                             NUMBER 13-17-00443-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

TYLER SCHULTZ,                                                                Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.



                        MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria

       Tyler Schultz appeals his conviction for murder, a first-degree felony. See TEX.

PENAL CODE ANN § 19.02.        On appeal, Schultz contends that his trial counsel was

ineffective by failing to request a jury charge instruction at punishment on sudden passion.

We affirm.
                                   I.     BACKGROUND

       On November 17, 2016, Jeremiah Bates was fatally shot by Schultz in Corpus

Christi, Texas. According to the indictment, Schultz, “with intent to cause serious bodily

injury to an individual, namely, Jeremiah Bates, commit[ted] an act clearly dangerous to

human life, to-wit: firing a firearm at Jeremiah Bates, that caused the death of said

Jeremiah Bates . . . .” Schultz testified that, on the morning of November 17, 2016, he

was walking from his apartment to a clinic. After walking about four miles, he came upon

Bates, a mentally-ill homeless man, who was sitting on the sidewalk. Schultz saw that

Bates had a cigarette pack on him, and Schultz asked Bates for a cigarette. This

prompted Bates to yell at Schultz. According to Schultz, he could not comprehend

anything that Bates was yelling at him. Schultz walked away and sat down next to a

church across the street from where Bates was yelling. At this point, Bates was in the

middle of the street, with his back to oncoming traffic, and yelling at Schultz. During this

confrontation, Schultz stated that Bates exposed his penis twice.

       The next few moments were disputed at trial. Schultz alleged that Bates started

approaching him and that he became afraid that Bates was going to sexually assault him.

However, an eyewitness testified that, though Bates took a few steps toward Schultz, it

did not look like Bates was trying to make physical contact with him. Another witness

testified that she did not believe that Bates was being aggressive towards Schultz

because Bates was yelling at “everything and everybody” and was just acting “crazy.”

Schultz testified that Bates also screamed and yelled at a bus that passed by the

intersection.




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       Schultz testified that when Bates allegedly began to approach him, he got up and

fired two warning shots by Bates’s feet. According to Schultz and the witnesses, these

shots did not faze Bates or seem to scare him off. Witness testimony stated that, after

the first shots, Schultz started walking toward Bates and shot directly at him—two bullets

hit Bates, and he fell to the ground. According to witness testimony, Bates had his arms

up when he was shot. Schultz immediately fled from the scene, hid the gun magazine

behind an apartment building, and threw away the sweatshirt he had been wearing. A

police officer apprehended Schultz four blocks from where he shot Bates. Schultz initially

denied any involvement in the shooting.       The gun used to shoot Bates was never

recovered and Schultz claimed that he did not know what happened to the gun. In an

interview with a detective, Schultz confessed to shooting Bates. Bates died from his

injuries in the hospital two days after he was shot.

       At the guilt/innocence phase of trial, the jury charge included the offense of murder

and the lesser degree offense of manslaughter, as well as an instruction on self-defense.

The jury found Schultz guilty of murder, a first-degree felony, and assessed punishment

at twenty-five years’ confinement. This appeal followed.

                         II.    INEFFECTIVE ASSISTANCE OF COUNSEL

       By his sole issue, Schultz argues that he received ineffective assistance of

counsel. Specifically, Schultz argues that his defense counsel was ineffective for failing

to request an instruction on sudden passion during the punishment phase of the trial.

A.     Applicable Law and Standard of Review

       Individuals in a criminal prosecution are guaranteed the right to assistance of

counsel by the Sixth Amendment to the United States Constitution and § 10 of Article 1



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of the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Lopez v.

