Opinion issued June 3, 2010.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00050-CR
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Jun Xiang Zhang, Appellant
V.
The State of Texas, Appellee
On Appeal from the County Criminal Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1524442
MEMORANDUM OPINION
A jury found appellant, Jun Xiang Zhang, guilty of prostitution[1] and the trial court assessed punishment at three days in jail and a fine of $500. In one point of error, appellant contends that she received ineffective assistance of counsel.
We affirm.
BACKGROUND
In response to citizen complaints, Officer S. Roccoport and his partner, both of the Houston Police Department’s Vice Division, were assigned to investigate allegations of prostitution at the “Golden Times Spa.” On May 6, 2008, the two officers, separately and undercover, entered the massage parlor. After they paid a fifty dollar admission fee, an unidentified woman led Officer Roccoport to a private room and instructed him to undress. He undressed completely and lay on a massage table in the room. Appellant entered the room, and, for approximately fifteen minutes, she massaged Officer Roccoport’s back and lower legs. She asked him to roll over, massaged his chest, and then pointed to his penis and asked, in English, whether he would like her to massage that as well. Officer Roccoport said yes, and he asked what else he could get. He specifically asked for a “blow job,” but appellant declined to perform oral sex on him. Using hand signals, he asked her to masturbate him. He asked whether this service was extra, and appellant said it was and held up five fingers to indicate that it would cost an extra fifty dollars. Officer Roccoport arrested appellant.
Through an information, the State charged appellant with prostitution for agreeing to engage in sexual contact, “to-wit: masturbation, with S. Rocaforte, for a fee.” Appellant’s jury trial was held on January 9, 2009. During its voir dire, the trial court emphasized the importance of being truthful, the importance of bringing forward anything relevant that the attorneys or the trial court might not ask about, the presumption of innocence, the requirement for the State to prove guilt beyond a reasonable doubt, the role of the jury and its relation to that of the judge, and any individual circumstances that would make jury service difficult. The trial court also individually questioned every panel member who admitted to having served on a criminal jury previously. After the trial court conducted its voir dire, the State addressed the jury.
The prosecutor asked which of the venire members believed prostitution should be legal and which members believed it should remain illegal. She then asked those who indicated that they believed it should be legalized whether they could enforce the law, and they all indicated that they could. Also, during the State’s voir dire, venire person number six volunteered that her son was a Harris County Sheriff’s Deputy and venire person number seven volunteered that he was a police officer. After the State’s voir dire, appellant’s trial counsel addressed the jury.
During his voir dire, appellant’s trial counsel spoke with the venire about the importance of jury duty, a defendant’s right not to testify, the presumption of innocence, the potential problems associated with convicting someone based on a single witness, the fact that the State had no video or audio evidence of the offense, and the fact that the police department did not use an officer who could speak appellant’s native language. While appellant’s trial counsel spoke to the venire at length, he asked only three questions. He asked an employee of the Harris County District Clerk’s Office what he had done that morning. He asked the venire whether they knew Officer Roccoport, and then he asked a venire member who was an attorney whether he practiced in Harris County and then, as a follow up, whether they had encountered each other before and, if so, whether the venire member was angry with him.
After the voir dire, the trial court, the State, and appellant’s counsel discussed which jurors to strike. Appellant’s trial counsel argued to keep venire member nine, who indicated that she would find it difficult to convict someone, and then, in reference to Judge Belinda Hill, a member of the venire, he stated to the trial court, “Don’t worry, she’s not going to be on the jury. It ain’t going to happen.” The trial court then informed the venire members who would be on the jury and dismissed the rest.
During trial, a translator sat with appellant and translated for her. Officer Roccoport testified to the circumstances of his entry into the massage parlor, his massage, his request for sexual contact, his belief that appellant spoke enough English to understand the transaction, and appellant’s arrest. After Officer Roccoport testified, the State rested. As its first witness, the defense called Rick Tsui, appellant’s husband. Tsui testified on direct examation that he and appellant were married in April 2007, that they did not have any children together, but that they each had a child from a previous partner, that appellant’s daughter lives in Houston, and that appellant has Hepatitis C. Appellant’s trial counsel then asked Tsui, “And your wife is a United States Citizen?” Tsui replied that she was not, but that, based on their marriage, she had initiated the citizenship process. On cross-examination, the State established that appellant had entered the country on a tourist visa, but did not leave as required.
Appellant testified that she had never been arrested before, that she had worked as a masseuse in this massage parlor for three years, and that she gave Officer Roccoport a massage before being arrested. She testified that initially she and Officer Roccoport did not speak. However, after she began to massage his back, he spoke to her. She testified that she could not understand him because she does not understand English. She testified, however, that she understood Officer Roccoport when he said “fifty dollars,” and that she responded, “Yes . . . fifty dollars.” After she answered, “Yes . . . fifty dollars,” Officer Roccoport jumped off the table grabbed his clothes, told her he was a police officer, and arrested her. On cross-examination, the State asked her about her immigration status, and she testified that she had entered the country on a tourist visa and had stayed beyond its expiration, but that because her husband had filed a petition for her she was legally in the United States.
