TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00554-CR
Lashai Jean-Baptiste, Appellant
v.
The State of Texas, Appellee
FROM THE 27TH DISTRICT COURT OF BELL COUNTY NO. 79220, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Lashai Jean-Baptiste guilty of aggravated assault with a
deadly weapon and assessed her punishment at two years’ confinement. See Tex. Penal Code §§
22.01(a)(2), .02(a)(2). In accordance with the jury’s recommendation, the trial court suspended
appellant’s sentence and placed her on community supervision for a period of five years. See Tex.
Code Crim. Proc. art. 42A.055. In three issues, appellant contends that her trial counsel was
ineffective for failing to request a defense-of-property instruction, that the trial court violated her
right to due process by failing to consider the full range of punishment when determining the length
of her community supervision, and that “her term of community supervision is stayed pending a
determination of whether she has been finally convicted.” We modify the trial court’s judgment of conviction nunc pro tunc 1 to correct the spelling of appellant’s name and affirm the judgment
as modified.
BACKGROUND
This case arose from a confrontation in May 2018 between appellant, who was then
twenty-two years old, and three people hired by her stepfather, Rhadames Vila, to do yardwork at
the house in Killeen in which he had lived with appellant’s recently deceased mother. The three
people included Patricia Robert, Vila’s girlfriend; Marilyn Bassy, Robert’s cousin; and
Victor Bassy, Marilyn’s husband. The State alleged that appellant threatened Robert with
imminent bodily injury and used or exhibited a firearm during the commission of the offense. 2 At
trial, the State’s witnesses included Robert, the Bassys, Vila, his neighbor, members of law
enforcement, and an animal-control officer. Appellant testified in her case-in-chief.
Robert testified about the charged assault and the circumstances surrounding it. On
May 26, Robert—who had recently begun dating Vila—and the Bassys were doing yardwork at
Vila’s house to prepare it for sale; Vila, who was running an errand, was aware of their presence.
Robert and Marilyn were picking up branches, and Victor was preparing to cut down a tree with a
chainsaw. At the time, Robert had not met appellant. Robert testified that Vila lived in the house
“[w]ith others” and that appellant was “in and out.”
1 The trial court issued a judgment nunc pro tunc on August 15, 2024, to correctly reflect appellant’s plea of not guilty. 2 Two unadjudicated charges of aggravated assault with a deadly weapon were considered
by the trial court during sentencing pursuant to section 12.45 of the Penal Code. See Tex. Penal Code § 12.45 (providing that, with State’s permission, defendant may admit guilt to one or more unadjudicated offenses during sentencing hearing and that, if court takes admitted offense into account in determining sentence for charged offense, prosecution is barred for admitted offense). 2 Appellant and a man, whom appellant identified at trial as her then-boyfriend,
arrived at the house in a vehicle, and appellant told Robert and the Bassys that they were
trespassing on appellant’s property and had to leave. Appellant entered the house, and Robert
called Vila and told him what was happening; he said that she “didn’t need to go [any]where” and
that he was headed home. Appellant exited the house through the garage with her two dogs and
yelled “awful foul language” at Robert and the Bassys, who asked appellant to control her dogs.
Robert told appellant that Vila had invited her and the Bassys to the house, that he would return
shortly, and that appellant could call him for confirmation. Appellant “didn’t care” and “wanted
[them] off the property.”
There was some confusion in Robert’s testimony as to what happened next. She
first testified that appellant, after going to her vehicle to get a gun, approached Robert and Marilyn,
who were on the front porch, and pointed the gun at their faces from a distance of around six-to-
eight feet. Robert was afraid, and appellant told them she was going to “take [them] out,” “kill”
them, and “shoot” them. On cross-examination, however, Robert testified that appellant had the
gun when she came out of the house: “She comes back outside and stands in front of me and my
cousin and started cussing us out and telling us we need to leave. And she pulled a gun on us.”
At some point, Victor started to cut down the tree, and appellant yelled at him to
stop. Her dogs ran at him and bit him on the legs. When he threatened to “cut the dogs with the
saw,” she put a gun to his head and said that he “wasn’t going to cut her dogs.” He was able to
escape from the dogs by kicking and by swinging the chainsaw. The police were called, and
appellant left with her dogs and the gun before they arrived.
Like Robert, Marilyn and Victor testified regarding the confrontation on May 26.
Marilyn testified that when appellant exited the garage with her dogs, they ran toward Victor and
3 attacked him. He swung the chainsaw only after they tried to bite him. According to Marilyn,
appellant screamed, “Don’t kill my dogs,” ran to her car, and retrieved a gun; she told Victor, “[I]f
you kill my dogs, I’m going to kill you.” Marilyn testified that appellant might have said that the
house was her property, but Marilyn could not remember if appellant asked them to leave. Marilyn
also testified that appellant left after her boyfriend, whom Marilyn did not see do anything, begged
appellant to get into the car. Asked whether appellant had pointed the gun at Marilyn and Robert,
Marilyn further testified that “she pointed it toward us like that (indicating), but really toward my
husband.” Marilyn added that appellant had waved the gun back and forth; that its barrel had
swung past Marilyn; and that although she had been scared, appellant had threatened only Victor
with the gun.
