### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00416
- CR

Alvin Dejuan Melton , Appellant

v. The State of Texas , Appellee

FROM THE 20TH DISTRICT COURT OF MILAM COUNTY NO. CR25,897 , THE HONORABLE JOHN YOUNGBLOOD , JUDGE PRESIDING

O P I N I O N
Alvin Dejuan Melton w as convict ed of murder and was sentenced to twenty

- five
year s ’ imprisonment

. See Tex. Penal Code § § 12.32, 19.02. In three issues on ap peal, Melton
cont ends that the trial court erred by denying his requests for jury instr u ctions on criminally negligent homicide and self

- defense and that his trial counsel was ineffective for failing to object
to a portion of the State ’ s closing argument during the punishment phase . W e w ill affirm the trial court ’ s judgment of conviction.

BACKGROUND

In September 2017, the police responded to a 911 call reporting that someone had been shot at the home owned by Melton, and when the police arrived , they found C ourtney Latrell Williams deceased on the porch with a gunshot wou nd to his head. At that ti me , Melton2

was a t his parents ’ house next door, but he returned to his home after the police arrived

. Melton ’ s mother also handed over a shotgun to the police.

Melton agreed to talk with tw o police officers about what happened at the scene ,
a nd t he officers re corded those ex changes. I n those recording s , which were la ter introduced at trial, Melton explained that he was socializing outside of his house with several fr iends and f amily members , including Williams, Quent el Westbrook, and Melton ’ s bro the r John M e lton. At some point durin g the gathering, John and Westbrook got into an altercation , and Melton and Williams separated the two i ndividuals. According to Melton, John got a ngry at him, displayed

a knife , and held it against him. Melton d escr ib ed feeling thre atened by Jo hn ’ s actions . In response, Melton went inside his house , r etri eved his shotgun, returned to the group, and told John to never pull a knife on him again. Melton explained that after he retrieved the gun, it
went off in a “ frea k accident , ” shoo ting Williams. Melton stated that he did not intend to shoot
anyone , that he did not touch the trigger, and that he did not load the w eapon . After Williams was shot, Melton went next door to his parents ’ home with the shot gun , and on e of the other indivi duals at the home called 911.

Melton was indicted for the offense of murder. During the t rial, the State called several witnesses , including the detective who interviewed Melton at the scene, one of the police officer s responding to the 911 call who described the scene and William s ’ s wounds as being inconsistent with Melton ’ s ve rsion of the events , the medical examine r who performed an autopsy and concluded that Williams died from a wound to the head caused by a shotgun discharge d approx imately five f eet away from him , t he officer who obtained a positive result in

a gunshot

- residue test performed on Melton, and the sheriff who examined the shot gun and testified that the weapo n functioned as it was desig ned to do, that the trigger had to b e squee zed3

with considera

ble force to discharge the weapon, and th at he was unable to g et the wea pon to misfi re as described by Melton

. At trial, the following evi dence was admitted : the two re corded interviews of Melton made by offic ers at the sc ene , a r ecorded interview of another person who

w a s at the home at the time of the incident, photo graphs of the home and of Williams , and the

a utopsy report

. Melton elected to testify and also called Jo hn as a witness. In his testimony, Melton repeated hi s assert ion that th e sho tgun discharged without h is touching the trigger , that the shooting was accident al , and that he did not intend to shoot anyone . Melton also testified that he ha d a reasonable fear that John might hurt or kill him because John has m ultiple convictions for viol ent offenses , pulled a knife on him, and is quick to anger

. Additionally, Melton related that he did not ch eck to see if the shotgun was loaded and that he did not th ink it was loa ded

. Further, Melton stated that the gun was n ot point ed in any dir ection, was not pointed up o r down, was on his side, and was parallel to the ground. Melton ’ s brot her John also testified that the shooting was accident al

.

The jury charge for the guilt

- innocence phase included instructions for murd er and f o r manslaughter. Melton also requested a n instruction on criminally negligent homicide and on self

- de fense , but the trial court denied those requests. A f ter considering the evid ence presented at tr ial, the jury found Melton guilty of murder.

During the punishm ent phase, the S t ate called the f ollowing witness es : Williams ’ s sister , his mother, an d the sheriff who previou sly testified. Melton elected to testify during the punishment phase, and he called the foll owing witnesses : his mother , his g irlfriend, and two of his brothers. After both s id es rested, the trial court read to the jury the charge for the punishment phase, including the required instructions pertaining to parole law and good

- condu ct time.4

During his closing argument, Melton ’ s a ttorney ask ed the jury to return a fair and impar tial

se ntence taking into account mitigating evidence, empha sized that Melton apol o gized to Williams ’ s family during his testimony and accepted resp onsibility, and informed the jury that Melton has three chi ldren for w h om he is responsible . I n its closing , the State argued that Williams did not hing wrong , that his family will never see him again, that Melton could have killed anyone at the house through his behavior, that Melton and his brother have been vio lent wit h o ne another before, an d that Melt on tri ed to cover up the crime and had not told the truth about everything that happened. The S tate also made a reference to parole law and good

- conduct time

. A fter considering the evidence pr esented during the punishment phase, the jury sentenced Melton to tw enty

- five years ’ imprisonment.

