Opinion
No. 06-17-00142-CR
05-24-2018
On Appeal from the 336th District Court Fannin County, Texas
Trial Court No. CR-16-26034 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
Following a jury trial, James Harold Moon was found guilty of aggravated assault of a public servant and assessed punishment of twenty-five years' confinement in prison. Moon appeals the judgment of conviction, maintaining (1) that there was insufficient evidence to support a guilty verdict, (2) that the trial court's jury charge contained egregious error, and (3) that he received ineffective assistance of counsel. Because there was sufficient evidence to support the guilty verdict, the jury charge did not contain egregious error, and Moon received effective assistance of counsel, we affirm the judgment of the trial court.
I. Background
Land Surveyor Trevor Trentham testified that on July 5, 2016, he and his partner were attempting to survey a piece of property located in Fannin County. The property was located north of Moon's property. Due to problems with completing the survey, Trentham moved to Moon's property "to solve the boundary of the property [he was] working on." While Trentham was working on the survey, Moon approached the surveyors in his truck and informed them that he did not want them on his property. Trentham's partner told him to stay where he was and complete the survey. When the pair did not leave, Moon "[r]epeated more serious expression to leave his property." Moon then retrieved a rifle from his truck, but he neither pointed it at Trentham or his partner nor fired the weapon. Moon again told the surveyors to leave his property. At that point, Trentham took his equipment and proceeded to walk back to his work truck.
A few minutes later, Trentham walked toward Moon, who was at that time sitting in his truck, and he began to explain to Moon why he was there. He also stated, "Just don't shoot me." According to Trentham, Moon "seemed fairly normal at that point," but he remained adamant that he did want them on his property. After their brief conversation, Moon left the area.
During the time Trentham was talking to Moon, his partner contacted the sheriff's department. After approximately ten minutes, Sergeant Cody Dixon arrived. Dixon asked Trentham what they were attempting to do on the property. They explained that they were trying to survey the land. Dixon asked them if they "need[ed] th[e] shot still." When they informed him that they did, Dixon walked with them back to the area they had been attempting to survey. While they were attempting to "get the shot," Moon reappeared and again expressed his dissatisfaction. Trentham stated that when Dixon began explaining to Moon why the surveyors were there and that as soon as they finished their business they would leave, Moon began to get "a little upset." Moon told Dixon, "[G]et out of here." Trentham stated that by that time, both Moon and Dixon were "agitated." According to Trentham, "Moon, he ended up in his backyard firing rounds out of what I believe to be a pistol, because I couldn't see it." Trentham explained that Moon was not firing at him and that he was firing in the opposite direction. Trentham stated that he never saw Moon point a weapon at Dixon and he did not witness Moon threaten Dixon with physical harm.
Dixon is a sergeant with the Fannin County Sheriff's Department.
The other surveyor, Enemicio Alaniz, testified consistent with Trentham's testimony.
Dixon testified that on July 5, 2016, he was dispatched to the area near Moon's property. It was his understanding that the two surveyors were attempting to survey a piece of property and that "the older gentleman came out . . . brandish[ing] a gun at them" and "tell[ing] them to get off of his property." When Dixon arrived at the scene, he met with the two surveyors who informed him that they were attempting to survey a piece of property next to Moon's property and that when they reached "a certain spot on the fence line to get the angle that they needed," Moon appeared and demanded that they get off of his property "because he paid taxes all of the way up to the middle of the roadway." Dixon stated that he asked Trentham and Alaniz the exact area in which they had been working in order to determine if the pair was, in fact, on Moon's property. Dixon explained, "They were using a concrete marker, which was inside [Moon's] property line, and they were standing outside of [Moon's] property -- the fence line."
