Affirmed and Memorandum Opinion filed February 12, 2019.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-17-00989-CR

                        RODOLFO QUINTERO, Appellant
                                          V.
                         THE STATE OF TEXAS, Appellee

            On Appeal from the County Criminal Court at Law No. 10
                             Harris County, Texas
                         Trial Court Cause No. 2127783

                    MEMORANDUM OPINION
      A jury convicted appellant Rodolfo Quintero of resisting arrest. In a single issue,
appellant challenges his conviction on the basis that his trial counsel provided
ineffective assistance. Because the record does not support appellant’s assertion of
ineffective assistance, and appellant has not demonstrated prejudice in any event, we
affirm the trial court’s judgment.
                                         Background

      The Harris County District Attorney charged appellant by information with the
misdemeanor offense of resisting arrest.1 The State alleged that appellant intentionally
obstructed a peace officer from arresting appellant by pushing the officer with his hand.
Appellant pleaded not guilty, and the case went to trial, where the following facts were
established.

      In the early morning hours of February 22, 2015, Houston Police Department
Officer Aaron Richberg was working an off-duty security job at a sports bar where
appellant was present. Appellant and two or three other males were loudly causing a
scene and appeared to make unwanted advances toward a woman. Officer Richberg
approached appellant’s group and “was attempting to talk to [appellant] when [Officer
Richberg] was pushed by [appellant].” Appellant then hurled invectives at the officer,
including a racial slur. Officer Richberg attempted to arrest appellant for public
intoxication, but appellant “actively resist[ed]” Officer Richberg’s attempts. Appellant
pushed and punched the officer. A struggle ensued and Officer Richberg deployed his
taser. Appellant attempted to remove the taser prong, so Officer Richberg fired his
taser again. Officer Richberg ultimately handcuffed appellant with assistance from
another officer.

      At the charge conference, appellant’s counsel requested inclusion in the jury
charge of an instruction on disorderly conduct. Counsel argued to the trial court that
disorderly conduct was a lesser included offense of resisting arrest, and the State argued
it was not. The trial court denied defense counsel’s request.




      1
          See Tex. Penal Code § 38.03.

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      The jury found appellant guilty of the charged offense, and the trial court
sentenced appellant to 210 days’ confinement in county jail. Appellant did not file a
motion for new trial.

      This appeal timely followed.

                                       Analysis

      In a single issue, appellant argues that his counsel failed to provide effective
assistance at trial. Appellant claims that his counsel’s decision to request a jury
instruction on disorderly conduct was not reasonable strategy because disorderly
conduct is not a lesser included offense of resisting arrest. Further, though the trial
court denied the instruction to which appellant contends he was not entitled anyway,
appellant argues on appeal that his counsel’s decision to request the instruction
prejudiced him.

A.    Applicable Law and Standard of Review

      Both the United States Constitution and the Texas Constitution guarantee an
accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, §
10; see also Tex. Code Crim. Proc. art. 1.051. This right necessarily includes the right
to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,
686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To
prevail on a claim of ineffective assistance, an appellant must prove by a preponderance
of the evidence that (1) counsel’s performance was deficient by falling below an
objective standard of reasonableness and (2) counsel’s deficiency caused the appellant
prejudice such that there is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. See Strickland, 466 U.S. at 687-
88, 694; Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). Failure to
make the required showing of either deficient performance or sufficient prejudice


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defeats the claim of ineffectiveness. Strickland, 466 U.S. at 697; see also Jagaroo v.
State, 180 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

      Our review of trial counsel’s representation is highly deferential and presumes
that counsel’s actions fell within the wide range of reasonable professional assistance.
See Garza v. State, 213 S.W.3d 338, 348 (Tex. Crim. App. 2007); Donald v. State, 543
S.W.3d 466, 477 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (op. on reh’g); see
also Valdez v. State, No. AP-77,042, 2018 WL 3046403, at *25 (Tex. Crim. App. June
20, 2018) (not designated for publication); Luna v. State, No. 14-16-00844-CV, 2018
WL 1414175, at *1 (Tex. App.—Houston [14th Dist.] Mar. 22, 2018, no pet.) (mem.
op., not designated for publication). If counsel’s reasons for his or her conduct do not
appear in the record and there exists at least the possibility that the conduct could have
been grounded in legitimate trial strategy, we defer to counsel’s decisions and deny
relief on an ineffective assistance claim on direct appeal. See Garza, 213 S.W.3d at
348; see also Valdez, 2018 WL 3046403, at *25. The Court of Criminal Appeals has
also stated that if counsel has not had an opportunity to explain his or her actions, we
may not find deficient performance unless the 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). In the majority of cases, the record on direct appeal is
simply undeveloped and insufficient to permit a reviewing court to fairly evaluate the
merits of an ineffective assistance of counsel claim. See Luna, 2018 WL 1414175, at
*1.

