Ex Parte Richard Asa Todd ( 2015 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00479-CR
Ex parte Richard Asa Todd
FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY, TEXAS
NO. 11-07348-3, HONORABLE DOUG ARNOLD, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant, Richard Asa Todd (Richard),1 guilty of assault causing bodily
injury. See Tex. Penal Code § 22.01(a)(1). Richard filed an application for writ of habeas corpus
with the county court at law in which he was tried, seeking to have the conviction set aside on the
grounds of ineffective assistance of counsel due to his trial attorney’s failure to request a jury charge
instruction on the defense of consent. See Tex. Code Crim. Proc. art. 11.072. The county court at
law denied Richard’s application, and Richard appealed to this Court. For the reasons that follow,
we affirm the county court at law’s denial of relief.
BACKGROUND
In the fall of 2011, Richard’s wife, his siblings, and their spouses conducted a series
of family meetings in order to settle Richard’s deceased father’s estate. The process was contentious,
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This case involves an altercation between appellant and his brother. Because they share
the same surname, we refer to them by their first names in this opinion.
and Richard suspected that his brother, Thomas Todd (Tim), was intentionally impeding progress.
One such meeting took place at their deceased father’s home on October 2, 2011. Richard arrived
while the meeting was already in progress. He did not enter the house, and Tim joined him outside.
The two exchanged heated words before the encounter escalated into a fistfight. Nobody other than
Richard and Tim were present for the beginning of the fight. After the fight, their sister called the
police who arrested Richard.
At trial, Tim testified that Richard told him that he wanted to break every bone in his
body shortly before they fought. Tim alleged that he responded by positioning himself very close
to Richard and saying something along the lines of “let’s see what you’ve got.” According to Tim’s
testimony, Richard then punched him numerous times and may have head-butted him before he was
able to end the fight by pinning Richard to the ground.
At trial, Richard claimed that he never threatened to break Tim’s bones. Instead, he
said that the only way that Tim and Tim’s wife could move any slower in settling the estate was if
they had broken bones. According to Richard’s testimony, Tim then ran toward him, grabbed him
by the shoulders, and dared Richard to hit him so that he could put Richard in jail. Richard claimed
that he was forced to strike Tim in his struggle to free himself from Tim’s grasp.
At his trial for assault, Richard’s attorney argued that Richard was merely defending
himself from Tim and obtained a jury instruction on self-defense. See Tex. Penal Code § 9.31
(setting forth justification defense of self-defense). Richard’s trial counsel did not request a jury
instruction on the defense of consent. See id. § 22.06 (establishing consent as defense to assaultive
conduct). The jury returned a verdict convicting Richard of assault causing bodily injury. The
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parties then reached a plea agreement regarding sentencing, which the county court at law accepted.
Pursuant to that plea agreement, Richard waived his right to appeal.
Richard moved for a new trial, arguing that Richard’s trial counsel’s failure to seek
a jury instruction on the defense of consent constituted ineffective assistance of counsel. Attached
to Richard’s motion for new trial was Richard’s trial counsel’s affidavit, asserting that the failure to
raise the defense of consent was an oversight rather than a strategic decision. The affidavit was
admitted at the hearing on the motion for new trial, which the county court at law denied.
Richard then filed an application for writ of habeas corpus under article 11.072 of the
Texas Code of Criminal Procedure, again alleging ineffective assistance of counsel and again
attaching Richard’s trial counsel’s affidavit asserting that his failure to raise the defense of consent
was not strategic. The county court at law denied Richard’s application. The order denying habeas
relief contains conclusions of law that include the following:
• defendants alleging ineffective assistance of counsel must show deficient
performance by counsel;
• defendants alleging ineffective assistance of counsel must also show a
reasonable probability that the outcome of the trial would have been different
but for their counsel’s errors;
• Richard’s trial counsel “was not deficient in failing to request a jury
instruction on the defensive issue of consent,”; and
• any “such deficiency did not result in prejudice to [Richard].”
Richard appeals the county court at law’s denial of his application for writ of habeas corpus.