Melto n appeals the trial court ’ s judgment of conviction.

DISCUSSION In his first two issues on appeal, Melton argues that the trial court erred by denyin g his re quest fo r jury instruct ions on criminally negligent homici de and self

- defense. In his third issue on appeal, Melton contends that his trial attorney provided i neffective assistance during the punishment phase by faili ng to object to a portion of the State ’ s closin g argu ment dis cussing parole law and good

- conduc t time.

Cr iminally Negligent Homicide

W hen presenting his first issue, Melton asserts that the evidence presented at trial warranted the inclusion of a less er - included

- of fense instruction for criminally n egligent homi ci d e and that the trial court , there fore, erred by failing to include h is requested in struction in the5

cha rge . Further, Melton requests that this Court reverse his murder conviction an d render a judgment of acquittal.

Lesser

- included offens es are defined in the Texas Code of Criminal Proc edure, which provides in relevant par t as follows:

An offense is a lesser included offense if:

. . . (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its com mission

. . . .
Tex. Code Crim. Proc. art. 37.09 ( 3)

. The Penal Code d e fin es the four culpable mental st ates as follows:
(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his cond uct when it is his conscious objective or desire to engage in the conduct or cause th e result. (b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding h is conduct when he is aware of the nat ure of his conduct or that the circumstances exist. A per son acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. (c) A person acts recklessly, or is reckle ss, with respect t o circumstances surrounding his conduct or the result of his conduc t when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a na ture and degree th at its disregard constitutes a gross dev iation from the standard of ca re that an ordinary person would exercise under all the circumstances as viewed from the actor ’ s standpoint. (d) A person acts with criminal negligence, or is criminall y negligent, with respect to circumstances surrounding his conduct or the result of hi s conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the fa ilure to perceive it constitutes a gross deviation from the standard of care6

that an ordinary person would exercise under all the circumstances as viewed from the actor ’ s standpoint.
Tex. Penal Code § 6.03.

Appellate courts “ use a two

- s tep analysis to de termine if a defendant is entitled to

a less er - offense instructi on. ” Ritcherson v. State , 56 8 S.W.3d 667, 670 (Tex. Crim. App. 2018). First, appell ate courts “ compare the statutory elements of the alleged lesser offense and the
statutor y elements and a ny de scriptive averments in the indictment

. ” Id. at 670

- 71

. Next,
ap pellate courts must determine if the re is “ evidence from which a rati onal jury could find the defendant guilty of onl y the lesser offense. ” I d. at 671. “ That requiremen t is met if there i s (1) evidence that directly refutes or negates other evidence esta blishing the greater offense and raises the lesser

- included offense or (2) evidence that is susceptible to different interpretations, one of which refutes or negates an e lement of the great er offense and raises the lesser offens e. ”
I d. “ The evidenc e rais ing the lesser offense must be affirmatively in the record , ” meaning that

“ a defendant is not entitled to a lesser

- included offense instruction based on the absence of

ev idence, and the evid ence must be ‘ directly germane to the lesser

- included offense

. . . . ’ ” Id. ( quoting Skinner v. State , 956 S.W.2d 532, 543 (Tex. Crim. App. 1997) ). Appellate courts

“ consider all the evidence admitted at trial, not just the evidence p resented by the defen dant, and if there is more than a sci ntilla of evidence raising t he lesser offense and negating or rebutting an element of the greater offense, the defendant is entitled to a lesser

- charge instruction. ” Id. “ It does not matter whethe r the evidence is con troverted or even credible. ” Id. “ I f the jury is charged on alternate theories, the second prong of the lesser

- offense test is met ‘ only if there is evidence which, if believed, refutes or negates every theory which elevates the offe nse7

from the lesser to the greater. ’ ” Id. (quoting Areval o v. State , 970 S.W.2d 547, 54 9 (Tex. Crim. App. 1998) )

. Melton was charged with and convicted of murder . Consistent with the language of the P ena l Code provision governing the offense of murder , t he indictment alle ged that Melton committed murder by “ i ntentionally or kn owingly caus[ing] the death of

. . . Williams, by shooting him with a firearm ” or “ intentionally , with the intent to c ause serious bodily injury to

. . . Williams , commit an act cl ea rly dangerous to h uman life, namely, shooting him with a firearm, which caused the death of . . . Williams. ” See Tex. Penal Code § 19.02(b)(1 )

- (2). As set out above, the trial court included an inst ruction for the less er offense of manslaughter, which

e xplain ed that Melto n was guilty of that off ense if he “ re cklessly ” “ caused the death of .

. . Williams

. ” See i d. § 19.04. Melton request ed but was denied an instruction for criminal ly negligent homicide. “ A person commits ” that “ offense if he causes th e death of an indivi dual by criminal negligence

. ” I

d. § 1 9.05 (a). C riminally negligent homicide is a lesser

- included offense of murder b ecause i t dif fers from murder in the respect that a less culpable mental state suffices to establish its commission

. See Tex. Code Crim. P roc. art. 3 7.09(3); Saunders v. Stat e , 840 S.W.2d 390, 391 (Tex. Crim. App. 1992) ; Jackson v. State , 248 S.W.3d 369, 371 (Tex. App.

