Opinion issued April 3, 2008
In The
Court of Appeals
For The
First District of Texas
NOS. 01-07-00304-CR
01-07-00305-CR
ROY HURD BURR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Cause Nos. 1013858 & 1052448
MEMORANDUM OPINION
In two separate indictments, appellant, Roy Hurd Burr, was charged with the felony offense of arson (cause number 1013858), to which appellant pleaded not guilty, and the felony offense of aggravated assault against a family member (cause number 1052448), to which appellant pleaded guilty. These offenses were enhanced by a prior felony conviction for burglary of a habitation, to which appellant pleaded “true.” The primary offenses were consolidated as arising out of the same criminal episode and tried together before a jury. The jury found appellant guilty as charged in each indictment. The trial court found the enhancement paragraph true and assessed punishment in each cause at confinement for life, to be served concurrently.
In appealing both convictions, appellant presents three issues. In his first issue, appellant contends that the trial court erred by allowing a portion of voir dire to be conducted in appellant’s absence. In his second issue, appellant contends that the trial court erred when it “swore in and impaneled stricken juror number 12 and failed to swear in and impanel juror number 6.” Finally, in his third issue, appellant contends that his counsel was ineffective for failing to object to the impaneling of number 12 on the jury and for failing to object to the exclusion of number 6.
We affirm both judgments.
Background
Only those facts necessary to the disposition of the issues in this appeal are presented.
Appellant was present in the courtroom when voir dire began in the trial. During the morning break, however, appellant requested the trial court’s permission to absent himself from the remainder of the trial proceedings, which the trial court granted, as follows:
[Counsel]: Mr. Burr, if you will listen, sir. Listen to me. I’m talking to you. Mr. Burr, we’re on a break from jury selection. You understand that?
[Appellant]: Yes.
[Counsel]: You were taken back to the hold over and we’ve had a conversation about several things; is that right?
[Appellant]: Yes.
[Counsel]: One of the things you raised with me was whether or not you had to be present in the courtroom during this proceeding picking the jury. Listen. And also do you have to be present in the courtroom during the course of the trial. Did you ask me that question?
[Appellant]: Yes, I asked you that.
[Counsel]: Then you said to me your preference would be that you not have to be out here for any more of the proceedings with regards to this case.
[Appellant]: I did say that.
[Counsel]: Is that your desire not to be present, certainly for the balance of today? You don’t want to be out here today for the rest of today?
[Appellant]: The rest of today or any more time.
. . . .
The Court: Mr. Burr, I would prefer to address [whether you are present] tomorrow tomorrow. Okay. In case you change your mind. That’s all. But today if you prefer not to be part of the process that’s okay with us.
. . . .
[Counsel]: You have an absolute right to be out here in the courtroom, to go through this process.
[Appellant]: I don’t want to be.
The Court: And you are voluntarily saying—no one has forced you, making any suggestions to you, told you maybe you should not be out here?
[Appellant]: I asked you. I didn’t want to be here.
. . . .
The Court: Let the record reflect based upon the remarks of some of the panel members and Mr. Burr’s demeanor—and in the event he decides to participate in the trial, whether it’s by sitting here in the courtroom, that could be before the jury.
(Prospective juror panel returns.)
The Court: . . . As you may notice, we are proceeding at this juncture and Mr. Burr is not in the courtroom. The law allows someone to voluntarily absent themselves from the proceedings. They are informed that they have a right, of course, to be here, which he does. And they voluntarily want to waive that right. I want to make sure everybody understands that that’s what the law is. The reporter’s record reflects that, at the close of voir dire, the trial court announced a list of venire members, by number, who had been struck by agreement between the State and the defense. The trial court included member number 12. The clerk’s record reflects that number 12 was not struck from the jury list of either the State or the defense.
The reporter’s record does not reflect any discussion during voir dire concerning venire member number six. The State’s jury list in the clerk’s record reflects a notation of “struck” next to number six. Appellant’s jury list does not indicate that six was struck. The record before us does not contain the final, independent list of jurors. On March 28, 2007, the jurors were sworn in without objection.
When trial began the next day, appellant returned to the courtroom to enter his pleas, then requested that he be permitted to return to the jail while the proceedings were conducted. The trial court granted his request.
Jury Composition
In his second issue, appellant contends that “[t]he trial court erred when it swore in and impaneled stricken juror number 12 and failed to swear in and impanel juror number 6.”
The accused in a criminal trial has a constitutional right to a fair trial by an impartial jury. U.S. Const. amend. VI; Tex. Const. art. 1, § 10; Sanchez v. State, 165 S.W.3d 707, 711 n.5 (Tex. Crim. App. 2005). However, this constitutional right is not violated by every error in the selection of a jury. Jones v. State, 982 S.W.2d 386, 391 (Tex. Crim. App. 1998). The erroneous exclusion of a venire member calls for reversal only if the record shows that the error deprived the defendant of a lawfully constituted jury. Id. at 394.