During the conversation between Dixon and the surveyors, Moon "walk[ed] out, yelling at [them] to get off the property . . . ." Dixon stated that they were approximately twenty-five to thirty yards from Moon. According to Dixon,
[Moon] was aggressive. He was angry, yelling, cursing. He was telling us to get off of his property. And, you know, I told him, I said, look, I'll be with you in a minute, I'll deal with you in a minute. I'm trying to figure out what they have got going on, trying to figure this situation out. And he didn't -- he was still angry. He walked off aggressively and he went back to [his] truck.Dixon and the surveyors returned to Dixon's patrol car, when "out of the corner of [his] eye, [Dixon saw] Moon walking back." Dixon "[t]urned, looked. [Moon] had a gun in his hand." Dixon then informed dispatch that Moon had a gun. He ordered the surveyors to get behind his patrol car. Dixon testified, "And we get behind my car, I tell dispatch he's racked one in the chamber, put one in the chamber, made the gun ready to fire." Dixon stated, "Once [Moon] stop[ped], he's yelling, 'Get off my property. I pay taxes up to the middle of the roadway.'" Dixon continued,
He then takes an aggressive bladed stance, one foot in front of the other like you're ready to fight, shoot a gun. And he -- he then -- he has the gun down by his -- down
by his side at that time, and after -- after he takes that bladed stance, he brings the gun up, puts one in the chamber, points it, levels it off at me and the two surveyors.Dixon then demonstrated for the jury the incident and explained that Moon's actions were "all one motion, put one in the chamber, and then brought it back down." According to Dixon, Moon maintained eye contact with him. At that point, Dixon tells the surveyors to "take off." Dixon stated, "I felt that he was ready to shoot" due to Moon's "[a]ggressive attitude, aggressive demeanor, bladed stance, yelling, cursing, and then putting one in the chamber and pointing it at me. And once he walks off, he starts firing off rounds towards the back of the property." According to Dixon, "I seen what I seen, and it was the barrel of a gun, and I felt threatened whenever it was pointed at me." Additional officers arrived about five to seven minutes after Dixon contacted dispatch. Dixon explained that during the incident, he was in uniform and in a marked Fannin County patrol car and that he was conducting sheriff's business "on a call for service."
According to Dixon, Moon began firing less than a minute and a half after he walked away. Dixon stated that Moon fired about ten rounds, went to the back of his truck, reloaded the magazine, and fired about ten more times.
Several recordings of the incident were admitted into evidence.
Deputy Eric Taylor was the first to arrive to assist Dixon. While Dixon was explaining to Taylor what had occurred, Moon was walking into his house and then back and forth to "the shop." According to Dixon, he observed Moon carrying a rifle, with a scope, which was slung over his back. Moon then fired approximately five rounds from the high-caliber rifle towards the back of the property. Dixon explained that both officers were "taking cover" behind his patrol car because they "didn't want to be in any line of fire." According to Dixon, Moon could be seen by the fence line, continuing to walk back and forth.
Taylor testified consistent with Dixon's version of events. Taylor stated, however, that when he arrived at the scene, Dixon was in plain view, which Taylor considered to be "nonethical" and unreasonable under the circumstances. Taylor then explained, "[I] think he was just in shock that that situation happened the way that it happened." Taylor also stated that when he observed Moon, he was "turkey peeking" around the garage, meaning that Moon was carrying his rifle while looking back and forth around the corner watching the deputies.
Additional officers began arriving at the scene, and they remained in the area for about eight hours, with the initial incident lasting about four or five hours. When the other officers arrived, Moon disappeared back behind a tree line, and they lost sight of him. Dixon explained,
Concern there is, you know, maybe there's a line of sight to the roadway from where he was. You know, with a high-caliber rifle, maybe he could have taken a shot at us from there. Didn't know exactly where he was. And knew he was aggressive and had, you know, fired rounds off in an aggressive manner and, you know, we didn't know what he was doing back there.Moon never reappeared. For several hours, deputies attempted to communicate with Moon, but they had no success.
Multiple other witnesses testified as to the events following the incident at issue. Much of their testimony related to Moon's successful effort in leaving the area to avoid being located by law enforcement officers. Eventually, Moon was located at his daughter's home in Howe, Texas, and he was subsequently arrested. Texas Ranger Brad Oliver, who was called in to assist in the investigation, mirandized Moon and then interviewed him on the way to the Fannin County Jail.
During the interview, Moon claimed the two surveyors approached him and informed him they were going to survey his property. Moon informed them that he intended to make a "citizen's arrest" if they did not leave the property. Moon stated that the surveyors refused to leave at first, but they eventually returned to their truck and left. According to Moon, he left the area in his vehicle, but then "something just [told him] something just ain't right." Moon returned to see if the surveyors were there and, "sure enough, there they were." Moon stated that the surveyors moved "to the north" of the property, but he decided to "hang around" despite believing "that was the end of it as far as [he knew]." Moon said that he went to his backyard to shoot his weapon, which he described as a "high point" that he bought online. According to Moon, the officers did not attempt to speak to him during the incident, and they acted aggressively toward him. Moon stated that he did not point his weapon at anyone.
