Shazizz Mateen v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00516-CR

Shazizz Mateen, Appellant

v.

The State of Texas, Appellee

FROM THE 155TH DISTRICT COURT OF FAYETTE COUNTY

NO. 2018R-212, THE HONORABLE JEFF R. STEINHAUSER, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant Shazizz Mateen, representing himself, challenges his conviction for

aggravated assault against a public servant. See Tex. Penal Code § 22.02(b)(2)(B). In seven

issues, he contends that he is actually and factually innocent of the offense, that the trial court

erroneously allowed the State to amend the indictment, that the evidence was not sufficient to

support his conviction, that his trial counsel was ineffective, and that the trial court erred by

omitting reasonable doubt and presumption of innocence instructions from the jury charge.

Based on the analysis below, we affirm the trial court’s judgment of conviction.

BACKGROUND 1

Sergeant Justin Koehne, with the La Grange Police Department, testified that he

had made multiple prior attempts to contact Mateen regarding an outstanding felony arrest

1 We recite only the relevant facts necessary to resolve the presented issues.

warrant for failure to comply with sex offender registration requirements. These attempts

included visiting Mateen’s residence, which was a room at the Carter Motel. On November 1,

2018, Sergeant Koehne received a report that Mateen was at a Dollar General store near the

motel. Sergeant Koehne drove to the store in his marked police car, approached Mateen in the

store wearing his police uniform and asked Mateen for his name and identification. Mateen

lifted his shirt and began to pull out a large knife and moved towards the Sergeant. In response,

Sergeant Koehne tased Mateen. Mateen slashed at Sergeant Koehne with the knife, and cut

Sergeant Koehne on two of his fingers. Mateen then fled the store and returned to his room at

the Carter Motel. Sergeant Koehne called for assistance and followed Mateen.

Deputy Calvin “C.J.” Lehman, a deputy with the Fayette County Sheriff’s

Department, testified that he was working security at a nearby community event when he heard

on his radio that an officer was attempting to serve a warrant at a Dollar General, that an “officer

was in trouble,” and that the suspect had run to the Carter Motel. When he arrived on the scene

at the Carter Motel, he saw that Sergeant Koehne was bleeding from his hand. The officers on

the scene created a perimeter around the outside of Mateen’s room. Deputy Lehman took

possession of the keys to the room and opened the door. He testified that he looked into the

room, which was dark, and then he was shot. He fell to the ground and heard multiple shots fired

by his fellow deputies and officers that hit the building. He testified that he saw red and felt

someone unsuccessfully attempt to drag him to safety. Realizing that no one would be able to

carry him, Deputy Lehman crawled based on the directions yelled at him by his fellow deputies

and then with help walked away from the scene. He was unable to see and at that point could

only see “total black.” He was evacuated from the scene by helicopter and taken to the hospital.

He underwent an immediate surgery, followed by several additional surgeries, and was left

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permanently blinded. Body cam footage that was admitted and played for the jury corroborated

Deputy Lehman’s testimony.

Texas Ranger Brent Barina interviewed Mateen in the hospital after the shooting.

The audio of that interview was admitted at trial and played for the jury. In the interview,

Mateen admitted to knowing that the officers were law enforcement and that they were

attempting to serve an arrest warrant regarding his failure to register as a sex offender. He also

admitted to firing his shotgun.

Mateen testified in his own defense. He testified that after attempting to cast a

spell on the officer in the Dollar General with a ceremonial knife that was not capable of cutting

someone, he was followed by police officers to the front door of his residence at the Carter

Motel. From inside his room, he could not see the officers outside but could hear them talking

about entering the room. When the door opened, he picked up his shotgun and fired it out the

door. He testified that he could not see out the door and was not trying to shoot an officer but

was trying to instigate their fire as a form of suicide. He testified that he never shot at any police

officer. He explained that he fired the initial shot at the door, which he admitted was open when

he fired the shotgun, and described being able to see the sky through the door. He testified that

he then presented himself at the door for the officers to shoot him and that he fired three

additional shots over the heads of the officers. Mateen also testified that he had not registered as

a sex offender because he was actually innocent of the underlying offense of robbery with intent

to commit sexual assault.