— Houston [1st Dist.] 2007, pet. ref ’ d) ; Trujillo v. State , 227 S.W.3d 164, 16 8 (T ex. App.

— Ho uston [1st Dist.] 2006, pet. r ef ’ d) ; see also Pitonyak v. State , 253 S.W.3d 834, 846 (Tex. App.

— Austin 20 08, pet. ref ’ d) (explaining that “ manslaughter and criminally negligent homicide are included within t he proof necessary to establish the ” great er offense of inte ntional o r knowing mur der)

. Accordingly , we now address “ whether there is some evidence from which the jury rationally could have found8

that, if appellant was guilty, he was guilty only of the le sser offense of criminally negligent homicide.” See Jackson , 248 S.W.3d at 371

.

“ The key to criminal negligence is th e failure of the actor to perceive the risk

cr eated by his conduct. ” Trujillo , 227 S.W.3d at 168

. “ If the evidence shows that the defendant ’ s awareness is such that he perceived the risk his condu ct created, he is not entitled to a charge of criminally n egligent homicide. ” Id. “ Evidence that a defendant knows a gun is loaded, that he is f

amiliar with guns and their potential for injury, and that he points a gun at another indicates a person who i s aware of a risk crea ted by that conduct and disregards t he risk.” Thomas v. State , 699 S.W.2d 845, 849 (Tex. Crim . App. 1985) , abrogated on other grounds by Najar v. State , 618 S.W.3d 366, 371

- 72 (Tex. Crim. App. 2021 )

.

As support for his assertion th at he was entitled to a n instruction on criminally neglig e nt homicide, Melton points to portion s of his testimony and his interviews with the police in which he stated that the gun discharg ed accidentally, that his hand never touch ed the trigger, that he d id not check to see if the gun was loaded, that he did not thin k the gun w as lo aded, and that he d id not intend to shoot anyone. B ased on this evidence , Melton argues that t here was evidence from which the jury could have dete rmin ed that if he wa s guilty, he was guil ty only of the lesser offense of criminally ne glig ent homicide and that, therefore, the trial court erred by

re fusing to submit an instruction for the lesser offense

.

E vidence suggesting accidental discharge of a firearm does not “ necessari ly raise the issue ” of cr iminal ly negligent homi cide

. See Thomas , 699 S.W.2d at 85 0 ; Jackson , 248 S.W.3 d at 372 ; see also Gl over v. State , No. 03

- 06

- 00232

- CR, 2007 WL 3306498, at * 6 (Tex. App.

— Austin Nov. 8, 2007, pet. ref ’ d) (mem. op., not desig nated for publication) ( noting tha t “accidental discharge alon e is not enough to warrant an instruction on criminally negligent9

homicide”) . However, in cases like this one where there is evidence suggesting tha t a weapon

was accidentally discharged , that the defen dant did not touch the tr igger, that the defendan t thought the gun was un loa ded, and that the defendant did not in tend to shoot , courts have explained that th e evidence “ raises an inference that the def endant did not p erceive a risk of injury or death ” and requires an instruction on the theory o f crimina lly negligent homicide. Branham v. State , 583 S.W.2d 782, 785 (Tex. Crim. App. 1979); see Levan v. S tate , 93 S.W.3d 581, 585 (Tex. App.

— E astland 2002, pet. ref ’ d) (explaining that instruction was required w here evidence showed that defendant thought gun w as unloaded and that gun fired when v ictim attempted to grab it from def endant while he was placing it in duffel bag) ; see also Thom as , 699 S.W.2d at 851 (explaining that Branham was correctly decided where defendant testified that s he thought weapon was u nloaded, did not intend to fire gun, and did not have her finger on trig ger and that gun accidenta lly discharged)

. B u t see Pitonyak , 253 S.W.3d at 847 (concluding that testimony from defendant that he did n ot check to see if pistol was loade d w as not evid ence that he was guilty only of criminally negligent homicide ) ; Trujillo , 227 S.W.3d at 168 (determining that defendant ’ s testimony that he raised gun in air to frighten victim and others
away , that pe rson r an up to him and hit gun c ausing it to discharge , and that he did not point gun at victim, did not have his fing er on trigger, and did not intend to shoot him did not entitle him to instruction for criminally negligent homicide because evidence did not est ablish that he did not
per ceive risk of brandishi ng loaded gun)

. Accordingly, under the controlling authority by the Court o f Criminal Appeals, Melton was entitled to the instruction on criminally negligent homicide bec ause his testimony raise d the infere nce that he did not percei ve a risk of injury or death with what he thought was an unloaded gun. See Thomas , 699 S.W.2 d at 851.10 Al though it was error not to include the reque sted instruction, we cannot sustain Melton ’ s first issue. A trial court ’ s er roneous refusal to give a re quested instructio n on a lesser

included offense is su bject to a harm analysis

. Nangurai v. State , 507 S.W.3d 229, 234 (T ex. App.

