Marta Acevedo v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§ No. 08-15-00350-CR
MARTHA ACEVEDO,
§ Appeal from the
Appellant,
§ 243rd District Court
v.
§ of El Paso County, Texas
THE STATE OF TEXAS,
§ (TC# 20140D05736)
Appellee.
§
OPINION
In this appeal, Appellant Martha Acevedo challenges her murder conviction of Jose
Acevedo, her husband for over forty-five years. Appellant claims egregious harm in the trial
court’s failure to include instructions in the jury charge as to the voluntariness of Appellant’s
inculpatory statements, egregious harm in the trial court’s incorrect jury charge instructions
regarding the law of self-defense, and ineffective assistance of counsel in handling the alleged jury
charge errors regarding the law of self-defense.
BACKGROUND
On the morning of September 25, 2014, the El Paso Sherriff’s Office (“EPSO”) was
notified of the unattended death of Jose Acevedo at his home in San Elizario, Texas. The
paramedics who first arrived at the Acevedo residence found Jose’s1 body lying on the living room
floor in rigor mortis. He had a ligature mark around his neck from ear to ear, bruising on his nose
and cheekbones, and a one-inch laceration with dried blood on his nose. His blood-alcohol content
was 0.397 grams per deciliter. The ligature wound on Jose Acevedo’s neck was later determined
to be the cause of death. Detective Jorge Andrade with the El Paso County Sherriff’s Office asked
Appellant if she would speak with detectives at the EPSO headquarters. Appellant complied.
During a second interview at EPSO headquarters, Appellant confessed to strangulating her
husband with an apron by wrapping the apron’s top loop around Jose Acevedo’s neck. Appellant
was indicted for the murder of Jose Acevedo on December 4, 2014. The indictment alleged both
that Appellant intentionally and knowingly caused Jose’s death by strangling his neck with an
apron, and that Appellant committed an act clearly dangerous to human life by strangling Jose
with an apron, causing his death.
Pre-Trial
Appellant filed a pre-trial motion to suppress a confession she made to law enforcement,
challenging the voluntariness of her inculpatory confession. After a hearing, the trial court denied
Appellant’s motion to suppress.
Appellant, testifying through an interpreter at the suppression hearing, explained that on
the morning of September 25, 2014, law enforcement officers placed her in a vehicle and had her
wait for what she described as a very long time. She did not speak to Detective Andrade at the
Acevedo residence and stated that she was not asked any questions while in the vehicle. Appellant
admitted she voluntarily accompanied the officers to EPSO headquarters, that she was not placed
1
Given the common surname between Appellant Martha Acevedo, the victim Jose Acevedo, and their son, Ruben
Acevedo, we will use first names in this opinion.
2
in handcuffs, and that she was never told that she did not have to accompany the officers or that
she was free to leave.
She asked to use the restroom several times. She stated that she was first allowed to use
the restroom at the police station and then later again at the sheriff’s station. Appellant explained
that once at EPSO headquarters, she was “locked up.” On her last trip back from the restroom she
saw her son Ruben Acevedo but did not speak to him. Appellant stated that the detectives returned
her to the interview room and informed her that Ruben was a suspect in Jose’s murder and that if
she did not confess, they would arrest both Appellant and Ruben.
Appellant also testified that at some point while at EPSO headquarters, she was escorted
to the polygraph room with a detective and the two began discussing the polygraph machine.2 The
detective also told Appellant about himself, including that he had been a child in a dysfunctional
family and that he understood family abuse. Appellant stated that this detective also told her to
confess.
Detective Andrade
Detective Andrade testified that he arrived at the Acevedo residence at approximately 7:30
a.m. on September 25, 2014. Appellant informed Detective Andrade that she was the only person
in the house with her husband that previous night. He then asked Appellant if she would
accompany investigators to EPSO headquarters in order to aid the investigation into her husband’s
death. At this point, Detective Andrade explained, Appellant was neither under arrest or a suspect.
Appellant complied and rode with another detective to EPSO headquarters in the front-seat
passenger’s seat. Once at EPSO headquarters, Detective Andrade advised Appellant of her
2
This portion of the course of events was never clearly delinated by Appellant.
3
Miranda3 rights verbally and through an English and Spanish form, which Appellant signed.
Detective Andrade testified that he did not tell Appellant that Ruben was a suspect or that he would
be arrested. Detective Andrade also testified that Appellant had a lower lip injury.
First Interview
This first video recorded interview was conducted in Spanish. Appellant spoke with
detectives for approximately one hour and twenty minutes, agreed to provide a DNA sample, did
not confess or otherwise make any incriminating statements. Appellant’s first interview was in
most respects similar to her later accounts except as it pertained to what happened to Jose.
