                                                                                     ACCEPTED
                                                                                 01-14-00768-CR
                                                                      FIRST COURT OF APPEALS
                                                                              HOUSTON, TEXAS
                                                                           11/16/2015 9:23:37 AM
                                                                           CHRISTOPHER PRINE
                                                                                          CLERK

                        NO. 01-14-00768-CR
                              IN THE
                       COURT OF APPEALS                         FILED IN
                                                         1st COURT OF APPEALS
                             FOR THE                         HOUSTON, TEXAS
                    FIRST DISTRICT OF TEXAS              11/16/2015 9:23:37 AM
                        HOUSTON, TEXAS                   CHRISTOPHER A. PRINE
                                                                  Clerk


              ROBERT WAYNE ROLLINS, Appellant
                            V.
                THE STATE OF TEXAS, Appellee


            Appealed from the 405TH Judicial District Court
                     of Galveston County, Texas
                       Cause No. 13-CR-3062



               BRIEF FOR THE STATE OF TEXAS



JACK ROADY
CRIMINAL DISTRICT ATTORNEY
GALVESTON COUNTY

ALLISON LINDBLADE
ASSISTANT CRIMINAL DISTRICT ATTORNEY
GALVESTON COUNTY
STATE BAR NO. 24062850
600 59TH STREET, SUITE 1001
GALVESTON, TX 77551
(409) 766-2355, FAX (409) 765-3261
allison.lindblade@co.galveston.tx.us

ORAL ARGUMENT NOT REQUESTED




                                   i
                  IDENTITY OF PARTIES AND COUNSEL


Presiding Judge                               Hon. Michelle M. Slaughter

Appellant                                     Robert Wayne Rollins

Appellee                                      The State of Texas

Attorneys for Appellant                       Haley Sloss – Trial

                                              Kevin Stryker – Appeal

Attorneys for State                           T. Philip Washington – Trial

                                              Chris Henderson – Trial

                                             Allison Lindblade – Appeal




 The Clerk’s Record is referred to in the State’s Brief as “C.R. cause number:

 page”. The Reporter’s Record is multiple volumes and is referred to as “R.R.

 volume number: page”. Motion for New Trial is referred to as “MNT” and the

 Verification Hearing is referred to as “VH”.




                                        ii
                                  TABLE OF CONTENTS

Identity of Parties and Counsel                                               ii

Table of Contents                                                             iii

Index of Authorities                                                          viii

Summary of the Argument                                                       1

Statement of Facts                                                            2

First Issue                                                                   3
              The record proves that Rollins knew he resisted. The record
              proves that Rollins was in command of his actions as he
              struggled with the officer.

              Viewing the evidence in the light most favorable to the
              verdict, how’s there insufficient evidence to prove Rollins
              caused the officer bodily injury when the officer was badly
              injured as a result of the struggle that Rollins induced?

       State’s Reply                                                          3

       I.      Sufficiency standard of review                                 4

       II.     Assault on a public servant                                    5

       III.    By physically struggling with Officer Parris, Rollins
               Recklessly caused him bodily injury.                           6

       IV.     Based upon Rollins testimony that he was in control when he
               resisted, the jurors could have rationally inferred that his
               recklessness caused Officer Parris’ bodily injury.             13

       V.      Conclusion: the evidence supports the jury’s verdict.          15

Second Issue                                                                  16
           While the jury must unanimously agree about the


                                             iii
              occurrence of a single offense, it need not be unanimous
              about the specific manner or means of how that offense was
              committed.

              How then was Rollins’ right to a unanimous verdict
              violated if the jury was charged with alternate manner and
              means of a the single crime of assault on a public servant?

      State’s Response                                                      16

      I.       Jury charge error standard of review                         17

      II.      Jury unanimity                                               18

      III.     The jury reached a unanimous verdict because Rollins was
               charged with one offense which could’ve been committed
               several ways.                                                19

Third Issue                                                                 24
              When a trial court includes an instruction on a presumed
              fact in the jury charge, the Texas legislature requires the
              trial court to include a Section 2.05(a)(2) instruction.

              How was Rollins harmed by the omission of a Section
              2.05(a)(2) instruction when the evidence of Rollins’
              understanding that Officer Parris was an on-duty police
              officer was not disputed at trial?

      State’s Response                                                      24

      I.       Standard of review                                           24

      II.      Presumption instructions                                     25

      III.     The evidence was unchallenged that Rollins understood
               Officer Parris was an on-duty police officer.                26

      IV.      Conclusion: there was no harm because Rollins acknowledged
               that Officer Parris was an on-duty police officer.           27


                                          iv
Fourth Issue                                                                    28
           Rollins maintains that he’s entitled to a new trial under
           Texas Rule of Appellate Procedure 34.6(f)(4) because the
           trial court reporter thought a key exhibit was lost.

             How is Rule 36.4(f) applicable when there is no lost
             evidence?

      State’s Response                                                          28

      I.      Rule of Appellate Procedure 34.6                                  28

      II.     State’s Exhibit 1 was never lost—it was always in the exhibit
              closet. The court reporter just couldn’t find it.          30

Fifth, Seventh, and Eighth Issues                                               32

             Rollins wasn’t entitled to the defensive jury charge issues
             he complains about. But even so, trial counsel was under no
             duty to raise every defense available, so long there was an
             objectively reasonable defense presented.

             Rollins’ trial counsel had a clear trial strategy: to negate the
             mens rea element of assault.

             How was trial counsel ineffective when these defensive
             issues would’ve conflicted with the clear laid out trial
             strategy and Rollins’ own testimony?

      State’s Response                                                          32

      I.      Ineffective assistance of counsel                                 34

      II.     Even if Rollins’ trial counsel had requested a self-defense
              instruction in the jury charge, Rollins wasn’t entitled to it.    36

      III.    Rollins’ trial counsel wasn’t ineffective for not requesting a
              self-defense instruction in the jury charge because it wasn’t


                                            v
               supported by the evidence.                                         39

      IV.      Even if we presume that he was entitled to the defensive
               instructions, Rollins has not shown that he received ineffective
               assistance of counsel at trial.                                  40

      V.       Rollins wasn’t entitled to a voluntariness instruction
               because he testified that he was in control of his actions.        45

      VI.      Rollins admitted to the jury that he was in control.          45

      VII. Rollins hasn’t shown that his trial counsel was ineffective
           for not requesting a lesser-included offense in the charge. 47

      VIII. Rollins wasn’t entitled to the lesser-included offense
            of resisting because there is no evidence that he’s guilty
            of only resisting.                                                    48

      IX.      The defensive theory was inconsistent with requesting the
               lesser-included resisting arrest.                                  49

      X.       Even if….the outcome still wouldn’t changed.                       51

Sixth Issue                                                                       52

              Defense counsel is not ineffective for failing to object to
              admissible evidence.

              How was Rollins’ trial counsel ineffective for not objecting
              at trial when the drugs found on the scene were properly
              admitted to show motive and to rebut the defensive theory
              that Rollins wasn’t struggling with the officer, he was just
              trying to make sure his kids were safe?


      State’s Response                                                            52

      I.       Admission of evidence standard of review                           53



                                            vi
      II.    Extraneous evidence                                        53

      III.   The drugs found at the scene were properly admitted into
             evidence.                                                  55

      IV.    Rollins’ cannot show that the outcome of the trial
             would’ve been different if trial counsel had objected
             to the evidence.                                           57

Conclusion and Prayer                                                   60

Certificate of Service                                                  61

Certificate of Compliance                                               61




                                         vii
                                          INDEX OF AUTHORITIES


CASES 

Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App.1982) ................... 19, 20

Alexander v. State, 757 S.W.2d 95, 100 (Tex. App. —Dallas 1988, pet. ref’d) 26,
 27

Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993). ......................... 46

Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) ................... 18, 25

Alvarado v. State, 704 S.W.2d 36 (Tex. Crim. App. 1985)................................ 48

Amador v. State, 221 S.W.3d 666, 677, fn 48 (Tex. Crim. App. 2007). ............ 30

Anderson v. State, 11 S.W.3d 369, 371-72 (Tex. App.—Houston [1st Dist.]
 2000, pet. ref’d). ............................................................................................... 42

Arevalo v. State, 943 S.W.2d 887, 889–90 (Tex. Crim. App. 1997) .................. 50

Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim. App. 2015)............... 17, 18

Bailey v. State, 01-12-00200-CR, 2015 WL 4497773, at *8-9 (Tex. App.—
 Houston [1st Dist.] July 23, 2015) ............................................................. 36, 37

Barfield v. State, 202 S.W.3d 912, 915-16 (Tex. App.—Texarkana 2006, pet.
 ref’d). .......................................................................................................... 20, 21

Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) ............................. 50

Blondett v. State, 921 S.W.2d 469, 477 (Tex. App.-Houston [14th Dist.] 1996,
 pet. ref’d) .......................................................................................................... 30


Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002) ................................. 37



                                                           viii
Brewer v. State, 08-00-00424-CR, 2002 WL 266816, at *5 (Tex. App.—El Paso
 Feb. 26, 2002, pet. ref’d). ................................................................................. 26

Brooks v. State, 967 S.W.2d 946, 950 (Tex. App.—Austin 1998, no pet.) .......... 5

Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999). ........................ 60

Byars v. State, 14-07-00824-CR, 2008 WL 4647391, at *2 (Tex. App.—Houston
 [14th Dist.] Oct. 21, 2008, no pet.). ........................................................... 13, 14

Cantrell v. State, 731 S.W.2d 84, 89 (Tex. Crim. App. 1987) ........................... 55

Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007)..................... 55, 58

Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.]
 2004, pet. ref’d). ............................................................................................... 60

Clark v. State, 461 S.W.3d 244, 247-49 (Tex. App.—Eastland pet. ref’d 2015).
 ...................................................................................................................... 5, 15

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). ......................... 4

Copeland v. State, 14-00-00386-CR, 2001 WL 930883, at *1 (Tex. App.—
 Houston [14th Dist.] Aug. 16, 2001, no pet.) ............................................ 37, 44

Cosio v. State, 353 S.W.3d 766,777 (Tex Crim. App. 2011) ............................. 17

Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121, 121 (Tex. 1991) . 30

Dannhaus v. State, 928 S.W.2d 81, 86 (Tex. App.—Houston [14th Dist.] 1996,
 pet. ref'd) .................................................................................................... 52, 53

Davis v. State, 930 S.W.2d 765, 768 (Tex. App.-Houston [1st Dist.] 1996, pet.
 ref’d) ................................................................................................................. 49


De La Paz v. State, 279 S. W.3d 336, 343 (Tex. Crim. App. 2009). ................. 54



                                                             ix
Escobar v. State, 227 S.W.3d 123, 127 (Tex. App.–Houston [1st Dist.] 2006,
 pet. ref'd) .......................................................................................................... 43

Ex parte Nailor, 149 S.W.3d 125, 133 (Tex. Crim. App. 2004) ........................ 40

Ex parte Thompson, 13-06-290-CR, 2007 WL 2459978, at *7 (Tex. App.—
 Corpus Christi Aug. 30, 2007, no pet.). ........................................................... 43

Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) ........................ 59

Ex Parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004) ............................. 51

Ford v. State, 112 S.W.3d 788, 794 (Tex. App.—Houston [14th Dist.] 2003, no
 pet.)................................................................................................................... 40

Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000). ......................... 18

Fregia v. State, 01-13-00312-CR, 2014 WL 527535, at *7 (Tex. App.—Houston
 [1st Dist.] pet. ref’d, 2014) ......................................................................... 42, 45

Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999) ........................ 38

Gallagher v. Fire Ins. Exchange, 950 S.W.2d 370, 371 (Tex. 1997) ................. 30

Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012). .......................... 4

Garrett v. State, 159 S.W.3d 717, 721 (Tex. App.—Fort Worth 2005) ............. 28

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) .............................. 4

George v. State, 681 S.W.2d 43, 45 (Tex. Crim. App. 1984) ...................... 14, 46


Gigliobianco v. State, 210 S.W.3d 637, 641—42 (Tex. Crim. App. 2006). ..........
 .............................................................................................................. 56, 57, 58

Glenn v. State, 01-13-00640-CR, 2015 WL 831995, at *2 (Tex. App.—Houston
 [1st Dist.] pet. ref’d 2015) ................................................................................ 43


