                             NUMBER 13-09-353-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


JOSE CARDENAS AKA JOSE CAMARENA,                                           Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                  On appeal from the 214th District Court
                        of Nueces County, Texas.


                         MEMORANDUM OPINION

             Before Justices Rodriguez, Benavides, and Vela
                 Memorandum Opinion by Justice Vela

      A jury convicted appellant, Jose Cardenas a/k/a Jose Camarena, of murder, see

TEX . PENAL CODE ANN . § 19.02 (Vernon 2003), and aggravated assault. See id. § 22.02

(Vernon Supp. 2009). The jury assessed punishment at forty-five years’ and twenty years’

imprisonment, respectively, plus a $2,500 fine for each offense. The sentences were
ordered to run concurrently. In five issues, appellant contends: (1) the evidence is

insufficient to support his convictions; (2) the trial court erred in failing to charge the jury

on lesser-included offenses; (3) the trial court erred in failing to disclose juror information;

and (4) the trial court violated his right to effective assistance of counsel. We affirm.

                                       I. FACTUAL BACKGROUND

A. State’s Evidence

       On June 19, 2008, Rachel Adame called Eva Ybarra and told her “that there was

going to be a fight.” After Eva received the call, she, Maria Rosales, and F.T.1 went to the

corner of 10th and Booty Streets in Corpus Christi, Texas. About that time, Misty Torres,

V.A.,2 Maricela “Chata” Ybarra, Mark Pereida, his brother, Michael Pereida, and appellant

went to the same location in Misty’s vehicle. When Misty’s group arrived, a fight erupted,

involving six to eight girls.

       Jose Riojas and Maria Cortez were present during the fight. Riojas testified that

after the fight, three men “pointed the guns at us” and “cock[ed] their guns.” He said the

three men “started approaching us and then they backed up.” He saw “a flash” from one

of the guns, and he identified Mark Pereida and appellant as two of the three men who

were pointing the guns. Cortez saw her boyfriend, Jose Gomez,3 get shot by Michael

Pereida. She identified Mark Pereida and appellant as being present during the fight and

said, “They had guns. They were opening fire, too.”

       Maria Rosales, who was present during the fight, testified that Michael Pereida fired

a “warning shot,” and Mark Pereida “started firing randomly.” F.T. testified that when

       1
           F.T. is a child witness.

       2
           V.A. is a child witness.

       3
           Gom ez’s autopsy report showed he died from a single gunshot wound to his chest.
                                                     2
nobody listened to Michael’s warning shot, “they just started going off with their weapons.”

She stated, “I seen [sic] the gunfire. . . . From both [of them].” She said that Michael

Pereida fired five shots from a revolver and that Mark Pereida fired six shots from an

“automatic gun.”

       A.S.4 testified that after the fight started, he saw “[t]wo dudes,” who “pointed [guns]

at us.” One of these men had a revolver. After hearing gunshots, A.S. felt a bullet hit his

leg and said that it went through his leg. J.S.5 testified that during the fight, “a dude blind

sided me. . . .” When J.S. saw the man who blind sided him “going at” A.S., J.S. “stepped

forward,” and the man, whom J.S. identified as Mark Pereida, pulled out “[a]n automatic”

gun and got into Misty’s vehicle. J.S. heard “one shot go off, and after that there were

several more.” Rachel Adame testified that two people inside Misty’s vehicle fired the

shots out of two of the vehicle’s windows.

       V.A., who arrived at the scene with Misty Torres, testified that after the fight,

everybody got back into Misty’s vehicle and that the shooting started “[a]s we’re driving

away.” She stated that all three men inside Misty’s vehicle had guns. V.A. said that the

man in the front-passenger seat, along with the man sitting behind him, fired out the

window. She identified appellant as one of the two men firing out the window. V.A.

testified that Misty drove to the freeway, where “[e]verybody got off and ran. . . .” She said

“the guys that had” the guns “threw the guns in the grass.” According to V.A., three people

threw guns into the grass.