Victor testified that appellant warned him he should not be on her mother’s
property. He responded that Vila had asked him to cut down trees and that he would not leave
unless directed to by Vila. Victor thought that the incident was over when appellant went inside,
but she then released her dogs, which attacked him. One of the dogs bit him, and he told her to
restrain it before he used the chainsaw to cut off its head. Although he had not seen her get the
gun, she pointed it at him from a few feet away and replied that she would kill him if he hurt her
dogs. He testified that appellant pointed the gun only at him. He also testified that his threat to
kill the dog “was a lie,” that he did not “fight the dog,” and that he turned off his chainsaw when
the dog bit him. He exited the yard through a gate and called the police. Because he was bitten,
he had to receive rabies shots at the hospital.
4 Vincent White, Vila’s neighbor, testified that appellant and her brother Francois 3
had grown up next door, that their mother died around six months before the charged offense, and
that appellant was still “pretty upset” about her mother’s death at the time of the offense. White
testified that while in his backyard, he heard an argument between “a young lady and a guy that
was trimming trees”; when he looked, White saw that a dog was attacking the landscaper and that
appellant was brandishing a gun, holding it above her shoulder and waving it around, and
threatening to shoot the landscaper. White did not hear the landscaper threaten to kill appellant’s
dog; rather, the man was “just kind of wielding the chainsaw towards the dog so the dog wouldn’t
bite him.”
Vila testified about appellant’s living situation and his understanding of what had
occurred between appellant and the Bassys and Robert, whom he testified was his girlfriend and
who had lived with him at the time of the offense. Vila and his wife, who passed in
November 2017, bought the Killeen house together in 2004 or 2005; their names were on the deed
and the promissory note for the mortgage. Appellant, Vila’s stepdaughter, had lived in the house
until she left for college before her mother’s death. Although appellant had a room in the house
and in May 2018 had a key, 4 she did not live there at the time of the offense; she had left her dogs
with Vila in 2017, and he would see her every two or three weeks when she would let them out,
stay for a little while, and “disappear.” He told her of his intention to sell the house, and two weeks
before the offense, she collected half of her things and told him that she was getting married and
moving to Louisiana.
3 Francois was not at the house on May 26, 2018. 4 Vila testified that he changed the locks after the offense. 5 Vila hired the Bassys to do yardwork on May 26. While Vila was on his way home
from church, Robert called him to report that appellant was at the house and was “acting crazy.”
Robert told him that appellant had pulled a gun on her and that appellant’s dog had bitten Victor.
When he arrived at the house, appellant was leaving and told Vila—who is from Puerto Rico—
“I’m going to send you back to Puerto Rico in a body bag.”
Bell County Sheriff’s Office patrol supervisor Jeffrey McKenzie, who in May 2018
was a patrol deputy, testified to the content of a recorded conversation he had with appellant after
the confrontation on May 26 and after two additional incidents in which appellant had gone to the
house in Killeen. Appellant told McKenzie that the house was her mother’s and that someone had
trespassed on the property. She explained that her actions resulted from her being upset that Vila
had a girlfriend so soon after her mother’s death and that his girlfriend was at the house. McKenzie
agreed that appellant appeared to be “pretty upset about her mother” and testified that she showed
him a valid concealed-carry permit.
Appellant testified about her connection to the Killeen house and about the events
of May 26. She and Francois had grown up in the house; appellant kept her dogs and belongings
there and would check on her dogs every day when she was in town. The tree that Victor had been
preparing to cut down 5 was special to appellant because her mother—who in 2017 passed away
from an illness at only fifty years old—had planted it and because one of appellant’s dogs had a
“special bond” with it. Appellant’s understanding was that because her mother had died without
a will, the house was “community property” and on her mother’s death “became [appellant’s] and
5 Appellant agreed that Victor “was tending to a tree and appeared to be cutting some tree limbs.” 6 [Francois’s] portion of her property as well.” Appellant did not want Vila to sell the house “in
particular” but had not discussed the house with him and was unaware that he intended to sell it.
Although “[e]verything was fine” between appellant and Vila at the time of the
offense, her relationship with Robert was more complicated. Appellant testified that she had never
met Robert before May 26. However, she also testified that she believed Robert had been involved
in the disappearance of family heirlooms and china from the house; that appellant warned Vila
about Robert in February 2018; and that in the weeks before the offense, appellant and her
boyfriend entered the house late at night and slept there but did not encounter Robert—whom
appellant testified Vila must have snuck out of the house the following morning.
Appellant went to the house with her boyfriend around 11 a.m. on May 26 to pick
out an outfit for a date. She testified:
I pulled into the driveway and I see three people I had never met before. And I asked them to get off the property. And I guess Patricia, she shook my hand and she was like, I’m Patricia. And I said, well, I’m Lashai. Thank you. And can you please leave the property. And she told me, no, we’re not going anywhere. And I just left her in the front door.