                                                             x
Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi 1988, pet.
 ref’d) ................................................................................................................... 6

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). ................. 37

Gumpert v. State, 48 S.W.3d 450, 454 (Tex. App.—Texarkana 2001, pet. ref’d)
 .................................................................................................................... 13, 15

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) ........................... 33

Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Crim.App.1992) .......................... 53

Hensley v. State, 01-14-00615-CR, 2015 WL 6081798, at *5 (Tex. App.—
 Houston [1st Dist.] Oct. 15, 2015, no. pet. h.) ................................................. 55

Hernandez v. State, 01-12-01080-CR, 2014 WL 1101587, at *2-3 (Tex. App.—
 Houston [1st Dist.] Mar. 20, 2014, no pet.). .............................................. 37, 49

Herrera v. State, 11 S.W.3d 412, 415—16 (Tex. App.—Houston [1st Dist.]
 2000, pet. ref’d) ................................................................................................ 58

Holford v. State, 177 S.W.3d 454, 461-62 (Tex. App.—Houston [1st Dist.]
 2005, pet. ref’d). ............................................................................................... 17

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). ............................... 4

Ingham v. State, 679 S.W.2d 503, 509 (Tex.Crim.App.1984) ........................... 37

Jackson v. State, 08-05-00135-CR, 2006 WL 1711098, at *4 (Tex. App.—El
  Paso June 22, 2006, no pet.)............................................................................. 49


Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994)........................ 37

Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)............................................... 4

Jaynes v. State, 216 S.W.3d 839, 844 (Tex. App.—Corpus Christi 2006, no


                                                             xi
  pet.)............................................................................................................. 32, 33

Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) .............................. 21

Jimenez v. State, 419 S.W.3d 706, 718 (Tex. App.—Houston [1st Dist.] 2013,
  pet. ref’d) .............................................................................................. 26, 27, 28

Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004). ...................... 31

Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005) ....................... 43

Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012). ........................ 5

Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App.1991) ......................... 17, 19

Landrian v. State, 268 S.W.3d 532, 535-36 (Tex. Crim. App. 2008). ... 18, 22, 23

Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989). ............................. 5

Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) ................ 13, 15, 50

Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) ............... 36, 37, 49

Lucio v. State, 351 S.W.3d 878, 891-92 (Tex. Crim. App. 2011). ..................... 30

Lynn v. State, 860 S.W.2d 599, 605 (Tex. App.-Corpus Christi 1993, pet. ref’d).
  .................................................................................................................... 49, 51

MacDonald v. State, 761 S.W.2d 56, 60 (Tex. App.—Houston [14th Dist.] 1988,
 pet. ref’d). ......................................................................................................... 39


Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004). ..................... 19

Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) .............................. 60

McArthur v. State, 132 Tex. Crim. 447, 105 S.W.2d 227, 230 (1937) .............. 20



                                                             xii
Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) .................... 38

Montgomery v. State, 810 S.W.2d 372, 378—79 (Tex. Crim. App. 1990) ........ 43

Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) .................... 55, 56

Nava v. State, 415 S.W.3d 289, 307—08 (Tex. Crim. App. 2013) .............. 37, 49

Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). ...........................
 .................................................................................................. 17, 18, 19, 24, 27

Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim. App. 2013) ..................... 36

Pena v. State, 14-13-00102-CR, 2014 WL 2767398, at *5 (Tex. App.—Houston
 [14th Dist.] pet. ref’d, 2014). ........................................................................... 61

Pena v. State, 725 S.W.2d 505, 506-07 (Tex. App.—Corpus Christi 1987, no
 pet.)................................................................................................................... 47

Ramos v. State, 991 S.W.2d 430, 434 (Tex. App.—Houston [1st Dist.] 1999, pet.
 ref’d). ................................................................................................................ 25

Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.) ...... 6

Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). ............. 36, 44

Rodgers v. State, 01-03-00850-CR, 2004 WL 2363830, at *2 (Tex. App.—
 Houston [1st Dist.] Oct. 21, 2004, no pet.) ...................................................... 46

Rose v. Clark, 478 U.S. 570, 583, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460 (1986)
 .......................................................................................................................... 26
Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993) ............... 50

Rowell v. State, 66 S.W.3d 279, 282 (Tex. Crim. App. 2001) ........................... 30

Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App.1986)............................... 39

Schiele v. State, 01-13-00299-CR, 2015 WL 730482, at *6 (Tex. App.—


                                                             xiii
  Houston [1st Dist.] pet. ref’d, 2015). ............................................. 55, 56, 57, 58

Shanklin v. State, 190 S.W.3d 154, 159 (Tex. App.—Houston [1st Dist.] 2005,
 pet. dism'd) ..................................................................................... 38, 48, 50, 51

Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007). ..................... 39, 40

Smith v. State, 436 S.W.3d 353, 377 (Tex. App.—Houston [14th Dist.] 2014) 19

State v. James, 698 P.2d 1161, 1166 (Alaska 1985)........................................... 24

Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d
  674 (1984). ............................................................................... 35, 36, 37, 52, 60

Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) ............................
  .................................................................................................. 36, 37, 38, 44, 59

Velez v. State, 01-14-00544-CR, 2015 WL 3522835, at *4 (Tex. App.—Houston
 [1st Dist.] June 4, 2015) ................................................................................... 40

Vives v. State, 01-01-00296-CR, 2002 WL 31388695, at *3 (Tex. App.—
 Houston [1st Dist.] Oct. 24, 2002, no pet.). ..................................................... 49

Washington v. State, 417 S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.]
 2013, pet. ref’d) .......................................................................................... 14, 46

Wawrykow v. State, 866 S.W.2d 87, 88—89 (Tex. App.—Beaumont 1993, pet.
 ref’d) ................................................................................................................... 6

Webber v. State, 29 S.W.3d 226, 230 (Tex. App.—Houston [14th Dist] 2000,
 pet. ref’d) .......................................................................................................... 26

Wert v. State, 383 S.W.3d 747, 755 (Tex. App.-Houston [14th Dist.] 2012, no
 pet.)................................................................................................................... 19

Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). ................. 5, 50

Williams v. State, 01-07-00632-CR, 2009 WL 350608, at *4 (Tex. App.—


                                                            xiv
  Houston [1st Dist.] Feb. 12, 2009, no pet.) .......................................... 38, 48, 49

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). ....................... 4

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009) ...................... 55

Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982) ...................... 47

Williams v. State, No. 08-02-00310-CR, 2004 WL 309265 at *6 (Tex. App.-El
 Paso, Feb. 19, 2004, pet. ref’d) ........................................................................ 49

Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007) ................. 54

Wingfield v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet.
 ref’d) ............................................................................................................... 5, 6

Wood v. State, 4 S.W.3d 85, 87 (Tex. App.-Fort Worth 1999, pet. ref’d) ......... 49

Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011) .......................... 19

Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App.1999) ................. 39, 40, 42


STATUTES 

TEX. PEN. CODE § 38.03. ..................................................................................... 50

TEX. PEN. CODE § 9.31. ....................................................................................... 39

TEX. PENAL CODE § 22.01......................................................................... 5, 23, 27

TEX. PENAL CODE § 6.01(a) .......................................................................... 14, 46

TEX. PENAL CODE §§ 2.05................................................................................... 26




                                                            xv
RULES

TEX. R. APP. P. 34.6(a)(1). .................................................................................. 29

TEX. R. EVID. 403 ................................................................................................ 55

TEX. R. EVID. 404(b). .......................................................................................... 55




                                                        xvi
0
TO THE HONORABLE COURT OF APPEALS:

       Now comes Jack Roady, Criminal District Attorney for Galveston County,

Texas, and files this brief for the State of Texas.

                       SUMMARY OF THE ARGUMENT

       Robert Rollins brings eight issues on appeal in order to reverse his assault

on a public servant conviction and 28 years sentence. The first issue contends that

the evidence was insufficient to support the jury’s finding of guilt. The jury

viewed a video that showed Rollins actively engaging himself in a struggle or fight

with an officer who tried to detain him. The jury heard the officer testify about the

injury he received as a result of Rollins refusing to comply. The evidence was

sufficient.

       Of the remaining issues, two issued directly claim jury charge error.

However, Rollins made no objections to the jury charge at trial. Because of the

strong proof of evidence, Rollins prove egregious harm even if there was error in

the charge.

       In his last four issues, Rollins claims he didn’t receive effective assistance

of counsel. Rollins claims his counsel failed to request a jury charge instruction on

self-defense, voluntariness, and failed to include a lesser-included offense of

resisting arrest. First, Rollins wasn’t entitled to any of these items in the charge.



                                           1
But, even if he was, his counsel still had a reasonable trial strategy for not

requesting them. It was clear throughout the trial that Rollins’ trial strategy was

how he had no intent to harm the officer. He even denied that he was reckless in

his actions. If the defense strategy and Rollins’ testimony was that there was no

intent, there was a reasonable explanation for not requesting items in the charge

that required the element of intent.

   For all these reasons, Rollins issues should be overruled and the trial court’s

conviction affirmed.

                            STATEMENT OF FACTS

      A summary of the facts is included in the first issue.




                                         2
                                    FIRST ISSUE

          The record proves that Rollins knew he resisted. The record
          proves that Rollins was in command of his actions as he struggled
          with the officer.

          Viewing the evidence in the light most favorable to the verdict,
          how’s there insufficient evidence to prove Rollins caused the
          officer bodily injury when the officer was badly injured as a
          result of the struggle that Rollins induced?


                                  STATE’S REPLY

          Rollins claims the State didn’t prove that he intentionally or knowingly or

recklessly caused bodily injury to Officer Parris or that Officer Parris received

bodily injury from Rollins’ actions.1 A review of the record shows that there is

sufficient evidence from which the trier of fact could’ve determined beyond a

reasonable doubt that Rollins knowingly or intentionally or recklessly injured

Officer Parris while the officer was acting in the lawful discharge of his official

duties because Rollins continually refused to submit to commands.




1
    Rollins brief, pp. 11-18.


                                           3
    I.      Sufficiency standard of review

         When reviewing the sufficiency of the evidence, the appellate court views

all of the evidence in the light most favorable to the verdict and determines,

based on that evidence and any reasonable inferences therefrom, whether a

rational jury could have found the elements of the offense beyond a reasonable

doubt.2 The reviewing court also considers both direct and circumstantial

evidence, as well as any reasonable inferences that may be drawn from the

evidence.3 Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.4 The evidence is insufficient when the record

contains no evidence, or merely a “modicum” of evidence, probative of an

element of the offense.5

         The reviewing court does not reevaluate the weight and credibility of the

evidence or substitute its judgment for that of the factfinder.6 Because the jury is

the sole judge of the credibility of witnesses and of the weight given to their

testimony, any conflicts or inconsistencies in the evidence are resolved in favor of


2
  See Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia,
443 U.S. 307, 318–19 (1979)).
3
  See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
4
  See Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
5
  See Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).
6
  See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).


                                             4
the verdict.7

    II.     Assault on a public servant

          A person commits assault on a public servant if he intentionally,

knowingly, or recklessly causes bodily injury to a person the actor knows is a

public servant while the public servant is lawfully discharging an official duty.8

          Assault on a public servant must be caused by some kind of bodily

injury.9 The Texas Court of Criminal Appeals has broadly interpreted the

definition of bodily injury to include “even relatively minor physical contacts so

long as they constitute more than mere offensive touching.”10 An assault against

a public servant is a result-oriented offense.11 The focus is on the result of the

defendant’s action and his culpable mental state, not on the precise act or the

nature of the conduct committed by the defendant.12 In addition, “a jury may

infer that a victim actually felt or suffered physical pain because people of

common intelligence understand pain and some of the natural causes of it.”13



7
  See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
8
  See TEX. PENAL CODE § 22 .01(a)(1), (b)(1).
9
  TEX. PENAL CODE § 22.01.
10
   Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989).
11
   Brooks v. State, 967 S.W.2d 946, 950 (Tex. App.—Austin 1998, no pet.); see Johnson v.
State, 364 S.W.3d 292, 298 (Tex. Crim. App. 2012).
12
   Johnson, 364 S.W.3d at 298; Brooks, 967 S.W.2d at 950; Clark v. State, 461 S.W.3d 244,
247-49 (Tex. App.—Eastland pet. ref’d 2015).
13
   Wingfield v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing
Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.—Dallas 2004, no pet.)).


