Rylee Carl Eklund v. State ( 2018 )


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  •                           NUMBER 13-17-00225-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    RYLEE CARL EKLUND,                                                           Appellant,
    v.
    THE STATE OF TEXAS,                                                          Appellee.
    On appeal from the 207th District Court
    of Comal County, Texas.
    MEMORANDUM OPINION
    Before Justices Rodriguez, Contreras, and Benavides
    Memorandum Opinion by Justice Rodriguez
    Appellant Rylee Carl Eklund appeals his convictions for murder and aggravated
    assault. By twelve issues, appellant challenges the sufficiency of the evidence, the trial
    court’s charge, and the constitutional effectiveness of his trial counsel. We affirm.
    I.      BACKGROUND1
    Appellant was indicted on one count of murder and two counts of aggravated
    assault. See TEX. PENAL CODE ANN. §§ 19.02(b), 22.02(a)(2) (West, Westlaw through
    2017 1st C.S.). The indictments related to the events of July 12, 2014, when appellant
    fired a shotgun at three former classmates, killing one and wounding the others. Viewed
    in the appropriate light, the evidence at trial establishes the following.
    A.      The State’s Case
    Appellant, who was then nineteen, was friends with Drake Lund and Sawyer
    Darwin. In the days preceding the shooting, appellant’s parents were out of town, and
    Darwin and Lund visited appellant at his parents’ home. Darwin spent the night there,
    and the next morning, Lund went to appellant’s house to show off his new car.
    On July 11, appellant texted Darwin about getting psychedelic mushrooms,
    marijuana, and ecstasy. Appellant drove to San Antonio to meet a drug dealer that night.
    On July 12, appellant invited Darwin to his house to smoke marijuana. Darwin
    told appellant that he did not feel like smoking but offered to drink with him, and appellant
    agreed. Appellant also invited Lund to his house. Darwin invited along his friend Robert
    Bree. Bree understood that they would be drinking and possibly taking psychedelic
    mushrooms.        Driving his new car, Lund picked up Darwin and Bree and drove to
    appellant’s house.
    1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an
    order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
    2017 1st C.S.). Because this is a transfer case, we apply the precedent of the Third Court of Appeals to
    the extent it differs from our own. See TEX. R. APP. P. 41.3.
    2
    The boys arrived around 5:00 p.m., while it was daylight. They found the main
    gate locked, which Darwin thought was odd. They entered through a side gate, where
    they saw appellant’s truck in the driveway. The three knocked on the door of the side
    house where appellant usually stayed, but there was no answer. They peered in a
    window, but they could not see appellant.
    The boys then knocked on the doors of the main residence. Again there was no
    answer.    They observed that all the lights were off, which they found unusual.
    Beginning to worry for appellant’s well-being, the boys continued to knock on doors and
    began knocking on windows. They also yelled for appellant, as Darwin described it,
    “Rylee, can you hear us? This is Sawyer [Darwin] and Drake [Lund]. Are you there?
    Are you okay?” They tried calling appellant twice, to no avail. Several minutes passed.
    Eventually, they moved around to the front porch and knocked on the door one
    more time. Darwin stood on the front porch, while Lund and Bree stood on the lawn.
    While they discussed what to do, appellant fired a 12-gauge shotgun through the
    closed window blinds at them. The first shot struck Lund and Darwin; Darwin collapsed
    to the ground. Appellant fired two more shots, striking Darwin in the chest and Bree in
    the stomach. Bree began to scream and run. Lund soon died as a result of his wounds.
    When the shooting stopped, Bree contacted police and applied pressure to
    Darwin’s wounds. After a few minutes, appellant emerged from the house crying and
    went to Darwin, saying, “Oh, my gosh, Sawyer, what did I do? I’m sorry.” Police arrived,
    and Darwin was airlifted to a hospital, where life-saving surgery was performed.
    3
    Darwin suffered extensive injuries and partial disability to his left arm. Multiple
    shotgun pellets remain lodged in his body, including his heart. Pellets also remain in
    Bree’s stomach.
    B.     Appellant’s Testimony and 911 Call
    Appellant testified that he was sleeping on the couch in the living room when he
    was awakened by the sound of a “gate jingling.” He explained that he looked out the
    blinds and saw a car he did not recognize driving up to the side gate of his house.
