Opinion
NUMBER 13-16-00432-CR
10-25-2018
JESUS TREJO TREJO, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Chief Justice Valdez
The jury found appellant Jesus Trejo Trejo guilty of retaliation on a public servant. See TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (West, Westlaw through 2017 1st C.S.) (providing that retaliation is a third-degree felony if the person "intentionally or knowingly harms or threatens to harm another by an unlawful act . . . in retaliation for or on account of the service or status of another as a . . . public servant"). Following the jury's verdict, the trial court found that Trejo had two prior felony convictions and sentenced him to twenty-five years in prison, the minimum allowable under the habitual felony offender statute. See id. § 12.42 (West, Westlaw through 2017 1st C.S.). By five issues, Trejo contends that: (1) the evidence is legally insufficient to support his conviction; (2) the retaliation statute is unconstitutional; (3) the State withheld Brady evidence; (4) his trial counsel was ineffective; and (5) he was denied a fair and impartial trial as a result of an erroneous jury charge. We affirm.
For purposes of this memorandum opinion, we have taken Trejo's issues out of order.
I. BACKGROUND
The grand jury indicted Trejo for retaliation on a public servant. At trial, the State called City of Edcouch Police Chief Eloy Cardenas as its sole witness. Chief Cardenas testified that Trejo's mother advised him that "[Trejo] had pretty much been up all night, and he had not gone to sleep, and that she feared for herself. . . and her other son. And that he had pretty much wrecked the house." Upon Chief Cardenas's arrival at the home, Trejo's mother directed him to Trejo's room. Donning his distinct police uniform, Chief Cardenas entered Trejo's room and saw Trejo reclined back in a chair. Chief Cardenas testified, "in [Trejo's] left hand he had some kind of aerosol paint from what I could smell . . . he was inhaling it . . . And he was reclined back. And with his right hand he was holding a knife like a kitchen knife." When Chief Cardenas announced his presence, Trejo made several statements that led to his retaliation charge. Chief Cardenas recounted these statements to the jury:
I started talking to him. He quickly realized who I was, and he started telling me, "What are you doing here, you old man? Aren't you supposed to be in the office?" And I told him, "Well, I was the only officer working["], and that I was here to try to make sure everything was okay. That I understood that there was [sic] some problems going on. And at that point
he started telling me that I needed to leave his house because he was going to call his Chicano buddies to have me killed. Or that he was going to kill me himself . . . .
He started getting aggressive . . . . [and he said] and I'm also going to kill you. But we're going to kill you slow because death would be too good for you.
According to Chief Cardenas, Trejo then rose from his chair and threw the knife toward a trash can, which provided Chief Cardenas an opportunity to apprehend him. Trejo continued to threaten to kill Chief Cardenas. For about forty minutes, while Chief Cardenas awaited back up from another law enforcement entity, Trejo spat on and tried to bite Chief Cardenas's face, uniform, and hands.
The jury found Trejo guilty of retaliation on a public servant as charged in the indictment. Following his conviction and sentence, Trejo filed a motion for new trial alleging ineffective assistance of trial counsel and insufficient evidence to support his conviction. The trial court denied Trejo's motion for new trial after a hearing at which Trejo's trial counsel testified. This appeal followed.
II. SUFFICIENCY OF EVIDENCE
By his first issue, Trejo contends that the evidence was insufficient to show that the statements made were unlawful or that his purported threats to Cardenas were made in retaliation for, or on account of, Chief Cardenas's service as a police officer.
A. Standard of Review and Applicable Law
In conducting a legal sufficiency review, we view "the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Gross v. State, 380 S.W.3d 181, 185 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). We "give deference to 'the responsibility of the trier of fact to . . . draw reasonable inferences from basic facts to ultimate facts.'" Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19).
In this case, the State had the burden to prove that Trejo, "intentionally or knowingly harm[ed] or threaten[ed] to harm [Cardenas] by an unlawful act . . . in retaliation for or on account of the service or status of another as a . . . public servant." TEX. PENAL CODE ANN. § 36.06(a)(1)(A). Thus, the offense requires "proof of a retributory element—that is, proof that the unlawful act was committed in retaliation for, or on account of, another person's service as a public servant." Riley v. State, 965 S.W.2d 1, 2 (Tex. App.—Houston [1st Dist.] 1997, pet. ref'd) (citing In re M.M.R., 932 S.W.2d 112 (Tex. App.—El Paso 1996, no writ); McCoy v. State, 932 S.W.2d 720 (Tex. App.—Fort Worth 1996, no pet.)).
