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 an 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 

sweatshirt imprinted with the words “Texas Tech Red Raiders” from a sporting goods 
In 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 out 

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 

where 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 dictated 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 2007, pet. denied); 

R.X.F. v. State, 921 S.W.2d 888, 902 (Tex. App.—Waco 1996, 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. Ed. 

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 the 
In 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. 2007); 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 because 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 whether 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. 2008). We 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. 2006); 

Durden v. State, No. 06-08-00223-CR, 2009 WL 1347180, at *2 (Tex. App.—Texarkana 

May 15, 2009, no pet. h.).

A person commits theft when he “unlawfully appropriates property with intent 

to deprive the owner of property.” TEX. PEN. CODE ANN. § 31.03(a) (Vernon Supp. 2008). 

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; TEX. PEN. CODE 

ANN. § 8.02 (Vernon 2003); see also Ingram v. State, 261 S.W.3d 749, 753-54 (Tex. App.—

Tyler 2008, 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-offact defense. See Durden, 2009 WL 1347180, at *5. Counsel orally requested a jury 

instruction on this defense, but he did not submit a written request for the instruction as 

required by Rule of Civil Procedure 278. See TEX. R. CIV. P. 278 (“Failure to submit a 

definition or instruction shall not be deemed a ground for reversal of the judgment 

unless a substantially 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 2003, no pet.) (Rules of Civil Procedure govern the jury charge 

in a juvenile delinquency proceeding) (citing In re A.A.B., 110 S.W.3d 553, 555-56 (Tex. 

App.—Waco 2003, 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 Code of Criminal 

Procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.15 (Vernon 2006); A.A.B., 110 S.W.3d 

at 557. But it does not satisfy the requirements of Rule 278. See TEX. R. CIV. 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 addressed 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. 1985). The San Antonio Court has 

declined to follow Woods, concluding that it is inconsistent 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. 1992)). Yet, every other court which has applied 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 (Tex. App.—Corpus Christi 1994, writ denied); 

Mason v. S. Pac. Transp. Co., 892 S.W.2d 115, 118 (Tex. App.—Houston [1st Dist.] 1994, 

writ denied); see also Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 165 (Tex. App.—San 

Antonio 1993, writ denied).

In Payne, the Supreme Court chracterized Texas jury charge procedure as “a 

labyrinth daunting to the most 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 following 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 rules 
In 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, timely and plainly, and obtained a 

ruling. The more specific requirements of the rules should be applied, 

while they remain, to serve rather than defeat this principle.

Id. at 241 (citation omitted).

The Corpus Christi Court provided a persuasive explanation 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 plainly, 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. 2009) 

(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 deficient 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 accomplice-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 nonaccomplice 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) the charge itself; (2) the state of the evidence, 

including contested issues and the weight of the probative evidence; (3) arguments of 

counsel; [and] (4) any other relevant information revealed by the record of the trial as a 

whole.” Martin v. State, 200 S.W.3d 635, 641-42 (Tex. Crim. App. 2006) (citing Hutch v. 

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

We have already addressed the error in the charge. 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 parties addressed abandonment of 
In 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 which 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 that 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.] 2003, pet. ref’d).

In some instances, 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 conclude 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 the 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]