                                NO. 12-10-00137-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

HARMON LEE MANUEL, II,                           §           APPEAL FROM THE 7TH
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §           SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Harmon Lee Manuel, II, appeals his conviction for stalking, for which he was sentenced to
imprisonment for ten years. Appellant raises four issues on appeal. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with stalking and pleaded “not guilty.” The matter
proceeded to a jury trial. Following the presentation of evidence and argument of counsel, the
jury found Appellant “guilty” as charged. The matter proceeded to a trial on punishment, after
which the jury assessed Appellant’s punishment at imprisonment for ten years. The trial court
sentenced Appellant accordingly, and this appeal followed.


                                      BATSON CHALLENGE
       In his first issue, Appellant argues that he was denied his right to a fair and impartial jury
under the Sixth and Fourteenth Amendments to the United States Constitution because (1)
Appellant (1) is African American, (2) was charged with an interracial crime of violence, (3) the
trial court failed to make inquiry regarding the basis for the State’s striking African American
venire members and failed to question the venire panel about racial prejudice against African
Americans, and, (4) as a result, an all white jury was impaneled. The crux of Appellant’s first
issue is his contention that the State improperly exercised peremptory strikes against African
American jurors.
Standard of Review and Governing Law
        The use of a peremptory challenge to strike a potential juror because of race violates the
equal protection guarantee of the United States Constitution and Article 35.261 of the Texas Code
of Criminal Procedure. See Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717, 90 L.
Ed. 2d 69 (1986); TEX. CODE CRIM. PROC. ANN. art. 35.261 (West 2006). In the face of perceived
purposeful discrimination, a party may request a Batson hearing. See TEX. CODE CRIM. PROC.
ANN. art. 35.261.
        Batson provides a three step process for a trial court to use in adjudicating a claim that a
peremptory challenge was based on race. Snyder v. Louisiana, 552 U.S. 472, 476-77, 128 S. Ct.
1203, 1207, 170 L. Ed. 2d 175 (2008); Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.
2008). The opponent of a peremptory challenge must first make a prima facie case that the
peremptory challenge was exercised on the basis of race. Snyder, 552 U.S. at 476, 128 S. Ct. at
1207; Watkins, 245 S.W.3d at 447. If that showing has been made, the burden of production
shifts to the proponent of the strike to offer a race-neutral basis for striking the juror in question.
Snyder, 552 U.S. at 476–77, 128 S. Ct. at 1207; Watkins, 245 S.W.3d at 447. The issue in step
two is the facial validity of the prosecutor's explanation, and “[u]nless a discriminatory intent is
inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.” Purkett
v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995); see also Williams v.
State, 301 S.W.3d 675, 689 (Tex. Crim. App. 2009). In the third and final step, the trial court
must determine whether the opponent of the strike has carried his burden to prove purposeful
discrimination. Snyder, 552 U.S. at 477, 128 S. Ct. at 1207; Young v. State, 283 S.W.3d 854, 866
(Tex. Crim. App. 2009). Throughout the challenge, the burden of persuasion remains with the
defendant, who may continue to rebut the prosecutor's explanations before the trial court decides
the Batson challenge. Moore v. State, 265 S.W.3d 73, 78 (Tex. App.–Houston [1st Dist.] 2008,
no pet.).
        Where the State has offered a race neutral explanation for the strikes, the defendant must
prove that the prosecutor's reasons were merely a sham or pretext. Watkins, 245 S.W.3d at 447.
“The ultimate plausibility of that race-neutral explanation is to be considered as part of the third



