Affirmed and Memorandum Opinion filed January 25, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00835-CR

RICHARD SPILLER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 263rd District Court

Harris County, Texas

Trial Court Cause No. 1627280

MEMORANDUM OPINION

In this appeal from a conviction for aggravated assault with a deadly weapon, 

we consider one complaint of charge error, and several additional complaints of 

ineffective assistance of counsel. For reasons explained more fully below, we 

overrule all of the complaints and affirm the trial court’s judgment.
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BACKGROUND

This case began as a conflict between two young boys, but it ended with their 

parents’ exchange of gunfire.

The complainant, an eight-year-old boy, got into a physical altercation with 

appellant’s son, who was twelve. The cause of the altercation was the latter’s taking 

of the former’s basketball. When the complainant’s mother learned of the 

altercation, she tried to speak with appellant’s son, but according to her, he had 

already left the scene.

Later that same day, appellant approached the complainant’s mother, and they 

got into a heated argument, with him being under the impression that she had been 

“jumping on [his] kids.” Appellant threatened to “shut the block down,” which the 

complainant’s mother construed as a threat to shoot.

After making that threat, appellant left the scene, but he returned shortly 

thereafter with the mother of his son and several other individuals. Another heated 

argument ensued, but this time, the complainant’s mother pulled out a gun to show 

that she was armed. She did not point it at anyone, and the crowd left without 

incident.

Appellant then returned for a third time and fired multiple shots at the 

complainant’s mother, who was outside on a porch. By then, her husband was 

nearby, and he returned a few rounds of gunfire from the gun that his wife had 

previously brandished. None of the parents was ever struck, but one of the bullets 

hit the complainant in the knee, causing serious damage.

Appellant was charged with shooting the complainant. He pleaded not guilty 

to that charge, and his case proceeded to a trial by jury.
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Appellant did not testify during the proceedings, but a pretrial letter that he 

wrote to the judge was introduced into evidence. In that letter, appellant admitted to 

shooting a firearm, but he denied that he shot the complainant. He asserted instead 

that he had merely engaged in deadly conduct.

Appellant’s counsel continued with that defense. More specifically, counsel 

attempted to establish that appellant could not have shot the complainant, because 

the complainant had been behind a vehicle at the time of the shooting, and there was 

evidence that certain bullets had entered the vehicle, but they had not exited it.

Counsel suggested that the complainant was struck by a ricocheted bullet that had 

been fired from his own father. Counsel also suggested that there was reasonable 

doubt about appellant’s guilt because the crime scene had been disturbed when the 

complainant was receiving treatment in the hospital. In particular, a neighbor had 

wiped away all of the blood on the porch, which, according to counsel, precluded 

any sort of blood splatter or trajectory analysis.

The jury rejected appellant’s defensive arguments and convicted him as 

charged.

CHARGE ERROR

Appellant argues first that the trial court erred by failing to submit jury charge 

instructions on the laws of self-defense and defense of a third person. Appellant 

acknowledges that his counsel did not request the submission of those defensive

issues. Nevertheless, appellant argues that the trial court should have submitted them 

sua sponte, and that its failure to do so amounted to error.

Appellant’s argument is plainly foreclosed by Posey v. State, 966 S.W.2d 57 

(Tex. Crim. App. 1998), which held that the trial court has no duty to sua sponte 

instruct the jury on unrequested defensive issues. Id. at 62. Appellant acknowledges 
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this contrary authority, but he suggests that it was somehow called into doubt by 

New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). We disagree. 

Bruen held that the U.S. Constitution protects an individual’s right to carry a 

handgun for self-defense outside of the home. Id. at 8. That case says nothing about 

a Texas trial court’s responsibility in submitting a charge to the jury. Appellant’s 

arguments to the contrary lack merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his next issue, appellant raises several complaints of ineffective assistance 

of counsel. We review such complaints under the standard set forth in Strickland v. 

Washington, 466 U.S. 668 (1984). Under that standard, appellant must prove by a 

preponderance of the evidence that his counsel’s performance was deficient, and that 

the deficient performance was so prejudicial that it deprived him of a fair trial. Id. at 

687.

I. Failure to Call or Inquire About a Witness

The probable cause affidavit identified a witness who stated that he saw 

appellant “run to the scene with a black firearm in his hand, raise the firearm, fire it 

multiple times, then run away from the scene on foot.” This witness did not testify 

during the trial.

Appellant now claims that his counsel was ineffective by not calling this 

witness to testify. Had this witness testified, appellant argues that counsel could have 

developed evidence that appellant fired his weapon at the complainant’s parents 

because he reasonably believed that they were going to use deadly force against him

or his family.

