Lindsey Rhodes v. The State of Texas--Appeal from 52nd District Court of Coryell County

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

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