### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00440- CR

Brian Lee Russell, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 427 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 3019 71, H ONO RAB LE JIM CO RONADO , JUDGE P RESIDING

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

A j u ry found appellant Br ian L ee Russell g uilty of murder. See Tex. Penal Co d e § 1 9

. 0 2

. T h e ju

r y a s s e s s e d p u

n is h me n t a

t f o r ty y e a r s ’ im p r is o n me n t. I n e ig h t a p p e ll a te is s u e s , Ru s s e ll

asser ts that the trial court err ed in (1) limit ing Russ el l ’s cross-e x amination of a witness about the witness’s pending felony char g e, (2) failing to proper ly instruct the jury in sever al re s p ec t s , and (3) de ny ing Russell’s motion for ne w trial. We aff irm the judg ment of the trial c ourt.

BACK GR OUND This case involves a dea d l y s h o oting at an apar tment complex in Austin, Texas.
Fr anklin Espinales, the victim in this case, was attending a child’s birthday party in the complex’s courty ard when Russell approa ched. Russell was not part of the g ather ing, and he later testified that he went to the complex to meet a prostitute. Acc ording to w itnesses, sever al of the party ’s g uests, including Espinales and Raul Castaneda , spoke to Russell when he arr ived. Unfortuna tely , themajority of g uests could not speak Eng lish, and Ru s s el l co uld not speak Spanish. Castaneda ’s

wife—w ho assisted Castaneda in manag ing the apar tments and was the only bilingual person at the event—trie d to assist Russell. Castaneda ’s wife stated that Russell was hostile and told her that she could not help him. Castaneda threa tened to call the police, to which Russell alleg edly replied “ca ll the police be cause y ou’re g oing to ne ed them.”

Ca s ta n e d a , h is w if

e , a n d E s p in a le s to ld Ru s s e ll to le a v e . A c c o r d in g to Ru s s e ll , s e v e r a l
g uests beg an y elling at him in Spanish. A tenant on the second- floor balcony poured a beer on Russell’s head and threa tened t o throw the bottle at him. At this point, Espinales and his brother Edwin pushed Russell ba ck seve ral fee t. Russell dre w a handg un, pointed it a t va rious people in 1 2
the cr owd, shot Espinales in the fa ce, a nd then fled the scene . Espinales died fr om his inj uries.
Ru s s e ll w a s s u

b s e q u e n tl y a r r e s te d a n d in d ic te d f

o r E s p in a le s ’ s mu

r d e r . A t tr ia l, s e v e r a l witnesses—including Castaneda , his wife, Edwin, a nd other tena

nts—testified for the State. Four of these witnesses testified that Espinales and the other party g uests did not threa ten or provoke Russell, and an additional two witnesses testified that Russell was upset and ag g ressive. Howeve r, Russel l t est ified that the g uests wer e behaving in a threa tening manner and that Russell shot
E s p inales beca

use Espinales lunge d toward him with a bottle. The jury found appellant g u i l t y o f murder as alleg ed in the indictment. Following a punishment hear ing, the jury assessed punishment at forty y ear s’ imprisonment. This appeal f ollowed.

To avoid conf

usion, we re fer

to Edwin Espinales by

his first name. 1 Some witnesses testified that Espinales and Edwin pushed Russell to move him out of the 2 way from the be er w hich was be ing pour ed fr om the second- floor balc ony . 2DISCUSSIO N Russell raises eig ht issues on appea l, which we g roup into th e fo l lowing three complaints. First, Russell arg ues that the trial court impermissibly limit ed his cross-e x amination of Castaneda conce rning Castaneda ’s pending felony char g e. Second, Russell a s s e r ts th at the trial court failed to a dequate ly instruct the jury in se vera l r espec ts. Finally , Russell c laims tha t the trial court

err ed in deny ing his motion for new trial based on an ineffe ctive-a ssistance-of -counse l c laim. We addre ss eac h complaint separ ately

.

