### IN THE TENTH COURT OF APPEALS
No. 10
- 07 - 00231
- CV
IN THE MATTER OF F.L .R., A JUVENILE

From the County Court at Law No
. 2 Johnson County, Texas Trial Court No. J04422

O P I N I O N
A jury found that F.L.R. engaged in delinquent conduct by stealing a n Under Armour sweatshirt valued at $50 or more but less than $500. The court placed F.L.R. on probation for twelve months. F.L.R. contends in his sole issue that he received ineffective assistance of counsel because his trial attorney failed to submit a written request for a jury instruction on abandoned property

. We will affirm. Background On the occasion in question, the complainant and F.L.R. were both students at Cleburne High School. The complainant had recently purchased a black Under Armour

swe atshirt imprinted with the words “Texas Tech Red Raiders” from a sporting goodsIn re F.L.R

. Page 2

store in Arlington . After dressing out for football practice, he put the sweatshirt in his locker and locked it. After practice, he discovered that his sweatshirt was missing

. F.L.R.’s locker was next to the complainant’s, and F.L.R. was in the locker room when he put the sweatshirt in his locker. Later that same day, F.L.R. sold the sweatshirt to another student who wore it to school the next day. When this student found o ut that the sweatshirt belonged to the complainant, he returned it to him. The complainant approached F.L.R. who told him that he had found the sweatshirt in the floor of the locker room. Later, they were summoned to a meeting with the coaches

w here F.L. R. said that he had found the sweatshirt under the bleachers outside. F.L.R.
testified at trial that he found the sweatshirt in the bleachers. At the charge conference, F.L.R.’s trial counsel orally requested an instruction on abandoned property and dict ated a proposed instruction on the record. The court denied the request.
Ineffective Assistance A juvenile has a right to effective assistance of counsel in an adjudication proceeding. In re S.C. , 229 S.W.3d 837, 842 (Tex. App.

— Texarkana 20 07, pet. deni ed);
R.X.F. v. State , 921 S.W.2d 888, 902 (Tex. App.

— Waco 19 96, no writ). The familiar
Strickland standard is used to resolve ineffective assistance claims. S.C. , 229 S.W.3d at 842 (citing Strickland v. Washington , 466 U.S. 668, 687

- 88, 104 S. Ct. 2052, 2064, 80 L. E d. 2d 674 (1984)); R.X.F. , 921 S.W.2d at 902 (same). To establish a claim for ineffective assistance of counsel, F.L.R. must show that: (1) counsel ’ s performance was deficient; and (2) there is a reasonable probability theIn re F.L.R

. Page 3

outcome would have been different but for counsel ’s deficient performance. See Ex parte Ellis , 233 S.W.3d 324, 330 (Tex. Crim. App. 20 07); S.C. , 229 S.W.3d at 842; R.X.F. , 921 S.W.2d at 902. Deficient Performance F.L.R. contends that counsel’s performance was deficient be cause counsel failed to tender a written request for a defensive instruction on abandoned property. Like a criminal defendant, a juvenile “ is entitled to an instruction on any properly requested defensive issue raised by the evidence, regardless of whethe r the evidence is weak or strong, unimpeached or contradicted, or credible or not credible. ” In re E.C.L. , 278 S.W.3d 510, 521 (Tex. App.

— Houston [14th Dist.] 2009, pet. filed); see Allen v. State , 253 S.W.3d 260, 267 (Tex. Crim. App. 20 08). W e view the evidence in the light most
favorable to the defendant when determining whether the requested instruction should
have been submitted. See Bufkin v. State , 207 S.W.3d 779, 782 (Tex. Crim. App. 20 06);
Durden v. State , No. 06

- 08

- 00223

- CR, 2009 WL 1347180, at *2 (Tex. App.

— Texarkana May 15, 20 09, no pet. h.). A person commits theft when he “unlawfully appropriates property with intent to deprive the owner of property.” T EX
. P EN
. C ODE A NN
. § 31.03(a) (Vernon Supp. 20 0 8 ).
When a defendant offers evidence that allegedly stolen property was abandoned, this
raises a mistake

- of

- fact defense. See Durden , 2009 WL 1347180, at *5 ; T EX
. P EN
. C ODE
A NN
. § 8.02 (Vernon 20 03) ; see also Ingram v. State , 261 S.W.3d 749, 753

- 54 (Tex. App.