When appellant entered the house, she saw that some things were “out of order”
and others, which belonged to her and Francois, were missing. She let her dogs out through the
garage and then went to her room and grabbed the outfit and a gun. She took the gun because the
family heirlooms and china had already gone missing, and she was also carrying important
personal items. While she was in her room, her boyfriend came in and told her that her dog was
“going out of control”; she “immediately ran outside to deescalate the situation.”
After first putting her belongings in her car, appellant attempted to restrain her dog
but was unable to pull it away from Victor. She repeatedly asked him to put down his garden
7 shears, 6 but he refused and almost hit her with them, so she went to her car and retrieved a gun. 7
She agreed that she did so because he had threatened to cut off the dog’s head with the shears, and
she wanted to protect both herself and her dogs. She testified that during their initial interaction,
Victor had come toward her with his “weapon” and had moved “closer and closer.” She pointed
the gun at him, and he asked her if she was going to kill him over a dog. She “told him yes,” and
he backed up and left the property. At her boyfriend’s suggestion, she closed the gate to the yard.
Appellant denied pointing the gun at Robert, testified that she pointed it only at
Victor, and agreed that it was used “only by the tree, in the yard near where the situation was with
the dog.” Asked if appellant was “contend[ing] that Robert was lying” about appellant pointing a
gun at her, appellant responded, “Yes, I am contending [that] to the utmost.” Similarly, appellant
agreed that “it was a grand conspiracy, that all of these people came up with a story about [her]
pointing a gun at everybody’s head[s].”
According to appellant, Robert called Vila “at the very end of the incident” after
appellant had already gotten into her car. Appellant waited until he got home, but when she tried
to talk to him, he pointed at her and said, “I’m calling the police and you’re going to jail.” She
cursed at him and drove away before police arrived because she “didn’t want to talk to them while
they were there. It was too heated . . . . [She] needed to cool down.” She denied threatening to
put Vila in a body bag.
6 Appellant testified that she did not recall seeing a chainsaw. 7 It is unclear from the record why this was necessary given that appellant testified she had
taken a gun from her room. She testified that she owned two guns. Yet after testifying that she retrieved a gun from her car, she then testified that there had not been a gun in the car; rather, one of the guns was kept at the Killeen house and the other was stored in her aunt’s house. 8 The jury found appellant guilty. Verbally and in the trial court’s punishment
charge, the court instructed jurors that “the duration of the period of community supervision will
be determined by the Court. It may not be for a period longer than 10 years, nor a period shorter
than two years.” Defense counsel likewise argued in closing that it “would be up to the [j]udge as
far as the length of probation.” 8 The jury assessed appellant’s punishment at two years’
confinement and recommended that her sentence be suspended and that she be placed on
community supervision.
At a hearing three months later on August 1, 2024, the trial court and parties
expressed confusion over whether the trial court or jury was to determine the length of the
community-supervision period as well as over how long it could be. Specifically, there was
confusion as to whether the minimum probation term was two years or five years, and the trial
judge went off-record after expressing a willingness to be “schooled.”
When the record resumed, the trial court read victim-impact statements. The State
did not recommend a specific length of community supervision, and defense counsel asked the
trial court “to consider probating the jury sentence for a period of two years under all the
circumstances.” The court sentenced appellant in accordance with the jury’s verdict and placed
her on community supervision for a period of five years. This appeal followed.
8 The terms “community supervision” and “probation” may be used interchangeably. See Shortt v. State, 539 S.W.3d 321, 322 n.1 (Tex. Crim. App. 2018). 9 DISCUSSION
I. Ineffective Assistance of Counsel
In appellant’s first issue, she contends that trial counsel was ineffective for failing
to request a jury instruction on defense of property. Specifically, she argues that she lawfully
possessed the land on which the offense occurred, reasonably believed Robert and the Bassys were
trespassing, admitted the charged conduct, and used reasonable force. Citing the Court of Criminal
Appeals’ decision in Vasquez v. State, she asserts that because counsel failed to request a
defense-of-property instruction, “the jury had no vehicle with which to acquit” her and that,
consequently, “[n]o reasonable trial strategy can account for failure to request the instruction[].”
See 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). The State responds that appellant has failed to
prove both deficient performance and prejudice and that Vasquez is distinguishable because
appellant “had a much stronger defense centered around the idea that [a]ppellant had never
threatened Ms. Robert[] with a gun which would have been compromised by also asserting a
defense of property defense.”
To establish ineffective assistance of counsel, an appellant must demonstrate by a
preponderance of the evidence both deficient performance by counsel and prejudice suffered by
the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Miller v. State, 548 S.W.3d 497,
499 (Tex. Crim. App. 2018). The appellant must first demonstrate that counsel’s performance fell
below an objective standard of reasonableness under prevailing professional norms. Strickland,
466 U.S. at 687–88; Ex parte Scott, 541 S.W.3d 104, 115 (Tex. Crim. App. 2017). The appellant
must then show the existence of a reasonable probability—one sufficient to undermine confidence
in the outcome—that the result of the proceeding would have been different absent counsel’s
deficient performance. Strickland, 466 U.S. at 694; Burch v. State, 541 S.W.3d 816, 820 (Tex.