    According to appellant, the vehicle was partially obscured by trees, and he could only see
    someone in the back seat whom he did not recognize. He testified that he began locking
    the doors and closing the blinds in fear. Appellant stated that he saw an unknown
    stranger pass by a window, and he retreated to his parents’ master bedroom where the
    firearms were kept, fearing that the strangers were burglars. He locked the bedroom
    door, shut himself in the closet, and called 911.
    In the 911 recording, appellant spoke in a whisper to the operator, describing his
    fear that “one or two” strangers were outside his house. The operator dispatched an
    officer but explained that the officer was not nearby. Appellant described hearing the
    strangers knocking on the door and, later, talking. Roughly ten minutes into the call,
    appellant’s line went silent.
    Appellant testified that he grabbed a shotgun and left the closet. He stated that
    he heard what sounded like a window being opened, broken, or “something being jostled
    with.” He explained that he saw three figures out the window, but could not see their
    faces. He decided to fire:
    
    4 A. I
    fired—the direction I tried to fire was away from them, but with
    immediate getaway, with the immediate sense of, “You’re not
    supposed to be here. Get away.”
    Q.     But you fired at the three figures, correct?
    A.     Yes.
    Q.     Okay. Why did you do that?
    A.     I felt they were trying to break in.
    Q.     Describe the—the manner in which you shot them.
    A.     I shot—I shot three shots in succession: One shot, two shot, three shots.
    Q.     Okay. Through the window that the figures were in front of?
    A.     Yes.
    Q.     Through the window the noise was coming from?
    A.     Yes.
    Q.     What did you hear or see after you pulled the trigger?
    A.     After I pulled the trigger, I heard screaming and yelling, and I looked
    through the blinds.
    Q.     Okay. What did you hear and see at that point?
    A.     I saw my friends. I saw my friends were shot outside in front—in the
    yard.
    Appellant testified that if he knew that it was his friends in the front yard, he would
    not have fired, and that his intention was to fire three warning shots.
    C.     Jury Verdict
    At the close of the evidence, the jury found appellant guilty as charged on the
    murder and aggravated assault counts. The jury assessed punishment at fifteen years’
    confinement on the murder count, and at ten and five years on the aggravated assault
    5
    counts, respectively. The sentences were ordered to run concurrently. This appeal
    followed.
    II.     SUFFICIENCY OF THE EVIDENCE: TRANSFERRED INTENT
    By his first through fifth issues, appellant challenges the sufficiency of the evidence
    on intent. He draws attention to the fact that the State did not submit jury instructions on
    the law of transferred intent. He contends that without a transferred intent instruction,
    the State was required to prove that appellant directed his assaultive acts not at unknown
    strangers, but specifically at Lund, Darwin, and Bree.        He argues that because the
    evidence unequivocally establishes that appellant did not know that the perceived
    burglars were his friends, the evidence was insufficient to prove intent, which is an
    element of both aggravated assault and murder.
    A.     Transferred Intent
    Under the theory of transferred intent, a person can be held criminally responsible
    for causing a result if the only difference between what actually occurred and what he
    desired, contemplated, or risked is that a different person was injured, harmed, or
    otherwise affected. TEX. PENAL CODE ANN. § 6.04(b)(2) (West, Westlaw through 2017
    1st C.S.). Transferred intent is raised when there is evidence that a defendant, with the
    required culpable mental state, intends to injure or harm a specific person but injures or
    harms a different person. Trevino v. State, 
    228 S.W.3d 729
    , 737 (Tex. App.—Corpus
    Christi 2006, pet. ref’d) (op. on reh’g). The “classic example” of transferred intent is the
    act of firing at an intended victim while that person is in a group of other persons; if the
    intended person is killed, the offense is murder, but if a different person in the group is
    killed, the offense is murder pursuant to the transferred intent rule. Roberts v. State, 273
    
    6 S.W.3d 322
    , 330 (Tex. Crim. App. 2008). “Thus where A aims at B with a murderous
    intent to kill, but because of a bad aim he hits and kills C, A is uniformly held guilty of the
    murder of C.” Martinez v. State, 
    844 S.W.2d 279
    , 282 (Tex. App.—San Antonio 1992,
    pet. ref’d).
    However, the “bad-aim” scenario “is to be distinguished from an entirely different
    unintended-victim case—the mistaken-identity situation—which is governed by a quite
    separate set of legal rules.” 
