In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00474-CR NO. 09-18-00475-CR __________________
TIMOTHY AARON SWINNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 1A District Court Newton County, Texas Trial Cause Nos. ND 7248, ND 7289 __________________________________________________________________
MEMORANDUM OPINION
A jury convicted Timothy Aaron Swinney on indictments charging him with
committing two aggravated assaults, both of which involved using a deadly
weapon.1 In the punishment phase of the trial, in both cases, Swinney waived his
1 The indictments do not involve the same alleged victim but the cases were consolidated and tried before the same jury. The judgments from the trial bear Trial Court Cause Numbers ND-7248 and ND-7289. 1 right to have the jury assess punishment. Following a sentencing hearing, the trial
court sentenced Swinney to serve an eight-year sentence in Trial Court Cause
Number ND-7248 and a two-year sentence in Trial Court Cause Number ND-7289.2
Swinney raises three issues in his appeal. In issue one, Swinney argues he is
entitled to a new trial in Cause Number ND-7248 because the charge the trial court
submitted to the jury failed to include a proper application paragraph, which he
argues was needed, that explained to the jury that it should find him not guilty should
the jury have reasonable doubt about whether he acted in self-defense. In issue two,
Swinney argues the charge misstated the law on his claim of self-defense. In issue
three, Swinney complains he received the ineffective assistance of counsel during
the trial because the attorney who represented him gave him the wrong advice about
whether the trial court could consider putting him on probation. As explained below,
we conclude that Swinney’s issues lack merit, so we affirm.
Background
The complaints Swinney raises in his appeal concern his convictions on
felonies that include affirmative findings that reflect he used a deadly weapon. Under
Texas law, when a defendant is found guilty of aggravated assault that involved his
2 See Tex. Penal Code Ann. §§ 12.33(a), 22.02(a), (b). 2 use of a deadly weapon, the conviction is punishable as a second-degree felony.3
And as relevant to Swinney’s arguments, when the factfinder finds the defendant
used or exhibited a deadly weapon in committing the felony, Texas law prohibits the
trial court (but not the jury) from placing the defendant on probation. 4
Following a jury trial, the jury found Swinney guilty of assaulting two
individuals at a party Swinney had at his home in November 2016. In Cause Number
ND-7248, Swinney’s indictment alleges that Swinney intentionally, knowingly, and
recklessly caused bodily injury to Darryl5 by shooting Darryl in the abdomen with
a shotgun. In Cause Number ND-7289, Swinney’s indictment alleges that Swinney
intentionally and knowingly threatened Donald with imminent bodily injury by
pointing a shotgun at Donald’s face. In both cases, the indictments also allege that
Swinney used or exhibited a deadly weapon, a shotgun, when committing the alleged
assaults.
Eleven witnesses testified in the guilt-innocence phase of Swinney’s trial.
Swinney, as well as Darryl and Donald, testified in the trial. Generally, the testimony
3 Id. § 22.02(b). 4 Tex. Code Crim. Proc. Ann. art. 42A.054(b). 5 To protect the privacy of the victims whose names are in the indictments, we identify them by their initials. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 3 in the trial (viewed in the light most favorable to the verdicts) shows that in
November 2016, several people were outside Swinney’s house drinking beer and
partying. At some point, Darryl walked away from the party to urinate near where
Swinney kept his dog. When Darryl returned to the others, Swinney accused Darryl
of having urinated on his dog. Darryl denied doing so, but Swinney refused to
believe him. Darryl asked Swinney if he wanted him to leave. Swinney said he did.
As Darryl was walking to his car, Donald approached Swinney and asked why
he was “bullying” Darryl. Donald and Swinney began arguing. Darryl turned around
to walk away, and Swinney claims he heard someone “call [him] the n-word[.]” At
that point, Swinney walked to a shed, got a shotgun, and left the shed while
chambering a shell. As Swinney approached Darryl, he pointed the shotgun at him
and asked if Darryl had called him the n-word. Then Swinney shot Darryl at a point-
blank range.
