Dwight Dean Rosamond v. the State of Texas

NO. 12-20-00114-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DWIGHT DEAN ROSAMOND, § APPEAL FROM THE
APPELLANT

V. § COUNTY COURT AT LAW

THE STATE OF TEXAS,
APPELLEE § VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION
Dwight Dean Rosamond appeals his conviction for murder. In three issues, he alleges
trial counsel provided ineffective assistance of counsel during sentencing, the trial court abused
its discretion when it overruled his motion for new trial, and the evidence is insufficient to
support the jury’s verdict finding him guilty of murder. We affirm.

BACKGROUND
Appellant lived on rural acreage in Van Zandt County, Texas. Appellant rented a mobile
home, and later, a recreational vehicle (RV) located on his property to Rickey Ray White II and
his girlfriend. Appellant resided with his wife and children in a separate storage building or
barn-type structure on the property. 1 White moved out shortly before the event that caused his
death.
In the dark early morning hours of March 15, 2018, White and his friend Alan Vaughn
trespassed on Appellant’s property to retrieve White’s tools and other property left behind after
he moved out. White and Vaughn consumed methamphetamine (meth) the previous day, and
White ingested more meth earlier that morning prior to the pair’s unannounced foray onto

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Appellant’s property can best be described as a “junkyard” containing numerous buildings and items such
as vehicles, farm implements, and equipment.
Appellant’s property. Although not entirely clear, it appears that White and Vaughn were on
Appellant’s property for over two hours. At some point, Vaughn “passed out” on a recliner
located outside in the yard. Once he awoke, he relocated to his truck on the road and fell asleep
again.
Meanwhile, Appellant woke to the sound of his dogs barking and went outside to
determine what alerted them. Appellant did not see anyone and was unable to determine what
caused the dogs to bark. Later, the dogs continued to bark, and Appellant went back outside.
Appellant returned inside, explaining to his wife that he believed he saw some lights or a
reflection in the window of the mobile home. He retrieved his shotgun, told his wife to call 911,
and went back outside.
Appellant’s wife called 911 and told the dispatcher that there was a prowler, their dogs
were “going crazy,” and that her husband went outside to investigate. After approximately seven
minutes, there was an audible gunshot on the call, and Appellant’s wife told the dispatcher that
she thought her husband just shot the prowler and to please hurry. Appellant’s wife thereafter
repeated on the call what he told her—namely that the prowler “came after him.” At
approximately the ten-and-a-half-minute point of the call, Appellant’s wife identifies White as
the person that Appellant shot. Appellant thereafter went to the road and held Vaughn at
gunpoint.
Two sheriff’s deputies arrived less than five minutes later. White was still alive and
conscious, and the deputies unsuccessfully attempted to stop White’s bleeding gunshot wound.
White’s pulse eventually faded, and paramedics arrived, who were unsuccessful in their
extensive attempts to revive White, and he died.
Appellant voluntarily conducted an interview in which he claimed self-defense. He
explained that someone came running at him while yelling obscenities and holding a flashlight,
so he shot him because he feared for his life. Appellant was subsequently released after the
interview, but after further investigation, he was indicted for murder, to which he pleaded “not
guilty.” The jury found him “guilty” of murder as charged and sentenced him to thirty-five years
of imprisonment. Appellant filed a motion for new trial, and after an extensive hearing, the trial
court denied the motion. This appeal followed.

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EVIDENTIARY SUFFICIENCY
In his third issue, Appellant contends the evidence is insufficient to support his
conviction for murder because it was improper for the jury to implicitly reject his theory of
deadly force self-defense.
Standard of Review
In reviewing the sufficiency of the evidence, we review all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found the
essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893,
902 n.19 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.
Ed. 2d 560 (1979). This standard gives full play to the responsibility of the trier of fact to fairly
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts. Padilla v. State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010). The
jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Brooks, 323 S.W.3d at 899.
When the record supports conflicting inferences, we presume that the fact finder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are
treated equally. Id. Circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Hooper,
214 S.W.3d at 13.
Each fact need not point directly and independently to the guilt of the appellant, as long
as the cumulative force of all the incriminating circumstances is sufficient to support the
conviction. See id. Juries are permitted to draw multiple reasonable inferences as long as each
inference is supported by the evidence presented at trial. Id. at 15. Juries are not permitted to
come to conclusions based on mere speculation or factually unsupported inferences or
presumptions. Id. An inference is a conclusion reached by considering other facts and deducing