— Houst on [1st Dist.] 2014, pet. ref ’ d). Because Melton requested the instruction, we are required to reverse if the refusal t o submit the reque sted instruction resulted in “some harm”
to him

. See id. Typically, when a tr ia l court has failed to submit a lesse r - included

- offense instruction that was requested and raised by the evidence, appellate court s will find that the error

r esulted in some harm because t he omission left the jury who believed the defendant had committed some crime with just two options: acquit or co nvict the defendant of the greate r offense even though the jury had a reasonable doub t regarding the greater offe nse . Saunders v.
Stat e , 913 S.W.2d 564, 571 (Tex. Crim. App. 1995).

However, the Court of Criminal Appeals has recognized that in circum stances like those present here , wher e the trial court submi ts one lesser

- included

- offens e instruction raised by the e v idence but refused to submit another lesser instruction that the evidence also raised , the defendant might not suffer any harm by the trial court ’ s refusal to submit t he other lesser instruction. See id. at 572

. The Court ex plained that in these circums t ances “ [t]he j ury ’ s o ptions [are] not limited to conviction of the greater offense o r acq uittal ” and that “ the r isk that the jury will convict of the g reater offense despite i ts reasonable doubt is not so apparent ” because

“ [t ]h ere is an available compromi se ” in which the jury “ would opt for a lesser included offense that was submitted rath er than convict him of the greater offense. ” Id

. ; see also Guzman v. State , 188 S.W.3d 185, 194 n.20 (Tex. Crim. App. 2006) (concluding t ha t any error from omission of i nstruction for lesser offense of deadly conduct was harmless where les ser - offense instruction was given for aggravated assault and where jury found defendant guilty of greater offense of11

attempte d murder)

. Si milarly, this Cou rt has explained that if a jur y cho o ses to find the defendant gu ilty of the greater offense as opposed to the submitted lesser

- included offense , that
may indicate that the trial court ’ s refusal to provide the other lesser

- included offen se instruction

was h armless error. Jimenez v. Sta te , 95 3 S.W.2d 293, 3 00 (Tex. App.

— Austin 1997, pet. ref ’ d); see Smith v. State , No. 04

- 15

- 00122

- CR, 2016 WL 1464485, at *7 (Tex. App.

— Sa n Antonio Apr. 1 3, 2016, no pet.) (mem. op., not designated for publicati on); Levan , 93 S .W.3d at 586

.

In this c ase, th e trial court provided an instruction for the lesser

- included offense of manslaug hter. See Tex. P enal Code § 19.04. The culpable mental states requir ed for criminal ly negligent homicide and for man slaughter are simila r , requiring the assumption of a risk

. See id. § 6 .03 (c) , (d) ; Levan , 93 S.W.3d at 586

. In other words, both offense s concern death caused by a risk that the defendant created. Levan , 93 S.W.3d at 586. In order for the jury to have convicted Melton of manslaughter or criminally negligent homicide, it w ould have had
to determine that he did not cause Williams ’ s death int entional ly o r knowingly and also have conclude d that he caused Williams ’ s death through a risk that he created either knowingly for

man s laughter or unknowingly for criminall y negli gent homicide. S ee Tex. Penal Code § § 6.03 , 19.04, .05

. By including a mans laughter instruction, the trial court gave the jury the option of convict ing Melton because of a risk created by his con duct, but the j ury rejected that op tion and instead found that Melton in tent ionally or knowingly ca used Williams ’ s death. If the jury h ad a

reason able doubt about the greater offense , it is unl ikely the jury would have convicted him of murder , rather than acquit , fo r la ck of a compromise. By i ts rejection of the lesser offense of manslaughter, it is more likely that the jury convicted Melton because it believed that he intenti onally or knowin gly caused the dea th o f Williams

. Levan , 93 S.W.3d at 58 6

- 87.12 For these reas ons, we conclude that the error stemmin g from the trial court ’ s decision not to subm it the requested instruction for the less er offense o f criminally negligent homicide was h armless and , therefore, overrule Melto n ’ s first issue on appeal.

Se lf
- Defense In his second issue on appeal, Melton urg es that the trial court erred by failing to include his requested instr uction for self

- defense. More specifically, Melton asserts t hat the trial court should have included the req uested instruction bec ause he test ified that “ he was in reasonable f

ear for his safety and the safety of ot her s ” after “ his b rother, John Melton, who has a history of violent assaults, pulled a knife. ”

Chapte r N i ne of the Penal Code contains several defenses to prosecution , inc luding the p rovision gov erning self

- defense, which pro vides that “a person is justified in using force against another when and to the degree the actor reasonably believes the force is i mmediately necessary to protect the a ctor against the other ’ s use or a ttempted use of unlawful force.” Tex. Penal Code § § 9 .02, .31(a). “ ‘Reasonable belief’ means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42).

“ S elf

- d efense is a justification for otherwise unlaw ful conduct.” Torres v. State , 7 S.W.3d 71 2, 714 (Tex. App.

— Houston [14th Dist.] 1999, pet. ref ’ d).

Moreover, the use of d eadly force is only justified in the circumstance s set out by the Penal Code. Tex. Penal Code § 9.31(d). Of significance to this case, “[a] person is justified in using deadl y force against another .

