                          NUMBER 13-17-00225-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


RYLEE CARL EKLUND,                                                           Appellant,

                                            v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 207th District Court
                          of Comal County, Texas.


                          MEMORANDUM OPINION

          Before Justices Rodriguez, Contreras, and Benavides
              Memorandum Opinion by Justice Rodriguez

       Appellant Rylee Carl Eklund appeals his convictions for murder and aggravated

assault. By twelve issues, appellant challenges the sufficiency of the evidence, the trial

court’s charge, and the constitutional effectiveness of his trial counsel. We affirm.
                                         I.      BACKGROUND1

        Appellant was indicted on one count of murder and two counts of aggravated

assault. See TEX. PENAL CODE ANN. §§ 19.02(b), 22.02(a)(2) (West, Westlaw through

2017 1st C.S.). The indictments related to the events of July 12, 2014, when appellant

fired a shotgun at three former classmates, killing one and wounding the others. Viewed

in the appropriate light, the evidence at trial establishes the following.

A.      The State’s Case

        Appellant, who was then nineteen, was friends with Drake Lund and Sawyer

Darwin. In the days preceding the shooting, appellant’s parents were out of town, and

Darwin and Lund visited appellant at his parents’ home. Darwin spent the night there,

and the next morning, Lund went to appellant’s house to show off his new car.

        On July 11, appellant texted Darwin about getting psychedelic mushrooms,

marijuana, and ecstasy. Appellant drove to San Antonio to meet a drug dealer that night.

        On July 12, appellant invited Darwin to his house to smoke marijuana. Darwin

told appellant that he did not feel like smoking but offered to drink with him, and appellant

agreed. Appellant also invited Lund to his house. Darwin invited along his friend Robert

Bree. Bree understood that they would be drinking and possibly taking psychedelic

mushrooms.        Driving his new car, Lund picked up Darwin and Bree and drove to

appellant’s house.




         1 This case is before the Court on transfer from the Third Court of Appeals in Austin pursuant to an

order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw through
2017 1st C.S.). Because this is a transfer case, we apply the precedent of the Third Court of Appeals to
the extent it differs from our own. See TEX. R. APP. P. 41.3.
                                                     2
      The boys arrived around 5:00 p.m., while it was daylight. They found the main

gate locked, which Darwin thought was odd. They entered through a side gate, where

they saw appellant’s truck in the driveway. The three knocked on the door of the side

house where appellant usually stayed, but there was no answer. They peered in a

window, but they could not see appellant.

      The boys then knocked on the doors of the main residence. Again there was no

answer.    They observed that all the lights were off, which they found unusual.

Beginning to worry for appellant’s well-being, the boys continued to knock on doors and

began knocking on windows. They also yelled for appellant, as Darwin described it,

“Rylee, can you hear us? This is Sawyer [Darwin] and Drake [Lund]. Are you there?

Are you okay?” They tried calling appellant twice, to no avail. Several minutes passed.

      Eventually, they moved around to the front porch and knocked on the door one

more time. Darwin stood on the front porch, while Lund and Bree stood on the lawn.

      While they discussed what to do, appellant fired a 12-gauge shotgun through the

closed window blinds at them. The first shot struck Lund and Darwin; Darwin collapsed

to the ground. Appellant fired two more shots, striking Darwin in the chest and Bree in

the stomach. Bree began to scream and run. Lund soon died as a result of his wounds.

      When the shooting stopped, Bree contacted police and applied pressure to

Darwin’s wounds. After a few minutes, appellant emerged from the house crying and

went to Darwin, saying, “Oh, my gosh, Sawyer, what did I do? I’m sorry.” Police arrived,

and Darwin was airlifted to a hospital, where life-saving surgery was performed.




                                            3
       Darwin suffered extensive injuries and partial disability to his left arm. Multiple

shotgun pellets remain lodged in his body, including his heart. Pellets also remain in

Bree’s stomach.

B.     Appellant’s Testimony and 911 Call

       Appellant testified that he was sleeping on the couch in the living room when he

was awakened by the sound of a “gate jingling.” He explained that he looked out the

blinds and saw a car he did not recognize driving up to the side gate of his house.