       Investigators recovered four .25 caliber shell casings from the crime scene and one

.25 caliber shell casing from inside Misty’s vehicle. The five shell casings were fired from

       4
           A.S. is a child witness.

       5
           J.S. is a child witness.
                                              3
the same .25 caliber automatic weapon. A bullet hole was found in the wall of an

apartment near the scene of the shooting. Inside that apartment, an investigator found a

.38 caliber bullet fragment, which came from a revolver. No weapons were found, but a

.25 caliber bullet was removed from Jose Gomez’s body.

B. Defense Evidence

       Appellant was jointly tried with a co-defendant, Mark Pereida. After the State rested

its case-in-chief at the guilt-innocence stage, Pereida called the following witnesses.

       Martin Rosales testified that he lived with Ruby Flores, the mother of Mark and

Michael Pereida. Rosales stated that on the evening following the shooting, Misty Torres

and appellant came to his home and that Misty told him that Michael Pereida “wasn’t the

shooter.”

       Mark Pereida testified that prior to the shooting, Misty and his older brother, Michael

Pereida, picked him up along with two females and appellant, who had an automatic

weapon. Mark testified that while in Misty’s vehicle, he asked to be taken to his fiancee’s

house, but “I was told that I would be dropped off after they had to discuss something with

one of their friends.” When they arrived at 10th and Booty Streets, everybody got out of

the vehicle, and the girls started fighting. Mark testified that he was not involved in the fight

and did not have a gun. He said that when “they all rushed at” his brother, Michael,

Michael fired a gun. Mark said that when he and the others left the scene in Misty’s

vehicle, Misty was driving, Michael sat next to her, appellant was sitting behind Michael,

the two females sat next to appellant, and he sat in the rear seat. Mark testified that he

believed that Michael and appellant fired their guns out the window. Misty drove to Morgan

and Crosstown Expressway where the guns were thrown into the grass, and everybody got

out except for Mark and Misty.
                                               4
       Jessica Amador testified that she and her boyfriend followed Misty’s vehicle to

where the fight occurred. Amador joined in the fight, and when she heard gunshots, she

ran. She did not see any weapons and did not know who was doing the shooting.

       Officer Jason Smith testified that J.S. identified appellant “as the man [he] saw out

there with the gun[.]” Officer Smith stated that Eva Ybarra and Maria Rosales told him that

Misty had a gun at the time of the shooting. He also testified that Mary Cortez told him that

she saw only two men with guns at the time of the shooting. He said that the gun that shot

A.S. “could have” been a revolver.

                                       II. DISCUSSION

A. Sufficiency of the Evidence

       In issue one, appellant contends that the evidence is legally and factually insufficient

to prove he fired the shot that killed Jose Gomez and that the evidence is factually

insufficient to prove he shot A.S. In issue two, he contends that the evidence is legally and

factually insufficient to prove that he is liable as a party for Gomez’s death or for the

aggravated assault on A.S.

       1. Standards of Review

       “‘In assessing the legal sufficiency of the evidence to support a criminal conviction,

we consider all the evidence in the light most favorable to the verdict and determine

whether, based on that evidence and reasonable inferences therefrom, a rational juror

could have found the essential elements of the crime beyond a reasonable doubt.’”

Roberts v. State, 273 S.W.3d 322, 326 (Tex. Crim. App. 2008) (citing Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007)). In a factual-sufficiency review, the only question to

be answered is: “Considering all of the evidence in a neutral light, was a jury rationally

justified in finding guilt beyond a reasonable doubt?” Grotti v. State, 273 S.W.3d 273, 283
                                               5
(Tex. Crim. App. 2008). Evidence can be deemed factually insufficient in two ways: (1)

“the evidence supporting the conviction is ‘too weak’ to support the fact finder’s verdict”;

or (2) “considering conflicting evidence, the fact finder’s verdict is ‘against the great weight

and preponderance of the evidence.’” Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim.

App. 2009) (quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)).

When a court of appeals conducts a factual-sufficiency review, it must defer to the jury’s

findings. Id. The court of criminal appeals has “set out three ‘basic ground rules’

implementing this standard.” Id. (quoting Watson, 204 S.W.3d at 414). First, the appellate

court must consider all of the evidence in a neutral light, as opposed to in a light most

favorable to the verdict. Id. Second, the appellate court “may only find the evidence

factually insufficient when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v.