The jury also heard a recording of a jail telephone conversation in which Moon stated, "This is a big trumped up thing" and "they're going to wash me under the carpet with it." Moon explained, "They got the shit scared out of them when I was back there shooting at my target . . . they panicked, overreacted and now they're covering their ass."
II. Discussion
A. Sufficiency of the Evidence
Moon contends that the evidence is insufficient to show (1) that he "pointed a firearm at . . . Dixon" and (2) that he intentionally or knowingly threatened Dixon with imminent bodily injury. In evaluating legal sufficiency in this case, we must review all the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found, beyond a reasonable doubt, that Moon was guilty of the charged offense. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring).
We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19). Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
B. Analysis
A person commits the offense of aggravated assault on a public servant if he intentionally or knowingly threatens a person he knows to be a public servant with imminent bodily injury while the public servant is lawfully discharging an official duty. See TEX. PENAL CODE ANN. § 22.01(a)(2) (West Supp. 2017), § 22.02(b)(2)(B) (West 2011). We measure the State's proof against the hypothetically correct jury charge. Remembering that such a charge is one authorized by the indictment, the indictment against Moon alleged that on or about July 5, 2016, Moon
In relevant part, the Texas Penal Code defines "public servant" as "a person elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent of government." TEX. PENAL CODE ANN. § 1.07(41) (West Supp. 2017). The record contains evidence that at the time of the alleged incident, Dixon was employed as an officer of the Fannin County Sheriff's Office. Moon did not dispute this evidence at trial, and he does not do so on appeal.
did then and there intentionally, knowingly, and recklessly threaten bodily injury to Cody Dixon, hereafter styled the complainant, by pointing a firearm at him, and [Moon] did then and there know that the complainant was then and there a public servant[,] to-wit: a Fannin County Sheriff's deputy, and that the complainant was then and there lawfully discharging an official duty, to wit: responding to and investigating a call for service.
First, Moon contends that the evidence was legally insufficient to show that he pointed a weapon at Dixon. In support of his contention, Moon directs us to various evidence, including (1) the testimony from Trentham and Alaniz that they did not see Moon point a weapon at Dixon, (2) Dixon's body camera footage, which did not show Moon pointing a weapon at Dixon, (3) the fact that Dixon did not inform dispatch that Moon pointed a weapon at Dixon, (4) the fact that Dixon did not tell Taylor that Moon had pointed a weapon at him and, instead, told Taylor that "he had it right here," and (5) Taylor's testimony that Dixon's behavior was not, based on Taylor's training, consistent with someone who had been threatened with a firearm.
However, in addition to the foregoing testimony, Dixon testified throughout the trial that Moon loaded the gun, took a "bladed stance," and pointed the weapon at him. As the judge of witness credibility, the jury was free to reject Dixon's testimony or to believe his version of events. See Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). Moreover, a jury may believe a witness even though some of his testimony is contradicted by other evidence. Jackson v. State, 505 S.W.2d 916, 918 (Tex. Crim. App. 1974). Here, it appears that the jury believed Dixon's testimony that Moon pointed a weapon at him. Viewing all of the evidence in a light most favorable to the verdict, we find that the evidence was legally sufficient to prove that Moon pointed his weapon at Dixon.
In its charge, the trial court instructed the jury, "You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony . . . ."
Moon also contends that even if the evidence was sufficient to show he pointed a weapon at Dixon, it did not support a finding that he did so intentionally. In support of his position, Moon states, "The evidence in the record shows only that [Moon] put a bullet into the chamber of the firearm and that during that time Dixon briefly observed the barrel of the gun. That is a separate and distinct action from pointing the firearm at Dixon as alleged in the indictment."