According to appellant, the vehicle was partially obscured by trees, and he could only see

someone in the back seat whom he did not recognize. He testified that he began locking

the doors and closing the blinds in fear. Appellant stated that he saw an unknown

stranger pass by a window, and he retreated to his parents’ master bedroom where the

firearms were kept, fearing that the strangers were burglars. He locked the bedroom

door, shut himself in the closet, and called 911.

       In the 911 recording, appellant spoke in a whisper to the operator, describing his

fear that “one or two” strangers were outside his house. The operator dispatched an

officer but explained that the officer was not nearby. Appellant described hearing the

strangers knocking on the door and, later, talking. Roughly ten minutes into the call,

appellant’s line went silent.

       Appellant testified that he grabbed a shotgun and left the closet. He stated that

he heard what sounded like a window being opened, broken, or “something being jostled

with.” He explained that he saw three figures out the window, but could not see their

faces. He decided to fire:



                                             4
       A.     I fired—the direction I tried to fire was away from them, but with
              immediate getaway, with the immediate sense of, “You’re not
              supposed to be here. Get away.”

       Q.     But you fired at the three figures, correct?

       A.     Yes.

       Q.     Okay. Why did you do that?

       A.     I felt they were trying to break in.

       Q.     Describe the—the manner in which you shot them.

       A.     I shot—I shot three shots in succession: One shot, two shot, three shots.

       Q.     Okay. Through the window that the figures were in front of?

       A.     Yes.

       Q.     Through the window the noise was coming from?

       A.     Yes.

       Q.     What did you hear or see after you pulled the trigger?

       A.     After I pulled the trigger, I heard screaming and yelling, and I looked
              through the blinds.

       Q.     Okay. What did you hear and see at that point?

       A.     I saw my friends. I saw my friends were shot outside in front—in the
              yard.

       Appellant testified that if he knew that it was his friends in the front yard, he would

not have fired, and that his intention was to fire three warning shots.

C.     Jury Verdict

       At the close of the evidence, the jury found appellant guilty as charged on the

murder and aggravated assault counts. The jury assessed punishment at fifteen years’

confinement on the murder count, and at ten and five years on the aggravated assault

                                              5
counts, respectively. The sentences were ordered to run concurrently. This appeal

followed.

               II.     SUFFICIENCY OF THE EVIDENCE: TRANSFERRED INTENT

       By his first through fifth issues, appellant challenges the sufficiency of the evidence

on intent. He draws attention to the fact that the State did not submit jury instructions on

the law of transferred intent. He contends that without a transferred intent instruction,

the State was required to prove that appellant directed his assaultive acts not at unknown

strangers, but specifically at Lund, Darwin, and Bree.        He argues that because the

evidence unequivocally establishes that appellant did not know that the perceived

burglars were his friends, the evidence was insufficient to prove intent, which is an

element of both aggravated assault and murder.

A.     Transferred Intent

       Under the theory of transferred intent, a person can be held criminally responsible

for causing a result if the only difference between what actually occurred and what he

desired, contemplated, or risked is that a different person was injured, harmed, or

otherwise affected. TEX. PENAL CODE ANN. § 6.04(b)(2) (West, Westlaw through 2017

1st C.S.). Transferred intent is raised when there is evidence that a defendant, with the

required culpable mental state, intends to injure or harm a specific person but injures or

harms a different person. Trevino v. State, 228 S.W.3d 729, 737 (Tex. App.—Corpus

Christi 2006, pet. ref’d) (op. on reh’g). The “classic example” of transferred intent is the

act of firing at an intended victim while that person is in a group of other persons; if the

intended person is killed, the offense is murder, but if a different person in the group is

killed, the offense is murder pursuant to the transferred intent rule. Roberts v. State, 273
                                              6
S.W.3d 322, 330 (Tex. Crim. App. 2008). “Thus where A aims at B with a murderous

intent to kill, but because of a bad aim he hits and kills C, A is uniformly held guilty of the

murder of C.” Martinez v. State, 844 S.W.2d 279, 282 (Tex. App.—San Antonio 1992,

pet. ref’d).