State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must

explain why the evidence is too weak to support the verdict or why the conflicting evidence

greatly weighs against the verdict. Id. Although the verdict is afforded less deference

during a factual-sufficiency review, an appellate court is not free to “override the verdict

simply because it disagrees with it.” Id.

       2. Applicable Law

       Our review of a legal and factual sufficiency challenge should be examined under

the principles of review for a hypothetically correct jury charge. Grotti, 273 S.W.3d at 280-

81. “‘Such a charge [is] one that accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof, or unnecessarily

restrict the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried.’” Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App.

2009) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
                                           6
       A person commits the offense of murder if he or she intentionally or knowingly

causes the death of an individual or intends to cause serious bodily injury and commits an

act clearly dangerous to human life that causes the death of an individual. See TEX . PENAL

CODE ANN . § 19.02(b)(1), (2). A person commits the offense of assault if that person

intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or

knowingly threatens another with imminent bodily injury. Id. § 22.01(a)(1), (2). The offense

becomes aggravated assault if the person committing the assault uses a deadly weapon

during the commission of the offense. Id. § 22.02(a)(2).

       A person acts intentionally when it is his or her conscious desire to cause the result

of his or her conduct. Id. § 6.03(a) (Vernon 2003). A person acts knowingly when he or

she is aware that his or her conduct is reasonably certain to cause the result. Id. § 6.03(b).

A person’s knowledge and intent may be inferred from the “acts, words, and conduct of the

accused.” Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).

       “A person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is criminally

responsible, or by both.” TEX . PENAL CODE ANN . § 7.01(a) (Vernon 2003). The elements

of party liability under penal code section 7.02(a)(2) are: (1) “acting with intent that the

offense be committed,” (2) “the defendant solicits, encourages, directs, aids, or attempts

to aid” (3) “another person to commit an offense.” Schiffert v. State, 257 S.W.3d 6, 12

(Tex. App.–Fort Worth 2008, pet. ref’d) (citing TEX . PENAL CODE ANN . § 7.02(a)(2)). “Each

party to an offense may be charged with commission of the offense.” Id. § 7.01(b).

       “[W]hile presence of an accused at the scene of an offense is not alone sufficient

to support a conviction, it is a circumstance tending to prove guilt, which, combined with

other facts, may suffice to show that the accused was a participant.” Beardsley v. State,
                                            7
738 S.W.2d 681, 685 (Tex. Crim. App. 1987). “In determining whether an individual is a

party to an offense and bears criminal responsibility, the court may look to events before,

during, and after the commission of the offense.” Id. at 684. “Participation in an enterprise

may be inferred from the circumstances and need not be shown by direct evidence.” Id.

       3. Analysis of Sufficiency Challenges

       A rational jury could have determined the following from the evidence that: (1)

appellant accompanied Michael and Mark Pereida and Misty Torres to the fight; (2)

appellant brought a gun to the fight; (3) after the fight, three men, including appellant and

Mark Pereida, pointed guns at the persons at the scene, cocked their guns, approached

them, and then backed up; (4) appellant was one of the shooters inside Misty’s vehicle; (5)

during the gunfire, A.S. was shot through the leg, and Gomez was shot in the chest; (6)

Michael Pereida shot Gomez; (7) the four .25 caliber shell casings recovered from the

scene and the .25 caliber shell casing recovered from inside Misty’s vehicle were fired from

the same automatic weapon; and (8) Gomez was killed by a .25 caliber bullet. In addition,

the evidence showed that after the shooting, appellant, along with Misty Torres, Michael

Pereida, and Mark Pereida, fled the scene in Misty’s vehicle. A fact finder may draw an

inference of guilt from the circumstance of flight from the crime scene. Clayton v. State,

235 S.W.3d 772, 780 (Tex. Crim. App. 2007). Furthermore, appellant’s attempt to conceal

his weapon by throwing it into the grass is probative of wrongful conduct and is also a

circumstance of guilt. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2007)

(stating that “[a]ttempts to conceal incriminating evidence are probative of wrongful conduct

and are also circumstances of guilt”).

