In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-16-00222-CR
No. 07-16-00223-CR
________________________
TRAFTON RODGERS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the140th District Court
Lubbock County, Texas
Trial Court No. 2016-409,230 (Counts I & II)
Honorable Jim Bob Darnell, Presiding
December 7, 2018
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Following pleas of not guilty to two counts of aggravated assault by threat with a
deadly weapon, Appellant, Trafton Rodgers, was convicted by a jury of both counts.1 The
1 TEX. PENAL CODE ANN. § 22.02(a)(2), (b) (West 2011). An offense under this section is a second
degree felony.
jury set punishment at ten years confinement but recommended that the sentence be
suspended. On the jury’s recommendation, the trial court sentenced Appellant to ten
years confinement, suspended in favor of community supervision for a term of ten years.
Appellant presents two issues challenging his convictions. First, he contends (1) the
evidence was insufficient to prove he committed aggravated assault with a deadly
weapon because he acted in self-defense. Second, he asserts his trial counsel was
ineffective for failing to (1) effectively research and prepare for trial, (2) call him as a
witness, and (3) present evidence during the punishment phase of trial. We affirm.
BACKGROUND
Appellant has a tumultuous history with Joyce Lippold and her daughter Shanice
Wheeler. He and Lippold met online in October 2007 and immediately began an intimate
relationship. At that time, Lippold was married and her husband was deployed. Wheeler
was only fourteen years old when she overheard Appellant and Lippold engaging in sex
and became upset and volatile. Wheeler called her older brother to come over and help
her deal with the situation. Together, they expressed dissatisfaction to their mother about
the relationship with Appellant and a physical confrontation ensued among them and
Appellant.2 Wheeler also got physical with her mother and blamed Appellant for
destroying her family.
During her testimony, Lippold admitted being passionate about Appellant. Some
years after they met, in 2010, she moved three duplexes down from Appellant to be
2 Wheeler was arrested for aggravated assault against Appellant and was placed on deferred
adjudication community supervision.
2
geographically closer to him. She testified the relationship was not as it had been in the
beginning because he had begun abusing her, although she consistently lied to medical
personnel about how she sustained her injuries. She claimed she did not implicate
Appellant to protect him and out of fear he would do more harm.
Even though Lippold testified she feared Appellant from all the injuries he had
inflicted in the past, in 2012, she moved into the same duplex where he had lived for
thirteen years.3 She acknowledged that Appellant had advised her not to move next door
to him but claimed she made the move for financial reasons. She was confident the move
would not be problematic because she and Appellant were no longer romantically
involved. Eventually, her daughter moved in with her.
Over the course of the relationship, there were other physical altercations involving
Appellant, Lippold, and Wheeler. Eventually, Appellant sought a protective order that
prohibited any contact between himself and Lippold. Nevertheless, she violated the order
several times.
At approximately 3:00 a.m. on April 9, 2013, Appellant arrived home and when he
activated his car alarm, the noise woke up Lippold. She was unable to fall asleep and
instead went out to buy breakfast for herself and Wheeler. When she returned, Appellant
called her on her cell phone. When she did not answer, he sent her a text asking if they
could meet to exchange some items each had borrowed from the other. The exchange
took place without incident.
3 Her residence was Unit A of the duplex and Appellant lived in Unit B of the same duplex.
3
Appellant again contacted her about an abdominal work-out chair she had
borrowed. Lippold agreed to return the chair and placed it in her garage with the door
open just enough for him to reach in and take it. Afterward, she closed the garage door.
Appellant claimed that Lippold had broken the chair and tried to call her. When his calls
went unanswered, he knocked on her front door. He and Lippold argued through the
closed door about whether the chair was broken. As the argument escalated, Wheeler
approached the front door and without opening it, shouted expletives to Appellant to leave
her mother alone. She threatened to kill Appellant or have others kill him for her. Fearing
that the argument would worsen, Wheeler called 911.
