Darren James Rush v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00213-CR
___________________________
DARREN JAMES RUSH, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 30th District Court
Wichita County, Texas
Trial Court No. DC30-CR2019-0363
Before Sudderth, C.J.; Kerr and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
Appellant Darren James Rush challenges his conviction and resulting ten-year
sentence for stealing a trailer and three trucks valued between $30,000 and $150,000, a
third-degree-felony offense. See Tex. Penal Code Ann. § 31.03(a), (e)(5). Although we
agree with Rush that the trial court should have included the Texas Penal Code’s
definition of “value” in the jury charge, he was not egregiously harmed by its
omission, nor did the evidence fail to prove that essential element. See id. § 31.08. And
although we also agree that it’s hard to see how trial counsel could justify having filed
a new-trial motion that was obviously cut and pasted from a different case with
wholly different facts, Rush has not shown the egregious harm needed to succeed on
his ineffective-assistance issue. We will thus affirm.
I. Background
In the early morning hours of May 2, 2018, a Wichita County manufacturing
facility—Falls Concrete—was relieved of three of its work trucks and a trailer, as
employee Larry Clapp discovered upon arriving for work between 4:00 and 5:00 a.m.
that morning. A motion-activated security camera had captured video shortly after
1:00 a.m. of several individuals driving off with a 2014 Toyota Tacoma pickup, a
2016 GMC Sierra pickup, and a 2003 Chevrolet Silverado pickup.1 The trailer was
attached to the Sierra.
A fourth vehicle is mentioned in the indictment, but at trial the State dropped
1
any charges related to it.
2
Clapp did not recognize anyone in the video, but through GPS tracking devices
on the two newer pickups, the trucks’ whereabouts were quickly pinpointed as being
in the Fort Worth area. After locating the Tacoma parked at an apartment complex,
Fort Worth law enforcement surveilled the spot to see if anyone showed up. FWPD
Officer Tom Gierling, who was working the case, then learned of the Sierra’s location,
and one of his teammates went to surveil that area as well. And although the trailer
had been separated from the Sierra at some point, Officer Gierling was able to find it
abandoned at a third location and surveilled it too, “[t]ry[ing] to catch anybody that
had their hands on it, had any involvement in it.”
Officer Gierling returned to the trailer’s location three or four times
throughout the day (May 2), finally deciding that because no activity had occurred
around the two pickups or the trailer, they should just be removed from the scene(s).
When Officer Gierling went to recover the trailer at around 7:00 p.m., he
serendipitously “rolled up on several individuals, and there was a dark-colored SUV
backed up to it, hooked up to the trailer.” 2
Of the five people there, one immediately ran off but was soon found hiding
behind a trash can: Darren Rush. Rush had sold the trailer that day to one of the other
people on scene for $500 or so. After being arrested, Rush directed Officer Gierling
to the otherwise untrackable 2003 Silverado.
That SUV was not one of the stolen vehicles.
2
3
A grand jury indicted Rush for theft of property having a value greater than
$30,000 but less than $150,000. See id. § 31.03(a), (e)(5). A jury convicted Rush of that
charge, and the trial court imposed a ten-year prison sentence. Rush appealed.
II. Issues
On appeal, Rush asserts the following, in five issues:
1. The trial court erred in allowing Clapp to authenticate, and thus in admitting
into evidence, a CPA-prepared document—State’s Exhibit 3—that was the sole
evidence of value. 3
2. The trial court erred by not including the statutory definition of “value” in
the jury charge, an omission that was egregiously harmful.
3. Considering the evidence in light of the hypothetically correct jury charge,
which would have defined “value” as “fair market value,” the evidence was
insufficient to support the verdict.
4. Trial counsel was constitutionally ineffective by filing a new-trial motion that
was obviously cribbed from an altogether different case and mentioned facts and legal
arguments having nothing to do with Rush’s case.
3
At oral argument, Rush’s appellate counsel candidly conceded that Rush
waived this issue by not also objecting when Clapp testified about the contents of that
exhibit, so we will overrule issue one without discussion. See Walker v. State, No. 02-
16-00418-CR, 2018 WL 1096060, at *4 (Tex. App.—Fort Worth Mar. 1, 2018, no
pet.) (mem. op., not designated for publication) (holding that appellant forfeited
objections to toxicology report because he objected only to its admission and not to
testimony describing its contents, and reminding that “[u]nobjected-to testimony
about objected-to evidence results in forfeiture of the objection”).