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step of the analysis, in which the trial court determines whether the opponent of the strike (usually
the defendant) has satisfied his burden of persuasion to establish by a preponderance of the
evidence that the strike was indeed the product of the proponent's purposeful discrimination.” Id.
“Whether the opponent satisfies his burden of persuasion to show that the proponent's facially race
neutral explanation for his strike is pre-textual, not genuine, is a question of fact for the trial court
to resolve in the first instance.” Id.
Failure to Timely Object
        For a Batson objection to be timely, it must have been raised before the trial court
impaneled the jury. See TEX. CODE CRIM. PROC. ANN. art. 35.261(a). A jury is considered
“impaneled” when the members of the jury have been both selected and sworn. See Hill v. State,
827 S.W.2d 860, 864 (Tex. Crim. App. 1992). In the case at hand, Appellant’s attorney raised the
objection, at Appellant’s insistence, not only after the jury had been impaneled, but after the jury
had found Appellant “guilty.” Accordingly, we hold that Appellant’s objection was untimely and
that error, if any, was not preserved. See TEX. CODE CRIM. PROC. ANN. art 35.261(a); TEX. R.
APP. P. 33.1(a).
Trial Court’s Duty to Act Sua Sponte
        Appellant argues that the trial court had a duty to (1) inquire concerning the basis for the
State’s striking African American venire members and (2) question the venire panel about racial
prejudice against African Americans.              In support of these contentions, Appellant relies on
Mu’Min v. Virginia, 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d 493 (1991). In Mu’Min, the
appellant was charged with capital murder. Id., 500 U.S. at 418, 111 S. Ct. at 1901. The court
noted its holding in Turner v. Murray, 476 U.S. 28, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986), that a
capital defendant accused of an interracial crime is entitled to have prospective jurors informed of
the race of the victim and questioned on the issue of racial bias. See Mu’Min, 500 U.S. at
424–25, 111 S. Ct. at 1904; Turner, 476 U.S. at 36-37, 106 S. Ct. at 1688. The Court elaborated,
stating as follows:


                  We enjoy more latitude in setting standards for voir dire in federal courts under our
        supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with
        respect to voir dire in state courts. But two parallel themes emerge from both sets of cases: First,
        the possibility of racial prejudice against a black defendant charged with a violent crime against a
        white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into
        racial prejudice; second, the trial court retains great latitude in deciding what questions should be
        asked on voir dire.



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Mu’Min, 500 U.S. at 424, 111 S. Ct. at 1904. However, in Turner, the Court further held that a
defendant cannot complain of a judge’s failure to question the venire on racial prejudice unless the
defendant has specifically requested such an inquiry. See Turner, 476 U.S. at 36-37, 106 S. Ct. at
1688. We further note that in Mu’Min, the appellant requested sixty-four voir dire questions.
See Mu’Min, 500 U.S. at 419, 111 S. Ct. at 1902. Twenty-four of these questions were approved
by the trial court, but several questions relating to the content of news items that potential jurors
might have read or seen were not approved. Id.
       Unlike the Supreme Court, we do not exercise supervisory power over the trial court. See
TEX. CONST. art. V, § 6 (West 2007). In Texas state courts, voir dire is ordinarily conducted by
the attorneys for the parties within the boundaries of any reasonable restrictions on the
examination the trial court imposes. See, e.g., Splawn v. State, 949 S.W.2d 867, 871 (Tex.
App.–Dallas 1997, no pet). And although we are aware of no authority prohibiting the trial court
from questioning the venire or even raising a Batson issue sua sponte, we do not read the holdings
of Mu’Min and Turner to require the trial court to do so. In those cases, the trial court refused to
propound questions to the venire submitted by the appellant. See Mu’Min, 500 U.S. at 419, 111
S. Ct. at 1902; Turner, 476 U.S. at 31–32, 106 S. Ct. at 1685. Here, there is no indication that
Appellant was prohibited by the trial court from questioning the venire concerning racial prejudice
during his voir dire examination nor that he was prohibited by the trial court from timely raising a
Batson issue. Furthermore, because Appellant failed to pursue a Batson challenge, there is no
indication from the record on appeal indicating (1) the race of the venire members stricken or, (2)
assuming these venire members were, in fact, African American, a pattern that might have
prompted the trial court to raise a Batson issue sua sponte. Accordingly, we hold that the trial
court was under no duty to sua sponte raise a Batson challenge or question the venire panel about
racial prejudice against African Americans. Appellant’s first issue is overruled.


                             INEFFECTIVE ASSISTANCE OF COUNSEL
       In his second and third issues, Appellant argues that he was denied a fair trial under the
Sixth and Fourteenth Amendments to the United States Constitution because his trial counsel (1)
failed to timely object to the State’s exercising its preemptory strikes against African American
venire members, (2) failed to question the venire panel about racial prejudice, and (3) failed to
object to the State’s improper jury argument concerning Appellant’s decision not to testify.