                                            5
Juries may utilize common sense and apply common knowledge gained from

ordinary experiences in life to draw reasonable inferences from the evidence.14


     III.   By physically struggling with Officer Parris, Rollins recklessly

            caused him bodily injury.

        On November 11, 2013, Officer Gregory Parris worked the evening watch

on patrol.15 Officer Parris testified that he wore a standard issue uniform and

drove a marked patrol car that night.16 Officer Parris told the jury that at

approximately 9 p.m.,17 he made a traffic stop because he heard really loud

music coming from a vehicle.18 Galveston has a noise ordinance that requires a

permit for loud speakers or public announcement speakers.19

        Officer Parris said that he couldn’t see through all the windows in Rollins’

car because they were dark tinted.20 He could see through the front windshield.21

When Officer Parris pulled up behind Rollins and turned on the overhead lights,


14
   Id. (citing Wawrykow v. State, 866 S.W.2d 87, 88—89 (Tex. App.—Beaumont 1993, pet.
ref’d) (finding that a rational jury could have inferred that pushes to the chest caused
“physical pain”)); see also Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.—Corpus Christi
1988, pet. ref’d) (stating that people of common intelligence understand what naturally causes
physical pain).
15
   R.R.III:23.
16
   R.R.III:23.
17
   Rollins brief refers to 9 a.m., p. 1, but Officer Parris testified to working the night watch.
18
   R.R.III:23.
19
   R.R.III:21.
20
   R.R.III:25, 29.
21
   R.R.III:29.


                                               6
Rollins turned off the road but he didn’t immediately stop.22 Officer Parris told

the jury that Rollins had several opportunities to stop the car but he just kept

going.23 Officer Parris testified had to use his speaker to tell Rollins to stop the

vehicle.24 Officer Parris told the jury, based upon his training, that when a car

doesn’t stop immediately it is because they’re buying time to retrieve something,

maybe a weapon or drugs.25 Rollins could’ve also been trying to find a well-lit

area.26

          Officer Parris testified that he approached the vehicle with his gun drawn

because he couldn’t see inside the vehicle due to the dark tinted windows.27

Officer Parris didn’t hear Rollins initially say, “I need to call my wife. My kids

are in the car."28 He only heard, “Man, this is what I got” when Rollins handed

him a bag of what looked like marijuana.29 Officer Parris testified that the traffic

stop then changed from a loud noise ordinance violation to a drug offense.30

          Officer Parris told Rollins to get out of the car.31 Rollins didn’t get out of



22
   R.R.III:30.
23
   R.R.III:30; State’s Exhibit No. 1 (Officer Parris’ patrol car video).
24
   R.R.III:30; State’s Exhibit No. 1.
25
   R.R.III:30-31.
26
   R.R.III:31.
27
   R.R.III:31-32.
28
   R.R.III:32, 50.
29
   R.R.III:32.
30
   R.R.III:33.
31
   R.R.III:34.


                                                7
the car so Officer Parris opened the door.32 Officer Parris testified that he saw

Rollins turn away from him, dig in the center console, and fumble through

papers that are in the center console.33 Twenty seconds went by and Rollins still

didn’t get out of the car.34 Officer Parris told Rollins, “Forget about that crap.

Get out of the car.”35

       Officer Parris told the jury that he then saw Rollins dive across the front

right passenger seat to reach underneath the passenger seat.36 He thought Rollins

might be reaching for a gun.37 Rollins confirmed Officer Parris had a reasonable

fear because Rollins was reaching for a black Iphone in a black case. Officer

Parris told the jury that he felt like his life was on the line so he started to take

out his gun when he noticed the children in the back seat.38 Officer Parris

testified that he reholstered his gun because of the children in spite of the danger

he felt he was in.39

       Officer Parris testified that when Rollins wouldn’t voluntarily come out of




32
   The patrol car video shows that Officer Parris waited approximately 20 seconds after he
asked Rollins to get out of the car until he pulled him out of the car. See State’s Exhibit 1.
33
   R.R.III:33.
34
   R.R.III:33; State’s Exhibit 1.
35
   R.R.III:33.
36
   R.R.III:33.
37
   R.R.III:33.
38
   R.R.III:33.
39
   R.R.III:33-34.


                                              8
the car, he tried to pull Rollins out of the car.40 Officer Parris said that he went

inside the car to get Rollins out but Rollins pulled away and was kicking,

pushing, swinging his head around the entire time.41 Once he pulled Rollins

from the car, he had a hold of Rollins and put him face down on the ground.42

Officer Parris told Rollins, “Get on the ground” and “lay down on the ground.”43

But Rollins didn’t comply.44 Instead, Rollins stood up on his feet.45 During this

time Rollins said, “I’m black. My kids are in the car” and, “Man, stop this. Stop

this. My kids, my kids.”46

       Officer Parris and Rollins struggled with Officer Parris trying to get

Rollins to lie down on the ground and Rollins trying to stand to his feet.47

Rollins was 6’ tall to Officer Parris’ 5’8”.48 Officer Parris had a grip around

Rollins with one arm and sometimes with two arms.49 When Rollins would rise

to his knees and his feet he would lift Officer Parris off the ground for a

moment.50


40
   R.R.III:36-37.
41
   R.R.III:37.
42
   State’s Exhibit No. 1.
43
   State’s Exhibit No. 1.
44
   State’s Exhibit No. 1.
45
   State’s Exhibit No. 1.
46
   State’s Exhibit No. 1.
47
   State’s Exhibit No. 1.
48
   R.R.III:109, 128.
49
   State’s Exhibit No. 1.
50
   State’s Exhibit No. 1.


                                         9
       Rollins testified that Officer Parris put him in a choke hold.51 Officer

Parris denied that he had a choke hold on Rollins.52

       Officer Parris testified that Rollins was strong and he could barely hang

on to Rollins.53 Officer Parris testified that he just wanted Rollins facing away

from him and on the ground so he could search him for weapons.54 Officer

Parris testified that he thought Rollins was under the influence of drugs and kept

pushing himself back up because he was going to do “something bad.”55

       Officer Parris told Rollins to get on the ground or to lay down more than

15 times.56 After being wrestled down, Rollins stood on his feet at least 4 times,

not counting the times he stood on his knees.57 After becoming exhausted by the

struggle, Officer Parris tased Rollins in order to gain control over the situation.58

When the other officers arrived, Rollins was handcuffed, put in a patrol car, and

medics were called to make sure he was okay after the tasing.

       The medics also examined Officer Parris.59 Officer Parris was taken to the

hospital for further examination.60 Both of Officer Parris’ knees had been

51
   R.R.III:129.
52
   R.R.III:53.
53
   R.R.III:41.
54
   R.R.III:40.
55
   R.R.III:41.
56
   State’s Exhibit No. 1.
57
   State’s Exhibit No. 1.
58
   R.R.III:42-44.
59
   R.R.III:48-49.


                                         10
injured.61Officer Parris testified that as a result of the injuries he received from

the struggling with Rollins, he underwent multiple surgeries on both knees,

completed rehab, was out of work for 3 months, and has lost about 20 percent of

the strength in his right leg.62 In addition to his knee injuries, Officer Parris

testified that Rollins head came back and hit his nose.63 Parris testified that his

caused him searing pain where everything flashed white for a second.64

       After Rollins’ children were removed from the scene, the car and scene

were searched.65 Officer Martinez testified that he collected multiple rocks

cocaine on the ground near the front right passenger tire.66 Officer Martinez

testified that meth was also found at the scene.67

       Rollins denied these were his drugs.68 Rollins admitted to the jury that he

possessed marijuana and codeine cough syrup while he drove with his 2 young

children in the car.69 Rollins admitted to the jury that he knew he would be

arrested because he had several warrants outstanding for 5 years.70 Rollins


60
   R.R.III:48-49.
61
   R.R.III:48-49.
62
   R.R.III:46-49.
63
   R.R.III:46; State’s Exhibit No. 11 (picture of injury to Officer Parris’ nose).
64
   R.R.III:46.
65
   R.R.III:78.
66
   R.R.III:80-81.
67
   R.R.III:80-81.
68
   R.R.III:135.
69
   R.R.III:121, 128.
70
   R.R.III:134.


                                                11
admitted to the jury that if he was caught in possession of cocaine or meth that

he would go to prison due to his past two convictions of delivery of a control

substance.71 Rollins told the jury that while he resisted, he did not intentionally

or recklessly injure Officer Parris.72

       By physically resisting arrest, Rollins consciously disregarded the

substantial and unjustifiable risk that Officer Parris could be injured by his

actions.73 Based on the acts, words, and conduct of Rollins, the jurors could have

rationally inferred that his acts caused Officer Parris’ bodily injury.74


     IV.   Based upon Rollins testimony that he was in control when he

           resisted, the jurors could have rationally inferred that his

           recklessness caused Officer Parris’ bodily injury.


       Rollins claims that he wasn’t the cause of Officer Parris’ knee injuries but

that Officer Parris “suffered the injury because he chose to pick [Rollins] off the



71
   R.R.III:121, 138.
72
   R.R.III:126, 128-129, 142-43.
73
   See Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (“Even if appellant had
intended only to prevent his arrest, the force used by appellant against [the officer], at the very
least, recklessly caused [the officer] to suffer a bodily injury.”); Gumpert v. State, 48 S.W.3d
450, 454 (Tex. App.—Texarkana 2001, pet. ref’d) (concluding that the evidence established
appellant disregarded “substantial nonjustifiable risk that his struggling, flailing about, and
kicking could result in bodily injury”).
74
   Byars v. State, 14-07-00824-CR, 2008 WL 4647391, at *2 (Tex. App.—Houston [14th
Dist.] Oct. 21, 2008, no pet.).


                                                12
ground.”75 To this end, Officer Parris testified,

              During the course of the struggle, I was trying to pick
              him up and put him back down on the ground. He
              would stand up, and I was on his back. Then I would
              try to lift him up and put him down. At one point
              during that, my knee actually popped and then made a
              crunch sound, so something actually tore inside of my
              knee.76

Officer Parris injured his knees in an effort to gain control over Rollins for

safety reasons.77 Because Rollins would not submit to the detention, would not

lay down, and continued to fight and struggle, Officer Parris was forced to react.

Officer Parris’ knee injuries were directly caused by Rollins struggling.

       Rollins claims his acts weren’t voluntary.78 Rollins claims that he was

“being whipped around by Parris” and that if he accidently hit Parris as a result,

it wasn’t his voluntary action.79 However, conduct is not involuntary “merely

because an accused does not intend the result of his conduct.”80

       Here, Rollins admitted to the jury that he was in control when he didn’t

get out of the car at the officer’s first request and that he was in control when he


75
   Rollins brief, p. 18,
76
   R.R.III:47.
77
   R.R.III:40-41, 47.
78
   A person commits an offense only if he voluntarily engages in conduct, including an act, an
omission, or possession. TEX. PENAL CODE § 6.01(a); Rolllins brief, p. 12.
79
   Rolllins brief, p. 12.
80
   George v. State, 681 S.W.2d 43, 45 (Tex. Crim. App. 1984); Washington v. State, 417
S.W.3d 713, 726 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).


                                             13
continued to resist,81

       This case is similar to Byars v. State.82 In Byars, the officer was trying to

stop a shoplifter.83 The officer asked the appellant to stop, but the appellant

responded with a curse word and began to run away.84 When the officer caught

up to the appellant, he grabbed appellant’s jacket.85 The appellant attempted to

shrug out of the jacket, but got both himself and the officer entangled in it.86 The

two fell to the ground, where the appellant continued to resist the officer’s

efforts to place him in handcuffs by pulling his hand away.87 The officer, unable

to handcuff the appellant and concerned that the appellant might be reaching

into his jacket for a weapon, reached for his pepper spray.88 At that point, the

officer noticed he had no feeling in his right shoulder.89

       In Byars, this Court held that by physically resisting arrest, the appellant

consciously disregarded the substantial and unjustifiable risk that the officer

could be injured by his actions. 90 This Court upheld the jury’s verdict because it

was based on the acts, words, and conduct of the appellant which the jurors
81
   R.R.III:132.
82
   Byars, 2008 WL 4647391, at *1
83
   Id.
84
   Id.
85
   Id.
86
   Id.
87
   Id.
88
   Id.
89
   Id.
90
   Id.; see also Lofton, 45 S.W.3d at 652; Gumpert, 48 S.W.3d at 454.


