                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS


  JOHN KEVIN LYNCH,                                 §
                                                                    No. 08-15-00180-CR
                            Appellant,              §
                                                                       Appeal from the
  v.                                                §
                                                                Criminal District Court No. 1
  THE STATE OF TEXAS,                               §
                                                                  of El Paso County, Texas
                            Appellee.               §
                                                                     (TC#20140D00206)
                                                    §


                                           OPINION

       John Kevin Lynch appeals his convictions for aggravated assault with a deadly weapon

and for retaliation. In his sole issue for review, Appellant claims his trial counsel rendered

ineffective assistance by: (1) failing to investigate, interview, and call a key witness to testify;

(2) failing to request a jury instruction on the lesser-included offense of deadly conduct; (3) failing

to provide mitigation evidence during the punishment phase; and (4) failing to file an adequate

motion for new trial. We affirm.

                                         BACKGROUND

       At 6:00 in the morning on December 27, 2013, three Taco Cabana employees were arriving

at a 24-hour Taco Cabana to relieve the night-shift employees and begin their morning shift.

Among them were the shift manager, Sergio Guzman, and two shift workers, Gloria Rocha and
Cristian Salas. The trio arrived to a mess being cleaned up by the night-shift employees. When

Guzman inquired about the mess, one of the night-shift employees told him the mess had been

caused by two unruly customers, later identified as Appellant and his friend Derrick Yang. The

employee stated Appellant had been causing them a lot of problems. Appellant and Yang had

arrived sometime after 2:00, and Appellant appeared to be intoxicated. Appellant had been

demanding a refund for food that he claimed was thrown away by the night-shift employees when

he and Yang had temporarily stepped outside. Guzman addressed Appellant at the register and,

because Appellant was apparently in an agitated state, requested he calm down.        A verbal

altercation then ensued between the two men, and Guzman asked Appellant to leave. Appellant

refused. The verbal spat lasted about ten to fifteen minutes, and at some point, one of the

employees called the police. Guzman became frustrated with the conversation and retreated to

the restroom to end the argument. When he emerged from the restroom, Appellant was waiting

for him and threw a handful of nachos and guacamole in his face.

       At that moment another customer, Glen Lowrance, stood up and told Appellant to leave

Guzman alone. Lowrance then grabbed Appellant by the shirt and pushed him out of the main

doors of the Taco Cabana. Outside, Appellant went to his vehicle and retrieved a knife, and then

attempted to re-enter the Taco Cabana through the main doors. But Lowrance and Guzman were

holding the doors shut to prevent his entry, so Appellant and his friend Yang ran around and

entered through a side door. Then, Appellant began pointing his knife in turn at the employees

and Lowrance, so they all backed away to the opposite side of the restaurant. As Appellant

continued his approach, Lowrance picked up a chair and used it to put space between the group

and Appellant. Appellant lunged at Lowrance, but because he was intoxicated, managed to hit


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himself with the chair and dropped the knife. Someone kicked the knife away, and Guzman,

Lowrance, and Salas pinned Appellant on the ground and held him until police arrived.          Officer

Dana Ellingson received a call regarding an aggravated assault in progress and arrived at the Taco

Cabana to find Appellant already in custody in the back of a squad car. Officer Ellingson was

wearing a body camera and recorded the interaction he had with Appellant while the other officers

were interviewing Lowrance and the employees. He observed Appellant was “very intoxicated,”

and during the interaction Appellant threatened to kill him on three separate occasions, once stating

he would run Ellingson over the next time he saw him riding his motorcycle.              Each time,

Appellant followed up by saying he wished to retract his threats, but Officer Ellingson later

testified he took the threats seriously and felt Appellant was capable of carrying them out.

       Appellant was charged with two counts of aggravated assault with a deadly weapon for

threatening Guzman and Lowrance with the knife, and one count of retaliation for his threats to

kill Officer Elingson. Yang testified at trial on behalf of the defense. He relayed that he and

Appellant had been drinking for a few hours when they arrived at the Taco Cabana around 2:00

a.m. Yang stated the two ordered food, but around 3:30 were called outside by police officers,

who then asked them to leave the Taco Cabana because they were intoxicated. The two feigned

leaving, but then reentered the Taco Cabana to finish their food. Once inside, the two noticed

their food had been thrown away, and Appellant began demanding a refund. Yang testified he

and Appellant remained there for almost three hours demanding either a refund or the return of

their food. Yang testified that when the confrontation with Lowrance began, Appellant was never

forced outside and, although he did pull a knife out, the knife remained in its sheath and Appellant

only placed it on a trash can and did not point it at anyone. According to Yang, a scuffle began


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between Appellant and Lowrance over a chair, and Yang stated Appellant was punched in the face

during this altercation.

