Opinion issued December 15, 2020
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00282-CR ——————————— DWIGHT GOFFNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from 248th District Court Harris County, Texas Trial Court Case No. 1570145
MEMORANDUM OPINION
A jury found appellant, Dwight Goffney, guilty of the felony offense of
aggravated assault.1 After appellant pleaded true to the allegation in an enhancement
1 See TEX. PENAL CODE ANN. § 22.02(a), (b). paragraph that he had been previously convicted of a felony offense, the jury
assessed his punishment at confinement for five years and a $5,000 fine. In four
issues, appellant contends that the trial court erred in instructing the jury and his trial
counsel provided him with ineffective assistance of counsel.
We modify the trial court’s judgment and affirm as modified.
Background
The complainant, Roberto Mena, testified that in October 2015, he was
self-employed as a contractor. In October 2015, he did some remodeling work for
Tereza Demonbreun, the owner of a home at 451 Woodrail Street in Harris County,
Texas. The complainant lived a few blocks away from Demonbreun’s home, and as
he was driving by her home one day, he saw her struggling with a piece of drywall
in her garage. He stopped to help her and learned that her home had been damaged
by a hurricane. After they talked, the complainant agreed to do some work for
Demonbreun at her home. The complainant was to perform “demo[lition], take
down all the drywall and insulation, repair it, put new insulation in, drywall, texture,
[and] paint . . . .”
About three days after starting the job at Demonbreun’s home, the
complainant met Jessica Dennee—appellant’s girlfriend and Demonbreun’s
daughter—who was at the home with her newborn baby. The complainant also
became acquainted with appellant, who also was on the property. Appellant told the
2 complainant that Demonbreun “wasn’t alone,” and threatened him not to “mess with
[his] family.” The complainant responded that it “wasn’t [his] intention, that [he]
was there to help out.”
After the complainant completed his work at Demonbreun’s home, he did a
walk-through of the home with Demonbreun to show her the work. Demonbreun
had “some issues” because she decided to have plumbing work done in the home
and the plumbers had been “making big holes in the wall” and “destroying [his] job.”
The complainant agreed to have Demonbreun mark the issues that she saw with blue
tape, and he went back the next day to “take care” of them. He did not fix any of the
wall damage caused by the plumbers because “it was not part of [his] contract.”
Then, he went back the following day, a Friday, to finish the cleanup.
On Saturday, the complainant received a text message from Demonbreun
telling him that appellant “was going to take over everything with money and any
job that needed to be done.” The complainant thought this would be a problem
because his work “was already done; and . . . [appellant] didn’t know what was
going on” because “[h]e was never in the house.”
On October 15, 2017, appellant sent a text message to the complainant and
scheduled an appointment to meet the complainant at Demonbreun’s house at
3:00 p.m. At 3:02 p.m., appellant sent the complainant a text message “to see if [he]
was going to be able to be there at [the] appointment.” The complainant responded,
3 “yes, [and] that [he] was on [his] way.” At 3:05 p.m., the complainant received
another text message from appellant asking “where was [he].” The repeated text
messages were a “red flag” for the complainant, and he was concerned.
The complainant arrived at Demonbreun’s home about ten minutes late to his
appointment with appellant. He believed that Demonbreun would be at the home
along with appellant, but he did not see her car. He took out his cellular telephone
and began recording because he suspected that there “wasn’t going to be something
good [coming] out of this.”
As he approached the house, the complainant walked into the garage, and
found Dennee and appellant sitting inside. The complainant asked appellant “what
seem[ed] to be the problem,” and appellant had the complainant follow him inside
the home to a bathroom. The house was still under construction, and on the way to
the bathroom, the complainant saw that someone had taken down the kitchen
cabinets, and there were cabinets on the floor and other materials. The bathroom
was dark, and the complainant saw a piece of drywall and a two-by-four wooden
board by the bathroom door.
The complainant followed appellant into the bathroom, while Dennee
remained in the hallway outside the bathroom. Appellant told the complainant that
he had “missed a spot[] [and] that [he] oversprayed the toilet” with the wall texturing
product. The complainant admitted that “[he] forgot” and “[he] missed it.” The
4 complainant told appellant that he “was going to go ahead and clean it up with a wet
rag.” Then appellant accused the complainant of giving Demonbreun two different
“quotes to do the texture on the house” and asked him why “was [he] trying to charge
her . . . different prices.” The complainant saw that appellant “was raising his voice”
and “getting angry.” Appellant left the bathroom, and the complainant followed him
out. But as the complainant exited the bathroom, he “saw [appellant] with his hands
up, swinging” a two-by-four board at him. The complainant estimated that the two-
by-four board was about three or four feet long.
The complainant’s “first reaction was [to] raise [his] hand to cover” his face,
and appellant struck the complainant’s arm with the two-by-four board, breaking the
arm. Appellant “knocked [the complainant] down” onto his hands and knees. All
the complainant could remember was that appellant kept hitting him with the
two-by-four board and that “[Dennee] was yelling at [appellant] to stop.” Appellant
kept striking the complainant “all over [his] body,” on his head, arm, ribs and back.
