                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-09-00147-CR
        ______________________________


        LEE EDWARD MORRIS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




    On Appeal from the 6th Judicial District Court
               Lamar County, Texas
               Trial Court No. 22425




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                          MEMORANDUM OPINION

            Narcotics investigators were able to make an audio recording of Lee Edward Morris selling

cocaine to confidential informants, and Morris was convicted by a jury of two counts of delivery of

more than one, but less than four, grams of a controlled substance.1 The jury also found the

second of those deliveries occurred within 1,000 feet of a playground (a drug-free zone).

Punishment was enhanced by Morris’s prior felony convictions for possession of a deadly weapon

in a penal institution and engaging in organized criminal activity. Consequently, Morris was

sentenced to fifty years’ imprisonment on the first count and seventy-five years’ imprisonment on

the second count, to be served concurrently.

            On appeal, Morris first complains that the trial court erred in overruling a Batson 2

challenge. We conclude the trial court did not clearly abuse its discretion in making its ruling.

Morris next complains the trial court erred in seating the final jury panel, failing to require the

court reporter to record a bench conference during voir dire, and in commenting on Morris’s right

not to testify and present mitigating evidence during punishment. Because Morris’s trial counsel

failed to preserve error on these points of error, they are overruled. Recognizing that preservation

would likely prevent our review on certain points, Morris raised ineffective assistance of counsel

in failing to object to the jury panel and the court’s allegedly impermissible comments during


1
    Laboratory reports found 1.14 grams and 1.56 grams of cocaine were contained in the deliveries.
2
    Batson v. Kentucky, 476 U.S. 79 (1986).

                                                           2
punishment. However, Morris failed to sufficiently demonstrate counsel’s ineffectiveness and

we overrule his ineffective assistance of counsel claims.

I.     The Trial Court Did Not Err in Overruling Morris’s Batson Challenge

       The Equal Protection Clause of the Fourteenth Amendment to the United States

Constitution prevents the exercise of peremptory strikes based on a prospective juror’s race.

Batson v. Kentucky, 476 U.S. 79 (1986); Guzman v. State, 85 S.W.3d 242, 245 (Tex. Crim. App.

2002); Splawn v. State, 160 S.W.3d 103, 114 (Tex. App.—Texarkana 2005, pet. ref’d); see TEX.

CODE CRIM. PROC. ANN. art. 35.21 (Vernon 2006).

       Once a Batson challenge is raised, the trial court engages in a three-step inquiry. Purkett

v. Elem, 514 U.S. 765, 767–68 (1995); Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999);

Montgomery v. State, 198 S.W.3d 67, 76 (Tex. App.—Fort Worth 2006, pet. ref’d). Under the

first step, the person raising a Batson challenge is required to make a prima facie showing of racial

discrimination. Ford, 1 S.W.3d at 693; Montgomery, 198 S.W.3d at 76. Once that prima facie

showing is accomplished, the burden shifts to the State to present a racially neutral reason for the

challenged jury strikes. Ford, 1 S.W.3d at 693; Montgomery, 198 S.W.3d at 76. Third, and

finally, once the State’s reason is proffered, the burden of persuasion shifts back and the person

raising the challenge must then convince the court that the reason given by the State was not

race-neutral, and was merely pretext for concealing discrimination. Ford, 1 S.W.3d at 693 (citing

Purkett, 514 U.S. at 767–68).


                                                 3
       We review the evidence relevant to the Batson challenge in the light most favorable to the

trial court’s ruling. Cantu v. State, 842 S.W.2d 667, 689 (Tex. Crim. App. 1992); Roberts v.

State, 963 S.W.2d 894, 899 (Tex. App.—Texarkana 1998, no pet.). A high degree of deference is

given to the trial court, who is in the best position to determine if the State’s facially neutral

explanation for a peremptory strike is genuine. Splawn, 160 S.W.3d at 114 (citing Jasper v. State,

61 S.W.3d 413, 421–22 (Tex. Crim. App. 2001)). Thus, a ―clearly erroneous‖ standard of review

is applied to the trial court’s decision to overrule a Batson challenge. Hernandez v. New York,

500 U.S. 352, 369 (1991); Splawn, 160 S.W.3d at 114 (citing Gibson v. State, 144 S.W.3d 530, 534

(Tex. Crim. App. 2004)). A finding is clearly erroneous where the reviewing court ―is left with

the definite and firm conviction that the trial court committed a mistake.‖ Roberts, 963 S.W.2d at

899.