B. Discussion
In this case, Chief Cardenas arrived at Trejo's home in response to a call for assistance. Upon arrival, Chief Cardenas specifically identified himself as a police officer and observed Trejo on a recliner inhaling a can of aerosol in one hand with a knife in his other hand. The evidence further shows that Chief Cardenas appeared in his distinct police officer uniform. It was then that Trejo stated: "What are you doing here, you old man? Aren't you supposed to be in the office?" Chief Cardenas responded that he was there to make sure everything was okay. Trejo demanded that Chief Cardenas leave the premises because he was going to call his buddies to have him killed or he would kill Chief Cardenas himself. According to Chief Cardenas, Trejo kept inhaling the aerosol while continuing to threaten Chief Cardenas, gripping the knife tighter and tighter. After apprehension and arrest, Chief Cardenas testified that for about forty minutes, Trejo continued to threaten to kill him while spitting on and attempting to bite Chief Cardenas. Based on this information, a jury could have inferred that Trejo made threatening remarks because he was angered Chief Cardenas was performing his duties as a police officer. The jury could have also believed the testimony of Chief Cardenas and found, based on the circumstances, that Trejo made threats for, or on account of, Chief Cardenas's service or status as a police officer.
Viewing the evidence in the light most favorable to the conviction, a rational trier of fact could have found the essential elements of retaliation. Accordingly, we conclude the evidence is legally sufficient to support Trejo's conviction. We overrule his fourth issue.
III. CONSTITUTIONALITY OF RETALIATION STATUTE
Trejo challenges the "the facial constitutionality of Section 36.06(a)(1) only in conjunction with the corresponding definitions in Section 1.07(a)" of the Texas Penal Code as being overly broad and vague. Although Trejo raises a "facial" constitutionality complaint, he is not challenging section 36.01(a)(1) or 1.07(a) of the Texas Penal Code standing alone. Because he concedes the general constitutionality of the statute, but asserts the statute is unconstitutional as applied to his facts and circumstances, we conclude he is raising only an "as applied" challenge. The State responds that the issue was not argued to the trial court and therefore is not preserved for appellate review. We agree with the State.
A. Applicable Law
In order for an issue to be preserved on appeal, there must be a timely objection that specifically states the legal basis for that objection. TEX. R. APP. P. 33.1(a). A constitutionality challenge based on a statute's application to a defendant's case cannot be raised for the first time on appeal. Williams v. State, 305 S.W.3d 886, 893 (Tex. App.—Texarkana 2010, no pet.). In this regard, a defendant forfeits his right to assert an as applied challenge to a statute's constitutionality if he does not raise such a challenge to the trial court. Lykos v. Fine, 330 S.W.3d 904, 910 (Tex. Crim. App. 2011); Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (holding that the failure to object to the trial court that a statute is unconstitutionally vague as applied to a defendant waives any appellate review of that complaint). Similarly, the Texas Court of Criminal Appeals has held that "a defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute." Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009); Ibenyenwa v. State, 367 S.W.3d 420, 422 (Tex. App.—Fort Worth, 2012) (concluding that defendant did not preserve his facial and as applied challenges because he did not raise these complaints to the trial court).
B. Discussion
For the first time on appeal, Trejo complains that section 36.06(a)(1) and its corresponding definitions under section 1.07(a) of the penal code as applied to him is overbroad, redundant and vague, and impinge upon his First and Fourth Amendment rights. See TEX. PENAL CODE ANN. §§ 1.07(a), 36.06(a)(1) (West, Westlaw through 2017 1st C.S.). However, Trejo cites to no place in the record where he challenged the constitutionality of the abovementioned statutes to the trial court, and after reviewing the record, we find none. Because Trejo did not raise this complaint to the trial court, he is barred from raising this complaint for the first time on appeal. See Lykos, 330 S.W.3d at 910; see also TEX. R. APP. P. 33.1(a). We overrule his first issue.
To the extent that Trejo's claim is viewed as a "facial challenge," it is likewise waived for lack of presentation to the trial court. See Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009) ("[A] defendant may not raise for the first time on appeal a facial challenge to the constitutionality of a statute.").
IV. BRADY EVIDENCE
By his third issue, Trejo contends that the State withheld Brady material from him because the State failed to disclose information which was favorable to him. Specifically, Trejo claims that the State, prior to trial, should have made him aware of the following facts: (1) Chief Cardenas stood trial in 2002 for theft, which ended in a not guilty jury verdict; (2) Chief Cardenas again stood trial in 2010 for tampering with physical evidence, which ended in a hung jury after the jurors were split 6-6; and (3) Chief Cardenas testified at Trejo's trial while under a pending indictment. The State argues that Trejo did not preserve error on this issue. We agree with the State.
We note that evidence of an acquittal or a mistrial is inadmissible impeachment evidence because neither resulted in a criminal conviction. See TEX. R. EVID. 609. The evidence central to a Brady claim must be admissible in court. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (en banc).
