      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-12-00810-CR



                                   Styron Earl Hale, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. CR-11-0844, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury found Styron Earl Hale guilty of assault on a public servant. The trial court

assessed sentence of three years in prison. On appeal, Hale contends that the evidence was

insufficient to support the verdict and that his trial counsel provided ineffective assistance. We will

affirm the judgment.


                                            Background

               This case arose from events occurring after San Marcos police received a call of a

domestic disturbance in an apartment at around 5 a.m. on August 29, 2011. The jury heard testimony

from the three officers who responded and from the occupants of the apartment, appellant and his

girlfriend, Sarah Barajas.

               Officer Eric Charleswell testified that dispatch reported that a woman called

to report that a man was throwing her belongings around inside their apartment. When Charleswell

arrived at the complex, Barajas flagged him down. He described her as crying and hysterical and
having trouble expressing what was happening. She eventually said that she and her boyfriend,

appellant, had an argument that escalated, then she left because she did not want to watch her

belongings destroyed.

                Officer Zachary Beck testified that dispatch announced that the incident was a

physical disturbance. He testified that domestic violence calls are dangerous to responding offers

because people tend to be quite emotional when involved in a domestic disturbance. Beck testified

that officers like to separate the participants and bring them outside for easier, less risky observation

while police sort through the case. Beck said he could see through the open front door that the

apartment was in complete disarray, with clothing thrown into piles, lamps turned sideways, and

cleaning solutions like bleach poured on the floor.

                When Officer Ryan Hartman arrived, he saw an older woman, Barajas’s mother,

climbing out of a window of the apartment and looking fearful. He went to the apartment’s front

door and talked to appellant, trying to get him to come outside. Hartman testified that appellant was

agitated, pacing, and cursing. Hartman asked, then commanded appellant to come outside where

Hartman could see him and be more confident that no weapons were within reach. Instead, appellant

attempted to close the door. Hartman testified that he felt that, if appellant closed the door, the

disturbance inside the apartment would continue. Hartman grabbed his arm, but appellant retreated

into the apartment. Hartman and Beck followed and warned appellant that they would use their

tasers if he did not comply with Hartman’s direction to leave the apartment.

                The officers testified that tasers have two modes of delivering electrical shock with

different impact—one is debilitating and the other is merely painful. The former involves firing

probes attached to wires from the handheld taser at the subject. Officers testified that if the probes

both attach to the subject, they send an electrical current through the subject’s body, causing

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muscles along that path to contract. If the pathway spans critical muscle groups, the subject is

rendered incapable of controlling his body’s movement. Officers testified that if the probes are close

together, the current affects fewer muscles and delivers a painful but not debilitating shock that

abates when the electricity stops. If only one of the probes attaches, there is no effect other than the

attachment of the probe. The second mode of taser use is called the “dry stun” or “drive stun” in

which the handler applies the handheld taser directly to the subject. The officers testified that this

has an effect similar to that caused when the taser probes are close together in that it tends to cause

pain but not a debilitating contraction of major muscle groups.

                Hartman and Beck testified that their attempt to subdue appellant with the taser

probes was ineffective because Hartman’s taser’s probes attached too closely together and only one

of Beck’s taser’s probes attached. The officers testified that appellant remained standing and refused

to comply with their orders. They said they then took him to the ground manually and had him

mostly face down. The confrontation had moved to the kitchen. Charleswell entered the apartment

and attempted to handcuff appellant. Charleswell testified that he cuffed appellant’s right wrist, but

was unable to cuff the left wrist because appellant tucked his left arm between his body and the floor.

Appellant continued to resist being handcuffed. The officers testified that Beck and Hartman then

drive stunned appellant until he “obey[ed] and released his arm,” allowing Charleswell to cuff his

left wrist. Charleswell testified that he checked to see if appellant had any weapons on him, rolling

him to one side then the other to check his pockets. Charleswell testified that only after that did

appellant bang his head on the stove, hyperventilate, and complain that he could not feel his legs.