Then appellant chased the complainant out of the house, still wielding the
two-by-four board. The complainant ducked into his sport utility vehicle (“SUV”)
and locked the doors.
The trial court admitted into evidence the audio recording of the assault that
the complainant made with his cellular telephone. The recording begins before the
complainant enters Demonbreun’s garage and ends when the complainant gets into
5 his SUV. The complainant confirmed that he was the person who could be heard
moaning on the recording and that the other speaker was appellant.
The complainant further testified that when he first got into his SUV, he
stopped the audio recording so he could call for emergency assistance. The
complainant thought he would be safe inside the SUV, but appellant “kept on
swinging” the two-by-four board and broke the back passenger and driver’s side
windows on the SUV. Then the complainant saw appellant drop the two-by-four
board in the grass, get into his car, and drive off. Dennee left the home a little later
in her own car. Before she left, the complainant recorded her license plate number
and gave it to the emergency-assistance operator. After completing his
emergency-assistance call, the complainant called his wife to let her know what had
happened.
According to the complainant, an ambulance and emergency medical
technicians (“EMTs”) arrived at Demonbreun’s home first. They helped the
complainant get out his SUV and put him inside the ambulance. A law enforcement
officer also arrived and interviewed the complainant about the assault. The
complainant was taken to a hospital in the ambulance.
6 The complainant explained that he sustained cuts and bruises and he was
diagnosed with a severe concussion and a broken arm.2 He was in bed and unable
to walk for about two weeks. He and his family moved away from Demonbreun’s
neighborhood as soon as they could. The complainant continued to receive
threatening telephone calls from appellant. When the complainant would answer,
he would hear heavy breathing and what sounded like a gun cocking.
According to the complainant, after the assault, he was unable to resume
physical labor and suffered from severe headaches. He could not go outside during
the day “because the [sun]light was too bright.” It took the complainant a year before
he “g[o]t back on [his] feet” and was able to “start walking right” and “at least walk
in the yard.” The complainant was afraid to continue working as a contractor.
Houston Police Department (“HPD”) Officer J. Heslop testified that on the
evening of October 15, 2017, while on patrol, he was dispatched to a home at 451
Woodrail Street to respond to an emergency call about an assault that had just
occurred. When he arrived, he found an ambulance at the scene and EMTs attending
to the complainant.
According to Officer Heslop, the complainant had “his head wrapped,” “dark
bruising on his forehead and right shoulder,” “some redness and scratching on his
2 The trial court admitted into evidence copies of the complainant’s medical records. 7 ribcage,” and “some swelling on his left . . . forearm.” The complainant was
“complaining of injuries and just trying to figure what was going on.” The
complainant’s wife and daughter were panicked, frantic, and worried about the
complainant’s condition. While at the scene, Heslop noticed that the rear passenger
windows on the complainant’s SUV, which was parked on the street, were cracked
and “the glass was shattered.”
Officer Heslop spoke briefly with the complainant and then spoke with his
wife. The complainant’s wife pointed to a piece of wood—a two-by-four board
around two feet long with two nails sticking out of the end—that was by the front
door of the home. The complainant’s wife stated that the board was “involved in the
assault.” The trial court admitted into evidence the two-by-four board and
photographs of the two-by-four board. Heslop stated that he considered the
two-by-four board to be a deadly weapon.
Officer Heslop further testified that the complainant’s injuries “seemed very
severe.” And based on his training and experience as a law enforcement officer,
Heslop did not think the injuries had been caused by someone’s hand.
Through speaking with the complainant, his wife, and his daughter, as well as
two other law enforcement officers that had responded to the scene, Officer Heslop
learned that the complainant was a contractor who had been doing construction work
for Demonbreun, the owner of the home. Heslop also was able to identify appellant
8 as the perpetrator of the assault. Because appellant and Dennee had fled the scene,
Heslop was unable to locate them and interview them that night. But he learned
appellant’s telephone number, the location where he worked, the type of car he
drove, and the name and location of the hotel where appellant might have been
staying.
Two days after the assault, Officer Heslop received a telephone call from the
complainant and went to speak with him in person. The complainant had a sling on
his left arm and injuries from the assault.
Houston Fire Department firefighter and EMT J. Paramore testified that on
October 15, 2017, he was dispatched to 451 Woodrail Street in response to an assault
that had occurred. When he and another EMT arrived at the scene, they found the
complainant in an SUV and they “started their patient assessment, talking to him and
evaluating him.” The complainant was “alert and oriented [to] place, time, and
event.” The complainant told them that he had been assaulted. Paramore observed
that the complainant “had some bruising already” and he appeared to be in severe
pain. They administered fentanyl intravenously to treat the complainant’s pain.
HPD Detective D. Morrison testified that he was assigned to investigate the
assault of the complainant. As part of his investigation, he had a telephone
conversation with appellant, who told Morrison that his “relative [had been] having
some problems with [the complainant]” and she had asked appellant to take over her
9 communications with the complainant, including “doing walk-throughs, talking
about money and possibl[e] mistakes” that the complainant had made. Appellant
told Morrison that the complainant had “bumped” appellant in a hallway in
Demonbreun’s home as he was “trying to leave” and hit him “shoulder to shoulder.”
