IN THE
TENTH COURT OF APPEALS
No. 10-06-00076-CR
Gary Trollinger,
Appellant
v.
The State of Texas,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2005-939-C
MEMORANDUM Opinion
Trollinger appeals his conviction for aggravated assault by threat on a public servant. See Tex. Penal Code Ann. § 22.01(a)(2), § 22.02(a)(2), (b)(2)(B) (Vernon Supp. 2006). We affirm.
In two issues, Trollinger contends that the evidence was insufficient, “where the victim was not aware of the threat before the act which was alleged to constitute the threat was committed.” (Br. at 4, 7; see id. at vi.) Trollinger argues that “the evidence in this case is not sufficient to establish an intent to ‘cause in the victim a reasonable apprehension of bodily injury.’” (Id. at 6 (quoting Edwards v. State, 57 S.W.3d 677[, 680] (Tex. App.—Beaumont 2001[, pet. ref’d])[, criticized in Olivas v. State, 203 S.W.3d 341, 347-48 (Tex. Crim. App. 2006)]).)
The assault-by-threat “statute requires the State to prove that the defendant ‘threaten[ed] another . . . ,’ but there is no statutory requirement that a victim must instantaneously perceive or receive that threat . . . as the actor is performing it.” Olivas, 203 S.W.3d at 350 (quoting Tex. Penal Code Ann. § 22.01(a)(2)) (bracketed alteration in Olivas).
Legal Sufficiency. In Trollinger’s first issue, he contends that the evidence was legally insufficient. “The inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether, after viewing the evidence in a light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); accord Evans v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006); see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). “A ‘legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence.’” Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (quoting Cardenas v. State, 30 S.W.3d 384[, 389] (Tex. Crim. App. 2000)). “[C]ourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review.” Evans at 165 n.27 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005)); accord Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). “When the court is faced with a record of historical facts that supports conflicting inferences, it must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution.” Evans at 164 n.19 (quoting Jackson at 326); accord Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
Trollinger points to evidence that police officers could not see the door from which he shot an arrow toward them, but only heard him open the door before the arrow struck near them. Trollinger concedes that he verbally threatened to “shoot” the officers. (Br. at 6.) The State points to evidence that Trollinger threw a gun clip and knives at the officers; that he said that he had a gun, and verbally threatened to shoot and kill the officers and to blow them up; that the arrow landed two to three inches from an officer; and that the officers thus felt endangered and threatened.
Viewing the evidence in the light most favorable to the verdict, we hold that a rational jury could have found beyond a reasonable doubt that Trollinger threatened the officer. We overrule Trollinger’s first issue.
Factual Sufficiency. In Trollinger’s second issue, he contends that the evidence was factually insufficient. “There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Watson, 204 S.W.3d at 415 (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004), overruled in part on other grounds, Watson at 405); accord Prible v. State, 175 S.W.3d 724, 730-31 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481 (2005). “We set aside the verdict only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.” Prible at 731; accord Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); see also Watson at 414-15. “A clearly wrong and unjust verdict occurs where the jury’s finding is ‘manifestly unjust,’ ‘shocks the conscience,’ or ‘clearly demonstrates bias.’” Prible at 731 (quoting Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997)).
Trollinger points to evidence of his verbal threats to use a gun and explosives, and evidence that he did not immediately retaliate against the officers after they attempted to use a Taser weapon against him; and argues that the officers had no reason to believe that Trollinger was armed with a bow and arrow until he shot the arrow. The State does not separately argue factual sufficiency.
Considering all of the evidence in a neutral light, we hold that the jury was rationally justified in finding beyond a reasonable doubt that Trollinger threatened the officer. We overrule Trollinger’s second issue.
Having overruled Trollinger’s issues, we affirm.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed April 18, 2007
Do not publish
[CRPM]
xt-align:justify;line-height:200%'> Jones, who was convicted of attempted burglary of a habitation, asserts that his trial attorney was ineffective because he failed to request a jury instruction on the lesser included offense of attempted criminal trespass. Failure to request a jury instruction on a lesser included offense can render assistance of counsel ineffective if, under the particular facts of the case, the trial judge would have erred in refusing the instruction had counsel requested it. Vasquez v. State, 830 S.W.2d 948, 951 (Tex. Crim. App. 1992). But the defendant bears the burden of overcoming the presumption that counsel’s decision not to request the instruction could be considered sound trial strategy. See Jackson, 877 S.W.2d at 771-72.
