Opinion issued November 15, 2007
In The
Court of Appeals
For The
First District of Texas
NOS. 01-06-01161-CR
01-06-01162-CR
__________
JOHN EMERSON MAGEE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Cause No. 1064246, 1064247
MEMORANDUM OPINION
A jury found appellant, John Emerson Magee, guilty of the offenses of aggravated assault on a public servant and aggravated assault, and assessed his punishment at confinement for forty years for aggravated assault on a public servant and twenty years for aggravated assault. In his first and second points of error, appellant contends that his trial counsel rendered ineffective assistance by “fail[ing] to object to damaging testimony that violated [his] Sixth Amendment right to confront the witness against him” and “elicit[ing] damaging testimony from a police witness.” In his third and fourth points of error, appellant contends that the trial court erred during voir dire when it “[called] attention to the fact that an appellate court can overturn the result of a trial and send the case back for retrial,” and “[made] an incorrect statement regarding the law of juror disqualification.”
We affirm. Factual Background
In April 2006, Special Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) and officers from the Houston Police Department (“HPD”) worked together on a task force organized to combat violent crime. On the evening of April 5, 2006, ATF agents, riding in an unmarked car, followed a suspicious car. The suspicious car stopped next to another car. The agents observed a group of three males standing outside the two cars. As the agents approached, two of the men began shooting at the agents and officers. The police officers who were accompanying the agents engaged a in a brief chase and apprehended appellant. The agents and officers identified appellant as one of the shooters.
Ineffective Assistance
In his first and seconds points of error, appellant argues that his trial counsel rendered ineffective assistance because he failed to object to damaging testimony that violated his right to confront the witness against him and elicited damaging testimony from a witness that appellant’s motive in shooting at the police officer was to kill the officer so that appellant could escape.
To prove an ineffective assistance of counsel claim, a defendant must show that (1) his counsel’s performance fell below an objective standard of reasonableness and (2) but for his counsel’s unprofessional error, there is a reasonable probability that the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” 466 U.S. at 694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the totality of the representation to determine the effectiveness of counsel, indulging a strong presumption that his performance falls within the wide range of reasonable professional assistance or trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Furthermore, allegations of ineffectiveness must be firmly founded in the record. Id.
Testimony from forensic chemist
During trial, J. Jackson, a forensic chemist from the Harris County Medical Examiners Office, testified that swabs taken from appellant’s hands after the shooting tested positive for gunshot residue. Jackson stated that a different forensic chemist, Jason Schroeder, had actually performed the tests on the swabs taken from appellant’s hands, but Jackson testified regarding the test’s results because Schroeder was on military leave at the time of trial. Appellant complains that his trial counsel erred in not objecting to Jackson’s testimony because he was entitled to cross-examine Schroeder about the test results.
Here, the challenged testimony from Jackson established that appellant fired his gun during the incident. However, appellant himself testified at trial that he fired his gun twice during the incident because he thought someone was shooting at him. Appellant’s defense was not that the agents and officers mistakenly identified him as one of the shooters. Rather, appellant’s defense was that he fired his gun during the incident because he was in fear for his life based on prior threats that he had received. Appellant specifically asserted that he had been previously threatened by someone who drove a car similar to the agents’ unmarked car, and he fired his gun because he thought he was going to be the victim of a “drive by” shooting. Appellant also asserted that because the agents’ car was unmarked, he was not aware that he was shooting at law enforcement officers.
Because the fact that appellant had fired shots during the incident was uncontested, Jackson’s testimony regarding the test results was merely cumulative. See Johnson v. State, 925 S.W.2d 745, 749 (Tex. App.—Fort Worth 1996, pet. ref’d) (explaining that exclusion of evidence admitted elsewhere in trial would have had no impact on outcome of trial). Therefore, we hold that appellant has not demonstrated that the results of the proceedings would have been different had the trial court excluded Jackson’s testimony about the test results. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Testimony from police officer regarding appellant’s motive
At trial, appellant’s trial counsel asked one of the police officers if the officer had learned anything about why appellant had fired his gun during the incident. The officer replied that appellant’s motive was “to kill [the officer] and get away.” Appellant asserts that no viable trial strategy could have existed for his trial counsel’s question regarding appellant’s motive for the shooting.
