                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00282-CR
                             NO. 02-14-00283-CR
                             NO. 02-14-00284-CR


JAKE PACE                                                          APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
             TRIAL COURT NOS. 1356790D, 1356792D, 1356797D

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                        MEMORANDUM OPINION1

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                               I. INTRODUCTION

      A jury found Appellant Jake Pace guilty in two cases of aggravated assault

with a deadly weapon (a firearm) and in one case of retaliation and assessed his

punishment at thirty months’ confinement in each of the aggravated assault


      1
      See Tex. R. App. P. 47.4.
cases and at two years’ confinement in the retaliation case. See Tex. Penal

Code Ann. § 22.01(a)(2) (West Supp. 2014), §§ 22.02(a)(2), 36.06(a)(1) (West

2011).   The trial court sentenced Pace accordingly and ordered that the

sentences run concurrently. In three issues, Pace argues that the evidence is

insufficient to support each of his three convictions and that he received

ineffective assistance of counsel. We will affirm.

                            II. FACTUAL BACKGROUND

      Pace’s girlfriend Suzanne Pekny moved in with him around Christmas

2013. Both described the relationship as volatile, and they decided to end the

relationship the following month. On the afternoon of January 22, 2014, Pace

texted Suzanne that she could come to his house to pick up the remainder of her

belongings. Suzanne’s friend Caylie Wesson accompanied Suzanne to Pace’s

house.

      Suzanne went inside the house briefly and found Pace walking around with

her makeup bag. Pace asked Suzanne what she had brought him, and Suzanne

replied that she did not bring him anything. Pace became very irate, slammed

Suzanne’s makeup bag on the ground, and stomped on it. Suzanne walked

toward the door to leave, but Pace beat her out the door. He ran to Suzanne’s

car and retrieved something from the backseat. Suzanne heard Pace tell Caylie

that she needed to get off his property or he was going to kill her. Suzanne told

Caylie to get the pepper spray, and Caylie ran after Pace with the pepper spray.




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Caylie testified that Pace made it inside his house before she could spray him.

Caylie got in the car, and Suzanne drove away.

       Suzanne soon noticed that Pace was following her in his vehicle. Suzanne

testified that she was panicked and feared for her safety because she did not

know what he was going to do. She said that she turned into the parking lot at a

nearby school, hoping that “he would grasp the fact that we were at a school and

that would, you know, maybe calm him down a little bit and make him snap to.”

Suzanne said that after she stopped, Pace drove up behind her car, passed her

car, made a U-turn, and ended up bumper to bumper with her car.               When

Suzanne tried to back up, Pace backed up his car and put his left arm out the

window. Caylie said that as soon as she saw Pace’s arm come out of the car,

she pulled Suzanne down into the middle of the car. Both Suzanne and Caylie

testified that Pace fired three shots; however, Pace testified that he fired only two

shots, and only two bullet holes and two shell casings were found.           One of

Pace’s shots penetrated Suzanne’s vehicle and landed only about a foot and a

half away from Suzanne.       The other of Pace’s shots hit the vehicle’s wiring

harness, which disabled everything in Suzanne’s car; she could not drive her car

other than to pull it over to the curb. After firing the shots, Pace drove away from

the scene. When Caylie looked up and saw that Pace was leaving, she called 9-

1-1.

       Shortly thereafter, Suzanne received a text from Pace stating, “Just call the

cops and when I get out, I will kill you both. Caylie attacked me as I was running


                                         3
into my house. Hardly an aggressive move on my part.” Suzanne testified that

Pace had previously threatened “a few times” to kill or maim one of her friends,

but she said that he had never previously threatened to kill her.        Suzanne

testified that Pace’s threat to kill her and Caylie was more real than previous

times when he had threatened to kill her friends because he had just “got done

shooting at me.”