10 Crim. App. 2017). “Failure to make the required showing of either deficient performance or
sufficient prejudice defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700; accord Perez
v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).
Appellate review of counsel’s representation is highly deferential; we must
“indulge in a strong presumption that counsel’s conduct was not deficient.” Nava v. State,
415 S.W.3d 289, 307–08 (Tex. Crim. App. 2013); see Strickland, 466 U.S. at 689. To rebut that
presumption, a claim of ineffective assistance must be “firmly founded in the record,” and “the
record must affirmatively demonstrate” the meritorious nature of the claim. Menefield v. State,
363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392
(Tex. Crim. App. 2005)). Rarely will the trial record by itself be sufficient to demonstrate an
ineffective-assistance claim. Nava, 415 S.W.3d at 308; see Prine v. State, 537 S.W.3d 113, 117
(Tex. Crim. App. 2017) (observing that “record on direct appeal is generally insufficient to show
that counsel’s performance was deficient”). If trial counsel has not been afforded the opportunity
to explain the reasons for his conduct, we will “‘assume a strategic motive if any can be
imagined,’” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013) (quoting Andrews
v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005)), and will not find counsel to be deficient
unless the challenged conduct was “‘so outrageous that no competent attorney would have engaged
in it,’” Nava, 415 S.W.3d at 308 (quoting Menefield, 363 S.W.3d at 593); see also Ex parte
Jimenez, 364 S.W.3d 866, 883 (Tex. Crim. App. 2012) (“The mere fact that another attorney might
have pursued a different tactic at trial does not suffice to prove a claim of ineffective assistance
of counsel.”).
Failure to request a jury instruction on a defensive theory can constitute ineffective
assistance of counsel. Browne v. State, 483 S.W.3d 183, 188 (Tex. App.—Austin 2015, no pet.).
11 “To demonstrate deficient performance based on the failure to request a jury instruction, an
appellant must show that he was entitled to the instruction.” Navarro v. State, 623 S.W.3d 97, 113
(Tex. App.—Austin 2021, pet. ref’d); see Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App.
2000). Trial counsel’s failure to request an instruction which is inapplicable, inappropriate, or to
which an appellant was not entitled is not ineffective assistance. See Cummings v. State,
401 S.W.3d 127, 132 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Aldaba v. State,
382 S.W.3d 424, 432 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d); see also Vasquez,
830 S.W.2d at 950 n.3 (“[J]ust because a competent defense attorney recognizes that a particular
defense might be available to a particular offense, he or she could also decide it would be
inappropriate to propound such a defense in a given case.”). Even when a defendant is entitled to
a certain instruction, trial counsel may be not ineffective for failing to request it “because defensive
issues ‘frequently depend upon trial strategy and tactics.’” Okonkwo, 398 S.W.3d at 697 (quoting
Tolbert v. State, 306 S.W.3d 776, 779–82 (Tex. Crim. App. 2010)).
Defense of property—codified in section 9.41 of the Penal Code—is a justification
or “confession and avoidance” defense. 9 See Alonzo v. State, 353 S.W.3d 778, 782 (Tex. Crim.
App. 2011) (“An assertion of a Chapter 9 justification defense is an assertion that the defendant’s
actions were justified.”); Barron v. State, 629 S.W.3d 557, 564 (Tex. App.—Eastland 2021, pet.
ref’d) (“Justification defenses are based on the common law doctrine of confession and
9 Section 9.41 provides that “[a] person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.” Tex. Penal Code § 9.41. “The threat of force is justified when the use of force is justified,” and “a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.” Id. § 9.04; cf. id. § 9.42 (governing use of deadly force to protect property). 12 avoidance.”); see also Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007) (equating
“confession-and-avoidance” and “justification” defenses and explaining that latter is “‘one that
defines conduct otherwise criminal, which under the circumstances is socially acceptable and
which deserves neither criminal liability nor even censure” (quoting Wayne LaFave, Substantive
Criminal Law § 9.1(a)(3) at 7 (2d ed. 2003) (internal quotes omitted))); cf. Rodriguez v. State,
392 S.W.3d 859, 860–61 (Tex. App.—Amarillo 2013, order) (“A section 9.42 defense of property
instruction is, on its face, a confession-and-avoidance or ‘justification’ type of defense.”). To show
entitlement to such a defense, a defendant must admit the charged conduct, including both the act
or omission and the requisite mental state. See Rogers v. State, 677 S.W.3d 705, 714 (Tex. Crim.