    Id. “Thus in
    the semi-darkness A shoots, with intent to kill,
    at a vague form he supposes to be his enemy B but who is actually another person C; his
    well-aimed bullet kills C.” 
    Id. “Here too
    A is guilty of murdering C, to the same extent
    he would have been guilty of murdering B had he made no mistake.” 
    Id. “A intended
    to
    kill the person at whom he aimed, so there is even less difficulty in holding him guilty than
    in the bad-aim situation.” 
    Id. The present
    case does not involve the law of transferred intent. See 
    id. It was
    not the State’s theory that appellant was aiming at someone other than the victims and
    simply missed his intended target. See 
    id. The State
    instead introduced evidence that
    appellant fired at three individuals on his porch; the fact that these persons were his well-
    meaning friends rather than shadowy strangers is immaterial. See 
    id. Therefore, the
    law of transferred intent does not apply. See 
    id. B. Sufficiency
    of the Evidence
    Appellant testified that he did not intend to fire at the perceived strangers, but
    instead intended to fire warning shots in an effort to scare them off. He argues that in
    light of this testimony, the evidence is insufficient to show that he intended to assault or
    kill his friends. When reviewing the sufficiency of the evidence, we view the evidence in
    7
    the light most favorable to the verdict and determine whether, based on the evidence and
    reasonable inferences therefrom, a rational juror could have found the essential elements
    of the crime beyond a reasonable doubt. Queeman v. State, 
    520 S.W.3d 616
    , 622 (Tex.
    Crim. App. 2017). We must presume that the jury resolved any conflicting inferences in
    favor of the verdict. 
    Id. The specific
    intent to kill may be inferred from the use of a deadly weapon, unless
    in the manner of its use it is reasonably apparent that death or serious bodily injury could
    not result. Cavazos v. State, 
    382 S.W.3d 377
    , 384 (Tex. Crim. App. 2012); Medina v.
    State, 
    7 S.W.3d 633
    , 637 (Tex. Crim. App. 1999) (en banc). “If a deadly weapon is used
    in [a] deadly manner, the inference is almost conclusive that he intended to kill.” Godsey
    v. State, 
    719 S.W.2d 578
    , 581 (Tex. Crim. App. 1986) (en banc). “Naturally, the most
    obvious cases, and the easiest ones in which to prove a specific intent to kill, are those
    cases in which a firearm was used and was fired or attempted to have been fired at a
    person.” 
    Id. Here, appellant
    fired three shots through the window directly at the individuals who
    stood on his front porch, striking all three.     A rational jury could have inferred the
    necessary intent from this evidence beyond a reasonable doubt, see 
    id., and it
    could have
    disbelieved appellant’s testimony to the contrary. See 
    Queeman, 520 S.W.3d at 622
    .
    We find the evidence sufficient to show the element of intent. See 
    id. C. Conclusion
    Appellant’s first through fifth issues are overruled.
    8
    III.    UNREQUESTED INSTRUCTIONS
    By his sixth through tenth issues, appellant protests the trial court’s failure to
    instruct the jury on five defensive issues:        “apparent danger, the castle doctrine
    provisions, use of deadly force to protect property, a view of the events through the eyes
    of Appellant alone, [and] mistake of fact.” Appellant concedes that he did not request
    instructions on these issues. He contends, however, that the trial court erred by not
    instructing the jury on these issues sua sponte.
    Texas Code of Criminal Procedure article 36.14 directs the trial judge to deliver to
    the jury a written charge distinctly setting forth the law applicable to the case. Mendez
    v. State, 
    545 S.W.3d 548
    , 551–52 (Tex. Crim. App. 2018) (quoting TEX. CODE CRIM. PROC.
    ANN. art. 36.14 (West, Westlaw through 2017 1st C.S.)). This charge should include, at
    a minimum, “all of the law applicable to the criminal offense that is set out in the indictment
    or information,” as well as “general admonishments, including . . . the presumption of
    innocence, proof beyond a reasonable doubt, unanimity of the verdict, and so forth.” 
    Id. at 552.
    These matters are always “law applicable to the case.” 
    Id. A judge
    is obligated
    to instruct on these issues sua sponte, even without prompting from counsel. 
    Id. But not
    every defense-benefitting instruction is “law applicable to the case,” such
    that its exclusion from the charge is necessarily erroneous. 
