A jury found Justin Valentine Rhynard guilty of disorderly conduct by intentionally or knowingly displaying a firearm in a manner calculated to alarm. See Tex. Penal Code § 42.01(a)(8). The trial court assessed punishment at 180 days in jail and a fine of $500, probated for a term of 18 months of community supervision. Rhynard moved for new trial, alleging that his counsel at the guilt/innocence phase rendered ineffective assistance. He appeals the trial court's denial of that new-trial motion. We affirm the judgment.

BACKGROUND

The basic facts of the offense are undisputed, though some details and nuances were contested. As dusk fell on July 28, 2017, Lara Brown and Bradley Brown rode their bicycles past Rhynard's family's property. At least one dog pursued the Browns. Having previously been chased by dogs near this property and, Bradley claimed, been bitten by one, Bradley carried a wooden dowel in his water bottle holder intended to scare the dogs away. Bradley said he raised the stick at the dog, and he and Lara yelled at the dog to go away. The dog retreated, and they continued their ride. They were unaware if any human-namely, Rhynard-was standing nearby.

As the Browns continued down the road, Rhynard drove an ATV and caught up with them, yelled at them, and took their picture before returning home. The Browns essentially ignored Rhynard and continued riding. They reached the end of the road and retraced their path, choosing not to take the busier main road. As they turned a corner, Rhynard stepped out onto the road holding a shotgun and urged the Browns to stop. Bradley testified that Rhynard said, "You're not that tough now, are you?" The Browns stopped and dismounted from their bikes. The Browns testified that Rhynard shot once at the ground. According to Bradley, Rhynard yelled at them for three to five minutes, at some point moving off the public road and onto Rhynard's family's property. Bradley agreed that he told a Hays County Sheriff's Office (HCSO) officer that Rhynard said to him, "When you came by here, you told me you were going to fuck me up so come and fuck me up." Bradley denied seeing or saying anything to Rhynard on their first pass by the property. The Browns eventually walked their bikes away until they felt they could safely ride home. On their way, Bradley picked up a shotgun shell that he said was warm and that he believed Rhynard fired during their encounter. Once home, they called 911 and gave statements to the HCSO deputy who was dispatched after the call. A detective later followed up by interviewing the Browns and Rhynard. The Browns testified that they preferred to talk with Rhynard to resolve their conflict rather than press charges.

An HCSO officer testified that Rhynard told him that, on July 28, 2017, he was standing by a roadside mailbox when the Browns rode by and that Bradley raised a stick and shouted that he would "fuck you up;" Rhynard told HCSO officers that he interpreted that statement as directed at him. He then pursued the Browns and took their picture. He told the officers that he learned of the previous incidents after that initial encounter and before he stopped the Browns on their return trip. He admitted carrying his shotgun when confronting the Browns but denied firing his shotgun. He admitted saying to the Browns, "If you're going to fuck me up, do it right now."

Defense witnesses who lived on the property at the time of the incident testified that some bicyclists-including a man and woman riding regularly in the late evening-had previously antagonized and harmed dogs who lived on the property. Defense witnesses testified that cyclists rode past Rhynard's family's land rattling a stick against their fence, that a man hit one of the dogs with a stick, and that one of the dogs came home after having been sprayed with mace. Residents of the property called HCSO after some of these incidents.

Rhynard was not charged with an offense for four months and not tried for four years. Over that time, his counsel announced ready for trial nine times including the Wednesday before his trial. Because this case was fourth in line for trial and because the State expressed doubts that the Browns would appear or testify at trial and would invoke their Fifth Amendment rights, Rhynard did not reschedule other legal proceedings set for the same week as the trial. When this case moved up to second in line, counsel filed a motion for continuance contending he was not ready for trial due to the other settings. Counsel was not able to reschedule his other settings and did not ask for someone to assist him. The case in front of this one was postponed because of the lack of an interpreter, and the court proceeded with this case because a jury pool was waiting. Counsel proceeded with this trial, interrupted by appearances in other cases in district courts in the courthouse.

After the jury found Rhynard guilty, he obtained new counsel for the sentencing phase. After sentencing, that counsel filed a motion for new trial supported by Rhynard's former counsel's affidavit asserting that he had rendered ineffective assistance at the guilt/innocence phase. He said that his other commitments caused this trial to be disjointed and diverted his full attention from this case. In addition to those interruptions, technological difficulties caused the trial to switch courtrooms. The testimony of a witness who appeared remotely was hindered somewhat by technological glitches. As a result, the trial spread over four days instead of two. Former counsel blamed these disruptions for the jury's return of a verdict without reviewing any evidence. He asserted that the denial of the continuance motion that led to the disruptions caused his representation to fall below the prevailing acceptable constitutional norms, that Rhynard was prejudiced by that deficiency, and that the result of trial would have been different had counsel been given the opportunity to provide more effective representation.