                                             14
could have rationally inferred was the recklessness cause of the officer’s bodily

injury. 91

          Like Byars, the jurors could have rationally inferred that Rollins’ acts and

conduct caused Officer Parris’ bodily injury.

     V.      Conclusion: the evidence supports the jury’s verdict of guilt.

          The record supports that Rollins assaulted Officer Parris. By physically

resisting arrest, Rollins consciously disregarded the substantial and unjustifiable

risk that Officer Parris could be injured by his actions.92 Based on Rollins’ acts

and conduct, the jurors could have rationally inferred that his acts caused Officer

Parris’ bodily injury.93 Rollins’ first issue should be overruled.



                                   SECOND ISSUE

          While the jury must unanimously agree about the occurrence of
          a single offense, it need not be unanimous about the specific
          manner or means of how that offense was committed.

          How then was Rollins’ right to a unanimous verdict violated if
          the jury was charged with alternate manner and means of a the
          single crime of assault on a public servant?


                                STATE’S RESPONSE

91
   See Lofton, 45 S.W.3d at 652; Gumpert, 48 S.W.3d at 454.
92
   See Lofton, 45 S.W.3d at 652; Gumpert, 48 S.W.3d at 454.
93
   Byars, 2008 WL 4647391, at *2.



                                            15
          In his second issue, Rollins contends that a disjunctive jury charge with a

general verdict form deprived him of a unanimous finding of guilt. However, the

disjunctive phrases merely informed the jury of the different ways of

committing the single offense of assault on a public servant with bodily injury.

Because the phrases described different manner and means and not different

criminal acts, the jury didn’t have to agree on which alternative means Rollins

used to assault Officer Rollins in order to reach a unanimous verdict.94

     I.      Jury charge error standard of review

          Under Almanza, jury charge error requires reversal when the defendant

has properly objected to the charge and the appellate court finds “some harm” to

his rights.95 But when the defendant fails to object or states that he has no

objection to the charge, the appellate court will not reverse for jury-charge error

unless the record shows “egregious harm” to the defendant.96 Reversal for an

unobjected-to erroneous jury instruction is proper only if the error caused actual

harm to an appellant.97 “An egregious harm determination must be based on a

finding of actual rather than theoretical harm.”98 Actual harm is established


94
   See Kitchens v. State, 823 S.W.2d 256 (Tex. Crim. App.1991); see also Holford v. State,
177 S.W.3d 454, 461-62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
95
   Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005).
96
   Id.
97
   Id.
98
   Cosio v. State, 353 S.W.3d 766,777 (Tex Crim. App. 2011); Arrington v. State, 451 S.W.3d


                                            16
when the erroneous jury instruction affected “the very basis of the case,”

“deprive[d] the defendant of a valuable right,” or “vitally affect[ed] a defensive

theory.”99

         The appellate court reviews alleged charge error by considering two

questions: (1) whether error existed in the charge; and (2) whether sufficient

harm resulted from the error to compel reversal.100

   II.      Jury unanimity

         Under the Texas Constitution and Code of Criminal Procedure, a Texas

jury must reach a unanimous verdict.101 The jury must agree that the defendant

committed one specific crime.102 The unanimity requirement ensures the jury

agrees on the factual element underlying the charged offense, not that it merely

agrees that a statute was violated.103 That does not mean, however, that the jury

must unanimously find that the defendant committed that crime in one specific

way or even with one specific act.104

         While the jury must unanimously agree about the occurrence of a single



834, 840 (Tex. Crim. App. 2015).
99
    Id. (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g));
Arrington, 451 S.W.3d at 834.
100
     Ngo, 175 S.W.3d at 743-44.
101
     See Landrian v. State, 268 S.W.3d 532, 535-36 (Tex. Crim. App. 2008).
102
     Id.
103
     Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000).
104
     See Landrian, 268 S.W.3d at 535-36.


                                           17
criminal offense, it need not be unanimous about the specific manner or means

of how that offense was committed.105 When an appellant’s indictment does not

allege different offenses but only different ways of committing the same offense,

the court properly furnishes the jury with a general verdict form.106 Further, the

unanimity requirement is not violated by instructing the jury on alternative legal

theories of committing the same offense.107 Alternative methods of committing

the same offense are properly submitted to the jury in the disjunctive if the

evidence is legally sufficient to support a finding of the offense under any of the

theories submitted.108

      III.   The jury reached a unanimous verdict because Rollins was charged

             with one offense which could’ve been committed several ways.

The Court of Criminal Appeals has long held that,

                if but one transaction is involved, and the offense be
                one which may have been committed in any one of
                several ways, the pleader may charge in the
                indictment, in one count that such offense had been
                committed by doing this, and that, and the other, and


105
      Young v. State, 341 S.W.3d 417, 422 (Tex. Crim. App. 2011); Ngo, 175 S.W.3d at 745—
46.
106
    Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App.1982) (op. on reh’g).
107
    Martinez v. State, 129 S.W.3d 101, 103 (Tex. Crim. App. 2004).
108
    Wert v. State, 383 S.W.3d 747, 755 (Tex. App.-Houston [14th Dist.] 2012, no pet.) (citing
Kitchens, 823 S.W.2d at 256); Smith v. State, 436 S.W.3d 353, 377 (Tex. App.—Houston
[14th Dist.] 2014), reh’g overruled (Aug. 12, 2014), petition for discretionary review refused
(Oct. 15, 2014).


                                             18
              there will be no duplicity, and need be but a verdict of
              guilty....109


In Aguirre, the appellant was refused entrance to the house by his ex-wife, and

he responded by firing a shotgun through the door, killing their daughter.110

Aguirre was charged with murder in two alternative paragraphs, the first

invoking Section 19.02(a)(1)—alleging that he intentionally or knowingly

caused the girl’s death—and the second invoking Section 19.02(a)(3)—alleging

that he caused her death in the course of committing criminal mischief, i.e.,

shooting through the door.111 Aguirre’s conviction for felony murder was

affirmed.112 “Because appellant’s indictment did not allege different offenses but

only ... different ways of committing the same offense, the court properly

furnished the jury with a general verdict form.” 113 Aguirre is applicable here.

       Similarly, Texas Court of Criminal Appeals ruled on a unanimity

challenge that, where the charge was injury to a child, under Section 22.04 of

the Texas Penal Code—but the defendant was accused alternatively of (1)

striking the child, (2) failing to prevent another from injuring the child, and (3)

109
    Aguirre, 732 S.W.2d at 320 (quoting McArthur v. State, 132 Tex. Crim. 447, 105 S.W.2d
227, 230 (1937) (op. on reh’g)); see also Barfield v. State, 202 S.W.3d 912, 915-16 (Tex.
App.—Texarkana 2006, pet. ref’d).
110
    Aguirre, 732 S.W.2d at 326.
111
    Id.
112
    Id.
113
    Id.


                                           19
failing to provide proper medical care for the child—the alternative allegations

were just different ways to commit the single offense.114 In a concurring opinion,

Judge Cochran provided a grammar lesson on sentence structure, and then

encapsulated the rule:

              At a minimum, [the elements the jury must find,
              unanimously, beyond a reasonable doubt] are: the
              subject (the defendant); the main verb; and the direct
              object if the main verb requires a direct object (i.e., the
              offense is a result-oriented crime); and the specific
              occasion (the date phrase within the indictment, but
              narrowed down to one specific incident regardless of
              the date alleged). Generally, adverbial phrases,
              introduced by the preposition “by,” describe the
              manner and means of committing the offense. They
              are not the gravamen of the offense nor elements on
              which the jury must be unanimous.115

Applying Aguirre and Jefferson, here the State indicted Rollins with only one

offense of assault on a public servant with bodily injury. The jury charge read:

              Now, if you find from the evidence beyond a
              reasonable doubts that…Rollins did intentionally or
              knowingly or recklessly cause bodily injury to Officer
              Gregory Parris by striking the said Gregory Parris with
114
    See Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) (The Court quoted
approvingly an opinion of the Wisconsin Supreme Court, State v. Johnson, 243 Wis.2d 365,
627 N.W.2d 455, 459—60 (2001), in using a two-part analysis for such a unanimity
challenge: (1) examine the statute to determine whether the Legislature intended to define
separate offenses or merely alternative ways to commit one offense, and (2) if the offending
behavior merely constitutes alternative ways to commit one offense, consider whether that
formulation denies the defendant the due process of law as stated by Schad v. Arizona, 501
U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991)); see also Barfield, 202 S.W.3d at 912.
115
    Jefferson, 189 S.W.3d at 316 (Cochran, J., concurring); see also Barfield, 202 S.W.3d at
912.


                                            20
              his head and/or hand and/or pushing the said Gregory
              Parris with this hand and/or by kicking the said
              Gregory Parris with his foot and/or by twisting and/or
              pulling on the said Gregory Parris and/or by physically
              struggling with the said Gregory Parris and/or by
              physically resisting the said Gregory Parris, and the
              Defendant did then and there know that the said
              Gregory Parris was then and there a public servant, to-
              wit: a peace officer, and that the said Gregory Parris
              was then and there lawfully discharging an official
              duty, to-wit: attempting to detain and/or secure and/or
              arrest and/or control the said Robert Rollins then you
              will find the Defendant guilty of the offense of Assault
              of a Public Servant as charged in the indictment.116

       Turning to the eighth-grade grammar test, the subject is “the defendant,”

the verb is “cause” and the direct object is “bodily injury.”117 The precise act or

nature of conduct in this result-oriented offense is inconsequential.118 “What

matters is that the conduct (whatever it may be) is done with the required

culpability to effect the result the Legislature has specified.”119

       The gravamen of the offense of assault is the specific type of assault

defined in Section 22.01.120 Assault is defined in the Penal Code to include three

separate and distinct assaultive crimes: assault by bodily injury, assault by




116
    C.R. 59.
117
    Landrian, 268 S.W.3d at 537.
118
    Id.
119
    Id.
120
    Id.


                                          21
threat, and assault by contact.121 A person commits assault on a public servant if

he intentionally, knowingly, or recklessly causes bodily injury to a police

officer.122 Thus, the actus reus for “bodily injury” assault is “causing bodily

injury.”123

       Yet another way of testing whether the State charged one assault on a

public servant or several distinct and separate assault offenses, as Rollins claims,

is to ask whether the State could have obtained more than one assault on a

public servant conviction stemming from Rollins criminal conduct.124 Would

double jeopardy allow Rollins to be punished for causing bodily injury by head-

butting Officer Parris during the struggle and causing pain to his face and also

punished for causing bodily injury by injury to both Officer Parris’ knees by

continuing to struggle and get to his feet forcing the officer to take steps

necessary to restrain him?125 The answer is obvious: Rollins committed only one

assault during a single incident and may be punished for only one assault.126



121
    See TEX. PENAL CODE § 22 .01(a)(1), (b)(1).
122
    Id.
123
    Landrian, 268 S.W.3d at 537.
124
    Landrian, 268 S.W.3d at 532
125
    Landrian, 268 S.W.3d at 532
126
    Landrian, 268 S.W.3d at 532; see also State v. James, 698 P.2d 1161, 1166 (Alaska 1985)
(“When a defendant commits first degree assault by any of the three methods, the victim is
fortunate to survive. Moreover, we find no evidence that the legislature intended by [the
aggravated assault statute] to expose defendants to multiple punishments. We may therefore
assume that a single punishment was envisioned for violation of the statute.”).


                                            22
           No unanimity error existed in the charge.127 Rollins second issue should

be overruled.


                                      THIRD ISSUE

           When a trial court includes an instruction on a presumed fact
           in the jury charge, the Texas legislature requires the trial court
           to include a Section 2.05(a)(2) instruction.

           How was Rollins harmed by the omission of a Section 2.05(a)(2)
           instruction when the evidence of Rollins’ understanding that
           Officer Parris was an on-duty police officer was not disputed at
           trial?


                                 STATE’S RESPONSE

           In his third issue, Rollins correctly points out that the jury charged didn’t

include a Section 2.05(a)(2) instruction following the Section 22.01(d)

presumption instruction regarding peace officers. However, the error wasn’t

harmful because the record shows how Rollins understood Officer Parris was an

on-duty police officer and the charge contained other similar instructive language

for the jury to follow.

