No. 04-03-00203-CR.
Delivered and Filed: March 3, 2004. DO NOT PUBLISH.
Appeal from the 399th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CR-6911, Honorable Juanita A. Vasquez-Gardner, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
Opinion by: ALMA L. LÓPEZ, Chief Justice.
Luis Escajeda ("Escajeda") was convicted of burglary of a habitation with intent to commit sexual assault. On appeal, Escajeda contends that the trial court erred in refusing to disqualify a juror who lived in the neighborhood where the sexual assault occurred and that trial counsel was ineffective in failing to object to certain evidence and in allowing the court to assess punishment. We affirm the trial court's judgment.
Juror Disqualification
In a hearing prior to trial, the trial court granted a motion in limine regarding other cases that were pending against Escajeda for similar crimes. In his first point of error, Escajeda contends that the trial court "abused its discretion when it denied the request to proceed with eleven jurors or to grant a mistrial, based on a constructive violation of the pretrial motion in limine." We construe Escajeda's issue as a complaint regarding the trial court's denial of his request to disqualify a juror and his motion for mistrial. Escajeda's motions were based on information voluntarily revealed by a juror before the second day of trial. The juror was concerned that she had more knowledge regarding the case than the other jurors because she lived in the neighborhood where the alleged assault occurred and had read and watched extensive media coverage. She was aware that more than one case was involved and was personally aware that fliers had been posted around the neighborhood. The juror also questioned whether a sketch admitted into evidence was compiled based on information provided by the victim in the case being tried or by a victim in another case. The juror stated that she had not and would not share her outside knowledge with the other jurors and would only consider the evidence presented. The juror stated that she would hold the State to its burden of proof, would be fair and impartial, and she did not have a pre-determined bias. At the end of this exchange, the trial court denied defense counsel's motion to disqualify Juror Peek and his motion for a mistrial. If "a prejudiced or biased juror is selected without fault or lack of diligence on the part of defense counsel," then error occurs based on the juror's withholding of information. Gonzales v. State, 3 S.W.3d 915, 916-17 (Tex.Crim.App. 1999). Counsel must, however, be diligent in eliciting pertinent information from prospective jurors during voir dire in an effort to uncover potential prejudice or bias. Id. Unless defense counsel asks the necessary questions, any purportedly material information which a juror fails to disclose is not really "withheld" so as to constitute misconduct which would warrant a reversal. Id. In this case, trial counsel did not ask any questions during voir dire that would have elicited information regarding the prospective jurors' knowledge of the case based on media reports or otherwise. Trial counsel likely avoided asking such questions because he did not want the jurors to know of the other cases or of the extensive media coverage. Accordingly, the juror cannot be said to have "withheld" information. We review the trial court's denial of Escajeda's request to disqualify the juror and its denial of the motion for mistrial under an abuse of discretion standard. Swearingen v. State, 101 S.W.3d 89, 98 (Tex.Crim.App. 2003); Wood v. State, 18 S.W.3d 642, 648 (Tex.Crim.App. 2000). Although the juror was familiar with the case based on her knowledge of her neighborhood and the media coverage, she was unequivocal in stating that she would consider only the facts presented and would not share her knowledge with the other jurors. Because the juror could lay aside her knowledge and render a verdict based on the evidence presented in court, the trial court did not err by denying Escajeda's motions. See id. at 99. Escajeda appears to argue that the juror's partiality must be presumed from the circumstances. Whether a juror's partiality must be presumed from the circumstances is a question of law. Ruckman v. State, 109 S.W.3d 524, 528 (Tex. App.-Tyler 2000, pet. ref'd). A majority of the United States Supreme Court has never explicitly adopted or rejected the implied bias doctrine. Id. However, Justice O'Connor, writing in a concurring opinion, did say that the doctrine of implied bias should be retained to preserve Sixth Amendment rights. Id. (citing Smith v. Phillips, 455 U.S. 209, 223 (1982) (O'Connor, J., concurring)). Justice O'Connor said there were some extreme situations that would justify a finding of implied bias. Id. The examples included a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one the participants in the trial, or that the juror was a witness or somehow involved in the criminal transaction. Id. The doctrine of implied bias is limited in application to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances. Id. Although the juror had knowledge of the situation in her neighborhood and was aware of the media coverage, we disagree that her relationship creates the type of extreme situation in which we must presume partiality. Escajeda relies on this court's decision in Howard v. State, 982 S.W.2d 536 (Tex. App.-San Antonio 1998), pet. dism' d as improvidently granted, 11 S.W.3d 241 (Tex.Crim.App. 2000), to contend that the juror's relationship to the case was sufficient to presume partiality. In Howard, however, the juror was the step-mother of one of the victims of an extraneous offense that was referenced during the punishment phase of the trial. In that case, the circumstances fell within one of the three extreme examples given by Justice O'Connor because the juror was a close relative of one the participants in the trial — the victim of an extraneous offense who the State intended to call during the punishment phase of trial to testify. Accordingly, our decision in Howard is distinguishable from the facts of this case, and the trial court did not abuse its discretion in denying Escajeda's motions. Ineffective Assistance of Counsel
In his second point of error, Escajeda contends that his trial attorney was ineffective in failing to object to the introduction of a sketch and DNA evidence and to the trial court's conclusion that Escajeda elected for the court to assess punishment. To prevail on a claim for ineffective assistance of counsel, Escajeda must first show by a preponderance of the evidence that counsel's performance was deficient, i.e., that his assistance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App. 1999). In addition, Escajeda must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. "There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance." Id. at 813. "To defeat the presumption of reasonable professional assistance, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness." Id. at 814. In cases where "the alleged derelictions primarily are errors of omission de hors the record rather than commission revealed in the trial record, collateral attack may be the vehicle by which a thorough and detailed examination of alleged ineffectiveness may be developed and spread upon a record." Id. Escajeda contends that trial counsel should have objected to the sketch because it was created in the process of investigating another case based on a description given by another victim. In addition, Escajeda contends that trial counsel should have moved to suppress the DNA evidence. Each of these complaints relates to the failure of trial counsel to take some action. The record, however, is silent as to the reason trial counsel chose not to take those specific actions. As the State suggests, trial counsel may have decided not to oppose this evidence in order to keep from opening the door to evidence of the other cases. The record establishes that trial counsel was very concerned about any reference being made to the other cases. Because the record is silent regarding the reasons trial counsel chose not to object to the admission of the sketch and the DNA evidence, Escajeda has failed to rebut the presumption that trial counsel's decisions during trial fell within the wide range of reasonable professional assistance. This opinion does not preclude Escajeda from resubmitting his ineffective assistance claim regarding the introduction of this evidence via an application for writ of habeas corpus. See id. Escajeda also complains that trial counsel failed to object to the trial court's making his punishment election for him. The record does not support Escajeda's assertion. The record reflects that the trial court was making certain that in making his election, Escajeda understood that the jury could give him probation if it convicted him only of a lesser-included offense; however, the trial judge would be unable to grant probation for the lesser-included offense. Although Escajeda asked numerous questions during the exchange, the trial court was satisfied that he understood the effect of the election, and numerous times during the exchange Escajeda stated that he wanted the trial court to assess punishment. Accordingly, the record does not support Escajeda's contention that the trial court made his election regarding punishment; therefore, trial counsel was not required to object. Conclusion
The trial court's judgment is affirmed.