4
5. Trial counsel was constitutionally ineffective by not objecting to State’s
Exhibit 3 on Confrontation Clause grounds.4
III. Issues Two and Three
(Jury charge; evidentiary sufficiency)
A. Scope of review
We must review “all alleged jury-charge error . . . regardless of preservation in
the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id.Unpreserved charge error warrants reversal only when the error resulted in
egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code Crim.
Proc. Ann. art. 36.19. The appropriate inquiry for egregious harm is fact- and case-
specific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State,
332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious-harm determination, we must consider “the actual
degree of harm . . . in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
4
At oral argument, Rush conceded that direct appeal is not the appropriate
vehicle within which to raise this ineffectiveness argument, and we agree. See Menefield
v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (holding that an appellate court
cannot infer ineffective assistance from a record silent about counsel’s decisions). As
with Rush’s first issue, then, we need not analyze his fifth one.
5
counsel[,] and any other relevant information revealed by the record of the trial as a
whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–
10 (applying Almanza). Errors that result in egregious harm are those “that affect the
very basis of the case, deprive the defendant of a valuable right, vitally affect the
defensive theory, or make a case for conviction clearly and significantly more
persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The
purpose of this review is to illuminate the actual, not just theoretical, harm to the
accused. Almanza, 686 S.W.2d at 174. Egregious harm is a “high and difficult
standard” to meet. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017).
To determine whether the State has met its Jackson burden to prove a
defendant’s guilt beyond a reasonable doubt, we compare the crime’s elements as
defined by the hypothetically correct jury charge to the evidence adduced at trial. See
Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); see also Febus v. State,
542 S.W.3d 568, 572 (Tex. Crim. App. 2018) (“The essential elements of an offense
are determined by state law.”). Such a charge is one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
6
proof or restrict the State’s theories of liability, and adequately describes the particular
offense for which the defendant was tried. Jenkins, 493 S.W.3d at 599. The “law as
authorized by the indictment” means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging instrument.
See id.; see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the
State pleads a specific element of a penal offense that has statutory alternatives for
that element, the sufficiency of the evidence will be measured by the element that was
actually pleaded, and not any alternative statutory elements.”).
B. Discussion
In this case the charge given to the jury, the hypothetically correct charge, and
the evidence on value warrant discussing Rush’s second and third issues together. Cf.
Phillips v. State, No. 02-16-00049-CR, 2016 WL 6519118, at *2 (Tex. App.—Fort
Worth Nov. 3, 2016, no pet.) (mem. op., not designated for publication) (addressing
interrelated issues together). The result, on these facts and under applicable law, is
that we must affirm.
1. Charging the jury on and proving value
Penal Code Section 31.08(a) defines “value”—an essential element of a theft
charge, as it drives the applicable offense level—as “the fair market value of the
property . . . at the time and place of the offense,” or, “if the fair market value of the
property cannot be ascertained, the cost of replacing the property within a reasonable
time after the theft.” Tex. Penal Code Ann. § 31.08(a). The Penal Code does not
7
define fair market value, but it has long been judicially recognized to mean “the
amount the property would sell for in cash if offered for sale by a willing seller to a
willing buyer, given a reasonable time for selling it.” Mangum v. State, No. 02-15-00063-
CR, 2016 WL 1072134, at *4 (Tex. App.—Fort Worth Mar. 17, 2016, no pet.) (mem.
op., not designated for publication) (citing Keeton v. State, 803 S.W.2d 304, 305 (Tex.
Crim. App. 1991)); see also Keeton, 803 S.W.2d at 306–07 (Clinton, J., concurring).
The State concedes that the trial court should have given the jury this
definition. But no harm, no foul, the State urges, pointing to the common
understanding of “value” generally as the equivalent of “fair market value” when an
owner 5 testifies to it, and to cases in which omitting the definition of fair market value
was not egregiously harmful. We start with those cases.
The first is Landrum v. State, 590 S.W.3d 640 (Tex. App.—Waco 2019, pet.
ref’d). There, the owner “testified as to the fair market value of the property stolen by
estimating the purchase price for each item[,] as he was permitted to do.” Id. at
646 (citing Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986) (holding that
an owner “may testify as to his or her opinion or estimate of the value of the property
in general and commonly understood terms” and noting that an owner “may
reasonably be understood to be testifying as to the fair market value of the property
5
The Penal Code defines “owner” as one who has “possession of the property”
or “a greater right to possession of the property than the actor.” Tex. Penal Code
Ann. § 1.07(a)(35)(A).