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a logical consequence from them, while speculation is mere theorizing or guessing about the
possible meaning of facts and evidence presented. Id. at 16.
Applicable Law
A person commits the offense of murder if he intentionally or knowingly causes the death
of an individual. TEX. PENAL CODE ANN. § 19.02(b)(1) (West 2019). A person acts in self-
defense in using force against another when and to the degree he reasonably believes the force is
necessary to protect himself from the other’s use or attempted use of unlawful force. Id.
§ 9.31(a) (West 2019). A “reasonable belief” is that which “would be held by an ordinary and
prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42) (West 2021). The use of
force is not justified if the actor is responding to force that he himself provoked, unless the actor
abandons the encounter and the other nevertheless continues or attempts to use unlawful force
against the actor. Id. § 9.31(b)(4). The Texas Penal Code justification for self-defense focuses
on the existence of some necessity, the circumstances under which the force was used, the degree
of force used, and the type of conduct against which the force was used. Kelley v. State, 968
S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet.). The amount of force used must be in
proportion to the force encountered. Id. The use of deadly force is justified if the use of force is
justified under Section 9.31 and the actor reasonably believes deadly force is necessary to protect
himself from the other’s use or attempted use of unlawful deadly force. TEX. PENAL CODE ANN.
§ 9.32(a) (West 2019).
The issue of self-defense is a fact issue to be determined by the jury, and a jury’s verdict
of guilt is an implicit finding that it rejected a defendant’s self-defense theory. Saxton v. State,
804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991). The jury’s implicit rejection of a defendant’s
self-defense theory must be supported by sufficient evidence. Id. at 914. In reviewing the
sufficiency of the evidence to support the jury’s rejection of self-defense, we examine all of the
evidence in the light most favorable to the verdict to determine whether any rational trier of fact
could have found the essential elements of the offense and could have found against the
defendant on the self-defense issue beyond a reasonable doubt. Id.
When a defendant raises self-defense, he bears the burden of producing some evidence to
support his defense. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the
defendant produces some evidence supporting his defense, the state then bears the burden of
persuasion to “disprove the raised defense.” Id. The burden of persuasion does not require the

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production of evidence; it requires only that the state prove its case beyond a reasonable doubt.
Id. Moreover, “[d]efensive evidence which is merely consistent with the physical evidence at
the scene of the alleged offense will not render the [s]tate’s evidence insufficient since the
credibility determination of such evidence is solely within the jury’s province[,] and the jury is
free to accept or reject the defensive evidence.” Saxton, 804 S.W.2d at 914. When the evidence
is conflicting, we presume that the fact finder resolved the conflicts in favor of the prosecution
and therefore defer to that determination. Clayton, 235 S.W.3d at 778.
Discussion
Appellant argues that the State failed to discharge its burden to disprove his claim of
deadly force self-defense beyond a reasonable doubt, and that the jury’s implicit rejection thereof
is insufficient to support its finding of guilt for the charged offense of murder.
Appellant was White’s former landlord. White and his girlfriend resided in a mobile
home, and later an RV, on the property for several months prior to his death but had recently
moved to another residence. White paid Appellant money when he could and performed odd
jobs for Appellant as compensation for rent. Appellant and another tenant renting from
Appellant testified that it was not unusual for White and others to come and go from the property
at all hours of the night, thereby allowing the jury to infer that this conduct was not necessarily
unusual or alarming to Appellant. However, Appellant stated that he helped White in the middle
of the night and early morning hours on past occasions with tasks such as “jumping” his truck,
but claimed that White would call, text, knock on Appellant’s door, or otherwise announce his
presence when he needed help. White did not announce his presence on the night in question.
White and Vaughn consumed meth the previous day, and White ingested more meth
shortly before they decided to travel to Appellant’s property to retrieve items belonging to White
and his girlfriend. It appears that White and Vaughn had been at the property for over two hours.
Vaughn became frustrated and tired after the meth began to wear off, so he “passed out” on a
recliner chair in the yard. Vaughn later woke, walked over to his truck, and went back to sleep.
After Appellant was initially unable to determine what caused his dogs to bark, Appellant
testified that he saw a light or reflection outside, and that he decided to further investigate.
Appellant retrieved his shotgun and went outside. He testified that he did not know the identity
of the prowler at that point in time. Appellant’s wife also testified that Appellant did not know
the identity of the prowler, but on a recorded statement she made shortly after the incident, she