— Tyler 20 08, no pet.) (“it is possible to take possession of abandoned property without committing a theft or intending to commit a theft”).In re F.L.R

. Page 4

F.L.R. testified that he found the sweatshirt on the bleachers about an hour after the complainant testified that he first noticed that it was missing. No one was around when he found the sweatshirt. F.L.R. saw no identifying information on the
sweatshirt. 1 He similarly told the coaches that he found the sweatshirt in the bleachers. A private investigator testified that he interviewed the complainant who told him that
he had left his sweatshirt in the bleachers. Viewed in the light most favorable to F.L.R., this evidence raises the mistake

- of

fact defense. See Durden , 2009 WL 1347180, at *5. Counsel orally requested a jury
instruction on this defens e, but he did not submit a written request for the instruction as required by Rule of Civil Procedure 278. See T EX
. R. C IV
. P. 278 (“ Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment
unless a substanti ally correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment. ”); In re M.P. , 126 S.W.3d 228, 230 (Tex. App.

— San Antonio 20 03, no pet.) (Rules of Civil Procedure govern the jury charge in a juven ile delinquency proceeding) (citing In re A.A.B. , 110 S.W.3d 553, 55 5

- 56 (Tex. App.

— Waco 20 03, no pet.) )

. Counsel dictated the desired instruction on the record. This would suffice to preserve the issue for appellate review under article 36.15 of the Cod e of Criminal
Procedure. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.15 (Vernon 20 06); A.A.B. , 110 S.W.3d at 557. But it does not satisfy the requirements of Rule 278. See T EX
. R. C IV
. P. 278;

1 Conversely, the complainant testified that his father wrote his name inside the pocket of the sweatshirt with a silver permanent marker.In re F.L.R

. Page 5

A.A.B. , 110 S.W.3d at 558. The Supreme Court has specifically ad dressed the propriety of dictating a request on the record and has concluded that doing so does not suffice.
Woods v. Crane Carrier Co. , 693 S.W.2d 377, 379 (Tex. 19 85) . The San Antonio Court has
declined to follow Woods , concluding that it is inconsiste nt with the “common sense” approach encouraged by the Supreme Court in State Department of Highways and Public Transportation v. Payne

. See M.P. , 126 S.W.3d at 230

- 31 (citing Payne , 838 S.W.2d 235, 241 (Tex. 19 92)). Yet, every other court which has appli ed Woods since Payne was decided has declined to relax the requirement of Rule 278 that a written request must be made.
See Laas v. State Farm Mut. Auto

. Ins. Co. , No. 14

- 98

- 00488

- CV, 2000 WL 1125287, at *12 (Tex. App.

— Houston [14th Dist.] Aug. 10, 2000, pet. denied); Sibert v. Coats , No. 06

- 98

- 00065

- CV, 1999 WL 182318, at *1 (Tex. App.

— Texarkana Apr. 5, 1999, no pet.); Fairfield Estates L.P. v. Griffin , 986 S.W.2d 719, 724 (Tex. App.

— Eastland 1999, no pet.) ; Gilgon,
Inc. v. Hart , 893 S.W.2d 562, 565

- 67 (T ex. App.

— Corpus Christi 19 94, writ denied); Mason v. S. Pac. Transp. Co. , 892 S.W.2d 115, 118 (Tex. App.

— Houston [1st Dist.] 19 94, writ denied); see also Hartnett v. Hampton Inns, Inc. , 870 S.W.2d 162, 165 (Tex. App.

— San
Antonio 19 93, writ denied).
In Pay ne , the Supreme Court chracteriz ed Texas jury charge procedure as “a labyrinth daunting to the m ost experienced trial lawyer.” Payne , 838 S.W.2d at 240. The Court discussed the complexities and flaws of these procedures at length and reached
the followin g conclusion:

The flaws in our charge procedures stem partly from the rules governing those procedures and partly from caselaw applying those rules. Last year we asked a special task force to recommend changes in the rulesIn re F.L.R