App. 2023); Gamino v. State, 537 S.W.3d 507, 512 (Tex. Crim. App. 2017); Juarez v. State,
308 S.W.3d 398, 404 (Tex. Crim. App. 2010). “Admitting to the conduct does not necessarily
mean admitting to every element of the offense.” Gamino, 537 S.W.3d at 512. Rather, the
defendant is required to show only that entitlement to the defensive instruction was raised by
defensive evidence and that the defendant made a prima facie case for the defense. See Rogers,
677 S.W.3d at 714–15; Shaw, 243 S.W.3d at 659.
Trial counsel could have reasonably concluded that appellant did not admit to the
charged conduct because she testified that she pointed the gun only at Victor and only when she
was near the tree. She expressly denied pointing the gun at Robert, the victim of the charged
offense, who the evidence showed was on the house’s front porch; called Robert a liar for testifying
that appellant pointed a gun at her; and agreed that there was a “grand conspiracy” to concoct a
story that she pointed the gun “at everybody’s head[s].” No defensive evidence showed that
appellant pointed the gun at Robert, much less that she did so intentionally or knowingly. See
Juarez, 308 S.W.3d at 404 (confession-and-avoidance doctrine “requires an admission to the
13 conduct, which includes both the act or omission and the requisite mental state”); Tex. Penal Code
§ 22.01(a)(2) (person commits assault if she “intentionally or knowingly threatens another with
imminent bodily injury”).
Appellant argues in her brief that she admitted to the charged conduct by testifying
that she pointed the gun at Victor:
Jean-Baptiste did not have to admit that she pointed a gun at Patricia Robert. She was not charged with pointing a gun at Patricia Robert. She was charged with intentionally or knowingly threatening Patricia Robert with imminent bodily injury . . . . Jean-Baptiste certainly admitted to the nature of her conduct and the circumstances surrounding her conduct. Merely displaying a firearm without pointing it can constitute threat of imminent bodily injury.
Yet trial counsel would not have been unreasonable for refusing to urge such a
theory as the basis for appellant’s entitlement to a defense-of-property instruction. We have found
no case in which a defendant was convicted of aggravated assault with a deadly weapon when the
evidence showed that the defendant pointed a gun only at someone other than the victim named in
the indictment, did not verbally threaten the named victim, and was not near the named victim
when using or exhibiting the gun. The three cases cited by appellant—none of which is binding
on this Court or involves a justification defense—are distinguishable. In Tidwell v. State, the court
of appeals concluded that the evidence was sufficient to support a finding that the defendant
threatened the victim with imminent bodily injury because while holding a revolver, she told him
that she would shoot him if he did not leave. See 187 S.W.3d 771, 773, 775 (Tex. App.—
Texarkana 2006, pet. struck). In Gaston v. State, our sister court concluded that the evidence was
sufficient for a factfinder to find that the defendant “used” a deadly weapon to assault the victim
where he entered the walk-in freezer she was inside of while holding a shotgun at his side, clamped
his hand over her mouth, and told her to “hush.” 672 S.W.2d 819, 820–21 (Tex. App.—Dallas 14 1983, no pet.). And the reviewing court in Alexander v. State concluded that the trial court could
have rationally inferred that the defendant used or exhibited a pistol in furtherance of a threat given
that the defendant was holding a pistol at his side, stood two feet away from the victim, and accused
the victim, in a “[d]ense” tone, of having said that he was glad the defendant had been “locked
up.” See No. 14-09-00574-CR, 2010 WL 1992829, at *1, *3 (Tex. App.—Houston [14th Dist.]
May 20, 2010, pet. ref’d) (mem. op., not designated for publication). The defendant then left the
store, returned while carrying the pistol with his “finger in the trigger guard,” and knocked the
victim unconscious. Id. at *1. Unlike the present case, all three cases involved threats addressed
to the victim of the charged offense and either a verbal threat to shoot the victim or physical contact
with the victim while holding a firearm.
This case is likewise distinguishable from Vasquez, in which a defendant who had
been charged with unlawful possession of a firearm by a felon testified that he was kidnapped
while serving a prison sentence; that he managed to grab a gun and escape from his kidnappers;
and that he was subsequently arrested. 10 Vasquez, 830 S.W.2d at 950. The Court of Criminal
Appeals stated that counsel should have recognized that the defendant had “nothing to lose by
requesting a defensive instruction” on necessity and that without the instruction, the defendant’s
conviction was a “foregone conclusion.” Id. at 951. In a footnote, the court noted that counsel
“failed to conduct any independent investigation into the facts”; “had not fully researched the law
regarding the offense”; had a “total lack of awareness about which defenses, if any, were available
to his client”; “advised the trial court that his presentation of a defense came from appellant’s
10 The defendant was a “building tender” who was permitted to reside outside of the prison
walls and who was kidnapped from a hospital. Vasquez v. State, 830 S.W.2d 948, 950 (Tex. Crim. App. 1992). 15 research in Corpus Juris”; and failed to offer evidence of the kidnapping after the State’s attorney
opened the door to the evidence in cross-examination. Id. at 951 n.4.
Here, even if appellant had been entitled to a defense-of-property instruction, her
guilt was not a foregone conclusion in the instruction’s absence, and trial counsel had a valid
defensive theory that he argued in closing. Counsel, who had secured the inclusion in the charge
of instructions on the lesser-included-offenses of deadly conduct and assault, argued that the State
had failed to prove beyond a reasonable doubt that appellant threatened Robert with the gun.
Counsel emphasized inconsistencies in Robert’s testimony, underscored evidence that the gun was
involved only “in protection of the animals” and that Robert was not near appellant when she
brandished the gun, and asserted that appellant was a more credible witness than Robert. As
counsel explained, “[Appellant] didn’t threaten Ms. Robert with her gun. She intervened with
respect to these dogs . . . . [W]e don’t think it’s close with regards to proof beyond a reasonable
doubt of a threat to Ms. Robert.” Counsel suggested that the jury could find appellant guilty of
deadly conduct if it believed she had been reckless.
