No. 01-04-00117-CR
Opinion issued February 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from County Court at Law No. 3, Fort Bend County, Texas, Trial Court Cause No. 102883.
Panel consists of Justices TAFT, KEYES, and HANKS.
EVELYN V. KEYES, Justice.
Appellant, Larry Korey Jimenez, was found guilty by a jury for driving while intoxicated (DWI). The trial court assessed his sentence at 365 days' confinement, suspended for two years' community supervision. In two points of error, appellant contends that his Sixth Amendment rights to a fair and impartial jury and to the effective assistance of counsel were violated. We affirm.
Background
Around 1:30 a.m. on January 14, 2003, Deputies Walter Jameson and Glenn St. Hilarie pulled appellant over for having a burnt-out headlight. Appellant stopped his car in the moving lane of traffic. Jameson told appellant to move his car to safety on the side of the road. Rather than moving the car to the right-hand shoulder, appellant crossed the lane for on-coming traffic and stopped his car on the left-hand shoulder. Jameson walked up to appellant's side of the car and requested his driver's license and insurance. Jameson smelled alcohol. He also noticed that appellant had bloodshot eyes and slurred his speech. When Jameson asked appellant to get out of the car, appellant stumbled and used the car to regain and maintain his balance. Appellant told Jameson that he had had a couple of beers with his boss earlier that night. Jameson conducted a field sobriety test, on which appellant performed poorly. Jameson arrested appellant for DWI and took him to the police station. At the station, appellant refused to take a breath test or to re-take the field sobriety test so that the test could be filmed. During voir dire, appellant's trial counsel attempted to strike for cause jurors number one and two (Fuller) because he claimed they had indicated that they could not be fair to appellant if he had a prior DWI. The trial court denied the challenges. Appellant's trial counsel requested two additional peremptory strikes for jurors number one and two, which the court denied. Appellant's trial counsel also attempted to strike jurors number five and nine (Baba) for cause. The trial court denied each of these requests. Appellant's trial counsel exhausted all of his peremptory strikes on venirepersons number one, five, and ten. He did not strike jurors number two (Fuller), or nine (Baba). They were empaneled on the jury. He did not strike or move to strike jurors number three (Flores) or seven (Johnston), and they too served on the jury. Discussion
Fair and Impartial Jury Appellant argues, on two grounds, that he was denied a fair and impartial jury in violation of his Sixth Amendment right. First, he contends that the trial court erred in denying his challenges for cause against Fuller and Baba. Appellant argues that both expressed a bias against him by stating they would be more likely to find him guilty if he had a criminal record. Second, appellant contends that he and juror Flores had a 25-minute conversation during a recess in the trial that resulted in Flores's forming a bias against him. Challenge for Cause Article 35.16 of the Code of Criminal Procedure provides that a challenge for cause can be made against a venireperson for several reasons, including "that he has a bias in favor for or against the defendant" or that he has formed a conclusion. Tex. Code Crim. Proc. Ann. art. 35.16(a)(9), (10) (Vernon 1989). The purpose of allowing venire members to be challenged for cause is to ensure a fair and impartial jury for both the State and the defense. See Smith v. State, 907 S.W.2d 522, 529 (Tex.Crim.App. 1995). A venireperson should be struck for cause only if his views would substantially impair or prevent his performance as a juror. Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852 (1985); Moody v. State, 827 S.W.2d 875, 888 (Tex.Crim.App. 1992). We review a trial court's denial of a challenge for cause for an abuse of discretion. Rachal v. State, 917 S.W.2d 799, 810 (Tex.Crim.App. 1996); Broussard v. State, 910 S.W.2d 952, 958-59 (Tex.Crim.App. 1995). We review the trial court's decision in light of the venireperson's voir dire as a whole and ask whether the trial court had a rational basis for its conclusion. Granados v. State, 85 S.W.3d 217, 231 (Tex.Crim.App. 2002). We afford great deference to the trial court because of its superior position in evaluating the venireperson's demeanor and responses, and the context and tone in which questions are asked and answered during voir dire. Rachal, 917 S.W.2d at 810; Broussard, 910 S.W.2d at 958-59. The need for deference is especially critical when the reviewing court is faced with a record which demonstrates that the venireperson's responses vacillated. Kemp v. State, 846 S.W.2d 289, 301 (Tex.Crim.App. 1992). A trial court does not abuse its discretion in denying a challenge for cause to a venireperson who gives equivocal, unclear, or contradictory answers. See Colburn v. State, 966 S.W.2d 511, 517-18 (Tex.Crim.App. 1998). Appellant's trial counsel asked the venire members if they would hold it against his client if he had a criminal record. Juror Baba said he would have to hear the evidence before he could say whether he would hold it against appellant. Juror Flores stated that a defendant's having a criminal record would cause him a problem, but that he would not hold it against the defendant's credibility. Neither Flores nor Baba stated a conclusion or a bias; therefore, the trial court did not abuse its discretion in refusing to excuse either of them. See Marable v. State, 840 S.W.2d 88, 92 (Tex.App.-Texarkana 1992, pet. ref'd) (holding trial court did not err by refusing to excuse venireperson for cause because she was never asked whether she had reached conclusion as to guilt or innocence of defendant that would have influenced her verdict). Conversing with the Jury Article 36.22 of the Code of Criminal Procedure prohibits any unauthorized person from having a conversation with a juror. Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). Injury to the defendant is presumed and a new trial must be granted "when a juror has talked to anyone about the case." Tex.R.App.P. 21.3(f); Quinn v. State, 958 S.W.2d 395, 401 (Tex.Crim.App. 1997). The defendant has the burden to prove juror misconduct. Hughes v. State, 24 S.W.3d 833, 842 (Tex.Crim.App. 2000). Appellant did not file a motion for new trial, and he points to nothing in the record to show that a conversation ever took place with juror Flores. Appellant has not met his burden to prove juror misconduct. We overrule appellant's first point of error. Ineffective Assistance of Counsel
