### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00131- CR

Loui s Daniel Gutier rez , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 10- 3018 64, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Appellant L ouis Daniel Gutier rez was c onvicted by a jury of agg rava ted assault by
threa t with a deadly wea

pon. See Tex. P enal Code A nn. §§ 22.01(a) (2), 22.02( a)( 2) (West 2011).
After finding that Gutierre z had two previous felony convictions, the j ury as sessed punishm ent at fifty y ear s’ imprisonm ent. See id. § 12.42(d) (West 2011). I n his sole issue on appea l, Gutierre z

asser ts that he rec eived ineffe ctive assistance of counsel beca use his counsel failed to reque st a jury
char g e on the l esser -included offense of t err oristic threa t. See id. § 22.07(a) (2) (West 2011). We
aff irm the judg ment of the trial c ourt.

BACK GR OUND

On August 11, 2010, Gu t i er re z picked his mother up from her work and drove her
home. During the drive home, Gutierre z’s mother called her other son and had a brief conver sation.

1

The fa cts rec ited here in are taken f rom testimony

and exhibits admitted at trial. 1Gutierre z beca me upset when he lear

ned that his mother was planning on letting her other son
borrow he r truck. G

utierre z became mor e ira te over the dura tion of the drive home, and he beg an hitting the steering whee l, cursing at his mother, and y elling tha t his mother “alwa y s do[es] things for [her other

children], not for him.”
When Gutierre z and his mother arr ived home, Gutierre z ente red the house first and
heade d straig ht for the kitchen wher e he remove d a knife from a draw er. His mother enter ed the
kitchen and retrie ved her spare key s. As she attempted to leave , Gutierre z approa ched her with the
knife in his hand and said, “Don’ t run. I ’m g oing to kill y ou.” Gutierre z’s mother immediately fled
from the house, running to a neighbo r’ s h ome t o try to g et help. Her neig hbor di d not answe r t he door, a n d u p on seeing Gutierre z driving down the street, Gutierre z’s mother hid behind some bushes.
After Gutierre z drove awa y , his mother knocked on another neig hbor’s door, and this time the neig hbor answe red. She a sked the ne ighbor to call a taxi for her . Whil e she w as wa iting
for the taxi , Gutierre z drove by ag ain, and his mothe r o n ce aga i n h i d behind bushes. During her
attempt to evade her son, Gutierre z’s mother called her daug hter on her c ell phone. The daug hter
later testified at trial that Gutierre z’s mother was cry ing during the conver sation and that she sounded

very scar ed. Finally , afte r the taxi arr ived and Gutierre z’s mother was able to g et aw ay from her neig hborhood, she c alled 9-1- 1 and told the police what had transpire d.

Gutierre z was subsequently arr ested and char g ed with ag g rava ted as s au lt by threa t
with a deadly wea

pon. See id. §§ 22.01(a) (2), 22.02(a) (2). His jury trial lasted four day s, including
the hear ing on punishment. The State called seven witnesses, including Gutierre z’s mother, the daug hter she contac ted duri ng the assault, and two neig hbors who witnessed Gutierre z’s mother

2hiding from her son. The State also introduced the knife that Gut i er re z wa s holding when he

threa tened his mother. Gutier rez did not call any

witnesses.
T h e ju r y c o n v ic te d G u

ti e r r e z o f th e o f

f e n s e a s c h a

r g e d

. G u ti e r

r e z e le c te d to h a

v e th e 2 ju r y a s s e s s p u

n is h me n t. T h e ju

r y f o u n d th a t G u ti e r r e z h a d b e e n p r e v io u s ly c o n v ic te d o f tw o s e q u e n ti a l
f e lo n ie s , a n d th e r e f o r e a s s e s s e d p u

n is h me n t a t f if ty y e a r s ’ im p r is o n me n

t. S e e id

. § 1 2

. 4 2 ( d ) ( e nh a

n c i n g punishment for felony conviction if acc used has been convicted of two previous sequential felonies)

. Gutierre z filed a motion for new tria l, which the trial c ourt denied. This a ppeal f ollowed.

