Opinion issued November 29, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00059-CR

———————————

WALTER LEE ROBERTS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from County Criminal Court at Law No. 4

Harris County, Texas

Trial Court Case No. 2013442

MEMORANDUM OPINION

Appellant, Walter Lee Roberts, was charged by information with disorderly 

conduct.1 Appellant pleaded not guilty, and the jury found him guilty. The trial 

 

1 See TEX. PENAL CODE ANN. § 42.01(a)(8) (Vernon Supp. 2016).
2

court assessed punishment at 180 days’ confinement, suspended the sentence, and 

placed Appellant on community supervision for 90 days. The trial court also 

assessed a fine of $2,000. In four issues2 on appeal, Appellant argues the trial court 

or the State committed reversible error and his counsel provided ineffective 

assistance concerning (1) the constitutionality of the crime for which he was 

charged, (2) obtaining and producing exculpatory evidence, (3) the sufficiency of 

the allegations in the information, and (4) failing to include a self-defense instruction 

in the charge.

We affirm.

Background

On March 5th, 2015, Etoinne Ternoir was at a gas station in Baytown, Texas. 

The gas station has a car wash, and Ternoir pulled his truck up to the entrance to get 

it washed. Before proceeding through the car wash, Ternoir did some pre-cleaning 

on his truck. While Ternoir was doing this, Appellant pulled up behind him. 

Appellant asked Ternoir if he was the attendant. Ternoir said no. Appellant replied, 

“So you’re just in the way.”

 

2 Appellant’s brief lists six issues. Five of the issues allege error on the part of the 

trial court or the State. Two of those pertain to the sufficiency of the allegations in 

the information. The last issue re-incorporates the other issues and reframes them 

as claims of ineffective assistance of counsel. For purposes of this opinion, we have 

renumbered the issues raised by Appellant. All issues raised by Appellant are 

disposed of by this opinion.
3

Ternoir told Appellant he was trying to hurry, but Appellant appeared 

displeased. As Ternoir was putting away the brush he had been using to clean his 

truck, Appellant yelled for his attention. Ternoir looked up and saw Appellant 

pointing a shotgun at him. Ternoir got back in his truck and proceeded through the 

car wash, the only way out for him. As he went through the car wash, Ternoir called 

9-1-1. Police arrived as Appellant was going through the car wash.

Appellant was charged with disorderly conduct. Specifically, the information 

alleged “that in Harris County, Texas, Walter Lee Roberts, hereafter styled the 

Defendant, heretofore on or about March 5, 2015, did then and there unlawfully 

intentionally and knowingly display a deadly weapon, namely, a firearm, in a public 

place and in a manner calculated to alarm.”

Appellant testified at trial. He denied pointing his shotgun at Appellant. 

Instead, he testified that he got out of the truck with the shotgun, walked to the store, 

and stood outside the store with his back to the wall. Appellant testified that he did 

this because he had become afraid that he could be the victim of a carjacking. 

Ineffective Assistance of Counsel Applicable Law

We apply the following principles to each of Appellant’s issues as they relate 

to his claims of ineffective assistance of counsel. The Sixth Amendment to the 

United States Constitution guarantees the right to reasonably effective assistance of 

counsel in criminal prosecutions. See U.S. CONST. amend. VI. To show ineffective 
4

assistance of counsel, a defendant must demonstrate both (1) that his counsel’s 

performance fell below an objective standard of reasonableness and (2) that there is 

a reasonable probability that, but for counsel’s unprofessional errors, the result of 

the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 

687–88, 694, 104 S. Ct. 2052, 2064, 2068 (1984); Andrews v. State, 159 S.W.3d 98, 

101–02 (Tex. Crim. App. 2005). Failure to make the required showing of either 

deficient performance or sufficient prejudice defeats the ineffectiveness claim. See 

Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); Andrews, 159 

S.W.3d at 101.

An appellant bears the burden of proving by a preponderance of the evidence 

that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. 

App. 1999). Any allegation of ineffectiveness must be firmly founded in the record, 

and the record must affirmatively demonstrate the alleged ineffectiveness. Id. at 

814. We presume that a counsel’s conduct falls within the wide range of reasonable 

professional assistance, and we will find a counsel’s performance deficient only if 

the conduct is so outrageous that no competent attorney would have engaged in it. 

Andrews, 159 S.W.3d at 101.

