                                                    NO. 07-00-0574-CR

                                            IN THE COURT OF APPEALS

                                   FOR THE SEVENTH DISTRICT OF TEXAS

                                                       AT AMARILLO

                                                           PANEL E

                                              DECEMBER 12, 2002
                                        ______________________________

                                           MICHAEL LEE MONTGOMERY,

                                                                               Appellant

                                                                v.

                                                THE STATE OF TEXAS,

                                                             Appellee
                                     _________________________________

                       FROM THE 230TH DISTRICT COURT OF HARRIS COUNTY;

                               NO. 845063; HON. BOB BURDETTE, PRESIDING
                                    _______________________________

Before QUINN and REAVIS, JJ., and BOYD, SJ.1

            Appellant Michael Lee Montgomery was convicted of capital murder and sentenced

to life imprisonment. In four points, he contends 1) he was denied effective assistance of

counsel at trial, 2) the trial court abused its discretion in denying his motion for

continuance, 3) he was denied effective assistance of counsel when his juvenile counsel

failed to obtain a psychiatric and psychological examination of him, and 4) the evidence

is legally and factually insufficient to sustain his conviction. We affirm the judgment.



            1
                John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by ass ignm ent. TEX . G O V .’T C O D E
A N N.   §75.0 02(a )(1) (V erno n Su pp. 2002 ).
                                              Background

        On the night of December 27, 1999, appellant, who was 14 years old, and his

friends Juan Perez, Miguel Juarez, Miguel’s brother Felipe Juarez, and Felipe’s wife

Marissa Juarez gathered at the home of Miguel and Felipe. Around 9:00 p.m., they left the

residence to go cruising in two cars with Juan, Miguel, and appellant in the first car and

Felipe and Marissa in the second car. Miguel carried a gun but gave it to appellant

sometime during the drive. The occupants of the first car spotted another car they wished

to car jack and told the driver Juan to follow it. The car was driven by Rosa Martinez. They

followed Rosa into the parking lot of her apartment, and Miguel and appellant went to the

driver’s side of her car. Miguel tried to take the keys from her, and they struggled as she

sat in the driver’s seat. Appellant then shot Rosa, and the bullet entered through her

shoulder and went into her chest. She was later pronounced dead at the hospital. Rosa

was nine months pregnant at the time of her death.

                            Issue One - Ineffective Assistance of Counsel

            In his first issue, appellant complains that he received ineffective assistance of

counsel2 1) by action or inaction during voir dire, 2) by “opening” the door to prejudicial

evidence, 3) by failing to present evidence, 4) by failing to participate in the selection of a

trial setting, 5) by failing to present a defense and cross-examining in an ineffective

manner, 6) by failing to file a motion in limine, and 7) by his opening and closing argument.

The issue is overruled for various reasons.3

        2
            Appellant was represe nted by three defe nse cou nse l at trial.

        3
          Upon rea ding appellant’s allegations, we discovered that they were mere conclusions lacking citation
to legal authority. That is, he either failed to explain why the conduct he complained of was deficient (other
than by simply concluding that it was) or he failed to provide us with citation to legal authority holding that like

                                                          2
        Initially, we note that the standard by which we review ineffective assistance of

counsel claims is well established. Therefore, we will not repeat it, but cite the parties to

Strickland v. Washington, 466 U.S. 668, 687-95, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) for explanation of the

same. Furthermore, claims of ineffective assistance must be firmly founded in the record.

Rios v. State, 990 S.W.2d 382, 385 (Tex. App.—Amarillo 1999, no pet.). 4

                                                    Voir dire

        Appellant complains that his counsel was deficient during voir dire 1) in failing to

challenge for cause a juror who identified himself as a person who attended law school

with one of the prosecutors, 2) in failing to ask whether any jurors knew the prosecutor or

had families in law enforcement, 3) in failing to make additional inquiries to “weed out

possible bias,” 4) in failing to object to an “improper hypothet” [sic] used by the prosecutor

when he informed prospective jurors that life imprisonment was the only punishment

available for a conviction of capital murder, 5) in failing to use his peremptory strikes in a

“strategical” manner, 6) in failing to object to the court’s comment on his failure to testify,

7) in failing to object to a misstatement of the law on accomplice witness testimony, and

8) in failing to object to a hypothetical posed by the State with respect to the use of a gun

in a robbery. The record shows that the trial court asked the panel if anyone knew the

attorneys representing the State of Texas and no hands were raised. Later, during the

State’s voir dire, one juror stated that he and the prosecutor had gone to law school



conduct was deficient. G iven this, the allegation s we re no t prop erly briefe d. See T E X . R. A PP . P. 38.1(h)
(requiring citation to legal authority and argum ent supporting the contentions m ade).