Appellant stated that she and Jose ate dinner at a taco restaurant and returned home the evening
Jose died. She explained that once home, Jose had a beer and she went to bed. She denied knowing
what happened to Jose. Detective Andrade asked Appellant if she would be willing to submit to a
polygraph examination, to which she agreed.
Detective Chavarria
Detective Gonzalo Chavarria, the EPSO’s polygraph examiner, testified that Appellant had
been escorted by Detective Andrade and Detective Santibanez to the polygraph examination room.
He described the layout of the office, stating that if “somebody was standing in the hallway when
[Appellant and the detectives] passed by, they would have to see [whoever was standing in the
hallway].” Once transferred to the polygraph examination room, Appellant met with Detective
Chavarria. Appellant asked him if her son Ruben would also be subjected to a polygraph
examination, to which Detective Chavarria responded that it was possible. Appellant began asking
him more questions about the polygraph machine at which point Detective Chavarria advised her
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
4
Miranda warnings verbally and again in a Spanish form, which Appellant signed. After signing
the form, Detective Chavarria stated that he noticed Appellant became emotional and stated that
she did not want her family to undergo a polygraph examination or through the investigation.
Appellant subsequently confessed that she had killed her husband with an apron. Detective
Chavarria informed Detectives Andrade and Santibanez that Appellant had confessed. After being
informed that Appellant had confessed, Detective Andrade escorted Appellant back to the
interview room for a second interview after administering another set of Miranda warnings
verbally and through an English and Spanish form, which Appellant again signed.
Second Interview
In this second interview, also conducted in Spanish, Appellant confessed that she
strangulated her husband using the top loop of a blue apron she made and had left hanging on the
washer’s door at her home. Appellant explained that she and Jose never went to a taco restaurant
but instead went to buy alcohol that evening. Once home, she drank some of the vodka they had
purchased. When she awoke later that evening, she noticed the vodka bottle was empty and that
Jose was intoxicated. After attempting to talk to him, she retrieved the apron and proceeded to
strangle him. She subsequently locked herself in her room and fell asleep.
Ruben Acevedo
Ruben testified that Appellant called to alert him about his father while he was working in
Carlsbad, New Mexico. After arriving at the scene at the Acevedo residence, an officer informed
him that he would need to provide a statement, to which Ruben agreed. After providing a statement
at a substation, the detectives transported Ruben to EPSO headquarters. There, he saw Appellant
walk past him as she walked from one room to another. Ruben explained that he had no doubt she
had seen him as well. Ruben was not handcuffed and was not informed that he was a suspect or
5
that he was under arrest.
The State stipulated that detectives at EPSO headquarters walked Appellant past her son
Ruben at the end of the suppression hearing. The trial court denied Appellant’s motion to suppress
and entered Findings of Fact and Conclusions of Law. The case proceeded to trial.
Trial
The trial began on October 26, 2015. Through a motion-in-limine, Appellant and the State
agreed to limit any discussion concerning the attempted polygraph examination that occurred at
EPSO headquarters. The parties agreed to “talk around” the circumstances. Appellant pled “not
guilty” to the charged offenses of first and second degree murder.
Appellant, again testifying through an interpreter, began by describing her marriage to Jose.
She testified that she and Jose married when she was fourteen years’ of age. After their first child
was born, Jose became verbally abusive and binge drink. Jose physically beat Appellant often,
often in front of their children, up until the eldest was approximately fifteen. As newlyweds, Jose
first began asking Appellant to view pornographic books with him. Later, Jose began taking
Appellant to hotels where he would force her to watch pornographic films with him. Jose would
subsequently get drunk and leave, leaving her to walk home. Appellant testified that she felt
pressured to commit these acts since they were married. In 2009, Jose was arrested for a
misdemeanor family violence assault after he beat Appellant. She later requested that prosecutors
dismiss the case after Jose beseeched Appellant to do so.