       However, the “bad-aim” scenario “is to be distinguished from an entirely different

unintended-victim case—the mistaken-identity situation—which is governed by a quite

separate set of legal rules.” Id. “Thus in the semi-darkness A shoots, with intent to kill,

at a vague form he supposes to be his enemy B but who is actually another person C; his

well-aimed bullet kills C.” Id. “Here too A is guilty of murdering C, to the same extent

he would have been guilty of murdering B had he made no mistake.” Id. “A intended to

kill the person at whom he aimed, so there is even less difficulty in holding him guilty than

in the bad-aim situation.” Id.

       The present case does not involve the law of transferred intent. See id. It was

not the State’s theory that appellant was aiming at someone other than the victims and

simply missed his intended target. See id. The State instead introduced evidence that

appellant fired at three individuals on his porch; the fact that these persons were his well-

meaning friends rather than shadowy strangers is immaterial. See id. Therefore, the

law of transferred intent does not apply. See id.

B.     Sufficiency of the Evidence

       Appellant testified that he did not intend to fire at the perceived strangers, but

instead intended to fire warning shots in an effort to scare them off. He argues that in

light of this testimony, the evidence is insufficient to show that he intended to assault or

kill his friends. When reviewing the sufficiency of the evidence, we view the evidence in
                                              7
the light most favorable to the verdict and determine whether, based on the evidence and

reasonable inferences therefrom, a rational juror could have found the essential elements

of the crime beyond a reasonable doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex.

Crim. App. 2017). We must presume that the jury resolved any conflicting inferences in

favor of the verdict. Id.

       The specific intent to kill may be inferred from the use of a deadly weapon, unless

in the manner of its use it is reasonably apparent that death or serious bodily injury could

not result. Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012); Medina v.

State, 7 S.W.3d 633, 637 (Tex. Crim. App. 1999) (en banc). “If a deadly weapon is used

in [a] deadly manner, the inference is almost conclusive that he intended to kill.” Godsey

v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986) (en banc). “Naturally, the most

obvious cases, and the easiest ones in which to prove a specific intent to kill, are those

cases in which a firearm was used and was fired or attempted to have been fired at a

person.” Id.

       Here, appellant fired three shots through the window directly at the individuals who

stood on his front porch, striking all three.     A rational jury could have inferred the

necessary intent from this evidence beyond a reasonable doubt, see id., and it could have

disbelieved appellant’s testimony to the contrary. See Queeman, 520 S.W.3d at 622.

We find the evidence sufficient to show the element of intent. See id.

C.     Conclusion

       Appellant’s first through fifth issues are overruled.




                                              8
                            III.    UNREQUESTED INSTRUCTIONS

       By his sixth through tenth issues, appellant protests the trial court’s failure to

instruct the jury on five defensive issues:        “apparent danger, the castle doctrine

provisions, use of deadly force to protect property, a view of the events through the eyes

of Appellant alone, [and] mistake of fact.” Appellant concedes that he did not request

instructions on these issues. He contends, however, that the trial court erred by not

instructing the jury on these issues sua sponte.

       Texas Code of Criminal Procedure article 36.14 directs the trial judge to deliver to

the jury a written charge distinctly setting forth the law applicable to the case. Mendez

v. State, 545 S.W.3d 548, 551–52 (Tex. Crim. App. 2018) (quoting TEX. CODE CRIM. PROC.

ANN. art. 36.14 (West, Westlaw through 2017 1st C.S.)). This charge should include, at

a minimum, “all of the law applicable to the criminal offense that is set out in the indictment

or information,” as well as “general admonishments, including . . . the presumption of

innocence, proof beyond a reasonable doubt, unanimity of the verdict, and so forth.” Id.

at 552. These matters are always “law applicable to the case.” Id. A judge is obligated

to instruct on these issues sua sponte, even without prompting from counsel. Id.