        4
            A motion for new trial was filed, but it was not based on any claims of ineffective assistance.

                                                         3
together. The juror added, “I don’t know you. You are not a friend or associate, but in the

interest of full disclosure, I wanted to be sure that that was out on the table.” When the

prosecutor questioned him further as to whether that relationship would affect him as a

juror in the case, he responded, “Absolutely not.” Therefore, the value of any additional

questioning was not shown. See Bone v. State, 77 S.W.3d 828, 834 n.15 (Tex. Crim.

App. 2002) (finding no deficiency in performance when one prospective juror had an

association with one of the prosecutors through Little League, and the panel was asked

as a whole whether they knew the prosecutor well enough that it would keep them from

giving a fair and honest verdict to which no response was received).

       Appellant also complains that counsel failed to ask whether anyone had families in

law enforcement and to attempt to weed out other possible bias because the only

questions he asked of the jury were whether the members had previously been on a jury

that assessed punishment or whether they had been the victim of a violent crime. He

further questions the failure of counsel to probe the jurors’ beliefs arising from issues of

rehabilitation and punishment, to object to an allegedly improper hypothetical in which the

State told the jury that the only punishment for capital murder was life imprisonment, to

question the jury as to their ability to give probation, and to ascertain their ability to find

appellant guilty of some lesser offense.

       The trial court questioned the jury as to 1) whether they had a dispute with the idea

that merely because someone was arrested or charged for an offense, it is not evidence

they committed an offense, 2) the fact they could only judge the credibility of a witness

based on the quality of their testimony not on the basis they were a police officer or

possessed some specific characteristic, 3) the fact it is the State’s burden to prove the

                                              4
defendant guilty beyond a reasonable doubt, and 4) the fact the defendant is not required

to testify. The court also questioned the jury as to their ability to assess the full range of

punishment if appellant was found guilty of an offense other than capital murder. The

State then asked the jury 1) whether they could find appellant guilty of capital murder

knowing the sentence would be life imprisonment when appellant appeared to be a young

person, 2) whether they could believe the testimony of someone else who may have had

involvement in the crime, 3) as to the implications that might arise from the use of a

firearm, 4) as to the intent that might arise from the part of the body where the victim was

shot, 5) whether someone could make the decision to take a life, 6) about the law of

accomplices, 7) about the right of appellant not to testify, 8) about their ability to sit in

judgment of another person, 9) whether the primary purpose of a sentence was to punish

or rehabilitate, and 10) about their ability to consider the range of punishment.

       Thus, the topics which appellant claims his attorney failed to pursue had been

previously covered by the court and the State. The court had also informed the jury that

the only punishments for capital murder were death or life imprisonment and that the State

was not asking for death. In Williams v. State, 970 S.W.2d 182, 184 (Tex. App.—Houston

[14th Dist.] 1998, pet. ref’d), it was held that because the trial court had examined the jury

extensively, counsel’s failure to ask many questions could not be seen as anything other

than trial strategy. Similarly, nothing in the record before us shows that counsel’s voir dire

was not the product of a reasonable trial strategy. See Bone v. State, 77 S.W.3d at 834.

       Appellant additionally argues that a juror who, in response to his counsel’s question

about being the victim of a violent crime, stated that there had been a burglary in her

home, was challengeable for cause and, therefore, counsel’s performance was deficient

                                              5
for failing to utter such a challenge. Yet, there was no showing that the juror was

challengeable for cause because the response was given in her attempt to clarify what

counsel meant by “violent” crime. Nor was there any showing that she could not be fair or

unbiased.

      Finally, appellant complains of his counsel’s failure to object to 1) the trial court’s

reference to his failure to testify, 2) what “appears” to be a misstatement of the law

regarding accomplice witness testimony, and 3) an “improper” hypothetical in which “the

prosecutor made an attempt to equate that a gun in a robbery being used to hurt

somebody and take property are the same acts.” Appellant fails to explain or analyze in

what manner each of the statements are improper or incorrect statements of the law. He

simply concludes that they were. Nor does he cite any authority to support his contention.