      I.      Standard of review

           In reviewing jury charge error, the usual Almanza standard which depends



127
      Ngo, 175 S.W.3d at 738.


                                             23
upon whether appellant preserved the error is applied.128 Here, Rollins did not

make any objections to the jury charge.129 Yet when inquiring whether a

mandatory presumption caused harm where the error was preserved, “the

relevant inquiry is ‘whether the evidence was so dispositive of [the element at

issue] that a reviewing court can say beyond a reasonable doubt that the jury

would have found it unnecessary to rely on the presumption.’ ”130

      II.      Presumption instructions

            When a trial court includes an instruction on a presumed fact in the jury

charge like required in Section 22.01(d), the Texas legislature requires the trial

court to include a Section 2.05(a)(2) instruction.131 Without a Section 2.05(a)(2)

instruction, it is possible that the presumed fact instruction would contain a

mandatory presumption. Mandatory presumptions are unconstitutional.132 Here,

the jury charge included the presumption that “knowledge that the assaulted

person was a public servant is presumed if the person was wearing a distinctive


128
    Almanza, 686 S.W.2d at 157; Ramos v. State, 991 S.W.2d 430, 434 (Tex. App.—Houston
[1st Dist.] 1999, pet. ref’d).
129
    R.R.III:145.
130
    Alexander v. State, 757 S.W.2d 95, 100 (Tex. App. —Dallas 1988, pet. ref’d) (quoting
Rose v. Clark, 478 U.S. 570, 583, 106 S.Ct. 3101, 3109, 92 L.Ed.2d 460 (1986)); Jimenez v.
State, 419 S.W.3d 706, 718 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (emphasis
added).
131
    TEX. PENAL CODE §§ 2.05, 22.01(d).
132
    Webber v. State, 29 S.W.3d 226, 230 (Tex. App.—Houston [14th Dist] 2000, pet. ref’d);
Brewer v. State, 08-00-00424-CR, 2002 WL 266816, at *5 (Tex. App.—El Paso Feb. 26,
2002, pet. ref’d).


                                            24
uniform or badge that indicated the person’s employment as a public servant.”133

      III.   The evidence was unchallenged that Rollins understood Officer

             Parris was an on-duty police officer.

         Officer Parris testified that he was in a standard uniform, in a marked

patrol unit, and that he made a traffic stop with his overhead flashing lights.134

Rollins testified that he knew he was going to be detained and was going to jail

for outstanding warrants so he gave Officer Parris the marijuana right when he

approach the car.135

         Even if the error would’ve been preserved at trial, the evidence meets the

lower threshold harm analysis.136 The evidence was so undeniable that Rollins

understood Officer Parris was acting as an on-duty police officer that a

reviewing court can say beyond a reasonable doubt that the jury would have

found it unnecessary to rely on the presumption,137

         Additionally, the guilt-innocence charge instructs the jury that the

prosecution has the duty of proving each and every element of the offense

charged beyond a reasonable doubt.138 Failure to do so requires acquittal.139


133
    See TEX. PEN. CODE § 22.01(d).
134
    R.R.III:24-25.
135
    R.R.III:121-122.
136
    Ngo, 175 S.W.3d at 743-44.
137
    See Alexander, 757 S.W.2d at 100; Jimenez, 419 S.W.3d at 718.
138
    C.R. 59-60.


                                            25
Furthermore, the application paragraph includes the instruction that the jury

must find that Rollins “did then and there know that said Gregory Parris was

then and there a public servant, to-wit: a peace office, and that said Gregory

Parris was then and there lawfully discharging an office duty….”140 Such

instructions informed that jury that they still had to find every element beyond a

reasonable doubt.141

      IV.   Conclusion: there was no harm because Rollins acknowledged that

            Officer Parris was an on-duty police officer.

        Rollins was not harmed by the omission of a Section 2.05(a)(2)

instruction because the evidence of Rollins understanding that Officer Parris was

an on-duty police officer was not disputed at trial. The evidence showed that

Rollins clearly recognized Officer Parris as an on-duty police officer. Rollins

third issue should be overruled.




139
    C.R. 59-60.
140
    C.R. 59.
141
    See Jimenez, 419 S.W.3d at 718; see also Garrett v. State, 159 S.W.3d 717, 721 (Tex.
App.—Fort Worth 2005), aff’d, 220 S.W.3d 926 (Tex. Crim. App. 2007).


                                          26
                                     FOURTH ISSUE

           Rollins maintains that he’s entitled to a new trial under Texas
           Rule of Appellate Procedure 34.6(f)(4) because the trial court
           reporter thought a key exhibit was lost.

           How is Rule 36.4(f) applicable when there is no lost evidence?


                                    STATE’S RESPONSE

           In Rollins’ fourth issue, he claims that he is entitled to a new trial under

Texas Rule of Appellate Procedure 34.6(f)(4) because the trial court reporter

thought a key exhibit was lost. Although the court reporter didn’t know where

the exhibit was located, it never left the court reporter’s exhibit closet, and when

it was located, it was filed accordingly. Therefore, Rollins is not entitled to a

new trial.

      I.      Rule of Appellate Procedure 34.6

           Rule of Appellate Procedure 34.6 governs the presentation of the

reporter’s record on appeal, and it provides that that record “consists of the court

reporter’s transcription of so much of the proceedings, and any of the exhibits,

that the parties to the appeal designate.”142 The purpose of Rule 34.6 ensures that



142
      TEX. R. APP. P. 34.6(a)(1).


                                            27
the record on appeal accurately reflects all of the evidence that was seen by,

used by, or considered by the trial judge at the time he made a ruling.143

       If the record as originally designated by the parties does not fully reflect

the evidence considered by the factfinder, then the trial judge, the court of

appeals, or any of the parties may direct the court reporter to supplement the

appellate record with the missing items.144 If the parties have a dispute over what

items are missing from the appellate record, or they dispute the accuracy or

completeness of those items, the trial court will resolve that dispute.145

       Rule 34.6(f) entitles an appellant to a new trial under certain conditions,

one of which is that “without appellant’s fault, a significant exhibit or a

significant portion of the court reporter’s notes and records has been lost or

destroyed.”15 Rule 34.6(f) does not apply here because there is nothing missing

from the Reporter’s Record.146 A court reporter’s repeated failure to file the

record does not, by itself, provide a sufficient basis for concluding that the court


143
      The Texas Supreme Court has stated that “appellate courts must construe [the rules
governing correction of the appellate record] liberally so their decisions ‘turn on substance
rather than procedural technicality.’ ” Gallagher v. Fire Ins. Exchange, 950 S.W.2d 370, 371
(Tex. 1997) (per curiam) (quoting Crown Life Ins. Co. v. Estate of Gonzalez, 820 S.W.2d 121,
121 (Tex. 1991) (per curiam)); see also Blondett v. State, 921 S.W.2d 469, 477 (Tex. App.-
Houston [14th Dist.] 1996, pet. ref’d) (“The purpose of [predecessor to Rule 34.6(e) ] is to
create an accurate record on appeal.”); see also Amador v. State, 221 S.W.3d 666, 677, fn 48
(Tex. Crim. App. 2007).
144
     Amador, 221 S.W.3d at 677.
145
    Id.; Rowell v. State, 66 S.W.3d 279, 282 (Tex. Crim. App. 2001)
146
     See Lucio v. State, 351 S.W.3d 878, 891-92 (Tex. Crim. App. 2011).


                                             28
reporter’s notes and records have been “lost or destroyed,” so as to justify

granting a new trial.147 The Rules of Appellate Procedure also give appellate

courts the power to take actions designed to ensure the preparation and filing of

the record, including the appointment of a substitute court reporter to prepare

and file the record from the original court reporter’s notes.148 A court reporter’s

notes and records, or portions thereof, can be considered “lost” only if the

missing portions of the appellate record are irretrievable.149

      II.      State’s Exhibit 1 was never lost—it was always in the exhibit closet.

               The court reporter just couldn’t find it.

            State’s Exhibit 1 was admitted at trial. At the conclusion of trial, the 405th

District Court court reporter, Delicia Struss, took possession of all the exhibits

and placed them into her exhibit closet.150 Her exhibit closet was located in the

405th District Court court reporter’s office.151 When Struss filed the reporter’s

record in this case, she was unable to locate State’s Exhibit 1. Several months

later, the new 405th District Court court reporter, Cylena Korkmas located

State’s Exhibit 1 in the 405th District Court court reporter’s exhibit closet.152 It


147
    Johnson v. State, 151 S.W.3d 193, 196 (Tex. Crim. App. 2004).
148
    Id.
149
    Id.
150
    See Verification hearing Exhibit 1-V and 2-V.
151
    See Verification hearing Exhibit 1-V and 2-V.
152
    See Verification hearing Exhibit 1-V and 2-V.


                                              29
was the same closet that Struss used when she was the 405th District Court court

reporter.153

       Upon Rollins motion, the trial court held a verification hearing to

determine if State’s Exhibit 1 was the same exhibit that was entered into at trial.

After considering affidavits by Rollins’ trial counsel, Rollins, Officer Parris, the

prosecutor, and both court reporters, the trial court verified that the State’s

Exhibit 1 was the same exhibit that was admitted at trial.154 Rollins’ affidavit

swearing that the State’s Exhibit 1 wasn’t authentic was the only contradicting

evidence before the trial court. Moreover, Rollins affidavit describing State’s

Exhibit 1 didn’t match the description he gave of the struggle in his trial

testimony.

       Rollins’ claim that he remembers the struggle differently does not mean

that State’s Exhibit 1 “lost or destroyed” for purposes of Rule 34.6(f).155 There is

nothing missing from the reporter’s record. The trial court didn’t err by

verifying State’s Exhibit 1.156


153
    R.R.VH:10.
154
    R.R.VH:10-11.
155
    See Jaynes v. State, 216 S.W.3d 839, 844 (Tex. App.—Corpus Christi 2006, no pet.).
156
    See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); see also Jaynes, 216
S.W.3d at 839 (When the reviewing court gives almost total deference to a trial court’s
resolution of the historical facts, it may conclude that the trial court correctly ruled that the
text of the reporter’s record of the trial accurately discloses what occurred in the trial court.
Appellant’s first issue is overruled.).


                                               30
      Rollins fourth issue should be overruled.


                 FIFTH, SEVENTH, AND EIGHTH ISSUES

    Rollins wasn’t entitled to the defensive jury charge issues he
    complains about. But even so, trial counsel was under no duty to
    raise every defense available, so long there was an objectively
    reasonable defense presented.

    Rollins’ trial counsel had a clear trial strategy: to negate the mens
    rea element of assault.

    How was trial counsel ineffective when these defensive issues
    would’ve conflicted with the clear laid out trial strategy and Rollins’
    own testimony?


                             STATE’S RESPONSE

      In his fifth, sixth, seventh, and eighth issues, Rollins contends he was

denied his right to effective assistance of counsel. Because issues five, seven,

and eight are jury charge issues, they will be consolidated. Specifically, Rollins

contends his trial counsel was ineffective because she didn’t include defensive

items in the jury charge. Rollins claims he was entitled to a self-defense

instruction, a voluntariness instruction, and a lesser-included offense of resisting

arrest. First of all, Rollins wouldn’t have been entitled to these defensive jury

charge issues. At trial, Rollins repeatedly testified that he had no intent to harm

the officer. He didn’t know his actions would cause harm. In order to remain



                                        31
credible before the jury, it would’ve been reasonable for trial counsel to refrain

from including defensive items in the charge that were contrary to Rollins

overall testimony---that he had no intent and wasn’t reckless.

           Counsel is under no duty to raise every defense available, so long as

counsel presents a defense that is objectively reasonable or strategically sound.

In some cases, it may be a more effective strategy to focus on a relatively

narrow defense, rather than to use a “shotgun” approach by arguing every

defense available. That was the choice made in Rollins case. From the beginning

of opening statements to the end of closing arguments, Rollins’ trial counsel had

a clear trial strategy: to negate the mens rea element. Rollins’ trial strategy was

objectively reasonable and strategically sound. Rollins receive effective

assistance at his trial and these issues should be overruled.

