Shackelford v. State

Full title: STEPHEN SHACKELFORD, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fourteenth District, Houston

Date published: Sep 13, 2005

No. 14-04-00633-CR (Tex. App. Sep. 13, 2005)

Opinion

No. 14-04-00633-CR

Memorandum Opinion filed September 13, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 976,190. Affirmed.

Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.

MEMORANDUM OPINION

CHARLES W. SEYMORE, Justice.

A jury convicted appellant, Stephen Shackelford, of aggravated robbery and sentenced him to five years' confinement. In four issues, appellant contends (1) the trial court failed to comply with Article 36.27 of the Texas Code of Criminal Procedure when it responded to a jury question during deliberations, (2) he was denied effective assistance of counsel because his counsel failed to object to the trial court's violation of Article 36.27, (3) the trial court erred by instructing the jury that the law of self-defense only applied to the lesser included offense of aggravated assault, and (4) he was denied effective assistance of counsel because his counsel did not object to the trial court's jury instruction that self-defense applied only to the lesser included offense of aggravated assault. We affirm.

I. BACKGROUND

On February 2, 2004, the complainant, Peter Ochoa, and a friend, Allen Webb, were attempting to sell some speakers outside of a convenience store. Appellant approached Ochoa and offered to sell him a digital camera. Ochoa testified that after they agreed on a price for the camera, he retrieved money from his pocket, and appellant attempted to grab the money from his hand.¹ A physical altercation then occurred between appellant, Ochoa, and Webb. During the altercation, appellant produced a knife and stabbed Ochoa. Shortly thereafter, two of appellant's companions, who had been shopping nearby, joined in the altercation. Ochoa and Webb retreated, leaving their vehicle behind. Appellant and his companions gave chase and continued their aggression toward Webb and Ochoa. After the altercation, appellant returned to Ochoa's car. He vandalized the car and took some speakers out of the trunk before leaving the scene. The police stopped appellant and his two companions near the scene and arrested them.

II. COMMUNICATION TO THE JURY

In his first issue, appellant contends that the trial court failed to comply with Article 36.27 of the Texas Code of Criminal Procedure when it responded to a jury note during deliberations. Article 36.27 provides in pertinent part as follows:

The court shall answer any such [written jury] communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or [sic] objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant. All such proceedings in felony cases shall be a part of the record and shall be recorded by the court reporter.

TEX. CODE CRIM. PROC. ANN. art. 36.27 (Vernon 1981). The record indicates that during jury deliberations at the guilt/innocence phase of trial, the jury sent a note to the trial court asking, "If the assault took place first and the robbery of the speakers was second is it considered aggravated robbery[?]" The trial court responded in writing that "[i]f the assault took place in furtherance of the commission of the robbery then that is considered aggravated robbery." Appellant contends that this response failed to comply with Article 36.27 because the proceeding in which the court responded to the question is not part of the record and was not recorded by the court reporter. Appellant also points out that the record is silent as to whether the appellant or his trial counsel were present when the court's response was read, or whether they were notified of the court's response. A trial court's additional instructions to a jury in violation of the statute requiring such communication to be in open court and in the presence of the defendant constitutes reversible error. See Smith v. State, 513 S.W.2d 823, 829 (Tex.Crim.App. 1974). However, it is incumbent upon a defendant to bring this easily correctable error to the trial court's attention by objection or formal bill of exception. Id. Here, there is nothing in the record to show that appellant objected to the trial court's failure to comply with the procedures set out in Article 36.27. Appellant contends he should not be punished for his failure to object because the record is silent as to whether he was notified of the jury communication. The Court of Criminal Appeals addressed a similar argument in Green v. State, 912 S.W.2d 189 (Tex.Crim.App. 1995). In Green, the appellant argued that he had no opportunity to object to the trial court's response to a jury question because the record did not indicate that his trial counsel was aware of the jury's note and had an opportunity to respond. Id. at 192. The Court rejected this argument, stating that "[t]his Court does not decide cases based on speculation about matters not shown in the record." Id. The Court held that, in the absence of a showing to the contrary, it would presume that the trial court's response was in open court and in the appellant's presence. Id. Therefore, it presumed that the appellant agreed to the trial court's response. Id. at 192-93. Because the record is silent as to whether appellant was present when the trial court's response was read to the jury, we must presume that appellant was present when the response was read and that appellant agreed to the response. See id. Accordingly, we conclude that appellant has waived this issue. We overrule appellant's first issue.