Given his history with Wheeler and her threat to have him killed, Appellant retrieved
a shotgun from the trunk of his car and returned to Lippold’s residence. He broke down
the door and when he entered, Wheeler was on her phone. Although she was speaking
with a 911 operator, Appellant assumed she was soliciting someone to come kill him.
When he entered the residence, Lippold was on the floor in pain from a previous injury.
Appellant followed Wheeler to her bedroom. He shoved her into a wall and told her in
colorful language not to threaten him.
A recording of a 911 call confirms that Appellant was at Lippold’s door when
Wheeler was on the phone with the 911 operator. During the call, Appellant kicked in the
door and entered with a shotgun. He yelled at Wheeler not to threaten him, after which
she apologized for doing so. Appellant yelled, “I swear to God I will kill you and you,” and
then asked Wheeler and Lippold to leave him alone. He also yelled at her to call the
police.
4
According to Lippold’s testimony, as Appellant was leaving her residence, he
placed the shotgun against her neck and threatened her life. He then returned to his side
of the duplex where he also called 911. He told the operator to send police to his
residence because his ex-girlfriend’s daughter had threatened to kill him. He explained
that Lippold had been stalking him and that he was tired of living in fear of Wheeler, who
had threatened him with a knife in the past.
During Appellant’s conversation with the 911 operator, the call was disconnected
and the operator called back to get more information. Appellant admitted to the operator
that he had a gun and that he had kicked in Lippold’s door to tell Wheeler to stop
threatening him. The 911 operator instructed Appellant to leave the gun in his house and
open his front door to meet the officers responding to the calls.
When police officers arrived, all parties were handcuffed while both residences
were searched. No weapons were found in Lippold’s residence but a shotgun was found
in Appellant’s residence. Officers observed a small abrasion on Wheeler’s shoulder and
Lippold had marks on her neck. After sorting out the situation, Appellant was arrested
but was later released on bond.
Appellant was indicted for numerous offenses but was only tried for two counts of
aggravated assault—one against Lippold and one against Wheeler. His case was tried
on a theory of self-defense. After being properly admonished, Appellant testified on his
behalf and offered his version of past encounters with Lippold and Wheeler. The jury was
charged on use of force and use of deadly force. The jury rejected Appellant’s self-
defense theory and convicted him of both counts of aggravated assault.
5
APPLICABLE LAW
A person commits aggravated assault if he commits assault as defined under
section 22.01 of the Penal Code and uses or exhibits a deadly weapon during the
commission of the offense.4 TEX. PENAL CODE ANN. § 22.02 (a)(2) (West 2011). Under a
theory of self-defense, a person is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary to protect
himself against the other’s use or attempted use of unlawful force. § 9.31(a). The use of
force against another is not justified in response to verbal provocation. § 9.31 (b)(1). The
use of deadly force is justified if the person is justified in using force under section 9.31(a)
and he reasonably believes deadly force is immediately necessary to protect himself
against another’s use or attempted use of deadly force. § 9.32(a)(2)(A).
ISSUE ONE—SUFFICIENCY OF THE EVIDENCE
Appellant contends the State failed to prove beyond a reasonable doubt that he
committed aggravated assault with a deadly weapon. We disagree.
A defendant has the initial 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). Once
evidence is produced, the State then disproves the self-defense theory by proving that
the defendant committed the charged offense beyond a reasonable doubt. Saxton v.
State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991) (en banc). A jury’s guilty verdict is
4 As relevant here, assault is committed if a person intentionally, knowingly, or recklessly causes
bodily injury to another or intentionally or knowingly threatens another with imminent bodily injury. §
22.01(a).
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an implicit rejection of a defendant’s self-defense claim. Jenkins v. State, 740 S.W.2d
435, 438 (Tex. Crim. App. 1983).