. . if the actor would be justified in using force against the other” as set out above and “when and to the degree the actor reasonably believes the deadly force is immediately necessar y . . . to protect the actor against the othe r ’ s use or attempted use of13

unlawful deadly force.” Id. § 9.32(a). “A person has the right to defe nd himself from apparent dang er to the same extent as he would if the danger were real.” Dugar v. State , 464 S .W.3d 811, 818 (Tex. App.

— Houston [14th Dist. ] 2015, pet. ref ’ d) (quoting Hamel v. State , 916 S.W.2d 491, 493 (Tex. Crim. App. 1996)). Accordingly , “under certain circumstan ces, a person may use deadly force against another, even if the other was not actu ally using or attempting to use unlawful dead ly force.” Id. “The reasonableness of a person ’ s belief that force is immediately necessary is viewed from the person ’ s standpo int at the time that he acted.” Id.

When determining whether a defensive inst ruction should have been provided, appellate cour ts “view the evidence in the light most favorable to the defendant ’ s requested” instruction. Bufkin v. State , 207 S.W.3d 779 , 782 (Tex. Crim. App. 2006). In general, a defendant is entitled to a jury instr uction on a defensive issue if the defensive issu e “is raised by the evidence, regardless of the strength or credibility of that evidence.” Farmer v. State , 411 S.W .3d 901, 906 (Tex. Crim. App. 2013). “ The defendant ’ s testimony alone may be sufficient to raise a defensive theory requiring a charge .” Dyson v. State , 672 S.W.2d 460, 463 (Tex. Crim. App. 1984)

. “A trial court errs in denying a self defense instruction if ther e is some evidence, from any source, when viewed in the light most favorable to th e defendant, that will support the elements of s elf defense.” Gamino v. State , 537 S.W.3d 507, 510 (Tex . Crim. App. 2017). “Whether a defense is supported by the evidence i s a sufficiency question reviewable on appeal as a question of law.” Shaw v. Stat e , 243 S.W.3d 647, 658 (Tex. Crim. App. 2007).

“ In determining whether a defense is thus support ed, a c ourt must rely on its own judgment, formed in the light of its own comm on sense and experience, as to the limits of rational inference from the facts pro ven.” Id. “[W]hen the defensive evidence merel y negates the necessary culpable mental state, i t will no t suffice to entitle the defendant to a defensive14

instruction.” Id. at 659. “Rather, a defensive instruction is only appropriate when the defendant ’ s defensive evidence essentially admits to every element of the offense . . . but interposes the justification to excuse th e otherwise criminal conduct.” I d. ; see also Juarez v. State , 308 S.W.3d 398, 404 (Tex. Crim. App. 2010) (explaining that doctrine of confession and avoidance “requires an admission to the conduct, which includ es both the act or omission and the requisite mental state”). However, “[a]dmitting to the condu ct does not necessarily mean admitting to every element of the offense.” Gamino , 537 S.W.3d at 512. “For example, a defendant” c an essentially admit to the commission of murder but still deny “an intent to kill.” Id. Acc ordingly, “ a defendant can suffic iently admit the conduct alleged and justify a d efensive instruction. ” Torres , 7 S.W.3d at 715

.

Although Melton correctly p oints out that he t estifie d at trial and told the police during interviews that he felt afraid and endangered before retrieving his shotgun because his b rother ha d been fighting with someone earlier, pul led a knif e and turned on h im, ha d threatened him with a kn ife before, and had an extensi ve criminal history for vio lent offenses, he also repeatedly and consistently denied shooting at Williams . Specifically, Melton testified a nd told the p olice that the gun acci d ental ly discharged, that he did not touch the tri gger, that he did not point the weapon up or down, and that he did not intend to sho ot anyone.

Even viewing the eviden ce in the light most favorable to Melton ’ s req uested ins truction, he was not entitled t o an instruction on self

- defense because he did not sufficiently admit to the alleged c onduct. See Marsh v. State , 343 S.W.3d 475, 480 (Tex. App.

— Texarka na 2011, pet. ref ’ d) ( explaining that actor employ ing self

- defense acts in “ i ntentional or knowing” fa shion and that “ one cannot act a ccidentally . . . w hen acting in self

- defense ” ) ; Wyatt v. State , 889 S.W.2d 691, 695 (T ex. App.

— Beaumont 1994, no pet.) (viewing evidence in li ght most15

favorable to instruction and determining t hat it did no t establish need for self

- defense instruction because defendant ’ s “ v ersion of the shooting was that it was entirely an accident as the weapon inadvertently discharged ” ) ; see also Carsner v. St ate , No. 08

- 11

- 00326

- CR, 2018 WL 2998194, at * 12 (Tex. App.

— El Paso June 15, 2018 , p et. dism ’ d ) ( op., not de signated for publ ication ) ( observing that testimony that defendant accidentally shot vic tims does not raise clai m of self

- defense)

. For these re asons, we ov errule Melton ’ s second issue on appeal.