Consequently, the error was not preserved due to his inadequate briefing. Aldrich v. State,

928 S.W.2d 558, 559 n.1 (1996).

                            Admission of Prejudicial Evidence

      Next, it is asserted that counsel was deficient in opening the door to evidence of

extraneous offenses. The contested testimony follows:

      Q. During the first - - and we are not sure of how many counts it was, I
      believe it’s approximately 11 for Miguel Juarez - - indictments for theft or car
      jacking, whatever they were, was Michael Montgomery also arrested for
      those certain 11 counts, on those certain 11 counts?

       A. Are you referring to the - - specifically to the spring of 1999 cases?

       Q. That’s correct?

       A. No, sir, he was not.

       Q. Was he a suspect at that time?


                                             6
      A. No, sir, he was not.

That testimony allegedly resulted in the following supposed prejudicial testimony:

      Q. You’ve talked to Defense counsel about the spring of 1999 as far as the
      investigation. Did you continue to investigate these individuals in the - - say
      the winter of 1999?

      MR. PHILLIPS: Objection, Judge. We just talked about improper redirect.

      THE COURT: I assume when you say these individuals, you’re referring to
      all four people that are on State’s Exhibit 43?

      MR. HAWKINS: Specifically talking about Miguel Juarez.

      MR. PHILLIPS: Any testimony, Your Honor, I would object to as to Michael
      Montgomery during the investigation.

      THE COURT: I want to hear the question first.

      Q. (BY MR. HAWKINS) Did you continue to investigate Miguel Juarez in the
      winter of 1999?

      A. I did.

      Q. And was additional information developed?

      A. It was.

Counsel objected to the admission of evidence as to his client, and there is no showing

that any improper evidence as to his client was admitted. The only evidence presented

was that with respect to Miguel Juarez.

                            Failure to Present Evidence

       Appellant asserts that his counsel failed to investigate evidence as to any psychiatric

problems he might have because the State filed a motion for a psychiatric and

psychological examination in his juvenile proceeding but no further actions were taken with

respect to that motion. There is no evidence in the record as to the extent, if any, of


                                              7
counsel’s investigation into his client’s competency or sanity. It is possible that counsel

investigated these topics on his own or with professional assistance without having

pursued them through the court. In short, the record before us must show a want of

investigation which it does not. Appellant merely surmises that misconduct occurred, as

he did in most other instances.

                                  Motion for Continuance

       Next, on September 14, 2000, the court entered an order substituting counsel

because appellant had retained counsel of his choice. On October 13, 2000, appellant

filed a motion for continuance from the October 27, 2000 trial setting arguing he needed

additional time to prepare for trial. The motion was denied on October 19, 2000.

       Appellant complains that his substituted counsel failed to attend a court setting on

September 1 and to participate in setting a date for trial at that time. However, trial counsel

was not substituted until after the September 1 date. Therefore, appellant’s substituted

counsel cannot be said to have failed to meet his obligation to attend court dates. Further,

appellant has made no showing that his counsel was unprepared at the time of trial.

       Additionally, appellant states that his appointed counsel failed to participate in the

plea bargaining process because the reset form of September 1, 2000, indicates “No

Offers.” This notation fails to establish that counsel did not participate. Instead, it could

indicate the State was not willing to make any offers.

   Trial Performance - Failure to Present Defense and to Effectively Cross-Examine

       Appellant challenges his counsel’s performance during trial by contending counsel

failed to present a defense and cross-examined witnesses in an ineffective manner. The

only example of allegedly ineffective cross-examination was in response to testimony from

                                              8
a fingerprint examiner who testified she took prints from appellant and matched them with

prints taken from the complainant’s car. The gist of counsel’s cross-examination was that

there were certain prints found at the scene that were unidentifiable which appellant

contends only suggested to the jurors that he was guilty. However, this evidence could

also suggest that there were prints at the scene which belonged to someone else who had

possibly done the shooting. In other words, counsel’s cross-examination could have

emanated from reasonable trial strategy.