Appellant admitted that he assaulted the complainant, but he denied using a
two-by-four board in doing so. According to appellant, “there was an argument in
the house about some finances and the work that was done.” Appellant told
Morrison that “he could not explain [the complainant’s] injuries.”
Detective Morrison testified that, after evaluating all the evidence in the case,
including his interviews with witnesses, the complainant’s audio recording, and the
two-by-four board found at Demonbreun’s home on the day of the assault, he
believed that appellant used the two-by-four board to assault the complainant.
Morrison stated that the two-by-four board is a deadly weapon.
Detective Morrison also explained that he found the complainant to be
“credible, meaning, [that he] didn’t find him doing this out of other means.” Because
Morrison believed that there was probable cause to arrest appellant, he “call[ed] the
Harris County District Attorney’s Office,” which accepted the charges.
Demonbreun testified that her home, located at 451 Woodrail Street, sustained
substantial flood damage because of a hurricane. Six inches of water inundated the
home during the storm. When the insurance adjuster came after the storm, he told
10 Demonbreun that she had to tear out two feet of drywall in the house and four feet
of drywall in the garage.
Demonbreun did not stay at the house after the hurricane because of the
home’s condition, but she spent some time there most days cleaning and emptying
the dehumidifiers. One day, the complainant “was driving by in his [SUV] and he
stopped and asked [her] if [she] had flood damage.” They had a short conversation,
and the complainant “agreed to put drywall in [her] garage” to “help [her] out.”
Demonbreun paid him $250 to “start the work” in the garage. Then, she “gave him
a check for $5,000 before he started [doing other work] in the house.” When she
saw the complainant’s work, Demonbreun thought it “was shoddy.” She “would
point things out to him and he would get animated about them and ask, ‘Well, did
you think I was going to leave it this way?’” Demonbreun would respond, “Yeah,
because you [did the work].”
Although Demonbreun was not happy with the quality of the complainant’s
work, she had already given him another check for $8,000. But when she “checked
[her bank] account,” she “noticed he had not cashed it.” Demonbreun explained that
“there came a point where [the complainant] wasn’t returning [her] [tele]phone calls,
he wasn’t returning [her] text[] [messages], [and] he wasn’t at the house doing any
work,” so she canceled the $8,000 check because she thought if she did, “he was
going to have to come and talk to [her].”
11 The day Demonbreun canceled the $8,000 check, the complainant came to her
house. He threatened that he would call law enforcement officers and have her
charged with the offense of theft. Eventually, they reached an agreement that
Demonbreun would pay the complainant the $8,000, and she went to the bank,
withdrew the money, brought it back to the house, and gave it to the complainant.
Later that week, Demonbreun went to her house to mark the areas that had not
been completed to her satisfaction. She understood that the complainant was “going
to fix those areas.” But the complainant still had the dining room to complete, and
Demonbreun had become so exasperated that she did not “even want to deal with
[the complainant] anymore.” Her “kids,” which included appellant, thought she
should “let [the complainant] come back and fix the job.” So she and appellant
agreed that appellant would handle communications with the complainant.
Demonbreun sent the complainant a text message telling him to “deal with
[appellant].”
Demonbreun further testified that she knew that the complainant had an
appointment scheduled for October 15, 2017, but she did not attend it. After
3:00 p.m. that day, she “started getting phone calls from [the complainant’s cellular]
[tele]phone in quick succession; and [because she] didn’t answer his calls
anymore, . . . [she] didn’t answer [her telephone].” She then received a telephone
call from Dennee. After speaking with Dennee, Demonbreun listened to the
12 voicemail message left by the complainant’s cellular telephone. On the voicemail
message, a female voice spoke in a “[v]ery threatening” tone, with “a lot of cursing,”
and told Demonbreun to answer her telephone.
Demonbreun then called law enforcement officers and “told them what [she
believed] was going on and . . . that [she] was afraid to go to [her] house by
[her]self.” She asked for a law enforcement officer to meet her at the house.
Demonbreun met the officer at a nearby gas station, and the officer escorted her to
the house. They arrived at about 5:00 p.m. At the house, Demonbreun “wanted to
make sure that all” the doors and windows “were locked and [she] deleted [her]
garage code” because she knew that the complainant had the code to open her garage
door. As she and the law enforcement officer “walked out the front door [of the
house], [she] noticed that [her window] screens were slashed in the front [of the
home].”
Jury Charge Error
In his first, second, and third issues, appellant argues that the trial court erred
in instructing the jury because it submitted an improper definition of the term
knowingly, failed to identify a third person harmed, failed to submit an application
paragraph regarding defense of a third person, submitted incorrect instructions
regarding culpable mental state and self-defense, and failed to sua sponte instruct
the jury on the lesser-included offense of assault.
13 We review complaints of jury-charge error under a two-step process. See Ngo
v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2004); Abdnor v. State, 871
S.W.2d 726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether
error exists in the trial court’s charge. Wooten v. State, 400 S.W.3d 601, 606 (Tex.
