in the Matter of F.L.R., a Juvenile

IN THE
TENTH COURT OF APPEALS
No. 10-07-00231-CV
IN THE MATTER OF F.L.R., A JUVENILE
From the County Court at Law No. 2
Johnson County, Texas
Trial Court No. J04422
OPINION
A jury found that F.L.R. engaged in delinquent conduct by stealing an Under
Armour sweatshirt valued at $50 or more but less than $500. The court placed F.L.R. on
probation for twelve months. F.L.R. contends in his sole issue that he received
ineffective assistance of counsel because his trial attorney failed to submit a written
request for a jury instruction on abandoned property. We will affirm.
Background
On the occasion in question, the complainant and F.L.R. were both students at
Cleburne High School. The complainant had recently purchased a black Under Armour
sweatshirt imprinted with the words “Texas Tech Red Raiders” from a sporting goods
store in Arlington. After dressing out for football practice, he put the sweatshirt in his
locker and locked it. After practice, he discovered that his sweatshirt was missing.
F.L.R.’s locker was next to the complainant’s, and F.L.R. was in the locker room
when he put the sweatshirt in his locker. Later that same day, F.L.R. sold the sweatshirt
to another student who wore it to school the next day. When this student found out
that the sweatshirt belonged to the complainant, he returned it to him. The
complainant approached F.L.R. who told him that he had found the sweatshirt in the
floor of the locker room. Later, they were summoned to a meeting with the coaches
where F.L.R. said that he had found the sweatshirt under the bleachers outside. F.L.R.
testified at trial that he found the sweatshirt in the bleachers.
At the charge conference, F.L.R.’s trial counsel orally requested an instruction on
abandoned property and dictated a proposed instruction on the record. The court
denied the request.
Ineffective Assistance
A juvenile has a right to effective assistance of counsel in an adjudication
proceeding. In re S.C., 229 S.W.3d 837, 842 (Tex. App.—Texarkana 2007, pet. denied);
R.X.F. v. State, 921 S.W.2d 888, 902 (Tex. App.—Waco 1996, no writ). The familiar
Strickland standard is used to resolve ineffective assistance claims. S.C., 229 S.W.3d at
842 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed.
2d 674 (1984)); R.X.F., 921 S.W.2d at 902 (same).
To establish a claim for ineffective assistance of counsel, F.L.R. must show that:
(1) counsel’s performance was deficient; and (2) there is a reasonable probability the
In re F.L.R. Page 2
outcome would have been different but for counsel’s deficient performance. See Ex
parte Ellis, 233 S.W.3d 324, 330 (Tex. Crim. App. 2007); S.C., 229 S.W.3d at 842; R.X.F.,
921 S.W.2d at 902.
Deficient Performance
F.L.R. contends that counsel’s performance was deficient because counsel failed
to tender a written request for a defensive instruction on abandoned property. Like a
criminal defendant, a juvenile “is entitled to an instruction on any properly requested
defensive issue raised by the evidence, regardless of whether the evidence is weak or
strong, unimpeached or contradicted, or credible or not credible.” In re E.C.L., 278
S.W.3d 510, 521 (Tex. App.—Houston [14th Dist.] 2009, pet. filed); see Allen v. State, 253
S.W.3d 260, 267 (Tex. Crim. App. 2008). We view the evidence in the light most
favorable to the defendant when determining whether the requested instruction should
have been submitted. See Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006);
Durden v. State, No. 06-08-00223-CR, 2009 WL 1347180, at *2 (Tex. App.—Texarkana
May 15, 2009, no pet. h.).
A person commits theft when he “unlawfully appropriates property with intent
to deprive the owner of property.” TEX. PEN. CODE ANN. § 31.03(a) (Vernon Supp. 2008).
When a defendant offers evidence that allegedly stolen property was abandoned, this
raises a mistake-of-fact defense. See Durden, 2009 WL 1347180, at *5; TEX. PEN. CODE
ANN. § 8.02 (Vernon 2003); see also Ingram v. State, 261 S.W.3d 749, 753-54 (Tex. App.—
Tyler 2008, no pet.) (“it is possible to take possession of abandoned property without
committing a theft or intending to commit a theft”).