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Standard of Review and Governing Law
        Claims of ineffective assistance of counsel are evaluated under the two step analysis
articulated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 674 (1984).
The first step requires the appellant to demonstrate that trial counsel=s representation fell below an
objective standard of reasonableness under prevailing professional norms. See Strickland, 466
U.S. at 688, 104 S. Ct. at 2065. To satisfy this requirement, the appellant must identify the acts or
omissions of counsel alleged to be ineffective assistance and affirmatively prove that they fell
below the professional norm of reasonableness. See McFarland v. State, 928 S.W.2d 482, 500
(Tex. Crim. App. 1996). The reviewing court will not find ineffectiveness by isolating any portion
of trial counsel=s representation, but will judge the claim based on the totality of the representation.
See Strickland, 466 U.S. at 695, 104 S. Ct. at 2069.
        To satisfy the Strickland standard, the appellant is also required to show prejudice from the
deficient performance of his attorney. See Hernandez v. State, 988 S.W.2d 770, 772 (Tex. Crim.
App. 1999). To establish prejudice, an appellant must prove that but for counsel=s deficient
performance, the result of the proceeding would have been different. See Strickland, 466 U.S. at
694, 104 S. Ct. at 2068.
        In any case considering the issue of ineffective assistance of counsel, we begin with the
strong presumption that counsel was effective. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.
Crim. App. 1994).           We must presume counsel=s actions and decisions were reasonably
professional and were motivated by sound trial strategy. See id. Appellant has the burden of
rebutting this presumption by presenting evidence illustrating why his trial counsel did what he
did. See id. Appellant cannot meet this burden if the record does not affirmatively support the
claim. See Jackson v. State, 973 S.W.2d 954, 955 (Tex. Crim. App. 1998) (inadequate record on
direct appeal to evaluate whether trial counsel provided ineffective assistance); Phetvongkham v.
State, 841 S.W.2d 928, 932 (Tex. App.–Corpus Christi 1992, pet. ref=d, untimely filed)
(inadequate record to evaluate ineffective assistance claim); see also Beck v. State, 976 S.W.2d
265, 266 (Tex. App.–Amarillo 1998, pet. ref=d) (inadequate record for ineffective assistance claim,
citing numerous other cases with inadequate records to support ineffective assistance claim). A
record that specifically focuses on the conduct of trial counsel is necessary for a proper evaluation
of an ineffectiveness claim. See Kemp v. State, 892 S.W.2d 112, 115 (Tex. App.–Houston [1st
Dist.] 1994, pet. ref=d).



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        Appellant=s burden on appeal is well established.                     See Saenzpardo v. State, No.
05-03-01518-CR, 2005 WL 941339, at *1 (Tex. App.–Dallas 2005, no pet.) (op., not designated
for publication). Before being condemned as unprofessional and incompetent, defense counsel
should be given an opportunity to explain his or her actions. See Bone v. State, 77 S.W.3d 828,
836 (Tex. Crim. App. 2002). Thus, absent a properly developed record, an ineffective assistance
claim must usually be denied as speculative, and, further, such a claim cannot be built upon
retrospective speculation. Id. at 835.
Discussion
        Here, Appellant sets forth in his brief that his attorney=s performance at trial fell below the
professional norm because his counsel failed to timely object to the State’s exercising preemptory
strikes against African American venire members, failed to question the venire panel about racial
prejudice, and failed to object to the State’s improper jury argument concerning Appellant’s
decision not to testify.
        With regard to Appellant’s contentions that his counsel was ineffective during the voir dire
examination, the record indicates, if anything, that the decision to not raise a Batson challenge was
a considered decision. When the issue was brought, at Appellant’s insistence, to the attention of
the trial court following the jury’s verdict, the following exchange between Appellant’s counsel
and the trial court occurred:

                  [APPELLANT’S COUNSEL]: I don’t know if this is the proper time to raise it, Your
        Honor, but my client wants to object to this jury being not a jury of his peers, that there were black
        jurors in the audience that were removed from the jury. There were several in the audience and two
        that were actually, I believe, stricken by the prosecution. So I just wanted to make that record.