A. Applicable Law
A prosecutor has an obligation to disclose exculpatory evidence if it is material to the defendant's case. See Brady v. Maryland, 373 U.S. 83, 87 (1963). Impeachment evidence can be Brady evidence if it favors the accused. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993) (en banc). To find reversible error under Brady, Trejo must show: (1) the state suppressed evidence; (2) the suppressed evidence was favorable to him; and (3) the suppressed evidence was material to the outcome of the case to such extent that "there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different." Pena v. State, 353 S.W.3d 797, 809 (Tex. Crim. App. 2011). The evidence central to the Brady claim must be admissible in court. Ex parte Kimes, 872 S.W.2d at 703. The State is not, however, required to seek out exculpatory evidence independently on a defendant's behalf, or furnish a defendant with exculpatory or mitigating evidence that is fully accessible to the defendant from other sources. See Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006) (en banc); Jackson v. State, 552 S.W.2d 798, 804 (Tex. Crim. App. 1976).
To preserve Brady error, a complaint must be made as soon as the grounds for the complaint are apparent or should be apparent. Wilson v. State, 7 S.W.3d 136, 146 (Tex. Crim. App. 1999) ("That subsequent events may cause a ground for a complaint to become more apparent does not render timely an otherwise untimely complaint."); see TEX. R. APP. P. 33.1(a)(1). "Brady claims are typically raised in a motion for new trial." Jackson v. State, 495 S.W.3d 398, 420 (Tex. App.—Houston [14th Dist.] 2016, pet ref'd); see, Clarke v. State, 270 S.W.3d 573, 580-81 (Tex. Crim. App. 2008); Keeter v. State, 175 S.W.3d 756, 760-61 (Tex. Crim. App. 2005); Hall v. State, 283 S.W.3d 137, 175-79 (Tex. App.—Austin 2009, pet. ref'd) (reversing a defendant's sentence and remanding the case for a new trial on punishment based on evidence presented at a hearing on a motion for new trial). This is because "a Brady claim requires that a defendant show by a preponderance of the evidence that evidence was withheld, that it was favorable to the defense, and that the evidence was material." Keeter, 175 S.W.3d at 760.
B. Discussion
After Trejo was found guilty and sentenced, he filed a motion for new trial asserting insufficient evidence and ineffective assistance of counsel. However, in his motion for new trial, Trejo did not allege a Brady violation. See Jackson, 495 S.W.3d at 398. On appeal, Trejo now complains that the State violated his due process right under Brady because the State should have made him privy to its sole witness's current and past criminal history. To be timely, a complaint must be made as soon as the grounds for complaint are apparent or should be apparent. See Wilson, 7 S.W.3d at 146. Because complaints must be made to the trial court in a timely fashion, we conclude Trejo's complaint made for the first time on appeal is untimely. See TEX. R. APP. P. 33.1(a).
Trejo does not contend that he was unaware of Chief Cardenas's criminal history—he only contends that the State failed to affirmatively put him on notice of such.
Nonetheless, even if Trejo had properly preserved error, his claim would fail. To prevail on a Brady claim, Trejo must show that the State actively suppressed evidence or negligently failed to disclose it. Pena, 353 S.W.3d at 809. Trejo cites to nowhere in the record to show that the State suppressed evidence that may be allegedly categorized as Brady material. After reviewing the record, we find no evidence to indicate that the State suppressed evidence that may be allegedly categorized as Brady material. The record does not show that Chief Cardenas stood trial for any criminal offenses, that he was under pending indictment, or that this information was withheld from Trejo. See McFartridge v. State, 309 S.W.3d 1, 9 (Tex. Crim. App. 2010) ("Appellant's review is limited to what is contained in the record."). Because a Brady claim requires that Trejo show by a preponderance of the evidence that evidence was withheld, and the record here does not, we cannot conclude that the State withheld Brady material. Keeter, 175 S.W.3d at 760; see also Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2005) ("An appellate court may not consider factual assertions that are outside the record."). Without suppression, there is no Brady violation. See Harm, 183 S.W.3d at 407; Taylor, 93 S.W.3d at 499. We overrule Trejo's second issue.
We also note that the State was not required to seek out Chief Cardenas's current and prior run-ins with the law for the purposes of providing Trejo with such information. See Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006) (en banc) ("[T]he state is not required to seek out exculpatory evidence independently on appellant's behalf or furnish appellant with exculpatory or mitigating evidence that is fully accessible from other sources."); Nickerson v. State, 69 S.W.3d 661, 673 (Tex. App.—Waco, 2002, pet ref'd) (providing that the State has no duty to disclose matters of public record "if defense counsel should know of them and fails to obtain [them] because of a lack of diligence in his own investigation"); Flores v. State, 940 S.W.2d 189, 191 (Tex. App.—San Antonio 1996, no pet.) (holding that the prosecutor is not required to furnish the defendant with exculpatory and mitigating evidence which is equally and fully accessible to the defense).