Cross-e xam ination about p endin g felon y charges

I n his first issue on appea l, Russell asser ts t h at t he trial court err ed in limit ing his

cross-e x amination of Castaneda conce rning Castaneda ’s pending felony char g e f o r attempted sexual assault of a child. Specifica lly , Russell a sserts that defe nse counsel should have been permitted to ask Castaneda about when Castaneda lear ned that there was an arr est war rant for this char g e beca

use it may have explained why Castaneda ’s testimony about the shooting did not match his previous
statements to Russell’s private investiga tor. The State contends that Russell failed to prese rve this 3 complaint for r eview.

To prese rve a complaint for appeal, a part y m ust make a timely reque st, objection,

or motion to the trial court and obtain an adver se ruling

. Tex. R. App. P. 33.1; see also Martinez v.

At trial, Castaneda testified unequivocally that Russell was the initial ag g ressor and t hat 3 n o o n e g a v e Ru s s e ll c a

u s e to b e a f

r a id

. H o w e v e r , Ru s s e ll ’ s p r iv a te in v e s ti g a to r te s ti f ie d th a t Ca s ta n e d a previously told the inves t i gat o r t h at Russell may have been afr aid that he would be assaulted. Acc ording to Russell, the jury could have believed that the pending arr est war rant made Castaneda biased in favor of the State, and there fore the timing of when Castaneda l ea rn ed about the arr est war rant could have bolstered the private investiga tor’s asser tion that Castaned a c h a

n g e d h is n a

r r a ti ve conce rning the shooting to support the State’ s theory of the c ase. 3State , 17 S.W .3d 677, 686 (Tex. Cri m . Ap p . 2000) (conc luding that defe ndant failed to prese rve

err or when trial court defe rre d ruling on objection to defe ndant’s question but defe ndant never asked question ag ain or obtained ruling ). Under this standard, a party seeking to introduce evidenc e must (1) attempt to introduce the evidenc e; (2) if an objection is lodge d, speci fy the purpose for which the evidenc e i s o ff

er ed an d the rea sons the evidenc e is admissible; (3) obtain a ruling ; and (4) if the ju d ge ru l es the evidenc e is inadmissible, make a rec ord, throug h a bill of exceptions, of the
prec ise evidenc e the party desires admitted. See Tex. R. App. P. 33.1; Mele n d ez v. Exx on Corp. , 998 S.W .2d 266, 274 (Tex. App.—Houston [14t h Dist.] 1999, no pet.).

During cross-e x am i nation, defe nse counsel asked Castaneda if he knew that there

was a war

rant out for his arr est when he spoke with Russell’s private investiga tor. The St ate immediately objected and—outside the prese nce of the jury —asser ted that qu es t i o n s about the

war rant impermissibly rela ted to a specific instance of bad conduct that could not be used to impeach Castaneda ’s cre dibilit y . See Tex. R. Evid. 608(b). Be fore the trial court ruled on this objection, the following exchang e occ urre d betwee n defe nse counse l, the prosec utor, and the tria l court:

[Defense ]: I only

have one more que stion. [C ourt]: But the Court has alre ady ruled reg arding the war rant question. 4 [Defense ]: My last question is does [C astane da] know how many

y ear s he ca

n g et for the char g e he is fa cing

.
During a separ ate portion of her cross-e x amination, defe nse counsel asked Castaneda if he 4 knew that there was a war rant for his arr est. The State objected to the question on the basis that the war rant was improper impeachme nt evidenc e, and the trial court sustained the objection. See Tex. R. Evid. 608(b). 4. . . . [Defense ]: L et’s t hink this throug h. The rea son it’s rele vant he

h as a char g e is if he is looking at a long priso n sentenc e, he has a motive to test i fy fa vorably for the defe nse [si c]. So I think the number of y ear s y ou can be sent down the river for is ra ther hig hly rele vant in terms of his motive t o fabricate, his motive to shade his testimony

. [S tate]: That is differ ent from asking about his war ran t

. I f y ou want to say

— [Defense ]: You’re totally rig ht. The last ques t i o n is: Do y ou

know how many y ear s y ou can g et if y o u ar e convicted of the felony offe nse for which y o u ar e curr ently char g ed? That’s my

question.