In re F.L.R. Page 3
F.L.R. testified that he found the sweatshirt on the bleachers about an hour after
the complainant testified that he first noticed that it was missing. No one was around
when he found the sweatshirt. F.L.R. saw no identifying information on the
sweatshirt.1 He similarly told the coaches that he found the sweatshirt in the bleachers.
A private investigator testified that he interviewed the complainant who told him that
he had left his sweatshirt in the bleachers.
Viewed in the light most favorable to F.L.R., this evidence raises the mistake-of-
fact defense. See Durden, 2009 WL 1347180, at *5. Counsel orally requested a jury
instruction on this defense, but he did not submit a written request for the instruction as
required by Rule of Civil Procedure 278. See TEX. R. CIV. P. 278 (“Failure to submit a
definition or instruction shall not be deemed a ground for reversal of the judgment
unless a substantially correct definition or instruction has been requested in writing and
tendered by the party complaining of the judgment.”); In re M.P., 126 S.W.3d 228, 230
(Tex. App.—San Antonio 2003, no pet.) (Rules of Civil Procedure govern the jury charge
in a juvenile delinquency proceeding) (citing In re A.A.B., 110 S.W.3d 553, 555-56 (Tex.
App.—Waco 2003, no pet.)).
Counsel dictated the desired instruction on the record. This would suffice to
preserve the issue for appellate review under article 36.15 of the Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.15 (Vernon 2006); A.A.B., 110 S.W.3d
at 557. But it does not satisfy the requirements of Rule 278. See TEX. R. CIV. P. 278;
1
Conversely, the complainant testified that his father wrote his name inside the pocket of the
sweatshirt with a silver permanent marker.
In re F.L.R. Page 4
A.A.B., 110 S.W.3d at 558. The Supreme Court has specifically addressed the propriety
of dictating a request on the record and has concluded that doing so does not suffice.
Woods v. Crane Carrier Co., 693 S.W.2d 377, 379 (Tex. 1985). The San Antonio Court has
declined to follow Woods, concluding that it is inconsistent with the “common sense”
approach encouraged by the Supreme Court in State Department of Highways and Public
Transportation v. Payne. See M.P., 126 S.W.3d at 230-31 (citing Payne, 838 S.W.2d 235, 241
(Tex. 1992)). Yet, every other court which has applied Woods since Payne was decided
has declined to relax the requirement of Rule 278 that a written request must be made.
See Laas v. State Farm Mut. Auto. Ins. Co., No. 14-98-00488-CV, 2000 WL 1125287, at *12
(Tex. App.—Houston [14th Dist.] Aug. 10, 2000, pet. denied); Sibert v. Coats, No. 06-98-
00065-CV, 1999 WL 182318, at *1 (Tex. App.—Texarkana Apr. 5, 1999, no pet.); Fairfield
Estates L.P. v. Griffin, 986 S.W.2d 719, 724 (Tex. App.—Eastland 1999, no pet.); Gilgon,
Inc. v. Hart, 893 S.W.2d 562, 565-67 (Tex. App.—Corpus Christi 1994, writ denied);
Mason v. S. Pac. Transp. Co., 892 S.W.2d 115, 118 (Tex. App.—Houston [1st Dist.] 1994,
writ denied); see also Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 165 (Tex. App.—San
Antonio 1993, writ denied).
In Payne, the Supreme Court chracterized Texas jury charge procedure as “a
labyrinth daunting to the most experienced trial lawyer.” Payne, 838 S.W.2d at 240. The
Court discussed the complexities and flaws of these procedures at length and reached
the following conclusion:
The flaws in our charge procedures stem partly from the rules
governing those procedures and partly from caselaw applying those rules.
Last year we asked a special task force to recommend changes in the rules
In re F.L.R. Page 5
to simplify charge procedures, and amendments are under consideration.
Rules changes must await the completion of that process; we do not revise
our rules by opinion. We can, however, begin to reduce the complexity
that caselaw has contributed to charge procedures. The procedure for
preparing and objecting to the jury charge has lost its philosophical
moorings. There should be but one test for determining if a party has
preserved error in the jury charge, and that is whether the party made the
trial court aware of the complaint, timely and plainly, and obtained a
ruling. The more specific requirements of the rules should be applied,
while they remain, to serve rather than defeat this principle.
Id. at 241 (citation omitted).