Chief Cardenas's pending indictment and criminal history were only allegedly unknown to Trejo—not unavailable to him—because Trejo failed to procure it. See Taylor v. State, 93 S.W.3d 487, 499 (Tex. App.—Texarkana, 2002, pet ref'd) ("The government is not required to facilitate the compilation of exculpatory material that could have been compiled by the defense."); Dalbosco v. State, 978 S.W.2d 236, 238 (Tex. App.—Texarkana 1998, pet. ref'd) ("[d]ocuments . . . that are a part of public records are not deemed suppressed by the State if defense counsel should know of them and fails to obtain the records because of a lack of diligence in his own investigation."); see also Garner v. State, No. 14-04-00221-CR, 2005 WL 223025, at *3 (Tex. App.—Houston [14th Dist.] Sept. 13, 2005, no pet.) (mem. op., not designated for publication) (noting that criminal records are a matter of public record).
V. INEFFECTIVE ASSISTANCE OF COUNSEL
When we refer to trial counsel, we refer to both trial counsel and co-counsel.
Next, Trejo contends that his trial counsel was ineffective in failing to develop and make more effective use of evidence relating to his mental health. Trejo litigated the issue through a motion for new trial, which the trial court denied.
A. Standard of Review
We review a trial court's ruling on a motion for new trial under an abuse-of-discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). This standard requires that we review the evidence "in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement." Id. We do not "substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable." Id. Thus, a trial court abuses its discretion in denying a motion for new trial only when "no reasonable view of the record could support the trial court's ruling." Id.
As the movant on a motion for new trial alleging ineffective assistance, Trejo shouldered the burden to establish by a preponderance of the evidence that: (1) trial counsel performed deficiently; and (2) counsel's deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 664, 668 (1984); see also Pina v. State, 127 S.W.3d 68, 72 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Judicial review of counsel's performance is highly deferential, and ineffective assistance will be found only if Trejo was able to overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 668. In evaluating trial counsel's performance, we must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable, professional assistance and was motivated by sound trial strategy. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007). The record must affirmatively demonstrate trial counsel's alleged ineffectiveness. Prine v. State, 537 S.W.3d 113, 117 (Tex. Crim. App. 2017). When the record is silent concerning the reasons for trial counsel's actions, we do not engage in speculation to find ineffective assistance of counsel. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). "The fact that another attorney might have pursued a different course of action or tried the case differently will not support a finding of ineffective assistance of counsel." De Los Santos v. State, 219 S.W.3d 71, 75 (Tex. App.—San Antonio 2006, no pet.).
B. Discussion
1. Duty to Investigate
Trejo argues that his trial counsel performed deficiently by "failing to investigate the case, subpoena medical records, or hire experts to testify as to [his] mental health."
Trejo has failed to demonstrate how any of these alleged deficiencies prejudiced his defense because he did not present any guilt-innocence mitigation evidence with the motion for new trial or at the motion for new trial hearing. See Washington v. State, 417 S.W.3d 713, 725 (Tex. App.—Houston [14th Dist.] 2013 pet ref'd) (finding no prejudice for not requesting appointment of an investigator, testimonial expert, or consulting expert when there was no evidence of what a proper investigation would have revealed or what benefit would have been obtained from an expert). To determine whether Trejo was prejudiced, we must "compare the evidence presented by the State with the 'evidence the jury did not hear due to trial counsel's failure to investigate.'" Id. (citing Perez v. State, 310 S.W.3d 890, 896 (Tex. Crim. App. 2010)). We are unable to do so because Trejo did not show in the trial court what evidence a proper investigation would have revealed, nor what benefit could have been obtained from an expert. See Ex parte McFarland, 163 S.W.3d 743, 755 (Tex. Crim. App. 2005) (explaining that there was no prejudice for failure to investigate a witness when there was no showing or suggestion that the witness would have told anyone of the contradictory version of events before trial); King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983) (en banc) ("Counsel's failure to call witnesses at the guilt-innocence and punishment stages is irrelevant absent a showing that such witnesses were available and appellant would benefit from their testimony."); Brown v. State, 334 S.W.3d 789, 803 (Tex. App.—Tyler 2010, pet. ref'd) ("[T]he failure to request the appointment of an expert witness is not ineffective assistance in the absence of a showing that the expert would have testified in a manner that benefitted the defendant."); Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo 2004, pet. ref'd) (same). Accordingly, we reject Trejo's argument that his counsel was deficient for a failure to investigate.
2. Insanity Defense
Next, Trejo claims his trial counsel was ineffective by failing to "preserve a defense as to [Trejo's] mental state at the time of the incident and at trial." The State assumes that Trejo "may well have been afflicted with some sort of mental disorder."
a. Applicable Law
A defendant is presumed sane and that he intends the natural consequences of his acts. Ruffin v. State, 270 S.W.3d 586, 591 (Tex. Crim. App. 2008). Insanity is an affirmative defense, which the defendant must prove by a preponderance of the evidence. TEX. PENAL CODE ANN. §§ 2.04(d), 8.01 (West, Westlaw through 2017 1st C.S.). The affirmative defense of insanity may not be submitted to the jury unless evidence is admitted supporting the defense. Id. § 2.04(c). To establish the affirmative defense of insanity, the defendant must prove "that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong." Id. § 8.01(a).
