MEMORANDUM OPINION No. 04-10-00414-CR
Ronald Buddy MAHAVIER, Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Wilson County, Texas Trial Court No. 09-02-016-CRW Honorable Donna S. Rayes, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: June 1, 2011
AFFIRMED
This appeal raises issues about the defensive charge of self-defense against multiple
assailants. Ronald Buddy Mahavier stabbed and killed a man during an altercation at a bar and
was convicted by a jury of murder. Although the trial court charged the jury on self-defense as
to one assailant (the decedent), a jury charge on self-defense against multiple assailants was
neither requested nor given. On appeal, Mahavier contends: (1) his due process right to a fair
and impartial trial was violated because the jury charge did not contain an instruction on self- 04-10-00414-CR
defense against multiple assailants; and (2) his trial counsel rendered ineffective assistance of
counsel by failing to request such a defensive instruction. Because the issues in this appeal
involve the application of well-settled principles of law, we affirm the trial court’s judgment in
this memorandum opinion.
DUE PROCESS RIGHTS
Mahavier contends that he “was denied a due process right to a fair and impartial trial by
his trial counsel’s failure to either request or object to the omission of a multiple assailant self-
defense instruction.” Mahavier asserts that he “had an absolute right to have the jury consider
the issue [of] self-defense [against] multiple assailants and the denial of that right resulted in a
denial of due process.”
In his brief, Mahavier recognizes that an “absolute right” is distinct from a “forfeitable
right that must be requested,” citing Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App.
1993). Mahavier cites no authority, however, to support his contention that a jury charge
containing an instruction on self-defense against multiple assailants is an “absolute right.”
Moreover, such a contention is contrary to the Texas Court of Criminal Appeals’s holding that a
trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. See Posey
v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). If the right to have such a defensive issue
submitted in a jury charge were an “absolute right,” it would follow that the trial court would
have a duty to include the defensive issue in the charge. As the Texas Court of Criminal Appeals
has stated, however, “Under Posey, a party can forfeit the right to complain about the omission
of a defensive issue because the defensive issue must be requested before the trial court has a
duty to place it in the charge.” Williams v. State, 273 S.W.3d 200, 223 (Tex. Crim. App. 2008).
-2- 04-10-00414-CR
Because the right to a defensive instruction is a “forfeitable” right, see id., Mahavier’s due
process complaint is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Mahavier also contends that trial counsel was ineffective in failing to request an
instruction on self-defense against multiple assailants. Mahavier acknowledges that the jury
charge contained a self-defense charge with respect to the actions of the victim, but notes that “a
charge which is confined only to the right of self-defense against the deceased is too restrictive if
there is evidence that more than one person attacked the defendant.” Frank v. State, 688 S.W.2d
863, 868 (Tex. Crim. App. 1985).
Ineffective assistance of counsel claims require a showing of both deficient performance
and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). There is a
strong presumption that trial counsel’s conduct fell within the wide range of professional
assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An ineffective
assistance claim must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at
813. “Direct appeal is usually an inadequate vehicle for raising such a claim because the record
is generally undeveloped.” Goodspeed, 187 S.W.3d at 392. “This is true with regard to the
question of deficient performance — in which counsel’s conduct is reviewed with great
deference, without the distorting effects of hindsight — where counsel’s reasons for failing to do
something do not appear in the record.” Id. “If counsel’s reasons for his conduct do not appear
in the record and there is at least the possibility that the conduct could have been legitimate trial
strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim
on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Trial counsel
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ordinarily should be afforded an opportunity to explain his or her actions before being denounced
as ineffective. Goodspeed, 187 S.W.3d at 392.
In holding that a trial court is not required to sua sponte instruct a jury on defensive
issues, the Texas Court of Criminal Appeals recognized “which defensive issues to request are
strategic decisions generally left to the lawyer and the client.” Posey, 966 S.W.2d at 63. “An
appellate court will not speculate about the reasons underlying defense counsel’s decisions.”
Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The
instant case is not one in which trial counsel wholly failed to request any defensive instruction.
As noted, counsel successfully obtained a self-defense instruction as to the victim’s actions. We
further note that the victim, unlike the other bar patrons, did not directly witness the initial
altercation, and provocation and retreat are issues that must be considered in requesting self-
defense instructions where deadly force is used. See Jaynes v. State, 216 S.W.3d 839, 854 (Tex.
App.—Corpus Christi 2006, no pet.); Rodriguez v. State, 212 S.W.3d 819, 821 (Tex. App.—
Austin 2006, no pet.); TEX. PENAL CODE ANN. §§ 9.31, 9.32 (West Supp. 2010). Because the
record is silent regarding the reasons trial counsel may have elected not to request a self-defense
instruction against multiple assailants, the presumption of reasonable effective assistance has not
been rebutted. See Thompson, 9 S.W.3d at 813. Accordingly, Mahavier’s ineffective assistance
of counsel complaints are overruled.
Recourse for Mahavier’s ineffective assistance of counsel claim is, however, still
available. See Thompson, 9 S.W.3d at 814. Mahavier “can resubmit his claim via an application
for writ of habeas corpus.” Id.
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MEMORANDUM OPINION No. 04-10-00414-CR
Ronald Buddy MAHAVIER, Appellant
v.