After hearing all the evidence, the jury convicted Mateen of aggravated assault of

a public servant and assessed punishment at life imprisonment. See Tex. Penal Code § 12.32

(including life imprisonment in sentencing range for first-degree felony offenses); id.

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§ 22.02(b)(2)(B) (designating aggravated assault on public servant as first-degree

felony offense).

DISCUSSION

Sufficiency of the evidence

In his third issue on appeal, Mateen contends that the evidence at trial was

insufficient to support his conviction for aggravated assault of a public servant because, as he

contends, he is actually innocent of the underlying offense for which the arrest warrant was

issued, and thus, the deputies were not lawfully discharging their duty. We will address

Mateen’s sufficiency claim first before addressing his remaining issues. See Medina v. State,

565 S.W.3d 868, 873 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (addressing sufficiency

challenge first because it could result “in greater relief than his other issue”). Although Mateen

frames his issue as a factual sufficiency issue, we will address it as a legal sufficiency issue

because that is the only remaining sufficiency standard for direct appeals. See Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (ending review of factual sufficiency of evidence).

“When addressing a challenge to the sufficiency of the evidence, we consider

whether, after viewing all of the evidence in the light most favorable to the verdict, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018) (citing Jackson v. Virginia,

443 U.S. 307, 319 (1979)). “This standard requires the appellate court to defer ‘to the

responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting

Jackson, 443 U.S. at 319). “We may not re-weigh the evidence or substitute our judgment for

that of the factfinder.” Id. Although factfinders “may not speculate about the meaning of facts

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or evidence,” they are permitted to “draw any reasonable inferences from the facts so long as

each inference is supported by the evidence presented at trial.” Id. “We presume that the

factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we

defer to that resolution.” Id. This is because the factfinders are “the exclusive judges of the

facts, the credibility of the witnesses, and the weight to be given to the testimony.” Id. “Direct

evidence and circumstantial evidence are equally probative, and circumstantial evidence alone

may be sufficient to uphold a conviction so long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Id.

A person commits aggravated assault of a public servant if they cause serious

bodily injury or use or exhibit a deadly weapon during the commission of the assault against a

person the actor knows is a public servant while the public servant is lawfully discharging an

official duty. See Tex. Penal Code § 22.02(b)(2)(B). Mateen only challenges whether the

evidence was sufficient to support that Deputy Lehman was lawful in his discharge of his official

duty. Specifically, Mateen contends that because he is actually innocent of robbery with intent

to commit sexual assault, he should not have been required to register as a sex offender, and thus,

the deputies serving his arrest warrant for the offense of failure to register as a sex offender were

not lawfully discharging their official duty.

However, even if Mateen’s contention that the arrest warrant was unlawfully

issued, the legality of the arrest does not affect the lawfulness of the deputy’s discharge of his

duty to serve the arrest warrant. See Gonzalez v. State, 574 S.W.2d 135, 136–37 (Tex. Crim.

App. 1978) (holding that “[e]ven if the appellant’s contention is correct that the arrest was

unlawful, his contention that the officer was not in the lawful discharge of an official duty is

without merit”). Thus, viewing all of the evidence in the light most favorable to the verdict, we

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conclude that the jury could have rationally found that Mateen committed aggravated assault on

a public servant when he permanently blinded Deputy Lehman by firing his shotgun out his front

door knowing that police officers were outside the door attempting to execute an arrest warrant.

See Zuniga, 551 S.W.3d at 732 (explaining legal sufficiency standard); Gokey v. State,

314 S.W.3d 63, 65 (Tex. App.—San Antonio 2010, pet. ref’d, untimely filed) (holding evidence

was legally sufficient to prove aggravated assault of public servant when appellant cut uniformed

officers with a knife while evading arrest).

Because the evidence was legally sufficient to support his conviction for

aggravated assault of a public servant, we overrule his third issue.