       But not every defense-benefitting instruction is “law applicable to the case,” such

that its exclusion from the charge is necessarily erroneous. Id. For instance, article

36.14 imposes no “duty on trial courts to sua sponte instruct the jury on unrequested

defensive issues” such as mistake of fact. Id. (quoting Posey v. State, 966 S.W.2d 57,

62 (Tex. Crim. App. 1998) (en banc)); see Bennet v. State, 235 S.W.3d 241, 243 (Tex.

Crim. App. 2007) (holding that the trial court had no duty to charge the jury on

unrequested defense-of-property instruction); see also Payne v. State, No. 05-11-00871-
                                              9
CR, 2012 WL 4801520, at *9 (Tex. App.—Dallas Oct. 10, 2012, pet. ref’d) (mem. op., not

designated for publication) (same as to other unrequested modifications of a self-defense

instruction).

       Here, appellant complains of the exclusion of five defensive issues from the

charge, but he concedes that he never requested these instructions in the trial court. If

the defendant fails to object to the absence of instructions on defensive issues in the jury

charge, the trial court has committed no error at all; a trial court does not err by failing to

instruct the jury on an issue that was, by virtue of appellant’s silence, simply inapplicable

to the case. See Mendez, 545 S.W.3d at 552. The trial court committed no error by

excluding these unrequested defensive issues from the charge. See id.

       We overrule appellant’s sixth through tenth issues.

                             IV.    COMMENT ON THE EVIDENCE

       By his eleventh issue, appellant protests the trial court’s decision to instruct the

jury that voluntary intoxication is no defense to the crime charged. He argues that this

instruction constituted an impermissible comment on the weight of the evidence.

A.     Standard of Review and Applicable Law

       Our review of an alleged jury charge error involves a two-step process. Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Initially, we determine whether error

occurred, and we then determine whether sufficient harm resulted from the error to

require reversal. Id.

       The jury is the exclusive judge of the facts proved and of the weight to be given to

the testimony.    Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008).             In

delivering the charge, a trial court should not express any opinion as to the weight of the
                                              10
evidence.       Id. (citing TEX. CODE CRIM. PROC. ANN. art. 36.14).              With only limited

exceptions, the trial court may not include an instruction that focuses the jury’s attention

on a specific type of evidence that may support a finding of an element of an offense.

Kirsch, 357 S.W.3d at 651. Even an instruction which is facially neutral and legally

accurate may nevertheless constitute an improper comment on the weight of the evidence

if it singles out a particular piece of evidence for special attention. Id.; Bartlett, 270

S.W.3d at 152.

B.     Application

       Appellant protests that the voluntary intoxication instruction was an impermissible

comment on the weight of the evidence. He asserts that this instruction informed the

jury of the trial court’s view that appellant was intoxicated, without any direct proof of

intoxication.

       The penal code provides that voluntary intoxication does not constitute a defense

to the commission of crime.         See TEX. PENAL CODE ANN. § 8.04(a) (West, Westlaw

through 2017 1st C.S.).2 A defendant need not rely upon intoxication as a defense in

order for the charge to feature a section 8.04(a) instruction. Sakil v. State, 287 S.W.3d

23, 26 n.8 (Tex. Crim. App. 2009) (citing Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim.

App. 1994)). Rather, a section 8.04(a) instruction on voluntary intoxication is appropriate

“if there is evidence from any source that might lead a jury to conclude that the

defendant’s intoxication somehow excused his actions.” Id.; Taylor, 885 S.W.2d at 158.




        2 “Intoxication” is defined as a disturbance of mental or physical capacity resulting from the

introduction of any substance into the body. TEX. PENAL CODE ANN. § 8.04(d) (West, Westlaw through
2017 1st C.S.).
                                                 11
       Relying on Taylor, the transfer court for this case has concluded that a voluntary

intoxication instruction is not an improper comment on the weight of the evidence.