. . . . [S tate]: Okay . That’s fine

.
The proce eding s then returne d to ope n court, and the trial court asked the State if it wished to withdraw its objec tion. The State replied that it would withdraw its objection if defe nse counsel withdrew her question about when Castaneda lear ned that there was a war

rant for his arr est. Def ense counsel ag ree d to withdraw her question about the war rant and proce eded to ask Castaneda about the potential punishment for his pending felony char g e. The issue of when Castaneda lear ned about the wa

rra nt was not raise d ag ain. The trial court never ruled on the State’s objection to defe nse coun s el ’s question

conce rning when Castane da lea rned about the warrant. Neve rtheless, Rus sell asser ts that the trial
court made an adver se ruling when it ref er en ce d its previous ruling prec luding questions about
Castan eda’ s war

rant. See supra n.4. The trial court did not say that it was sustaining the State’s objection, and defe nse counsel never attempted to explain why she shoul d be allowed to question

5Castaneda abou t the timing of the arr est war rant. Rather, as soon the State lodge d its objection, defe nse counsel chang ed her question to the potential p u n is h me n t th a

t Castaneda fac ed and withdrew her que stion concer

ning w hen Castane da lea

rned a bout the war

rant. There f o r e , Ru s s e ll h a s f

a il e d to prese rve this issue for revie w beca use defe nse counsel did not obtain an adver se ruling from the trial co u rt o n her question conce rning when Castaneda l ea rn ed ab o u t the arr est war rant. See Martinez , 17 S.W .3d at 686. We overr ule Russell’s first appellate issue.
Jury-charge com plain ts

I n his second, third, fourth, seventh, and eig hth issues on appea l, Russell raises three complaints about the jury char g e. First, Russell arg ues that the trial court err ed in failing to instruct the jury on the l aw of sudden passion. See Tex. P enal Code § 19.02(d) ( reduc ing c lassification of murder to second- deg ree felony if committed “under the immediate influence of sudden passion”). Second, Russell contends that the trial court’s instruction on the l aw o f re trea t was misleading

. See id. § 9.31(e) (explaining when party claiming self-de fense has no duty to retre at). Third, Russell
arg ues that the trial court err ed in failing to instru ct the jury that Edwin’s prior inconsistent
statements could be co n s i dere d as both impeachme nt evidenc e and as an excited utteranc e. See Tex. R. Evi d. 803(2) ( providing that excited utteranc es ar e exception to hear say rule).
Our revie w of an alleg ed err or in a jury char g e involves a two-step inquiry

. First, we deter mine whether there was in fac t err or in the jury char g e. Barrios v. State , 283 S.W .3d 348, 350 (Tex. Crim. App. 2009) (citing Ngo v. State , 175 S.W .3d 738, 743 (Tex. Crim. App. 2005)). Second, assuming that err or exis ted, we deter mine whether t h e d efe ndant proper ly prese rved the err or at

6trial. Id. at 350 (citing A l ma n z a v. S t a te , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985)). I f the

err or was proper ly prese rved, reve rsal is require d if there is “some harm” to the defe ndant. Almanza , 6 8 6 S. W. 2 d a

t 1 7 1

. H o w e v e r , if th e e r

r o r w a s n o t p r o p e r ly p r e s e r v e d , th e e r r o r mu s t b e “ f

u n d a me n ta l, ” meaning that it wa s “so eg reg ious and cre ated such harm that the defe ndant ‘has not ha d a fair and impartial trial.’” Barrios , 283 S.W .3d at 350 (quo ting Almanza , 686 S.W .2d at 171). Wit h these standards in mind, we turn to the a lleg ed jury -cha rg e er rors in this case

. Sudden-passion instruction

I n his second, third, an d fo u rt h issues on appea l, Russell asser ts that the t rial court

er re d in failing to instruct the j ury on the l aw of sudden passion at t he punis hment phase of t ri al

. 5 Specifica lly , Russell claims that the j u ry could have rea sonably conclude d that when he shot Espinales, Russell was incapa ble of cool ref

lection beca

use he wa s af

ra i d of being assaulted by Espinales and the other party g uests. See Tex. Penal Code § 19.02(a) (1) (def ining “ade quate cause ”
to cre ate sudde n passion); see also Mc Kinney v. State , 179 S.W .3d 565, 569–70 (Tex. Crim. App. 2005) (desc ribing when defe ndant is e ntitled to sudden-pa ssion instruction). There fore , acc ording
to Russell, the rec ord supports a sudden-pa ssion instr u cti on that could have resulted in the jury convicting him only of a second- deg ree felony

. See McKinney , 179 S.W .3d at 5 6 9 (noting that sudden-pa ssion is m itigating circ umstance tha t reduc es punishment classifica tion of murder)

.