      Police responded to the 9-1-1 call, and the nearby school was placed on

lockdown.    A short time later, officers arrested Pace at his home.         Pace

consented to a search of his home, during which officers located the gun used in

the incident in the nightstand in his bedroom and found a spent shell casing—

matching the one found in the back passenger-side floorboard of Pace’s car—in

a trash can in Pace’s utility room.

      Pace testified at trial regarding his version of the events of January 22,

2014. Pace said that when Suzanne arrived at his home and refused to return

his belongings, he became irritated and threw her makeup on the front porch.

      He went to her car to retrieve his belongings and heard Caylie say that he

was about to “get maced.” Pace said that when he saw the pepper spray, he ran

to his front door. He said that he was hit on the left arm and on the neck with

pepper spray but was not drenched because he had a hoodie on.

      Pace testified that he got in his car to chase down Suzanne to retrieve his

belongings and saw that she was at the very end of his street. When he was a

block away, Suzanne turned left, then made the first right, pulled to the curb, and


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stopped her car. Pace believed that Suzanne was content with the fact that she

had attacked him—via Caylie spraying him with pepper spray—and was going to

give him his belongings back.

      Pace testified that he pulled around Suzanne so that he could talk to her

through his passenger window.      He asked her, “[W]hat the hell was that all

about[?]” Pace said that at that point, Suzanne began to rev her engine, “she

backed up[,] and then she started heading that way.” Pace said that he pulled

out the gun that was in his car and shot the front area of Suzanne’s tire and that

at the same time, he was backing away from the whole scene and headed to his

house. He explained that he shot the second time because Suzanne was still

advancing toward him with her vehicle after the first shot. He said that after the

second shot, he could see Suzanne trying to turn the key, but her car would not

start. He said that he knew the danger was gone, so he went home.

      Pace explained that he did not start the fight; Suzanne and Caylie came to

his home, refused to return his belongings, committed an assault on him, fled the

scene, and then pursued him in an aggressive manner by attempting to hit him

with a vehicle. Pace admitted that he had displayed a deadly weapon and that

he had fired two shots into Suzanne’s vehicle but claimed that he had done so in

self-defense to stop Suzanne from running over him. Pace said that he had fired

shots at Suzanne’s vehicle not to threaten her and Caylie but to stop Suzanne

from running over him and that his target was to disable Suzanne’s vehicle so

that she could no longer attack him.


                                        5
       Pace admitted that as he was pulling into his garage, he had sent a text

message to Suzanne threatening to kill her and Caylie but said that he and

Suzanne had threatened to kill each other every time they got into a fight. Pace

also admitted that he had been known to threaten a lot of people; however, he

testified that none of those threats were real and that he had not carried out any

of the threats he had previously made. Pace said that he did not think that his

text would scare Suzanne and Caylie because that was such a common

communication from him that he did not think that Suzanne would take it

seriously. Pace further testified that Suzanne visited him in jail two days after the

incident.

                         III. SUFFICIENCY OF THE EVIDENCE

       In his first and second issues, Pace challenges the sufficiency of the

evidence to support his two convictions for aggravated assault and his conviction

for retaliation.

                             A. Standard of Review

       In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to


                                         6
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

      We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.

State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of

the crime are determined by state law.”). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for


                                          7
which the defendant was tried. Byrd, 336 S.W.3d at 246. The law as authorized

by the indictment means the statutory elements of the charged offense as

modified by the factual details and legal theories contained in the charging

instrument. See Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App.

2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014)

(“When the State pleads a specific element of a penal offense that has statutory

alternatives for that element, the sufficiency of the evidence will be measured by

the element that was actually pleaded, and not any alternative statutory

elements.”).

    B. Sufficient Evidence Supports Convictions for Aggravated Assault

      Pace was charged with the offense of aggravated assault with a deadly

weapon of both Caylie and Suzanne. A person commits an offense by knowingly

threatening another with imminent bodily injury and using or exhibiting a deadly

weapon during the commission of the assault.            Tex. Penal Code Ann.