Appellant also argues that his trial counsel was ineffective because (1) his counsel did not object to empaneling Flores, Johnston, and Fuller as jurors; (2) his counsel failed to properly admit evidence regarding a document from a pharmacist showing that appellant was prescribed hydrocodone, which might have affected his behavior; (3) his counsel did not investigate, intervene, or move for a new trial upon hearing about the conversation with juror Flores; and (4) his counsel failed to communicate during the trial in a manner the jury could understand because he did not speak loudly enough for the jury to hear him. In reviewing an ineffective assistance of counsel claim, we evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). See Hernandez v. State, 988 S.W.2d 770, 774 (Tex.Crim.App. 1999). First, the defendant must show that his counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, the defendant must demonstrate that his counsel's performance deviated from prevailing professional norms. Id. 466 U.S. at 688, 104 S. Ct. at 2065; McFarland v. State, 845 S.W.2d 824, 842 (Tex.Crim.App. 1992). Second, the defendant must show prejudice. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. This requires the defendant to show that there is a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. 466 U.S. at 694, 104 S. Ct. at 2068. The failure to satisfy one prong of the Strickland test negates a court's need to consider the other. Id. 466 U.S. at 697, 104 S. Ct. at 2069. An appellant bears the burden of proving by a preponderance of the evidence that his counsel was ineffective. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). Usually, the record on direct appeal is not sufficient to establish that counsel's representation was so deficient and so lacking in strategic or tactical decision-making as to overcome the strong presumption that counsel's performance was reasonable and professional. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). "[I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel." Id. We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. Young v. State, 991 S.W.2d 835, 837-38 (Tex.Crim.App. 1999). The appellant must overcome the presumption that his trial counsel's strategy was sound and affirmatively demonstrate the alleged ineffective assistance of counsel. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Crim.App. 2003); Thompson, 9 S.W.3d at 814. First, appellant complains that his trial counsel should have objected to empaneling jurors Flores and Johnston. However, appellant fails to make any argument regarding juror Johnston. Instead, appellant argues that his trial counsel should have challenged juror Fuller for cause because she had a bias against appellant because of an experience she had had with someone who was a victim of a drunk driver. Appellant mischaracterizes juror Fuller's comments. Juror Fuller stated she knew a person who killed someone and was charged with a DWI; she also stated the person she knew was treated fairly. The record does not show that juror Fuller had formed a bias or a conclusion for or against appellant. We cannot speculate why appellant's counsel did not explore whether juror Fuller had formed a bias against appellant; nor can we speculate why he did not utilize a peremptory strike against her. See Young, 991 S.W.2d at 837-38. Appellant argues that juror Flores indicated during voir dire that he might consider someone legally intoxicated after two or three beers. Appellant again mischaracterizes the juror's comments. Appellant's counsel asked juror Flores, "How many beers do you think it takes someone to get intoxicated . . . say someone 5'8" -150 pounds." Juror Flores answered, "two or three." Appellant's counsel then asked juror Flores if he thought the number would vary if the person had had something to eat. Juror Flores answered "Yes." The record does not indicate that juror Flores stated he would consider someone legally intoxicated after two or three beers; nor does it indicate that juror Flores had formed an opinion regarding how many beers it would take appellant, specifically, to become intoxicated. Again, we cannot speculate about appellant's counsel's strategy in not exploring further whether juror Flores had an opinion regarding the amount of alcohol it would take for appellant to become intoxicated or whether juror Flores had formed a bias against appellant. See Young, 991 S.W.2d at 837-38. Appellant next complains that his trial counsel should have introduced a document from a pharmacist that would show he was prescribed hydrocodone. He argues, outside of the record, that the effects of the medication are similar to alcohol intoxication. We will not consider evidence outside the record. See Williams v. State, 485 S.W.2d 274, 274-75 (Tex.Crim.App. 1972); Pena v. State, 932 S.W.2d 33, 35 (Tex.App.-El Paso 1996, no pet.) (finding that an appellant is not permitted to supplement the appellate record with materials that have not been properly made a part of the record in the trial court). Appellant then argues that his trial counsel should have investigated, moved for a mistrial, or intervened when appellant told him about his conversation with juror Flores. As discussed above, appellant has not established that a conversation with juror Flores took place. Finally, appellant contends that his trial counsel failed to communicate during trial in a manner that the jury could understand because he did not speak loudly enough for the jury to hear him. Appellant cites to five locations in the record where his counsel was asked to speak louder. The trial judge admonished counsel each time. There is no evidence to show that appellant's trial counsel disobeyed this order or that the jury failed to hear appellant's counsel. Moreover, the record demonstrates that the trial court admonished counsel for the State likewise to speak up on several occasions. The record before us is not sufficiently developed on appellant's ineffective assistance of counsel claims to overcome the strong presumption that appellant's representation at trial was reasonable and professional. See Bone, 77 S.W.3d at 833. Moreover, because appellant did not file a motion for new trial, his trial counsel did not have the opportunity to respond to appellant's contentions or to explain his trial strategy. See Rylander, 101 S.W.3d at 110 (finding that a direct appeal is generally not the means to raise an ineffective assistance of counsel claim because trial counsel has not had the opportunity to respond to his client's arguments and explain his strategy). We are prohibited from speculating as to why counsel failed to act or acted as he did. Young, 991 S.W.2d at 837-38. Without more, we must presume that counsel acted pursuant to a strategic plan. Id. We overrule appellant's second point of error. Conclusion
We affirm the judgment of the trial court.