Beck testified that when appellant started hyperventilating he “seemed kind of out of it.”

                During the struggle appellant bit Hartman on his thigh. Although he did not bite a

hole in the uniform’s fabric, he did break Hartman’s skin and cause some bruising.

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                Barajas testified that she did not call police, but rather that her mother had been

talking to her father on the phone and that her father’s coworker called in the complaint. She said

that appellant did not hit her that night and had never hit her, although she later conceded that he had

choked her before, but not “seriously.” She denied telling the officers that appellant was acting crazy

or that she had run into a bedroom and locked the door, although she agreed that she had mentioned

that she was afraid appellant was going to destroy all of her belongings. She testified that she was

not afraid even though appellant had earlier trashed the apartment because she told him she wanted

to break up. She said that her mother climbed out through the window because the door was blocked

with clothes and furniture, not because her mother was scared. Barajas testified that appellant was

acting rationally and was just talking to police officers. She also testified that appellant refused to

leave the apartment because he did not want to be charged with public intoxication, but then she said

he just did not want confrontation with the police.

                Barajas testified that she heard officers ask appellant to come outside and, when

he declined, they went into her home without authority. She heard the officers threaten to tase him.

She said that appellant then covered his face, the officers tased him, then she heard appellant scream

and hit the ground. She later took pictures of appellant’s back showing marks that she said were

several marks caused by tasers.

                Appellant testified that the officers successfully subdued him with tasers on their first

attempt. He testified that he blacked out, his body shut down, and he was unable to move. He did

not remember being handcuffed. When he regained consciousness, he could not feel his legs. He

said that he was tased multiple times. He did not remember struggling with the officers or refusing

to put his hands behind his back. He did not remember biting Hartman, but he agreed that the bite

was “pretty bad.”

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                                             Discussion

               Appellant contends that the evidence was insufficient to support the jury’s implied

finding that he acted voluntarily in biting the police officer and that his trial counsel provided

ineffective assistance by failing to collect admissible, evidence relevant to voluntariness and failing

to request an instruction on self-defense.


Sufficiency of the evidence

               When reviewing the sufficiency of the evidence to support a conviction, we consider

all of the evidence in the light most favorable to the verdict to determine whether any rational trier

of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319 (1979). The sufficiency of the evidence is measured by reference to

the elements of the offense as defined by a hypothetically correct jury charge for the case. Villarreal

v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

               In determining the legal sufficiency of the evidence, we must consider all the evidence

in the record, whether direct or circumstantial, properly or improperly admitted, or submitted by the

prosecution or the defense. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We

review all the evidence in the light most favorable to the verdict and assume that the trier of fact

resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a

manner that supports the verdict. Jackson, 443 U.S. at 318. A legal-sufficiency review requires us

to defer to the jury’s determinations of the witnesses’ credibility and the weight to be given their

testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury, as the exclusive

judge of the facts, is entitled to weigh and resolve conflicts in the evidence and draw reasonable

inferences therefrom. Clayton, 235 S.W.3d at 778; see Tex. Code Crim. Proc. art. 38.04. Thus,


                                                  5
when faced with a record of historical facts that supports conflicting inferences, we must presume

that the trier of fact resolved any such conflicts in favor of the verdict and defer to that resolution.

Jackson, 443 U.S. at 326.

                The standard of review on appeal is the same for both direct and circumstantial

evidence cases. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Circumstantial

evidence is as probative as direct evidence in establishing guilt and may alone be sufficient to

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). So long as “the verdict

is supported by a reasonable inference, it is within the province of the factfinder to choose which

inference is most reasonable.” Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009). Our

role is that of a due process safeguard, ensuring only the rationality of the trier of fact’s finding of

the essential elements of the offense beyond a reasonable doubt. Allen v. State, 249 S.W.3d 680, 688

(Tex. App.—Austin 2008, no pet.).

                A person commits an assault if he intentionally, knowingly, or recklessly

causes bodily injury to another. Tex. Penal Code § 22.01(a)(1). The trial court instructed the jury

that it could not convict appellant if it had at least reasonable doubt regarding whether appellant

voluntarily bit the officer.