8
either in terms of the purchase price or the cost to him of replacing the stolen
property”)). Because the charge in Landrum otherwise adequately described the
offense and included all the elements of theft, and because “nothing in the record
indicate[d] that the lack of a definition would have confused the jury or caused the
jury to misapply the law,” id. (cleaned up), Landrum had not been egregiously harmed.
The State also cites Bullock v. State, 479 S.W.3d 422 (Tex. App.—Houston [14th
Dist.] 2015), rev’d on other grounds, 509 S.W.3d 921 (Tex. Crim. App. 2016). In that theft
case—another in which the charge did not define “value”—the manager of a
furniture-rental company opined that a leased delivery truck had a value of
$83,000 when it was stolen. Id. at 425. The manager testified that he knew the value
because “[t]he information was provided by Penske Rental Trucks,” which had sent
his company an email showing the value. Id. at 425–26. The appellate court summed
up the evidence:
[The manager] testified that his company leased new trucks every five
years, leading to the rational inference that the truck in question was less
than five years old at the time of the theft. . . .
Further, [the manager] testified that the value of the truck itself
was $83,000, not what it “cost” the company. That is, [the manager] did
not testify about the “lease value” or whatever amount the company
paid to lease the truck. That type of testimony might not have been
evidence of fair market value . . . . But [the manager]’s testimony about
value was clear and unequivocal, and appellant did not offer any
“controverting evidence as to the value of the stolen item,” which was
necessary to rebut the property-owner presumption. See Sullivan,
701 S.W.2d at 909; Smiles [v. State], 298 S.W.3d [716,] 719 [(Tex. App.—
Houston [14th Dist.] 2009, no pet.)].
9
Bullock, 479 S.W.3d at 427–28.
As for the jury charge, Bullock was not egregiously harmed by its failure to
define value: the charge adequately described the offense and included all elements of
theft; the record did not show that the jury would have been confused by not having
the definition; the commonly understood meaning of “value” closely resembles the
applicable statutory definition; and Bullock offered no competing evidence about the
truck’s value. Id. at 428–29.
An owner’s proof of value need not be particularly robust, much less balance-
sheet-perfect; such proof need not even explicitly take depreciation into account. Id. at
427 (“Although [the manager] did not provide an opinion about depreciation, such
evidence is not always required.” (citing MaGee v. State, 715 S.W.2d 838, 839–40 (Tex.
App.—Houston [14th Dist.] 1986, no pet.))). Indeed, “[t]here is no requirement in
Sullivan that the State must ask questions of the owner of stolen property in specific
terms of ‘value.’” Landrum, 590 S.W.3d at 644.
In Sullivan itself, the owner testified only that his stolen gun was worth $500 “at
least” and that $500 was what he would “take for it,” despite the owner’s initially
testifying that he had no idea what the gun’s “price” would have been when it was
stolen and conceding also that he did not know the gun’s “market value” or what it
would sell for “out in the street”; that testimony was held sufficient. 701 S.W.2d at
907, 909–10; see Campbell v. State, 426 S.W.3d 780, 785 (Tex. Crim. App. 2014) (“[W]e
presume that an owner’s testimony estimating the value of his property is either
10
estimating the purchase price of the property or the cost to replace the property in
terms of the fair market value, even though the owner may not use the specific terms
‘market value,’ ‘replacement value,’ or ‘purchase price.’”).
2. Clapp’s testimony and Exhibit 3
Clapp testified that when stolen in May 2018, the 2014 Toyota Tacoma was in
“[e]xcellent condition,” the 2016 GMC Sierra was “virtually new,” and the
2003 Chevy pickup was in “fair to good” condition, with “some miles on it,” although
he did not recall the vehicles’ mileage. From Clapp’s testimony, it appears that only
the Sierra came back damaged. 6 As for the trailer, Clapp did not independently recall
the brand or the year but knew that it had been returned undamaged after the theft.
The trial court admitted into evidence State’s Exhibit 3, a chart of the four
stolen items:
6
Falls Concrete sold the unrepaired Sierra in 2020 for around $14,000, an
amount that Clapp said reflected “[q]uite a bit” of loss in value because of its damaged
state. The Sierra’s value when sold in 2020 does not of course bear upon its value
when it was stolen in 2018.