“To obtain relief on an ineffective assistance of counsel claim based on an 

uncalled witness, the applicant must show that [the witness] had been available to 
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testify and that his testimony would have been of some benefit to the defense.” Ex 

parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004). Appellant has made no 

showing here that the uncalled witness was available to testify. Accordingly, this 

ineffectiveness claim must fail.

Appellant relatedly argues that counsel was ineffective by not questioning the 

complainant’s parents—who did testify at trial—about what this other witness had

told investigators.

When assessing counsel’s performance, our review is highly deferential and 

begins with the strong presumption that counsel’s decisions were reasonably 

professional and were motivated by sound trial strategy. See Jackson v. State, 877 

S.W.2d 768, 771 (Tex. Crim. App. 1994). The effect of this presumption is that we 

cannot ordinarily conclude that counsel’s performance was deficient on a silent 

record. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Counsel 

must usually be given an opportunity to explain his actions and omissions before he 

is condemned by a court for being unprofessional or incompetent. See Bone v. State, 

77 S.W.3d 828, 836 (Tex. Crim. App. 2002).

In this case, appellant did not file a motion for new trial complaining of 

counsel’s performance, nor did counsel otherwise testify or file an affidavit 

explaining his strategic decisions. When the record is silent, as it is here, we cannot 

conclude that counsel’s performance was deficient unless the challenged conduct 

was “so outrageous that no competent attorney would have engaged in it.” See 

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005). This is a difficult 

standard, and for at least two reasons, we cannot say that counsel’s failure to ask 

questions about this witness’s out-of-court statements rises to that level. First, any 

such questions would have elicited inadmissible hearsay. And second, appellant has 
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made no showing what the hearsay testimony would have revealed, or whether it 

would have benefited the defense.

II. Failure to Request an Instruction on a Justification Defense

Appellant argues next that counsel was ineffective by failing to request a 

charge instruction on self-defense or defense of a third person.

Assuming for the sake of argument that the evidence raised either of these 

justification defenses, the decision to propound such a defense depends upon trial 

strategy and tactics. See Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 

2007). Indeed, a competent attorney can reasonably decide that a defense should not 

be argued to a jury, even though the defense might technically be available. See 

Vasquez v. State, 830 S.W.2d 948, 950 n.3 (Tex. Crim. App. 1992).

The record here does not affirmatively reveal counsel’s reasons for not 

propounding a justification defense. Thus, the record does not rebut the strong 

presumption that counsel’s actions and omissions were reasonably professional.

Nor can we say that counsel’s decision to forgo a justification defense was so 

outrageous that no competent attorney would have forgone the same. Had counsel 

pursued a justification defense, as appellant believes he should have, then counsel 

would have been required to convince a jury that appellant believed his use of force 

was immediately necessary under the circumstances. That burden would have been 

difficult in light of appellant’s assertion in his letter that he retrieved his gun to 

“scare” the complainant’s mother, rather than because he believed his use of force 

was immediately necessary. Relatedly, there was video evidence showing that 

appellant chose to leave his confrontation with the complainant’s mother, only to 

then grab a firearm and return to the scene firing, rather than keep his distance

altogether. Counsel could have reasonably concluded from this evidence that 
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appellant’s defensive chances were greater by simply arguing that there was 

reasonable doubt as to which shooter was responsible for shooting the complainant. 

Under Strickland and this silent record, we do not second-guess that strategy.

III. Failure to Object to Hearsay

Appellant’s next complaint focuses on the following exchange between the 

prosecution and the complainant’s mother:

Q. If someone were to make an argument that it was not the 

defendant’s bullet that struck your child but it was your 

husband’s bullet that struck your child, what would you have to 

say to that?

A. My husband had a .380. The defendant had a 9 millimeter. The 

bullet—it was a pretty big hole because the bullet that was on the 

side of my door, too, they—it was—there was, I guess, the—I 

don’t know what you call it—the bullet or whatever was inside 

the door. The detective took that; and the doctor—the surgeon, 

he told me it was .9, too, from the wound.

Appellant asserts that the mother introduced inadmissible hearsay when she 

testified about the surgeon’s assessment of the caliber of the bullet, and appellant 

believes that counsel was ineffective for failing to object to that hearsay.

Even if we assumed for the sake of argument that counsel’s failure to object 

amounted to deficient performance, appellant could not demonstrate that he was 

prejudiced unless he showed a reasonable probability that, but for counsel’s error, 

the result of the proceeding would have been different. See Strickland, 466 U.S. at 

694. The record forecloses that showing for two reasons. First, the surgeon—who 

testified after the complainant’s mother—explained that, in his capacity as a doctor, 

he has “absolutely” no way of determining the caliber of a ballistics weapon, 

especially in cases like this where there was an exit wound and no projectile. And 

second, the physical evidence indicated (and appellant admitted in his letter) that he 
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had used a .45 caliber weapon, not a 9 millimeter. Thus, appellant has not shown 

that he was prejudiced by the unsolicited hearsay testimony that the complainant was 

struck by a bullet from a 9 millimeter firearm.