B.    Application

      Appellant contends that his counsel performed deficiently by requesting a jury
instruction for disorderly conduct, which counsel argued was a lesser included offense
of the resisting arrest offense charged. One instance of a lesser included offense is
“established by proof of the same or less than all of the facts required to establish the

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commission of the offense charged.” Tex. Code Crim. Proc. art. 37.09(1). A person
commits the offense of resisting arrest “if he intentionally prevents or obstructs a
person he knows is a peace officer or a person acting in a peace officer’s presence and
at his direction from effecting an arrest, search, or transportation of the actor or another
by using force against the peace officer or another.” Tex. Penal Code § 38.03(a). A
person commits the offense of disorderly conduct if, inter alia, he intentionally or
knowingly “abuses or threatens a person in a public place in an obviously offensive
manner” or “fights with another in a public place.” Id. § 42.01(a)(4), (a)(6). Appellant
contends that disorderly conduct requires proof that the conduct occurred in “a public
place,” whereas resisting arrest does not require such proof, and therefore disorderly
conduct is not a lesser included offense of resisting arrest. Appellant asserts that “[n]o
reasonable trial strategy can justify [counsel’s] decision to ask for a lesser included
instruction that was so clearly inapplicable to this case.”

       Appellant did not file a motion for new trial and thus no allegations of ineffective
assistance were presented to the trial court. Appellant’s counsel, therefore, has not
been afforded the opportunity to explain why he asked for an instruction regarding
disorderly conduct. “We presume that counsel made a reasonable and strategic
decision about how to conduct the defense, including whether to ask for particular jury
instructions.” Guerrero v. State, No. 12-09-00350-CR, 2010 WL 2784431, at *2 (Tex.
App.—Tyler July 14, 2010, pet. ref’d) (mem. op., not designated for publication).
Moreover, it is possible that counsel’s decision to seek a lesser included offense
instruction was grounded in legitimate trial strategy regardless whether disorderly
conduct is a lesser included offense of resisting arrest;2 if the trial court had granted the
request, the jury might have found appellant guilty of a lesser crime and appellant could


       2
         We need not decide whether appellant is correct that disorderly conduct is not a lesser
included offense of resisting arrest, given our disposition of his issue.

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have faced a lesser sentence. See Valdez, 2018 WL 3046403, at *25 (citing Hathorn
v. State, 848 S.W.2d 101, 118 (Tex. Crim. App. 1992) and noting Hathorn’s holding
that conceding defendant’s guilt of a lesser included offense is a reasonable trial tactic);
Guzman v. State, 539 S.W.3d 394, 408 (Tex. App.—Houston [1st Dist.] 2017, pet.
ref’d) (“[A]ttempting to persuade a jury to convict a defendant of a lesser-included
offense has routinely been held to constitute a reasonable trial strategy.”). On a silent
record, we are unwilling to conclude that requesting a lesser included offense
instruction, even if ultimately inapplicable to the case, is “so outrageous that no
competent attorney would have engaged in it.” Luna, 2018 WL 1414175, at *2; see
also Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (a sound trial
strategy may be executed imperfectly, but the right to effective assistance of counsel
does not entitle a defendant to errorless or perfect counsel). Because counsel’s reasons
for his actions do not appear in the record and it is at least possible that counsel’s
conduct was grounded in a legitimate trial strategy, we are unable to sufficiently
analyze appellant’s claim of deficient performance. See Washington v. State, 417
S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (determining that
defendant “failed to show deficient performance” because “[t]he decision to not request
a lesser included could have been strategic” and because “the record contains no
explanation for trial counsel’s failure to request a manslaughter instruction”).

      Moreover, assuming for argument’s sake that counsel’s performance was
deficient, appellant has failed to demonstrate prejudice under Strickland’s second
prong. The extent of appellant’s argument as to prejudice is his statement that

      [t]rial counsel’s deficient performance by relying on a lesser included
      instruction he was not entitled to as trial strategy prejudiced the outcome
      of the case as it misguided Appellant about the viability of his possible
      defenses at trial.



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      This conclusory assertion is insufficient to establish prejudice by a
preponderance of the evidence. See Luna, 2018 WL 1414175, at *1. In fact, faced
with a similar argument as appellant makes here, the Court of Criminal Appeals has
noted that “it certainly did not harm” a defendant for his counsel to obtain an
inapplicable lesser included offense instruction. Ex parte Thompson, 179 S.W.3d 549,
558 (Tex. Crim. App. 2005); see also Darnell v. State, No. 14-11-00437-CR, 2012 WL
626318, at *3 (Tex. App.—Houston [14th Dist.] Feb. 28, 2012, no pet.) (mem. op., not
designated for publication) (rejecting appellant’s argument that counsel provided
ineffective assistance by asking for an inapplicable lesser included offense charge
because appellant “failed to demonstrate any prejudice”). If it is not prejudicial to a
defendant for counsel to successfully secure a jury instruction on an inapplicable lesser
included offense, then it is also not prejudicial for counsel to request one and be denied,
at least when, as here, the record on direct appeal is undeveloped.

      Because appellant failed to prove either deficient performance or sufficient
prejudice, we hold that appellant has not shown that his counsel provided
constitutionally ineffective assistance. We overrule appellant’s sole issue.

                                       Conclusion

      We affirm the trial court’s judgment.




                                        /s/       Kevin Jewell
                                                  Justice


Panel consists of Justices Christopher, Jewell, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).



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