Assi stance of Counsel

In hi s final issue on appeal, Melton argues that his t rial attorney was ineffective during the pun ishmen t phase by failing to object to the portion of th e State ’ s closing argument discussing the law on parole and good

- conduct time. S pecifically, Melt on asserts that the middle sentences in the following portion o f the S t ate ’ s closing w ere improper:
[S tate]: Because the truth o f the matter is even going to prison for the rest of his life, those family members still get to see him, still get to call him, stil l get to hear his voice, get to write letters to him. Eve n

— no matt er what , you just heard that based on parole law and good conduct [ time ] , this defenda nt is probably going to g et out of prison no matter what you r sentence is. He ’s going to get out at some po int . Those family members a re going to get all of th at again.

Melton contends that his trial a ttorney should have objecte d to this argument becau se th e
comments contravened the directives of the Code of Criminal Procedure as set out in the trial
court ’ s jury charge by misleading the jury regarding the role that p arole law and good

- conduct time might serve in its deliberations

. See Tex. Code Crim. Proc. art. 37.07, § 4. Further, Melton contends that his trial attorney ’ s failure to object could not ha ve been part of any trial strategy and that the State ’ s un ob jected

- to comments prejudiced him by encouraging “ the jury to16

impose an excessive prison te rm to compensate for or protect against ” the pos sibility that he would be released on parole , particularly w here there was no evidence presented at trial showing
t hat he engaged in any prior violent con duct

. For these reasons, Melton asserts that his tria l counsel was ineffective during the punishment phase and request s that the case be remand ed for a new trial on punishment.

To demonstrate ineffective assistance o f counsel, a defendant must establish by

a preponderance of the ev idence both deficient performance by counsel and pr ejudice. See Strickland v. Washington , 466 U.S. 668, 687 (1984); Miller v. State , 5 48 S.W.3d 497, 499 (Tex. Crim. App. 2018). First, the defendant must show that his counsel ’ s performance fell below an

o bjective standard of reasonableness under prevail ing professional norms. Strickland , 466 U.S. at 687

- 88; Ex parte Scott , 541 S.W.3d 10 4, 115 (Tex. Crim. App. 2017). Next, the defendant

mu st show the existence of a reasonable probability that the result o f the proceeding would have been different absent his c ounsel ’ s deficient performance. Strickland , 466 U.S. at 694; Burch v.
State , 54 1 S.W.3d 816, 820 (Tex. Crim. App. 2017). A reasonabl e probability is one that is sufficient to undermine confidence in the outcome. See Burch , 541 S.W.3d at 820; Nava v. State , 415 S.W.3d 289, 308 (Tex. Crim. App. 2013). “It will not suffice for [the d efendant] to show ‘that the errors had some conceivabl e effect on the outcome of the proceeding.’ ” Perez v. State , 310 S .W.3d 890, 894 (Tex. Crim. App. 2010) (quoting St rickland , 466 U.S. at 693). For ineffectiveness claims regarding counsel ’ s performanc e during the punishment phase, the defendant must “pro ve that there is a reasonable probability that, but for counsel ’ s e rrors, the sentencing jury would have reached a m ore favorab le verdict.” Ex parte Rogers , 369 S.W.3d 858, 863 (Tex. Crim. App. 2012)

. “Failure to make the required showing of either defic ient17

performance or sufficient prejudice defeats the ineffect ivenes s claim.” Strickland , 466 U.S.
at 700; see Garcia v. State , 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).

Appellate courts reviewing an i neffectiveness claim “indulge in a strong presumption that counsel ’ s conduct was not deficient , ” Nava , 415 S.W.3d at 307

- 08 , and “counsel ’ s conduct is reviewed with great deference, without the distorting effects of hindsight , ” Goodspeed v. State , 187 S.W. 3d 390, 392 (Tex. Crim. App. 2005)

. To rebut that pre sumption, a claim of ineffective assistance must be “firmly founded in the record,” and “the record must affirmatively demonstrate” the meritorious nature of the claim. Menefield v. State , 363 S.W.3d 5 91, 592 (Tex. Crim. App. 2012); Go odspeed , 187 S.W.3d at 392. Evaluations of effectiveness are based on “the totality of the representation.” Frangias v. State , 450 S.W.3d 125, 136 (Tex. Crim. App. 2013).

In general, direct appeals do not provide a usefu l vehicle for presenting ineffecti veness claims b ecaus e the record for that type of claim “is generally undeveloped.”
Goo dspeed , 187 S.W.3d at 392; see Prine v. State , 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). In addition, before their representation is deemed ineffective, trial attorne ys should be aff orded the opportunity to explain their actions. Goodspeed , 187 S.W.3d at 392. If a trial attorney has not been afforded that opportunity, a reviewing court should not find him to be deficient unless the c hallenged conduct was “so outrageo us that no compete nt attorney would have engaged in it.” Nava , 415 S.W.3d at 308 (quot ing Menefield , 363 S.W.3d at 593).