§§ 22.01(a)(2), .02(a)(2). A firearm is a deadly weapon. Tex. Penal Code Ann.

§ 1.07(a)(17)(A) (West Supp. 2014). The act of pointing a loaded gun at an

individual is, by itself, threatening conduct that supports a conviction for

aggravated assault.    Fagan v. State, 362 S.W.3d 796, 799 (Tex. App.—

Texarkana 2012, pet. ref’d). It is not necessary that the defendant make any

verbal threats. Cantu v. State, 953 S.W.2d 772, 775 (Tex. App.—Corpus Christi

1997, pet. ref’d).




                                        8
      Here, the evidence demonstrates that Pace had threatened to kill Caylie if

she did not leave his property and that after Caylie and Suzanne had left his

property, he began following them. Suzanne testified that she was fearful for her

safety when she saw that Pace was following her in his vehicle. A rational jury

could conclude that Caylie was fearful from her testimony that when she saw

Pace’s left arm coming out of the car, she pulled Suzanne down with her in the

middle of the car. On cross-examination, Pace admitted that he had displayed a

deadly weapon, that he had fired shots into Suzanne’s vehicle, and that he “was

firing at the person that was aggressing [him] with [her] vehicle.”

      Despite the preceding evidence establishing each of the necessary

elements of aggravated assault with a deadly weapon, Pace argues that the

State’s opening statement and Suzanne’s written statement—both of which

included a statement that Pace had fired at Suzanne’s car, rather than at her

person—show that the State intended to prove and did prove only deadly

conduct and that there is no evidence of an intent to place Suzanne and Caylie in

fear for their safety. But Suzanne testified that she took seriously Pace’s text

message threatening to kill her because he had just “got done shooting at me,”

and Caylie testified that Pace “shot at us three times.”         [Emphasis added.]

Moreover, a rational jury could conclude that the occupants of the car—Suzanne

and Caylie—reasonably possessed a fear of imminent bodily injury when multiple

shots from a firearm were fired at the vehicle they occupied. See Applewhite v.

State, No. 05-11-00959-CR, 2013 WL 2420644, at *4 (Tex. App.—Dallas June


                                          9
3, 2013, pet. ref’d) (mem. op., not designated for publication) (dismissing

appellant’s argument that victim never testified that “gun was ever trained on

him” and holding evidence legally sufficient to support conviction for aggravated

assault with a deadly weapon because appellant fired a gun in the victim’s

direction, hitting the victim’s car in several locations, and based on appellant’s

conduct, victim thought that appellant was going to shoot him); Fagan, 362

S.W.3d at 799 (holding evidence legally sufficient to support conviction for

aggravated assault with a deadly weapon because appellant had threatened

victim’s life on the night before the incident and had fired shots at the victim’s

car); see also Schule v. State, No. 05-13-01200-CR, 2015 WL 1859040, at *8

(Tex. App.—Dallas Apr. 22, 2015, no pet. h.) (not designated for publication)

(holding evidence legally sufficient to support aggravated assault conviction

because jury could have rationally concluded beyond a reasonable doubt that

appellant was aware of the risk that the driver of or the passenger in the vehicle

at which appellant was shooting could be injured).        Pace also contends on

appeal that Suzanne’s testimony, as a whole, lacked credibility, but in our

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence. See Isassi, 330 S.W.3d at 638.

      We hold that, when viewed in the light most favorable to the verdicts,

sufficient evidence exists for a reasonable jury to find Pace guilty in each case of

aggravated assault with a deadly weapon beyond a reasonable doubt.             See

Jackson, 443 U.S. at 319, 324–26, 99 S. Ct. at 2789, 2792–93 (applying


                                        10
sufficiency standard and holding evidence sufficient to support conviction);

Applewhite, 2013 WL 2420644, at *4; Fagan, 362 S.W.3d at 799. We overrule

Pace’s first issue.