Former counsel testified to the same effect at the hearing on the motion for new trial. He said that he did 30 minutes of witness preparation with some witnesses and none with others, while he also prepared some witnesses that he did not call. He testified that the trial was occasionally stopped for 30-45 minutes while he appeared for clients in other proceedings. He testified that the HDMI port at defense counsel's table did not work, so he had to use the prosecution's port. He testified that the Zoom witness's testimony was hard for jurors to follow; he did not assert that the witness was called by Zoom because the case was not continued and he later explained that the witness was now working in Minneapolis as a nurse. He testified that every time the trial started to have a flow it got disrupted by his departure or technology issues, which he thought frustrated the jury. He summarized:

I believe that I tried to [provide effective assistance of counsel]. You know, I believe that I prepared to do that. I believe that because of the other matters that I had-my motion for continuance being denied and the technology issues, especially with his ex-girlfriend testifying by Zoom-I do not believe that I did, no.

He did not testify that lack of preparation prevented him from offering any exhibits.

On cross-examination, former counsel testified that his motion for continuance was based in part on uncertainty whether witnesses would be able to testify by Zoom and Rhynard's sister would not be able to testify. Former counsel testified that he expected Bradley's testimony would have holes in it and that "I think we did a good job of showing it." He also agreed that he was able to draw out inconsistencies in other witnesses' testimony. Counsel agreed that, in the video of his conversation with an HCSO deputy, "Mr. Rhynard admitted to pretty much all the elements of the offense." He recalled discussing parts of the video that had been redacted that showed the dog interacting with the officer that he persuaded the State to reinsert to show the jury the dog was not aggressive. He agreed that the trial court allowed him to go to other proceedings whenever he needed to go.

The trial court denied the motion for new trial.

APPLICABLE LAW

When, as here, a defendant raises an ineffective-assistance-of-counsel claim in a motion for new trial, we review the trial court's denial of that motion under an abuse of discretion standard. Burch v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). This deferential standard requires us to view the evidence in the light most favorable to the trial court's ruling. Id. We must uphold that ruling if it is within the zone of reasonable disagreement and reverse that ruling only if no reasonable view of the record could support it. Id.

To establish ineffective assistance of counsel, an appellant must demonstrate by a preponderance of the evidence both deficient performance by counsel and prejudice suffered by the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App. 2018). The appellant must first demonstrate that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 687-88; Ex parte Scott, 541 S.W.3d 104, 115 (Tex. Crim. App. 2017). The appellant must then show the existence of a reasonable probability-one sufficient to undermine confidence in the outcome-that the result of the proceeding would have been different absent counsel's deficient performance. Strickland, 466 U.S. at 694; Burch, 541 S.W.3d at 820. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700; accord Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

DISCUSSION

Rhynard contends that trial counsel rendered ineffective assistance by failing to properly prepare for trial after announcing "ready" five days before trial and by not filing motions for continuance in other matters in district court that required his attendance. We will examine these issues together when assessing the two elements of the Strickland standard.

I. Counsel's performance

Appellate review of counsel's representation is highly deferential; we must "indulge in a strong presumption that counsel's conduct was not deficient." Nava v. State, 415 S.W.3d 289, 307-08 (Tex. Crim. App. 2013); see Strickland, 466 U.S. at 689. To rebut that presumption, a claim of ineffective assistance must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). The accused is not entitled to perfect or errorless counsel. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Crim. App. 1986); Donald v. State, 543 S.W.3d 466, 476 (Tex. App.- Houston [14th Dist.] 2018, no pet.). Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance ineffective, nor can ineffective assistance of counsel be established by isolating one portion of trial counsel's performance for examination. Bridge, 726 S.W.2d at 571. We assess the claim of ineffectiveness based on the totality of the representation and the particular circumstances of each case. Strickland, 466 U.S. at 695; Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Rhynard asserts that his counsel's deficient preparation is shown by his failure to have his exhibits prepared. Counsel tried to display at least one from his laptop during trial, and the court cautioned against inadvertently offering his computer into evidence. Rhynard asserted in his motion that counsel sent Rhynard himself to have the exhibits printed out so they could be admitted; 17 defense exhibits were admitted, and there is no indication that exhibits were not offered because counsel did not have them preprinted.

Rhynard's arguments do not consider the totality of counsel's representation, which we must do. See Thompson, 9 S.W.3d at 813 (emphasizing that ineffectiveness challenges are considered in light of "the totality of the representation" provided by attorney); 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"). Counsel testified that he spent ten hours preparing for trial after announcing ready watching relevant videos. He had prepared some witnesses, though not all. Former counsel participated in voir dire, assisted by Rhynard. He asked whether panelists' experience with violence and their experience with self-defense situations would affect their ability to be fair and impartial. He rehabilitated a juror who knew Rhynard, forcing the State to use a peremptory strike. He objected to testimony and cross-examined the State's witnesses, showing inconsistencies in details of their testimony concerning the time and duration of the Browns' bike ride, where individuals stood, and the likelihood that the shotgun shell Bradley picked up was fired by Rhynard during the standoff. He called witnesses and developed a theory implying that someone-possibly the Browns-had previously been the aggressors with Rhynard's family's dogs and that Rhynard was simply defending his dogs and property. That testimony dovetailed with Rhynard's statement to HCSO officers that he was present when the Browns first passed by and felt that Bradley yelled at and challenged him, not the dogs. The technology issues, including a non-functioning port and glitches during an out-of-state witness's testimony by Zoom, were not shown to be the result of counsel's preparation; indeed, the judge in the new-trial hearing took "judicial notice of the fact that the technology in this courtroom and the other courtrooms on the second floor is lousy and not particularly reliable." Though former counsel testified that obtaining the testimony was frustrating, the witness testified and the court reporter was able to transcribe her testimony.