Intent is a question of fact and is in the sole purview of the jury. Brown v. State, 122 S.W.3d 794, 801 (Tex. Crim. App. 2003). "The jury may, of course, infer intent from any facts in evidence which it determines prove[] the existence of such intent . . . ." Id. In addition, a culpable mental state can be established by circumstantial evidence and may be inferred "from any facts which tend to prove its existence, including the acts, words, [and] conduct of the accused, and the method of committing the crime." Louis v. State, 329 S.W.3d 260, 268 (Tex. App.—Texarkana 2010), aff'd, 393 S.W.3d 246 (Tex. Crim. App. 2012) (citing Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002)); Dunn v. State, 13 S.W.3d 95, 98-99 (Tex. App.—Texarkana 2000, no pet.).
Moon contends that because Dixon testified that Moon only fleetingly pointed the gun at him, Moon's actions were not intentional. Notably, "[t]he conduct prohibited by Section 22.01(a)(2) is making [the] threat, not pointing a weapon." Edwards v. State, 57 S.W.3d 677, 679 (Tex. App.—Beaumont 2001, pet. ref'd). This is so even when the indictment alleges, as it does in this case, that the particular means of making the threat is by pointing a weapon. Id. Accordingly, our main focus is not on Dixon's perception of Moon's behavior; rather, we look at Moon's actions and his culpability, that is, whether he intended to cause or knowingly caused Dixon to be in reasonable apprehension of imminent bodily injury when he pointed the weapon at Dixon.
On cross-examination, Dixon was asked, "So, it could be interpreted that [Moon] really did not intend to do that?" Dixon answered, "No sir, it cannot be interpreted that way. You intentionally raise a gun and intentionally rack one in the chamber[.]" Considering that the jury heard evidence that (1) Moon pointed his weapon directly at Dixon while he was within shooting range, (2) Moon chambered the weapon, (3) Moon was angry, erratic, and aggressive prior to pointing the weapon at Dixon, (4) Moon did not want the surveyors or Dixon in the area, and (5) Dixon perceived Moon's actions as intimidating and threatening, there was legally sufficient evidence to support the jury's finding that Moon intended to or knowingly placed Dixon in fear of imminent bodily injury.
The mere presence of a weapon, under certain circumstances, can be sufficient evidence of a threat of bodily injury. DeLeon v. State, 865 S.W.2d 139, 142 (Tex. App.—Corpus Christi 1993, no pet.); Gaston v. State, 672 S.W.2d 819, 821-22 (Tex. App.—Dallas 1983, no pet.).
We overrule Moon's first point of error.
B. Jury Charge Error
Moon contends that "the trial court erred when it instructed the jury to find [him] guilty if [it] found that he recklessly threatened Cody Dixon with imminent bodily injury." Moon explains, "Assault by threat can only be accomplished intentionally or knowingly—not recklessly." Our review of an alleged jury charge error involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we determine whether error occurred and then "determine whether sufficient harm resulted from the error to require reversal." Id. at 731-32; see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). The level of harm that must be shown as having resulted from the erroneous jury instruction depends on whether the appellant properly objected to the error. Abdnor, 871 S.W.2d at 732.
When a proper objection is made a trial, a reversal is required if there is "some harm" "calculated to injure the rights of defendant." Id. (quoting Almanza, 686 S.W.2d at 171). But, "[w]hen the defendant fails to object . . . to the charge, we will not reverse the jury-charge error unless the record shows 'egregious harm' to the defendant." Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005) (citing Almanza, 686 S.W.2d at 171). In determining whether the error caused egregious harm, we must decide whether the error created such harm that the appellant did not have a "fair and impartial trial." TEX. CODE CRIM. PROC. ANN. art. 36.19 (West 2006); Almanza, 686 S.W.2d at 171; Boones v. State, 170 S.W.3d 653, 659 (Tex. App.—Texarkana 2005, no pet.); see Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). "Neither the State nor the defendant has a burden to prove harm." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
Article 36.19 states,
Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.TEX. CODE CRIM. PROC. ANN. art. 36.19.
"In order to preserve error relating to a jury charge[,] there must either be an objection or a requested charge." Vasquez v. State, 919 S.W.2d 433, 435 (Tex. Crim. App. 1996). Rule 33.1 of the Texas Rules of Appellate Procedure requires that a complaint be made "with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context." TEX. R. APP. P. 33.1(a)(1)(A). "[N]o talismanic words are needed to preserve error as long as the court can understand from the context what the complaint is." Clark v. State, 365 S.W.3d 333, 337 (Tex. Crim. App. 2012). In this case, Moon did not object at trial to the inclusion of the now-complained-of language. Accordingly, error was not preserved, and Moon must show egregious harm for a reversal to be warranted. See Abdnor, 871 S.W.2d at 732.
