Jose Granados v. State

11th Court of Appeals Eastland, Texas Opinion Jose Granados Appellant Vs. No. 11-03-00157-CR -- Appeal from Dallas County State of Texas Appellee Jose Granados was convicted of murder. The jury set punishment at 40 years imprisonment. Appellant asserts that his attorney was ineffective during the trial. We affirm. On the night of March 17, 2000, appellant and two friends attended a party at 3015 Texas Street in Dallas. Earlier that day, appellant and his friends had been drinking. Before leaving for the party, appellant put two guns in his jacket pockets. At the party, appellant was approached by Richard Rodela. They exchanged words, and then turned and walked away from each other. Several minutes later, Rodela again approached appellant. Appellant pulled out a gun, pointed it at Rodela’s head, and shot him. Appellant and his friends then ran to their car and fled. Police and EMS arrived at the party shortly thereafter; and Rodela was transported to the hospital, where he died ten days later. The cause of death was the gunshot wound inflicted by appellant. Almost two years after the murder was committed, on February 9, 2002, appellant was apprehended and arrested. He was charged with intentionally and knowingly causing the death of Rodela. At trial, the jury found appellant guilty of murder. Appellant first argues that counsel was ineffective at the punishment phase of his trial. He asserts that counsel failed during sentencing to address the mitigating circumstance of sudden passion. We disagree. In reviewing counsel’s performance at the punishment stage of trial, we must examine the totality of the representation and determine whether appellant received “reasonably effective assistance of counsel.” Ex Parte Walker, 794 S.W.2d 36, 37 (Tex.Cr.App.1990); Grim v. State, 923 S.W.2d 767, 768 (Tex.App. - Eastland 1996, no pet’n). Based upon the record before us, we cannot say that defense counsel failed to render reasonably effective assistance. At the punishment stage of a murder trial, the defendant may raise the issue as to whether he caused the death of the victim under the immediate influence of sudden passion arising from an adequate cause. TEX. PEN. CODE ANN. § 19.02(d) (Vernon 2003). “Sudden passion” is defined as “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” TEX. PEN. CODE ANN. § 19.02(a)(2) (Vernon 2003). Sudden passion is a mitigating circumstance, which, if proved by a preponderance of the evidence, reduces the punishment for the offense of murder to a felony of the second degree. Section 19.02(d); Williams v. State, 35 S.W.3d 783, 787 (Tex.App. - Beaumont 2001, pet’n ref’d). The record reveals that, during closing arguments at the punishment stage of appellant’s trial, defense counsel argued extensively that appellant was under the influence of sudden passion arising from an adequate cause at the time of the shooting. The jury charge, approved by defense counsel, included the special issue of sudden passion; but the jury unanimously chose to reject defense counsel’s sudden passion theory. There is nothing in the record suggesting that the jury’s decision was the result of defense counsel’s ineffectiveness. The record indicates that defense counsel rendered reasonably effective assistance during sentencing, calling several witnesses to the stand in support of defense counsel’s argument that appellant should be placed on probation. We hold that counsel was not ineffective during sentencing. Appellant next argues that his trial counsel was ineffective at the guilt/innocence stage of the trial for failing to request a jury instruction on the lesser-included offenses of manslaughter and criminally negligent homicide. We disagree. To prevail on this claim, appellant must first show that his counsel’s performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Cr.App.2002). Specifically, appellant must establish that his counsel’s representation fell below the objective standard of professional norms. Bone v. State, supra. Second, appellant must show that this deficient performance prejudiced his defense. Bone v. State, supra. This means that appellant must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002); Montgomery v. State, 91 S.W.3d 426, 431 (Tex.App. - Eastland 2002, pet’n ref’d). A “reasonable probability” is one sufficient to undermine confidence in the result of the trial. See Strickland v. Washington, supra at 687; Bone v. State, supra. Appellate review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance. Bone v. State, supra. To establish that counsel’s performance was deficient for failure to request an instruction on lesser-included offenses, appellant must show that he was entitled to such an instruction. Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Cr.App.2000); Rousseau v. State, 855 S.W.2d 666 (Tex.Cr.App.), cert. den’d, 510 U.S. 919 (1993). To establish that he was entitled to a lesser-included offense instruction, appellant must establish that (1) the offense is in fact a lesser-included offense of the charged offense and (2) there was evidence that, if guilty of an offense, appellant was guilty of only the lesser offense. Cardenas v. State, supra. The record in this case does not demonstrate that appellant’s trial counsel was deficient. Manslaughter and criminally negligent homicide are recognized as lesser-included offenses of murder. Cardenas v. State, supra. A person commits the offense of murder if he intentionally or knowingly causes the death of an individual. TEX. PEN. CODE ANN. § 19.02(b)(1) (Vernon 2003). Ordinarily, murder is a felony of the first degree. TEX. PEN. CODE ANN. § 19.02(c) (Vernon 2003). If, however, the defendant proves by a preponderance of the evidence that the crime was committed while the defendant was under the influence of sudden passion, the murder becomes a felony of the second degree. Section 19.02(d). Proof of sudden passion, however, does not reduce a murder offense to a manslaughter offense. Any evidence of sudden passion presented during the guilt/innocence stage of the trial would not entitle appellant to a jury instruction on either manslaughter or criminally negligent homicide. A trial court is not required to give a jury instruction on manslaughter unless there is evidence presented at trial that appellant was guilty of the specific offense of manslaughter. A defendant cannot be convicted of manslaughter unless there is proof that he acted recklessly, consciously disregarding a substantial and unjustifiable risk of which he was aware. TEX. PEN. CODE ANN. § 19.04 (Vernon 2003). Before a trial court is required to submit a jury instruction on criminally negligent homicide, there must have been evidence presented at trial that, if appellant was guilty, he was guilty only of the specific offense of criminally negligent homicide. A defendant cannot be convicted of criminally negligent homicide unless there is proof that he acted with criminal negligence and that he ought to have been aware of a substantial and unjustifiable risk that his actions would result in death. See TEX. PEN. CODE ANN. § 19.05 (Vernon 2003). The evidence in the record does not support a finding that, if guilty, appellant was guilty of only manslaughter or criminally negligent homicide. The evidence shows, instead, that appellant intended to shoot Rodela. Multiple witnesses testified that they observed appellant pull out a gun and shoot Rodela in the head at close range. Appellant admitted that he intended to shoot the victim, although he claimed that it was in self-defense. Appellant further admitted that he aimed for the victim’s head. He also admitted that he knew the gun was loaded and that the safety was off. During cross-examination, the following exchange took place between the prosecutor and appellant: Q: On March 17th of 2000 in Dallas County, Texas, did you intentionally and knowingly cause the death of Richard Rodela, an individual, by shooting said Richard Rodela with a firearm, a deadly weapon? A: Yes, sir. Q: Did you unlawfully then and there intend to cause serious bodily injury to Richard Rodela, you did commit an act clearly dangerous to human life by shooting Richard Rodela with a firearm, a deadly weapon, thereby causing his death? A: Yes, sir. Nowhere in the record is there evidence that appellant was behaving recklessly or negligently when he killed Rodela. The record supports only one conclusion: that appellant intentionally shot the victim in the head. Appellant was, therefore, not entitled to either a manslaughter or criminally negligent homicide instruction. Furthermore, even if defense counsel had requested a jury instruction on manslaughter or criminally negligent homicide, the record does not demonstrate a reasonable probability that the outcome of the trial would have been different. There is nothing in the record to suggest that the trial court would have agreed to give such an instruction because there was no evidence presented at trial supporting the lesser-included offenses. There is also nothing in the record to suggest that the jury would not have found appellant guilty of murder despite the instruction because appellant admitted that he intended to cause the victim serious bodily injury and that he intentionally and knowingly caused the victim’s death. Because there was sufficient evidence of murder presented at trial, this court cannot say that there is a reasonable probability that counsel’s request for an instruction on manslaughter or criminally negligent homicide would have produced a different result. We, therefore, hold that, in this case, failure to request a jury instruction on manslaughter or criminally negligent homicide did not render defense counsel ineffective. During both the guilt/innocence stage and the punishment stage of the trial, appellant’s counsel was not ineffective. We overrule appellant’s only issue on appeal. The judgment of the trial court is affirmed. JIM R. WRIGHT JUSTICE April 7, 2005 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J.