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ANALYSIS
Legal Standards
In reviewing a trial court’s decision to grant or deny habeas corpus relief, we view
the facts in the light most favorable to the trial court’s ruling and uphold that ruling absent an abuse
of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). A trial court abuses
its discretion if it acts without reference to any guiding rules or principles or when it acts arbitrarily
or unreasonably. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d). The trial court’s findings of fact in a habeas proceeding deserve near total deference, if they
are supported by the record. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011) (citing
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). “We also afford that same level of
deference to a trial court’s ruling on ‘application of law to fact questions,’ also known as ‘mixed
questions of law and fact,’ if the resolution of those ultimate questions turns on an evaluation of
credibility and demeanor.” Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per
curiam) (quoting Guzman, 955 S.W.2d at 89), overruled in part on other grounds by Ex parte Lewis,
219 S.W.3d 335, 371 (Tex. Crim. App. 2007).2
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It is appropriate for the appellate court to review the trial court’s application of the law to
the facts de novo if the decision does not turn on witness credibility or demeanor and the trial court
is not in an appreciably better position to rule than the appellate court. Ex parte Martin,
6 S.W.3d 524, 526 (Tex. Crim. App. 1999). De novo review is not appropriate in the present case,
as the relevant questions do turn on the credibility of testimony and of Richard’s trial counsel’s
affidavit. See Ex parte Thompson v. State, 153 S.W.3d 416, 425 (Tex. Crim. App. 2005) (“[A]
reviewing court will defer to factual findings of the trial judge even when the evidence is submitted
by affidavit.”) (citing Manzi v. State, 88 S.W.3d 240, 242-44 (Tex. Crim. App. 2002)).
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To establish ineffective assistance of counsel, an appellant or habeas applicant must
demonstrate by a preponderance of the evidence (1) deficient performance by counsel and
(2) prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State,
726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (adopting Strickland test). To satisfy the first part
of the Strickland test, the appellant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S.
at 687-88. There is a strong presumption that counsel’s performance was not deficient. Id. at 689.
To satisfy the second part of the Strickland test, the appellant must show that there is a reasonable
probability that the result of the trial would have been different if counsel’s performance was not
deficient. Id. at 694. The probability must be strong enough to undermine confidence in the
outcome of the trial. Id.
Parties’ Contentions
On appeal, Richard argues that his testimony raised the defense of consent, giving
him an absolute right to a jury instruction on that defense regardless of the trial court’s opinion of
its merit. According to Richard, his trial counsel’s failure to request the instruction constitutes
deficient performance, especially in light of Richard’s trial counsel’s affidavit disavowing any
strategic reason for not raising the defense. Richard further argues that he was prejudiced because
a jury would likely have concluded that Tim consented to the fight. He cites to Vasquez v. State in
support of these contentions, in which counsel’s failure to request an instruction on the defensive
issue of necessity was sufficient to establish both deficient performance and prejudice because the
evidence raised the necessity defense, there was no strategic reason not to request the instruction,
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and the jury had no chance to consider the defensive issue. 830 S.W.2d 948, 950-51 (Tex. Crim.
App. 1992).
The State argues that the county court at law correctly found that Richard’s trial
counsel’s performance was not deficient and that Richard suffered no prejudice. According to the
State, the evidence did not support a consent instruction because Tim’s statements could not possibly
be construed as permission to assault him. The State also argues that Richard’s threat to break every
bone in Tim’s body negates the defense of consent. See Tex. Penal Code § 22.06 (consent is defense
to assault “if the conduct did not threaten or inflict serious bodily injury.”). Additionally, the State
contends that there was a strategic reason not to request the consent instruction because it would
have undermined the much stronger defense of self-defense. The State also maintains that Richard
suffered no prejudice because a consent instruction would not likely have changed the outcome of
the trial.
Deficient Performance
The county court at law did not abuse its discretion by concluding that Richard’s trial
counsel “was not deficient in failing to request a jury instruction on the defensive issue of consent”
and denying Richard’s application. According to Richard’s trial counsel’s affidavit, he had no
strategic reason to forgo the consent defense and believes that his performance fell below the
standard of prevailing professional norms. In his own words, Richard’s trial counsel “simply
dropped the ball by failing to request such an instruction.” However, even considering the affidavit,
we find that Richard’s trial counsel’s performance passes muster under Strickland, which is an
objective test in which “the defendant must overcome the presumption that, under the circumstances,
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the challenged action ‘might be considered sound trial strategy.”’ Strickland, 466 U.S. at 688-89
(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Richard’s trial counsel’s actions might,
objectively, be considered sound trial strategy because (1) the defense of consent was unavailable
and (2) by raising the defense of consent, Richard’s trial counsel could have undermined the claim
of self-defense.
