      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-13-00479-CR



                                    Ex parte Richard Asa Todd




     FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY, TEXAS
          NO. 11-07348-3, HONORABLE DOUG ARNOLD, JUDGE PRESIDING



                             MEMORANDUM OPINION


                A jury found appellant, Richard Asa Todd (Richard),1 guilty of assault causing bodily

injury. See Tex. Penal Code § 22.01(a)(1). Richard filed an application for writ of habeas corpus

with the county court at law in which he was tried, seeking to have the conviction set aside on the

grounds of ineffective assistance of counsel due to his trial attorney’s failure to request a jury charge

instruction on the defense of consent. See Tex. Code Crim. Proc. art. 11.072. The county court at

law denied Richard’s application, and Richard appealed to this Court. For the reasons that follow,

we affirm the county court at law’s denial of relief.


                                          BACKGROUND

                In the fall of 2011, Richard’s wife, his siblings, and their spouses conducted a series

of family meetings in order to settle Richard’s deceased father’s estate. The process was contentious,




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         This case involves an altercation between appellant and his brother. Because they share
the same surname, we refer to them by their first names in this opinion.
and Richard suspected that his brother, Thomas Todd (Tim), was intentionally impeding progress.

One such meeting took place at their deceased father’s home on October 2, 2011. Richard arrived

while the meeting was already in progress. He did not enter the house, and Tim joined him outside.

The two exchanged heated words before the encounter escalated into a fistfight. Nobody other than

Richard and Tim were present for the beginning of the fight. After the fight, their sister called the

police who arrested Richard.

               At trial, Tim testified that Richard told him that he wanted to break every bone in his

body shortly before they fought. Tim alleged that he responded by positioning himself very close

to Richard and saying something along the lines of “let’s see what you’ve got.” According to Tim’s

testimony, Richard then punched him numerous times and may have head-butted him before he was

able to end the fight by pinning Richard to the ground.

               At trial, Richard claimed that he never threatened to break Tim’s bones. Instead, he

said that the only way that Tim and Tim’s wife could move any slower in settling the estate was if

they had broken bones. According to Richard’s testimony, Tim then ran toward him, grabbed him

by the shoulders, and dared Richard to hit him so that he could put Richard in jail. Richard claimed

that he was forced to strike Tim in his struggle to free himself from Tim’s grasp.

               At his trial for assault, Richard’s attorney argued that Richard was merely defending

himself from Tim and obtained a jury instruction on self-defense. See Tex. Penal Code § 9.31

(setting forth justification defense of self-defense). Richard’s trial counsel did not request a jury

instruction on the defense of consent. See id. § 22.06 (establishing consent as defense to assaultive

conduct). The jury returned a verdict convicting Richard of assault causing bodily injury. The



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parties then reached a plea agreement regarding sentencing, which the county court at law accepted.

Pursuant to that plea agreement, Richard waived his right to appeal.

                Richard moved for a new trial, arguing that Richard’s trial counsel’s failure to seek

a jury instruction on the defense of consent constituted ineffective assistance of counsel. Attached

to Richard’s motion for new trial was Richard’s trial counsel’s affidavit, asserting that the failure to

raise the defense of consent was an oversight rather than a strategic decision. The affidavit was

admitted at the hearing on the motion for new trial, which the county court at law denied.

                Richard then filed an application for writ of habeas corpus under article 11.072 of the

Texas Code of Criminal Procedure, again alleging ineffective assistance of counsel and again

attaching Richard’s trial counsel’s affidavit asserting that his failure to raise the defense of consent

was not strategic. The county court at law denied Richard’s application. The order denying habeas

relief contains conclusions of law that include the following:


        •       defendants alleging ineffective assistance of counsel must show deficient
                performance by counsel;

        •       defendants alleging ineffective assistance of counsel must also show a
                reasonable probability that the outcome of the trial would have been different
                but for their counsel’s errors;

        •       Richard’s trial counsel “was not deficient in failing to request a jury
                instruction on the defensive issue of consent,”; and

        •       any “such deficiency did not result in prejudice to [Richard].”


Richard appeals the county court at law’s denial of his application for writ of habeas corpus.