“In making an assessment of effective assistance of counsel, an appellate court 

must review the totality of the representation and the circumstances of each case 

without the benefit of hindsight.” Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. 
5

App. 2011). Demonstrating ineffective assistance of counsel on direct appeal is “a 

difficult hurdle to overcome.” Id. In order to establish it, “the record must 

demonstrate that counsel’s performance fell below an objective standard of 

reasonableness as a matter of law, and that no reasonable trial strategy could justify 

trial counsel’s acts or omissions, regardless of his or her subjective reasoning.” Id. 

After proving error, the appellant must affirmatively prove prejudice from the 

deficient performance of his attorney. Hernandez v. State, 988 S.W.2d 770, 772 

(Tex. Crim. App. 1999); Burruss v. State, 20 S.W.3d 179, 186 (Tex. App.—

Texarkana 2000, pet. ref’d). The appellant “must prove that his attorney’s errors, 

judged by the totality of the representation and not by isolated instances of error, 

denied him a fair trial. It is not enough for the appellant to show that the errors had 

some conceivable effect on the outcome of the proceedings.” Burruss, 20 S.W.3d 

at 186. Instead, the evidence must establish that there is a reasonable probability 

that, but for defense counsel’s errors, the jury would have had a reasonable doubt 

about the defendant’s guilt or that the extent of his punishment would have been 

less. See id.; see also Bone v. State, 77 S.W.3d 828, 836–37 (Tex. Crim. App. 2002).

Constitutionality of Charged Offense

In his first issue, Appellant argues the offense for which he was charged is 

unconstitutional. He argues his counsel was ineffective for not raising this matter 

before the trial court.
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A. Error by Trial Court

Appellant argues in his brief,

Texas Penal Code § 42.01(a)(8) is unconstitutional (1) on its face, (2) 

as applied to [Appellant], and (3) when read in conjunction with other 

laws because it is (1) vague, (2) overbroad, and (3) a violation of the 

People’s clearly established rights as expressly protected via the 

Second, Fifth, and Fourteenth Amendments to the United States 

Constitution and Article I, Section 23 of the Texas Constitution.

The State argues most of these arguments are not preserved. We hold that none of 

them have been preserved. 

Challenges to the constitutionality of a criminal offense cannot be raised for 

the first time on appeal. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 

1995). Instead, they must first be presented to and ruled on by the trial court. See 

id.; TEX. R. APP. P. 33.1(a) (requiring presenting complaint to trial court and 

obtaining ruling as prerequisites to preserving issue for appellate review).

In his motion for new trial, Appellant argued that the statute was vague on its 

face. Constitutional challenges can be raised in a motion for new trial. See 

Gillenwaters v. State, 205 S.W.3d 534, 537–38 (Tex. Crim. App. 2006) (holding 

motion for new trial preserved constitutional vagueness challenge). Simply filing 

the motion is insufficient to preserve the issue, however. The Appellant must also 

present the motion to the trial court and obtain a ruling. See TEX. R. APP. P. 21.6, 

33.1(a)(2); Carranza v. State, 960 S.W.2d 76, 78–79 (Tex. Crim. App. 1998)

(holding presentment required for preservation under predecessor of rule 21.6); see 
7

also TEX. R. APP. P. 33.1(b) (allowing motion for new trial overruled by operation 

of law to preserve issue for appeal in civil cases).

There is no evidence in the record that Appellant presented his motion for new 

trial to the trial court or that he obtained a ruling. Accordingly, we hold Appellant 

has not preserved any of his constitutional challenges to the offense under which he 

was charged.

B. Ineffective Assistance of Counsel

Appellant argues that his counsel was ineffective for failing to challenge the 

constitutionality of the charged offense. In his arguments about the constitutionality 

of the offense, Appellant raises two primary arguments: (1) the statute is vague on 

its face and (2) the statute conflicts with the constitutional right to bear arms.3

“Ordinarily, a criminal defendant who challenges a statute as unduly vague 

must show that it is vague as applied to the conduct for which he was charged.” Scott 

v. State, 322 S.W.3d 662, 665 n.3 (Tex. Crim. App. 2010), abrogated on other 

grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014), (citing Parker 

v. Levy, 417 U.S. 733, 756, 94 S. Ct. 2547, 2561–62 (1974)). A defendant can assert 

 

3 To the degree Appellant believes he has raised more arguments than these, we hold 

the remaining arguments were either duplicative of the identified arguments or were 

inadequately briefed. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear 

and concise argument for the contentions made, with appropriate citations to 

authorities and to the record.”); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 

2000) (holding novel arguments must be grounded in analogous case law or with 

relevant jurisprudential framework)
8

a facial challenge when the statute implicates the free-speech guarantee of the First 

Amendment. Id. (citing United States v. Williams, 553 U.S. 285, 304, 128 S. Ct. 