       Controverting evidence showed that: (1) no weapons were recovered; (2) no one

saw appellant shoot anyone; (3) there was no fingerprint evidence linking appellant to any
                                           8
of the shell casings; and (4) Cortez saw Gomez get shot by Michael Pereida.

       Even though the evidence showed that Michael Pereida shot and killed Gomez and

that no one saw who shot A.S., the jury apparently chose to believe V.A.’s testimony

identifying appellant as one of the shooters who fired at the group of people near the

corner of 10th and Booty Streets. Both Gomez and A.S. were part of that group of people.

The jury is the exclusive judge of the facts proved and of the weight given to the testimony.

TEX . CODE CRIM . PROC . ANN . art. 38.04 (Vernon 1979). Therefore, the jurors were free to

accept or reject any or all of the witnesses’ testimony. Davila v. State, 147 S.W.3d 572,

575 (Tex. App.–Corpus Christi 2004, pet. ref’d) (citing Alvarado v. State, 818 S.W.2d 100,

105 (Tex. App.–San Antonio 1991, no pet.)); see also Lancon v. State, 253 S.W.3d 699,

705 (Tex. Crim. App. 2008) (stating that “[t]he jury is in the best position to judge the

credibility of a witness because it is present to hear the testimony, as opposed to an

appellate court who relies on the cold record”). By convicting appellant, the jury obviously

chose to accept the testimony offered by the State and reject the testimony favorable to

appellant. We must defer to the jury’s determination. See Clayton, 235 S.W.3d at 778

(stating that “[w]hen the record supports conflicting inferences, we presume that the

factfinder resolved the conflicts in favor of the prosecution and therefore defer to that

determination.”). Even though the witnesses testified to different versions of the events

surrounding the shooting of Gomez and A.S., the jury was free to accept one version of the

facts and to reject another, or to reject any part of a witness’s testimony. Penagraph v.

State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Furthermore, a verdict is not

manifestly unjust merely because the jury resolved any conflicting views of the evidence

in the State’s favor. See Cain, 958 S.W.2d at 408-09.


                                             9
       Viewing the evidence in the light most favorable to the verdict, we conclude the

evidence is legally sufficient for a rational jury to find appellant guilty as a party to Gomez’s

murder and to the aggravated assault of A.S. beyond a reasonable doubt. After reviewing

all of the evidence in a neutral light, we conclude that the evidence supporting a finding that

appellant acted as a party to Gomez’s murder and to the aggravated assault of A.S. is not

so weak that the fact-finder’s determination is clearly wrong and manifestly unjust, or that

the verdict is against the great weight and preponderance of the evidence. We hold that

the evidence is legally and factually sufficient to support a finding that appellant acted as

a party to the murder of Gomez and to the aggravated assault of A.S. Issues one and two

are overruled.

B. Lesser-Included-Offense Instruction

       In issue three, appellant contends that the trial court abused its discretion by failing

to charge the jury on the lesser-included offenses of manslaughter or deadly conduct.

When evaluating charge error, we first determine whether there was error in the charge.

Almanza v. State, 686 S.W.2d 157, 174 (Tex. Crim. App. 1985) (op. on reh’g); see Ngo v.

State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, “the next step is to

make an evidentiary review . . . as well as a review of any other part of the record as a

whole which may illustrate the actual, not just theoretical, harm to the accused.” Almanza,

686 S.W.2d at 174 (op. on reh’g).

       In this case, during the charge conference, defense counsel did not request the trial

court to include the lesser-included offenses of manslaughter or deadly conduct in the

charge, and he did not object to their absence from the charge. In Tolbert v. State, the

court of criminal appeals stated “that lesser-included instructions are like defensive issues

and that a trial court is not statutorily required to sua sponte instruct the jury on lesser-
                                               10
included offenses because these issues ‘frequently depend upon trial strategy and tactics.’”

