No. 14-01-01281-CR.
Memorandum Opinion Filed March 6, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.2(b).
Appeal from the County Court at Law Number One, Fort Bend County, Texas, Trial Court Cause No. 91561A. AFFIRMED.
Before Justices YATES, ANDERSON, and FOWLER.
WANDA McKEE FOWLER, Justice.
Charles Ray Williams appeals his conviction for evading detention. The trial court ordered appellant to pay a $2,000 fine and sentenced him to 180 days' confinement in the Fort Bend County Jail. Appellant argues that: (1) the trial court erroneously denied his request for a mistrial; and (2) he received ineffective assistance of counsel. We affirm.
ANALYSIS AND DISCUSSION
A. Did the trial court erroneously deny appellant's motion for mistrial? In his first issue, appellant argues the trial court erroneously denied appellant's motion for mistrial. In violation of a motion in limine, when appellant was testifying, the prosecutor asked appellant whether he had ever been convicted of a felony. Before appellant answered, defense counsel objected and asked to approach the bench. The trial court excused the jury and then held a hearing on the admissibility of appellant's prior conviction for burglary of a habitation. The trial court denied the State's request to admit the conviction to impeach appellant's veracity. During the hearing, defense counsel moved for a mistrial, arguing that the question tainted the jury's perception to a degree that could not be cured by an instruction to disregard. The trial court denied appellant's motion for a mistrial and instructed the jury, upon its return to the courtroom, to disregard the State's last question if it remembered it. The asking of an improper question, by itself, seldom calls for a mistrial because, in most cases, any harm can be cured by an instruction to disregard. Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). Mistrial is an extreme "remedy appropriate for a narrow class of highly prejudicial and incurable errors. . . ." Id. "A mistrial is required only when the improper question is clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors." Id. On appeal, we apply an abuse of discretion standard of review and presume that instructions to disregard are efficacious. Id.; Moore v. State, 882 S.W.2d 844, 847 (Tex.Crim.App. 1994). The appellate record does not suggest that this single, unanswered question, inflamed the minds of the jury so as to overcome this presumption. See id. Accordingly, we overrule appellant's first issue. B. Was appellant's trial counsel ineffective?
In his three remaining issues, appellant argues that he received ineffective assistance from his trial lawyer. To prove ineffective assistance of counsel, appellant must show that: (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 2064-68, 80 L.Ed.2d 674 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 466 U.S. at 694, 104 S.Ct. at 2068. In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Appellant has the burden of proving his claims by a preponderance of the evidence. See Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim. App. 1998). In his second issue, appellant contends defense counsel's failure to raise a Batson challenge to the State's use of a peremptory strike to exclude a minority from the jury panel constituted ineffective assistance. Nothing in the record suggests the State struck this member of the jury panel for discriminatory purposes. See Jackson v. State, 772 S.W.2d 459, 465 (Tex.App.-Beaumont 1989, no pet.). From the record, it is not possible to draw a reasonable inference of purposeful discrimination, the threshold for making a Batson challenge. See id. The record contains no evidence as to why trial counsel did not make a Batson challenge. We therefore presume this action was reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Moreover, appellant has failed to show that he was prejudiced by trial counsel's erroneous failure, if any, to make a Batson challenge. See Batiste v. State, 888 S.W.2d 9, 14-16 (Tex.Crim.App. 2000) (holding prejudice prong of Strickland test applies even when ineffective-assistance claim is premised on failure to make a Batson challenge). We overrule appellant's second issue because he has failed to prove ineffective assistance of counsel. In his third issue, appellant asserts his trial counsel was ineffective because he failed to object when the State violated a pretrial order by presenting witnesses without first giving the defense a witness list. In his fourth issue, appellant argues his attorney "did not properly investigate the facts of the case." At the hearing on appellant's motion for new trial, trial counsel testified he did not object to the State's failure to produce a witness list because he thought the case would settle. Trial counsel also testified that he knew several months before trial that the State's primary witness would be Officer McQueen of the Rosenburg Police Department and that the State might call a federal agent, who was at the scene when appellant was arrested, as a rebuttal witness. Without ruling on the merits of appellant's third and fourth issues under the first prong of the Strickland test, we hold that appellant has failed to show prejudice under the second prong of Strickland. Nothing in the record suggests that the outcome would have been different if trial counsel had requested a witness list or interviewed the witnesses. Accordingly, appellant has failed to show ineffective assistance of counsel, and we overrule his third and fourth issues. Having overruled appellant's four issues, we affirm the trial court's judgment.