11
Clapp testified that Falls Concrete’s accounting firm tracks its assets’ values
over time, that its “tax documents” are maintained as a business record in the ordinary
course of business, and that its CPA generates such records “at or near the time of the
yearly tax preparation.” Asked if he received Exhibit 3 “from the CPA that actually
handles your records,” Clapp responded, “I couldn’t say, sir. I went to the owner of
the company, and she put together this information for me to bring it to court this
morning.” Clapp further agreed that he did not handle that type of information, nor
could he “verify or talk to the veracity of . . . the numbers.” Clapp also said that his
testimony concerned “depreciated value,” something that he acknowledged could
depend on several things but that were beyond his “level of expertise.”
3. Analysis
To put our analysis in its fullest context, we initially address Rush’s argument,
made in connection with his first (waived) issue, that Clapp was a “non-owner” of the
property who “must be qualified as to his knowledge of the value of the property and
12
must give testimony explicitly as to the fair market value or replacement value of the
property.” Sullivan, 701 S.W.2d at 909. We disagree with this characterization because
Clapp, as Falls Concrete’s equipment facilitator, had “possession of the property” or
“a greater right to possession” than Rush, and thus Clapp was its owner. See Tex.
Penal Code Ann. § 1.07(a)(35)(A) (defining “owner”). Under Texas law, an owner can
opine on fair market value without needing any particular expertise. See Sullivan,
701 S.W.2d at 909 (“When an owner testifies, the presumption must be . . . that the
owner is testifying to an estimation of the fair market value.”); Landrum, 590 S.W.3d at
646 (same). And negating property-owner opinion testimony requires more on the
defense’s part than “merely impeach[ing] the witness’ credibility during cross-
examination. He must offer controverting evidence as to the value of the property.”
Sullivan, 701 S.W.2d at 909.
Rush did not offer such evidence at trial. On appeal, he argues that (1) because
the jury charge did not define “value,” (2) because of a disconnect between “April
2018” values and the May 2, 2018 theft—a timespan that could have been long
enough to make the April numbers unreliable—and (3) because the evidence of value
was untethered from fair market value, the jury was left to improperly speculate that
Rush had stolen property with a collective fair market value exceeding $30,000. See
Hooper v. State, 214 S.W.3d 9, 15–16 (Tex. Crim. App. 2007) (“[J]uries are not
permitted to come to conclusions based on mere speculation or factually unsupported
inferences or presumptions.”).
13
As for the jury-charge argument, Rush has not pointed us to, and we have not
found, any Texas case in which a defendant on trial for theft was egregiously harmed
because “value” was not defined. To the contrary, courts routinely reject such an
argument where (1) the charge adequately describes the offense and includes all
elements of theft; (2) the record does not show that the jury would have been
confused by not having the definition; (3) the commonly understood meaning of
“value” closely resembles the applicable statutory definition; and (4) a defendant
offers no competing evidence about value. See, e.g., Landrum, 590 S.W.3d at 646–47;
Bullock, 479 S.W.3d at 428–29.
Here, Rush has not assailed any other aspect of the charge, which tracked the
offense’s elements and instructed the jury accordingly. See Tex. Penal Code Ann.
§ 31.03. Rather, he essentially argues that the Bullock court got it wrong because we
ostensibly can’t know if the jury had in mind replacement value, sentimental value,
production value, commercial value, or fair market value, thus rendering useless
Bullock’s observation that the dictionary definition of “value” closely resembles fair
market value.
But not only does caselaw instruct us to presume that an owner’s opinion on
value means fair market value, we think the record here goes further. It refutes Rush’s
attempt to imply confusion or improper jury speculation about the type of value at
14
hand: although Clapp did not create Exhibit 3,7 he explained that the CPA provided
such “tax documents” in connection with Falls Concrete’s asset values, and later
agreed that he was referring to “depreciated value”—a concept within the common
knowledge of any juror who has ever bought or sold a car. See Depreciation, Black’s Law
Dictionary 534 (10th ed. 2014) (“A reduction in the value or price of something;
specif., a decline in an asset’s value because of use, wear, obsolescence, or age.”); cf.,
e.g., McCandless v. Pease, 465 P.3d 1104, 1115 (Idaho 2020) (“[I]t is within the common
knowledge and experience possessed by most jurors that a new vehicle would have
depreciated considerably over a period of six years.”); Ctr. Garage Co. v. Columbia Ins.