In the early morning hours of September 24, 2014, Appellant arrived home from work and
fell asleep. She was quickly awoken by Jose when he asked for the keys to the vehicle so that he
could drive their grandson to school. After falling back to sleep, Appellant woke again to mow
the lawn. Jose, after having taken their grandchild to school, returned sober to help her pick up
6
the cut grass. Appellant thereafter went with her daughter to the store. After returning from her
daughter’s house, she drank a beer at home. At approximately 4:47 p.m. that afternoon, Appellant
called her supervisor at work and left a message explaining that she would not be going to work at
11:00 p.m. that evening, as scheduled, since she had not slept. She was then working as a
housekeeper at a hospital. She and Jose thereafter left to purchase some liquor and then returned
home. Appellant testified that she served herself a small amount of the liquor at which point Jose
became very upset, grabbed her, threw her, and hit her face, rendering her unconscious. It was the
first time Appellant had been “knocked out.” She subsequently awoke on the sofa and noticed that
Jose was sitting on the loveseat and not moving. Using the top loop of an apron, she strangled
Jose. She thereafter went to bed. Appellant maintained that she was unaware of how Jose
developed the bruises and cuts later found on his face. The next morning on September 25,
Appellant found Jose’s body cold on the loveseat. Appellant called her son Ruben to alert him
that Jose was not breathing.
Appellant’s daughter-in-law and wife of her son Ruben, Valerie Roybal testified that she
remembered Appellant and Jose arguing when Jose returned from taking her son (the Acevedo’s
grandchild) to school on September 24. She overheard them yelling but could not understand since
she was not fluent in Spanish. That evening at approximately 7:30 p.m., she entered the Acevedo
residence that evening to do laundry, as she did often. Valerie saw Appellant unconscious on the
floor, leaning on the long sofa. She smelled alcohol and then asked Ruben to help Appellant since
she would not usually sleep on the floor and it appeared as if she had been drinking. Jose was
sitting outside on a bench. Valerie testified that Jose walked into the home and told Ruben to leave
his mother as Ruben lifted her on to the long sofa. Valerie and Ruben then went to the store and
returned at approximately 9:00 p.m. Valerie did not go back into the Acevedo residence since she
7
was afraid to upset Jose, stating that “[Jose] doesn’t like me in there.” That night, up until 3:00
a.m. when her husband left for work, she did not hear any arguing from the Acevedo residence.
At approximately 6:15 a.m. the next morning, Ruben called Valerie to inform her about his father
at which point Valerie rushed to the Acevedo residence and found Jose’s body sitting up on the
loveseat. After yelling Jose’s name several times, she attempted to feel for a pulse and found his
body was cold. She then called 9-1-1. The operator instructed Valerie to conduct cardiopulmonary
resuscitation (CPR), however, Valerie explained that she was unable since Jose’s body was stiff
and cold. Valerie began chest compressions on Jose’s body as the 9-1-1 operator had subsequently
instructed, but was unsuccessful.
Valerie and Ruben’s home adjoined the Acevedo residence and was separated by a
hallway. Valerie explained that while she never observed Jose hit Appellant, she had seen him
grab her as if “shaking someone to stop.” Valerie also described how Appellant would have black
eyes, cuts and bruises on her arms in Valerie’s twenty-four years knowing Appellant and Jose.
She stated that their relationship involved a lot of arguing—almost every weekend—and that she
did not think “any woman would stay in a relationship like that in our day and age, but [Appellant]
did.”
Ruben, son of both Appellant and Jose, testified that he returned home from work on
September 24 at approximately 6:00 p.m. On his way home, he saw his parent’s car on road. Later
that evening when he entered the Acevedo residence, he found Appellant “dazed out” leaning on
the couch while walking along the side of the home. He testified that his father told him that he
had punched Appellant and “knocked her out.” Jose also told Ruben to “leave her, she’s ugly”
when he asked him what happened to his mother. While his father’s statements were not in the
written statement given to police, Ruben testified that his father, in fact, told him so and that he
8
had informed an investigator. He picked up Appellant and placed her on the couch. He later ate
dinner and went to the store with his wife Valerie. Ruben testified that when he returned for the
laundry Valerie had left in the laundry room, he could hear his father breathing. When he received
the call from Appellant the next morning, he called his wife and asked her to check on his parents.
Ruben testified that Appellant and Jose often argued and that oftentimes, those arguments
turned physical. He explained that his father was verbally abusive and would degrade his mother.
Additionally, Ruben explained that his father, not his mother, would turn their arguments into
physical altercations. There were occasions in which Ruben would “get in the middle” when their
arguments escalated.
Margarete Bassett, a licensed professional counselor at a domestic violence and sexual
assault institute, testified as an expert witness. Bassett testified regarding the range of behaviors
that an abuser in an abusive relationship will use to entrap their partner to make their partner
commit to the relationship. Based on her review of the relationship between Appellant and Jose,
Bassett opined that Appellant felt trapped as if she could not leave the relationship. When asked
as to why Appellant strangulated Jose, Bassett stated that “someone who’s being abused retaliates
violently,” “typically in response to a threat.” In addition, “the cumulative effect of all of the
violence, all of the coercive controlling strategies,” and Appellant’s description that Jose had
reached a violent pinnacle by knocking her out for the first time all led to her actions. Bassett
opined that “for [Appellant], it had risen to a level of threat that threatened her life. [Appellant]
could not confront [Jose]. She could not confront him one on one and protect herself.”
