Rivera, Christino D. v. State

NUMBER 13-00-018-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ CHRISTINO D. RIVERA, Appellant, v. THE STATE OF TEXAS, Appellee. ___________________________________________________________________ On appeal from the 230th District Court of Harris County, Texas. ___________________________________________________________________ O P I N I O N Before Chief Justice Valdez and Justices Dorsey and Rodriguez Opinion by Chief Justice Valdez A jury found appellant Christino Rivera guilty of aggravated assault. Rivera was sentenced to twelve years imprisonment and ordered to pay a $6,000 fine. See Tex. Pen. Code Ann. §22.02 (Vernon 1994). Rivera appeals this conviction by two issues. We affirm. Background Rivera was charged with stabbing Noe Perez, his former employer. The facts underlying the assault are in dispute. According to Perez and a witness, Rivera stabbed Perez without provocation at a Houston carwash. However, according to Rivera and his wife, Guadalupe Odonez, Perez physically assaulted Odonez at the carwash, and pulled her towards his vehicle in order to sexually assault her. During this altercation, Perez assaulted Rivera with a knife, and Rivera obtained this knife to stab Perez. Rivera thus alleged at trial that he stabbed Perez in self defense and in defense of Odonez. Analysis In the instant case, the jury was instructed on self defense, but was not instructed about defense of a third party. Rivera contends that the trial court's failure to instruct the jury on defense of a third party deprived him of due process of law. However, a trial court has no duty to sua sponte instruct the jury on a defensive issue when the defendant fails to request such an instruction. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). This is so even where evidence adduced at trial raises the issue. Id. Moreover, a trial court's failure to perfectly apply the law to the facts of the case in an otherwise acceptable jury charge does not rise to the level of constitutional error. See Escobar v. State, 28 S.W.3d 767, 780 (Tex.App.--Corpus Christi 2000, no pet.). We overrule Rivera's first issue. Rivera also contends that his attorney erred in failing to object to the omission of this instruction from the charge, thus he was deprived of effective assistance of counsel. The proper standard of review for effectiveness of counsel was established by Strickland v. Washington, 466 U.S. 668, 686 (1984). See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999); Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim. App. 1999). Strickland requires a two-part inquiry. The defendant must first show that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson, 9 S.W.3d at 812. Second, the defendant must further prove that there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. The appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Id. at 813. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689; Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992). To defeat the presumption of reasonable professional assistance, "any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), cert. denied, 519 U.S. 1119 (1997). In the instant case, Rivera fails to meet the first requirement of the Strickland test, that is, showing that his counsel's performance was deficient. The record must contain evidence of counsel's reasoning, or lack thereof, to rebut the presumption that counsel was applying sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). There is no evidence in the record that rebuts the presumption that Rivera's counsel was providing reasonable professional assistance at trial. Moreover, even if we were to conclude that counsel's failure to request an instruction was sufficient to show that counsel's performance was deficient under the first prong of Strickland, Rivera would be unable to show that counsel's deficient performance prejudiced his defense, as required under the second prong of the Strickland test. The trial court instructed the jury on self defense. The jury nevertheless found Rivera guilty of aggravated assault. By finding him guilty of aggravated assault, the jury implicitly rejected Rivera's self defense theory. See Saxon v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). This negative finding on the part of the jury precludes the possibility that Rivera was justified in using deadly force to defend a third person. See Curtis v. State, 754 S.W.2d 460, 462 (Tex. App.--Dallas 1988, pet. ref'd). Under these circumstances, any error in failing to request an instruction on defense of a third person was harmless, and Rivera cannot show prejudice as required by Strickland. Consequently, we overrule Rivera's second issue. We affirm the judgment of the trial court. _________________________ ROGELIO VALDEZ Chief Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 29th day of March, 2001.