During direct examination, appellant, who was a Hurricane Katrina evacuee from New Orleans, testified that he had previously been threatened by other evacuees who had also relocated to Houston after Hurricane Katrina. Appellant further testified that he was carrying a gun on the day of the shooting because he felt that his life was in danger. It appears from the record that during cross-examination of the officer, appellant’s trial counsel attempted to elicit testimony from the officer that appellant had explained at the scene, or sometime shortly thereafter, that he thought he was shooting at persons who had previously threatened him and that appellant had no specific reason to shoot at law enforcement officers. See Simms v. State, 848 S.W.2d 754, 757 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d) (noting that strategy of trial counsel will not be reviewed if strategy has any plausible basis). Although appellant’s trial counsel may have been surprised by the answer of the officer, counsel had a plausible reason for asking the question. Accordingly, we hold that appellant has not demonstrated that his trial counsel’s questioning of the officer fell below prevailing professional standards. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
We overrule appellant’s first and second points of error.
Improper Statement During Voir Dire
In his third point of error, appellant contends that the trial court erred during voir dire when it “[called] attention to the fact that an appellate court can overturn the result of a trial and send the case back for retrial.”
During voir dire, the trial court explained to the venire, in regard to jury qualifications, that if “it’s later determined that you did not meet all the qualifications, that case will be – probably would be reversed and we would have to try it all over again.” Appellant asserts that the statement suggested “to jurors that they [did] not bear the ultimate responsibility for the judgment they [were] called upon to render.” In order to preserve a complaint for appeal, the record must show that an appellant raised a timely objection to the trial court. Tex. R. App. P. 33.1(a). Here, appellant did not object to the trial court’s statement. By failing to object to the trial court’s statement during voir dire, appellant did not preserve this complaint for review. Id.; see also Fuentes v. State, 991 S.W.2d 267, 276 (Tex. Crim. App. 1999).
We overrule appellant’s third point of error.
Misstatement of Law Regarding Juror Qualifications
In his fourth point of error, appellant contends that the trial court erred during voir dire when it “[made] an incorrect statement regarding the law of juror disqualification to the venire.”
A juror may be disqualified if he or she has been convicted or is under indictment for a misdemeanor theft or a felony. Tex. Gov’t Code Ann. § 62.102 (Vernon Supp. 2006). During voir dire, the trial court stated that prostitution, in addition to theft, was a misdemeanor crime that would disqualify an individual from sitting on a jury. The State concedes that this was a misstatement of the law. However, a misstatement of the law not affecting substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Here, the record does not indicate that any individuals in the venire were disqualified for a previous prostitution conviction. See Neal v. State, Nos. 14-06-00084-CR & 14-06-00085-CR, 2007 WL 324844, at *1 (Tex. App.—Houston [14th Dist.] Feb. 16, 2007, no pet.) (mem. op., not designated for publication) (holding that there was no reversible error based on trial court’s erroneous comment that prostitution would disqualify individuals from sitting on jury and noting that no venireperson had claimed to be disqualified based on misdemeanor involving moral turpitude, including prostitution and that trial court had not excused any venireperson on those grounds). Moreover, a defendant does not have the right for any particular individual to sit on the jury, but rather a defendant’s “only substantial right is that the jurors who do serve be qualified.” See id. (citing Jones v. State, 982 S.W.2d 386, 393 (Tex. Crim. App. 1998)). Because the record does not indicate that an unqualified individual sat on the jury during appellant’s trial, no reversible error exists. See id.
We overrule appellant’s fourth point of error.
Conclusion
We affirm the judgments of the trial court.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Keyes.
Do not publish. See Tex. R. App. P. 47.2(b).