A jury convicted Appellant and assessed punishment at twenty-five years’ confinement
and a $10,000 fine. The trial court sentenced Appellant in accordance with the jury’s verdict.
Appellant timely appealed.
9
DISCUSSION
Appellant contends that the trial court committed reversible error by omitting to include a
voluntariness instruction in the jury charge in violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. In her second issue, Appellant similarly maintains
that the trial court committed reversible error by omitting to include a voluntariness instruction in
the jury charge in violation the Texas Code of Criminal Procedure. Third, Appellant alleges the
trial court committed reversible error by including incorrect instructions in the jury charge
regarding the law on self-defense. In her fourth issue, Appellant contends that she was denied
reasonably effective assistance of counsel.
Jury Charge Error
In her first and second issues presented for review, Appellant complains that the trial court
committed reversible error by failing to include a voluntariness jury instruction, citing three
potentially different bases upon which a voluntariness point of error is analyzed: the Due Process
clause of the U.S. Constitution, Article 38.22, section 6 of the Texas Code of Criminal Procedure,
and Article 38.23 of the Texas Code of Criminal Procedure. See U.S. CONST. amend. VI;
TEX.CODE CRIM.PROC.ANN. art. 38.22-23 (West 2018).
In her third issue, Appellant claims egregious harm because the trial court failed to properly
instruct the jury on the law of self-defense. Appellant submitted a proposed jury charge to the trial
court and, in an apparent agreement with the State, the voluntariness instruction was removed so
that the expert witness (Margarete Bassett) could testify. Appellant’s affirmatively requested the
jury instruction that she now complains of in her third issue: the “duty to retreat” language in the
abstract portion. As a sub-issue of her third issue, she asserts the trial court erred in omitting the
Section 2.03(d) instruction in the abstract portion and both application paragraphs. TEX.PENAL
10
CODE ANN. § 2.03(d)(West 2011)(“If the issue of the existence of a defense is submitted to the
jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be
acquitted.”).
Standard of Review
When resolving a challenge to the jury charge, we first determine whether error exists. Ngo
v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). If we find error, we analyze that error for
harm under the applicable standard set out in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.
1984)(op. on reh'g). See Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App. 2009). If, as here,
the defendant did not object to the alleged error at trial, we will reverse only if the error is “so
egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’” Id.
(quoting Almanza, 686 S.W.2d at 171).
Voluntariness Instruction
Oursbourne v. State instructs us that Articles 38.21 and 38.22 “are broader in scope than
those [claims of involuntariness] covered by the Due Process Clause or Miranda.” 259 S.W.3d
159, 173-174 (Tex.Crim.App. 2008). So, we turn to Texas statutory law to properly evaluate the
question of jury submission of an instruction on voluntariness. Id. at 173-74. There are “three
types of instructions that relate to the taking of confessions: (1) a ‘general’ Article 38.22, § 6
voluntariness instruction; (2) a ‘general’ Article 38.22, § 7 warnings instruction (involving
warnings given under § 2 and § 3); and (3) a ‘specific’ Article 38.23(a) exclusionary-rule
instruction.” Id. at 173. Further,
It is the defendant’s responsibility to delineate which type of
‘involuntariness’ he is claiming—a general (perhaps subjective)
lack of voluntariness or a specific police-coerced lack of
voluntariness—because the jury instruction is very different
depending upon the type of claim.
11
Obviously, the evidence must raise a ‘voluntariness’ issue,
and the defendant should request a jury instruction that relates to his
theory of involuntariness. But if the defendant never presents a
proposed jury instruction (or fails to object to the lack of one), any
potential error in the charge is reviewed only for ‘egregious harm’
under Almanza.
Id. at 174.
An Article 38.22, § 6 claim of involuntariness is triggered only—when a “question is
raised” either by a party or by the trial court regarding an issue of the voluntariness of a confession.
Id. at 175. Likewise, an Article 38.22, § 7 jury instruction on voluntariness is mandated only—
when the issue is raised by the evidence. Id. at 176. An Article 38.23 jury instruction on
voluntariness, on the other hand, is required only—when there is a genuine dispute about a material
fact. Id. at 177 (citing Madden v. State, 242 S.W.3d 504, 510 (Tex.Crim.App. 2007). A trial court
has a duty, sua sponte, to give an Article 38.23 voluntariness instruction if three requirements are
met: “(1) evidence heard by the jury raises an issue of fact, (2) the evidence on that fact is
affirmatively contested, and (3) the contested factual issue is material to the lawfulness of the
challenged conduct in obtaining the statement claimed to be involuntary.” Contreras v. State, 312
S.W.3d 566, 574 (Tex.Crim.App. 2010).