                Appellant argues that the jury could not reasonably have concluded that, in the midst

of being tased, he was able to voluntarily bite Hartman. He contends that the taser is intended to

eliminate voluntary conduct and that there is no evidence it did not do so in this case.

                The jury heard conflicting versions of events. The defense witnesses testified that

the initial tasing brought appellant down. Appellant testified that he did not remember anything

between when the first probes attached to his body and when he woke up handcuffed and unable to

feel his legs. He did not remember biting Hartman and argues that he did not do so with any level

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of volition. The officers testified, however, that the initial tasing did not subdue appellant and so

they resorted to manually subduing appellant with an assist from the painful, but not debilitating,

drive tasing. They testified that appellant resisted for several seconds—during which time he bit

Hartman—before voluntarily offering his left hand for cuffing.

               The jury’s choice turns on their view of the witnesses’ credibility. Their verdict

shows that they chose to believe the officers’ version of events. On the record presented, we cannot

overturn that choice on appeal. With that choice made, they may have believed that, if appellant

chose to resist handcuffing by tucking his left arm under his body, then chose to comply by offering

his left wrist for handcuffing, he could have in the interim knowingly and voluntarily chosen to

bite Hartman. Viewed in the required manner, the record contains sufficient evidence to support

the verdict.


Ineffective assistance of counsel

               Appellant contends that his trial counsel provided ineffective assistance by failing to

collect admissible evidence on “the effect of electrocution on voluntary conduct” and failing to

request an instruction on self-defense. To prevail on this claim, appellant must show that counsel

made such serious errors that he was not functioning effectively as counsel and that these

errors prejudiced appellant’s defense to such a degree that he was deprived of a fair trial. Strickland

v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State, 988 S.W.2d 770, 771-72

(Tex. Crim. App. 1999). In assessing the performance of counsel, we must review the totality of

the representation and the circumstances of each case without the benefit of hindsight. While a

single error will not typically result in a finding of ineffective assistance of counsel, an egregious

error may satisfy the Strickland prongs on its own. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.


                                                  7
App. 2011). We must indulge a strong presumption that counsel’s conduct fell within the wide

range of reasonable professional assistance. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994). To overcome this presumption, any allegation of ineffectiveness must be firmly

founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness.

Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Without a record explaining the reasons

for counsel’s decisions, we will not find counsel’s performance deficient if any reasonably

sound strategic motivation can be imagined. See Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim.

App. 2003).

                The court of criminal appeals has written that the record on direct appeal will

generally “not be sufficient to show that counsel’s representation was so deficient as to meet the first

part of the Strickland standard” because “[t]he reasonableness of counsel’s choices often involves

facts that do not appear in the appellate record.” Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim.

App. 2002). An application for a writ of habeas corpus is often the more appropriate vehicle to raise

ineffective assistance of counsel claims. Id.


Evidence of the effect of taser use

                Appellant contends that his counsel was ineffective for failing to obtain and offer

evidence concerning the amount of electricity that went into his body or the effects it could have,

including publications on drive stunning, an expert witness on drive stunning, judicial notice

of opinions discussing it, how many taser hooks were removed from his body or the number

of taser burns on his body, the content of the taser logs to confirm the number of discharges, and

the records of his medical treatment following the tasing. The only publication appellant offered

was not admitted because it was not authenticated. Appellant made this argument in his motion


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for new trial but there are no exhibits attached to that motion and there is no record of a hearing

on that motion.

               Other than the cases cited in appellant’s brief,1 the record does not reveal what

evidence he believes should have been brought into the record. Appellant has identified types of

evidence that could have been offered, but has not shown specific, admissible evidence that was

omitted or, most importantly, what effect it would have had on the verdict. He has not introduced

evidence from trial counsel on what efforts, if any, trial counsel made regarding obtaining the

evidence appellant advocates and whether counsel had a valid strategic reason for the actions or

omissions. On this record, we cannot say that appellant has shown that trial counsel’s failure to

obtain and offer this type of evidence was ineffective.