Crim. App. 2013). Second, if there is error, the court must determine whether the
error caused sufficient harm to require reversal of the conviction. Id. If the
defendant preserved error by timely objecting to the charge, we will reverse if the
defendant demonstrates that he suffered some harm as a result of the error. Sakil v.
State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). If, as here, the defendant did
not object at trial, we will reverse only if the error was so egregious and created such
harm that the defendant did not receive a fair and impartial trial. Id. at 26.
The trial court has an absolute duty to prepare a jury charge that accurately
sets out the law applicable to the case. TEX. CODE CRIM. PROC. ANN. art. 36.14;
Oursbourn v. State, 259 S.W.3d 159, 179 (Tex. Crim. App. 2008); see also Vasquez
v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (purpose of trial court’s
charge to jury is to instruct jurors on all law applicable to case). It must give the
instruction for the law applicable to the case regardless of whether it has been
specifically requested. Oursbourn, 259 S.W.3d at 179–81.
This absolute duty does not extend to defensive issues. “[A] trial court has no
duty to instruct the jury on unrequested defensive issues . . . .” Id. at 179. We review
14 a trial court’s decision to exclude or include a defensive issue in its charge for an
abuse of discretion, viewing the evidence in the light most favorable to its
submission. See Buford v. State, 606 S.W.3d 363, 369 (Tex. App.—Houston [1st
Dist.] 2020, no pet.); see also Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App.
2006).
In his first issue, appellant argues that he was egregiously harmed by the trial
court’s purportedly improper definition of the term “knowingly” in its charge to the
jury because the definition was not limited to the result of his conduct.
“Section 6.03 of the Texas Penal Code sets out: four culpable mental states—
intentionally, knowingly, recklessly, and criminally negligently; two possible
conduct elements—nature of the conduct and result of the conduct; and the effect of
the circumstances surrounding the conduct.” Price v. State, 457 S.W.3d 437, 441
(Tex. Crim. App. 2015); see TEX. PENAL CODE ANN. § 6.03. “In a jury charge, the
language in regard to the culpable mental state must be tailored to the conduct
elements of the offense.” Price, 457 S.W.3d at 441. “A trial court errs when it fails
to limit the language in regard to the applicable culpable mental states to the
appropriate conduct element.” Id.
Under Texas Penal Code section 22.01(a)(1), a person commits the offense of
assault if he intentionally, knowingly, or recklessly causes bodily injury to another.
TEX. PENAL CODE ANN. § 22.01(a)(1). A person commits the offense of aggravated
15 assault under Texas Penal Code section 22.02(a)(2) if he commits an assault as
defined in section 22.01(a)(1) and he “uses or exhibits a deadly weapon during the
commission of the assault.” Id. § 22.02(a)(2).
In the abstract portion of the trial court’s charge to the jury, the trial court
defined the offense of aggravated assault, as alleged in the indictment, as follows:
A person commits the offense of assault if he intentionally or knowingly causes bodily injury to another. A person commits the offense of aggravated assault if the person commits assault, as hereinbefore defined, and the person uses or exhibits a deadly weapon during the commission of the assault.
See id.; see also id. § 22.01(a)(1).
In his first issue, appellant complains about the following instruction included
in the trial court’s charge:
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
Appellant argues that because the offense of aggravated assault, as alleged in the
indictment and defined in the trial court’s charge, is a “result of conduct” offense,
an intent to engage in conduct is not an explicit element to be proven. See Garfias
v. State, 424 S.W.3d 54, 60 (Tex. Crim. App. 2014) (assaultive offense causing
bodily injury constitutes result-oriented offense); accord Welch v. State, No. 16 07-16-00212-CR, 2017 WL 2608178, at *2 (Tex. App.—Amarillo June 12, 2017,
pet. ref’d) (mem. op., not designated for publication).
The Waco Court of Appeals has concluded that the offense of aggravated
assault by causing bodily injury, accompanied by the use or exhibition of a deadly
weapon, is a result-oriented offense that also includes a nature-of-conduct element—
namely, the defendant’s use or exhibition of a deadly weapon. Johnson v. State, 271
S.W.3d 756, 761 (Tex. App.—Waco 2008, pet. ref’d); see TEX. PENAL CODE ANN.
§§ 22.01(a)(1), 22.02(a)(2) This Court has previously acknowledged the Waco
Court of Appeals’s ruling on this issue. See Johnson v. State, No. 01-13-00104-CR,
2014 WL 1004401, at *3 (Tex. App.—Houston [1st Dist.] Mar. 13, 2014, pet. ref’d)
(mem. op., not designated for publication). But rather than reach the issue, we, in
the past, have presumed error because, as here, the definition in the trial court’s
charge of the term “intentionally” was limited to the result of the conduct, while the
definition of the term “knowingly” was not. And included in the definition of the
term “knowingly” was a “circumstances surrounding the conduct” portion. See id.
Here, we will also presume error in the trial court’s charge.
