OPINION
Vinсente Santana appeals his conviction, following a jury trial, of murder. He has raised the following issues:
1. Did the trial court commit fundamental error when it failed to provide the jury with a voluntary manslаughter instruction?
2. Did the trial court commit fundamental error when it provided the jury with a voluntary intoxication instruction?
3. Did Santana receive ineffective assistance of counsel?
We affirm.
FACTS
The facts which are most favorable to the verdict indicate that in January of 1991, Vin-cеnte Santana (‘Vincente”) and Mary Santana (“Mary”), although they were married and had two children, were living apart from one another. Mary lived in the marital residence with the children, and Vincentе lived elsewhere. In April of 1991, Mary began to date Martin Lulinski (“Martin”).
During the early morning of August 7, 1991, Mary and Martin were asleep in Mary’s bedroom. At 3:30 a.m., Martin woke Mary and told her that someone was knocking at the frоnt door. Mary then got out of bed, entered the living room, and, looking out the window, saw Vincente leaving'the porch. Assuming that Vincente was drunk, Mary went back to bed.
Before he left the porch, Vincеnte peered through a window and saw Martin inside the marital residence. Filled with anger and jealousy after seeing Martin, Vincente went home, retrieved a handgun with which he intended to “hurt” Martin, and returned to-Mary’s residence. When Vincente knocked on the front door, Mary again got out of bed, went to the living room, and saw him through the window. Mary then went to the front screen door and spoke with Vincente. She asked Vincente what he wanted, and he replied that he wanted to talk with her. She told him that he- was drunk and that he should go-home. Vincente then became agitated and tried to pull open the screen door. Mary, while trying to keep the door shut, noticed that Vincente had a small, black object in his hand, which she would later discover was a handgun.
Vincente was finally able to oрen the screen door. Mary then withdrew into the house, attempting to close the living room door. The door was locked with Martin’s assistance. Vincente then left the house and went to an open window near the porch. He shot Martin through the window. Martin died of his gunshot wounds.
VOLUNTARY MANSLAUGHTER INSTRUCTION
Vincente seems to claim that the trial court committed fundamental error when it did not, sua sponte, provide the jury with a voluntary manslaughter instruction. “For an error to be fundamental, it must ‘be so prejudicial to the rights of a defendant as to make a fair trial impossible.’ ” Tobias v. State,
INTOXICATION INSTRUCTION
Vincente concedes that, at trial, his defense counsel did not object to the court’s voluntary intoxicаtion instruction. But he nevertheless • claims that his conviction may be reversed because the trial court committed fundamental error when it gave the instruction for voluntary intoxication. “When cоnfronted with a challenged instruction not objected to at trial, any error predicated on giving the instruction will be considered waived unless giving the instruction rose to the level of fundamental error.” Moore v. State,
At his trial, Vincente raised the defense of voluntary intoxication with respect to which his jury was instructed as follows:
Generally voluntary intoxication, as a result of being under the influence of alcohol, is not а defense to the commission of a crime.
However, intoxication is a defense to a crime if that intoxication was so extreme that the person was not capable of forming the intent necessary for the commission of the crime. The degree of intoxication, if any, is a question of fact to be decided by the jury as the trier of fact.
The burden of proof on the defense of intoxication is upon the defendant and the defendant must do more than merely raise the issue or possibility of his intoxication. He must put forth sufficient evidence, and this can be done through сross-examination of the State’s witnesses, to create a reasonable doubt in the mind of the jury that he had the intent necessary to commit either the crime charged in the charging informatiоn or the lesser included offense!)]
This does not shift the ultimate burden of proof in this case. The State must still prove to you beyond a reasonable doubt that the defendant had the intent required for the commission of murder as charged in the information or the lesser included offense of involuntary manslaughter.
R. 37. Vincente takes issue with the instruction’s third paragraph, claiming it is fundamental error to instruct thе jury that the defendant bears the burden of proving his intoxication defense. We disagree with this claim because the third paragraph of Vin-cente’s intoxication instruction does not require the dеfendant to make proof beyond a reasonable doubt or to prove specific facts; rather, it is an accurate pronouncement of Indiana law. This conclusion is supрorted by Fowler v. State, in which our supreme court, using language nearly identical to that of Santana’s instruction, held that:
It is often recognized that the burden of proof on the defense of intoxication is upоn the defendant and the defendant must do more than merely raise the issue or possibility of his intoxication. He must put forth sufficient evidence to create a reasonable doubt in the mind of the triеr of fact that he had the specific intent to commit the charged crime.
ASSISTANCE OF COUNSEL
Vincente claims that he received the ineffective assistance of counsel when, at trial, his attornеy failed to tender a voluntary manslaughter instruction.
In order to show ineffective assistance of counsel, Appellant must establish [1] that counsel’s performance was deficient andthat such deficiency prejudiced his case. Appellant must show that in light of the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally cоmpetent, assistance consistent with elaborated prevailing professional norms. He must further show there is a reasonable probability but for counsel’s unprofessional error the result оf the proceedings would have been different.
Haggenjos v. State,
Vincente’s attorney, when he. chose not to tender a voluntary manslaughter instruction, exhibited professionally competent assistance. A defense attоrney does not render ineffective assistance when he fails to tender an instruction which is not. supported by the evidence and which the trial court would have properly refused to give. See Forehand v. State,
A voluntary manslaughter instruction is warranted if there is “any appreciable evidence of sudden heat[.]” See Roark v. State,
On these facts, we find no evidence that Vincente acted under sudden heat when he killed Martin. Although Vincente had been provoked to angеr, he showed himself to be capable of deliberation and of cool reflection when he got into his car, traveled to his house, and retrieved the gun with which he intended to hurt Martin. Vincente аlso had “cooled-off” by the time he shot Martin, for although “sudden heat can. survive for a while beyond the act of provocation[,]” Roark,
Vincente also claims that his attorney rendered .incompetent assistance when he failed to object to the court’s intoxication instruction which stated that the defendant bore the burden of proving his intoxiсation defense. “To prevail on such a claim, appellant must demonstrate that a proper objection would have been sustained.” Barany v. State,
Affirmed.