Pursuant to Texas law, there are three different ways to commit the offense of assault:
(1) intentionally, knowingly, or recklessly caus[ing] bodily injury to another, including the person's spouse;TEX. PENAL CODE ANN. § 22.01(a) (West Supp. 2017).
(2) intentionally or knowingly threaten[ing] another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly caus[ing] physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
Section 6.03(a) of the Texas Penal Code states, "A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result." TEX. PENAL CODE ANN. § 6.03(a) (West 2011).
Section 6.03(b) of the Texas Penal Code states,
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.TEX. PENAL CODE ANN. § 6.03(b) (West 2011).
Section 6.03(c) of the Texas Penal Code states,
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.TEX. PENAL CODE ANN. § 6.03(c) (West 2011).
Further, there are two ways in which aggravated assault may be committed. The first occurs when an individual commits assault in any manner proscribed by Section 22.01 and in so doing causes serious bodily injury to the victim. TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011). The second occurs when an individual commits an assault in any manner proscribed by Section 22.01 and uses or exhibits a deadly weapon during its commission. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). As we explained in Hall v. State,
The first variant of aggravated assault is a "nature of the result" offense because the statute imposes criminal liability based on the assailant's intent to cause a specific result: serious bodily injury. See, e.g., Sneed v. State, 803 S.W.2d 833, 835 (Tex. App.—Dallas 1991, pet. ref'd) (statute prohibiting assault of a police officer proscribes a particular result—causing injury to the officer—and is a result-oriented offense). When an indictment alleges an actor committed the offense of aggravated assault based on a specific result, the culpable mental state's definition(s) that are used in the trial court's charge guide the jury in determining whether the actor intended the specific result of his or her conduct.Hall v. State, 145 S.W.3d 754, 759 (Tex. App.—Texarkana 2004, no pet.).
The second variant of aggravated assault—assault while using a deadly weapon—is a "nature of the conduct offense." Guzman v. State, 933 S.W.2d 884, 887 (Tex. App.—Corpus Christi 1999, no pet.). This is because the Texas Legislature has proscribed the method in which the actor commits the assault, regardless of the outcome of that conduct. When the offense is a "nature of the conduct offense," the appropriate culpable mental state definition(s), as used in the trial court's charge to the jury, are to guide the jury in determining whether the actor intended to use or exhibit the deadly weapon during the commission of the offense.
On appeal, Moon complains of the trial court's inclusion of the following portions of the jury instruction, which was entitled "Application of Law to the Facts":
Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about July 5, 2016, in Fannin County, Texas, the defendant, James Moon, did then there intentionally, knowingly, or recklessly threaten bodily injury to Cody Dixon, . . . by pointing a firearm at Cody Dixon."(Emphasis added). The State concedes that the trial court's inclusion of the "reckless" language in the jury instructions was error; however, it contends that it "was not harmful, let along egregiously so, because the evidence shows [Moon] knowingly and intentionally aimed a gun at a deputy."
Under the heading "Definitions," the trial court instructed the jury as follows:
Our law provides that a person commits the offense of Assault if the person intentionally, knowingly, or recklessly threatens another with imminent bodily injury to another, including the person's spouse.
Additionally, a person commits the offense of Assault if the person intentionally, knowingly, or recklessly threatens another with imminent bodily injury to another, and the actor knew the person is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant.
A person commits Aggravated Assault if the person commits an Assault as defined above and uses or exhibits a Deadly Weapon during the commission of the assault.
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
A person acts recklessly, or is reckless, with respect to a result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
Because Moon did not object to the complained-of language, we must decide whether the error created such harm that the appellant did not have a "fair and impartial trial." TEX. CODE CRIM. PROC. ANN. art. 36.19. "[E]rrors which result in egregious harm are those which affect 'the very basis of the case,' deprive the defendant of a 'valuable right,' or 'vitally affect a defensive theory.'" Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (quoting Almanza, 686 S.W.2d at 172 (citations omitted)).