Notably, the State, in its brief, concedes that our holding in Johnson also
requires the conclusion that the trial court erred in including, in the abstract portion
of its charge to the jury, that a “person acts knowingly, or with knowledge, with
respect to . . . circumstances surrounding his conduct when he is aware . . . that the
17 circumstances exist.” See id. at *4 (citing Cook v. State, 884 S.W.2d 485, 487 (Tex.
Crim. App. 1994)).
Because we have presumed error and the State has conceded error in the trial
court’s charge, we must determine whether appellant has suffered egregious harm.
See id. at *4–6; see also Wooten, 400 S.W.3d at 606; Sakil, 287 S.W.3d at 26.
Egregious harm exists when the record shows that a defendant has suffered actual,
rather than merely theoretical, harm from jury-charge error. Almanza v. State, 686
S.W.2d 157, 174 (Tex. Crim. App. 1984). Egregious harm consists of error affecting
the very basis of the case or depriving the defendant of a valuable right, vitally
affecting a defensive theory, or making the case for conviction or punishment clearly
and significantly more persuasive. Saunders v. State, 817 S.W.2d 688, 692 (Tex.
Crim. App. 1991); Martinez v. State, 190 S.W.3d 254, 259 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d). To determine whether a defendant has sustained harm
from either an objected-to or a non-objected-to jury-charge instruction, we consider:
(1) the entire charge, (2) the state of the evidence, including the contested issues and
the weight of the probative evidence, (3) the argument of counsel, and (4) any other
relevant information revealed by the record of the trial as a whole. Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza, 686 S.W.2d at 171.
As in our decision in Johnson, the trial court’s charge to the jury, as a whole,
weighs against a finding of egregious harm because its corresponding application
18 paragraph properly instructed the jury to find appellant guilty of the offense of
aggravated assault only if it found that he intentionally or knowingly caused the
result—i.e., caused bodily injury to the complainant—without any mention of the
circumstances surrounding appellant’s conduct. See Johnson, 2014 WL 1004401,
at *4–5. “It is the application paragraph of the charge, not the abstract portion, that
authorizes a conviction.” Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim. App.
2012). “An abstract charge on a theory of law that is not applied to the facts does
not authorize the jury to convict upon that theory.” Id. And a jury “is presumed to
have understood and followed the [trial] court’s charge, absent evidence to the
contrary.” Id.
Further, the state of the evidence does not support a finding of egregious harm.
The State proffered testimony through the complainant, Officer Heslop, firefighter
and EMT Paramore, and Detective Morrison, as well as photographs, physical
evidence, and medical records to prove that appellant intentionally caused bodily
injury to the complainant by striking him with a two-by-four board. The direct
testimony of Heslop and Morrison, as well as the other evidence, also supports the
jury’s finding that the two-by-four board constituted a deadly weapon because, given
its manner of use or intended use, it was capable of causing death or serious bodily
injury. See TEX. PENAL CODE ANN. § 1.07(a)(17).
19 Appellant also does not identify any argument of counsel that emphasized the
erroneous jury instruction, and we find none. We conclude that any error in the trial
court’s instruction to the jury defining the culpable mental state did not affect the
basis of the case or deprive appellant of a valuable right, vitally affect a defensive
theory, or make the case for conviction or punishment clearly and significantly more
persuasive. See Saunders, 817 S.W.2d at 692. Thus, we hold that any error in the
trial court’s charge complained about by appellant in his first issue did not cause
sufficient harm to require reversal of appellant’s conviction. See Wooten, 400
S.W.3d at 606.
We overrule appellant’s first issue.
In his second issue, appellant argues that he was egregiously harmed by the
trial court’s failure to identify the third person harmed and to properly submit the
application paragraph regarding defense of a third person because the record is not
clear as to whom appellant would have been protecting and the trial court’s
instruction on defense of a third-person was “confusing and misleading.”
In its charge to the jury, the trial court submitted the following application
paragraph on defense of a third person:
[I]f you find from the evidence beyond a reasonable doubt that [appellant] did strike [the complainant], as alleged, but you further find from the evidence, as viewed from the standpoint of [appellant] at the time, that from the words or conduct, or both of [the complainant], it reasonably appeared to [appellant] that his life or person, or the life of a third person, was in danger and there was created in his mind a 20 reasonable expectation or fear of death or serious bodily injury to himself or a third person, from the use of unlawful deadly force at the hands of [the complainant], and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself or a third person against [the complainant]’s use or attempted use of unlawful deadly force, he struck [the complainant] with a wooden board, then you should acquit [appellant] on the grounds of self-defense or defense of a third person; or if you have a reasonable doubt as to whether or not [appellant] was acting in self-defense or in defense of a third person on said occasion and under the circumstances, then you should give [appellant] the benefit of that doubt and say by your verdict, not guilty.
If you find from the evidence beyond a reasonable doubt that at the time and place in question [appellant] did not reasonably believe that he or a third person was in danger of death or serious bodily injury, or that [appellant], under the circumstances as viewed by him from his standpoint at the time, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself or a third person against [the complainant]’s use or attempted use of unlawful deadly force, then you should find against [appellant] on the issue of self-defense and on the issue of defense of a third person.