1830, 1845 (2008); Gooding v. Wilson, 405 U.S. 518, 520–21, 92 S. Ct. 1103, 1105

(1972)). Appellant has not argued that section 42.01(a)(8) of the Texas Penal Code 

implicates free-speech rights. Accordingly, his facial challenge to the statute must 

fail. See id. at 670–71 (holding because charged offense did not implicate freespeech rights and because defendant did not assert as-applied challenge to offense, 

defendant’s vagueness challenge failed).

Appellant devotes less than a full page to his argument that the statute 

conflicts with his constitutional right to bear arms. Appellant appears to argue that, 

simply because the Second Amendment guarantees a right to bear arms, the statute 

in question is unconstitutional. See U.S.CONST. amend II. “[A]lthough there clearly 

[is a] constitutional right[] to bear arms . . . there is no constitutionally protected 

right to display a firearm in a public place in a manner that is calculated to alarm.” 

Ex parte Poe, 491 S.W.3d 348, 355 (Tex. App.—Beaumont 2016, pet. ref’d). We 

hold Appellant has failed to establish that his counsel was ineffective for not 

challenging the constitutionality of the charged offense.

We overrule Appellant’s first issue.
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Exculpatory Evidence

In his second issue, Appellant argues the State and his trial counsel failed to 

produce exculpatory evidence.

A. Error by the State

The offense took place at a car wash. The car wash had surveillance cameras. 

Appellant argues the State failed to produce exculpatory evidence by not obtaining 

and then producing the exculpatory evidence. 

The State has a duty to turn over material evidence that may be exculpatory. 

Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963); Pena v. State, 

353 S.W.3d 797, 810 (Tex. Crim. App. 2011). This duty, however, does not vest 

until the State obtains the material. See Palmer v. State, 902 S.W.2d 561, 563 (Tex. 

App.—Houston [1st Dist.] 1995, no pet.). “The state has no duty to seek out 

exculpatory information independently on [the] defendant’s behalf.” Id. Because

the State never had the video, no duty to turn it over to Appellant ever arose. See id. 

B. Ineffective Assistance of Counsel

There is evidence in the record that the video of the offense, if it existed, was 

overwritten by the recording system about ten days after the offense. There currently 

is no proof, then, that any video footage would have actually benefitted Appellant. 

See In re K.M.H., 181 S.W.3d 1, 9–10 (Tex. App.—Houston [14th Dist.] 2005, no 

pet.) (holding claim of ineffective assistance based on lack of evidence discovery 
10

was not founded in the record and court could only speculate what evidence would 

have revealed); Thompson, 9 S.W.3d at 813 (holding allegation of ineffectiveness 

must be firmly founded in record and record must affirmatively demonstrate alleged 

ineffectiveness). We hold Appellant has failed to establish that his counsel was 

ineffective for not obtaining the surveillance video.

We overrule Appellant’s second issue.

Allegations in Information

In his third issue, Appellant argues the information was void because it failed 

to allege a manner and means of the offense.

A. Error by Trial Court

“An information is a written instrument presented to a court by an attorney for 

the State charging a person with the commission of an offense.” TEX. CONST. art.

V, § 12(b). The filing of a charging instrument is essential to vest the trial court with 

jurisdiction over the offense. See Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. 

App. 1995). To satisfy the constitutional requirements, the charging instrument must 

provide sufficient notice so as to enable the defendant to prepare a defense. See 

Kellar v. State, 108 S.W.3d 311, 313 (Tex. Crim. App. 2003). “Subject to rare 

exceptions, an [information] which tracks the language of the penal statute will be 

legally sufficient and the State need not allege facts which are merely evidentiary in 

nature.” DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988); accord 
11

Smith v. State, 895 S.W.2d 449, 453 (Tex. App.—Dallas 1995, pet. ref’d). The 

adequacy of a charging instrument is a question of law. McCay v. State, 476 S.W.3d 

640, 644 (Tex. App.—Dallas 2015, pet. ref’d).

