NUMBER 13-99-614-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
JESSE MICHAEL ACKERMAN
, Appellant,v.
THE STATE OF TEXAS
, Appellee.___________________________________________________________________
___________________________________________________________________
Before Chief Justice Seerden and Justices Dorsey and Yañez
Opinion by Chief Justice SeerdenJesse Michael Ackerman, appellant, was convicted of two counts of delivery of a controlled substance. See Tex. Health & Safety Code Ann. §§ 481.112 (b) (Vernon 1999) (delivery of less than one gram of cocaine); 481.120 (a)(3) (Vernon 1999) (delivery of more than one-fourth ounce but less than five pounds of marihuana). By a single issue, appellant now contends that he was denied effective assistance of counsel during his trial. We affirm.
Appellant presents three instances in which he claims he was denied effective assistance of counsel. We will address each in turn.
We review ineffective assistance of counsel claims under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). That test requires the appellant to show that: (1) counsel's performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We examine the totality of the representation, as reflected in the record, in making this determination. Id. The appellant bears the burden of proof and the appellate court applies a strong presumption that counsel's actions fell within the range of reasonable professional assistance. Id.
Appellant's first allegation is that counsel failed to object to a "reshuffle" of the jury panel after the State's request for a shuffle had been fulfilled. The record reflects that after the shuffle had been concluded and the panel had been re-seated, the trial court realized that an error in the process had occurred. Before any other actions transpired, the court recessed the proceeding to reshuffle the jury a second time. Appellant's counsel did not object to the reshuffle. On appeal, appellant contends that counsel's failure to object amounts to ineffective assistance of counsel.
A second jury shuffle conducted by a trial court has, until recently, required automatic reversal. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex. Crim. App. 1991). However, the court of criminal appeals has recently stated that jury shuffle error may be capable of harmless error analysis in certain circumstances. See Roberts v. State, 978 S.W.2d 580, 580 (Tex. Crim. App. 1998); Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). In Roberts the court stated that a shuffle which occurred at the end of voir dire and over appellant's objection might nevertheless be considered harmless error and remanded the cause to the court of appeals for harm analysis. Roberts, 978 S.W.2d at 580. Here, the alleged error occurred prior to any examination of the jury panel. The second shuffle was undertaken only to correct an error. There is nothing in the record to suggest that the decision to reshuffle the potential jurors was a "structural" defect of a constitutional magnitude. Thus, we conclude that the trial court's decision to reshuffle should be subject to harm analysis. Voir dire error that is not of a constitutional magnitude is harmful "only if the defendant can show he was deprived of a lawfully constituted jury as a result of the error." Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998). Here, the record shows that the voir dire of the jury panel did not commence until the reshuffle had been concluded. In that circumstance, the trial court's decision to conduct a second shuffle had no bearing on appellant's ability to select a lawfully-constituted jury. Any error resulting from the reshuffle was harmless. Appellant was not denied effective assistance of counsel by the lack of an objection to the reshuffle.
Next, appellant contends that counsel's failure to make a record on a post-voir dire conference on strikes for cause amounts to ineffective assistance because it is impossible for him to show harm in the jury selection process.
There is no requirement that counsel request that a record be kept of all conferences during the trial of a cause. See generally Tex. R. App. P. 34.6 (a) & 34.6 (c). Here, counsel chose not to make a record of the post-voir dire conference. That decision is not objectively unreasonable and does not per se evidence harm to the defendant. Appellant contends that the decision was harmful to him because he cannot show harm in the jury selection process. However, because appellant has not supplemented the trial record by filing any post-conviction motions, we have no basis upon which to conclude that appellant suffered any harm resulting from this decision. See McFarland v. State, 845 S.W.2d 824, 843 (Tex. Crim. App. 1992).(1)
Finally, appellant argues that he was not afforded effective assistance of counsel because counsel: (1) agreed to the State's motion in limine which precluded voir dire of the jury panel with regard to the credibility of a State's witness, an undercover police officer who had been charged with a felony or a crime of moral turpitude; and (2) announced ready for trial despite the State's failure to comply with the trial court's order for production of the criminal history of its witnesses.
With regard to the first complaint, there is no indication in the record that counsel considered questioning the jury panel about the officer's arrest. Such a decision falls within the realm of trial strategy; we will not review such tactical decisions absent some proof that the second prong of Strickland is satisfied. There is no indication in the record that appellant suffered any harm resulting directly from counsel's decision to not question jurors about the officer's arrest.
As to the other complaint, there is nothing in the record to show that appellant's ability to cross-examine the officer about the arrest was compromised. The State opened the door to the witness's arrest during its direct examination. Appellant then questioned the witness with specificity about the arrest. Regardless of the State's failure to comply with the trial court's discovery order, the record does not show that appellant was harmed by counsel's decision to announce ready without having first obtained the officer's arrest record.
We find that appellant was afforded effective assistance of counsel in each of the foregoing instances. Accordingly, we overrule appellant's sole issue.
The judgment of the trial court is AFFIRMED.
ROBERT J. SEERDEN, Chief Justice
Do not publish
.Tex. R. App. P. 47.3.
Opinion delivered and filed
this 31st day of August, 2000.
1. We note that our disposition of this issue does not preclude presentation of the same issue in a habeas corpus proceeding after a sufficient record has been developed. Ex parte Torres, 943 S.W.2d 469, 475 (Tex. Crim. App. 1997).