The insanity defense focuses on whether the accused understood the nature of his action and whether he knew he should not do it. Ruffin, 270 S.W.3d at 592. The focus is on the mental state of the defendant at the time the crime is committed. Nelson v. State, 149 S.W.3d 206, 211-12 (Tex. App.—Fort Worth 2004, no pet.). "If the accused knows that his conduct is 'illegal' by societal standards, then he understands that his conduct is wrong, even if, due to a mental disease or defect, he thinks his conduct is morally justified." McAfee v. State, 467 S.W.3d 622, 636 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). Thus, proof of a mental disease or defect alone is not sufficient to establish legal insanity at the time of the offense. Nutter v. State, 93 S.W.3d 130, 132 (Tex. App.—Houston [14th Dist.] 2001, no pet.). When there is no evidence that a defendant was insane at the time of the offense, a counsel's failure to pursue such a defense cannot prejudice the defense. See Brown v. State, 129 S.W.3d 762, 767 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
b. Discussion
To negate the required mens rea, Trejo had to establish that his alleged medical defect made him unaware that his conduct was wrong. See TEX. PENAL CODE ANN. § 8.01(a). Trejo's mother testified that Trejo suffered from a mental illness and was under medication. Also, Chief Cardenas testified that he knew Trejo had previously been treated for a mental illness; however, he "saw no need for [him] to worry about a mental situation" with Trejo because he believed Trejo was intoxicated by inhalants. Although Trejo references portions of the record to suggest that he suffers from a mental illness, he offered no opinion testimony as to his insanity at the time of the offense. See Nutter, 93 S.W.3d at 132. None of the testimony proffered at trial or at the new trial hearing indicated that Trejo committed the charged offense because he suffered from a mental disease or defect such that he did not know his conduct was wrong. Id. at 131. Thus, there is no evidence to support that any mental illness, under which Trejo may have then labored, rendered him incapable of forming the requisite culpable mental state. See id. at 132 (finding that although defendant had a history of extensive psychological problems, that evidence alone was insufficient to establish legal insanity at the time of the offense).
Voluntary intoxication does not constitute a recognized defense as to a defendant's guilt. See TEX. PENAL CODE ANN. § 8.04(a) (West, Westlaw through 2017 1st C.S.).
In fact, according to the court-appointed psychologist who deemed Trejo competent to stand trial, Trejo was not delusional.
Moreover, according to the court-appointed psychologist, Trejo provided a lucid account of his alleged behavior on the night in question. Specifically, Trejo "provided a plausible and unreasonable account of his behavior around the time of the alleged offense . . . . Mr. Trejo [was] able to disclose at this evaluation the states of mind he experienced before, during, and after the behaviors he is accused of." Thus, the record does not demonstrate that Trejo was insane at the time of the incident. Id. Finally, trial counsel testified that he and his co-counsel did not file a motion to determine whether Trejo was insane at the time of the act because they "had no evidence to warrant us filing one," and there was "no evidence that Trejo was either insane or [was] not competent at the time . . . ." After reviewing the record, we find that Trejo did not produce any testimony or evidence to suggest that he did not know his conduct was wrong at the time of the incident. See Plough v. State, 725 S.W.2d 494, 500 (Tex. App.—Corpus Christi 1987, no pet.) ("The existence of a mental disease, alone, is not sufficient to establish legal insanity; rather, the accused must have been mentally ill at the time of the offense to the point that he did not know his conduct was wrong."). Because there was no evidence supporting that Trejo was insane at the time of the offense, Trejo was not entitled to an insanity affirmative defense, and his trial counsel was not ineffective for failing to pursue such a defense. See TEX. PENAL CODE ANN. §§ 2.04(c), 8.01.
Trejo further argues that a lack of intent due to "incompetency should have been raised, and the results of the trial would have been different," but even if Trejo demonstrated that counsel conducted an inadequate investigation, he still failed to show how he was prejudiced. Specifically, Trejo did not produce evidence of what counsel might have found had he investigated; how such evidence would have benefitted him; and that there was a reasonable probability that the outcome would have been different had counsel produced the evidence. We cannot assume that because his trial counsel did not pursue an insanity defense at trial, his performance was thereby deficient or that Trejo suffered prejudice. See Brown, 129 S.W.3d at 767 (holding that when there is no evidence that an appellant was insane at the time of the offense, a counsel's failure to pursue such a defense cannot prejudice the defense). Accordingly, Trejo has not carried his burden to prove that representation by his trial counsel fell below an objective standard of reasonableness, and we reject this argument. See Prine, 537 S.W.3d at 117 (noting that a claim of ineffective assistance of counsel must be firmly supported by the record).