       During voir dire, the State individually elicited veniremember responses to the following

inquiry:

               There are a number of theories about why jurors do what they do, and jurors
       punish and return the verdicts that they return, because in the same case, same set of
       facts, two separate juries will do two completely different things.
               So people who study this sort of thing have found three common themes
       among jurors, why jurors set the sentences that they do. Some jurors will return a
       sentence because they want to keep other people from committing the same or
       similar crimes [punishment theory one]; . . . .
               Some jurors favor number two, rehabilitation; we’re going to try to help the
       person who has committed this crime, we’re going to give them probation, or we’re
       going to recommend that they go to a mental hospital, or whatever the case might
       be.


                                                 4
               . . . some jurors out there just want to punish that defendant for what he’s
       done, to send a message to him [punishment theory three] . . . .
               . . . . I want to find out from you which of these theories you subscribe to.

After the State presented its list of peremptory strikes, Morris’s counsel objected that the State

improperly struck Sarah Williams (juror number eight) and Elane Hill (juror number eleven) from

the jury based on their African-American race. The State proffered this race-neutral reason for

striking Williams and Hill:

       The Court may recall that I asked the jury panel, as a whole, their particular theories
       on punishment, whether it was the deterrence, rehabilitation or punishment for
       punishment’s sake. I asked the jurors to give me their number, one, two or three,
       whichever one they chose.
                Two was rehabilitation. If a juror felt that rehabilitation would be the
       guiding principle or the theory behind which he would set punishment, I wrote
       down by that juror’s name, two. I went back to the jury room, and in counting up
       the numbers, I discovered that 12 potential jurors had identified rehabilitation as the
       theory behind how they would assess punishment, or the criteria they would use to
       assess punishment in this case.
                I think [Morris’s counsel] would agree with me, this is a punishment case.
       Guilt is not the real issue here. Both transactions were captured on videotapes.
       The real issue in this case is going to be what kind of sentence is the defendant
       going to receive.
                All of the jurors that answered, rehabilitation, I struck. There were white
       jurors, there were black jurors, there were some jurors that, quite frankly, I would
       like to have kept. I struck every juror, white, black, Hispanic, Indian, Asian,
       whoever they were, I struck every single juror that answered rehabilitation as their
       punishment theory.

Indeed, each of the veniremembers peremptorily struck by the State (including Williams and Hill)

responded affirmatively that they believed in the theory of punishment number two posited by the

State––rehabilitation. The State pointed out that it exhausted its peremptory strikes and would


                                                 5
have struck even more members of the jury pool who believed in the second theory of punishment

if it had additional strikes. Once the State’s reasoning was offered, and it was confirmed that all

the veniremembers struck by the State responded they believed in the second theory, Morris’s

counsel failed to argue that the State’s reasoning was pretext for discrimination. Counsel merely

stated he was ―making an objection for the record.‖

         In Montgomery and Victor, our sister courts found that ―a veniremember’s belief in

rehabilitation as the primary goal of punishment is a race-neutral reason for the exercise of a

peremptory challenge.‖ Montgomery, 198 S.W.3d at 76; Victor v. State, 995 S.W.2d 216, 222

(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). We conclude that the trial court’s finding

(i.e., that the State proffered a sufficient race-neutral reason for striking Williams and Hill and that

Morris failed to meet his burden of persuasion to demonstrate otherwise) was not clearly

erroneous. See Splawn, 160 S.W.3d at 115.

         In his appellate brief, Morris additionally argues that the State struck jurors thirty-one and

thirty-two, but did not strike juror number thirty, who also subscribed to the rehabilitation

punishment theory.         However, this challenge to the State’s race-neutral reason was never

presented to the trial court.3 Because the trial court was thus unable to consider this argument, it

is not preserved for our consideration.



3
 A ―defendant who raises a Batson claim at trial forfeits his opportunity to complain on appeal about what his response
to the State’s race neutral reasons would have been when he fails to timely present his evidence in rebuttal of the

                                                          6
        Morris’s first point of error is overruled.

II.     Morris Did Not Preserve Remaining Claims of Trial Court Error

        A.       Seating a Peremptorily Struck Juror on the Jury Panel

        Morris’s counsel peremptorily struck ―Ricky Bond‖ and listed him as juror number ―36.‖

A review of the jury list reveals that Bond was actually juror number 35 and that juror number 36

was Gary Reed, who was not chosen to be on the jury and whose name did not appear on either

strike list. Morris argues on appeal that the trial court erred in allowing Bond to sit on the jury and

also erred because ―Reed should be juror #9 instead of Bond.‖

        ―It is well settled that it is the responsibility of the parties to assure that the jury impaneled

does not include a juror that has been struck.‖ Jackson v. State, 826 S.W.2d 751, 752 (Tex.

App.—Houston [14th Dist.] 1992, pet. ref’d); see also Miller v. State, 692 S.W.2d 88, 93 n.10

(Tex. Crim. App. 1985). The party must object before the panel is sworn, or else show that the

juror was otherwise disqualified because of prejudice toward the appellant. Jackson, 826 S.W.2d

at 752; Miller, 692 S.W.2d at 93 n.10. No objection was lodged to Bond being seated on the jury

as opposed to Reed, and Morris’s counsel affirmatively stated he did not contest any jury

member’s qualification to sit on the panel.