    Id. For instance,
    article
    36.14 imposes no “duty on trial courts to sua sponte instruct the jury on unrequested
    defensive issues” such as mistake of fact. 
    Id. (quoting Posey
    v. State, 
    966 S.W.2d 57
    ,
    62 (Tex. Crim. App. 1998) (en banc)); see Bennet v. State, 
    235 S.W.3d 241
    , 243 (Tex.
    Crim. App. 2007) (holding that the trial court had no duty to charge the jury on
    unrequested defense-of-property instruction); see also Payne v. State, No. 05-11-00871-
    9
    CR, 
    2012 WL 4801520
    , at *9 (Tex. App.—Dallas Oct. 10, 2012, pet. ref’d) (mem. op., not
    designated for publication) (same as to other unrequested modifications of a self-defense
    instruction).
    Here, appellant complains of the exclusion of five defensive issues from the
    charge, but he concedes that he never requested these instructions in the trial court. If
    the defendant fails to object to the absence of instructions on defensive issues in the jury
    charge, the trial court has committed no error at all; a trial court does not err by failing to
    instruct the jury on an issue that was, by virtue of appellant’s silence, simply inapplicable
    to the case. See 
    Mendez, 545 S.W.3d at 552
    . The trial court committed no error by
    excluding these unrequested defensive issues from the charge. See 
    id. We overrule
    appellant’s sixth through tenth issues.
    IV.    COMMENT ON THE EVIDENCE
    By his eleventh issue, appellant protests the trial court’s decision to instruct the
    jury that voluntary intoxication is no defense to the crime charged. He argues that this
    instruction constituted an impermissible comment on the weight of the evidence.
    A.     Standard of Review and Applicable Law
    Our review of an alleged jury charge error involves a two-step process. Kirsch v.
    State, 
    357 S.W.3d 645
    , 649 (Tex. Crim. App. 2012). Initially, we determine whether error
    occurred, and we then determine whether sufficient harm resulted from the error to
    require reversal. 
    Id. The jury
    is the exclusive judge of the facts proved and of the weight to be given to
    the testimony.    Bartlett v. State, 
    270 S.W.3d 147
    , 150 (Tex. Crim. App. 2008).             In
    delivering the charge, a trial court should not express any opinion as to the weight of the
    10
    evidence.       
    Id. (citing TEX.
    CODE CRIM. PROC. ANN. art. 36.14).              With only limited
    exceptions, the trial court may not include an instruction that focuses the jury’s attention
    on a specific type of evidence that may support a finding of an element of an offense.
    
    Kirsch, 357 S.W.3d at 651
    . Even an instruction which is facially neutral and legally
    accurate may nevertheless constitute an improper comment on the weight of the evidence
    if it singles out a particular piece of evidence for special attention. Id.; 
    Bartlett, 270 S.W.3d at 152
    .
    B.     Application
    Appellant protests that the voluntary intoxication instruction was an impermissible
    comment on the weight of the evidence. He asserts that this instruction informed the
    jury of the trial court’s view that appellant was intoxicated, without any direct proof of
    intoxication.
    The penal code provides that voluntary intoxication does not constitute a defense
    to the commission of crime.         See TEX. PENAL CODE ANN. § 8.04(a) (West, Westlaw
    through 2017 1st C.S.).2 A defendant need not rely upon intoxication as a defense in
    order for the charge to feature a section 8.04(a) instruction. Sakil v. State, 
    287 S.W.3d 23
    , 26 n.8 (Tex. Crim. App. 2009) (citing Taylor v. State, 
    885 S.W.2d 154
    , 158 (Tex. Crim.
    App. 1994)). Rather, a section 8.04(a) instruction on voluntary intoxication is appropriate
    “if there is evidence from any source that might lead a jury to conclude that the
    defendant’s intoxication somehow excused his actions.” Id.; 
    Taylor, 885 S.W.2d at 158
    .
    2 “Intoxication” is defined as a disturbance of mental or physical capacity resulting from the
    introduction of any substance into the body. TEX. PENAL CODE ANN. § 8.04(d) (West, Westlaw through
    2017 1st C.S.).
    11
    Relying on Taylor, the transfer court for this case has concluded that a voluntary
    intoxication instruction is not an improper comment on the weight of the evidence.
