David Puryear, Justice

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 72147 , HONORABLE JOHN GAUNTT, JUDGE PRESIDING MEMORANDUM OPINION

Wilfred Warren Sheppard was charged with committing criminal mischief for "intentionally or knowingly damag[ing] or destroy[ing] . . . a motorcycle, by striking the motorcycle with a vehicle, without the effective consent of Timothy Garland, the owner of said property" and causing "pecuniary loss of more than $1,500 but less than $20,000.00." See Tex. Penal Code § 28.03(a)(1) (setting out elements of offense); Act of May 23, 2009, 81st Leg., R.S., ch. 638, § 1, sec. 28.03(b)(4), 2009 Tex. Gen. Laws 1433, 1433 (providing that offense is state-jail felony if amount of loss is between $1,500 and $20,000) (amended 2015) (current version at Tex. Penal Code § 28.03(b)(4)). At the end of the guilt-or-innocence phase, the jury found Sheppard guilty of the charged offense. Sheppard elected to have the district court assess his punishment in the event that the jury found him guilty. At the end of the punishment phase, the district court determined that Sheppard should be sentenced to twelve months' confinement and rendered its judgment of conviction accordingly. See id. § 12.35(a) (listing permissible punishment range for state-jail felony). In a single issue on appeal, Sheppard contends that his trial attorney provided ineffective assistance of counsel. We will affirm the district court's judgment of conviction.

BACKGROUND

After Sheppard was charged with criminal mischief, a trial was held. During the trial, the State called three witnesses to testify: Timothy, Brandon Garland, and Pedro Luebanos. When presenting his defense, Sheppard's attorney called two witnesses: Sheppard and Antonio Martinez. During the trial, Timothy and Sheppard both explained that Timothy purchased a home from Sheppard but that the two had several negative interactions after that.

Regarding the day in question, Timothy related that when he was driving his motorcycle to a landscaping job, he noticed Sheppard drive his truck "towards" Timothy and cross "the center lane." Further, Timothy recalled that he "swerved" and "spun around" to avoid being hit and decided to head back home, and Timothy explained that Sheppard turned his truck around and "came back towards [Timothy] again." In addition, Timothy testified that after avoiding being struck by Sheppard's truck, he went home and waited approximately half an hour before again heading out to the job site. Moreover, Timothy stated that after he parked his motorcycle "on the curb in front of the house" and started scooping mulch, he saw Sheppard's truck once again headed towards him. Then, Timothy explained that he "stepped to the side" to avoid being hit and that he punched the truck as it drove by. Next, Timothy recalled that Sheppard put his truck "in reverse . . . and backed into [Timothy's] motorcycle," that Sheppard drove forward and turned his truck around, that Sheppard hit the motorcycle several more times with his truck after turning around, that Sheppard's truck got stuck "on the motorcycle because the motorcycle was up under [the] truck," that Sheppard drove his truck off of the motorcycle, and that Sheppard yelled out, "You f--- with the devil."

After Timothy finished testifying, the State called Pedro Luebanos to the stand. In his testimony, Luebanos explained that he saw Sheppard arrive at the house, heard a thump, and saw Sheppard's truck come to a halt, reverse, back into the motorcycle, drive forward, turn around, hit the motorcycle a few more times, and "get[] on top of the motorcycle." When describing the final hit, Luebanos stated that Sheppard's truck hit the motorcycle with enough force to "break the handle bar" and that the truck "jumped the curb and plowed into the grass." In addition, Luebanos testified that he heard Sheppard using various expletives, including saying "f-ing devil," but Luebanos clarified that Timothy did not yell anything in response.

When Brandon was called to the stand, he explained that he was Timothy's son, that he was helping his father with a job on the day in question, and that while he was at the job site, he heard someone "hit their brakes really hard," turned around to see what was happening, and saw Sheppard drive his truck in reverse and hit the motorcycle. In addition, Brandon testified that after Sheppard hit the motorcycle, Sheppard drove forward and then backed into the motorcycle again. Moreover, Brandon recalled that Sheppard turned his truck around and hit the motorcycle with the front of the truck. Further, Brandon recalled that Sheppard was yelling insults at Timothy but that Timothy did not yell back.

