By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Juvenile respondent did not receive
ineffective assistance of counsel in his jury trial (99-4-30)
On November 17, 1999, the San Antonio Court of Appeals, applying criminal
ineffective assistance of counsel standards, held that the juvenile respondent
did not receive ineffective assistance in his jury trial for criminal mischief.
99-4-30. In the Matter of S.P., ___ S.W.3d ___, No. 04-98-00894-CV, 1999 WL
1036584, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 11/17/99)[Texas Juvenile
Law 98 (4th Edition 1996)].
Facts: A jury found that S.P. had engaged in delinquent conduct by committing
the offense of criminal mischief. The court assessed punishment at 19 months
probation and placed S.P. outside of his home. In the first issue, S.P. alleges
that he received ineffective assistance of counsel. In the second issue, S.P.
alleges that the court erred by failing to record all of the proceedings. In the
third issue, S.P. asserts that the court erred in denying his motion for new
trial. We affirm the judgment.
S.P. was found to have engaged in delinquent conduct by breaking two windows at
an apartment. The resident of the apartment, Wanda Blanquyz, testified that the
sound of shattered glass awoke her at approximately 4:00 a.m. Blanquyz woke her
son who looked out of the window and observed four males carrying a barbeque
grill and heading toward the apartment. The son recognized S.P. as one of the
males because he had known S.P. from the neighborhood. The son went downstairs
and watched the males ram the barbeque grill into the sliding door. The son
observed S.P. again. When the police arrived, the males ran away but were
apprehended in a nearby parking lot. The police brought Blanquyz's son to the
parking lot where he identified S.P. and the others as the males he saw through
his window.
Held: Affirmed
Opinion Text: Ineffective assistance
In his first issue, S.P. asserts that he received ineffective assistance of
counsel. Specifically, S.P. complains that his counsel: (1) failed to challenge
for cause jurors who had been victims of criminal mischief; (2) elicited
favorable testimony from State witnesses; (3) failed to effectively convey the
defense theory of the case; (4) failed to seek postponement of the disposition
hearing to obtain a current psychological report; and (5) waived allegation of
jury misconduct during the motion for new trial hearing.
The right to assistance of counsel also includes the right to reasonably
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In assessing the effectiveness of
counsel, we apply the two-part test set forth by the Supreme Court in Strickland
v. Washington. The test requires us to determine whether: (1) counsel's
performance was deficient; and if so, (2) whether there is a reasonable
probability that results would have been different but for counsel's deficient
performance. Id. The appellant must overcome the presumption that his trial
counsel's conduct might be considered to be sound trial strategy. Jackson v.
State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Claims of ineffective assistance
of counsel must be affirmatively demonstrated in the record. See McFarland v.
State, 928 S.W.2d 482, 500 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1119, 117
S.Ct. 966, 136 L.Ed.2d 851 (1997). Further, we strongly presume that counsel's
conduct lies within the "wide range of reasonable representation" and
we examine the totality of the representation to determine the effectiveness of
counsel. Id.
Voir dire
S.P. contends that his counsel erred by failing to challenge for cause or use
peremptory challenges on jurors nine and thirteen because they both had been
vandalized by having windows broken. S.P. contends that allowing victims of
similar crimes to sit on the jury amounts to ineffective assistance of counsel.
Although jurors nine and thirteen had been the victims of similar crimes, they
both testified that they could be fair and impartial in response to the State's
individual voir dire questions. Because the jurors testified that they could be
fair and impartial, no basis existed for a challenge for cause. See Bradley v.
State, 960 S.W.2d 791, 804 (Tex.App.-El Paso 1997, pet. ref'd).
With regard to peremptory challenges, the State points out that many panel
members had been the victims of vandalism and thus, counsel might have exercised
his challenges on other panel members. Because there is no evidence in the
record indicating why counsel chose not to make a peremptory challenge on jurors
nine and thirteen, S.P. cannot demonstrate that failure to strike jurors nine
and thirteen amounted to ineffective assistance of counsel.