State, 343 S.W.3d 137,142 (Tex. Crim. App. 2011). This right encompasses not merely

the presence of a lawyer, but the effective assistance of that lawyer. Id. Nevertheless,

this right does not mean perfect counsel, but rather the right to objectively reasonable

representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (“The

right to effective assistance of counsel merely ensures the right to reasonably effective

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

       The United States Supreme Court and the Texas Court of Criminal Appeals have

adopted a two-pronged test to determine whether a criminal defendant received

ineffective assistance of counsel. See, Strickland v. Washington, 466 U.S. 668, 687

(1984); Hernandez v. State, 726 S.W.2d 53, 54–55 (Tex. Crim. App. 1986); Munoz v.

State, 24 S.W.3d 427, 433 (Tex. App.—Corpus Christi–Edinburg 2000, no pet.). To

establish that trial counsel was ineffective, an appellant must show that (1) his attorney’s

representation fell below an objective standard of reasonableness under prevailing

professional norms and (2) there is a reasonable probability that, but for his attorney’s

errors, the result of the proceeding would have been different. Strickland, 466 U.S. at

687; Ex parte Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011); Davis v. State,

278 S.W.3d 346, 352 (Tex. Crim. App. 2009). A reasonable probability is one sufficient

to undermine confidence in the outcome of the trial. Thompson v. State, 9 S.W.3d 808,

812 (Tex. Crim. App. 1999).

       The appellant has the burden to prove ineffective assistance of counsel by a

preponderance of the evidence. Thompson, 9 S.W.3d at 813. This court will review

counsel’s effectiveness not by isolated acts or omissions, but by the totality of the



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representation. Id. To demonstrate that counsel was ineffective, the appellant must

overcome the strong presumption that the complained-of action “might be considered

sound trial strategy.” Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91,

100–101 (1955)). Unless the record shows that counsel’s conduct was not the product

of a strategic decision, “a reviewing court should presume that trial counsel’s performance

was constitutionally adequate unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it.” State v. Morales, 253 S.W.3d 686, 696–

97 (Tex. Crim. App. 2008) (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005)). The Texas Court of Criminal Appeals has noted that, in most cases, a silent

record that does not clarify the reasons for counsel’s actions will not overcome the strong

presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110–11

(Tex. Crim. App. 2003).

       “At the punishment stage of a [murder] trial, the defendant may raise the issue as

to whether he caused the death under the immediate influence of sudden passion arising

from an adequate cause.” TEX. PENAL CODE ANN. § 19.02(d). The judge shall deliver to

the jury “a written charge distinctly setting forth the law applicable to the case.” TEX. CODE

CRIM. PROC. ANN. art. 36.14. “Defensive issues are not law applicable to the case under

[Texas] Code of Criminal Procedure [Article] 36.14 unless and until the defendant raises

the issue by a timely objection or request.” Newkirk v. State, 506 S.W.3d 188, 191 (Tex.

App.—Texarkana 2016, no pet.).

B.     Analysis

       1.     First Strickland Prong




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       Schultz complains that his defense counsel failed to request an instruction on

sudden passion in the punishment charge. He contends that in light of the evidence

brought forth at trial, he was entitled to the instruction. Schultz did not file a motion for

new trial and raised his ineffective assistance claim for the first time on direct appeal.

Therefore, the record is silent as to why Schultz’s trial counsel chose to not request a

sudden passion instruction in the punishment charge.

       The first prong of Strickland requires Schultz to show that counsel’s performance

was deficient. Strickland, 466 U.S. at 687. This is demonstrated by a showing that the

errors made by counsel were so serious that counsel was not functioning as the counsel

guaranteed by the Sixth Amendment to the United States Constitution. Id. However,

Schultz has not demonstrated how the actions by counsel constituted an error so serious

as to offend the Sixth Amendment. Schultz contends that there cannot be any trial

strategy for failing to request a sudden passion instruction. The record in this case is

silent as to the reason why Schultz’s trial counsel failed to request a sudden passion

instruction at the punishment stage of trial. The record on direct appeal is usually

insufficient to adequately reflect the failings of trial counsel. Thompson, 9 S.W.3d at 814–

5. The Texas Court of Criminal Appeals ruled in Thompson that when the record provides

no apparent explanation or motive behind counsel’s actions, the appellate court should

be particularly hesitant to declare counsel ineffective based upon a “single alleged

miscalculation during what amounts to otherwise satisfactory representation.” Id. at 814.