Appellant asserts that the evidence did not raise the issue of defense of a third
person. He states that the evidence did not clearly show whether he was protecting
a third person, such as Dennee, who was present during the assault but who did not
testify at trial, or Demonbreun, who was not present when the assault occurred. But
appellant concedes, in his brief, that the evidence shows that “there were words
spoken as [a]ppellant, the complainant, and Dennee entered the house and went to
the bathroom area.” Further, the complainant’s audio recording of the assault
constitutes some evidence that the complainant arguably raised his voice at Dennee
during that encounter. Based on this evidence, the trial court could have reasonably 21 concluded that a defense-of-a-third-person instruction was warranted. See Krajcovic
v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013) (citing Texas Penal Code
section 2.03(c) and noting “a minimum quantity of evidence is sufficient to raise a
defense as long as the evidence would support a rational jury finding as to the
defense”); Braughton v. State, 522 S.W.3d 714, 730 (Tex. App.—Houston [1st Dist.]
2017), aff’d, 569 S.W.3d 592 (Tex. Crim. App. 2018). Thus, we hold that the trial
court did not err in including an instruction for defense of a third person in its charge
to the jury.
As to appellant’s assertion that the defense-of-a-third-person application
paragraph in the trial court’s charge erroneously failed to identify the third person
harmed, we note that when the abstract portion of a jury charge contains a definition
or instruction on a defensive theory of law, the corresponding application paragraph
must list the specific conditions under which a jury is authorized to acquit. Vega v.
State, 394 S.W.3d 514, 520 (Tex. Crim. App. 2013). The State concedes, in its brief,
that the identity of a person pertinent to the defensive issue, such as the name of the
third person in this case, is a specific condition that should have been included in an
application paragraph in the trial court’s charge. See id. (defensive jury instruction
on entrapment was erroneous where application paragraph failed to name specific
person who was acting as a law-enforcement agent).
22 Here, however, the evidence shows that Dennee was the only third person
present during the assault, so the jury, which ultimately rejected the defense, would
not have been confused by the trial court’s omission. And although appellant
complains that the State, in its closing argument, criticized the inclusion of the
defense-of-a-third-person instruction in the trial court’s charge, the State’s remarks
fairly responded to the argument of appellant’s counsel and addressed self-defense
and defense of a third person together.
We also disagree with appellant’s assertion that the inclusion of the
defense-of-a-third-person instruction in the trial court’s charge trivialized his
self-defense theory. The trial court’s instructions to the jury on self-defense and
defense of a third person were separate defensive issues, and the
defense-of-a-third-person instruction thus did not comment on the weight of the
evidence supporting the self-defense instruction, which the jury also rejected. See
Morales v. State, 357 S.W.3d 1, 5 n.15 (Tex. Crim. App. 2011) (instruction
constitutes comment on weight of the evidence if it is not grounded in statute, is
covered by general charge to the jury, and focuses jury on specific type of evidence
that may support element of offense or defense). Thus, we hold that any error in the
defense-of-a-third-person application paragraph in the trial court’s charge did not
cause sufficient harm to require reversal of appellant’s conviction. See Wooten, 400
23 We overrule appellant’s second issue.
In his third issue, appellant argues that he was egregiously harmed by the
cumulative effect of the trial court’s erroneous jury instructions regarding culpable
mental state and defense of a third person and its failure to sua sponte instruct the
jury on the lesser-included offense of assault because, as a cumulative result of these
errors, “[t]he jury charge was misleading and incomplete causing confusion to the
jury” and appellant was denied a fair and impartial trial. See Chamberlain v. State,
998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“It is conceivable that a number of
errors may be found harmful in their cumulative effect.”).
Here, we have already concluded that any of the trial court’s jury-charge
errors in defining culpable mental state did not cause egregious harm and the trial
court did not err in including an instruction to the jury on defense of a third person.
As to the lack of an instruction on the lesser-included offense of assault, a trial court
has no obligation to sua sponte instruct the jury on a lesser-included offense when,
as here, neither party requested the instruction. See Tolbert v. State, 306 S.W.3d
776, 781–82 (Tex. Crim. App. 2010). As a result, we conclude that the trial court
did not err by not including such an instruction in its charge.
Accordingly, we hold that appellant was not egregiously harmed by the
cumulative effect of the trial court’s instructions to the jury on culpable mental state
24 and defense of a third person and its failure to sua sponte instruct the jury on the
lesser-included offense of assault.
We overrule appellant’s third issue.
Ineffective Assistance of Counsel
In his fourth issue, appellant argues that his trial court did not provide him
with effective assistance of counsel because trial counsel did not object to the trial
court’s instructions to the jury on culpable mental state and defense of a third person
or to certain portions of Detective Morrison’s testimony and counsel did not
cross-examine the investigating officer or the complainant about the complainant’s
five arrests for the misdemeanor offense of assault, which included four arrests for
the offense of assault of a family member.
The Sixth Amendment to the United States Constitution guarantees the right
to the reasonably effective assistance of counsel in criminal prosecutions. U.S.