Cross-examination
S.P. contends that his counsel elicited favorable testimony from the State's
witnesses and failed to develop his theory of the case. While questioning
Blanquyz during cross-examination, defense counsel asked Blanquyz if her son
told the police that he knew who had broken the windows. Blanquyz answered that
she believed he did because he had seen them through the window. S.P. contends
that his counsel's question bolstered the son's credibility. S.P. also complains
about the cross-examination of Officer Huron who responded to Blanquyz's 911
call. Defense counsel asked Officer Huron about how the call was dispatched and
Officer Huron responded that it might have been dispatched as a burglary in
action. S.P. contends that this testimony damaged his case. In order to show
ineffectiveness, S.P. must overcome the presumption that counsel's
cross-examination constituted trial strategy. See Valdes-Fuerte v. State, 892
S.W.2d 103, 111 (Tex.App.-San Antonio 1994, no pet.). Further, S.P. must
demonstrate how counsel's cross-examination prejudiced his defense. Because
Blanquyz's testimony merely duplicated that of her son, we find that S.P.'s
defense was not prejudiced and he has failed to overcome the presumption that
the cross-examination constituted trial strategy. Further, S.P. has failed to
demonstrate how Officer Huron's testimony prejudiced his defense.
S.P. also asserts that his attorney failed to develop the theory of the case.
According to S.P., he was in the wrong place at the wrong time and was one of
many boys outside the apartment that night. On cross-examination, Blanquyz
testified that after she heard the windows break, she looked outside her front
window and saw many boys in front of the apartment. Thus, S.P.'s counsel
elicited testimony concerning a large group of boys outside the apartment and
was not ineffective for failing to develop the defense theory of the case.
Disposition
S.P. also alleges that he received ineffective assistance of counsel at the
disposition phase. The Strickland test also applies to claims of ineffectiveness
at the punishment phase. See Hernandez v. State, 988 S.W.2d 770, 772
(Tex.Crim.App.1999) (holding that Strickland applies to punishment phase and
overruling Ex parte Duffy, 607 S.W.2d 507 (Tex.Crim.App.1980)). S.P. asserts
that his counsel was ineffective by failing to request an updated psychological
evaluation and by failing to call S.P.'s current treating physician as a
witness. S.P. argued for probation and placement in his home. The State,
however, advocated placement outside of the home at a psychiatric hospital. S.P.
had a history of psychiatric problems and had been violent towards his mother.
The Probation Officer had a psychiatric evaluation of S.P. that was to expire
August 29, and the hearing was held on July 13. We agree with the State's
contention that S.P.'s claim is not presented for review because he failed to
present any authority indicating that his counsel was ineffective for failure to
obtain an updated evaluation and by failing to call the treating physician.
Further, the record contains no evidence concerning counsel's decision not to
request a new evaluation or call S.P.'s treating physician. And, we have no
evidence as to any testimony S.P.'s physician would have provided. Thus, S.P.
has failed to show that, but for his counsel's deficient performance, there is a
reasonable probability that the results would have been different.
Motion for new trial
S.P. contends that his counsel was ineffective for waiving his jury misconduct
argument at the motion for new trial hearing. S.P. filed a motion for new trial
alleging jury misconduct supported by counsel's affidavit. According to the
affidavit, two unidentified jurors approached defense counsel and told him that
they noticed that the probation officer had a thick file and surmised that S.P.
had been in trouble before. The jurors told counsel that the thick probation
file affected their decision. As a result of this information, defense counsel
sent letters to all of the jurors. Two jurors responded and told S.P.'s counsel
that the probation file was discussed. They also indicated, however, that the
other jurors told the jurors who mentioned the file that it could not be
considered because it was not evidence. The two jurors who responded to S.P.'s
attorney's letter indicated that they did not consider the file in making their
decision. At the motion for new trial hearing, defense counsel argued for a new
trial in the interest of justice. Defense counsel stated that he was not
requesting a jury misconduct hearing because he believed his affidavit was not
admissible to prove jury misconduct.
A new trial may be granted when the jury has received other evidence during
deliberations or engaged in such misconduct that the defendant did not receive a
fair and impartial trial. Tex.R.App. P. 21.3(f)-(g); see In re M.A.F., 966
S.W.2d 448, 450 (Tex.1998) (finding predecessor of Rule 21.3 applicable to
juvenile proceedings). An allegation of juror misconduct must be supported by an
affidavit of a juror. See Vera v. State, 868 S.W.2d 433, 435 (Tex.App.-San
Antonio 1994, no pet.). Rule 606(b) of the Rules of Evidence, effective on March
1, 1998, permits jurors in criminal trials to testify about outside influences
that affected the juror's decision or to rebut a claim of disqualification,
whereas former Rule 606(b) of the Rules of Criminal Evidence allowed jurors to
testify as to any matter relevant to the validity of the verdict. S ee Tex.R.