      I.      Ineffective assistance of counsel

           The constitutional right to counsel in a criminal prosecution exists to

protect the fundamental right to a fair trial.157 In this context, “a fair trial is one

in which evidence subject to adversarial testing is presented to an impartial

tribunal for resolution of issues defined in advance of the proceeding.”158 “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s
157
     Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674
(1984).
158
    Id. at 685, 104 S.Ct. at 2063.


                                            32
conduct so undermined the proper functioning of the adversarial process that the

trial cannot be relied on as having produced a just result.”159 “This right does not

mean errorless or perfect counsel whose competency of representation is to be

judged by hindsight.”160

       Claims that a defendant received ineffective assistance of counsel are

governed by a two-part test: (1) whether the attorney’s performance was

deficient, i.e., did counsel make errors so serious that he or she was not

functioning as the “counsel” guaranteed by the Sixth Amendment; and if so, (2)

whether that deficient performance prejudiced the party’s defense.161 “An

appellate court looks to the totality of the representation and the particular

circumstances of each case in evaluating the effectiveness of counsel.”162 The

adequacy of attorney performance is judged against what is reasonable

considering prevailing professional norms.163

       There is a strong presumption that, considering the circumstances, a

lawyer’s choices were reasonably professional and motivated by sound trial

159
    Id. at 686, 104 S.Ct. at 2064.
160
    Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).
161
    Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; Lopez v. State, 343 S.W.3d 137, 142 (Tex.
Crim. App. 2011); Bailey v. State, 01-12-00200-CR, 2015 WL 4497773, at *8-9 (Tex. App.—
Houston [1st Dist.] July 23, 2015), petition for discretionary review filed (Sept. 22, 2015).
162
    Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); see also Okonkwo v. State,
398 S.W.3d 689, 693 (Tex. Crim. App. 2013) (appellate review focuses on the objective
reasonableness of counsel’s actual conduct “in light of the entire record”).
163
    Strickland, 466 U.S. at 688, 104 S.Ct. at 2065.


                                             33
strategy.164 When such direct evidence is not available, an appellate court “will

assume that counsel had a strategy if any reasonably sound strategic motivation

can be imagined.”165 In the face of this presumption, a criminal defendant has

the burden of showing by a preponderance of the evidence that his attorney

failed to provide constitutionally adequate representation.166 To overcome this

presumption, the defendant must come forward with evidence illustrating why

trial counsel did what he did.167 Generally, however, a reviewing court, in

considering a claim of ineffective assistance of counsel, should be highly

deferential to trial counsel and avoid the deleterious effects of hindsight.168

       Limitations of the record often render a direct appeal inadequate to raise a

claim of ineffective assistance of counsel.169 “An ineffective-assistance claim

must be firmly founded in the record and the record must affirmatively

demonstrate the meritorious nature of the claim.”170


164
    Id. at 689, 104 S.Ct. at 2065; Nava v. State, 415 S.W.3d 289, 307—08 (Tex. Crim. App.
2013).
165
    Lopez, 343 S.W.3d 143; Hernandez v. State, 01-12-01080-CR, 2014 WL 1101587, at *2-3
(Tex. App.—Houston [1st Dist.] Mar. 20, 2014, no pet.).
166
    Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App.2002); Bailey, 01-12-00200-CR, 2015
WL 4497773, at *8-9.
167
    Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).
168
     Thompson, 9 S.W.3d at 813 (citing Ingham v. State, 679 S.W.2d 503, 509
(Tex.Crim.App.1984)); Copeland v. State, 14-00-00386-CR, 2001 WL 930883, at *1 (Tex.
App.—Houston [14th Dist.] Aug. 16, 2001, no pet.).
169
    See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
170
    Menefield v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012); see also Thompson, 9
S.W.3d at 813.


                                           34
      II.      Even if Rollins’ trial counsel had requested a self-defense instruction

               in the jury charge, Rollins wasn’t entitled to it.

            Rollins maintains his trial counsel was ineffective for not requesting a

self-defense instruction in the jury charge. As a threshold matter, to establish a

claim that a defense counsel’s performance was deficient for failing to request

an instruction, the appellant must show that he was entitled to the instruction.171

            The Texas Penal Code defines self-defense as a police officer as:

                  (c) The use of force to resist an arrest or search is
                  justified:

                  (1) if, before the actor offers any resistance, the peace
                  officer (or person acting at his direction) uses or
                  attempts to use greater force than necessary to make
                  the arrest or search; and

                  (2) when and to the degree the actor reasonably
                  believes the force is immediately necessary to protect
                  himself against the peace officer’s (or other person’s)
                  use or attempted use of greater force than necessary.172

            Self-defense is a justification for one’s actions, which necessarily requires

admission that the conduct occurred.173 Self-defense is inconsistent with a denial


171
    Shanklin v. State, 190 S.W.3d 154, 159 (Tex. App.—Houston [1st Dist.] 2005, pet. dism'd)
(citing Fuentes v. State, 991 S.W.2d 267, 272 (Tex. Crim. App. 1999)); Williams v. State, 01-
07-00632-CR, 2009 WL 350608, at *4 (Tex. App.—Houston [1st Dist.] Feb. 12, 2009, no
pet.) (regarding instruction on a lesser-included offense.).
172
    TEX. PEN. CODE § 9.31.
173
    See Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App.1999) (discussing defense of
necessity as justification); MacDonald v. State, 761 S.W.2d 56, 60 (Tex. App.—Houston


                                              35
of the conduct.174 To raise the issue of self-defense, appellant must admit the

committed offense and then offer self-defense as justification.175

       When the defensive evidence merely negates the necessary culpable

mental state, it will not suffice to entitle the defendant to a self-defense

instruction.176 A self-defense 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.177 For example, in Young v. State, the

Court of Criminal Appeals observed that “[i]n order to raise necessity, a

defendant admits violating the statute under which he is charged and then offers

necessity as a justification which weighs against imposing a criminal

punishment for the act or acts which violated the statute.”178 The Court of

Criminal Appeals held that Young himself was not entitled to a necessity

instruction because he merely “argued he did not commit the offense because he

did not have the requisite intent and he did not perform the actions the State

alleged.”32 Similarly, in Ex parte Nailor, the Court of Criminal Appeals held that

[14th Dist.] 1988, pet. ref’d).
174
    Sanders v. State, 707 S.W.2d 78, 81 (Tex.Crim.App.1986); MacDonald, 761 S.W.2d at 60.
175
    See Young, 991 S.W.2d at 839 (finding defendant was not entitled to instruction on defense
of necessity because he argued he did not commit offense).
176
    Shaw v. State, 243 S.W.3d 647, 659 (Tex. Crim. App. 2007).
177
    Id.
178
    Young, 991 S.W.2d at 839.


                                             36
the defendant was not entitled to a jury instruction on self-defense because his

defensive evidence did not show confession and avoidance, but only a lack of

the required culpable act and mens rea.179

      III.   Rollins’ trial counsel wasn’t ineffective for not requesting a self-

             defense instruction in the jury charge because it wasn’t supported by

             the evidence.

         Rollins claims the evidence entitled him to a self-defense instruction.

Rollins maintains that the video shows evidence of the use of excessive force.

Yet at trial, Rollins didn’t accuse Officer Parris of excessive force in his

testimony nor was there any other evidence of excessive force.

         The entire struggle lasts for approximately 1 minute and 15 seconds.180

Contrary to Rollins’ interpretation, the record is silent and does not indicate that

Officer Parris used greater force than necessary. Officer Parris testified that he

believed his life could’ve been at risk because he didn’t know if Rollins was

reaching for a weapon when he was in the car.181 Officer Parris testified that he

179
    Shaw, 243 S.W.3d at 659; Ex parte Nailor, 149 S.W.3d 125, 133 (Tex. Crim. App. 2004)
(defendant who contended at trial that victim was injury by accident had not confessed to
elements of offense and could not raise self-defense); see Ford v. State, 112 S.W.3d 788, 794
(Tex. App.—Houston [14th Dist.] 2003, no pet.) (explaining that assertion of defense is
inconsistent with denial of charged conduct); Velez v. State, 01-14-00544-CR, 2015 WL
3522835, at *4 (Tex. App.—Houston [1st Dist.] June 4, 2015), petition for discretionary
review filed (Oct. 2, 2015).
180
    See State’s Exhibit 1: Video 1965, 18:41:30-18:42:45; see also Rollins brief, p. 3.
181
    R.R.III:37-40.


                                             37
restrained his use of force when he saw the children in the back seat of the car in

spite of the danger he felt he was in.182

       What the video shows is how Rollins repeatedly raised himself to his feet

and repeatedly told Officer Parris “my kids are right there.”183 Rollins testified

that he never intentionally meant to hurt Officer Parris.184 Rollins told the jury

that all he was thinking about was his kids.185

       In his testimony, Rollins repeatedly denied that he intentionally meant to

injure Officer Parris.186 If the jury believed Rollins’ version of the incident, there

was no issue of self-defense to decide.187 Because Rollins did not admit the

offense and then offer justification for it, the issue of self-defense was not

raised, and the trial court would not have admitted.188




182
    R.R.III:38-39.
183
    State’s Exhibit No. 1.
184
    R.R.III:126, 128-129.
185
    R.R.III:127.
186
    R.R.III:126, 128-129.
187
    See Fregia v. State, 01-13-00312-CR, 2014 WL 527535, at *7 (Tex. App.—Houston [1st
Dist.] pet. ref’d, 2014) (Appellant’s counsel could have believed that requesting the defensive
instructions would have undercut appellant’s claim that he did not act forcefully, shifted the
focus of the defense, and confused the jury. Counsel may have also reasonably believed that
the instructions may have seemed inconsistent with appellant’s testimony, thereby weakening
his credibility.).
188
    See Young, 991 S.W.2d at 839; see also Anderson v. State, 11 S.W.3d 369, 371-72 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d).


                                              38
      IV.   Even if we presume that he was entitled to the self-defense

            instructions, Rollins has not shown that he received ineffective

            assistance of counsel at trial.

        Rollins filed a motion for new trial solely alleging his trial counsel was

ineffective for not requesting a self-defense instruction in the charge. Attached

to his motion was an affidavit by trial counsel.189 In the affidavit, Rollins’ trial

counsel admitted that not requesting a self-defense instruction was not part of a

trial strategy but an oversight.190

        The court may consider the interest and bias of any witness and is not

required to accept as true the testimony of the accused or any defense witness

simply because it was not contradicted.191 The admission of evidence is a matter

within the discretion of the trial court. The trial court has full discretion to

choose whether or not to believe statements made in such an affidavit.192

        Here, at the hearing on Rollins’ motion for new trial, the trial court

considered Rollins’ trial counsel’s affidavit.193 The trial court denied the motion

189
    C.R. Supp. 3-16.
190
    C.R. Supp. 11-14 (Affidavit of Haley Sloss, September 29, 2014).
191
    See Montgomery v. State, 810 S.W.2d 372, 378—79 (Tex. Crim. App. 1990) (opinion on
reh’g)
192
    Ex parte Thompson, 13-06-290-CR, 2007 WL 2459978, at *7 (Tex. App.—Corpus Christi
Aug. 30, 2007, no pet.).
193
    See Montgomery, 810 S.W.2d at 372 (The court may consider the interest and bias of any
witness and is not required to accept as true the testimony of the accused or any defense
witness simply because it was not contradicted. The admission of evidence is a matter within


                                              39
for new trial without findings of fact and conclusions of law.194 However, the

trial court judged the credibility of the affidavit and whether it was a true

reflection of Rollins’ trial strategy or a product of reflection and hindsight.195

The record supports that the affidavit was a product of hindsight because the

trial strategy that was clearly evident thorough the course of the trial.196

       The trial court heard Rollins’ trial counsel tell the jury in opening

statements that “At no time during the struggle does Mr. Rollins strike Officer

Parris, does he head butt Officer Parris, or kick Officer Parris. He is actually

never even facing Officer Parris.”197 Again in closing argument,

               There was a struggle. We saw that on the video. They
               were clearly struggling. Mr. Rollins at no time
               intentionally hurt the officer. He didn’t know that his


the discretion of the trial court.); Ex parte Thompson, 13-06-290-CR, 2007 WL 2459978, at
*7 (The trial court has full discretion to choose whether or not to believe statements made in
such an affidavit.).
194
    This Court noted that trial courts are in the best position to “evaluate the credibility” of
witnesses and to resolve conflicts in evidence. A trial court may choose to believe or
disbelieve all or any part of the witnesses' testimony. When, as here, a trial court makes no
findings of fact regarding the denial of a motion for new trial, the reviewing court should
“impute implicit factual findings that support the trial judge's ultimate ruling on that motion
when such implicit factual findings are both reasonable and supported in the record.” Glenn v.
State, 01-13-00640-CR, 2015 WL 831995, at *2 (Tex. App.—Houston [1st Dist.] pet. ref’d
2015) citing Johnson v. State, 169 S.W.3d 223, 239 (Tex. Crim. App. 2005); Escobar v. State,
227 S.W.3d 123, 127 (Tex. App.–Houston [1st Dist.] 2006, pet. ref'd).
195
    Thompson, 9 S.W.3d at 813; Copeland, 2001 WL 930883, at *1 (Generally, however, a
reviewing court, in considering a claim of ineffective assistance of counsel, should be highly
deferential to trial counsel and avoid the deleterious effects of hindsight.).
196
    See Robertson, 187 S.W.3d at 483 (“This right does not mean errorless or perfect counsel
whose competency of representation is to be judged by hindsight.”)
197
    R.R.III:12.