After the State rested its case, Sheppard's attorney called Sheppard to the stand, and Sheppard denied having a prior encounter with Timothy while Timothy was driving his motorcycle. Regarding the events that occurred after Timothy went to work, Sheppard testified that he was driving to the construction site for a home that he was in charge of building, that the home was very close to the home where Timothy was working, and that while he was driving past Timothy, Timothy "assaulted" him by hitting the passenger side of the truck. Sheppard described the hit as being very loud, but he admitted that he never saw any tool or other instrument in Timothy's hand. In addition, Sheppard recalled that after Timothy hit the truck, Sheppard continued to drive "maybe 20 feet or so," put his truck in reverse, and knocked the motorcycle down "in self-defense." Further, Sheppard explained that after he hit the motorcycle with his truck, he heard Timothy say that Sheppard "was going to pay for that," that he thought Timothy "was going to . . . retrieve a gun" from the truck that Brandon drove to the job site, and that he heard Timothy's children beg Timothy not to shoot Sheppard. Moreover, Sheppard recalled that after being threatened, he decided to run over the motorcycle one more time "to disable [Timothy's] mobility to be able to chase [Sheppard] out after" because Timothy "was going to come after [Sheppard] and shoot [Sheppard]."

Although Sheppard agreed that the police did not find a weapon when they searched the scene, he stated that whether Timothy "had one or not," Sheppard "had to believe what was being yelled at" him. In other words, Sheppard testified that he "felt like [his] life was in danger" and that he had to defend himself. Further, Sheppard recalled that he left the area "to seek safety" after hitting the motorcycle for the final time. During his cross-examination, Sheppard admitted that although he stated that he was attempting to disable the motorcycle to prevent Timothy from pursuing him with a gun, Sheppard did not attempt to disable the truck that was driven to the house by Brandon and that allegedly contained the gun. Similarly, Sheppard admitted that he made no attempt to contact the police even though he was allegedly threatened.

Once Sheppard finished his testimony, Sheppard's attorney called Antonio Martinez to the stand. In his testimony, Martinez explained that he was working for Sheppard on a home construction project "about 100 feet away" from where the incident occurred. Further, he testified that he heard a loud sound but could not see who or what made the noise or what, if anything, may have been used to strike Sheppard's truck. Next, he recalled seeing the truck run into the motorcycle three times and then leave the area. In addition, Martinez explained that he cannot read or write in English but that Sheppard asked Martinez to sign a statement purportedly explaining "where the incident occurred" and how Sheppard "had business pending" during that time. When questioned about the written statement, Martinez testified that he was surprised to find out that it read that he saw a man hit the truck because he "did not see" that happen. That written statement was admitted into evidence during Martinez's testimony and states that Martinez "witnessed first hand, [Timothy] run towards Mr. Sheppard and ASSAULT his vehicle" and that all actions "taken by Mr. Sheppard thereafter were a direct result of the ASSAULT initiated by Mr. Garland."

After considering the evidence presented, the jury found Sheppard guilty of the charged offense.

DISCUSSION

In his sole issue on appeal, Sheppard contends that his "trial counsel was ineffective for failing to request a 'necessity' instruction" for the jury charge.

To succeed on an ineffectiveness claim, a defendant must overcome the strong presumption that his trial "counsel's conduct falls within the wide range of reasonable professional assistance" and must show that the attorney's "representation fell below an objective standard of reasonableness . . . under prevailing professional norms" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 689, 694 (1984). "[A]n appellant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other prong." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Evaluations of effectiveness are based on "the totality of the representation," Frangias v. State, 450 S.W.3d 125, 136 (Tex. Crim. App. 2013); see also Davis v. State, 413 S.W.3d 816, 837 (Tex. App.—Austin 2013, pet. ref'd) (providing that assessment should consider "cumulative effect" of counsel's deficiencies), and allegations of ineffectiveness must be firmly established by the record, Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Furthermore, even though a defendant is not entitled to representation that is error-free, a single error can render the representation ineffective if it "was egregious and had a seriously deleterious impact on the balance of the representation." Frangias, 450 S.W.3d at 136.

In general, direct appeals do not provide a useful vehicle for presenting ineffectiveness claims because the record for that type of claim "is generally undeveloped." Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see also Mallett, 65 S.W.3d at 63 (stating that "[i]n the majority of cases, the record on direct appeal is undeveloped and cannot adequately reflect the motives behind trial counsel's actions"). In addition, before their representation is deemed ineffective, trial attorneys should be afforded the opportunity to explain their actions. Goodspeed, 187 S.W.3d at 392 (stating that "counsel's conduct is reviewed with great deference, without the distorting effects of hindsight"). If that opportunity has not been provided, as in this case, an appellate court should not determine that an attorney's performance was ineffective unless the conduct at issue "was so outrageous that no competent attorney would have engaged in it." See Garcia, 57 S.W.3d at 440.