As set out above, Melton contends that the referenced portion of the S t ate ’s closing arguments was i nconsistent with the version of se ction 4 of article 37 .07 of the Code of Criminal Procedure in effect at the time of his c onviction. T hat former provision ma ndated that certain instructions governing parole law and good

- conduct time be included in jury c harges for18

the punishment phase , an d the j ury charge in this case included those instructions

. See Act of May 26 , 2015, 84th Leg., R.S., ch. 770, § 2.0 8, a rt. 37.07, sec. 4, 2015 Te x. Gen. Laws 2321, 2367

- 68 ( “ f

ormer a rticle 37.07, § 4 ” ) (current version at Tex. Code Crim. P roc. art. 37.07, § 4)

. 1 For example , con sistent with former section 4, the jury charge in this case stated that Melton would not be eligible for parole until he has served either one half o f his sentence or thirty yea rs, that eligibili ty for parole does not guarantee that parole will be giv en , that it is not possible to pred ict how parole law and good

- co ndu ct time might be applied to Melton, and that the jury can consider the existence of parole law and good

- conduct time but may not con sider how either might be applied to Melton

. T hat provi sion also explained that “[t]his section does not permit the intr oduction of evidence on the operation of parole and good conduct time laws

. ” Id.

In interpreting section 4, this Court has determi ned that a prosecutor may properly cla rify the mea ning of th e jury

- charge instructions pertaining to parole law and good

- conduct time but may not “ comment on the specific ext ent to which parole law and good

- conduct time may be applied to the particular def endant on trial

. ” See Branch v. State , 335 S.W.3d 893, 907 (Tex. App.

— Austin 2011, pet. ref ’ d) ; see also Hawkins v. Stat e , 135 S.W.3d 72, 84 (Tex. Crim. App. 2004) ( explaining that “ [ i] t was not improper for the prosecutor to accurately restate the law gi ven in the jury charge nor was it improper for the prosecuto r to ask the jury to take the existence of that law i nto acco unt when assessing punishment ”) ; Pryor v. State , No. 03

- 13

- 00347

- CR, 2 015 WL 2066228, at * 4 (Tex. App.

— Austin May 1, 2015, pet. ref’d) (mem. op., not designated for publication) (concluding “ that the prosecutor ’ s argument was improper because it

1 T he current version no longer requires the good

- conduct ins truction for certain convictions, including murder. See Tex. Code Crim. Proc. art. 37.07, § 4.19

went beyon d merely ex plaining the jury charge and instead urged the jury to cons ider when Pryor might actually be released on parole ” )

.

Further, in th e context of claims of ineffective assistance of counse l , one of our sister courts of appeals ha s determined that the failure to obj ect to arguments concerning parole law con stituted ineffective assistance as a matter of law when the trial attorney fa iled to object to the prosecutor ’ s argument i nviting the jur y to consi d e r parole law when assessing punishment and incorrectly informing the jury that an individual sentenced to forty years ’ imprisonment coul d become el i gible for parole in two years. Vale ncia v. State , 966 S.W.2d 188, 190 , 191 (Tex. App.

— Houston [ 1st D ist.] 1998, pet. re f ’ d)

. T his Court has also determined tha t the failur e to object to i mproper j ury argument constituted ineffective assistance where the prosecutor in correctly argued that a defend ant sentenced to life would be rel eased from prison

w ith parole and good

- conduct time in as quickly as seve n or ei ght years after bein g sent to pri so n and under no circumstances would the defendant serve fifteen to twenty years and where the hearing on a mot ion for new trial revealed that the defendant ’ s att orn ey had no st rate gy for not obj ecting. See Branch , 3 35 S.W.3d at 907 , 909

- 10

.

The State in this case did not provide the jury with an inaccurate calculation like those des cribed above . Instead, in this case , the S t ate mad e a brief exchang e suggesting
t hat Me lton “ is prob ably going to get out of prison ” and will “ get out at some point ” and did
not otherwise reference paro le la w or good

- conduct time. See Frangias , 450 S.W.3d at 136 (explaining that defendant is n ot entitled to representation that is erro r f ree); Gish v. St ate , N o. 02

- 09

- 00034

- CR, 2011 WL 167076, at *3 (Tex. App.

— Fort Worth Jan. 13, 2011, no p et.) (mem. op., not designated for publication) (noting that to prevail defendant must show more than i mpropriety of pr osecutor ’ s ar gument and must s how that failure to objec t rendered cou nsel20

ineffective) ; see also Wiley v. State , No. 12

- 14

- 00126

- CR, 201 5 WL 3765383, at *2

- 3 (Tex. App.

— Tyler June 17, 2015, no pet.) (mem. op., not designated for publication ) (concluding that
tr i al cou nsel ’ s failure to obj ect could not ha ve bee n based on reasonable trial strategy where S tate “ repea tedly referred to Appellant ’ s parole as if his eventual release were not in doubt ” )

. 2

Perhaps more impor tantly, unlike in Branch , in this case there was no hearing on a motion for new trial in wh ich trial counsel was given the opportunity to ex plai n the reasons for not objecting

. O n the limited record we have before us, there is no information regarding trial counsel ’ s strategy fo r no t objecting. See Johnson v. State , 68 S.W.3 d 6 44, 655 ( Tex. Cr im. App. 2002 ) (n oting argument that tr ia l counsel was ineffective for failing to object to State ’ s argument that jury “ sh ould not consider parole law at all because it was su bject to chang e , ” observing that record on direct appeal did n ot contain trial co unsel ’ s reasons for not objecting, and d etermining that record did not overcome presumption of effectiveness ); see also Thompson
v. State , 9 S.W.3d 808, 814 (Tex. Crim. App. 1 999) (noting t hat b ecause record w a s silent as to trial counse l ’ s reasoning, defe ndant “has failed to rebut the presumption this was a reasona ble decisi on ” ); Sanchez v. State , N o. 07

- 06

- 00435

- CR, 2008 WL 2405889, at * 3 (Tex. App.

