case the appellate court 

held that counsel was ineffective for failing to present ballistic evidence 

at the punishment hearing. That case, however, is clearly 

distinguishable. Torres pled guilty to aggravated robbery that was 

committed by himself and his companion. In the course of that robbery 

one of the robbers pulled a gun and shot the female victim three times 

in the chest. The victim identified Torres as the robber who shot her 

both prior to trial and at the punishment hearing. Torres trial counsel, 

however, did not present ballistic evidence in mitigation that showed 

that he was not the shooter, but rather the shots had been fired by his 

companion. 

Torres’ counsel testified at the motion for new trial hearing that 

he did not present that evidence because the State had suggested that 

the two robbers might have switched guns. The Court of Appeals noted 

that Torres only mitigation was that he was not the one who had shot 

the victim of the robbery. Counsel also failed to cross examine the 

victim about her identification of Torres as the shooter because he did 

not want her to “feel bad” and believed that she had gone through 

enough. The record was totally devoid of the evidence that Torres was 
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not the shooter. Torres slip op. at page 7-8. The conviction was reversed 

for ineffective assistance of counsel.

Under the facts of the present case, however, the ballistics report 

in no way indicated that the Appellant did not commit the alleged act 

clearly dangerous to human life in the course of the commission or 

attempted commission of aggravated assault that caused the death of 

the victim. The identity of the Appellant as the person who caused the 

death of the victim by shooting him with a gun was never at issue. All 

the Appellant notes about the ballistic report was that it mentioned in 

passing that in test firing the weapon a malfunction in the quarter-cock 

safety was discovered. Given the offense of which the Appellant pled 

guilty, it is difficult to see how that evidence would be mitigation at all, 

much less such that might reasonably have produced a different result 

on sentencing. 

The Appellant’s act clearly dangerous to human life was the 

waving, pointing, and threatening the victim with a loaded gun. How 

could a malfunction in the safety on quarter-cock mitigate that act? The 

Appellant’s actions with the gun were no less clearly dangerous to 

human life even with a possible malfunction of the weapon. In fact, if 
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anything, his actions were more dangerous to human life if that was the 

case.

The Appellant was not convicted of intentionally or knowingly 

causing the death of the victim, in which case an accidental discharge 

due to a malfunction of the weapon would undoubtedly be mitigating.

However, no such culpable mental state was required for the felony 

murder of which the Appellant was convicted. 

The Appellant admitted that he was committing or attempting to 

commit the felony offense of aggravated assault and, in so doing, he 

committed or attempted to commit an act clearly dangerous to human 

life by waving, pointing, and threatening the victim with a loaded gun. 

He also admitted that he caused the death of the victim as a result of 

those actions. Even if the gun had a partially defective safety, that 

would neither change the nature of the offense nor mitigate or excuse 

his conduct. The trial court, who assessed punishment in the first place, 

clearly did not find that the evidence that it heard on the motion for new 

trial would be reasonably likely to have changed the result. Otherwise 

the court would not have denied the motion. The court did not abuse its 

discretion in doing so. 
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The Appellant has wholly failed to satisfy his burden to show that 

his trial counsel rendered ineffective assistance at the punishment 

hearing of the trial as well as that, but for that ineffective assistance, the 

trial court would have been reasonably likely to have assessed a 

different sentence. 

PRAYER

The State of Texas respectfully prays that the judgment of 

conviction herein be, in all things, be affirmed.

Respectfully Submitted,

HENRY GARZA

District Attorney

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

P.O. Box 540

Belton, Tx 76513

(254) 933-5215

FAX (254) 933-5704

DistrictAttorney@co.bell.tx.us

SBA No. 15200000
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CERTIFICATE OF COMPLIANCE WITH RULE 9

This is to certify that the State’s Brief is in compliance with Rule 9 

of the Texas Rules of Appellate Procedure and that portion which must be 

included under Rule 9.4(i)(1) contains 3,128 words.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this brief has been 

served upon, James H. Kreimeyer, Counsel for Appellant, by electronic 

transfer via Email, addressed to him at jkreime@vvm.com on this 14th

day of December, 2015.

/s/ Bob D. Odom

BOB D. ODOM

Assistant District Attorney