Swinney then turned to Donald, who was sitting in the backseat of his truck.
Pointing his shotgun at Donald, Swinney “asked [Donald] if [he] called him the n-
word[.]” Donald denied that he did and began pleading with Swinney for his life.
About five minutes later, Swinney put the gun down. Donald left and drove to the
hospital in Orange, Texas, because he knew Darryl had gone there to be treated for
a gunshot wound to his abdomen.
4 Swinney testified in his own defense during the trial. Yet when he testified,
he never denied that he shot Darryl. Instead, Swinney claimed he did not shoot
Darryl intentionally, claiming the gun “went off by accident[.]” Swinney did,
however, deny ever pointing the gun at Donald. That said, he also agreed that while
talking to Donald, he was holding the gun. Additionally, Swinney testified he
retrieved the shotgun because he feared for his own safety, explaining “[i]t was three
on one. I mean, anything could happen.”
The day after the shooting occurred, Swinney gave police a statement. The
prosecutor read the statement into evidence in presenting the State’s case. In the
statement, Swinney said that he saw Darryl “running at me out of the corner of my
eye[,]” and that is when he turned toward him while holding the shotgun, it
“somehow” fired.
At the close of the evidence, in the case that involved the assault against
Darryl, the trial court (without request) provided the jury with instructions on self-
defense. In pertinent part, the charge states:
Upon the law of self[-]defense[,] you are instructed that a person is justified in using force against another (or others) when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s (or others’) use or attempted use of deadly conduct.
The use of force against another (or others) is not justified in response to verbal provocation alone. 5 A person is justified in using deadly conduct against another (or others):
(1) if he would be justified in using force against the other; and
(2) if a reasonable person in the defendant’s situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(a) to protect himself against the other’s use or attempted use of unlawful deadly force[.]
In the brief that Swinney filed in his appeal, he argues the charge fails “to
include an application paragraph instructing the jury to acquit if they held a
reasonable doubt as to whether or not the defendant was acting in self-defense under
the circumstances.” That said, Swinney also acknowledges the charge instructs the
jury that, if it did not believe Swinney intentionally, knowingly, or recklessly caused
bodily injury to Darryl by shooting him in the abdomen, or if it had “a reasonable
doubt thereof, you will acquit the defendant and say by your verdict ‘Not Guilty.’”
Since Swinney’s first two issues concern the adequacy of the charge, we address
those issues first before addressing his third issue, in which he complains that his
attorney misled him about whether the trial court could, if he were convicted,
consider placing him on probation.
6 Charge Error
Under Texas law, the trial court must provide the jury with a written charge
setting forth the law that applies to the defendant’s case.6 In issue one, Swinney
argues the charge in the case in which the State alleged he assaulted Darryl 7 was
defective because it failed to inform the jury to acquit him should it find the State
failed to establish that he did not fire the shotgun while defending himself.