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told Van Zandt County Sheriff’s Department Sergeant Vickie Stofle that when Appellant came
inside and retrieved his shotgun before the shooting, he told his wife that he thought the prowler
was White. Furthermore, in her recorded statement, Appellant’s wife explained that she heard
White yelling after the gunshot.
After the shooting, Appellant’s daughter made a statement that she was awake before the
gunshot and heard White’s voice say, “Woah, woah, it’s me” prior to the shot. In a written
statement later drafted at Appellant’s attorney’s office, as well as at trial, Appellant’s daughter
stated that she did not hear anything until the shot was fired, followed by a voice stating, “Ah,
ah, you got me.” Furthermore, Appellant’s wife stated on the 911 call, after the shot, that she
believed White was the prowler.
Appellant testified that the prowler ran towards him yelling “Fuck you,” while shining a
flashlight in his direction and holding what he thought to be a gun. Appellant testified that he
was scared for his life and he fired the shotgun. He further explained that he did not know it was
White until he fell back after being shot and the flashlight shined on his face. However, the
authorities searched the area extensively for any evidence of a flashlight or other light source and
found none. In contrast, in Appellant’s interview after the shooting, he never mentioned that he
thought White had a gun. It was only after continual questioning by investigators that Appellant
mentioned being afraid he might be stabbed, even though the investigation revealed no knife or
bladed object discovered at the scene. The investigators did not find any gun at the scene other
than Appellant’s shotgun.
The deputies that responded to the 911 call testified that Appellant showed no remorse
for shooting White and made no attempt to provide first aid, medical attention, or any assistance
to White as he bled to death for several minutes. Instead, the deputies testified that White was
still alive when they arrived, and they attempted to provide first aid while Appellant stood
emotionless in the background. However, Appellant explained that he did not know whether
there were other intruders, so he decided to check on his family and subsequently discovered
Vaughn’s presence at his truck. The record also showed that Appellant knew Vaughn. Vaughn
testified that he asked Appellant where White was, and Appellant falsely replied that he ran
away.
The medical examiner testified that the shot occurred at a downward angle based on the
nature of the wound and location of the bird shot in White’s body. The firearms expert testified

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that, based on the patterning of the shot, as well as the fact that the wadding of the shotgun shell
was located inside White’s chest cavity and abdomen, Appellant fired the shot within six to eight
feet of White. The State theorized that, based on the close distance and downward angle of the
shot, Appellant shot White while he was setting the tools down to signal his surrender or after he
kneeled and begged for his life. Appellant offered the contrasting theory that the downward
angle could be explained by a difference in height between Appellant and White, as well as the
downward sloping grade of the property. The record shows that Appellant was only a couple of
inches taller than White, and photos of the scene do not clearly show an extensive slope on the
property where the shooting occurred.
As sole judge of the weight and credibility of the evidence, the jury was entitled to
choose which version of the facts to believe and, in doing so, could resolve any inconsistencies
either for or against Appellant. See Clayton, 235 S.W.3d at 778; see also Saxton, 804 S.W.2d at
914. Based on the testimony and evidence presented, the jury could have reasonably concluded
that Appellant knew the prowler was White and that he was not justified in engaging in deadly
force self-defense when he shot him. Even though the incident occurred at night in a rural area
on Appellant’s property, the evidence showed that Appellant knew White and others frequently
traversed his property at night, Appellant’s account of the event was unsupported by the
evidence and investigation conducted by the authorities, the evidence suggested that he knew the
prowler was White and not a threat, Appellant was the aggressor, and he made no attempt to
assist White after shooting him.2 The jury could have determined that Appellant did not engage
in a struggle with White, was not responding to the use of deadly force, and was the aggressor on
the morning of the shooting. Accordingly, the jury was entitled to reject Appellant’s contention
of self-defense and could reasonably conclude that Appellant shot White when such force was
not immediately necessary to protect himself from White. See TEX. PENAL CODE ANN.

