Tyler Schultz v. State ( 2019 )

NUMBER 13-17-00443-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
TYLER SCHULTZ, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 117th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
Tyler Schultz appeals his conviction for murder, a first-degree felony. See TEX.
PENAL CODE ANN § 19.02. On appeal, Schultz contends that his trial counsel was
ineffective by failing to request a jury charge instruction at punishment on sudden passion.
We affirm.
I. BACKGROUND
On November 17, 2016, Jeremiah Bates was fatally shot by Schultz in Corpus
Christi, Texas. According to the indictment, Schultz, “with intent to cause serious bodily
injury to an individual, namely, Jeremiah Bates, commit[ted] an act clearly dangerous to
human life, to-wit: firing a firearm at Jeremiah Bates, that caused the death of said
Jeremiah Bates . . . .” Schultz testified that, on the morning of November 17, 2016, he
was walking from his apartment to a clinic. After walking about four miles, he came upon
Bates, a mentally-ill homeless man, who was sitting on the sidewalk. Schultz saw that
Bates had a cigarette pack on him, and Schultz asked Bates for a cigarette. This
prompted Bates to yell at Schultz. According to Schultz, he could not comprehend
anything that Bates was yelling at him. Schultz walked away and sat down next to a
church across the street from where Bates was yelling. At this point, Bates was in the
middle of the street, with his back to oncoming traffic, and yelling at Schultz. During this
confrontation, Schultz stated that Bates exposed his penis twice.
The next few moments were disputed at trial. Schultz alleged that Bates started
approaching him and that he became afraid that Bates was going to sexually assault him.
However, an eyewitness testified that, though Bates took a few steps toward Schultz, it
did not look like Bates was trying to make physical contact with him. Another witness
testified that she did not believe that Bates was being aggressive towards Schultz
because Bates was yelling at “everything and everybody” and was just acting “crazy.”
Schultz testified that Bates also screamed and yelled at a bus that passed by the
intersection.
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Schultz testified that when Bates allegedly began to approach him, he got up and
fired two warning shots by Bates’s feet. According to Schultz and the witnesses, these
shots did not faze Bates or seem to scare him off. Witness testimony stated that, after
the first shots, Schultz started walking toward Bates and shot directly at him—two bullets
hit Bates, and he fell to the ground. According to witness testimony, Bates had his arms
up when he was shot. Schultz immediately fled from the scene, hid the gun magazine
behind an apartment building, and threw away the sweatshirt he had been wearing. A
police officer apprehended Schultz four blocks from where he shot Bates. Schultz initially
denied any involvement in the shooting. The gun used to shoot Bates was never
recovered and Schultz claimed that he did not know what happened to the gun. In an
interview with a detective, Schultz confessed to shooting Bates. Bates died from his
injuries in the hospital two days after he was shot.
At the guilt/innocence phase of trial, the jury charge included the offense of murder
and the lesser degree offense of manslaughter, as well as an instruction on self-defense.
The jury found Schultz guilty of murder, a first-degree felony, and assessed punishment
at twenty-five years’ confinement. This appeal followed.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
By his sole issue, Schultz argues that he received ineffective assistance of
counsel. Specifically, Schultz argues that his defense counsel was ineffective for failing
to request an instruction on sudden passion during the punishment phase of the trial.
A. Applicable Law and Standard of Review
Individuals in a criminal prosecution are guaranteed the right to assistance of
counsel by the Sixth Amendment to the United States Constitution and § 10 of Article 1
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of the Texas Constitution. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Lopez v.
State, 343 S.W.3d 137,142 (Tex. Crim. App. 2011). This right encompasses not merely
the presence of a lawyer, but the effective assistance of that lawyer. Id. Nevertheless,
this right does not mean perfect counsel, but rather the right to objectively reasonable
representation. Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006) (“The
right to effective assistance of counsel merely ensures the right to reasonably effective
assistance.” (citing Ingham v. State, 679 S.W.2d 503, 509 (Tex. Crim. App. 1984))).