306 S.W.3d 776, 781 (Tex. Crim. App. 2010); see Delgado v. State, 235 S.W.3d 244, 249-

50 (Tex. Crim. App. 2007);6 Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998)

(stating that a “defensive issue” is not “applicable to the case” unless the defendant “timely

requests the issue or objects to the omission of the issue in the jury charge”). We,

therefore, hold that the trial court had no duty to sua sponte instruct the jury on the lesser-

included offenses of manslaughter or deadly conduct and that a jury instruction on these

lesser-included offenses was not applicable to the case absent a request by the defense

for their inclusion in the charge. See Tolbert, 306 S.W.3d at 782. Accordingly, there was

no charge error to which Almanza’s egregious-harm analysis would apply. See id.; Posey,

966 S.W.2d at 61. Issue three is overruled.

C. Access to Juror Information

        In issue four, appellant contends that the trial court abused its discretion by failing

to allow his counsel to review juror information for jurors 20 and 33. A trial court abuses

its discretion when it acts without reference to any guiding rules and principles, or it acts

in an arbitrary or capricious manner. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.

Crim. App. 1990). A trial court does not abuse its discretion if its ruling is at least within the

zone of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153-54 (Tex. Crim.

App. 2001); Montgomery, 810 S.W.2d at 390-91 (op. on reh’g).


        6
            In Delgado v. State, the court of crim inal appeals stated:

        The trial judge has an absolute sua sponte duty to prepare a jury charge that accurately sets
        out the law applicable to the specific offense charged. But it does not inevitably follow that
        he has a sim ilar sua sponte duty to instruct the jury on all potential defensive issues, lesser-
        included offenses, or evidentiary issues. These are issues that frequently depend upon trial
        strategy and tactics.

235 S.W .3d 244, 249-50 (Tex. Crim . App. 2007) (footnote om itted).
                                                        11
        1. Procedural History

        After appellant’s trial, his appellate counsel filed a “MOTION FOR DISCLOSURE

OF SPECIFIC JURY INFORMATION PURSUANT TO ARTICLE 35.29" (Motion for

Disclosure), alleging that: (1) “[t]wo of the jurors who served in this case, Oscar Ortiz, Jr.

and Arthur Garcia, may have had felony convictions”[;] and (2) “[p]ersons with the names

Oscar Ortiz, Jr. and Arthur Garcia are in the Nueces County Clerk’s Office database as

having felony convictions.”7 Counsel requested disclosure of “the Texas Driver’s License

numbers or dates of birth for Oscar Ortiz, Jr. and Arthur Garcia” for purpose of determining

whether they are the same persons who had previously been convicted of felony offenses.

The motion alleged that “[w]ithout the requested information, . . . counsel will be unable to

determine whether the two jurors involved gave incorrect or misleading information to the

Court during jury selection.” After hearing argument8 from both sides, the trial court denied

the motion for disclosure.

        2. Analysis

        By its terms, article 35.29 of the Texas Code of Criminal Procedure protects juror

personal information. See TEX . CODE CRIM . PROC . ANN . art. 35.29 (Vernon Supp. 2009).9

        7
          Attached to the m otion for disclosure were unsworn, unsigned printouts, purporting to be from the
Nueces County District Clerk’s website, that showed: (1) two persons nam ed Arthur Garcia (DOB 10/17/1967
and 04/09/1967) who have felony convictions; (2) one person nam ed Oscar Ortiz, Jr., (DOB 05/01/1961), who
had a m isdem eanor conviction; and (3) one person nam ed Oscar Ortiz (DOB 08/05/1976), who was “released
to TDC” for unspecified reasons.

        8
         During the hearing on the m otion for disclosure, appellant’s appellate counsel told the trial court, in
relevant part, that “[t]here are two O scar O rtiz, Jr.’s in the Nueces County District Clerk’s files who have a
felony conviction. There is also one or m ore Arthur Garcias who have m isdem eanor convictions.” She argued
that because the juror inform ation sheets had been sealed, she could not determ ine whether the people who
have these convictions are the sam e people who served on appellant’s jury. She further argued that “[w]ithout
being able to tell whether these two people are the sam e people who served on the jury, I can’t bring that to
the Court’s attention.” She stated that “I have specific instances that m ay or m ay not lead to jury m isconduct.
But there is no way to determ ine it without this lim ited inform ation.”