Reviewing an issue claiming charge error “involves a two-step process.”8
First, “we determine whether the jury instruction is erroneous.” 9 Second, if error
occurred, we “analyze that error for harm.” 10 Since Swinney argues the errors in the
charge occurred for the first time in appealing from the judgment, we may order a
new trial only if the record establishes that, as a result of the error, Swinney did not
receive a fair and impartial trial.11 Stated another way, when the defendant fails to
object to the charge at trial based on the same alleged error that he is arguing in his
appeal, the defendant must show the error caused egregious harm. 12
6 Tex. Code Crim. Proc. Ann. art. 36.14. 7 Trial Court Cause Number ND-7248. 8 Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). 9 Id. 10 Id. 11 See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). 12 Id. 7 The function of the charge “is to inform the jury of the applicable law and
guide [the jurors] in its application to the case[.]”13 Under the Code of Criminal
Procedure, the trial court must provide the jury with a written charge that sets forth
the law that applies to the defendant’s case.14 Thus, “[t]his law requires the trial
[court] to instruct the jury on statutory defenses, affirmative defenses, and
justifications whenever they are raised by the evidence.”15 A proper charge contains
instructions to inform the jury about law the jury must consider in reaching its verdict
and contains instructions to guide the jury in how law applies to the evidence
presented in the defendant’s trial.16
While we question whether the evidence in the trial raised a valid claim under
Texas law for using self-defense, the trial court instructed the jury on the defense
anyway.17 When trial courts include instructions in a charge on a defense and have
not been prompted to do so by one of the parties in the case, the law that applies to
the defendant’s case includes the defense the trial court chose to include in its
13 Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007) (cleaned up). 14 Tex. Code Crim. Proc. Ann. art. 36.14. 15 See Walters v. State, 247 S.W.3d 204, 208-09 (Tex. Crim. App. 2007). 16 See Fraser v. State, 593 S.W.3d 883, 888 (Tex. App.—Amarillo 2019, pet. ref’d). 17 We note that under Texas law, an individual may not use force “in response to verbal provocation alone[.]” See Tex. Penal Code Ann. § 9.31(b)(1). 8 charge.18 Consequently, when the charge instructs the jury on self-defense, the
charge must properly instruct the jury on the law by providing instructions
describing the defense correctly.19 So, in Swinney’s case, the record shows that by
charging the jury on self-defense, trial court “assumed a duty to deliver a proper
charge” that described the defense.20
In Swinney’s case, the trial court assumed the duty—but failed—to include
an appropriate application paragraph in the charge explaining how the law of self-
defense applied to the evidence the jury heard during Swinney’s trial. 21 Here, the
charge has no application paragraph explaining to the jury what it should do should
it find or have a doubt about whether Swinney acted in self-defense when he shot
Darryl. For that reason, we conclude that charge error occurred.
The lack of an application paragraph, however, is not the only error that
infects the trial court’s charge. The abstract instruction on self-defense also misstates
Texas law, as it varies materially from the relevant statute that defines self-defense.22
18 Mendez v. State, 545 S.W.3d 548, 553 (Tex. Crim. App. 2018); Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). 19 Id. 20 Mendez, 545 S.W.3d at 553. 21 See id.; Barrera v. State, 982 S.W.2d 415, 416-17 (Tex. Crim. App. 1998); see also Tex. Penal Code Ann. § 2.03(d); Mendez, 545 S.W.3d at 554; Allen v. State, 253 S.W.3d 260, 263 (Tex. Crim. App. 2008). 22 See Tex. Penal Code Ann. § 9.31(a) (defining when individuals may defend themselves from others). 9 In its charge, the trial court’s instruction on self-defense suggests that an individual
may use force in response to another’s use or attempted use of deadly conduct.23 But
Texas’ law of self-defense is broader, as the statutory definition allows a jury to find
that a person was justified in using force when and to the degree the person
reasonably believed force was immediately necessary to protect against the other’s
use or attempted use of unlawful force.24 Thus, the charge the trial court delivered in
Swinney’s case restricted the scope of the defense from the scope of the defense
available to a defendant under the law. We also find that this mistake also constitutes
charge error.