Due to the undeveloped record, and without any explanation to the motives behind

counsel’s action, this Court refuses to speculate as to the trial strategy of Schultz’s trial

counsel. We further find that counsel’s conduct was not “so outrageous that no competent



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attorney would have engaged in it.” See Morales, 253 S.W.3d at 696–97. Therefore,

Schultz has failed to negate the strong presumption that this was a sound strategic

decision.

       2.     Second Strickland Prong

       The second prong of Strickland requires Schultz to show prejudice by

demonstrating that there was a reasonable probability that, but for his counsel’s action,

the result would have been different. Strickland, 466 U.S. at 694. When the complained-

of action is during the sentencing phase of trial, prejudice is established if the appellant

demonstrates that his sentence was increased by the deficient performance of his trial

counsel. See Glover v. U.S., 531 U.S. 198, 200 (“if an increased prison term did flow

from an error, the petitioner has established Strickland prejudice.”).

       However, “merely showing that a sudden-passion instruction would have given the

jury another sentencing opinion is not enough to demonstrate prejudice under Strickland.”

Newkirk, 506 S.W.3d at 198. Schultz must establish that (1) if his counsel requested the

sudden passion instruction that he would have received it and (2) that the jury would have

imposed a lesser sentence after hearing the instruction. See id. Even supposing that

Schultz was entitled to the sudden passion instruction, he has not established a

reasonable probability that, had he received the instruction, the jury would have imposed

a less harsh sentence.

       Furthermore, “it is highly unlikely that a jury that had already rejected the

appellant’s claim that he reasonably believed that deadly force was immediately

necessary to defend himself would nevertheless find in his favor on the issue of sudden

passion.” Wooten v. State, 400 S.W.3d 601, 609 (Tex. Crim. App. 2013); see Chavez v.



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State, 6 S.W.3d 66, 73 (Tex. App.—San Antonio 1999, pet. ref’d) (“Because it is

reasonable to presume that the evidence justifying the jury’s finding against Chavez on

self-defense would also justify a finding that Chavez was not acting under sudden

passion, the record does not clearly confirm that trial counsel should have requested such

instruction.”).

       To prove sudden passion, Schultz would have to prove that: (1) he acted under

the immediate influence of passion, (2) his sudden passion was provoked by Bates, (3)

he had no time to cool off, (4) he committed the murder before he had time to cool off,

and (5) there was a causal connection between the provocation and the homicide. See

TEX. PENAL CODE ANN. § 19.02(a); Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App.

2015). However, the jury in this case already rejected Schultz’s claim that he reasonably

believed deadly force was necessary; thus, it was unlikely to believe that when Schultz

shot at Bates, he was under the immediate influence of passion that caused to him to

lose control. See Chavez, 6 S.W.3d at 73 (“[E]xcept in rare instances, when the State’s

evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show

the absence of sudden passion.”); see also Wooten, 400 S.W.3d at 610 (concluding that

a jury that rejected a self-defense claim that deadly force was immediately necessary

would likely reject a claim that the defendant acted under an immediate influence of

passion).     Based on the evidence and record, the probability that the jury would have

imposed a lighter sentence had it received a sudden passion instruction is extremely low.

See Chavez, 6 S.W.3d at 73. Therefore, Schultz has not demonstrated the second prong

of Strickland requiring him to show that, but for his counsel’s actions, the result would

have been different. Strickland, 466 U.S. at 694. We overrule Schultz’s sole issue.



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                                   III.   CONCLUSION

       We affirm the trial court’s judgment.

                                                       NORA L. LONGORIA
                                                       Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of July, 2019.




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