        Appellant testified to substantially the same story as Yang. The only exception was he

claimed Guzman and Lowrance were the aggressors, and while unarmed Lowrance hit him with

the chair.

        Lowrance did not testify at trial and the court granted Appellant’s motion for directed

verdict as to the aggravated assault against Lowrance. The jury found Appellant guilty of the

remaining two counts of aggravated assault and retaliation. During the punishment phase, the

State introduced evidence of four prior convictions. Appellant and his mother testified as to his

good behavior and future potential. Appellant maintained his innocence during his testimony.

The jury assessed punishment at fifteen-years’ confinement for the aggravated assault, and ten-

years’ confinement for retaliation.

                                          DISCUSSION

                                 Ineffective Assistance of Counsel

        In his sole issue for review, Appellant claims his trial counsel’s cumulative errors rendered

his performance constitutionally deficient, thus depriving him of his Sixth Amendment right to

counsel. He specifically alleges his trial counsel: (1) failed to investigate, interview, and call

Lowrance to testify to rebut the State’s narrative; (2) failed to request a jury instruction on the

lesser-included offense of deadly conduct; and (3) failed to provide mitigating evidence during the

punishment phase. In his reply brief, Appellant additionally claims counsel failed to file an

adequate motion for new trial.

                                        Standard of Review


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       A criminal defendant is entitled to be represented by effective, competent counsel under

the Sixth Amendment to the United States Constitution. Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). But this right does not entitle a defendant to

errorless or perfect representation as judged by the benefits of hindsight; rather, it entitles him to

reasonably effective assistance of counsel. Cueva v. State, 339 S.W.3d 839, 858 (Tex.App.--

Corpus Christi-Edinburg 2011, pet. ref’d)(citing Rylander v. State, 101 S.W.3d 107, 109-10

(Tex.Crim.App. 2003)).

       Claims of ineffective assistance of counsel are reviewed under the two-step analysis

adopted by the United States Supreme Court in Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

Appellant must show (1) counsel’s representation fell below an objective standard of

reasonableness, and (2) there is a probability that but for counsel’s unprofessional errors, the

results of the proceeding would have been different. Jackson v. State, 877 S.W.2d 768, 771

(Tex.Crim.App. 1994). To satisfy the requirements of the first prong, appellant must show

counsel’s performance was so deficient that counsel failed to function as the “counsel” guaranteed

by the Sixth Amendment. Id., (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). That is,

the appellant must prove there was no plausible professional reason for a specific act or omission

by counsel. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). If counsel was deficient,

we must determine whether there is a reasonable probability that, but for counsel’s error, the

outcome of the proceeding would have been different. Adekeye v. State, 437 S.W.3d 62, 73

(Tex.App.--Houston [14th Dist.] 2014, pet. ref’d).        That is, appellant must show counsel’s

deficient performance prejudiced the defense. Jackson, 877 S.W.2d at 771. The two prongs of

the Stickland test do not need to be analyzed in any particular order, and an appellant’s failure to


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satisfy either prong defeats a claim of ineffective assistance of counsel. Garcia v. State, 57

S.W.3d 436, 440 (Tex.Crim.App. 2001)(citing Strickland, 466 U.S. at 697, 104 S.Ct. at 2069).

       Any allegation of ineffective assistance must be affirmatively demonstrated by the record,

and in most cases on direct appeal, the record is insufficiently developed to adequately demonstrate

the motives behind counsel’s decisions.          Thompson v. State, 9 S.W.3d 808, 813-14

(Tex.Crim.App. 1999); Mallet v. State, 65 S.W.3d 59, 63 (Tex.Crim.App. 2001). Appellant must

overcome the presumption that counsel’s actions fell within a wide range of reasonable

professional assistance, and our review of counsel’s representation is highly deferential.