The United States Supreme Court and the Texas Court of Criminal Appeals have
adopted a two-pronged test to determine whether a criminal defendant received
ineffective assistance of counsel. See, Strickland v. Washington, 466 U.S. 668, 687
(1984); Hernandez v. State, 726 S.W.2d 53, 54–55 (Tex. Crim. App. 1986); Munoz v.
State, 24 S.W.3d 427, 433 (Tex. App.—Corpus Christi–Edinburg 2000, no pet.). To
establish that trial counsel was ineffective, an appellant must show that (1) his attorney’s
representation fell below an objective standard of reasonableness under prevailing
professional norms and (2) there is a reasonable probability that, but for his attorney’s
errors, the result of the proceeding would have been different. Strickland, 466 U.S. at
687; Ex parte Martinez, 330 S.W.3d 891, 900–01 (Tex. Crim. App. 2011); Davis v. State,
278 S.W.3d 346, 352 (Tex. Crim. App. 2009). A reasonable probability is one sufficient
to undermine confidence in the outcome of the trial. Thompson v. State, 9 S.W.3d 808,
812 (Tex. Crim. App. 1999).
The appellant has the burden to prove ineffective assistance of counsel by a
preponderance of the evidence. Thompson, 9 S.W.3d at 813. This court will review
counsel’s effectiveness not by isolated acts or omissions, but by the totality of the
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representation. Id. To demonstrate that counsel was ineffective, the appellant must
overcome the strong presumption that the complained-of action “might be considered
sound trial strategy.” Strickland, 466 U.S. at 689 (citing Michel v. Louisiana, 350 U.S. 91,
100–101 (1955)). Unless the record shows that counsel’s conduct was not the product
of a strategic decision, “a reviewing court should presume that trial counsel’s performance
was constitutionally adequate unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.” State v. Morales, 253 S.W.3d 686, 696–
97 (Tex. Crim. App. 2008) (citing Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005)). The Texas Court of Criminal Appeals has noted that, in most cases, a silent
record that does not clarify the reasons for counsel’s actions will not overcome the strong
presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110–11
(Tex. Crim. App. 2003).
“At the punishment stage of a [murder] trial, the defendant may raise the issue as
to whether he caused the death under the immediate influence of sudden passion arising
from an adequate cause.” TEX. PENAL CODE ANN. § 19.02(d). The judge shall deliver to
the jury “a written charge distinctly setting forth the law applicable to the case.” TEX. CODE
CRIM. PROC. ANN. art. 36.14. “Defensive issues are not law applicable to the case under
[Texas] Code of Criminal Procedure [Article] 36.14 unless and until the defendant raises
the issue by a timely objection or request.” Newkirk v. State, 506 S.W.3d 188, 191 (Tex.
App.—Texarkana 2016, no pet.).
B. Analysis
1. First Strickland Prong
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Schultz complains that his defense counsel failed to request an instruction on
sudden passion in the punishment charge. He contends that in light of the evidence
brought forth at trial, he was entitled to the instruction. Schultz did not file a motion for
new trial and raised his ineffective assistance claim for the first time on direct appeal.
Therefore, the record is silent as to why Schultz’s trial counsel chose to not request a
sudden passion instruction in the punishment charge.
The first prong of Strickland requires Schultz to show that counsel’s performance
was deficient. Strickland, 466 U.S. at 687. This is demonstrated by a showing that the
errors made by counsel were so serious that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment to the United States Constitution. Id. However,
Schultz has not demonstrated how the actions by counsel constituted an error so serious
as to offend the Sixth Amendment. Schultz contends that there cannot be any trial
strategy for failing to request a sudden passion instruction. The record in this case is
silent as to the reason why Schultz’s trial counsel failed to request a sudden passion
instruction at the punishment stage of trial. The record on direct appeal is usually
insufficient to adequately reflect the failings of trial counsel. Thompson, 9 S.W.3d at 814–
5. The Texas Court of Criminal Appeals ruled in Thompson that when the record provides
no apparent explanation or motive behind counsel’s actions, the appellate court should
be particularly hesitant to declare counsel ineffective based upon a “single alleged
miscalculation during what amounts to otherwise satisfactory representation.” Id. at 814.
