Roberts v. State
| Decision Date | 29 November 2016 |
| Docket Number | NO. 01-16-00059-CR,01-16-00059-CR |
| Parties | WALTER LEE ROBERTS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from County Criminal Court at Law No. 4 Harris County, Texas
Appellant, Walter Lee Roberts, was charged by information with disorderly conduct.1 Appellant pleaded not guilty, and the jury found him guilty. The trialcourt assessed punishment at 180 days' confinement, suspended the sentence, and placed Appellant on community supervision for 90 days. The trial court also assessed a fine of $2,000. In four issues2 on appeal, Appellant argues the trial court or the State committed reversible error and his counsel provided ineffective assistance concerning (1) the constitutionality of the crime for which he was charged, (2) obtaining and producing exculpatory evidence, (3) the sufficiency of the allegations in the information, and (4) failing to include a self-defense instruction in the charge.
We affirm.
On March 5th, 2015, Etoinne Ternoir was at a gas station in Baytown, Texas. The gas station has a car wash, and Ternoir pulled his truck up to the entrance to get it washed. Before proceeding through the car wash, Ternoir did some pre-cleaning on his truck. While Ternoir was doing this, Appellant pulled up behind him. Appellant asked Ternoir if he was the attendant. Ternoir said no. Appellant replied, "So you're just in the way."
Ternoir told Appellant he was trying to hurry, but Appellant appeared displeased. As Ternoir was putting away the brush he had been using to clean his truck, Appellant yelled for his attention. Ternoir looked up and saw Appellant pointing a shotgun at him. Ternoir got back in his truck and proceeded through the car wash, the only way out for him. As he went through the car wash, Ternoir called 9-1-1. Police arrived as Appellant was going through the car wash.
Appellant was charged with disorderly conduct. Specifically, the information alleged "that in Harris County, Texas, Walter Lee Roberts, hereafter styled the Defendant, heretofore on or about March 5, 2015, did then and there unlawfully intentionally and knowingly display a deadly weapon, namely, a firearm, in a public place and in a manner calculated to alarm."
Appellant testified at trial. He denied pointing his shotgun at Appellant. Instead, he testified that he got out of the truck with the shotgun, walked to the store, and stood outside the store with his back to the wall. Appellant testified that he did this because he had become afraid that he could be the victim of a carjacking.
We apply the following principles to each of Appellant's issues as they relate to his claims of ineffective assistance of counsel. The Sixth Amendment to the United States Constitution guarantees the right to reasonably effective assistance of counsel in criminal prosecutions. See U.S. CONST. amend. VI. To show ineffectiveassistance of counsel, a defendant must demonstrate both (1) that his counsel's performance fell below an objective standard of reasonableness and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 101-02 (Tex. Crim. App. 2005). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. See Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 S.W.3d at 101.
An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 814. We presume that a counsel's conduct falls within the wide range of reasonable professional assistance, and we will find a counsel's performance deficient only if the conduct is so outrageous that no competent attorney would have engaged in it. Andrews, 159 S.W.3d at 101.
"In making an assessment of effective assistance of counsel, an appellate court must review the totality of the representation and the circumstances of each case without the benefit of hindsight." Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.App. 2011). Demonstrating ineffective assistance of counsel on direct appeal is "a difficult hurdle to overcome." Id. In order to establish it, "the record must demonstrate that counsel's performance fell below an objective standard of reasonableness as a matter of law, and that no reasonable trial strategy could justify trial counsel's acts or omissions, regardless of his or her subjective reasoning." Id.
After proving error, the appellant must affirmatively prove prejudice from the deficient performance of his attorney. Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—Texarkana 2000, pet. ref'd). The appellant Burruss, 20 S.W.3d at 186. Instead, the evidence must establish that there is a reasonable probability that, but for defense counsel's errors, the jury would have had a reasonable doubt about the defendant's guilt or that the extent of his punishment would have been less. See id.; see also Bone v. State, 77 S.W.3d 828, 836-37 (Tex. Crim. App. 2002).
In his first issue, Appellant argues the offense for which he was charged is unconstitutional. He argues his counsel was ineffective for not raising this matter before the trial court.
The State argues most of these arguments are not preserved. We hold that none of them have been preserved.
Challenges to the constitutionality of a criminal offense cannot be raised for the first time on appeal. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995). Instead, they must first be presented to and ruled on by the trial court. See id.; TEX. R. APP. P. 33.1(a) ().
In his motion for new trial, Appellant argued that the statute was vague on its face. Constitutional challenges can be raised in a motion for new trial. See Gillenwaters v. State, 205 S.W.3d 534, 537-38 (Tex. Crim. App. 2006) (). Simply filing the motion is insufficient to preserve the issue, however. The Appellant must also present the motion to the trial court and obtain a ruling. See TEX. R. APP. P. 21.6, 33.1(a)(2); Carranza v. State, 960 S.W.2d 76, 78-79 (Tex. Crim. App. 1998) (); seealso TEX. R. APP. P. 33.1(b) ().
There is no evidence in the record that Appellant presented his motion for new trial to the trial court or that he obtained a ruling. Accordingly, we hold Appellant has not preserved any of his constitutional challenges to the offense under which he was charged.
Appellant argues that his counsel was ineffective for failing to challenge the constitutionality of the charged offense. In his arguments about the constitutionality of the offense, Appellant raises two primary arguments: (1) the statute is vague on its face and (2) the statute conflicts with the constitutional right to bear arms.3
"Ordinarily, a criminal defendant who challenges a statute as unduly vague must show that it is vague as applied to the conduct for which he was charged." Scott v. State, 322 S.W.3d 662, 665 n.3 (Tex. Crim. App. 2010), abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014), (citing Parker v. Levy, 417 U.S. 733, 756, 94 S. Ct. 2547, 2561-62 (1974)). A defendant can asserta facial challenge when the statute implicates the free-speech guarantee of the First Amendment. Id. (citing United States v. Williams, 553 U.S. 285, 304, 128 S. Ct. 1830, 1845 (2008); Gooding v. Wilson, 405 U.S. 518, 520-21, 92 S. Ct. 1103, 1105 (1972)). Appellant has not argued that section 42.01(a)(8) of the Texas Penal Code implicates free-speech rights. Accordingly, his facial challenge to the statute must fail. See id. at 670-71 ().
Appellant devotes less than a full page to his argument that the statute conflicts with his constitutional right to bear arms. Appellant appears to argue that, simply because the Second Amendment guarantees a right to bear arms, the statute in question is unconstitutional. See U.S. CONST. amend II. "[A]lthough there clearly [is a] constitutional right[] to bear arms . . . there is no constitutionally protected right to display a firearm in a public place in a manner that is calculated to alarm." Ex parte Poe, 491 S.W.3d 348, 355 (Tex. App.—Beaumont 2016...
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