                 THE COURT: Always let lawyers tell me anything they want to. Never keep them from
        putting anything on the record. But it’s my understanding of the Texas law that the time to make
        what the law - - I presume what you’re suggesting is a Batson type of challenge - -

                 [APPELLANT’S COUNSEL]: It is, Your Honor. I understand it’s supposed to happen
        before a jury is sworn, but I made the decision not to do that. But my client wants me to make that
        record, so I made that record.

                 THE COURT: So I guess just so the record will be complete, not knowing where we end
        up, for purposes of appeal, that you evaluated that aspect at the time of jury selection, that you
        discussed that with your client at that point - -

                 [APPELLANT’S COUNSEL]: I did not discuss it with my client, no.

                 THE COURT: You personally evaluated it and made the decision not to raise that
        objection - -




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               [APPELLANT’S COUNSEL]: Correct.


From this exchange, we cannot surmise the precise reasoning underlying Appellant’s counsel’s
decision not to raise a Batson challenge before the jury was impaneled. However, we can
determine that Appellant’s counsel evaluated the matter at the time of jury selection and made the
conscious decision not to raise the objection. Accordingly, we conclude that presumption that
Appellant’s counsel’s actions and decisions were reasonably professional and were motivated by
sound trial strategy is not overcome.
       With regard to why Appellant’s counsel did not question the venire concerning racial
prejudice or object to the prosecution’s alleged improper argument, we note that normally, a silent
record cannot defeat the strong presumption of effective assistance of counsel. See Thompson v.
State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); but see Andrews v. State, 159 S.W.3d 98,
102-03 (Tex. Crim. App. 2005) (reversing a conviction Ain a rare case@ on the basis of ineffective
assistance of counsel when trial counsel did not object to a misstatement of law by the prosecutor
during argument).
        We are mindful that, in some “extremely unusual circumstances[,]” the record may
contain all of the information an appellate court needs to conclude that there could be “no
reasonable trial strategy for failing to object” to, for instance, a prosecuting attorney’s
misstatement of the law. See Andrews, 159 S.W.3d at 103. Counsel’s reasons in Andrews, if
any, were unnecessary to resolve the ineffective assistance of counsel claim. See Berry v. State,
No. 05-04-01161-CR, 2005 WL 1515512, at *3 (Tex. App.–Dallas 2005, no pet.). However, the
Aextremely unusual circumstances@ present in Andrews are not before us in the case at hand.
Failing to object to a misstatement of the law that is detrimental to one’s client when the harm is so
clearly presented by the record on appeal is quite different from failing to object to improper
prosecutorial argument as a matter of trial strategy. Cf. Saenzpardo, 2005 WL 941339, at *2;
Hartsfield v. State, 2009 WL 2767321, at *2 (Tex. App.–Tyler Sept 2, 2009, pet. ref’d) (mem. op.,
not designated for publication) (distinguishing facts in Andrews from situation in which trial
counsel failed to object to expert’s qualifications); see, e.g., McPherson v. State, No.
03-03-00144-CR, 2004 WL 162942, at *7 (Tex. App–Austin Jan. 29, 2004, pet. ref’d) (mem. op.,
not designated for publication) (trial counsel testified that he did not object to jury argument
because he hoped not to draw jury’s attention to client’s failure to testify). Moreover, Appellant’s
trial counsel could reasonably have believed that introducing the issue of racial prejudice before


                                                  7
the venire would not be advantageous to his client despite the fact that his client was a member of
a different race than the victim.
       Having reviewed the record in the instant case, we conclude that the facts before us are
distinguishable from the facts in Andrews. Thus, we decline to hold that the record in the instant
case contains all of the information needed for us to conclude that there could be no reasonable
trial strategy for Appellant’s counsel’s not objecting to the State’s allegedly improper jury
argument or declining to question the venire concerning racial prejudice. Therefore, we hold that
Appellant has not met the first prong of Strickland because the record does not contain evidence
concerning Appellant=s trial counsel=s reasons for choosing the course he did. As a result,
Appellant cannot overcome the strong presumption that his counsel performed effectively.
Appellant=s second and third issues are overruled.