Appellant was charged under section 42.01(a)(8) of the Texas Penal Code. 

“A person commits an offense if he intentionally or knowingly displays a firearm or 

other deadly weapon in a public place in a manner calculated to alarm.” TEX. PENAL 

CODE ANN. § 42.01(a)(8) (Vernon Supp. 2016). The information alleged “that in 

Harris County, Texas, Walter Lee Roberts, hereafter styled the Defendant, 

heretofore on or about March 5, 2015, did then and there unlawfully intentionally 

and knowingly display a deadly weapon, namely, a firearm, in a public place and in 

a manner calculated to alarm.”

Appellant argues the information is void because it fails to allege the manner 

and means in which the offense was committed and because it fails to identify the 

name of the complainant. Appellant argues the information, to be constitutionally 

valid, should have alleged that he displayed a deadly weapon in a manner calculated 

to alarm, “namely by pointing a shotgun at Etoinne Ternoir.” 

Section 42.01(a)(8) does not require, as an element of the offense, that the 

offense be committed against a specific person. See id. Accordingly, there is no 

basis for arguing that a complainant should have been identified in the information. 

See Moallen v. State, 690 S.W.2d 244, 246 (Tex. Crim. App. 1985) (holding 
12

identification of complainant in charging instrument not required when not identified 

as element of charged offense).

Likewise, specifically alleging that Appellant pointed a shotgun at the 

complainant is evidentiary in nature. See Smith, 895 S.W.2d at 453–54 (holding 

notice of judgment under which license was suspended was evidentiary in nature). 

It was not required to clarify the offense with which the State was charging 

Appellant. See DeVaughn, 749 S.W.2d at 67 (holding State is not required to plead 

facts that are evidentiary in nature); see also State v. Barbernell, 257 S.W.3d 248, 

255 (Tex. Crim. App. 2008) (holding charging instrument must allege specific 

manner or means if statute establishing criminal offense describes act or omission 

as element and definitions provide alternative manner or means for offense to be 

committed).

B. Ineffective Assistance of Counsel

Appellant argues that his counsel should have filed a motion to quash the 

information based on the grounds stated above. Because we have held these grounds 

do not establish any errors in the charge, they cannot support Appellant’s ineffective 

assistance of counsel allegation. See Mooney v. State, 817 S.W.2d 693, 698 (Tex. 

Crim. App. 1991) (“Counsel is not required to engage in the filing of futile

motions.”).

We overrule Appellant’s second issue.
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Self-Defense

In his fourth issue, Appellant argues the trial court erred by failing to include 

an instruction on self-defense in the jury charge. He also argues his counsel was 

ineffective for failing to request an instruction.

A. Error by Trial Court

Self-defense is a defensive issue. Reynolds v. State, 371 S.W.3d 511, 524 

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The decision on whether to 

include an instruction on a defensive issue rests with the defendant and his counsel. 

Posey v. State, 966 S.W.2d 57, 63 (Tex. Crim. App. 1998). Appellant did not request 

a self-defense instruction. Accordingly, the trial court did not commit any error by 

not including it. See id. 

B. Ineffective Assistance of Counsel

We note there can be strategic reasons for not requesting a defensive issue. 

See id. (holding party may decide not to raise defensive issue because evidence 

supporting it is so weak it could risk credibility with jury to raise it). Here, the only 

evidence that Appellant presents that he was entitled to the instruction was his 

testimony that he had become afraid of a carjacking. The only facts he presented in 

support of this is that the complainant did not work at the car wash and Appellant

felt that the complainant, by “pre-cleaning” his car, was “doing something he wasn’t 

supposed to be doing.”
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“[A] person is justified in using force against another when and to the degree 

the actor reasonably believes the force is immediately necessary to protect the actor 

against the other’s use or attempted use of unlawful force.” TEX. PENAL CODE ANN.

§ 9.31(a) (Vernon 2011). Assuming without deciding that Appellant’s testimony

provides sufficient facts to warrant a self-defense instruction, Appellant’s counsel 

could have reasonably determined that the evidence was weak enough that to include 

the instruction in the charge could risk credibility with the jury. See Posey, 966 

S.W.2d at 63; Lopez 343 S.W.3d at 143 (holding evidence must establish no 

reasonable trial strategy could support trial counsel’s actions).

We overrule Appellant’s fourth issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Keyes, Higley, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).