Opinion
No. 01-03-00291-CR
Opinion issued July 1, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 337th District Court, Harris County, Texas, Trial Court Cause No. 915685.
Panel consists of Chief Justice RADACK and Justices BLAND and SULLIVAN.
The Honorable Kent Sullivan, judge of the 80th District Court of Harris County, Texas, participating by assignment. See Tex. Gov't Code Ann. § 74.003(h) (Vernon Supp. 2004).
MEMORANDUM OPINION
A jury found appellant, Robert Louis Allen, guilty of murder and assessed punishment at 20 years' confinement. In two points of error, appellant contends that (1) appellant's trial counsel was ineffective because counsel did not object when the State improperly posed a commitment question during voir dire, and (2) the trial court erred by allowing a State witness to testify when the State failed to provide ten days' notice in accordance with the trial court's discovery order. We affirm.
Ineffective Assistance of Counsel
Factual Background During voir dire, the prosecutor addressed the punishment issue of sudden passion, explaining "sudden passion" and "adequate cause" as they are defined in the punishment phase jury instructions. Subsequently, the prosecutor proceeded as follows:The deal about sudden passion is timing. Timing is everything. It's immediate. Let me just sort of give you a hypothetical on it. Bob's going hunting. Him and his buddies go on a hunting trip [sic] there's about six guys going. The wife's going, "Yeah, go, go, go. I'll be fine here this weekend." So he doesn't think anything of it. He's getting his gear together and he goes and at the very last moment his best friend says, "I can't go. I've got to work." So Bob doesn't really think anything about it.
He goes off to his hunting trip and the weather is not great and he says, "Hey, I think I'm going to go home." So he drives home. He leaves the guys there. And he opens the door and he's got his rifle slung over his shoulder and he's got his duffel bag and he's walking in. Lights are off. He sort of hears something. He walks into the bedroom and who does he see? His best friend and his wife in bed. Bob does not think one second. He drops his bag, he pulls the rifle down, he shoots. Now, who thinks that is sudden passion? Was that immediate? Immediate, first row? Sudden passion?
Now, let me sort of change it on you. Bob, same thing, comes home, he's got his duffel bag and his rifle. He puts them down by the front door. Lights are out, quiet. He walks up, he hears something. He looks and sees, he goes back down and he's just like sitting down and waiting. He's just like, "I just can't believe it." A minute passes, a couple minutes more. He's like, "I'll fix this," and he goes and gets his rifle, bang, bang. Now, is that sudden passion? Was that immediate?The prosecutor then asked the panel members for their opinion as to whether or not the second scenario constituted sudden passion. Appellant's defense counsel did not object to this line of questioning. Instead, defense counsel employed the State's hypothetical during the defense's voir dire examination. Specifically, defense counsel inquired:
I want to go back to the very last question where she went down the row and asked you about you coming home, Bob's in the bedroom with your wife, you go to the living room, sit down, think about it. Let's say 30 minutes you're sitting in your living room, you're devastated. Rifle is there. You're sitting there. Bob comes down the hallway, sees you and you stand up and Bob comes over and just knocks you on the floor and you get up and you shoot Bob. No. 1, do you think that's sudden passion?During the punishment phase, the trial court instructed the jury about sudden passion. Thereafter, the jury decided that appellant was not under the immediate influence of sudden passion arising from an adequate cause when appellant caused the complainant's death. Analysis To prove ineffective assistance, a defendant must show, by a preponderance of the evidence, that (1) counsel's performance was so deficient that he was not functioning as acceptable counsel under the Sixth Amendment and (2) there is a reasonable probability that, but for counsel's error or omission, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). The defendant must overcome the strong presumption that the challenged action might have been sound trial strategy. Thompson, 9 S.W.3d at 813. We will not speculate to find trial counsel ineffective when the record is silent as to counsel's reasoning or strategy. Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.-Houston [1st Dist.] 1996, no pet.). Accordingly, assertions of ineffective assistance of counsel must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App. 2002). Appellant asserts that his trial counsel was ineffective because counsel failed to object when the State posed a commitment question during voir dire. Specifically, appellant contends that, in using the above-described hypothetical, the State improperly committed the panel members concerning the immediacy element of sudden passion, thus allowing the State to eliminate those appearing receptive to "the ultimate defense issue in the case." Even assuming, without deciding, that the State's hypothetical and related questions constituted improper commitment questioning, appellant still must overcome a strong presumption that counsel's failure to object to the State's hypothetical might have been sound trial strategy. See Thompson, 9 S.W.3d at 813. The record reveals that, during the defense's voir dire examination, appellant's trial counsel used the State's hypothetical, altering the scenario's time frame to 30 minutes, and like the prosecutor, inquired whether the panel members believed it constituted sudden passion. Appellant's defense counsel further used the State's hypothetical to inquire whether the panel members could consider probation in a murder case. Rather than objecting to the State's hypothetical, appellant's trial counsel instead converted it to the defense's use during its own voir dire examination. On these facts, we conclude that counsel's decision not to object to the State's hypothetical scenarios and related questions was not deficient or lacking in tactical or strategical decision-making so as to overcome the presumption that counsel's performance was reasonable and professional. See Bone, 77 S.W.3d at 833. Moreover, even if counsel's performance was deficient, appellant presents no evidence that, but for counsel's omission, the result of the proceeding would have been different. Strickland, 466 U.S. at 687. Accordingly, we overrule appellant's first point of error.