Co., 115 A. 401, 403 (N.J. 1921) (“[It] is common knowledge that the value of a car
depreciates with use, ordinarily, and, although common knowledge can hardly be used
as a substitute for proof, yet, on the other hand, there is no presumption existing
against it.”).
Additionally, although no Texas case seems to have come out and said so
directly, depreciated value logically reflects fair market value in a theft prosecution. Cf.
Newsom v. State, No. 03-21-00694-CR, 2022 WL 3649625, at *4 & n.2 (Tex. App.—
Austin Aug. 25, 2022, no pet.) (mem. op., not designated for publication) (reversing
criminal-mischief conviction for destroying a tire of certain alleged minimum fair
Although Rush did not lodge a hearsay objection to Exhibit 3, the court of
7
criminal appeals “has consistently held that hearsay evidence is admissible as proof of
market value.” Gonzales v. State, 478 S.W.2d 522, 524 (Tex. Crim. App. 1972).
15
market value where State proved only replacement value, and noting there was “no
evidence of how to calculate the depreciation of tires, thus there is no evidence of the
fair market value of the tire when destroyed”; “[e]ven if the jury could use its common
knowledge to calculate a linear rate of depreciation of value based on the use of the
first set of tires on the vehicle, the replacement cost does not provide legally sufficient
evidence to support a depreciated fair market value of at least $100”). And such
publications as the Kelly Blue Book, which provides fair-market-value estimates based
on mileage and condition of a given year, make, and model of vehicle—the sine qua
non of depreciated value—are a recognized means of establishing value in a theft case.
See Crouch v. State, No. 05-15-00858-CR, 2016 WL 7163859, at *3 (Tex. App.—Dallas
Dec. 1, 2016, no pet.) (mem. op., not designated for publication) (“Here, Stratton, the
owner, testified that the BMW’s blue book value was $24,500, which value he
reported to the police. This testimony was sufficient to establish value, and
speculation on cross-examination about whether CarMax may have purchased the
BMW for less does not render the evidence insufficient.”).
More fundamentally, even without Exhibit 3 and any talk of depreciation,
Clapp could simply have voiced his opinion about the property’s value—a value
presumptively equal to fair market value because he was the owner—and sharp cross-
examination about that opinion would not have destroyed the State’s case. See Sullivan,
701 S.W.2d at 909 (holding that cross-examining owner’s value opinion is not enough;
defense must offer controverting evidence).
16
For all these reasons, we conclude that Rush was not egregiously harmed by the
charge’s failure to define value and that the evidence, viewed in the light most
favorable to the verdict, sufficed to establish Rush’s guilt beyond a reasonable doubt
when compared with the hypothetically correct charge. See Jenkins, 493 S.W.3d at 599.
We overrule Rush’s second and third issues.
IV. Issue Four
(Ineffective assistance of counsel at
motion-for-new-trial stage)
A. 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 establish ineffective assistance, an appellant must prove by a
preponderance of the evidence that his counsel’s representation was deficient and that
the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687,
104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App.
2013). The record must affirmatively demonstrate that the claim has merit. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
In evaluating counsel’s effectiveness under the deficient-performance prong,
we review the totality of the representation and the particular circumstances of the
case to determine whether counsel provided reasonable assistance under all the
circumstances and prevailing professional norms at the time of the alleged error. See
17
Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307; Thompson,
9 S.W.3d at 813–14.
Strickland’s prejudice prong requires a showing that counsel’s errors were so
serious that they deprived the defendant of a fair trial—that is, a trial with a reliable
result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words, an appellant must
show a reasonable probability that the proceeding would have turned out differently
without the deficient performance. Id. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at
308.
Ineffective-assistance claims are usually best addressed by a postconviction writ
of habeas corpus because the record generally is more developed, particularly
regarding counsel’s strategic decisions. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011); see Thompson, 9 S.W.3d at 814 & n.6; Ex parte Torres, 943 S.W.2d 469, 475–
76 (Tex. Crim. App. 1997).
B. The boilerplate—and inaccurate—new-trial motion filed here
After the trial court entered its judgment of conviction and sentenced Rush to
ten years’ imprisonment, his trial counsel timely filed a motion for new trial. The
motion clearly involved a different case, stating:
The findings and conclusions of the Court in this cause are
contrary to the law and evidence.
The evidence is insufficient . . . to support a preponderance-of-
the-evidence standard relating to the violations of the deferred
adjudication order and the subsequent judgment and sentence in this
cause.
