11th Court of Appeals
Eastland, Texas
Opinion
Kendrick Williams
Appellant
Vs. No. 11-01-00281-CR B Appeal from Dallas County
State of Texas
Appellee
The jury convicted appellant of unlawful possession of a firearm by a felon. The trial court found the enhancement paragraph to be true and assessed punishment at confinement for seven years. We affirm.
There is no challenge to the sufficiency of the evidence. Senior Corporal Alan Villarreal, with the Dallas Police Department, testified that on August 21, 2000, he was assigned to answer a domestic disturbance call at a housing development. When he arrived, Officer Villarreal observed appellant walking away from the location, and a female approached Officer Villarreal and informed him that appellant was part of the disturbance. Two other officers also responded to the call. Officer Audrey Faye Mays testified that, as she arrived at the location, appellant was running away from the area. While running, appellant pulled something from the waistband of his pants and hid it behind a bush. Officer Mays apprehended appellant and asked Officer Villarreal to retrieve the items from the bush. Officer Villarreal retrieved a handgun, money, and marihuana from the bush. The State presented evidence that appellant had previously been convicted of aggravated assault on June 26, 1996.[1]
In his sole point of error, appellant argues that he received ineffective assistance of counsel because his trial counsel Afailed to inquire of the venire panel whether anyone held a bias or prejudice against appellant.@ In order to determine whether appellant=s trial counsel rendered ineffective assistance at trial, we must first determine whether appellant has shown that counsel=s representation fell below an objective standard of reasonableness and, if so, then determine whether there is a reasonable probability that the result would have been different but for counsel=s errors. Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex.Cr.App.1999). We must indulge a strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance; and appellant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 508-09 (Tex.Cr.App.1991).
The record shows that, after both sides had completed their examinations of the venire panel and had made challenges for cause, the State notified the trial court that appellant apparently had a conversation with a prospective juror. The trial court conducted an investigation. Patsy Collins, Venireman No. 47, stated that appellant approached her at the vending machines and said, AYou don=t think I=m guilty, do you?@ Venireman Collins said that she was afraid and offended by the comment. Venireman Collins informed the trial court that two prospective jurors possibly overheard appellant=s comment and that she told those two prospective jurors about the comment. Venireman Collins identified the two other prospective jurors for the trial court.
Judy Swindle, Venireman No. 54, stated that, when she went to get a drink out of the vending machine, she saw someone talking to Venireman Collins. Venireman Collins told her that it was appellant and informed her of the comment appellant made. Venireman Swindle said that she had told another venireman, George Hunt, about the incident and that no one else had heard that conversation. Hunt, Venireman No. 53, stated that he had heard Asecondhand@ that appellant had asked someone about whether or not he was guilty.
The trial court also questioned Terry Moore, Venireman No. 18, about the incident. Venireman Moore stated that, as he was entering the vending machine area, appellant was leaving. Venireman Moore said that he did not hear the conversation between appellant and Venireman Collins but that Venireman Collins was upset over whatever was said. Venireman Moore told the trial court that he had not discussed the incident with anyone else.
The trial court found that Venireman Nos. 47, 53, and 54 were after the Acutoff@ determined by the court after challenges for cause had been made and ruled upon and that Venireman No. 18 had been struck for cause. The State requested that the trial court hold appellant=s bond insufficient and remand him to custody based upon the comment. Appellant=s trial counsel argued to the trial court in response to the State=s request that the infraction was a Avery mild statement@ and that there was no Aattempt to prejudice anybody.@ Appellant=s trial counsel stated that there was Ano harm done@ and that Athe people that are involved are not on the jury.@
Appellant specifically argues that his trial counsel was ineffective in failing to request additional time for voir dire Aso that every member of the panel could have been given an opportunity to voice any concerns they might have about this issue.@ The record shows that the trial court thoroughly investigated the incident and made certain that none of the potential jurors involved were seated on the jury. There is nothing in the record to suggest that other potential jurors were aware of the incident. We will not speculate about counsel's trial strategy in not questioning the entire venire panel about the incident. See Jackson v. State, 877 S.W.2d 768 (Tex.Cr.App.1994). The fact that another attorney might have pursued a different course of action does not necessarily indicate ineffective assistance. Hawkins v. State, 660 S.W.2d 65, 75 (Tex.Cr.App.1983). Appellant has not overcome the presumption that his trial counsel=s decision was based upon trial strategy. Appellant=s sole point of error is overruled.
The judgment of the trial court is affirmed.
TERRY McCALL
JUSTICE
July 11, 2002
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]TEX. PENAL CODE ANN. ' 46.04(a)(1) (Vernon Supp. 2002) provides that a person convicted of a felony commits an offense if he possesses a firearm:
[A]fter conviction and before the fifth anniversary of the person=s release from confinement following conviction of the felony or the person=s release from supervision under community supervision, parole, or mandatory supervision, whichever date is later.