No. 14-04-01136-CR
Memorandum Opinion filed July 25, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 122nd District Court, Galveston County, Texas, Trial Court Cause No. 03CR2606. Affirmed.
Panel consists of Justices ANDERSON, EDELMAN, and FROST.
KEM THOMPSON FROST, Justice.
Challenging his conviction for murder, appellant Olman Saul Mejia asserts in two issues (1) his trial counsel rendered ineffective assistance and (2) the trial court erred in removing certain potential jurors. We affirm.
I. Background
Appellant was charged with the murder of Stephanie Jacobs. He pleaded "not guilty" and the case proceeded to trial by jury. Because appellant did not speak English and spoke Spanish, a certified Spanish language court interpreter was present for the trial. During voir dire, the State questioned venire members about the interpreter's role and their ability to rely upon the interpreter's interpretation of witness testimony. Thereafter, the trial court struck several venire members for cause. At the conclusion of the trial, the jury found appellant guilty as charged and assessed punishment at 55 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. II. ISSUES PRESENTED
Appellant asserts two points on appeal: (1) he received ineffective assistance of counsel because his trial counsel agreed to remove certain potential jurors for cause, thereby waiving any error for appellate review, and (2) the trial court abused its discretion by removing Spanish-speaking venire members for cause. III. ANALYSIS
A. Did appellant receive ineffective assistance of counsel? In his first issue, appellant contends that he received ineffective assistance of counsel because his trial counsel agreed to remove certain Spanish-speaking venire members for cause. He contends that by agreeing to remove these potential jurors for cause, his trial counsel waived any appellate challenges of equal protection under Batson v. Kentucky, 475 U.S. 79 (1986). Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. art. 1.051 (Vernon 2005). This right necessarily includes the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App. 1997). To prove ineffective assistance of counsel, appellant must show that (1) trial counsel's representation fell below an objective standard of reasonableness, based on prevailing professional norms; and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel's deficient performance. Strickland, 466 U.S. at 688-92. Moreover, appellant bears the burden of proving his claims by a preponderance of the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex.Crim.App. 1998). In assessing appellant's claims, we apply a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999). We presume counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). When, as in this case, there is no proper evidentiary record developed at a hearing on a motion for new trial, it is extremely difficult to show that trial counsel's performance was deficient. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). If there is no hearing or if counsel does not appear at the hearing, an affidavit from trial counsel becomes almost vital to the success of an ineffective-assistance claim. Stults v. State, 23 S.W.3d 198, 208-09 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd). Absent an opportunity for trial counsel to explain his actions, appellate courts should not find ineffective assistance unless the challenged conduct was "`so outrageous that no competent attorney would have engaged in it.'" Goodspeed v. State, 187 S.W.3d 390, 392-93 (Tex.Crim.App. 2005) (quoting Garcia v. State, 57 S.W.3d 436, 440 (Tex.Crim.App. 2001)). During voir dire, the State asked all the members of the venire whether they spoke Spanish, and, if so, whether they would they be able to rely solely upon the court interpreter's interpretation of appellant's testimony, or instead be inclined to translate appellant's testimony themselves. The following prospective jurors all stated that it would be difficult to rely upon the interpreter's interpretation rather than their own understanding of the testimony: (1) Edward Aguilera (No. 32), (2) Israel Gomez (No. 33), (3) David Jaramillo (No. 39), (4) Benjamin Herrera (No. 40), and (5) Patricia Diaz (No. 61). All of these prospective jurors except Herrera were stricken for cause. Appellant contends that these four stricken venire members were all Hispanic and thus his trial counsel's agreement to strike them was tantamount to foregoing any violations under Batson. Presuming without deciding that appellant's counsel agreed to strike these members for cause, we cannot conclude that this action constituted ineffective assistance of counsel. Striking a potential juror solely on the basis of Hispanic ethnicity clearly would violate Batson. However, there is nothing in the record to demonstrate that the four potential jurors in question were Hispanic. Though these venire members spoke Spanish, Spanish-speaking persons have many national origins, e.g., Cuba, Spain, Mexico, and Argentina, and may be racially Caucasian, African, Indian, biracial or multiracial. See Flores v. State, 904 S.W.2d 129, 130 (Tex.Crim.App. 1995). Appellant's contentions rest on the illogical assumption that all Spanish-speaking persons should be treated as one group. Id. The record demonstrates that the four potential jurors stricken for cause all stated that they would rely on their own knowledge of the Spanish language as opposed to the translation given by the official court interpreter. Based upon these responses, either the State or the defense could have challenged these jurors for cause. See TEX. CODE CRIM. PROC. ANN. Art. 35.16 (Vernon Supp. 2005); Maldonado v. State, 998 S.W.2d 239, 248, n. 14 (Tex.Crim.App. 1999) (discussing revitalization of Moore v. State, 542 S.W.2d 664 (Tex.Crim.App. 1976) which held that challenges for cause could be properly asserted on grounds not specifically enumerated in Article 35.16, where the challenge "is based on facts that show that the prospective juror would be `incapable or unfit to serve on the jury.'"). Therefore, we cannot conclude that any action by appellant's trial counsel in agreeing these four potential jurors should be stricken for cause constitutes conduct so outrageous that no competent attorney would have engaged in it. The record does not show any discrimination based on race or ethnicity; however, it does demonstrate that these four potential jurors, by their own admission, would not have relied upon the official court interpreter's translation of appellant's testimony. See Goodspeed, 187 S.W.3d at 392 (concluding that a Stickland claim must be firmly found in the record). Thus, if the prosecutor and appellant's counsel agreed to challenge these four potential jurors for cause, this agreement could have been a legitimate trial strategy on the part of appellant's trial counsel. Id. (concluding that absent an opportunity for trial counsel to explain his actions, an appellate court should not find deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it). Accordingly, we find no merit in appellant's ineffective-assistance-of-counsel argument and overrule appellant's first issue. B. Did the trial court abuse its discretion in removing certain Spainish-speaking venire members for cause?