Attempted criminal trespass can be a lesser included offense of attempted burglary. Aguilar v. State, 682 S.W.2d 556 (Tex. Crim. App. 1985); Waddell v. State, 918 S.W.2d 91, 93 (Tex. App.—Austin 1996, no pet.). There was some evidence in the record that Jones’s intent was not to enter the premises to commit a theft or a felony: Jeremy Cooper, a witness, testified that he heard Jones say, after police had arrived, that he was trying to look for a place to sleep. We thus conclude that the trial court would have erred in refusing a lesser included offense instruction for attempted criminal trespass.
The record, however, is devoid of why such an instruction was not requested. By comparison, in Waddell, the defendant’s attorney testified at the hearing on the motion for new trial that he did not think that an instruction was available under the facts and the law. But he was wrong and that error amounted to ineffective assistance. Waddell, 918 S.W.2d at 94-95. In contrast, in Sendejo v. State, counsel was not ineffective where the defendant’s attorney was made aware of the instruction’s availability by the trial court, but with the defendant’s assent, counsel instead chose to “roll the dice” with an “all-or-nothing” strategy. Sendejo v. State, 26 S.W.3d 676, 678-80 (Tex. App.—Corpus Christi 2000, pet. ref’d).
Without a record that reveals the reason why a request for an instruction on the lesser included offense of attempted criminal trespass was not requested, we cannot speculate whether Jones’s trial counsel was ineffective as the attorney was in Waddell or employed an all-or-nothing strategy like the attorney in Sendejo.
Failure to object to instruction that Jones was charged with burglary, rather than attempted burglary
Jones next asserts that his trial attorney was ineffective because he failed to object to the jury charge’s instruction that Jones was charged with burglary, rather than attempted burglary. While there is less need for a reason for the attorney’s failure to object, in making this complaint Jones’s brief does not offer any argument that this failure prejudiced his defense. Tex. R. App. P. 38.1(h); see Walder v. State, 85 S.W.3d 824 (Tex. App.—Waco 2002, order).
Failure to object to the trial court’s response to a jury note
Lastly, Jones asserts that his trial attorney was ineffective because he failed to object to the trial court’s response to a jury note. The jury requested the testimony of witness Jeremy Cooper because there was disagreement about whether Cooper saw Jones around 6:00 p.m. The trial court responded that there was no such testimony. This response arguably was incorrect (Cooper’s testimony reveals that he did not see Jones at 6:00 p.m.—he only saw him around 11:30 p.m.) and a comment on the evidence, but in this instance Jones’s trial attorney may have strategically decided not to object because hearing Cooper’s testimony again would have reminded the jury that Cooper saw Jones at the scene of the offense near the time of the offense. Regardless, Jones’s brief fails to provide an argument that this failure to object prejudiced his defense. See id.
Conclusion
In this appeal, we have not decided that Jones did or did not receive effective assistance of counsel at trial. See Thompson, 9 S.W.3d at 814 (“We are not deciding on this direct appeal, therefore, that appellant did or did not receive the effective assistance of counsel during trial.”). Instead, without a record revealing trial counsel’s strategy or motivation, Jones has not defeated the strong presumption that his trial counsel’s actions fell within the wide range of reasonable and professional assistance. See id. Thus, we overrule Jones’s three issues without prejudice. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000) (“the proper procedure will be for the appellate court to overrule an appellant’s Sixth Amendment claim without prejudice to appellant’s ability to dispute counsel’s effectiveness collaterally.”).
The trial court’s judgment and sentence are
affirmed. Our opinion and judgment
dated March 23, 2005, are withdrawn, and this opinion is substituted as the
opinion of the court.
Tex. R. App. P. 50. Jones’s Petition
for Discretionary Review is dismissed by operation of law. Id.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs)
Affirmed
Opinion delivered and filed July 20, 2005
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[CRPM]
[1] Jones, citing Bone v. State, acknowledges the presumption that trial counsel employed sound strategy cannot normally be overcome on direct appeal because the record will not contain evidence of the trial attorney’s reasons for his conduct. See Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002). He states that he nonetheless seeks to comply with this Court’s directive that all appellate arguments be made that might “conceivably” persuade the Court. See Taulung v. State, 979 S.W.2d 854, 856 (Tex. App.—Waco 1998, no pet.).