The Corpus Christi Court provided a persuasive explanation in Gilgon for why
the requirements of Rule 278 have not been superseded in any way by Payne:
Payne does not abandon the rules of civil procedure in favor of a test based
on “whether the party made the trial court aware of the complaint, timely
and plainly, and obtained a ruling.” Instead, Payne demands that we
apply the rules “while they remain” despite the fact that the rules cannot
always be reconciled with what the test “should be.”
Gilgon, 893 S.W.2d at 565 (quoting Payne, 838 S.W.2d at 241). Rule 278 has not been
amended since Payne was decided. “Payne demands that we apply [this rule]” as it still
remains. See id.
Counsel’s oral request for an instruction on the mistake-of-fact defense did not
satisfy the requirements of Rule 278. The defense was raised by the evidence, but
counsel failed to preserve for appellate review the trial court’s refusal to submit an
instruction on the defense. F.L.R. has met the first element of the Strickland test for
ineffective assistance. See Davis v. State, 278 S.W.3d 346, 352 (Tex. Crim. App. 2009)
(counsel’s failure to request accomplice-witness instruction met first element of
Strickland).
In re F.L.R. Page 6
Prejudice
F.L.R. must also establish a reasonable probability the outcome would have been
different but for counsel’s deficient performance. Ellis, 233 S.W.3d at 330; see S.C., 229
S.W.3d at 842; R.X.F., 921 S.W.2d at 902.
In Davis, the Court of Criminal Appeals discussed the appropriate analysis for an
ineffective assistance claim in which counsel failed to request an accomplice-witness
instruction. See Davis, 278 S.W.3d at 352-53. Regarding prejudice, the Court held that
this issue “will generally turn on whether there was a substantial amount of non-
accomplice evidence and whether the record reveals any rational basis on which the
jury could have doubted or disregarded that evidence.” Id. at 353. “[E]ach case must be
judged on its own unique facts.” Id.
It is also appropriate to consider criminal cases outlining the scope of review for
assessing whether a defendant has suffered harm because of charge error. In this
context, an appellate court considers: “(1) the charge itself; (2) the state of the evidence,
including contested issues and the weight of the probative evidence; (3) arguments of
counsel; [and] (4) any other relevant information revealed by the record of the trial as a
whole.” Martin v. State, 200 S.W.3d 635, 641-42 (Tex. Crim. App. 2006) (citing Hutch v.
State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).
We have already addressed the error in the charge. Regarding the state of the
evidence, the jury’s verdict came down to whether the jurors believed F.L.R. or the
complainant about where F.L.R. got the sweatshirt. Most of the evidence admitted
favored the complainant’s version of the events. The parties addressed abandonment of
In re F.L.R. Page 7
property during voir dire, in their opening statements, and in their arguments to the
jury. The jury deliberated for just over an hour before returning the verdict.
The State presented a “substantial amount” of evidence which supported the
complainant’s version of the events. The jury was given the opportunity to disregard
this evidence and to accept F.L.R.’s version of the events, but the jury chose not to. See
Davis, 278 S.W.3d at 353. The State also presented evidence that F.L.R. later threatened
the complainant if he did not drop the charges, which suggests consciousness of guilt.2
See Durden, 2009 WL 1347180, at *6; Claxton v. State, 124 S.W.3d 761, 766 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d).
In some instances, the denial of a proper defensive instruction will prevent a
defendant from arguing a defensive issue. Here, however, F.L.R. fully argued his
theory that the sweatshirt had been abandoned. See Durden, 2009 WL 1347180, at *7.
For these reasons, we conclude that there is not a reasonable probability the
outcome would have been different but for counsel’s deficient performance. See Ellis,
233 S.W.3d at 330; S.C., 229 S.W.3d at 842; R.X.F., 921 S.W.2d at 902.
We overrule F.L.R.’s sole issue and affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
2
The State also charged F.L.R. with retaliation based on this evidence, but the jury acquitted him
of this charge.
In re F.L.R. Page 8
(Chief Justice Gray concurs only in the judgment and only to the extent that it
affirms the trial court’s judgment. A separate opinion will not issue.)
(Justice Davis concurs because no prejudice has been shown as required by
Strickland v. Washington and Ex parte Ellis. A separate opinion will not issue.)
Affirmed
Opinion delivered and filed June 10, 2009
[CV06]
In re F.L.R. Page 9