       Appellant further complains that his counsel failed to object to the question posed

to Marissa as to whether anyone in the car had a gun because it was “leading and highly

prejudicial.” Appellant additionally claims his counsel should have objected to testimony

from Marissa that he told her he had to shoot the victim. This testimony allegedly was

objectionable because it constituted hearsay.     Yet, we cannot fault counsel for not

objecting to admissible evidence. Moore v. State, 4 S.W.3d 269, 275 (Tex. App.—Houston

[1st Dist.] 1999, no pet.). Moreover, appellant has not shown that the statement he

allegedly made to Marissa about shooting the complainant was not admissible as an

admission by a party-opponent under Rule of Evidence 801(e)(2). See Peoples v. State,

928 S.W.2d 112, 117-18 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d) (holding that

testimony from the defendant’s co-worker that he had told her he wanted his wife dead was

not inadmissible hearsay but was an admission by a party-opponent). Additionally, and

assuming the evidence was improper, isolated failures to object to improper evidence do

not necessarily constitute ineffective assistance. Manley v. State, 28 S.W.3d 170, 174

(Tex. App.—Texarkana 2000, pet. ref’d); Moore v. State, 4 S.W.3d at 275. Finally, nothing



                                            9
in the record indicates the reasoning behind counsel’s failure to object, and therefore

appellant has not overcome the presumption that his counsel acted reasonably. See Tong

v. State, 25 S.W.3d 707, 714 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 1053, 121

S.Ct. 2196, 149 L.Ed.2d 1027 (2001); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim.

App. 1994).

                            Failure to File Motion in Limine

       It is appellant’s contention that his counsel’s performance was deficient because he

failed to file a motion in limine with respect to testimony that the complainant was pregnant.

During trial, counsel objected when the State questioned a witness as to whether he had

known the complainant to be pregnant. Then, in a discussion at the bench, the trial court

indicated that the parties had reached an agreement on that issue in chambers the day

before but that the prosecutor who posed the question had not been present at that

meeting. After the prosecutor agreed not to mention what happened to the baby but

asserted his entitlement to refer to the complainant’s pregnancy, counsel objected that the

testimony would be prejudicial. The court overruled that objection. Appellant contends his

counsel should have objected every time the complainant’s pregnancy was mentioned and

he failed to make an offer of proof as to what the agreement between the parties had been.

However, the record does not reveal counsel’s reasoning or strategy, and we can therefore

not assume counsel’s actions were not based on reasonable trial strategy.

       Nor did appellant cite to any legal authority illustrating that the testimony was

inadmissible or otherwise provide us with any explanation or analysis on the subject.




                                             10
Again, he merely concluded that it was inadmissible. Thus, he again failed to adequately

brief the point.

                            Opening and Closing Arguments

       Finally, appellant challenges his counsel’s statement during opening argument that

he would not contest the fact that appellant was present at the scene of the crime. He also

complains that, in his closing, counsel stated that appellant was guilty.

       Counsel established in opening that appellant’s defense was that, although

appellant was present, the evidence would show that Miguel Juarez was the perpetrator

and that the gun accidentally discharged. In closing, the relevant portion of the argument

is as follows:

       . . . We represent a lot of guilty people. We do. In fact, today, Michael
       Montgomery is guilty. Oh no. He’s not guilty of capital murder. Question
       was as to whether or not he’s even guilty of felony murder. Is he guilty of
       making wrong choices and friends? Is he guilty of being in the wrong place
       at the wrong time? Yes. Yes. But that’s not what he’s charged with. He’s
       charged with capital murder. And for that, he is innocent. And I ask that you
       return that verdict of innocent. . . .

This passage hardly supports the suggestion that counsel admitted appellant’s guilt for the

crime charged. Instead, appellant utterly misconstrues what counsel said. What counsel

urged was not that his client was guilty of capital murder but of bad judgment and of being

a victim of misadventure. And, while we do not address the persuasiveness of the

argument, we nonetheless see a reasonable trial strategy underlying it. In short, appellant

does that which we cautioned against in Beck v. State, 976 S.W.2d 265, 268 (Tex.

App.—Amarillo 1998, pet. ref’d). Asserting claims of ineffectiveness is nothing short of

accusing one’s prior counsel of malpractice. Id. Such baseless accusations, like those

here, can have far reaching effect. Thus, it is a tact which should be indulged only after

                                            11
thorough contemplation and analysis. And, that is especially so when the victim of the

attack is denied opportunity to explain him or herself, as was the situation here.

                    Issue Two - Denial of Motion for Continuance

       In his second issue, appellant argues that the trial court abused its discretion in

failing to grant his motion for continuance of the trial. He asserts that his counsel’s

inadequate performance was due to his lack of preparation time. Specifically, he notes

that his counsel did not agree to a trial setting in the matter. We overrule the issue.