State’s race neutral reasons.‖ Hill v. State, No. 10-03-00281-CR, 2005 WL 170552, at *1 (Tex. App.––Waco Jan. 26,
2005, pet. ref’d) (mem. op., not designated for publication).

                                                       7
         B.       Failure of Court Reporter to Record Bench Conference

         Morris next complains that the trial court denied him the right of review by ―failing to

make the services of the court reporter available‖ during a bench conference.4                     It is uncontested

that the court reporter was available and present in the courtroom during the bench conference, but

failed to record it. Morris cites this Court to the rule stating that a court reporter has a duty to

record all proceedings unless expressly waived. TEX. R. APP. P. 13.1. We have previously held

that this Rule does not excuse counsel from the requirement to preserve error through an objection

if the court reporter fails to make a record as required. Rittenhouse v. Sabine Valley Ctr. Found.,

Inc., 161 S.W.3d 157, 161 (Tex. App.—Texarkana 2005, no pet.); see also Jones v. State, 942

S.W.2d 1, 2 (Tex. Crim. App. 1997) (en banc) (objection required to preserve error stemming from

failure to transcribe voir dire proceedings)5; Valle v. State, 109 S.W.3d 500, 508–09 (Tex. Crim.

App. 2003) (holding objection required to preserve error if bench conference not recorded).

Counsel for Morris failed to object to the failure of the court reporter to transcribe the bench

conference.




4
 Morris concedes that the trial court was taking up challenges for cause during the bench conference, a portion of
which was recorded by the reporter. The Batson challenge was made after the bench conference, which was fully
recorded and preserved for our review. Since Morris has not proffered a point of error dealing with challenges for
cause, we have not been shown how the omitted portion of the bench conference would hinder our review of this
appeal.
5
 Morris challenges that Rule 34.6 of the Texas Rules of Appellate Procedure entitles him to a new trial if a significant
portion of the reporter’s record is lost or destroyed. TEX. R. APP. P. 34.6. As Jones discusses, since the record was
never created, this Rule will not apply. 942 S.W.2d 1, 2.

                                                           8
       C.      Comment on Morris’s Right Not to Testify and Present Mitigating Evidence

       Immediately after the enhancement paragraphs were read during the punishment phase of

the trial, the court advised Morris ―that you have the right to remain silent during the punishment

phase of the trial and to present evidence of mitigation at punishment. Do you understand that?,‖

to which Morris replied ―Yes, sir.‖ In his appellate brief, Morris interprets this exchange as an

improper comment on his right not to testify and present mitigating evidence in front of the jury.

Again, counsel failed to object to the trial court’s comments, perhaps because he felt the court’s

comments were merely an admonishment, rather than improper comments.

       D.      Lack of Preservation Prevents Our Review

       In order to preserve these points of error for our review, Morris was required to present a

timely, specific objection to the trial court and secure an adverse ruling. TEX. R. APP. P. 33.1; Fox

v. State, 175 S.W.3d 475, 481 (Tex. App.—Texarkana 2005, pet. ref’d). Because his counsel

failed to object to the above alleged errors regarding the failure of the court reporter to transcribe

the bench conference and the comments by the trial court, they were unpreserved and nothing is

presented for our review. Thus, they are overruled.

III.   The Record Does Not Demonstrate that Morris’s Counsel Was Ineffective

       In his final point, Morris argues that his counsel was ineffective for failing to object to

Bond’s placement on the jury, Reed’s exclusion from the jury, and the trial court’s alleged

improper comments on Morris’s failure to testify and present mitigating evidence.


                                                  9
       A.     Standard of Review

       Morris’s allegations of his counsel’s ineffectiveness must be firmly founded in the record.

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d

808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.—Texarkana

2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003). ―Trial counsel should ordinarily be

afforded an opportunity to explain his actions before‖ we find the attorney’s performance was

ineffective. Goodspeed, 187 S.W.3d at 392; Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim.

App. 2003); Fox, 175 S.W.3d at 485–86. Absent such opportunity, we will not find deficient

performance unless the challenged conduct was ―so outrageous that no competent attorney would

have engaged in it.‖ Goodspeed, 187 S.W.3d at 392; Fox, 175 S.W.3d at 486. For this reason,

direct appeal is usually an inadequate vehicle for raising such a claim because the record is

generally undeveloped. Thompson, 9 S.W.3d at 813–14; Fox, 175 S.W.3d at 485.

