Opinion
Nos. 05-04-00494-CR, 05-04-00679-CR
Opinion Filed February 24, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 291st Judicial District Court Dallas County, Texas, Trial Court Cause Nos. F01-21320-Qsu F01-21319-Qsu. Affirm.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
OPINION
Appellant appeals two convictions for aggravated assault. After finding appellant guilty, the jury assessed punishment at six years' confinement in each case. In two issues, appellant generally contends (1) the trial court erred in sustaining the State's objection to appellant's statement during voir dire explaining the law of self-defense, and (2) he received ineffective assistance of counsel. For the following reasons, we affirm the trial court's judgment. On November 22, 2001, appellant shot two men at a convenience store. The grand jury indicted appellant for the aggravated assault of each victim. Appellant claimed self defense. During voir dire, the prosecutor explained self-defense to the venire. Specifically, the prosecutor told veniremembers the law allows a person to use force to the extent he "reasonably believes" force is immediately necessary to protect himself. He further explained a person can use deadly force if a "reasonable person in his situation" would not have retreated. The prosecutor also explained a person can defend himself from a perceived threat if "it appeared to him from his standpoint that he reasonably believed such force was immediately necessary to protect himself." Appellant also discussed self-defense with the venire. In explaining the "reasonable person" standard, appellant stated:
It's a reasonable person theory. It is a subjective test again. It is whatever you say as a juror is reasonable but it is placing yourself in the actor's position at the time it occurred. It's not what a reasonable person would do under any circumstances. It's what the person did and was that reasonable under the circumstances.The State objected asserting "the standard is what a reasonable person would do in that situation, not what the defendant did." The trial court sustained the objection and instructed appellant to "rephrase" his statement. Trial counsel responded that it was his understanding that the "reasonable person" standard was whether "in [the defendant's] eyes" did he act reasonably under the circumstances. The trial court explained that it was not "in the defendant's eyes" but rather what a reasonable person would do in the defendant's situation. Appellant then concluded his voir dire. In his first issue, appellant contends the trial court erred in sustaining the State's objection to his explanation of self-defense. We review a trial court's ruling during voir dire examination under an abuse of discretion standard. Howard v. State, 941 S.W.2d 102, 108 (Tex.Crim.App. 1996); Gerhardt v. State, 965 S.W.2d 55, 58 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). A trial court should give a defendant great latitude in questioning the venire. Etheridge v. State, 903 S.W.2d 1, 8 (Tex.Crim.App. 1994). However, a trial court has broad discretion to impose reasonable restrictions on the voir dire process. Howard, 941 S.W.2d at 108. Specifically, a trial court may restrict confusing or misleading voir dire questions. Id. Moreover, if the trial court places no absolute limitations on the underlying substance of a defendant's voir dire, it is incumbent upon the defendant to rephrase an improperly phrased query or else waive the voir dire restriction. Id. In this case, both the prosecutor and appellant explained to the jury the requirements of self defense to the venire. Both explained that the standard was a reasonable person in the "defendant's situation." Appellant's attempt to further expound upon the meaning was not entirely clear and the trial court sustained the State's objection, but allowed appellant to rephrase. Appellant was thus not prohibited from discussing the defense with the venire. Nor was appellant prevented from asking the venire a single question with respect to self defense. See, e.g., Etheridge, 903 S.W.2d at 9; see also Howard, 941 S.W.2d at 108. We also disagree with appellant to the extent he complains the trial court improperly corrected his explanation of self-defense when he attempted to argue the issue was only whether the defendant subjectively believed he acted reasonably. Contrary to appellant's suggestion, this is not sufficient. Rather, the defendant's belief must also be objectively reasonable. See Davis v. State, 104 S.W.3d 177, 181 (Tex.App.-Waco 2003, no pet.); Assiter v. State, 58 S.W.3d 743, 748 (Tex.App.-Amarillo 2000, no pet.). We conclude appellant has not shown the trial court abused its discretion in limiting voir dire. We resolve the first issue against appellant. In his second issue, appellant contends he received ineffective assistance of counsel. Specifically, appellant asserts his trial counsel was ineffective for the manner in which he explained self-defense to the venire. To prevail on an ineffective assistance of counsel claim, an appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The record must be sufficiently developed to overcome the strong presumption of reasonable assistance. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Generally, a silent record which provides no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Further, trial counsel should ordinarily be given an opportunity to explain his actions before being denounced as ineffective. Bone v. State, 77 S.W.3d 828, 836 (Tex. 2002). In this issue, appellant contends counsel was ineffective because (1) he provided the venire with no meaningful explanation of self defense, apparent danger or reasonable belief and (2) he did not ask the venire any questions regarding their ability to apply the law of self defense. The record is silent with respect to the reasons for counsel's actions. Under these circumstances, we cannot conclude there is no possible basis in strategy or tactics for counsel's actions. Further, appellant has made no effort to show a reasonable probability exists the result of the proceeding would have been different but for counsel's actions. That failure precludes relief. Holberg v. State, 38 S.W.3d 137, 141 (Tex.Crim.App. 2001). We resolve the second issue against appellant. We affirm the trial court's judgments.