                                 MEMORANDUM OPINION
                                        No. 04-10-00414-CR

                                    Ronald Buddy MAHAVIER,
                                            Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 81st Judicial District Court, Wilson County, Texas
                                  Trial Court No. 09-02-016-CRW
                            Honorable Donna S. Rayes, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: June 1, 2011

AFFIRMED

           This appeal raises issues about the defensive charge of self-defense against multiple

assailants. Ronald Buddy Mahavier stabbed and killed a man during an altercation at a bar and

was convicted by a jury of murder. Although the trial court charged the jury on self-defense as

to one assailant (the decedent), a jury charge on self-defense against multiple assailants was

neither requested nor given. On appeal, Mahavier contends: (1) his due process right to a fair

and impartial trial was violated because the jury charge did not contain an instruction on self-
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defense against multiple assailants; and (2) his trial counsel rendered ineffective assistance of

counsel by failing to request such a defensive instruction. Because the issues in this appeal

involve the application of well-settled principles of law, we affirm the trial court’s judgment in

this memorandum opinion.

                                      DUE PROCESS RIGHTS

       Mahavier contends that he “was denied a due process right to a fair and impartial trial by

his trial counsel’s failure to either request or object to the omission of a multiple assailant self-

defense instruction.” Mahavier asserts that he “had an absolute right to have the jury consider

the issue [of] self-defense [against] multiple assailants and the denial of that right resulted in a

denial of due process.”

       In his brief, Mahavier recognizes that an “absolute right” is distinct from a “forfeitable

right that must be requested,” citing Marin v. State, 851 S.W.2d 275, 278-80 (Tex. Crim. App.

1993). Mahavier cites no authority, however, to support his contention that a jury charge

containing an instruction on self-defense against multiple assailants is an “absolute right.”

Moreover, such a contention is contrary to the Texas Court of Criminal Appeals’s holding that a

trial court has no duty to sua sponte instruct the jury on unrequested defensive issues. See Posey

v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). If the right to have such a defensive issue

submitted in a jury charge were an “absolute right,” it would follow that the trial court would

have a duty to include the defensive issue in the charge. As the Texas Court of Criminal Appeals

has stated, however, “Under Posey, a party can forfeit the right to complain about the omission

of a defensive issue because the defensive issue must be requested before the trial court has a

duty to place it in the charge.” Williams v. State, 273 S.W.3d 200, 223 (Tex. Crim. App. 2008).




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Because the right to a defensive instruction is a “forfeitable” right, see id., Mahavier’s due

process complaint is overruled.

                             INEFFECTIVE ASSISTANCE OF COUNSEL

       Mahavier also contends that trial counsel was ineffective in failing to request an

instruction on self-defense against multiple assailants. Mahavier acknowledges that the jury

charge contained a self-defense charge with respect to the actions of the victim, but notes that “a

charge which is confined only to the right of self-defense against the deceased is too restrictive if

there is evidence that more than one person attacked the defendant.” Frank v. State, 688 S.W.2d

863, 868 (Tex. Crim. App. 1985).

       Ineffective assistance of counsel claims require a showing of both deficient performance

and prejudice. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). There is a

strong presumption that trial counsel’s conduct fell within the wide range of professional

assistance. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). An ineffective

assistance claim must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at

813. “Direct appeal is usually an inadequate vehicle for raising such a claim because the record

is generally undeveloped.” Goodspeed, 187 S.W.3d at 392. “This is true with regard to the

question of deficient performance — in which counsel’s conduct is reviewed with great

deference, without the distorting effects of hindsight — where counsel’s reasons for failing to do

something do not appear in the record.” Id. “If counsel’s reasons for his conduct do not appear

in the record and there is at least the possibility that the conduct could have been legitimate trial

strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim

on direct appeal.” Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002). Trial counsel



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ordinarily should be afforded an opportunity to explain his or her actions before being denounced

as ineffective. Goodspeed, 187 S.W.3d at 392.

       In holding that a trial court is not required to sua sponte instruct a jury on defensive

issues, the Texas Court of Criminal Appeals recognized “which defensive issues to request are

strategic decisions generally left to the lawyer and the client.” Posey, 966 S.W.2d at 63. “An

appellate court will not speculate about the reasons underlying defense counsel’s decisions.”

Stults v. State, 23 S.W.3d 198, 208 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d). The

instant case is not one in which trial counsel wholly failed to request any defensive instruction.

As noted, counsel successfully obtained a self-defense instruction as to the victim’s actions. We

further note that the victim, unlike the other bar patrons, did not directly witness the initial

altercation, and provocation and retreat are issues that must be considered in requesting self-

defense instructions where deadly force is used. See Jaynes v. State, 216 S.W.3d 839, 854 (Tex.

App.—Corpus Christi 2006, no pet.); Rodriguez v. State, 212 S.W.3d 819, 821 (Tex. App.—

Austin 2006, no pet.); TEX. PENAL CODE ANN. §§ 9.31, 9.32 (West Supp. 2010). Because the

record is silent regarding the reasons trial counsel may have elected not to request a self-defense

instruction against multiple assailants, the presumption of reasonable effective assistance has not

been rebutted. See Thompson, 9 S.W.3d at 813. Accordingly, Mahavier’s ineffective assistance

of counsel complaints are overruled.

       Recourse for Mahavier’s ineffective assistance of counsel claim is, however, still

available. See Thompson, 9 S.W.3d at 814. Mahavier “can resubmit his claim via an application

for writ of habeas corpus.” Id. “This would provide an opportunity to conduct a dedicated

hearing to consider the facts, circumstances, and rationale behind counsel’s actions at that




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juncture of trial.” Id. at 814-15. “Specifically, a hearing would allow trial counsel himself to

explain why” he did not request a self-defense instruction against multiple assailants. Id. at 815.

                                          CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Catherine Stone, Chief Justice


DO NOT PUBLISH




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