While the charge on self-defense is infected with error, Swinney must still
establish that the errors in the charge resulted in egregious harm, given a record
showing that he did not properly object to the errors we have identified in the
charge.25 To show that egregious harm occurred, the record “must disclose actual
rather than theoretical harm, and the error must have affected the very basis of the
case, deprived the defendant of a valuable right, or vitally affected a defensive
23 The charge the trial court gave the jury provides: “A person is justified in using deadly conduct against another (or others): . . . when and to the degree he reasonably believes the deadly force is immediately necessary: . . . to protect himself against the other’s use or attempted use of unlawful deadly force[.]” (emphasis added). 24 Id. (emphasis added). 25 Marshall v. State, 479 S.W.3d at 843. 10 theory.”26 When evaluating a record for egregious harm, we consider the entire
record, meaning the charge, the contested issues that were raised by the evidence in
the trial, the weight of the evidence that proves the defendant’s guilt, the arguments
the parties made to the factfinder in the trial, and any other information that is
relevant to deciding whether the record supports a conclusion that the errors that
exist in the charge caused egregious harm.27
In the appeal, the only charge errors Swinney complains about concern the
instruction and the lack of application paragraph as those errors relate to the charge
the trial court delivered, which instructed the jury on self-defense. Under Texas law,
self-defense is a confession-and-avoidance defense, which means the defendant
must generally admit engaging in the conduct involving the crime on which he was
tried to raise a fact issue on the defendant’s argument claiming he acted in self-
defense. 28 Here, Swinney did not admit to knowingly, intentionally, or recklessly
firing the shotgun.29 Instead, in the trial, he testified the shotgun went off accidently.
He also denied having intentionally pulled the trigger of his gun.
26 Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (cleaned up). 27 Jordan v. State, 593 S.W.3d 340, 347 (Tex. Crim. App. 2020). 28 Id. 29 See Juarez v. State, 308 S.W.3d 398, 405-06 (Tex. Crim. App. 2010). 11 When the record shows the defendant denied guilt, the defendant’s own
testimony is inconsistent with an argument the defendant acted in self-defense. 30 To
be clear, a defendant cannot generally claim to have acted in self-defense while, at
the same time, denying that he committed the crime made the subject of his trial.31
Nothing in the record before us shows that Swinney fired the shotgun because
he thought doing so was immediately necessary to protect himself against another’s
use of unlawful force. 32 Swinney never admitted during his testimony that he
intentionally, knowingly, or recklessly discharged the gun. And while Swinney
testified Darryl called him the n-word, even if the jury chose to accept Swinney’s
testimony that Darryl did so, words alone are not a provocation of the type that
authorizes the defendant to avail himself of deadly force.33 The record also shows
that in the trial court, Swinney’s attorney never relied on a claim that he shot Darryl
in self-defense, although he now asserts he relied on the defense as the theme of his
30 Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986). 31 Jordan, 593 S.W.3d at 343. 32 See Preston v. State, 756 S.W.2d 22, 24-25 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (“If the accused, by his own testimony or by other evidence, raises the issue of self-defense, he is entitled to an instruction and charge so long as such evidence shows the complainant, by words or acts, caused the accused to reasonably believe he was in danger and to reasonably believe deadly force was immediately necessary.”). 33 See Tex. Penal Code Ann. § 9.31(b); Braughton v. State, 569 S.W.3d 592, 606 (Tex. Crim. App. 2018). 12 case during the trial. For example, in closing argument, Swinney’s attorney argued
that the shooting was accidental. And while it’s true that Swinney’s attorney
mentioned self-defense briefly in closing argument, he did so by suggesting that
Swinney was defending himself by retrieving the shotgun, not that he fired the gun
in self-defense.
For these reasons, we conclude the errors in the charge, which Swinney points
out in his brief, did not cause any egregious harm. Issues one and two are overruled.
Ineffective Assistance of Counsel
In Swinney’s third issue, he argues that the attorney who represented him in
the trial misled him about whether the trial court (as opposed to the jury) could
consider placing him on probation, should he be convicted of committing the
assaults. Since both of the judgments the trial court signed in Swinney’s cases
include deadly weapon findings, the trial court could not elect to probate Swinney’s
sentence.34 Swinney argues that his attorney’s advice deprived him of his right to
effective assistance of counsel. We agree with Swinney that the record shows his
attorney misled him about whether the trial court could consider probation. Yet, for
the reasons fully explained below, we also find the current record is insufficient to
34 Compare Tex. Code Crim. Proc. Ann. art. 42A.054 (restricting when trial courts may place a defendant on probation), with Tex. Code Crim. Proc. Ann. art. 452A.056 (placing separate restrictions on when juries may award probation). 13 establish that if Swinney’s attorney had given Swinney correct advice—that only the
jury could consider placing him on probation—he would have elected to have the
jury assess punishment in lieu of the election he made, which was to allow the trial
court to assess his punishment.