3. Waiver of Competency Hearing
Lastly, Trejo complains that his defense counsel was deficient because counsel waived Trejo's right to have a jury decide his competency "when the dynamic between [Trejo] and his defense counsel had deteriorated."
a. Applicable Law
As a matter of constitutional due process, a defendant who is incompetent may not stand trial. Turner v. State, 422 S.W.3d 676, 688 (Tex. Crim. App. 2013). The Legislature has set forth a substantive and procedural framework for making competency determinations to ensure that legally incompetent criminal defendants do not stand trial. See TEX. CODE CRIM. PROC. ANN. arts. 46B.003-.005 (West, Westlaw through 2017 1st C.S.). Substantively, incompetency to stand trial is shown if the defendant does not have: "(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Id. art. 46B.003(a).
Procedurally, a trial court employs two steps for making competency determinations before it may ultimately conclude that a defendant is incompetent to stand trial. The first step is an informal inquiry; the second step is a formal competency trial. Id. art. 46B.005(a). At the informal inquiry, there must be "some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Id. art. 46B.004(c). If that requirement is met, then the trial court must order a psychiatric or psychological competency examination, and except for certain exceptions, it must hold a formal competency trial. Id. arts. 46B.005(a),(b), 46B.021(b) (West, Westlaw through 2017 1st C.S.). However, a formal competency trial is not required if: (1) neither party's counsel requests a trial on the issue of incompetency; (2) neither party's counsel opposes a finding of incompetency; and (3) the court does not, on its own motion, determine that a trial is necessary to determine incompetency. Id. art. 46B.005(c).
b. Discussion
In this case, at the request of trial counsel, the trial court appointed a psychologist to evaluate Trejo. According to the psychologist, Trejo demonstrated that he had the capacity to make a reasoned choice about defense options (trial strategy, guilty plea, plea bargain, proceeding pro se, pleading insanity) without distortions. He was not delusional, and he demonstrated he had the capacity to track oral questions and respond appropriately. Trejo added that he liked his attorney and trusted him to provide all the information requested from him by his counsel. The court-appointed psychologist deemed Trejo competent to stand trial. Additionally, trial counsel testified that it was his opinion Trejo was competent to stand trial and that he discussed Trejo's right to have a jury determine his competency.
Based on our review of the record, none of the evidence available suggests that Trejo did not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. Turner, 422 S.W.3d at 694 (finding no fault in the trial court's failure to conduct a formal competency trial following an initial evaluation that deemed defendant competent to stand trial); see TEX. CODE CRIM. PROC. ANN. art. 46B.003(a). We cannot say that Trejo's trial counsel deviated from professional norms by not requesting a competency determination. See Magic v. State, 217 S.W.3d 66, 74 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (holding that defendant was not denied ineffectiveness of counsel for failing to request a competency determination when defendant represented he could fully comprehend and understand the proceedings and various legal matters); see also Lampkin v. State, 470 S.W.3d 876, 909 (Tex. App.—Texarkana 2015, pet. ref'd) (providing that the trial court did not err in finding that defendant's trial counsel's decision to forego a competency hearing was reasonable because defendant failed to provide evidence that his mental status incapacitated his competency to stand trial). Moreover, we cannot conclude that Trejo's trial counsel's decision to forego a jury trial to determine Trejo's competency—following a court-appointed psychologist's evaluation which deemed Trejo competent to stand trial—was so outrageous that no competent attorney would have engaged in it. See Mata, 226 S.W.3d at 430.
After reviewing the record, we conclude that Trejo has not shown that his counsel's performance fell below the objective standard of professional norms or that counsel's representation was so deficient and so lacking in tactical or strategic decision-making as to overcome the presumption that counsel's conduct was reasonable and professional. See Strickland, 466 U.S. at 668. Accordingly, the trial court did not abuse its discretion when it denied Trejo's motion for new trial. We overrule his third issue. See Webb, 232 S.W.3d at 112.
VI. JURY CHARGE
By his fifth issue, Trejo argues that he was "denied the right to have the indictment conform with the charge of the Court" because the "State shifted or otherwise reduced the standard of proof" in the jury charge.
A. Standard of Review
We review a claim of jury charge error through a two-step process. Phillips v. State, 463 S.W.3d 59, 64-65 (Tex. Crim. App. 2015). We first determine whether there was error in the charge and, if so, whether that error was harmful. Id. Preservation of error becomes an issue in the second step because it determines the degree of harm required for reversal. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013). If error was preserved, we must reverse if the record shows the defendant suffered "some harm" as a result of it. Id. Conversely, when an appellant alleges error in the jury charge, but the alleged error was not objected to at trial, as here, we will reverse only if we find error causing egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (citing Alamanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)).