Russell also asser

ts that the trial court should have instructed t h e j u ry o n the “lesser

5 included offe nse” of voluntary man s l au gh ter. Voluntary manslaug hter is no longe r a separ ate offe nse in the Penal Code, having been repla ced with the sudden-pa ssion mitigation defe n s e in section 19.02(d). See Moore v. State , 969 S.W .2d 4, 8 n.1 (Tex. Crim. App. 1998) (discussing leg islature’s r epea l of voluntary manslaug hter statute). There fore , to the extent R ussell separately ar gu es t h at the t rial court should have instructed t he jury on the non-ex istent offe nse of voluntary manslaug hter, we conclude that such an a rg ument is without m erit. See id. 7Russell concede s that he did not reque st a sudden-pa ssion inst ruction at trial. This

Court r ece ntly conclude d that a trial c ourt does not commit error by failing to g ive an unreque sted sudden-pa ssion instruction. See Teague v. State , No. 03-10-00434- CR, 2012 WL 512661, at *6–7 (Tex. App.—Austin Fe b. 16, 2 012, pet. ref ’d) (mem. op., not desig nated for publication) (citing
Swaim v. State , 306 S.W .3d 323, 325 (Tex. App.—For t Worth 2009, pet. ref

’d))

. As we n oted, sudden passion is a defensive issue that is not “law of the case,” and there fore must be brought to the court’s attention. Thus, unless the defe ndant re q u es t s a sudden-pa ssion instruction, the trial court is under

no obliga tion to include such an instruction sua sponte. See id.
On appea l, Russell does not distinguish the fac ts of this c ase from those of Teague ,

nor does he offe r an y ar gu m en t as to why the trial court had an obliga tion to include a suddenpassion instruction on its own volition. We find the rea soning o f Teague persua sive and adher e
to its conclusion that the trial court is u n d er n o o bliga tion to g ive an unreque sted sudden-pa ssion jury instruction. See id. Given that Russell failed to reque st a su d d en -p as s i o n instruction, we conclude that the t rial di d not err in failing to g ive s uch an instruction in this cas e. Ha v i ng found

no err or, we need not conduct a harm analy sis. See id. We overr ule R ussell’s second, third, and 6 fourth appe llate issues.

I n his third appellate issue, Russell a sserts that the trial court err ed in deny ing his motion 6 for new trial on the basis that the court err ed in failing to g ive a sudden-pa ssion instruction. Given that we revie w a denial of a motion for new trial based on alleg ed jury -cha rg e err or under the same Almanza standard, we also overr ule Russell’s thir d appellate issue. See Igo v. State , 210 S.W .3d 645, 647 (Tex. Crim. App. 2006) (explaining t h at standard for revie wing jury -cha rg e complaint raised in motion for ne w trial is same a s if raised in dire ct appe al). 8Duty-to-re treat instruction
I n h is seventh issue on appea l, Russell asser ts that the jury instruction improperly implies that he had an aff

irmative duty to retre at. Acc ording to Russell, the instruction indicated that Russell’s failure t o re t re at meant that he could not be justified in using deadly forc e to defe nd himself. Be fore discussing the particula r instruction g iven in this case , we must e x amine the state of duty -to-re trea t law.

