Brent Lee Crockett v. State

NO. 07-04-0438-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 31, 2006

______________________________

BRENT LEE CROCKETT, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 84^TH DISTRICT COURT OF HUTCHINSON COUNTY;

NO. 8792; HONORABLE WILLIAM D. SMITH, JUDGE

_______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Pending before this Court is appellant's pro se motion to dismiss his appeal. It is signed by appellant. Tex. R. App. P. 42.2(a). No decision of the Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed.

Also pending is the motion to withdraw filed by Donald F. Schofield, appellant's appointed counsel, which motion accompanied counsel's Anders ⁽¹⁾ brief. The appeal having been dismissed, we dismiss counsel's motion to withdraw as moot.

James T. Campbell

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

se from the jury because Layton was unable to consider probation for any felony offense. We overrule the issue.

To preserve error with respect to a trial court's denial of a challenge for cause, it must be shown on the record that appellant made a clear and specific challenge for cause, that he used a peremptory challenge on that juror, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury. ⁽³⁾ Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200, 117 S. Ct. 1561, 137 L. Ed. 2d 707 (1997). In this instance, appellant neither challenged Layton for cause nor requested an additional strike. Further, there is no showing that an objectionable juror sat on the jury. Therefore, appellant has waived any error with respect to this complaint.

Issue Two - Ineffective Assistance of Counsel

In his second issue, appellant claims he was denied effective assistance of counsel because his counsel failed to request an additional peremptory strike when he was forced to use one on Layton who should have been excused for cause. We overrule the issue.

The standards by which we review ineffective assistance of counsel claims are well established. We will not reiterate them but cite the parties to Strickland v. Washington, 466 U.S. 668, 687-95, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Tong v. State, 25 S.W.3d 707 (Tex. Crim. App. 2000) for explanation of the same. Furthermore, the burden to prove both elements of the claim lies with the appellant, and the claim must be firmly founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.--Amarillo 1999, no pet.).

There is no showing in the record as to why counsel chose not to request an additional peremptory strike. Nor did appellant assert or attempt to prove that because trial counsel used a peremptory strike to remove Layton, another objectionable juror was seated. Neither did he argue or attempt to prove that the use of a peremptory strike against Layton without requesting another somehow 1) tainted the jury, 2) affected its ability to render a verdict based solely on the facts and law, or 3) prejudiced his defense against the charges. He simply posits that counsel rendered ineffective assistance because he did not request an additional peremptory challenge. It may be that trial counsel found no other venire member objectionable, that the jury he eventually empaneled was quite acceptable, and that the decision to forego requesting another peremptory strike was sound trial strategy. Yet, as previously mentioned, the record does not illustrate counsel's reasons for remaining silent. So too does it fail to illustrate prejudice. Thus, appellant neither overcame the presumption that the challenged conduct might be sound trial strategy, see Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (requiring that appellant rebut that presumption), nor established prejudice as required by Strickland and Tong.

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Do not publish. Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon 1998).

2.

The background facts of the offense are not relevant to the issues raised by appellant, and we will therefore not recite them.

3.

In Johnson v. State, 43 S.W.3d 1, 5 n.6 (Tex. Crim. App. 2001), the court clarified that to show harm in denying a defense challenge for cause, it must be shown that the appellant exercised his peremptory challenges on the venire member the trial court failed to excuse, exhausted his peremptory challenges, was denied a request for additional peremptory challenges, and identified an objectionable juror who sat on the case.