When determining whether a defensive instruction should have been provided, appellate courts "view the evidence in the light most favorable to the defendant's requested instruction." Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). In general, a defendant is entitled to a jury instruction on a defensive issue if the defensive issue "is raised by the evidence, regardless of the strength or credibility of that evidence." Farmer v. State, 411 S.W.3d 901, 906 (Tex. Crim. App. 2013). However, an instruction "is not required" if the evidence "does not establish the defense." Williams v. State, Nos. 03-14-00228—00229-CR, 2016 WL 370019, at *4 (Tex. App.—Austin Jan. 27, 2016, no pet.) (mem. op., not designated for publication).

Under the Penal Code, "[c]onduct is justified" by necessity if the following requirements are present:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

To raise the defense, there must be "evidence of a reasonable belief of both immediate necessity and imminent harm." Harper v. State, 508 S.W.3d 461, 467 (Tex. App.—Fort Worth 2015, pet. ref'd). "[I]mminent harm contemplates a reaction to a circumstance that must be the result of a 'split-second decision [made] without time to consider the law'" and requires "an immediate, non-deliberative action made without hesitation or thought of the legal consequence." Stefanoff v. State, 78 S.W.3d 496, 501 (Tex. App.—Austin 2002, pet. ref'd) (quoting Smith v. State, 874 S.W.2d 269, 273 (Tex. App.—Houston [14th Dist.] 1994, pet. ref'd)). In other words, the harm must be "something that is on the point of happening, not about to happen." Jackson v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet. ref'd). "[A] defendant's sincere belief that his conduct is immediately necessary to avoid imminent harm is unreasonable as a matter of law if the undisputed facts demonstrate a complete absence of 'immediate necessity' or 'imminent harm' as legally defined." Harper, 508 S.W.3d at 467. "'Reasonable belief'" refers to a "belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex. Penal Code § 1.07(a)(42). "A defendant's testimony alone is sufficient to raise a defensive issue requiring an instruction in the jury charge." Pennington v. State, 54 S.W.3d 852, 856 (Tex. App.—Fort Worth 2001, pet. ref'd); see also id. at 858 (stating that "[t]he fact that Pennington's testimony concerning her necessity defense was feeble, contradicted, impeached, or not credible, does not eradicate her entitlement to a defensive instruction").

As an initial matter, we note that the record in this case does not reflect why Sheppard's trial counsel did not request a defensive instruction for necessity. Although Sheppard correctly points out that courts have held on direct appeal that the failure to request various types of defensive instructions constituted ineffective assistance of counsel under the circumstances of those cases, see, e.g., Villa v. State, 417 S.W.3d 455, 464 (Tex. Crim. App. 2013) (concluding that trial counsel provided ineffective assistance by failing to request instruction on medical-care defense); Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992) (determining that trial counsel was ineffective for failing to request necessity instruction), generally speaking, without record evidence regarding an attorney's strategy, appellate courts "cannot speculate as to whether a valid strategy existed, and thus [an] appellant cannot rebut the strong presumption of reasonable assistance," see Villalobos v. State, No. 03-13-00687-CR, 2015 WL 5118369, at *5 (Tex. App.—Austin Aug. 26, 2015, pet. ref'd) (mem. op., not designated for publication); see also Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998) (reasoning that it may be sound trial strategy to not request jury instruction on defensive issue when "the evidence raising the defense is so unworthy of belief" that defendant and his counsel "risk losing their credibility with the jury"). Assuming for the sake of argument that the record is sufficiently developed in this case to address this issue, we still cannot conclude that the failure to request an instruction for the defense of necessity in this case deprived Sheppard of effective assistance of counsel.

