Walter Lee Roberts v. State
01-16-00059-CR
Tex. App.—WacoNov 29, 2016Background
- On March 5, 2015, at a Baytown gas station car wash, Etoinne Ternoir was cleaning his truck when Walter Lee Roberts pulled up behind him, confronted him, and—according to Ternoir—pointed a shotgun at him; Ternoir drove through the car wash and called 9-1-1.
- Roberts was charged by information with disorderly conduct under Tex. Penal Code § 42.01(a)(8) (displaying a firearm in a public place in a manner calculated to alarm).
- At trial Roberts testified he did not point the shotgun at Ternoir but stood outside the store with his back to the wall because he feared a carjacking.
- The jury found Roberts guilty; the trial court assessed 180 days’ confinement (suspended) and 90 days’ community supervision, plus a $2,000 fine.
- On appeal Roberts raised claims (many recast as ineffective-assistance-of-counsel claims) that: the statute is unconstitutional; the State failed to obtain/produce exculpatory surveillance video; the information was legally insufficient for failing to allege manner/complainant; and the court erred (and counsel was ineffective) by not including a self-defense instruction.
Issues
| Issue | Roberts' Argument | State/Trial Court Argument | Held |
|---|---|---|---|
| Constitutionality of § 42.01(a)(8) (vagueness/Second Amendment) | Statute is vague, overbroad, violates right to bear arms; counsel ineffective for not raising it | Constitutional challenges not preserved; statute does not implicate free-speech; no protected right to display firearm in manner calculated to alarm | Not preserved for appeal; trial counsel not ineffective for failing to challenge statute; claim overruled |
| Failure to obtain/produce surveillance video (Brady) | State and defense counsel failed to obtain/exchange exculpatory car-wash video | State never obtained video (thus no Brady duty); defense record does not show what video would prove | No Brady violation; counsel not ineffective for failing to obtain video because evidence overwritten and speculative |
| Sufficiency of information (failure to allege manner/complainant) | Information should have identified complainant and alleged manner (e.g., pointing shotgun at Ternoir) | Statute elements tracked in information; naming complainant or alleging evidentiary manner not required | Information legally sufficient; counsel not ineffective for failing to move to quash |
| Omission of self-defense instruction | Trial court erred and counsel ineffective for not requesting self-defense instruction | Defensive-issue instruction is defendant-driven; Roberts did not request it; counsel may reasonably omit weak defensive theory | No trial-court error; counsel not ineffective—reasonable strategy to avoid undermining credibility |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance of counsel test)
- Brady v. Maryland, 373 U.S. 83 (prosecution must disclose materially exculpatory evidence once in its possession)
- DeVaughn v. State, 749 S.W.2d 62 (charging instrument that tracks statute is generally sufficient)
- Posey v. State, 966 S.W.2d 57 (defensive-issue instruction decision rests with defendant and counsel; strategic waiver permissible)
- Ex parte Poe, 491 S.W.3d 348 (no constitutional right to display firearm in public in manner calculated to alarm)
- Lopez v. State, 343 S.W.3d 137 (difficulty of proving ineffective assistance on direct appeal; review totality of representation)