IV. Failure to Produce Evidence in Punishment

Counsel did not present any mitigating evidence during the punishment phase 

of trial. Appellant now challenges that omission. Drawing attention to his 

handwritten letter, where he stated that he was a football coach, appellant argues that 

counsel should have put on testimony from the children who played on his football 

team or their parents.

But appellant has not identified any children or parents by name who were 

available to testify. Nor has he indicated how their testimony would have been 

beneficial. Just as before, when appellant raised a complaint about counsel’s failure 

to call a witness, appellant has not demonstrated any entitlement to relief.

V. Failure to Subject the Prosecution’s Case to “Meaningful Adversarial 

Testing”

Appellant lastly presents an assortment of complaints from six different 

moments of the trial, which, in his estimation, collectively demonstrate that there 

was a constructive denial of counsel altogether, such that prejudice should be

presumed. See Cannon v. State, 252 S.W.3d 342, 349 (Tex. Crim. App. 2008) (“If 

an appellant can demonstrate that defense counsel entirely failed to subject the 

prosecution’s case to meaningful adversarial testing, so that there was a constructive 

denial of the assistance of counsel altogether, then prejudice, because it is so likely, 

is legally presumed.”) (citing United States v. Cronic, 466 U.S. 648 (1984)).

Appellant first highlights one moment where the trial court interrupted a 

witness and advised counsel to “please join us, sir.” Appellant speculates from this 

statement that counsel had fallen asleep during the proceedings.
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In his second complaint, appellant draws attention to counsel’s 

misidentification of a witness. Counsel referred to the mother of appellant’s children 

as Jashontae, when her actual name is Jounette.

Relatedly, in his third complaint, appellant focuses on a moment where 

counsel could not identify the complainant’s father on the surveillance video.

Appellant speculates from this misidentification that counsel must not have viewed 

the video before trial.

In his fourth complaint, appellant criticizes counsel’s misidentification of the 

community where the shooting took place. Counsel identified the community as 

Thomas Village, when the actual name is Tierwester Village.

In his fifth complaint, appellant criticizes counsel for believing that one 

evidence marker in a police sketch signified a shell casing, when the evidence 

marker actually signified a bottle of bleach.

And in his sixth complaint, appellant criticizes counsel for making the 

following italicized point in his closing statement:

I would like you to consider the testimony of [the complainant’s 

mother]. You also heard in the video—y’all saw her brandish, pull a 

pistol, threaten. And what would you do if someone threatened you or 

your little child? Well, you think it would upset you, be emotional and 

maybe not react in a civilized manner? No, it doesn’t give you the right 

to go get your weapon and shoot; but I want you to consider the 

credibility of [the complainant’s mother].

Appellant asserts that this italicized point “argued against what should have 

been his theory of the case: that [he] acted in self-defense or defense of others.”

A defendant is constructively denied the assistance of counsel when his 

lawyer is “inert” or a “potted plant”—i.e., when the lawyer, although physically and 

mentally present in the courtroom, fails to provide (or is prevented from providing) 
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any meaningful assistance. See Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. 

Crim. App. 2005). That can happen when the lawyer is asleep or unconscious, id., 

but the record here does not affirmatively establish that appellant’s counsel was 

sleeping, as appellant has asserted. Nor can we say that counsel’s misidentification 

of two witnesses, a community, or an evidence marker—all of which were isolated 

errors—demonstratesthat counsel was completely unable to provide any meaningful 

assistance. The same is true about appellant’s complaint of counsel’s closing 

argument, which merely establishes (with the benefit of hindsight) appellant’s 

disapproval of counsel’s chosen defensive strategy.

The record establishes that counsel was able to craft a meaningful defense by 

arguing that the complainant was struck by a ricocheted bullet from his father, rather 

than a shot from appellant. Even though the jury ultimately rejected this theory, there 

was some inferential support for it in the evidence. Indeed, counsel may have 

reasonably believed that he was obliged to follow this theory, given that it was the 

same theory that appellant had asserted in his pretrial letter to the trial judge. For all 

of these reasons, we reject appellant’s suggestion that counsel failed to subject the 

prosecution’s case to any meaningful adversarial testing.

Appellant alternatively suggests that even if prejudice cannot be presumed, 

then he should still be entitled to relief. We disagree. Even if we assumed for the 

sake of argument that counsel’s performance was deficient in each of the moments 

cited above, there is no reasonable probability that the outcome of the proceedings 

would have been different but for counsel’s unprofessional errors.
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CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher

Chief Justice 

Panel consists of Chief Justice Christopher and Justices Bourliot and Hassan.

Do Not Publish — Tex. R. App. P. 47.2(b).