The law reg arding the duty to retre at has chang ed rec ently

. “B efor e 2007, the deadly

forc e self-de fense statute contained a provision imposing a g ener al duty to retre at.” Morales v. State , 357 S.W .3d 1, 4–5 (Tex. Crim. App. 2011) (discussing chang es in duty -to-re trea t law). I n 2007, the leg islature amende d the Penal Code to eliminate the g ener al-duty -to-re trea t provision. See id. Thus, althoug h “fa ilure to retre at may b e consi dere d in deter mining whether a defe ndant rea sonably believed that his conduct was immediately nece ssary to defe nd himself or a third party ,” courts should no longe r instruct juries that there is a duty to retre at. See id. at 5 n.11 (conc luding trial court

err ed in instructing jury on g ener al duty to retre at afte r 2007 amendments). Howeve r, the leg islature specifie d that an acc used has “no duty to retre at” when (1) the acc used has the rig ht to be prese nt at the location wher e deadly forc ed is used, (2) the acc used has not provoked the person ag ainst whom the deadly forc e is used, an d (3 ) the acc used has not eng ag ed in criminal activity at the time the deadly forc e is used. See id. at 5 (citing Tex. Penal Code § 9.32(c )–(d) ). When applica ble, a tria l

co u rt s h o uld instruct the jury that if it conclude s the acc used had no duty to retre at, the j u ry m ay
not consider the acc used’s failure to retre at in deter mining whether his u se of deadly forc e was

nece ssary . See id. ; see also Tex. P enal Code § 9.32( d).

9The jury instruction in this case included the following no-duty

- to-retr eat instruction:
A person who has a rig ht to be prese nt at the l ocation where the deadly forc e is used, who has not provoked the p er s on ag ainst whom the deadly forc e is used, and who i s n o t en gag ed in criminal activity at the time the deadly forc e is use d, is not require d to r etre at befor e using deadly

forc e as de scribed by

this section.

Russell objected t o this instruction, asser ting that it was undisputed that the no-duty -to-re trea t
statute did not apply in this case beca use Russell did not have a rig ht to be at the apar tment complex afte r he was told to leave

. See Tex. Penal Code § 9.32(c)

. Fur thermore , Russell arg ues that the jury 7
could i m p ro p erly interpre t this instruction to mean that Russell had an aff irmative duty to retre at beca use he did not have a rig ht to be at the apa rtment complex. Cf. Morales , 357 S.W .3d at 5. This same iss ue was addre ssed i n W hitney v. State , 396 S.W .3d 696, 701–03 (Tex. App.—For

t Worth 2013, pet. ref

’d). I n W hitney , the For

t Worth Court of Appea ls noted that “eve n if an instruction setting out the circ umstances unde r which a person using forc e . . . has no duty to
retre at nece ssarily implies the exis tence of” a duty to retre at, a no-duty -to-re trea t instruction is

never theless a corr ect statement of the law. Id. at 703 (citing Tex. Penal Code § 9.31(e) ). There fore , the court conclude d that the trial court did not err in g iving a no-duty -to-re trea t instruction beca use the instru ct i o n “t rac k[s] the law as set out by the leg islature.” Id. (citing Martinez v. State , 924
S.W .2d 693, 699 (Tex. Crim. App. 1996); Riddle v. State , 888 S.W .2d 1, 8 (Tex. Crim. App. 1994), cert. de nied , 514 U.S. 1068 (1995)). We a g ree with this conclusion.

The State arg ues that this para g raph was intended to a sk whether the party g uests had the 7 rig ht to stand their g round, not whether Russell had a duty to retre at. Even assuming that the g uests’ rig ht to stand their g round was rele vant, the instruction does not specify that i t i s re fe rr i ng to the party g uests’ conduc t rather

than Russell’s. 10I n this case , the trial court g ave a corr ect instruction about when a p er son does

not have a duty to retre at, trac king the lang uag e o f section 9.32(c) of the Penal Code verba tim.
“F ollowing the law as it is set out by the Texas L eg islature will not be dee med er ror on the part of

a trial judge .” Mar t i n ez , 9 2 4 S .W.2d at 699. There fore , we cannot conclude that the trial court abused its discretion by including the no-duty -to-re trea t instruction. We overr ule Russell’s seventh appellate issue.

Exc ited-utterance instruction

I n his eig hth issue on appea l, Russell asser ts that the trial court err ed i n re fu s ing
to instruct the jury that it could consider Edwin’s out-of-c ourt st at em en t s fo r more than just impeachme nt purposes. Specifica lly , Russell arg ues that Edwin’s statements to police shortly afte r the shooting constituted an excited utteranc e and there fore wer e admissible for the truth of the matter

asser ted. See Tex. R. Evid. 80 3 (2 ) (e x cepting excited utteranc es from g ener al rule that hear say
statements cannot be considere d for truth of matter asser ted). Thus, a ccor ding to Russell, the trial
court’s instruction that a wi t n es s ’s previous inconsistent statements could only be considere d for impeachme nt purposes wa s incorre ct as it applied to Edwin.