2
The trial court also included instructions in the jury charge from which the jury could find Appellant not
guilty of murder by satisfying the statutory requirements for deadly force in protection of one’s own property. See
TEX. PENAL CODE ANN. §§ 9.41, 9.42 (West 2019). Appellant claimed that a storage case in Vaughn’s truck
belonged to him. Accordingly, he claimed at trial in accordance with the statutes that (1) he had the reasonable
belief that deadly force was immediately necessary to prevent theft or flight therefrom during the nighttime; and (2)
he reasonably believed that the property could not be protected or recovered by any other means, or that the use of
force other than deadly force to protect or recover the property would expose him or another to a substantial risk of
death or serious bodily injury. See id. § 9.42. However, White’s father testified that the case belonged to White,
and Vaughn testified that the pair were there only to retrieve property belonging to White and his girlfriend. In any
event, Appellant does not challenge on appeal the jury’s implicit rejection of his theory that he was justified in using
deadly force in defense of property.

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§§ 9.31(a), 9.32(a). Viewing the evidence in the light most favorable to the verdict, we conclude
that a rational jury could have found against Appellant on his deadly force self-defense claim
beyond a reasonable doubt. See Saxton, 804 S.W.2d at 914.
Because the evidence is sufficient to support the jury’s implicit rejection of Appellant’s
deadly force self-defense claim, we overrule Appellant’s third issue. See, e.g., Smith v. State,
No. 12-16-00329-CR, 2017 WL 4161594, at *3 (Tex. App.—Tyler Sept. 20, 2017, pet. ref’d)
(mem. op., not designated for publication) (holding evidence supported jury’s implicit rejection
of deadly force self-defense when tenant entered property of maintenance worker at mobile
home park to return key and confront worker for inflammatory comments made by worker to
tenant’s wife, and worker killed tenant with shotgun, even though tenant was on Appellant’s
property in close proximity at time of shooting).

INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant contends in his first and second issues that he received ineffective assistance of
counsel during the punishment phase of his trial and that the trial court abused its discretion
when it denied his motion for new trial based on his ineffective assistance of counsel claim.
Because these issues are related, we address them together.
Standard of Review
A defendant may move for a new trial based on ineffective assistance of counsel. See
Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993). When an appellant presents his
ineffective assistance claim to the trial court in a motion for new trial, an appellate court analyzes
his claim as a challenge to the denial of his motion for new trial. See Charles v. State, 146
S.W.3d 204, 208 (Tex. Crim. App. 2004) (holding appropriate standard of review for ineffective
assistance claim brought forth in motion for new trial is abuse of discretion), superseded by
statute on other grounds as stated in State v. Herndon, 215 S.W.3d 901, 905 n.5 (Tex. Crim.
App. 2007); see also Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012), overruled on
other grounds by Miller v. State, 548 S.W.3d 497 (Tex. Crim. App. 2018).
We review a trial court’s grant or denial of a motion for new trial for an abuse of
discretion. State v. Gutierrez, 541 S.W.3d 91, 97–98 (Tex. Crim. App. 2017); State v. Simpson,
488 S.W.3d 318, 322 (Tex. Crim. App. 2016); State v. Boyd, 202 S.W.3d 393, 401 (Tex. App.—

8
Dallas 2006, pet. ref’d). A trial court is given wide latitude in making the decision to grant or
deny a motion for new trial. Boyd, 202 S.W.3d at 401.
In ruling on a motion for new trial, we apply a deferential standard of review. Najar v.
State, 618 S.W.3d 366, 371 (Tex. Crim. App. 2021). The trial court is the exclusive judge of the
credibility of the evidence presented at the motion for new trial hearing. Id. We also defer to the
trial court’s credibility choices and presume that all reasonable fact findings in support of the
ruling have been made. State v. Thomas, 428 S.W.3d 99, 104 (Tex. Crim. App. 2014).
In doing so, we “afford almost total deference to a trial court’s fact findings, view the
evidence in the light most favorable to the trial court’s ruling, and reverse the ruling only ‘if no
reasonable view of the record could support’ it.” Id. (quoting Okonkwo v. State, 398 S.W.3d
689, 694 (Tex. Crim. App. 2013)). In the absence of express findings, we must presume all
findings in favor of the prevailing party. Najar, 618 S.W.3d at 371 (citing Okonkwo, 398
S.W.3d at 694). We will reverse the trial judge’s ruling “only if we discern an abuse of
discretion, that is, if the ruling is arbitrary or unsupported by any reasonable view of the
evidence.” Id.
Applicable Law
In reviewing an ineffective assistance of counsel claim, we follow the United States
Supreme Court’s two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986).
Under the first prong of the Strickland test, an appellant must show that counsel’s performance
was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong v. State, 25 S.W.3d 707,
712 (Tex. Crim. App. 2000). “This requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. To be successful, an appellant
must “show that counsel’s representation fell below an objective standard of reasonableness.”
Id., 466 U.S. at 688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712.
Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712. The appropriate standard for judging prejudice requires an appellant to “show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at