In reviewing the rejection of a self-defense claim, we do not look at whether the
State presented evidence to support the jury’s rejection of that theory; rather, we review
all the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and reasonable inferences to be drawn therefrom, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.
See Mora v. State, No. 07-15-00279-CR, 2017 Tex. App. LEXIS 6830, at *4 (Tex. App.—
Amarillo July 20, 2017, pet. ref’d) (mem. op., not designated for publication) (citing
Saxton, 804 S.W.2d at 913). See also Musacchio v. United States, __ U.S. __, 136 S.
Ct. 709, 715, (2016); Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
The jury is the sole judge of the credibility of the witnesses and the weight to be
given to their testimony, and the reviewing court must not usurp its role by substituting its
judgment for that of the jury. Id. (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex.
Crim. App. 2012)). The duty of the reviewing court is simply to ensure that the evidence
presented supports the jury’s verdict and that the State has presented a legally sufficient
case of the offense charged. Id. When the reviewing court is faced with a record
supporting contradicting conclusions, the court must presume the jury resolved any such
conflicts in favor of the verdict, even when not explicitly stated in the record. Id. “Under
this standard, evidence may be legally insufficient when the record contains no evidence
of an essential element, merely a modicum of evidence of one element, or if it conclusively
establishes a reasonable doubt.” Id. (quoting Britain v. State, 412 S.W.3d 518, 520 (Tex.
Crim. App. 2013)).
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ANALYSIS
Notwithstanding the volatile history among Appellant, Lippold, and Wheeler, he
was required to show that his use of force was immediately necessary and reasonable to
prevail on a theory of self-defense.5 Conduct that is “immediately necessary” to avoid
harm is conduct that is needed “right now,” “at that moment—‘when a split second
decision is required.’” Henley v. State, 493 S.W.3d 77, 89-90 (Tex. Crim. App. 2016).
The evidence established that on April 9, 2013, Wheeler threatened to kill
Appellant or call others to come and kill him. There was contradicting evidence on
whether Wheeler’s threats were conditioned on Appellant abusing Lippold in the future.
A conditional threat would not have required immediate use of force. Also, Wheeler’s
verbal provocation alone at that time did not justify Appellant’s use of force. No weapons
of any kind were found at Lippold’s residence on the night of the incident.
The jury was free to resolve the conflict on whether Wheeler’s threats against
Appellant were immediate or intended as a future threat of harm if Appellant harmed
Lippold again. The jury resolved the conflict against Appellant.
The evidence showed that Appellant had a substantial stature—he was a former
Olympic athlete. Lippold and Wheeler were described as much smaller in stature making
Appellant’s use of a shotgun and physical force to prevent immediate harm to himself less
plausible. Additionally, Appellant’s conduct in threatening Lippold with his shotgun while
5
We note that Appellant did not specifically challenge the sufficiency of the evidence to support the
elements of aggravated assault.
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she was in pain and on the floor was not immediately necessary to protect himself against
harm from her. Wheeler, not Lippold, had threatened to kill him.
Being faced with a record of conflicting testimony, we must presume the jury
resolved any such conflicts in favor of the verdict and against Appellant on his self-
defense claim. Issue one is overruled.
ISSUE TWO—INEFFECTIVE ASSISTANCE OF COUNSEL
STANDARD OF REVIEW
The right to reasonably effective assistance of counsel in a criminal prosecution is
guaranteed by the Sixth Amendment to the United States Constitution and Article 1,
Section 10 of the Texas Constitution. U.S. CONST. amend VI; TEX. CONST. art. 1, § 10.
To establish a claim based on ineffective assistance, an appellant must show that (1) his
counsel’s representation fell below the objective standard of reasonableness and (2)
there is a reasonable probability that but for counsel’s deficiency the result of the
proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In other words, an appellant must show his
trial counsel’s performance was deficient and that he was prejudiced by the deficiency.
State v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017).