18
The interest of justice requires that the Court grant a new trial in
this cause.
The evidence relevant to the underlying plea of guilty does not
legally and factually to [sic] support the judgment and sentence in this
cause and is insufficient in that the original judicial confession in this
cause does not provide evidentiary support for the subsequent
adjudication of this cause because at the time of the alleged offense the
alleged victim was not a student and the defendant was not a substitute
teacher for Iowa Park School District. [Internal numerical headings
omitted.]
C. Analysis
Rush’s fourth issue does not complain of his counsel’s actions during either the
guilt–innocence or the punishment phase of his trial. And, “a defendant generally
need not file a motion for new trial to preserve issues for appeal,” Cooks v. State,
240 S.W.3d 906, 910 (Tex. Crim. App. 2007), although Rush’s counsel did file such a
motion (sort of), thus extending the appellate deadlines if nothing else. See Walsh v.
State, No. 05-19-00710-CR, 2021 WL 3438069, at *5 (Tex. App.—Dallas Aug. 5, 2021,
no pet.) (mem. op., not designated for publication) (rejecting argument that trial
counsel was ineffective for filing pro forma new-trial motion and noting that “by
filing the motion for new trial, counsel, at a minimum, extended the appellate
timetable”).
Walsh involved a barebones motion that argued for a new trial “‘for the good
and sufficient reason that the verdict is contrary to the law and evidence,’” with no
elaboration. Id. at *3. Declining to hold that this generic filing showed constitutionally
ineffective assistance, the court of appeals observed that the appellant had “provide[d]
19
this Court with no authorities supporting his contention that filing a pro forma
motion for new trial falls below an objective standard of reasonableness, and we have
found none.” Id.Similarly, we have found no case holding that a misfiled, or cut-and-pasted, or
error-ridden motion for new trial “falls below an objective standard of
reasonableness,” although such a motion is sloppy at best. But even if we assume that
the new-trial motion here satisfies Strickland’s deficient-performance prong, that does
not end our inquiry. Rush must also show a reasonable probability that the proceeding
would have turned out differently without the deficient performance. See Strickland,
466 U.S. at 694, 104 S. Ct. at 2068.
Regarding that different-result prong, Rush posits two arguments that effective
counsel would have raised in a new-trial motion: first, that the jury charge’s failure to
define “value” meant that “the court ha[d] misdirected the jury about the law,” see
Tex. R. App. P. 21.3(b) (providing that a criminal defendant “must” receive a new trial
“when the court has misdirected the jury about the law”), thereby affording Rush an
additional appellate point if the trial court had abused its discretion by not giving him
a new trial; and second, that “the evidence did not support the verdict because the
valuation of the stolen property was not established.”
The court of criminal appeals has held that charge error raised in a motion for
new trial is reviewed for Almanza egregious harm, not for abuse of discretion. Igo v.
State, 210 S.W.3d 645, 647 (Tex. Crim. App. 2006) (“If appellant were correct,
20
defendants would no longer be required to preserve a jury-charge error at trial so long
as the issue was raised in a motion for new trial because any error in the charge could
be said to ‘misdirect’ the jury. That result contradicts the policy of encouraging the
timely correction of errors, which is embodied both in Article 36.19 and in our own
rules of appellate procedure.”); see also State v. Ambrose, 487 S.W.3d 587, 594 (Tex.
Crim. App. 2016) (“Almanza is the appropriate standard for conducting a harm
analysis in cases reviewing jury-charge error, even when the error was first asserted in
a motion for a new trial.”). Thus, even if Rush’s trial counsel had filed a thorough
new-trial motion that included his jury-charge argument, we would be reviewing this
issue under the same standard—egregious harm—as we have already done in
connection with Rush’s second issue.
Likewise, Rush cannot show that his case would have turned out differently if
only his trial counsel had raised evidentiary insufficiency in a new-trial motion,
because we have considered the evidence ourselves and held it sufficient to support
his conviction.
Because a defective new-trial motion (or even the complete absence of one) did
not hamper and could not have hampered Rush in presenting the issues he has
identified on appeal, reviewed as they are under the same standards the trial court
would have applied, we cannot say that he received constitutionally ineffective
assistance of counsel. We overrule Rush’s fourth issue.
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V. Conclusion
Having overruled Rush’s issues, we affirm the trial court’s judgment.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 9, 2023
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