9
712. The appellant must prove that his attorney’s errors, judged by the totality of the
representation and not by isolated instances of error, denied him a fair trial. Burruss v. State, 20
S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref’d).
It is not enough for the appellant to show that the errors had some conceivable effect on
the outcome of the proceedings. Id. He must show that there is a reasonable probability that, but
for his attorney’s errors, the jury would have had a reasonable doubt about his guilt or that the
extent of his punishment would have been less. See id.; see also Bone v. State, 77 S.W.3d 828,
837 (Tex. Crim. App. 2002). A reasonable probability is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at
712. An appellant claiming ineffective assistance of counsel must affirmatively prove prejudice
from counsel’s deficient performance. Mitchell v. State, 989 S.W.2d 747, 748 (Tex. Crim. App.
1999). Review of trial counsel’s representation is highly deferential. Tong, 25 S.W.3d at 712.
We indulge in a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
It is Appellant’s burden to overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712.
Moreover, any allegation of ineffectiveness must be firmly founded in the record, and the record
must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999). Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim. Id.
Discussion
Appellant argues that his counsel was ineffective during the punishment phase for several
reasons. At the outset, we note that an individual adjudged guilty of a first-degree felony such as
murder shall be punished by imprisonment for life or for any term of not more than ninety-nine
years or less than five years. See TEX. PENAL CODE ANN. § 12.32 (West 2019). The State
requested a sentence of forty years of imprisonment, and the jury assessed a thirty-five year
sentence, which is below the middle of the range. Appellant rejected a ten-year plea bargain
offer negotiated by counsel.
Appellant’s appellate counsel presented the ineffective assistance claim as part of his
motion for new trial. Unlike many cases, the trial court held an extensive hearing on the motion
for new trial where appellate counsel presented many witnesses and other evidence to support his

10
claim, including the testimony of trial counsel to explain his trial strategy for various decisions
he made during his representation of Appellant.
Appellant first generally contends that counsel failed to perform an adequate mitigation
investigation. Failure to conduct an adequate investigation may constitute ineffective assistance
of counsel. See, e.g., Wiggins v. Smith, 539 U.S. 510, 521-23, 123 S. Ct. 2527, 2535-36, 156 L.
Ed. 2d 471 (2003). As the Supreme Court said in Strickland, “[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 691, 104 S. Ct. at 2066. A claim for ineffective assistance based on
trial counsel’s failure to investigate generally fails absent a showing of what the investigation
would have revealed that reasonably could have changed the result of the case. Stokes v. State,
298 S.W.3d 428, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d) (citing Cooks v. State,
240 S.W.3d 906, 912 (Tex. Crim. App. 2007)).
Appellant contends that trial counsel failed to conduct such an investigation, and relies on
Andrus and Porter, but those capital punishment cases are distinguishable because counsel failed
to conduct any investigation or uncover any relevant information that might mitigate his
punishment. See Andrus v. Tex., 140 S. Ct. 1875, 1881-82, 207 L. Ed. 2d 335 (2020) (per
curiam) (holding counsel provided constitutionally deficient performance at penalty phase of
defendant’s capital murder trial, where counsel performed almost no mitigation investigation and
overlooked vast tranches of mitigating evidence, including evidence defendant had attempted
suicide in prison, as well evidence of extreme neglect and privation during his childhood, and
counsel did not prepare the witnesses he presented); Porter v. McCollum, 558 U.S. 30, 39-40,
130 S. Ct. 447, 453, 175 L. Ed. 2d 398 (2009) (holding trial counsel had duty to conduct some
sort of mitigation investigation, which he wholly failed to conduct, and failed to uncover and
present any evidence of defendant’s mental health or mental impairment, his family background,
or his military service, which did not reflect reasonable professional judgment).
Here, the record does not support Appellant’s contention that counsel conducted no
mitigation investigation. Rather, the record shows that Appellant retained trial counsel, who
counsel had represented Appellant or his family on other legal matters and had extensive
familiarity with Appellant, his background, and various physical and mental conditions and
ailments. In other words, as we discuss below, the record shows that trial counsel performed an
adequate investigation, but that he had specific strategic reasons not to present the specific