[W]hen conducting a harm analysis the reviewing court may consider the following four factors: 1) the charge itself; 2) the state of the evidence including contested issues and the weight of the probative evidence; 3) arguments of counsel; and, 4) any other relevant information revealed by the record of the trial as a whole.Id. (citing Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993)).
Here, a review of the evidence shows that the jury was tasked with considering two versions of the event at issue, that is, whether (1) in accord with Dixon's testimony, Moon intentionally chambered and pointed his weapon at Dixon, which caused Dixon to feel threatened, or (2) in accord with the statements Moon made on the day of the incident, he did not point his weapon at anyone in any manner. There was no evidence that Moon recklessly or accidentally pointed a gun at Dixon, and the State did not argue that he did. To the contrary, throughout the trial and during its closing argument, the State maintained that Moon intentionally pointed his weapon at Dixon, if for only a very brief period of time. While the trial court's instructions were erroneous, when we consider the evidence and the arguments at trial, the error did not "deprive [Moon] of a 'valuable right,' or 'vitally affect a defensive theory.'" See id. (quoting Almanza, 686 S.W.2d at 172 (citations omitted)).
During his closing, Moon's trial counsel stated, "Now, we want to talk about being consistent. Let's talk about being consistent. Mr. Moon, when he was interviewed by Sergeant Thompson [sic] told Sergeant Thompson repeatedly, 'I did not point a gun at Deputy Dixon." He continued, "When [Moon] was interviewed by Ranger Oliver, again, he said, I did not point a gun at Deputy Dixon. When [Moon] was talking to his wife and his son on those jail calls that you heard, once again, he said I did not ever point a gun at Deputy Dixon." Finally, "[o]ver and over, anyone who asked him -- and it's recorded -- he said, I did not do it. I did not point a gun at Deputy Dixon."
Moon's second point of error is overruled.
C. Ineffective Assistance of Counsel
Moon contends he received ineffective assistance of counsel because his trial counsel had an actual conflict of interest, maintaining that his "trial counsel was compelled to provide testimony against" him to his detriment. In response, the State contends there was no actual conflict of interest and that Moon's counsel did not "abandon his post" as his advocate at trial.
1. Moon's First Trial
In May 2017, Moon's first jury trial commenced. On May 24, 2017, Moon failed to appear for what was anticipated to be the last day of trial. In an effort to explain the circumstances surrounding his absence from the courtroom, Moon's trial counsel (Counsel) informed the trial court that he had been "staying" with Moon in order to "calm him down a little bit and work on his defense." At about 5:30 a.m., Moon apparently fell out of the bed. According to Counsel, Moon had no apparent injuries, but had "soiled himself." Counsel attempted to wake him, but he was unable to do so after trying for "about an hour." Counsel explained that Moon was just "exhausted," to which the trial court responded, "I don't know, sir. He didn't look exhausted at all to me. He looked very agitated and very hyper[.]" As a result of Moon's failure to appear for the last day of his trial, the trial court forfeited his bond and issued a warrant for his arrest.
Moon's sisters believed he had suffered a stroke and were in the process of checking on him. Counsel stated that he did not believe that Moon had had a stroke.
The trial court then informed Counsel that it would like to have more information regarding Moon's alleged physical injuries. The trial court stated, "If he doesn't go to the hospital, then he needs to be here." At that point, Counsel informed the trial court that he was ready to proceed without Moon but that he would like to make a formal motion for continuance of trial. The trial court explained that it would take the motion for continuance under advisement until the trial court had more information. After the parties and the trial court discussed the remaining witnesses and evidence to be presented, the trial court stated, "We're going to wait for one hour, because, if nothing else, the S.O. can go out there and secure his presence." Prior to Counsel leaving the courtroom, the trial court informed him "not to disclose the fact that there . . . [was] a warrant for [Moon's] arrest."
After the conclusion of the hour-long break, Moon had still not appeared for the remainder of his trial. The trial court asked Counsel to telephone Moon, which he did while in the courtroom. Moon's sister answered, stating that Moon had been hospitalized and that she was certain he had suffered from a stroke. The trial court asked Moon's sister to what hospital he had been taken, to which she responded that she did not know but she would call her sister and get that information. After determining Moon's location, Counsel went to the hospital in order to speak with him.