It is well-settled that it is the responsibility of the parties to assure that the jury impaneled does not include a juror that has been struck. Biagas v. State, 177 S.W.3d 161, 169 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Truong v. State, 782 S.W.2d 904, 905 (Tex. App.—Houston [14th Dist.] 1989, pet. ref’d)). The party must object before the panel is sworn or show that the juror was otherwise disqualified. Truong, 782 S.W.2d at 905.
Here, appellant contends that venire member number 12 was struck by agreement and that the trial court orally pronounced that number 12 was struck, but that the trial court then erroneously impaneled number 12 on the jury. Appellant contends that the “swearing in and impaneling [of] struck juror number 12 forced Appellant to try [the] case before an objectionable juror who had been stricken from the panel.”
The clerk’s record reflects that appellant did not strike number 12 on his jury list. In addition, the record shows that the State noted on its list that it counted number 12 as juror number 5. The record does not show that appellant challenged number 12, and the final list of jurors is not in the record.
As the State contends, what is clear is that the record does not show that appellant objected to a seating of number 12 before the jury was sworn. To preserve error, appellant is required to show that he objected before the jury was sworn or show that the venire member is otherwise disqualified. See id. Indeed, in his third issue in this appeal, appellant concedes that no objection was made. Further, having examined the record, we do not find any evidence that venire member number 12 was statutorily disqualified from jury service, had demonstrated bias, or was otherwise subject to challenge for cause. We presume that jurors are qualified absent some indication in the record to the contrary. See Ford v. State, 73 S.W.3d 923, 925 (Tex. Crim. App. 2002). We conclude that any error in this regard is waived. See Tex. R. App. P. 33.1.
Appellant next contends that venire member number six had not been struck by appellant or the State and therefore should have served on the jury, but did not. Appellant contends that the erroneous failure to impanel venire member number six altered the make-up of the jury and therefore the “conviction rendered by the jury so selected cannot be held to reflect the result of a fair trial by an impartial jury.”
The record does not support appellant’s contention. The State’s jury list contained in the clerk’s record reflects a notation of “struck” next to venire member number six. Hence, the trial court’s exclusion of number six was not erroneous. Moreover, a defendant does not have a right to the presence of a particular person on the jury. See Ford, 73 S.W.3d at 925 (citing Jones v. State, 982 S.W.2d 386, 393 (Tex. Crim. App. 1998) (explaining that defendant’s right goes to those who serve, not to those who are excused)).
Accordingly, appellant’s second issue is overruled.
Absence from Voir Dire
In his first issue, appellant contends that the trial court erred by allowing a portion of voir dire to be conducted in appellant’s absence.
The United States Constitution requires “that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, . . . absent a waiver of that right through defendant’s own conduct.” U.S. Const. amend VI; Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985). A defendant may choose to voluntarily absent himself once his trial has commenced. See Taylor v. United States, 414 U.S. 17, 18–19, 94 S. Ct. 194, 195–96 (1973); Miller, 692 S.W.2d at 90–91; Tracy v. State, 14 S.W.3d 820, 826 (Tex. App.—Dallas 2000, pet. ref’d). Under the federal rules, a trial “commences” from the time that “the work of impaneling jurors begins.” Miller, 692 S.W.2d at 90–91.
Under Texas Code of Criminal Procedure article 33.03, a defendant’s right to be present at trial is unwaivable through certain stages of trial. See id. at 91; see also Scott v. State, No. 01-00-01401-CR, 2001 WL 1512894, *3 (Tex. App.—Houston [1st Dist.] Nov. 29, 2001, pet. dism’d) (mem. op.) (not designated for publication). Article 33.03 provides, in pertinent part, as follows:
In all prosecutions for felonies, the defendant must be personally present at the trial, . . . provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion. When the record in the appellate court shows that the defendant was present at the commencement, or any portion of the trial, it shall be presumed in the absence of all evidence in the record to the contrary that he was present during the whole trial.
Tex. Code Crim. Proc. Ann. art. 33.03 (Vernon 2006). Hence, when trial is before a jury, as here, a defendant may waive his presence only after the jury is selected. See id.; Miller, 692 S.W.2d at 91. “A jury has been ‘selected’ for purposes of article 33.03 when the parties have handed in their respective jury lists, with the peremptory challenges noted thereon.” Id. at 93.
Here, appellant contends that his rights under article 33.03 were violated because he was not present when the jury was selected.
The record shows that appellant was present on the first morning of voir dire. During that time, the trial court advised the venire on the presumption of innocence, the State’s burden, and the role of the jury. Members of the venire were polled concerning whether their ability to be fair might be prejudiced by appellant’s failure to testify. In addition, the trial court heard proffered excuses from jury service.
As presented above, the record reflects that, during the morning break from voir dire, appellant requested the trial court’s permission to absent himself from the remainder of the proceedings. Appellant’s counsel questioned appellant on the record concerning his election not to be present. After admonishing appellant concerning his rights, the trial court granted appellant’s request.
When voir dire resumed, the trial court instructed the venire on the laws of mental competency and insanity. The State explained the elements of assault, the concept of bodily injury under the law, deadly weapons, and circumstantial evidence. In addition, the State polled the jurors concerning their personal feelings on these topics. Defense counsel then polled the jury concerning various potential prejudices. Finally, the trial court announced those members of the venire who were excused by agreement between the defense and the State, and the individual strike lists were submitted.