Actual Innocence

In his first issue on appeal, Mateen contends that he is factually and actually

innocent of the offense of aggravated assault of a public servant because he is actually innocent

of the offense of failure to register as a sex offender, which was the offense for which the

deputies were serving an arrest warrant for when Mateen shot Deputy Lehman.

Mateen cites Herrera in support of his actual innocence issue. See Herrera

v. Collins, 506 U.S. 390, 409–11 (1993). However, a direct appeal is not the vehicle in which to

raise an actual innocence claim. See State ex rel. Abbott v. Young, 265 S.W.3d 697, 705 (Tex.

App.—Austin 2008, pet. denied) (explaining that “‘[a]ctual innocence’ is a term of art that has

consistently been used by Texas courts to describe a basis for collaterally attacking, through

habeas corpus, a final criminal conviction on constitutional grounds”); see also Ex parte Brown,

205 S.W.3d 538, 546 (Tex. Crim. App. 2006) (explaining that actual innocence claims are

exception to “raised and rejected” bar in habeas corpus proceedings because it is type of claim

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that “direct appeal cannot be expected to provide an adequate record to evaluate the claim in

question, and the claim might be substantiated through additional evidence gathering in a habeas

corpus proceeding”). Instead, actual innocence claims are cognizable on habeas corpus review.

Ex parte Brown, 205 S.W.3d at 544 (recognizing cognizability of Herrera claims in state habeas

corpus proceedings). Therefore, we do not reach the merits of Mateen’s actual innocence issue.

See State ex rel. Abbott, 265 S.W.3d at 706 (noting that “‘[a]ctual innocence’ is a term unique to

the habeas context”). However, to the extent Mateen raises a legal sufficiency issue, we have

already addressed it above. Thus, we overrule his first issue.

Indictment

In his second issue, Mateen contends that the trial court violated his Fifth

Amendment right to have the indictment be issued by a grand jury when it granted the State’s

motion to delete surplusage language from the indictment. Mateen contends that any change to

an indictment’s language outside of the grand jury process is a violation of his constitutional

rights and in support of his contention he cites nonprecedential federal cases. However, “the

grand jury requirements of the Fifth Amendment are held not binding on the states by virtue of

the Fourteenth Amendment.” King v. State, 473 S.W.2d 43, 46 (Tex. Crim. App. 1971) (quoting

Martin v. Beto, 397 F.2d 741, 746 (5th Cir. 1968)). Rather, unnecessary words may be stricken

from the indictment as surplusage “[w]hen not descriptive of that which is legally essential to the

validity of an indictment or information.” Davis v. State, 532 S.W.2d 626, 628 (Tex. Crim. App.

1976). Further, amendment to an indictment is proper prior to the start of the trial if the

defendant is allowed at least ten days to respond to the amendment. Tex. Code Crim. Proc.

art. 28.10(a).

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In his reply brief, Mateen contends that the stricken language was more than

surplusage because it resulted in the State abandoning elements of the offense. We disagree.

The indictment states in relevant part, with the deleted sections stricken through:

SHAZIZZ MATEEN hereinafter styled Defendant, on or about the 1st day of

November, A.D. 2018, and before the presentment of this indictment, in the

County and State aforesaid, did then and there, intentionally, knowingly, and

recklessly cause serious bodily injury to C.J. Lehmann by shooting him with a

firearm, and the Defendant did then and there use or exhibit a deadly weapon,

namely, a firearm, during the commission of the assault and the Defendant did

then and there know that that C.J. Lehmann was a public servant, namely, a

Deputy with Fayette County Sheriff’s Office, and that C.J. Lehmann was then and

there lawfully discharging an official duty, namely, attempting to arrest the

Defendant.

