Opinion
NO. 02-15-00197-CR
05-26-2016
DEVANNE WAYNE JONES APPELLANT v. THE STATE OF TEXAS STATE
FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY
TRIAL COURT NO. 1366084D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Devanne Wayne Jones pleaded guilty to murder, and a jury assessed his punishment at life in prison and a $10,000 fine. See Tex. Penal Code Ann. §§ 12.32, 19.02(b)(1) (West 2011). In two points, Jones argues that the trial court erred by denying his challenge for cause and that his trial counsel was ineffective. We will affirm.
Jones and his wife, LaToya Alexander, experienced difficulties in their marriage and eventually separated. One night in early April 2014, Jones jumped over the fence in Alexander's backyard and overheard her having a conversation with their daughter inside the house. Alexander left the house but returned later that night, whereupon Jones confronted her when she pulled her vehicle into the garage. Alexander called 911, and Jones began shooting her through the vehicle's windows with a .9mm handgun, killing her. Jones drove to Kansas but surrendered to authorities shortly thereafter.
Jones argues in his first point that the trial court erred by denying a challenge for cause that he asserted against venire member "C" at the conclusion of the punishment voir dire because venire member "C" could not be fair to both sides if the case involved domestic violence. The State responds that Jones failed to preserve this point for review because, although he challenged venire member "C" for cause and obtained a ruling from the trial court, he did not additionally show that he used a peremptory challenge on venire member "C," that his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.
To preserve error for a trial court's erroneous denial of a challenge for cause, a defendant must show that (1) he asserted a clear and specific challenge for cause; (2) he used a peremptory challenge on the complained-of venire member; (3) his peremptory challenges were exhausted; (4) his request for additional strikes was denied; and (5) an objectionable juror sat on the jury. Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010), cert. denied, 132 S. Ct. 128 (2011); see Escobar v. State, No. AP-76571, 2013 WL 6098015, at *18 (Tex. Crim. App. Nov. 20, 2013), cert. denied, 135 S. Ct. 402 (2014) (not designated for publication). Jones's trial counsel challenged venire member "C" for cause but did not take the additional steps that were necessary to preserve this argument for appeal. See Davis, 329 S.W.3d at 807; see also Comeaux v. State, 445 S.W.3d 745, 752 (Tex. Crim. App. 2014) (Johnson, J., concurring) (explaining which steps are required for preservation). Therefore, he forfeited this point for review. We overrule Jones's first point.
In his second point, Jones argues that his trial counsel was ineffective for failing "to take the required steps to preserve error when the trial court erred when it improperly overruled [his] challenge for cause to [venire member "C"]."
To establish ineffective assistance of counsel, appellant must show by a preponderance of the evidence that his counsel's representation was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013); Hernandez v. State, 988 S.W.2d 770, 770 (Tex. Crim. App. 1999). An ineffective-assistance claim must be "firmly founded in the record," and "the record must affirmatively demonstrate" the meritorious nature of the claim. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
Here, not only is Jones's ineffective assistance claim not firmly founded in the record—it is silent as to counsel's strategy for selecting and jury, and Jones did not file a motion for new trial—but he does not explain how his trial counsel's alleged deficient performance prejudiced him. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Thompson, 9 S.W.3d at 813. Accordingly, we overrule Jones's second point and affirm the trial court's judgment.
The prejudice prong of Strickland requires a showing that counsel's errors were so serious that they deprived the defendant of a fair trial, i.e., a trial with a reliable result. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Jones merely states, "Appellant clearly was harmed by these failures of his Trial Counsel: If Appellant's Trial Counsel had taken the required steps, the trial court would have had an opportunity to cure this error."
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: LIVINGSTON, C.J.; DAUPHINOT and MEIER, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: May 26, 2016