Evid. 606(b); Tex.R. Crim. Evid. 606(b); Sanders v. State, Nos. 03-98-00481-CR
& 03-98-00482-CR, 1999 WL 699767, at *2 (Tex.App.-Austin Sept. 10, 1999, n.
pet. h.); Hines v. State, No. 06- 98-00283-CR, 1999 WL 669210, at *2 (Tex.App.-Texarkana
Aug. 30, 1999, n. pet. h.). The courts of appeals in Sanders and Hines both note
that the new Rule 606(b) significantly narrows the matters that jurors can
testify about in criminal cases. Id. As a result of the new Rule 606(b), jurors
in criminal cases are limited, as they have always been in civil cases, to
testifying about outside influences and to rebut a claim of disqualification.
At oral argument, both parties correctly asserted that we must look to civil
cases to determine what constitutes an outside influence because, until the new
Rules of Evidence took effect on March 1, 1998, juror misconduct allegations in
criminal cases were not evaluated based on outside influence. Thus, we will look
to civil cases to determine what constitutes an outside influence. See Hines,
No. 06-98-00283-CR, slip op. at 4 (looking to civil cases to determine outside
influence in a criminal case). Although courts have not clearly identified what
constitutes an outside influence, certain juror conduct has been identified as
not constituting an outside influence. See Mitchell v. Southern Pacific Transp.
Co., 955 S.W.2d 300, 322 (Tex.App.-San Antonio 1997, no writ). The following
acts do not constitute an outside influence: (1) information gathered by a juror
and introduced to the jury; (2) coercive influence of one juror over other
jurors; and (3) injection of juror's own personal experiences or knowledge. Id.
An outside influence must emanate from outside the jury and its deliberations,
such as a non-juror introducing information to the jury. See Soliz v. Saenz, 779
S.W.2d 929, 931-32 (Tex.App.-Corpus Christi 1989, writ denied).
Because no juror affidavit existed, counsel did not have evidence to raise a
juror misconduct issue. Further, the jury's discussion concerning the thickness
of the probation file and speculation that S.P. had been in trouble before did
not constitute an outside influence upon which a juror is permitted to testify.
The jurors' discussion of the probation file occurred during deliberations as a
result of some of the jurors' personal opinions and not by way of a non-juror
introducing information. Because no juror affidavit existed and the jurors could
not testify concerning the alleged jury misconduct, we find that counsel was not
ineffective for waiving the jury misconduct hearing. S.P. also contends that
counsel was ineffective for failing to call the jurors as witnesses and secure
their affidavits. Because the jurors' discussion of the probation file was not
an outside influence, the jurors would not have been allowed to testify about
this matter. Thus, counsel was not ineffective for failing to call the jurors as
witnesses.
Having reviewed S.P.'s claims of alleged ineffectiveness, we find that S.P. has
failed to prove that his counsel's performance was deficient. Even if counsel's
performance was deficient, S.P. has not shown a reasonable probability that
results would have been different but for counsel's deficient performance.
Therefore, we find that S.P. did not receive ineffective assistance of counsel.
We overrule S.P.'s first issue.
In his third issue, S.P. contends that the court erred by overruling his motion
for new trial based on jury misconduct. Because the motion for new trial failed
to include a juror's affidavit supporting the jury misconduct and the alleged
misconduct did not constitute an outside influence upon which a juror is
permitted to testify, the court did not err in denying S.P.'s motion for new
trial. We overrule S.P.'s third issue.
Record
In his second issue, S.P. argues that the court erred by failing to record all
of the proceedings. S.P. complains about two bench conferences which took place
"off the record" during individual voir dire of the jury panel. S.P.
contends that his case should be reversed because the Family Code requires all
juvenile proceedings to be recorded. See Tex. Fam.Code Ann. § 54.09 (Vernon
1996). Section 54.09 provides: "All judicial proceedings under this chapter
except detention hearings shall be recorded by stenographic notes or by
electronic, mechanical, or other appropriate means. Upon request of any party, a
detention hearing shall be recorded." Id. Although section 54.09 requires
all judicial proceedings to be recorded, S.P. has failed to demonstrate how the
omissions of the bench conferences prevented him from making his argument on
appeal. See In re M.R.R., No. 04-97-00630-CV, slip op. at 11, 1999 WL 266466 (Tex.App.-San
Antonio May 5, 1999, no pet.) (finding that failure to record bench conferences
does not require reversal because appellant failed to demonstrate how omission
affected his appeal); S.S. v. State, 879 S.W.2d 395, 397 (Tex.App.-Eastland
1994, no writ)(reversing for new trial because omissions in record prevented
appellant from making proper presentation of case). Thus, S.P. has failed to
demonstrate any harm from the omission and we overrule S.P.'s second issue. We
affirm the judgment.