When presenting this issue on appeal, Sheppard contends that the evidence presented at trial, "whether thought to be credible or not, certainly raised the issue of 'necessity.'" Specifically, Sheppard points out that "he freely admitted to using his truck to damage [Timothy]'s motorcycle but testified that [Timothy] threatened to get a gun and, believing that [Timothy] intended to shoot him with the gun, he disabled [Timothy]'s motorcycle so that [Timothy] could not get the gun and pursue him on the motorcycle." Cf. Parker v. State, No. 03-13-00470-CR, 2014 WL 4363176, at *4 n.15 (Tex. App.—Austin Aug. 29, 2014, no pet.) (mem. op., not designated for publication) (discussing prior cases and noting that defense of necessity was similar to self-defense). Further, Sheppard contends that the only defensive theory that his trial counsel pursued was jury nullification when he argued that the case was really about Timothy being mad that he started the incident but that Sheppard inflicted more damage and when he argued that the case is not "felony serious" and should "be remanded back to the civil court or to the insurance company" because Sheppard committed "a stupid act" but not "a criminal act." However, Sheppard contends that this amounted to no defense at all. See Isassi v. State, 330 S.W.3d 633, 640 (Tex. Crim. App. 2010) (explaining that "[a]lthough jurors have the raw power to return a verdict that flies in the face of the facts and the law, they do not have a legal right to do so" because "[j]ury nullification is not authorized by law"). Further, Sheppard urges that the State emphasized in its closing the lack of a defensive instruction in the jury charge when it stated that "nowhere in that law the judge gave you" does it state "that if he was acting in self-defense you find him not guilty because he's not entitled to" that instruction. For all of these reasons, Sheppard contends that there was no reasonable trial strategy for not requesting an instruction on necessity and that he was denied the right to effective representation.

As support for his arguments on appeal, Sheppard primarily relies on Vasquez v. State, 830 S.W.2d 948 (Tex. Crim. App. 1992). In that case, Vasquez "was convicted of the offense of possession of a firearm by a felon." Id. at 949. During the trial, Vasquez "testified that he had been a 'building tender'" while he was incarcerated, that "he was still in danger of being killed by ex-members of prison gangs even though he no longer resided within the prison walls," that he had been kidnapped "by ex-members of a prison gang" shortly before the offense in question, that he managed "to grab a gun and escape," and that he was arrested shortly after escaping when someone saw him walking with the gun. Id. at 950; see also id. at 950 n.2 (describing "building tenders" as being subject to "disdain and hatred by other prisoners" because they "performed many of the tasks now performed by guards"). In its opinion, the court of criminal appeals determined that "it would have been error for the trial court to refuse such an instruction, had one been requested," that Vasquez's trial counsel "should have recognized that [Vasquez]'s testimony was sufficient to raise the defense, and that appellant had nothing to lose by requesting a defensive instruction" because a conviction was a foregone conclusion without the defensive instruction. Id. at 951.

However, we believe that Sheppard's reliance on Vasquez is misplaced. In that case, Vasquez testified that he committed the offense of possessing a firearm in an effort to escape his captors after having been kidnapped. In the present case, even viewing the evidence in the light most favorable to the necessity instruction, Sheppard freely admitted to hitting or running over Timothy's motorcycle and, thereby, initiating the criminal conduct at issue before Timothy allegedly threatened to get his gun in response to Sheppard's own actions. Cf. Fink v. State, 97 S.W.3d 739, 741-42 (Tex. App.—Austin 2003, pet. ref'd) (providing that, in general, "the use of force against another in self-defense is not justified if the actor provoked the other's use or attempted use of unlawful force"). Moreover, although Sheppard testified that he heard Timothy threaten to get a gun from the truck that Brandon drove, Sheppard did not testify regarding how far Timothy was from the truck or how quickly Timothy was moving toward the truck, and Sheppard did not testify that he ever actually saw a gun or that a gun was ever aimed in him. Further, as discussed above, the evidence presented at trial, including Sheppard's testimony, established that Timothy had access to the truck driven by Brandon and, therefore, could have used that truck to pursue Sheppard.