CONST. amend. VI; Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001);
see also TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.05; Hernandez
v. State, 726 S.W.2d 53, 55–57 (Tex. Crim. App. 1986) (test for ineffective
assistance of counsel same under both federal and state constitutions). To prove a
claim of ineffective assistance of counsel, appellant must show that (1) his trial
counsel’s performance fell below an objective standard of reasonableness and
(2) there is a reasonable probability that, but for his counsel’s unprofessional errors,
25 the result of the proceeding would have been different. Strickland v. Washington,
466 U.S. 668, 687–88, 694 (1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim.
App. 2011). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s
performance, we look to the totality of the representation to determine the
effectiveness of counsel, indulging a strong presumption that counsel’s performance
fell within the wide range of reasonable professional assistance or trial strategy. See
Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). Appellant has
the burden to establish both prongs by a preponderance of the evidence. Jackson v.
State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “[A]ppellant’s failure to satisfy
one prong of the Strickland test negates a court’s need to consider the other prong.”
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland,
466 U.S. at 697.
Although appellant filed a motion for new trial, he did not raise his
ineffective-assistance of counsel complaints in his motion and he did not present an
affidavit from his trial counsel addressing his ineffective-assistance-of-counsel
complaints with his motion for new trial.3 A trial record alone is rarely sufficient to
3 In his motion for new trial, appellant argued that he was entitled to a new trial because the trial court improperly defined the term “knowingly” in its instructions to the jury, improperly submitted an instruction to the jury regarding defense of a third person and did not identify the third person at risk of being harmed, and failed to submit an instruction to the jury on the lesser-included offense of assault. The 26 show ineffective assistance of counsel. Williams v. State, 526 S.W.3d 581, 583 (Tex.
App.—Houston [1st Dist.] 2017, pet. ref’d). And generally, a silent record that
provides no explanation for trial counsel’s actions will not overcome the strong
presumption of reasonable assistance. Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005); see also Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim.
App. 2007) (noting “presumption that trial counsel’s performance was reasonably
based in sound trial strategy”). In the rare case in which trial counsel’s
ineffectiveness is apparent from the record, an appellate court may address and
dispose of the claim on direct appeal. Lopez, 343 S.W.3d at 143. But the record
must demonstrate that trial counsel’s performance fell below an objective standard
of reasonableness as a matter of law and no reasonable strategy could justify trial
counsel’s acts or omissions, regardless of counsel’s subjective reasoning. Id.; see
also Menefield, 363 S.W.3d at 593 (when trial counsel is not given opportunity to
explain his actions, “the appellate court should not find deficient performance unless
the challenged conduct was so outrageous that no competent attorney would have
engaged in it” (internal quotations omitted)).
affidavit from appellant’s trial counsel that accompanied the new-trial motion only addressed the evidentiary rulings that counsel believed amounted to a violation of appellant’s right to a fair trial. The affidavit did not address any of counsel’s alleged failings that comprise appellant’s ineffective-assistance-of-counsel complaints of appeal. 27 As to appellant’s argument that his trial counsel was ineffective because he
failed to object to the instructions in the trial court’s charge about defense of a third
person, we have already concluded that some evidence supported the submission of
the instruction on defense of a third person, so trial counsel’s performance did not
fall below an objective standard of reasonableness by not objecting to that
instruction. See, e.g., Odom v. State, Nos. 14-11-00206-CR to 14-11-00212-CR,
2012 WL 1964580, at *5 (Tex. App.—Houston [14th Dist.] May 31, 2012, no pet.)
(mem. op., not designated for publication) (“Trial counsel is not ineffective for
failing to make futile objections.”); Cooper v. State, 707 S.W.2d 686, 689 (Tex.
App.—Houston [1st Dist.] 1986, pet. ref’d) (failure to object to admissible evidence
not ineffective assistance). Thus, we conclude that appellant has not established that
his trial counsel’s performance fell below an objective standard of reasonableness
for failing to object to the trial court’s instructions to the jury about defense of a third
person.
Further, as to appellant’s complaint that his trial counsel was ineffective for
failing to object to the trial court’s instruction to the jury on culpable mental state,
we have also already concluded that any errors in the trial court’s charge to the jury
in defining culpable mental state did not cause egregious harm to appellant. If a jury
charge error does not amount to egregious harm, a defendant cannot show that there
is a reasonable probability that, but for his counsel’s unprofessional errors, the result
28 of the proceeding would have been different. Tottenham v. State, 285 S.W.3d 19,
34 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Because appellant has failed
to show that he suffered egregious harm due to the trial court’s instruction to the jury
on culpable mental state, we conclude that appellant has failed to show that there is
a reasonable probability that, but for his trial counsel’s error, the result of the
proceeding would have been different.
Appellant also asserts that trial counsel was ineffective for failing to
cross-examine the investigating officer and the complainant regarding the
complainant’s history of five arrests for the misdemeanor offense of assault,
including four arrests for the offense of assault of a family member. Texas Rule of
Evidence 609(a) permits evidence of a witness’s criminal conviction to be offered
to attack the witness’s character for truthfulness if the crime was a felony or involved
moral turpitude, the probative value of the evidence outweighs its prejudicial effect,
and it is elicited from the witness or established by public record. TEX. R. EVID.