Zuliani v. State, 52 S.W.3d 825, 831–32 (Tex. App.—Austin 2001), rev’d on other

grounds, 97 S.W.3d 589 (Tex. Crim. App. 2003). Instead, the court held that the ultimate

question is whether the issue of intoxication is raised by the evidence; if so, a voluntary

intoxication instruction is properly given. See Zuliani, 52 S.W.3d at 832.3

       There was evidence from multiple sources that raised the issue of appellant’s

intoxication. Appellant’s parents were out of town the weekend of the shooting, and

Darwin testified that he slept over and drank margaritas with appellant days before. Text

messages revealed that on the day before the shooting, appellant talked with Darwin

about obtaining psychedelic mushrooms, marijuana, and ecstasy from a dealer, and

appellant admitted that he met with the dealer in San Antonio later that day.

       On the day of the shooting, appellant invited Darwin over to smoke marijuana, and

Darwin agreed to come drink alcohol with him. Bree testified that he tagged along with

Lund and Darwin with the understanding that they would possibly be ingesting

psychedelic mushrooms at appellant’s place.              Bree brought along an anti-anxiety

medication in case anyone experienced issues while using mushrooms.

       Appellant testified that when the victims arrived on the afternoon of July 12, he was

sleeping on the couch. He looked out the window and grew afraid because he did not

recognize Lund’s car, despite the fact that Lund had shown the car to appellant just days


        3 Other Texas courts have reached similar conclusions. See Woodman v. State, 491 S.W.3d 424,

429 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Haynes v. State, 85 S.W.3d 855, 857–58 (Tex.
App.—Waco 2002, pet. ref’d); Garza v. State, 829 S.W.2d 291, 295 (Tex. App.—Dallas 1992, pet. ref’d);
see also Esquivel v. State, No. 04-06-00695-CR, 2007 WL 3171322, at *10–11 (Tex. App.—San Antonio
Oct. 31, 2007, pet. ref’d) (mem. op., not designated for publication).
                                                 12
before. Appellant did not recognize two of his closest friends, and he instead grew so

fearful of them that he closed all the blinds, locked the doors, hid in a closet, and called

911. He then shot three times out of the window blinds at the unknown individuals who

were knocking on his front door. Following the shooting, a marijuana pipe, lighter, and

baggie of marijuana were recovered from appellant’s person, and bottles of liquor were

found in the main house. A marijuana grinder was recovered from appellant’s side

house.

       This evidence raised the question of whether appellant was intoxicated, see

Zuliani, 52 S.W.3d at 831–32, and the trial court’s simple recitation of the penal code

provisions concerning voluntary intoxication did not convey any opinion as to the weight

of this evidence. See Bartlett, 270 S.W.3d at 150. Instead, the trial court did nothing

more than provide the jury with the law relevant to the situation. See Garza, 829 S.W.2d

at 295. “At worst, the instruction was superfluous”; if the jury believed appellant was not

intoxicated, then the jury could simply ignore the instruction. See Zuliani, 52 S.W.3d at

832. If the jury believed he was intoxicated, the instruction correctly guided them to

ignore the intoxication. See id. The court’s statement of the applicable law was not a

comment on the weight of the evidence. See id.

       We overrule appellant’s eleventh issue.

                       V.     INEFFECTIVE ASSISTANCE OF COUNSEL

       By his twelfth issue, appellant contends that he received ineffective assistance of

counsel. Appellant argues that trial counsel’s representation fell below the standard of

constitutional adequacy when he failed to request certain defensive instructions and

performed a poor cross-examination of Darwin and Bree.
                                            13
A.     Standard of Review and Applicable Law

       The Sixth Amendment guarantees a criminal defendant the effective assistance of

counsel. Ex parte Scott, 541 S.W.3d 104, 114 (Tex. Crim. App. 2017); see U.S. CONST.

amend. VI. To prevail on an ineffective-assistance-of-counsel claim, an applicant must

prove (1) that his trial counsel’s performance was deficient and (2) that he was prejudiced

by the deficiency.     Strickland v. Washington, 466 U.S. 668, 687 (1984).            “The

benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct

so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Id. at 686. The defendant bears the burden

of proving by a preponderance of the evidence that counsel was ineffective. Prine v.