                               CRUEL AND UNUSUAL PUNISHMENT
       In his fourth issue, Appellant argues that his sentence amounts to cruel and unusual
punishment in violation of the United States Constitution. However, Appellant made no timely
objection to the trial court raising the issue of cruel and unusual punishment and has, therefore,
waived the issues on appeal. See Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995)
(waiver with regard to rights under the United States Constitution); TEX R. APP. P. 33.1.
However, even absent waiver, we conclude that the sentence about which Appellant complains did
not constitute cruel and unusual punishment.
       The legislature is vested with the power to define crimes and prescribe penalties. See
Davis v. State, 905 S.W.2d 655, 664 (Tex. App.–Texarkana 1995, pet. ref=d); see also Simmons v.
State, 944 S.W.2d 11, 15 (Tex. App.–Tyler 1996, pet. ref=d). Courts have repeatedly held that
punishment which falls within the limits prescribed by a valid statute is not excessive, cruel, or
unusual. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Jordan v. State, 495
S.W.2d 949, 952 (Tex. Crim. App. 1973); Davis, 905 S.W.2d at 664. In the case at hand,
Appellant was convicted of stalking, the punishment range for which is two to ten years. See TEX.
PENAL CODE ANN. §§ 12.34(a), 42.072 (West 2011). Here, the sentence imposed by the trial
court falls within the range set forth by the legislature. Therefore, the punishment is not
prohibited as cruel, unusual, or excessive per se.
       Nonetheless, Appellant urges the court to perform the three part test originally set forth in



                                                 8
Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). Under this test, the
proportionality of a sentence is evaluated by considering (1) the gravity of the offense and the
harshness of the penalty, (2) the sentences imposed on other criminals in the same jurisdiction, and
(3) the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463
U.S. at 292, 103 S. Ct. at 3011. The application of the Solem test has been modified by Texas
courts and the Fifth Circuit Court of Appeals in light of the Supreme Court=s decision in Harmelin
v. Michigan, 501 U.S. 957, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) to require a threshold
determination that the sentence is grossly disproportionate to the crime before addressing the
remaining elements. See, e.g., McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir.), cert. denied,
506 U.S. 849, 113 S. Ct. 146, 121 L.Ed.2d 98 (1992); see also Jackson v. State, 989 S.W.2d 842,
845-46 (Tex. App.–Texarkana 1999, no pet.).
       We must first determine whether Appellant=s sentences are grossly disproportionate. In
so doing, we are guided by the holding in Rummel v. Estell, 445 U.S. 263, 100 S. Ct. 1133, 63 L.
Ed. 2d 382 (1980). In Rummel, the Supreme Court addressed the proportionality claim of an
appellant who had received a mandatory life sentence under a prior version of the Texas habitual
offender statute for a conviction of obtaining $120.75 by false pretenses. Id., 445 U.S. at 266, 100
S. Ct. at 1135. A life sentence was imposed because the appellant also had two prior felony
convictions––one for fraudulent use of a credit card to obtain $80.00 worth of goods or services
and the other for passing a forged check in the amount of $28.36. Id., 445 U.S. at 266, 100 S. Ct.
at 1134-35. After recognizing the legislative prerogative to classify offenses as felonies and,
further, considering the purpose of the habitual offender statute, the court determined that the
appellant=s mandatory life sentence did not constitute cruel and unusual punishment. Id., 445 U.S.
at 285, 100 S. Ct. at 1145.
       In the case at hand, the offense committed by Appellant––stalking––is more serious than
any of the offenses committed by the appellant in Rummel, while Appellant’s sentence is less
severe as the life sentence upheld by the Supreme Court in Rummel. Thus, it follows that if the
sentence in Rummel was not unconstitutionally disproportionate, then neither is the sentence
assessed against Appellant in the case at hand. Therefore, since we do not find the threshold test
to be satisfied, we need not apply the remaining elements of the Solem test. Appellant’s fourth
issue is overruled.




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                                                    DISPOSITION
         Having overruled Appellant’s first, second, third, and fourth issues, we affirm the trial
court’s judgment.
                                                                SAM GRIFFITH
                                                                    Justice



Opinion delivered August 24, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)



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