Analysis
In Appellant’s opening statement, her counsel told the jury:
We believe the evidence is going to show that this was not a
tumultuous relationship between two people who like to drink and
fight. What this was[,] was a relationship of 41 years of marriage
involving a man who was controlling physically, psychologically,
emotionally from the day – from the time when they married and
lived in Juarez until the time they lived in California until – up until
September of 2014.
We believe the evidence is going to show that Ms. Acevedo
did do things that you do when you’re in an abusive relationship.
12
. . .
We believe the evidence is going to show . . . my client, prior
to this had had enough.
. . .
The evidence is going to show . . . Mr. Acevedo did something that
he had never done before, and that is, he beat her until
unconsciousness. The evidence is going to show that he knocked her
out. And when she awoke, we believe the evidence is going to show
to you that she went and got her apron, and she put it around his
neck, and she pulled it.
At trial, the State and Appellant agreed not to bring up before the jury any of the
circumstances surrounding Appellant’s second statement in which she inculpates herself which
was litigated on her motion to suppress based on voluntariness. The Appellant, during the guilt
stage, testified she killed her husband because “I was tired of him. And I was – I couldn’t take
anymore of that abuse that he was giving me.” When questioned as to why she strangled her
husband, Appellant replied “I was very tired of all the mistreatment and all of the abuse, I couldn’t
handle it anymore.” Appellant physically demonstrated for the jury how she strangled her husband
with the apron strings.
The State read to the jury a transcript in English of Appellant’s first recorded interview in
which she denied knowing what had happened to her husband. The English transcript of the
second recorded interview was also read to the jury in which Appellant admitted to strangling her
husband with the apron strings. Appellant’s counsel objected to the introduction of each of the
recorded statements based on voluntariness. The trial court overruled Appellant’s objections.
During the jury charge conference, Appellant’s counsel agreed to the deletion of the voluntariness
instruction the court had included in the proposed jury charge. The State and Appellant agreed to
the removal of the voluntariness instruction if the domestic violence expert testified. The trial
13
court agreed to remove the voluntariness instruction.
Defense counsel in closing argument, stated:
Because at this point, I don’t believe there’s any question that my
client killed Jose Acevedo.
. . .
That’s established. She got on the stand and she admitted.
. . .
[T]hen the next question you ask yourself is: Was it justified?
. . .
We do know that he punched her in the mouth because we’ve got
blistering.
. . .
Because when she wakes up from being knocked out, she goes, she
gets her apron, she come back, and she strangles him. She doesn’t
wait. She doesn’t cool off. There’s no time for reflection.
. . .
And he hits her in the most violent – she says the most violent attack
he’s ever done.
. . .
[B]ecause she wakes up, gets an apron, and then strangles him. And
in her mind – if he’s hit me hard enough to knock me out, he’s going
to kill me next time or when he wakes up out of his stupor or for
whatever reason.
. . .
This was as far as this abused woman could go.
. . .
And when you put yourself in her shoes and you look at her
14
experience, I believe that you can see this murder was justified, that
there was an immediacy in her mind when she wakes up after being
knocked out. There is an immediacy.
Clearly the issue of voluntariness was not raised by the evidence during the jury trial for
an Article 38.22, § 7 instruction. In fact, quite the opposite, the State and Appellant agreed through
a motion in limine not to litigate the issue of voluntariness at trial and they did not. Likewise, an
Article 38.23 voluntariness instruction was not warranted because there was no genuine issue of a
material fact presented to the jury regarding the voluntariness of her two recorded statements. Last,
we do not find that the “question” was raised under Article 38.22, § 6. Appellant’s trial strategy
was to admit the killing but argue it was justified as self-defense. Obviously, Appellant was forced
to choose between asserting the confession was coerced and false or the killing was justified. It
cannot be both. If she wanted a self-defense instruction, she had to admit to the murder and bear
the burden of her justification defense.
Assuming a voluntariness instruction was warranted, Appellant did not suffer egregious
harm. Appellant freely testified and demonstrated to the jury how and why she killed her husband.
The lack of a voluntariness instruction did not deprive her of a fair and impartial trial.
Issues One and Two are overruled.