                                              40
              actions would cause the injuries to the officer’s knees.
              He had no knowledge of that.

              And as the State told you, we can look -- they look at
              reckless as well. Well, the recklessness comes from the
              actor’s standpoint. The actor in this case is Mr.
              Rollins. He testified he had no idea that his actions
              would cause the injuries to the officer. He never
              wanted to injure the officer. His only concern was his
              children, and his children getting to their mother,
              because he knew he was going to jail.198

Despite her post trial affidavit, trial counsel could’ve believed during trial that

requesting a self-defense instruction would’ve undercut Rollins’ claim that he

didn’t act intentionally or forcefully, shifted the focus of the defense, and

confused the jury.199 Trial counsel may have also reasonably believed that the

instructions may have seemed inconsistent with Rollins’ testimony, thereby

weakening his credibility.200

       Because Rollins wasn’t entitled to a self-defense instruction in the charge,

the first prong of Strickland cannot be met.




198
    R.R.III:160.
199
    See Fregia, 2014 WL 527535, at *7.
200
    See id.


                                         41
      V.      Rollins wasn’t entitled to a voluntariness instruction because he

              testified that he was in control of his actions.

           Rollins also claims that his trial counsel was ineffective for not requesting

a voluntary instruction in the jury charge. However, even if trial counsel had

requested a voluntary charge, the trial court would’ve been correct to refuse it.

The evidence does not support its inclusion.

           A person commits an offense only if he voluntarily engages in conduct,

including an act, an omission, or possession.201 Voluntariness, within the

meaning of section 6.01(a), refers only to one’s physical bodily movements.202

The Court of Criminal Appeals has viewed section 6.01(a) as imposing an actus

element of criminal liability onto every offense:

                 [a]n additional significance of § 6.01 in the instant
                 case is that it superimposes an “engage in conduct”
                 requirement onto every offense; this, however, is
                 relevant to the voluntariness of acts or omissions, and
                 not the subject of culpable mental state.203

           Notably, conduct is not rendered involuntary merely because the

defendant does not intend the result of his conduct.204


201
    TEX. PEN. CODE § 6.01(a).
202
    Alford v. State, 866 S.W.2d 619, 624 (Tex. Crim. App. 1993).
203
    Alford, 866 S.W.2d at 619.
204
    George, 681 S.W.2d at 43; Rodgers v. State, 01-03-00850-CR, 2004 WL 2363830, at *2
(Tex. App.—Houston [1st Dist.] Oct. 21, 2004, no pet.); Washington, 417 S.W.3d at 713
(Cases with gun shootings claimed to be accidental but found voluntary.).


                                             42
      VI.     Rollins admitted to the jury that he was in control.

        Rollins admitted to the jury that he was in control when he didn’t get out

of the car at the officer’s first request and that he was in control when he

continued to resist,205 In this case, there was no evidence that Rollins did not

voluntarily engage in the conduct which injured the complainant; he merely said

that he did not intend the resulting injuries.206 To the contrary, Rollins admitted

to the jury that he was in control. The trial court was correct in overruling his

objection to the absence of a charge on “the law of accident.”207

            The facts are analogous to Pena v. State.208 In Pena, the appellant alleged

that the trial court erred in not instructing the jury on the defense of accident and

voluntary conduct.209 The appellant pointed to the record where the officers and

the appellant fell on the bed and hit a window in appellant’s bedroom during

their struggle.210 He argues that the officer’s nose injury could have occurred by

the fall and not by being struck in the face with a belt.211 The court held that

even assuming the appellant is correct, that the officer’s nose was injured in the
205
    R.R.III:132.
206
    Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982) (In this case, there was no
evidence that the appellant did not voluntarily engage in the conduct which injured the
complainant; he merely said that he did not intend the resulting injuries. The trial court
correctly overruled the objection to the absence of a charge on “the law of accident.”).
207
    Williams, 630 S.W.2d at 644.
208
    Pena v. State, 725 S.W.2d 505, 506-07 (Tex. App.—Corpus Christi 1987, no pet.).
209
    Pena, 725 S.W.2d at 505.
210
    Id.
211
    Id.


                                             43
fall and contact with the window, the appellant would not be entitled to a charge

on “accident” or “voluntary conduct” because there is no evidence that the

appellant did not voluntarily engage in the conduct which injured the officer.212

          Like Pena, Rollins engaged in the struggle. The video shows clearly how

Rollins engaged in the struggle. Rollins purposefully continues to disobey the

officer’s commands. Because of the evidence that Rollins has extensive

experience around law enforcement, a reasonable inference may be made that

Rollins understood the situation that he created. There was no evidence that

Rollins didn’t voluntary engage in the struggle which led to the officer’s

injuries.

          Because Rollins wasn’t entitled to a voluntary instruction in the charge,

the first prong of Strickland cannot be met.

      VII. Rollins hasn’t shown that his trial counsel was ineffective for not

             requesting a lesser-included offense in the charge.

          Rollins also alleges his trial counsel was ineffective for not requesting a

lesser-included offense of resisting arrest in the jury charge. Again, to establish a

claim that his trial counsel’s performance was deficient for failing to request an

instruction, Rollins must show that he was entitled to the instruction.213 But

212
      Id. (quoting Alvarado v. State, 704 S.W.2d 36 (Tex. Crim. App. 1985)).
213
      Shanklin, 190 S.W.3d at 159; Williams, 2009 WL 350608, at *4.


                                               44
because the record is silent regarding counsel’s trial strategy at the charge

conference, the appellate court must presume that there was a plausible reason

for not requesting an instruction on the lesser-included offense of resisting arrest

and that he acted within the range of reasonable professional assistance.214

Several courts, including this one, have held that the failure to request an

instruction on a lesser-included offense can be a valid and reasonable trial

strategy.215 The “all or nothing” strategy of forcing the jury to choose between

the greater offense and acquittal without the alternative of a lesser-included

offense, is risky but sometimes successful.216 Because Appellant has failed to

rebut the strong presumption that counsel’s decision not to request the

instruction was sound trial strategy, he has not carried his burden under

Strickland.217

      VIII. Rollins wasn’t entitled to the lesser-included offense of resisting

            because there is no evidence that he’s guilty of only resisting.


214
    Rollins’ Motion for New Trial’s ineffective assistance of counsel claim only alleged that
counsel should’ve requested a self-defense instruction in the jury charge; see Nava, 415
S.W.3d at 307—08; Lopez, 343 S.W.3d 143; Hernandez, 2014 WL 1101587, at *2-3.
215
    See e.g., Williams v. State, No. 08-02-00310-CR, 2004 WL 309265 at *6 (Tex. App.-El
Paso, Feb. 19, 2004, pet. ref’d); Wood v. State, 4 S.W.3d 85, 87 (Tex. App.-Fort Worth 1999,
pet. ref’d); Davis v. State, 930 S.W.2d 765, 768 (Tex. App.-Houston [1st Dist.] 1996, pet.
ref’d); Lynn v. State, 860 S.W.2d 599, 605 (Tex. App.-Corpus Christi 1993, pet. ref’d).
216
    See Lynn, 860 S.W.2d at 603; Vives v. State, 01-01-00296-CR, 2002 WL 31388695, at *3
(Tex. App.—Houston [1st Dist.] Oct. 24, 2002, no pet.).
217
    See Williams, 2009 WL 350608, at *4; Jackson v. State, 08-05-00135-CR, 2006 WL
1711098, at *4 (Tex. App.—El Paso June 22, 2006, no pet.).


                                             45
       A defendant is entitled to an instruction on a lesser included offense when

the proof for the offense charged includes the proof necessary to establish the

lesser included offense, and there is some evidence in the record that would

permit a jury rationally to find that if the defendant is guilty, he is guilty only of

the lesser included offense.218 The evidence must establish that if a defendant is

guilty, he is guilty only of the lesser included offense.219


The Texas Penal Code defines resisting arrest as:

              (a) A person commits an offense 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.220

Initially, Rollins denied repeatedly that he resisted arrest. But on cross-

examination and on re-direct examination, Rollins admitted that resisted when

“he got me on the ground the first time.”221

       Rollins has been to prison and has experience with law enforcement.

Rollins testified that he expected to be arrested. Therefore, Rollins understood

what he did when he refused to lie flat and allow the officer to cuff him. Rollins

218
    Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994) (citing Rousseau v. State, 855
S.W.2d 666, 672–73 (Tex. Crim. App. 1993)); Shanklin, 190 S.W.3d at 154.
219
    See Wesbrook, 29 S.W.3d at 113; Arevalo v. State, 943 S.W.2d 887, 889–90 (Tex. Crim.
App. 1997); Lofton, 45 S.W.3d at 649.
220
    TEX. PEN. CODE § 38.03.
221
    R.R.III:136, 142.


                                             46
knowingly raised himself to his feet or to his knees repeatedly even though

Officer Parris repeatedly asked him to get down. Because Rollins continued to

engage in a struggle with Officer Parris and that struggle led to the officer’s

injuries, Rollins was not guilty only of resisting arrest.

      IX.   The defensive theory was inconsistent with requesting the lesser-

            included resisting arrest.

        The defense’s theory of the case was that Rollins lacked any culpable

mental state whatsoever. Before the jury, defense counsel argued repeatedly that

Rollins didn’t intent to injure the officer; he was just concerned for his children;

he had turned his life around; and he admitted to what he had done wrong –

possession of the marijuana. Trial counsel chose not to request lesser-included

offenses upon which the jury could find appellant guilty and which would’ve

conflicted with Rollins testimony. Such a decision, although risky, is sometimes

successful. Such a tactic was not so unreasonable under the facts of the case that

it denied Rollins the effective assistance of counsel.222

        Even if the evidence was sufficient to raise these defenses, which it

wasn’t, merely being entitled to a jury instruction but not requesting it is not the



222
   See Ex Parte White, 160 S.W.3d 46, 55 (Tex. Crim. App. 2004); (requiring a jury to opt
between murder and acquittal, although risky, is sometimes successful); Lynn, 860 S.W.2d at
599; Shanklin, 190 S.W.3d 160-61 (Tex. App.—Houston [1st Dist.] 2005, pet. granted).


                                            47
test for ineffective assistance of counsel.223 Instead, the test is whether it was

objectively unreasonable for counsel not to ask for it.224 Counsel is under no

duty to raise every defense available, so long as counsel presents a defense that

is objectively reasonable or strategically sound. In some cases, it may be a more

effective strategy to focus on a relatively narrow defense, rather than to use a

“shotgun” approach by arguing every defense available.225

      Rollins’ choice to focus on culpable mental state rather than self-defense,

voluntariness, or a lesser-included charge cannot be said to fall below an

unreasonable standard, especially where the evidence to support the other

theories was not strong, and where he had explained to the jury in voir dire and

closing argument that his case was centered on the State’s failure to show intent.

Given this approach, it could have been more effective to focus the jury’s

attention on lack of mental state than to risk confusing the jury with instructions

on other issues that were not well supported by the evidence. Under the




223
    See Dannhaus v. State, 928 S.W.2d 81, 86 (Tex. App.—Houston [14th Dist.] 1996, pet.
ref'd).
224
    See Strickland, 466 U.S. at 686, 104 S.Ct. at 2063.
225
     Dannhaus, 928 S.W.2d at 85-87.