The deletions of repetitive portions of the indictment were not an amendment, but

rather, were an abandonment of surplusage language. See Eastep v. State, 941 S.W.2d 130, 132,

134 (Tex. Crim. App. 1997), overruled on other grounds by Gollihar v. State, 46 S.W.3d 243,

256 (Tex. Crim. App. 2001) and Riney v. State, 28 S.W.3d 561, 565 (Tex. Crim. App. 2000)

(explaining that “[a]n amendment is an alteration to the face of the charging instrument which

affects the substance of the charging instrument,” and “[s]urplusage is unnecessary language not

legally essential to constitute the offense alleged in the charging instrument”). Such

abandonments are allowed and do not implicate the requirements for amending an indictment

under the Code of Criminal Procedure. Id. at 135.

Furthermore, any changes made to the indictment were made on July 20, 2022

and the trial began sixteen days later on August 5, 2022. Thus, any alleged amendments to the

indictment would have been made more than ten days prior to the start of trial. See Tex. Code

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Crim. Proc. art. 28.10(a) (allowing for amendment of indictment prior to trial if defendant given

ten days’ notice).

We overrule Mateen’s second issue.

Ineffective assistance of trial counsel

In his fourth through sixth issues on appeal, Mateen contends that his trial counsel

was ineffective.

Standard of review

To prevail on his claim of ineffective assistance of counsel, Mateen must prove by

a preponderance of the evidence that: (1) his counsel’s performance was deficient, and (2) the

deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);

Hernandez v. State, 988 S.W.2d 770, 772–74 (Tex. Crim. App. 1999). The review of a trial

counsel’s representation on an ineffective-assistance challenge is highly deferential to counsel’s

professional judgment. Strickland, 466 U.S. at 689.

To meet the first prong of the Strickland test, Mateen must overcome a strong

presumption that his counsel’s conduct falls within the wide range of reasonably professional

assistance. Id. “[A]ny allegation of ineffective assistance must be firmly founded in the record,

and the record must affirmatively demonstrate the alleged ineffectiveness.” Thompson v. State,

9 S.W.3d 808, 814 (Tex. Crim. App. 1999). Generally, a reviewing court will not speculate

about counsel’s trial strategy. Mayhue v. State, 969 S.W.2d 503, 511 (Tex. App.—Austin 1998,

no pet.). When there is an absence of evidence in the record of counsel’s reasons for the

challenged conduct, we “will not conclude the challenged conduct constituted deficient

performance unless the conduct was so outrageous that no competent attorney would have

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engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). “A substantial risk

of failure accompanies an appellant’s claim of ineffective assistance of counsel on direct appeal.”

Thompson, 9 S.W.3d at 813. Generally, the proper avenue for developing the record is in a

habeas corpus proceeding or in a motion for new trial hearing. Jensen v. State, 66 S.W.3d 528,

542 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

Constructive denial of counsel

In his fourth issue, Mateen contends that he was constructively denied counsel

because his trial counsel did not object to the State deleting language from the indictment.

The constructive denial of counsel occurs when counsel fails entirely to subject

the State’s case to meaningful adversarial testing. United States v. Cronic, 466 U.S. 648, 659

(1984). If a defendant is constructively denied counsel, then prejudice is presumed and no actual

showing of prejudice is required. Id. However, for this presumption to apply, “the attorney’s

failure must be complete.” Bell v. Cone, 535 U.S. 685, 697 (2002). This situation is

characterized “by the ‘inert’ or ‘potted plant’ lawyer who, although physically and mentally

present in the courtroom, fails to provide (or is prevented from providing) any meaningful

assistance.” Ex parte McFarland, 163 S.W.3d 743, 752 (Tex. Crim. App. 2005) (emphasis in

original). This is a “narrow exception” to Strickland that will “infrequently” apply. Florida

v. Nixon, 543 U.S. 175, 190 (2004).

Here, Mateen contends that counsel’s failure to object to the deletion of portions

of the indictment demonstrates that counsel was biased against him and thus, he was

constructively denied counsel. We disagree. Mateen’s complaint focuses on a singular action

during the trial—failure to object to the State’s requested changes to the indictment—and not of

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counsel’s behavior throughout trial. See Bell, 535 U.S. at 697 (differentiating between

appellants’ contentions that implicate Chronic rule, which include allegations that “counsel

failed to oppose the prosecution throughout the [] proceeding as a whole,” and those implicating

Strickland rule, which allege “that his counsel failed to do so at specific points”). Thus, although

Mateen framed his issue under Chronic, it actually implicates the Strickland standard. See id. In

the interest of justice and liberally construing Mateen’s issue, we also analyze it under

Strickland. See 466 U.S. at 687.