Self-Defense Instruction
Appellant contends in her third issue that the trial court erred when it included language
concerning her duty to retreat in the jury instruction. Specifically, Appellant complains that the
language of the instruction erroneously imposed a duty to retreat on Appellant. In a sub-issue,
Appellant also contends that the self-defense language in the application portion of the jury
instruction improperly assigned the burden of proof by omitting the language of Section 2.03(d).
At trial, the State and Defense Counsel conferred on the court’s charge and stated the
15
following:
State: And I just want to point out for purposes of the record
that roman numeral 4, which is the language
regarding self-defense, and then the application
paragraph for the wording for the jury to apply self-
defense under roman numeral 7 came from the
defendant’s proposed jury charge of the Court. I
don’t know that it was filed. But the wording and the
language and all of this came from the defendant in
the defense proposed jury charge.
Defense: That is correct, Your Honor. We sent the Court an e-
mail with the proposed charge, and that is our charge.
We were rather pleased with it.
Court: Anything further from the State?
State: No, Your Honor.
Court: Defense?
Defense: No, Your Honor.
Court: In fact. [Defense Counsel], have you had a
reasonable amount of time to review the charge of
the Court, sir?
Defense: I have, Your Honor.
Court: Any objections?
Defense: No objection.
The trial court’s charge under Roman Numeral IV includes the following language “A
person is justified in using deadly force only if a reasonable person in the actor’s situation would
not have retreated . . . .” 4 The court’s charge under Roman Numeral VII included two application
4
Before 2007, it was appropriate to instruct a jury that the defendant must have “reasonably believed that a reasonable
person in the [defendant’s] situation would not have retreated.” Morales v. State, 357 S.W.3d 1, 4 (Tex.Crim.App.
2011). However, the Legislature revised the statute and because of those revisions, trial courts should no longer
submit jury instructions on the “general duty to retreat,” since those instructions are no longer authorized by statute.
Id. at 5. In Morales, the jury instruction included language regarding the defendant’s duty to retreat; the court
16
paragraphs which omitted the language of Section 2.03(d).5
Appellant acknowledges, in her brief, that “the record contains a strong suggestion that the
trial court’s instruction on self-defense was exactly as requested by defense counsel. Appellant
specifically drafted and submitted to the trial court the portion of the jury charge now complained
of: the “duty to retreat” language and the application paragraphs which she asserts did not contain
the instruction mandated under Section 2.03(d).
Unlike the voluntariness issue, Appellant complains of “a trial court has no duty to instruct
the jury on unrequested defensive issues . . . .” Oursbourn, 259 S.W.3d at 179 (citing Posey v.
State, 966 S.W.2d 57, 60 (Tex.Crim.App. 1998). A defendant must timely request a defensive
issue or object to its omission from the charge for it to be considered the law applicable to the case.
Oursbourn, 259 S.W.3d at 179-80; see also Williams v. State, 273 S.W.3d 200, 223
(Tex.Crim.App. 2008)(“[A] party can forfeit the right to complain about the omission of a
defensive issue because the defensive issue must be requested before the trial court has a duty to
place it in the charge, and so no ‘error’ occurs absent a request.”). Here, Appellant offered the
jury charge language that was used to instruct the jury in the trial court’s charge.
concluded that it was error to provide additional instructions regarding the defendant’s general duty to retreat, because
those additional instructions were no longer “authorized by statute” and “constituted [improper] comments on the
weight of the evidence.” Id. at 6. We note that “the failure to retreat may be considered in determining whether a
defendant reasonably believed that [her] conduct was immediately necessary to defend [herself]” and that a prosecutor
“may argue that the failure to retreat as a factor in determining whether the defendant’s conduct really was immediately
necessary[.]” Morales, 357 S.W.3d at 5; see also TEX.PENAL CODE ANN. § 9.31(a)(West 2011)(force is justified
“when and to the degree the actor reasonably believes the force is immediately necessary to protect” against unlawful
force), § 9.32(a)(2)(West 2011)(“when and to the degree the actor reasonably believes the deadly force is immediately
necessary” to protect against deadly force or to prevent the imminent commission of specified violent crimes).
5
When claiming self-defense, the defendant has the initial burden of producing some evidence triggering self-defense
to justify submission of a self-defense instruction. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App. 2003)(citing
Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991)). The State must then persuade the jury beyond a
reasonable doubt the defendant did not act in self-defense. Id. (citing Saxton, 804 S.W.2d at 913-14).