DISCUSSIO N
I n his sole issue on appea l, Gutierre z asser ts that he rece ived i neff

ective assistance
of counsel beca

use his counsel failed t o request a jury char g e on the lesser- included offe nse of

terror istic threa t. See id. § 22.07(a) (2). I n order to preva il on an ineffe ctive-a ssistance-of -counse l 3 claim, Gutierre z must satisfy the two-prong test set out in Strickland v. W ashington

. 466 U.S. 668,
687 (1984); see also Hernand ez v. State , 726 S.W .2d 53, 57 (Tex. Crim. App. 1986) (adopting
Strickland standard for claims of ineffe ctive assistance of counsel). Under Strickland , a defe ndant

The jury also made an aff

irmative finding that the assault involved “fa mily violence.” See 2 Tex. Code Crim. Proc. Ann. art. 42.013 (West 2006) (re quiring court to enter family violence finding in judgme nt). Howeve r, the family violence finding does not aff ect Gutierre z’s sentenc e in this case or the issue on appea l, so we will not ref er to it in our opinion. See Bell v. State , No. 03-10-00216- CR, 2010 Tex. App. L EXI S 9197, *6–7 (Tex. App.—Austin Nov. 16, 2010, pet. ref’ d) (mem. op. not desig nated f

or publication) ( explaining purpose of enter ing f

amily violence f

inding)

. T h e tr ia l c o u

r t d e n ie d d e f

e n s e c o u n s e l’ s r e q u e s t f o r a ju r y c h a r g e o n a le s s e r - in c lu d e d o f

f e n s e
. 3 Howeve r, it is not clea

r from the rec ord what lesser- included offe nse Gutierre z’s counsel reque sted. For purposes of revie w, we trea t this as a failure to reque st a lesser- included offe nse instruction for terror istic threa t. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2006) (re quiring parties to submit written objec tion to court’s cha rg e in orde r to prese rve issue f or appe al).
3must show that (1) t h e co u nsel’s performanc e was defic ient and (2) the defendant was prejudice d

by the defic ient perf

ormanc e. 466 U.S. at 687. Our revie w of counsel’s perf ormanc e must be highly
defe rential; we presume that counsel makes all significant decisions in the exercise of rea sonable judgme nt. Strickland , 466 U.S. at 689. Counsel’s perf ormanc e is defic ient when it falls “below an objective standard of rea sonablene ss” based upon “pre vailing profe ssional norms.” Id. ; s ee a l s o
Perez v . State , 310 S.W .3d 890, 893 (Tex. Crim. App. 2010).

Gutierre z has the duty to bring forth a rec ord that aff irmatively demonstrates the alleg ed ineffe ctiveness of his counsel by a preponde ranc e of the evidenc e. See Scheane tte v. State , 144 S.W .3d 503, 509-10 (Tex. Crim. App. 2004). Wit hout a rec ord, finding counsel constitutionally
ineffe ctive would require us to assume that there was n o sound trial strateg y , which we are not permitted to do unless the counsel’s decision was “so outrag eous that no competent attorney would
have eng ag ed in it.” See Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001). There fore , perf ormanc e of counsel usually cannot be adequa tely ex am i n ed b ased on a trial-court record; thi s ty pe of rec ord is best develope d on a motion for new trial. See Scheane tte , 144 S.W .3d at 509-10; 4
Jack son v. State , 877 S.W .2d 768, 772 (Tex. Crim. App. 1994) (B aird, J., concurring ).