Self-defense

               Appellant contends that trial counsel was ineffective for failing to request that the

jury be instructed on self-defense. A person is justified in using force against another when and to

the degree the actor reasonably believes the force was immediately necessary to protect the actor

against the other’s use or attempted use of unlawful force. Tex. Penal Code § 9.31(a). The actor’s

belief that the force was immediately necessary is presumed reasonable if the actor knew or had

reason to believe that the person against whom the force was used was attempting to enter the actor’s

occupied habitation unlawfully and with force. Id. § 9.31(a)(1).

               To raise the issue of self-defense, the accused must admit the conduct charged in the

indictment and then offer self-defense as justification for the action. Anderson v. State, 11 S.W.3d


       1
        See, e.g., Hereford v. State, 302 S.W.3d 903, 908-10 (Tex. App.—Amarillo 2009), aff’d,
339 S.W.3d 111 (Tex. Crim. App. 2011); City of Lubbock v. Nunez, 279 S.W.3d 739, 740
(Tex. App—Amarillo, 2007, no pet.).

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369, 372 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d); Young v. State, 991 S.W.2d 835,

839 (Tex. Crim. App. 1999) (discussing defense of necessity as justification). Self-defense is a

justification for actions taken and is thus logically inconsistent with a denial of the conduct. Sanders

v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986); see Young, 991 S.W.2d at 838. Admitting

the “charged conduct” does not necessarily mean admitting the commission of every statutory

element of the offense. Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.—Houston [14th Dist.]

2003, pet. ref’d). But see Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007).2 In Martinez

v. State, a defendant charged with murder admitted to pulling a gun, firing into the air, and having

his finger on the trigger when the fatal shot was fired, but denied the element of “intent to kill.”

775 S.W.2d 645, 645-47 (Tex. Crim. App. 1989). The Court held he had admitted committing the

offense sufficiently to permit the trial court to consider whether the evidence supported his claim of

self-defense enough to warrant giving the instruction. Id.

                 Appellant did not admit the offense, however. His testimony was that he blacked out

from the first moment he was tased. He argued that, therefore, he could not have formed an intent to

do anything. That inability also would have precluded forming a reasonable belief that resistance

was necessary. The theory that trial counsel pursued—that the tasers rendered him incapable of

committing the offense charged—is consistent with appellant’s testimony and inconsistent with


        2
            In Shaw, the court of criminal appeals wrote:

        We have said with respect to defenses such as necessity and self defense that when
        the defensive evidence merely negates the necessary culpable mental state, it will
        not suffice to entitle the defendant to a defensive instruction. Rather, a defensive
        instruction is only appropriate when the defendant’s defensive evidence essentially
        admits to every element of the offense including the culpable mental state, but
        interposes the justification to excuse the otherwise criminal conduct.

Shaw v. State, 243, S.W.3d 647, 659 (Tex. Crim. App. 2007).

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requesting and receiving the self-defense instruction. Pursuing the strategy consistent with

appellant’s testimony is a reasonable strategic decision. On this record, we cannot say that failing

to request an instruction on self-defense rendered trial counsel’s assistance ineffective.


Overall performance

               Even if the failures to adduce particular evidence on the effect of tasers and to request

a self-defense instruction were mistakes by counsel, they would not require that we find trial counsel

ineffective. He participated in voir dire, exercised peremptory strikes, cross-examined the police

officers, elicited a contrasting and potentially exculpating version of events during the defense case,

and argued for the jury to acquit based on the involuntariness of appellant’s biting. Given the record

as a whole, we conclude that appellant has not shown that his trial counsel rendered ineffective

assistance such that he was denied a fair trial.


                                          CONCLUSION

               We affirm the judgment of conviction.




                                               Jeff Rose, Justice

Before Justice Puryear, Pemberton, and Rose

Affirmed

Filed: August 30, 2013

Do Not Publish



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