11
witnesses or evidence that Appellant claims should have been presented. In fact, the record
shows that counsel conducted significant investigation. He met with Appellant and his family
several times, interviewed several witnesses, hired a consultant and two investigators to perform
various tasks, traveled to the scene taking photos and surveyed the premises, and engaged in
extensive preparation of the case.
As part of his ineffective assistance claim, Appellant contends that counsel failed to call
several witnesses, including Appellant’s neighbor, Appellant’s primary care physician, and his
counselor. Appellant’s neighbor testified at the motion for new trial hearing concerning
Appellant’s good character and bad character of the victim, such as allegations that White and
his girlfriend had violent fights and there were several thefts in the area after White moved to
Appellant’s property. Counsel testified that he consulted the neighbor during his investigation
but decided not to call him. Furthermore, the neighbor, during the State’s cross-examination at
the new trial hearing, admitted he was unaware that Appellant had been arrested for theft during
the pendency of trial while out on bond, implicating counsel’s trial strategy for not calling him.
As for Appellant’s primary care physician and counselor, counsel testified at the hearing that he
did not believe any information they could provide would be pertinent to his strategy. They
testified to Appellant’s physical and mental ailments. 3 Appellate counsel also attempted to use
these witnesses at the new trial hearing to cast doubt on Appellant’s competency. However,
these witnesses admitted that he was competent. The record also showed that trial counsel hired
a consultant who informally evaluated Appellant and concluded that he was competent.
Furthermore, subsequent testing showed that Appellant did not suffer from intellectual
developmental disorder, and there was no other evidence to suggest that he was incompetent or
that his conditions affected his decision to shoot White. In fact, the jury heard evidence that
Appellant did not suffer from these ailments at the time he shot White and that he was in good
physical condition on the night in question.
In a related sub-issue, Appellant also argues that trial counsel was ineffective in failing to
offer medical records of his various physical and mental ailments. However, the jury heard
evidence during the guilt-innocence phase of trial concerning these issues, such as Appellant’s

3
They testified that Appellant’s medical records showed that he suffered at some point from an ear cyst,
testicular swelling and pain, memory loss, chest pain, a severe episode of recurrent major depressive disorder
without psychotic features, compression neuropathy of his right lower extremity, lumbar myelopathy, upper
respiratory infection, right foot pain, chronic fatigue, acute upper back pain, bilateral hand swelling, neck pain, and a
blood clot in his lung.

12
lung blood clot, back problems, swollen testicle, use of a walker, depression, anxiety, and
various other ailments. “By operation of law, the evidence admitted during the guilt-innocence
phase of the trial is also before the jury at the penalty phase, and the jury may consider all the
evidence adduced at the guilt-innocence phase in assessing a defendant’s punishment.”
Atkinson v. State, 404 S.W.3d 567, 572 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (citing
Wright v. State, 212 S.W.3d 768, 776 (Tex. App.—Austin 2006, pet. ref’d)); see Green v. State,
839 S.W.2d 935, 945–46 (Tex. App.—Waco 1992, pet. ref’d) (“Evidence presented during the
guilt stage is automatically before the jury on punishment regardless of whether it is formally re-
offered by the State.”). Thus, there is no requirement that evidence admitted during the guilt-
innocence phase be reoffered to be considered for punishment. See Trevino v. State, 100 S.W.3d
232, 238 (Tex. Crim. App. 2003). Moreover, the appropriate examination of the record in an
ineffective assistance of counsel claim includes counsel’s representation during pretrial, the
guilt-innocence stage of the trial, and the punishment stage. See Rodd v. State, 886 S.W.2d 381,
384 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d). Furthermore, the jury observed physical
manifestations of some of these conditions at the trial itself. Finally, counsel actually offered the
testimony of Appellant’s wife during punishment, including how a lengthy sentence would affect
her income and ability to provide for their children. Counsel testified at the hearing that offering
these medical records with complicated medical jargon would not have been relevant or helpful.
To the extent that Appellant contends counsel’s investigation was insufficient and that he failed
to offer these documents, we note that counsel was aware of his condition and used some of this
information concerning Appellant’s condition to support his motion for continuance. So, trial
counsel was aware of this evidence, but implemented a trial strategy that it would not be relevant
or helpful to the jury.
Appellant also contends that trial counsel’s general brevity of evidence during the
punishment phase fell below objective standards of professional competence and that he
inflamed the jury by telling them not to make the same mistake as they made in finding him
guilty of the offense. However, trial counsel explained that the jury already found him guilty of
the offense, so an attempt to make the jury like him during punishment and subsequently assess a
reduced sentence would seem disingenuous and not be fruitful. Instead, he implemented the
more aggressive strategy to highlight his belief that the jury incorrectly found him guilty, so that
it had an opportunity to mitigate its own mistake and assess a minimal sentence. Counsel, an