       We evaluate Morris’s ineffective assistance of counsel claims using the two-part

Strickland test formulated by the United States Supreme Court, which requires a showing of both

deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687–88

(1984); Thompson, 9 S.W.3d at 812; Fox, 175 S.W.3d at 485. Under the first prong of the

Strickland test, Morris must show that his counsel’s representation fell below an objective

standard of reasonableness. Fox, 175 S.W.3d at 485 (citing Tong v. State, 25 S.W.3d 707, 712

(Tex. Crim. App. 2000)). There is a strong presumption that counsel’s conduct fell within the


                                               10
wide range of reasonable professional assistance and that the challenged action could be

considered sound trial strategy. Strickland, 466 U.S. at 689; Ex parte White, 160 S.W.3d 46, 51

(Tex. Crim. App. 2004); Tong, 25 S.W.3d at 712. Therefore, we will not second guess the

strategy of Morris’s counsel through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim.

App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.—Texarkana 2005, pet. ref’d). In this

case, since the record is silent as to why counsel failed to object to Bond’s inclusion on the jury,

Reed’s exclusion from the jury, and the court’s allegedly improper comments on Morris’s failure

to testify and present mitigating evidence, we will assume it was due to any strategic motivation

that can be imagined. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v.

State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001); Fox, 175 S.W.3d at 485–86.

       The second Strickland prong requires a showing that the deficient performance prejudiced

the defense to the degree that there is a reasonable probability that, but for the attorney’s

deficiency, the result of the trial would have been different. Strickland, 466 U.S. at 689; Tong, 25

S.W.3d at 712. A reasonable probability ―is a probability sufficient to undermine confidence in

the outcome.‖ Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). Failure to satisfy

either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 (Tex. Crim.

App. 2006).




                                                11
       B.      Failure to Object to Jury Selection

       There is no record explaining counsel’s reasons for failing to object to Bond’s inclusion

and Reed’s exclusion from the jury panel. Counsel’s peremptory strike lists Bond’s name, but

incorrectly cites his juror number as Reed’s juror number. Thus, it is possible counsel’s intention

was to strike Reed and keep Bond on the jury panel. Absent a record demonstrating otherwise,

we apply the strong presumption that counsel’s conduct fell within the wide range of reasonable

professional assistance. Strickland, 466 U.S. at 689; White, 160 S.W.3d at 51; Tong, 25 S.W.3d at

712.

       Morris attempts to meet the second Strickland prong by arguing that since Reed believed in

rehabilitation punishment theory (second theory), and Bond believed in punishing a defendant to

send a message (third theory), his sentence would have been less severe if Reed had been seated on

the jury instead of Bond. Yet, the makeup of the final jury consisted of four jurors who believed

in the third theory of punishment and two jurors who believed in the second theory of punishment.

Placing Reed on the jury would have led to an equal amount of jurors believing in the second and

third punishment theories. In any event, the remaining majority of jurors believed in the first

theory of punishment—prevention of further crime. Given the evidence in this case and the fact

that jurors representing all three theories of punishment rendered a unanimous verdict as to

sentencing as instructed by the trial court’s charge, Morris cannot demonstrate with reasonable

probability that the result of the trial would have been different absent his counsel’s alleged error.


                                                 12
        C.      Failure to Object to Trial Court’s Allegedly Improper Comment on Failure to
                Testify and Present Mitigating Evidence

        Finally, Morris argues that his counsel was ineffective for having failed to lodge an

objection to the trial court’s instruction to Morris in the presence of the jury that he had the right to

remain silent and the right to present mitigating evidence. It is possible that counsel believed that

the court’s comments favorably aided in explaining to the jury that Morris was neither required to

testify nor present mitigating evidence. Alternatively, even if counsel believed the trial court’s

comment was damaging, counsel may have taken the position that to lodge an objection would

have served little purpose except to draw the jury’s attention to Morris’s failure to testify or the

lack of mitigating evidence, thereby magnifying its significance.             Again, absent a record

containing counsel’s explanations, we will not find deficient performance since the failure to

object in this circumstance was not ―so outrageous that no competent attorney would have engaged

in it.‖ Goodspeed, 187 S.W.3d at 392; Fox, 175 S.W.3d at 486.

        Moreover, the jury charge instructed the jury not to consider Morris’s failure to testify and

to only consider facts in evidence. Absent evidence to the contrary, we will presume that the jury

followed the trial court’s instructions in the charge. See Reynolds v. State, 227 S.W.3d 355, 367

(Tex. App.—Texarkana 2007, no pet.). Thus, because the jury presumably followed the charge,

Morris is unable to demonstrate the result of the trial would have been different absent trial

counsel’s alleged error.



                                                   13
IV.   Conclusion

      We affirm the judgment of the trial court.




                                           Bailey C. Moseley
                                           Justice

Date Submitted:      April 14, 2010
Date Decided:        April 23, 2010

Do Not Publish




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