A claim of ineffective assistance of counsel must be firmly demonstrated in the
record. Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Thompson
v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999)). “It is not sufficient that appellant
show, with the benefit of hindsight, that his counsel’s actions or omissions during trial
were merely of questionable competence.” Mata v. State, 226 S.W.3d 425, 430 (Tex.
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Crim. App. 2007). We must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Frangias v. State, 450
S.W.3d 125, 136 (Tex. Crim. App. 2013).
In most cases, a direct appeal is an inadequate vehicle for raising a claim of
ineffective assistance because the record is generally undeveloped and cannot
adequately reflect counsel’s trial strategy. Rylander v. State, 101 S.W.3d 107, 110-11
(Tex. Crim. App. 2003). When counsel is not afforded an opportunity to explain his
strategy before being denounced as ineffective, an appellate court should not find
deficient performance unless counsel’s conduct was “so outrageous that no competent
attorney would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.
Crim. App. 2005). When the record is silent on counsel’s trial strategy, we will assume
that counsel had a strategy if any reasonable sound strategic motivation can be imagined.
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
ANALYSIS
Appellant alleges three instances in which his counsel’s representation was
inadequate. First, he maintains counsel failed to effectively research and prepare for trial.
Second, he complains that counsel failed to call any witnesses to testify on his behalf.
Finally, he criticizes counsel for not presenting evidence during the punishment phase of
trial.
In the underlying case, Appellant did not file a motion for new trial to develop his
complaints. Consequently, the record is silent on any possible trial strategy by counsel.
For Appellant to prevail on his ineffective assistance claim on direct appeal, the record
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must demonstrate that trial counsel’s representation was “so outrageous that no
competent attorney would have engaged in it.”
Regarding Appellant’s complaints that trial counsel failed to call other defense
witnesses or present punishment evidence, he has not shown that those witnesses would
have been available to testify or that their testimony would have been of some benefit to
his defense. See Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex. Crim. App. 2007). See
also Sauseda v. State, No. 07-17-00100-CR, 2018 Tex. App. LEXIS 7811, at *9 (Tex.
App.—Amarillo Sept. 25, 2018, no pet.) (mem. op., not designated for publication).
Without such a showing, we cannot find counsel’s failure to call other witnesses or present
punishment evidence as deficient representation.
Viewing the totality of counsel’s performance, we cannot conclude without a record
of his trial strategy that his representation was inadequate. Trial counsel vigorously cross-
examined witnesses, especially Lippold and Wheeler. He aggressively cross-examined
Wheeler on her past violent escapades and her criminal history. He presented numerous
objections during trial. His representation was not so outrageous as to be declared
ineffective without giving him an opportunity to explain his strategy in defending
Appellant’s case. Issue two is overruled.
REFORMATION OF JUDGMENT
A review of the clerk’s records revealed several clerical errors. In the summary
portion of both judgments under Plea to Offense, “guilty” is reflected as Appellant’s pleas.
However, a review of the reporter’s record reflects that Appellant entered pleas of “not
guilty” to both counts of aggravated assault with a deadly weapon. Additionally, both
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judgments reflect that punishment was assessed by the trial court when, in fact, the jury
assessed punishment and recommended that Appellant’s sentences be suspended.
Consequently, the judgments contain inaccuracies.
This court has the power to modify a judgment of the court below to make the
record speak the truth when we have the necessary information to do so. TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Appellate courts
have the power to reform whatever the trial court could have corrected by a judgment
nunc pro tunc where the evidence necessary to correct the judgment appears in the
record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd).
The trial court is ordered to prepare and file a Judgment Nunc Pro Tunc in each
cause reflecting this reformation, and the trial court clerk is ordered to provide copies of
those judgments to the Lubbock County Community Supervision Department.
CONCLUSION
We reform the summary portion of both judgments to reflect “Not Guilty” under
Plea to Offense and to also reflect that punishment was assessed by the jury.
Accordingly, as modified, the trial court’s judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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