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experienced criminal defense attorney, testified that he successfully implemented this strategy in
the past to obtain a lower sentence. Furthermore, after the lengthy guilt-innocence phase of trial,
counsel elected to make his argument short and sharp. As the State points out, it responded in
kind and presented minimal evidence during the punishment phase. But the State explained that,
had trial counsel put on such extensive evidence, it would have highlighted the evidence to
emphasize the facts of the case, including that Appellant did not aid White in any way after
shooting him or show remorse or emotion for what he had done, and highlighting the
inconsistencies in Appellant’s version of the event.
Next, Appellant contends counsel failed to present several photos of Appellant, his family
in various settings such as holiday photos, and photos of his prior wife and son who were killed
in a car wreck nearly two decades prior to this incident. Counsel testified that he has a general
practice not to present such photos to the jury. He explained that he did not like to use many of
these particular photos, because some of them showed Appellant in a beard in a somewhat
disheveled state. He elaborated that, in his experience, jurors do not trust men with facial hair.
Moreover, witnesses at the hearing admitted that presenting such photos could result in the State
offering photos of the victim and his family, coupled with arguments to the effect that because
Appellant killed the victim, White would be unable to be present at holiday celebrations, partake
in future family photos, and the like.
Finally, Appellant contends that trial counsel was ineffective because he allegedly fell
asleep during a portion of the trial. Appellant, his wife, and one of his daughters testified at the
new trial hearing that they believed counsel slept while the jury viewed the video of Appellant’s
interview with the investigating officers. Counsel vehemently denied that he fell asleep at any
point during the trial but admitted that he might have closed his eyes for several minutes at a
time. First, we note that this argument pertains to conduct that allegedly occurred within the
guilt-innocence phase of the trial, which is outside the scope of the issue Appellant raised on
appeal—that counsel was ineffective during the punishment phase. Second, Appellant relies on
the courtroom video, but does not point to a specific portion in which it appears that counsel fell
asleep. Moreover, our review of the video does not support Appellant’s contention. The trial
court was free to disbelieve the allegation by Appellant, his wife, and his daughter that counsel
fell asleep during the trial. See Najar, 618 S.W.3d at 371; Thomas, 428 S.W.3d at 104.

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In summary, the allegations to support Appellant’s ineffective assistance claim are either
unsupported by the record, the result of sound trial strategy, or he failed to overcome the
presumption of reasonableness or show how he was harmed thereby. Therefore, Appellant failed
to discharge his burden to show that there is a reasonable probability that, but for his attorney’s
errors, the jury would have had a reasonable doubt about his guilt or that the extent of his
punishment would have been less. See Bone, 77 S.W.3d at 837; see also Burruss, 20 S.W.3d at
186. Accordingly, Appellant failed to establish that the trial court abused its discretion when it
denied his motion for new trial based on the alleged ineffective assistance of counsel claim. See
Riley, 378 S.W.3d at 457; see also Charles, 146 S.W.3d at 208.
Appellant’s first and second issues are overruled.

DISPOSITION
Having overruled Appellant’s three issues, the judgment of the trial court is affirmed.

GREG NEELEY
Justice

Opinion delivered February 9, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

15
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 9, 2022

NO. 12-20-00114-CR

DWIGHT DEAN ROSAMOND,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the County Court at Law
of Van Zandt County, Texas (Tr.Ct.No. CR18-00334)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.