17
The trial court is required to instruct the jury it must acquit the defendant if it has reasonable
doubt on the existence of a defensive issue pursuant to Section 2.03(d). However, a defendant has
the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97
S.W.3d 589, 594 (Tex.Crim.App. 2003). The State has the burden of persuasion in disproving
self-defense. Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App. 1991). This burden does not
require the State to produce evidence refuting the self-defense claim; rather, the burden requires
the State to prove its case beyond a reasonable doubt. Id. The penal code places the burden on
the State to prove each element of the offense charged; it does not require the State to “negate the
existence of a defense . . . .” TEX.PENAL CODE ANN. § 2.03(b).
The Court, in Cadd, made clear that if the Appellant requests a charge instruction, he is
estopped to complain about it on appeal. Cadd v. State, 587 S.W.2d 736, 741 (Tex.Crim.App.
1979)(op. on reh'g)(appellate court held defendant in no position to complain about charge given
because the defendant requested the charge); Holmes v. State, 140 Tex. Crim. 619, 146 S.W.2d
400, 403 (1940)(defendant objected to the wording of the charge, the wording was taken out, then
defendant complained the wording was not in the charge, appellate court held defendant invited
error and could not complain). Given that Appellant did not object to the trial court’s jury charge,
she did not preserve error, and, therefore, the egregious-harm standard would normally apply. See
Druery v. State, 225 S.W.3d 491, 504 (Tex.Crim.App. 2007). But it does not apply here because
the error was invited. See Druery, 225 S.W.3d at 505–06; Prystash v. State, 3 S.W.3d 522, 531
(Tex.Crim.App. 1999), cert. denied, 529 U.S. 1102, 120 S. Ct. 1840, 146 L. Ed. 2d 782 (2000);
Capistran v. State, 759 S.W.2d 121, 124 (Tex.Crim.App. 1982)(Op. on reh’g).
The Court of Criminal Appeals has applied invited error when the defendant “invites” the
trial court to do something, the trial court does the act, and thereafter the defendant complains of
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the trial court's action. Kelley v. State, 823 S.W.2d 300, 302 (Tex.Crim.App. 1992); Capistran,
759 S.W.2d at 124. Under the doctrine of invited error, if a party requests or moves the court to
make an erroneous ruling, and the court rules in accordance with the request or motion, the party
responsible for the court's action cannot take advantage of the error on appeal. Prystash, 3 S.W.3d
at 531.
In Druery, the Court of Criminal Appeals found that the defendant “not only did not object
to the omission of the lesser-included instruction” but also “affirmatively requested, after inquiry
by the trial judge, that the lesser-included instruction not be given.” Druery, 225 S.W.3d at 506.
The court held the defendant “induced the alleged error of which he now complains.” Id. The
court explained that a defendant “may not now argue on appeal that the trial judge had a duty to
sua sponte give the jury an instruction on the lesser-included offense of first-degree murder in the
face of his specific request that the charge not be included.” Id. Thus, because the appellant was
“estopped from bringing this charge-error claim on appeal,” the court would “not address whether
the omission of and failure to sua sponte give the lesser-included instruction was erroneous or
amounted to egregious harm.” Id. Cf. Vega v. State, 394 S.W.3d 514, 520 n.21 (Tex.Crim.App.
2013)(where the court did not apply the invited error doctrine where the state and the court could
not find the missing instruction was requested or objected to).
In the present case, Appellant was given the exact jury instruction she requested and is now
trying to “benefit from an error that was committed at [her] behest.” Trejo v. State, 280 S.W.3d
258, 260 (Tex.Crim.App. 2009); Tucker v. State, 771 S.W.2d 523, 534 (1988). Because Appellant
is estopped from bringing this charge-error claim on appeal, we do not address whether the self-
defense instruction was erroneous or amounted to egregious harm.
Issue Three is overruled.
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Ineffective Assistance of Counsel
In a final issue, Appellant contends that if she is now estopped because of the invited error
doctrine from complaining about the erroneous jury instruction regarding the law of self-defense,
her trial counsel failed to provide reasonably effective assistance of counsel. Appellant’s
contention is that her trial counsel failed to render reasonably effective assistance when her trial
counsel offered the jury instruction, used at trial, which included an incorrect self-defense
instruction and language concerning her duty to retreat. Specifically, Appellant contends that the
self-defense language in the application portion of the jury instruction improperly assigned the
burden of proof and that the abstract portion of the instruction erroneously included a language
requiring Appellant to retreat before using deadly force.
Ineffective Assistance
The United State Constitution guarantees the right to reasonably effective assistance of
counsel in criminal prosecutions. U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S.