III. JURY INSTRUCTION

In his third issue, appellant contends that the trial court should have instructed the jury that the law of self-defense applied to the offense of aggravated robbery. At trial, appellant conceded that he cut Ochoa with a knife, beat him, and took some speakers from his car, but argued he took these actions in self-defense because Ochoa first attempted to steal from him. The trial court instructed the jury on the law of self-defense, but instructed that it only applied to the lesser included offense of aggravated assault. The trial court has a duty to instruct the jury on the law applicable to the case. Posey v. State, 966 S.W.2d 57, 62 (Tex.Crim.App. 1998). However, the trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. Id. This is true even though the defense may have been raised by the evidence at trial. Id. To preserve error on a defensive issue, the defendant must object or make a specific request for the instruction. Id. Here, appellant did not request that the self-defense instruction be applied to aggravated robbery, and he did not object that the jury charge failed to apply the self-defense instruction to aggravated robbery. Therefore, appellant failed to preserve this issue for review. We overrule appellant's third issue.

IV. ASSISTANCE OF COUNSEL

In his second and fourth issues, appellant contends that he was denied effective assistance of counsel because his counsel failed to (1) object to the trial court's communication to the jury during deliberations, and (2) object that the jury charge did not apply the self-defense instruction to aggravated robbery. To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). An allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). A proper record is best developed in a habeas corpus proceeding or in a motion for new trial hearing. Jensen v. State, 66 S.W.3d 528, 542 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). When the record is silent as to the reasons for trial counsel's actions, we must assume strategic motivation and sound trial strategy unless counsel's conduct is so outrageous that no competent attorney would have so acted. Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001).

A. Failure to Object to Court/Jury Communication

In his second issue, appellant contends that he was denied effective assistance of trial counsel because his counsel failed to object to the trial court's communication to the jury during deliberations. The record in this case does not reflect whether counsel was aware of the communication between the jury and the trial court. Therefore, as appellant acknowledges in his brief, in order to find trial counsel's performance deficient, we would be required to presume that counsel either (1) was aware of the trial court's communication to the jury court and chose not to object, or (2) "should have been aware" of the communication to the jury and thus waived any right to complain by a failure to object. However, we will not find counsel ineffective based on speculation relative to his knowledge or lack of knowledge regarding the trial court's communication with the jury. Moreover, there is nothing in the record to demonstrate that counsel "should have been aware" of the communication to the jury. Accordingly, based on the record before us, appellant has failed to rebut the presumption that his counsel was effective. Therefore, appellant has not satisfied the first prong of Strickland. We overrule appellant's second issue.

B. Failure to Object to Jury Instruction on Self-Defense

In his fourth issue, appellant contends he was denied effective assistance of trial counsel because counsel failed to object that the jury charge did not apply the self-defense instruction to aggravated robbery. Trial counsel's failure to request a jury instruction that would have aided the accused has been held to be ineffective assistance of counsel. See Vasquez v. State, 830 S.W.2d 948, 951 (Tex.Crim.App. 1992) (charge on necessity defense not requested). However, counsel cannot be ineffective for not requesting an instruction the trial court could have properly refused. See Rodriguez v. State, 899 S.W.2d 658, 668 (Tex.Crim.App. 1995). The Court of Criminal Appeals has held that a person committing the offense of robbery has no right of self-defense against his intended victim. See Evans v. State, 601 S.W.2d 943, 946 (Tex.Crim.App. 1980). Therefore, the trial court could have properly refused a self-defense instruction as applied to aggravated robbery, and counsel was not ineffective for failing to object that the jury charge did not apply the self-defense instruction to aggravated robbery.² Accordingly, we overrule appellant's fourth issue. The judgment of the trial court is affirmed.