                                 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
