Affirmed and Memorandum Opinion filed July 11, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00470-CR

VEYONKA TESHEL POUNCY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1186459

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

Appellant Veyonka Teshel Pouncy appeals her conviction for murder. See

Tex. Penal Code Ann. § 19.02 (West 2011). In two issues, appellant argues that 

she received ineffective assistance of counsel because her trial counsel failed to 

request a multiple assailants self-defense instruction and failed to object to the 

omission of that instruction from the jury charge. Because the record is silent 
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concerning trial counsel’s reasons for failing to request a multiple assailants 

instruction, we affirm.

BACKGROUND

Appellant and the complainant, Ashley Tillis, lived in adjacent townhouses. 

Animosity between the two women started when appellant removed a gate that 

belonged to Tillis. The rocky relationship between the neighbors continued to 

grow as a result of parking and noise problems. On October 6, 2008, appellant

arrived home from work just before midnight. As appellant exited her vehicle, 

Tillis approached appellant and asked to speak with her. When appellant refused, 

the two began to argue. After Tillis threw a glass to the ground in the area near 

appellant, the argument escalated into a physical struggle. Ronnie Miller, a friend 

of Tillis, watched the fight and then approached the two women.

At this point, the witnesses told two different stories. Miller, the State’s 

witness, testified that he approached the two women only to carry Tillis back to her 

townhouse. Miller testified that he did not see appellant use brass knuckles during

the fight, but that appellant was winning the fight. But appellant, who testified in 

her own defense, claimed that she suffered from fibromyalgia and degenerative 

joint disease, so she used brass knuckles on Tillis to overcome Tillis’s strength. 

Appellant testified that Miller then joined in the fight, grabbed her, and put her in a 

headlock. The altercation ended when Tillis and Miller retreated from appellant’s 

carport and then returned to Tillis’s townhouse.

A second confrontation occurred soon after the first came to an end. Again, 

the witnesses told two dramatically different stories regarding the second incident.

The State’s witnesses all testified that there was not a second fight.1 Instead, they 

 

1

The State’s witnesses were Aaron Glapion, Troy Domino, Ronnie Miller, and Jonathan 

Chisholm. Glapion and Domino were neighbors who lived across the street from appellant’s and 
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testified that Tillis returned to the fence outside appellant’s townhouse to continue 

arguing with appellant. They also testified that appellant tried to lure Tillis further 

onto her property, but Tillis refused. The State’s witnesses testified that appellant 

stood by her door while a weaponless Tillis remained by appellant’s gate. The 

argument lasted about ten or fifteen minutes until appellant pulled out a gun and 

fired twice, hitting Tillis once. 

Appellant, however, testified that Tillis, Miller, and a late-arriving friend of 

Tillis, Jonathan Chisholm, all attacked her while she tried to enter her own 

townhouse. Appellant testified that she collapsed to the ground because she was 

short of breath and tired from the first fight. According to appellant, her three 

assailants continued attacking her while she lay on the ground. Appellant testified 

that she heard one of her attackers suggest stabbing her. In fear for her life,

appellant testified she pulled a pistol out of her pants and fired two shots. Tillis 

was hit in the chest by one of the shots. 

Tillis, with the help of her two friends, Miller and Chisholm, returned to her 

townhouse. A neighbor, Aaron Glapion, called 9-1-1. Tillis died a few hours later

in the hospital as the result of a single gunshot wound to the chest.

The trial court charged the jury on the crime of murder and included a selfdefense instruction.

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The self-defense instruction referenced only a single alleged

 

Tillis’s townhomes, and they were uncles of Tillis’s son.