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                                              ANALYSIS

Legal Standards

                In reviewing a trial court’s decision to grant or deny habeas corpus relief, we view

the facts in the light most favorable to the trial court’s ruling and uphold that ruling absent an abuse

of discretion. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). A trial court abuses

its discretion if it acts without reference to any guiding rules or principles or when it acts arbitrarily

or unreasonably. Ex parte Wolf, 296 S.W.3d 160, 166 (Tex. App.—Houston [14th Dist.] 2009, pet.

ref’d). The trial court’s findings of fact in a habeas proceeding deserve near total deference, if they

are supported by the record. Ex parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011) (citing

Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). “We also afford that same level of

deference to a trial court’s ruling on ‘application of law to fact questions,’ also known as ‘mixed

questions of law and fact,’ if the resolution of those ultimate questions turns on an evaluation of

credibility and demeanor.” Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003) (per

curiam) (quoting Guzman, 955 S.W.2d at 89), overruled in part on other grounds by Ex parte Lewis,

219 S.W.3d 335, 371 (Tex. Crim. App. 2007).2




        2
          It is appropriate for the appellate court to review the trial court’s application of the law to
the facts de novo if the decision does not turn on witness credibility or demeanor and the trial court
is not in an appreciably better position to rule than the appellate court. Ex parte Martin,
6 S.W.3d 524, 526 (Tex. Crim. App. 1999). De novo review is not appropriate in the present case,
as the relevant questions do turn on the credibility of testimony and of Richard’s trial counsel’s
affidavit. See Ex parte Thompson v. State, 153 S.W.3d 416, 425 (Tex. Crim. App. 2005) (“[A]
reviewing court will defer to factual findings of the trial judge even when the evidence is submitted
by affidavit.”) (citing Manzi v. State, 88 S.W.3d 240, 242-44 (Tex. Crim. App. 2002)).

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                 To establish ineffective assistance of counsel, an appellant or habeas applicant must

demonstrate by a preponderance of the evidence (1) deficient performance by counsel and

(2) prejudice.     Strickland v. Washington, 466 U.S. 668, 687 (1984); Hernandez v. State,

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986) (adopting Strickland test). To satisfy the first part

of the Strickland test, the appellant must demonstrate that counsel’s performance fell below an

objective standard of reasonableness under the prevailing professional norms. Strickland, 466 U.S.

at 687-88. There is a strong presumption that counsel’s performance was not deficient. Id. at 689.

To satisfy the second part of the Strickland test, the appellant must show that there is a reasonable

probability that the result of the trial would have been different if counsel’s performance was not

deficient. Id. at 694. The probability must be strong enough to undermine confidence in the

outcome of the trial. Id.


Parties’ Contentions

                 On appeal, Richard argues that his testimony raised the defense of consent, giving

him an absolute right to a jury instruction on that defense regardless of the trial court’s opinion of

its merit. According to Richard, his trial counsel’s failure to request the instruction constitutes

deficient performance, especially in light of Richard’s trial counsel’s affidavit disavowing any

strategic reason for not raising the defense. Richard further argues that he was prejudiced because

a jury would likely have concluded that Tim consented to the fight. He cites to Vasquez v. State in

support of these contentions, in which counsel’s failure to request an instruction on the defensive

issue of necessity was sufficient to establish both deficient performance and prejudice because the

evidence raised the necessity defense, there was no strategic reason not to request the instruction,

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and the jury had no chance to consider the defensive issue. 830 S.W.2d 948, 950-51 (Tex. Crim.

App. 1992).

                The State argues that the county court at law correctly found that Richard’s trial

counsel’s performance was not deficient and that Richard suffered no prejudice. According to the

State, the evidence did not support a consent instruction because Tim’s statements could not possibly

be construed as permission to assault him. The State also argues that Richard’s threat to break every

bone in Tim’s body negates the defense of consent. See Tex. Penal Code § 22.06 (consent is defense

to assault “if the conduct did not threaten or inflict serious bodily injury.”). Additionally, the State

contends that there was a strategic reason not to request the consent instruction because it would

have undermined the much stronger defense of self-defense. The State also maintains that Richard

suffered no prejudice because a consent instruction would not likely have changed the outcome of

the trial.


Deficient Performance

                The county court at law did not abuse its discretion by concluding that Richard’s trial

counsel “was not deficient in failing to request a jury instruction on the defensive issue of consent”

and denying Richard’s application. According to Richard’s trial counsel’s affidavit, he had no

strategic reason to forgo the consent defense and believes that his performance fell below the

standard of prevailing professional norms. In his own words, Richard’s trial counsel “simply

dropped the ball by failing to request such an instruction.” However, even considering the affidavit,

we find that Richard’s trial counsel’s performance passes muster under Strickland, which is an

objective test in which “the defendant must overcome the presumption that, under the circumstances,


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the challenged action ‘might be considered sound trial strategy.”’ Strickland, 466 U.S. at 688-89

(quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Richard’s trial counsel’s actions might,

objectively, be considered sound trial strategy because (1) the defense of consent was unavailable

and (2) by raising the defense of consent, Richard’s trial counsel could have undermined the claim

of self-defense.

