                                   NO. 07-09-0007-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                SEPTEMBER 17, 2009
                          ______________________________

                          ALBERT TORRES, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B 17651-0805; HONORABLE ED SELF, JUDGE
                        _______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Albert Torres, Jr., was convicted of possession of a controlled substance,

cocaine,1 in an amount of less than one gram.2 The jury assessed punishment at two years

confinement in a State Jail facility. Appellant appeals alleging that his trial counsel was

ineffective in the manner in which he conducted voir dire. We disagree and affirm.




      1
          See TEXAS HEALTH & SAFETY CODE ANN . § 481.102(3)(D) (Vernon Supp. 2008).
      2
          See TEXAS HEALTH & SAFETY CODE ANN . § 481.115(b) (Vernon 2003).
                            Factual & Procedural Background


       Appellant does not contest the sufficiency of the evidence to sustain the conviction,

therefore, we will only put forth so much of the record as is necessary for our effective

consideration of appellant’s issue.


       During voir dire, in addition to the normal areas of voir dire about burden of proof,

presumption of innocence, and the like, appellant appeared to concentrate his voir dire on

two main areas. First, whether or not the venireperson at issue had friends or relatives that

had been or were substance abusers. If the venireperson said yes, then trial counsel

proceeded to attempt to ascertain whether or not this background fact would impact the

venireperson’s ability to serve on this particular jury. Second, trial counsel asked questions

about whether or not any of the venirepersons had friends or relatives that were serving or

had served in law enforcement. If counsel received an affirmative answer, a follow up

question was asked about how that involvement might affect the venireperson’s service.

Primarily, trial counsel visited with these venirepersons about whether they would favor the

State as a result of this relationship or give more credence to an officer’s testimony

because of this relationship.


       After voir dire had been completed, the trial court entertained challenges for cause

from both sides. Appellant’s trial counsel had eight total challenges for cause. The trial

court granted three of them and denied five of them. It is the five denied challenges for

cause that is the basis of appellant’s complaint. Essentially, appellant contends that trial




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counsel was ineffective because he did not properly question the venirepersons who were

challenged for cause but were not stricken for cause.


                                    Standard of Review


       In determining whether counsel’s representation was so inadequate as to violate a

defendant’s Sixth Amendment right to counsel, Texas courts adhere to the two-pronged

test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). See Hernandez v. State, 726 S.W.2d 53, 55 (Tex.Crim.App. 1986).3 Judicial

review of an ineffective assistance of counsel claim must be highly deferential to trial

counsel and avoid using hindsight to evaluate counsel’s actions. Ingham v. State, 679

S.W.2d 503, 509 (Tex.Crim.App. 1984). There is a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance. Strickland, 466

U.S. at 690. The burden is on appellant to prove by a preponderance of the evidence that

counsel was ineffective. See McFarland v. State, 928 S.W.2d 482, 500 (Tex.Crim.App.

1996) (en banc). The defendant must first prove that counsel’s performance was deficient,

i.e., that counsel’s assistance fell below an objective standard of reasonableness.

McFarland, 928 S.W.2d at 500. If appellant has demonstrated deficient assistance of

counsel, it is then necessary that appellant affirmatively prove prejudice as a result of the

deficient assistance.   Id.   In proving prejudice, appellant must prove a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have been




       3
         The same standard of review applies to contentions arising under Article 1, Section
10, of the Texas Constitution.

                                             3
different. A reasonable probability is a probability sufficient to undermine confidence in the

outcome. Hernandez, 726 S.W.2d at 55.


       Any allegation of ineffective assistance of counsel must be firmly founded in the

record and the record must affirmatively demonstrate the alleged ineffectiveness.

McFarland, 928 S.W.2d at 500. Failure to make the required showing of either deficient

performance or sufficient prejudice defeats the ineffectiveness claim. Id. Absent both

showings, an appellate court cannot conclude the conviction resulted from a breakdown

in the adversarial process that renders the result unreliable. Ex parte Menchaca, 854

S.W.2d 128, 131 (Tex.Crim.App. 1993).         Appellate courts look to the totality of the

representation and the particular circumstances of each case in evaluating the

effectiveness of counsel. Ex parte Felton, 815 S.W.2d 733, 735 (Tex.Crim.App. 1991). It

is possible that a single egregious error of omission or commission by appellant’s counsel

constitutes ineffective assistance.     E.g., Jackson v. State, 766 S.W.2d 504, 508

(Tex.Crim.App. 1985) (modified on other grounds on remand from United States Supreme

Court in 766 S.W.2d 518 (Tex.Crim.App. 1988)).


                                          Analysis


       The gist of appellant’s argument is that there were other, more, and different

questions that could have been asked the five challenged venirepersons that might have

led to their exclusion for cause. While this is an interesting theory, nowhere in appellant’s

brief does he set forth what exactly about trial counsel’s questioning of these venirepersons

was deficient, except to say that the trial court denied the challenge for cause. This does


                                              4
not meet the requirement that any allegation of ineffective assistance of counsel must be

firmly founded in the record and the record must affirmatively demonstrate the alleged

ineffectiveness. McFarland, 928 S.W.2d at 500. Accordingly, trial counsel’s examination

was not deficient. With the record presented to this court, we cannot say that the efforts

of trial counsel fell outside the wide range of reasonable professional assistance.

Strickland, 466 U.S. at 690.


       Even if we were to assume that trial counsel’s voir dire was deficient for purposes

of the first prong of the Strickland test, appellant only conclusorily addresses the issue of

the harm analysis. Harm, according to appellant, must be assumed because those five

jurors had to be struck by appellant’s trial counsel, yet this goes not to harm but to the first

prong. To support the second prong of Strickland, appellant cites this court to Montez v.

State to support his contention that our confidence in the outcome of this trial is sufficiently

undermined as to require a new trial.              Montez v. State, 824 S.W.2d 308, 311

(Tex.App.–San Antonio 1992, no pet.). However, Montez is significantly different factually

from the case before the court. Instead of one allegation of ineffective assistance of

counsel during voir dire, in Montez, the court outlines five additional claims of ineffective

assistance of counsel, which the court took into consideration in deciding that, under a

totality of the circumstances view, the appellant did not get a fair trial. Id. In our situation,

there is one allegation, which is doubtful in and of itself; further, there is not a real showing

of harm to appellant from the record. McFarland, 928 S.W.2d at 500. Accordingly, we

cannot say that, from the overall record, our confidence in the jury verdict has been




                                               5
undermined. Hernandez, 726 S.W.2d at 55. Accordingly, we overrule appellant’s only

issue.


                                          Conclusion


         Having overruled appellant’s single issue, we affirm the judgment of the trial court.




                                                   Mackey K. Hancock
                                                        Justice




Do not publish.




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