The jury convicted appellant of prostitution, and the trial court assessed her punishment at three days in jail and a fine of $500. Appellant did not file a motion for a new trial, and this appeal followed.
INEFFECTIVE ASSISTANCE OF COUNSEL
In her single point of error, appellant contends that she received ineffective assistance of counsel because her trial counsel asked only three questions of the venire and because her trial counsel introduced appellant’s immigration status into the trial and failed to object to cross-examination on this issue.
A. Standard of Review
To prevail on a claim of ineffective assistance of counsel, an appellant must show that his trial counsel’s performance was deficient and that a reasonable probability exists that but for the deficiency, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068 (1984). The first prong of the Strickland test requires that the defendant show that his counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). Isolated errors do not render counsel’s performance ineffective. See McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992), overruled on other grounds, Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). The second prong requires the defendant to show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812. Because the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
Any allegation of ineffectiveness must be firmly founded in the record, which must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d at 813 (citing McFarland, 928 S.W.2d at 500). We will not speculate to find trial counsel ineffective when the record is silent on his reasoning or strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994); Gamble v. State, 916 S.W.2d 92, 93 (Tex. App.—Houston [1st Dist.] 1996, no writ.). In rare cases, however, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of his reasoning or strategy. See Robinson v. State, 16 S.W.3d 808, 813 n.7 (Tex. Crim. App. 2000). Such cases are limited to occasions where no reasonable attorney could have made such a decision. Weaver v. State, 265 S.W.3d 523, 538 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d).
When, as here, an appellant does not file a motion for new trial asserting ineffective assistance of counsel that would have afforded trial counsel an opportunity to explain his strategy and no direct evidence in the record establishes why appellant’s attorney acted as he did, we presume that counsel had a plausible reason for his actions. See Thompson, 9 S.W.3d at 814. We review the record to determine whether this is one of those rare cases where no reasonable attorney could have made the decisions complained of in the appeal. See id.
B. Analysis
Appellant first contends that her trial counsel was deficient for asking only three questions during voir dire.
After both the trial court and the State had conducted their voir dire, appellant’s trial counsel conducted his voir dire. He thanked the jury for being present, discussed the defendant’s right not to testify, and addressed potential problems in the case, such as a lack of sound or video recordings and the fact that the arresting officer did not speak appellant’s language. He addressed the venire at length and asked three questions. He asked an employee of the Harris County District Clerk’s office what he had done that morning. He asked the venire members whether they knew Officer Roccoport, and he asked a venire member who was a lawyer whether he practiced in Harris County, and, as a follow up, whether they had encountered each other in court, and, if so, whether the venire member was mad at him. Appellant’s trial counsel was also actively involved in the subsequent discussion regarding which jurors to strike. Thus, while appellant’s trial counsel asked the venire only three questions, many issues had already been addressed by the trial court or by the State, counsel had enough information about the panel to identify panel members he perceived to be favorable to his client, and he had enough information to identify panel members, such as Judge Hill, whom he did not want on the panel. In examining the totality of the representation, therefore, we cannot say that appellant has overcome the strong presumption that trial counsel had a sound trial strategy in asking the venire only three questions. See Thompson, 9 S.W.3d at 814.
Appellant also contends that her counsel was ineffective because he introduced her immigration status into the trial and failed to object to cross-examination on this issue. During counsel’s examination of appellant’s husband, Rick Tsui, counsel asked him about his job, his family, his and his wife’s children, his wife’s health problems, and his wife’s language skills. Counsel also asked Tsui whether his wife was a citizen. Tsui responded that she was not, but that they had hired a lawyer and initiated the process to apply for citizenship. During his cross-examination, he admitted that his wife had entered the country with a tourist visa, but that she had stayed beyond its expiration date. In its cross-examination of appellant, the State established that she had been in the United States for four years before marrying her husband and applying for citizenship.
The record is silent as to appellant’s counsel’s reasons for introducing appellant’s immigration status. However, appellant’s counsel may well have had strategic reasons for introducing an adverse fact which he knew the State was aware of and the jury might be wondering about, to give appellant the opportunity to put before the jury her current compliance with the law. See Jackson, 877 S.W.2d at 711 (holding court will not speculate to find trial counsel ineffective when record is silent on counsel’s reasoning or strategy); Thompson, 9 S.W.3d at 814 (when no direct evidence establishes why appellant’s attorney acted as he did, we presume counsel had plausible reason for his actions).
In examining the totality of the representation, we cannot say that appellant has overcome the strong presumption that trial counsel had a sound trial strategy. See Thompson, 9 S.W.3d at 813. Therefore, we hold that appellant has failed to prove the first prong of Strickland by showing that her counsel’s performance fell below an objective standard of reasonable professional assistance. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Thompson, 9 S.W.3d at 812.
We overrule appellant’s sole point of error.
CONCLUSION
We affirm the trial court’s ruling.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Hanks, and Higley.
Do not publish. Tex. R. App. P. 47.2(b).
[1] See Tex. Penal Code Ann. § 43.02 (Vernon 2003) (providing elements for prostitution).