—

2 In his brief, Melton refers to several appellate cases as support for hi s argument, but we find those cas es to be distinguishable. The first group of ca ses address ed the issue of improper jury argument rather than ineffective assistance of counsel , which present different consideratio ns for revi ew on appeal

. S ee Hawkins v. State , 135 S.W. 3 d 72 , 74 , 85 (Tex. Crim. App. 2004) ; Clanton v. State , 528 S.W.2d 250 , 252

- 53 , 255 (Tex. Crim. App. 1975) ; Chester v. State , 167 S.W.3d 935, 936, 938 (T ex. App.

— Amarillo 2005 , pet. ref ’ d) ; Perez v. S tate , 994 S.W.2d 233, 236 , 238 (Tex. App.

— Waco 1999, no pet .) . The remaind er of the cases do not address allege dly improper j ury arguments concerning parole law as direct issues or in directly in the context of ineffective assistance of counsel. See Marti n ez v. State , 17 S.W.3d 677, 692 , 694 (Tex. Crim. App. 2 000 ) ; Mosely v. Sta te , 983 S.W.2d 249 , 2 58 , 260 (Tex. Crim. App. 1998) ; Ex parte Walker , 794 S.W.2d 36, 36, 37 (Tex. Crim. App. 1990) ; Ex parte Duffy , 607 S.W.2d 5 0 7, 525 (Tex. Crim. App. 1 980) , overr uled on other grounds by Hernandez v. State , 988 S.W.2d 770 (Tex. Crim. App . 1999) ; Booker v. State , 103 S.W .3d 521 , 52 5, 540 (Tex. App.

— Fort Worth 2003, pet. ref ’ d) ; Simms v. State , 848 S.W.2d 754 , 758 (Tex. App.

— Houst o n [1st Dist.] 1993, pet. ref ’ d)

.21

Amarillo 2008, no pet.) (m em. op., not d esignated for publication) ( deciding that direct ap peal record did not overcome presumption that trial couns el ’ s failure to object to argu m ent concerning parole law “ might be considered trial stra tegy ” ) ; Diaz v. State , Nos. 14

- 02

- 01224

— 01227

- CR, 2003 WL 22 976098, at *4 (Tex. App.

— Houston [14th Dist.] De c. 18, 2003, pet.

r ef’d) (mem. op., not designated for publication) ( explaining that nothi ng in record on direct appeal overc a me presumption that trial counsel ’ s failure to object to State ’ s ar gument that def enda n t “ will get out ” and will be younger than l aw y er when released “ was reasonable and professional ” a nd presuming “ that counsel ha d a p lausible reason for his actions ” )

.

Further, tr ia l counsel urged for leniency by referring to mitigati ng evidence,
Me l ton ’ s apology to Williams ’ s family during the puni shm en t hearing, and Melto n ’ s three children for whom he is responsible , and a decision not to object during jury argument can be sound t rial stra t egy where objecting might undercut a plea fo r leniency. See Ex parte Scott , 541 S.W.3d at 124

- 25 . Moreover, as set out above, t he State ’ s comments were brief, and there can be a sound strategy not to object where “ only a passing, but possibly o bjectional , re ference is made and the defen se attorney believes that t he reference would largely go unnoticed

. ” S ee Ex par te Bryant , 448 S .W.3d 29, 41 (Tex. Crim. App. 2014 )

. Additionally, w hen deciding no t to object, Melton ’ s trial counsel could have reasonably concluded that the need for an objection was lessened by the fact that the trial court had just read the charge to the jury, which included the required instruction under f ormer section 4 of article 3 7

. 07 that eligibility for parole does not
gu ar antee that parole will be granted, that it cannot be accurately pred i ct ed how parole law and
go od

- condu ct time mig ht be a ppl ied because the application of those laws will depend on prison and parole authori ties, and that the jury could not consider the extent to wh ich good

- conduct time and pa role will ultimately be appl ied to M elton

. See f ormer a rticle 37.07, § 4 ; se e also22

Str ickla nd , 466 U .S . at 694

- 95 (explaining that appellate courts must presume, absent evid ence
to contrary , that jury “ acted according to la w ” and “ reasonably, co nscientiously, and impartially appl [ied] th e stan dards that govern the decision ” ).

Given the l imi ted record in th is case and the nature of the State ’ s comments ,
we c onclu de that Melton has failed to show that his counsel ’ s failure to object fell below an objective standard of reasonableness under pr evailing pro fessional norms. See Strickland , 466 U.S . at 687

- 88

. Ac cordingly, we overrule Melton ’ s final issue on appeal.

CONCLUSION Having overrule d all of Melton ’ s issu es on ap peal, we affirm the trial court ’ s judgment of conviction.

________ __________________________________ Thomas J. Baker , Justice Before Justices Go o dwin, Baker , and Kelly Affirmed Filed: August 31, 202 2
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