        9
            Article 35.29 of the code of crim inal procedure provides:

                Inform ation collected by the court or by a prosecuting attorney during the jury
        selection process about a person who serves as a juror, including the juror’s hom e address,
                                                        12
When a defendant files a post-trial motion seeking discovery of jurors’ personal

information, “[h]e is not entitled to such information unless he shows good cause.” Valle

v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (citing TEX . CODE CRIM . PROC . ANN .

art. 35.29) (“On a showing of good cause, the court shall permit disclosure of the

information sought.”); see Cyr v. State, 308 S.W.3d 19, 29 (Tex. App.–San Antonio 2009,

no pet.) (stating that article 35.29 “prohibits personal information about jurors from being

disclosed after trial unless good cause is shown”). “What constitutes good cause must be

based upon more than a mere possibility that jury misconduct might have occurred; it must

have a firm foundation.” Id. at 30; Esparza v. State, 31 S.W.3d 338, 340 (Tex. App.–San

Antonio 2000, no pet.) (stating that “[w]hat constitutes good cause must necessarily be

based upon more than a mere possibility that jury misconduct might have occurred”).

         In Hooker v. State, the appellate court stated that article 35.29's good-cause

showing “must be based upon sworn testimony or other sufficient supportive evidence in

the record.” 932 S.W.2d 712, 716 (Tex. App.–Beaumont 1996, no pet.); see Valle, 109

S.W.3d at 509 (stating that appellant’s allegation “that he needed [the jurors’] personal

information to determine whether he should file a motion for new trial . . . is not sufficient

to establish good cause”).10 In this case, the only ground raised in the motion for

disclosure as a basis for good cause to disclose juror information involved a possibility of

juror misconduct during voir dire based upon the alleged failure of two jurors to disclose


         hom e telephone num ber, social security num ber, driver’s license num ber, and other personal
         inform ation, is confidential and m ay not be disclosed by the court, the prosecuting attorney,
         the defense counsel, or any court personnel except on application by a party in the trial or on
         application by a bona fide m em ber of the news m edia acting in such capacity to the court in
         which the person is serving or did serve as a juror. On a showing of good cause, the court
         shall perm it disclosure of the inform ation sought.

T EX . C OD E C R IM . P R O C . A N N . art. 35.29 (Vernon Supp. 2009).

         10
           See also Castellano v. State, No. 04-06-00524-CR, 2007 W L 2935399, at *3 (Tex. App.–San
Antonio 2007, no pet.) (holding that defendant had “reason to believe” juror m isconduct had occurred was not
sufficient to show good cause).
                                                             13
their criminal history. However, “good cause must be based upon more than a mere

possibility that jury misconduct might have occurred; it must have a firm foundation.” Cyr,

308 S.W.3d at 30; Esparza, 31 S.W.3d at 340.

       We find, therefore, that appellant did not meet his burden of showing good cause

to the trial court so as to be entitled to the juror information sought. We hold that the trial

court did not abuse its discretion by denying the motion for disclosure. Issue four is

overruled.

D. Right to Ineffective Assistance of Counsel

       In issue five, appellant contends that the trial court’s denial of counsel’s request for

the jury information violated his right to effective assistance of counsel under the Sixth

Amendment to the United States Constitution. See U.S. CONST . amend. VI.

       1. Standard of Review

       Strickland v. Washington defines the components required to show ineffective

assistance of counsel. 466 U.S. 668, 687 (1984). The two required components are a

performance component and a prejudice component. Id. First, the defendant must show

that counsel’s performance was deficient, which requires a showing that counsel made

errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth

Amendment. Perez v. State, 310 S.W.3d 890, 892-93 (Tex. Crim. App. 2010). To satisfy

this prong of the analysis, the defendant “must show that counsel’s representation fell

below an objective standard of reasonableness” based upon “prevailing professional

norms.” Strickland, 466 U.S. at 688. For this performance inquiry, we consider all the

circumstances with “a strong presumption that counsel’s conduct [fell] within the wide

range of reasonable professional assistance.” Id. at 688-89.