As a justification defense, a defense-of-property instruction would have been
incongruous with trial counsel’s theory that the State had failed to meet its burden of proof on
every element of the charged offense. See Shaw, 243 S.W.3d at 659 (explaining that justification
defense “does not negate any element of the offense” but “only excuses what would otherwise
constitute criminal conduct” and reasoning that defendant was “not entitled to a defensive
instruction with respect to evidence that does nothing more than negate an element of the offense”);
see also Wert v. State, 383 S.W.3d 747, 756 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(determining that defendant had not established that trial counsel was deficient for failing to
request defense-of-property instruction because counsel’s strategy—“to claim [defendant]
16 accidentally pushed his girlfriend in an attempt to retrieve his shoes”—was “inconsistent with
asserting a defense of property,” which “involves an intentional use of force to recover one’s
property”); cf. Okonkwo, 398 S.W.3d at 697 (concluding that “counsel was not objectively
unreasonable by failing to request an instruction on mistake of fact because that theory was
inconsistent with a theory that counsel advanced at trial, and it would have misled the jury as to
the State’s burden of proof”).
On this record, we conclude that appellant has failed to show that counsel’s
performance was so outrageous that no competent attorney would have engaged in it. See Nava,
415 S.W.3d at 308. This is all the more so given the strong presumption against counsel’s
deficiency, the fact that defensive issues are frequently matters of trial strategy and tactics, and a
competent counsel’s discretion to reject available defenses as inappropriate. See id. at 307–08;
Okonkwo, 398 S.W.3d at 697; Vasquez, 830 S.W.2d at 950 n.3; see also Marlow v. State,
886 S.W.2d 314, 318 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (“The theories of defense
to be included in the jury charge generally fall within counsel’s wide latitude to make strategic and
tactical decisions . . . . Trial counsel may pursue one reasonable defensive theory and exclude
others; this is within his constitutionally protected independence under Strickland.”). Because we
conclude that appellant has failed to show that counsel was deficient, we need not address the
prejudice prong. Strickland, 466 U.S. at 700; Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.
App. 2009) (“An appellant’s failure to satisfy one prong of the Strickland test negates a court’s
need to consider the other prong.”). We overrule appellant’s first issue.
17 II. Failure to Consider Full Range of Community-Supervision Period
In her second issue, appellant contends that the trial court violated her right to due
process by failing to consider the full available range of time for her community-supervision
period. Referencing the discussion between the trial court and the parties at the hearing in
August 2024, she posits that the State convinced the court that “the minimum term of community
supervision that could be assessed was five years.” The State argues that appellant has failed to
overcome the presumption of regularity in court proceedings, that the record shows the trial court
was aware of the permissible range for the duration of her community supervision, and that “there
is clearly insufficient evidence in this matter to establish clear evidence of bias on the part of the
trial court.”
“A court’s arbitrary refusal to consider the entire range of punishment constitutes a
denial of due process.” Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014); see Ex parte
Brown, 158 S.W.3d 449, 456 (Tex. Crim. App. 2005). “However, a trial court may consider
non-arbitrary factors, and we presume that the trial court considered the full range of punishment
absent evidence to the contrary.” Jacobs v. State, 720 S.W.3d 217, 220 (Tex. App.—Eastland
2025, no pet.). The trial court is not required to state expressly that it considered the full range of
punishment before assessing punishment. Id. at 223.
The Court of Criminal Appeals has noted in dicta that “the prevailing weight of
decisional authority in our state suggests that ordinary community supervision is
punishment.” Shortt v. State, 539 S.W.3d 321, 325 & n.6 (Tex. Crim. App. 2018); see Green
v. State, 706 S.W.2d 653, 656 n.5 (Tex. Crim. App. 1986) (recognizing “that probation,
substantively, is a type of punishment”). We therefore assume without deciding for purposes of
18 this appeal that the trial court’s failure to consider the full range of time for which appellant was
eligible to be placed on community supervision would have violated her due-process rights.
Relatedly, although cases in this area of law are almost uniformly concerned with
the potential for bias and partiality, see Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App.
2006) (characterizing challenged judicial comments as “clearly distinguishable from those cases
where appellate courts have found either partiality of the trial judge or that the trial judge imposed
a predetermined sentence”), the Court of Criminal Appeals has at least implicitly recognized that
an appellant may allege a due-process violation arising from a judge’s mistake at to the proper
range of punishment, see Grado, 445 S.W.3d at 740. In Grado, the appellant conceded that the
sentencing judge “was not biased per se, but rather mistaken as to the proper range of punishment.”
Id. The Court of Criminal Appeals agreed:
By all accounts, it appears the judge attempted to conscientiously follow the law and consider the range of punishment for Grado’s offense, including continuing his community-supervision term. However, the judge’s mistaken belief that the particular possession offense carried a minimum of ten-year’s confinement, together with Grado’s underlying sentence of ten-years’ confinement, resulted in the combined mistaken belief that upon revocation Grado faced a determinate sentence of ten years’ confinement. We find the nature of Grado’s sentencing does not equate to the intentional and deliberate partiality that infected those judicial proceedings we previously found intolerable.
