                                      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).

                                                    6
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)).

                                             7
        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.

                                                     8
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.


                                            9
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


                                              10
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


                                             11
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.




                                            12