         C. Sufficient Evidence Supports Conviction for Retaliation

      In the retaliation case, the State was required to prove beyond a

reasonable doubt that (1) Pace (2) intentionally or knowingly harmed or

threatened to harm Suzanne by an unlawful act (3) in retaliation for or on account

of the service or status of Suzanne (4) as a person who has reported or who

Pace knew intended to report the occurrence of a crime. See Tex. Penal Code

Ann. § 36.06(a)(1)(B); In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—Fort Worth

2002, no pet.). The statute does not require that the threatened retaliatory harm

be imminent, nor does it require that the actor actually intend to carry out his

threat. In re B.M., 1 S.W.3d 204, 207 (Tex. App.—Tyler 1999, no pet.).

      Here, Pace admits that “[t]he testimony was clear that [he] had texted

Suzanne in the minutes following the shooting” that he would kill Suzanne and

Caylie if they called the police. Pace, however, argues on appeal that he and

Suzanne had threatened to kill each other every time they got into a fight, that

there was no testimony from Suzanne that she had felt threatened by the death

threat in Pace’s text following the shooting, and that Suzanne’s conduct in visiting

Pace in jail two days after the shooting indicates that she did not take the death

threat seriously. As set forth above, whether the victim felt threatened is not an

element of the offense of retaliation. See Tex. Penal Code Ann. § 36.06(a)(1)(B);


                                        11
see also Goode v. State, No. 03-10-00254-CR, 2011 WL 477038, at *2, *6 (Tex.

App.—Austin Feb. 9, 2011, no pet.) (mem. op., not designated for publication)

(holding evidence legally sufficient to support conviction for retaliation despite

that victim had visited appellant in jail and had written letters to him after he had

threatened her); B.P.H., 83 S.W.3d at 408 (holding evidence legally sufficient to

support conviction for retaliation even though victim testified that he did not take

appellant’s threat seriously).    Pace thus has not challenged on appeal any

specific element of the offense of retaliation.

      We hold that when viewed in the light most favorable to the verdict,

sufficient evidence exists for a reasonable jury to find Pace guilty of retaliation

beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 324–26, 99 S. Ct. at

2789, 2792–93; Goode, 2011 WL 477038, at *6 (holding evidence legally

sufficient to support conviction for retaliation based on evidence that appellant

had threatened victim that “everybody will die” if victim called 911 and had sent

text messages to and had left voice mails for victim further indicating that

appellant would kill each of victim’s family members); B.P.H., 83 S.W.3d at 408

(holding evidence legally sufficient to support conviction for retaliation based on

evidence that appellant had pulled a knife on victim and had told victim that he

was going to kill him and both of his parents if victim told anyone about

appellant’s plan). We overrule Pace’s second issue.




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                    IV. INEFFECTIVE ASSISTANCE OF COUNSEL

      In his third issue, Pace argues that he received ineffective assistance of

counsel.

                            A. Standard of Review

      To establish ineffective assistance of counsel, appellant must show by a

preponderance of the evidence that his counsel’s representation was deficient

and that the deficiency prejudiced the defense. Strickland v. Washington, 466

U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289,

307 (Tex. Crim. App. 2013).     An ineffective-assistance claim must be “firmly

founded in the record,” and “the record must affirmatively demonstrate” the

meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex.

Crim. App. 1999).

      Direct appeal is usually an inadequate vehicle for raising an ineffective-

assistance-of-counsel claim because the record is generally undeveloped.

Menefield v. State, 363 S.W.3d 591, 592–93 (Tex. Crim. App. 2012); Thompson,

9 S.W.3d at 813–14.      In evaluating the effectiveness of counsel under the

deficient-performance prong, we look to the totality of the representation and the

particular circumstances of each case. Thompson, 9 S.W.3d at 813. The issue

is whether counsel’s assistance was reasonable under all the circumstances and

prevailing professional norms at the time of the alleged error. See Strickland,

466 U.S. at 688–89, 104 S. Ct. at 2065; Nava, 415 S.W.3d at 307. Review of

counsel’s representation is highly deferential, and the reviewing court indulges a


                                       13
strong presumption that counsel’s conduct was not deficient. Nava, 415 S.W.3d

at 307–08.