The record shows that appellant was absent from voir dire before the jury lists were submitted. Hence, appellant was not present in the courtroom through the point at which the jury was selected, which constitutes statutory error. See Tex. Code Crim. Proc. Ann. art 33.03; Miller, 692 S.W.2d at 90–91; Tracy, 14 S.W.3d at 826–27 (finding statutory error when defendant was present at beginning of voir dire but voluntarily left to go to doctor and did not return until after jury had been selected and sworn).
We will not reverse for a violation of article 33.03, however, unless we determine that the error affected a substantial right. Tex. R. App. P. 44.2(b); Tracy, 14 S.W.3d at 827 (finding violation of article 33.03 to be statutory and applying rule 44.2(b)). A substantial right is affected when the error (1) had a “substantial and injurious” effect or influence in determining the jury’s verdict or (2) leaves one in grave doubt concerning whether it had such an effect. Tracy, 14 S.W.3d at 827. A substantial right is not affected and the error is harmless if, after reviewing the entire record, we determine the error did not influence, or had only a slight influence, on the trial’s outcome. Id.
Here, appellant’s right was to be present during the entire voir dire, which would have, in theory, allowed him to assist defense counsel in the exercise of peremptory challenges. See id. Appellant contends that he was harmed because venire member number 12 had been struck by agreement, but was mistakenly impaneled, and because number 6 had not been struck by either side, but was not impaneled. Appellant contends that, because he was “presumed to be competent at trial, he may have been able to spot the two juror errors and aid his attorney in preventing this error.”
First, as discussed above, the record does not show that the presence of venire member number 12 or the absence of venire member number six constituted error. More importantly, nothing in the record before us shows that the jury selected in appellant’s absence was unfair or impartial. See Gray v. State, 233 S.W.3d 295, 298–99 (Tex. Crim. App. 2007) (concluding that appellant’s only substantial right is that jurors who serve be qualified); Ladd v. State, 3 S.W.3d 547, 562 (Tex. Crim. App. 1999) (holding no violation of substantial rights occurred during voir dire where record did not show that defendant was denied fair and impartial trial). We conclude that the error of appellant’s absence during voir dire did not affect a substantial right. See Tex. R. App. P. 44.2(b); Tracy, 14 S.W.3d at 827. Hence, we disregard the error.
Moreover, as the State contends, appellant invited the error of which he now complains. See Garcia v. State, 919 S.W.2d 370, 393–94 (Tex. Crim. App. 1994).
Accordingly, appellant’s first issue is overruled.
Ineffective Assistance of Counsel
In his third issue, appellant contends he “was denied effective assistance of counsel during jury selection for failing to object to the seating of prospective juror number 12.”
To prove ineffective assistance of counsel, appellant must show that (1) counsel’s performance fell below an objective standard of reasonableness and (2), but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); Chambers v. State, 903 S.W.2d 21, 33 n.16 (Tex. Crim. App. 1995) (applying Strickland standard to claim of ineffective assistance arising from error in voir dire). “Reasonable probability” means a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Appellant must prove ineffective assistance by a preponderance of the evidence and must overcome the strong presumption that counsel’s conduct falls within the wide range of reasonably professional assistance or might reasonably be considered sound trial strategy. Robertson v. State, 187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no pet.). A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003).
We consider the totality of the representation and consider its adequacy as viewed at the time of trial, not through hindsight. Robertson, 187 S.W.3d at 483. Isolated instances of errors of commission or omission will not render counsel’s performance ineffective. Id.
Allegations of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 833 & n.13 (Tex. Crim. App. 2002). Generally, the record on appeal is undeveloped, and a silent record that provides no explanation for counsel’s actions will not overcome the strong presumption of reasonable assistance. Rylander, 101 S.W.3d at 110–11. When the record is silent, we may not speculate to find trial counsel ineffective. Gamble, 916 S.W.2d at 93.
Here, even if it was improper to impanel number 12, the record is silent concerning appellant’s trial counsel’s reasons for not objecting to the seating of number 12. Appellant did not file a motion for new trial, in which trial counsel’s reasons could have been developed in the record. Appellant contends that even though a motion for new trial was not filed, the record on its face is sufficient to show that his trial counsel was ineffective for failing to object because no strategy could account for the failure to object. We disagree. See, e.g., Castaneda v. State, No. 05-99-00123-CR, 2000 WL 792391, *2 (Tex. App.—Dallas June 21, 2000, pet. ref’d) (mem. op.) (not designated for publication) (recognizing that counsel may have deemed erroneous dismissal of venire member to be beneficial to defendant and refusing to find counsel ineffective on silent record).
To find trial counsel ineffective based on the asserted grounds herein would call for speculation, which we will not do. See Gamble, 916 S.W.2d at 93. Without testimony by trial counsel, we cannot meaningfully address his reasons for not objecting. Accordingly, we hold that appellant has not satisfied the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Accordingly, appellant’s third issue is overruled.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).