Id. Still, the court concluded that the right the appellant sought to vindicate was “one that is a
significant feature of our judicial system” and that “speaks to a broader concern—the integrity of
judicial sentencing proceedings.” Id. at 741.
The issue in Grado was whether, after failing to object at trial, the appellant could
raise a claim on appeal that the trial court had failed to consider the full range of punishment; the
Court of Criminal Appeals held that “the right to be sentenced after consideration of the entire
19 applicable range of punishment is a category-two Marin right” and is not procedurally defaulted
by inaction. Id. at 743.
When reviewing alleged errors like this one, it is important to remember that “[i]t
is a cardinal rule of appellate procedure” that we “must indulge every presumption in favor of the
regularity of the proceedings and documents in the lower court.” McCloud v. State, 527 S.W.2d 885,
887 (Tex. Crim. App. 1975); see Jones v. State, 77 S.W.3d 819, 822 (Tex. Crim. App. 2002) (“[I]n
the absence of evidence to the contrary, this Court presumes the regularity of the trial court’s
judgment and records.”); Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (“The
presumption of regularity is a judicial construct that requires a reviewing court, absent evidence
of impropriety, to indulge every presumption in favor of the regularity of the proceedings and
documents in the lower court.”). The appellant has the “heavy burden” of overcoming the
presumption of regularity of the judgment and proceedings. Lee v. State, 39 S.W.3d 373, 376
(Tex. App.—Houston [1st Dist.] 2001, no pet.). When the record is silent, the presumption is not
rebutted. See Word v. State, 206 S.W.3d 646, 652 (Tex. Crim. App. 2006) (rejecting appellant’s
invitation to interpret silent record as raising presumption of noncompliance with statutory
requirements); Frame v. State, 615 S.W.2d 766, 770 (Tex. Crim. App. 1981) (stating that “where
the record is silent, there is a presumption that the procedural rules were complied with”);
Housewright v. State, 573 S.W.2d 233, 234, 236 (Tex. Crim. App. 1978) (applying presumption
of regularity because it did not “affirmatively appear from the record” that statute was violated).
In the present case, because of the jury’s recommendation, the trial court was
required to suspend appellant’s sentence and place her on community supervision “for any period
permitted under Articles 42A.053(d) and (f), as appropriate.” Tex. Code Crim. Proc. art. 42A.055.
As relevant here, the Code of Criminal Procedure provides that in a felony case, the minimum
20 period of community supervision is the same as the minimum term of imprisonment applicable to
the offense, and the maximum period of community supervision is ten years for a felony other than
a third-degree felony. Id. art. 42A.053(d)(1)–(2)(A). As appellant was found guilty of a second-
degree felony, the minimum term of imprisonment applicable to the offense was two years. See
Tex. Penal Code § 12.33(a).
Appellant maintains that the following exchange shows that the trial court
mistakenly thought that it had to place her on community supervision for at least five years:
THE COURT: My reading of [the jury’s punishment verdict] is they recommended two years[’] probation. Is that everyone’s understanding?
THE STATE: Well, it’s kind of new to me, Judge. I thought the Court decides how long the probation would be, but the prison sentence that would be probated would be for two years.
THE COURT: The terms and conditions are up to the Court.
THE STATE: Oh, okay.
THE COURT: Not the time.
THE STATE: Does it have to be a minimum five years?
THE COURT: It does. This is confusing.
Against the trial court’s brief statement, “It does,” the State on appeal emphasizes
that the court previously instructed the jury correctly that the court could place appellant on
community supervision for two-to-ten years; that the record reflected an off-record discussion of
indeterminate duration; and that when trial resumed, defense counsel requested that the court
“consider probating the jury sentence for a period of two years” with no correction or suggestion
of surprise from the trial court or the State.
21 We agree with the State that the trial court’s statement, when viewed against the
entirety of the record, is insufficient to overcome the presumption of regularity. As the State notes,
there is evidence that the trial court was aware of the proper community-supervision range and
provided it in both written and verbal instructions to the jury three months before the hearing at
which the contested statement was made. Moreover, the court’s remark that it understood the jury
to have recommended a period of two years of community supervision would be inconsistent with
its almost immediately agreeing with the State that the community-supervision period had to be at
least five years. It is also possible that the court might simply have misspoken. And the record is
silent as to what occurred off-record as well as how much time passed before the proceeding went
back on-record. It is telling that the court’s last statement before going off-record was that it was
open to being “schooled.” It is even more telling that when defense counsel requested two years
of community supervision, neither the court nor State expressed an understanding that the
requested duration would be three years lower than the permissible floor.
For these reasons, we conclude that appellant has failed to overcome—particularly
in light of the record’s silence as to what occurred off-record—the twin presumptions of the
proceeding’s regularity as well as of the trial court’s consideration of the full range of punishment.