At trial, Edwin testified that he was in h i s ap ar t m ent when he hear d y elling in the

cour t y ar d

. Edwin explained that when he went to see what was happening , Russell was alre ady pointin g a gu n at his brother, Espinales. Edwin stated that he tried to g et betwee n Russell and Espinales, but could not rea ch them befor e Russell shot Espinales. Russell elicited testimony from

a detec tive assig ned to this case , who stated that on the night of the shooting, Edwin told police that Russell initially pointed the g un at him, and that it was Espinales who stepped in front of the g un to

11protec t his brother. Acc ording to the detec tive, Edwin also stated that prior to Rus s el l ’s arrival,

Edwin asked Espinales to stay in the apar tment but Espinales “pulled the muscle on me” and insisted

on helping clea

n up the trash at the party

. The State did not object to th i s testimony , nor did it request a limit ing instruction to inform the jury that the detec tive’s testimony should only be considere d for impea chment purpose s.

The jury char g e in this case inc luded the followinginstruction:

You are instructed th at a witness may be impeache d by showing he or she has made other and differ ent statem en t s out of court from those testified to in trial. Such impeachme nt ev i d ence may be considere d by y ou to aid y ou in deter mining, if i t does, the weig ht, if any , to be g iven the testimony of the witnesses at trial and the cre dibilit y of the t est imony ; but such impeachme nt evidenc e, if any , is not to be considere d for a ny other purpose

.

At the char g e confe renc e, Russell objected to the above instruction—asserting that Edwin’s out-ofcourt statements to the detective qualified as an excited utteranc e that could be considere d for the truth of the matter asser

ted. See generally Apolinar v. State , 155 S.W .3d 184, 186–87 (Tex. Crim. App. 2005) (disc ussing a dmissibi lity of excited utteranc es for

truth of matter a sserted)

. Given that the State did not object to the detec tive’s testimony at trial, the jury could consider his testimony for any purpose, including for the truth of the matters asser ted in Edwin’s
out -of-court statements. See Poindexte r v. State , 153 S.W .3d 402, 406 (Tex. Crim. App. 2005) (noting that jury may consider “unobjecte d-to hear say evidenc e” f o r any purpose)

. There fore , we will assume wi t h o u t d eciding that the trial court err ed in g iving an instruction indicating that Edwin’s o u t -o f- co urt statements could only be considere d for impeachme nt purposes, and will
proce ed to deter

mine whether

this error w as har

mful to Russell.

12Be cause Russell objected to the court’s char g e, we consider whether Russell suffe red

“some harm” from the complained- of instruction. See Almanza , 686 S.W .2d at 171. I n deter mining whether there was some harm from an err oneous jury instruction, w e consider “(1) the jury char g e

as a whole, (2) the arg

uments of counsel, (3 ) t h e en t i re ty of the rec ord, and (4) other rele vant fac tors prese n t ed b y t h e rec ord.” Ree ves v. State , 420 S.W .3d 812, 816 (Tex. Crim. App. 2013). This is a less stringe nt standard than the egr eg iou s -h ar m analy sis applicable to unprese rved error

. Id. Howeve r, we will not reve rse a convic t i o n u n l es s the defe ndant has “suff ere d some actua l, rathe r than mer ely

theore tical, har

m from the er

ror.” W arner v. State , 245 S.W .3d 458, 462 (Tex. Crim. App. 2008).

Edwin’s alleg ed statements to police g ive a differ ent acc ount of wher e Edwin was immed i at el y b efor e the shooting and sug g est that Espinales tried to shield Edwin from Russell’s
g un, rathe r than Edwin try ing to shield Espinales. But Edwin’ s out-of-c ourt statements in no way indicate that Espinales threa tened Russell or that Russell rea s o n ab l y fea red that the other g uests would attack him. There fore , the inconsistencies betwee n Edwin’s prior statements and testimony
at trial have littl e or no rele vancy to any fac t of conseq u en ce i n t his case . Thus, even if the trial
court err ed in instructing the jury t h at it could only consider Edwin’s out-of-c ourt statements for impeachme nt purposes, those statements appea r to ha ve no probative value other than impeaching Edwin’s cr edibility

.