In his second issue, appellant contends that the trial court abused its discretion by removing venire members Aguilera (No. 32), Gomez (No. 33), Jaramillo (No. 39), and Diaz (No. 61), for cause. The State contends that appellant failed to preserve his complaint for appellate review and thus, as a threshold matter, we consider whether appellant has waived his complaint by failing to preserve it in the trial court. To preserve error for appellate review, opposing counsel must make a timely, specific objection when a trial court grants a challenge for cause to a prospective juror. Kemp v. State, 846 S.W.2d 289, 302 (Tex.Crim.App. 1992). Trial counsel must state the basis for the objection so that opposing counsel has the opportunity to attempt to remove it and so that the trial court has an opportunity to rule on the matter. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App. 1977). If one fails to object when a venire member is excused for cause, he may not later challenge that ruling on appeal. Purtell v. State, 761 S.W.2d 360, 365 (Tex.Crim.App. 1988). In this case, appellant voiced no objection when the four venire members were stricken for cause. Indeed, in asserting his first issue appellant himself argues that his trial counsel was ineffective by "agreeing" to these challenges for cause and thus waiving any appellate challenges of equal protection under Batson. Because appellant failed to assert his complaint in the trial court, he has waived appellate review of any error. In any event, even if appellant had properly objected at trial, we could find no abuse of discretion in the trial court's striking of the potential jurors in question for cause. Appellant contends that these individuals were removed contrary to the standards set forth in Article 35.16 of the Code of Criminal Procedure and thus the trial court must be deemed to have abused its discretion. See Tex. Code Crim. Proc. Ann. art. 35.16 (Vernon Supp. 2005). Appellant misinterprets the law. Though it is true that article 35.16 sets forth various grounds for excusing a potential juror for cause, this list of grounds is not exhaustive. See Maldonado v. Sate, 998 S.W.2d at 249-50; Mason v. State, 905 S.W.2d 570, 577 (Tex.Crim.App. 1995). Challenges that are not based upon any specifically enumerated ground ordinarily are within the sound discretion of the trial court. Id. When a potential juror's answers are unclear or contradictory, we accord particular deference to the trial court's decision. Colburn v. State, 966 S.W.2d 511, 517 (Tex.Crim.App. 1998). We follow this approach because we recognize that elements such as demeanor and tone of voice are critical to understanding the potential juror's precise position. See Earhart v. State, 823 S.W.2d 607, 627 (Tex.Crim.App. 1991), vacated on other grounds, 509 U.S. 917, 113 S.Ct. 3026, 125 L.Ed.2d 715 (1993). Recognizing that the trial court is in the best position to evaluate a venire member's demeanor and responses, we accord great deference to these types of decisions. Newbury v. State, 135 S.W.3d 22, 32 (Tex.Crim.App. 2004). Consequently, we will reverse a trial court's ruling on a challenge for cause "only if a clear abuse of discretion is evident." Id. at 32. In the instant case, all four of the potential jurors in question stated that they would rely upon their own knowledge of the Spanish language, as opposed to using the translation of the certified court interpreter as the law requires. If the entire record contains sufficient evidence to support a trial court's determination that a juror would be prevented or substantially impaired from obeying his oath and following instructions, deference must be paid to the trial court's determination. Fearance v. State, 771 S.W.2d 486, 501-02 (Tex.Crim.App. 1988) (holding that excusal for cause of venire member whose testimony indicated that his ability to comply with his oath as juror would be substantially impaired by his opposition to death penalty was proper, notwithstanding his answer to one isolated question in which he indicated that he would not deliberately answer "no" to special issue in order to avoid giving death penalty). In such a situation we defer to the trial court's informed judgment on the matter. See Earhart, 823 S.W.2d at 627 (deferring to trial court when, after being fully questioned, venire member indicated he would not hold failure to testify against defendant). Applying this standard in reviewing the trial court's action, we conclude that the trial court did not abuse its discretion in removing these four potential jurors for cause. We affirm the trial court's judgment.