Rhynard contends that counsel should have filed timely motions for continuance in the other cases and that the motions "would most likely have been granted." He contends alternatively that counsel should have asked other lawyers who would have been available and willing to help if only he had asked. He did not move to continue other cases but indicated at the new-trial hearing that, while other people often got proceedings reset when they were absent from a setting, that did not happen for him-possibly because he was already in the building. The record does not show that other judges would have in fact granted any requests for continuance in the other cases or that other lawyers were available or would have been allowed to step in to those hearings. Cf. Soto v. State, No. 05-03-00083-CR, 2003 WL 22663549 (Tex. App.-Dallas Nov. 12, 2003, no pet.) (not designated for publication) (concluding that defendant failed to establish ineffective assistance for his trial attorney's failure to seek continuance where defendant has not shown that motion would have been granted). The judge in this case allowed him to leave whenever he was needed elsewhere without counsel having to miss any part of the trial in this case.

Although trial counsel described his representation as ineffective, effectiveness determinations are made under an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88. Under that standard, the trial court could have rejected counsel's assertion of ineffective assistance and rationally inferred from the evidence that trial attorney made a difficult tactical decision to proceed with the case even in a divided capacity. See State v. Morales, 253 S.W.3d 686, 689, 698 (Tex. Crim. App. 2008) (determining that trial court could have reasonably determined that counsel provided effective assistance even though counsel stated in affidavit that his representation was ineffective). The lack of printed exhibits before trial was not ideal, but there is no showing that exhibits were excluded because of the lack of advance printing. Interruptions to the trial and counsel's concentration are not optimal, but there is no showing that counsel's actual performance between the interruptions was deficient. Former counsel prepared for trial, participated in voir dire, had exhibits admitted, used cross-examination to reveal inconsistencies in testimony, and called witnesses for the defense who spoke of abuse of the dogs by passing bicyclists.

Viewing the totality of the representation, we are not persuaded that Rhynard has shown that his counsel at the guilt/innocence phase provided assistance that fell below the constitutional standard.

II. Prejudice

In the alternative, Rhynard's appeal fails on the prejudice element. The prejudice component of the Strickland standard requires proof by a preponderance of evidence that, but for counsel's deficiency, there is a reasonable probability-sufficient to undermine confidence in the outcome-that the result of the trial would have been different. Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 893. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 694; Perez, 310 S.W.3d at 894. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700; see Perez, 310 S.W.3d at 893.

Rhynard was convicted of disorderly conduct through display of a firearm or other deadly weapon in a public place in a manner calculated to alarm. See Tex. Penal Code § 42.01(a)(8). Rhynard's own statements, shown through HCSO officer testimony and the recordings of HCSO officer conversation with Rhynard, established the elements of the offense. He stood on a public road holding a shotgun in a manner calculated to alarm the Browns. He told HCSO officers that he "wanted the dude to understand don't fuck with me." The Browns' testimony confirmed that Rhynard succeeded in alarming them as their testimony aligned with those statements on those essential facts. The offense charged is not dependent on whether the Browns had previously or on this date antagonized or injured the dogs or whether Rhynard fired the shotgun during their encounter. There is no showing that the lack of previously printed exhibits (which were eventually printed and admitted), other lack of preparation by counsel, or counsel's possibly divided attention during the trial was a factor in the outcome of the trial in light of the undisputed evidence of Rhynard's actions satisfying the elements of the offense charged. Cf. Samarripas v. State, 438 S.W.3d 673, 676 (Tex. App.-San Antonio 2014, no pet.) (determining that defendant was not prejudiced by allegedly deficient performance where "overwhelming evidence of his guilt" was presented).

We conclude that the trial court did not abuse its discretion by denying the motion for new trial because the record does not show that Rhynard's counsel at the guilt/innocence phase provided deficient assistance or that there is any reasonable probability that the result of the proceeding would have been different had counsel prepared more or obtained continuances of this or other proceedings.

We overrule both issues on appeal.

CONCLUSION

Having overruled both issues on appeal, we affirm the judgment.

Affirmed.

Rhynard v. State

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Rhynard v. State

Rhynard v. State

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Rhynard v. State

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Rhynard v. State

Rhynard v. State

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