      It is not appropriate for an appellate court to simply infer ineffective

assistance based upon unclear portions of the record or when counsel’s reasons

for failing to do something do not appear in the record. Menefield, 363 S.W.3d at

593; Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Trial counsel

“should ordinarily be afforded an opportunity to explain his actions before being

denounced as ineffective.” Menefield, 363 S.W.3d at 593. If trial counsel is not

given that opportunity, we should not conclude that counsel’s performance was

deficient unless the challenged conduct was “so outrageous that no competent

attorney would have engaged in it.” Nava, 415 S.W.3d at 308.

      The prejudice prong of Strickland requires a showing that counsel’s errors

were so serious that they deprived the defendant of a fair trial, i.e., a trial with a

reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. In other words,

appellant must show there is a reasonable probability that, without the deficient

performance, the result of the proceeding would have been different. Id. at 694,

104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. A reasonable probability is a

probability sufficient to undermine confidence in the outcome. Strickland, 466

U.S. at 694, 104 S. Ct. at 2068; Nava, 415 S.W.3d at 308. The ultimate focus of

our inquiry must be on the fundamental fairness of the proceeding in which the

result is being challenged. Strickland, 466 U.S. at 697, 104 S. Ct. at 2070.




                                         14
                            B. Prejudice Prong Not Met

      Here, Pace argues that his trial counsel was ineffective because of her

“sloppy preparation” as shown by her motion in limine, which was filed the day

trial began, was left unfinished, and was violated by trial counsel in her own

direct examination of Pace; her lack of understanding of the hearsay rule, which

undermined her efforts to prove inconsistent statements by the victim; trial

counsel’s unfamiliarity or inability to understand the holdings in various cases

that she cited as the basis for her defense and her resultant improper application

of the case law to the facts of the case; and her lack of understanding or

unfamiliarity with firearms and her failure to hire an expert well in advance of the

trial to explain her theory of the case to the jury.

      Even if we could somehow construe the alleged deficiencies as meeting

the deficient-performance prong of Strickland, Pace has not shown a reasonable

probability that, without the deficient performance, the result of the proceeding

would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068;

Nava, 415 S.W.3d at 308. As set forth above, Pace admitted that (1) he had

fired a deadly weapon into the vehicle where Suzanne and Caylie were sitting

and (2) in the minutes following the shooting, he had texted Suzanne that he

would kill her and Caylie if they called the police. Pace’s own admissions thus

establish every element necessary to support his convictions. See Tex. Penal

Code Ann. §§ 22.01(a)(2), .02(a)(2), 36.06(a)(1). Additionally, Pace received the

minimum or a near-minimum sentence for each of his three felony convictions.


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See id. § 12.33(a) (West 2011) (providing that punishment range for second-

degree felony, such as aggravated assault with a deadly weapon for which Pace

was sentenced to thirty months’ confinement, has a sentencing range of two to

twenty years’ confinement), § 12.34(a) (West 2011) (providing that punishment

range for third-degree felony, such as retaliation for which Pace was sentenced

to two years’ confinement, has a sentencing range of two to ten years’

confinement). Pace therefore has not satisfied the prejudice prong of Strickland.

466 U.S. at 687, 700, 104 S. Ct. at 2064, 2071 (applying standard of review and

holding that appellant did not make showing of prejudice); see also Burgess v.

State, 448 S.W.3d 589, 603–04 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(concluding that even if counsel’s performance were deficient, appellant had not

satisfied the prejudice prong of Strickland). We overrule Pace’s third issue.

                                 V. CONCLUSION

      Having overruled Pace’s three issues, we affirm the trial court’s judgments.


                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DAUPHINOT, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 18, 2015




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