An error in the abstract instructions can be nonegregious when the application paragraph correctly instructs the jury. See Patrick v. State, 906 S.W.2d 481, 491-93 (Tex. Crim. App.1995) (en banc). In examining the record for egregious harm, we consider the entire jury charge, the state of the evidence, the final arguments of the parties, and any other relevant information revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). Egregious harm is determined on a case-by-case basis and is a difficult standard to prove. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) (en banc); Martinez v. State, 190 S.W.3d 254, 259 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). Egregious harm will be found only if the error deprived the defendant of a fair and impartial trial. Nava, 415 S.W.3d at 298. The record must disclose actual rather than theoretical harm, and the error must have affected the very basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive theory. Id.
B. Applicable Law
The trial court is required to give the jury a written charge "distinctly setting forth the law applicable to the case . . . ." TEX. CODE CRIM. PROC. ANN. art. 36.14 (West, Westlaw through 2017 1st C.S.). The application paragraph of a jury charge tells the jury under what circumstances it can find the defendant guilty. McFarland v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996), overruled on other grounds by Mosely v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). There are three elements of conduct which may be involved in an offense: (1) the nature of the conduct, (2) the result of the conduct, and (2) the circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03(a)-(c) (West, Westlaw through 2017 1st C.S.). An offense may contain any one or a combination of these conduct elements which will form the overall behavior that the legislature intended to criminalize. Cook v. State, 824 S.W.2d 634, 638 (Tex. App.—Dallas 1991, pet. ref'd). In distinguishing between result-oriented and nature-oriented offenses, it is helpful to note that when a specific act is criminalized because of its very nature, a culpable mental state applies to committing the act itself and thus, the offense is nature-oriented. Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.—San Antonio 1996, no pet.). On the other hand, unspecified conduct that is criminalized only because of its result requires intent as to that result, and is therefore, a result-oriented offense. Id. "Retaliation is in fact a result-oriented offense, and the focus is on whether the conduct is done with an intent to effect the result specified in the statute." Brock v. State, 495 S.W.3d 1, 16 (Tex. App.—Waco 2016, pet ref'd). Intent to engage in conduct that results in the harm is not an element of retaliation. Herrera, 915 S.W.2d at 97. Thus, the nature of the actor's conduct in committing retaliation is inconsequential to the commission of the crime. See id. at 98. "The focus is on whether the conduct is done with the intent to effect the result specified in the statute." Brock, 495 S.W.3d at 16. That is, did Trejo engage in action, regardless of what the action may have been, with the intent to harm Chief Cardenas in retaliation for or on account of his service or status of a public servant? See Herrera, 915 S.W.2d at 98.
C. Discussion
Trejo alleges that the jury charge's definitions of the applicable culpable mental states—intentionally and knowingly—were erroneous because they impermissibly indicated that retaliation is a nature-oriented offense, as opposed to solely a result-oriented offense. Trejo's complaint appears to be directed to the abstract and definitional part of the trial court's charge wherein the jury was instructed:
Because the record does not contain the jury charge at issue, we will rely on the trial court's reading of it.
A person acts intentionally or with intent with respect to a result of his conduct when it is his conscious objective or desire to cause the result.See TEX. PENAL CODE ANN. § 6.03(a)-(c). Thereafter the trial court, tracking the language of the indictment, submitted the following application paragraph to the jury in its charge:
A person acts knowingly or with knowledge with respect to the nature of his conduct or circumstances surrounding his conduct when he is aware of the nature of his conduct, or that circumstances exist.
A person acts knowingly or with knowledge with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause a result.
Now if you find from the evidence beyond a reasonable doubt, that on or about the 17th day of April 2015, in Hidalgo County, Texas, that the Defendant Jesus Trejo Trejo did then and there intentionally or knowingly threaten to harm another, to wit, Eloy Cardenas, by an unlawful act, to wit, kill him in retaliation for or on account of the service or status of the said Eloy Cardenas as a public servant, to wit, a city of Edcouch Peace Officer, then you will find the Defendant guilty of the offense of retaliation as charged in the indictment.
A jury charge which defines intentionally or knowingly as it relates to the nature of the conduct at issue is error where the offense charged is a result-oriented offense. Herrera, 915 S.W.2d at 98; Ybarra v. State, 890 S.W.2d 98, 106 (Tex. App.—San Antonio 1994, pet. ref'd); Fuller v. State, 819 S.W.2d 254, 256 (Tex. App.—Austin 1991, pet. ref'd). Here, the abstract definition of knowingly contained in the court's charge erroneously included a reference to the nature of Trejo's conduct. See Herrera, 915 S.W.2d at 98. Deciding whether error occurred is only part of our inquiry; once error is found, we must determine whether the error was harmful. Id. at 98. Here, Trejo failed to object to the court's charge to the trial court. Therefore, Trejo is not entitled to reversal unless the record shows that he suffered "egregious harm." Nava, 415 S.W.3d at 298.