None of the testimony showed that Sheppard's repeated crashing into or driving over Timothy's motorcycle was immediately necessary to avoid imminent harm or that a prudent person in Sheppard's circumstances would have believed that it was. See Harper, 508 S.W.3d at 468 (concluding that evidence that defendant had "generalized fear and confusion after" "catastrophic multiple-car collision" did not require necessity instruction where defendant shot and killed someone who had tried to help move defendant's children out of his car to safety); Washington v. State, 152 S.W.3d 209, 211, 212 (Tex. App.—Amarillo 2004, no pet.) (holding that necessity instruction was not needed in case where defendant was charged with unlawfully possessing firearm and argued that he took gun from home due to his fear that children who lived in home would be returning home from school and "would come upon" weapon "'any minute'" because evidence did not indicate "that there existed some harm that was on the point of occurring and which necessitated a split second decision" where "nothing in the record suggest[ed] . . . that any of the children were home or in the house" or that defendant "thought that any children were at home" "at the time appellant saw the weapon"); Jackson, 50 S.W.3d at 595 (noting defendant's arguments that he believed that his traffic violations were necessary because he felt like person he knew "was chasing him" and "could have caught him" if he "had stopped and run" and determining that "the testimony only raise[d] an issue of necessity to continue driving" but did "not raise an issue of necessity to drive over the speed limit, disregard traffic control devices, and veer into oncoming lanes of traffic" and did not establish that "his erratic driving was immediately necessary to avoid imminent harm"); Arnwine v. State, 20 S.W.3d 155, 159, 160 (Tex. App.—Texarkana 2000, no pet.) (concluding that necessity instruction was not required in case where defendant testified that he assaulted his mother in order to prevent his father from shooting him because evidence presented at trial did "not show Arnwine's father standing in the kitchen with a gun pointed at him and his mother holding or obstructing him in such a way as to prevent his escape," because evidence established that house "contained two exits by which he could have departed if his father came after him," because "the existence of lawful alternatives to the commission of a criminal act may preclude a defendant from the defense of justification by necessity," and because "[t]he absence of any factual basis to support Arnwine's conclusory testimony that his conduct in striking his mother was immediately necessary to avoid imminent harm made an instruction to the jury on the defense of necessity inappropriate"). Accordingly, unlike in Vasquez, it would not have been error for the district court to deny a necessity instruction had one been requested, and we cannot conclude that the failure to request an instruction was so outrageous in this case that no competent attorney would have failed to make the request.

Having determined that Sheppard has not shown that his trial attorney provided ineffective assistance of counsel on the grounds alleged above, we need not further address the matter, but we do emphasize that ineffectiveness challenges are considered in light of "the totality of the representation" provided by the attorney. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see also Simmons v. State, Nos. 03-11-00229—00230-CR, 2012 WL 3629864, at *4 (Tex. App.—Austin Aug. 22, 2012, pet. ref'd) (mem. op., not designated for publication) (determining that "[t]he critical weakness" in ineffectiveness claim was "its failure to consider the totality of trial counsel's representation"). Moreover, we note that during the trial, Sheppard's attorney cross-examined all of the State's witnesses and called witnesses to the stand to testify on behalf of Sheppard. In his closing arguments during the guilt-or-innocence phase, Sheppard's attorney asserted that Timothy committed a malicious act by striking the truck, emphasized that Timothy told an insurance agent that he hit the truck with a shovel even though Timothy testified that he only hit the truck with his hand, urged that this case was really a civil insurance matter involving damages to vehicles, asserted that Timothy brought these criminal charges as revenge against Sheppard for ruining his motorcycle after Timothy initiated the conflict, argued that no criminal act had been performed, and urged the jury to find Sheppard not guilty. Cf. Harris v. State, No. 04-14-00888-CR, 2015 WL 7566229, at *5 (Tex. App.—San Antonio Nov. 25, 2015, pet. ref'd) (mem. op., not designated for publication) (determining that trial counsel did not provide ineffective assistance by pursuing strategy "akin to jury nullification" by trying "to convince the jury to find Harris not guilty, in spite of the evidence against him"); Hall v. State, No. 12-07-00478-CR, 2009 WL 1871681, at *6 (Tex. App.—Tyler June 30, 2009, no pet.) (mem. op., not designated for publication) (concluding that trial counsel did not provide ineffective assistance by pursuing jury-nullification strategy that focused on conduct of police and complaining witness and explaining that although strategy may be "distasteful," it "is not outside the calculated risks ordinarily undertaken by defense counsel"). In the punishment phase, Sheppard's attorney cross-examined the State's witness and argued in his closing that the district court should disregard the evidence of a prior but dissimilar crime that the State introduced during the punishment hearing. In the absence of additional information, we conclude that the totality of the representation suggests that Sheppard was provided with effective assistance of counsel.

For all of these reasons, we overrule Sheppard's issue on appeal.

CONCLUSION

Having overruled Sheppard's sole issue on appeal, we affirm the district court's judgment of conviction.

/s/_________

David Puryear, Justice Before Justices Puryear, Pemberton, and Goodwin Affirmed Filed: May 11, 2017 Do Not Publish