To establish that a defendant received ineffective assistance of counsel, the
defendant must establish two things:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 35
Texas law tracks the standards the United States Supreme Court adopted in
Strickland.36 And when the Court of Criminal Appeals has applied that standard to
circumstances that involved the advice of counsel about probation, it has explained
that to prove prejudice, the defendant must demonstrate in his appeal that: “(1) the
defendant was initially eligible for probation; (2) counsel’s advice was not given as
a part of a valid trial strategy; (3) the defendant’s election of the assessor of
punishment was based upon his attorney’s erroneous advice; and (4) the results of
35 Strickland v. Washington, 466 U.S. 668, 687 (1984). 36 Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017) (quoting Riley v. State, 378 S.W.3d 453, 458 (Tex. Cim. App. 2012)). 14 the proceeding would have been different had his attorney correctly informed him
of the law.” 37
Here, the record shows that Swinney raised his ineffective assistance of
counsel claim for the first time in his appeal. For instance, he did not file any post-
judgment motions, including a motion claiming that he received ineffective
assistance. In cases where the defendant seeks to raise a claim of ineffective
assistance for the first time in his appeal, the record in the trial court is frequently
insufficiently developed to allow the defendant to demonstrate whether, had the
defendant been correctly advised, the results of the proceedings would have been
different.38 One of the reasons it’s difficult to prove prejudice on an undeveloped
record is that the standard that applies to reviewing an ineffective assistance of
counsel claim requires the record to show that the defendant would have elected to
have the jury assess his punishment had his attorney given him the correct advice on
the laws as they relate to whether the factfinder in the punishment could consider
probation. 39
Generally, the defendant’s testimony claiming he would have done something
differently requires the trial court, as the factfinder on the motion for new trial, to
37 Id. 38 Id. 39 Miller v. State, 548 S.W.3d 497, 502 (Tex. Crim. App. 2018). 15 decide whether to believe the defendant’s testimony. Here, the trial court was never
asked to decide what Swinney might have done had he been given different advice.
Moreover, Swinney did not file an affidavit or testify in the trial court that he would
have elected to have the jury assess his punishment had his attorney advised him that
only the jury could consider placing him on probation. Furthermore, Swinney cannot
show on this record that the advice his attorney gave him was the sole reason he
chose to go to the trial court for punishment, or whether instead, other considerations
existed that played a role in that decision. 40
We conclude the record in the trial court shows that Swinney cannot meet his
burden to show the outcome in his trial would have been different had he been
correctly advised that only the jury could consider placing him on probation if the
jury found him guilty and found he used a deadly weapon when committing the
assaults.41
For the reasons explained above, we overrule Swinney’s third issue.
40 See State v. Recer, 815 S.W.2d 730, 732 (Tex. Crim. App. 1991) (reversing court of appeals ruling awarding the defendant a new trial when the record did “not reflect that [the defendant] went to the trial judge for sentencing solely because of her attorney’s erroneous impression that the trial judge could set aside the affirmative finding and grant her probation”) (emphasis added). 41 Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (explaining that “trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective”) (cleaned up); Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003) (same). 16 Conclusion
Because Swinney failed to meet his burden to establish the errors in the charge
resulted in egregious harm and failed to meet his burden of establishing the outcome
in his case would have differed had he been given correct advice about probation,
we overrule his issues. Accordingly, the judgments in Trial Court Cause Numbers
ND-7248 and ND-7289 are
AFFIRMED.
_________________________ HOLLIS HORTON Justice
Submitted on November 5, 2020 Opinion Delivered January 27, 2021 Do Not Publish
Before Golemon, C.J., Horton and Johnson, JJ.