                The defense of consent would not have applied in this case. If Richard’s trial counsel

had requested the consent instruction and the evidence supported that instruction, the county court

at law would have been required to include it. Warren v. State, 565 S.W.2d 931, 933 (Tex. Crim.

App. 1978) (“The trial court is required when properly requested to charge on every defensive issue

raised by the evidence.”). Richard’s own testimony alleging that Tim consented to the fight might

have been sufficient if he had not threatened Tim with serious bodily injury. Granger v. State,

3 S.W.3d 36, 38 (Tex. Crim. App. 1999) (“[A]n accused has the right to an instruction on any

defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or

contradicted, and regardless of what the trial court may or may not think about the credibility of the

evidence.”); Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991) (op. on reh’g) (“It is

equally well-settled that an accused is thus entitled to that instruction whether the issue is raised by

a defendant’s testimony alone or otherwise.”); but see Tex. Penal Code § 22.06(a)(1) (defense of

consent not available if defendant threatened or inflicted serious bodily injury). However, the county

court at law made an explicit conclusion of law that “the defense of consent did not apply in this case

given applicant’s threat, express or implied, prior to the assault, to ‘break every bone’ in Tim’s body.

The statement manifested a threat to commit serious bodily injury to Tim.” The county court at law



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had conflicting testimony before it regarding what Richard said to Tim, but both versions of this

story include a reference to broken bones that could constitute an implied threat, if not an express

threat. We must afford appropriate deference to the county court at law as a trial court deciding a

mixed question of law and fact involving credibility and demeanor. See Ex parte Peterson,

117 S.W.3d at 819. The county court at law did not abuse its discretion by denying relief based

solely on Richard’s trial counsel’s failure to pursue an unavailable defense.

               Furthermore, there was an objectively good reason for Richard’s trial counsel not to

request a jury charge instruction on the consent defense: it could have undermined the stronger

defense of self-defense. The county court at law made the specific finding of fact that “[d]uring his

closing argument to the jury, [Richard’s trial counsel] focused on self-defense . . . . Specifically,

[Richard’s trial counsel] argued that Tim’s alleged statement to [Richard] immediately prior to the

assault, ‘Come on, hit me,’ manifested Tim’s intent to assault [Richard] if [Richard] did not strike

him first.” We afford this finding near total deference. See id. The county court at law also made

the following conclusion of law:


       In the context of the overall defensive theory of the case, as [Richard’s trial counsel]
       presented at trial, the defense of consent would have been inconsistent with the
       defense actually pursued, self-defense. See Okonkwo v. State, No. PD-0207-12 (Tex.
       Crim. App. 5/15/13). The prime evidence now asserted by applicant supporting the
       defense of consent, consisting of Tim’s alleged statements to [Richard] preceding the
       assault, ‘Come on, hit me,’ was actually utilized by [Richard’s trial counsel] during
       closing argument as evidence underlying the claims of self-defense.


Again, we defer to the county court at law’s determination on this mixed question of law and fact.

See id. The circumstances of Richard’s case are, therefore, distinguishable from those in Vasquez,



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in which the appellate court specifically found that “appellant had nothing to lose by requesting a

defensive instruction.” 830 S.W.2d at 951. It was objectively reasonable for Richard’s trial counsel

to forgo the defensive issue of consent in order to protect the stronger defense of self-defense.

               Objectively, there were good reasons why Richard’s trial counsel should not have

requested the consent instruction. In light of these reasons and the significant deference due to the

county court at law’s determinations, we find that the county court at law’s determination that

Richard’s trial counsel’s performance was not deficient is supported by the record.


Prejudice

               Having determined that the record supports the county court at law’s conclusion that

Richard’s trial counsel’s performance was not deficient, we need not address its conclusion that

Richard was not prejudiced by his trial counsel’s failure to request a jury charge instruction on the

consent defense. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of either

deficient performance or sufficient prejudice defeats the ineffectiveness claim); see also Tex. R.

App. P. 47.1 (appellate courts must hand down opinions that are as brief as practicable but that

address every issue raised and necessary to disposition of appeals). Because the record supports the

county court at law’s ultimate implied conclusion that Richard failed to demonstrate ineffective

assistance of counsel, it did not abuse its discretion in denying Richard’s application for writ of

habeas corpus. Therefore, we overrule Richard’s sole point of error.


                                         CONCLUSION
               Concluding that the county court at law did not abuse its discretion in denying relief,

we affirm its order denying Richard’s application for writ of habeas corpus.

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                                            _________________________________________

                                           Cindy Olson Bourland, Justice


Before Chief Justice Rose, Justices Pemberton and Bourland


Affirmed


Filed: August 19, 2015


Do Not Publish




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