IN THE

TENTH COURT OF APPEALS

No. 10-93-008-CR

     LINDSEY RHODES,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 12,876

                                                                                                    

O P I N I O N

                                                                                                    

      A jury found Lindsey Rhodes guilty of aggravated assault on a correctional officer and, as a result of enhancement, assessed punishment at forty-eight years. Rhodes argues that he was denied effective assistance of counsel and that the court erred by not charging the jury on self-defense. We affirm.

      Lindsey Rhodes is an inmate incarcerated at the Hughes Unit of the Texas Department of Criminal Justice. On January 15, 1992, Officer Lozano, a correctional officer employed at the Hughes Unit, was inventorying Rhodes' property because Rhodes was being moved to another part of the prison. During the inventory Rhodes began grabbing his property. Lozano ordered him to put the property back on the table, but he refused.

      After Rhodes ignored several direct orders to put the property down, Lozano tried to escort him out of the room. Rhodes then assumed an assaultive position and Lozano struck him. Rhodes then hit Lozano with a combination lock that he held in his fist. Lozano suffered several cuts, abrasions, and contusions.

      In his first point Rhodes contends that his counsel was ineffective because he failed to call a witness who could testify that Rhodes did not strike Lozano. The standard of review for evaluating claims of ineffective assistance of counsel is two-pronged. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Novak v. State, 837 S.W.2d 681, 683 (Tex. App.—Houston [1st Dist.] 1992, pet. ref'd). First, the appellant must show that counsel's representation fell below the objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; Novak, 837 S.W.2d at 683. That is, we must determine whether appellant's counsel's performance failed to constitute reasonably effective assistance of counsel. See Ex parte Menchaca, 854 S.W.2d 128, 131 (Tex. Crim. App. 1993). If so, he must then show the probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Novak, 837 S.W.2d at 683.

      A claim of ineffective assistance of counsel based on the failure to call witnesses must fail in the absence of a showing that the witness was available to testify and the defendant would have benefitted from the testimony. Coons v. State, 758 S.W.2d 330, 333 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). Without a showing that a potential defense witness was available, and that his testimony would benefit the defense, counsel's failure to call this witness is irrelevant. Wilkerson v. State, 726 S.W.2d 542, 551 (Tex. Crim. App. 1986). Rhodes made no showing of the availability of the witness, what his testimony would have been, or how his absence prejudiced him; thus, counsel's failure to call this witness is irrelevant. We overrule the first point.

      Rhodes contends in his second point that the court improperly excluded a charge on self- defense. When evidence raises the issue of self-defense, the accused is entitled to have it submitted to the jury. Dyson v. State, 672 S.W.2d 460, 463 (Tex. Crim. App. 1984). However, Rhodes must show that Lozano used unlawful force before he is entitled to a charge on self-defense. See Letson v. State, 805 S.W.2d 801, 805 (Tex. App—Houston [14th Dist.] 1990, no pet.). Because there is no evidence that Lozano used excessive force, Rhodes was not entitled to a charge of self-defense. We overrule point two and affirm the judgment.

 

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed May 11, 1994

Do not publish

tify'>   A.  Define abuse.  You want to leave a child alone all day for 12 hours without his brother or anything that he owns?

            MR. DAVIS:  Object to nonresponsive.

            THE COURT:  Overruled.

            Q.  (By Mr. Davis)  All right.  So – well, do you think that she would have abused them?

            A.  Physically, no.

            Q.  Okay.  You think that she would have mistreated them?

            A.  No.

 

* * *

 

FURTHER REDIRECT EXAMINATION

 

            Q.  Okay.  Do you think, in your opinion, is there a danger of them not coming back if she’s allowed to take them?

            A.  I – I would think so, yes.  You know, based on what has occurred here, I don’t think that – that I would be able to get them back without spending a whole lot more money and going back to court.

            Q.  Okay.  Now, as far as the conditions that – that were in Colorado, whenever you came up there to get them, the living conditions, can you tell the Court what condition the house was in?

            A.  Oh, the house was a complete mess, filthy, cluttered.  The kids’ rooms were disgusting.  It was obvious that she had not, you know, forced them to clean up after themselves.  You know, they didn’t – they didn’t have clean laundry.

            Q.  What – what time did you arrive over there?

            A.  It was about lunchtime.

            Q.  Okay.  And where was Ms. Workman whenever you – or where was your ex-wife when you came up there?

            A.  She was home in bed whenever I arrived.  The children got her up when I got there.

            Q.  Okay, and it’s your condition – contention that based on your previous conversations with your wife – or your ex-wife, that she leaves the kids home during the day?

            A.  She does.

            Q.  Okay.  Leaves them to fend for themselves for food?

            A.  That’s correct.

            Q.  Do you know of anybody that watches them?

            A.  No.

            Q.  Okay.  So they’re a 14-year-old and 12-year-old?

            A.  That’s correct.  I know for a fact they don’t have any adult supervision when she’s not there because I speak with them on the  phone regularly.

            Q.  Okay.  So you don’t get a day-care provider or –

            A.  No.

            Q.  – you know, babysitter or anything like that?

            A.  No.

            Q.  So do you think that a 14-year-old and a 12-year-old you should be left alone all day?

            A.  No.

            Q.  And at your residence, your house, you have a 17-year-old you said?

            A.  We do.

            Q.  And she stays with them all day?

            A.  She does.

 

            There was testimony that either approximately eight or nine months, or as much as three years earlier, one of the boys had ridden a bus to another town when he was nine years old.  There was no testimony of any harm having come to the child or of the father taking any action to seek custody as a result.  There was also evidence that the mother was attending college, completing her bachelor’s degree and working nights during the time period the boys were in Colorado and that the mother had recently graduated, had changed jobs, and was no longer working at night.  There was some uncertainty surrounding the new job and its travel requirements but nothing to suggest an immediate or impending danger to the boys as a result. 

            There is no question that the children had not been abandoned in Texas.  The question I am left with then is:  What is the evidence that exercise of Temporary Emergency Jurisdiction is necessary in an emergency in order to protect the child because the child, or a sibling, is subjected to or threatened with mistreatment or abuse?  Having found no such evidence in the record before me, I would conditionally grant the writ of mandamus, thus requiring the trial court to dismiss the emergency proceeding initiated in Texas.  Because the Court does not, I respectfully dissent.[1]

 

                                                                        TOM GRAY

                                                                        Chief Justice

Dissenting opinion delivered and filed December 8, 2010