A t mo s t, E d

w in ’ s out-of-c ourt statement that Espinales “muscled u p ” to E d w in e a r li e r in the night could indicate that Espinales was upset and ag g ressive at some point in the evening

. Howeve r, four ey e-w itnesses—including Edwin, Castaneda , and Castaneda ’s wife—te stified that

13Espinales did not threa ten or provoke Russell. Fur thermore , a total of six witnesses said that Russell

was upset and ag g ressive befor e the shooting. Russell was the only witness who tes t i fi ed t h at
E s p inales was the ag g ressor. Given that Russell fled the scene , tried to hide the murder weap o n with a friend, and initially lied about being involved in the shooting, there is strong indication in the

rec ord that h e wa s n o t a cre dible witness. There fore , even if the jury had believed that Espinales
was ag g ressive toward Edwin ear lier i n the evening, it is highly unlikely that t h e j u ry would have

cre dited Russell’s testimony that Espinales threatened him with unlawful de adly forc e. Ba sed on the lim i t ed p ro bative value of Edwin’s out-of-c ourt statements and the

overw helming evidenc e of g uilt, we conclude that Russell was not harme d by the trial court’s instruction indicati n g that Edwin’s previous statements could be considere d for impeachme nt purposes only . We overrule Russell’s eig hth appellate issue.

Motion for new trial

I n his fi ft h and six th issues on appea l, Russell asser ts that the trial court err ed in failing to rule on his motion for new trial, which was denied by opera tion of law. See Tex. R. App. P. 21.8(c). Spec ifically , Russell arg ues that his motion for new tria l contained a valid ineffe ctiveassista n ce -o f-counsel claim, in which he complained about his trial counsel’s failure to reque st a sudden-pa ssion inst ruction. See supra pp. 7–8.

We revie w a trial court’s denial of a motion for new trial for an abuse of discretion.
See State. v. Herndon , 215 S.W .3d 901, 907 (Tex. Crim. App. 2007). “Ac cording ly , when analy zing the trial court’s failure to g rant a new trial on the basis of ineffe ctive assistance of counsel, we view the rele vant leg al standards throug h the prism of abuse of discretion.” Ramirez v. State , 301 SW .3d

14410, 415 (Tex. App.—Austin 2009, no pet.). A trial court abuses its discretion in deny ing a motion for ne w trial whe n no rea sonable viewof the re cord c ould support its ruling. Id.

To preva il on an ineffe ctive-a ssistance-of -counse l clai m, Russell was require d to satisfy the tw o -p ro n g test set out in Strickland v. W ashington , 466 U.S. 668, 687 (1984); see also Hernande

z v. State , 726 S.W .2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland standard for claims of ineffe ctive assistance of counsel). Under Str i ck l a n d , a defe ndant must show that (1) the c ounsel’s per formanc e wa s defic ient and (2) the defendant was prejudice d by the def icient perf ormanc e. 466 U.S. at 687. Our revie w of counsel’s perf ormanc e must be highly defe rential; we
presume that counsel m ak es all signific ant decisions in the exercise of rea sonable judgme nt. Strickland , 466 U.S. at 689. Counsel’s perf ormanc e is defic ient when it fa lls “below an objective standard of rea sonablene ss” bas e d u p o n “pre vailing profe ssional norms.” Id. ; see also Perez v. State , 310 S.W .3d 890, 893 (Tex. Crim. App. 2010).

To demonstrate prejudice in this case , Russell must show there is a re asonable probability that, but for his counsel’s defic ient p er fo rm an ce, the outcome of his trial would have been differ ent. See Strickland , 466 U.S

. at 694. A rea sonable probability is one sufficie nt
to undermine our confide nce in the verd i ct

. Id

. Russell has a duty to bring forth a rec ord that aff irmatively demonstrates his counsel’s alleg ed ineffe ctiveness by a preponde ranc e of the evidenc e. See Scheane tte v. State , 144 S.W .3d 503, 509–10 (Tex. Crim. App. 2004).