. Page 6

to simplify charge procedures, and amendments are under consideration. Rules changes must await the completion of that process; we do not revise our rules by opinion. We can, however, begin to reduce the complexity that caselaw has contributed to charge procedures. The procedure for preparing and objecting to the jury charge has lost its philosophical moorings. There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, time ly and plainly, and obtained a ruling. The more specific requirements of the rules should be applied, while they remain, to serve rathe r than defeat this principle.
Id. at 241 (citation omitted). The Corpus Christi Court provided a persuasive explanatio n in Gilgon for why the requirements of Rule 278 have not been superseded in any way by Payne : Payne does not abandon the rules of civil procedure in favor of a test based on “ whether the party made the trial court aware of the complaint, timely and plainl y, and obtained a ruling. ” Instead, Payne demands that we apply the rules “ while they remain ” despite the fact that the rules cannot always be reconciled with what the test “ should be. ” Gilgon , 893 S.W.2d at 565 (quoting Payne , 838 S.W.2d at 241). Rule 278 has not been
amended since Payne was decided. “ Payne demands that we apply [this rule]” as it still
remains. See id. Counsel’s oral request for an instruction on the mistake

- of

- fact defense did not satisfy the requirements of Rule 278. The defense was raised by the evidence, but counsel failed to preserve for appellate review the trial court’s refusal to submit an
instruction on the defense. F.L.R. has met the first element of the Strickland test for
ineffective assistance. See Davis v. State , 278 S.W.3d 346, 352 (Tex. Crim. App. 20 09) (counsel’s failure to request accomplice

- witness instruction met first element of
Strickland ).In re F.L.R

. Page 7 Prejudice
F.L.R. must also establish a reasonable probability the outcome would have been
different but for counsel ’s de ficient performance. Ellis , 233 S.W.3d at 330; see S.C. , 229 S.W.3d at 842; R.X.F. , 921 S.W.2d at 902.
In Davis , the Court of Criminal Appeals discussed the appropriate analysis for an ineffective assistance claim in which counsel failed to request an ac complice

- witness
instruction. See Davis , 278 S.W.3d at 352

- 53. Regarding prejudice, the Court held that this issue “will generally turn on whether there was a substantial amount of non

accomplice evidence and whether the record reveals any rational basis on which the jury could have doubted or disregarded that evidence.” Id. at 353. “[E]ach case must be judged on its own unique facts.” Id. It is also appropriate to consider criminal cases outlining the scope of review for assessing whether a defendant has suffered harm because of charge error. In this context, an appellate court considers: “ (1) t he charge itself; (2) t he state of the evidence, including contested issues and the weight of the probative evidence; (3) a rguments of counsel; [and] (4) a ny other relevant information revealed by the re cord of the trial as a whole.” Martin v. State , 200 S.W.3d 635, 641

- 42 (Tex. Crim. App. 20 06) (citing Hutch v.
State , 922 S.W.2d 166, 171 (Tex. Crim. App. 19 96)). We have already addressed the error in the cha rge. Regarding the state of the evidence, the jury’s verdict came down to whether the jurors believed F.L.R. or the complainant about where F.L.R. got the sweatshirt. Most of the evidence admitted favored the complainant’s version of the events. The par ties addressed abandonment ofIn re F.L.R

. Page 8

property during voir dire, in their opening statements, and in their arguments to the jury. The jury deliberated for just over an hour before returning the verdict. The State presented a “substantial amount” of evidence whic h supported the complainant’s version of the events. The jury was given the opportunity to disregard this evidence and to accept F.L.R.’s version of the events, but the jury chose not to

. See
Davis , 278 S.W.3d at 353. The State also presented evidence t hat F.L.R. later threatened the complainant if he did not drop the charges , which suggests consciousness of guilt. 2
See Durden , 2009 WL 1347180, at *6; Claxton v. State , 124 S.W.3d 761, 766 (Tex. App.

— Houston [1st Dist.] 20 03, pet. ref’d).
In some instan ces, the denial of a proper defensive instruction will prevent a defendant from arguing a defensive issue. Here, however, F.L.R. fully argued his theory that the sweatshirt had been abandoned. See Durden , 2009 WL 1347180, at *7. For these reasons, we co nclude that there is not a reasonable probability the
outcome would have been different but for counsel ’s deficient performance. See Ellis , 233 S.W.3d at 330; S.C. , 229 S.W.3d at 842; R.X.F. , 921 S.W.2d at 902. We overrule F.L.R.’s sole issue and affirm t he judgment.

FELIPE REYNA Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis

2 The State also charged F.L.R. with retaliation based on this evidence, but the jury acquitted him of this charge.In re F.L.R

. Page 9

(Chief Justice Gray concurs only in the judgment and only to the extent that it affirms the trial court’s judgment. A separate opinion will not issue.) ( Justice Davis concurs because no prejudice has been shown as required by Strickland v. Washington and Ex parte Ellis . A separate opinion will not issue.) Affirmed Opinion delivered and filed June 10, 2009 [CV06]