Strickland, 466 U.S. at 689-91, 104 S.Ct. at 2065-66; Mallet, 65 S.W.3d at 63. “We have said

that we commonly assume a strategic motive if any can be imagined and find counsel’s

performance deficient only if the conduct was so outrageous that no competent attorney would

have engaged in it.” Andrews v. State, 159 S.W.3d 98, 101 (Tex.Crim.App. 2005). Finally, a

claim of ineffective assistance cannot be established by reviewing one portion of trial counsel’s

performance in isolation; the sufficiency of counsel’s representation must be gauged by the totality

of the representation. Perez v. State, 310 S.W.3d 890, 894 (Tex.Crim.App. 2010); King v. State,

649 S.W.2d 42, 44 (Tex.Crim.App. 1983).

                                             Analysis

                                       Failure to Investigate

       The first alleged error complained of by Appellant is counsel’s failure to interview and call

potential witness Glen Lowrance to testify. A criminal defense attorney “must have a firm

command of the facts of the case as well as the governing law before he can render reasonably

effective assistance of counsel.” Ex Parte Welborn, 785 S.W.2d 391, 394 (Tex.Crim.App. 1990).


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This includes a duty to make reasonable investigations or to make a reasonable decision that a

particular investigation was unnecessary. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066; Perez,

310 S.W.3d at 894. A decision by counsel to not conduct a particular investigation is directly

assessed for reasonableness in all the circumstances, and appellate courts are required to provide

a heavy measure of deference to counsel’s judgments. Strickland, 466 U.S. at 691, 104 S.Ct. at

2066; Butler v. State, 716 S.W.2d 48, 54 (Tex.Crim.App. 1986); Donald v. State, 543 S.W.3d 466,

477 (Tex.App.--Houston [14th Dist.] 2018, no pet.).         An appellate court will not reverse a

conviction based on failure to investigate unless the consequence of that failure “is that the only

viable defense available to the accused is not advanced.” Donald, 543 S.W.3d at 477.

       Part of the duty to investigate is counsel’s responsibility to seek out and interview potential

witnesses. Ex parte Welborn, 785 S.W.2d at 394. To demonstrate ineffective assistance of

counsel based on an uncalled witness, an appellant must show two things: (1) the witness would

have been available to testify; and (2) the witness’s testimony would have been of some benefit to

the defense. Ex parte Ramirez, 280 S.W.3d 848, 853 (Tex.Crim.App. 2007); Ex parte White, 160

S.W.3d 46, 52 (Tex.Crim.App. 2004).

       Here, Appellant claims his trial counsel failed to investigate, interview, or subpoena to

testify, Glen Lowrance. Because Appellant repeatedly asserted Lowrance was the aggressor, he

argues, Lowrance was a key witness and counsel’s failure to investigate deprived the jury of

hearing Lowrance’s testimony, thus prejudicing the defense.             But Appellant has neither

demonstrated Lowrance would be available to testify nor shown, beyond his own speculation, what

Lowrance’s testimony would have been, and thus has not shown ineffective assistance of counsel

based on an uncalled witness. Ex parte Ramirez, 280 S.W.3d at 853. Further, because his claim


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of failure to investigate is based solely on counsel’s failure to interview or to call Lowrance as a

witness, and the record is otherwise silent regarding counsel’s decision, Appellant has failed to

show counsel was ineffective in his investigation. Strickland, 466 U.S. at 691, 104 S.Ct. at 2066;

Perez, 310 S.W.3d at 894.

                     Failure to Request Instruction on Lesser-included Offense

        Counsel’s second alleged error was his failure to request a jury instruction on the lesser-

included offense of deadly conduct. The Court of Criminal Appeals has held not requesting a

jury charge that would have aided the defendant constitutes ineffective assistance of counsel.

Vasquez v. State, 830 S.W.2d 948, 949 (Tex.Crim.App. 1992). This is not categorical, however,

and it can be a reasonable trial strategy to decide not to request a charge on a lesser-included

offense. 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, 603 (Tex.App.--Corpus Christi-Edinburg 1993, pet. ref’d).              To establish a claim of

ineffective assistance of counsel for failing to request a lesser-included offense, an appellant must

demonstrate he was entitled to the lesser-included offense. Cardenas v. State, 30 S.W.3d 384,

392-93 (Tex.Crim.App. 2000). In Rousseau, the Court of Criminal Appeals established a two-

prong test to demonstrate entitlement to a jury charge on a lesser-included offense. Rousseau v.

State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993), cert denied, 510 U.S. 919, 114 S.C.t 313, 126

L.Ed.2d 260 (1993). An appellant must show: (1) the lesser-included offense is included within

the proof necessary to establish the offense charged; and (2) some evidence exists in the record

that if appellant is guilty, he is guilty only of the lesser offense. Id.