609(a). But when the criminal conviction is more than ten years old, admission is
barred unless the proponent shows that the probative value of the conviction
substantially outweighs its prejudicial effect. TEX. R. EVID. 609(b).
The complainant’s criminal history, which was provided pretrial to
appellant’s trial counsel, shows that the complainant received “deferred probation”
for the offense of assault of a family member in 2011, and the charges for the
29 remaining other assault offenses were all dismissed. None of the arrests resulted in
final convictions and nothing in the record shows that any of the charged assaults
involved moral turpitude. Appellant’s trial counsel could have reasonably
determined that those arrests were inadmissible for purposes of impeachment or that
cross-examination about those arrests would open the door for the State to offer
rebuttal evidence that was harmful to appellant. Because plausible strategic reasons
exist for declining to cross-examine the investigating officer or the complainant on
the complainant’s prior arrests for the offense of assault, we conclude that appellant
has not established that his trial counsel’s performance fell below an objective
standard of reasonableness.
Finally, appellant argues that trial counsel was ineffective because he did not
interpose a proper objection to Detective Morrison’s testimony about the process of
filing charges and the process he used to evaluate evidence in the case and
recommend that charges be filed against appellant. Although appellant’s trial
counsel objected to the complained-of testimony as improper expert opinion,
appellant asserts that the proper objection would have been to bolstering the
credibility of the complainant and commenting on the appellant’s guilt because
Morrison’s testimony substantiated the State’s position that the complainant was
credible.
30 Even if appellant’s trial counsel erred in failing to object to Detective
Morrison’s passing remark as to the complainant’s credibility, appellant has not
shown that if counsel had made a bolstering objection, the result of the proceeding
would have been different. See Strickland, 466 U.S. 668 at 694. The State brought
Morrison as a witness to testify about the investigative procedure utilized in the case,
and the trial court allowed the testimony because the questions focused on
Morrison’s evaluation of the evidence to present charges to the Harris County’s
District Attorney’s Office, which, the trial court noted, was “exactly what his job is
to do.” Further, even without Morrison’s testimony, the jury could have reasonably
deduced that an investigator found the complainant’s account of the assault to be
credible simply because criminal charges were brought against appellant. And the
trial court’s charge instructed the jury: “You are the exclusive judges of the facts
proved, of the credibility of the witnesses and the weight to be given their
testimony.” Absent evidence to the contrary, we presume that the jury followed the
instructions set forth in the trial court’s charge. Beltran De La Torre v. State, 583
S.W.3d 613, 620 (Tex. Crim. App. 2019); Scott v. State, 555 S.W.3d 116, 124 (Tex.
App.—Houston [1st Dist.] 2018, pet. ref’d). Based on the foregoing, we conclude
that appellant has failed to show that there is a reasonable probability that, but for
his trial counsel’s purported error, the result of the proceeding would have been
different. See Jackson, 973 S.W.2d at 956.
31 We hold that appellant has not satisfied his burden to establish his
ineffective-assistance-of-counsel complaints.
We overrule appellant’s fourth issue.
Modification of Judgment
Here, the trial court’s written judgment does not accurately comport with the
record in this case in that it states that appellant “[p]leaded [t]rue” to the allegations
in a “2nd [e]nhancement [p]aragraph.” The trial court’s written judgment also states
“N/A,” meaning “not applicable,” in regard to the jury’s “[f]inding on 1st
[e]nhancement [p]aragraph.” See Dromgoole v. State, 470 S.W.3d 204, 226–27
(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (judgment incorrectly reflected
trial court’s finding on enhancement paragraph was “n/a,” meaning “not applicable”
(internal quotations omitted)). The record, however, does not reveal that appellant
entered any plea on a “2nd [e]nhancement [p]aragraph.” Further, the record shows
that the jury’s finding on the “1st [e]nhancement [p]aragraph” was “true.”
“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court
judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data
and information to do so[] or make any appropriate order as the law and nature of
the case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, pet ref’d)). This is true no matter who, or if anyone, has called
32 the matter to the attention of the appellate court. See French v. State, 830 S.W.2d
607, 609 (Tex. Crim. App. 1992); Dromgoole, 470 S.W.3d at 226; see also Asberry,
813 S.W.2d at 529–30 (“The authority of an appellate court to reform incorrect
judgments is not dependent upon the request of any party, nor does it turn on the
question of whether a party has or has not objected in the trial court.”).
Accordingly, we modify the trial court’s judgment to state “N/A” in regard to
appellant’s plea to the “2nd [e]nhancement [p]aragraph.” We further modify the
trial court’s judgment to state “True” in regard to the jury’s “[f]inding on 1st
[e]nhancement [p]aragraph.” See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27–28 (Tex. Crim. App. 1993).
Conclusion
We affirm the judgment of the trial court as modified.
Julie Countiss Justice
Panel consists of Justices Keyes, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).