The indictment in this case alleged that Trejo "did then and there intentionally or knowingly harm . . . Eloy Cardenas by an unlawful act . . . in retaliation for or on account of the service or status . . . as public servant." Here, the application paragraph of the charge limited the definitions of "intentionally" and "knowingly" to the result of the conduct. See Fuller, 819 S.W.2d at 257. The charge provided that in order to find Trejo guilty of retaliation, the jury must find that "the defendant Jesus Trejo Trejo . . . did then and there intentionally or knowingly threaten to harm another . . . by an unlawful act . . . in retaliation for or on account of the service as public servant . . . ." (emphasis added.) Thus, "intentionally or knowingly" only applied to the result of Trejo's conduct—the harm imposed on Chief Cardenas—not to any other conduct or the nature of the conduct. Moreover, the language tracked the allegation made in the indictment. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) ("Where the application paragraph correctly instructs the jury, an error in the abstract instruction is not egregious."). Consequently, the jury was prevented from convicting Trejo unless it found that he did intentionally and knowingly threaten to harm Chief Cardenas in retaliation for or on account of Chief Cardenas's service as a public servant. See id. Notwithstanding the erroneous definition, the jury could not have convicted Trejo without finding that he intended the result or knew what the result would be. Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) (holding that the inclusion of a merely superfluous abstraction never produces reversible error in the court's charge because it has no effect on the jury's ability to implement fairly and accurately the commands of the application paragraph or paragraphs). Because the jury's focus was properly directed to the result of Trejo's conduct and not the conduct itself, we cannot conclude that the purported error was egregious. See Medina, 7 S.W.3d at 640; Morales v. State, 853 S.W.2d 583, 585 (Tex. Crim. App. 1993) (en banc); see also Herrera, 915 S.W.3d at 98.
Next, Trejo argues that the State erroneously "reduced the standard of proof by injecting into the State's voir dire, opening, closing, and the charge of the court the wrong definitions of conduct." Although the State briefly misstated the law, we are unpersuaded that this error made any contribution to the jury's verdict. Fuller, 819 S.W.2d at 257. Only a small portion of the State's arguments discussed the erroneous charge. See Ruiz v. State, 753 S.W.2d 686 (Tex. Crim. App. 1988) (en banc) (holding that a jury argument is never alone a controlling factor in an Alamanza harm analysis). Finally, there is nothing in the record to indicate that the State, in its summation to the jury, suggested that Trejo could be found guilty without the requisite intent or knowledge. Fuller, 819 S.W.2d at 257; Ybarra, 890 S.W.2d at 107. Instead, the chief focus of the State's argument was whether Trejo intentionally committed the crime of retaliation. See Ford v. State, 870 S.W.2d 155, 161 (Tex. App.—San Antonio 1993, pet. ref'd). Viewing the jury argument in its entirety, we conclude that the State's arguments, taken in context, did not call upon the jury to convict Trejo merely because he intended to engage in the conduct that caused retaliation without finding that Trejo specifically intended the result from that conduct. See Ybarra, 890 S.W.2d at 107.
We will not address whether the State's argument was improper because Trejo did not object on this basis to the trial court. See Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 1996) ("A defendant's failure to object to the State's jury argument forfeits his right to complain about the argument on appeal."). Therefore, we will only address the State's argument in assessing whether Trejo suffered egregious harm. See Fuller v. State, 819 S.W.2d 254, 256 (Tex. App.—Austin 1991, pet. ref'd).
We note that the State made no distinction at trial between a result-oriented offense and a nature-oriented offense. In voir dire, the State suggested that an actor acts intentionally "with respect to the nature of their conduct or a result of their conduct when it is the actor's conscious objective or desire to engage in the conduct." In its closing, the State also suggested that a person acts knowingly "with respect to the nature of their conduct, or to the circumstances surrounding their conduct when they are aware of the nature of their conduct or that the circumstances exist." In summation of its closing argument, the State referred to the erroneous definition complained of on appeal and referenced the circumstances then existing at the time of the offense in relation to the nature of Trejo's conduct.
After reviewing the entire record as required by Almanza, we conclude that: (1) the language in the application paragraph properly limited the abstract portion of the charge, and (2) the complained of instruction did not result in egregious harm so as to deny Trejo a fair and impartial trial. Id.; Ford, 870 S.W.2d at 161. Therefore, considering the entire jury charge, the state of the evidence, the final arguments of the parties, and any other relevant information revealed by the record of the trial as a whole, we hold that the purported error in the jury charge did not egregiously harm Trejo. See Olivas, 202 S.W.3d at 144. Accordingly, his final point of error is overruled.
VII. CONCLUSION
Having overruled all of Trejo's issues, we affirm the judgment of the trial court.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Do not publish.
Delivered and filed the 25th day of October, 2018.