The defense of consent would not have applied in this case. If Richard’s trial counsel
had requested the consent instruction and the evidence supported that instruction, the county court
at law would have been required to include it. Warren v. State, 565 S.W.2d 931, 933 (Tex. Crim.
App. 1978) (“The trial court is required when properly requested to charge on every defensive issue
raised by the evidence.”). Richard’s own testimony alleging that Tim consented to the fight might
have been sufficient if he had not threatened Tim with serious bodily injury. Granger v. State,
3 S.W.3d 36, 38 (Tex. Crim. App. 1999) (“[A]n accused has the right to an instruction on any
defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or
contradicted, and regardless of what the trial court may or may not think about the credibility of the
evidence.”); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991) (op. on reh’g) (“It is
equally well-settled that an accused is thus entitled to that instruction whether the issue is raised by
a defendant’s testimony alone or otherwise.”); but see Tex. Penal Code § 22.06(a)(1) (defense of
consent not available if defendant threatened or inflicted serious bodily injury). However, the county
court at law made an explicit conclusion of law that “the defense of consent did not apply in this case
given applicant’s threat, express or implied, prior to the assault, to ‘break every bone’ in Tim’s body.
The statement manifested a threat to commit serious bodily injury to Tim.” The county court at law
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had conflicting testimony before it regarding what Richard said to Tim, but both versions of this
story include a reference to broken bones that could constitute an implied threat, if not an express
threat. We must afford appropriate deference to the county court at law as a trial court deciding a
mixed question of law and fact involving credibility and demeanor. See Ex parte Peterson,
117 S.W.3d at 819. The county court at law did not abuse its discretion by denying relief based
solely on Richard’s trial counsel’s failure to pursue an unavailable defense.
Furthermore, there was an objectively good reason for Richard’s trial counsel not to
request a jury charge instruction on the consent defense: it could have undermined the stronger
defense of self-defense. The county court at law made the specific finding of fact that “[d]uring his
closing argument to the jury, [Richard’s trial counsel] focused on self-defense . . . . Specifically,
[Richard’s trial counsel] argued that Tim’s alleged statement to [Richard] immediately prior to the
assault, ‘Come on, hit me,’ manifested Tim’s intent to assault [Richard] if [Richard] did not strike
him first.” We afford this finding near total deference. See id. The county court at law also made
the following conclusion of law:
In the context of the overall defensive theory of the case, as [Richard’s trial counsel]
presented at trial, the defense of consent would have been inconsistent with the
defense actually pursued, self-defense. See Okonkwo v. State, No. PD-0207-12 (Tex.
Crim. App. 5/15/13). The prime evidence now asserted by applicant supporting the
defense of consent, consisting of Tim’s alleged statements to [Richard] preceding the
assault, ‘Come on, hit me,’ was actually utilized by [Richard’s trial counsel] during
closing argument as evidence underlying the claims of self-defense.
Again, we defer to the county court at law’s determination on this mixed question of law and fact.
See id. The circumstances of Richard’s case are, therefore, distinguishable from those in Vasquez,
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in which the appellate court specifically found that “appellant had nothing to lose by requesting a
defensive instruction.” 830 S.W.2d at 951. It was objectively reasonable for Richard’s trial counsel
to forgo the defensive issue of consent in order to protect the stronger defense of self-defense.
Objectively, there were good reasons why Richard’s trial counsel should not have
requested the consent instruction. In light of these reasons and the significant deference due to the
county court at law’s determinations, we find that the county court at law’s determination that
Richard’s trial counsel’s performance was not deficient is supported by the record.
Prejudice
Having determined that the record supports the county court at law’s conclusion that
Richard’s trial counsel’s performance was not deficient, we need not address its conclusion that
Richard was not prejudiced by his trial counsel’s failure to request a jury charge instruction on the
consent defense. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim); see also Tex. R.
App. P. 47.1 (appellate courts must hand down opinions that are as brief as practicable but that
address every issue raised and necessary to disposition of appeals). Because the record supports the
county court at law’s ultimate implied conclusion that Richard failed to demonstrate ineffective
assistance of counsel, it did not abuse its discretion in denying Richard’s application for writ of
habeas corpus. Therefore, we overrule Richard’s sole point of error.
CONCLUSION
Concluding that the county court at law did not abuse its discretion in denying relief,
we affirm its order denying Richard’s application for writ of habeas corpus.
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_________________________________________
Cindy Olson Bourland, Justice
Before Chief Justice Rose, Justices Pemberton and Bourland
Affirmed
Filed: August 19, 2015
Do Not Publish
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