668, 684–86, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984). Criminal defendants are not, however,
entitled to a flawless performance from counsel; “isolated lapses or mistakes during the trial are
not necessarily indicative of ineffectiveness.” Calderon v. State, 950 S.W.2d 121, 128 (Tex.App.-
-El Paso 1997, no pet.)(citing McFarland v. State, 845 S.W.2d 824, 843 (Tex.Crim.App. 1992),
cert. denied, 508 U.S. 963, 113 S. Ct. 2937, 124 L. Ed. 2d 686 (1993). The defendant must show
that counsel's performance was deficient, to the extent that counsel failed to function as the
“counsel” guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771
(Tex.Crim.App. 1994).
We review claims of ineffective assistance of counsel under the two-pronged inquiry set
out in Strickland. We must decide whether counsel was actually ineffective—in other words, did
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the appellant show, “by a preponderance of the evidence, that his counsel’s representation fell
below the objective standard of professional norms[?]” Bone v. State, 77 S.W.3d 828, 833
(Tex.Crim.App. 2002)(citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). We must also
determine whether counsel’s ineffective assistance prejudiced the defendant. Id. Stated another
way, we must determine if the claimed error so undermines our confidence in the outcome of the
trial that there is a reasonable probability that, but for counsel’s error, the outcome of the
proceeding would have been different. Id. “The two prongs of Strickland need not be analyzed in
a particular order—the prejudice prong may be analyzed first and the performance prong second.”
Ex parte Martinez, 330 S.W.3d 891, 900 n.19 (Tex.Crim.App. 2011). Failure to make a showing
under either prong defeats an ineffective assistance claim. Rylander v. State, 101 S.W.3d 107, 110
(Tex.Crim.App. 2003).
Establishing a claim of ineffective assistance of counsel on direct appeal is difficult given
that proving the claim often, though not always, involves adducing evidence not readily apparent
in the record. Rylander, 101 S.W.3d at 110-11; Andrews v. State, 159 S.W.3d 98, 102
(Tex.Crim.App. 2005)(noting that habeas corpus proceedings are often the better avenue for relief
on ineffective assistance of counsel claims, since additional extra-record evidence may be
introduced and counsel can have the opportunity to explain thought processes); cf. State v. Frias,
511 S.W.3d 797, 811-12 (Tex.App.--El Paso 2016, pet. ref’d)(counsel’s testimony at new trial
hearing sufficient to allow court on direct appeal to determine counsel was ineffective). We
indulge a strong presumption that counsel “rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment[,]” [Internal quotations marks
omitted] Mallet v. State, 9 S.W.3d 856, 866 (Tex.App.--Fort Worth 2000, no pet.), and generally,
in the absence of affirmative record evidence, we will assume counsel’s decisions in a given case
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were strategic. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999)(allegation of
ineffectiveness “must be firmly founded in the record” and “record must affirmatively demonstrate
the alleged ineffectiveness”).
Analysis
Assuming the self-defense instruction was incorrect, that alleged error, standing only, did
not deprive Appellant of “counsel” as contemplated by the Sixth Amendment. A review of the
record reveals Appellant’s self-defense was vigorously prosecuted by her counsel. In closing
argument, the State did not argue the duty to retreat, only that Appellant had failed to show she
acted in self-defense. No evidence was developed by either party regarding the duty to retreat.
The record contains two references, other than the jury charge, the reading of it by the trial judge
to the jury and the State reading the instruction once in closing argument.
Assuming Appellant’s alleged error constituted a “deficient performance” under
Strickland, the mere assertion of prejudice is insufficient. See Ex parte Parra, 420 S.W.3d 821,
828 (Tex.Crim.App. 2013)(applicant's conclusory assertion that he had demonstrated prejudice
was insufficient to establish prejudice). Appellant has failed to demonstrate the outcome of
Appellant’s trial would have been different had the erroneous self-defense instruction had been
correctly submitted and the duty to retreat language deleted. Accordingly, we find that Appellant
has failed to establish how the incorrect deadly force self-defense instruction caused prejudice as
required by Strickland. See Newkirk v. State, 506 S.W.3d 188, 198–99 (Tex.App.--Texarkana
2016, no pet.)(ineffective assistance of counsel claim failed because no Strickland prejudice where
trial counsel did not request sudden-passion defense instruction during punishment phase of trial).
We overrule Appellant’s final issue.
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CONCLUSION
Having overruled each of the issues on appeal, we affirm the trial court’s judgment.
November 2, 2018
YVONNE T. RODRIGUEZ, Justice
Before Rodriguez, J., Palafox, J., and Larsen, Senior Judge
Larsen, Senior Judge (Sitting by Assignment)
(Do Not Publish)
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