    Zuliani v. State, 
    52 S.W.3d 825
    , 831–32 (Tex. App.—Austin 2001), rev’d on other
    grounds, 
    97 S.W.3d 589
    (Tex. Crim. App. 2003). Instead, the court held that the ultimate
    question is whether the issue of intoxication is raised by the evidence; if so, a voluntary
    intoxication instruction is properly given. See 
    Zuliani, 52 S.W.3d at 832
    .3
    There was evidence from multiple sources that raised the issue of appellant’s
    intoxication. Appellant’s parents were out of town the weekend of the shooting, and
    Darwin testified that he slept over and drank margaritas with appellant days before. Text
    messages revealed that on the day before the shooting, appellant talked with Darwin
    about obtaining psychedelic mushrooms, marijuana, and ecstasy from a dealer, and
    appellant admitted that he met with the dealer in San Antonio later that day.
    On the day of the shooting, appellant invited Darwin over to smoke marijuana, and
    Darwin agreed to come drink alcohol with him. Bree testified that he tagged along with
    Lund and Darwin with the understanding that they would possibly be ingesting
    psychedelic mushrooms at appellant’s place.              Bree brought along an anti-anxiety
    medication in case anyone experienced issues while using mushrooms.
    Appellant testified that when the victims arrived on the afternoon of July 12, he was
    sleeping on the couch. He looked out the window and grew afraid because he did not
    recognize Lund’s car, despite the fact that Lund had shown the car to appellant just days
    3 Other Texas courts have reached similar conclusions. See Woodman v. State, 
    491 S.W.3d 424
    ,
    429 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Haynes v. State, 
    85 S.W.3d 855
    , 857–58 (Tex.
    App.—Waco 2002, pet. ref’d); Garza v. State, 
    829 S.W.2d 291
    , 295 (Tex. App.—Dallas 1992, pet. ref’d);
    see also Esquivel v. State, No. 04-06-00695-CR, 
    2007 WL 3171322
    , at *10–11 (Tex. App.—San Antonio
    Oct. 31, 2007, pet. ref’d) (mem. op., not designated for publication).
    12
    before. Appellant did not recognize two of his closest friends, and he instead grew so
    fearful of them that he closed all the blinds, locked the doors, hid in a closet, and called
    911. He then shot three times out of the window blinds at the unknown individuals who
    were knocking on his front door. Following the shooting, a marijuana pipe, lighter, and
    baggie of marijuana were recovered from appellant’s person, and bottles of liquor were
    found in the main house. A marijuana grinder was recovered from appellant’s side
    house.
    This evidence raised the question of whether appellant was intoxicated, see
    
    Zuliani, 52 S.W.3d at 831
    –32, and the trial court’s simple recitation of the penal code
    provisions concerning voluntary intoxication did not convey any opinion as to the weight
    of this evidence. See 
    Bartlett, 270 S.W.3d at 150
    . Instead, the trial court did nothing
    more than provide the jury with the law relevant to the situation. See 
    Garza, 829 S.W.2d at 295
    . “At worst, the instruction was superfluous”; if the jury believed appellant was not
    intoxicated, then the jury could simply ignore the instruction. See 
    Zuliani, 52 S.W.3d at 832
    . If the jury believed he was intoxicated, the instruction correctly guided them to
    ignore the intoxication. See 
    id. The court’s
    statement of the applicable law was not a
    comment on the weight of the evidence. See 
    id. We overrule
    appellant’s eleventh issue.
    V.     INEFFECTIVE ASSISTANCE OF COUNSEL
    By his twelfth issue, appellant contends that he received ineffective assistance of
    counsel. Appellant argues that trial counsel’s representation fell below the standard of
    constitutional adequacy when he failed to request certain defensive instructions and
    performed a poor cross-examination of Darwin and Bree.
    13
    A.     Standard of Review and Applicable Law
    The Sixth Amendment guarantees a criminal defendant the effective assistance of
    counsel. Ex parte Scott, 
    541 S.W.3d 104
    , 114 (Tex. Crim. App. 2017); see U.S. CONST.
    amend. VI. To prevail on an ineffective-assistance-of-counsel claim, an applicant must
    prove (1) that his trial counsel’s performance was deficient and (2) that he was prejudiced
    by the deficiency.     Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984).            “The
    benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct
    so undermined the proper functioning of the adversarial process that the trial cannot be
    relied on as having produced a just result.” 
