Opinion
No. 04-15-00305-CR
01-27-2016
Brian GORHAM, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR10383
Honorable Mary Roman, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Brian Gorham appeals his conviction for aggravated sexual assault of a child. His sole issue is that he received ineffective assistance of counsel because his trial counsel failed to object to a juror's service after the juror admitted to being on probation for aggravated assault with a deadly weapon. We affirm the trial court's judgment.
BACKGROUND
Gorham was indicted for aggravated sexual assault of a child and pled not guilty. After the jury was impaneled, and before the State opened, one of the jurors admitted to being on probation for aggravated assault with a deadly weapon. The State argued that the juror was disabled from serving on the jury. Gorham's trial counsel disagreed and did not object to the juror remaining on the jury. The trial court proceeded and allowed the juror to remain on the jury. The jury thereafter returned a guilty verdict, and Gorham received a life sentence. Gorham filed a motion for new trial on the ground that "[t]he Verdict in this cause is contrary to the law and the evidence." There was no hearing on Gorham's motion for new trial. Gorham appeals.
INEFFECTIVE ASSISTANCE OF COUNSEL
Gorham argues he received ineffective assistance of counsel because his trial counsel "fail[ed] to object to and so exclude an absolutely disqualified juror . . . who [wa]s on felony deferred adjudication." Sixth Amendment ineffective assistance of counsel claims are governed by Strickland's two-prong test of determining whether trial counsel's representation was constitutionally deficient and whether the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984); accord Russell v. State, 90 S.W.3d 865, 875 (Tex. App.—San Antonio 2002, pet. ref'd). "Any allegation of ineffectiveness must be firmly founded in the record." Russell, 90 S.W.3d at 875. To satisfy Strickland's first prong on direct appeal, the record must demonstrate: (1) trial counsel's deficient performance of some act or failure to perform some act; and (2) trial counsel had no reasonable trial strategy for the act or omission. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). "There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. "Under normal circumstances, the record on direct appeal will not be sufficient to show that counsel's representation was so deficient and so lacking in tactical or strategic decision making as to overcome the presumption that counsel's conduct was reasonable and professional." Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Gorham contends his trial counsel could not have had a reasonable trial strategy for failing to object because "the record shows that defense counsel did not know the applicable law." Gorham cites to his trial counsel's argument that the juror was not disabled from serving on the jury. Contrary to Gorham's contention, the record does not show that his trial counsel failed to object because he did not know the law. The record is silent as to why Gorham's trial counsel did not object to having a juror who was on probation for a felony offense on the jury. The record does not demonstrate Gorham's trial counsel's lacked "tactical or strategic decision making." See id. Gorham's trial counsel could have had a reasonable trial strategy for not objecting. Thus, Gorham's allegation of ineffectiveness is not firmly founded in the record. See Russell, 90 S.W.3d at 875.
CONCLUSION
We affirm the trial court's judgment.
Luz Elena D. Chapa, Justice DO NOT PUBLISH