                                          48
circumstances, a strategy of “damage control” was not objectively

unreasonable.226

      X.      Even if….the outcome still wouldn’t changed.

           Even if a review finds trial counsel erred not to request a self-defense

instruction, a voluntary instruction, and a lesser-included offense of resisting

arrest, the outcome still wouldn’t have changed. The jury saw Rollins engage in

the struggle with Officer Parris on the video. The jury saw on the video how

Rollins continued to refuse to obey Officer Parris’ request to get out of the car

and to lie down on the ground. The jury saw on the video how Rollins was

bigger that Officer Parris. The jury saw on the video how Officer Parris initially

waited for Rollins to comply. The jury heard the testimony from Officer Parris

about his knee injuries and numerous surgeries. The jury heard the testimony

from Rollins and how he knew he was resisting but he didn’t mean to hurt

Officer Parris. The jury saw the melee and the resulting injuries. The verdict

would’ve been the same.

           Rollins hasn’t proved either prong of Strickland for issues five, seven, and

eight. These issues should be overruled.



226
   See Hathorn v. State, 848 S.W.2d 101, 118 (Tex.Crim.App.1992) (trying to get jury to find
defendant guilty of lesser offense can be explained as a sound trial tactic), cert. denied, 509
U.S. 932, 113 S.Ct. 3062, 125 L.Ed.2d 744 (1993); Dannhaus, 928 S.W.2d at 81.


                                              49
                                       SIXTH ISSUE

       Defense counsel is not ineffective for failing to object to admissible
       evidence.

       How was Rollins’ trial counsel ineffective for not objecting at trial
       when the drugs found on the scene were properly admitted to show
       motive and to rebut the defensive theory that Rollins wasn’t
       struggling with the officer, he was just trying to make sure his kids
       were safe?


                                   STATE’S RESPONSE

           In Rollins’ sixth issue, he claims his trial counsel was ineffective for not

objecting to the admission of the drugs found near Rollins’ car. Rollins cannot

prove either prong of the Strickland test. First, the lack of an objection to the drugs

isn’t tantamount to ineffective assistance because the evidence was admissible.

Second, even if counsel’s actions were below the objective standard of

reasonableness, the record shows that the outcome of the proceedings wouldn’t

have been different.

      I.      Admission of evidence standard of review

           A trial court’s evidentiary rulings are reviewed for an abuse of

discretion.227 A trial court’s ruling on evidentiary matters will not be reversed



227
      De La Paz v. State, 279 S. W.3d 336, 343 (Tex. Crim. App. 2009).


                                               50
unless the decision was outside the zone of reasonable disagreement.228

      II.     Extraneous evidence

            Rule 404(b) of the Texas Rules of Evidence prohibits the admission of

extraneous offenses to prove conformity or propensity to commit bad acts, but

allows admission to show “motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”229 Exclusion of

evidence under Rule 404(b) is proper when the evidence does not have any

relevance apart from character conformity.230 Even if the evidence is permissible

under Rule 404(b), Rule 403 may preclude its admission if its probative value is

substantially outweighed by the danger of prejudice.231 The test for admission of

extraneous offenses requires a showing that the offense is relevant to a material

issue in the case and that the relevance outweighs the prejudicial effect.232 In

addition, rebuttal of a defensive theory is also one of the permissible purposes

for which evidence may be admitted under Rule 404(b).233


228
    Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007); Schiele v. State, 01-13-
00299-CR, 2015 WL 730482, at *6 (Tex. App.—Houston [1st Dist.] pet. ref’d, 2015).
229
    TEX. R. EVID. 404(b).
230
    Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).
231
    TEX. R. EVID. 403; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003); Hensley
v. State, 01-14-00615-CR, 2015 WL 6081798, at *5 (Tex. App.—Houston [1st Dist.] Oct. 15,
2015, no. pet. h.).
232
    Cantrell v. State, 731 S.W.2d 84, 89 (Tex. Crim. App. 1987); see also TEX. R. EVID. 403,
404(b)(2).
233
    Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Moses, 105 S.W.3d at
622; Schiele, 2015 WL 730482, at *6.


                                             51
         Under a Rule 403 analysis, the court considers: (1) the inherent probative

force of the proffered item of evidence along with (2) the proponent’s need for

that evidence against (3) any tendency of the evidence to suggest decision on an

improper basis, (4) any tendency of the evidence to confuse or distract the jury

from the main issues, (5) any tendency of the evidence to be given undue weight

by a jury that has not been equipped to evaluate the probative force of the

evidence, and (6) the likelihood that presentation of the evidence will consume

an inordinate amount of time or merely repeat evidence already admitted.234

      III.   The drugs found at the scene were properly admitted into evidence.

      Rollins’ counsel wasn’t ineffective for failing to object to the drugs found on

the scene because they were admissible evidence.235 Here, the State offered the

challenged evidence to prove that Rollins had a motive to and did struggle with

Officer Parris intentionally.236 Rollins motive for resisting was that he didn’t

want Officer Parris to search him until he disposed of the cocaine and meth.

Rollins repeatedly denied that the drugs found at the scene were his.237 Rollins

didn’t want to incur another felony drug charge. Rollins testified that he had


234
    Gigliobianco v. State, 210 S.W.3d 637, 641—42 (Tex. Crim. App. 2006).
235
    See, e.g., Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App.2004) (defense counsel is not
ineffective for failing to object to admissible evidence); Ex parte Jimenez, 364 S.W.3d 866,
887 (Tex. Crim. App. 2012).
236
    See Schiele, 2015 WL 730482, at *6.
237
    R.R.III:138-139.


                                            52
previous felony convictions of delivery of a control substance and that he spent

time in prison.

       Applying a Rule 403 analysis, the first two factors—the probative value

of the evidence and the State’s need for the evidence—weigh strongly in favor

of admissibility.238 The evidence was probative and necessary to show motive

and contradict Rollins’ testimony that he just wanted his kids to be safe.239

       Under the third factor of the unfair prejudice, that is, the tendency of the

evidence to suggest decision on an improper basis, the evidence may have had a

negative impact with the jury.240 But the risk of unfair prejudice was minimized

because the jury heard other evidence admitted by Rollins that he was in

possession of marijuana and had previously been convicted twice of the felony

intent to deliver a controlled substance.241 This factor weighs in favor of

admissibility.

       In considering the fourth and sixth factors, the tendency of the evidence to

confuse or distract the jury from the main issues and the time required to

develop the evidence weighs in favor of admissibility.242 “Evidence that

consumes an inordinate amount of time to present or answer, for example, might

238
    Gigliobianco, 210 S.W.3d at 641—42; Schiele, 2015 WL 730482, at *6.
239
    Id.
240
    Id.
241
    Id.
242
    Gigliobianco, 210 S.W.3d at 641.


                                           53
tend to confuse or distract the jury from the main issues.”243 Here, the amount of

time the State devoted to developing the evidence was not insignificant. The

State used 2 witnesses to introduce the drugs that were found on the scene. Their

testimony was not lengthy and only spanned approximately 30 pages out of a

total of 167 pages of trial record.244

        Under the fifth factor, any tendency of the evidence to be given undue

weight by a jury that has not been properly equipped to evaluate the probative

force of the evidence is weighed.245 Here, the charge contained a limiting

instruction.246 Absent evidence to the contrary, a jury is presumed to follow the

instruction set forth in the court’s charge.247 This factor weighs in favor of

admissibility.

        The Gigliobianco factors weigh in favor of admissibility; therefore, the

trial court did not abuse its discretion in admitting the following challenged

evidence: the drugs found on the scene.248

      IV.   Rollins’ cannot show that the outcome of the trial would’ve been

            different if trial counsel had objected to the evidence.

243
    Casey, 215 S.W.3d at 870.
244
    R.R.I:4.
245
    Gigliobianco, 210 S.W.3d at 641.
246
    C.R. 59.
247
    Herrera v. State, 11 S.W.3d 412, 415—16 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d); Schiele, 01-13-00299-CR, 2015 WL 730482, at *8.
248
    See Schiele, 01-13-00299-CR, 2015 WL 730482, at *8.


                                          54
       Even     assuming      arguendo      the   extraneous-offense       evidence     was

inadmissible, trial counsel’s failure to object would not necessarily amount to

ineffective assistance in the absence of any evidence of trial counsel’s strategy.

Even though trial counsel included the exclusion of the found contraband in her

motion in limine, the reviewing court still may not speculate the reasonableness

of trial counsel’s strategy in not objecting to the evidence at trial.249 Rollins’

limine motion was denied so trial counsel would’ve expected that any objection

at trial would’ve been sustained.250

       Even if it’s presume from a silent record that trial counsel’s failure to

object or obtain a limiting instruction fell below an objective standard of

reasonableness, Rollins still cannot prevail on his ineffective assistance claim

because under the second prong of Strickland, he hasn’t shown that the outcome

of his trial would have been different if trial counsel had objected.251

       Improper admission of evidence is not reversible error if the same or




249
    See Ex parte Varelas, 45 S.W.3d 627, 632 (Tex. Crim. App. 2001) (reviewing court may
not speculate as to why trial counsel failed to request limiting instruction when record is
silent, even if court has difficulty understanding counsel’s inaction).
250
    R.R.II:6; Cf. Thompson, 9 S.W.3d at 808 (holding that counsel did not perform deficiently
by failing to object to inadmissible hearsay because it was “possible, given the artful
questions employed by the prosecutor, appellant's counsel at that moment may have
reasonably decided that the testimony was not inadmissible and an objection was not
appropriate”).
251
    See Strickland, 466 U.S. at 688—92.


                                             55
similar evidence is admitted without objection at another point in the trial.252

After examining the record, there is evidence that the alleged improper

admission of the challenged evidence did not influence the jury verdict, or had

but a slight effect, because the same or similar evidence was admitted without

objection elsewhere at trial.253 The same or similar evidence included the

testimony proffered by Rollins that he gave marijuana to Officer Parris before

the struggle and the proffered testimony by Rollins that he had multiple felony

drug convictions. The drugs on the scene, the marijuana, and the drug

convictions would’ve been viewed by the jury as same or similar drug related

offenses.

      Rollins has failed to show that his counsel’s conduct caused prejudice—

that there is a probability sufficient to undermine confidence in the outcome that

but for counsel’s errors, the result of the proceeding would have been

different.254 Therefore, Rollins has failed to meet either Strickland prong and

issue six should be denied.

      All of Rollins’ issues should be overruled and his conviction upheld.


252
    See Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991); Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999).
253
    Chapman v. State, 150 S.W.3d 809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref’d).
254
    See Pena v. State, 14-13-00102-CR, 2014 WL 2767398, at *5 (Tex. App.—Houston [14th
Dist.] pet. ref’d, 2014).


                                         56
                         CONCLUSION AND PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State prays that the

judgment of the Trial Court be affirmed in all respects.

                                        Respectfully submitted,

                                        JACK ROADY
                                        CRIMINAL DISTRICT ATTORNEY
                                        GALVESTON COUNTY, TEXAS


                                        /s/ Allison Lindblade
                                        ALLISON LINDBLADE
                                        Assistant Criminal District Attorney
                                        State Bar Number 24062850
                                        600 59th Street, Suite 1001
                                        Galveston, Texas 77551
                                        Tel (409)766-2452/Fax (409)765-3261
                                        allison.lindblade@co.galveston.tx.us




                                         57
                           CERTIFICATE OF SERVICE

         The undersigned Attorney for the State certifies a copy of the foregoing

 brief was sent via email, eFile service, or certified mail, return receipt requested, to

 Kevin Stryker, 2600 South Shore Blvd., Ste. 300, League City, Texas 77573,

 styklerlawfirm@gmail.com, on November 16, 2015.

                                             /s/ Allison Lindblade
                                          ALLISON LINDBLADE
                                          Assistant Criminal District Attorney
                                          Galveston County, Texas




                       CERTIFICATE OF COMPLIANCE

      The undersigned Attorney for the State certifies this brief complies with Tex.

R. App. Proc. 9.4(i)(3), is a computer generated document, and consists of 13,227

words.


                                         /s/ Allison Lindblade
                                         ALLISON LINDBLADE
                                         Assistant Criminal District Attorney
                                         Galveston County, Texas




                                           58
