Affirmed and Memorandum Opinion filed July 11 , 2013

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 12

- 00470

- CR

VEYONKA TESHEL POUNC Y , 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

A ppellant 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 silent2

concernin g trial counsel’s reasons for failing to request a multiple assailants instruction, w e affirm.

B ACKGROUND 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 n oise problems

. On October 6, 2008 , appellant
arrived home from work just before midnight. As appellant exited her vehicle,
Tillis approached a

ppellant and asked to speak with her

. W hen appellant refused , t he two began to argue. After Tillis threw a glass to the ground in the area near appellant, t he argument escalated i nto a physical struggle

. Ronnie Miller, a friend
of Tillis , watched the fight and then approached the two women. At this point, t he witness es 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 a ppellant, who testified in her own defense, claim ed 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 appella nt’s and3

testified that Tillis returned to the fence outsi de appellant’s townhouse to continue arguing with appellant

. They also testified that appellant tried to lure Tillis further
onto h er property, b ut 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

. A ccording to appellant, her three assailants continued attacking her while she lay on the ground

. Appellant testified
that she heard one of her attackers suggest stab bing her. I n fear for her life , appellant testified she pulle d a pistol out of her pants and fired two shots. Ti llis
was hit in the chest by one of the shot s

. Tillis , with the help of her two friends , Miller and Chisholm, returned to her
townhouse. A n eighbor, Aaron Glapi on, called 9

- 1

- 1. Tillis died a few hours later in the hospital as the result of a single gunshot wound to the chest

. T he trial court charged the jury on the crime of murder and included a self

defense instruction

. 2 The self

- defense instruction referenced only a single alleged

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

2 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 degr ee 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 determin ing 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 Ash ley 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 .

. . .”4

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

. A NALYSIS Appellant raise s two issues on appeal, which we consolidate into one. Appellant argue s that she received ineffective assistance of counsel because her
counsel fail ed to request an instruction for self

- defense of multiple assailants and
fail ed to object to the omission of that instruction from the jury charge

. To prevail on an ineffective as sistance 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 coun sel’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). Or d inarily, 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).5

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.” Go odspeed 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 tr ial 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 claim s 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 m ultiple 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 reque st a jury charge instruction on the

neces sity defense

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

. 3

Instea d of arguing the necessity defense, trial counsel in Vasquez argued self

defense, 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

3 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. 4.6

defendant of his only viable defense. Id. 4

In Villa v. State , the second ca se cited by appellant, the court held that trial
counsel was ineffective when he failed to request an instruction on the medical

car e 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

. T rial 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 C ourt held that trial
counsel was ineffective when he failed to obtain a jury instruction on mitigation of punishment for voluntary rele ase 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)

. T he jury in Storr convicted the defendant of aggravated kidnapping

. Id. at 649

. B ecause 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 th o se cases , trial counsel deprive d the defendant of his only viable
defense or of a mitigating factor supported by conclusive evidence and , as a result,

t he 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 firea rm by a felon, the statute did not exclude necessity as a defense. Because Vasquez’s testimony sufficiently raised the necessity defe nse, the court held that counsel should have recognized the evidence and requested the necessity defense instruction. Vas quez , 830 S.W.2d at 950

- 51.7

record of trial counsel’s reasoning

. In this case , however, trial counsel ’s failure to request a multiple assailant s instruction or object to its omission did not deprive appellant of her only viable defense because a ppellant received a self

- defense
instruction as to Tillis

. In his closing argument, a ppellant’s trial counsel focused on Tillis, explain ing the self

- defe nse instruction , arguing appellant was defending against Tillis’s assault , and question ing 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 t o 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 m atter of trial strategy). A ppellant 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 witho ut speculating). We
therefore overrule appellant’s issue s

. 5

5 This disposition does not affect appellant’s entitlement to submit her ineffective

assistance 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).8 C ONCLUSION Having overruled appellant’s issue s 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

— T EX

. R. A PP

. P. 47.2( b).