The STATE of Texas, Appellee
From the 81st Judicial District Court, Wilson County, Texas Trial Court No. 09-02-016-CRW Honorable Donna S. Rayes, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice
Delivered and Filed: June 1, 2011
AFFIRMED
This appeal raises issues about the defensive charge of self-defense against multiple
assailants. Ronald Buddy Mahavier stabbed and killed a man during an altercation at a bar and
was convicted by a jury of murder. Although the trial court charged the jury on self-defense as
to one assailant (the decedent), a jury charge on self-defense against multiple assailants was
neither requested nor given. On appeal, Mahavier contends: (1) his due process right to a fair
and impartial trial was violated because the jury charge did not contain an instruction on self- 04-10-00414-CR
defense against multiple assailants; and (2) his trial counsel rendered ineffective assistance of
counsel by failing to request such a defensive instruction. Because the issues in this appeal
involve the application of well-settled principles of law, we affirm the trial court’s judgment in
this memorandum opinion.
DUE PROCESS RIGHTS
Mahavier contends that he “was denied a due process right to a fair and impartial trial by
his trial counsel’s failure to either request or object to the omission of a multiple assailant self-
defense instruction.” Mahavier asserts that he “had an absolute right to have the jury consider
the issue [of] self-defense [against] multiple assailants and the denial of that right resulted in a
denial of due process.”
In his brief, Mahavier recognizes that an “absolute right” is distinct from a “forfeitable
right that must be requested,” citing Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App.
1993). Mahavier cites no authority, however, to support his contention that a jury charge
containing an instruction on self-defense against multiple assailants is an “absolute right.”
Moreover, such a contention is contrary to the Texas Court of Criminal Appeals’s holding that a
trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. See Posey
v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). If the right to have such a defensive issue
submitted in a jury charge were an “absolute right,” it would follow that the trial court would
have a duty to include the defensive issue in the charge. As the Texas Court of Criminal Appeals
has stated, however, “Under Posey, a party can forfeit the right to complain about the omission
of a defensive issue because the defensive issue must be requested before the trial court has a
duty to place it in the charge.” Williams v. State, 273 S.W.3d 200, 223 (Tex. Crim. App. 2008).
-2- 04-10-00414-CR
Because the right to a defensive instruction is a “forfeitable” right, see id., Mahavier’s due
process complaint is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
Mahavier also contends that trial counsel was ineffective in failing to request an
instruction on self-defense against multiple assailants. Mahavier acknowledges that the jury
charge contained a self-defense charge with respect to the actions of the victim, but notes that “a
charge which is confined only to the right of self-defense against the deceased is too restrictive if
there is evidence that more than one person attacked the defendant.” Frank v. State, 688 S.W.2d
863, 868 (Tex. Crim. App. 1985).
Ineffective assistance of counsel claims require a showing of both deficient performance
and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). There is a
strong presumption that trial counsel’s conduct fell within the wide range of professional
assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An ineffective
assistance claim must be firmly founded in the record, and the record must affirmatively
demonstrate the alleged ineffectiveness. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at
813. “Direct appeal is usually an inadequate vehicle for raising such a claim because the record
is generally undeveloped.” Goodspeed, 187 S.W.3d at 392. “This is true with regard to the
question of deficient performance — in which counsel’s conduct is reviewed with great
deference, without the distorting effects of hindsight — where counsel’s reasons for failing to do
something do not appear in the record.” Id. “If counsel’s reasons for his conduct do not appear
in the record and there is at least the possibility that the conduct could have been legitimate trial
strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim
on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Trial counsel
-3- 04-10-00414-CR
ordinarily should be afforded an opportunity to explain his or her actions before being denounced
as ineffective. Goodspeed, 187 S.W.3d at 392.
In holding that a trial court is not required to sua sponte instruct a jury on defensive
issues, the Texas Court of Criminal Appeals recognized “which defensive issues to request are
strategic decisions generally left to the lawyer and the client.” Posey, 966 S.W.2d at 63. “An
appellate court will not speculate about the reasons underlying defense counsel’s decisions.”
Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The
instant case is not one in which trial counsel wholly failed to request any defensive instruction.
As noted, counsel successfully obtained a self-defense instruction as to the victim’s actions. We
further note that the victim, unlike the other bar patrons, did not directly witness the initial
altercation, and provocation and retreat are issues that must be considered in requesting self-
defense instructions where deadly force is used. See Jaynes v. State, 216 S.W.3d 839, 854 (Tex.
App.—Corpus Christi 2006, no pet.); Rodriguez v. State, 212 S.W.3d 819, 821 (Tex. App.—
Austin 2006, no pet.); TEX. PENAL CODE ANN. §§ 9.31, 9.32 (West Supp. 2010). Because the
record is silent regarding the reasons trial counsel may have elected not to request a self-defense
instruction against multiple assailants, the presumption of reasonable effective assistance has not
been rebutted. See Thompson, 9 S.W.3d at 813. Accordingly, Mahavier’s ineffective assistance
of counsel complaints are overruled.
Recourse for Mahavier’s ineffective assistance of counsel claim is, however, still
available. See Thompson, 9 S.W.3d at 814. Mahavier “can resubmit his claim via an application
for writ of habeas corpus.” Id. “This would provide an opportunity to conduct a dedicated
hearing to consider the facts, circumstances, and rationale behind counsel’s actions at that
-4- 04-10-00414-CR
juncture of trial.” Id. at 814-15. “Specifically, a hearing would allow trial counsel himself to
explain why” he did not request a self-defense instruction against multiple assailants. Id. at 815.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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