See Light, 15 S.W.3d at 107; Jacobs, 720 S.W.3d at 220. We overrule her second issue.
III. Stay of Community-Supervision
In her third issue, appellant contends that “because [she] has filed a notice of appeal,
her term of community supervision is stayed pending a determination of whether she has been
finally convicted.” She does not allege, however, that there has been any attempt to enforce the
22 terms and conditions of her community supervision, and for that reason, the State argues that the
issue is not yet ripe for appellate review. We agree.
Appellant is correct that “a judgment of conviction is not final while the conviction
is on appeal” because it is possible that “the trial court’s judgment ‘could be retroactively vitiated
by the mere filing of a . . . notice of appeal.’” Lundgren v. State, 434 S.W.3d 594, 598 (Tex. Crim.
App. 2014) (quoting Milburn v. State, 201 S.W.3d 749, 753–54 (Tex. Crim. App. 2006)).
Accordingly, “if a defendant files a timely and effective notice of appeal, that filing stays the
commencement of the community-supervision term imposed until appellate mandate has issued
affirming the judgment of conviction.” Id.
But “Texas courts are not empowered to give advisory opinions—a prohibition that
extends to cases that are not ripe for review.” Petetan v. State, 622 S.W.3d 321, 334 (Tex. Crim.
App. 2021). The ripeness doctrine protects against interference until a decision has been
formalized and its effects have been felt by the challenging parties. Latson v. State, 440 S.W.3d 119,
122 (Tex. App.—Houston [14th Dist.] 2013, no pet.). “An issue is ripe when the facts are
sufficiently developed so that an injury has occurred or is likely to occur, rather than being
contingent or remote.” Petetan, 622 S.W.3d at 334 (internal quotation marks omitted). “‘Thus,
the ripeness analysis focuses on whether a case involves uncertain or contingent future events that
may not occur as anticipated or may not occur at all.’” Id. (quoting Patel v. Texas Dep’t of
Licensing & Regul., 469 S.W.3d 69, 78 (Tex. 2015)).
Appellant has not asserted, much less offered evidence, that there has been any
attempt to enforce the terms and conditions of her community supervision or that such an attempt
is likely to occur during the pendency of her appeal. Consequently, her claim contemplates
precisely the sort of contingent, uncertain, or remote injury that is not ripe for review in this Court.
23 See id.; see also Latson, 440 S.W.3d at 122 (“In determining whether an issue is ripe, we weigh
the fitness of the issues for judicial decision against the hardship to the parties of withholding
court consideration.”). 11 We therefore overrule her third issue. Cf. Anastassov v. State,
664 S.W.3d 815, 824 n.10 (Tex. Crim. App. 2022) (“We are unaware of any entity’s attempt to
improperly collect consecutive fines in this case, and therefore any complaint regarding the
improper collection of fines is not yet ripe for review.”).
IV. Modification
The judgment form in this case recites appellant’s surname as “Jean-Baptist.” At
trial, appellant testified that her surname was in fact “Jean-Baptiste, J-E-A-N-B-A-P-T-I-S-T-E,”
and that the indictment was missing the final “e.” During the guilt-innocence charge conference,
the trial court noted that “[t]he name of Baptiste has been corrected on the charge with an E added
to the end of it. I am also making those changes to the indictment by the agreement of the parties
to correct the spelling error.” 12 The jury charges and verdict forms reflected the correct spelling
of appellant’s surname.
Appellate courts have the authority to correct or reform a judgment when the
necessary information is available to do so. See Tex. R. App. P. 43.2(b) (authorizing court of
appeals to modify trial court’s judgment and affirm as modified); Bigley v. State, 865 S.W.2d 26,
11 Appellant in effect requests declaratory relief, a procedure that “has no application in criminal proceedings.” Ex parte Williams, 786 S.W.2d 781, 782 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d); see Ex parte Hammonds, 230 S.W.2d 820, 821 (Tex. Crim. App. 1950) (recognizing that declaratory judgments are not recognized in criminal cases in Texas); see also Halliburton Energy Servs., Inc. v. Axis Techs., LLC, 444 S.W.3d 251, 262 (Tex. App.—Dallas 2014, no pet.) (“A declaratory judgment is a remedial measure that determines the rights of the parties and affords relief from uncertainty with respect to rights, status, and legal relations.”). 12 The indictment in the record is unamended. 24 27–28 (Tex. Crim. App. 1993). Accordingly, we modify the judgment nunc pro tunc in trial court
cause number 79220 to reflect that appellant’s name is “Lashai Jean-Baptiste.” See Tiscareno
v. State, 608 S.W.3d 434, 443 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d) (concluding that
“the spelling of appellant’s name in the judgment does not accurately comport with the record in
this case” and modifying judgment although modification was not requested by either party).
CONCLUSION
Having overruled appellant’s issues on appeal and having modified the judgment
nunc pro tunc in trial court cause number 79220 as set out above, we affirm the judgment nunc pro
tunc as modified.
__________________________________________ Rosa Lopez Theofanis, Justice
Before Justices Triana, Theofanis, and Crump
Modified and, as Modified, Affirmed
Filed: April 3, 2026
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