As discussed in our analysis of Mateen’s second issue, the indictment was not

amended. Further, amendments to indictment are allowed and are not barred by the Fifth

Amendment, contrary to his contention otherwise. See Tex. Code Crim. Proc. art. 28.10(a)

(allowing for amendment of indictment prior to trial if defendant is given ten days’ notice); King,

473 S.W.2d at 46 (explaining that “the grand jury requirements of the Fifth Amendment are held

not binding on the states by virtue of the Fourteenth Amendment”); Davis, 532 S.W.2d at 628

(holding that “unnecessary words may be stricken from the indictment as surplusage”).

The indictment tracks the statutory language of the statute. See Tex. Penal Code

§ 22.02(b)(2)(B); State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998) (explaining that

generally “an indictment tracking the language of the statute will satisfy constitutional and

statutory requirements”). Notably, the failure to raise a meritless objection is not deficient

performance. See Riles v. State, 595 S.W.2d 858, 861 (Tex. Crim. App. 1980). Additionally, the

record does not include anything from which we may discern that counsel’s performance was not

based on sound strategy. On this record, we cannot conclude that the conduct was so outrageous

that no competent attorney would have engaged in it. See Garcia, 57 S.W.3d at 440. Thus, we

conclude that there is insufficient basis in the present record to overcome the presumption that

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counsel exercised reasonable professional judgment. Accordingly, we overrule Mateen’s

fourth issue.

Ineffective assistance: sentencing range

In his fifth issue on appeal, Mateen contends that his counsel failed to object to

the enhancement paragraphs in the indictment, which resulted in an incorrect habitual offender

sentencing range in the jury charge, and that counsel failed to properly instruct him on the

consequences of pleading true to the enhancement paragraphs. The court’s charge instructed the

jury that Mateen had pleaded true to two prior felony convictions and instructed that:

You are therefore to determine and state in your verdict-

1. the term in prison to be imposed on the defendant for no less than fifteen years

and no more than ninety-nine years or for life, or

2. the term in prison to be imposed on the defendant for no less than fifteen years

and no more than ninety-nine years or for life and a fine of no more than

$10,000.

Mateen contends that he was incorrectly sentenced under the federal sentencing

guidelines for calculating enhanced sentences. However, those guidelines were not at issue in

this case. The jury was properly instructed regarding the sentencing range under the Texas Penal

Code and Mateen was properly sentenced within the instructed range. See Tex. Penal Code

§ 12.32 (setting punishment range for first-degree felony offense at life imprisonment or for any

term of not more than 99 years or less than 5 years, and up to $10,000 fine); id. § 12.42(c)(1)

(enhancing minimum sentencing range to 15-years imprisonment for first-degree felonies when

defendant has been finally convicted of prior felony other than state jail felony); id.

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§ 22.02(b)(2)(B) (designating aggravated assault on public servant as first-degree felony

offense). Thus, Mateen has not shown that there was an error in the sentencing range for his trial

counsel to object to. See Riles, 595 S.W.2d at 861 (holding that failure to raise meritless

objection is not deficient performance).

Mateen also contends that his trial counsel failed to explain the implications of

him pleading true to his prior felony convictions. However, the record does not include any

indication of what or how trial counsel spoke with Mateen regarding the enhancement

allegations. Rather, the record only reflects that when asked by the trial court if the allegations

were “true or not true,” Mateen answered, “It happened—true.” Thus, the alleged error is not

contained within the record. See Thompson, 9 S.W.3d at 814 (requiring that “any allegation of

ineffective assistance must be firmly founded in the record, and the record must affirmatively

demonstrate the alleged ineffectiveness”).

On this record, we cannot conclude that counsel’s complained of conduct was so

outrageous that no competent attorney would have engaged in it. See Garcia, 57 S.W.3d at 440.

