Wilson v. StateWilson v. State
OPINION
Thе appellant was indicted for murder; the jury found him guilty and assessed his punishment at 10 years confinement.
In his sole ground of error, the appellant аlleges he was denied reasonably effective assistance of counsel because his trial counsel failed: (1) to file pre-trial mоtions; (2) *473 to request transcription of the voir dire; (3) to request a jury instruction on voluntary manslaughter; (4) to file a motion for a new trial; and (5) to object to inadmissible evidence and improper jury argument.
A brief review of the facts discloses that the appellant and the deceasеd got into an argument concerning the appellant’s removing a television from an apartment. A scuffle ensued, and the appellant stabbed the deceased, who died from the stab wound in his heart.
The appellant and the State agree that the standard of competence for criminal defense attorneys has been established as “reasonably effective assistance of counsel.”
Cuyler
v.
Sullivan,
The appellant alleges that his counsel failed to file certain pre-trial motions and therefore did not render him effective assistance. There is nothing in the record to show that this failure prejudiced the appellant.
It is encumbent upon the appеllant to show harm or prejudice when he alleges error. Courts will not presume harm.
Haliburton v. State,
The appellant next alleges that his сounsel did not render effective assistance because he did not request the court reporter to transcribe his notes of the voir dire examination for the appellate record. We find no merit in this contention as the appellant has two court-appointed attorneys for appeal, either of whom could have requested a transcription of the voir dire record, and they chose nоt to do so.
The appellant further alleges that he did not receive effective assistance of counsel because his attоrney did not request a jury instruction on the lesser included offense of voluntary manslaughter.
The State argues that it is abundantly apparent from the record that the trial strategy of the appellant’s counsel was to get his client acquitted on the charge of murder and, if that failed, to аttempt to obtain probation for the appellant. The State observes, that although counsel was not successful in these objeсtives, by a vigorous approach to these objectives, he obtained for his client a ten year sentence, minimal under the circumstаnces, when the State argued for a fifty year sentence. It also points out that the appellant could have received twenty yеars confinement under the lesser offense of voluntary manslaughter.
The Texas Court of Criminal Appeals has adopted the standard to bе used in determining whether a lesser included offense instruction is required. In
Royster v. State,
Thus, in determining whether a charge on a lesser included offense is required, a two step analysis is to be used. First, the lesser included offense must be includеd within the proof necessary to establish the offense charged. Secondly, there must be some evidence in the record that if the defеndant is guilty, he is guilty of only the lesser offense, (citations omitted)
In the instant case, the evidence supports the jury verdict of murder and would have supported the lesser offense of voluntary manslaughter, but this is not a case where a request was made to include a lesser included offense in a charge and such request was denied. See
Roberts v. State,
*474 The record in this case does not enable us to reach that сonclusion. The evidence reveals that there were several witnesses to the stabbing and the appellant testified that he stabbed the deceased. He also testified that the deceased was the aggressor in this incident, that the deceased was his friend, that the deceased was larger than he, and that he was, in effect, forced to stab the deceased to protect his own life. This testimony leaves nо doubt but that the appellant felt he was defending himself and was entitled to be acquitted of the charges. His trial counsel’s efforts were exerted to obtain an acquittal, and when he chose not to request a voluntary manslaughter charge, it was obviously a trial strategy.
Trial strategy is оf paramount importance, but to grant a new trial simply because trial strategy failed or partially failed would make a mockery оf the law. This is not a case where defense counsel was ignorant of the law. A reading of the record makes it quite clear that the aрpellant’s trial attorney is experienced. We hold that the failure to request the inclusion of the lesser included offense in the chargе of the court, where such request is purposely not made because of trial strategy, does not deny appellant the effectivе assistance of counsel.
The appellant lastly complains that he received ineffective assistance of counsel because his counsel failed to make timely objections to inadmissable evidence and to improper jury argument.
The record in this case is in excess of four hundred pages, and a reading of the record reveals that the complained of matters are isolated instаnces. We find no harm or injury to the appellant. Isolated instances of failure to object to inadmissible evidence or to improрer jury argument ordinarily do not reflect ineffective assistance.
Ewing v. State,
Finally, we are of the opinion that the combined effect of the аlleged errors does not constitute ineffective assistance of counsel.
Assertions of ineffective counsel will be sustained only if firmly founded,
Williams v. State,
The appellant’s ground of error is overruled and the judgment of the trial court is affirmed.