                                              14
       Second, the defendant must show that counsel’s deficient performance prejudiced

the defense. Perez, 310 S.W.3d at 893. This requires the defendant to show that

counsel’s errors “were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. (citing Strickland, 466 U.S. at 687). To satisfy this element, the

“‘defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’” Id. (quoting

Strickland, 466 U.S. at 694). The defendant has the burden of proving ineffectiveness by

a preponderance of the evidence. Id. (citing Salinas v. State, 163 S.W.3d 734, 740 (Tex.

Crim. App. 2005)).

       The right to assistance of counsel applies to all “critical stages” of the criminal

proceeding, not just the actual trial. Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim.

App. 1999). The opportunity to prepare a record for appellate review makes a hearing on

a motion for new trial a critical stage. Powell v. State, 304 S.W.3d 630, 634 (Tex.

App.–Beaumont 2010, pet. ref’d).

       2. Analysis

       Appellant’s counsel timely filed a motion for new trial, alleging, in part, that

“[a]ppellate counsel has not been allowed to view the jury information sheets used by trial

counsel during jury selection.” Following a hearing, the trial court denied the motion for

new trial.

       Appellant argues that even though his appellate counsel was present during the

hearing on the motion for new trial, counsel was prevented from effectively assisting him

on the motion for new trial because the trial court had previously denied counsel’s request

for the jury information. Appellant further argues that the trial court’s refusal to allow

counsel access to the juror information caused him prejudice.


                                             15
        In United States v. Cronic, the Supreme Court stated that “a trial is unfair if the

accused is denied counsel at a critical stage of his trial.” 466 U.S. 648, 659 (1984).11

Under certain circumstances, prejudice to the defendant is presumed. “Circumstances of

that magnitude may be present on some occasions when although counsel is available to

assist the accused during trial, the likelihood that any lawyer, even a fully competent one,

could provide effective assistance is so small that a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial.” Id. at 659-60; see Batiste v. State, 888

S.W.2d 9, 14 (Tex. Crim. App. 1994) (stating that the Strickland Court “acknowledged that

with some varieties of Sixth Amendment violations, such as the actual or constructive

denial of counsel altogether at a critical stage of the criminal proceeding, . . . prejudice is

presumed”).

        In Valle, the defendant argued that he was denied his right to effective assistance

of counsel when the trial court denied his motion to “unseal the jury list.” 109 S.W.3d at

509. In overruling the argument, the Valle court noted that the defendant’s “motion

appears to have the sole purpose of discovering the jurors’ personal information,” which

“[h]e is not entitled to . . . unless he shows good cause” under article 35.29 of the code of

criminal procedure. Id. Like the situation in Valle, the sole purpose of appellant’s motion

for disclosure was to discover the jurors’ personal information. Following a hearing, the

trial court denied the motion. We find that the trial court’s denial of counsel’s request for

juror information did not result in either an actual or constructive denial of effective counsel

for the proceeding on the motion for new trial. See id. Thus, there is no presumption of

prejudice that appellant was denied the right to effective assistance of counsel.


        11
          In United States v. Cronic, the Court stated in a footnote that “[t]he [United States Suprem e] Court
has uniform ly found constitutional error without any showing of prejudice when counsel was either totally
absent, or prevented from assisting the accused during a critical stage of the proceeding.” 466 U.S. 648, 660
n.25 (1984) (collecting cases).
                                                     16
       Because there is no presumption of prejudice, the dispositive question is whether

appellant was prejudiced by the circumstances surrounding his representation. See

Cronic, 466 U.S. at 662. Appellant does not allege he was denied counsel at any other

stage in the case against him or allege his counsel failed to effectively represent him by

acting as the State’s adversary. See id. at 656. We hold that appellant was not prejudiced

by the circumstances surrounding his representation. Issue five is overruled.

                                     III. CONCLUSION

       We affirm the trial court’s judgment of conviction for both offenses.




                                                 ROSE VELA
                                                 Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the
19th day of August, 2010.




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