Due to the undeveloped record, and without any explanation to the motives behind
counsel’s action, this Court refuses to speculate as to the trial strategy of Schultz’s trial
counsel. We further find that counsel’s conduct was not “so outrageous that no competent
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attorney would have engaged in it.” See Morales, 253 S.W.3d at 696–97. Therefore,
Schultz has failed to negate the strong presumption that this was a sound strategic
decision.
2. Second Strickland Prong
The second prong of Strickland requires Schultz to show prejudice by
demonstrating that there was a reasonable probability that, but for his counsel’s action,
the result would have been different. Strickland, 466 U.S. at 694. When the complained-
of action is during the sentencing phase of trial, prejudice is established if the appellant
demonstrates that his sentence was increased by the deficient performance of his trial
counsel. See Glover v. U.S., 531 U.S. 198, 200 (“if an increased prison term did flow
from an error, the petitioner has established Strickland prejudice.”).
However, “merely showing that a sudden-passion instruction would have given the
jury another sentencing opinion is not enough to demonstrate prejudice under Strickland.”
Newkirk, 506 S.W.3d at 198. Schultz must establish that (1) if his counsel requested the
sudden passion instruction that he would have received it and (2) that the jury would have
imposed a lesser sentence after hearing the instruction. See id. Even supposing that
Schultz was entitled to the sudden passion instruction, he has not established a
reasonable probability that, had he received the instruction, the jury would have imposed
a less harsh sentence.
Furthermore, “it is highly unlikely that a jury that had already rejected the
appellant’s claim that he reasonably believed that deadly force was immediately
necessary to defend himself would nevertheless find in his favor on the issue of sudden
passion.” Wooten v. State, 400 S.W.3d 601, 609 (Tex. Crim. App. 2013); see Chavez v.
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State, 6 S.W.3d 66, 73 (Tex. App.—San Antonio 1999, pet. ref’d) (“Because it is
reasonable to presume that the evidence justifying the jury’s finding against Chavez on
self-defense would also justify a finding that Chavez was not acting under sudden
passion, the record does not clearly confirm that trial counsel should have requested such
instruction.”).
To prove sudden passion, Schultz would have to prove that: (1) he acted under
the immediate influence of passion, (2) his sudden passion was provoked by Bates, (3)
he had no time to cool off, (4) he committed the murder before he had time to cool off,
and (5) there was a causal connection between the provocation and the homicide. See
TEX. PENAL CODE ANN. § 19.02(a); Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App.
2015). However, the jury in this case already rejected Schultz’s claim that he reasonably
believed deadly force was necessary; thus, it was unlikely to believe that when Schultz
shot at Bates, he was under the immediate influence of passion that caused to him to
lose control. See Chavez, 6 S.W.3d at 73 (“[E]xcept in rare instances, when the State’s
evidence is sufficient to overcome a claim of self-defense, it will also be sufficient to show
the absence of sudden passion.”); see also Wooten, 400 S.W.3d at 610 (concluding that
a jury that rejected a self-defense claim that deadly force was immediately necessary
would likely reject a claim that the defendant acted under an immediate influence of
passion). Based on the evidence and record, the probability that the jury would have
imposed a lighter sentence had it received a sudden passion instruction is extremely low.
See Chavez, 6 S.W.3d at 73. Therefore, Schultz has not demonstrated the second prong
of Strickland requiring him to show that, but for his counsel’s actions, the result would
have been different. Strickland, 466 U.S. at 694. We overrule Schultz’s sole issue.
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III. CONCLUSION
We affirm the trial court’s judgment.
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
11th day of July, 2019.
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