State, 537 S.W.3d 113, 116 (Tex. Crim. App. 2017).

       Under the first prong of Strickland, counsel’s performance is deficient if it falls

below an objective standard of reasonableness. Strickland, 466 U.S. at 688–89. In

order to satisfy this prong, the defendant must overcome the strong presumption that

counsel’s conduct fell within the wide range of reasonable professional assistance and

that the conduct constituted sound trial strategy. Prine, 537 S.W.3d at 117. To defeat

this presumption, any allegation of ineffectiveness must be firmly founded in the record

and the record must affirmatively demonstrate the alleged ineffectiveness. Id. Trial

counsel should generally be given an opportunity to explain his actions before being found

ineffective.   Id. When, as in this case, the record is silent regarding trial counsel’s

strategy, this court can find ineffective assistance of counsel only if the challenged

conduct was “so outrageous that no competent attorney would have engaged in it.” Id.

The record on direct appeal is generally insufficient to satisfy this burden. Id.
                                            14
B.      Application

        Appellant first protests that trial counsel was deficient in cross-examining certain

witnesses. He argues that trial counsel pursued the wrong strategy by launching an

anemic attempt to show that they were behaving like would-be burglars, thereby justifying

appellant’s fear and defensive actions.

        However, appellant proposes no other approach that would have better addressed

the complained-of testimony on cross-examination.                    More importantly, the record is

devoid of any testimony which could overcome the presumption of reasonable assistance,

and we decline to second-guess counsel’s approach with the benefit of hindsight. See

id. (rejecting an ineffective assistance claim concerning defects in cross-examination

where record was silent about counsel’s strategic thinking).

        Appellant also complains that counsel was inadequate because he failed to

request the inclusion of certain defensive issues in the jury charge, including “apparent

danger,”4 use of deadly force in defense of property, mistake of fact, “castle doctrine,” 5

and “a view of the events through the eyes of Appellant alone.” 6 However, the record

fails to disclose why trial counsel did not seek these instructions. Nothing appears of

record rebutting the presumption that counsel’s actions were based on sound trial



        4  Appellant draws the phrase “apparent danger” from Hamel v. State, 916 S.W.2d 491, 493 (Tex.
Crim. App. 1996) (“A person has the right to defend himself from apparent danger to the same extent as
he would if the danger were real.”). He produces no authority supporting the use of this phrase in jury
instructions.
        5
        Appellant uses this term to refer to the rules discussed in penal code 9.32. See TEX. PENAL
CODE ANN. § 9.32(b)–(d) (West, Westlaw through 2017 1st C.S.).
         6 Citing Wilson v. State, 145 S.W.2d 890, 893 (Tex. Crim. App. 1940), appellant proposes that in

self-defense cases, a defendant is entitled to special instructions on the defendant’s perspective if there is
evidence that the defendant was in danger of unlawful attack from multiple assailants.
                                                     15
strategy, and the failure to request these defensive instructions was not so outrageous

that no competent attorney would have engaged in it. See, e.g., Thompson v. State, 445

S.W.3d 408, 411 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (finding failure to

request defense-of-property instruction was not outrageous where there was meager

evidence raising that defense, in part because the property belonged to a third person);

Chatman v. State, No. 13-10-00190-CR, 2011 WL 1442338, at *5 (Tex. App.—Corpus

Christi Apr. 14, 2011, no pet.) (mem. op., not designated for publication) (finding evidence

insufficient to rebut presumption of reasonable assistance where record was silent as to

counsel’s reasons for not requesting a mistake-of-fact instruction). In the face of an

undeveloped record, we cannot say that appellant carried his burden to satisfy the first

prong of Strickland. See 466 U.S. at 688–89; Prine, 537 S.W.3d at 117.

       We overrule appellant’s twelfth and final issue.

                                    VI.    CONCLUSION

       We affirm the judgment of the trial court.


                                                               NELDA V. RODRIGUEZ
                                                               Justice


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

Delivered and filed the
18th day of October, 2018.




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