       The granting or denial of a motion for continuance lies within the discretion of the

trial court. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). To find an

abuse of that discretion in the denial of a continuance, there must be a showing that

counsel was prejudiced by his counsel’s inadequate preparation time. The bare assertion

that counsel did not have adequate time does not alone establish prejudice; there must be

a showing of specific prejudice to his defense. Id. at 513. We have already determined

that appellant failed to show that his counsel’s performance was inadequate during trial.

       Further, trial counsel did allege in his motion for continuance that the case was

“more complex than what Counsel was led to believe based on the information that was

provided by the family” and that he had not had time to look at evidence the State intended

to introduce of other crimes allegedly committed by appellant. Yet, there is nothing

specifically mentioned by appellant or shown in the record suggesting that counsel’s

performance was negatively affected by lack of preparation time.




                                            12
                 Issue Three - Failure to Obtain a Psychiatric Exam

       In his third issue, appellant complains of having received inadequate representation

by his counsel during the juvenile proceeding as a result of the failure of his counsel to

obtain a complete psychiatric and psychological examination to which he was entitled

under the Family Code.

       The record shows that the State filed a motion seeking to have psychiatric and

psychological examinations performed on appellant including an examination for

“competency and fitness to proceed.” The court had ordered a diagnostic study, social

evaluation, and full investigation of appellant, his circumstances and the circumstances of

the alleged offense to be performed which is required prior to a waiver of original

jurisdiction by the juvenile court. See TEX . FAM . CODE ANN . §54.02 (Vernon 2002). That

report indicates that psychiatric and psychological examinations were not performed at the

request of appellant’s counsel. A letter from appellant’s counsel requesting that no such

testing be conducted was also attached to the report. Thus, it appears that counsel

considered the situation and made an affirmative decision to forego testing. He may well

have had a legitimate reason for deciding as he did. Indeed, the decision could have been

made to prevent appellant from having an opportunity to make incriminating statements

or to add fodder to the State’s argument that appellant had the mental faculty of an adult.

Yet, we are left to simply guess about those reasons. And, most importantly, counsel was

not afforded an opportunity to explain them. So, the record does not show on its face that

the decision of counsel was something other than reasonable trial strategy. Tong v. State,

supra; Jackson v. State, supra.



                                            13
               Issue Four - Legal and Factual Sufficiency of the Evidence

       Appellant argues in his fourth issue that the evidence is both legally and factually

insufficient to support a finding that he shot the complainant or that he intended to steal her

vehicle. We overrule the point.

       The standards by which we review challenges to the sufficiency of the evidence are

well settled, and we refer the parties to Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979), King v. State, 29 S.W.3d 556, 562-63 (Tex. Crim. App.

2000), and Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996), for explanations

of the same.

       Next, the substance of appellant’s complaint is that the testimony of the accomplices

and the fingerprint evidence is conflicting. The fingerprint evidence showed appellant’s

right palm print on the outside of the driver’s window with his right thumb print on the

inside. There was also testimony that it would take 14 pounds of pressure to pull the

trigger on the gun used to commit the offense. Although Marissa testified that appellant

had both hands on the gun when he shot Rosa, she did not state that appellant placed his

hands on the vehicle. Thus, appellant argues that the evidence is legally and factually

insufficient to show that he held onto the window while pulling the trigger. Marissa also

stated that nothing was taken from the car and the car itself was not taken. Therefore,

appellant contends, that evidence does not support a finding that he intended to steal the

vehicle.

       The indictment charged that appellant “unlawfully, while in the course of committing

and attempting to commit the Robbery of Rosa Martinez, . . . intentionally cause[d] the



                                              14
death of the Complainant by shooting the Complainant with a deadly weapon, namely a

firearm.” There was evidence presented at trial illustrating that appellant and his friends

decided to go “jacking” and they followed Rosa’s car to “jack” it. And, according to both

Juan and Marissa, appellant shot the complainant while Miguel was trying to get the vehicle

from Rosa. This evidence, if believed, was and is sufficient to allow a rational trier of fact

to find beyond a reasonable doubt that appellant shot the complainant while attempting to

steal her car, and the proof to support that finding is not so weak as to undermine

confidence in the jury’s verdict. Any conflicts between that evidence and other evidence

presented at trial were for the jury to resolve. Moody v. State, 830 S.W.2d 698, 700 (Tex.

App.—Houston [1st Dist.] 1992, pet. ref’d).

       Accordingly, the judgment of the trial court is affirmed.



                                                   Brian Quinn
                                                     Justice



Do not publish.




                                              15