To establish his claim that his counsel’s perf o rm an ce was defic ient, Gutierre z
must first show that h e wa s enti tled to an instruction on the lesser- included offe nse of terror istic
threa t. See Fuentes v. State , 991 S.W .2d 267, 272 (Tex. Crim. App. 1999). I n orde r t o s how that
he was entitled to a lesser- included offe nse instruct i o n , Gu tierre z must satisfy the two-prong Aguilar/Rousseau test. See Hall v. Sta t e , 158 S.W .3d 470, 473 (Tex. Crim. App. 2005); see also

G u ti e r r e z d id n o t r a is e a

n in e f f e c ti v e - a s s is ta

n c e - o f

- c o u n s e l c la im in h is mo ti o n f

o r n e w tr ia l. 4
4Rousseau v. State , 855 S.W .2d 666, 672 (Tex. Crim. App. 1993); Aguilar v. State , 682 S.W .2d 556,

558 (Tex. Crim. App. 1985). The first prong “re q u i re s t h e co u rt to deter mine whether the lesser
offe nse actua lly i s a lesser- included offe nse of the offe nse char g ed.” Hall , 158 S.W .3d at 473 (interna l citations omitted). The second prong “asks whether the rec ord contains some evidenc e that
would permit a rational jury to find that the defe ndant is g uilty only of the lesser- included offe nse.”
Id. (interna l citations omit ted).

Wi th r e g a r d to th e f ir s t p r o n g , G u ti e r

r e z a s s e r ts th a t te r r o r is ti c th r e a t is a l e s s e r - i n c lu d e d
offe nse of ag g rava ted assault as char g ed. See Tex. Penal C o de Ann. §§ 22.02(a) (2), 22.07(a) (2) ( We s t 2 0 1 1 )

. U n d e r th e T e xa s Co d e o f Cr im in a l Pr o c e d u r e , a n o f f e n s e is a le s s e r - in c lu d e d o f f e n s e if :
(1) it is est ablished by proof of the same or less than all the fac ts require d to establish the commission of the offe nse cha rg ed; (2) it differ s from t he offe nse char g ed only in the respe ct that less serious injury or risk of injury to the same person, proper ty or public interest suff

ices to establish its commission; (3 ) i t differ s from the offe nse charg ed only in the respect that a less culpable me ntal state suffic es to establish its commissi on; or (4) it consists of an attempt to commit the offe nse char g ed or an otherwise inc luded offe nse.

Tex. Code Crim. P roc. A nn. art 37.09 (West 2006).

I n this case , terror istic threa t is not a lesser- included offe nse of ag g rava ted assault

as char g ed. See id. ; see also Tex. Penal Code Ann. §§ 22.02(a) (2), 22.07(a) (2). A person commits

a terror istic threa t if he (1) “thre atens to commit any offe nse involving violence to any person

or proper ty ” (2) with the intent to “plac e any person in fea r of imminent s er ious bodily injury .”

5See id. § 22.07(a) (2). I n this case , Gutierre z was char g ed with committing ag g rava ted assault by (1) intentionally

or knowing ly threa tening his mother wit h imminent bodily injury and (2) us[i ng ]

or exhibi t[ ing] a deadly wea pon, to-wit: a knife, duri n g the commission of said assault. See id. § 22.02(a) (2), see also id. § 22.01(a) (2). There fore , “ter roristic threa

t require s proof of the intent to place someone in fe ar of imminent ser ious bodily injury —proof that is not required f or the c harg e

o f a g g r a v a te d a s s a u lt

. . . . ” S

e e B a r n e tt v
. S ta te , 3 4 4 S. W. 3 d 6 , 1 5 ( T e x. A p p
. — T e xa

r k a n a 2 0 1 1 , p e t.
ref ’d). Thus, terror istic threa t require s proof of an additi o n al element bey ond that of the offe nse
char g ed, i.e., the intent to place someone in fea r of serious bodily injury

. Be cause terror istic threa t
is n o t e s ta b li s h e d b y “ p r o o f o f th e s a me o r le s s th a

n a ll th e f a c ts ” r e q u ir e d to p r o v e a g g r a

v a te d a s s a u lt , it is not a lesser- included offe nse under article 37.09(1) of

the Texas Code of Criminal Proc edure

. Fur th er m ore, terror istic threa t does not qualify as a lesser- included offe nse of

ag g rava ted assault under any other criter ia set out in the code of criminal procedure. Terr oristic
threa t is not a lesser- included offe nse under article 37.09(2) beca use it does not involve a less serious injury than ag g rava ted assault, g iven that the injury for both offe nses is threa tening another person
with bodily harm. See Tex. Code Crim. Proc. Ann. art. 37.09(2). Simi larly , terror istic threa t is not 5
a lesser-included offense under article 37.09(3) because it does not involve a le ss culpable menta l

state than ag g rava ted assault, g iven that terror istic threa t must be committed “intentionally ,” while
assault can be committed “knowing ly .” See id. art. 37.09(3); see also Howard v. State , 333 S.W .3d