    Id. at 686.
    The defendant bears the burden
    of proving by a preponderance of the evidence that counsel was ineffective. Prine v.
    State, 
    537 S.W.3d 113
    , 116 (Tex. Crim. App. 2017).
    Under the first prong of Strickland, counsel’s performance is deficient if it falls
    below an objective standard of reasonableness. 
    Strickland, 466 U.S. at 688
    –89. In
    order to satisfy this prong, the defendant must overcome the strong presumption that
    counsel’s conduct fell within the wide range of reasonable professional assistance and
    that the conduct constituted sound trial strategy. 
    Prine, 537 S.W.3d at 117
    . To defeat
    this presumption, any allegation of ineffectiveness must be firmly founded in the record
    and the record must affirmatively demonstrate the alleged ineffectiveness. 
    Id. Trial counsel
    should generally be given an opportunity to explain his actions before being found
    ineffective.   
    Id. When, as
    in this case, the record is silent regarding trial counsel’s
    strategy, this court can find ineffective assistance of counsel only if the challenged
    conduct was “so outrageous that no competent attorney would have engaged in it.” 
    Id. The record
    on direct appeal is generally insufficient to satisfy this burden. 
    Id. 14 B.
         Application
    Appellant first protests that trial counsel was deficient in cross-examining certain
    witnesses. He argues that trial counsel pursued the wrong strategy by launching an
    anemic attempt to show that they were behaving like would-be burglars, thereby justifying
    appellant’s fear and defensive actions.
    However, appellant proposes no other approach that would have better addressed
    the complained-of testimony on cross-examination.                    More importantly, the record is
    devoid of any testimony which could overcome the presumption of reasonable assistance,
    and we decline to second-guess counsel’s approach with the benefit of hindsight. See
    
    id. (rejecting an
    ineffective assistance claim concerning defects in cross-examination
    where record was silent about counsel’s strategic thinking).
    Appellant also complains that counsel was inadequate because he failed to
    request the inclusion of certain defensive issues in the jury charge, including “apparent
    danger,”4 use of deadly force in defense of property, mistake of fact, “castle doctrine,” 5
    and “a view of the events through the eyes of Appellant alone.” 6 However, the record
    fails to disclose why trial counsel did not seek these instructions. Nothing appears of
    record rebutting the presumption that counsel’s actions were based on sound trial
    4  Appellant draws the phrase “apparent danger” from Hamel v. State, 
    916 S.W.2d 491
    , 493 (Tex.
    Crim. App. 1996) (“A person has the right to defend himself from apparent danger to the same extent as
    he would if the danger were real.”). He produces no authority supporting the use of this phrase in jury
    instructions.
    5
    Appellant uses this term to refer to the rules discussed in penal code 9.32. See TEX. PENAL
    CODE ANN. § 9.32(b)–(d) (West, Westlaw through 2017 1st C.S.).
    6 Citing Wilson v. State, 
    145 S.W.2d 890
    , 893 (Tex. Crim. App. 1940), appellant proposes that in
    self-defense cases, a defendant is entitled to special instructions on the defendant’s perspective if there is
    evidence that the defendant was in danger of unlawful attack from multiple assailants.
    15
    strategy, and the failure to request these defensive instructions was not so outrageous
    that no competent attorney would have engaged in it. See, e.g., Thompson v. State, 
    445 S.W.3d 408
    , 411 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (finding failure to
    request defense-of-property instruction was not outrageous where there was meager
    evidence raising that defense, in part because the property belonged to a third person);
    Chatman v. State, No. 13-10-00190-CR, 
    2011 WL 1442338
    , at *5 (Tex. App.—Corpus
    Christi Apr. 14, 2011, no pet.) (mem. op., not designated for publication) (finding evidence
    insufficient to rebut presumption of reasonable assistance where record was silent as to
    counsel’s reasons for not requesting a mistake-of-fact instruction). In the face of an
    undeveloped record, we cannot say that appellant carried his burden to satisfy the first
    prong of Strickland. 
    See 466 U.S. at 688
    –89; 
    Prine, 537 S.W.3d at 117
    .
    We overrule appellant’s twelfth and final issue.
    VI.    CONCLUSION
    We affirm the judgment of the trial court.
    NELDA V. RODRIGUEZ
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    18th day of October, 2018.
    16