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Part of the self-defense section of the jury charge read: “Upon the law of self-defense, 

you are instructed that a person is justified in using force against another when and to the degree 

she reasonably believes the force is immediately necessary to protect herself against the other 

person’s use or attempted use of unlawful force. The use of force against another is not justified 

in response to verbal provocation alone. . . . In determining the existence of real or apparent 

danger, you should consider all the facts and circumstances in evidence before you, all relevant 

facts and circumstances surrounding the offense, if any, the previous relationship existing 

between the defendant and Ashley Tillis, together with all relevant facts and circumstances going 

to show the condition of the mind of the defendant at the time of the offense . . . .”
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assailant, Tillis, and did not include a multiple assailants instruction. Appellant’s 

counsel did not object to the jury charge as given nor did he request a multiple 

assailants instruction. The jury convicted appellant of murder and sentenced her to 

25 years in prison. Appellant appealed without filing a motion for a new trial.

ANALYSIS

Appellant raises two issues on appeal, which we consolidate into one. 

Appellant argues that she received ineffective assistance of counsel because her 

counsel failed to request an instruction for self-defense of multiple assailants and

failed to object to the omission of that instruction from the jury charge.

To prevail on an ineffective assistance of counsel claim, appellant must first 

show that trial counsel’s performance fell outside the “‘wide range of 

professionally competent assistance.’” Mata v. State, 226 S.W.3d 425, 428 (Tex. 

Crim. App. 2007) (quoting Strickland v. Washington, 466 U.S. 668, 690 (1984)). 

In the absence of direct evidence to the contrary, we must strongly presume that 

counsel’s conduct falls within this range. Andrews v. State, 159 S.W.3d 98, 101 

(Tex. Crim. App. 2005).

For an appellate court to hold that trial counsel’s performance was deficient, 

the record must affirmatively demonstrate the deficiency. Lopez v. State, 343 

S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Thompson v. State, 9 S.W.3d 808, 

813 (Tex. Crim. App. 1999)). “[I]n almost all cases,” direct appeal is an 

inadequate vehicle for raising an ineffective assistance claim because the record is 

generally underdeveloped. See Andrews, 159 S.W.3d at 102; see also Massaro v. 

United States, 538 U.S. 500, 504-05 (2003). Ordinarily, counsel should have an 

opportunity to explain his or her actions before being held ineffective. Rylander v. 

State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
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In this case, the record is silent on trial counsel’s reasoning for not 

requesting a multiple assailants instruction because appellant did not file a motion 

for new trial. Accordingly, we may not hold counsel’s performance deficient 

unless “the challenged conduct was so outrageous that no competent attorney 

would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. 

App. 2005) (internal quotation marks omitted). More specifically, it must be 

apparent from the record “that counsel’s performance fell below an objective 

standard of reasonableness as a matter of law, and that no reasonable trial strategy 

could justify trial counsel’s acts or omissions, regardless of his or her subjective 

reasoning.” Lopez, 343 S.W.3d at 143.

Appellant acknowledges that ineffective assistance of counsel claims on 

direct appeal usually fail to overcome the presumption of reasonable conduct, but 

she argues her case is similar to others that have held on a silent record that trial 

counsel performed deficiently. As explained below, we disagree because her trial 

counsel’s failure to request a multiple assailants instruction did not deprive 

appellant of her sole defense or of a defense supported by conclusive evidence.

In Vasquez v. State, the first case cited by appellant, the court held that trial 

counsel was ineffective when he failed to request a jury charge instruction on the 

necessity defense. 830 S.W.2d 948, 949 (Tex. Crim. App. 1992) (per curiam).

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Instead of arguing the necessity defense, trial counsel in Vasquez argued selfdefense, which was neither supported by the evidence nor an available statutory 

defense to possession of a firearm by a felon. Id. Thus, by failing to request a 

instruction on the necessity defense, trial counsel in Vasquez deprived the 

 

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The record in Vasquez was not entirely silent because the court noted that trial counsel 

failed to conduct any independent investigation into the facts and it appeared that counsel did not 

fully research the law. Vasquez, 830 S.W.2d at 951 n. 4.
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defendant of his only viable defense. Id.4

In Villa v. State, the second case cited by appellant, the court held that trial 

counsel was ineffective when he failed to request an instruction on the medicalcare defense. 370 S.W.3d 787, 796-97 (Tex. App.—Eastland 2012, pet. granted). 