        Here, Appellant asserts no competent attorney would have failed to request a jury charge


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on the lesser-included offense of deadly conduct, because it is well established that deadly conduct

is a lesser-included offense of aggravated assault by threat. He further asserts that because he and

Yang both testified Appellant had pulled the knife out and placed it on the trash can, a rational jury

could have concluded he was only guilty of deadly conduct. Even assuming, without deciding,

Appellant has met both prongs of the Rousseau test, there is nothing in the record—one way or the

other—explaining counsel’s failure to request a charge on the lesser-included offense of deadly

conduct. Where the record is silent regarding the reason for counsel’s omitting to request a

charge, it is not possible to decide whether the failure to request the charge is ineffective assistance

of counsel because it could have been part of a reasonable trial strategy. Thompson, 9 S.W.3d at

813-14; Davis, 930 S.W.2d at 768; Lynn, 860 S.W.2d at 603; see also Jackson v. State, 08-05-

00135-CR, 2006 WL 1711098, at *4 (Tex.App.--El Paso June 22, 2006, no pet.)(“Because the

record is silent regarding counsel’s trial strategy, we must presume that he had 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.”). Accordingly, Appellant has not shown

counsel was ineffective for failing to request a jury-charge instruction on deadly conduct.

                    Failure to Present Mitigation Evidence During Punishment

        The third of counsel’s alleged errors complained of by Appellant was that he failed to

properly prepare the punishment-phase witnesses—Appellant’s mother and Appellant—to provide

mitigation testimony. Specifically, he claims some of the unpolished answers given by the

witnesses show counsel did not prepare them, or did not adequately prepare them, for trial and thus

rendered ineffective assistance. He points to the mother’s seeming confusion regarding whether

Appellant was current with his child support payments, and to Appellant’s statement he would


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“pass the question,” when asked by the prosecution about a pending drug charge. He cites no

Texas cases supporting his proposition, instead relying on a decision of North Carolina’s supreme

court and a district court opinion from the District of Colombia. Even were we to entertain this

argument, there is no record evidence here supporting the claimed failure to prepare the witnesses

beyond the conjecture provided in Appellant’s brief. Further, while Appellant does cite a Texas

case suggesting that a failure to present certain mitigation evidence could have prejudiced the

defense, in that case, counsel failed to introduce mitigation evidence regarding bipolar disorder

and hospitalization. Barnett v. State, 338 S.W.3d 680, 686-87 (Tex.App.--Texarkana 2011, no

pet.). But here, Appellant is not alleging counsel failed to introduce certain mitigating evidence,

but rather asserts the mitigating evidence introduced—the testimony of Appellant and his

mother—showed a failure to adequately prepare the witnesses. Again, evidence of ineffective

assistance must be firmly founded in the record, and the imperfect answers of witnesses do not

affirmatively demonstrate ineffective assistance. Ex parte Welborn, 785 S.W.2d at 393; Moore

v. State, 700 S.W.2d 193, 206 (Tex.Crim.App. 1985). Accordingly, Appellant has failed to show

counsel was ineffective for failing to present mitigation evidence.

                                   Issues Raised in a Reply Brief

        Finally, Appellant claims his counsel was ineffective for failing to present a motion for

new trial to the trial court, thus leaving substitute counsel a slim window in which to file a motion

for new trial. Appellant did not include this assertion in his initial brief, instead raising it for the

first time in his reply brief. It is well settled under Texas law that a reply brief is not intended to

allow an appellant to raise new issues. State v. Sanchez, 135 S.W.3d 698, 700 (Tex.App.--Dallas

2003), aff’d, 138 S.W.3d 324 (Tex.Crim.App. 2004); Heras v. State, 786 S.W.2d 72, 72-73


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(Tex.App.--El Paso 1990, no pet.). Indeed, Rule 38.3 of the Texas Rules of Appellate Procedure

provides that a reply brief should only respond to the arguments presented in the appellee’s brief.

TEX.R.APP.P. 38.3; Houston v. State, 286 S.W.3d 604, 612 (Tex.App.--Beamont 2009, pet. ref’d).

Accordingly, we decline to address the issue not properly raised in Appellant’s brief.

       Because Appellant has not demonstrated that any of the alleged errors of his trial counsel

amounted to ineffective assistance of counsel, viewing the totality of the representation we find

Appellant has not overcome the presumption that counsel’s actions fell within the wide range of

reasonable professional assistance. Strickland, 466 U.S. at 689-91, 104 S.Ct. at 2065-66; Mallet,

65 S.W.3d at 63. Accordingly, Appellant’s sole issue is overruled.

                                        CONCLUSION

       Having overruled Appellant’s only issue, the judgment of the trial court is affirmed.


June 29, 2018
                                             YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
Hughes, J., Not Participating

(Do Not Publish)




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