“[E] x cept in ra

re instanc es, fa cts that g ive rise to a self-de fense issue also g ive rise
to a sudden-pa ssion issue.” See W ooten v. State , 378 S.W .3d 652, 657 (Tex. App.—Houston [14t h Dist.] 2012, pet. g rante d), rev’ d on other grounds 400 S.W .3d 601, 606–07 (Tex. Crim. App. 2013).

15Given that the trial court g ave a s el f-de fense instruction during the g uilt/i nnocenc e phase of trial,

Russell may have been entitled to a sudden-pa ssion instruction at punishment. Id. Fur thermore , his counsel’s failure to r equest such an instruction w as ar g uably not based on strateg y . Howeve r, we 8
need not decide wh et h er counsel’s perf ormanc e was defic ient beca use Russell has failed to aff irmatively demonstrate that he was prejudice d by his counsel’s failure to reque st a sudden-pa ssion instruction. See Garcia v. State , 57 S.W .3d 436, 440 (Tex. C ri m . App. 2001) (“[A]n appellant’ s f a il u r e to s a ti s f y o n e p r o n g o f th e S

tr ic k la n d te s t n e g a

te s a c o u r t’ s n e e d to c o n s id e r th e o th e r p r o n g . ” )

. The court of criminal appea ls has rec og nized that “evide nce in a case in which a jury reje cted a claim of self-de fense could demonstrate also that the appel l an t wa s not harme d by the failure to rec eive a sudden passion char g e.” Trevino v. State , 100 S.W .3d 232, 242 (Tex. Crim. App. 2003). W hen the basis of a self-de fense claim is that the victim’s conduct rea sonably made the defe ndant afr aid that the victim would use deadly forc e, and the jury reje cts that self-de fense claim, it is unlikely that the jury would acc ept that the victim’s actions wer e adequate to produce the deg ree

o f fe ar n ec essary to make a person of ordinary tempera ment “lose control.” See W ooten v. State , 400 S.W .3d 601, 609 (Tex. Crim. App. 2013).

I n this c ase, Russell’s se lf-def ense claim rested on his version of the events leading
up to the shooting, in which he asser ted that Espinales lunge d at him with a bottle. The jury reje cted this self-de fense claim, implicitl y finding either that R u s s el l wa s not cre dible or that Espinales’s actions wer e not sufficie nt to make Ru s s e ll rea sonably believe that Espinales would use deadly forc e.

Russell’s appellate counsel attache d his aff idavit to Russell’s motion for new trial, in which 8 ap p ellate counsel stated that Russell’s trial counsel confide d to him that “she did not know she could” r equest a

sudden-pa ssion inst ruction. 16There fore , like the rec ord in W ooten , the rec ord in this cas e s t ro ng ly sug g ests that the jury would have rejec ted a s u d d en -passion claim for the same reason it reje cted Russ ell’s s elf-de fense claim. See id. The trial c ourt could have rea sonably conclude d that Russell failed to show that he

was prejudice d by his counsel’s failure to reque st a sudden-pa ssion instruction. Be cause we cannot 9
conclude that the trial cour t abused its discretion in deny ing Russell’s motion for ne w trial on this basis, we ove rrule Russell’s fif th and six th appellate issues.

CONCLUSION Having overr

uled Ru s s ell ’s eig ht issues on appea l, we aff irm the trial court’s judgme nt of conviction.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Field Affir med Filed: Apr il 18, 2014 Do Not Publish

Russell a lso a sserts that the trial court err ed in f ailing to c onduct a hear ing on his motion 9 for new trial. Given our conclusion that the trial court could have rea sonably deter mined that Russell was not prejudice d by his counsel’s alleg edly defic ient perf ormanc e, we also conclude that the trial court did not abuse its d i s cre tion in failing to conduct a hear ing on the motion for new trial. See Holden v. S t a t e , 2 0 1 S .W.3d 761, 763 (Tex. Crim. App. 2006) (noting that trial court need not conduct he aring if ca

n dispose of motion for newtrial on rec ord and a ffidavits alone ). 17