Because the State charged the defendant with aggravated sexual assault, the

statutory medical-care defense was available. Id. at 791-92. Trial counsel built his 

entire case in Villa on the medical-care defense, so when he failed to request that 

the instruction be included in the jury charge, he deprived the defendant of his sole

defense. Id. at 796. 

In Storr v. State, the third case cited by appellant, this Court held that trial 

counsel was ineffective when he failed to obtain a jury instruction on mitigation of 

punishment for voluntary release of a kidnapping victim and failed to object to its 

omission from the charge. 126 S.W.3d 647, 653 (Tex. App.—Houston [14th Dist.] 

2004, pet. ref’d). The jury in Storr convicted the defendant of aggravated 

kidnapping. Id. at 649. Because trial counsel failed to request a mitigation 

instruction for the punishment phase despite the conclusive evidence of voluntary 

release, the possible prison sentence ranged from 5 to 99 years instead of from 2 to 

20 years, and the jury sentenced the defendant to 35 years. Id. at 650. We 

concluded that no trial strategy could explain counsel’s failure. Id. at 653.

In each of those cases, trial counsel deprived the defendant of his only viable 

defense or of a mitigating factor supported by conclusive evidence and, as a result, 

the appellate court could hold that trial counsel was ineffective despite the lack of a 

 

4 Although no court had held at the time of the trial that necessity was a defense to 

possession of a firearm by a felon, the statute did not exclude necessity as a defense. Because 

Vasquez’s testimony sufficiently raised the necessity defense, the court held that counsel should 

have recognized the evidence and requested the necessity defense instruction. Vasquez, 830 

S.W.2d at 950-51.
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record of trial counsel’s reasoning. In this case, however, trial counsel’s failure to 

request a multiple assailants instruction or object to its omission did not deprive 

appellant of her only viable defense because appellant received a self-defense 

instruction as to Tillis. In his closing argument, appellant’s trial counsel focused 

on Tillis, explaining the self-defense instruction, arguing appellant was defending 

against Tillis’s assault, and questioning the credibility of the State’s witnesses, who 

were either friends or relatives of Tillis.

Furthermore, trial counsel’s failure to request a multiple assailants 

instruction did not deprive appellant of a defense supported by conclusive 

evidence. The evidence that appellant shot Tillis to defend herself—whether from 

Tillis or multiple assailants—was sharply controverted as discussed in the 

background section above, and appellant does not argue that the evidence was 

insufficient for the jury to reject her side of the story. Accordingly, we cannot say 

on this silent record that trial counsel’s focus on Tillis rather than on multiple 

assailants was so outrageous as to override the presumption that appellant received 

competent assistance of counsel. See Jaynes v. State, 216 S.W.3d 839, 855 (Tex. 

App.—Corpus Christi 2006, no pet.) (holding trial counsel may reasonably choose 

between available defensive theories as a matter of trial strategy). Appellant has 

not rebutted the presumption of competence on this record. See Jackson v. State,

877 S.W.2d 768, 771 (Tex. Crim. App. 1994); see also Lopez, 343 S.W.3d at 142-

44 (holding appellant failed to rebut presumption without speculating). We

therefore overrule appellant’s issues.

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This disposition does not affect appellant’s entitlement to submit her ineffectiveassistance complaints or other appropriate constitutional complaints for review on the merits in 

an application for a writ of habeas corpus. Rylander, 101 S.W.3d at 111 n. 1; Bone v. State, 77 

S.W.3d 828, 837 n. 30 (Tex. Crim. App. 2002).
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CONCLUSION

Having overruled appellant’s issues on appeal, we affirm the judgment of 

the trial court. 

/s/ J. Brett Busby

Justice

Panel consists of Justices Frost, Brown, and Busby.

Do Not Publish — TEX. R. APP. P. 47.2(b).