Accordingly, we conclude that Mateen has not overcome the presumption that counsel exercised

reasonable professional judgment. We overrule his fifth issue.

Ineffective assistance: jury charge

In his sixth issue on appeal, Mateen contends that his trial counsel failed to

request a jury instruction on “The Presumption of Law Argument Defense instruction,

tantamount to a reasonable doubt instruction.” However, the court’s charge included the

following:

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Presumption of Innocence. The defendant is presumed innocent of the charges.

All persons are presumed to be innocent, and no person may be convicted of an

offense unless each element of the offense is proved beyond a reasonable doubt.

The law does not require a defendant to prove his innocence or produce any

evidence at all. Unless the jurors are satisfied beyond a reasonable doubt of the

defendant’s guilt after careful and impartial consideration of all the evidence in

the case, the presumption of innocence alone is sufficient to acquit the defendant.

Burden of Proof. The burden of proof throughout the trial is always on the State.

The defendant does not have the burden to prove anything. The State must

prove every element of the offense beyond a reasonable doubt to establish

guilt for the offense. If the State proves every element of the offense beyond a

reasonable doubt, then you must find the defendant guilty. If the State does not

prove every element of the offense beyond a reasonable doubt, then you must find

the defendant not guilty. If, after you have considered all the evidence and these

instructions, you have a reasonable doubt about whether the defendant is guilty,

you must find the defendant not guilty. (emphasis added.)

Because the Court’s charge did include an instruction on reasonable doubt,

Mateen has not directed us to any error contained in the record. See Thompson, 9 S.W.3d at 814.

Accordingly, we conclude that Mateen has not overcome the presumption that counsel exercised

reasonable professional judgment. We overrule his sixth issue.

Jury Charge

As best as we can determine, in his final issue on appeal, Mateen contends that

the trial court directed a verdict for the State by failing to include in the jury charge an

instruction on the presumption of innocence and proof beyond a reasonable doubt. Specifically,

he contends that he was entitled to the instructions because there was evidence presented that he

is a sovereign citizen, the arrest was unlawful, and because his trial counsel did not move for

directed verdict.

Jury charge error claims are reviewed under a two-pronged test in which the

appellate court must determine: (1) whether the charge was erroneous, and (2) if there was an

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error, whether the error was harmful to the defendant. Olivas v. State, 202 S.W.3d 137, 143–44

(Tex. Crim. App. 2006) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on rehearing)).

As previously discussed, the court’s charge did include instructions on

presumption of innocence and reasonable doubt. Mateen does not specifically identify anything

within those instruction that he contends is erroneous. Additionally, the presumption of

innocence instruction in the court’s charge tracks the Texas Pattern Jury Charge. See State Bar

of Texas, Texas Criminal Pattern Jury Charges—Crimes Against Persons § C2.1 (2011). While

“the Texas Pattern Jury Charges are not ‘law’, they are heavily relied upon by both the bench and

bar.” H.E. Butt Grocery Co. v. Bilotto, 928 S.W.2d 197, 199 (Tex. App.—San Antonio 1996),

aff’d, 985 S.W.2d 22 (Tex. 1998); see also Lerma v. State, No. 03-18-00578-CR,

2020 WL 1472362, *3 (Tex. App.—Austin March 26, 2020, pet. ref’d) (mem. op., not

designated for publication) (same).

Therefore, we conclude that Mateen has not shown that the trial court committed

error in the jury charge regarding either its presumption of innocence or reasonable doubt

instruction. Consequently, we do not address the harm analysis in this case. See Tex. R. App. P.

47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but

that addresses every issue raised and necessary to final disposition of the appeal.”). We overrule

Mateen’s final issue on appeal.

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CONCLUSION

Because we overrule all of Mateen’s issues, we affirm the trial court’s judgment

of conviction.

__________________________________________

Gisela D. Triana, Justice

Before Justices Triana, Kelly, Smith

Affirmed

Filed: May 29, 2024

Do Not Publish

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