Upon Counsel's return to the courtroom later that day, he explained to the trial court that Moon had "agreed to give [him] a release, but the hospital refused to let [Moon] do it because of his condition. They would not let him do it." When asked what he believed to be Moon's condition, Counsel stated, "He's not in good shape," but he was "conversant." Noting that it has had "many people who feign illnesses," the trial court explained, "Well we're needing some proof, and so, that's what we're looking at in the way of testimony or otherwise." The trial court then proceeded to hear testimony from witnesses regarding Moon's physical status and his ability to appear in court, including Moon's sister.
The chief deputy of the trial court, Doris Whitworth, also testified.
Arguing that "[a]ll we have is an obstructive family, a set of suspicious circumstances," the State asked the court to proceed with the trial in Moon's absence. Counsel asked the trial court to grant a mistrial based on Moon's inability to appear in court due to his illness and subsequent hospitalization. After further arguments by Counsel and the State, the trial court granted a mistrial.
2. Analysis
An actual conflict of interest which adversely affects a lawyer's performance is one way in which a counsel's assistance may be rendered constitutionally ineffective. Strickland v. Washington, 466 U.S. 668, 684-85 (1984). In the majority of ineffective assistance of counsel claims, an appellant must demonstrate both that counsel's representation fell below an objective standard of reasonableness, id. at 688, and that the deficiencies in counsel's performance prejudiced his defense, id. at 692. In a conflict of interest claim, there is a limited presumption of prejudice, i.e., "[p]rejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'" Strickland, 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980) (footnote omitted)).
"[A]n 'actual conflict of interest' exists if counsel is required to make a choice between advancing his client's interest in a fair trial or advancing other interests (perhaps counsel's own) to the detriment of his client's interest." Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997)). For example, an actual conflict may exist: (1) when an attorney is required to represent multiple defendants in the same criminal case, see, e.g., Perillo v. Johnson, 79 F.3d 441 (5th Cir. 1996), and Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir. 1979); (2) when an attorney is hesitant about cross-examining a former client who is called as a witness for the prosecution, see, e.g., Commonwealth v. Goldman, 480 N.E.2d 1023, 1030 (Mass. 1985); or (3) when defense counsel is reluctant to call a defense witness because the witness was a former client, see, e.g., United States v. Levy, 577 F.2d 200, 210-11 (3rd Cir. 1978).
Moon contends that because Counsel disputed Moon's sister's assertion that Moon had sufferred a stroke, Counsel was compelled to be a witness against him. According to Moon, Counsel's actions amounted to an actual conflict of interest. We disagree.
The record shows that the trial court was faced with determining whether Moon failed to appear in court because he was physically unable to do so or, rather, because he voluntarily and intentionally absented himself from the proceedings. From the time Moon's trial resumed that day, Counsel was tasked with truthfully informing the court of the circumstances surrounding Moon's absence, while, at the same time, fulfilling his obligation to represent Moon's best interests. That Counsel disagreed with Moon's sister's assessment of Moon's medical condition is of little consequence because Counsel continued to advocate for Moon by explaining,
Your Honor, once again, I was, you know, at the home when he fell this morning at around 5:30, you know. So, he did -- he did fall. There's no question about that. And he did soil himself. And I wasn't aware that there was perhaps a problem until I was unable to arouse him this morning, at which time when I got to the court, I advised his sisters and they went to the house.The record of Moon's first trial clearly shows that Counsel's statements, along with his motion for a mistrial, were looked upon favorably by the trial court. Moreover, there is nothing contained in this record to show that the trial court admitted evidence related to Moon's absence from his first trial. Thus, Moon's case was presented to a jury that was completely unaware of the previously thwarted proceedings. Moon has not shown that an actual conflict of interest existed, nor has he shown that he was prejudiced in any manner as a result of his attorney's actions. For these reasons, we find that Moon did not receive ineffective assistance of counsel.
In any event, you've heard testimony from the daughter, you've seen his pictures, you've heard from the chief deputy. He -- and I've seen it, too. He's a very sick man. I mean he -- there's no way he's going to be coming to court --
We overrule his third point of error.
III. Conclusion
We affirm the trial court's judgment.
Bailey C. Moseley
Justice Date Submitted: May 9, 2018
Date Decided: May 24, 2018 Do Not Publish