Terr oristic threa t can apply to a threa t of violence ag ainst proper ty , which is a less sever e 5 in ju r y th a n a th r e a t o f v io le n c e a g a in s t a p e r s o n
. H o w e v e r , th e o f f e n s e a s a ll e g e d in th is c a s e in v o lv e d a threat ag ainst Gutierre z’s mother, and thus both terror istic threa t and ag g rava ted assault involve the same injury

. 61 3 7 , 1 3 9 ( T e x. Cr im

. A p p
. 2 0 1 0 ) ( n o ti n g th a

t “ k n o w le d g e ” is le s s c u lp a

b le me n ta l s ta

te th a n “ in te n t” )

. Finally , terror istic thre at is not a lesser- included offe nse under a rticle 37.09(4) beca

use it is not an attempted assa

ult given tha t neither off

ense r equire s that the targ et of the thre at ac tually be plac ed
in fea r of imminent bodily injury

. See Tex. Code Crim. Proc. Ann. art. 37.09(4); see also Tex. Penal Code Ann. §§ 22.01(a )(2) , 22.07(a) (2).

Therefo re , we conclude that terror istic threa t is not a lesser- included offe nse of

ag g rava ted assault as char g ed. Gutierre z has failed to satisfy the first prong of the Aguilar/Rousseau
test, and thus he has fa i l ed t o s how that he was entitled to an instruction on the lesser- included

o f f e n s e o f te r r o r is ti c th r e a t. S e e H a ll , 1 5 8 S. W. 3 d a

t 4 7 3

. A c c o r d in g ly , G

u ti e r r e z h a s n o t d e mo n s tr a

te d
that h i s co u n s el was in err or, much less defic ient, for failing to reque st an instruction for this proposed lesser- included offe nse. See Fuentes , 991 S.W .2d at 272. Be cause we cannot conclude 6
that Gutierre z’s counsel’s perf ormanc e was defic ient, we n eed not consider whether Gutierre z

was prejudice d by his counsel’s perf ormanc e. See Garcia v. State , 57 S.W .3d 436, 440 (Tex. Crim. App. 2001) (“[A]n ap p el l an t ’s fa ilure to satisfy one prong of the Strickland test neg ates a court’s
need to consider the other prong .”) (citing Strickland , 466 U.S. at 697). Gutierre z’s sole point of

err or is overr

uled.

Fur thermore , even if Gutierre z wer e enti tled to a lesser- included offe nse instruction for 6 terror istic threa t, there is nothing in the rec ord to show that his counsel’s decision not to reque st such
an instruction was not part of some sound trial strateg y
. See Ex P a r t e W h ite , 160 S.W .3d 46, 55 (Tex. Crim. App. 2004) (noting that decision to not reque st le sser-inc luded offe nse may be part of
v a li d “ a ll

- o r - n o th in g ” s tr a

te g y ) , r e v ’d o n o th e r g

r o u n d s , 6 1 0 F

. 3 d 8 9 0 ( 5 th Ci r
. 2 0 1 0 )

. “ [T ]r ia l c o u n s e l should ordinarily be aff

orded an opportunit y t o ex p lain his actions befor e being denounce d as ineffe ctive.” Rylander v . State , 101 S.W .3d 107, 111 (Tex. Crim. App. 2003).
7CONCLUSION
We affir m the trial court’ s judgme nt of conviction.

__________________________________________ Diane M. H enson, Jus tice
Be fore J ustices Pury ear , Henson, a nd Goodwin
Affir med Filed: Aug ust 1, 2012
Do Not Publish

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